NOVEMBER 1992 

COMMISSION DECISIONS 

11-23-92 Southern Ohio Coal Company 

ADMINISTRATIVE LAW JUDGE DECISIONS 

11-05-92 

11-05-92 

11-05-92 

11-05-92 

11-06-92 

11-09-92 

11-17-92 

11-17-92 

11-18-92 

11-19-92 

11-23-92 

11-23-92 

11-25-92 

11-27-92 

11-27-92 

Sec. Labor for Coy Crabtree v. LEECO, Inc. 

International Anthracite Corp. 

Harriman Coal Corporation 

Eagle Nest Incorporated 

Energy Fuels Coal Incorporated 

Peabody Coal Company 

Paul Shirel employed by PYRO Mining co. 

Well Tech Incorporated 

Peabody Coal Company 

Sec. Labor for Clayton Narttz V• ·Nally and 

Hamilton Enterprises, Inc.(not final) 

Pyramid Mining, Inc. 

Faith Coal Company 

Acme Gravel Company 

Pittsburg and Midway Coal Mining co. 

Powderhorn Coal Company 

ADMINISTRATIVE LAW JUDGE ORDERS 

10-29-92 

11-13-92 

11-13-92 

11-13-92 

11-18-92 

11-20-92 

Contest of Respirable Dust Samples 

Wharf Resources USA In.c. 

Fisher Sand and Gravel Co. 

Livingston Marble & Granite 

Chestnut Ridge Sand 

Contest of Respirable Dust Samples 

LAKE 91-650-R Pg. 1781 

KENT 92-718-D 

PENN 92-230 

PENN 92-305 

WEVA 91-293-R 

WEST 91-432 

KENT 91-1013 

KENT 92-73 

VA 92-54 

KENT 92-42 

KENT 92-259-D 

KENT 92-126 

SE 92-145 

CENT 92-113-M 

CENT 91-196 

WEST 92-93 

Master No. 91-1 

CENT 92-240-M 

CENT 92-246-M 

WEST 92-430-M 

PENN 92-696-M 

Master No. 91-1 

Pg. 1789 

Pg. 1790 

Pg. 1796 

Pg. 1800 

Pg. 1804 

Pg. 1824 

Pg. 1826 

Pg. 1830 

Pg. 1836 

Pg. 1858 

Pg. 1905 

Pg. 1907 

Pg. 1931 

Pg. 1941 

Pg. 1951 

Pg. 1957 

Pg. 1964 

Pg. 1968 

Pg. 1971 

Pg. 1973 

Pg. 1975 

NOVEMBER 1992 

Review was granted in the following case during the month of November: 

Secretary of Labor, MSHA v. Virgina Crews Coal Company, Docket Nos. WEVA 92-246 

and WEVA 92-247. (Judge Koutras, October 13, 1992) 

There were no cases filed in which review was denied. 

COMMISSION DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

November 23, 1992 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. Docket Nos. LAKE 91-650-R 

LAKE 91-664-R 

SOUTHERN OHIO COAL COMPANY 

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

,, DECISION 

BY THE COMMISSION: 

This consolidated contest proceeding arises under the Federal Mine 

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

or "Act"). The Secretary of Labor alleges that Southern Ohio Coal Company 

("SOCCO") violated 30 C.F.R. § 75.1704-Z(a), a mandatory underground coal mine 

safety standard requiring that escapeways follow "the safest direct practical" 

route out of the mine 1 and failed to abate the violation, which resulted in a 

section 104(b) order. 2 SOCCO contested the citation and order, and sought 

1 

2 

Section 75.1704-2(a) provides: 

In mines and working sections opened on and after 

January 1, 1974, all travelable passageways designated 

as escapeways in accordance with § 75 .1704 shall be 

located to follow, as determined by an authorized 

representative of the Secretary, the safest direct 

practical route to the nearest mine opening suitable for 

the safe evacuation of miners. Escapeways from working 

sections may be located through existing entries, rooms, 

or crosscuts. 

Section 104(b) of the Mine Act provides, in pertinent part: 

Follow-up inspections; findings; orders. If, upon 

any follow-up inspection of a mine, an 

authorized representative of the Secretary finds 

(1) that a violation described in a citation issued 

pursuant to [section 104(a)] has not been totally abated 

within the period of time as originally fixed therein or 

(continued ... ) 

1781 
temporary relief from the order. 

Commission Administrative Law Judge Avram Weisberger concluded that 

SOCCO violated section 75.1704-2(a), sustained the Secretary's section 104(b) 

failure to abate order, and denied SOCCO's application for temporary relief. 

13 FMSHRC 1149 (July 199l)(ALJ). The Commission granted SOCCO's petition for 

discretionary review, which challenges (1) whether the Secretary had proved a 

violation of 30 C.F.R. § 75.1704-2(a), (2) whether, in order to reduce the 

length of an escapeway, SOCCO can be.required to construct an overcast, and 

(3) whether the judge erred in dismissing SOCCO's application for temporary 

relief. The Commission subsequently heard oral argument. 

For the reasons set forth below, we reverse the judge's conclusion that 

SOCCO violated section 75.1704-2(a) and vacate the Secretary's section 104(b) 

order. We find the denial of SOCCO's application for temporary relief to be 

moot. 

I. 

Factual and Procedural Background 

SOCCO owns and operates the Meigs No. 2 Mine. On June 11, 1991, Mine 

Safety and Health Administration ("MSHA") Inspector Charles Jones walked the 

designated primary escapeway from the mouth of the 3-South longwall section 

(the "mouth") to Air Shaft No. 2 (the "air shaft"). 3 From the mouth, the 

escapeway ran east parallel to the track and belt line entry for approximately 

2,300 feet. The escapeway then turned north and traversed four entries by 

2 ( ••• continued) 

as subsequently extended, and (2) that the period of 

time for the abatement should not be further extended, 

he shall determine the extent of the area affected by 

the violation and shall promptly issue an order 

requiring the operator of such mine or his agent to 

immediately cause all persons, except those persons 

referred to in [section 104(c)J 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. 

30 u.s.c. § 814(b). 

3 Air Shaft No. 2 was placed in operation on February 23, 1991 and it 

was constructed, on SOCCO's own initiative, in order to improve ventilation to 

the working faces. It became a mine opening suitable for the safe evacuation of 

miners when an escape capsule (hoist) was approved by MSHA on April 25, 1991, 

thus reducing the designated primary escapeway from the 3-South longwall section 

from 16,200 feet to 7,300 feet. 

1782 
means of an overcast, 4 then turned west to the air shaft, a distance of 

approximately 2,500 feet. The length of the escapeway from the mouth to the 

air shaft was about 4,800 feet. 5 Jones found the escapeway in good condition 

but was concerned about its length. Tr. 41, 113. Jones determined that the 

mouth was approximately 200 to 300 feet directly south of the air shaft and 

that a more direct route existed. 

Jones issued a section 104(a) citation alleging a violation of section 

75.1704-2(a) as follows: 

The most direct practical route to the nearest 

mine opening was not provided from the 3rd South 

Longwall section in that miners were required to 

travel an additional 4,800 feet by traveling outby 

from the mouth of the section for 2,300 feet and 

traveling inby for about 2,500 feet. The emergency 

escape shaft is located at the mouth of the 3 South 

longwall section (across the track and belt entry). 

The violation was designated as being of a significant and substantial nature. 

Jones suggested that, in order to abate the violation, SOCCO could 

construct an overcast over the track and belt entry between the mouth and the 

air shaft, which would permit SOCCO to designate a more direct escapeway. 6 

Use of an overcast would reduce the length of the escapeway to approximately 

200 to 300 feet from the mouth. Tr. 65-66, 304-05. 

On July 3, 1991, SOCCO contested the citation and requested an expedited 

hearing, which was held on July 11. 7 Prior to the hearing, SOCCO attempted 

4 An overcast is "[a]n enclosed airway to permit one air current to 

pass over another one without interruption." Bureau of Mines, U.S. Dept. of 

Interior, Dictionary of Mining, Mineral and Related Terms at 780 (1968). 

5 The designated escapeway contained four ninety degree turns but was 

roughly configured as three sides of a rectangle. 

6 Under 30 C.F.R. § 75.1707, the escapeway required to be ventilated 

with intake air must be separated from the belt and track haulage entries for 

their entire length to the beginning of each working section, except as permitted 

by the Secretary or her authorized representative. The purpose of the overcast 

was to separate the track and belt air from the intake air, allowing the 

track and belt entry air to pass under, and the intake air to pass through the 

overcast. Thus, a person walking the escapeway from the mouth to the air shaft 

could travel in intake air at all times. 

7 At the July 11, 1991, hearing, SOCCO also filed an application for 

temporary relief, in which it requested that it be relieved from abatement until 

issuance of a decision as to the validity of the section l04(a) citation. The 

Secretary had modified the citation to extend the abatement date until July 16, 

1991. The judge denied the motion. 

1783 
to abate the citation. SOCCO rerouted the escapeway and reduced its length by 

approximately 30 percent. 

On July 16, 1991, MSHA Inspector Ronald Taylor issued to SOCCO a section 

104(b) withdrawal order alleging that "little effort" had been made to abate 

the section 104(a) citation. On that same day, SOCCO filed a notice of 

contest and application for temporary relief seeking vacation of the section 

l04(b) order unless and until it was determined by the Commission that the 

citation was validly issued and that the time permitted for abatement was 

proper. 

MSHA modified the withdrawal order on July 17 to permit mining on the 3-

South longwall section based upon SOCCO's commitment to construct an overcast 

during the July 20 weekend. On July 19, the judge sua sponte consolidated the 

contest of the withdrawal order with the contest of the citation and issued 

his decision. 

The judge determined that section 75.1704-2(a) is violated when the 

escapeway designated by the operator follows a route "that has not been 

determined by the Secretary's repre,sentative to be the· safest direct practical 

route." 13 FMSHRC at 1151. Relying on his earlier decision in Rushton Mining 

Co., 10 FMSHRC 713, 716 (June 1988)(AIJ) aff'd on other grounds, 11 FMSHRC 

1432 (August 1989), the judge held that, because the cited escapeway was not a 

"direct" route, SOCCO violated section 75.1704-2(a). 13 FMSHRC at 1151-52. 

The judge noted Inspector Jones' suggestion that SOCCO construct an 

overcast so the escapeway could proceed more directly from the mouth to the 

air shaft. 13 FMSHRC at 1152. The judge also noted SOCCO's argument that 

section 75.1704-2(a) does not require an operator to engage in construction in 

order to designate a conforming escapeway and that it was not "practical" for 

the overcast to be constructed. Id. The judge concluded, however, that 

SOCCO's arguments concerned abatement, not the fact of violation. The judge 

reasoned that, since the Secretary had not mandated a specific escapeway route 

for abatement purposes, questions concerning the overcast, including its 

practicality, were beyond the scope of the proceeding. 13 FMSHRC at 1152 n.1. 

Consequently, the judge denied SOCCO's contest of the violation. 13 FMSHRC at 

1152, 1154. He found, however, that the violation was not significant and 

substantial. 13 FMSHRC at 1153. The Secretary did not request review of that 

finding. 

The judge also denied SOCCO's contest of the section 104(b) order and 

its July 16, 1991, application for temporary relief, reasoning that SOCCO's 

position was predicated on its argument that the cited escapeway was not 

violative of section 75.1704-2(a). 13 FMSHRC at 1153 n.2. 

IL 

Disposition of Issues 

A. Section 104(a) Citation 

The Secretary asserts that she is not required to designate a specific 

1784 
escapeway route in order to establish a violation of section 75.1704-2(a). 

See O.A. Tr. 25, 29-30. See also S. Br. 8-9. The Secretary argues further 

that it was SOCCO's burden not only to prove what it considers to be the 

safest direct practical route but also to prove, in the negative, that all 

other routes fail to meet those criteria. O.A. Tr. 25, 29-30; S. Br. 8-9. 

The Mine Act imposes on the Secretary the burden of proving a violation of a 

safety standard. Garden Creek Pocahontas Company, 11 FMSHRC 2148, 2152 

(November 1989); Consolidation Coal Company, 11 FMSHRC 966, 973 (June 1989). 

The Secretary's position evades her fundamental obligation in a contest 

proceeding to prove a violation by the operator. 

Section 75.1704-2(a) requires that designated escapeways "be located to 

follow, as determined by an authorized representative of the Secretary, the 

safest direct practical route to the nearest mine opening suitable for the 

safe evacuation of miners." Accordingly, it is the Secretary's burden to 

prove that, as compared to the designated route, there is at least one other 

escapeway route that she has determined more closely complies with the 

standard's requirement of "the safest direct practical route." Thus, in order 

for the Secretary to establish a prima facie case of violation, she must show 

that the operator's designated escapeway is deficient because it is not "the 

safest direct practical route. 11 It"·is· insufficient for the Secretary to 

merely cite the designated route as being out of compliance with the 

regulation. She must present a specific escapeway alternative that she 

believes is more appropriate. The language of the regulation, "safest direct 

practical route," implies that there is one best route. Accordingly, the 

Secretary, in order to prove a violation, must show that there is a specific 

escapeway alternative that more fully complies with those criteria than does 

the cited route. The judge therefore erred when he found a violation absent 

proof of a specific safer direct practical route. 13 FMSHRC at 1152 n. 1. 

The Secretary also asserts that a violation was established by the very 

configuration of the cited escapeway. O.A. Tr. 42-43, S. Br. 8. Essentially, 

the Secretary is suggesting that for the purposes of this proceeding, the 

configuration of SOCCO's escapeway is a per se violation of section 75.1704-

2(a). The Secretary's interpretation is clearly at odds with the wording of 

the standard and loses sight of the fact that directness is not the only 

factor to be considered in the designation of an escapeway. See Rushton 

Mining Co., supra, 11 FMSHRC at 1437. 

Focusing on the language of the regulation, there are three considerations in designating escapeway routes: (1) "safest," (2) "direct", and 

(3) "practical." Accordingly, in the Secretary's determination of what is 

"the safest direct practical route" there must be a consideration of all three 

factors. No one factor may be used exclusively to determine the designated 

escapeway without taking into account the other two factors. The judge 

therefore erred when he based his finding of violation solely on his 

determination that "the escapeway was not 'direct' 11 (13 FMSHRC at 1152) 

without giving due regard to its practicality and its safety relative to other 

possible routes. 

While the Secretary "suggested" the construction of an overcast over the 

belt and track entry, she failed to prove that there was a specific better 

1785 
route. 8 The judge found that neither Jones nor any other representative of 

the Secretary mandated a particular route that was designated as an escapeway 

for the purpose of abating the violation. 13 FMSHRC at 1152 n.l. Jones 

conceded that he never gave SOCCO a specific escapeway route. Tr. 49. When 

asked to mark on a map an alternative for the safest direct practical route, 

he did not do so. Jones merely responded that "[a]nything can be used as an 

alternate route either inby or outby the mouth." Tr. 49, 50. Nor does the 

citation itself indicate a particular escapeway that Jones believed was the 

safest direct practical route. 

Furthermore, the Secretary has taken the position throughout this 

proceeding that she has only suggested, but not required, construction of an 

overcast. 9 See S. Br. 10-11; Tr. 14-15, 21, 23, 49, 51, 104, 132, 305, 307; 

0.A. Tr. 25, 29. If, indeed, construction of an overcast was not required, a 

route containing the overcast could not have been determined to be the safest 

direct practical route. 10 We conclude that the judge erred in finding that 

the Secretary established a violation of section 75.1704-2(a). 

B. Section 104(b) Failure to Abate Order and Application for 

Temporary Relief 

Prior to the expedited hearing in this matter, SOCCO attempted to abate 

the violation alleged in the citation by designating a shorter route as its 

primary escapeway. In addition, SOCCO requested that the judge extend the 

time for abatement until after he issued his decision on the merits. SOCCO 

complied with the section 104(b) order, shut down the longwall, and 

constructed the "suggested" overcast. Under these circumstances, we vacate 

the section 104(b) order. 

8 The record does not address whether the shorter escapeway designated 

by SOCGO after the citation was issued met the requirements of section 75.1704-

2(a). 

9 Even if the Secretary's "suggestion" is construed to have required 

the construction of an overcast, the Secretary at oral argument was equivocal as 

to her authority to require such construction. See O.A. Tr. 31-32, 35-36, 37-38. 

See also S. Br. 11-12 n.4. Counsel for the Secretary suggested that if "there 

was no other direct, safe and practical way out of the mine ... the Secretary 

under those circumstances could require construction to some extent." O.A. Tr. 

32. When asked what the Secretary's position was on construction, counsel 

responded that-she was "not going to totally preclude that possibility." 0.A. 

Tr. 35-36. Pressed further, she responded that "we are not taking the position 

that the Secretary could never require construction." 0.A. Tr. 37-38. 

10 Finally, we note that SOCCO, on its own initiative, constructed the 

air shaft and the hoist. As a result, SOGCO was able to reduce its primary 

designated escapeway from the 3-South longwall section from 16,200 feet to 7,300 

feet. It is noteworthy that, prior to voluntary action by SOCCO, which reduced 

the escapeway distance by 8,900 feet, the much longer escapeway was approved by 

the Secretary. 

1786 
SOCCO also asserted that the judge erred in denying its request for 

temporary relief from the section 104(b) failure to abate order. Since we 

have vacated the order, SOCCO's assertions with respect to the application for 

temporary relief are rendered moot. 

III. 

Conclusion 

For the foregoing reasons, we reverse the judge's finding that SOCCO 

violated section 75.1704-2(a) and vacate the citation. We also reverse the 

judge's decision sustaining the section 104(b) failure to abate order and 

vacate that order. 

Arlene Holert;cllairlllan 

L. Clair Nelson, Commissioner 

1787 
Distribution 

David M. Cohen, Esq. 

American Electric Power Service Corp. 

P.O. Box 700 

Lancaster, Ohio 43130 

Tina Gorman, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Administrative Law Judge Avram Weisberger 

Federal Mine Safety & Health Review Connnission 

5203 Leesburg Pike, Suite 1000 

Falls Church, VA 22041 

1788 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

' .. , \ -;·· '.'I>'( / 

•J ) ;. ... 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION on behalf 

of COY CRABTREE 

Docket No. KENT 92-718-D 

BARB-CD-91-32 

Complainant 

v. 

LEECO INC., 

Respondent 

Before: Judge Feldman 

Mine: No. 60 

ORDER OF DISMISSAL 

The Secretary has filed a dismissal motion requesting 

approval to withdraw her complaint in the captioned case for the 

reasons stated therein. In addition, the Secretary states that 

the complaining miner, Coy Crabtree, also intends to withdraw his 

complaint with the Mine Safety and Health Administration. Under 

the circumstances herein, permission to withdraw is granted. 

29 C.F.R. § 2700.11. This case is therefore DISMISSED. 

Distribution~ 

~::old ~~:=. Feldman 

Administrative Law Judge 

(703) 756-5233 

Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department 

of Laboru 2002 Richard Jones Road, Suite B-201, Nashville, TN 

37215 (Certified Mail) 

Timothy J. Walker, Esq., Martin J. Cunningham, III, Esq., Reece, 

Lang and Breeding, P.S.C., P.O. Drawer 5087, London, KY 

40745-5087 (Certified Mail) 

Mr. coy Crabtree, P.O. Box 243, Viper, Kentucky 41774 

/vmy 

1789 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Petitioner 

Docket No. PENN 92-230 

A.C. No. 36-01781-03549 

v. 

B & M Tunnel 

INTERNATIONAL ANTHRACITE CORP.: 

Appearances: 

Respondent 

DECISION 

Gayle M. Green, Esq. and Linda Henry, Esq., 

U.S. Department of Labor, 

Office of the Solicitor, Philadelphia, 

Pennsylvania; 

Mr. Ronald Lickman, International Anthracite 

Corporation, Pottsville, Pennsylvania, 

pro se. 

Before: Judge Weisberger 

This case is before me based on a petition for assessment of 

l penalty predicated upon the issuance of 3 Section 104(g) (1) 

orders alleging violations of various training requirements set 

forth in Part 48p Sub-Part B 1 of volume 30 1 Code of Federal 

Regulations. Pursuant to Notice, the case was scheduled and 

heard in Reading, Pennsylvania on July 14, 1992. Harold Glandon 

testified for the Secretary of Labor (Petitioner), and Ronald 

Lickman testified for the Operator (Respondent) o It was agreed 

the parties that Lickman 1 s testimony and arguments set forth 

in Harriman Coal Corporation, Docket No. PENN 92-305, heard on 

the same date 1 are to be incorporated by reference herein. 

Findings of Fact and Discussion 

I. Order No. 3080095 

On May 13, 1991, Harold Glandon, an MSHA Inspector, 

inspected Respondent's B & M Tunnel operation. Respondent had 

purchased that operation on April 26, 1991, and had never mined 

coal there. At the date of the inspection, there was no mining 

taking place at the operation and it was temporarily abandoned. 

However, Respondent's representative indicated Respondent "never 

abandoned the mine". (Tr.93) On the day of Glandon's inspection, 

1790 
one of Respondent's employees, David Labenski, was operating a 

caterpillar bulldozer loading coal on trucks. Two other 

employees, Robert Searles and Ron Lickman, Jr., were observed 

operating a bulldozer and backhoe, respectively, grading and 

filling in various voids. 

a. Applicability of Part 48, subpart B, supra to 

Respondent's Operation 

Respondent argues in its brief, in essence, that it is not 

subject to the requirements of Part 48, inasmuch as no coal was 

being mined, or produced on the dates the citations herein were 

issued. I reject Respondent's argument for the following 

reasons. 

Essentially, Part 48 Subpart B, supra, requires certified 

training for miners working at surface mines and surf ace areas of 

underground mines. Section 3(h) (1) of the Federal Mine Safety 

and Health Act of 1977 defines a mine, inter alia as " .. lands, 

excavations, ... used in, or ~o be used in, or resulting from, 

the work of extracting such minerals from their natural deposits 

.•.. " Respondent's employees were engaged in filling voids 

which had resulted from the extraction of coal (Tr.10, 14, 88). 

As such, the site at issue falls within the statutory definition 

of a mine. 

b. Violation of 30 C.F.R. § 48.25 

According to Ronald Lickman, Respondent's President, Ron 

Lickman, Jr., had been operating construction equipment for 15 

years. Ron Lickman, Jr., told Glandon that he was experienced 

with the 245 backhoe as he had performed construction work. 

Further, Glandon indicated that he appeared to know how to 

operate the backhoe, and that the equipment and the work 

practices looked good. Also, Ron Lickman, Jr., had received 8 

hours training at another site. However, he informed Glandon 

that he was not certified as an experienced miner, and that he 

had not received 16 hours training, nor had he received 8 hours 

training on the site. 

Glandon issued an Order pursuant to section 104(g) (i) of the 

Federal Mine Safety and Health Act of 1977, which, provides as 

follows: 

If, upon any inspection or investigation pursuant 

to section 103 of this Act, the Secretary or an 

authorized representative shall find employed at a coal 

or other mine a miner who has not received the 

requisite safety training as determined under section 

115 of this Act, the Secretary or an authorized 

representative shall issue an order under this section 

which declares such miner to be a hazard to himself and 

1791 
to others, and requiring that such miner be immediately 

withdrawn from the coal or other mine, and be 

prohibited from entering such mine until an authorized 

representative of the Secretary determines that such 

miner has received the training required by section 115 

of this Act. 

30 C.F.R. § 48.25 provides as follows: 

{a) Each new miner shall receive no less than 24 

hours of training as prescribed in this section. 

Except as otherwise provided in this paragraph, new 

miners shall receive this training before they are 

assigned to work duties. At the discretion of the 

District Manager, new miners may receive a portion of 

this training after assignment to work duties: 

Provided, that no less than 8 hours of training shall 

in all cases be given to new miners before they are 

assigned to work duties. (Emphasis added) 

30 C.F.R. § 48.22(c) defines a "new miner" as a miner who is 

not an experienced miner. Section 48.22(b) supra defines an 

"experienced miner" as either a miner who was employed as a miner 

on the effective date of the regulations i.e. October 13, 1978, 

or one who has received training from an appropriate state agency 

within the preceding 11 months, or one who has had a least 12 

months experience working in a surface mine or surface of an 

underground mine during the preceding 3 years, or one who has 

received the training for a new miner within the proceeding 12 

months. 

Section 48.22(a) (1) defines a "miner", inter alia as a 

person working in a surf ace mine or surf ace areas of an 

underground mine and 01 regularly exposed to mine hazards. 0

' 

Inasmuch as Ron Lickman, Jr., was engaged in operating heavy 

equipment, he clearly was exposed to the hazard of operating this 

equipment at the mine site in question. Accordingly he is to be 

considered a ~miner" within the purview of Section 48.22 supra. 

Although he indicated to Glandon that had received 8 hours 

training at another site, there is no evidence that he had either 

received training acceptable to MSHA from an appropriate state 

agency within the preceding of 12 months, or had received 

training for a new miner within the preceding 12 months. Also, 

there is no evidence that he was employed as a miner as of the 

date the regulation was made effective i.e. October 13, 1978. 

Further, although he had experience operating heavy equipment, 

there is no evidence that he had at least 12 months experience 

working in a surface mine or surf ace area of an underground mine 

during the preceding three years. Hence, I conclude that he was 

not an experienced miner within the purview of Section 48.22(b), 

and accordingly must be considered a new miner. 

1792 
Section 48.25 supra, unequivocally provides that a new miner 

shall be given "no less than eight hours of training •.• before 

they are assigned to work duties." Ron Lickman, Jr., did not 

receive 8 hours of training before he was assigned to work duties 

at the subject mine. Hence, he was not given the training 

provided for in Section 48.25 supra. Accordingly, I conclude 

that Order No. 3080095 was properly issued. 

c. Significant and Substantial 

According to Glandon, an accident was highly likely to have 

occurred as a consequence of Lickman not having been provided 

with new miner training pursuant to Section 48.25 supra, and that 

in the event of a accident there could be a serious injury. He 

thus concluded that the violation was "significant and 

substantial". In this connection he noted that slope of the area 

in question was approximately 20 degrees, there was loose earth 

from the grading operation, and the earth was unstable. He 

opined that if the earth would shift, the equipment being 

operated could roll down the,yoid. 

However, Lickman was experienced operating the 245 backhoe 

in question, and according to Glandon, appeared to know how to 

operate that equipment. Also, Lickman and had experience at 

operating heavy equipment at construction sites. Based on these 

factors, I conclude that it has not been established that there 

was a reasonable likelihood that the hazard contributed to by the 

lack of Section 48 training would have resulted in an event in 

which there is an injury. (See U.S. Steel Mining Company, 6 FMSHRC 

1834, 1836 (August 1984). 

Accordingly I conclude that it has not been established that 

the violation herein is significant and substantial (Mathies Coal 

Companvu 6 FMSHRC 1 (January 1984) o 

d. 

Respondent's management should have been aware that it had 

the responsibility of providing Lickman with 8 hours training 

prior to his being assigned work duties. Howeverv the gravity of 

the violation herein is mitigated by Lickman's experience in 

operating the equipment in question at construction sites. I 

find that a penalty of $100 is appropriate for this violation. 

IIo Order No. 3080096 

On May 13, 1991, Glandon observed David Labenski operating a 

caterpillar front end loader loading trucks with coal. According 

to Glandon, he "talked to Mr. Labenski and his certification his 

annual refresher training, had expired five months previously" 

(Tr.24) (sic). Glandon issued an Order pursuant to Section 

1793 
104(g) (1) supra, citing a violation of 30 C.F.R. § 48.28. 

Section 48.28(a) supra, provides, as pertinent, that "each 

miner shall receive a minimum of 8 hours of annual refresher 

trainingn. Inasmuch as Labenski had not received this annual 

training, Glandon's order was properly issued. 

Labenski was observed operating the loader in question on 

level terrain. According to Glandon, if the loader turned over 

with the bucket in a raised position, Labenski could have become 

injured, even though the loader had roll-over protection. 

However, according to Lickman, Labenski had worked on this site 

several years and was quite proficient with the loader. Based on 

Labenski's experience, I conclude that it has not been 

established that there was a reasonable likelihood of an injury 

producing event contributed to by Labenski's lack of annual 

refresher training. I thus conclude that it has not been 

established that the violation was "significant and substantial" 

(See U.S. Steel, supra.). 

Considering the terrain on which the vehicle in question was 

being operated by Labenski, and experience on the site, I find 

that the gravity of the violation herein to be considerably 

mitigated. I find that a penalty of $50 is appropriate for this 

violation. 

III. Order No. 3080097 

On May 14, 1991, Glandon observed Roberts Searles operating 

a Caterpillar bulldozer. Glandon asked him if he had received 

newly employed experience miner training, and he indicated that 

he had not. Searles, who appeared to Glandon to know what he was 

doing and was operating the dozer safely, informed Glandon that 

had worked at another of Lickman 1 s job sites where he had 

received training and a certificate. 

Glandon issued Order No. 3080097 alleging a violation 30 

C.F.R. § 48.26. Section 48.26 supra requires a newly employed 

experienced miner to receive training, " ..• before such miner is 

assigned to work duties. 10 This training includes, inter alia, an 

introduction to the work environment which includes " •.. a visit 

and tour of "the mine", as well as instruction concerning the 

ground control plans "at the mine", and procedures for working 

safety in areas of pits and spoil banks. (Emphasis added). It is 

clear that Section 48.26 supra, requires instruction regarding 

conditions at the mine where the experienced miner is "newly" 

employed, and currently working. Inasmuch, as Searles was not 

provided with such training before he was assigned to his work 

duties at the subject site, Respondent herein did violate Section 

1794 
48.26 supra. 1 

Since Searles appeared to know what he was doing, was 

operating safely, and had received training at another Lickman's 

jobs sites, I conclude that the violation herein was not 

"significant and substantial". I find that a penalty of $75 is 

appropriate for this violation. 

ORDER 

It is ORDERED that Order Nos. 3080095, 3080096 and 3080097, 

be amended to reflect the fact that the violations cited therein 

are not "significant and substantial". It is further ORDERED 

that Respondent pay a civil penalty of $225 for the violations 

found herein, and that such penalty~ paid within 30 days of 

this decision. //I 

i&~s~ Administrative Law Judge 

Distribution: 

Gayle M. Green, Esq., and Linda Henry, Esq., Office of the 

Solicitor, U.S. Department of Labor, 3535 Market Street, 14480 

Gateway Building, Philadelphia, PA 19104 (Certified Mail) 

Mr. Ronald Lickman, President, International Anthracite 

Corporation, 101 N. Center Street, Suite 309, Pottsville, PA 

17901 (Certified Mail) 

nb 

1

In light of this decision, I deny Respondent's Motion, made 

at the hearing, to dismiss the order issued for Searle's lack of 

training. Since he had not been provided with the proper 

training before he was assigned to his work duties, as required 

of Section 48.26 supra, Glandon properly withdrew Searles. 

1795 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

' ; '") 

i ' ,·' 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA), 

Petitioner 

Docket No. PENN 92-305 

A.C. No. 36-06440-03509 

v. 

HARRIMAN COAL CORPORATION, 

Respondent 

Goodspring No. 1 Mine 

East and West 

Appearances: 

DECISION 

Gayle M. Green, Esq. and Linda Henry, Esq., 

u.s. Department of Labor, 

Office of the Solicitor, Philadelphia, 

Pennsylvania; 

Mr. Ronald Lickman, International Anthracite 

Corporation, Pottsville, Pennsylvania, 

pro se. 

Before: Judge Weisberger 

This case is before me based upon a petition for assessment 

of 1 penalty filed by the Secretary (Petitioner) alleging a 

violation by the operator (Respondent) of 30 C.F.R. § 77.410. 

Pursuant to notice the case was heard in Reading; Pennsylvania, 

on July 14v 1992. Howard Joseph Smith, testified for Petitioner, 

and Ronald Lickman, testified for Respondent. 

Finding of Fact and Discussion 

On September 19, 1991, Howard Joseph Smith, an MSHA 

Inspectorf inspected Respondent 9 s Penag Goodspring Mine. He 

observed a Caterpillar Model 988 front-end loader in operation. 

He testified that the 01 backup alarm was not working11 u and that 01 there was no audible alarm" (Tr. 20) . He issued a citation 

alleging a violation of 30 C.F.R. § 77.410, which in essence, 

provides that front-end loaders shall be provided with a warning 

device that, "(1) gives an audible alarm when the equipment is 

put in reverse; .... " Respondent did not offer any evidence to 

contradict the testimony of Smith that on the date he issued the 

citation the alarm on the loader in question was not functioning. 

Accordingly I find that the Respondent herein violated Section 

77.410. 

1796 
According to Smith, the violation herein is to be 

characterized as "significant and substantial". He explained 

that this type of does loader not have a mirror1 , and that there 

is a blind spot immediately behind the loader. According to 

Smith, the tires are almost 6 feet in height, and hence, it is 

not possible for an operator to see the immediate 12 to 15 feet 

behind the loader. He further testified that on the date he 

issued the citation, in addition to employees operating various 

pieces of heavy equipment, he observed a mechanic, Michael Dent, 

approximately 15 to 18 feet away from the loader. In essence, he 

concluded that because the reverse alarm did not function, an 

injury was reasonably likely to have occurred due to the blind 

spot behind the loader. He also concluded that, given the weight 

of the machine, i.e. approximately 20 tons, should the loader run 

over an individual, serious injuries would result. 

In Mathies Coal Co., 6 FMSHRC 1 (January 1984), The 

Commission set forth the elements of a "significant and 

substantial" violation as follows: 

In order to establish that a violation of a 

mandatory safety standard is significant and 

substantial under National Gypsum the Secretary of 

Labor must prove: (1) the underlying violation of a 

mandatory safety standard; (2) a discrete safety 

hazard--that is, a measure of danger to safety--

contributed to by the violation; (3) a reasonable 

likelihood that the hazard contributed to will result 

in an injury; and, (4) a reasonable likelihood that 

the injury in question will be of a reasonable serious 

nature. (6 FMSHRC, supra, at 3-4.) 

In United States Steel Mining Company« 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 injury11 o 

UoS. Steel Mining Coo, 6 FMSHRC l834f 1336 

(August 1984)0 

Ronald Lickmanp Respondent's President testified that he 

1

Although Respondent in its brief alleges that mirrors are 

standard equipment an this loader, Respondent did not adduce any 

evidence at the hearing with regard to the existence of a mirror 

on the loader. 

1797 
normally visits the site in question approximately once a week. 

He indicated that Dent is a mechanic/welder who spends 

approximately 80 percent of his time in a shop welding buckets. 

He indicated that the only time Dent works at the face where the 

loader in question operates, is when he has to repair or observe 

a piece equipment. In general he indicated that there were no 

new employees on the site. 

Considering all the above I conclude that the record 

establishes a violation of Section 77.40 supra, which contributed 

to the hazard and of a person being hit by the loader operating 

in reverse. Also given the blind spot which makes it impossible 

for the operator of the vehicle to see the immediate 15 to 18 

feet behind the loader, and the fact that at least one miner 

works, at times, in the area, I conclude that there was a 

reasonable likelihood that the hazard contributed to by the 

violation herein would result in a injury producing event. 

Accordingly, I conclude that it has been established that the 

violation herein was significant and substantial. 

I find that the violation herein was serious as it could 

have resulted in severe injuries. There is no evidence as to how 

long a period of time prior to the date of the citation the alarm 

was not in operation. Lickman indicated that operators of 

loaders usually pull the alarm, but that he would fire an 

employee for disconnecting the alarm. I conclude that 

Respondent's negligence herein was not more than ordinary. 2 

Taking into account the seriousness of the violation as well as 

the remaining statutory factors stipulated to by the parties I 

conclude that a penalty of $100 is appropriate for the violation 

found herein. 

It 

decision 9 

ORDER 

Respondent shall, within 30 days of this 

1 penalty of $100. 

(;__ 

Avram Weisberger 

Administrative Law Judge 

2

There is no merit to Respondent's argument that, in 

essence, management shall not be liable for the negligence of its 

employees. The law is well settled that, to the contrary, an 

operator is liable for the violations of the Act committed by its 

employees, (Western-Fuels Utah, 10 FMSHRC 256 (1988); Sewell Coal 

Co v. FMSHRC, 686 F.2d 1066 (4th Cir. 1982); Allied Products Co. 

v. FMSHRC 666 F.2d 890 (5th Cir. 1982)). 

1798 
Distribution: 

Gayle M. Green, Esq., and Linda Henry, Esq., Office of the 

Solicitor, U.S. Department of Labor, 3535 Market Street, 14480 

Gateway Building, Philadelphia, PA 19104 {Certified Mail) 

Mr. Ronald Lickman, President, International Anthracite 

Corporation, 101 N. Center Street, Suite 309, Pottsville, PA 

17901 (Certified Mail) 

nb 

1799 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

.f\l 0 v ~) 

EAGLE NEST, INCORPORATED, 

Contestant 

Vo 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

CONTEST PROCEEDING 

Docket No. WEVA 91-293-R 

Citation No. 3751114; 3/20/91 

Eagle Nest Mine 

Mine ID 46-04789 

DECISION ON REMAND 

Before: Judge Weisberger 

Statement of the Case 

On May 20, 1991, I issued a decision dismissing the Notice 

of Contest at issue, and finding that the violation alleged in 

the Notice of Contest was not significant and substantial. 

(13 FMSHRC 843 (1991)). Subsequently, the Secretary's petition 

for discretionary review was granted by the Commission. On July 

28u 1992u the Commission issued its decision vacating my finding 

that the violation was not significant and substantial, and 

remanding uoooofor further analysis and determination of the S&S 

issue without consideration of whether the hazard could be 

mitigated by the use of cautiono 00 (14 FMSHRC 1119, 1123) o In a 

telephone conference call on August 6, 1992, I initiated with 

counsel for both parties, both counsel requested the right to 

submit briefs regarding the issues raised by the Commission's 

remando This request was granted, and on September 28p 1992, the 

parties each filed a brief on remando 

Finding of Fact and Discussion 

The citation at issue alleged the following condition as 

being violative of 30 CoFoRo § 75.305 as follows: 

At least one entry of the longwall tailgate return 

entry could not be made safely in its entirety. Water 

has accumulated in depth exceeding 16 inches at Survey 

Spad [N]o. 3777 and various locations outby (sic). 

This condition creates a hazard to those persons 

required to make weekly examinations. 

1800 
In my decision, (13 FMSHRC supra), I found that the 

accumulation of water presented a hazard to miners who would have 

to traverse it to make an examination, that this hazardous 

condition was not immediately corrected and that accordingly, 

Section 75.305 supra was violated. There was no challenge to 

these findings. 

In analyzing whether the violative condition was properly 

designated by the inspector as being significant and substantial, 

I am guided by the following authority as set forth in the 

Commission's decision (14 FMSHRC supra at 1122): 

A violation is properly designated as S&S "if, 

based on the particular facts surrounding that 

violation, there exists a reasonable likelihood that 

the hazard contributed to will result in an injury or 

illness of a reasonably serious nature." Cement 

Division. National Gypsum Co., 3 FMSHRC 822, 825 (April 

1981). In Mathies Coal co., 6 FMSHRC 1, 3-4 {January 

1984), the Commission explained: 

In order to establish that a violation 

of a mandatory safety standard is significant 

and substantial under National Gypsum, the 

Secretary of Labor must prove: (1) the 

underlying violation of a mandatory safety 

standard; (2) a discrete safety hazard 

that is, a measure of danger to safety 

contributed to by the violation; (3) a 

reasonable likelihood that the hazard 

contributed to will result in an injury; and 

(4) a reasonable likelihood that the injury 

in question will be of a reasonably serious 

nature" 

The 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 1 1836 (August 1984)) 1 and also that the 

likelihood of injury be evaluated in terms of continued 

normal mining operations (U.S. Steel Mining Co .. Inc., 

6 FMSHRC 1573 1 1574 (July 1984); see also Halfway. 

Inc., 8 FMSHRC Sv 12 (January 1986). The Secretary is 

not required to present evidence that the hazard 

actually will occur. Thus, in Youghiogheny & Ohio Coal 

Co., 9 FMSHRC 673 (April 1987), the Commission held 

that: 

In order to establish the significant and 

substantial nature of the violation, the 

Secretary need not prove that the hazard 

1801 
contributed to actually will result in an 

injury causing event. The Commission has 

consistently held that proof that the injurycausing event is reasonably likely to occur 

is what is required. See, ~, U.S. Steel 

Mining Co., 7 FMSHRC at 1125; U.S. Steel 

Mining Co., 7 FMSHRC 327, 329 (March 1985). 

9 FMSHRC at 678. The question of whether any 

particular violation is S&S must be based on the 

particular facts surrounding the violation. Texas 

Gulf, Inc., 10 FMSHRC 498, 501, (April 1988). 

Further, in its decision, 14 FMSHRC supra, the Commission 

found that the first, second and fourth elements of the Mathies, 

test were not in issue, with the only issue being the third 

element of the Mathies, test i.e., whether there was a reasonable 

likelihood that the hazard of slipping or falling would result in 

an injury. 

I find that on March 19,, 1991, there was an accumulation of 

water approximately 48 inches deep at the No. 23 pump. I further 

find, based on the uncontradicted testimony of MSHA inspector 

Ronnie Joe Dooley, that on March 20, 1991, water extending the 

width of the entry reached a depth of 16 inches. I also find, 

based on the testimony of Dooley, that the accumulations of water 

were murky and the bottom could not be seen. Further, the 

uncontradicted testimony of Dooley establishes that the bottom of 

the mine floor contained mud, as well as submerged rocks, 

abandoned pieces of wood from cribs and pallets, lumps of coal, 

rocks, remnants from concrete stoppings, and a submerged 10 inch 

water line. Due to the depth of the water, its murky nature 

which prevented one from observing the bottom, the presence of 

numerous stumbling and tripping hazards on the bottom, and due to 

the fact that the area would have to be traversed by an examiner 

conducting the weekly examination required by Section 75.305, I 

conclude that there was a reasonable likelihood that the hazard 

of slipping or falling, contributed to by the fact that the 

hazard of accumulation of water was not immediately corrected, 

would result in an injury of a reasonably serious nature. I 

based this conclusion additionally upon the ground that the 

Commission, 14 FMSHRC supra, reversed my finding in the intial 

decision in this case, (13 FMSHRC supra), that the hazard of 

slipping or falling could be mitigated by walking cautiously to 

feel for submerged objects so they could be avoided. 

1802 
Based on the all the above I conclude that it has been 

established that the violation herein was significant and 

substantial. 1 

Distribution: 

Avram 

~~ Weisberger 

Administrative Law Judge 

David J. Hardy, Esq., Jackson and Kelly, P.O. Box 553, 

Charleston, WV 25322 (Certified Mail) 

Pamela s. Silverman, Esq., Office of the Solicitor, u. s. 

Department of Labor, 4015 Wilson Boulevard, Room 516, Arlington, 

VA 22203 (Certified Mail) 

nb 

1

In reaching my conclusion I have considered all the 

arguments advanced by the Operator in its brief 1 but find them to 

be without merit. The critical issue for resolution is the 

likelihood of an injury contributed to by the violation herein 

i.e. the failure to correct the hazardous conditions of water 

accumulations. As such, the argument by the Operator that pumps 

were installed to eliminate past and future water accumulation, 

is not relevant to a determination of this issue. Also, it has 

not been established that the fact that the hip boots were 

providedu lessens the likelihood of an injury as a result of the 

depth the murky water hiding from vision submerged hazardous 

objects. Nor is it relevant that Ronnie Roberts, the longwall 

coordinator, testified that he "wouldn't" ask anyone to travel in 

water deeper than hip boots (Tr.266) Further, in analyzing 

whether the specific violative condition herein was significant 

and substantial I do not place much weight on the testimony of 

Roberts who indicated that he did not have knowledge of anyone 

being injured as a result of slipping in hip level water. This 

testimony is not probative of the likelihood of the specific 

hazards presented herein resulting in an injury producing event. 

1803 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

(303) 844-5266/FAX (303) 844-5268 

1· i , . 

:J~l 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Petitioner 

v. 

ENERGY FUELS COAL INCORPORATED 

Respondent 

DECISION 

Docket No. WEST 91-432 

A.C. No. 05-03455-03592 

Southfield 

Appearances: Margaret A. Miller, Esq., Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, 

Before: 

for Petitioner; 

Phillip D. Barber, Esq., Denver, Colorado, 

for Respondent. 

Judge cetti 

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 1977v 30 C.F.R. § 801 et 

~u the v

1

Actu 00 charging Energy Fuels Coal Incorporated (Energy 

Fuels) with five "significant and substantial" (S&S) violations 

of mandatory safety standards in 30 C.F.R. Part 75 entitled 

"Mandatory Safety Standards - Underground Coal Mines." 

Energy Fuel filed a timely answer contesting the alleged 

violations, the significant and sub.stantial designation of the 

alleged violations and the appropriateness of the proposed 

penalties. 

The only witnesses called to testify for the Petitioner were 

federal mine inspectors Donald Jordan and Melvin H. Shiveley. 

The only witnesses called by Energy Fuels were Messrs. Gary 

Carroll, the mine's Safety Supervisor, James W. Pushchak, the 

mine's Maintenance Superintendent and Randy Acre, Manager of the 

Southfield Mine. 

1804 
I 

I have considered the evidence presented and the record as a 

whole, and find that a preponderance of the substantial, reliable, and probative evidence along with the applicable law establishes the following Findings of Fact and Conclusions. 

Findings and Conclusions 

1. Respondent is the operator of the Southfield Mine locaed at Fremont County, Colorado. The mine is an underground coal 

mine. 

2. The operations and products of the Southfield Mine affect commerce or the products of such mine enter commerce. 

Accordingly, the mine and its operators are subject to the provisions of the Federal Mine Safety and Health Act of 1977, 30 

u.s.c. § 801 et ~ (the Act). 

3. As a result of an insp.ection by an authorized representative of the Secretary, Respondent was issued five citations, 

pursuant to § 104 of the Act (30 u.s.c. § 814) and penalties were 

proposed pursuant to §§ 105 and 110 of the Act (30 u.s.c. §§ 815 

and 820). Each alleged violation was alleged to be a significant 

and substantial (S&S) violation. 

4. Each citation number, date issued, provision or standard 

allegedly violated, MSHA's proposed penalty and the penalty 

assessed herein is as follows: 

Proposed Penalty 

Citation No. Date 30 C.F.R. § Penalty Assessed 

3242478 1/8/91 75.512 119 vacated 

3243302 1/9/91 75.1105 192 $100 

3243303 1/9/91 75.512 119 80 

3243304 1/15/91 75.400 168 20 

3242437 1/2/91 75.202(a) 119 20 

TOTAL $220 

5. With respect to Citation No. 3242478, the evidence is 

insufficient to establish a violation of 30 C.F.R. § 75.512. 

There was no persuasive evidence that the 480 volt belt control 

and starter box in question was not frequently examined, tested 

and properly maintained to assure safe operating conditions. The 

citation should be vacated and the proposed penalty set aside. 

6. With respect to Citation No. 3243302, the air compressor 

was housed in an expanded metal housing with no fireproofing material. It was not housed in a fireproof structure. There was a 

104(a) non S&S violation of 30 C.F.R. § 75.1105. The violation 

1805 
was not significant and substantial as there was no reasonable 

likelihood that the hazard contributed to would result in an injury or illness of a reasonable serious nature~ The operator was 

negligent. A civil penalty of $100 is appropriate. 

7. With respect to citation No. 3243303, the Pineo 150 KVA 

Power Center, that provided power to the belt drive that hauls 

coal out of the mine, was not maintained in safe condition. This 

was a 104(a) non S&S violation of 30 C.F.R. § 75.512. The violation was not significant and substantial as there was no reasonable likelihood that the hazard contributed to would result in an 

injury or illness of a reasonably serious nature. An appropriate 

penalty for this violation is $80. 

8. With respect to Citation No. 3243304, the preponderance 

of the evidence established the existence of an accumulation of 

combustible material within the meaning of the cited safety standard (30 C.F.R. § 75.400) as interpreted by the Commission in Old 

Ben Coal Co., 1 FMSHRC 1954 (December 1979) and Old Ben Coal Co., 

2 FMSHRC 2806. The violation was not significant and substantial 

as there was no reasonable likelihood that the hazard contributed 

to would result in an injury of a reasonable serious nature. A 

civil penalty of $20 is appropriate. 

9. With respect to Citation No. 3242237, there was a non 

S&S 104(a) violation of 30 C.F.R. § 75.202(a). There was a 

hazard related to a potential fall of a rib. There was no 

negligence on the part of the operator. The likelihood that the 

hazard contributed to would result in injury was remote. An 

appropriate penalty under the facts and circumstances established 

at the hearing is $20. 

II 

~ISCUSSION AND FURTHER FINDINGS 

Citation No. 3242478 

Citation No. 3242437 alleges a "significant and substantial" 

violation of the standard at 30 C.F.R. § 75.512 and charges as 

follows~ 

The 480 volt belt control and starter box 

located at crosscut #56 of the west submains 

was not maintained in safe condition, in that 

the doors provided were not locked and could 

be opened by unauthorized personnel and 

expose themself [sic] to 480 volts. 

The cited safety standard 30 C.F.R. § 75.512 provides as 

follows: 

1806 
§ 75.512 Electric equipment; examination, 

testing and maintenance. 

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. 

This belt control and starter box supplies power to the belt 

motor. It sits on the mine floor on a set of metal skid bars and 

consists of a box shaped cabinet, 36" by 60 11 and approximately 36 

to 48 inches high. It has two metal doors on the front. On the 

outside of the metal box is an "on-off" switch to stop and start 

the belt. Inside the metal box is a breaker panel and wiring for 

the power center. To access the breaker or the wiring, the doors 

of the box have to be opened. There are no electrical parts 

outside of the box and the only hazard which Inspector Shiveley 

described was the possibility that an unauthorized person might 

open the cabinet doors and inadvertently contact an energized 

part. 

The only thing Inspector Shiveley observed that he felt was 

unsafe was that the doors to the metal cabinet were ajar and not 

locked so as to prevent an unauthorized person from touching anything inside the cabinet. The only thing the inspector required 

for abatement of the citation was to put a lock on the cabinet so 

as to keep 01 unauthorized peoplen from getting inside the cabinet. 

The inspector on cross examination admitted that the cited safety 

standard does not restrict access to "authorized personneln and 

does not have any i

0 1ocking out" requirement. 

Jim Pushchak, the Southfield Mine Maintenance Superintendent 

and a certified electrician? testified on behalf of Energy Fuels. 

Mr. Pushchak testified the control box was in safe operating 

condition. It had no electrical problems and was maintained, 

serviced and tested by qualified electricians pursuant to 

30 C.F.R. § 75.512. 

Only belt men and electricians have any reason to access 

this power center. All of these miners are either certified 

electricians or have been task trained, and know how to operate 

the equipment and are aware of any hazards related to it. There 

were no exposed electrical equipment on the exterior of the box, 

and the only reason that a belt man opens the doors to this box 

is to reset the breaker for the belt control. Mr. Pushchak 

testified that if a person went inside the box to reset the 

1807 
breaker, the power inside the box would have been deenergized 

except for the leads coming in on the line side into the top of 

the main breaker. Therefore, exposure to electrical hazard was 

negligible. 

Mr. Pushchak described the metal cabinet box as having metal 

doors on the front that latch shut. He testified that since 1979 

every belt drive in the mine has had this type of box. These 

boxes are inspected frequently by personnel from the Southfield 

Mine, and by the MSHA inspectors. Mr. Pushchak stated that in 

the 12 years that these boxes were in use at the mine they have 

never before had any complaint from any inspector that these 

boxes constituted an unsafe condition. Energy Fuels had never 

received any indication before this citation was written that it 

was going to be required to lock this box. 

Inspector Shiveley's application of the cited safety 

standard to the facts of this case constitutes an impermissible 

expansion of the plain meaning of the standard and thus 

constitutes an im-permissible avoidance of the rulemaking 

requirements of Section 101 of the Mine Act. 

In relation to the deference to be accorded an agency's interpretation of a mandatory safety standard, the court is required to give effect to the actual words and the plain objective 

meaning of the regulations and is not bound by the agency's "hidden intentions and idiosyncratic interpretations." Western Fuels 

_- UtaJ:.L._Inc., March 1989, 11 FMSHRC 278, 284. 

It is a basic tenant of administrative law that "a regulation cannot be applied in a manner that fails to inform a reasonably prudent person of the conduct required." Secretary v. 

Garden Creek Pocahontas Company, 11 FMSHRC 2148, 2152, (1989) 

citing Mathies Coal Company, 5 FMSHRC 300, 303 (1983). An agency1s lure to provide adequate and fair notice constitutes a 

denial of due process and renders any attempted enforcement action invalid. Gates and Fox Company. Inc. v. Occupational Safety 

and Health Review Commission, 790 F.2d 154, 156 (D.C. Cir. 1986). 

The rulemaking provisions of the Mine Act were intended to ensure 

sound standards and regulations and fair and adequate notice to 

regulated parties. Regulatory interpretations that extend beyond 

the clear language of the regulation and change the rights or 

duties of the parties constitute unenforceable amendments that 

are in avoidance of required rulemaking procedures. Garden Creek 

Pocahontas Company, supra. 

If the Secretary truly desires to require a cabinet housing 

a power center such as the one in question to be equipped with a 

lock and use it to lock out access by "unauthorized persons", 

then the Secretary must pursue this goal through notice-andcomment rulemaking. The Secretary should promulgate a standard 

to clearly and directly address not only the perceived hazard but 

1808 
also clearly inform the mine operator what he must do for compliance. 

I credit the testimony of Mr. Pushchak. Based upon the 

plain meaning of the cited section quoted above, the testimony of 

Mr. Pushchak and the admissions made by Inspector Shiveley on 

cross examination {all summarized above) I find that a preponderance of the evidence presented at the hearing failed to establish a violation of 30 C.F.R. 75.512. citation No. 3242478 and 

its related proposed penalty are vacated. 

Significant and Substantial Violations 

MSHA designated the four remaining citations significant and 

substantial (S&S) violations. The term significant and substantial is taken from Section 104(d) (1) of the Act, 30 U.s.c. 

§ 814{d) (1), which distinguishes as more serious in nature any 

violation that ''could significantly and substantially contribute 

to the cause and effect of a ... mine safety or health hazard 

" It is well established-that. a violation is properly designated as S&S "if, based on the particular facts surrounding that 

violation, there exists a reasonable likelihood that the hazard 

contributed to will result in an injury or illness of a reasonably serious nature. 11 National Gypsum, 3 FMSHRC at 825. In 

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

further explained: 

In order to establish that a violation of a 

mandatory safety standard is significant and 

substantial under National Gypsum, the 

Secretary of Labor must prove: (1) the 

underlying violation of a mandatory safety 

standard; (2) a discrete safety hazard 

that isr a measure of danger to safety 

contributed to by the violation; (3) a 

reasonable likelihood that the hazard 

contributed to will result in an injury; and 

(4) a reasonable likelihood that the injury 

in question will be of a reasonably serious 

natureo 

6 FMSHRC at 3-40 See also Austin Power Co. v. Secretary, 861 F2d 

99v 104-05 (5th Ciro 1988), aff'g 9 FMSHRC 2015, 2021 (December 

1987) (approving 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., Inc., 6 FMSHRC 1834, 1836 (August 1984). 

It is this third element of the Mathies formula that the 

preponderance of the evidence presented fails to establish in 

each of the four remaining citations discussed below. 

1809 
Citation No. 3243302 

citation No. 3243302 alleges a "significant and substantial" 

violation of the standard at 30 C.F.R. § 75.1105 and charges as 

follows: 

The 480 volt Sullair air compressor Serial 

No. 003-55609 located in crosscut #24 of the 

west submains, was not installed or 

maintained in a fireproof structure, in that 

the area surrounding the air compressor was 

designed of expanded metal, no fireproofing 

material was provided for roof or ribs in 

area. The air currents, when tested, were 

being coursed to the return. 

The safety standard 30 C.F.R. § 75.1105 provides as follows: 

§ 75.1105 Housing of underground transformer 

stations, battery-charg~ng stations, substations, compressor stations, shops, and permanent pumps. 

Underground transformer stations, batterycharging stations, substations, compressor 

stations, shops and permanent pumps shall be 

housed in fireproof structures or areas. Air 

currents used to ventilate structures or 

areas enclosing electrical installations 

shall be coursed directly into the return. 

Other underground structures installed in a 

coal mine as the Secretary may prescribe 

shall be of fireproof construction. 

It is undisputed that the 480 volt air compressor was not 

housed in a fireproof structure or area, and for this reason the 

violation of 30 C.F.R. § 75.1105 was conceded. The primary 

issues remaining were whether the violation was S&S and the 

appropriate penalty. 

The a compressor was a screw type compressor enclosed in 

an expanded metal housing. There were electrical leads and oils 

"involved in the unit. 0u The potential hazard was that a fire 

under some circumstances could occur within the compressor and 

possibly ignite combustible material. 

The air compressor was located in a crosscut between a 

return airway and an intake airway. Respondent asserts the open 

ends of the crosscut were sealed off from the air courses. There 

was undisputed evidence that air coming into the crosscut from 

the intake side was restricted and minimized by a flame resistant 

curtain. The return side of the crosscut was blocked off by a 

1810 
fireproof Kennedy stopping. A tube ran from a hole in the 

Kennedy stopping to a place directly above the air compreessor. 

All air from the crosscut, and any fumes or smoke, would be 

coursed through the tube into the return airway and away from any 

miners. There was no active mining at the time the violation was 

observed and the citation written, and no one was outby the place 

where the crosscut air was vented into the return. A smoke-test 

performed by the inspector demonstrated that the air was being 

properly vented into the return. 

The air compressor was located four to five feet from one 

wall of the crosscut, eight to ten feet from another wall of the 

crosscut and approximately one foot from the top of the crosscut. 

The crosscut had been rock dusted as required by law. The air 

compressor was resting on a rock floor, a naturally incombustible 

surface. 

The inspector testified that the compressor was operating 

and there 'was a "probability or possibility" that the conditions 

observed could cause a fire. ··He put his hand on the coal 12 

inches above the top of the compressor and found the coal was 

warm. The inspector testified that he probably "could have left 

it (his hand) there" without burning his hand. He did not take a 

temperature reading of any thermostats installed on the compressor. 

Mr. Jim Pushchak, the Maintenance superintendent at the 

Southfield Mine, accompanied Inspector Shiveley when this 

citation was written. He observed the compressor and determined 

that it was working properly and running as normal. The equipment was in safe operating condition, was not emitting any smoke, 

was not unduly hot and did not have any accumulation of combustible material on it" 

This particular compressor had been operating at this location for over seven months with no problems. The mine has never 

had any problems with the air compressor and it was still working 

properly and safely on the date of the hearing, some 16 months 

after the citation was writteno 

One factor of considerable importance on the S&S issue was 

that the compressor was equipped with an automatic fire extinguisher that was activated by heat. Once activated, it would 

have completely extinguished any fire hazard in the crosscut by 

covering the entire area with a fire dampening chemical. 

Mr. Pushchak concluded his testimony with his opinion that under 

all the facts surrounding the violation there was no reasonable 

likelihood 0£ a fire resulting from the violation. 

Upon careful evaluation of all the probative evidence I find 

that the preponderance of the evidence presented did not 

1811 
establish a reasonable likelihood that the hazard contributed to 

by the violation would result in an injury. There was no persuasive evidence of a confluence of factors that such an event 

was reasonably likely. There existed a mere possibility that was 

less than the reasonable likelihood required in Mathies for an 

S&S finding. 

I find the operator was negligent to a moderate degree in 

using over a long period of time an air compressor subject to 

weekly examination, that did not comply with the fire proof 

housing requirement of the cited standard. The violation was 

serious. 'on consideration of all the statutory criteria in 

§ llO(i) of the Act I find that a civil penalty of $100 is 

appropriate. 

Citation No. 3243303 

Citation No. 3243303 alleges a "significant and substantial" 

violation of the standard at 30 C.F.R. § 75.512 and charges as 

follows: 

The Pineo 150 KVA Power Center 4160/480 

volt, located in crosscut #2 of the 2 left 2 

west, was not maintained in safe condition, 

in that the 480 volt line side power lugs 

were exposed on the upper part of the 400 amp 

rating circuit breaker supplying power to the 

2 west beltdrive. Persons that are required 

to test and operate the circuit breaker would 

be exposed to the energized 480 volt lugs. 

§ 75.512 Electric equipment; examination, 

testing and maintenance. 

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 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. 

The power center in question provides power to a belt drive 

that hauls coal out of the mine. It was located two or three 

crosscuts from where the coal was being mined. It was housed in 

a large box-shaped metal cabinet that sat on the mine floor. It 

was 5 feet wide, 8 feet long and 3 feet high. In front, the 

cabinet had a closed metal door. on the side it had a sign 

warning that the power center had "dangerous, high voltage." 

1812 
Inside the metal cabinet is a circuit-breaker unit. This 

unit is a small plastic box with a handle on the front. Inspector Shiveley testified the breaker box poses no hazard if you 

operate it properly but could be dangerous if the miner "shoved" 

the handle of the breaker up with the palm of his hand in such a 

way that his fingers went up and over the top of the insulating 

barrier (insulated backboard) rather than lifting up the handle 

to deenergize it. 

The nazard according to the inspector were two uninsulated 

exposed lugs located behind the insulated barrier inside the 

circuit breaker unit. These lugs were attached to the bussing on 

the primary 480 volt feed and were not insulated. A person 

operating the handle located in front of the breaker by pushing 

the breaker handle with the palm of his hand could get his 

fingers over the top of the insulated barrier back board in such 

a manner that his fingers could come in contact with the uninsulated lugs. If this were to happen, the person would probably be 

electrocuted. 

The Respondent presenteff evidence that there is no electrical equipment exposed either on the outside of the power center 

box, or on the outside of the inner breaker box. In order to 

contact the metal lugs, a person would have to get down on his 

knees, open the outer metal doors, and reach the inner breaker 

box and push his fingers over the top of the insulating barrier. 

The citation was abated by placing a few pieces of insulating 

tape over the top on the insulated backboard so that the lugs 

were no longer exposed to an inadvertent potential contact. 

I credit the testimony presented by Respondent which 

established that it was not reasonably likely that the hazard 

contributed to would result in an injury. The power center box 

sat on the mine floor and was only 3 feet high so that a person 

opening the cabinet door to reset the breakers would most likely 

pull up on the breaker handle and rather than getting down close 

to the floor level to push the handle with the palm of his hand 

in such a manner as to push his fingers over the top of the insulated barrier and contact the uninsulated lugs. Although the 

hazard contributed to was not reasonably likely to result in 

injury, there was a remote possibility that the hazard 

contributed to could result in a serious injury. Since the 

injury could be fatal, the violation was serious. 

Based upon the evidence presented, I find that there was a 

violation of 30 C.F.R. § 75. 512. I further find, based upon 

the particular facts surrounding the violation, that the preponderance of the evidence does not establish a reasonable 

likelihood that the hazard contributed to, would result in an 

injury. Thus the evidence did not establish the third element 

required by the Mathies criteria for an S&S finding. 

1813 
On careful consideration of all of the statutory criteria in 

section llO(i) of the Act, I find a civil penalty of $80 is an 

appropriate civil penalty for this non S&S violation. 

Citation No. 3243304 

Citation No. 3243304 alleges a "significant and substantial" 

violation of the standard at 30 C.F.R. § 75.400 and charges as 

follows: 

Accumulation of combustible material, float 

coal dust was deposited along the rockdusted 

ribs and mine floor, in the last open 

crosscut #16+65 for a distance of 180' feet, 

the area in MMU0060, 2 west was dark gray to 

black. 

The cited safety standard 30 C.F.R. § 75.400 provides as 

follows: 

§ 75.400 Accumulation of combustible materials. 

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. 

Float coal dust is defined in 30 C.F.R. § 75.400-l(b) as 

follows: 

(b) The term 9ifloat coal dust 11 means the 

coal dust consisting of particles of coal 

that can pass a No. 200 sieve. 

Inspector Melvin Shiveley was the Secretary's only witness. 

On Januar~ 15, 1991 when he inspected the secortd West section of 

the Southfield Mine he found that miners were actively mining 

coal the area. They were cutting coal with a continuous 

miner. Inspector Shiveley observed that there was "float coal 

dust 99 laying on the curtain and mine floor for a distance of 

approximately 180 feet outby from the face. It was such a·,fine 

layer of 11 float coal dust" that its depth was not measurable. He 

observed white rock dust under the coal dust. The "float coal 

dustvi was black in color near the face to dark gray further away 

from the face. 

On cross examination, Inspector Shiveley testified he did 

not observe any coal dust in suspension and took no test to 

determine whether the particles of dust could pass through, a No. 

1814 
200 sieve. See 30 C.F.R. § 75.400-1. The inspector agreed that 

you need to stir up coal dust by another explosion to make coal 

dust self explosive. 

On redirect examination, the inspector agreed with his 

counsel that walking or moving equipment in the area where float 

coal dust had settled would have stirred it up and put it in 

suspension. 

The inspector testified that he took air readings and found 

the volume of air was permissible and in compliance with the 

Southfield Mine Ventilation Plan; that methane was not excessive 

and that he found no electric equipment in the area that was not 

in permissible condition. 

Coal is mined at the Southfield Mine in the conventional way 

with a continuous miner and shuttle cars. There is no longwall 

mining. The mining cycle begins with a continuous miner making a 

cut of coal. The coal is then loaded and the continuous miner is 

moved out of the section and a roof bolting machine is moved in. 

The roof bolter installs roof'"bolts for permanent roof support. 

The roof bolter is equipped with a rock dusting machine. After 

bolting the roof, the roof bolter blows rock dust into the air so 

that it will be carried by the mine's ventilation and deposited 

outby the working face on top of any coal uust. This citation 

was abated by having the roof bolting machine rock dust the area. 

Respondent contends it would have done this as part of the normal 

mining cycle had it been allowed to continue. Inspector Shiveley 

visited the adjacent entry that was part of this same mining 

cycle, where the roof bolting machine had just completed its 

work. He found that this entry had been properly rock dusted as 

part of the normal mining cycle. 

Inspector Shiveley acknowledged that it was not practical to 

clean up or scrape up fine float coal dust; that the alternative 

is to app rock dust; and stated nonce that rock dust 

applied, then you no longer consider that can be accumulation" 

because the float coal dust is covered up with an uncombustible 

materia L (Tr" 96 line 8-25, Tr. 97 line 1-2) . 

Inspector Shiveley conceded that the liberation of coal dust 

is a "natural feature" and "an unavoidable consequence of mining. an He acknowledged that it is not possible to mine coal 

without generating coal dust as part of the mining cycle. Coal 

dust is liberated, suspended in the air, carried away as part of 

the ventilation of the section and deposited outby the working 

face during a normal mining cycle. Because the coal dust is 

moist, most of the coal dust falls from the air near the working 

face. Inspector Shiveley conceded that float coal dust is 

combustible only if (1) the float coal dust is in suspension, (2) 

there is an ignition source, and (3) there is an actual ignition 

or an explosion. 

1815 
As pointed out in Respondent's brief, Inspector Shiveley 

testified that the length of time that coal particles had been 

present in the area was irrelevant and that, in his opinion, time 

was not a factor in determining whether there was an accumulation 

under § 75.400. 

Q: So in your opinion, it makes no difference how long 

the accumulation is there; isn't that correct? 

A: Yes. 

Q: Time is not a factor? 

A: No, it isn't. 

Q: Mr. Shiveley, you don't know how long this coal 

dust had been present on top of the rock dust, do 

you? 

A: No, I don't. 

(Tr. 105, line 24-25, Tr. 106 line 1-6). 

Energy Fuels presented the testimony of two witnesses, Jim 

Pushchak and Randy Acre. It also introduced Respondent's Exhibit 

R-2, a diagram that was helpful in describing the mining cycle, 

the cited area and the surrounding entries, returns and 

crosscuts. 

Mr. Pushchak testified substantially as follows: He has 

worked at the Southfield Mine for twelve years and is familiar 

with the mining cycle at the mine. He accompanied Inspector 

Shiveley on this inspection and walked through the area that was 

cited by Inspector Shiveley. Mr. Pushchak explained that the 

dust in the area in the return that was closest to the working 

face was black because that was where most of the coal dust 

tended to settle after being blown away from the face. · The 

continuous mining machines were equipped with water sprays which 

dampened the liberated coal dust. As a result, this dust is 

heavier and is deposited near the working face. As one proceeded 

further away from the face, there was less coal dust on the rock 

dust because most of the coal dust had dropped closer to the 

face. 

Mr. Pushchak described what was occurring in the mining cycle when the citation was written. Using the diagram, Ex. R-2, 

he explained the continuous miner had just finished cutting Cut 

No. 3 in the main entry and had moved to the adjacent left entry 

to begin Cut No. 4. As the continuous miner moved out of Cut No. 

3, the roof bolting machine moved into cut No. 3 to install 

permanent roof support and then apply rock dust. The coal dust 

1816 
which lay on top of the rock dust outby the working face had been 

generated as a result of cut No. 3. The average amount of time 

from the end of the cutting of coal to the application of rock 

dust (with roof bolting having occurred in the interim) is 30 

minutes. Cut No. 3, however, was a longer cut than the average 

cut made on that shift. (Tr. 147 lines 12-16). 

It i9 generally conceded that it would not be possible to 

mine coal without generating float coal dust. Energy Fuel contends it would be hazardous to the health and safety of miners to 

apply rock dust while mining was occurring. This could only be 

done manually by miners standing just outby the working face. 

Float coal dust would be generated by the mining, and some of it 

would be deposited on the miners or it would be inhaled by them. 

Therefore, Energy Fuel contends it is necessary to wait until 

after the mining and the roof bolting have been completed before 

rock dusting. Furthermore, it contends that until the mining is 

actually completed and the coal dust settles, rock dusting would 

not cover all of the coal dust in suspension. 

Randy Acre, the Mine Manager.at the Southfield Mine, testified substantially as follows: He has been in the coal mining 

business for 20 years. He is well acquainted with mining cycle 

at the Southfield Mine. Coal dust is rendered harmless by 

allowing it to settle on top of rock dust, and then applying an 

alternate layer of rock dust on top of the coal dust which renders the coal dust incombustible. 

Mr. Acre testified that the continuous miner in this area 

was equipped with special water sprays that force the wet coal 

dust to settle in the return entries. The continuous miner is 

equipped with a methane detection system that first provides a 

warningv and then automatically shuts down the machine if the 

amount of methane exceeds 2% per cubic metero 

Mro Acre confirmed that the mining cycle in this area 

provided for immediate application of rock dust after the roof 

bolter completes bolting the roof of the cut. 

The regulations assume that coal dust will be liberated as 

part of the mining process p and requires the mine to i

9 clean 

up 1Q and not allow to naccumulateo ou Inspector Shiveley 

fied that time was ovirrelevantu in determining whether an accumulation existed. Based on his observation, he was of the opinion 

that an accumulation existed and that he was justified in issuing 

the citationo 

In Utah Power & Light v. Secretary of Labor, 951 F.2d 292, 

295 (10th Cir. 1991) (n. 11), the Tenth Circuit stated that 75.400 

"prohibits permitting [coal dust] to accumulate; hence it must be 

cleaned up with reasonable promptness, with all convenient 

1817 
speed." (Emphasis added). Thus, the length of time that 

combustible material is present is relevant. 

As Energy Fuels points out in its post-hearing brief, the 

logic of the Tenth Circuit ruling in apparent. If an operator is 

not given a reasonable amount of time to clean up a by-product of 

the mining cycle, then an operator could be cited as soon as any 

coal dust is generated. This, however, is not what has happened 

in this case. The cut in question was longer than the usual cut 

being made on this shift and the mine manager conceded that one 

hour may have elapsed after the roof bolter moved in and began 

bolting the roof and the rock dusting of the cut began. (Tr. 157 

line 20-25, Tr. 158 line 1-2). 

It is undisputed that Federal Coal Mine Inspector Shiveley 

observed a fine layer of combustible coal dust deposited along 

the ribs and mine floor in the last open crosscut for a distance 

of 180 feet. Based upon his observations, Inspector Shiveley was 

of the opinion that the coal dust he observed for a distance of 

180 feet was an impermissible accumulation and cited it as such. 

Based upon Inspector Shivele~'• observation, opinion and testimony, I find that this rather extensive fine layer of coal dust 

was an accumulation in violation of 30 C.F.R. § 75.400. I also 

credit the testimony of Messrs. Pushchak and Randy Acre that 

established there was no reasonable likelihood that the hazard 

contributed to would result in an event that would cause injury. 

Since the preponderance of the evidence did not establish this 

essential factor needed to support an S&S finding, I find that 

the violation was a non S&S 104(a) violation. 

Considering all the statutory criteria in Section llO(i) of 

the Act and the fact that the accumulation consisted of only a 

fine layer of coal dust of rather recent origin, I find a penalty 

of $20 is an appropriate penalty for this 104(a) non S&S 

violation. 

Citation No. 3242437 

Citation No. 3242437 alleges a "significant and substantial" 

violation of the standard at 30 C.F.R. § 75.202(a) and charges as 

follows: 

A loose coal rib measuring about 6' x 10' x 

about one ft. in thickness, with at least a 

four inch space behind it, just inby crosscut 

#24 in the first right entry of the south 

mains (intake haulage) was leaning out in a 

hazardous position. This is the main travelway in and out of the working section. 

The cited safety standard 30 C.F.R. § 75.202(a) provides as 

follows: 

1818 
§ 75.202 Protection from falls of roof, face 

and ribs. 

(a) 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 of the roof, face or 

ribs and coal or rock bursts. 

The primary issues presented are as follows: 

1. Did the Secretary sustain her burden of proving that 

Energy Fuels violated 30 C.F.R. § 75.202(a) as alleged in the 

citation? ' 

2. If there was a violation, was the violation significant 

and substantial? 

3. If there was a violation, what is the appropriate 

penalty? 

Donald Jordan, Federal Mine Inspector, testified that on the 

date of inspection, October 9, 1991, he was conducting a 103(i) 

inspection which is required every five years. [30 u.s.c. 

§ 813(i)J. Inspector Jordan cited Energy Fuels for a violation 

of 30 C.F.R. § 75.202(a) because he observed a rib just inby 

crosscut 24 that "appeared to be a hazard." He stated that the 

rib was "loose." Inspector Jordan looks for loose ribs whenever 

he inspects a mine. 

Inspector Jordan was looking for loose ribs when he entered 

the Southfield Mine on the morning that the citation was written, 

but he did not observe that the rib he cited was "loose" or that 

any was Qi leaning" when he entered the mine, even though he 

traveled past the area that he later cited on his way back from 

the working face. 

Inspector Jordan on his way out of the mine traveled the 

same route he used to travel into the mine. As he traveled out 

through the main travelway of the mine, he observed a rib that 

had a crack on one side that would possibly extend to the point 

that it could hit someone. 11 (Emphasis added}. Inspector Jordan 

had no idea how long the rib was in the condition that was noted 

in his citation. He did not know whether any miner had passed by 

this rib when it was loose, or whether any miner had observed the 

rib and failed to scale it down. The pre-shift report did not 

indicate that this rib had any crack in it. Inspector Jordan 

testified on cross examination that he could not definitely say 

whether the rib would have fallen naturally or whether it would 

have remained indefinitely in the position that it was in when 

the citation was written. However, when asked by his counsel on 

1819 
redirect examination if it is ''likely" the rib would have fallen 

on its own, he replied "Yes ma'am, I think it would have. 11 

Inspector Jordan stated that cracks in ribs are common in 

coal mines and that rib hazards are controlled by scaling--or 

prying--the rib down. Inspector Jordan inspected four to six 

thousand feet of the mine on the day the citation was written and 

did not observe any other cracked or loose ribs. The miners were 

working approximately 1,500 to 2,000 feet away from the cited 

area and Inspector Jordan did not observe any person standing, or 

walking by this rib. Evidence was presented that a person who 

was traveling in the area cited by Inspector Jordan would have 

probably driven by this rib in one or two seconds. 

Gary Carroll, the Safety Supervisor at the Southfield Mine, 

has worked in underground mines since 1974 and worked at the 

Southfield Mine for over 10 years. He testified substantially as 

follows: 

The roof at the Southfield Mine is controlled by permanent 

and supplemental roof support. The ribs at the Southfield Mine 

are controlled by maintaining a permissible width (18 to 20 feet) 

in the entries and by scaling and barring down ribs that are 

loose. 

On the day that the citation was written, Mr. Carroll rode 

into the mine with Inspector Jordan on the mancar tractor, 

driving down the center of the entry, as was normally the case. 

Both he and Inspector Jordan were "looking around" as they went 

into the mine to check for cracks and loose ribs. No cracks or 

loose ribs were noticed as they entered the mine and none were 

noticed during the inspection of the working face. 

When miners enter and leave the mine, they ride either in a 

tractor, or a trailer pulled by the tractor, that has metal 

supports on the sides. On the date of the citation, the miners 

were working approximately 1,500 to 2,000 feet from the cracked 

rib. 

Cracks in ribs are common at the Southfield Mine. However, 

a crack does not mean that a rib is loose. It is not possible to 

tell simply by visual observation whether a rib is loose. The 

Southfield Mine Roof Support Plan requires that loose ribs be 

scaled down. Mr. Carroll routinely scales down ribs whenever he 

observes a loose rib. The hazard of a loose rib is that a person 

standing close to the rib could be injured if the rib fell 

naturally. 

Mr. Carroll did not observe any crack in the rib as he 

entered the mine. Like Inspector Jordan, he observed the crack 

in the rib when he was leaving the mine. The crack was on one 

side of the rib only, Mr. Carroll did not observe that the rib 

1820 
was leaning precariously. Mr. Carroll testified that the crack 

was no more than four feet in height. He stated the entire coal 

seam at this point in the mine has a maximum height of 5 to 5 1/2 

feet. 

Mr. Carroll had difficulty prying loose the cracked portion 

of the rib. It took three separate attempts to pry the piece of 

coal away from the rib. On a scale of one to ten, with ten being 

the most difficult rib to pry down, this rib was "between a six 

and a seven" in difficulty. To Mr. Carroll, this meant that it 

was "difficult to pry down." Mr. Carroll testified that the rib 

was approximately four feet in height, six feet across at the 

bottom and two feet across at the top after it was pried down. 

After it was forcibly pried down, most of the coal fell within 

two to three feet of the rib. 

Mr. Carroll testified that this crack in the rib posed no 

hazard to any miner. The crack was approximately one-half mile 

from the working face. It had been several years since there had 

been any work in this area. In the twelve years that Mr. Carroll 

had been at the mine, he has'·had to walk by this area only once. 

On every other occasion, he drove or rode in a tractor by this 

portion of the main travelway and would pass by the area within a 

second or so. Energy Fuels has never had a rib fall in the travelway that caused any injury in the twelve years that the mine 

has been in existence. 

Respondent contends the Secretary failed to prove that 

Energy Fuels had violated 30 C.F.R. § 75.202{a} because she 

produced no evidence to show that Energy Fuels was not supporting 

or otherwise controlling the ribs to protect persons from hazards 

related to rib falls. The undisputed testimony was that Energy 

Fuels regularly inspects for loose ribs and when they are 

noticed, bars them down. 

The standard states that ribs shall be supported or controlled to protect people from hazards. Even though Inspector 

Jordan viewed almost 5,ooo feet of entryway during this inspection, he saw only one place where there was even a crack in a 

riba Inspector Jordan did not obse~ve this rib which he said was 

Qnobviously leaning" when he passed by it on his way into the 

mine" Respondent contends that the only conclusion that can be 

drawn is that the rib cracked after Inspector Jordan and Mr" 

Carroll drove by it on their way into the mine. The Secretary 

presented no evidence that the condition was known to Energy 

Fuels and that Energy Fuels failed to take steps to control it. 

I find that the evidence fails to establish that Energy Fuels was 

negligent. 

With respect to the special significant and substantial 

finding, the evidence fails to establish that, if the rib in 

question were to fall, a chain of events would occur that would 
be reasonably likely to result in injury. Exposure to the hazard 

of a falling rib would occur only when a miner is very close to 

or in the immediate area of the falling rib. 

Furthermore, it took a considerable effort to pry down this 

rib and the testimony of Inspector Jordan regarding this rib 

posing a hazard was only that when it fell, it "might possibly 

extend to the point where it could hit someone." It appears from 

the evidence that such a possibility was remote. 

The evidence failed to establish a reasonable likelihood 

that the hazard contributed to would result in injury. 

Based upon the evidence presented, I find that there was a 

104{a) non S&S violation of 30 C.F.R. § 75.202{a). However, 

based upon the particular facts surrounding that violation, I 

find that the preponderance of the evidence does not establish a 

reasonable likelihood that the hazard contributed to, would 

result in an injury. 

On careful consideratiori of all of the statutory criteria in 

Section llO(i) of the Act, including the operators lack of negligence, I assess a civil penalty of $20 for this non S&S 

violation. 

ORDER 

Based upon the above finding of fact and conclusions of lawf 

IT IS ORDERED that 

1. Citation No. 3242478 is VACATED. 

2. Citation Nos. 3243302, 3243303, 3243304 and 3242436 ARE 

NODIFIED to delete the significant and substantial finding and, 

as modified, ARE AFFIRMED. 

3. Respondent Energy Fuels Coal Incorporated shall PAY to 

the Secretary of Labor a penalty in the sum of $220 within 30 

days of the date of this decisiono 

Aug t F. Cetti 

Administrative Law Judge 

1822 
Distribution: 

Margaret A. Miller, Esq., Office of the Solicitor, U.S. 

Department of Labor, 1585 Federal Office Building, 1961 Stout 

Street, Denver, co 80294 (Certified Mail} 

Phillip D.' Barber, Esq., WELBORN, DUFFORD, BROWN & TOOLEY, P.C., 

1700 Broadway, Suite 1700, Denver, co 80290-1701 

(Certified Mail} 

sh 

1823 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PEABODY COAL COMPANY 1 

Respondent 

NOV 9 1992 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 91-1013 

A. C. No. 15-02709-03766 

Camp No. 1 Mine 

Appearances: W. F. Taylor, Esq., U.S. Department of Labor, 

Office of the Solicitor, Nashville, Tennessee, 

for Petitioner; 

David R. Joest, Esq., Peabody Coal Company, 

Henderson, Kentucky, for Respondent. 

Before: Judge Weisberger 

This case is before me upon a petition for assessment of 

civil penalty under Section 105(d) of the Federal Mine Safety and 

Health Act of 1977 (the Act). Pursuant to notice, the case was 

scheduled for hearing on September 2 1 1992. On that date, prior 

~o going on the record, counsel indicated that they had just 

settled this matter. On October 9u 1992, Petitioner filed a 

motion to approve a settlement agreement and to dismiss this 

case. Respondent has agreed to pay the proposed penalty of 

$1u700 in full. I have considered the representations and 

documentation submitted in this case, and I conclude that the 

proffered settlement is appropriate under the criteria set forth 

in Section 110(i) of the Act. 

'\WHEREFORE, the motion for approval of settlement is GRANTED, 

and is ORDERED that Respondent pay a enalty of $1,700 within 

30 days of this order" 

Avram Wei beb----

Administrative Law Judge 

1824 
Distribution: 

w. F. Taylor, Esq., Office of the Solicitor, U.S. Department of 

Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 37215 

{Certified Mail) 

David R. Joest, Esq., Midwest Division Counsel, Peabody·Coal 

Company, 1951 Barrett Court, P.O. Box 1990, Henderson, KY 42420-

1990 (Certified Mail) 

nb 

1825 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Vo 

PAUL SHIREL, employed by 

PYRO MINING COMPANY, 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

DONALD D. GUESS, employed 

PYRO MINING COMPANY, 

Respondent 

: CIVIL PENALTY PROCEEDING . . 

: Docket No. KENT 92-73 

: A.C. No. 15-13881-03792-A 

0 

. 

0 

. 

. . Pyro No. 9 Slope 

William Station 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 91-1340 

A.C. No. 15-13881-03781-A 

Pyro No. 9 Slope 

William Station 

DECISION 

Appearances: Stephen .D. Turow, Esquire, Office of 

the Solicitorp U.So Department of Laboru 

Arlingtonu Virginiav for Petitioner; 

Before: 

Flem Gordon, Esquire, Madisonvillep Kentuckyv 

for Respondents 

Judge Melick 

A bench decision was issued in the captioned cases at 

hearings on October B. 1992, granting the Respondents 0 Motions 

for Summary Decision. That decisionv with only non-substantive 

changesv is as follows: 

I will, as I said before, grant the Motions 

for summary Decision as to both cases and dismiss 

both civil penalty proceedings, Docket Nos. 

KENT 92-73 and KENT 91-1340. These cases are before 

me upon the petitions for civil penalty which were 

filed by the Secretary of Labor against Paul Shirel 

and Donald Guess under Section llO(c) of the Federal 

Mine Safety and Health Act of 1977, [30 u.s.c. 

Section 801, et seg., the "Act"] charging Shirel and 

1826 
Guess as agents of a corporate mine operator, namely 

Pyre Mining Company, with knowingly authorizing, 

ordering or carrying out violations by the named 

corporate mine operator. 

Section llO(c) of the Act provides, in part, that 

whenever a corporate mine operator violates a mandatory 

health or safety standard any director, officer or 

agent of such a corporation who knowingly authorized, 

ordered or carried out such violation shall be subject 

to the same civil penalties, fines and imprisonment 

that may be imposed upon a person under subsections (a) 

and (b). 

Under Commission Rule 64(b), motions for summary 

decision shall be granted only if the entire record, 

including the pleadings, depositions and affidavits, 

show that there is no genuine issue as to any material 

facts and that the moving party is entitled to summary 

decision as a matter of law. 

As I have already stated, while the instant 

motions were filed untimely under Commission 

Rule 64(a), it makes little sense to proceed 

further on the merits when the motions would be 

dispositive of the cases. On September 23rd of 

this year, Respondents filed Motions for Summary 

Decision in each of these cases, asserting that, 

on the dates of the alleged violations, Pyre Mining 

Company was not in fact a corporate entity, but was 

a partnership, and that an essential ingredient of 

the charges could not therefore be sustained. In 

these proceedingsu it is indeed undisputed that, on 

the dates of the violations at issue, Pyre Mining 

Company was a partnership recognized under the laws 

Illinois and Kentucky and was not a corporation 

under any jurisdiction. It is also undisputed that 

Pyre Mining Company was the legally designated operator 

of the Noo 9 Slopev William Station Mine at relevant 

timeso 

The Secretary alleges in her petitions in these 

cases that Shirel and Guess were employees of Pyre 

Mining Companyf and as such were acting as agents of 

Pyro Mining Company as a corporate operator. Since 

it is indeed now undisputed that Pyro was not then a 

corporate operator and was not a corporation, but 

rather was a partnership, the allegations in these 

petitions cannot be sustained and the petitions must 

accordingly be dismissed. 

1827 
I express no opinion here, and have no 

information, as to whether either or both of the 

Respondents could be charged under Section llO(c) 

as agents of one or both of the corporations making 

up the partnership Pyro Mining Company, for they in 

fact were not charged in these cases as agents of 

those corporations and there is no allegation that 

these corporations were in fact the operators of 

the Pyre No. 9, William Station Mine. 

I should add that in reaching this decision, 

I have not disregarded the Secretary's argument 

that Pyro as a partnership was more closely akin 

to a traditional corporation than a true partnership, 

and that Congress intended that partnerships like 

Pyro should be considered to be corporate operators 

for purposes of Section llO(c) of the Act. However, 

I cannot make a finding contrary to the clear and 

unambiguous language of Section llO(c), and the 

language is indeed clear and unambiguous, that only 

agents of corporations and corporate operators are 

chargeable under Section llO(c). 

The Secretary, in essence, would have me amend 

Section llO(c) to hold liable agents not only of 

corporate operators but also agents of partnerships 

composed of two corporations. An administrative law 

judge is certainly not in a position to make such an 

amendment and I am certainly bound by the plain, clear 

and unambiguous language of the statute. 

I might add that the Secretary's arguments do 

tend to point out that Congress may wish to revisit 

the language of Section llO(c) in light of this 

particular case andu indeedu in light of the Richardson 

case and other decisions which suggest that agents of 

large operators other than corporate operators should 

be included within the scope of Section llO(c). 

For the above reasonsv howeverv I am granting the 

Motions for Summary Decision. These proceedings are 

concludedo Thank youo 

1828 
ORDER 

The captioned civil penalty proceedings re hereby 

DISMISSED. 

aw Judge 

Distribution: 

Steve Turow, Esq., Office of the icitor, U.S. Department of 

Labor, 4015 Wilson Boulevard, Suiee 400, Arlington, VA 22203 

(Certified Mail) 

Flem Gordon, Esq., Gordon and Gordon, P.O. Box 1305, 

Madisonville, KY 42413-1305 (Certified Mail) 

/lh 

1829 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, .. . CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner, 

v. 

WELL TECH INCORPORATED, 

Respondent. 

Docket No. VA 92-54 

A.C. No. 44-01520-03501 JIC 

Virginia Pocahontas #3 

DECISION 

Appearances: Javier I. Romanach, Esq., Arlington, 

VA, for Petitioner; 

Before: 

Georgl R. Carlton, Jr., Esq., 

Dallas, Tx, for Respondent. 

Judge Fauver 

The Secretary seeks civil penalties for three alleged 

violations of safety standards under the Federal Mine Safety and 

Act of 1977g 30 u.s.c. § 801 et seg. 

Having considered the hearing evidence and the record as a 

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

and reliable evidence establishes the following Findings of Fact 

and further findings in the Discussion below~ 

FINDINGS OF FACT 

1. On August 1v 1991, Federal Mine Inspector Leslie Slowey 

inspected gas well site #267 of Island Creek Coal Companyes 

Virginia Pocahontas #3 underground coal mine. He inspected the 

Cooper Drill rig operated by Well Tech Incorporated. Well Tech 

Incorporated1 an independent contractor 1 had a contract with the 

mine operator on a call-up basis to service wells used to extract 

methane from the mine. This process involved withdrawing suction 

rods, lifting the pump out of the well and servicing or repairing 

the pump to correct the basis for the call-up by the operator. 

Well Tech 1 s services were essential to the mine 1 s system of 

removing methane from the mine. Methane removal was essential to 

the extraction of coal. 

1830 
2. Inspector Slowey inspected the drill rig for safety and 

cited three violations. First, he found that the fan inlets and 

drive belts for the motor of the drill rig were not properly 

guarded to keep a person from coming in contact with exposed moving 

~arts, in violation of 30 C.F.R. § 77.400(a}, for which he issued 

Citation No. 3778953. He determined that this violation was 

"significant and substantial." 

Second, he found that the drive shaft coupling was not guarded 

to prevent a person from coming in contact with moving machinery 

parts, in violation of 30 C.F.R. § 77.400(a), for which he issued 

Citation No. 3778954. He determined this violation was 

"significant and substantial." 

Third, he found that the Cooper Drill rig did not have an 

operable back-up alarm, in violation of 30 C.F.R. § 77.410, for 

which he issued Citation No. 3778955. He determined this violation 

was "significant and substantial." 

DISCUSSION Wl:TR.FURTHER FINDINGS 

A threshold issue is whether Respondent is an "operator" 

within the meaning of the Act. Section 3(d) of the Act provides 

that: 

11 operator" means any owner, lessee, or other 

person who operates, controls, or supervises, 

a coal or other mine or any independent 

contractor performing services or construction 

at such mine. 

Section 3(d) was added by the 1977 Amendments to the Mine Act 

t.o expand the definition of ~~operatorvw to include 81 any independent 

contractor performing services or constructionn at a mine. In Otis 

Elevator Company Vo Secretary of Labor and FMsHRCp 921 F.2d 1285 

(D.C. Cir. 1990) 9 the Court held that in§ 3(d) the "phrase '\any 

independent contractor performing services •.. at [a] mine• means 

just that" and that the Court "need not confront ... whether there 

is any point at which an independent contractorws contact with a 

mine is so infrequent 9 or de minimis, that it would be difficult to 

conclude that services were being performed since [Otis] conceded 

that it was performing limited but necessary services at the mine" 

(921 F.2d at 1290 n. 3, emphasis added). Otis had a contract to 

service the shaft elevators at the mine. 

In Lang Brothers, Inc., 14 FMSHRC 413 (1991), Lang Brothers 

had an annual contract to clean and plug gas well sites for 

Consolidation Coal Company, "to ensure that natural gas does not 

seep through the well into a mining area and create a safety 

hazard." 14 FMSHRC at 414. In holding that Lang Brothers was an 

"operator," the Commission stated: 

1831 
Lang's work at the well sites ••• was integrally related 

to Consol's extraction of Coal. Cf. Carolina Starlite, 

734 F.2d at 1551. The sole purpose of Lang's cleaning 

and plugging contract with Consol was to facilitate 

Consol's extraction of underground coal. 14 FMSHRC at 

418. 

The Commission did not adopt the restrictive interpretation of Old 

Dominion Power Company v. Secretary of Labor and FMSHRC, 772 F.2d 

92(4th Cir. 1985) (implying that an independent contractor must 

have a "continuing presence at the mine" to be held to be an 

"operator" under the Act). Rather, it held that the de minimis 

standard may be measured by the significance of the contractor's 

presence at the mine as well as the duration or frequency of its 

presence. The Commission noted that even though Lang 1 s actual 

presence at the mine to clean and plug wells was for a short 

period, its activity was an integral part of Consol's extraction 

process. 

In Bulk Transportation Services, Inc., 13 FMSHRC 1354 (1991), 

the contractor had a contract with a coal mine operator to 

transport coal from the mine to a generating station 40 miles away. 

The Commission noted that Bulk had a substantial presence at the 

mine -- "[T)here is a constant ·flow of truck drivers in and out ..• 

four to five days a week" 13 FMSHRC at 1359 -- but it focused on 

the significance of Bulk's activities to the extraction process in 

determining that Bulk was an operator subject to the Mine Act. 

"Given the undisputed fact that Bulk was Beth Energy's exclusive 

coal hauler between Mine No. 33 and the generating station, and 

given the quantities of coal hauled by Bulk, we agree with the 

judge that Bulk's services in hauling coal were essential and 

closely related to the extraction process." 13 FMSHRC at 1359. 

Similarly this casev Well Tech 1 s work on gas well pumps 

used to remove methane from Island Creek 1 s mine was essential to 

the extraction of coal. As Inspector Slowey testified, "This 

minews ventilation plan requires that the methane be taken out of 

the mine by vertical drilling. In order to keep the mine going 

they have to reduce the methane down to a certain percent or the 

miner will not operate down there. 91 Tr. 42. 

Well Tech performed such work at the Virginia Pocanhontas #3 

Mine for 578 hours in 1991 1 the year of the citations. This is 

substantially more time than Otis mechanics spent at the mine in 

Otis Elevator Co .• supra. There the Court stated that it need not 

address "whether there is any point at 'which an independent 

contractor's contact with a mine is so infrequent or de minimis, 

that it would be difficult to conclude that services were being 

performed 111 since Otis was "performing limited but necessary 

services" at the mine. 921 F.2d at 1290 n.3. Well Tech was 

similarly performing "limited but necessary services" at Virginia 

Pocahontas #3 mine, and was therefore an "operator" within the 

1832 
meaning of the Act. 1 

In considering the evidence as to the three citations, I find 

that the inspector's testimony was reasonable and persuasive. 

Respondent did not present any evidence in rebuttal of his 

testimony as to the facts concerning the alleged violations. 

Citation No. 3778953 

Inspector Slowey cited a violation of 30 C.F.R. § 77.400(a), 

alleging that the fan inlets and drive belts for the motor of the 

Cooper Drill rig were not guarded properly to prevent a person from 

coming in contact with these moving machinery parts. 

section 77.400(a) states, among other things, that "fan 

inlets; and similar exposed moving machine parts which may be 

contacted by persons, and which may cause injury to persons shall 

be guarded." 

The Commission has helg that this standard "imports the 

concepts of reasonable contact stemming from inadvertent stumbling 

or falling, momentary inattention, or ordinary human carelessness." 

Thompson Brothers Coal Company, Inc., 6 FMSHRC 2094, 2096 (1984). 

Although the fan inlets were toward the front of the cab, 

opposite the end where the employees usually worked, the inspector 

testified that there was still a hazard because the employees might 

come in contact with the moving parts during maintenance or repair 

work. Tr. 15. 

The Commission has held that a violation may be classified as 

91 significant and substantial" if there is a reasonable likelihood 

that the hazard contributed to will result in an injury of a 

reasonably serious nature. Texasgulf, 10 FMSHRC 498 0 500 (1988)0 

Considering that t.he machinery guard standard is intended to 

protect employees from coming in contact with moving machinery 

parts because of "inadvertent stumbling or falling, momentary 

inattention, or ordinary human carelessness" (see Thompson Brothers 

The Secretary of Labor enforces both the Mine Act and the 

Occupational Safety and Health Act of 1970, 29 u.s.c. § 651 et 

~, and has reasonable discretion in determining which of her two 

enforcement agencies 0 OSHA or MSHA, should exercise jurisdiction 

over a given facility or activity. The Secretary is entitled to 

deference in exercising such discretion. See, ~, Brock v. 

Cathedral Bluff Shale Oil co., 796 F.2d 533, 537 (D.c. Cir. 1986); 

and Donovan v. Carolina starlite Co., 734 F.2d 1547 1522 & n.9 

(D.C. Cir 1984). See also Southern Railway Company v. Occupational 

Health Review Commission, 539 F.2d 335 (1976). I find that the 

Secretary's exercise of discretion to assert Mine Act jurisdiction 

over Well Tech's operations is reasonable and enforceable. 

1833 
Coal Company, above), I find that the evidence sustains the 

inspector's finding that the violation presented a reasonable 

likelihood of resulting in substantial injury. It is not required 

that the Secretary prove that injury was more probable than not, 

but only that there was a "reasonable likelihood" of injury. In 

practical terms, this requires only a sustantial possibility of 

injury. See, e.g., judges' decisions in Mountain Coal Co., 14 

FMSHRC 1572, 1582-1583 (1992), and Consolidation Coal co., 

14 FMSHRC 748-752 (1991). 

citation No. 3778954 

Inspector Slowey cited a violation of 30 C.F.R. § 77.400 

(a) because the drive shaft coupling for the motor to the rig was 

unguarded. 

He testified that there was a reasonable likelihood that 'an 

employee would come in contact with pinch points of the drive shaft 

and lose a hand or an arm. Tr. 17. 

I find that the evidence sustains 

inspector's finding that the violation 

substantial." 

citation No. 3778955 

this charge and 

was "significant 

the 

and 

Inspector Slowey cited a violation of 30 C.F.R. § 77.410(a) (1) 

because the drill rig did not have an operable back-up alarm. The 

standard prc.;;.rides that mobile equipment including trucks (except 

pickup trucks with an unobstructed rear view) "shall be equipped 

with a warning device that gives an audible alarm when the 

equipment is put in reverse." 

Inspector Slowey testified that the Cooper Drill rig is in 

effect a truck mounted derricko Tr. 29. The drill rig was 

stationary at the time he was there, and he asked the drill rig 

operator to put the drill rig in reverse to check the back up horn. 

He observed that the rig did not have a back up horn. Tr. 32,42. 

I find that the evidence sustains 

inspector 1 s finding that the violation 

substantial. 00 

this charge and 

was "significant 

the 

and 

Considering the criteria for assessing civil penalties under 

§ 110 ( i) of the Act, I find that the following penal ties are 

appropriate for the violations found herein: 

Citation 

No. 3778953 

No. 3778954 

No. 3778955 

1834 

Civil Penalty 

$39 

$39 

$39 
CONCLUSIONS OF LAW 

1. The judge has jurisdiction in this proceeding. 

2. Respondent was an "operator" of the subject mine within 

the meaning of the Act. 

3. Respondent violated the safety standards as cited in 

Citation Nos. 3778953, 3778954, and 3778955. 

ORDER 

WHEREFORE IT IS ORDERED that: 

1. Citation Nos. 3778953, 3778954, and 3778955 are AFFIRMED. 

2. Respondent shall pay the above civil penalties of $117 

within 30 days of the date of this Decision. 

~~- Administrative Law Judge 

Distribution: 

Javier I. Romanach, Esq., Office of the Solicitor, U.S. Department 

of Laboru 4015 Wilson Boulevard, Room 516, Arlington, Virginia 

22203 (Certified Mail) 

George Ro Carltonv Jrou Esqou Godwin Carlton & Maxwell, P.C., 3300 

NCNB Plaza, 901 Main Street, Dallas, Texas 75202-3714 (Certified 

Mail) 

/fcca 

1835 
~EDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

:\ 

SECRETARY OF LABOR,. CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Vo 

PEABODY COAL COMPANY, 

Respondent 

Docket No. KENT 92-42 

A.C. No. 15-08357-03687 

Docket No. KENT 92-56 

A.C. No. 15-14074-03597 

Docket No. KENT 92-65 

A.C. No. 15-14074-03598 

Martwick UG Mine 

DECISION 

Appearances: William F. Taylor, Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, Tennessee, for 

the Petitioner; 

Before: 

David R. Joest, Esq., Peabody Coal Company, 

Henderson, Kentucky, for the Respondent. 

Judge Barbour: 

STATEMENT OF THE CASE 

These civil penalty cases were initiated by the Secretary of 

Labor (au Secretary11 ) against Peabody Coal Company ("Peabody") 

pursuant to Sections 105 and 110 of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 815 and§ 820. In Docket No. 

KENT 92-42 the Secretary charges Peabody with two violations of 

mandatory safety standards for underground coal mines found at 

Part 75v Volume 30 of the Code of Federal Regulations. In Docket 

No. KENT 92-56 the Secretary charges Peabody with one such 

violation. In Docket No. KENT 92-65 the Secretary charges 

Peabody with two Part 75 violations and with one violation of the 

mandatory notification and reporting standards found at Part 50, 

Volume 30 of the Code of Federal Regulations. 

The violations in Docket No. KENT 92-42 are alleged to have 

occurred at Peabody's Camp No. 11 Mine. The other violations are 

alleged to have occurred at Peabody's Martwick Mine. Peabody 

timely answered the Secretary's penalty proposals and the cases 

were consolidated for hearing. At the hearing the parties 

presented their positions through the testimony of witnesses and 

through documentary evidence. Following the trial both counsels 

submitted helpful briefs, which I have fully considered in 

reaching this decision. 

1836 
SETTLEMENT AGREEMENTS 

DOCKET NO. KENT 92-42 

The parties agreed to settle one of the violations at issue 

in Docket No. KENT 92-42. Citation No. 3548678 was issued 

pursuant to Section 104(a) of the Act, 30 U.S. c. § 814(a), and 

alleges a violation of 30 C.F.R. § 75.316, a mandatory safety 

standard requiring an operator to adopt and comply with a 

ventilation system and methane and dust control plan approved by 

the Secretary. The citation states that Peabody was not 

complying with its approved plan in that curtains controlling 

ventilation were not installed and maintained in a reasonably 

airtight condition. The parties agreed the evidence would show 

that the curtains were properly installed. They also agreed, 

however, that the inspector was right in finding the curtains 

were not properly maintained following installation. The parties 

further agreed that the violation was not a significant and 

substantial contribution to a mine safety hazard (a "S&S" 

violation), that an injury was unlikely to occur as a result of 

the violation and that Peabod.y~xhibited moderate negligence in 

regard to the violation. A $20 civil penalty was proposed for 

the violation, which the parties stated would be appropriate. 

DOCKET NO KENT 92-56 

The parties agreed to settle the sole violation at issue in 

Docket No. KENT 92-56. Section 104(a) Citation No. 3551054 

alleges a violation of 30 C.F.R. § 75.507, a mandatory safety 

standard requiring, except where permissible power connection 

units are used, that all power connection points outby the last 

open crosscut be located in intake air. The citation states that 

a battery charging station containing four energized chargers was 

located in return airf five crosscuts outby the face. Given the 

fact that Peabody 1 s evidence would show that it had built a 

tent-like structure around the charging station to separate the 

station for return a / the parties agreed that an injury was 

unlikely to occur as a result of the violation and that the 

violation was non-S&S. They further agreed that at the time the 

violation was citedu Peabody was in the process of changing the 

ventilation routing in the vicinity of the violation and that the 

violation was due to Peabody's moderate negligence. They also 

agreed that a civil penalty of $227 would be appropriate. 

DOCKET NOo KENT 92-65 

The parties agreed to settle two of the three violations 

alleged in Docket No. KENT 92-65. Section 104(a) Citation No. 

3416929 alleges a violation of 30 C.F.R. § 75.1710-1, a mandatory 

safety standard requiring installation and use of canopies and 

cabs on all self-propelled electric face equipment. The citation 

states that the inspector observed a roof bolting machine 

1837 
operator who was tramming a roof bolting machine but who was not 

under a canopy. The parties agreed that the violation was due to 

the operator's negligence. However, because the roof bolting 

machine operator was tramming the machine under fully supported 

roof which showed no signs of fault, they believed there was but 

a remote possibility of an accident. Therefore, they agreed that 

the violation was non-S&S. The parties also agreed that a civil 

penalty of $192 would be appropriate. 

Section 104(a) Citation No. 3548448 alleges a violation of 

30 C.F.R. § 75.1107-16(b), a mandatory safety standard pertaining 

to the proper testing and maintenance of fire suppression 

devices. The citation states that the fire suppression system on 

a scoop was inoperative because of a torn hose. The parties 

agreed that the violation was the result of the operator's 

negligence but that it was non-S&S. They asserted that in the 

event of a fire an alternative fire suppression hose attached to 

the scoop could easily have been detached and used as fire 

fighting equipment. The parties further agreed that a civil 

penalty of $126 would be app~9priate. 

SETTLEMENT APPROVAL 

In light of the facts as stated by the parties, as well as 

the other relevant statutory penalty criteria set forth in the 

parties joint motions to approve the settlements, I conciuae the 

proposed settlements are in the public interest and should be 

approved. I will incorporate the terms of the settlements into 

my ORDER at the end of this Decision. 

CONTESTED VIOLATIONS 

There remained for trial one alleged violation in Docket No. 

KENT 92-42 and one alleged violation in KENT 92-65. 

Mine Act 

!Section 

Section 104(a) 

KENT 92-42 

Citation No. 

3551088 

Date 

07/18/91 

STIPULATIONS 

30 C.F.R. 

§ 75.202 

Prior to the hearing the parties submitted for inclusion in 

record the following stipulations: 

1. The Mine Safety and Health Review Commission 

and its administrative law judges have 

jurisdiction to entertain the instant case 

and to enter a decision in the same. 

1838 
2. Peabody Coal Company and its Camp No. 11 Mine 

are subject to the Federal Mine Safety and 

Health Act of 1977. 

3. The controlling entity, Peabody Coal Company, 

produced eighty four million six hundred 

eighty nine thousand nine hundred and two 

(84,689,902} tons of coal during the calendar 

year 1991. 

4. Camp No. 11 Mine of Peabody Coal Company 

produced fifty thousand seven hundred and 

thirty nine (50,739) tons of coal. 

5. The violation history for the subject mine is 

15 assessed violations during the course of 

96 inspection days. 

Parties' Joint Stipulation of Fact 1-2. 

DISCUSSION 

The citation at issue arose out of an inspection of the 

No. 2 Unit at Peabody's Camp No. 11 Mine by personnel of the Mine 

Safety and Health Administration ("MSHA"}. The unit, which had 

only recently turned off of the main entry, was being mined with 

a continuous mining machine. MSHA Inspector Harold Gamlin, who 

had begun a regular quarterly inspection of the mine in early 

July 1991, became concerned about the condition of the roof on 

the unit. Gamlin's concern lead him to consult with MSHA roof 

control specialist Larry Cunningham, among others. Cunningham 

was sent to the mine with Gamlin and others and issued the 

subject Section 104(a) citation alleging that Peabody violated 

30 CoF.R. § 75.202 by failing to control the roof to protect 

persons from hazards relating to falls of the roof . 1 

Subsequently, the Secretary proposed a civil penalty of $174 for 

the violation. Peabody answered that the violation as charged 

had not in fact occurred. 

The citation states~ 

The operator has failed to control the roof 

to protect persons from the hazards related 

1

30 C.F.R. § 75.202 states: 

(a) 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 of the roof, face or ribs and coal or rock burst. 

(b) No person shall work or travel under unsupported roof unless in 

accordance with this subpart. 

1839 
G. Exh. 5. 

to falls of the roof. This mine has had 11 

roof falls since May 6, 1991. The falls are 

centrally located on the mine map and are in 

a valley which is posing poor roof conditions 

The operator is trying different steps to 

control the roof such as decreasing the width 

of the entries on No. 2 unit from 20 1 to 18' 

and decreasing the wide opening to 24 1 and 

not 28 1 [,] five roof bolts are being 

installed in a row instead of four. Time is 

allowed for abatement to further evaluate 

these steps taken by the operator. 

In addition to alleging a violation of Section 75.202 

Cunningham also found that the violation was S&S, that injuries 

resulting in lost workdays and restricted duty were reasonably 

likely to occur and that the violation was due to Peabody's 

moderate negligence. The sol.e. issue at trial was whether the 

violation occurred. 

THE SECRETARY'S WITNESSES 

MSHA Inspector Gamlin testified that he began a regular 

quarterly inspection of the mine on July 3, 1991. On that date 

the mine had one operating unit developing the main entry and 

work was beginning on starting a second unit, the No. 2 Unit. 

This unit was turning off the main entry. 

Inspector Gamlin stated that prior to inspecting the mine he 

examined MSHA records pertaining thereto and noticed reports of 

roof falls the main entry. He described the roof in the main 

entry as looking "very fragile" on the first day of his 

inspection. Tr. 78. He further stated that when he inspected the 

No. 2 Unitr the roof there also looked 11 very fragile.n Tr. 78. 

Gamlin stated that on July 17 9 1992, during an inspection of 

the No. 2 Unit, he found that some of the entries on the unit 

exceeded the 20 feet width allowed under the roof control plan? 

and he issued a citation for a violation of Section 75.220, the 

mandatory safety standard requiring mine operators to adopt and 

follow a roof control plan approved by the Secretary. Tr. 79-80 2 

2The citation states: 

The roof control plan was not being followed in the No. 2 Unit •.• The 

South East Nos. 4 and 6, No. 2 Unit was driven in excess of 21 feet appro:;:imately 

70 feet outby the working face inby the second open crosscut. The roof control 

plan states the entries shall be driven 20 feet in width. A roof fall had 

occurred in No. 7 entry at engineer spad 1 + 40 third open crosscut outby working 

(continued .•• ) 

1840 
Gamlin testified that his concern about the roof conditions 

led him to speak about controlling the roof with mine officials, 

including Douglas Rowlans, the mine superintendent, and Paul 

Sparks, the mine safety manager. Gamlin believed better control 

could be obtained by using 4-foot, fully-grouted roof bolts, 

rather than the 6-foot, point anchor bolts then in use. 

According to Gamlin, Rowlans explained that his supervisors would 

not allow him to use fully-grouted roof bolts. Tr. 81-82 3 

Gamlin further testified that on July 17 he called William 

Dupree, an MSHA supervisor and roof control specialist, and they 

discussed the roof conditions that Gamlin had observed. Tr. 85. 

The conversation lead to a subsequent mine visit by Gamrin, 

Cunningham and Dupree. At the mine, Gamlin spoke with Rowlans 

and Sparks, as well as with David Fuson, a mine foreman, and told 

them that because of his concern about the roof he had felt the 

need to ask the MSHA roof control specialists to assist him. 

Tr. 90-91. 

The MSHA personnel then went underground, accompanied by 

Peabody representatives. During tbeir time underground ,~-Gamlin, 

who was observing the pattern of the roof bolts, measured two 

places on the unit where roof bolts were spaced 10 feet apart 

rather than five feet as required by the roof control plan. 

Gamlin therefore cited Peabody for another violation of 

Section 75.220. 4 

Gamlin testified that on July 18, he did not observe any 

practices over and above those required by the roof control plan 

that were being used by Peabody to try to better control the roof 

(Tr. 92) and that he, Cunningham and Dupree discussed with 

Rowlan, Sparks and Fuson, the additional steps that the MSHA 

personnel believed Peabody should be implementing. These steps 

2 ( ••• continued) 

face. 

G. Exh. 3. 

3

Sparks, testified the decision to forego the use of the fully-grouted bolts 

was made by one of Rowlan's bosses who believed the 6-foot, point anchor bolts 

were the best bolts on the market and who wanted to continue them in use. 

Tr. 214-216. 

4

The citation states: 

The roof control plan was not being followed on the No. 2 Unit • . • in that a 

pin in the crosscut between entry No. 4 and 5 when measured was 10 feet apart and 

one pin in the last open crosscut of No. 4 entry when measured was 10 feet apart. 

G. Exh. 4 

1841 
included the need to narrow the width of the entries to 18 feet, 

to add additional roof bolts to the bolting pattern, and the ' 

possible use of truss roof bolts in some instances. 

Tro 91-92, 95-96, 100-101. (As Gamlin recalled, the Peabody 

personnel agreed to narrow the entries. Gamlin could not recall 

whether there was any agreement about roof bolt spacing. 

Tr. 107.) Gamlin believed that all of these things should have 

been done by Peabody before July 18 -- indeed, in his opinion 

they should have been done when the No. 2 Unit was first 

turned -- because Peabody knew that it had encountered adverse 

roof conditions prior to starting the No. 2 Unit and that 

procedures required by the roof control plan were ineffective in 

controlling these conditions. Tr. 120. 

Cunningham, a MSHA roof control specialist, stated that 

Gamlin had called him on Friday, July 12 and said that he needed 

Cunningham's assistance with roof control problems at the mine . . On the following Monday, July 15, Cunningham discussed Gamlin's 

request with his supervisor, Dupree, and told Gamlin that he and 

Dupree would come to the min~.later in the week. On July 18, 

Cunningham and Dupree met Gamlin at the mine. Cunningham stated 

the MSHA personnel went underground and formed an inspection 

party with the Peabody representatives, including among others, 

Rowlans, Sparks and Larry Stanley, a Peabody foreman. 

Cunningham described the conditions that he found on the 

unit. Cunningham stated that he noticed an area where a roof 

fall had occurred. Although the fall had been cleaned up, the 

brows were not properly supported in that loose rock remained 

around the brows. He also recalled seeing an overcast area, 

approximately 100 feet in length, where the entry width of 22 

to 23 feet exceeded the 20 f~et width allowed by the approved 

roof control plano He stated that in addition to these areas, 

believed that there were two locations where Inspector Gamlin 

found the spacing of the roof bolts to be too wide and where 

improper grouting was used when installing the bolts. 

Tr. 129-130. Cunningham went on to describe the "adverse roof 

conditions 11 that, in his opinion, were causing the roof control 

difficulties. 

The • . shale roof was causing a lot of 

problems with ..• bolting that they were 

using o . . It was not consistent using 

header bolts on the roof to try to alleviate 

some of the shale rock falling out between 

the bolts. And also . o . there was some 

timbers that was scattered in the areas that 

would have served a whole lot better purpose 

if they had been set properly, but they was 

just lying on the ground. 

Tr . a. 3 0-131. 

1842 
Cunningham stated his belief that Section 75.220 requires an 

operator to develop and follow a roof control plan suitable to 

the mine but that the roof control plan is a minimum plan and 

that roof conditions may require an operator to take protective 

roof control measures additional to those mandated by the plan. 

Cunningham noted that Section 75.202 requires an operator at all 

times to control the roof, face and ribs of areas where miners 

are required to work or travel. Tr. 132-133. Because there had 

been eleven reported roof falls in two months and three reported 

roof fall injuries on the unit, as well as because he had 

observed "loose shale falling out between bolts ... wide places 

being mined, and ... bolt spaces being too wide", he believed 

Peabody was not protecting persons working on the unit from the 

hazards of roof falls. Tr. 132. (Cunningham stated that he had 

with him copies of the accident reports when he went to the mine 

on July 18 and in addition that he was told at the mine by a 

union safety committeeman about the roof fall injuries that had 

occurred on the No. 2 Unit. Tr. 172-173.) Cunningham therefore 

cited Peabody for a violation of Section 75.202. 

Although he wrote on the citation form, "The operator is 

trying different steps to control the roof such as decreasing the 

width of the entries on the No. 2 Unit from 20' to 18' and 

decreasing the wide opening to 24' and not 28'. Five roof bolts 

are being installed in a row instead of four" {G. Exh. 5), 

Cunningham was adamant that these steps were not being 

implemented at the time he issued the citation but rather were 

what Peabody agreed to do after the section had been inspected by 

the inspection party. He stated that he included the statement 

on the citation form in order to justify giving Peabody a week 

to abate the alleged violation. Tr. 135-136, See also Tr. 156. 

Cunningham maintained that the additional roof control procedures 

he described were agreed to as the result of discussions between 

himself, Dupreeu Gamlin 1 Paul Sparksp the safety director, 

Jimmy Howard 1 the section foreman? Doug Rowlansp the mine 

superintendentr and Larry Stanley, the mine foreman. 

Tr. 135-136. Cunningham asserted that on July 18 he observed 

nothing to indicate Peabody had undertaken anything beyond the 

requirements of the roof control plan to control the roof. 

Tr. 145v 162. On July 18 he measured the width of the entries 

six or seven times and he found no entries that measured 

18 feet or narrower. Further, he measured the spacing of some of 

the roof bolts. He found no instances in which the roof bolt 

pattern consisted of five bolts across rather than four" Had he 

found that the entries had been narrowed to 18 feet and the 

bolting pattern had been tightened, he would have had no reason 

to issue the citation. Tr. 291-293. 

1843 
Qunningham testified tha"t:Rowlans told him that the unit was 

beingi'mined in a "bowl" (by this Cunningham understood Rowlans to 

mean "an area where the surface is indented and therefore you 

would have less overburden in the area underground where they 

were mining" Tr. 144) and that once out of the "bowl" Rowlans 

expected the roof conditions to improve. Id. 

With regard to Peabody's negligence in allowing the 

violation of Section 75.202 ~--(}exist, Cunningham believed Peabody 

to be guilty of moderate negligence rather than high negligence. 

Cunningham believed that with the number of roof falls that had 

occurred, Peabody should have been aware it needed to do more to 

protect its miners from the dangers of the roof (Tr. 166) and 

that "the company had the means there to correct the conditions." 

Tr. 143. 

William Dupree, a MSHA roof control supervisor, testified 

that Rowlans told him the company had hired two geologists to 

evaluate1 the subject roof conditions and that they had told 

Rowlans that the area in wh~wwwcn the poor roof occurred was an old 

washout. 4 After reviewing a mine map (G. Exh. 10), Dupree 

testified that the No. 2 Unit was encompassed by this washout or 

"bowl." Tr. 198, See also G. Exh. 10 (areas marked by Dupree in 

blue and green). With regard to whether any precautions over and 

above those required by the roof control plan had been taken by 

Peabody prior to July 18,--Dupree testified that although one of 

the roof fall reports telephoned to MSHA on June 12, 1991, 

indicated that the compan;¥-had "Called in 2 Roof Specialists, 

Narrowed Entry Width - Tightened Bolt Pattern" (G. Exh. 7 at 4), 

on July 18 he did not see any evidence the width of the entries 

had been narrowed to less than the 20 feet required by the roof 

control plan. Tr. 204-205. When asked how wide the entries 

wereu Dupree statedr 96 ! helped Cunningham measure some [of the 

entries]. Some of them ~e%e22 to 23 feet wide and that would be 

3 or 2 fee~ more than what the plan called for under normal 

circumstan6es." Tr. 205. He also stated his understanding that 

Gamlin had measured two areas-where the roof bolts were as much 

as 10 feet apart. Tr. 205-206. 

PEABODY 9 S WITNESSES 

Safety Manager Paul Sparks confirmed that prior to 

July 1991v the mine had experienced an unusually large number of 

roof falls in the southwest main entries, although, at that time, 

the roof falls were concentrated in an area outby the No. 2 Unit. 

4The terms· "washout" and "bowl" were used to describe the same general area. 

See Tr. 198, 202. The Dictionary of Mining Mineral and Related Terms defines 

"washout", inter alia, as "[b]arren, thin, or jumbled areas in coal seams." U.S. 

Department of the Interier, DMMRT (1968) 1217. 

1844 
this increase in the number of roof falls was first noticed in 

May. Tr. 243. Sparks stated that he had at least one 

conversation with Inspector Gamlin -- a conversation at which 

Mine Superintendent Rowlan was present -- about the possibility 

of using a different kind of roof bolt (a 5-foot, fully-grouted 

bolt) to better control the roof. Sparks had agreed with Gamlin 

that a 5-foot, fully-grouted bolt would probably improve control 

because it would keep air and moisture for getting into the roof. 

However, according to Sparks, Rowlans was not able to approve a 

trial use of fully-grout~d roof bolts because Rowlans' boss 

insisted on use of 6-foot, point anchor bolts. sparks stated 

that under most circumstances, the point anchor bolt was regarded 

as the best roof bolt on the market. Tr. 214-215. 

Sparks also stated that mine management knew that there was 

a problem controlling the roof because of the "bowl" effect, and 

he maintained that management was trying different things to 

solve the problem. Tr. 216. Referring to a reported roof fall 

that had occurred on June 12 (G. Exh. 8 at 4), Sparks explained 

that as a result of the fallc it was recommended that, in 

addition to adding extra roof support (roof bolts or timbers) to 

the area in which the fall had occurred, Peabody arranged to have 

geologists examine the area and advise mine management as to what 

was causing the roof to fall. Tr. 217, 245-246. The geologists 

came in mid-June and Sparks explained: 

The geologist ran compaction tests on the 

area as far as the immediate roof above the 

main roof. And we found it took to water 

exceptionally more that what you really want 

it to . . . This roof was really susceptible 

to water and it would expand once the 

moisture got to , and once it expands, it 

has no other choice but to 11. 

Tro 218. To help alleviate the problem, Sparks further 

explained, the geologists suggested the roof bolt holes be sealed 

to prevent moisture-laden air from seeping into the roof and that 

the best way to accomplish this was to use fully-grouted roof 

bolts. Peabody decided to install fully-grouted bolts 

approximately one month after July 18. Tr. 221, 227-228. Once 

installed the fully-grouted bolts resulted in, 81 a whole lot less 

falls mainly because (they] did keep the air and water out." 

Tr. 237. 

According to Sparks, Peabody also installed truss bolts and 

timbers along the main and submain belt entries. Sparks stated 

that this was being done during July in some areas. Tr. 221-222. 

The trussing and timbering was in addition to the requirements of 

the roof control plan. Tr. 223. 

1845 
Sparks also stated that around the third week of June, 

Rowlans told the foremen of the No. 1 Unit that until mining 

advanced out from under the bad top they were to narrow entries 

to 18 feet and they were to cut the entries 24 feet wide when the 

continuous mining machine turned a crosscut. Tr. 256. Sparks 

added that Rowlans had told the No. 2 Unit face foreman and 

section foreman essentially the same thing the last week in June 

or the first week in July. Tr. 224-225. In addition, the 

foremen were told to put extra bolts in the roof and truss it, if 

the roof required such measures. Tr. 224. Nonetheless, Sparks 

admitted that three separate roof fall injuries had occurred 

after the instructions were given (one on July 9 and two on 

July 11), all of which injuries he had reported to MSHA. 

Tr. 263, G. Exh. 9. 

Sparks testified that on July 18, while at the mine with the 

inspection party, Rowlans told MSHA roof control specialist 

Cunningham and MSHA roof control supervisor Dupree the things 

Peabody had done to try to better control the roof. "We talked 

to them about the geologists and what they had found as far as 

the moisture and the roof . .',. different things of that type." 

Tr. 230. As for the implementation of roof control procedures, 

Sparks stated that some of the entries had been narrowed, but 

that some had places that were "a little wide." Tr. 231, See 

also Tr. 257. Also, Sparks was uncertain whether there had been 

any truss bolting on the No. 2 Unit. Tr. 234. As Sparks 

explained, on July 18, the unit had only been in production 

approximately one week and the miners who worked on the unit had 

been laid off from the mine for three, four or five years. Sparks 

explained, "We were getting back to more or less a learning 

process which • • . it just takes you a little while to get the 

feel of it again, especially as far as the miner or roof bolter 

or anything. ii Tr. 231. 

With regard to Cunningham 0 s statement on the citation form 

oithat Peabody is trying different steps to control the roof, 11 

(G. Exh. 5), Sparks maintained that it accurately reflected what 

MSHA understood Peabody was doing. "[I]t's written exactly the 

way it was. That 9 s the reason they gave us further time to 

evaluate them." Tr. 236, See also Tr. 273. Sparks stated that 

Inspector Cunningham was told about the steps Peabody had 

undertaken before he went to the mine on July 18. Tr. 258. In 

addition, Sparks stated that when Cunningham issued the citation 

he had told Cunningham that the specified remedial steps already 

were taking place. Tr. 265. 

Eugene Howard, face foreman on the No. 2 Unit, recalled that 

at some point around the time of the miners' vacation he was told 

to narrow the entries and corners and to tighten the roof bolting 

1846 
pattern. Tr. 278. 5 He stated that the No. 2 Unit had begun 

production on July 8. Tr. 279. Howard also testified that he 

had instructed his crew with regard to these roof control 

procedures, but admitted that there were times when entries were 

cut too wide and roof bolts were not properly spaced. Tr. 284-

285. "Nobody's perfect," he stated. Tr. 285. He was of the 

opinion that roof control procedures improved on the No. 2 Unit 

as his crew gained more experience. Id. Howard agreed with 

Sparks that the citation, as written by Inspector Cunningham, 

contained procedures that Peabody had already put into effect. 

Tr. 287. 

THE VIOLATION 

Section 75.202 states in pertinent part: 

(a) The roof face and ribs of area where persons work 

or travel shall be supported or otherwise controlled to 

protect persons from hazards related to falls of roof, 

face or ribs and coal or rock bursts. 6 

Issues of liability for violations of this standard, and more 

particularly, for violations of the standard's requirement that 

the roof and ribs be supported or otherwise controlled 

adequately, are resolved by reference to whether a reasonably 

prudent person, familiar with the mining industry and the 

protective purpose of the standard, would have recognized that 

the subject 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); See Southern Ohio Coal Co., 10 FMSHRC 138, 141 

(February 1988). Put another way, were the roof and ribs 

adequately supported and 1 if notu were there any objective signs 

extant prior to July 18 that would or should have alerted a 

reasonable prudent person to the danger of the inadequately 

supported roof in the cited area of the mine? Because I find 

that the answer to the first question is "No" and that the answer 

to the second is "Yes'', I conclude the Secretary has established 

the existence of the violation. 

5

Howard testified the miners' vacation was the last week of June or first 

week of July. Tr. 225. 

6

There are two subsections of Section 75.202. Subsection (b) prohibits 

persons from working or traveling under unsupported roof. The subject citation 

does not specify which subsection was allegedly violated. However, as Counsel 

for Peabody notes, no evidence was offered concerning work or travel under 

unsupported roof. Peabody Br. 10. Clearly, the alleged violation pertains to 

Section 75.202(a). 

1847 
Inspector Cunningham cited Peabody for "failing to control 

the roof to protect persons from hazards related to falls of the 

roof." G. Exh. 5. On July 18, the date he issued the subject 

citation, mining was taking place in the No. 2 Unit, and, as his 

testimony indicated and as Paul Sparks essentially agreed 

(Tr. 212-214, 216), the area being mined was well within the 

"bowl," the area of faulty roof that was subject to more than 

ordinary instability and chance of fall. 

Peabody argues that it was not given fair notice of the 

requirements of the standard. See Peabody Br. 10-12. However, 

given the unambiguous mandate of the standard that the roof, 

face and ribs of areas where persons work or travel be supported 

to protect those persons from hazards related to roof falls and 

the backdrop against which the citation was issued -- a backdrop 

of prior reported roof falls, reported minor injuries due to 

those falls and a geographic area marked by unusually unstable 

roof -- I cannot find that a reasonably prudent person familiar 

with mining industry and the goal of the standard to protect 

miners from roof fall injuries would have failed to recognized 

the hazardous nature of the r'Oof and the resulting requirement to 

consistently implement steps to provide adequate roof support. 

Indeed, and as Peabody's witnesses attest, Peabody itself fully 

recognized by mid-June the hazard to miners presented by the 

increasing number of roof falls in the "bowl" area and decided to 

seek the opinion of experts about the problem. Tr. 221. This 

lead to a recommendation that fully-grouts roof bolts be used, a 

recommendation that Peabody did not adopt until approximately 

mid-August. Id. 

Further, I credit Paul Sparks testimony that Rowlans was 

aware of the hazardous nature of the roof and told the foremen 

to narrow the entries to 18 feet and, where crosscuts were 

turned, to take 24 feet rather than 28 feet of coal. Tr. 225. 

I also credit his testimony that Rowlans told the foreman to 

tighten the bolting pattern. Tr. 256. 7 Further, I credit his 

testimony that the supervisors on the No. 2 Unit were told to 

install truss bolts as needed. Tr. 234. Howard, a foreman on 

the No. 2 Unit confirmed that Rowlans instructed him regarding 

the steps to take to better control the roof and "always 0 asked 

him if he were following these instructions. Tr. 288. I 

therefore conclude that Peabody recognized the hazardous nature 

of the roof on the No. 2 Unit and the resulting requirement to 

consistently implement steps to provide adequate roof support. 

7

These instructions were given to the foremen of the No. 1 Unit and No.2 

Unit. While the subject citation pertains to the No. 2 Unit, the roof conditions 

were essentially the same on both units. Sparks agreed that both units referred 

to the same general area of the mine, Tr. 254, and as already noted, the roof 

conditions caused by the "bowl" prevailed for both units. 

1848 
Peabody's problem with compliance lay not in recognizing the 

hazard but in remedying it. The day before the subject violation 

was issued Gamlin testified that he cited Peabody for instances 

where the width of the entries and the bolting pattern did not 

conform to the requirements of the roof control plan. Peabody 

did not contest these citations. Thus, Peabody was not 

consistently complying with its plan, let alone with the 

additional measures that were necessary for adequate roof control 

when mining in the "bowl" area. 

When the subject citation was issued mining was continuing 

in the"bowl" area, and Cunningham testified that he found loose 

shale falling out between bolts, wide places being mined and bolt 

spacing that was too wide and in excess of the approved roof 

control plan. Tr. 131-132. I credit this testimony. Further, 

Cunningham's testimony was essentially unrefuted that he tried to 

find recently cut entries that were 18 feet across and 

intersections that were cut less than the plan required and that 

he could not remember finding any. Cunningham's testimony is 

given added credence by the statements of Howard, Peabody's 

foreman on the No. 2 Unit, wh'O cand-idly described his problems 

getting the No. 2 Unit crew to comply with Rowlans instructions 

regarding the roof control measures that they were to carry out. 

Tr. 284-285. In addition to Cunningham's testimony, I note 

Dupree's statement that on June 18, he helped Cunningham measure 

the entries and that some exceeded the width allowed by the plan. 

Thus, there is ample evidence to establish that Peabody 

consistently failed to implement those extra-plan measures, such 

as further narrowing the entries and tightening the roof bolting 

pattern, that all agreed were necessary given the prevailing roof 

conditions. 

I conclude; therefore, the Secretary has established that on 

0uiy 18v 1991 and as alleged in Citation No. 3551088 Peabody 

violated Section 75.202. 

GRAVITY AND NEGLIGENCE 

The sole issue contested by Peabody is the existence of the 

violation. Inspector Cunningham testified that he believed 

Peabody 9 s failure to control the roof on the No. 2 Unit so as to 

protect persons from the dangers of roof falls subjected miners 

on the unit to injuries from falling loose roof, injuries that 

could range from minor to fatal. Tr. 171. Having found that 

the violation existed, I fully credit the inspector 1 s opinion and 

conclude that it was a very serious violation. 8 

8

As previously noted, the inspector also designated the violation as S&S. 

Peabody does not dispute this finding. 

1849 
Peabody's own witnesses testified that for a considerable 

time before it was cited Peabody was well aware of the 

potentially hazardous roof conditions in the subject area. 

Moreover, Foreman Howard knew he had a "rusty" crew under his 

command on the No. 2 Unit, knowledge that warranted increased 

diligence to insure compliance, diligence the violation belies. 

I find therefore that Peabody negligently failed to control the 

roof to protect persons on the No. 2 Unit from the hazard of roof 

falls. 

CIVIL PENALTY 

The Secretary proposed a civil penalty of $74, which I 

consider inadequate in view of the very serious nature of the 

violation, Peabody's negligence and Peabody's stipulated large 

size. Rather, I conclude that a civil penalty of $500 is 

appropriate, and in so doing I take into account Peabody's 

stipulated history of prior violations and rapid, good faith 

abatement of the subject violation. While both are commendable, 

they do not compensate for the gravity of the violation and 

Peabody's negligence. Roof control is, after all, of singular 

importance in protecting the safety of underground coal miners. 

KENT 92-65 

Mine Act 

section 

section 104(a) 

citation No. 

3416937 

Date 

08/07/91 

30 C.F.R. 

50.10 

STIPULATIONS 

At the hearing the parties stipulated as follows: 

See Tr. 5. 

lo The Martwick Minef annually produces one 

million five hundred ninety thousand (1,590,000) tons 

of coal; 

2. The Martwick Mine has an effect on interstate 

commercep as that term is used in the Mine Act; 

3. The commission has jurisdiction to hear and decide 

the case; 

4. During the 24 months immediately prior to the 

subject violation there were 195 assessed violations 

during the course of 388 inspection days. 

1850 
DISCUSSION 

The citation at issue arose out of an inspection of the 

Martwick Mine conducted by MSHA Inspector Lendell Noffsinger on 

August 7, 1991. During the course of the inspection, Noffsinger 

determined that Peabody had failed to report a roof fall as 

required by 30 C.F.R. § 50.10. 9 He further determined that an 

injury was unlikely to result from the violation and that if an 

injury did occur it would not result in lost workdays. He also 

concluded that the violation was not S&S and that Peabody was 

moderately negligent in failing to report the roof fall. 

Subsequently, the Secretary proposed a $20 civil penalty for the 

alleged violation. 

The citation states in relevant part: 

A roof fall has occurred in the No. 1 intake 

on the No. 1 Unit . . . two crosscuts inby 

spad No. 4918. The fall occurred either on 

June 4 or June 5, 1991, timbers were set on 

the 2nd shift June '5, 199"1. The fall was not 

immediately reported to MSHA. 

G. Exh. 1 10 Peabody's position is that the violation did not in 

fact occur. The sole issue is whether the roof fall took place 

in an area where miners are normally required to work or travel 

and thus whether the roof fall was reportable. 

9

30 C.F.R. § 50.10 states in part: 

If an accident occurs, an operator shall immediately contact the MSHA 

District or Subdistrict Office having jurisdiction over its mine. 

30 C.F.R. § 50.2(h)(B) defines an "accident" as: 

An unplanned roof fall at or above the anchorage zone in active 

workings where roof bolts are in use. 

30 C.F.R. S 75.2 defines "Active workings" as: 

(A].ny place in a coal mine where miners are normally required to work 

or travel. 

10Noffsinger testified that he erred in writing June 4 and June 5, 1991, 

that he had meant to write August 4 and August 5, 1991. Tr. 11-12, 25. 

1851 
THE TESTIMONY 

THE SECRETARY'S WITNESS 

Noffsinger stated that during the course of the August 

7 inspection of the Martwick Mine he was asked by a miner whether 

Peabody had reported a recent roof fall. When Noffsinger 

responded "No," Noffsinger was asked to look at the area where 

the fall had occurred. Noffsinger viewed the area and, because 

the roof fall had not been reported, issued the subject citation. 

Tr. 12. 

Noffsinger stated that he observed the area of the roof fall 

with Bob Gray, an MSHA trainee who accompanied Noffsinger on the 

inspection. On the floor of the area he saw roof bolts and 

fallen roof. He also saw a few 9-foot roof bolts that remained 

in the roof but the roof had fallen out from around these bolts. 

Tr. 13, 27. Noffsinger stated that the area around the fall had 

been timbered in accordance with usual practice to keep the fall 

area from spreading. Tr. 21-22, 23-29. 

Noffsinger gave varying 'reasons why he believed the roof 

fall should have been reported. He stated an unplanned roof fall 

at or above the anchor zone of the roof bolts and in active 

workings had to be reported, and he recited the regulatory 

definition of active workings -- any place in a coal mine where 

miners are normally required to work or travel. Tr. 13, 20. 

Noffsinger agreed that the timbers were installed after the roof 

fall and that such timbering around falls is a one-time activity, 

but Noffsinger testified that he based his determination that the 

fall had occurred in "active workings" on the fact that the 

timbers had been set. Tr. 31. 

Noffsinger also stated if the timbering had not taken place, 

he still would have considered the roof fall to have occurred in 

active workings and thus to be reportable. He explained that the 

entry in which the fall had occurred was ventilated by intake air 

and that he had spoken with his supervisor, Joe Parks, and with 

MSHA roof control supervisor, Bill Dupree, before visiting the 

area of the fall and they had indicated that where there are two 

entries ventilated by intake 1 miners would normally travel in 

one of the entrieso Tro 360 Thus, he believed the cited area to 

have constituted "active workings," he stated, "because they 

[meaning his two supervisors] said it was active workings." 

Tr. 37" 

Noffsinger also stated that he understood the definition of 

"active workings" to mean that an area constitutes "active 

workings if any work is ever done in an area or anyone ever 

travels through the area". Tr. 32. 

1852 
Finally Noffsinger stated that for him not to have 

considered the area where the fall occurred to be active 

workings, the area would have had to be an abandoned area and to 

have been sealed off so that people could not physically get to 

it. Tr. 41. 

PEABODY'S WITNESS 

Steven Little, Safety Supervisor at the Martwick Mine, 

testified on Peabody's behalf. Little identified Peabody's 

Exhibit R-1 as a map that essentially depicts the panel where the 

roof fall had occurred. As described by Little, at the time of 

the fall there were five entries on the panel. Men and materials 

reached the face area via the supply entry. Coal·was mined at 

the faces, taken to the dumping point, transferred to a belt and 

removed from the mine via the belt entry. The supply and belt 

entries were immediately adjacent to one another and contained 

neutral air. When facing inby there was a timbered return entry 

to the immediate left of the supply entry. The return air in 

this entry was kept separate from the neutral air of the supply 

entry by permanent concrete J:5lock stoppings. When facing inby 

and to the immediate right of the belt entry there was a timbered 

entry that served as an escapeway. The intake air in this entry 

was kept separate from the neutral air of the belt entry by 

permanent concrete block stoppings. When facing inby and to the 

immediate right of the intake escapeway was another timbered 

intake entry. There were no stoppings separating these two 

intake entries. Tr. 48-52, 61-62, See Exh. R-1. Little 

maintained the intake escapeway was required to be examined on a 

weekly basis but that the adjacent intake entry -- the entry in 

which the roof fall occurred -- was not required to be examined 

on a periodic basis and, in fact, was never required to be 

examinedo Tro 54-550 

Little acknowledged that once a roof fall occurs an operator 

is required to support the area, if necessary, by setting timbers 

and that once timbers have been set miners do not normally return 

to work on them. Tr. 56. He indicated that miners working on an 

unit would normally work and travel in the area where coal was 

mined 9 an area away from the fall area 9 and that no other 

employees at the Martwick Mine would ordinarily and on a routine 

basis travel through the entry where the rock fall had occurred. 

Tro 58, See Exho R-lo 

During cross-examination, Little stated that in all 

likelihood on August 5, the section foreman found the roof fall 

and that to do so he would have had to be at least adjacent to 

the fall, but Little would not say that the foreman had gone into 

the area where the fall occurred. Little acknowledge that the 

regulations in Part 75 require the weekly examination of an 

intake air course, but because the regulations require that at 

least one entry of each intake air course be examined and 

1853 
maintained Peabody had always examined the intake entry adjacent 

to the one in which the fall occurred. Tr. 62-63. When asked 

whether the intake entry where the fall occurred is ever 

traveled, Little responded "No." When pressed with "Never?", 

Little stated, "I can't say absolutely never, but it's not 

regularly or normally traveled." Tr. 63. Little acknowledged 

that following the fall no barricades were erected or signs 

posted to prevent travel in the area where the fall had occurred, 

but he maintained that any travel there would have been 

inadvertent. Tr. 69. Taylor explained, "There's no way we can 

continuously and constantly be with all the employees in the mine 

to be sure that no one ever steps over there, but as a general 

practice of mining, [the fall area is] not normally or ordinarily 

traveled or worked in." Id. 

Finally, Little stated his opinion that the area where the 

fall had occurred was not a "working face", "working place", 

"working section" nor an "abandoned area", as those terms are 

defined in 30 C.F.R. § 75.2. Tr. 63-65. 

THE VIOLATION 

The Secretary bears the burden of proving that the alleged 

violation existed. In order to determine whether the Secretary 

has met that burden, it is appropriate to first analyze the 

wording of the pertinent regulations at issue, for it is this 

language that imposes the mandatory requirements with which an 

operator must comply. Here, the applicable language is 

unambiguous. Section 50.10 requires an operator to immediately 

contact the MSHA District or Subdistrict office "[i]f an accident 

occurs." As has been previously noted, the meaning of "accident" 

is defined in pertinent part. as "[a]n unplanned roof fall at or 

above the anchorage zone in active workings where roof bolts are 

use." There is no dispute that the roof fall occurring on 

August 4 or August Sp 199lv was nat or above the anchorage zone 

where roof bolts [were] in use" and that Peabody did not 

Himmediately contact the MSHA District or Subdistrict Office" 

when the fall occurred. The question is whether the fall 

occurred in "active workings"? 

Section 75.2(g) (4) of the regulationsv consistent with 

Section 318(g) (4) of the Act 1 30 U.S.C. § 878 (a) (4), defines 

"active workings" as iiany place in a coal mine where miners are 

normally required to work or travel." Boiled down to its 

simplest terms, the question is whether the Secretary proved that 

miners are 11 normally required to work or travel" where the roof 

fall occurred? I conclude that she did not. 

The Secretary chose to prove the violation solely trough the 

testimony of Inspector Noffsinger. It is clear to me that he was 

confused as to why he found a violation of Section 50.20. 

Initially, he stated that he had issued the citation because 

1854 
Peabody personnel had set timbers around the fall area. Tr. 31. 

He explained this line of reasoning by indicating that if any 

work is ever done in an area or if anyone ever travels through 

an area, the area constitutes active workings. The problem 

with this interpretation of "active workings" is that 

Section 75.2(g) (4) does not state that "active workings" are any 

place where miners are ever required to work or--travel, ,but 

rather that "active workings" are where miners are normally 

required to_workor travel. By modifying the requirement for 

work or travel w:Lth the adverb "normally," the Secretary in 

promulgating the regulation signaled that "active workings" are 

those places where miners are required constantly or periodically 

or with a certain degree of frequency to work or travel. The 

record in this case simply will not support a finding that miners 

constantly, periodically or with any degree of frequency worked 

or traveled in the area where the fall occurred. Indeed, the 

evidence is quite to the contrary. 

Inspector Noffsinger testified that timbering around falls 

is usually a one-time activity. Tr. 31. Safety Director Little 

agreed, stating that once such timbers are set miners do not 

return to work on them. Tr. 56. Moreover, Little's testimony 

that miners working on the No. 1 Unit would usually work and 

travel where coal was mined -- an area some distance for the 

entry in which the roof fell -- and that no other Peabody 

employees would ordinarily or on a routine basis pass through the 

roof fall area was essentially undisputed, as was Little's 

opinion that weekly examinations were not required for the entry 

where the fall occurred and that the entry was never examined or 

traveled on a regular basis. Tr. 62-63. Further, although 

Little acknowledged that it was likely the section foreman had 

found the fall, Little's statement that he could not say the 

foreman went into the subject entry when he found it does not 

prove normal work or travel or provide a basis from which normal 

work or t.ravel can-be inferred. 11 

l!The Secretary argues that in order to ascertain that a roof fall occurred 

the section foreman would have to have traveled in the area of the fall, but 

Little's supposition that the foreman could have been in the entry adjacent to 

the fall rather than in the entry in which it occurred seems more reasonable. 

It is hard to imagine the foreman putting-himself purposefully under an area of 

roof that had fallen and whose edges had not yet been supported. Of course, as 

the Secretary notes, the foreman did not testify, and although the Secretary 

requests that I be aware that the foreman "was conveniently absent from the 

hearing" (Sec. Br. 8), I can hardly draw an inference adverse to Peabody from his 

absence since the Secretary herself did not initiate pre-trial discovery 

regarding the foreman nor seek to compel his testimony. Perhaps it bears 

repeating that it is the Secretary's burden to prove the alleged violation, not 

the operator's. 

1855 
The Secretary argues that Little's opinion that the area was 

not a "working face," "working place," "working section" or 

"abandoned area" leaves active workings as the only way to define 

the area. Sec. Br. 6. As Peabody's counsel notes, the problem 

with this argument is that it assumes that such definitions are 

intended to encompass the entire mine. Peabody Br. 7. They are 

not. Rather, I agree with Peabody's counsel that definitions are 

provided for those terms that are used in the mandatory safety 

standards and which require definition. The definitions are not 

intended to provide an exhaustive classification of all areas of 

the mine, which leads back to the issue at hand -- whether, on 

the basis of this record, the Secretary proved that the roof fall 

occurred where miners normally are required to work or travel? 

For the reasons stated above, I find that she did not. 12 

ORDER 

In light of my approval of the proposed settlements and my 

conclusions regarding the contested violations, I enter the 

following order: 

KENT 92-42 

Peabody is ordered to pay a civil penalty of $20 for the 

violation of Section 75.316 cited in Citation No. 3548678. 

Peabody also is ordered to pay a civil penalty of $500 for the 

violation of Section 75.202 cited in Citation No. 3551088. 

KENT 92-56 

Peabody is ordered to pay a civil penalty of $227 for the 

violation of Section 75.507 cited in Citation No. 3551054. The 

Secretary ordered to modify Citation No. 3551054 by deleting 

inspector~s S&S finding. 

JltENT 92-65 

Peabody is ordered to pay a civil penalty of $192 for the 

violation of Section 75.1710-1 cited in Citation No. 3416929, and 

the Secretary is ordered to modify the citation by deleting the 

inspector~s S&S finding. Peabody is also ordered to pay a civil 

penalty of $126 for the violation of Section 75.1107-16(b) cited 

12The Secretary also asserts that pursuant to 30 C.F.R. S 75.402 and 

30 C.F.R. S 75.403 Peabody employees would have had to travel into the entry 

where the fall occurred to ascertain the incombustible content of rock dust that 

regulations require to be applied and maintained. Sec. Br. 7. Regardless of its 

hypothetical merits, this argument has no support in the record. Not one word 

of testimony or documentary evidence was offered regarding it. 

1856 
citation No. 3548484, and the Secretary is ordered to modify the 

citation by deleting the inspector's S&S finding. Finally, the 

Secretary is ordered to vacate Citation No. 3416937. 

Peabody shall pay the civil penalties and the Secretary 

shall modify and vacate the referenced citations within thirty 

(30) days of the date of this Decision and, upon receipt of 

payment, these matters are dismissed. 

Distribution: 

_])vi.//. d f [Jw.beu/LDavid F. Barbour 

Administrative Law Judge 

(703) 756-5232 

W.F. Taylor, Esq., Office of the Solicitor, U.S. Department of 

Labor, 2002 Richard Jones Roa'd, suite B-201, Nashville, TN 37215 

(Certified Mail) 

David Joest, Esq., Peabody Coal company, 1951 Barrett Court, P.O. 

Box 1990, Henderson, KY 42420-1990 

\epy 

1857 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. KENT 92-259-D 

ON BEHALF OF CLAYTON NANTZ, 

Complainant BARB CD 91-24 

v. 

Gray's Ridge Job 

NALLY & HAMILTON ENTERPRISES, 

INCORPORATED, 

Appearances: 

Before: 

Respondent 

DECISION 

MaryBeth Bernui, Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, Tennessee, 

for the Complainant; 

David o. Smith, Esq., Marcia A. Smith, Esq., 

Corbin, Kentucky, for the Respondent. 

Judge Koutras 

Statement of the Case 

This proceeding concerns a complaint of alleged 

discrimination filed by the Secretary of Labor against the 

respondent pursuant to section 105(c) (2) of the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. 815(c) (2). The 

complaint was filed on behalf of Clayton Nantz, a former employee 

of the respondent who claims that he was discharged on or about 

April 16, 1991, because he refused to continue to operate a 

bulldozer that had the back window broken out, a condition which 

he believed constituted a hazard to his health and safetyo 

The respondent filed a timely answer denying any 

discrimination, and contending that Mr. Nantz voluntarily quit 

his job. In its defense, the respondent asserted that the 

refusal by Mr. Nantz to continue to operate the bulldozer in 

question was not based upon a good faith reasonable belief that 

his health or safety were threatened. The respondent also 

contended that the initial complaint, and the amended complaint 

seeking a civil penalty assessment for the alleged violation of 

section 105(c) of the Act, were not timely filed as required by 

the Act and the Commission's Rules. 

1858 
A hearing was held in Cumberland Gap, Tennessee, and the 

parties filed posthearing briefs. I have considered their 

respective arguments in the course of my adjudication of this 

matter. 

Issues 

The issues is this case include the following: (1) whether 

the complainant was engaged in protected activity when he 

complained about the bulldozer in question and refused to operate 

it because he believed it was unsafe; (2) whether his work 

refusal was reasonable; (3) whether he timely communicated his 

safety complaints to mine management; and (4) Whether he quit or 

was fired from his job. Additional issues raised by the parties 

are identified and disposed of in the course of the this 

decision. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Sa~E:tY and Health Act of 1977, 

30 u.s.c. § 301, et seg. 

2. Sections 105(c) (1), (2) and (3) and llO(a) and (d) of 

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

§ § 815 ( c) ( 1) , ( 2 ) and ( 3 ) . 

3. Commission Rules, 29 C.F.R. § 2700.1, et seg. 

Stipulations 

The parties stipulated to the following (Exhibit J-1): 

Commission has jurisdiction in this mattero 

respondentu a Kentucky Corporation, engaged in the 

production of coalu and is therefore an "operator" as 

defined by the Act. 

3o respondent 1 s Gray 1 s Ridge Job Mine, is a surface u the products of which enter commerce within the 

meaning of the Acto 

4o During the year 1990u the Gray 1 s Ridge Job Mine produced 

203,536 tons of coal, and the respondent corporation, as 

controller, produced 856,573 tons of coal in 1990. 

5o Clayton Nantz was employed by the respondent as a 

bulldozer operator at its Gray's Ridge Job Mine, and is a 

"miner" within the meaning of the Act. 

6. At the time he ceased to be employed by the respondent, 

Clayton Nantz was being paid at the rate of $10.50 per hour 

1859 
for regular hours worked and $15.75 per hour for overtime 

hours worked. 

The Complainant's Testimony and Evidence 

Clayton Nantz testified that he was employed by the 

respondent on two or three occasions and that his most recent 

employment period was from June, 1990, to April 16, 1991. He 

stated that he has worked in the mining industry for 18 years as 

a heavy equipment operator, including dozers, loaders, and 

drills. He was laid off on the previous occasions because he had 

less seniority and that during his last period of employment with 

the respondent he operated a 08-L bulldozer, with an enclosed 

cab, and he described his duties (Tr. 11-14). Mr. Nantz stated 

that he was paid a regular rate of $10.50 an hour, and $15.75 an 

hour for overtime, and that he worked, five and six days a week, 

10 hours a day. The regular work week was 40-hours, and anything 

over that was overtime. He worked the second shift from 

3:30 p.m. to 3:30 a.m., moving dirt and rocks with the bulldozer 

(Tr. 13-15). 

Mr. Nantz stated that the back window of his bulldozer was 

knocked out when a truck backed into the machine during the day 

shift and he was not at work when this occurred. Mr. Nantz 

stated that his shift foreman Henderson "Hen" Farley informed him 

that the window had been broken out and that he would have it 

replaced. The missing window resulted in problems which 

Mr. Nantz described as "choking, dust coming in, smothering 

headaches, just couldn't see" and he explained that the dust 

generated by the trucks when materials were dumped made it 

difficult for him to see the trucks backing in to him and that 

before the window was knocked out "the dust wasn't near as bad" 

(Tr o 17} o 

Mro Nantz stated that foreman Farley was on the job for 

approximately one week before he left for another job. However, 

during the week that Mr. Farley served as foreman Mr. Nantz 

stated that he complained to him two or three times about the 

broken window and that Mro Farley told him that "We 1 ll try to get 

itu he said he 0 d get a glass ordered to put it in10 (Tro 18) o 

Mro Nantz confirmed that the window was not fixed when Mr. Farley 

left the job (Tro 19) o 

Mro Nantz stated that Wayne Fisher took over as foreman 

after Mr. Farley leftu and that he complained to Mr. Fisher on "a 

regular basis every other day or so11 about the broken window and 

informed him that "I couldn't stand the dust and the choking, 

smothering, gagging and going on from the dust" (Tr. 20). 

Mr. Nantz stated that he wanted the window fixed "Because the 

dust was so bad, it got in there and it just, you know, I 

couldn't breath. It was choking me to death, I was smothering, 

and it was causing me, you know, health problems, damage, I 

1860 
couldn't take itn (Tr. 21). He also stated that he continued 

having problems seeing the trucks and that Mr. Fisher assured him 

that the window would be fixed (Tr. 20-21). 

Mr. Nantz stated that four weeks passed from the time the 

window was broken out and the last night of his employment when 

he was discharged (Tr. 21-22). He described his appearance after 

his work shift both before and after the window was knocked out, 

and he stated that the water truck had a mechanical problem and 

was not operated after the dozer window was broken out (Tr. 23). 

Mr. Nantz stated that when he reported for work on April 16, 

1991, he asked Mr. Fisher if the window had been repaired and 

Mr. Fisher informed him that it had not. Mr. Nantz then informed 

Mr. Fisher that he did not want to operate the machine in the 

dust with the window broken out and asked for other work. 

Mr. Fisher informed him that he had no other bulldozers and 

suggested that Mr. Nantz might be able to operate a loader for an 

hour or so, but that he would then have to operate the dozer with 

the broken window. Mr. Nantz then informed Mr. Fisher that he 

did not want to operate the ~qzer in the dust and gave Mr. Fisher 

his phone number and asked him to call him when the window was 

replaced because he did not want to operate the dozer without a 

window because "it was just so dusty, I couldn't breathe, I 

couldn't take it" (Tr. 26). 

Mr. Nantz stated that he next returned to the mine one or 

two nights later and again asked Mr. Fisher if the window had 

been repaired. Mr. Fisher informed him that the window was not 

repaired and stated "The dozer's out there, do you want to run it 

like it is?" and "Either run it like it is or go to the house. 

You're fired it you don't run it" (Tr. 27-28). Mr. Nantz stated 

that he then picked up his check and went home and Mr. Fisher 

never called to tell him that the dozer had been repaired 

{Tro 27) o 

Mr. Nantz stated that after his last eveningvs employment 

with the respondent he looked for other work and he explained his 

efforts in this regard and confirmed that he found other work 

(Tr. 27-30)0 He also confirmed that his hospitalization 

benefits ended when he was discharged by the respondent and that 

he has incurred medical expenses since that time (Tro 30-31). 

On cross-examination, Mro Nantz testified about his prior 

employment and earnings with the respondent (Tr. 31-33). 

Mro Nantz confirmed that he has operated an open cab dozer for at 

least nine years and that he would be exposed to dust while 

operating such a dozer. He stated that an enclosed cab is more 

comfortable because of the air conditioning and heating. He 

confirmed that he wore dust masks while operating equipment 

without a cab enclosure (Tr. 34-37). 

1861 
Mr. Nantz explained the work that he was doing with the 

dozer in April 1991, and he confirmed that he had operated the 

machine with the doors open when the batteries overcharged and 

the doors would not stay shut, or when the air conditioning was 

putting out hot air. He explained that he would strap the doors 

together and denied that he ever operated the machine in dust 

with the doors open. Mr. Nantz could not recall that he ever 

told Mr. Farley that he strapped the doors open because he could 

not stand to be enclosed in the cab, but he stated that "I could 

have said that I don't like to be housed up, you know, when the 

heater's hot or something, maybe I said something like that, but 

I don't know" (Tr. 40-42). 

Mr. Nantz stated that except for a possible absence for 

illness he never "laid off" or missed work during the time the 

window was broken because of any dusty conditions, and he stated 

that "You didn't lay off up there, if you did, you didn't have a 

job" (Tr. 42-43). Mr. Nantz confirmed that he never made any 

notes of the specific days that he asked Mr. Farley about the 

broken window, and that he did not document the specific number 

of days that the window was broken out of the machine (Tr. 44). 

Mr. Nantz further confirmed that when his deposition was taken he 

stated that the window was out three to four nights before 

Mr. Farley left, but that he was not positive about this and that 

it may have been out for four to seven days before Mr. Farley 

left. Mr. Nantz also stated that Mr. Fisher was on the job for 

two weeks while he operated the dozer with the broken window 

(Tr. 45-48). 

Mr. Nantz confirmed that he filed a worker's compensation 

claim for silicosis on May 24, 1991, against the respondent 

claiming that he was totally .and permanently disabled and unable 

to workp but that his claim was denied (Tro 49-55• Exhibits R-2 

through R-4)o Mro Nantz further testified about his subsequent 

employmentsp and he also confirmed that he drew some unemployment 

benefits (Tro 56-63)0 Mro Nantz stated that during his 

employment with the respondent he worked a fifty-hour regular 

weekp and eight or eight and one-half hours on Saturday 

(Tr o 64-66) o 

Mro Nantz described the damage sustained by the dozer window 

when it was knocked out. He stated that there was 11 very little" 

frame damagev and he confirmed that within a day or two after the 

window was damaged the mechanics ndone what they could do" to 

straighten out the frame so that the glass would fit back in. He 

believed that the mechanics on the job replaced the window, but 

he did not know when this was done. Mr. Nantz confirmed that the 

frame was straightened out while Mr. Farley was still on the 

job, and while it was not perfect, he believed that it would have 

held a new window in place 

(Tr. 68) • 

1862 
Mr. Nantz believed that he initially refused to operate the 

bulldozer during his second shift on Monday, April 15, 1991, and 

that he spoke to Mr. Fisher that evening. Mr. Nantz confirmed 

that Mr. Fisher offered to let him run a highlift for an hour and 

one-half 1 and he also offered to water his work area with one 

load of water. Mr. Nantz characterized one load of water as 

"like pouring a cup of coffee out in that much dust" (Tr. 70). 

Mr. Fisher also mentioned the use of clear plastic over the back 

window area of the dozer, but Mr. Nantz indicated that he had 

tried this at another mining operation and could not see through 

the plastic material, particularly at night with rain and muddy 

conditions. He also indicated that he did like plexiglass 

because it gets scratched up, and with the accumulated dust, he 

cannot see through it (Tr. 70-72) Mr. Nantz stated that he did 

not request a dust mask or ear plugs because he thought the 

broken window would be replaced (Tr. 73). Mr. Nantz further 

explained his refusal to operate the dozer as follows at 

(Tr. 74-75): 

A. (Interposing) I wasn!tgoing to operate in that kind of 

dust, I couldn't take it, you know, it was just like turning 

a blower in your face when them trucks come back through 

there and fan that dust, and there was no way I could live 

and stand that. 

Q. But you used these dust masks on other jobs? 

A. There was never dust on other jobs like that. 

Q. This is the dustiest job in your twenty (20) years? 

A. We always used trucks on this job, on the other jobs, 

nobody hardly ever used over one (1) truck years ago. And 

this job had a lot of rubber tired equipment, and they moved 

more dirt more than any other job I ever seed, because it 

had more trucks. 

Q. Wellu there's two (2) trucks up there wasn't there? 

A. Yeah 1 but everybody else I ever have worked foru would 

haul maybe a mile down the road and dump into a fill. 

Q. Now, you could have operated the 980 loader that they 

offered to you; couldnvt you? 

A. For an hour and a half. 

Q. But you didn't want to do that? 

1863 
A. Not get back out in that dozer, not the rest of the 

night, eight (8) hours in that dust. 

Q. And you didn't want to -- you weren't interested in them 

watering the area with a water truck? 

A. One load wouldn't have even reached to me. 

Mr. Nantz confirmed that sometime in June or July, 1991, he 

spoke with Mr. Farley at the respondent's Leatherwood strip 

mining operation, and that Mr. Farley had called and asked him to 

come and look the job over. Mr. Nantz stated that Mr. Farley 

asked him if he would like to go back to work running a 010 

dozer, and indicated that he would speak with the respondent's 

owner, Tommy Hamilton, about it. Mr. Nantz stated that he 

informed Mr. Farley that he would go back to work if the 

respondent paid his back wages, but that Mr. Farley never 

contacted him again. Mr. Nantz confirmed that he was willing to 

return to work if he received his back pay (Tr. 77-80; 82-83). 

Mr. Nantz stated that during April 1991, he could not recall 

that the water truck was operating in the "fill area on top of 

the hill", and that during the entire time the dozer window was 

missing Mr. Farley and Mr. Fisher did not have the water truck 

operating around the dozer (Tr. 81). Mr. Nantz stated that he 

worked in the dust "going into the fourth week" and that he did 

not use a dust mask because "every day they was telling me we was 

going to get a window put in - - we're going to get a window put 

in. I kept waiting every day to get my window put in, why would 

I need a dust mask? If my window was in, I wouldn't have no 

problem" (Tr. 81-82). 

Mr. Nantz stated that when he left the respondent 9 s 

employment on April 16u 199lu the dozer window was still missing 

and he had no idea as to whether it was ever repaired, and he 

believed that the dozer was sold (Tr. 84). He confirmed that he 

did not want to operate the endloader for an hour and one-half as 

offered by Mr. Fisher because he would have had to go back and 

operate the dozer with the missing window and he did not want to 

operate it in the dust (Tr. 84). He further explained as follows 

at (Tr. 92-93) ~ 

Q. Okayu and you told them that you were available to work 

and that you would operate any other piece of equipment? 

A. I told the foreman that. 

Q. Okay. But you would not operate the 980 loader? 

A. That was only for one (1) hour, or something, until the 

guy got ready to use it. I mean, I wasn't going to get to 

1864 
use it a shift, just one {l) hour, and then I'd have to go 

back and start eating dust again. 

Mr. Nantz confirmed that the mine is a non-union operation, 

and that he was not aware of any MSHA inspection of the dozer 

after the truck backed into it {Tr. 86). Mr. Nantz confirmed 

that he never spoke to Mr. Tommy Henderson about the missing 

dozer window, and that he was unable to speak to mine 

superintendent Chuch Brock about the matter because he would 

leave work in the evening when he (Nantz) began his work shift. 

Mr. Nantz further confirmed that he only spoke to foremen Farley 

and Fisher and they indicated that they would speak to higher 

management about the matter. He also confirmed that he had never 

filed any previous safety complaints against the respondent 

(Tr. 90-91). 

Ronnie L. Napier 1 testified that he has been employed by the 

respondent for approximately 12 years. He stated that in April, 

1991, he worked the second SQ~ft from 5:00 p.m. to 3:30 a.m. with 

Mr. Nantz, and that he operated an endloader. Mr. Napier 

confirmed that he has known Mr. Nantz since grade school and that 

they drove to work together. He worked with Mr. Nantz on the 

second shift for six or seven months before Mr. Nantz left on 

April 16, 199L 

Mr. Napier stated that he observed that the back window on 

the bulldozer that Mr. Nantz operated was broken out, and that it 

was in this condition for "a couple of weeks or more" before 

Mr. Nantz left. Mr. Napier stated that he heard Mr. Nantz ask 

shift foreman Wayne Fisher "a couple of times" about when the 

window would be replaced, and he also heard him complain to 

Mro Fisher about the dusto Mro Napier stated that he noticed a 

difference in Mro Nantz 1 s appearance before and after the 

bulldozer window was broken outo He confirmed that Mr. Nantz 

appeared clean before the window was out 0 but he was dusty and 

dirty after operating the machine with the missing window. 

Mro Napier stated that he worked with Mro Nantz on the last 

evening of his employment on April 16u 1991u and Mro Nantz asked 

Mro Fisher the window had been replaced, and Mro Fisher 

informed him that it had not. Mr. Nantz then asked Mr. Fisher if 

there was other equipment that he could operate and Mr. Fisher 

replied Gino 9n. Mr o Nantz then gave Mr. Fisher his telephone 

number and asked him to call him when the window was fixed. 

Mr. Nantz then left after stating that he "couldn't eat anymore 

dust 11 o The window was repaired 3 or 4 evenings after Mr. Nantz 

left, and Mr. Napier never observed Mr. Nantz operate the dozer 

after the window was replaced (Tr. 94-102). 

1865 
on cross-examination, Mr. Napier stated that he did not see 

Mr. Nantz when he returned to the job site to pick up his check 

on April 17u 1991, and he never heard Mr. Fisher offer to let 

Mr. Nantz operate a 980 loader instead of the dozer with the 

missing window. Mr. Napier could not state that he ever heard 

Mr. Fisher offer to cover the broken window area with plastic. 

Harold Farler testified that he has been employed by the 

respondent for four years as a mechanic, truck driver, and 

service man fueling, oiling, and greasing equipment. He worked 

the same shift with Mr. Nantz during his last employment at the 

mine, and he rode to work with Mr. Nantz and Mr. Napier. 

Mr. Farler stated that Mr. Nantz complained to him about the 

missing bulldozer back window and also complained that the dust 

was so bad that ~e couldn't stand it. Mr. Farler stated that 

Mr. Nantz also complained to Mr. Napier, and he did not know 

whether he complained to anyone else. Mr. Farler stated that 

Mr. Nantz did not appear dirtier after work when the dozer window 

was not broken out, but after, it was broken out, Mr. Nantz had 

dust all over him and he appeared "muddy" (Tr. 110-115). 

Mr. Farler believed that the dozer window was missing "going 

on the fourth week" before Mr. Nantz left the job. 

Mr. Farler did not ride to work with Mr. Nantz on the last 

evening of his employment, but he was present during that shift. 

Mr. Farler did not hear the conversation between Mr. Nantz and 

Mr. Fisher on the evening that Mr. Nantz left the job, but he did 

hear Mr. Nantz complain to Mr. Fisher about the missing window, 

and he heard Mr. Nantz tell Mr. Fisher that the dust was so bad 

that he could not stand it. The dozer with the missing window 

was operated for three more shifts before it was repaired. 

Mro Farler never observed Mr. Nantz operate the dozer after the 

window was replaced (Tr. 116-118). 

On cross-examinationv Mr. Farler stated that on the evening 

before Mr. Nantz left the site on Tuesday, April 16, 1991, 

Mro Nantz told him that he was going to work and if the window 

was not replaced he would seek some other work to do. Mr. Farler 

stated t.hat Mro Nantz operated the bulldozer on Mondayf April 15, 

1991 9 and that Tuesdayv April 16v 1991, was the first time he did 

not operate it. The dozer nsat for three nights" before a new 

man came in to operate ito 

Mro Farler could not recall if any repairs were started on 

the dozer before Mr. Nantz left and he did not know if any 

mechanics were working on the window frame. Mr. Farler stated 

that Mro Fisher told him that the two water trucks at the site 

°'were down", but he could not recall when this occurred. 

Mr. Farler stated that the water trucks did not operate during 

April (Tr. 119-123). 

1866 
Mr. Farler stated that he rode home with Mr. Fisher after 

work on the evening that Mr. Nantz left the mine and that 

Mr. Fisher told him that "he hated to let Clayton go because he 

was a good worker" and that after informing Lewis Hamilton, the 

day shift supervisor and foreman, on the radio that Mr. Nantz did 

not want to operate the bulldozer with the window out of it, 

Mr. Hamilton told him (Fisher) "to cut him loose, let him go, he 

couldn't let him by with that. If he did, all the other men 

would gripe" (Tr. 124-126). 

Daniel Belcher testified that he has worked for the 

respondent for tour years and that he works on the evening shift 

from 6:00 p.m. to 4:30 a.m. operating an endloader. He worked 

with Mr. Nantz on the same shift for approximately a year. 

Mr. Belcher believed that the dozer back window operated by 

Mr. Nantz was missing for about three weeks before Mr. Nantz 

left, and that Mr. Nantz complained about the missing window and 

the dust. 

Mr. Belcher stated that Jie. heard Mr. Nantz complain to his 

shift foreman Wayne Fisher about the missing dozer window and the 

dust, and Mr. Nantz asked Mr. Fisher when the window would be 

replaced. Mr. Belcher stated that on the evenings that he drove 

a truck when Mr, Nantz was pushing fill material with the dozer 

with the missing window, the conditions were dusty. Mr. Belcher 

stated that he asked Mr. Fisher to speak with Mr. Nantz about the 

dust "getting so bad" and informed him that Mr. Nantz might quit 

because of these conditions. Mr. Belcher confirmed that he heard 

Mr. Nantz speak with Mr. Fisher about the missing window on the 

last night that he worked and that after Mr. Fisher told 

Mr. Nantz that the window had not been replaced Mr. Nantz wanted 

to know if another machine, or work in the shop, was available 

and Mro Fisher stated that "he didn 1 t have anything11 o Mr. Nantz 

then gave Mro Fisher his telephone number and told him to call 

him when the window was repaired. Mr. Belcher recalled that the 

window was broken out for 01 around three weeks or something" 

before Mro Nantz is last night of employment. Mr. Belcher stated 

that during the time the window was broken he operated the water 

truck two or three times spreading one load of water in the fill 

area each time (Tr. 128-136). 

On cross examination, Mr. Belcher confirmed that the water 

truck was og a pretty good sized truck" u but he was not sure of 

the tank capacity. He also believed that Mro Fisher operated the 

water truck during the time the dozer window was broken out, and 

he remembered only one water truck, but indicated that there may 

have been two. He confirmed that Mr. Fisher offered to let 

Mr. Nantz operate the 980 loader while he (Belcher) operated the 

water truck to water the fill area. Mr. Belcher "guessed" that 

Mr. Nantz did not want to operate the loader, but he did not know 

what Mr. Nantz may have told Mr. Fisher in response to his offer. 

Mr. Belcher stated that he had no need for the loader for two 

1867 
hours, but as soon he completed the watering task, and cleaning 

coal, he would have resumed operating the loader for the 

remainder of his shift (Tr. 136-140). 

Mr. Belcher could not recall any conversation between 

Mr. Nantz and Mr. Fisher concerning the use of plastic over the 

dozer back window or the use of a dust mask. He confirmed that 

dust masks were available on the job and that some of the drill 

men use them and some do not. Mr. Belcher confirmed that he does 

not use a dust mask because his highlift has an enclosed cab 

(Tr. 141). 

Johnnie Moore, testified that he previously worked for the 

respondent from 1980 to 1991, and that he was employed as a first 

shift mechanic in April, 1991. He knew Mr. Nantz as an evening 

shift bulldozer operator. Mr. Moore stated that he performed 

repair work on the 08 dozer operated by Mr. Nantz and he observed 

that the rear window was missing but he did not know how long it 

was missing. 

Mr. Moore stated that he was working at the mine the last 

evening that Mr. Nantz worked and that he overheard a 

conversation over the company radio in his tool truck between the 

night shift foreman, who he knew by his nickname "Fish", and 

Mr. Lewis Hamilton, and he recalled the conversation as follows 

(Tr. 146-147): 

A. This has been over a year ago. He just told Lewis that 

Clayton had refused to run the dozer on the count of the 

window being out of it, and that if he had anything else for 

him to do he would do it, but he didn't have anything else 

for him to do. And Clayton went onto the house, I reckon, 

and he told Lewis that he had another manff that he could 

bring in another man tomorrow night to run the dozer if he 

wanted him to. 

Q. Did Mr. Hamilton say a reply to that? 

Ac He told him whatever he wanted to do" 

Qo Nowu that night that you heard the conversation on the 

radiou was the back window still out of the bulldozer, at 

that time? 

A. Yes. 

Mr. Moore stated that a week or so later, his shift foreman 

Charles Brock instructed him to help "the window people" install 

a new window on the dozer that Mr. Nantz refused to operate. 

1868 
Mr. Moore stated that the window frame had not been straightened 

out prior to this time, and that it took him an hour or two to do 

this work, and that the window was then installed in an hour 

(Tr. 147-148). 

On cross-examination, Mr. Moore stated that Mr. Brock 

instructed him to straighten out the dozer window frame "a couple 

of weeks" after Mr. Nantz left the job. Mr. Moore stated that 

the dozer may have had a cracked door window and that a small 

side window was also missing. He did not know if anyone else 

worked on the window frame before he did, and he reiterated that 

he and a welder worked on it after Mr. Nantz left the job. He 

stated that the window was replaced by the Bell Glass Company at 

the mine site, and that this is the way that broken windows were 

always repaired. Mr. Moore stated that during the radio 

conversation that he heard between Mr. Fisher and Mr. Hamilton, 

he did not recall Mr. Hamilton say anything about firing 

Mr. Nantz (Tr. 149-153). 

Karen Nantz, the complainant's wife, testified that her 

husband has worked for the respondent on several occasions, and 

that he last worked for the respondent from July, 1990, to 

April 16, 1991. Mrs. Nantz stated that her husband was always 

dirty when he came home from work, which was not unusual, but she 

noticed a change in his appearance sometime in mid-March of 1991. 

She stated that he would be 11 caked with dust", and his clothes 

and lunch bucket were filled with thick dust, which was "blueGrayish" in color (Tr. 153-156). 

On cross-examination, Mrs. Nantz stated that when her 

husband worked for other coal companies, and when he operated a 

drill, his appearance was not as dusty and she did not notice as 

much dust on his clothing. She did not know whether her husband 

wore a dust mask. to operating the dozer with the broken 

window her husband was never Ilncakeanu with dustv and the dust did 

not cover his nose mouthp and hair. She acknowledged that 

ilngetting dirtyn was normal on strip mining jobs. 

In response to questions concerning certain medical expenses 

incurred by her husband after he left the respondent 1 s 

employmentv Mro Nantz confirmed that the medical bills shown in 

exhibits C-13 9 C=14v and C-15v were for treatment her son and 

daughter received as the result of an accident in a four-wheel 

vehicle which was not covered by insurance. She also confirmed 

that a bill for $18.79 (exhibit C-6) was for medication for her 

husband for pleurisy (Tr. 156-162)0 

MSHA Special Investigator Ronnie Brock testified that he 

conducted the investigation of Mr. Nantz's complaint, and he 

confirmed that he prepared a back-pay computation based on the 

information supplied to him by Mr. Nantz and his wife 

1869 
(Exhibit C-1) (Tr. 162-169). Mr. Brock also confirmed that he 

did not document all of Mr. Nantz•s employments subsequent to his 

termination, did not verify through company records the claimed 

hours of regular and overtime pay by Mr. Nantz when he worked for 

the respondent, and that he did not ask Mr. Nantz about any 

unemployment payments or workers compensation benefits. 

Mr. Brock further confirmed that his investigation did not 

disclose any citations issued to the respondent as a result of 

the broken bulldozer window, and that there was no MSHA 

regulation requiring an enclosed cab for a bulldozer (Tr. 170, 

182-188). 

Respondent's Testimony and Evidence 

Louis Hamilton testified that he is employed by the 

respondent as the mine superintendent and that he served in that 

position in April, 1991, and was familiar with the mining 

operation where Mr. Nantz was employed at that time. He 

confirmed that Henderson Farley was the second shift foreman, and 

after he was moved to the Leatherwood operation, Wayne Fisher 

became the foreman. Mr. Hamilton identified Exhibit R-5 as 

summaries of Mr. Nantz's earnings and hours worked during 1991, 

and he confirmed that the information was provided to him by the 

company payroll clerk. Mr. Hamilton confirmed that the normal 

work week is 50 hours, excluding any Saturday work, and that any 

work over 40 hours is considered overtime (Tr. 189-197). 

Mr. Hamilton stated that the window on the bulldozer in 

question was broken out when a truck backed into it bending the 

frame. The frame needed to be straightened, and some welding 

work was required before the window glass could be replaced. The 

mechanic on the first shift would normally repair any frame 

damage but the glass would be replaced by a local glass company 

the site o 198)" 

Mro Hamilton stated that he was not aware of any complaints 

by the first shift dozer operator about the broken window, and he 

first became aware of Mr. Nantz's concern when he refused to 

operate the dozer and Mro Fisher called him about the matter over 

the two-way radio. Mr. Hamilton assumed that Mro Fisher called 

him on the second evening when Mro Nantz came to the site to 

check about the glass and he believed that Mr" Fisher told him 

i1r o Nantz was quitting and going home because "he would not run 

the machine like that 11 (Tro 199). Mr. Hamilton told Mr. Fisher 00 that if he wouldn v t run it that we would have to get someone 

else, he leftn (Tr. 200)0 

Mr. Hamilton stated that Mr. Fisher told him that he had 

offered to let Mr. Nantz operate the 980 loader but that 

Mr. Nantz wanted his bulldozer fixed and wanted to run that 

machine and nothing else. Mr. Hamilton denied that he told 

1870 
Mr. Fisher to fire Mr. Nantz or that he made any statement that 

he could not allow Mr. Nantz "to get away with something like 

that, because all the employees would start doing it" (Tr. 200). 

Mr. Hamilton stated that Mr. Nantz would not have been replaced 

or let go if he had operated the 980 loader, and that he would 

not have been fired (Tr. 201). 

Mr. Hamilton stated that he has 15 years of surface mining 

experience, including the operation of loaders and bulldozers 

with open and closed cabs. In his opinion, Mr. Nantz could have 

avoided the dust coming in the back window by positioning himself 

and the machine to avoid the dust. He also did not believe that a 

short term, or four to six weeks exposure to dust, would be a 

health hazard or harmful (Tr. 203-204). He also believed that 

Mr. Nantz could have protected himself from the dust and he 

explained the loading and dumping process and the methods for 

operating the bulldozer (Tr. 205-207). 

Mr. Hamilton stated that Mr. Nantz could have used an MSHA 

approved dust mask which was __ available at the work site, and he 

indicated that plastic is put on the machine back windows for 

protection and he did not believe that it decreases visibility at 

night. He stated that "we always try" to provide a light plant 

for illumination in the shot and fill areas (Tr. 207-208). 

on cross examination, Mr. Hamilton stated that he worked at 

the mine on the same shift as Mr. Nantz and that he was there the 

entire time the window was broken out of the bulldozer in 

question. When asked if he ever mentioned to Mr. Nantz the ways 

to move the machine to avoid any dust, Mr. Hamilton responded 

"all operators know how to use it" (Tr. 210). In response to 

further questions, Mr. Hamilton reiterated that he was unaware of 

Mro Nantz 1 s complaints to Mro Fisher until Mr. Fisher called him, 

and did not know how long the window was broken (Tr. 216u 

219) ' 

James Cornett testified that in April, 1991, he was employed 

by the respondent as a second shift spare equipment operator and 

that knew Mr. Nantzo He stated that he operated a 09 

bulldozer at t.he ioshotR• area 9 and that he recalled that the back 

window of the DB dozer was broken out during the first shift. 

Mr. Cornett stated that he overheard a conversation on the 

parking lot between Mr. Nantz and Mr. Fisher prior to a work 

shift. He heard Mr. Nantz complain "about wanting a window" and 

that Mro Fisher offered him a loader to operate but Mr. Nantz 

told Mr. Fisher that he could not operate the loader. He also 

heard Mr. Fisher offer to install a piece of plastic in the back 

window, but he could not recall exactly what Mr. Nantz said about 

the plastic (Tr. 226). 

On cross-examination, Mr. Cornett stated that he was 

standing close to Mr. Fisher and Mr. Nantz during their 

1871 
conversation, but he could not specifically recall whether 

Mr. Nantz said he could not, or would not, operate the loader 

offered by Mr. Fisher (Tr. 227-228). Mr. Cornett could not 

recall the exact date of the conversation, and he indicated that 

it may have been 3 or 4 days before Mr. Nantz left the job. 

Mr. Cornett stated that Mr. Nantz also told him that he left 

because "the dust was bad" and Mr. Cornett confirmed that "we 

were working in a real dusty shot at that time" (Tr. 229). 

William H. Farley testified that he is employed by the 

respondent as a foreman and that he was in that position when 

Mr. Nantz worked in April, 1991. He confirmed that he 

transferred from that particular job site on Friday, April 5, 

1991, and reported to the "Leatherwood-Blue Diamond-Big Laurel" 

site on Monday, April 8, 1991, when Mr. Fisher replaced him as 

foreman. Mr. Farley stated that an accident involving the 

bulldozer in question occurred "a day before I left, which was 

probably on a Thursday". He stated that he operated the dozer 

the day he left because Mr. Nantz was off, and he also operated 

it the day before. When askec:I_if the glass was completely out 

when he operated the dozer, Mr. Farley responded "No, it was 

still in there, there was one little glass on the side that was 

there, but the big glass in the back was still out" (Tr. 234). 

He described the damage to the dozer as "bent the side of the 

cabu just a little bit in, and knocked that one glass out" 

(Tr. 234-236). 

Mr. Farley stated that Mr. Nantz never operated the 

bulldozer with the back window completely out, and that Mr. Nantz 

never complained to him about any dust or the missing side window 

(Tr. 236). He stated that Mr. Nantz would have operated the 

bulldozer with the damaged window frame for only one shift while 

he was foreman, and that the side window was the only one 

ing. The :toack window was still intact but "it might have 

a little gap one corner of it, where the cab was bent"v 

and he did not know when the window came out (Tr. 237). 

Mro Farley stated that he observed Mr. Nantz operating the 

dozer with the doors open prior to the window damage on more than 

one occasion 0 °

1 just about every day11 u including the winter 

seasono Mro Nantz told him that he had the doors open because "a 

of times he can't stand to be cooped up in that, you know, 

closed up and stuff" (Tr. 239-240). Mr. Farley also indicated 

that he has ridden with Mr. Nantz in a pickup with three people 

in the front seat 1 and that Mr. Nantz would get out and let the 

third person sit in the middle, or he would ride in the bed of 

the truck (Tr. 240). 

Mr. Farley stated that Mr. Nantz never complained to him 

about the dozer doors or the air conditioning not working 

properly, and he did not know when the broken dozer window was 

repaired (Tr. 241). He confirmed that Mr. Nantz came to the 

187:::: 
Leatherwoood job site to speak with him about going to work for 

him. Mr. Farley denied that he asked Mr. Nantz to come to the 

site, and he stated that Mr. Nantz "just showed up one evening". 

He stated that Mr. Nantz informed him that he did not want to 

work with Mr. Fisher and "asked me if I had anything for him to 

do" (Tr. 242). Mr. Nantz told him that he was interested in 

going back to work and if there were an opening he would come 

back. Mr. Nantz placed no conditions on his returning to work, 

and he never called on him again about any openings, and 

Mr. Farley never contacted Mr. Nantz again. Mr. Farley stated 

that when Mr. Nantz was preparing to leave after the conversation, Mr. Nantz "told me that he had decided he didn't want to 

work anyway, that he had the company sued and stuff, or something 

of that naturen (Tr. 243-244). 

Mr. Farley stated that he has worked in the surface mining 

industry for 20 years, and has served as a foreman for the 

respondent for eight years. He has operated open-cab equipment 

and did not believe that it was reasonable to believe that anyone 

operating in dust for a month,;wouldresult in serious health 

consequences. Although he would not like doing it, he would not 

object, and he has operated a dozer with an open cab in dust but 

has never operated one with an enclosed cab with a missing 

window. He stated that dozer fans and dust masks can minimize 

any dust with the back window of the dozer out, and he confirmed 

that he has used plastic around an open cab dozer to keep warm in 

the winter and that it does not impair his visibility and is a 

common thing with open cab equipment operators. He also believed 

that Mr. Nantz could avoid the dust by operating his machine in 

different directions and he confirmed that Mr. Nantz was an 

experienced good operator (Tr. 244-248). 

On cross-examinationv Mro Farley confirmed that he did not 

document or note the date that the dozer back window was broken 

out in the foreman's book and that his testimony is from memory 

(Tr. 250). He also confirmed that he never personally offered a 

dust mask to Mr. Nantz, and never suggested ways of avoiding the 

dust by positioning his dozer in a certain way (Tr. 252). 

In response to further questionsu Mr. Farley stated that he 

operated the water truck every day during the last two weeks he 

was on the job with Mr. Nantz. He confirmed that he considered 

Mr. Nantz to be Qt sort of a friend" and that on a couple of 

occasions in the past when .Mro Nantz became upset and quit his 

job he talked him into coming back to work. Mr. Farley stated 

that when the MSHA inspector took his prior statement he told the 

inspector that the dozer window was broken two days before he 

left to go to the Leatherwood site (Tr. 253). 

Wayne Fisher testified that he was the night shift foremen 

in April, 1991, and prior to that time worked as a loader 

operator at the Leatherwood site for approximately six years. He 

1873 
stated that he was promoted to foreman on April 8, 1991, and had 

not met Mr. Nantz prior to this time. He inspected Mr. Nantz's 

08 dozer that evening and noticed that the back window was broken 

out of it. He could not recall if Mr. Nantz complained to him 

that evening, and he stated that "It seems like I told him that I 

would get it put in" (Tr. 261). The next day on April 9, 

Mr. Fisher spoke with the day shift boss and told him that the 

window needed to be replaced, and that "he told me that they was 

planning on putting it back in, but they was wanting to wait on a 

weekend, or something, when the dozer was parked, to get it in" 

(Tr. 262). Mr. Fisher stated that Mr. Nantz "may have said 

something that night. I don't remember what was said, but they 

may have been something said about the glass" (Tr. 262). 

Mr. Fisher confirmed that Mr. Nantz worked for him from 

April Sq through 12, 1991, and that everyone was off on Saturday 

and Sunday, April 13 and 14. Mr. Nantz came back to work on 

Monday, April 15, and during this entire time Mr. Fisher recalled 

that Mr. Nantz complained one or two times that "the dust was 

coming in the dozer pretty b,a,d" and that he offered to cover it 

with plastic and told Mr. Nantz that "I would get the glass put 

in today" (Tr. 263). Mr. Nantz refused his offer for the plastic 

which was available in the shop. Mr. Fisher stated that it was 

clear plastic that he could see through and that he used it to 

cover open dozer cabs that he has operated in the past. 

Mr. Fisher confirmed that the plastic would not keep the dust out 

of an open cab, but dusk masks were available, and the plastic 

did not affect visibility or the safe operation of the dozers 

that he has operated (Tr. 264-265). 

Mr. Fisher stated that Mr. Nantz would operate the dozer in 

second gear at three to four miles an hour, and he was of the 

opinion that placing plastic over the back window would not 

create a safety hazard" He confirmed that dust masks are 

available on the job but that Mr. Nantz never asked for one. 

Mr. Fisher stated that Mr. Nantz operated his machine all of the 

time with the doors open, but he never asked to him why he did 

this (Tr. 266). 

Mro Fisher stated that Mr. Nantz reported for work on 

Tuesday, April 16 1 1991, but did not work that day. Mr. Fisher 

explained what transpired after Mr. Nantz came to work as follows 

(Tr. 267-268) ~ 

A. He come in and he told me he wasn 1 t going to run the 

dozer. That if the glass wasn't put in he was going to go 

back home, and when I got the glass out in the dozer, he'd 

come back to work. And I offered to let him run a 980, and 

I told him, I said, "Run the 980, and I'll run the water 

truck and settle the dust, and then later on tonight, if I 

have to have the 980 to clean coql with, you can run your 

dozer."' And he said, "No, I'm not running the 980, I'm 

1874 
going home." He said, "You get the glass back in the dozer, 

call me, and I'll come back to work." 

Q. Did you believe at that time, that you would have coal 

that night, in the 980 to clean? 

A. No, at that time, the 92 trucks was still in the pits 

moving the rock off of it, and me and the day shift boss 

done talked about if I could clean it, clean it, and if I 

couldn't, we wouldn't haul the next day. It would be all 

right. 

Q. So, there was a possibility he could have run the 980 

most of that shift? 

A. Yeah. 

Mr. Fisher further explained that he intended to assign the 

normal 980 loader operator (Danny Belcher) to the water truck and 

that Mr. Nantz would have ope,:r;ated the loader at the fill area 

where he normally operated the dozer. The loader could be used 

to push fill material and Mr. Fisher believed that Mr. Nantz 

understood that he would be working in the fill area and not the 

shot area because he worked the fill all of the time and that was 

his job (Tr. 269). 

Mr. Fisher stated that after his conversation with Mr. Nantz 

on April 16, he called Superintendent Hamilton and told him that 

Mr. Nantz refused to operate the dozer and was going home. 

Mr. Fisher stated that Mr. Hamilton did not say that he should 

fire Mr. Nantz. Mr. Fisher recalled that Mr. Hamilton stated 

"All right, just do what you have to do. If they're going to 

worku they're going to work, you know, if they ain't we're just 

going to have to get someone that will workn (Tro 269-270). 

Mr. Fisher stated that Mr. Nantz next returned to the mine 

on Wednesday, April 17, 1991, which was payday, and he recounted 

the following conversation with Mr. Nantz (Tr. 270-271): 

Ao Well 1 I give his check to him and he asked me if I got 

the glass back in his dozer. I told him, "No, wasn't 

in. uu He said, "Well, I 0 m going back home, when you get it 

put in, call me, I 0 11 come back to work.H I said, 81Clayton1 

you know, 1eve got to run that dozer, and if you want to run 

it, we 1 ll work it, if your don't, IGll get somebody up her 

that will". And I think that was about all that was said 

that night, and he left, and then I hired another man on the 

dozer. 

Q. Was the decision to replace him, basically, left up to 

you? 

1875 
A. Yeah. 

And, at (Tr. 286): 

MR. FISHER: He told me he was going home, and I said, 

"Well, if you're going to go home, I have to take it 

that you're quitting your job, and I'll have to get 

somebody, you know, in here on the dozer." 

Mr. Fisher stated that everyone was off for the holidays 

from Thursday, April 18, 1991, until April 22, 1991, and that the 

dozer window was replaced on Thursday and Friday, April 18 and 19 

(Tr. 272). He confirmed that the new dozer operator Terry Doolin 

operated the dozer for one shift before the window was replaced 

and he did not complain about any dust (Tr. 273). 

Mr. Fisher stated that from April 8, to April 16, 1991, he 

operated one of the smaller water trucks and watered the fill 

area when it was dusty, and he confirmed that a larger capacity 

truck was not used because of a brake problem (Tr. 273-275). 

Mr. Fisher also confirmed that dust·masks were available for the 

asking, and that during the time Mr. Nantz worked for him he 

never complained to him about the dozer doors not closing or 

staying locked, inoperative fans, or that the air conditioning 

was not working (Tr. 276). 

Mr. Fisher stated that he spoke to the first shift foreman 

after April 9, about fixing the dozer window and mentioned it to 

him two or three times and that the foreman told him that "We're 

going to fix it, it's going to be fixed" (Tr. 277). Mr. Fisher 

could not recall if anyone was working on the window frame during 

this time, and he confirmed that there was no mechanic on his 

shift (Tr. 278). He stated that Mr. Nantz did not request to 

operate other equipment when he returned to the mine on April 17, 

and would not have replaced Mro Nantz if he had agreed to 

operate 980 loader (Tr. 28l)o 

On cross-examination, Mr. Fisher stated that after Mr. Nantz 

left mine of April l6p he had to take a D9 dozer out of the 

shot area and use it the area, and he confirmed that the 

ID9 had a.11 of the windows in place, but that was a different 

machineo Mro Fisher also confirmed that he told Mr. Nantz that 

he would let him operate the loader and then operate the dozer 

later on in the shift "If I needed to, I would let him run the 

loader all night, if I didn 1 t have coal to clean°0 (Tro 283, 287). 

Terry Doolin testified that he started working for the 

respondent in April, 1991, a couple of days before Easter, as a 

DS-L Dozer operator, and he confirmed that the dozer did not have 

a back window (Tr. 293). He stated that he operated the dozer in 

the fill when he first got the job, and while it was dusty he did 

not have any problem turning the dozer around in the fill area. 

1876 
He stated that he operated the dozer with the doors closed, that 

the locks were operable, the lights worked, and that he did not 

turn on the fan or air conditioner (Tr. 293-294). He confirmed 

that there was a "light plant" at the fill area, and that he 

minimized the dust coming through the back window by turning the 

dozer around to keep the dust from coming in the back window 

(Tr. 295). Mr. Doolin did not believe that the fill area was 

dustier than any normal strip mining operation, and that he 

sometimes waited after the trucks dumped so that the dust could 

clear before he started pushing the fill (Tr. 296). He confirmed 

that the dozer window was installed within two or three shifts 

after he initially operated the machine (Tr. 297). 

Findings and Conclusions 

The Timeliness of the Complaint and Amended Complaint, and the 

Denial of the Respondent's Motion for a Continuance of the 

Hearing. 

The Secretary's initial,complaint of January 31, 1992, 

included a proposal for an order assessing an appropriate 

civil penalty against the respondent for a violation of 

section 105(c) (1) of the Act. The Secretary stated that the 

complaint would be amended to reflect the amount of the penalty 

and the criteria used in determining the penalty. The 

respondent's initial answer to the complaint, filed through 

counsel Lloyd Edens, included an affirmative defense that the 

complaint was not timely filed within the time limitations 

found in sections l05(c) (2) and (3) of the Act, and Commission 

Rules 40(a) and 4l(a), 29 C.F.R. § 2700.40(a) and 41(a). 

On March 24u 1992v I issued a Notice of Hearing scheduling 

the case for hearing on July 14 9 19920 On June 16; 1992 the 

Secretary led a motion to amend the complaint to include a 

proposed civil penalty assessment of $8 0 000, for the alleged 

discriminatory violationo In filing the motion, the Secretary's 

counsel stated that she "has contacted Lloyd Edens, counsel for 

the respondent, regarding this motion 1 and Mra Edens stated he 

has no objection theretoi'" Under the circumstances 0 and absent 

any objection from respondentus counsel 0 I granted the 

Secretary's motion to amend the complainta 

Respondentas counsel Edens withdrew from the case on July 1, 

1992 2 and his motion for a continuance of the hearing in order to 

obtain substitute counsel was granted, and the case was 

rescheduled for hearing on August 12 1 19920 On July 17; 1992, 

counsel Jo Po Cline III, an associate of Mra Edens, entered his 

appearance as counsel for the respondent. Mr. Cline filed an 

answer to the amended complaint asserting inter alia that the 

amended complaint was untimely. 

1877 
On August 7, 1992, five days before the scheduled hearing, 

counsel David and Marcia Smith, entered their appearance and 

notified me that they were retained to represent the respondent. 

At the same time, counsel filed a motion for a continuance of the 

hearing until sometime in September, 1992, so that they could 

prepare for the hearing. In view of the pending hearing, the 

fact that it had been previously continued at the request of the 

respondent, the substitution of three different attorneys, and in 

order to preclude any additional delay, the motion for a continuance was denied and the matte~ proceeded to trial on August 12, 

1992. 

During opening remarks at the hearing, counsel Marcia Smith 

suggested that the respondent may have been prejudiced by my 

denial of the motion to continue the hearing, and she indicated a 

desire to preserve my ruling for the record (Tr. 5). Counsel 

asserted that at least two former employees, "the foreman that 

was involved and the mechanic that did the repair work", 

identified as "chuck and somebody else", were out of the area and 

could not be found to testify (Tr. 6, 7). Counsel further 

asserted that the mine superfritenderit would testify as to any 

prejudice to the respondent as the result of the absence of two 

key witnesses and the fact that they could not be located 

(Tr. 9). 

In his posthearing brief, and citing transcript pages 208-

209, counsel David Smith asserts that mine superintendent Lewis 

Hamilton testified that Chuck Brock was the first shift foreman 

in charge of bulldozer repairs and that his whereabouts were 

unknown at the time of the hearing, since he had moved to 

California (Brief, pgs. 12-13). At page 27 of his brief, 

Mrc Smith states that "Since the mechanic in charge, Chuck Brock, 

had left the state and was not available to testify at the 

hearing on behalf of Nally & Hamiltonu it is impossible for Nally 

Hamilton know at this point in time why the window was not 

fixed on the weekend of April 12, 1991, rather than on the 

following weekend"" Finally, at page 41 of the brief, counsel 

asserts in part that in view of the Secretary's delay in bringing 

the complaintu Mro Nantz 1 s backpay claim should be denied. 

~ have reviewed the testimony of Mro Hamilton, and while it 

is true that he testified that Mrc Brock was no longer employed 

by the respondent and had moved to California, Mr. Hamilton 

further stated that uur think he came back in this area in the 

last week00 r (emphasis supplied),and that it was rumored that 0

@he us gone to work for Clover Fork" (Tr. 209) . The record 

reflects that Mr. Nantz worked for the Cloverfork Mining and 

Excavation Company after he left the respondent's employ, and it 

would appear to me that this company would have been conveniently 

located to the respondent had it endeavored to pursue the rumor 

that Mr. Brock had returned from California and was working 

there, particularly since Mr. Hamilton believed that Mr. Brock 

1878 
had returned to the area at least a week prior to the hearing. 

Thus, it would further appear to me that Mr. Brock may have been 

available for testimony had the respondent made some attempts to 

locate him, or at least made an effort to obtain his deposition. 

The respondent apparently did neither. 

The respondent's suggestion that Mr. Brock was the only 

witness who could testify as to why the broken window in question 

was not repaired sooner is not well taken. I initially take note 

of the fact that Mr. Brock worked the first day shift, and that 

Mr. Nantz operated the bulldozer with the missing window on the 

second, or night shift. Insofar as any repairs to the bulldozer 

are concerned, superintendent Hamilton and second shift foremen 

William Farley and Wayne Fisher all testified for the respondent, 

and they all presented testimony regarding the condition of the 

broken window and framework, and the efforts made by the 

respondent to make the necessary repairs. First shift mechanic 

Johnny Moore, who was subpoenaed to testify for the Secretary, 

and who was cross-examined by counsel Smith, testified about the 

repairs which he and a welder named "Wayne" made to the window 

frame, as well as when the window glass was replaced. Under the 

circumstances, I conclude and find that the absence of Mr. Brock 

was not critical or prejudicial to the respondent's case. The 

respondent could have called the welder who assisted mechanic 

Moore, as well as the glass contractor who installed the dozer 

window, but it did not do so. 

In view of the foregoing, and after further consideration of 

the respondent's assertions concerning the claimed prejudicial 

denial of its motion to continue the hearing, I conclude and find 

that the respondent was not prejudiced and that its counsel had a 

full and fair opportunity to defend the respondent's position 

through the testimony of all of the knowledgeable witnesses who 

appeared at the hearing. Indeed, the record attests to the fact 

that counsel Smith was well-prepared, conducted a thorough and 

competent examination of all witnesses, and submitted a brief 

which I believed reflects his grasp of the issues as well as his 

knowledge of the applicable case law. 

With regard to the alleged failure by the Secretary to 

timely file the complaint, I take note of the fact that 

section 105(c) (3) of the Act requires the Secretary to proceed 

with expedition in investigating and prosecuting a minervs 

discrimination complainto Sections 105(c) (2) and (c) (3)p require 

the Secretary to act within the following time frames~ 

lo Commence the investigation of the complaint within 15 

days of its receipt from the miner. 

2. Within 90 days of the receipt of the complaint, notify 

the complaining miner of any determination as to whether a 

violation has occurred. 

1879 
3. If a determination is made that a violation has 

occurred, immediately file a complaint with the Commission. 

The Commission's Rules, at Part 2700, Title 29, Code of 

Federal Regulations, implement the statutory time provisions. 

Rule 40(a), 29 c.F.R. § 2700.40(a) requires the Secretary to file 

a complaint after an investigation if she finds that a violation 

has occurred. Rule 4l(a), 29 C.F.R. § 2700.41(a), requires the 

Secretary to file the complaint within 30 days after her written 

determination that a violation has occurred. 

The record in this case establishes that Mr. Nantz•s 

employment with the respondent ceased on or about April 16, 1991, 

and that he subsequently went to MSHA's Harlan, Kentucky field 

office where he gave his initial statement of alleged 

discrimination on May 29, 1991 (Nantz Deposition of June 15, 

1992, and Deposition Exhibit No. 2). MSHA Special Investigator 

Brock's investigation of the complaint followed shortly 

thereafter, and the Secretary's counsel confirmed that the 

investigation was completed on October 1, 1991, and that the 

Secretary made her determination that a complaint should be filed 

on January 15, 1992 (Tr. 7-8). The complaint was received by the 

Commission on January 31, 1992. 

In David Hollis v. Consolidation coal Company, 6 FMSHRC 21 

(January 1984), Aff 'd mem. 750 F.2d 1093 (D.C. Cir. 1984) 

(table), the Commission affirmed a dismissal of a miner's 

complaint filed six months after his discharge, and stated that 

"Tardiness questions must be resolved on a case-by-case basis, 

taking into account the unique circumstances of each situation", 

6 FMSHRC 24. 

In Joseph W. Herman Vo Imco Services, 4 FMSHRC 2135 8 2139 

{December 1982)v the Commission upheld a dismissal of a miner 1 s 

complaint filed 11 months after the alleged act of discrimination" Although the Commission found no mitigating 

circumstances excusing the delay, and found that the record was 91 replete with examples of faded memories as well as the 

unavailability of potentially relevant evidence ", it also 

suggested that any mine operator prejudice resulting from lost 

evidenceu faded memories, and witnesses who have disappeared must 

be balanced against the vindication of a complainant's rights in 

a particular case. 

In Walter A. Schulte v. Lizza Industries, Inc., 6 FMSHRC 8 

(January 1984), the Commission found that the miner's filing of 

his complaint 30-days out of time was excusable because he was 

unaware of the filing time limitations and the mine operator 

failed to demonstrate the kind of legal prejudice recognized in 

Joseph W. Herman v. Imco Services, supra, namely, tangible 

evidence that has since disappeared, faded memories, or missing 

witnesses. See also: Bruno v. Cyprus Plateau Mining Corp., 

1880 
10 FMSHRC 1649 (November 1988) aff'd., No. 89-9509 (10th Cir., 

June 5, 1989) (unpublished). I take note of the fact that all of 

these "time limitation" cases concerned untimely delays by pro se 

complaining miners, while the instant proceeding involves alleged 

untimely delay by the secretary and not by Mr. Nantz. 

In Secretary of Labor, MSHA ex rel Donald R. Hale v. 4-A 

Coal Company. Inc., 8 FMSHRC 905 {June 1986), the Commission 

reversed a judge's decision dismissing a Secretarial complaint 

filed with the Commission more than two years after the miner's 

complaint was filed with MSHA. Recognizing the fact that the 

Secretary seriously delayed the filing of the complaint, the 

Commission nonetheless held that in the absence of any showing 

that the respondent mine operator was prejudiced by the delay, 

the complaint should not have been dismissed. In speaking to the 

requisite time frames found in section 105(c) of the Act, the 

Commission stated as follows at 6 FMSHRC 908: 

While the language of section 105(c) leaves no doubt 

that Congress intended these directives to be followed 

by the Secretary, the j:fertinent legislative history 

nevertheless indicates that these time frames are not 

jurisdictional: 

The Secretary must initiate his investigation within 

15 days of receipt of the complaint, and immediately 

file a complaint with the Commission, if he determines 

that a violation has occurred. The Secretary is also 

required under section 105(c)(3} to notify the 

complainant within 90 days whether a violation has 

occurred. It should be emphasized, however that these 

time-frames are not intended to be jurisdictional. The 

failure to meet any of them should not result in the 

dismissal of the discrimination proceedings; the 

complainant should not be prejudiced because of the 

failure of the Government to meet its time obligations. 

(Emphasis added) . 

s. Rep. No. 181, 95th Cong., 1 Sess. 36 (1977) 1 

reprinted in Senate Subcommittee on Labor, Committee on 

Human Resources, 95th Cong. 1 2 Sess., Legislative 

History of the Federal Mine Safety and Health Act of 

1977 at 624 (1978) ("Legis. Hist. "). Plainly, 

Congress clearly intended to protect innocent miners 

from losing their causes of action because of delay by 

the Secretary. (Emphasis added). 

Related passages of legislative history make equally 

clear, however, that Congress was well aware of the due 

process problems that may be caused by the prosecution 

of stale claims. See Legis. His. at 64 (discussion of 

1881 
60-day time limit for the filing of miner's discrimination complaint with the Secretary). The fair 

hearing process envisioned by the Mine Act does not 

allow us to ignore serious delay by the Secretary in 

filing a discrimination complaint if such delay 

prejudicially deprives a respondent of a meaningful 

opportunity to defend against the claim. (Emphasis 

added). 

Accordingly, we hold that the Secretary is to make his 

determination of whether a violation occurred within 

90 days of the filing of the miner's complaint and is 

to file his complaint on the miner's behalf with the 

Commission "immediately" thereafter -- i.e., within 

30 days of his determination that a violation of 

section 105(d) (1) occurred. If the Secretary 1 s 

complaint is late-filed, it is subject to dismissal if 

the operator demonstrates material legal prejudice 

attributable to the delay. Cf. David Hollis v. 

Consolidation Coal Co., 6 FMSHRC 21, 23-25 (January 

1984}, aff'd. mem., 750 F:2d 1093 (D.c. cir. 1984) 

(table): Walter A. Schulte v. Lizza Industries, Inc., 

6 FMSHRC 8, 12-14 (January 1984). 

As noted earlier, the record reflects that Mr. Nantz filed 

his initial complaint with the Secretary well within the 60-day 

time frame found in section 105(c) (1) of the Act, and I find no 

evidence that the Secretary unduly delayed the initiation of an 

investigation of Mr. Nantz's complaint after it was filed, or 

that the four months that it took to complete the investigation 

constituted an unreasonable delay. Further, once the Secretary 

made a determination on January 15, 1992, that a complaint should 

be filed 0 it was filed Janua·ry 3lv 1992 p well within the 30 days 

provided by Commission Rule 41(a)o 

After careful consideration of the entire record in this 

caseu I find no persuasive evidence to establish that the 

respondent has been adversely affected or prejudiced by any 

secretarial delays in this case. Any delays in the case after 

the case was docketed with the Commission came about as a result 

of three changes of attorneys representing the respondentu and 

one hearing continuance granted at the respondentvs request due 

to a change in counsel. Insofar as any prejudice to the 

respondent as a result of delay by the Secretary in filing the 

complaint is concerned, I take particular note of the fact that 

prior to, and up to the day of the commencement of the hearing, 

none of the attorneys representing the respondent advanced any 

arguments or claims that the delay prejudiced the respondent's 

ability to defend itself because of the unavailability of 

critical witnesses, loss of evidence, or faded memories. 

1882 
In my view, the respondent's present counsel did a 

commendable job in defending the discrimination complaint, 

notwithstanding my denial of his motion for a continuance of the 

hearing. The hearing transcript record of the testimony of all 

of the witnesses who had knowledge of all relevant and material 

facts incident to the complaint, attest to the fact that the 

respondent's counsel had a full and fair opportunity to present 

his case, and to test the case made by the Secretary on behalf of 

Mr. Nantz. Under these circumstances, the respondent's 

suggestions that it has been prejudiced by the Secretary's delay 

in filing the complaint ARE REJECTED, and its requests to dismiss 

the complaint and the proposed civil penalty assessment on this 

ground ARE LIKEWISE REJECTED AND DENIED. 

With regard to the respondent's assertions concerning the 

delay by the Secretary in filing the amended complaint, I take 

note of the fact that the complaint was simply amended to include 

a proposal for a specific amount of the proposed penalty, and to 

inform the respondent of the particular statutory penalty 

criteria followed by the Secretary in support of the proposed 

penalty. The respondent was previously informed by the Secretary 

in her initial complaint that an amendment would be forthcoming, 

and it would appear from the record that the amended complaint 

was unopposed by counsel of record at the time of filing. 

It is well-settled that administrative pleadings may be 

liberally construed and easily amended. National Realty and 

Construction Company v. Occupational Safety and Health Review 

Commission, 489 F.2d 1257 (D.C. Cir. 1973); Secretary of Labor v. 

United States Steel Corporation, 6 FMSHRC 1908, 1916 (August 

1984). Further, given the fact that civil penalty assessment 

proposals by the Secretary are considered de novo by the 

presiding judgev and the judge is not bound by the Secretary's 

proposed penaltyv I am not persuaded that the respondent has been 

prejudiced by the amendment in questionu and any claims to the 

contrary ARE REJECTED AND DENIED. 

Fact of Violation 

In order 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 activityo 

Secretary on behalf of Fasula v. Consolidation Coal Company, 

2 FMSHRC 2768 (1980), rev'd on other grounds sub nom. 

Consolidation Coal Company v. Marshall, 663 F.2d 1211 (2d Cir. 

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 

1883 
(November 1981), rev'd on other grounds sub nom. Donovan v. 

Phelps Dodge Corp., 709 F.2d 86 (D.C . • Cir. 1983). 

The operator may rebut the prima 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 that it was also 

motivated by the miner's unprotected activities alone. The 

operator bears the burden of proof with regard to the affirmative 

defense. Haro 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) (specificallyapproving the Commission's Pasula-Robinette test). See also NLRB 

v. Transportation Management Corporation, ~- U.S. ~~' 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. 

Protected Activity 

It seems clear that Mr. Nantz had a right to make safety or 

health complaints about the bulldozer that he was assigned to 

operate, and that these complaints are protected activities which 

may not be the motivation by mine management for any adverse 

personnel action against him. Secretary of Labor ex rel Fasula 

v. Consolidation Coal Co., 2 FMSHRC 2786 (October 1980), rev'd on 

other grounds, sub nom. Consolidation Coal Co. v. Marshall, 

663 F.2d 1211 (3d Cir. 1981), and Secretary of Labor ex rel. 

Robinette Vo United Castle Coal Co.; 3 FMSHRC 803 (April 1981). 

Safety complaints to mine management or to a foreman constitutes 

protected activity1 Baker Vo Interior Board of Mine Operations 

Appealsv 595 Fo2d 746 (DoCo Ciro 1978) t Chacon, supra. The 

miner 0 s safety complaints must be made with reasonable promptness 

and in good faithu and be communicated to mine management, MSHA 

ex rel. Michael Jo Dunmire and James Estle v. Northern Coal 

Company, 4 FMSHRC 126 (February 1982); Miller Vo FMSHRC, 

687 Fo2d 194 195-96 (7th Ciro 1982}; Sammons Vo Mine Services ou 6 FMSHRC 1391 (June 1984)0 

Complainant 0 s Safety Complaint Communication to the Respondent 

In a number of safety related ovwork refusal n cases, it has 

been consistently held that a miner has a duty and obligation to 

communicate any saf ~ty complaints to mine management in order to 

afford the operator with a reasonable opportunity to address 

them. See: Secretary ex rel. Paul Sedgmer et al. v. 

Consolidation Coal Company, 8 FMSHRC 303 (March 1986); Miller v. 

FMSHRC, 687 F.2d 194 (7th Cir. 1982); Simpson v. Kenta Energy, 

1884 
Inc., 8 FMSHRC 1034, 1038-40 (July 1986:; Dillard Smith v. Reco, 

Inc., 9 FMSHRC 992 (June 1987); Sammons v. Mine Services Co., 

6 FMSHRC 1391 (June 1984); Charles Conatser v. Red Flame Coal 

company, Inc., 11 FMSHRC 12 (January 1989), review dismissed Per 

curiam by agreement of the parties, July 12, 1989, U.S. Court of 

Appeals for the District of Columbia Circuit, No. 89-1097. 

Mr. Nantz testified that during the time Mr. Farley served 

as his foreman, he complained to Mr. Farley at least two or three 

times about the broken window and the dust and that Mr. Farley 

assured him that it would be repaired (Tr. 18). Mr. Farley was 

aware that the dozer had been damaged a day or two before he left 

the job to take another assignment, but he denied that Mr. Nantz 

ever complained to him about the broken window or the dusty 

conditions. Mr. Farley also denied that Mr. Nantz operated the 

dozer with the rear window completely out during the two days 

immediately following the damage to the dozer. Mr. Farley stated 

that he (Farley) operated the dozer for these two days before he 

left the job, and although he responded 11 no11 to the question "was 

the glass completely out" (Tr. 234), he went on to explain that 

"there was one little glass on the side that was there, but the 

big glass in the back was still out" (Tr. 234). In response to a 

question concerning the damage sustained by the dozer, Mr. Farley 

stated "Bent the side of the cab, just a little bit in, and 

knocked that one glass out" (Tr. 234). He later testified that 

the side window was knocked out, but "the whole back window was 

still there. Just might have been a little gap in one corner of 

it, where the cab was bent" (Tr. 237). 

I find Mr. Farley's testimony concerning the condition of 

the dozer back window after the collision with the truck to be 

contradictory. Mr. Nantz 1 s testimony that the back window was 

completelv knocked out by the collision is consistent with the 

·testimony- he gave when his prehearing deposition was taken 

on June 15 1992. He then testified that 91 I noticed my window 

gonein and that the window area nwas all open; just gougey glass 

all around the back where the truck had splattered it when it run 

into the dozer", and he drew a diagram of the missing back window 

area and explained it further (Deposition Tr. 22-25; Exhibit #1). 

All of the other hearing witnesses who knew about the window 

damageu the exception of Mr. Farley, did not contradict 

Mr. Nantz 0 s assertion that the rear window of the dozer was 

knocked out as a result of a truck backing into it. In fact, 

they confirmed it. 

Mr. Nantz further testified that after Mr. Fisher replaced 

Mr. Farley as his foreman, he complained to Mr. Fisher about the 

broken window and his dust problems "on a regular basis every 

other day or so" (Tr. 20). Mr. Nantz's complaints to Mr. Fisher 

were corroborated by Mr. Napier and Mr. Belcher, as well as 

respondent's witness James Cornett, and Mr. Fisher himself. 

Superintendent Hamilton confirmed that he was informed of 

1885 
Mr. Nantz's complaint by Mr. Fisher at the time Mr. Nantz 

initially refused to operate the dozer. 

I conclude and find that Mr. Nantz timely communicated his 

safety complaints to mine management and specifically informed 

management of his health and safety concerns with respect to the 

hazardous and dusty working conditions caused by the missing rear 

window of the dozer which he was assigned to operate, and that 

management had a reasonable opportunity to address these concerns 

and take the necessary corrective action. I further conclude and 

find that Mr. Nantz's safety and health complaint communications 

to management met the requirements enunciated by the Commission 

in Secretary on behalf of Dunmire and Estle v. Northern Coal Co., 

4 FMSHRC 126 (February 1982); Secretary ex rel John Cooley v. 

Ottawas Silica Company, 6 FMSHRC 516 (March 1984); Gilbert v. 

Sandy Fork Mining Company, supra; Sammons v. Mine Services Co. 

6 FMSHRC 1391 (June 1984) . 

The Complainant's Work Refusal 

.. ·~·· 

When a miner has expressed a reasonable, good faith fear of 

a safety or health hazard, and had communicated this to mine 

management, such as a foreman, management has a duty and 

obligation to address the perceived hazard or safety concern in a 

manner sufficient to reasonably quell his fears, or to correct or 

eliminate the hazard. Secretary v. River Hurricane Coal Co., 

5 FMSHRC 1529, 1534 (September 1983); Gilbert v. Sandy Fork 

Mining Company, 12 FMSHRC 177 (February 1990), on remand from 

Gilbert v. FMSHRC, 866 F.2d 1433 (D.C. Cir. 1989), rev'g Gilbert 

v. Sandy Fork Mining Co., 9 FMSHRC 1327 (1987). 

The focus in work refusal cases is the complaining miner's 

belief that a hazard exists, and the critical issue is whether or 

not that bel held in good faith and a reasonable one" 

Secretary ex relo Bush Vo Union Carbide Corp"v 5 FMSHRC 993, 997 

(June 1983)~ Miller Vo FMSHRC, 687 fo2D 1984 (7th Ciro 1982). In 

analyzing whether a miner 1 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 

t.hat cm actual hazard existed. Secretary ex rel" bush v" Union 

Carbide Corp" 5 FMSHRC 993, 997-98 (June 1983)' Secretary ex rel. 

Pratt v. River Hurricane Coal Co. 5 FMSHRC 1529r 1533-34 

(September 1983) ~ Haro Ve Magma Cooper Co. 4 FMSHRC 1935, 1944 

(November 1982) v Robinette, suprav 3 FMSHRC at 810" Secretary on 

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

(July 1986). The Commission has also explained that "good faith 

belief simply means honest belief that a hazard existsn. 

Robinette, supra at 810. 

The respondent maintains that the Secretary has failed to 

prove that it caused a work condition which presented an 

intolerable hazard to Mr. Nantz's health. The respondent asserts 

1886 
that it repaired the dozer window in a much shorter period of 

time than claimed by Mr. Nantz at the hearing where he testified 

that he had to operate the dozer without the back window "going 

into the fourth week". The respondent asserts that this 

testimony was virtually parroted, "going into the fourth week", 

by Mr. Nantz's witnesses, but that when pinned down to the 

actual sequence of events, Mr. Nantz agreed that in an earlier 

deposition he had testified that the window was only out two or 

three days before foreman Farley left the job, and at the hearing 

he gave vague testimony that the window had been broken over a 

period ranging from two to seven days. 

The respondent further maintains that it has established 

through the testimony of foreman Farley and company business 

records that it was two days, Thursday and Friday, April 4 and 5, 

1991, that the window was out before Mr. Farley left the job,and 

that foreman Fisher's first day on the job was Monday, April 8, 

1991. Respondent points out that it is undisputed that Mr. Nantz 

did not work on Friday, April 5, 1991, and that there was no work 

on the weekend of April 6 anct13, 1991. Under these 

circumstances, the respondent concludes that Mr. Nantz had to 

operate the dozer without the back window seven (7) working 

days, Thursday, April 4, 1991, Monday through Friday, April 8 

through 12, 1991, and Monday, April 15, 1991, prior to his 

leaving work on April 16, 1991. Respondent further argues that 

it is undisputed that the dozer back window was replaced during 

the period Thursday, April 18, 1991, through Sunday, April 21, 

1991, during which time the job was shut down. Under these 

circumstances, respondent concludes that Mr. Nantz would have 

only had to work two more days, Tuesday and Wednesday, April 16 

and 17, 1991, with the back window out had he chosen not to leave 

the job. 

respondent asserts that the broken dozer window was 

repaired within ten working days of the accident which caused the 

damage 1 and that its witnesses explained that its mechanics had 

to do certain frame work so that a new window would fit, that 

people from a glass company put the window in, and that this work 

needed to be done on a weekend when the dozer was not operating. 

The respondent argues that it attempted to alleviate the 

dust problem by offering to put a clear plastic material over the 

exposed back window to reduce the amount of dust, took measures 

to keep the fill area where Mr. Nantz worked watered to keep the 

dust down, and had dust masks available for Mr. Nantz's use while 

operating the dozer. Respondent also suggested that Mr. Nantz 

could have avoided the dust by availing himself of alternate 

methods of operating the dozer to reduce the dust exposure. 

However, since Mr. Nantz refused the offer of plastic covering, 

chose not to wear a face mask, and made no attempts to avoid the 

dust by maneuvering the dozer in different directions away from 

the dust, or turning on his air conditioning blowers, the 

1887 
respondent concludes that his refusal to operate the machine was 

unreasonable and lacking in good faith, and that any health 

hazard that may have been caused to him as a result of operating 

the dozer without the back window intact was the result of his 

own stubborn refusal to attempt to do anything to alleviate the 

problem. 

The respondent is correct in its assertion that Mr. Nantz•s 

testimony concerning the duration of the missing back window was 

equivocal. However, having viewed Mr. Nantz during the course of 

the hearing, I find him to be a credible witness and I have no 

reason to believe that he lied or deliberately attempted to 

misstate the facts. His deposition testimony reflects that 

Mr. Nantz has a ninth grade education, and he candidly stated 

during the hearing that he did not document the specific number 

of days the dozer window was out and that he was not positive 

about the number of days which passed from the day the damage 

occurred and the last day he worked. 

The respondent's assertion that Mr. Nantz's witnesses 

"parroted11 his "going into the fourth week" testimony" is not 

well taken. The only witness who made that statement was 

Mr. Farler (Tr. 115). Mr. Napier testified that "a couple of 

weeks or more°' passed from the time the window was broken out 

until the last day Mr. Nantz was on the job (Tr. 98). 

Mr. Belcher testified that he did not know when the window was 

knocked out, and was not sure of the elapsed time, but estimated 

it at "around three weeks or something" (Tr. 130). Mr. Moore did 

not know when the window was knocked out, had no idea how long it 

was out before it was repaired, and stated that "it had been out 

for awhile" (Tr. 145). 

Superintendent Henderson did not believe the window was 

broken for four weeksf but he confirmed that he did not know how 

long it had been broken (TrQ 219)0 Mr. Henderson confirmed that 

he was not involved in the repair of the window, but he explained 

that the first shift foreman or mechanic would have made the 

repairs, and the repairs would have entailed the straightening 

and welding of the frame to keep the window from falling out 

(Tro 198) o Foreman Farler did not know when the window was 

repairedu and as stated previously, he testified that it was 

damaged a couple of days before he left the job (Tr. 241). 

Foreman Fisheru who reported to the job after the window was 

damaged, testified that he had no mechanic assigned to his second 

shift for repairs, but that he spoke to the first shift foreman 

about fixing the window two or three times, and the foreman told 

him each time that "We're going to fix it, it's going to be 

fixed". Mr. Fisher could not remember whether any repair work 

was being done on the window frame during this time. He 

confirmed that the mine was on holiday from Thursday, April 18, 

through Sunday, April 21, 1991, and that the window was replaced 

1888 
on Thursday and Friday, April 18 and 19, and that it was in when 

work resumed on Monday, April 22, 1991 (Tr. 272, 282, 284). 

First shift mechanic Johnnie Moore testified that "a week or 

so" after Mr. Nantz left the job, his shift foreman {Brock) 

instructed him to assist "the window people" in installing a new 

dozer window, and that he and a welder repaired the window frame 

which had not previously been straightened. Mr. Moore stated 

that it took "an hour or two" to do the repair work, and an hour 

to install the window. 

After careful consideration of all of the testimony and 

evidence, I conclude and find that approximately 13 or 14 days 

passed form the time the dozer window in question was damaged 

when a truck backed into it on or about April 3 or 4, 1991, until 

Mr. Nantz left the job site on Tuesday, April 16, and again on 

Wednesday, April 17, 1991, and that approximately 15 days passed 

from the time the window was initially damaged until it was 

ultimately repaired on or about April 18 or 19, 1991. I further 

conclude and find that during all of this time, little or no work 

was done to repair the dozer-window frame or to replace the 

missing window. 

Although the respondent's assertion that its mechanics had 

to do certain frame work so that a new window would fit and that 

people from a glass company put the window in is true, I am not 

convinced that this work needed to be done on a weekend when the 

dozer was not operating. As a matter of fact, the mine was down 

for the weekends of April 6 and 13, 1991, and no work was done to 

repair the broken window. Under the circumstances, and given the 

fact that there is no evidence of any repair work to the dozer 

during at least two successive weekend periods when the mine was 

down and the dozer was not operating, I find the respondent's 

assertion that it could only repair the dozer on a weekend when 

the dozer was not operating to be less than credible. Furtheru 

the respondent~s suggestion that the repair work necessary to 

replace the missing window was some monumental task is also 

lacking in credibility, and the unrebutted and credible testimony 

of the mechanic who did the work establishes that the repairs 

were made and the window was replaced in three hours during a 

normal working shifto 

Respondent asserts that all of the other witnesses who were 

questioned concerning whether, in their opinion, operating this 

bulldozer without the back window for a limited period of time, 

even up to a month, would constitute a hazard to a miner 1 s 

health, unanimously said "no." Respondent suggests that this is 

relevant to the issue and good faith of Mr. Nantz's belief to the 

contrary. Respondent further submits that it is also relevant 

that the dozer operator on the first shift did not complain or 

see fit to quit, and that Mr. Doolin, who operated the dozer on 

April 16 and 17, 1991, before it was repaired, testified that he 

1889 
did not have any problems from the dust because he manuevered the 

dozer to avoid the dust. 

I have carefully reviewed the testimony of all of the 

witnesses in this case, including the five witnesses called by 

the respondent (superintendent Hamilton, foremen Farley and 

Fisher, and dozer operators Cornett and Doolin). Except for 

Mr. Hamilton and Mr. Farley, none of the other witnesses called 

by the respondent, or the four witnesses called for Mr. Nantz, 

were asked or testified about their opinion concerning the 

operation of a dozer in a dusty environment with the back window 

missing. 

su.perintendent Hamil ton was of the opinion that a "short 

term, four to six weeks" exposure to dust while operating a dozer 

with a missing back window would not cause him a health problem 

(Tr. 203-204). Foreman Farley did not believe that he would 

suffer serious consequences from operating a dozer in heavy dust 

for a period of one month, and although he stated that he would 

not object to doing so, he indicated that he would not like it 

(Tr. 244-245). Further, although Mr. Farley stated that he has 

operated a dozer with an open cab in dust in the past, the 

confirmed that he had never operated a dozer with a closed cab 

with the back window broken out (Tr. 246). 

The respondent's reliance upon the opinions of Mr. Hamilton 

and Mr. Fisher in support of its assertion that it is relevant to 

the question of Mr. Nantz's reasonable good faith refusal to 

operate the dozer is rejected. The critical question here is 

whether or not Mr. Nantz reasonably and honestly in good faith 

believed that the operation of a dozer with a missing back window 

would be injurious and hazardous to his health and safety because 

the dust to which he was subjected and exposed to because of 

missing windowff and whether or not Mr. Nantz reasonably and 

good faith believed that he would be required to operate the 

dozer with the missing back window at the time of his initial 

work refusal on Tuesday, April 16, 1991, and his subsequent work 

refusal of Wednesday, April 17, 1991. 

The respondent"s suggestions that the use of plastic 

material routinely used to keep out cold and dust in dozers 

with open cabs, that its use does not impair visibility 1 and that 

Mr. Nantzis testimony that it does impair his visibility was 

contradicted by virtually every witness who was questioned about 

it, must be viewed in context, and I have given it little weight. 

Except for Mro Nantz, none of the four witnesses called by the 

Secretary, which included two endloader operators, a mechanic, 

and an equipment serviceman, testified about the use of plastic 

coverings. Dozer operator Cornett, called by the respondent as a 

witness, said nothing about the use of plastic coverings or 

whether or not it might impair his ·visibility. 

1890 
The only witnesses who testified about the use of the 

plastic material were superintendent Hamilton, and foremen Farley 

and Fisher. Mr. Hamilton simply stated that plastic material has 

been placed Q.D. the back window of lifts for protection, and he 

did not believe that it decreased visibility at night because 

extra illumination is provided in the shot and fill areas 

(Tr. 207-208). 

Foreman Farley testified that the has used plastic c~verings 

on open cab equipment that he has operated "to keep the air 

knocked off" in the winter time in order to stay warm, and that 

his was a common practice for open cab equipment operators 

(Tr. 247). Mr. Farley conceded that Mr. Nantz would have a dust 

problem if the front window of his dozer were missing 

(Tr. 256-257). 

Foreman Fisher testified that he used plastic covering while 

operating open cab dozers during the winter time, and that the 

plastic was wrapped around the opened cab to keep the heat 

generated by the radiator inside the cab. When asked if the 

plastic would keep the dust out, he responded "No, it wouldn't 

keep it out, but it would help, I mean, I never didn't even think 

about that dust really ..• if the dust got too bad I always got a 

rag or something and tie over my mouth, or nose, or get me a dust 

mask or something". Mr. Fisher did not believe that the plastic 

impeded his visibility (Tr. 265). 

There is no evidence that Mr. Nantz's foreman, or the mine 

superintendent, offered to show Mr. Nantz how to maneuver his 

dozer to avoid the dust, nor is there any evidence that the 

respondent required its personnel to use dust masks while working 

in dusty areas" Highlift operator Belcher testified that some 

drill operators use dust masks, and others do not, and that he 

does not use one because his machine has an enclosed cab . With 

respect to the use of plastic coverings for equipment with open 

cabs, I take note of the fact that the dozer that Mr. Nantz was 

assigned to operate had an enclosed cab, and I believe that it is 

was not unreasonable for Mr. Nantz to expect such a piece of 

equipment to be maintained in a serviceable condition, including 

the timely repair or replacement of a broken window that is 

obviously intended to maintain the cab area as an enclosed 

working environment. 

I am not persuaded that the use of the plastic covering was 

routinely used by the respondent as a specific preventive measure 

against dust exposure. The respondent's testimony reflects that 

plastic coverings are sometimes used by operators in the winter 

time to keep their open cab areas warm. Mr. Nantz was operating 

the dozer during the month of April and it had an enclosed cab 

area. Nor am I persuaded that the respondent's available water 

1891 
trucks adequately kept the fill area wet enough to control the 

dust generated by the trucks working in the fill area where 

Mr. Nantz was required to operate the dozer with the missing rear 

window. In the final analysis, had the respondent addressed 

Mr. Nantz's safety and health complaints concerning the missing 

window and the resulting dust exposure in a more timely fashion 

by replacing the window, or taking the dozer out of service until 

it was repaired, there would be no need for makeshift coverings, 

dust masks, water trucks, or the maneuvering of the dozer to 

avoid the dust. 

I conclude and find that the respondent failed to reasonably 

and timely respond to Mr. Nantz's communicated safety and health 

complaints with respect to the hazardous dust conditions to which 

he was exposed as a result of the missing rear window of the 

dozer that he was assigned to operate. Although the evidence 

clearly establishes that Mr. Nantz communicated his complaints to 

foreman Fisher, and that Mr. Fisher assured him that the window 

would be repaired each time Mr. Nantz complained about it, 

Mr. Fisher reacted by simply speaking to the day shift foreman 

two or three times about fixing the window. Rather than insuring 

that repairs were made timely, Mr. Fisher simply accepted the day 

foreman's assurance that it would be done. 

In my view, since Mr. Fisher was Mr. Nantz's first-line 

supervisor, he had a duty and obligation, as part of his 

supervisory and managerial responsibilities, to respond in a 

more positive manner by insuring that the window was promptly 

repaired, or by tagging or removing the dozer from service until 

it was repaired. Instead of doing this, Mr. Fisher played a 

passive role, even though the means of addressing Mr. Nantz's 

health and safety concerns were directly within his supervisory 

and managerial controlo Under the circumstances, I conclude and 

find shifting the burden to Mr. Nantz by expecting him to 

protect himself from the dust hazards to which I believe he was 

exposed to, asking him to accept a makeshift plastic covering, 

expecting him to shake the dust from the covering with his hands 

while at the controls of his dozer, using his air conditioning 

blower wearing a dust mask, or expecting him to maneuver his 

dozer different directions to avoid the dust, were 

unacceptable and unreasonable responses to Mr. Nantz is safety and 

health concerns. 

Although the respondent may not reasonably be expected to 

provide an absolutely clean working environment free of any dust, 

on the facts of this case where it seems clear to me that the 

source of the dusty conditions which Mr. Nantz had to endure 

while operating the dozer with a missing back window, was within 

the direct control of the operator, and were easily correctable, 

I cannot conclude that Mr. Nantz acted unreasonably when he 

refused to operate the dozer until the window was replaced. In 

view of all of the foregoing, and after careful consideration of 

1892 
all of the credible testimony and evidence in this case, I 

conclude and find that Mr. Nantz's refusal to operate the dozer 

with the missing back window on the two final days of his 

employment with the respondent was reasonable, and that his 

decision in this regard was prompted by his safety and health 

concerns related to the hazardous exposure to dust resulting from 

the missing window, and a reasonable good faith belief that to 

continue to operate the dozer in the condition that it was in 

would place him at risk. I further conclude and find that 

Mr. Nantz's work refusals constituted protected work refusals 

pursuant to the Act. 

The Alternate Work Refusal 

The respondent argues that inasmuch as Mr. Nantz refused 

Mr. Fishervs offer to operate a loader in lieu of the dozer with 

the missing back window on the evening of April 16, 1991, and 

since Mr. Nantz did not contend that he was unable to operate the 

loader, or show that the loader was not safe to operate, his 

refusal to operate the loader was unreasonable. The respondent 

concludes that Mr. Nantz left work after refusing to operate the 

loader because he believed that he would have to go back to 

operating the dozer. 

In support of its position, the respondent emphasizes the 

fact that both Mr. Fisher and Mr. Hamilton testified that had 

Mr. Nantz agreed to operate the loader he would not have been let 

go. The respondent points out that Mr. Nantz refused to operate 

the loader on April 16, 1991, and that when he returned to the 

mine on April 17, 1991, he simply came back to get his paycheck 

and find out if the dozer window had been repaired and to leave 

his phone number so that Mr. Fisher could call him when it was 

repaired. The respondent asserts that Mr. Nantz made no offer 

whatsoever to do other work that day and simply the job 

site. 

Based on Mr. Nantz's refusal to operate the loader on 

April 16, 1991, and his failure to report for work on April 17, 

1991 0 showing up only to find out if the dozer had been repaired 

and to leave his phone number, the respondent concludes that it 

had sufficient reason not to call Mr. Nantz back to work after 

the window was repaired and to consider that he had voluntarily 

quit his job" The respondent suggests that since there were two 

incidents involved in this case, namely 1 Mr. Nantz 1 s refusal to 

operate his own dozer, and his refusal to operate the loader 

offered to him, there may have been a mixed motive situation 

presented in this case. 

The respondent submits that it has met its burden of proving 

that its failure to call Mr. Nantz back to work was motivated by 

his total lack of willingness to perform any job that was 

requested of him, not just the running of his own dozer. The 

1893 
respondent concludes that it had a legitimate interest in having 

its operations continue, and that it was not reasonable for 

Mr. Nantz to refuse to operate the loader so long as it was 

available to him so that at least the operations could continue 

rather than refusing to do so and walking off the job. In these 

circumstances, the respondent further concludes that its refusal 

to call Mr. Nantz back to work was reasonable and did not 

constitute a discharge on the basis of protected activity. 

I take note of the fact that the Secretary's complaint in 

this case does not allege that the respondent's failure to call 

Mr. Nantz back to work after the dozer window was repaired 

constituted another act of discrimination, and the Secretary's 

posthearing brief does not address this issue. 

Mr. Nantz testified that when he reported for work on 

April 16, 1991, Mr. Fisher confirmed that the dozer window had 

not been repaired, and he then informed Mr. Fisher that he did 

not want to operate the dozer, but would be willing to "run the 

nine(9) or go out here somewhere and reclaim, out of the dust, 

and let someone else run the fill til I get my window in. Or, 

you know, run the sweeper broom or whatever else you got nobody 

else on so I could run to where I won't have to eat that dust 

another night, til he got the window in" (Tr. 25). 

Mr. Nantz stated that Mr. Fisher informed him that he had no 

other dozers for him to operate, but there was "a chance" that he 

could run the loader for an hour or an hour and a half, but that 

he would then be sent back to the fill to operate the dozer since 

the loader may be needed in the shot area. Mr. Nantz stated that 

he did not want to run the loader because he believed that the 

regular loader operator would get his loader back in an hour and 

half to start loading coal, ·and he (Nantz} believed that he would 

have to go back on the dozer and continue operating it with the 

missing window in the dust for the rest of the shift (Tro 84) o 

Mr. Nantz testified further that when he next returned to 

the mine on April 17, 1991, Mr. Fisher again confirmed that the 

dozer window had not been repaired, and told him that he could 00 either run it like it is or go to the house. You're fired if 

you don 1 t run it 10 (Tro 26-27) o Mro Nantz then picked up his 

paycheck and went homeo 

Mro Napier and Mr. Belcher, both of whom where present on 

the same work shift with Mr. Nantz on the first evening that 

Mro Nantz refused to operate the dozer with the missing window, 

both testified that they heard Mr. Nantz offer to run any other 

available equipment so that he would not have to work in the dust 

with his dozer, and that Mr. Fisher told Mr. Nantz that the had 

nothing available for him to do that evening (Tr. 101, 133-134, 

138) . 

1894 
Mr. Napier had no particular knowledge of the events of the 

second evening when Mr. Nantz again refused to operate the 

loader, and he confirmed that he never heard Mr. Fisher offer to 

let Mr. Nantz run the 980 loader (Tr. 105). Mr. Belcher, the 

regular loader operator, testified about a conversation he heard 

between Mr. Fisher and Mr. Nantz which he believed took place on 

the first evening in question, but was not sure. Mr. Belcher 

stated that Mr. Fisher offered to let Mr. Nantz run the loader 

"for awhile", but he did not know if Mr. Nantz informed 

Mr. Fisher that he did not want to run the loader, or could not 

run it. Mr. Belcher explained that he ran the loader for a full 

10-hour shift most of the time, but that on the evening in 

question he was going to fill the water truck with water so that 

Mr. Fisher could water the fill area, and that he would have 

resumed cleaning coal in the pit later that evening with the 

loader for the remainder of the shift. Mr. Belcher estimated 

that he would not need to use the loader for "a couple of hours", 

but that after he finished with the water truck he would have to 

use the loader again (Tr. 136-140). 

Mr. Hamilton testified 'that when Mr. Fisher called him the 

first evening to inform him that Mr. Nantz did not want to run 

his dozer, Mr. Fisher told him that he had offered the use of the 

loader to Mr. Nantz, but that Mr. Nantz wanted to run his dozer 

and have it repaired and that he did not want to run any other 

equipment (Tr. 200). 

Mr. Cornett, who was also present during the Nantz-Fisher 

conversation on the first evening, confirmed that Mr. Fisher 

offered the use of the loader to Mr. Nantz, but Mr. Cornett was 

nor sure whether Mr. Nantz told Mr. Fisher that he would not, or 

could notf operate the loader (Tr. 225-228). 

Mro Fisher testified that on the first evening of April 16u 

199 v he offered let Mr" Nantz operate the ~80 loaderu and he 

informed Mro Nantz that he intended to use the water truck to 

settle the dust in the fill area, and that if the loader was 

needed later that evening for cleaning coal, Mr. Nantz could then 

return to operating his dozer. Mr. Fisher explained that he told 

Mro Nantz that he would let him run the loader all night there 

was no coal be cleaned with the loader 1 but that if he needed ~Ou he would put Mr. Nantz back on his dozer (Tr. 283). 

Mr. Fisher stated that Mr. Nantz 1 s response was "No, I'm not 

running the 980v I im going home 1u and told him to have the glass 

put back the dozer and to call him when this was done, and 

that he would then return to work (Tr. 267-268)0 

Mr. Fisher believed that Mr. Nantz was qualified to operate 

the loader and Mr. Nantz never told him otherwise. Mr. Fisher 

also believed that no coal would have been cleaned on the evening 

of April 16, 1991, and that there was a possibility that 

Mr. Nantz would have operated the loader for most of the shift 

1895 
had he accepted his offer. Although Mr. Nantz would have been 

working in the same fill area with the loader, Mr. Fisher pointed 

out that the loader had all of its windows intact. Mr. Fisher 

confirmed that he did not consider assigning Mr. Nantz to drive 

the water truck, and leaving Mr. Belcher on the loader, because 

he did not know whether Mr. Nantz could drive the truck, but he 

admitted that he did not ask Mr. Nantz whether he could operate 

the truck (Tr. 267-269). 

With regard to the events of the second evening of April 17, 

1991, Mr. Fisher testified that after he informed Mr. Nantz that 

his dozer window had not been replaced, Mr. Nantz informed him 

that he was going home and he asked him to call when the window 

was replaced and that he would return to work at that time. 

Mr. Fisher confirmed that he informed Mr. Nantz that he needed to 

run the dozer and that if he (Nantz) did not run it, he (Fisher) 

would 11 get somebody up here that will" (Tr. 271). There ii:? no 

evidence that Mr. Fisher made any further offers of alternate 

work on this evening, nor is there any evidence that Mr. Nantz 

asked for alternate work. 

After careful review and consideration of all of the 

testimony and evidence concerning the alternate work issue, I 

conclude and find that the respondent's position is not well 

taken and it is rejected. While it is true that Mr. Fisher 

offered to allow Mr. Nantz the use of a loader which had all of 

its windows intact while continuing to work in the dusty fill 

area where Mr. Nantz had previously been operating his dozer with 

the missing back window, I am not persuaded that this offer of 

alternate work, which in the circumstances then presented was 

equivocal and conditional, constituted an adequate and reasonable 

response to Mro Nantz's complaints about the dust to which he was exposed~ nor am I convinced that the offer sufficiently quelled 

Mro Nantz's concerns about his hazardous exposure to dust. 

I conclude and find that Mr. Nantz 9 s refusal to operate the 

loader was based on a reasonably founded belief that after a 

brief stint on the loader, he would soon find himself back on the 

dozer with the missing window operating in the dust again. 

Mr. Nantz testified that Mr. Fisher informed him that nthere was 

a chance 1v that he could operate for an hour or so, but that he 

would have to go back to the dozer because the loader would be 

needed elsewhere. Mr. Belcher, the regular loader operator, 

testified that he heard Mr. Fisher offer Mr. Nantz the use of the 

loader u

1 for awhile 11 , and Mr. Belcher estimated that after two 

hours, he would again need the loader to resume loading coal in 

the pit area. 

Mr. Fisher initially testified that he did not believe that 

coal would have been cleaned on the evening of April 16, 1991, 

and that there was a possibility that Mr. Nantz could have 

operated the loader for most of the shift. He also testified 

1896 
that he informed Mr. Nantz that if the loader were needed to 

clean coal, he (Nantz) would have to resume operating the dozer 

again (Tr. 267-268). Mr. Fisher reiterated this testimony when 

he later testified that he would have let Mr. Nantz run the 

loader all night if he did not have coal to clean, and .if he 

needed to, he would have returned Mr. Nantz back to his dozer 

later in the shift (Tr. 283). 

I find Mr. Fisher's testimony to be rather equivocal and 

lacking in credibility, and it is contradicted by the credible 

testimony of loader operator Belcher who seemed confident that he 

would only give up his loader for approximately two hours before 

resuming his work in the pit cleaning coal with the loader. It 

seems to me that if Mr. Fisher truly believed that no coal would 

be cleaned during the shift in question, thereby freeing up the 

loader for use by Mr. Nantz for the entire shift, he would have 

made this clear to Mr. Nantz, particularly since Mr. Nantz had 

complained to him about the dust and was about to leave the job 

site and interrupt production. Instead, Mr. Fisher qualified his 

offer of the use of the loade;:by making it conditional and 

placing Mr. Nantz in the position of not knowing how long he 

might be on the loader before again being required to operate the 

dozer in a dusty work environment. Under the circumstances, I 

conclude and find that Mr. Nantz was not unreasonable in refusing 

to operate the loader, and the fact that he did does not render 

his refusal unprotected activity. 

The Complainant's Termination 

Foreman Fisher testified that after he informed superintendent 

Hamilton on April 16, 1991, that Mr. Nantz refused to operate the 

dozer Mr. Hamilton instructed him "to do what you have to do", and 

commented "if they 0 re going to work, they're going to work, o o •• 

if they ainat, we're going to have to get someone that will work11 

(Tr. 269-270)0 Mro Fisher confirmed that when Mro Nantz returned to 

the mine on April 17, 1991, and found that he dozer was not 

repaired, he informed him that he would not operate the dozer in 

that condition. Mr. Fisher stated that he then told Mr. Nantz that 

if he did not want to run the dozer "I would get somebody up here 

that wi11un, and that uvr have to take it you~re quitting your job, 

and I 0 11 have to get somebody in here in the dozer 11 (Tr. 271, 286)0 

Mr. Fisher further confirmed that he immediately hired a replacement 

dozer operator that same evening and that the decision to do so was 

his (Tro 271v 286). 

Mine Superintendent Hamilton confirmed that after Mr. Fisher 

called him and informed him that Mr. Nantz had refused to operate 

the dozer and was going home, he told Mr. Fisher that if Mr. Nantz 

would not operate the dozer and went home, "we would have to get 

someone else" (Tr. 200). Mr. Hamilton indicated that Mr. Nantz 

would not have been "fired", "replaced" or "let go" if he had 

remained at work and operated the 980 loader (Tr. 201). 

189 7 
Mr. Nantz testified that when he returned to the mine to pick 

up his pay check the day after he initially refused to operate the 

dozer and went home, foreman Fisher again confirmed that the window 

had not been repaired and instructed him to "either run it like it 

is or go to the house. You're fired if you don't run it" 

(Tr. 27-28). I find Mr. Nantz's testimony that Mr. Fisher gave him 

an option of operating the dozer with the missing rear window or 

"going to the house" to be credible and I believe that this is what 

Mr. Fisher told him. As noted by the Commission in Charles Conatser 

v. Red Flame Coal Company, Inc., 11 FMSHRC 12, 14 (January 1989), 

the phrase "go to the house" is synonymous with a discharge in the 

mining industry. See: Moses v. Whitley Development Corp., 4 FMSHRC 

1475, 1479 (August 1982), aff'd sub nom. Whitley Development Corp. 

v. FMSHRC, No. 84-3375, slip op. at 2 (6th Cir.u July 31, 1985); 

Secretary on behalf of Keene v. S&M Coal Co., 10 FMSHRC 1145, 1147 

n. 5 (September 1988). 

A constructive discharge occurs whenever a miner engaged in 

protected activity can show that an operator created or maintained 

conditions so intolerable th~~ a reasonable miner would have felt 

compelled to resign. Simpson v. FMSHRC, 842 F.2d 453 (D.C. Cir. 

1988) at 461-463. Whether such conditions are so intolerable is a 

question for the trier of fact. Supra, at 463. See also: Stenson 

Begay b. Liggett Industries, Inc., 11 FMSHRC 887 (May 1989), aff'd, 

Liggett Ind. v. FMSHRC, 923 F.2d 150 (10th Cir. 1991) of Secretary 

ex rel. Harry Ramsey v. Industrial Constructors. Inc., 11 FMSHRC 

1585 (August 1989), rev'd, 12 FMSHRC 1587 (August 1990). 

I conclude and find that the credible and unrebutted testimony 

of Mr. Nantz, corroborated by the co-workers who worked with him on 

the same shift, supports his contention that during the time he was 

assigned to operate the dozer with the missing rear window, he was 

exposed to hazardous dust conditions which made it difficult for him 

to clearly see the trucks operating in the fill area where he was 

pushing fill with the dozerv and more significantly, caused him 

personal problems, including choking and breathing problems 

resulting from the dust coming into his cab area through the missing 

rear window. I further conclude and find that the adverse health 

and safety hazards caused by the dusty conditions as described by 

Mr. Nantzv and which stand unrebutted by the respondent 9 can 

reasonably be characterized as ii intolerable". In these 

circumstancesv I further conclude and find that Mr. Nantz acted 

reasonably when he left the job site on April 15u 1991u after 

refusing to operate the dozeru and again on April 16u 1991. In both 

instancesu the respondent had failed to take timely action to repair 

the dozer, or to take it out of service so that it could be repaired 

promptly, and foreman Fisher left Mr. Nantz with little hope of 

reasonably addressing his safety and health complaints when he gave 

him the option of operating the dozer with the missing window or 

going home. 

1898 
Mr. Hamilton and Mr. Fisher maintained that Mr. Nantz quit his 

job and that he was not fired. However, they also asserted that 

Mr. Nantz would not have been let go had he opted to stay at work 

and operate the loader offered by Mr. Fisher. I fail to see the 

distinction between a "let go11 and a "firing". On the facts of this 

case, it seems rather obvious to me that after speaking with 

Mr. Hamilton on April 16, 1991, after Mr. Nantz refused to opera~e 

the dozer and went home, Mr. Fisher had the authority "to do what he 

had to do" if Mr. Nantz continued to refuse to operate the dozer 9 

and that he was prepared to summarily fire Mr. Nantz if he refused 

to operate the dozer with the missing rear window. 

I conclude and find that notwithstanding the offer of the 

loader by Mr. Fisher to Mr. Nantz, in the circumstances then 

presented, including the failure by the respondent to reasonably 

respond to Mr. Nantz's prior complains by seeing to it that the 

window was promptly replaced, a relatively simple matter which would 

have corrected the dust conditions, Mr. Nantz acted reasonably when 

he decided to leave the job site after refusing to operate the dozer 

or the loader. I further conclude and find that Mr. Nantz had every 

reason to believe that if he 'had stayed on the job operating the 

loader for an hour or two, he would soon find himself back on the 

dozer for the rest of the shift working in unhealthy and hazardous 

dust conditions with no reasonable expectation that management would 

eliminate these conditions. Under all of these circumstances, I 

conclude and find that Mr. Nantz•s departure from the job site was 

reasonable and justified and constituted a constructive discharge as 

a result of protective work refusals. Accordingly, I further 

conclude and find that Mr. Nantz was unlawfully discriminated 

against in violation of section 105(c) of the Act, and the complaint 

of discrimination IS SUSTAINED. 

Civil Penalty Assessment 

z·c seems clear to me from the statutory language found in 

section 105(c) 3 of the Act that violations of the discrimination 

prohibitions found in section 105(c) (1) are subject to the civil 

penalty assessment sanctions pursuant to section llO(a), and the 

respondent 0 s arguments to the contrary are rejectedo Further, 

respondentijs assertions at pages 42-43 of posthearing brief that 

this action been brought by the Commission and that the 

Commission failed to advanced any evidence whatsoever as to the 

appropriateness of any civil penalty assessment are erroneous. This 

matter has been brought by the secretary, and the Commission's role 

is to consider any appeal taken by any party in response to the 

presiding judge~s adjudication of the case. 

The burden of presenting evidence to establish an appropriate 

civil penalty assessment based on the statutory criteria found in 

section llO(i) of the Act lies with the Secretary. As noted 

earlier, the presiding judge is not bound by the Secretary's 

proposed penalty assessment, nor is he bound by MSHA's regulatory 

1899 
penalty assessment criteria found in Part 100, Title 30, Code of 

Federal Regulations. Any penalty assessment made by the judge is on 

a de novo basis, taking into account the record before him and the 

statutory criteria found in section llO(i) of the Act. 

The respondent is correct in its assertion that the Secretary 

failed to present any hearing testimony or evidence in support of 

the proposed civil penalty assessment of $8,000, and the 

Secretary's brief does not address the civil penalty proposal or any 

of the criteria upon which the Secretary made the determination that 

$8,000, is an appropriate penalty assessment for the discrimination 

violation in question. The only information submitted by the 

secretary is found in Exhibit "A" of the amended complaint. That 

information includes the mine and company coal production tonnage 

for 1990 (203,536 and 856,573), the number of assessed violations 

for the 24-month period prior to the violation in question (26), the 

number of inspection days during this period (20), the number of 

violations per inspection day (1.3), and the number of previously 

assessed section 105(c) violations (None), and some meaningless and 

unexplained "points" pursuant to 30 C.F.R. § 100.3(b) and (c). 

Although MSHA special investigator Brock testified in this case, his 

testimony was mostly limited to an explanation of his backpay 

computations, and he offered no testimony or evidence concerning any 

of the civil penalty criteria. 

The respondent's suggestion that no civil penalty should be 

assessed because of Mr. Nantz's contributory negligence for failing 

to avail himself of the dust protection offers made by the 

respondent, and failing to taken precautions to avoid the dust, is 

rejected. I have previously rejected the respondent's attempts to 

shift the burden of correcting or mitigating the hazardous 

conditions which prompted the work refusal in this case to 

Mro Nantz, and it seems well settled that a mine operator 1 s 

negligence may not be imputed to the miner, and that the Mine Act 

a strict liability statute. 

Evaluation of the relevant criteria pursuant to section llO(i) 

of the Act is necessary to determine an appropriate penalty 

assessment in this case. I conclude and find that the respondent is 

a small mine operator with no prior history of section 105(c) 

violations. I further conclude and find that pursuant to the Actr a 

mine operator such as the respondent has a high duty of care to 

correct or prevent conditions or practices hazardous to the health 

or safety of its miner workforce. In this case, the evidence 

establishes that Mr. Fisher was well aware of the missing dozer back 

window, and Mr. Nantz vs complaints concerning the dust, yet he chose 

not to insure that the window was replaced promptly, or to remove 

the dozer from service. Instead, he gave Mr. Nantz the option of 

running the dozer with the missing window in the dust, or going 

home. Under the circumstances, I conclude and find that the 

violation resulted from a high degree of negligence on the part of 

foreman Fisher which is imputed to the respondent. 

1900 
In Consolidation coal Company, 8 FMSHRC 890, 895-899 (June 

1986), the Commission took note of the concern expressed by Congress 

in eliminating respiratory dust illnesses and other mine occupationrelated diseases. Although that case concerned the Secretary's 

underground respirable dust standards, I find the Commission's 

observation that prevention of occupational illnesses was among the 

fundamental purposes underlying the Mine Act to be equally 

applicable in this case. The fact that Mr. Nantz did not prevail in 

his pneumoconiosis workers• compensation claim is irrelevant to any 

gravity finding, and the actual existence of a hazard need not be 

proved by the miner to establish that he had a reasonable and good 

faith belief that a hazard existed at the time of the work refusal. 

On the facts of this case, I have accepted Mr. Nantz•s credible and 

unrebutted testimony with respect to the hazardous and unabated dust 

conditions to which he was exposed to while operating the dozer with 

the missing window, and it seems clear to me that his employment 

termination was the direct result of these conditions. Under the 

circumstances, I conclude and find that the discrimination violation 

was serious. Further, given the fact that the respondent failed to 

reasonably respond to Mr. Nantz•s dust complaints, the relatively 

extended period of time which"passed with no corrective action by 

the respondent, and the fact that repairs were made after Mr. Nantz 

was forced to leave his job, I cannot conclude that respondent acted 

in good faith to correct the conditions, or that it rapidly 

addressed Mr. Nantz's complaints. 

I find no credible evidentiary support for the Secretary's 

proposed civil penalty assessment of $8,000, particularly for a 

small mine operator with no prior history of discriminatory 

practices or violations, and the proposed penalty IS REJECTED. 

However, based on my consideration of the record before me, and my 

de novo consideration of the criteria found in section llO(i) of the 

Actv and in the absence of any showing by the respondent that any 

civil penalty assessment will adversely affect its ability to 

continue in businessu I conclude and find that a penalty assessment 

$1,000u is reasonable and appropriate in this case. 

Relief and Remedies 

The amount of compensation due Mr" Nantz is in dispute. The 

Secretary has filed a claim of backpay in the amount of $32,355.15, 

through August 12, 1992 (Exhibit C-1), and Inspector Brock testified 

with respect to the computations which are reflected in that 

document. The respondent disputes this amount of backpay and points 

out that it was computed upon Mr. Nantz 1 s purported working an 

average of 58 1/2 hours per week, whereas its evidence reflects that 

Mr. Nantz worked an average of 39.6 hours per week and that there 

was a layoff to which Mr. Nantz would have been subject from 

August 14, 1991, until October 1, 1991 (Exhibit R-5, posthearing 

brief, pgs. 39-40). 

1901 
I find Mr. Nantz's testimony concerning his normal work week 

and overtime to be somewhat confusing. He initially testified that 

he was paid $10.50 per hour straight time and $15.75 per hours 

overtime, and that he worked five and six days a week, ten hours a 

day. He confirmed that he worked 40 hours a week at the regular 

time hourly rate, and that any hours over 40 was overtime 

(Tr. 14-15). In subsequent responses to certain questions 

concerning what he may have told Inspector Brock, Mr. Nantz 

testified that he worked "five days a week, ten hours a day, and a 

lot on Saturdays, •.. maybe eight and one-half hours", and one of the 

questions asked of him inf erred that he may have worked a fifty-hour 

regular week, and overtime only on Saturdays (Tr. 63-65). 

I take note of the fact that a copy of a workers' compensation 

application executed by Mr. Nantz on June 28, 1991, and submitted by 

the respondent, contains a statement that Mr. Nantz's wage while 

employed by the respondent was 11 $10.50 an hour for 58 hours a week 

(Item M of application). The respondent has submitted additional 

information, including copies of payroll and work attendance records 

in support of its rebuttal tothe Secretary's backpay claims based 

on Inspector Brock's computations. Inspector Brock confirmed that 

Mr. Nantz's initial complaint stated that he worked 58 hours a week 

in 1991 (Tr. 172-173). Mr. Hamilton testified that 50 hours a week 

was a normal work week, and that anything over 40 hours is overtime 

(Tra 195) o 

The respondent further asserts that Mr. Nantz failed to give 

Inspector Brock any verification of the wages he had earned since 

his termination or any information concerning his unemployment 

insurance benefits he had received during this period of time. The 

parties are in agreement that any reduction of back pay compensation 

due for unemployment payments is a matter of discretion with the 

presiding judge Boich Vo FMSHRCu 719 F.2d 194 (6th Cir. 1983). 

Mro Nantz fied a logging job and employment with Clover 

Fork Mining company after his termination, as well as his 

unemployment compensation (Tr. 27-30~ 57-62)0 His deposition of 

June 15, 1982 0 also makes mention of work with L.C. logging 

(Tro 18-19)v and other losses he allegedly incurred (Tr. 60-63). 

It incumbent on the parties, not the judge 1 to evaluate this 

information and reduce it to specific time periods and dollar 

amounts 0 with credible evidentiary support 0 in support of their 

respective claims as to precisely what Mr. Nantz may be entitled to 

terms of compensation. The parties were specifically advised in 

the course of the hearing that they were expected to support and 

ogwork outug among themselves the remedial compensation due Mr. Nantz 

in the event he prevailed in this matter (Tr. 166-167). 

The record contains several exhibits concerning certain medical 

expenses incurred by Mr. Nantz pursuant to his employee insurance 

benefits provided by the respondent (Exhibits C-3 through C-15). 

During opening arguments, the Secretary's counsel asserted that 

1902 
Joint Exhibit J-2, contains the stipulated benefit amounts that 

Mr. Nantz would otherwise be entitled to under the company provided 

medical insurance policy (Exhibit J-3; Tr. 3-4). 

citing the Commission's decisions in Metric Constructors. Inc., 

4 FMSHRC 791 (April 1982 (Judge Lasher), aff'd by the Commission at 

6 FMSHRC 226 (February 1984), aff'd, Brock v. Metric Constructors, 

Inc. 766 F.2d 469 (11th Cir. 1985), and relying on Mr. Nantz's 

testimony (Tr. 27), that he waited two or three weeks after his 

termination on April 16, 1991, waiting to see if the respondent 

would call him back to work, before attempting to find other work, 

the respondent argues that at least three weeks should be deducted 

from any back pay award to Mr. Nantz for his failure to immediately 

seek other employment. 

The respondent asserts that since Mr. Nantz made no reasonable 

efforts to seek reemployment with the respondent, and that he 

0 basically refused to consider any reemployment by the respondent 

unless he was paid his back pay", he should be denied any back pay 

in this case. The respondent's suggestion that it made an "offer" 

of reemployment to Mr. Nantz is unsupported, and I find no evidence 

that this was the case. The respondent's arguments are rejected. 

ORDER 

1. The respondent IS ORDERED to reinstate Mr. Nantz to his 

former position with full backpay and benefits, with interest, 

from April 16, 1991, to the date of his reinstatement, at the 

same rate of pay, on the same shift, and with the same status 

and classification that he would now hold had he not been 

unlawfully discharged. Interest shall be computed in 

accordance with the Commission's decision in Secretary/Bailey 

Vo Arkansas-Carbonap 5 FMSHRC 2042 (December 1983)~ and at the 

adjusted prime rate announced semi-annually by the Internal 

Revenue Senrice the underpayment and overpayment to taxes" 

2" The respondent IS ORDERED to compensate Mr. Nantz for all 

legitatimate medical expenses incurred by him since the date of 

termination which would have been covered by any employee 

medical insurance carried by the respondent for his or his 

family member 0 s benefitr reimbursement or coverage of which 

would have been afforded him had he not been terminated. 

3o The respondent IS ORDERED to expunge from Mr. Nantzvs 

personnel file and/or company records all references to the 

circumstances surrounding his employment termination of 

April 16, 1991. 

4. The respondent IS ORDERED to pay a civil penalty assessment 

of $1,000, for the discriminatory violation which has been 

sustained. 

1903 
Counsel for the parties ARE ORDERED to confer with each other 

during the next fifteen (15) days with respect to the aforesaid 

remedies due Mr. Nantz, and they are encouraged to reach a mutually 

agreeable resolution or settlement of these matters, and any 

stipulations or agreements in this regard shall be filed with me 

within the next thirty (30) days. 

In the event counsel cannot agree, they are to notify me of 

this within the initial fifteen (15) day period. If there are any 

disagreements, counsel ARE FURTHER ORDERED to state their respective 

positions on those compensation issues where they cannot agree, with 

supporting arguments or specific references to the record in this 

case, and they shall submit their separate proposals, with 

supporting arguments and specific proposed dollar amounts for each 

category of relief (basic backpay, overtime, medical insurance 

claims, other claims), within thirty (30) days. If the parties 

believe that a further hearing may be required on the remedial 

aspects of this matter, they should so state. 

I retain jurisdiction in_j:.his matter until the remedial aspects 

of this case are resolved and finalized. Until those determinations 

are made, and pending a finalized dispositive order by the 

undersigned presiding judge, my decision in this matter is not 

final. In addition, payment by the respondent of the civil penalty 

assessment made by me in this matter is held in abeyance pending a 

final dispositive order. 

Distribution~ 

MaryBeth Bernui, Esq., Office of the Solicitor, U.S. Department of 

2002 Richard Jones Road, Suite B-201, Nashville, TN 32715 

f ied Mail) 

David o. Smith, Marcia A. Smith, Esqs., 100 West Center Street, P.O. 

Box 699 1 Corbinu KY 40702 (Certified Mail} 

1904 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 2 31992 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PYRAMID MINING, INCORPORATED, 

Respondent 

DECISION 

Docket No. KENT 92-136 

A. C. No. 15-11620-03527 

Docket No. KENT 92-340 

A. C. No. 15-11620-03528 

Docket No. KENT 92-341 

A. C. No. 15-11620-03529 

Hall No. 2 Mine 

Appearances: Mary Sue Taylor, Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, Tennessee, 

for Petitioner; 

Frank Stainback, Esq. Holbrook, Wible, Sullivan, 

and Mountjoy, Owensboro, Kentucky for Respondent. 

Before~ Judge Weisberger 

These consolidated cases are before me based on petitions 

for assessment of civil penalty filed by the Secretary of Labor 

(Petitioner) alleging violations of various mandatory safety 

standards" Pursuant to noticet Docket No. KENT 92-136 was 

scheduled for hearing for April lg 1992. At the hearing, the 

parties settled Citation Noo 98978400 A Partial Decision was 

subsequently issued regarding these citations. Also, further 

proceedings regarding Citation No. 3416898 were stayed pending 

the filing of a Petition for Assessment of civil penalty with 

regard to Citation No. 3416897. Subsequently, petitions were 

led regarding this citation (KENT 92-340), and a companion 

Citation No. 3416991 (KENT 92-341). The parties engaged in 

pretrial discovery, and on November 12, 1992, filed a Joint 

Motion to Approve Settlement regarding citation No. 3416898 

(KENT 92-136) as well as citation Nos. 3416897 and 3416991 

(Docket Nos. KENT 92-140 and KENT 92-141 respectively). 

Initially, in the respective Petitions for Assessment of 

Civil Penalty, Petitioner had sought civil penalties totaling 

1905 
$1,726. In the Motion, the parties seek approval of a reduction 

of penalties to $294. Based on the representatives and 

assertions set forth in the Joint Motion, I conclude that the 

proffered settlement is appropriate considering the factors set 

forth in Section llO{i) of the Federal Mine Safety and Health Act 

of 1977. I therefore approve the settlement, and grant the joint 

motion. 

It is ORDERED that, within 30 days of this Decision, 

Respondent shall pay civil penalties totalling $294. 

bwe~er Administrative Law Judge 

Distribution: 

Mary sue Taylor, Esq., Office of the Solicitor, U.S. Department 

of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 

37215 (Certified Mail) 

Frank Stainback, Esq., Holbrook, Wible, Sullivan, & Mountjoy, 

P.S.C., 100 St. Ann Street, P.O. Box 727, Owensboro, KY 42302-

0727 (Certified Mail) 

nb 

1906 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

: Docket No. SE 92-145 

: A.C. No. 40-02755-03533 

v. . . 

FAITH COAL COMPANY, 

Respondent 

Docket No. SE 92-146 

A.C. No. 40-02755-03534 

Appearances: 

Before~ 

. . 

.. . Docket No. SE 92-252 

A.C. No. 40-02755-03535 

No. 15 Mine 

DECISIONS 

Anne T. Knauff, Esq., Office of the Solicitor, 

u.s. Department of Labor, Nashville, Tennessee, 

for the Petitioner; 

Lonnie Stockwell, Owner, Faith Coal Company, 

Palmer, Tennessee, pro se, for the Respondent. 

Judge Koutras 

statement of the Proceedings 

These proceedings concern proposals for assessment of civil 

penalties filed by the petitioner against the respondent pursuant 

to section llO(a) of the Federal Mine Safety and Health Act of 

1977v 30 U.S.C. § 820(a)Q seeking civil penalty assessments of 

$876 for twelve (12) alleged violations of certain mandatory 

safety and health standards found in Parts 48, 70, and 75q 

Title 30v Code of Federal Regulations. 

The respondent filed answers denying most of the violations, 

and advancing certain mitigating circumstances with respect to 

the cited conditions or practices, including a claim that the 

financial condition of the company, which is a sole proprietorship owned and operated by Mr. Lonnie Stockwell, as well as 

Mr. Stockwell's personal financial situation, precludes the 

payment of any civil penalty assessments for the violations in 

question. 

A consolidated hearing was convened in Chattanooga, 

Tennessee, and the parties appeared and participated fully 

therein. The parties waived the filing of posthearing briefs, 

1907 
and they were permitted to present arguments on the record in the 

course of the hearing in support of their respective positions. 

I have considered their arguments in the course of my 

adjudication of these matters. 

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 seg. 

2. Sections llO(i) of the 1977 Act, 30 u.s.c. § 820(i). 

3. Commission Rules, 29 C.F.R. § 2700.1, et seg. 

Issues 

The issues presented in these proceedings are (1) whether 

the cited conditions or practices constitute violations of the 

cited mandatory safety or health standards, (2) whether several 

of the alleged violations were "si~nificant and substantial'' 

(S&S), and (3) the appropriate civil penalties to be assessed for 

the violations, taking into account the statutory civil penalty 

assessment criteria found in section llO(i) of the Act. The one 

principal issue presented is whether or not the respondent has 

established that it is financially unable to pay any of the civil 

penalties assessed in these proceedings, and whether the payment 

of such penalties will affect its ability to continue in 

business. 

Stipulations 

The parties stipulated to the following (Tro 4-6v 20)~ 

The respondent and the Noo 15 Mine are subject to the 

jurisdiction of the Actp and the presiding judge has 

jurisdiction to hear and decide these matters. 

2o The respondent 9 s annual coal production is approximately 

11 691 production tonsp and the Noo 15 mine has an annual 

coal production of 8v016 tons. 

3o The respondent is a small underground coal mine operator 

and presently operates only one minev namely the No. 15 

mine. 

4. All of the citations issued in these proceedings were 

timely abated by the respondent in good faith either within 

or prior to the times fixed by the inspectors who issued 

them. 

1908 
Discussion 

Docket No. SE 92-145 

This case concerns two alleged violations issued by MSHA 

Inspector Archie L. Coburn, Jr., on November 19, 1991, and they 

are as follows: 

Section 104(a) non-"S&S" citation No. 3395619, cites an 

alleged violation of 30 C.F.R. § 70.204(d) (1), and the cited 

condition or practice states as follows (Exhibit J-2): 

Suitable examinations of the respirable dust pump are not 

being made by the certified person. A voltage meter is not 

available to test the battery of the respirable dust pump to 

assure that proper voltage is provided. This was learned 

through the interview with the operator during a CBE type 

inspection. 

Section 104 (a) non-"S&S'~. Citation No. 3395620, cites an 

alleged violation of 30 C.F.R. ~ 1~~1712-4, and the cited 

condition or practice states as follows (Exhibits J-3 and P-1): 

The bathhouse waiver for this mine was not being 

complied with in that no sanitary toilet facilities 

were provided. As stipulated on cover sheet of 

bathhouse waiver. 

Docket No. No. SE 92-146 

This docket includes six (6) alleged violations issued by 

MSHA Inspector Archie L. Coburn, Jr., and they are as follows: 

Section 104 (a) uus&sn Citation No. 3395610, November 5, 1991, 

as modified, cites an alleged violation of 30 C.F.R. 

§ 75.1704-2(c) (2), and the cited condition or practice states 

as follows (Exhibit J-4) ~ 

The results of examinations of emergency escapeways and 

facilities fire doors and for smoking articles were not 

recorded in the approved book. Last entry 10-21-91. 

Section 104(a) ns&su Citation No. 3395611, November 5, 1991, 

cites an alleged violation of 30 C.F.R. § 75.306, and the cited 

condition or practice states as follows (Exhibit J-5) ~ 

The results of weekly examinations for methane and 

hazardous conditions were not recorded in the approved 

book. Last entry 10-24-91. 

1909 
Section 104(a) "S&S" Citation No. 3395612, November 5, 1991, 

as modified, cites an alleged violation of 30 C.F.R. § 75.512, 

and the cited condition or practice states as follows 

(Exhibit J-6): 

The required record book for examination of electrical 

equipment was not available at the mine for inspection 

by an authorized representative of the Secretary and to 

the miners. 

Section 104(a) "S&S" Citation No. 3395613, November 5, 1991, 

cites an alleged violation of 30 C.F.R. § 70.210(b), and the 

cited condition or practice states as follows (Exhibit J-7): 

The results of the last bi-monthly respirable dust 

survey run at the mine was not posted on the mine 

bulletin board. 

Section 104(a) "S&S" Citation No. 3395617, November 18, 

1991, cites an alleged violatfori of 30 C.F.R. § 75.316, and the 

cited condition or practice states as follows (Exhibit J-8): 

The No. 2 entry on the 001-0 section was advanced 

20 feet inby the last open crosscut, and a deflector 

curtain was not provided as required by the approved 

ventilation methane and dust control plan. 

Section l04{a) "S&S" Citation No. 3395618, November 18, 

1991, cites an alleged violation of 30 C.F.R. § 75.301, and the 

cited condition or practice states as follows (Exhibit J-9): 

The required 3p000 CFM of air was not maintained in the 

Noo 3 entry on the 001-0 section where coal was being 

loaded with a Elkhorn AR4 scoop, in that only 2,430 CFM 

could be measuredo 

MSHA Inspector Larry Jo Anderson issued the following two 

violationso 

Section 104 (a) ois&S 0

G Citation Noo 3395347 1 December 2, 1991 1 

cites an alleged violation of 30 C.F.R. § 75.1704-2(c) (2), and 

the cited condition or practice states as follows {Exhibit J-10) ~ 

Dates, time and initials had not been placed at various 

locations in the 001 section immediate return escapeway 

which would indicate the area had been examined by a 

certified person. 

1910 
Section 104(a) "S&S" Citation No. 3395348, December 3, 1991, 

cites an alleged violation of 30 C.F.R. § 75.523, and the cited 

condition or practice states as follows (Exhibit J-11): 

The panic bar installed on the Elkhorn battery powered 

tractor S.N. 73-87 was not maintained in an operative 

condition in that the panic bar had been damaged and 

could not be depressed enough to deenergize the tram 

motor on the machine. 

MSHA Inspector Clyde J. Layne issued Section 104(a) "S&S" 

citation No. 3395579, on December 2, 1991, citing an alleged 

violation of 30 C.F.R. § 75.208, and the cited condition or 

practice states as follows (Exhibit J-12): 

Safety precautions were not being maintained to prevent 

persons from traveling inby permanent supports in the 

first left place in the No. 1 entry. The cut of coal 

had been cleaned up and a visible warning or a physical 

barrier was not posted at the end of the permanent roof 

supports. The face of the place was approximately 

9 feet inby the last permanent support. 

Docket No. SE 92-252 

Section 104(g) (1) Order No. 3395455, issued by MSHA 

Inspector Tommy D. Frizzell on September 26, 1991, cites an 

alleged violation of mandatory training standard 30 C.F.R. 

§ 48.28(a), and the cited condition or practice states as 

follows: 

James Stockwell, observed performing duties at the 

surface area of the underground mine, has not received 

the requisite safety training as stipulated in 

section 115 of the Acto Mro Stockwell has not received 

the annual refresher trainingo In the absence of such 

training, James Stockwell is declared to be a hazard to 

himself and others and is to be immediately withdrawn 

from the mine until he has received the required 

training a 

Testimony and Evidence. Docket No. SE 92-145 

Citation Noo 33956190 30 C.F.R. § 70.204(d) (1) o 

MSHA Inspector Archie Coburn testified about his experience, 

including ten years of private industry coal experience as an 

electrician and equipment operator. He confirmed that he was at 

the mine on November 19, 1991, to perform a respirable dust 

technical investigation, and during an interview with mine 

operator Lonnie Stockwell it was revealed that he did not have a 

volmeter to check the battery voltage on the respirable dust 

1911 
sampling pumps as required by the regulation. The pumps are 

owned by the Tennessee Consolidated Coal Company, but 

Mr. Stockwell maintains them. The regulation requires that the 

pumps be maintained and calibrated by a certified person, and 

Mr. Stockwell is certified to take care of the pumps. The 

voltage meter serves to check the voltage on the pumps prior to 

and after a respirable dust survey is made. Mr. Coburn did not 

know how long the violation existed, and he stated that 

Mr. Stockwell admitted that he did not have the type of meter 

necessary to check the pumps (Tr. 13-15). 

Mr. Coburn believed that Mr. Stockwell would be expected to 

know about a voltage meter because he is certified by MSHA to 

taken respirable dust samples, is a certified electrician, and 

has been trained to use and calibrate the pumps (Tr. 15). 

Mr. Coburn explained the importance of maintaining the pumps and 

insuring the proper voltage. He confirmed that different types 

of voltage meters are used at mines that could be equipped with a 

charging plug to check the pump voltage, but no such meter was 

available at the time the citation was issued (Tr. 16). 

Mr. Coburn confirmed that there were no dust pumps at the 

mine at the time of the inspection because Mr. Stockwell had 

already submitted his bimonthly samples and returned the pumps to 

Tennessee Consolidated. He also confirmed that Mr. Stockwell had 

requested that company to examine the pump batteries from the 

last calibration date, but had not as yet received the 

examination records (Tr. 16-17). Mr. Coburn stated that he used 

a spare pump to check the pump calibration and Mr. Stockwell's 

ability to calibrate the pumps (Tr. 18). 

Mr. Coburn confirmed that the violation was not significant 

and substantialp that it resulted from a moderate level of 

igencep and that it was abated within an hour and fifteen 

minutes with a minimal amount of time and cost (Tr. 19)o 

On cross-examination, Mr. Coburn could not recall 

Mr. Stockwell advising him that he did not understand the 

question asked of him concerning the availability of a voltage 

meter" Mro Coburn stated that Mr. Stockwell told him that he did 

not have a voltmeter capable or adapted to charge a dust pump 1 

but that after he had written the citation Mr. Stockwell produced 

a voltmeter with a charging plug, and proceeded to test the pump 

to his satisfaction. Mr. Coburn then terminated the citation 

(Tr. 21=27). 

Mine Operator Lonnie Stockwell testified that he keeps all 

of his electrical equipment, including test meters, at the "stove 

room building" at the mine site, and he contended that he 

misunderstood Mr. Coburn's inquiry about the availability of a 

voltmeter for testing the respirable dust pumps. Mr. Stockwell 

stated that after their initial conversation, Mr. Coburn left the 

1912 
mine office, which is in a separate building, and went to his 

truck. Mr. Stockwell stated that he then realized what 

Mr. Coburn had asked him and he proceeded to the electrical 

storage building, picked up a meter, and went to the truck and 

showed it to Mr. Coburn and demonstrated to him that it would 

work. Mr. Coburn described the meter as an inexpensive "radio 

shack item" which was in the shop (Tr. 33-35). 

on cross-examination, Mr. Stockwell explained the different 

methods used to test the dust pumps, and he confirmed that he had 

to unplug one set of leads from the voltmeter he produced for 

Mr. Coburn and replace them with another set of leads, and he 

explained how that meter is used, and confirmed that Mr. Coburn 

may have given him suggestions as to how to adapt the voltmeter 

so that he could use it to test the dust pump voltage 

(Tr. 38-42) • 

Citation No. 3395620, 30 C.F.R. § 75.1712-4. 

Inspector Coburn stated that he issued the citation because 

sanitary toilet facilities were not provided at the mine as 

required by the bathhouse waiver granted to the respondent on 

October 15, 1990 (Exhibit P-1). He confirmed that the mine 

operates one shift per day and that six to ten people work on the 

shift (Tr. 44). He testified that the nearest sanitary toilet 

facility was located 300 to 400 yards off mine property at 

another adjacent mine site operate by the T&G Coal Company. He 

confirmed that pursuant to the waiver, the respondent was not 

required to have a full shower or bathhouse facility, but had to 

have a sanitary toilet facility consisting of a fully flush 

toilet or a chemical toilet known as a "Port-o-pot" (Tr. 46). 

Mr. Coburn stated that there was no flush toilet facility at 

the mineu but he did observe a "Port-o-pot" chemical toilet that 

was still in the shipping boxv and it was not in place or 

operational so that it could be used (Tr. 47). He observed that 

Mr. Stockwell had begun to install a partition in the trailer 

where the "stove room" was located in order to provide privacy 

when the toilet was set up, and Mr. Coburn confirmed that he 

terminated the citation when Mro Stockwell began working on the 

partition. He confirmed that Mr. Stockwell now rents a sanitary 

toilet facility for the mine (Tr. 48). 

Mr. Coburn confirmed that the violation was not significant 

and substantialv and that it resulted from a moderate negligence 

level. He confinned that when he asked to see the sanitary 

toilet facility, Mr. Stockwell showed him the "Port-o-pot" which 

was still in the box. The top was off the box, but the toilet 

was still wrapped in plastic and there were no chemicals to 

activate it. He confirmed that the partial walls and a roof were 

under construction to provide privacy for the men once the toilet 

was installed and made operational (Tr. 50). 

1913 
on cross-examination, Mr. Coburn stated that he did not see 

the toilet paper which Mr. Stockwell contended was on top of a 

refrigerator in the trailer (Tr. 52). In response to further 

questions, Mr. Coburn stated that he issued the citation because 

of the lack of toilet privacy and chemicals, and the fact that 

the portable facility was not in service and ready for use. He 

believed it had to be ready for use at any time, and not just 

when someone wished to use it. He confirmed that the portable 

toilet which he observed was still in the crate, and it was the 

only one he saw on the mine surface (Tr. 55). 

Mr. Stockwell testified that a roll of toilet paper was on 

top of the refrigerator in the building where the portable toilet 

was located, and he stated that water was available for use with 

the toilet but that none was placed in it at the time because it 

was winter and the building is not heated at night and the water 

could freeze. He believed that privacy could be maintained by 

simply closing the door to the building, and that heat and soap 

and water are provided during the work shift. He stated that he 

knew of nothing else that he could do to be in compliance with 

the law (Tr. 56-57). 

Mr. Stockwell denied that the portable toilet was still in 

the shipping crate as contended by the inspector. He stated that 

he purchased the toilet used and that it was not in a box. He 

had it wrapped in a "green garbage sack" as a convenient way to 

keep it clean and dust free, and when it needed to be used "you 

just pull the garbage sack away from the side of it and you got a 

clean facility to use" {Tr. 57). He described the toilet as a 

self-contained device that can be lifted by one person, and when 

it is used, water and a deodorizer are poured inside. He stated 

that no chemicals are used, and that after someone uses the 

toilet, the contents are taken out and disposed of, and it is 

washed out and made ready for use again. He confirmed that there 

is no running water available, but that a bucket of water is made 

availablev and he is in the process of trying to obtain running 

water (Tro 58-59) o 

on cross-examination, Mr. Stockwell explained his understanding of a nsanitary toilet facility91 p and he believed that 

the portable toilet in question satisfied the waiver requirements 

(Tr. 62-64)0 He reiterated that he purchased the toilet as a 

used device from another mine operator and that he took it home 

and cleaned it up and placed it in the garbage bag to keep it 

clean (Tro 70-71). 

Inspector Coburn was recalled by the presiding judge, and he 

did not dispute Mr. Stockwell's assertion that the toilet was in 

a green bag. Mr. Coburn confirmed that it was not in a wooden 

crate, and he saw no packing materials, but he reiterated that 

the toilet was not set up for use. He confirmed that the toilet 

could have been used if chemicals were provided (Tr. 73). 

1914 
Testimony and Evidence. Docket No. SE 92-146 

Citation No. 3395612 

Mr. Stockwell conceded that the electrical equipment 

examination record book in question was not at the mine at the 

time of Mr. Coburn's inspection on November 5, 1991. 

Mr. Stockwell asserted that he had taken the book home with him 

in order to make certain entries after completing a prior work 

shift and that he inadvertently forgot to bring· it back to the 

mine with him when he returned to work. He further asserted that 

he told the inspector that he could drive home to obtain the 

record book and immediately return to the mine with the book but 

that the inspector took the position that since the book was not 

available at the mine the violation existed and a citation would 

have to be issued. 

RSHA's counsel asserted that if called to testify the 

inspector would testify that he had no recollection that 

Mr. Stockwell offered to drive home to retrieve the record book 

in question and that since the book was not at the mine site for 

his review a violation occurred (Tr. 76-78). 

After further discussions, the parties decided to settle 

this alleged violation, and the solicitor agreed that the 

citation should be further modified to reflect a non-"S&S" 

citation (as originally issued ) and that the proposed $54 

penalty assessment would be reduced to $20. Both parties agreed 

to this proposed disposition (Tr. 78). 

Citation No. 3395613 

Mr. Stockwell conceded that the results of the last 

bimonthly respirable dust survey were not posted on the mine 

bulletin board at the time of the inspection by Mro Coburn on 

November 5 0 19910 HoweverP Mro Stockwell asserted that the 

survey results were posted on the bulletin board prior to the 

inspection but that he removed the document in order to prepare a 

response and to communicate an error in the test results to 

MSHAus Birmingham0 Alabama officeo Mro Stockwell further 

asserted that the document was in his vehicle parked outside the 

mine and that he informed the inspector of this but the inspector 

took the position that since the results were not posted on the 

bulletin board as required when he conducted his inspection the 

violation existedo 

After further discussion and consultation by the parties, 

they informed me that they proposed to settle this citation and 

they agreed it should be modified to a non-"S&S 11 citation, and 

that the penalty should be reduced from $54 to $20 {Tr. 78-80). 

1915 
With regard to the remaining citations in this case, 

Mr. Stockwell stated that he did not wish to dispute the fact of 

violations, and he agreed that all of the conditions and 

practices described by the inspectors on the face of each of the 

citations accurately reflect the conditions cited by the 

inspectors as violations. Further, Mr. Stockwell waived the 

presentation of any evidence or testimony rebutting the 

inspector's findings concerning each citation, and he stated that 

he would accept them as written, and that he wished to rely on 

his contention that he is financially unable to·pay any civil 

penalty assessments, and that the payment of said penalties will 

adversely affect his ability to continue in business (Tr. 80-82; 

85-87; Exhibits J-4, J~5, J-8 through J-12, P-3). 

Testimony and Evidence. Docket No. SE 92-252. 

MSHA Inspector Tommy o. Frizzell testified as to his 

experience and training, and he confirmed that he issued the 

section 104(g) (1) order withdrawing James Stockwell from the mine 

until he received his required annual refresher training (Exhibit 

J-13; Tr. 189-90). He explained that on September 25, 1991, he 

observed Lonnie Stockwell's brother James performing mine duties 

that he had not been trained to do, and he confirmed that when he 

reviewed the training records at the mine he could not find a 

form verifying that James had received his annual refresher 

training. Mr. Frizzell stated that Lonnie Stockwell informed him 

of his belief that the training Forms 5023 were at his home and 

that he had a need for the forms in connection with some court 

litigation, and that he would bring them to the mine the next 

day. Mr. Frizzell was aware of the litigation and he gave Lonnie 

Stockwell an opportunity to produce the records the next day 

(Tr. 91-91). 

Mr. zzell stated that on September 26v 199lp he again 

asked Mro Stockwell to produce the training records; and 

Mr. Stockwell informed him that he did not know what he had done 

with themo Mro Frizzell stated that he called the state training 

office which trains miners for Mr. Stockwell and most of the 

other area minesv and he was told that there was no record that 

James Stockwell had received any training the prior year. 

Mr. Frizzell confirmed that James Stockwell would normally 

receive a training card and a copy of Form 5023, but he could not 

produce any evidence that he had received training. Mr. Frizzell 

further confirmed that he did not ask James Stockwell if he had 

been trainedv but that another inspector who was with him did, 

and James stated that he had received no training for 

approximately two years (Tro 94). 

Mr. Frizzell stated that he observed James Stockwell 

operating a front end loader, and that he was also dumping coal 

cars and had to walk between them to uncouple them. He was also 

performing surface maintenance work. After informing Lonnie 

1916 
that James could not work until he received his training, James 

became upset and left the mine, and Lonnie stated that he could 

not work the mine without James on the surface. Lonnie offered 

to train James at his home, but Mr. Frizzell informed him that he 

would have to monitor the training because he did not know if 

Lonnie had the required training materials (Tr. 95-96). 

Mr. Frizzell stated that Lonnie Stockwell has a training 

instructor's card, but does not have the training facilities or 

the necessary videos and materials, and he only, does task 

training and newly employed miner training. Annual refresher 

training is done by the state (Tr. 97). Mr. Frizzell reiterated 

that Lonnie Stockwell could not produce any records verifying 

that James had received the required annual refresher training. 

He confirmed that the order was terminated on September 30, 1991, 

after Lonnie brought him a copy of the training forms from the 

state training department verifying that James had been trained 

(Tr. 98) • 

Mr. Frizzell stated that he based his "S&S11 finding on his 

belief that without the requl·red training, James would be a 

hazard to himself or someone else, and that if he continued 

working and an accident occurred, it would be serious because he 

performs hazardous surface work (Tr. 98). Mr. Frizell confirmed 

that he based his "high negligence" finding on the fact that 

Lonnie Stockwell has known about the training requirements for 

several years, has trained his men, and had everyone else take 

annual refresher training except James. Mr. Frizzell believed 

that Lonnie knew or should have known that James had not been 

trained (Tr. 99). 

In response to further questions, Mr. Frizzell stated that 

Mro Lonnie Stockwell had training records at the mine for all of 

his other employees except for his brother James, and after 

initial telling him that he had the records at home~ Lonnie 

could not produce them the next day (Tro 102)0 

on cross-examination, Inspector Frizzell confirmed that 

Mro Lonnie Stockwell was qualified to provide the full range of 

training for his employees, including retraining (Tro 103) 0 In 

the course of further cross-examination, Mr. Stockwell produced 

his mine training record books, and pointed out that when he 

moved to the Noa 15 mine on May 14, 1990, from another mine, he 

was told that he would have to give the employees newly employed 

experienced miner training because they were working at a new 

site, and that this retraining would be good for one year. He 

produced a copy of an MSHA Certificate of Training From 5000-23, 

showing that James Stockwell received Newly Employed, Experienced 

Miner training on May 14, 1990, and another training certificate 

form showing the James Stockwell received annual refresher 

training on November 17, 1990, which would have been well within 

1917 
the 12-month period expiring on November 17, 1991, approximately 

two months after the order was issued by Mr. Frizzell. 

Mr. Stock.well confirmed that the copies he produced were made 

from the original training record books that he produced for 

examination by Mr. Frizzell and MSHA's counsel, as well as the 

presiding judge (Tr. 103-107: Exhibit R-1). Mr. stock.well 

further explained his training record keeping procedures 

(Tr. 107-109). 

Inspector Frizzell confirmed that he had not previously seen 

the training records produced by Mr. Stockwell in court, and he 

confirmed that had the records been produced by Mr. Stockwell at 

the time of the inspection, he would not have issued the 

violation in question because the respondent still had two months 

to go before the training certificate for James Stockwell expired 

(Tr. 111). Mr. Frizzell further confirmed that the violation 

would have been vacated during the conference stage had 

Mr. Stockwell produced his records at that time (Tr. 118). 

Mr. Stockwell explained that he could not produce the 

training books in question at'the time of the inspection because 

he was in the midst of litigation over a training grievance and 

the records were with his attorney at that time, rather than at 

his home as he had initially thought, and it took him some time 

to find the record books (Tr. 111). Mr. Stockwell described his 

brother James as "contrary" and "doesn't like people telling him 

what to do" (Tr. 112). From these reasons, he decided to train 

James himself to avoid problems, and he believed that he trained 

him adequately (Tr. 113). 

Mr. Stockwell further explained his failure to produce his 

training records earlier in this litigation, including the time 

when he and the solicitor were in pretrial discussions, and he 

stated that he failed to do so because he had no confidence that 

he would be treated fairly, and his lack of trust in the 11 system'9 

because he had previously been unsuccessful in pleading his case 

to the inspector's superiors on two occasions when he participated in MSHA conferences (Tr. 114-120). Mr. Stockwell 

reiterated that he could not find his training records at the 

time Inspector Frizzell issued the orderp and in order to 

terminate the order so that he would not lose the crucial work 

performed by his brother James, his brother was again trained on 

September 30, 1991 (Tr. 121, Exhibit R-l)o 

After an opportunity to examine the training records 

produced in court by Mr. Stockwell, the Solicitor questioned 

Mr. Stockwell about his record keeping practices, the entries 

made on the training certificate forms kept in the books, the 

training that he administered to his employees at the mine, and 

the training they received from the state training office 

1918 
(Tr. 125-130). Mr. Stockwell conceded that he "was wrong" in not 

apprising the solicitor earlier that he had found the records 

(Tr. 130). Mr. Stockwell further explained as follow at 

(Tr. 131) : 

A. I didn't have any place -- I had never met you until 

this morning, I talked to you on the phone several occasions 

and your predecessor I talked to on the phone the same way, 

I shared a lot of information with, that come when we had 

the other hearing in court and it was -- I·give my defense 

to the end, that's the way I looked at it, and so, I was 

afraid to give it to you. I guess the bottom line is I had 

already been through Mr. Frizzell's supervisor on two or 

three occasions and not got any help, and I had a bad 

experience with the Solicitor's Office and I guess I grouped 

you in with it and I apologize fore that, I shouldn't have 

done that, because I should have trusted you on your own 

merit and I didn't do it. 

And, at (Tr. 186): 

MR. STOCKWELL: Again I apologize for the way I 

mishandled the last citation, not trusting the system and I 

guess that's really what it boils down to and I apologize to 

you and I will apologize to Mr. Frizzell. I am sorry I 

handled it so crudely and I hope you will accept my apology. 

Mr. Stockwell further explained his failure to produce his 

training records earlier, and he denied that he withheld the 

records until the day of the trial in this case "to get even" 

with MSHA (Tr. 136-140). The solicitor asserted that she had no 

reason to believe that the training records and documents 

produced by Mro Stockwell for the first time in court were not 

legitimatev and she had no reason to believe that they had been 

sified (Tro 135-136)0 However, counsel pointed out that 

Mro Stockwell chose not to share these records with her or the 

inspector prior to the hearing, and that if he had done so, the 

order would have been vacated and she would not have expended 

trial preparation time in prosecuting the case. Under the 

circumstancesu counsel requested that Mr. Stockwell be assessed 

costs for the time she spent in litigating the contested order 

Tr. 135). 

Findings and Conclusions 

Docket No. SE 92-145 

Fact of Violation. Citation No. 3395619. 

The respondent is charged with a failure to make suitable 

examinations of its respirable dust pumps in that it failed to 

provide a voltage meter for the testing of the pump batteries to 

1919 
assure that proper voltage was provided. The cited mandatory 

standard, section 70.204(d) (1), requires the testing of the 

respirable dust testing device (pump) battery while under actual 

load to assure that the battery is fully charged. Since 

Mr. Stockwell could not initially produce a voltage meter capable 

of testing the pump batteries at the time the inspector inquired 

about the availability of the meter, and apparently indicated to 

the inspector that he did not have one, the inspector assumed 

that a meter was not available for use in testi~g the pumps 

during the required testing cycle, and that the pump batteries 

were not being testing as required by the standard. Under these 

circumstances, the inspector proceeded to issue the citation. 

The inspector confirmed that Mr. Stockwell showed him a 

voltage meter after the citation was written, but he indicated 

that the meter was a normal production ohm meter used for testing 

circuits, and that following his suggestions, Mr. Stockwell had 

to make certain modifications to render the meter capable of 

testing a dust pump battery. After satisfying himself that 

Mr. Stockwell was capable of testing a pump battery with the 

modified voltage meter, the inspector accepted this as abatement 

and terminated the violation before leaving the mine. The 

inspector confirmed that the meter was not in its modified form 

when he issued the citation (Tr. 27). 

Mr. Stockwell admitted that he told the inspector that he 

did not have a voltage meter capable of testing a dust pump 

battery available at the mine, but he claimed that he 

misunderstood the inspector's inquiry. He stated that after he 

realized what the inspector was looking for, he obtained a 

voltage meter from his electrical supply building, and after 

equipping it with a charging plug suitable for testing a pump 

batteryu he took it to the inspector and showed it to him. 

Mr. Stockwell admitted that he had to modify the meter by 

changing the test leads and wires and rotating the meter dial to 

the proper voltage and current, and he did not deny that the 

modifications were made at the suggestion of the inspector 

(Tr. 39-40). 

After careful consideration of all of the evidence and 

testimony 8 I conclude and find that the petitioner has 

established a violation. I cannot conclude that the inspector 

acted unreasonably in issuing the citation after Mr. Stockwell 

informed him that he did not have a voltage meter capable of 

testing a dust pump battery. Although I do not totally 

disbelieve Mr. Stockwell 1 s testimony that he was confused about 

the question asked of him by the inspector, as a qualified 

electrician and an MSHA approved qualified person to make the 

tests, I am not convinced that Mr. Stockwell was totally 

oblivious to what was required under the law. Further, since the 

available voltage meter which was produced by Mr. Stockwell had 

to be modified to render it capable of testing the voltage on the 

1920 
dust pump batteries, and since it was not in its modified state 

ready for use for that purpose at the time the inspector 

proceeded to issue the citation, I conclude and find that a 

violation has been established. Accordingly, the contested 

citation IS AFFIRMED. 

Citation No. 3395620 

The respondent here is charged with a violation of mandatory 

standard section 75.1712-4, for failing to provide a sanitary 

toilet facility in accordance with a previously obtained 

bathhouse waiver for the mine. Section 75.1712-4, provides for 

the waiver of any or all of the bath house and toilet facilities 

standards found in sections 75.1712-1 through 75.1712-3, and it 

states as follows: 

The Coal Mine Safety District Manager for the district 

in which the mine is located may, upon written 

application by the operator, waive any or all of the 

requirements of §§ 75.1712-1 through 75.1712-3 if he 

determines that the operator· of the mine cannot or need 

not meet any part or all of such requirements, and, 

upon issuance of such waiver, he shall set forth the 

facilities which will not be required and the specific 

reason or reasons for such waiver. 

The respondent was granted a waiver pursuant to section 

75.1712-4, on October 15, 1990 (Exhibit P-1). The waiver was 

granted because (1) the development of a private water supply and 

sanitary waste disposal program was not practical, (2) it was not 

practical to construct a central bathhouse and change room, (3) 

all employees signed a statement agreeing that the waiver should 

be grantedQ (4) facilities were not available through a third 

party, and ( 5}. adequate drainage facilities were not available or 

practical to provide. However, the waiver was subject to the 

following stipulation which appears in a Note under Item #8, and 

it states as follows: 

This waiver is issued because it is impracticable for 

the operator to construct the necessary facilities nowo 

This waiver is issued with the stipulation that 

sanitary toilet facilities approved under 

Section 71.500(a), 30 C.F.R. § 71, will be provided 

at each surface worksiteo 

Section 71.500(a), requires a mine operator to provide and 

install at least one sanitary toilet, together with an adequate 

supply of toilet tissue, in a location convenient to each surface 

work site. During oral argument, petitioner's counsel took the 

position that the portable toilet was still in its packing box 

and was not available or installed and ready for use. In support 

1921 
of this position, counsel asserted that the toilet was still in 

its packing crate with plastic packing around it and styrofoam 

packing material on top of it, and that it was sealed as if ready 

for shipping. Counsel also pointed out that the inspector found 

no toilet paper available, that privacy was not provided for 

anyone using the toilet, and the toilet was not provided with 

chemicals to treat the sewage (Tr. 64-70). 

Inspector Coburn initially testified that when Mr. Stockwell 

showed him the portable toilet, it was still in'the shipping box, 

but the box was not sealed and the top was off, and the toilet 

was wrapped in plastic (Tr. 47, 49). Mr. Coburn also testified 

that he observed no toilet paper in the trailer where the toilet 

was located, there were no chemicals added to the toilet, and 

there was no place to use the toilet in private. Under these 

circumstances, the inspector did not believe that the toilet was · in service and ready for use at any time, and he concluded that 

it did not constitute an installed sanitary toilet facility 

pursuant to section 7i.5oo(a), as provided in the waiver. 

I find nothing in sectiori.71.500, that defines or explains 

what constitutes an installed sanitary toilet facility, nor do I 

find any regulatory requirement that such a facility must be 

installed to afford privacy, or that chemicals must be provided 

to treat any toilet waste. Although the "Note" found in 

section 71.500, states that sanitary toilet facilities for 

surface work areas of underground mines are subject to the 

provisions of section 75.1712-3, those requirements are included 

in the waiver granted the respondent. In any event, section 

75.1712-3, only requires that a sanitary toilet facility be 

provided with adequate light, heat, and ventilation so as to 

maintain a comfortable air temperature and to minimize the 

accumulation of moisture and odors, and that it be maintained in 

a clean and sanitary conditiono 

Inspector Coburn defined a "sanitary toilet facility" as 

either a "fully flush toilet or a chemical toilet facility" 

commonly known as a "Port-a-Pot" (Tr. 46). In response to a 

question as to what needed to be done to install such a toilet 

for use, he explained that chemicals needed to be added, and a 

place had to be provided for its use ~because the building that 

Mro Stockwell is referring to is a van trailer where men stay in 

the morning to try and stay warm" (Tr. 72). Petitioner's counsel 

stated that "If it was in a green bag for toting in and out then 

perhaps it was installed, but if it was still in the packing 

crate with the original packing materials and stabilizing 

material for shipping it then it is our position it wasn't 

installed" (Tr. 70). Mr. Coburn confirmed that he terminated the 

citation after Mr. Stockwell started construction of a wall to 

provide privacy for the use of the toilet, and provided water and 

chemicals to be used with the toilet (Tr. 74). 

1922 
Mr. Stockwell testified that a roll of toilet paper was 

available in the trailer where the toilet was located, and he 

confirmed that the toilet was the same kind that he had available 

underground and on the surf ace for at least two years prior to 

the inspection by Mr. Coburn, and that it was the kind of toilet 

that "has been accepted for years at every mine around there" 

(Tr. 63). He further testified that water was available for the 

toilet when it was used, and that he provided soap and water for 

hand washing, and that the trailer had heat and light, and that · privacy could be provided by simply shutting trailer the door 

(Tr. 56). Mr. Stockwell denied that the toilet was still in a 

shipping crate, and he explained that he purchased it in a "used" 

condition and cleaned it up and placed it in a plastic garbage 

bag to keep it clean and dust-free. He also explained that it 

was not a chemical toilet as such, and that in order to use it, 

water and a deodorizer would be poured into the self-contained 

toilet, which could be lifted by one person, and after it was 

used, it would be emptied and washed out and made ready to be 

used again (Tr. 58). 

Inspector Coburn admitted that the portable toilet was not 

packed in a shipping box or crate (Tr. 72), and he did not rebut 

Mr. Stockwell's contention that he had purchased the toilet as a 

used unit and that he cleaned it up and placed it in a garbage 

bag to keep it clean and dust-free. Although Mr. Coburn 

testified that he did not see any toilet paper available, I find 

Mr. Stockwell's testimony to the contrary to be more credible and 

believable. 

As noted earlier, the respondent is charged with a violation 

of section 75.1712-4. However, I find nothing in that regulation 

which imposes any mandatory duties or obligations on a mine 

operator with respect to a sanitary toilet facilityo The 

regulation simply authorizes MSHA's district manager, upon 

application by the mine operator, to grant a waiver, and if he 

does, the manager is required to identify the facilities which 

are not required and the reasons for the waiver. 

The cited condition or practice alleges that the respondent 

failed to comply with the waiver granted by the district manager 

by not providing a sanitary toilet facility as stipulated on the 

cover sheet of the waivero The waiver signed by the district 

manageru MSHA Form 2000-88, contains a stipulation indicating 

that the waiver was issued on the condition that the respondent 

would provide a sanitary toilet facility approved under 

section 71.500(a). Although the respondent has not been charged 

with a violation of section 71.500(a), I assume that the theory 

of the petitioner's case is that the alleged failure by the 

respondent to provide a sanitary toilet facility which meets the 

requirements of section 71.500(a), constitutes a violation of the 

waiver which was conditioned on compliance with that regulation, 

as well as a violation of that regulation itself. 

19 23 
The mandatory language found in the first sentence of 

section 71.SOO(a), requires an operator to provide and install an 

approved sanitary toilet, together with an adequate supply of 

toilet tissue, in a location convenient to each surface work 

site. On the facts of this case, I find no evidence to establish 

that the portable toilet or"Port-o-pot" in question, was not an 

approved piece of equipment. I conclude and find that the 

credible testimony of the respondent establishes that the 

portable toilet was provided, and that it was located in a 

convenient surface work site location, and that.an adequate supp~ of toilet tissue was provided. However, absent any 

credible evidence of any MSHA guidelines or regulatory 

requirements dealing with the installation of a sanitary toilet, 

I cannot conclude that the petitioner has carried its burden of 

proof and has established a violation of the waiver granted the 

respondent. In short, I am not convinced by the petitioner's 

evidence that the portable toilet in question was not installed 

as required by the waiver which incorporates section 71.SOO(a), 

by reference. Under the circumstances, the citation IS VACATED. 

Docket No. SE 92-146 

Fact of Violation. Citation No. 3395612. 

Mro Stockwell did not rebut the fact that the required 

electrical inspection book was not at the mine and available for 

the inspector's review as required by the cited section 75.512. 

I conclude and find that the petitioner has established a 

violation and the citation IS AFFIRMED. 

The parties agreed to a proposed settlement of this 

violation, and they agreed that the citation should be modified 

a non- 91 S&s 1u citation, and that the initial proposed civil 

penalty assessment of $54 should be reduced to $20 (Tr. 78) o The 

proposed settlement IS APPROVED 1 and the citation is modified as 

a non-S&S citation. 

Citation No. 3395613. 

Mr. Stockwell conceded that the results of the last 

bimonthly respirable dust survey were not posted on the mine 

bulletin board at the time of the inspection. The cited 

section 70o210(b)v requires the posting of the results of the 

survey upon receipt by the operator, and for a period of 31 days. 

Since they were not posted, I conclude and find that a violation 

has been established, and the violation IS AFFIRMED. 

The parties agreed to a proposed settlement of this 

violation, and they agreed that the citation should be modified 

to a non-S&S citation, and that the proposed penalty assessment 

of $54 should be reduced to $20. The proposed settlement IS 

APPROVED, and the citation is modified to a non-S&S citation. 

1924 
citation Nos. 3395610, 3395611. 3395617. 3395618. 3395347, 

3395348, and 3395579. 

As noted earlier, the respondent waived its right to present 

any evidence or testimony to rebut the findings of the inspectors 

with respect to these citations. Mr. Stockwell stated that he 

accepts the citations as written and issued by the inspectors, 

and that he does not dispute the violations and agreed that all 

of the conditions and practices noted by the inspectors 

accurately reflect the prevailing conditions or·practices at the 

time of the inspections. Under the circumstances, all of these 

citations and violations ARE AFFIRMED. 

Docket No. SE 92-252 

Fact of Violation. Order No. 3395455. 

In this case, the respondent is charged with a violation of 

the training requirements found in 30 C.F.R. § 48.28(a) ·because 

of its alleged failure to retrain James Stockwell. The cited 

standard requires each miner'to receive a minimum of a hours of 

annual refresher training, and the burden of proof lies with the 

petitioner. I conclude and find that the credible evidence 

presented by the respondent at the hearing establishes that James 

Stockwell did in fact receive the requisite training and that the 

respondent has rebutted the petitioner's allegations to the 

contrary. Accordingly, the contested order IS VACATED, and the 

petitioner's proposal for assessment of civil penalty IS DENIED 

and DISMISSED. 

After further consideration of the petitioner's request for 

an assessment of costs against the respondent because it waited 

until the day of the hearing to disclose the training records 

the petitionerns counsel agreed would have exonerated the 

respondent ierv IS DENIEDo I take note of the fact that 

Mro Stockwell apologized to the petitioner 1 s counsel and the 

presiding judge in open court and expressed his regrets for not 

advancing his defense in a more timely manner. Further, 

considering the fact that Mro Stockwell is not represented by 

counself and taking into account his reasons for waiting until 

the hearing to put on his evidence, I cannot conclude that 

Mro Stockwell 0 s actions were particularly egregious. See: 

Francis A. Marin v. Asarco, Inc.p 14 FMSHRC 1269 (August 1992). 

History of Prior Violations 

The respondentvs history of prior violations is shown in a 

computer printout submitted by the petitioner (Joint Exhibit 1). 

The information submitted reflects that for the period 

November 19, 1989, through November 18, 1991, the respondent was 

assessed $9,423 for seventy-one (71), violations, and that it 

paid $477, for eleven (11) of these violations. The petitioner 

1925 
issued delinquency letters for thirty-three (33) of the 

violations which the respondent has not paid. Under the 

circumstances, and for an operation of its size, I cannot 

conclude that the respondent has a particularly good compliance 

record. However, the respondent's financial condition may 

account for his failure to pay the prior civil penalty 

assessments, and this would be a matter within the petitioner's 

enforcement jurisdiction. 

Negligence 

I concur with the inspector's findings that all of the 

violations which have been affirmed in these proceedings resulted 

from a moderate degree of negligence on the part of the 

respondent, and I adopt these findings as my findings and 

conclusions with respect to each of the violations. 

Gravity 

Except for Citation Nos.·-3395612, 3395613, and 3395619, 

which have been affirmed as non-"S&S" violations, I conclude and 

find that all,of the other citations which have been affirmed as 

significant and substantial violations in these proceedings were 

serious violations. 

Good Faith Abatement 

The parties stipulated that all of the citations in these 

proceedings were timely abated by the respondent either within or 

before the time fixed by the inspectors for abatement. I adopt 

this stipulation as my finding and conclusion on this issue and 

have taken it into consideration in assessing the civil penalty 

assessments for the violations which have been affirmedo 

Size of Business and Effect of Civil Penalty Assessments on the 

Respondent's Ability to Continue in Business 

The parties have stipulated that the respondent operates one 

active small underground mine with an annual production of 8v016 

tonsv and Mro Stockwell testified that his mining operation is a 

family operation which includes his father, and two of his 

brothers (Tro 32)o Inspector Coburn testified that the respondent is a ~contract operator" for the Tennessee Consolidation 

Coal Companyv and the mine operates one shift a day and employs 

six to ten people (Tro 19, 44) o Under all of these circumstances, I conclude and find that the respondent is a small mine 

operator. 

In a contested civil penalty case the presiding judge is not 

bound by the penalty assessment regulations and practices 

followed by MSHA's Office of Assessments in arriving at initial 

19 26 
proposed penalty assessments. Rather, the amount of the penalty 

to be assessed is a de novo determination by the judge based on 

the six statutory criteria specified in section llO(i) of the 

Act, 30 u.s.c. 820(i), and the information relevant thereto 

developed in the course of the adjudicative hearing. Shamrock 

Coal Co., 1 FMSHRC 469 (June 1979), aff'd, 652 F.2d 59 (6th Cir. 

1981); Sellersburg Stone Company, 5 FMSHRC 287, 292 (March 1983). 

As a general rule, and in the absence of evidence that the 

imposition of civil penalty assessments will adversely affect a 

mine operator's ability to continue in business, it is presumed 

that no such adverse affect would occur. Sellersburg stone 

Company, 5 FMSHRC 287 (March 1983), aff'd 736 F.2d 1147 (7th Cir. 

1984). Conversely, the size and documented financial condition 

of a mine operator is required to be considered in any determination as to whether or not the payment of civil penalties will 

adversely impact on a mine operator's ability to continue in 

business. 

In several early decisi0ns pursuant to the 1969 Coal Act, 

the former Interior Board of Mine Operations Appeals held that 

congress intended a balancing process in arriving at an 

appropriate civil penalty assessment in any given case, including 

consideration of the size of the mine and the ability of a mine 

operator to stay in business. See: Robert G. Lawson Coal 

Company, 1 IBMA 115, 117-118 (May 1972), 1 MSHC 1024; Newsome 

Brothers, Inc., 1 IBMA 190 (September 1972), 1 MSHC 1041 1041; 

Hall Coal Company, 1 IBMA 175 (August 1972), l MSHC 1037. 

In several cases adjudicated by me pursuant to the 1977 Mine 

Act, I followed and applied the Robert G. Lawson Coal Company, 

line of decisions, supra, and concluded that the reduction of the 

initial penalty assessments were justified because the mine 

operators were small and in serious financial difficulties, and 

that the initial assessments in the aggregate would effectively 

put the operators out of business. See: Fire Creek Coal Company 

of Tennessee, 1 FMSHRC 149 (April 1979), 1 MSHC 2078; Fire Creek 

Coal Company of Tennessee, 2 FMSHRC 3333 (November 1980): Davis 

Coal Company, 4 FMSHRC 1168 8 1192-1196 (June 1982); G & M coal 

Companyv 2 FMSHRC 3327 (November 1980) and 3 FMSHRC 889 (April 

1981} o See also~ Davis Coal company, 2 FMSHRC 619 (March 1980), 

where the Commission reviewed and affirmed several settlement 

decisions approving proposed civil penalty reductions based on 

the detrimental effect that assessment of the originally proposed 

penalties would have had on the mine operators ability to remain 

in business. 

Mr. Stockwell submitted the following documentation 

concerning his financial condition (Exhibits ALJ-1): 

1. A 1991 Federal joint income tax return reflecting a net 

operating loss of $270,779, including a loss of $26,499, for 

1927 
the Faith Coal Company, a $280 loss in rental income from a 

home, and a $21,017, loss from the operation of a hay/corn 

farm. 

2. A 1990 Federal joint income tax return reflecting a net 

operating loss of $109,969, inc~uding a loss of $83,669, for 

the Faith Coal Company, a $3,720, loss from a rental home, a 

$24,803, loss from the operation of a farm, and a casualty 

loss of $145,533, as the result of an uninsured home fire. 

3. An itemized list of outstanding 1991 and 1992 accounts 

payable by the Faith coal company to twenty-eight (28) 

creditors, totalling $36,667.55. 

4. A copy of a June 15, 1992, letter from the First 

National Bank, Tracy City, Tennessee, to Mr. and 

Mrs. Stockwell, informing them of their failure to make 

a payment due on a promissory note in the amount of 

$160,495.45, and advising them that they were in 

default, and making a formal demand for payment in full 

for the balance of the indebtedness, plus interest, 

attorney's fees, and costs incurred in collecting the 

debt. 

So A copy of a July 28, 1992, letter from the U.S. 

Department of Agriculture, Farmers Home Administration, to 

Mr. and Mrs. Stockwell informing them that they were three 

months delinquent in their loan payments and informing them 

of their options and possible loan foreclosure. 

6. Copies of past due 1992 tax notices from local county an 

city tax officials, Dunlap, Tennessee, advising Mr. and 

Mrso Stockwell of past due taxes owed on their farm and two ~esidencesf in amounts totalling $541.940 

7o A copy of a note executed by the Faith Coal Company and 

Mr. and Mrso Stockwell with the First National Bank, 

Shelbyvilleu Tennessee, in the amount of $160,495.45. The 

listed security for this note includes all of the coal 

mining equipment and machinery of the Faith Coal CompanyQ 

and the maturity date of the note is shown as June 6, 1996 

(posthearing letter and attachment dated October 17u 1992). 

Mr. Stockwell testified and explained the documentary 

evidence he submitted with respect to his personal financial 

condition as well as that of his mining company, and the 

Secretary 1 s trial counsel conducted a most thorough and detailed 

questioning of Mr. Stockwell regarding all of his financial 

affairs, assets, a farming operation, checking accounts, rental 

income, accounts payable and receivable, company and personal 

debts, mining expenses and sales, etc. In addition, 

1928 
Mr. Stockwell's wife Christine, who was present in the courtroom, 

was called to testify regarding the financial condition of the 

family, including their joint assets and liabilities 

(Tr. 143-179). 

With regard to the current viability of his mining 

operation, and his financial condition, Mr. Stockwell stated as 

follows at (Tr. 179-180): 

Q. Do you have miners working most days? . 

A. We try to work five days a week, occasionally on 

Saturday, I can't afford the overtime. 

Q. So is it your statement that you're making enough money 

with the mine to keep the doors opened and keep things 

running? 

A. I have been up until just -- I'm gradually getting 

further -- a little further. behind. I kept hoping for 

better days for better than a year and they have not 

come yet. I keep hoping tomorrow is going to be 

better, the potential is out there for it to be better, 

but we're just having one difficulty after another that 

has kept us from doing it. 

MS. STOCKWELL: If we don't make some profit by 

December we will have to end it. 

A. I am about ready to give it -- there is an old 

saying give it to the end because I just -- I hate to 

think about going -- I know that everything I got is 

mortgagedv the houseQ she put the house we 1 re living up 

as security on the $160,000 loanv if we have to default 

we have got to find a place to live and that 0 s serious" 

After careful consideration of all of the evidence adduced 

in these proceedings concerning the respondent's financial 

conditionu which I find credible and unrebutted, I conclude and 

find that the imposition of the full amount of the initial civil 

penalty assessments proposed by the Secretary in these cases 

would have an adverse impact on the respondent's ability to 

continue the operation of the mine. Considering the fact the 

respondent is a small operator and appears to be in serious 

financial difficulties, I find that the imposition of the full 

amount of the proposed penalties would, in the aggregate, 

jeopardize the respondent 1 s ability to remain in business. 

Penalty Assessments 

In view of the foregoing findings and conclusions, and 

taking into account the civil penalty criteria found in 

1929 
section llO(i) of the Act, I conclude and find that the following 

civil penalty assessments for the violations which have been 

affirmed are reasonable and fair, and that the respondent can 

afford to pay them. 

Docket No. SE 92-145 

Citation No. Date 30 C.F.R. Section Assessment 

3395619 11/19/91 70.204 (d) (1) $10 

Docket No. SE 92-146 

citation No. Date 30 C.F.R. Section Assessment 

3395610 11/5/91 70.204(d) (1) $10 

3395611 11/5/91 75.306 $20 

3395612 11/5/91 75.512 $20 

3395613 11/5/91 70.210(b) $20 

3395617 11/18/91 75.316 $20 

3395618 11/18/91 75.301 $20 

3395347 12/2/91 75.1704-2(c) (2) $15 

3395348 12/3/91 75.523 $20 

3395579 12/2/91 75.208 $25 

ORDER 

The respondent IS ORDERED to pay the aforesaid civil penalty 

assessments within thirty (30) days of these decisions and Order. 

Payment is to be made to MSHA, and upon receipt of payment, these 

matters are dismissed. 

Section 104(a) non11 S&S" Citation No. 3395620, November 19 1 

1991ff 30 C.F R § 75.1712-4, issued in Docket No. SE 92-145, IS 

VACATED, and the proposed civil penalty assessment is DENIED AND 

DISMISSED. 

Section 104(g) (1) Order No. 3395455, September 26, 1991, 

30 C.F.R. § 48.28(a), issued in Docket No. SE 92-252, IS VACATED, 

and the proposed civil penalty assessment IS DENIED AND 

DISMISSED. 

kKfuL~ Distribution: 

Administrative Law Judge 

Anne T. Knauff, Esq., Office of th7 Solicitor, u.s. Department of 

Labor, 2002 Richard Jones Road Suite B-201, Nashville, TN 37215 

(Certified Mail) ' 

Mr. Lonnie Stockwell, Owner, Faith Coal Company Route 1, 

Box 948, Palmer, TN 37365 (Certified Mail) ' 

/ml 

1930 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ACME GRAVEL COMPANY, INC., 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BARBER BROTHERS CONTRACTING 

COMPANY, 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA)u 

Petitioner 

ACME GRAVEL COMPANY 

INCORPORATED, 

Respondent 

. . 

/ ) " 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 92-113-M 

A.C. No. 16-01094-05514 

Tynes Island Mine 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 92-118-M 

A.C. No. 16-01201-05504 

Asphalt Plant #5 

Rock Crusher 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 92-153-M 

A.C. No. 16-01217-05507 

Kent #2 

DECISIONS 

Appearances~ Ernest Burford, Esq., Office of the Solicitor, 

U.S. Department of Labor, Dallas, Texas, for the 

Petitioner; 

Before: 

John N. Fetzer, III, Esq., Baton Rouge, Louisiana, 

for the Respondents. 

Judge Koutras 

Statement of the Proceedings 

These proceedings concern proposals for assessments of civil 

penalties filed by the petitioner against the respondents 

pursuant to section llO(a) of the Federal Mine Safety and Health 

1931 
Act of 1977, 30 u.s.c. § 820(a), seeking civil penalty 

assessments for three (3) alleged violations of certain mandatory 

safety standards found in Part 56, Title 30, Code of Federal 

Regulations. The respondents filed timely contests and answers 

denying the violations, and the cases were heard in Baton Rouge, 

Louisiana. The parties were afforded an opportunity to file 

posthearing briefs, but they did not do so. 

Issues 

The issues presented in these proceedings are (1) whether 

the conditions or practices cited by the inspectors constitute 

violations of the cited mandatory safety standards, (2) whether 

two of the alleged violations were "significant and substantial" 

(S&S) and resulted from an "unwarrantable failure" to comply with 

the cited standards, and (3) the appropriate civil penalties to 

be assessed for the violations, taking into account the statutory 

civil penalty criteria found in section llO(i) of the Act. 

Applicable Statutory_dand Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 301, et seg. 

2. Sections llO(a), llO(i), and 104(d) of the Act. 

3. Commission Rules, 29 C.F.R. § 2700.1, et seq. 

stipulations 

The parties stipulated to the following (Tr. 6-11): 

l. The respondents and the mines in question are subject to 

the jurisdiction of the Act. 

2. The presiding Judge has jurisdiction to hear and decide 

these matters. 

3. The assessment of civil penalties for the violations in 

question will not adversely affect the ability of the 

respondents to continue in business. 

4. The respondents exercised good faith in timely abating 

all of conditions or practices cited as violations. 

5. The history of prior violations for the mines in 

question are reflected in three MSHA computer print-outs 

identified and received as hearing exhibits P-1 through P-3. 

With regard to the settlement disposition of two of the 

cases, the parties agreed that the following language should be 

1932 
included as part of the settlement agreements reached by the 

parties and approved by the presiding Judge (Tr. 24, 40): 

Except for these proceedings and matters arising out of 

these proceedings, and any other subsequent MSHA 

proceedings between the parties, none of the foregoing 

agreements, statements, findings, and actions taken by 

the respondent shall be deemed an admission by the 

respondent of the allegations contained within the 

citations and the petition for assessment of penalty. 

The agreements, statements, findings, and actions taken 

herein are made for the purpose of compromising and 

settling this matter economically and amicably and they 

shall not be used for any other purpose whatsoever 

except as herein stated. 

Discussion 

Docket No. CENT 92-113-M 

This case concerns a section 104(d) (1) Citation No. 3896665, 

issued on September 19, 1991, by MSHA Inspector Stephen c. 

Montgomery, citing an alleged violation of mandatory safety 

standard 30 C.F.R. § 56.11001. The cited condition or practice 

is described as follows: 

Safe access to the six (6) inch dredge was not 

provided. A four (4) feet by eight (8) feet starfoam 

pontoon was being used by the dredge operator to get to 

and from the dredge. The dredge was approximately 

forty (40) feet to fifty (50) feet from the pit bank 

and the depth of the water was approximately fifteen 

{15) feeto The dredge operator would "hand-pull" 

himself to and from the dredge with a rope that was 

anchored to the ground and tied to the dredge. The 

flat bottom aluminum boat that had been used for 

transportation, had been lost several months ago when 

the river had risen and flooded the property. The 

dredge operator said he always wore a life jacket when 

he was on the pontoon. A life jacket was lying on the 

pontoon when it was observed next to the pit bank. 

Mr. Frank Panepinto, Foreman, stated he had "told the 

dredge operator to stop using the pontoon", for 

transportation, ijisometime ago". Mr. Panepinto stated 

the "10 inchH dredge operator was supposed to carry the 

ij1 6 inch99 dredge operator back and fourth to the "6 

inch" when needed. The 11 10 inch" dredge operator had a 

flat bottom aluminum boat to use for transportation on 

the water. The 11 10 inch dredge was approximately three 

hundred (300) to four hundred (400) feet from the 

11 6 inch" dredge. 

1933 
This was an unwarrantable failure on the company and 

Mr. Frank Panepinto for not assuring the pontoon was 

not still being used for transportation and not 

providing a boat to be used for transportation for the 11 6 inch0 dredge. 

Docket No. CENT 92-153 

Section 104(d) (1) "S&S" Citation No. 3896761, issued on 

December 31, 1991, by MSHA Inspector Benny W. Lara, cites an 

alleged violation of mandatory safety standard 30 C.F.R. 

§ 56.14130(g), and the cited condition or practice is described 

as follows: 

The seatbelt was not being worn by the operator of the 

06 Cat Dozer, serial No. 3N61185. The operator assumed 

the buckle was missing. It was discovered wedged 

behind the seat. The employee stated he had only been 

working for this company about 6 months and had no 

training when hiring on., .. He stated it had a buckle one 

month ago and during operation one day a rag was tied 

to the buckle position (no buckle observed). Thought 

it was gone and used the rag. Frank v. Panepinto 

stated he has never checked to see if the belts were 

worn. The only time belts were discussed with the 

employees was when MSHA held a safety meeting during 

the last inspection. This is an unwarrantable failure. 

This machine was being used to push sand which is 12 1 

off the ground or more. 

Docket No. CENT 92-118-M 

Section 104(a) non-S&S Citation No. 3628839g issued on 

September 18 199lu by MSHA Inspector Joe c. McGregoru cites an 

alleged violation of mandatory reporting standard 30 C.F.R. 

41ol2 and the cited condition or practice is described as follows~ 

A change of person in charge of Health and Safety at 

the mine occurred and notification of change was not 

sent in to MSHA. MSHA Form 2000-7 is required to be 

updated when such changes occur. A citation for this 

violation was issued by another inspector 3/26/91. 

Findings and Conclusions 

Docket No. CENT 92-113-M 

Counsel for the parties informed me that they reached a 

proposed settlement in this case, and they jointly moved for my 

approval of the settlement. The initial proposed civil penalty 

19 34 
assessment was $250, and the respondent agreed to pay a civil 

penalty assessment of $200, with no changes in the citation as it 

was originally issued (Tr. 11, 23) Inspector Montgomery, who was 

present in the courtroom, explained the circumstances under which 

he issued the citation in question (Tr 15-18). The respondent's 

counsel pointed out that a boat was in fact being used to 

transport miners to the dredge and that the inspector admitted 

that he did not actually observe anyone using floatation devices 

that are normally used to float pipeline as a means of access to 

the dredge. Counsel further asserted that the respondent does 

not condone the use of styrofoam pontoons by its employees as a 

means of access to the dredges, and if an employee engaged in 

such conduct he did it on his own without any direction or 

instruction by the respondent. Counsel also indicated that the 

respondent provided two boats for transportation to the dredges, 

but that one was lost in a flood, and that a replacement boat has 

been purchased and two boats are presently available at the site 

for access to the dredges (Tr. 18-23). 

After careful consideraJ::.ion of the information contained in 

the pleadings, the stipulations with respect to the six statutory 

civil penalty criteria found in section llO(i) of the Act, the 

arguments and testimony presented in support of the proposed 

settlement of this case, and pursuant to Commission Rule 30, 

29 C.F.R. § 2700.30, the settlement was APPROVED from the bench 

(Tr. 24, 28). My bench decision in this regard is herein 

REAFFIRMED. 

Docket No. CENT 92-153-M 

The parties proposed to settle the seat belt violation which 

in issue in this case, and the respondent agreed to pay a 

penalty assessment of $450. The initial proposed penalty 

was $6000 In support of the settlement 1 the petitioner 0 s counsel 

stated that the equipment in question was being used on level 

ground, and although a seat belt was provided, the equipment 

operator was not using it (Tr. 29-31). The respondent's safety 

director testified that the employee in question has been 

discharged for failing to follow company written policy requiring 

the wearing of a seat belt when the equipment is in operation 

• 31) 0 

MSHA Inspector Bennie Larav the inspector who issued the 

citation and who was present in the courtroom, confirmed that a 

seatbelt was present but that the equipment operator was not 

using it. The inspector stated that the belt was found tucked 

behind the seat and that the employee was using a rag to tie the 

belt together, rather than the normal buckle used for that 

purpose (Tr. 32-37). 

After careful consideration of the pleadings and arguments 

in support of the proposed settlement, including the fact that 

1935 
the respondent's history of prior violations does not include 

prior seat belt violations, and pursuant to Commission rule 30, 

29 c.F.R. § 2700.30, the settlement was APPROVED from the bench 

(Tr. 38). My bench decision in this regard is herein REAFFIRMED. 

Docket No. CENT 92-118-M 

Fact of Violation. Citation No. 3628839. 

Mandatory reporting standard 30 C.F.R. § 41.10, which 

implements the statutory report filing requirement found in 

Section 109(d) of the Mine Act, requires a mine operator to 

submit a properly completed Legal Identity Report Form 

No. 2000-?u to MSHA. Pursuant to the language found in section 

41.10, the submission of this form constitutes adequate 

notification of legal identity. One of the items required to be 

included as part of the operator's legal identity notification 

pursuant to section 41.11, is the name of the person in charge of 

health and safety at the mine. If any changes are made with 

respect to the person placed in charge of health and safety, 

section 41.12, requires the operator to notify MSHA of the change 

in writing within 30 days after the occurrence of the change. 

Pursuant to section 41.13, any failure by an operator to notify 

MSHA in writing of any change is considered a violation of 

Section 109(d) of the Act and subject to a civil penalty as 

provided in section 110 of the Act. 

The evidence in this case reflects that Inspector McGregor 

visited the plant site on September 13, 1991, and the plant was 

not in operation. The inspector requested to speak to Mr. Dave 

Jones, the individual purportedly in charge of safety and health, 

and after being informed that Mr. Jones was no longer assigned to 

the site, the inspector left. He next returned on September 18, 

199lu and spoke with foreman Clint Johnson who confirmed that he 

had replaced Mro Jones as the responsible health and safety 

person in charge, and that this had occurred "two or more months 0 

earliero Based on this information, and without further 

documentation or verification of the actual date that Mr. Johnson 

replaced Mr. Jonesu the inspector concluded that the change had 

taken place more than 30 days earlier and had not been reported, 

and for this reasonu he issued the citation (Tro 46-48u 53). The 

inspector confirmed that Mro Johnson called the respondent 1 s risk 

manageru Mr. Frank Panepinto, and advised him that the citation 

was issued (Tro 53)" 

Inspector McGregor identified a copy of a letter dated 

September 17, 1991, addressed to MSHA's District Office in 

Dallas, Texas, with a courtesy copy to the inspector's local MSHA 

office Denham Springs, Louisiana, from the respondent's Risk 

Manager, Frank J. Panepinto, advising MSHA that Mr. Johnson 

replaced Mr. David Jones as plant foreman on August 19, 1991 

(Exhibit P=4). The inspector confirmed that the courtesy copy of 

1936 
the letter was received in his office, and he identified the 

envelope the letter came in and confirmed that it is postmarked 

September 19, 1991 (Exhibit P-5). He also confirmed that he made 

the notation "Aug. 19 to Sept. 19 is 31 days" which appears on 

the face of the envelope (Tr. 49-51). The inspector believed 

that the respondent should have notified MSHA of the change in 

question by September 18, 1991, which would have been within the 

30-day notification requirement found in section 41.12. However, 

since the envelope containing the notification letter was 

postmarked September 19, 1991, one day later, the inspector 

believed that this constituted a violation of section 41.12 

(Tr. 49-50). 

MSHA's counsel confirmed that the inspector received a fax 

copy of the Panepinto letter of September 17, 1991, from MSHA's 

Dallas office after he received the copy addressed to his local 

field office (Exhibit P-4, Tr. 75). The inspector did not 

contact the Dallas office to determine when it actually received 

the letter which Mr. Panepinto mailed to that office. At the 

conclusion of the hearing, the inspector produced a copy of an 

updated MSHA Legal Identity Report signed by Mr. Panepinto on 

September 30, 1991, and the "Effective Date of Changes 11 shown on 

the face of the report states "September 17, 1991" (Exhibit 

AIJ-1). The respondent's counsel stipulated that this form was 

submitted by Mr. Panepinto after the citation was issued in 

response to MSHA's request, and that the September 17, 1991, date 

may have been the date the report was prepared. Counsel stated 

that MSHA took the position at that time that any changes must be 

reported by using the MSHA Legal Identity Form and that a letter 

was insufficient (Tr. 76). A copy of the inspector's "subsequent 

action" terminating the citation on October 25, 1991, reflects 

that it was terminated after "a new updated legal identity report 

has been received in the district manager's office". 

At the request of the respondentu the record in this case 

was left open in order to afford the parties an opportunity to 

inquire further as to precisely when the MSHA Dallas District 

Office may have received the Panepinto letter of September 17, 

1991 (Tro 60, 70). On October 1u 1992 1 I issued an Order 

affording the parties additional time within which to submit any 

further information or any posthearing briefs. However, the 

parties failed to file anything further and my decision in this 

case is based on the current record. 

Mr. Panepinto produced a copy of a company employment and 

promotion form which reflects that Clint Johnson was promoted to 

plant foreman on August 19, 1991 (Exhibit R-1). Mr. Panepinto 

identified a copy of his September 17, 1991, letter which he 

addressed and mailed to MSHA's Dallas district office that same 

day, with a copy to Inspector McGregor's local field office in 

Denham Springs, Louisiana, advising MSHA of the change of the 

person in charge of health and safety at the plant (foreman 

1937 
Johnson), and he confirmed that he signed and mailed the letter 

within 28 or 29 days after the change (Tr. 54-58). Absent any 

evidence to the contrary, I believe it is reasonable to conclude 

that Mr. Panepinto mailed the letter after being informed of the 

inspector's inquiry at the mine site during his inspection and 

the fact that he issued a citation. 

Respondent's counsel argued that although it seems clear 

from the language found in regulatory section 41.12, that MSHA 

must be notified of any changes "within thirty days after the 

occurrence of any change", there is nothing in that regulation 

that states that the notification must be received by MSHA's 

District Office within 30-days after the change. Since the 

unrebutted evidence establishes that the Panepinto letter of 

September 17, 1991, was written and mailed within the 30-day 

period, counsel concluded that the respondent has substantially 

complied with section 41.12 (Tr. 65-67). 

MSHA's counsel agreed that the issue in this case is whether 

or not the filing of the September 17, 1991, letter by 

Mr. Panepinto advising MSHA that Mr. Johnson replaced Mr. Jones 

as the responsible health and safety person at the mine was 

complete upon mailing, or upon receipt of the letter by MSHA 

Tr. 51). Counsel further agreed that if Mr. Panepinto's letter 

was received by MSHA'S Dallas office on September 18, 1991, the 

respondent would be in compliance with the 30-day notification 

requirement found in section 41.12 (Tr. 64). Counsel suggested 

that in the event the respondent could establish that the Dallas 

office timely received the letter by September 18, 1991, he would 

move to withdraw the civil penalty proposal (Tr. 72). 

The contested citation issued by Inspector McGregor cites an 

alleged violation of section 4lol2p and included as part of the 

description of the violative condition or practice is a statement 

the inspector that 91MSHA Form 2000-7 is required to be updated 

when such changes occurno However 6 the theory of MSHAvs case is 

that the respondent did not comply with section 41.12, because 

the Panepinto letter of September 17 1 1991, was received in the 

inspector 9 s field office on September 19u 1991, one day after the 

30-day notice period for informing MSHA of the change in question 

expired. Neither the inspector or MSHA 0 s counsel advanced any 

testimony or arguments that the citation was based on the 

respondent's failure to timely submit an updated MSHA 

Form 2000=7u or that a notification by letter 0 rather than the 

formu was insuffi9ient or unacceptable. Indeed, when this 

question was raised by the presiding judge at the conclusion of 

the hearing after Inspector McGregor volunteered a copy of the 

updated From 2000-7, which apparently served as the basis for the 

termination of the citation, MSHA's counsel took the position 

that notification of any changes transmitted by letter is 

sufficient to comply with section 41.12, and that the submission 

of the form is not necessary to achieve compliance (Tr. 78). 

1938 
I find nothing in section 41.12, that requires the use of an 

MSHA report form to notify MSHA of any changes in the required 

legal identity information provided by a mine operator. That 

section simply requires written notification to MSHA within 

30 days after the occurrence of any change. However, I take note 

of the fact that section 41.20, requires an operator to file 

"notification of legal identity and every change thereof" with 

the appropriate MSHA district manager, "by properly completing, 

mailing, or otherwise delivering Form 2000-7 legal identity 

report". 

The respondent is not charged with a violation of 

section 41.20, for failing to submit an updated Form 2000-1, 

reporting a change in the person responsible for health and 

safety at the mine site in question. As noted earlier, MSHA's 

case is based on its assertion that the respondent's letter of 

notification, which MSHA concedes was an acceptable method of 

notification pursuant to the cited section 41.12, was received 

one day late. Assuming that section 41.20, can be interpreted to 

apply to section 41.12, notification could still be accomplished 

by simply completing and mail,!ng the form to MSHA 1 s district 

manger. 

On the facts of this case, and considering the position 

taken by MSHA, I conclude and find that the evidence presented 

establishes that the respondent provided the requisite written 

notification of the change in question within 30 days after it 

occurred, and that the preparation and mailing of the 

notification letter.by Mr. Panepinto within this time frame 

constituted adequate compliance with section 41.12, notwithstanding the fact the the letter was received more than 30 days 

after the change took place, and that the method of transmitting 

the information was by letter rather than an MSHA form. Under 

the circumstancesu I further conclude and find that MSHA has 

failed to establish a violationp and the citation IS VACATEDo 

ORDER 

In view of the foregoing findings and conclusions, IT IS 

ORDERED AS FOLLOWS~ 

lo Docket No. CENT 92-113-M. The respondent shall pay a 

civil penalty assessment of $200, in satisfaction of 

Section 104(d) (1) citation No. 3896665, September 19, l99lp 

30 C.FoRo § 56.11001. 

2. Docket No. CENT 92-153. The respondent shall pay a 

civil penalty assessment of $450, in satisfaction of 

Section 104(d) (1) Citation No. 3896761, December 31, 

1991, 30 C.F.R. § 56.14130(g). 

1939 
3. Docket No. CENT 92-118-M. The contested Section l04(a) 

Citation No. 3628839, IS VACATED, and the petitioner's 

proposed civil penalty assessment for this alleged violation 

IS DENIED AND DISMISSED. 

Payment of the aforesaid civil penalty assessments shall be 

made by the respondent to MSHA within thirty (30) days of the 

date of these decisions and Order, and upon receipt of payment, 

these proceedings are dismissed. 

~K!~ Administrative Law Judge 

Distribution: 

Ernest A. Burford, Esq., Office of the Solicitor, u.s. Department 

of Labor, 525 South Griffin Street, Suite 501, Dallas, TX 75203 

(Certified Mail) 

John H. Fetzer, III, Esq., P.O. Box 65121, Baton Rouge, LA 70896 

(Certified Mail) 

Mr. Frank J. Panepinto, Barber Brothers contracting Company, 

Inc., P.O. Box 66296, 2636 Dougherty Drive, Baton Rouge, LA 

70896 (Certified Mail) 

/ml 

1940 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

(303) 844-5266/FAX (303) 844-5268 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PITTSBURG AND MIDWAY COAL 

MINING COMPANY, 

Respondent 

Docket No. CENT 91-196 

A.C. No. 29-00224-03563 

Cimarron Mine 

Docket No. CENT 91-197 

A.C. No. 29-00845-03540 

Docket No. CENT 91-202 

A.C. No. 29-00095-03561 

York Canyon-Underground Mine 

DECISION 

Appearances: 

lSeforeg 

William E. Everheart, Esq., Office of the Solicitor, U.S. Department of Labor, Dallas, Texas, 

for Petitioner; 

John W. Paul, Esq., THE PITTSBURG & MIDWAY COAL 

MINING COMPANY, Englewood, Colorado, 

for Respondent. 

Judge Morris 

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

Health Administration ("MSHA") charges Respondent Pittsburg and 

Midway Coal company ("P&M") with violating safety regulations 

promulgated under the Federal Mine Safety and Health Act of 1977, 

o u.s.c. § 801 et~ (the nAct"). 

A hearing on the merits was held in Alamosa, Colorado, on 

April 1u 1992. 

At the commencement of the hearing the ~arties stipulated as 

follows: r 

J 

• • I 1. The York Canyon Surface Mine, mine I.D. No. 29-00845; 

the Cimmaron Mine, mine I.D. No. 29-00224; and York Canyon Underground Mine, mine I.D. No. 29-00095, are subject to the jurisdiction of the Federal Mine safety and Health Act of 1977, and the 

Federal Mine Safety and Heal th Review Co11uniss ion. 

1941 
2. The Citations in CENT 91-197 numbered 3243235, 3243236, 

and 324327 and citation No. 3243346 in CENT 91-196 were all properly served by a duly authorized representative of the Secretary 

of Labor upon an agent of the Pittsburgh and Midway Coal Mining 

Company and may be admitted into evidence for the purpose of 

establishing their issuance, and not for the truthfulness or 

relevancy of the statements asserted therein. 

3. The assessment of civil penalties in CENT 91-197, CENT 

91-196, and CENT 91-202 will not affect Respondent's ability to 

continue in business. 

4. The alleged violations contained in the Citations in 

CENT 91-197, CENT 91-196, and CENT 91-202, were abated in a 

timely fashion and Respondent demonstrated good faith in obtainabatement. 

5. The sizes of the three mines of the Pittsburg and 

Midway Coal Company are as follows: 

a. York Canyon Surface Mine, I.D. No. 29-00845 -

company size 13,587,727 production tons; mine size 482,069 in 

produced tons; 

b. Cimmaron Mine, I.D. No. 29-00224 - mine size 

73,843 produced tons; 

c. York Canyon underground Mine, I.D. No. 29-0095 -

mine size is listed, the company size 13,587,727 produced tons. 

CENT 91-196 

Citation ~Oo ~243318 alleges P&M violated 30 C.F.R. 

§ 75.316. At the commencement of the hearing, the Secretary 

withdrew the "Significant and Substantial" classification and 

reduced the proposed penalty from $157 to $20. 

Respondent admitted the violation of the Citation as 

amended. 

The Citation and proposed amended penalty should be 

affirmed. 

1942 
Citation Bo. 3243346 was modified to allege P&M violated 30 

C.F.R. §75.1722(a). 1 

Federal coal mine inspector ANTHONY DURAN, during an AAA 

inspection, observed an auxiliary floor fan was inadequately 

guarded. The pulley was exposed and a person could contact moving parts. The fan withdraws float coal dust from the face and 

blows it into the return. the blower fan is chest high. The 

inspector would be an arm's reach from the pulley if he was dumping rock dust into the hopper. (P-17, P-18). 

P&M admitted it violated§ 75.17223(a). At issue is whether 

the violation should be classified as significant and 

substantial. (Tr. 8). 

A violation is properly designated as being S&S "if, based 

on the particular facts surrounding the violation, there exists a 

reasonable likelihood that the hazard contributed to will result 

in an injury or illness of a reasonably serious nature." Cement 

Division National Gypsum, 6 J''MSHRC 822, 825 (April 1981). In 

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

explained: 

In order to establish that a violation 

of a mandatory standard is significant and 

substantial under National Gypsum the Secretary must prove: (1) the underlying violation of a mandatory safety standard; (2) a 

discrete safety hazard--that is, a measure of 

danger to safety--contributed to by the violation; (3) a reasonable likelihood that the 

hazard contribu~ed to will result in an injury; and (4) a reasonable likelihood that 

the injury in ques-tion will be of a reasonably serious natureo 

See also Austin Power Co. v. Secretary, 861 F.2d 99, 103-104 (5th 

Ciro 1988)v aff 1 g, 9 FMSHRC 2015u 2021 (December 1987) (approving 

Mathies criteria)o The question of whether any specific violaviolation is S&S must be based on the particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498, 500-501 

§ 75.1722 Mechanical equipaent guards. 

(a) Gears; sprockets; chains; drive, head, tail, 

and takeup pulleys; fly-wheels; couplings, shafts; 

sawblades; fan inlets; and similar exposed moving 

machine parts which may be contacted by persons, and 

·. 11.~ch may cause injury to persons shall be guarded. 

1943 
(April 1988); Youghiogheny and Ohio coal Co. 9 FMSHRC 2007, 2011-

2012 (December 1987). 

In connection with Citation No. 3243346, the evidence shows 

a violation of the underlying guarding regulation. There was a 

measure of danger contributed to by the violation. Unguarded 

equipment is reasonably likely to result in an injury. Becoming 

entangled with unguarded parts such as shown in P-18 will cause a 

reasonably serious injury. In sum, I agree with Inspector Duran 

when he classified this as an S & S violation. (Tr. 51-52). 

Citation No. 3243347 alleges P&M violated 30 c.F.R. 

§ 75.503. 

P&M withdrew its contest to this Citation and accepted the 

proposed penalty of $20. (Tr. 8). Accordingly, the Citation and 

proposed penalty should be affirmed. 

CENT 91-197 

citation No. 3243235 alleges P&M violated 30 C.F.R. 

§ 77.1605(k). 

MSHA Inspector Donald L. Jordan testified as to the alleged 

berm violation. At the conclusion of the hearing, P&M withdrew 

its contest to the Citation. (Tr. 88). 

P&M's motion was granted. The Citation and the proposed 

penalty should be affirmed. 

Citation Nom 3243236 alleges P&M violated 30 C.F.R. 

77o4l0o 2 

MSHA Inspector DONALD JORDAN issued this citation for an 

explosive truck that had a non-functioning backup alarm. The 

truck is designed with large boxes on each side. (P-9). 

Inspector Jordan opined that pickup trucks are required to 

have a backup alarm if vision is not clear to the rear. He con2 § 77.410 Mobile equipment; auto•atic warning devices. 

Mobile equipment, such as trucks, forklifts, front-end 

loaders, tractors and graders, shall be equipped with an 

adequate automatic warning device which shall give an 

audible alarm when such equipment is put in reverse. 

1944 
sidered the violation to be S&S. Workers were always around the 

truck putting priming explosives in holes. 

MICHAEL KOTRICK, P&M safety manager, produced photographs 

that show a relatively clear view from front to rear of the 

explosives truck. (R-1, R-2, R-3). In Mr. Kotrick's opinion, 

the wire mesh on the truck permits a greater "see through" than 

does a standard pickup with an ordinary tailgate. 

In P&M's business, miners take detonators and primer cord 

and drop them in holes. However, kneeling by the truck is not 

part of the procedure. 

The parties in this case injected an issue of "see through" 

visibility, that is, if the driver of the truck could see workers 

to the rear no backup alarm is required. However, the regulation 

does not recognize this exception as it simply requires an audible alarm 'on mobile equipment when the equipment is put in 

reverse. 

Since P&M's truck had no alarm, the citation should be 

affirmed• 

I agree with Inspector Jordan's evaluation that this violation was S&S. The S&S criteria, set forth above, is established by the evidence. Specifically, there was a violation of 

the mandatory safety standard and a measure of danger to safety 

was contributed to by the violation. Further, it is uncontroverted that miners work in close proximity to the truck. The 

final criteria is established: a truck backing into a miner 

would cause reasonably serious injuries or a fatality. 

P&M was negligent since it should have known the backup 

alarm was inoperativeo Gravity has been discussed in connection 

with the S&S criteria. 

Citation No& 3243236 should be affirmed. 

Citation Moo 3243231 alleges P&M violated 30 C.F.R. 

§ 7701104 ¢ 

3 

Federal Coal Mine Inspector Donald Jordan issued this Citation in the PEPCO Buildings, a Class 2v Division 2 building. 

In such a buildingu since there are no explosion-proof motors, 

3 S 77.1104 Accumulations of combustible materials. 

Combustible materials, grease, lubricants, paints, or 

flammable liquids shall not be allowed to accumulate 

where they can create a fire hazard. 

1945 
the operator agrees to keep the area free of combustibles such as 

flammable liquids, oil, grease, coal dust, etc. (Tr. 23). 

Mr. Jordan saw an oil and float coal dust accumulation 

averaging'l/16th of an inch thick. (Tr. 24). The accumulation 

was on a flat metal surface surrounding a 460-volt A.C. motor. 

(P-11 shows the accumulation; P-14 shows tracks on the floor from 

Mr. Jordan's shoes.) 

Mr. Jordan believed the float coal dust in the presence of 

oil created an insulating effect that prevented the motor from 

adequately cooling. Under normal circumstances, Mr. Jordan 

agreed that the probability of ignition or fire was highly unlikely. However, tests reveal that 64/100 of an inch accumulation on a flat surface would propagate ignition if given the 

proper heat. (Tr. 27}. 

In Mr. Jordan's opinion, heat would come from the motor if 

overheated because of excessive coal dust in the cooling fans. 

In Mr. Jordan's opinion there,-was a strong probability that an 

accident or serious injury couJ.d occur. An explosion would be 

remote but he considered a fire to be a strong possibility. 

Mr. Jordan concluded the violation was S&S. 

Under § 77.1104, the Secretary must prove there were (1) 

combustible materials, (2) such combustibles were allowed to 

accumulate and (3) they created a fire hazard. 

In Texasgulf, Inc., 10 FMSHRC 498 (April 1988), the Commission developed an analytical approach useful for determining 

the reasonable likelihood of a combustion hazard resulting in an 

ignition or explosion. The Commission established that there 

must be a noconfluence of factors 19 to create a likelihood of ign1~1on0 o Compare~ Eastern Associated Coal Corporation, 13 

FMSHRC 178 (February 1991) involving Section 75.400. 

In the instant case, I credit the testimony of P&M's safety 

manager Michael Katrick who testified as to a fire triangle and 

described the three legs as~ oxygen 0 ignition source 0 and fuel 

in vaporized form. (Tr. 64 0 65). 

Further 0 a flash point is a point where sufficient vapors 

are given off a substance for it to be ignited. (Tr. 66). The 

lowest flash point at P&M's site was the transmission fluid. Its 

flashpoint was 160 degrees Centigrade. P&M's lab tested coal 

dust and the flash point was found to be in excess of 500 degrees 

Fahrenheit. (Tr. 69, 70). 

Mr. Kotrick concluded the minimum flash point would be 160 

degrees. (Tr. 71). The motors were tested and their highest 

1946 
temperature was 55 degrees Fahrenheit. The motors are specifically designed to be used in a Class 2 Division 2 area. 

Based on his research, Mr. Kotrick concluded the accumulations were a combustible mixture. (Tr. 74-75). While the materials are classified as combustible in a definitional sense, 

there were not present in a combustible state. (Tr. 74). There 

were no open flames nor electrical sparks in the area. (Tr. 75). 

The motor was not malfunctioning. In addition, there were fire 

extinguishers 10 to 20 feet away. 

The Secretary's post-trial brief relies on Inspector 

Jordan's qpinion. {Tr. 28, 29). However, I am not persuaded. 

Mr. Jordan agreed he did not know the flash point of the materials he observed in accumulation nor did he have any information regarding the heat given off the surface of the apparatus 

where the dust and oil accumulated. (Tr. 34). Further, there 

was no short circuit or evidence of malfunction. Mr. Jordan 

further agreed he had no way of knowing if the accumulation 

caused excessive heat. (Tr. ,35). 

The Secretary failed to establish an ignition source and 

fuel to support a fire. Accordingly, Citation No. 3243237 should 

be vacated. 

Citation No. 3243342 alleges P&M violated 30 C.F.R. 

§ 77.1303(ii). P&M has admitted the occurrence of the violation. 

The Secretary, upon the evaluation of new evidence provided by 

P&M agreed to withdraw the classification from "Significant and 

Substantial" and proposed a single assessment of $20. (Tr. 7). 

The motions were granted. The Citation and amended civil 

penalty should be firmed. 

CENT 91-202 

Citation No. 3243321 alleges P&M violated 30 C.F.R. 

§ 77.400(a) 4 P&M admits the violation. At issue are the S&S 

allegations and the penaltyo (Tr. 8). 

Inspector DONALD JORDAN issued this Citation. He found the 

west end of the feeder slide on the walkway side and the draw-off 

4 § 77.400 Mechanical equipment guards. 

{a) Gears; sprockets; chains; drive, head, tail, and 

takeup pulleys; flywheels; couplings; shafts; sawblades; 

fan inlets; and similar exposed moving machine parts 

which may be contacted by persons, and which may cause 

injury to persons shall be guarded. 

1947 
tunnel at the prep land where a person could be injured was not 

guarded. The feeder slide is a moving machine part. (Tr. 31). 

This is an area that must be examined several times a shift. 

The area must be checked for methane, coal spillage and 

accumulations. 

There was a handrail parallel to the feeder slide. However, 

the handrail does not prevent a person from reaching into the 

slide. 

Inspector Jordan considered the violation to be S&S because 

a person could become entangled and incur serious injuries. An 

injury could include the loss of a hand or arm. (Tr. 32, 33). 

MICHAEL KOTRICK, testifying for P&M, did not contradict 

Mr. Jordan. He indicated the area is isolated. The 36-inch 

walkway is made of a heavy metal grating. (Tr. 77). 

The railing, approximately40 inches high, is between a 

feeder and the walkway. The hazard is 12 to 18 inches beyond the 

railing . .(Tr. 78). The railing could be contacted by anyone who 

might slip. (Tr. 79). 

In order to establish an S&S violation, the Secretary must 

establish evidence to comply with the Commission mandate set 

forth, supra. 

Of the four elements required, I do not find there was a 

reasonable likelihood that the hazard contributed to will result 

in an injury. If a person were to slip on the walkway, he would 

most likely steady himself on the adjacent guardrail. Further, 

the unguarded feeder slide was 12 to 18 inches beyond the rail. 

The S&S violations should be stricken. 

P&M was negligent in failing to guard the feeder slide. This 

was an open and obvious condition. 

The gravity of this violation should be considered as low 

since the unguarded equipment was 12 to 18 inches beyond the 

railingo 

CIVIL PENALTIES 

P&M 1 s negligence and the gravity of the violations have been 

previously discussed. The remaining statutory criteria to assess 

civil penalties is contained in Section llO(i) of ·the Act. 

The stipulation (~ 5) indicates P&M is a large operator. 

Further, the penalties are appropriate and wi'l not affect the 

company's ability to continue in business. 

19 48 
P&M's previous adverse history, as evidenced by Exhibits Pl, P-2, and P-3, is average. 

The stipulation further indicated P&M promptly abated the 

violative condition. The operator is entitled to statutory good 

faith. 

For the foregoing reasons, I enter the following: 

ORDER 

CENT 91-196 

1. Citation No. 3243318 and the penalty of $20, as 

amended, are AFFIRMED. 

2. citation No. 3243346 is AFFIRMED and a civil penalty 

$100 is ASSESSED. 

-,,,,.,. 

3. citation No. 3243347 i.s AFFIRMED and a civil penalty 

$20 is ASSESSED. 

CENT 91-197 

4. Citation Ho. 3243235 is AFFIRMED and the proposed 

penalty of $227 is ASSESSED. 

of 

of 

5. Citation No. 3243236 is AFFIRMED and penalty of $200 is 

ASSESSED. 

6. Citation No. 3243237 is VACATED. 

7, citation Noo 324334~ is AFFIRMED and a civil penalty of 

2 0 ASSESSED. " 

CENT 91-202 

80 The S&S allegations are STRICKEN from Citation Noa ~2433210 

9o Citation Noo 3243321, as amended, is AFFIRMED and a 

civil penalty of $50 is ASSESSED. 

1949 
Distribution: 

William E. Everheart, Esq., Deputy Regional Solicitor, 55 Griffin 

Square Building, Suite 501, Dallas, TX 75202 (Certified Mail) 

John W. Paul, Esq., THE PITTSBURG & MIDWAY COAL MINING CO., 6400 

South Fiddler's Green Circle, Englewood, CO 80111-4991 

(Certified Mail) 

ek 

1950 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

(303) 844-5266/FAX {303) 844-5268 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Petitioner 

Docket No. WEST 92-93 

A.C. No. 05-00301-03671 

v. Roadside Mine 

POWDERHORN COAL COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION 

Robert J. Murphy, Esq., Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, 

for Petitioner; 

Edward Mulhall, Jr., Esq., Glenwood Springs, 

Colorado, 

for Respondent. 

Judge cetti 

statement of the Proceedings 

This case is before me upon a petition for assessment of 

civil penalties under Section 105(d) of the Federal Mine Safety 

and Health Act of 1977v 30 u.s.c. § 801 et ~f (the "Act). The 

Secretary of Labor, on behalf of the Mine Safety and Health Administration, (MSHA), charges the Powderhorn Coal Company 

(Powderhorn), the operator of the Roadside Mine, with a 104(a), 

non S&S, violation of the mandatory regulatory standard found in 

30 C.F.R. § 77.207 and proposed a $20 civil penalty assessment. 

The .operator filed a timely answer contesting the alleged 

violation and the case was docketed for hearing. 

Pursuant to notice, an evidentiary hearing on the merits was 

held before me on the primary issue of whether or not there was a 

violation of the mandatory safety standard 30 C.F.R. § 77.207. 

Both parties filed helpful post-hearing briefs raising many 

points and arguments that I have considered in deciding this 

matter. 

stipulations 

The parties stipulated to the following: 

1951 
1. The Mine Safety & Health Review Commission has 

jurisdiction. 

2. Respondent is an operator within the meaning of and 

subject to the Federal Mine Safety and Health Act 

of 1977. 

3. citation No. 3582104 was issued by Mine Safety and 

Health Inspector David L. Head on June 24, 1991, 

charging a section 104(a) violation of 30 C.F.R. 

§ 77.207. 

4. Powderhorn's total coal production was 187,167 tons 

for the 12 month pried preceding the issuance of 

the citation. 

5. Any determination in connection with this citation 

will not adversely affect Powderhorn's ability to 

continue in business. 

Findings and Discussion 

Federal Coal Mine Inspector David L. Head, an experienced 

electrical inspector, was assigned by his supervisor to make a 

complete electrical inspection of both the surf ace and underground area of the Roadside Mine located a few miles East of 

Palisade, Colorado. Inspector Head during his electrical inspection was accompanied by Mr. Henry Barbe of the Roadside Mine 

Safety Department who later became and presently is the mine's 

Safety Supervisor. 

On June 24, 1991, Inspector Head issued the 104(a) non S&S 

citation in question, Citation No. 3582104; which states~ 

No illumination was provided at electrical 

substation (C) and switch panels located on 

east side of the surface shops area. 

No illumination was provided on the path or 

walkway to the substation area. 

The cited mandatory safety standard 30 C.F.R. § 77.207 reads 

as follows~ 

§ 770207 Illumination. 

Illumination sufficient to provide safe 

working conditions shall be provided in and 

on all surface structures, paths, walkways, 

.stairways, switch panels, loading and dumping 

sites, and working areas. 

1952 
The testimony of Inspector Head that there was no illumination on the path or walkway to the surf ace substation in question 

or at the substation or its switch panels, other than miner's cap 

lamp that may or should be worn by a miner going to the substation, was undisputed. 

Inspector Head testified that during his triple A inspection 

of the mine, he observed the surface substation in darkness as 

well as during daylight hours and he elaborated as follows: 

Q. And could you describe the conditions that you 

observed both at 10:45 a.m. and also in the 

darkness. 

A. In the darkness hours you could not see the 

substation from the bottom of the walkway or the 

pathway without knowing the substation was there. 

There was no illumination provided at all in that 

area. 

Q. Now, are you t~Iling us today that at the time you 

wrote the citation there was abolutely no illumination whatsoever at the substation? 

A. That's correct. Tr. 20. 

With respect to the location of the surface substation and 

purpose of the substation, Inspector Head testified that the 

substation sits on a ledge above the other facilities with a 11 25 

to 30 foot vertical drop-off." There was a high voltage transmission line ''directly across the substation approximately 15 to 

20 feet high." Inside the fenced area there is an "enclosed type 

transformer and three disconnects of the 225 amps square D type. 

Each one a main disconnect for the warehousev the bath house 1 

the office facilities and the shop area. iv 

Inspector Head on being asked to explain in more detail what 

he meant by a "vertical drop-off" in his description of the location of the substation testified as follows: 

Q. Nows in your description of the location of the 

substation you said there was a vertical drop-off; 

could you explain that in a little more detail. 

A. Yes, sir. The vertical pathway that used to be 

used down there had a wire strung down from the top 

that they used to pull their selves up on to check 

the substation. That was immediately terminated at 

the time. The pathway was then determined as the 

direct route to the substation from the back of the 

mine over the portal area, which started out as a 

roadway. It's still cliff area, a vertical drop19 53 
off, and drops down to a path. There is tripping 

hazards, a lot of rocks, sagebrush, different types 

of things, to the substation area. 

Q. So how would one traverse this pathway? 

A. He would start at the--across the canyonway on the 

opposite side of the conveyor belt and start his 

climbing to the elevation of the substation, which 

would be on the opposite side of the canyon. You 

make a horseshoe-type exit--or approach. 

Q. Could you describe in terms of difficulty how it is 

to traverse this particular pathway. 

A. Without proper illumination at 

very hard to have visual sight 

substation in the first place. 

of tripping hazards involved. 

have some artifical lighting. 

night, it would be 

to get to the 

It would be a lot 

You would have to 

Q. Would the elevation--you said there was a vertical 

drop-off with the substation. Would the elevation 

pose any particular difficulty for a person trying 

to traverse this pathway in the dark. 

A. Yes, it would. Tr. 18-19. 

A miner would have to go to the substation not only for 

monthly examination but also in an emergency, such as troubleshooting the problem of a breaker tripping out in one of the 

facilities. Inspector Head testified that a cap lamp worn by a 

miner does not furnish sufficient illumination to provide safe 

working conditions into the electrical substation with the 

voltage that was present in the substation. A cap lamp does not 

provide 01 sufficient quality of light 11 in the substation area to 

meet the safety standard in question. Tr. 23, 57. 

Powderhorn contends that since cap lamps are used underground for light, they should be satisfactory for surface illumination. With regard to this contention, Inspector Head was 

questioned and testified as follows: 

Q. Okay. And also during your crossexamination you were asked a series 

of questions why you thought it was 

okay for an electrician using a 

head lamp to work on a power source 

or power panel underground, but in 

your opinion that would not be 

sufficient at this particular 

1954 
substation; do you recall that line 

of questioning? 

A. Yes, sir. 

Q. Would you explain in your opinion 

as to why there is a difference . 

. A. on the underground high voltage 

circuit, the circuit would be 

locked out at the source. It would 

be grounded out from phase to 

ground. There would be no incoming 

power available to go into the 

substation to do any kind of work 

or troubleshooting at that time. 

Q. And I know I'm perhaps stating a 

very obvious question, but the 

weather conditions underground are 

considerably different than on the 

surface; is that not correct? 

A. Yes, sir. Underground would be a 

constant atmosphere. On the 

surf ace would be changes in the 

weather. Tr. 56. 

Inspector Head testified that the quality of light supplied 

by a miners' cap lamp was not sufficient in the area in question 

to provid~ a safe work environment. Tr. 57. He noted that 

weather conditions underground are considerably different than on 

the surface. Underground there is a constant atmosphere while 

the surface is subject to weather changes. 

At the time of the hearing, the mine was working a night 

shift as well as a day shift and a maintenance shift. Mr. Barbe 

testified that there have been night shifts since October or 

November of 1991 but there was only a single day shift starting 

at 7 aomo at the time the citation was issued on June 24, 1991. 

He stated the miners; would get to the mine to get ready for the 

day shift about 6 a.m. Inspector Head recalled "there's been 

power outages at the mine at different times "including a failure 

during a night shift underground some time before the citation 

involved here was issued. Tr. 49. 

Respondent concedes that the substation was subject to 

monthly inspections and that "typically, those inspections are 

conducted during daylight hours when there is plenty illumination 

from the sun." I accept this statement as well as Respondent's 

statement that "only on rare occasions would there be any possibility of going up there to substation cat night." Tr. 7 line 

1955 
11-15. Clearly this is why the citation designated the violation 

as a non S&S violation, injury unlikely, negligence low, and only 

a $20 penalty proposed. 

Inspector Head is an experienced, well qualified mine inspector. I credit his testimony. Based upon his testimony and 

on his informed judgment, I find that there was a violation of 

the safety standard 30 C.F.R. § 77.207 as alleged in Citation No. 

3582104. See Secretary of Labor v. Clinchfield Coal Compan". 

issued March 12, 1979, MSHC 2027, review denied by the Commission 

in April 1979, affirmed in Clinchfield Coal Company v. Secretary 

of Labor, 620 F.2d 292 (4th Cir. 1980), 1 MSHC 2337 (1980). In 

that case the Court of Appeals upheld a finding of insufficient 

illumination based on the "informed judgment [of the inspector] 

of what constituted sufficient illumination." 

on consideration of the statutory criteria in section llO(i) 

of the Act, I concur with MSHA's proposed $20 penalty assessment 

for this non S&S violation. This is a modest but appropriate 

penalty under all the facts and circumstances established at the 

hearing. 

ORDER 

The Respondent is ORDERED TO PAY a civil penalty assessment 

in the amount of $20, in satisfaction of the violation in 

question. Payment is to be made to MSHA within thirty (30) days 

of the date of this decision and order, and upon receipt of 

payment, this matter is dismissed. 

Distribution~ 

Robert J. Murphy; Esq., Office of the Solicitor, U.S. Department 

of Laboru 1585 Federal Office Building, 1961 Stout Street, 

Denver, CO 80294 (Certified Mail) 

Edward Mulhall, Jr., Esq., DELANEY & BALCOMB, P.C., P.O. Drawer 

790, 818 Colorado Avenue, Glenwood Springs, co 81602 

(Certified Mail) 

sh 

1956 
ADMINISTRATIVE LAW JUDGE ORDERS 

IN RE: 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 29 1992 

CONTESTS OF RESPIRABLE 

DUST SAMPLE ALTERATION 

CITATIONS 

) 

) 

) 

Master Docket No. 91-1 

ORDER DENYING MOTION TO EXCLUDE CERTAIN 

TESTIMONY OF ROBERT THAXTON 

on October 7, 1992, Contestants, by the Lead Defense Counsel 

Committee, filed a motion for an order precluding the Secretary 

from offering at the common issues trial testimony of Robert 

Thaxton relating to his March 1992 reclassification of the cited 

dust filters according to his tamper codes. On October 19, 1992, 

the Secretary filed a response to the motion asking that the 

motion be denied. On October 22, 1992, Contestants filed a reply 

to the Secretary's response. On the same day, Contestant U.S. 

Steel Mining Company, Inc. (U.S.M.) filed a separate reply. On 

October 26, 1992, the Secretary filed a motion to strike 

Contestants' and U.S.M.'s replies and, in the alternative, to 

accept the Secretary's response which she filed the same day. I 

am accepting and have considered the replies and the Secretary's 

response thereto in deciding the pending motion. 

~actual and Procedural Background 

The Secretary 1 s Document 405 in the document repository is a 

computer data base providing information on each of the cited 

filters, including the mine identification number, cassette 

number, sampling date, weight, and the classification of the 

filter under one of the twelve tamper codes devised by Thaxton. 

Of the more than 5000 cited filtersu 652 were included under 

tamper code 1, 4161 under tamper code 2u 36 under tamper code 3, 

and the remainder under the other nine tamper codes, varying from 

4 to 293" This classification apparently took place over a 

period of time, but was certainly completed by July 1991, 

when the document repository was opened. Thaxton prepared a 

report entitled "'AWC' Citation Determination Report" on February 

7v 1992, which was made available to Contestants shortly 

thereafter. 

The Secretary and Contestants have engaged expert witnesses 

who analyzed the cited filters, compared them with experimental 

filters, and prepared reports directed in part to the question of 

the cause of the abnormal white centers and other phenomena 

observed in the cited filters. Under the Discovery Plan, as 

amended from time to time, expert witness reports were to be 

19 57 
exchanged by February 7, 1992, and expert witness depositions 

were to be completed by October 16, 1992. The latter was 

extended at Contestants' request to October 23, 1992. In March 

1992, Thaxton made a "second review" of the cited filters, which 

involved the separation of the filter media and backing pad, 

apparently not done in the first examination. This second review 

resulted in changes of the tamper codes for 464 filters. The 

most significant changes were in tamper codes 2 and 3. Tamper 

code 2 is entitled "cleaned"; tamper code 3 is entitled "cleaned 

and coned". The number of filters included under tamper code 3 

was increased from 36 to 440. The number of filters under tamper 

code 2 was reduced from 4161 to 3742. Thaxton prepared a report 

entitled '"AWC' Common Issues Report" on September 25, 1992, 

describing the changes in the tamper code assigned to each 

filter. This report also revealed that he reviewed approximately 

5100 samples stored in the Pittsburgh Health and Technology 

Center which had been received from mine operators in November 

and December 1991 and June 1992 and which had not been cited. It 

further included an analysis of the experimental filters prepared 

by the R.J. Lee Group, Drs. Yao and Malloy, Dr. McFarland, and 

Dr. Grayson, all of whom are Contestants' experts, and Dr. 

Marple, an expert engaged by the Secretary. The report was made 

available to Contestants on September 25, 1992. 

Contestants' motion argues that the reclassification of the 

filters was deliberately withheld from Contestants for more than 

6 months, that the Secretary had the clear obligation to disclose 

this information, and that her failure to do so undermines 

Contestants' ability to prepare for the common issues trial. 

They assert that they have been seriously prejudiced and that the 

only appropriate sanction for the Secretary's misconduct is to 

exclude the evidence that was withheld. The Secretary argues 

that her burden is to establish that the weight of dust in the 

cited filters was deliberately alteredu and the precise manner of 

the alteration (the tamper code) not part of her burden of 

proof The Secretary further assets that~ 

The tamper code assignment during the second 

filter review did not ••o involve any 

modification to any tamper codes during the 

first review which are set forth in Document 

405 oo•o all that occurred was that a column 

was added to MSHA 1 s data base to reflect the 

results of Thaxton 1 s observation of the cited 

filters as they appeared in March 1992. This 

recordation did not change Thaxtonvs 

observations of the cited filters as they 

appeared during his initial review. 

(emphasis in original). These assertions are further explained 

by the statement that the changed classification in some 

instances resulted from a change in the appearance of the filter 

1958 
caused by handling and by the passage of time, and in other 

instances because Thaxton observed "coning" or "dimpling" on the 

filter after the backing pad was removed. If the Secretary is 

arguing that the March 1992 review did not result in a change in 

Thaxton's conclusions as to the nature of the AWC phenomena on 

the 464 filters which were reclassified, the argument is 

incomprehensible and is rejected. 

Rule 26(e) 

Rule 26(e) (1) (B) of the Federal Rules of Civil Procedure 

requires a party to seasonably supplement a response to a 

discovery request to include information subsequently acquired on 

the subject matter on which an expert witness is expected to 

testify at trial. Rule 26(e) (2) (B) requires a party to 

seasonably amend responses to discovery when the party learns 

that a prior correct response is no longer true, where failure to 

amend would result in knowing concealment. This requirement 

applies to all evidence and is not limited to expert witness 

testimony. Rule 26(e) (3) requires a party to supplement 

responses to discovery upon request made by the opposite party. 

In this proceeding Contestants have requested that the Secretary 

update the document repository. 

If Thaxton is an expert witness, the Secretary was obliged 

by Rule 26(e) (1) (B) to seasonably disclose her March 1992 

reclassification. Without regard to Thaxton's status, the 

Secretary was required to seasonably disclose the 

reclassification by Rule 26(e) (2) (B) and Rule 26(e) (3). 

Disclosure on September 25, 1992, of the March 1992 

reclassification was not seasonable, particularly in view of the 

imminent completion of expert witness discovery. The failure to 

disclose a significant change in Thaxton's consideration of the 

filters for a period of more than 6 months was a clear violation 

of Rule 26(e) o 

Discovery Plan 

The Discovery Plan governing discovery in this proceeding 

was amended on June 10 0 1992 0 and provided in part as follows~ 

(5) If any expert modifies or adds to the 

opinions previously expressed, opposing 

parties shall be promptly notified in writing 

of the opinion to which the expert is then 

expected to testify .... the opposing parties 

shall be given an opportunity for a 

reasonable time to depose that expert on such 

additional or modified opinions. 

Thaxton has apparently not been identified as a generic expert, 

but as a case specific expert by the Secretary. Nevertheless, 

1959 
the Discovery Plan requires the Secretary to promptly notify 

contestants of the modification or addition to his previously 

expressed opinions. She failed to do so. I should note, 

however, that because of her failure I extended by l week the 

time for completion of Contestants' deposition of Thaxton which, 

at least in part, remedies the violation of the Plan. 

sanction 

Contestants seek the exclusion of certain testimony of 

Thaxton. Rule 26(e) does not require the exclusion of evidence 

for a violation of the rule. However, if the trial judge deems 

it appropriate he may exclude evidence at trial for a violation 

of the rule's supplementation requirement which prejudices the 

opposing party. See Notes of Advisory Committee on 1970 

Amendment to Rule 26, Federal Rules of Civil Procedure. 

The exclusion of evidence is an "extreme" sanction. Dudley 

v. South Jersey Metal, Inc., 555 F.2d 96, 99 (3d Cir. 1977). In 

deciding whether to apply this extreme sanction or fashion 

another for the violation of the discovery rules, I must consider 

a number of factors: 

l. The extent of the prejudice, if any, to the opposing 

party; 

2. Whether the prejudice may be cured or lessened by a 

less extreme sanction than exclusion; 

3. The importance of the testimony sought to be excluded 

to a fair and complete trial of the relevant 

facts and issues; and 

4o Whether the violation resulted from bad faith or 

willfulnesso 

See Meyers Vo Pennypack Woods Home Ownership Ass 1 n, 559 F.2d 894, 

904-05 (3d Cir. 1977). ., Contestants argue that because they were not informed of 

Thaxtonijs reclassification when it occurred, they were prejudiced 

in preparing their expert witness reports. In particular, they 

assert that the small number of cassettes originally classified 

under tamper code 3 (36) caused them to spend less time on the 

phenomenon of coning than they would have if they were aware of 

the number of cassettes so classified following the "second 

review" {440) o There is no question that the withholding of the 

reclassification affected the way in which Contestants prepared 

for their expert witness testimony. It also affected their 

depositions of Mr. Thaxton. The prejudice is diminished however 

because of the extension of l week for the completion of 

Thaxton's deposition; by the fact that Thaxton's supplemental 

1960 
report was made available September 25, 1992, prior to the 

completion of expert witness discovery; by the fact that the 

question of coning was considered and discussed in the reports 

and depositions of Contestants' experts; and by the fact that all 

the cited filters were made available for Contestants' inspection 

many months before Thaxton's supplemental report. 

Contestants suggest that an alternative remedy would be to 

permit further scientific research by the Contestants' experts on 

the reclassification and allow the results of that research at 

the common issues trial. The prejudice to Contestants certainly 

would be lessened, if not cured, if they had the opportunity to 

conduct further experimentation on the phenomenon of coning. 

contestants state that the Secretary has made Thaxton a 

critical witness in these proceedings; that she "rested the full 

weight of asserting violations of the dust sampling regulations 

upon his subjective judgment alone." For precisely this reason, 

I would be reluctant to limit or exclude his testimony, lest in 

penalizing the Secretary, I also limit my ability to fully 

consider and understand the racts and the issues raised in these 

proceedings. 

contestants allege that the evidence of Thaxton's 

reclassification was deliberately withheld and imply that it 

resulted from bad faith. Bad faith on the part of counsel is not 

lightly presumed and I do not find that the evidence establishes 

it here. Contestants assert that Thaxton's reclassification was 

made known to the Secretary's expert, Dr. Marple while it was 

withheld from Contestants. The Secretary denies that she made it 

known to Dr. Marple. Contestants point to the Secretary's 

failure to disclose the existence of 5100 non-cited filters in 

the Pittsburgh lab and her failure to notify Contestants of her 

finding that snapping a cassette together could result in an AWC 

as showing bad faitho These are factors peripherally related, at 

best, to the subject of the motion before me. I do not conclude 

that they show bad faith. U.S.M. asserts that it was prejudiced 

in that its expert conducted little experimentation related to 

coning because none of U.S.M.'s cited filters were classified 

under tamper code Jo Following the March 1992 reviewu 5 filters 

were reclassified as tamper code 3. Thus, Dr. McFarland was 

deprived of the opportunity to conduct experiments related to the 

causes of coningo U.S.M. suggests that the trial judge might 

have accepted U.S.Mo 0 s offer at the prehearing conference to be 

the subject of a bellwether trial had the reclassification been 

known. In fact, I decided against holding a bellwether trial 

involving any Contestant at that time, so the argument is 

irrelevant. U.S.M. suggests a hearing on the questions raised in 

the motion "not only regarding what has transpired, but to also 

ensure that such conduct does not reoccur." I believe that such 

a hearing would be counterproductive and is unnecessary to a 

proper decision on the motion. 

1961 
Because the prejudice to the Contestants has been to some 

extent mitigated, because there is time prior to trial to further 

cure the prejudice, because the testimony is important to a fair 

and complete trial, and because bad faith or willfulness in 

failing to comply with the discovery requirements has not been 

shown, I will deny the motion to exclude. However, in an attempt 

to further cure the prejudice, I will permit Contestants to carry 

out further scientific studies related solely to the Thaxton 

reclassification and more specifically the coning phenomenon, 

provided that the studies shall be completed and the expert 

reports shall be served on the Secretary and filed with me 1 on 

or before November 17, 1992. 

ORDER 

In accordance with the above discussion, IT IS ORDERED that 

(1) the motion to exclude certain testimony of Robert 

Thaxton is DENIED. 

(2) contestants are grariled time to conduct further 

scientific studies related solely to the Thaxton 

reclassification. Such studies shall be completed and 

reports shall be served on the Secretary and filed on 

or before November 17, 1992. 

/) .. 

t[;W~ s _μ1 t-V~/Vtc~ James A. Broderick 

Administrative Law Judge 

1 I have issued a separate order directing that copies of 

all expert witness reports be filed with me by the same date. 

1962 
Distribution: 

Douglas N. White, Esq., Carl c. Charneski, Esq., Office of the 

Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, 

Arlington, VA 22203 (Certified Mail) 

Timothy M. Biddle, Esq., Crowell & Moring, 1001 Pennsylvania 

Avenue, N.W., Washington, D.C. 20004 (Certified Mail) 

William I. Althen, Esq., Michael T. Heenan, Esq., Smith, Heenan & 

Althen, 1110 Vermont Avenue, N.W., Washington, D.C. 20005 

(Certified Mail) 

Laura E. Beverage, Esq., Jackson & Kelly, P. o. Box 553, 

Charleston, WV 25322 (Certified Mail) 

R. Henry Moore, Esq., Buchanan Ingersoll, 600 Grant street, 58th 

Floor, Pittsburgh, PA 15219 (Certified Mail) 

John C. Palmer IV, Esq., Robinson & McElwee, P. o. Box 1791, 

Charleston, WV 25326 (Certified Mail) 

H. Thomas Wells, Esq., Maynard, Cooper, Frierson & Gale, 1901 6th 

Avenue, North, suite 2400, Amsouth/Harbert Plaza, Birmingham, AL 

35203 (Certified Mail) 

All Others by Regular Mail 

/fcca 

Robert B. Allen, Esq. 

John J. Polak, Esq. 

Kingu Betts and Allen 

PoOo BOX 3394 

Charlestonu WV 25333 

Karl Fo Anuta, Esq. (Co-counsel Crowell & Moring) 

Western Fuels-Utah, Inc. 

P.O. Box 1001 

1720 14th Street 

Boulderu CO 80306 

Curtis Asbury, President 

P.O. Box 600 

Danville, WV 25053 

John D. Austin, Jr., Esq. 

Austin & Movahedi 

2115 Wisconsin Ave., N.W. 

Washington, o.c. 20007 

1963 
FEDERAL MINE SAFETY ANO HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHING"<ON. D.C. ?CYX>C 

November , 1992 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

WHARF RESOURCES USA 

INCORPORATED, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 92-240-M 

A. C. No. 39-01282-05528 

Annie Creek 

ORDER ACCEPTING LATE FILING 

ORDER DENYING MOTION TO DISMISS 

Before: Judge Merlin 

On August 18, 1992, the Solicitor filed the penalty petition 

in the above-captioned case and a motion to accept late filing of 

the penalty proposal. On September 21, 1992, the operator filed 

its answer to the penalty proposal together with a motion in 

opposition to the Solicitor's motion to accept late filing. 

Commission Rule 27 requires that the Secretary file the 

penalty proposal within 45 days of the date she receives an 

operator's notice of contest for the proposed penalty. 29 C.F.R. 

§ 2700.27. An operator contests the proposed penalty by mailing 

in the so called "blue card11 which has been provided to it for 

this purpose. The date of receipt by the Secretary is the date 

the operator mailed the blue card, 1 3 FMSHRC 854 

(1981). Assuming that in this case the blue card was mailed the 

same day it was signed, June 18, 1992, the penalty proposal 

became due on August 3. The proposal was mailed on August 14, 

and received at the Commission on August 18~ It was therefore, 

15 days late. 

The Commission has not viewed the 45 day requirement as 

jurisdictional or as a statute of limitation. Rather, the Commission has permitted late filing of the penalty proposal upon a 

showing of adequate cause by the Secretary where there has been 

no showing of prejudice by the operator. Salt Lake County Road 

Department, 3 FMSHRC 1714, 1716 (July 1981)" 

The Solicitor's motion to accept late filing represents that 

the delay occurred because the case was not sent to her off ice 

until August 3, 1992. In Salt Lake County Road Department, 

supra, decided early in the administration of the Act, the 

Commission held that the extraordinarily high caseload and lack 

of personnel confronting the Secretary at that time constituted 

adequate cause for late·filing. At the present juncture, I take 

1964 
note of the precipitous rise in the volume of contested cases 

over the last few years, as indicated by the Commission's own 

records. I find these circumstances constitute adequate cause 

for the short delay in the filing of the penalty petition. 

Finally, the record does not indicate any prejudice to the 

operator from the two week delay. 

More serious is the time span between the issuance of the 

citation on August 15, 1991, and the notification to the operator 

of the proposed penalty assessment on June 1, 1992. Section 

105(a) of the Act, 30 u.s.c. § 815(a), provides that after the 

Secretary issues a citation or order under section 104, she shall 

within a reasonable time notify the operator of the proposed 

civil penalty to be assessed for the cited violation. 

The Mine Act does not define "reasonable time". However, 

the following statements of the Senate Committee are instructive: 

To promote fairness to operators and miners and 

encourage improved mine safety and health generally, 

such penalty proposals miist be forwarded to the operator and miner representative promptly. The Committee 

notes, however, that there may be circumstances, although rare, when prompt proposal of a penalty may not 

be possible, and the Committee does not expect that the 

failure to propose a penalty with promptness shall 

vitiate any proposed penalty proceeding. 

s. Rep. No. 95-181, 95th Cong., 1st Sess. 34, reprinted in, 

Senate Subcommittee on Labor, Comm. on Human Resources, 95th 

Cong., 2 Sess., Legislative History of the Federal Mine Safety 

and Health Act, at 622 (1978). 

It does not appear that the Commission has specifically 

considered whether a penalty petition must be dismissed because 

was not issued until several months after the citation had 

been issued. However, I find relevant the principles adopted by 

the Commission in Salt Lake County Road Department, supra, and 

therefore, in the instant matter I will consider whether adequate 

cause existed for the delay and if the operator has demonstrated 

prejudice. 

Note is taken of the few Commission judges 1 decisions where 

delays in the issuance of the proposed assessments have occurred. 

In Heldenfels Brothers, Inc., 2 FMSHRC 851 (April 1980), a judge 

denied a motion to dismiss where there was a 220-day delay on the 

ground that MSHA's assessment procedures required considerable 

time and that the operator had not shown that it suffered any 

actual harm. However, in Anaconda Company, 3 FMSHRC 1926 (August 

1981) , another judge dismissed a case where there had been a two 

year delay and the Secretary offered no reasons, but this same 

judge subsequently refused to dismiss a case for a 132 day delay 

1965 
because the operator had not claimed prejudice. Industrial 

Construction Corp., 6 FMSHRC 2181 (Sept. 1984). Delays of a year 

and a half and two years have not been countenanced. Washington 

corporation, 4 FMSHRC 1807 (October 1982). 

In this case the delay was considerable, but within the 

parameters previously allowed by judges in the cases cited above. 

In addition, the file in this case shows that the alleged violation was the subject of an investigation of a non-fatal haulage 

accident. In discussing the requirement of reasonable promptness 

for the issuance of citations, Congress made specific reference 

to the time taken by accident investigations. S. Rep. No. 94-

181, supra, Legislative History supra, at p. 618. Just as accident investigations are to be taken into account in determining 

timeliness for the issuance of citations, so they are germane in 

deciding the analogous question of whether adequate cause exists 

to justify a lag in assessing a penalty. 

The operator has alleged prejudice because it will have to 

reconstruct events as they were on August 15, 1991, and that it 

must have witnesses who are available and recall the specific 

facts. However, there is no specific proffer that such witnesses 

are in fact unavailable and that the operator is unable to 

present its position sufficiently. 

Informative with respect to the foregoing is the decision of 

the Commission in Old Dominion Power, 5 FMSHRC 1886 (1984), 

refusing to dismiss a citation because it was not issued until 

one year after a violation occurred where in the interim there 

had been a fatality investigation. The Commission found that the 

operator had not been prejudiced and cited the legislative 

history for the proposition that the "reasonable promptness" 

requirement was not jurisdictional. Old Dominion Power at 1894. 

So too, allowing the instant case to proceed is consistent with 

the expressed Congressional mandate that a failure to propose a 

penalty with promptness shall not vitiate the penalty proceeding. 

MSHA , however, forewarned that as a general matter tardiness 

in assessments is troublesome and may in other contexts 

irreparably hinder its enforcement of the Act. 

In light of the foregoing, it is ORDERED that the 

Solicitor 1 s motion to accept late filing be GRANTED and that 

the operator 1 s motion to dismiss be DENIED. 

Paul Merlin 

Chief Administrative Law Judge 

19 66 
Distribution: 

Tambra Leonard, Esq., Office of the Solicitor, U.S. Department 

of Labor, 1585 Federal Office Building, 1961 Stout Street, 

Denver, co 80294 (Certified Mail) 

Joy Johnston, Esq., General Counsel, Mr. Pete Kostelecky, Safety 

Director, Mr. Bruce Nygaard, SD Area Manager, Fisher Sand and 

Gravel Co., P. o. Box 1034, Dickinson, ND 58601 (Certified 

Mail) 

/gl 

1967 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW. 6TH FLOOR 

WASHINGTON. O_C. 20006 

November 13, 1992 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

FISHER SAND & GRAVEL COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 92-246-M 

A. C. No. 39-01282-05501 D3H 

Annie Creek 

ORDER ACCEPTING LATE FILING 

ORDER DENYING MOTION TO DISMISS 

Before: Judge Merlin 

On August 24, 1992, the Solicitor filed a penalty petition 

in the above-captioned action and a motion to accept late filing 

of the penalty proposal. On September 21, 1992, the operator 

filed its answer to the penalty proposal together with a motion 

in opposition to the Solicitor's motion to accept late filing. 

Commission Rule 27 requires that the Secretary file the 

penalty proposal within 45 days of the date she receives an 

operator's notice of contest for the proposed penalty. 29 C.F.R. 

§ 2700.27. An operator contests the proposed penalty by mailing 

in the so-called "blue card" which has been provided for this 

purpose. The date of receipt by the Secretary is the date the 

operator mails the blue card. J.P. Burroughs, 3 FMSHRC 854 

(1981). Assuming that in this case the blue card was mailed the 

same day it was signedv June 25v 1992 1 the penalty proposal 

became due on August 10. The proposal was mailed on August 18, 

and received at the Commission on August 24. It was therefore, 

two weeks late. 

The Commission has not viewed the 45 day requirement as 

jurisdictional or as a statute of limitation. Rather, the 

Commission has permitted late filing of a penalty proposal upon a 

showing of adequate cause by the Secretary where there is no 

showing of prejudice by the operator. Salt Lake County Road 

Department, 3 FMSHRC 1714, 1716 (July 1981). 

The Solicitor 1 s motion to accept late filing represents that 

the delay occurred because the case was not sent to her off ice 

until August 11, 1992. In Salt Lake County Road Department, 

supra, decided early in the administration of the Act, the 

Commission held that the extraordinarily high caseload and lack 

of personnel confronting the Secretary at that time, constituted 

adequate cause for late filing.· At the present juncture, I take 

note of the precipitous rise in the volume of contested cases 

over the last few years·as indicated by the Commission's own 

1968 
records. I find that these circumstances constitute adequate 

cause for the short delay in the filing of the penalty petition. 

Finally, the record does not indicate any prejudice to the 

operator from the two week delay. 

More serious is the time span between the issuance of the 

citations on August 15 and 16, 1991, and the notification to the 

operator of the proposed penalty assessments on June 2, 1992. 

Section 105(a) of the Act, 30 u.s.c. § 815(a), provides that 

after the Secretary issues a citation or order under section 104, 

she shall within a reasonable time notify the operator of the 

proposed civil penalty to be assessed for the cited violation. 

The Mine Act does not define 11 reasonable time". However, 

the following statements of the Senate Committee are instructive: 

To promote fairness to operators and miners and 

encourage improved mine safety and health generally, 

such penalty proposals must be forwarded to the operator and miner represen-tativepromptly. The Committee 

notes, however, that there may be circumstances, although rare, when prompt proposal of a penalty may not 

be possible, and the Committee does not expect that the 

failure to propose a penalty with promptness shall 

vitiate any proposed penalty proceeding. 

S. Rep. No. 95-181, 95th Cong., 1st Sess. 34, reprinted , 

Senate Subcommittee on Labor, Comm. on Human Resources, 95th 

Cong., 2 Sess., Legislative History of the Federal Mine Safety 

and Health Act, at 622 (1978). 

It does not appear that the Commission has specifically 

considered whether a penalty petition must be dismissed because 

was not issued until several months after the citation had 

been issued" However 1 I find relevant the principles adopted by 

the Commission in Salt Lake County Road Department, supra, and 

therefore, in the instant matter I will consider whether adequate 

cause existed for the delay and if the operator has demonstrated 

prejudice. 

Note taken of the few Commission judgesv decisions where 

delays in the issuance of the proposed assessments have occurred. 

In Heldenfels Brothers, Inc., 2 FMSHRC 851 (April 1980), a judge 

denied a motion to dismiss where there was a 220-day delay on the 

ground that MSHA 1 s assessment procedures required considerable 

time and that the operator had not shown that it suffered any 

actual harm. However, in Anaconda Company, 3 FMSHRC 1926 (August 

1981), another judge dismissed a case where there had been a two 

year delay and the Secretary offered no reasons, but this same 

judge subsequently refused to dismiss a case for a 132 day delay 

because the operator had not claimed prejudice. Industrial 

Construction Corp., 6 FMSHRC 2181 (Sept. 1984). Delays of a year 

1969 
and a half and two years have not been countenanced. Washington 

Corporation, 4 FMSHRC 1807 (October 1982). 

In this case the delay was considerable, but within the 

parameters previously allowed by judges in the cases cited above. 

In addition, the file in this case shows that the alleged violations were the subject of an investigation of a non-fatal haulage 

accident. In discussing the requirement of reasonable promptness 

for the issuance of citations, Congress made specific reference 

to the time taken by accident investigations. S. Rep. No. 94-

181, supra, Legislative History supra, at p. 618. Just as accident investigations are to be taken into account in determining 

timeliness for the issuance of citations, so they are germane in 

deciding the analogous question of whether adequate cause exists 

to justify a lag in assessing penalties. 

The operator has alleged prejudice because the witnesses are 

unavailable, the record is not fresh and it is impossible for it 

to present its case in the best possible light. However, the 

operator has furnished no spec.if ics beyond these general assertions. 

Informative with respect to the foregoing is the decision of 

the Commission in Old Dominion Power, 5 FMSHRC 1886 (1984), 

refusing to dismiss a citation because it was not issued until 

one year after a violation occurred where in the interim there 

had been a fatality investigation. The Commission found that the 

operator had not been prejudiced and cited the legislative 

history for the proposition that the "reasonable promptness" 

requirement was not jurisdictional. Old Dominion Power at 1894. 

So too, allowing the instant case to proceed is consistent with 

the expressed Congressional mandate that a failure to propose a 

penalty with promptness shall not vitiate the penalty proceeding. 

MSHA isQ however forewarned that as a general matter tardiness in 

assessments troublesome and may in other contexts hinder its 

enforcement of the Act. 

In light of the foregoing, it is ORDERED that the 

Solicitor 1 s motion to accept late filing be GRANTED and that 

the operator~s motion to dismiss be DENIED. 

Paul Merlin 

Chief Administrative Law Judge 

1970 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW. 6TH FLOOR 

WASHINGTON. 0 c_ 2CJOOI.:; 

November 13, 1992 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

LIVINGSTON MARBLE & GRANITE, 

Respondent 

: 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 92-430-M 

A. C. No. 24-00016-05504 

Docket No. WEST 92-573-M 

A. C. No. 24-00016-05503 

Livingston Marble 

Docket No. WEST 92-574-M 

A. C. No. 24-00660-05512 

Docket No. WEST 92-575-M 

A. C. No. 24-00660-05513 

Travertine Cutting & Polishing 

Plant 

ORDER DENYING MOTION TO DISMISS 

ORDER ACCEPTING LATE FILING 

Before: Judge Merlin 

On October 6 1 1992, the operator filed a motion to dismiss 

the above-captioned cases. The operator asserts that the Commission lacks jurisdiction because the penalty petitions were not 

timely led. On August 3, 1992 1 the Solicitor had filed motions 

to accept late ling in WEST 92-430-M, WEST 92-573-M and WEST 

92-574-M along with the penalty proposals. The proposal for WEST 

92-575-M was received on August 10, 1992. 

Commission Rule 27 requires that· the Secretary file the 

penalty proposal within 45 days of the date she receives the 

operator's notice of contest for the proposed penalty. 29 C.F.R. 

§ 2700.27. The operator contests the proposed penalty by mailing 

in the so called "blue card" which has been provided to it for 

this purpose. The date of receipt by the Secretary is the date 

the operator mailed the blue card. J.P. Burroughs, 3 FMSHRC 854 

(1981)" Assuming that in these cases the blue cards were mailed 

the same day they were signed, the Secretary's subsequent penalty 

proposals for WEST 92-430-M, WEST 92-573-M and WEST 92-574-M were 

46 to 60 days late. The penalty proposal for WEST 92-575-M was 

mailed to the Commission on the 45th day and therefore is timely. 

The Commission has not viewed the 45 day requirement as 

jurisdictional or as a statute of limitation. Rather, the 

Commission has permitted· late filing upon a showing of adequate 

1971 
cause by the Secretary and where there is no showing of prejudice 

by the operator. §alt Lake County Road Department, 3 FMSHRC 

1714, 1716 (July 1981). 

The Solicitor's motion to accept late filing represents that 

the delay occurred because the cases were not sent to her off ice 

until July 24. In Salt Lake County Road Department, supra, 

decided early in the administration of the Act, the Commission 

held that the extraordinarily high caseload and lack of personnel 

confronting the Secretary at that time, constituted adequate 

cause for late filing. At the present juncture, I take note of 

the precipitous rise in the volume of contested cases over the 

last few years, as shown by the Commission's own records. In 

view of the circumstances set herein, I find that adequate cause 

exists for the relatively short delays of 46 to 60 days. In 

addition, the operator has not shown any prejudice by the delays. 

In light of the foregoing, the Secretary's motion to accept 

late filing of the penalty proposals in WEST 92-430-M, WEST 92-

573-M, and WEST 92-574-M is GRANTED. 

It is further ORDERED that the operator's motion to DISMISS 

in WEST 92-430-M, WEST 92-573-M, WEST 92-574-M and WEST 92-575-M 

be DENIED. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution~ 

Tambra Leonard, Esq., Office of the Solicitor, U. s. Department 

of Labor, 1585 Federal Office Building, 1961 Stout Street, 

Denveru CO 80294 (Certified Mail) 

Penelope Hayes-Brook, Esq. 1 P. o. Box 804u Livingston, MT 59047 

(Certified Mail) 

Mr. Gregory D. strong, President, Livingston Marble and Granite 

Works, Box 851, Livingston, MT 59047 (Certified Mail) 

/gl 

1972 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Complainant 

v. 

CHESTNUT RIDGE SAND, 

Respondent 

Before~ Judge Feldman 

NOV 18 1992 

. . 

.. 

. 

ORDER 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 92-696-M 

A.C. No. 36-08120-05504 

Chestnut Ridge Sand 

The respondent, a division of Haines§ Kibblehouse, Inc., 

(H&K) has filed a motion seeking permission to have Mr. James F. 

Sassaman represent it in this matter. H&K is a member of the 

General Building Contractor's Association. Mr. Sassaman is the 

association's Director of Safety and is reportedly familiar with 

administrative proceedings as they pertain to safety and health 

related issueso 

The petitioner opposes the respondentijs motion on the 

grounds that Mro Sassaman should be precluded from serving as 

representative under Commission rule 3(b) (2) because "he is not 

experienced or familiar with the Mine Safety and Health Act of 

1977u the Commission 1 s rules of procedure, or Mine Safety issues 

in generalo 00 In this regardf the petitioner asserts that the 

seriousness and complexity of this case, which involves a 107(a) 

imminent danger orderu requires a representative with mine safety 

experienceo 

Rule 3(b) (2) permits the appointment of a representative for 

the limited purpose of a specific proceeding. The plain language 

of this section does not preclude a representative solely because 

the individual has no mine safety experience. Moreover, the 

petitioner's reliance on the "complexity" of this case as a basis 

for its opposition is without merit in view of the fact that the 

respondent's answer admits the occurrence of the violations in 

issue, and seeks to be heard only on the issues of the degree of 

negligence and the appropriateness of the penalty assessment. 

1973 
ACCORDINGLY, the respondent's motion seeking permission for 

Mr. James F. Sassaman to represent it in this proceeding IS 

GRANTED. 

Distribution: 

r2.at~~"---..;.;;;;;;:::ii> ~:ld Feldman 

Administrative Law Judge 

(703) 756-5233 

John M. Strawn, Esq., Office of the Solicitor, U.S. Department of 

Labor, 14480 Gateway Bldg., 3535 Market st., Philadelphia, PA 

19104 (Certified Mail) 

James F. Sassaman, Director of Safety, Chestnut Ridge Sand 

Company, 36 S. 18th St., P.O. Box 15959, Philadelphia, PA 19103 

(Certified Mail) 

/vmy 

1974