OCTOBER 1984 

Commission Decisions 

10-01-84 U.S. Steel Mining Company WEVA 82-387 

Administrative Law Judge Decisions 

10-01-84 

10-01-84 

10-01-84 

10-01-84 

10-01-84 

10-03-84 

10-04-84 

10-04-84 

10-09-84 

10-10-84 

10-10-84 

10-12-84 

10-12-84 

10-15-84 

10-15-84 

10-17-84 

10-17-84 

10-17-84 

10-18-84 

10-18-84 

10-18-84 

10-19-84 

10-22-84 

10-25-84 

10-26-84 

10-30-84 

10-31-84 

Montana Contract Mining Co. 

Montana Contract Mining Co. 

U.S. Steel Mining Co., Inc. 

BCNR Mining Corporation 

N. L. Baroid-Div/NL Industries 

Beckley Coal Mining Company 

Jumacris Mining, Inc. 

Kitt Energy Corporation 

South Hopkins Coal Company 

MSHA/James McN. Taylor v. Buck Garden 

Coal Company 

Southway Construction Co., Inc. 

Pittsburg and Midway Mining Corp. 

Zeigler Coal Company 

Homer W. Davis v. Armco Steel Corp. 

MSHA/I.B. Acton and others v. Jim 

Walter Resources, Inc. 

WEST 83-83-M 

WEST 83-55-M 

SE 84-10 

PENN 84-93 

CENT 84-15-M 

WEVA 83-252-R 

WEVA 84-137 

WEVA 83-125-R 

KENT 84-92 

WEVA 83-241-D 

CENT 84-3-M 

WEST 82-131-R(A) 

LAKE 83-8 

WEVA 84-118-D 

SE 84-31-D 

Bigelow Liptak Corporation CENT 

Terry Davis v. Canyon Valley 

U.S. Steel Mining Co., Inc. 

Faust and Miller Coal Co. 

Electric Co.WEST 

PENN 

PENN 

84-24-M 

83-97-DM 

84-20 

84-175 

84-158-C 

83-257-D(A) 

84-17-M 

84-38-D 

83-212 

82-150 

82-215-M 

83-171 

Local 1609, UMWA v. Greenwich Collieries PENN 

Lonnie Jones v. D&R Contractors KENT 

Lone Star Industries, Inc. CENT 

MSHA/David McConnell v. Jim Walter Res. SE 

Pyro Mining Company KENT 

Powderhorn Coal Company WEST 

Silver Ventures Corporation WEST 

Incoal, Incorporated KENT 

Pg. 2305 

Pg. 2315 

Pg. 2321 

Pg. 2325 

Pg. 2334 

Pg. 2340 

Pg. 2361 

Pg. 2409 

Pg. 2411 

Pg. 2424 

Pg. 2425 

Pg. 2426 

Pg. 2437 

Pg. 2441 

Pg. 2445 

Pg. 2450 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

2459 

2461 

2462 

2464 

2465 

2480 

2484 

2486 

2488 

2501 

2503 

2512 

COMMISSION DECISIONS 

OCTOBER 1984 

No cases were directed for review during the month of October. 

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

Secretary of Labor on behalf of Larry Duty v. West Virginia Rebel Coal Co., 

Docket No. KENT 83-161-D, KENT 83-232-D. (Petition for Interlocutory Review 

of Judge Broderick's September 18, 1984 Order.) 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

October 1, 1984 

Docket No. WEVA 82-387 

U. S. STEEL MINING CO., INC. 

DECISION 

The issues before the Commission are whether the administrative 

law judge properly found two violations of mandatory safety standards 

to be significant and substantial ("S&S") within the meaning of 

30 U.S.C. § 814(d)(l), section 104(d)(l) of the Federal Mine Safety and 

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

whether the penalties assessed by the judge are appropriate under the 

statutory criteria set forth at 30 U.S.C. § 820(i), section llO(i) of 

the Mine Act. 1/ The violations in issue, both conceded by USSM, 

involve (1) noncompliance with-the prohibition against transporting 

compressed gas cylinders on mantrips [30 C.F.R. § 75.1106-2(c)], and 

(2) inadequate guarding of a trolley wire [30 C.F.R. § 75.1003]. The 

judge assessed penalties of $250 for the cylinder violation and $750 for 

the wire guarding violation. 5 FMSHRC 1474 (August 1983)(ALJ). For the 

reasons that follow, we affirm. 

On May 6, 1982, an authorized representative of the U.S. Department 

of Labor, Mine Safety and Health Administration ("MSHA"), conducted a 

haulage system inspection at USSM's Gary No. 50 mine in Pineville, West 

Virginia. The citations in this case were issued on that date by MSHA 

Inspector Earl Barnett. During his inspection, Barnett was accompanied 

by USSM senior mine inspector Russell Burge and miners' representative 

Floyd Cox. 

'J:../ U. S. Steel Mining Co. ("USSM") also maintained that under the 

single penalty assessment criteria published by the Secretary of Labor 

at 30 C.F.R. § 100.4 the Commission is limited to a penalty assessment 

of $20 if a violation is found not to be S&S. This issue was decided 

adverse to USSM's position in U. S. Steel Mining Co., Inc., 6 FMSHRC 1148 

(May 1984). We adhere to that holding. 

84-10-1 
Citation #1066938 

The c.ited standard, 30 C.F.R. § 75.1106-2(c), and other relevant 

standards in the subpart, provide as follows: 

§75.1106-2 Transportation of liquefied and nonliquefied 

compressed gas cylinders; requirements. 

(a) Liquefied and nonliquef ied compressed gas 

cylinders transported into or through an underground 

coal mine shall be: 

(1) Placed securely in devices designed to hold the 

cylinders in place during transit on self-propelled equipment or belt conveyors; 

* * * 

(3) Equipped with a metal cap or "headband" (fencetype metal protector around the valve stem) to protect 

the cylinder valve during transit; and 

* * * 

(b) In addition to the requirements of paragraph (a) 

of this section, when liquefied and nonliquefied compressed 

gas cylinders are transported by a trolley wire haulage system 

into or through an underground coal mine, such cylinders shall 

be placed in well insulated and substantially constructed 

containers which are specifically designed for holding such 

cylinders. 

(c) Liquefied and nonliquefied compressed gas cylinders 

shall not be transported on mantrips. 

While inspecting a three-compartment, self-propelled personnel 

carrier or mantrip ];/ that belt crew miners had boarded to take into the 

mine, Inspector Barnett observed one oxygen cylinder and one acetylene 

cylinder lying unsecured on the floor of one of the two covered compartments of the carrier. None of the miners who had boarded the mantrip 

was in the compartment where the cylinders were located. Both cylinders 

had attached valves, but no hoses or gauges. There was a metal cap 

over the oxygen valve; the acetylene valve was recessed into the top of 

the cylinder. 1/ 

];/ U. S. Department of the Interior, A Dictionary of Mining, Mineral, 

and Related Terms 679 (1968), defines mantrip as "[a] trip made by mine 

cars and locomotives to take men rather than coal, to and from the 

working places." 

3/ The cylinders were in nylon-reinforced, plastic bags that are used 

for carrying or,dr~gging the tanks. The bags do not prevent the tanks 

from rolling or otherwise provide protection. 

2308 
MSHA Inspector Barnett issued the citation alleging a violation of 

30 C.F.R. § 75.1106-2(c) and informed USSM inspector Burge that the 

tanks should not be transported on a mantrip. After observing their 

removal, Barnett, accompanied by miners' representative Cox, left the 

area. Both Barnett and Cox believed that the tanks were taken into the 

shop. At the hearing it was established that the tanks were taken into 

the mine by placing them on another mantrip. The tanks were placed in 

the same open compartment occupied by miners and were steadied during 

transit by the miners. The testimony given by Barnett and Cox at trial 

focused on the condition observed and cited, not on USSM's method of 

abating the violation. It was not until USSM presented its case that 

the actual method of transport was established. 

Barnett testified that the cited condition could result in a mine 

fire or explosion due to several causes. Vibration of the mantrip on 

the track and rolling about of the unsecured acetylene tank could loosen 

the valve, allowing escape of highly flanunable gas. A source of ignition 

was provided by the trolley wire because of the possibility of arcing or 

sparking. Similarly, rolling of the oxygen cylinder could cause the cap 

to loosen and the valve to break, creating a projectile. Barnett also 

testified that valves on both tanks could break in case of a derailment 

or collision in which the tanks were tossed around or thrown from the 

vehicle. !±_/ While testifying Barnett acknowledged that if the tanks 

were in proper containers and securely fastened there would not have 

been a hazard. The inspector did not cite USSM for failing to secure 

the tanks because, in his view, they should not have been on the mantrip 

and because he believed the hazard abated when the tanks were removed. 2/ 

In Barnett's view it was "very likely" that an accident could occur as a 

result of the violation and "reasonably likely" for serious injury to 

occur. Tr. 26. 

Miner representative Cox stated that the usual practice in the 

maintenance department was to carry tanks in the front of open jeeps 

with the driver. He corroborated Barnett's testimony regarding the 

hazards attendant to transporting the tanks in the same vehicles in 

which miners were transported. 

USSM inspector Burge testified that he knew of no instances at the 

mine when vibration was sufficient to dislodge a valve or when gas escaped 

during transport. In his view there was no chance for the cited condition 

to contribute to an injury. 

4/ Barnett stated that there are frequent derailments and collisions at 

this mine, with its 46 miles of track, but he could not state specifically 

how often they occur. However, he testified that he had been involved in 

a derailment during this inspection and was there to inspect the mine 

because of a prior head-on collision of mine vehicles. Cox subsequently 

testified that gas cylinders being transported in the vehicles involved 

in the prior collision had been'found lying along the track, but that 

none had ruptured or had broken valves. 

'}_/ See 30 C.F.R. §§ 75.1106-2(a)(l) and 2(b). 

2307 
Burge testified that he had received verbal guidelines from MSHA's 

local Pineville office authorizing the transport of cylinders in personnel 

vehicles if they were placed in separate compartments and the only miners 

on the vehicles were part of the crew that would us.e the tanks (e.g., belt 

crew, mechanics). Burge also stated that the Pineville office reaffirmed 

the policy after the citation in issue was written. Barnett testified 

he was unaware of the policy and disputed Burge's assertion that during 

the inspection Barnett authorized the actual method of transport. 

The Commission Administrative Law Jud.ge accepted USSM's representation 

regarding the Pineville off ice policy because the Secretary failed to submit rebuttal evidence, although the record remained open for 72 hours after 

trial for receipt of such evidence. However, the judge concluded on the 

basis of Old Ben Coal Co., 2 FMSHRC 2806 (1980) and King Knob Coal Co., Inc., 

3FM:SHRC 1417 (1981) that confusion over the requirements of the cited standard 

caused by the oral advice of a Pineville official would be relevant only 

in evaluating USSM's negligence for the purpose of penalty assessment. He 

further noted that, in any event, USSM failed to comply with the Pineville 

policy because miners other than those who would use the tanks were on the 

vehicle, the policy did not include a waiver of the requirement of 30 C.F.R. 

§ 75.1106-2(a)(l) that the cylinders be secured, and the tanks were transported in the same compartment as the miners. ~/ The ju~ge credited the 

testimony of Barnett and Cox with respect to hazards resulting from the 

cited condition and concluded: 

The preponderance of the evidence clearly supports a 

finding that it was reasonably likely that hauling 

unsecured cylinders in the mantrip bus could contribute 

to the cause and effect of a mine safety hazard which 

could result in an injury of a reasonably serious nature. 

5 FMSHRC at 1484. The judge assessed a penalty of $250 based on the 

statutory criteria in section llO(i) of the Mine Act, finding that USSM 

is a large operation with a favorable or moderate history; that the 

penalty would not affect the operator's ability to continue in business; 

that USSM exercised good faith by abating the hazard within the time 

provided; and that USSM exhibited ordinary negligence because the tanks 

were transported both unsecured and in the same compartment as the miners. 

USSM argues on review that: (1) the evidence relevant to the cited 

condition does not establish an S&S violation under Cement Division, 

National Gypsum Co.,.3 FMSHRC 822 (April 1981); (2) the judge applied 

the National Gypsum test and the penalty criteria to the abatement 

method rather than the cited violation; and (3) the valves on the tanks 

were adequately protected. 

~ To the extent that the judge's discussion of the merits of the S&S 

findings includes consideration of the method of abatement subsequently 

employed rather than the condition cited, we accept USSM's objections 

and reject those considerations. However, on the basis of the evidence 

produced by the Secretary and the relevant findings of the judge based 

on that evidence, the error is harmless. See note 7 and accompanying 

text infra. 

2308 
On review the Secretary maintains that the judge's S&S finding is 

supported by substantial evidence and his penalty assessment is proper. 

The Secretary does not dispute the existence of MSHA's Pineville office 

policy, arguing instead that MSHA is not estopped from enforcing the 

standard because of a prior incorrect interpretation and that there is 

no evidence that MSHA ever approved a transport method as hazardous as 

that cited. The Secretary also argues that confusion over compliance 

responsibilities is relevant only to penalty assessment under King Knob 

Coal Co., Inc., supra. Further, in his view, USSM's failure to secure 

the tanks was properly considered by the judge because the failure 

increased both the gravity and negligence of the violation and undermined 

USSM's asserted compliance with local policy. 

The Commission has held that a violation is properly designated 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." National 

Gypsum, supra 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 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. 

See U. S. Steel Mining Co., Inc., Docket No. PENN 83-63 (August 28, 

1984); U. S. Steel Mining Co., Inc., Docket No. PENN 83-39, slip op. 

at 2-3 (August 23, 1984). 

In this case, USSM has conceded the violation; the issue is whether 

the violation was significant and substantial. The judge credited the 

testimony of Barnett and Cox, implicitly rejecting Burge's testimony that 

the valves on the tanks were protected adequately and that the cover on 

the compartment in which they were placed provided further protection. 

The judge f,ound that miners were exposed to hazards which could be presented by an explosion of leaking acetylene gas or the creation of a 

projectile due to the leakage of oxygen. He also found a reasonable 

likelihood of injury if miners were struck by cylinders being tossed 

about in a collision or derailment. The judge specifically found it 

reasonable to expect these occurrences on USSM's extensive rail system, 

particularly noting Barnett's derailment experience. See note 4 supra. 

On the basis of the record evidence discussed above, we hold that 

substantial evidence supports the judge's findings (see note 6 supra) 

and his conclusion that the violation was significant and substantial 

under the test set forth in National Gypsum, supra, and its progeny. 

2 r:: f'-9 ·-~ v 
The judge properly applied King Knob Coal Co., supra, in which the 

Commission held that although an incorrect interpretation of a regulatory 

requirement by an MSHA official does not have the force and effect of law 

and will not serve to negate liability for violative conduct, detrimental 

reliance on that interpretation is properly considered in mitigation of 

penalty. For this reason, we reject USSM's argument that MSHA's approval 

of its method of transport negates an S&S finding. We also hold that the 

judge's finding of ordinary negligence is supported by substantial 

evidence, and we affirm his penalty assessment of $250 as consistent 

with the statutory penalty criteria. ]_/ 

Citation #1066940 

The cited standard, 30 C.F.R. § 75.1003, is a statutory provision 

that provides in pertinent part: 

§ 75.1003 Insulation of trolley wires, trolley feeder 

wires and bare signal wires: guarding of trolley 

wires and trolley feeder wires. 

[STATUTORY PROVISIONS] 

Trolley wires, trolley feeder wires, and bare signal 

wires shall be insulated adequately where they pass through 

doors and stoppings, and where they cross other power wires 

and cables. Trolley wires and trolley feeder wires shall 

be guarded adequately: 

(a) At all points where men are required to work or 

pass regularly under the wires; 

(b) On both sides of all doors and stoppings; 

(c) At man-trip stations. 

Barnett, Cox and Burge traveled to the B-Panel section of the 

underground mine and parked behind an 18-f oot portal bus or mantrip 

that was located 40 feet outby the end of the track, under 5-foot-high, 

250-volt trolley wire. Only the first 10 feet of the wire at the end of 

the track was guarded. §_/ Supplies that apparently had been unloaded on 

the.prior shift were observed along both sides of the track for a 

distance of 20 to 25 feet outby the bus. It was assumed by the members 

of the inspection party that the bus had been exited at the enq of the 

track under 10 feet of guarded wire, leaving 8 feet of the bus under 

unguarded wire. Barnett issued a citation that alleged, "[t]he trolley 

wire at the end of the supply track in the B-panel section where men and 

supplies are unloaded was not adequately guarded. 

]_/ The judge also stated that the MSHA Pi~eville office guidelines did 

not include permission to transport tanks in the same compartment as the 

miners. This conclusion is not relevant to the cited condition and is 

rejected. See note 6 supra. Nevertheless, because the judge's S&S 

finding and penalty assessment are supported on alternative grounds 

relevant to the condition·cited, the error is harmless. 

§_/ USSM was engaged in retreat mining. The 10-foot section of guarding 

on the wire was apparently the portion that remained after the track was 

pulled back. 
The center compartment of the portal bus was uncovered, the two end 

compartments were covered. When at the end of the track, the inby covered 

compartment and part of the open compartment would be under guarded wire. 

The open section has a capacity of 8 miners. Normally, however, only the 

operator and the foreman ride in that section. Supply cars have 2 1/2 feet 

of clearance below the wire; lower personnel carriers have 4 feet of 

clearance. 

Both Barnett and Cox testified that miners exiting the open center 

compartment were in danger of contacting the energized wire should they 

rise before exiting the compartment. Barnett also stated that miners 

could lose their balance and fall backward onto the wire, becoming 

expose.d to burn or electrocution hazards. Barnett stated that the 

location of the supplies he observed indicat~d they had been unloaded 

under unguarded wire, but he did not know whether the wire had been 

energized at the time the supplies were unloaded. He testified, however, 

that the citation would have been written regardless of the presence of 

supplies.because miners had arrived and would be arriving at the mantrip ~ station during the shift. In his view, the inadequate guarding should 

have been apparent when the area received a preshift examination and 

when the foreman arrived earlier with the crew. 

Burge testified that it was not hazardous for miners to exit vehicles 

in areas of unguarded wire because they exit in a direction away· from the 

energized wire. He was not aware of any instances at the mine in which 

miners contacted a trolley wire. Burge also stated that a power cut-off 

switch located 160 feet outby the end of the track was used to deenergize the wire whenever supplies were unloaded or picked up for use 

on the working section during the shift. Burge's testimony differed 

from Barnett's regarding the specific location of the supplies, but he 

acknowledged that timbers were located 3 to 4 feet from the wire. 

The judge found that miners would be exposed to the hazard of I/' 

contacting unguarded wire if they exited a mantrip or jeep and became 

unbalanced, an event he considered reasonably likely to occur. 5 FMSHRC 

at 1493-4. He also found, based on a concession by Burge, that any 

miner who moved the vehicle out of the supply area to facilitate the .,/" 

loading or unloading of supplies would be entering and exiting the mantrip 

under energized, unguarded wire. 5 FMSHRC at 1491. With respect to 

USSM's claim that the wire would be de-energized before supplies were 

obtained from along the track, the judge found that the miner responsible 

for turning the power on and off would be exposed. Finally, the judge 

found that any persons arriving at the working section during the shift 

would be exposed, as was the inspection party, when they exited and 

returned to their vehicle. 5 FMSHRC at 1493. The judge concluded, 

2311 
[I]t was reasonably likely that the violation could have 

resulted in an injury of a reasonably serious nature. 

I find that the inspector properly considered the 

violation to be "significant and substantial" as that 

term has been defined by the Conunission in the National 

Gypsum case, supra. 

5 FMSHRC at 1494. 

The judge found a high degree of negligence on USSM's part, concluding that the violation was readily observable and the section of wire 

guarding that remained should have been a reminder that extension of the 

guard was necessary. He also found the violation to be of serious 

gravity because of the potential for shock or electrocution. A penalty 

of $750 was assessed. 

USSM argues on review that the judge improperly based his decision 

on hazards to miners going to the cut-off switch, a claim that USSM was 

denied an opportunity to defend against. The operator also argues that 

record evidence does not support the judge's finding that serious in]ury 

was reasonably likely as a result of the violation or his findings 

regarding negligence and gravity. 

We conclude that substantial evidence supports the judge's S&S 

finding that the trolley wire violation at the mantrip station exposed 

miners exiting the portal bus or mantrip to the hazard of contacting the 

250-volt energized line and sustaining serious injury. Notwithstanding 

the evidentiary dispute regarding the energized status of the wire when 

supplies were loaded and unloaded, the evidence clearly establishes that 

the wire was energized when miners exited the open compartment of the 

bus at the mantrip station in sufficient proximity to the wire to be 

exposed to burn or electrocution hazards. We note in this regard that 

the inspector specifically stated he would have written the citation 

even had he not observed the supplies along the track. The citation 

charged a violation at the end of the supply track where men and supplies 

are unloaded. This location is both a mantrip station and an area 

where miners are required to work and regularly pass under the wire 

within the meaning of the cited standard. USSM conceded that violation. 

It is only the S&S designation of the violation that is before us. 

Accordingly, we need not 'and do not decide whether USSM also violated 

the standard at the location of the cutoff switch or at the location 

where the inspection party parked its jeep. Furthermore, we reject 

USSM's argument that the judge's decision was based on the exposure of a 

miner going to the cut-off switch. Substantial evidence supports the 

judge's S&S findings for the violation as cited. Substantial evidence 

further supports the judge's findings of a high degree of negligence and 

serious gravity for the reasons he gave. 

2 .,_ ~· . ... 1.2 L -~ 
Accordingly, the judge's conclusion that citations #1066938 and 

#1066940 were significant and substantial within the meaning of section 

104(d)(l) of the Mine Act, and his penalty assessments of $250 and $750, 

respectively, are affirmed. 2_/ 

~ Richard V. Backley, Commissioner 

\_ __ 

!

,/ . ~ le l J_c---io.. _ __. L. Clair Nelson, Commissioner 

9/ The terms of office of our former colleagues, Commissioners Frank F. 

Jestrab and A. E. Lawson, expired at the end of day on August 30, 1984. 

Pursuant to section 113(c) of the Mine Act, 30 U.S.C. § 823(c), we have 

designated ourselves a panel of three members to exercise '~11 of the 

powers of the Commission," including the issuance of orders and decisions 

in proceedings before this Commission. 

2313 
Distribution 

Michael McCord, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Louise Q. Symons, Esq. 

U.S. Steel Mining Company 

600 Grant Street, Room 1580 

Pittsburgh, Pennsylvania 15230 

Administrative Law Judge Richard Steffey 

Federal Mine Safety & Health Review Connnission 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

2') 1 A 

t_) . ':t 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE. SUITE 400 

DENVER, COLORADO 80204 0 i""' ·~ l '.... ~ .1. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MONTANA CONTRACT MINING CO., 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 83-83-M 

A.C. No. 24-01607-05501 

Elk Creek Mine 

DECISION 

Appearances: James H. Barkley, Esq., and Margaret A. Miller, Esq. 

Office of the Solicitor, U.S. Department of Labor, 

Denver, Colorado, 

for Petitioner; 

Mrs. M.J. Good, Montana Contract Mining Company, 

Greenough, Montana, pro se. 

Before: Judge Morris 

This case, heard under the provisions of the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. § 801 et seq., (the 

"Act"), arose from an inspection of the Elk Creek Mine. The 

Secretary of Labor seeks to impose civil penalties because 

respondent allegedly violated safety regulations promulgated 

under the Act. 

Respondent denies any violations occurred. 

After notice to the parties, a hearing on the merits was 

held in Missoula, Montana on April 18, 1984. 

The parties waived their right to file post-trial briefs. 

Issues 

The issues are whether respondent violated the regulations; 

if so, what penalties are appropriate. 

23.15 
Citation 578245 

This citation alleges a violation of Title 30, Code of 

Federal Regulations, Section 57.11-50, which provides: 

Escapeways - Underground Only 

57.11-50 Mandatory. Every mine shall have two or more 

separate, properly maintained escapeways to the surface 

from the lowest levels which are so positioned that 

damage to one shall not lessen the effectiveness of the 

others. A method of refuge shall be provided while a 

second opening to the surface is being developed. A 

second escapeway is recommended, but not required, 

during the exploration or development of an ore body. 

In addition to separate escapeways, a method of refuge shall be provided for every employee who cannot 

reach the surf ace from his working place through at 

least two separate escapeways within a time limit of 

one hour when using the normal exit method.. These refuges must be positioned so that the employee can reach 

one of them within 30 minutes from the time he leaves 

his work place. 

Summary of the Evidence 

On February 22, 1982, MpHA Inspector Eric Shanholtz 

inspected respondent's underground barite mine. The inspection 

failed to locate a secondary escapeway. Miners entered and left 

the mine through the main portal (Transcript at pages 27 and 30). 

The hazard arising from the failure to have a secondary 

escapeway focuses on the fact that miners can remain trapped in 

the mine if they cannot use the main escapeway. An unplanned 

explosion or fire could block the main exit. Powder was stored 

between the miners and the main portal (Tr. 33, 34). 

The condition was abated by installing an escapeway (Tr. 

32). 

An admission from respondent in the file indicated a lack of 

funds prevented the installation of the escapeway. Further, the 

failure to provide it was not a deliberate act (Tr. 31). 

Respondent presented no evidence as to this citation. 

Discussion 

The facts establish a violation of the regulation. There 

were not two escapeways. As the inspector indicated miners could 

easily have been trapped in this mine. 

The citation should be affirmed. 
Citation 578246 

This citation alleges a violation of 30 C.F.R. 57.3-20 which 

provides: 

Underground Only 

57.3-20 Mandatory. Ground support shall be used if the 

operating experience of the mine, or any particular 

area of the mine, indicates that it is required. If 

it is required, support, including timbering, rock 

bolting,. or other methods shall be consistent with the 

nature of the ground and the mining method used. 

Summary of the Evidence 

Federal Inspector Eric Shanholtz issued this citation on 

April 12, 1982. On that date he tested the ground~ It sounded 

drummie and hollow (Tr. 35). 

Respondent's admission, a letter in the file, confirms that 

the back was drummie and hollow. But respondent further states 

that no one was working in the area (Tr. 34). However, the inspector testified that miners were actively mining as they passed 

through the area at the time of his inspection. ·several slab 

rounds had damaged the integrity of the shaft. In the 

inspector's opinion a serious roof fall would occur if this 

condition remained unabated (Tr. 35-36). If a roof fall occurred 

death or a serious injury could result (Tr. 36). 

Discussion 

I credit MSHA's evidence concerning this violation. The 

inspector has a background in mining and is experienced in this 

area. He was present and observed two miners actively working in 

close proximity to the violative condition. Cf. White Pine 

Copper Division Copper Range Company, 5 FMSHRC 825 (1983). 

Respondent's witness Mrs. M.J. Good is not shown to have 

been present at the time of the inspection. For this reason I am 

not persuaded by her testimony. 

The citation should be affirmed. 

Citation 578252 

This citation alleges a violation of 30 C.F.R. § 57.6-168, 

which provides: 

57.6-168 Mandatory. Misfires shall be reported to 

the proper supervisor and shall be disposed of safely 

before any other work is performed in that blasting area. 

n ') It~ 

!:::iu.J.. I 
Summary of the Evidence 

Inspector Shanholtz issued the above citation at Elk Creek 

Mine on May 18, 1982 (Tr. 36, 37; Exhibit Pl). The violative 

condition consisted of approximately 80 misfires located in the 

secondary escapeway. The escapeway had been completed as a 

result of a previous citation issued to respondent. The misfires 

were 10 to 15 years old. With the passage of time powder becomes 

unstable. As it decomposes the nitro separates. These misfires 

were unstable. An explosion with resultant serious injury could 

occur (Tr. 40, 41, 47, 48; Exhibit P2). 

The inspector originally set an abatement date of June 16, 

1982. When he returned he issued a 104(b) order because the 

defect had not been Gorrected; further, respondent had made no 

effort to remove the misfires (Tr. 38-40). 

Respondent's representative, Mrs. M.J. Good, indicated the 

miners felt they were asking for trouble if they attempted to 

correct this condition. The company, at MSHA's insistence, put 

on a work shift to take care of the problem (Tr. 44). 

Discussion 

The factual setting here establishes a violation of the 

regulation. The unstable condition of the powder has presented a 

serious hazard for many years. 

Respondent's evidence does not present a defense. While the 

miners may have felt unsafe in attempting to correct the misfires 

they could have sought MSHA's expert guidance on how to proceed 

in abating this condition. 

The citation should be affirmed. 

Citation 578255 

This citation alleges a violation of 30 C.F.R. § 57.9-54, 

which provides: 

57.9-54 Mandatory. Berms, bumper blocks, safety hooks, 

or similar means shall be provided to prevent overtravel 

and overturning at dumping locations. 

Summary of the Evidence 

Inspector Shanholtz issued this citation when he observed 

two workers dumping at a waste site from a young buggy !I and a 

loader. The vehicles came to the edge of the 20 foot high, 

ll A young buggy is a three wheel that can be unstable (Tr. 47). 
fairly steep, bank (Tr. 44-47). There were no berms to prevent 

overtravel of the vehicles (Tr. 44, 45). 

The hazard from this condition is that the vehicle can go 

over the edge. The operator of the vehicle, due to the lack of a 

berm, does not know when he is on the edge (Tr. 46). 

Respondent's evidence indicated the company had eliminated 

this problem. In addition, some of respondent's evidence dealt 

with the differences between the ore dump and the waste dump (Tr. 

50-52). 

Discussion 

The evidence establishes a violation of the regulation. The 

waste dump lacked a berm to prevent overtravel by the dumping 

vehicles. 

Respondent's evidence does not raise a defense to the 

violation. 

The citation should be affirmed. 

CIVIL PENALTIES 

The criteria for assessing civil penalties are contained in 

30 u.s.c. 820(i). 

In connection with these factors, on this consolidated 

record I find the following facts: In the two years before 

December 29, 1982, respondent was assessed six violations 

(Exhibit Pl in WEST 83-55-M). 

The proposed penalties do not appear inappropriate in 

relation to the size of the operator. The operator's negligence 

was high inasmuch as all of the violative conditions were readily 

apparent and could have been corrected. The penalties proposed 

should not affect the operator's ability to continue in business. 

The record reflects the company has been shut down since March 

15, 1983. But it is further indicated the company is waiting for 

market conditions to improve (Tr. 25, 26). On the record the 

gravity of each violation is high. A fatality could result from 

each violative condition. 

The final statutory criteria is respondent's demonstrated 

good faith in attempting to achieve rapid compliance after being 

notified of the violation. On this issue Inspector Shanholtz 

indicated that respondent lacked direction, was shoddy, 

unexperienced and engaged in poor mining practices (Tr. 48). On 

the other hand Mrs. Good testified that the company had always 

0010 

~u J 
fully cooperated with MSHA. I~ addition, three of her four 

employees had considerable mining experience. Further, the 

company rel~ed on such experienced people (Tr. 49, 54, 55). 

On this issue I credit MSHA's eviden~e. In the event 

respondent's employees were experienced on this record I can only 

conclude they failed to use their expertise. 

After carefully considering all of the statutory criteria I 

am unwilling to disturb the penalties proposed by the Secretary. 

Accordingly, I enter the following: 

ORDER 

1. The following citations and proposed penalties are 

AFFIRMED, 

Citation No. 

578245 

578246 

578252 

578255 

Penalty 

$ 20.00 

74.00 

370.00 

68.00 

2. Respondent is ordered to pay to the Secretary the sum of 

$532 within 40 days of the date of this decision. 

Law Judge 

Distribution: 

James H. Barkley, Esq., and Margaret A. Miller, Esq., Office of 

the Solicitor, U.S. Department of Labor, 1585 Federal Building, 

1961 Stout Street, Denver, Colorado 80294 (Certified Mail} 

Mrs. M.J. Good, Montana Contract Mining Company, P.O. Box 351, 

Greenough, Montana 59836 (Certified Mail} 

/blc 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 0 c: .1 1984 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA), 

Petitioner 

v. 

MONTANA CONTRACT MINING CO., 

Respondent 

Docket No. WEST 83-55-M 

A.C. No. 24-01607-05503 

Elk Creek Mine 

DECISION 

Appearances: James H. Barkley, Esq., and Margaret A. Miller, Esq. 

Office of the Solicitor, U.S. Department of Labor, 

Denver, Colorado, 

for Petitioner; 

Mrs. M.J. Good, Montana Contract Mining Company, 

Greenough, Montana, pro se. 

Before: Judge Morris 

This case, heard under the provisions of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 801 et seq., {the 

"Act"), arose from an inspection of the Elk Creek Mine. The 

Secretary of Labor seeks to impose civil penalties because 

respondent allegedly violated safety regulations promulgated 

under the Act. 

Respondent denies it violated the regulations. 

After notice to the parties, a hearing on the merits was held 

in Missoula, Montana on April 18, 1984. 

The parties waived their right to file post-trial briefs. 

Issues 

The issues are whether respondent violated the regulations; 

if so, what penalties are appropriate.· 

2 r) ')1 lJ ~-
Citations 

Citation 2081208 alleges a violation of Title 30 Code of 

Federal Regulations, Section 57.4-24 which provides as follows: 

57.4-24 Mandatory. Fire extinguishers and fire 

suppression devices shall be~ 

(a) Of the appropriate type for the particular 

fire hazard involved. 

(b) Adequate in number and size for the particular fire hazard involved. 

(c) Replaced with a fully charged extinguisher 

or device, or recharged immediately, after any 

discharge is made from the extinguisher or device. 

(d) Inspected, tested, and maintained at regular 

intervals according to the manufacturer's recommendations. 

(e) Approved by the Underwriter's Laboratories, 

'Inc., or other competent testing agency acceptable 

to the Mining Enforcement and Safety Administration. 

Citation 2081209 alleges a violation of 30 C.F.R. § 57.6-1 

which provides: 

General-Surface and Underground 

57.6-1 Mandatory. netonators and explosives other 

than blasting agents shall be stored in magazines. 

Summary of the Evidence 

MSHA Inspector Seibert Smith, a person experienced in 

mining, inspected respondent's underground barite mine for two 

days commencing December 28, 1982 (Tr. 7, 9). 

Four employees of respondent and two contract core drillers 

were at the mine site (Tr. 9, 10). They were drilling core 

samples (Tr. 10). 

The inspection party went into the main generator area. A 

225 volt DELCO generator was providing electricity. Within six 

feet of the generator were diesel fuel, motor oil, 7 cases of 50 

pound boxes of DuPONT powder and one 50 pound bag of a Prell type 

blasting agent (Tr. 11-13, 23). 

The DuPONT explosives were not a blasting agent. They were 

high explosives. They should have been stored in a proper 

magazine (Tr. 13, 14). There was, in fact, an ATF 1/ approved 

magazine outside the mine, some 50 feet from the portal (Tr. 13). 

l/ Alcohol, Tobacco and Firearms, an agency of the federal 

government (Tr. 22). 

002-2 

~u 
A powder cache of 350 pounds is significant. No explosives 

were being used on the day of the inspection. But in this small 

mine one case of powder would be sufficient for a day's blasting 

(Tr. 23). 

Garth Good told the inspector that the explosives were 

brought in because they felt they would freeze if they were left 

outside (Tr. 16). The company was aware of the condition but the 

core drillers were surprised (Tr. 17-21). 

There was no fire extinguisher in the mine (Tr. 12). 

In the inspector's opinion a fire extinguisher should be 

available. A fire could be caused by a spark from the generator 

exploding the diesel fuel (Tr. 12). The inspector further 

indicated that if an explosion occurred the concussion could kill 

the miners in the shaft (Tr. 14, 16). If the condition remained 

unabated it was reasonably likely that an explosion could occur 

(Tr. 15). 

The violation was abated when four fire extinguishers were 

purchased and installed. The fuel and explosives were carried by 

hand out of the mine (Tr. 20, 24, 25). 

Respondent offered no evidence to rebut the facts of the 

violation. 

Discussion 

The evidence establishes that powder was stored outside of a 

magazine; further, there were no fire extinguishers in the 

underground area where the generator was located. 

The uncontroverted evidence establishes a violation of both 

regulations and the citations should be affirmed. 

CIVIL PENALTIES 

The criteria for assessing civil penalties are contained in 

30 U.S.C. 820Ci). 

In connection with these factors, on this consolidated 

record, I find the following facts: In the two years before 

December 29, 1982, respondent was assessed six violations 

(Exhibit Pl in WEST 83-55-M). 
The proposed penalties co ~ot appear inappropriate in 

relation to the size of the operator. The operator's negligence 

was high inasmuch as all of the violative conditions were readily 

apparent and could have been corrected. The penalties proposed 

should not affect the operator's ability to continue in business. 

The record reflects the company has been shut down since March 

15, 1983. But it is further indicated the company is waiting for 

market conditions to improve (Tr. 25, 26). 

On the record the gravity of these violations is exceedingly 

high. A fire, with no extinguisher to inhibit it, could readily 

ignite the explosives. There was enough powder on hand to create 

a minor Mount St. Helens. 

To respondent's credit is the fact that the company has 

always fully cooperated with MSHA. 

The violations here are of a basic and serious nature. I am 

unwilling to disturb the Secretary's proposed penalties. 

Accordingly, based on the foregoing findings of fact and 

conclusions of law, I enter the following: 

ORDER 

1. Citation 2081208 and the proposed penalty of $20.00 are 

affirmed. 

2. Citation 2081209 and the proposed penalty of $195.00 are 

affirmed. 

3. Respondent is ordered to pay to the Secretary of Labor 

the sum of $215.00 within 40 days of the date of this decision. 

Law Judge 

Distribution: 

James H. Barkley, Esq., and Margaret Miller, Esq., Office of the 

Solcitior, U.S. Department of Labor, 1585 Federal Building, 1961 

Stout Street, Denver, Colorado 80294 (Certified Mail) 

Mrs. M.J. Good, Montana Contract Mining, P.O. Box 351, Greenough, 

Montana 59836 (Certified Mail) 

/blc 

2324 
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. 

U.S. STEEL MINING CO., INC., 

Respondent 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. SE 84-10 

A.C ... No. 01-00851-03534 

Oak Grove Mine 

Appearences: George D. Palmer, Esq., Off.ice of the Solicitor, 

U.S. Department of Labor, Birmingham, Alabama, 

for Petitioner; 

Louise Q. Symons, Esq., U.S. Steel Mining Company, 

Pittsburgh, Pennsylvania, for Respondent. 

Before: Judge Koutras 

Statement of the Case 

This proceeding concerns a citation issued by an MSHA 

inspector pursuant to § 104(a} of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 820(a}, charging the 

respondent with a violation of § 103(f} of the Act for failing 

to compensate an authorized representative of miners for 

the time spent accompanying the inspector during his visit 

to the mine. The citation no. 2192163, was issued on July 18, 

1983, by MSHA Inspector Theron E. Walker, and the "condition 

or practice" cited is described as follows: 

Steve Marable, an employee.of the Oak Grove 

Mine and an authorized representative of the 

miners, suffered loss of pay during the period 

he participated in an accident investigation 

(an· ignition of a mixture of methane gas and 

air} • Steve Marable was accompa,nying Theron Walker, 

who was conducting the investigation and is an 

authorized representative of the secretary on 

day shift, June 20, 1983. 

The investigation was conducted on Mr. Marable's 

regularly scheduled workshif t and no other 

authorized representative of the miners received 

pay for the period they participated in the 

accident investigation. 

') ') ') 5 

f:,w ~' .... 
Respondent filed a timely answer contesting the citation, 

and a hearing was held in Birmingham, Alabama. The parties 

filed posthearing arguments, and they have been considered 

by me in the course of this decision. 

Applicable Statutory and Regulatory Provisions 

I. The Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 801 et seq. 

2. Sections llO(i), 103(a), and 103(f) of the Act. 

3. Commission Rules, 29 C.F.R. § 2700.1 et seq. 

Issues 

The question presented is whether or not the union walkaround representative was entitled to pay for the time spent 

accompanying the MSHA inspector during his visit to the mine 

on June 20, 1983. 

Stipulations 

The parties stipulated to the following: 

1. The Operator is the owner and operator of the 

subject mine. 

2. The Operator and the mine are subject to the jurisdiction of the Federal Mine Safety and Health Act of 1977. 

3. The Administrative Law Judge has jurisdiction in 

this case. 

4. The MSHA Inspector who issued the subject citation was 

a duly authorized representative of the Secretary. 

5. A true and correct copy of the subject citation was 

properly served upon the Operator. 

6. The copy of the subject citation and determination of 

violation at issue are authentic and may be admitted into 

evidence for purpose of establishing its issuance, but not 

for the purpose of establishing the truthfulness or relevance 

of any statements asserted therein. 

7. Imposition of a penalty in this case will not affect 

the Operator's ability to do business. 

0 '.J ') 6 !~U,_ 
8. The alleged violation was abated in good faith. 

9. The Operator's history of prior violations is 

average. 

10. The Operator's size is large. 

11. The MSHA Inspectors and the witnesses who will 

testify in behalf of the Operator are accepted, generally, 

as experts in mine health and safety. 

Discussion 

Section 103(f), commonly referred to as "the walkaround 

right," provides as follows: 

Subject to regulations issued by the Secretary, 

a representative of the operator and a representative authorized by his miners shall be given 

an opportunity to accompany the Secretary or his 

authorized representative during the physical 

inspection of any coal or other mine made pursuant 

to the provisions of subsection (a), for the 

purpose of aiding such inspection and to participate 

in pre- or post-inspection conferences held at the 

mine. Where there is no authorized miner representative, the Secretary or his authorized 

representative shall consult with a reasonable number 

of miners concerning matters of health and safety 

in such mine. Such representative of miners who 

is also an employee of the operator shall suffer 

no loss of pay during the period of his participation 

in the inspection made under this subsection. To 

the extent that the Secretary or authorized representative 

from each party would further aid the inspection, he 

can permit each party to have an equal number of 

such additional representatives. However, only one 

such representative of miners who is an employee 

of the operator shall be entitled to suffer no loss 

of pay during the period of such participation under 

the provisions of this subsection. Compliance with 

this subsection shall not be a jurisdictional prerequisite 

to the enforcement of any provision of this Act. 

The facts in this case are not in dispute. A methane face 

ignition occurred at the mine during the day shift on Friday, 

June 17, 1983. The incident was promptly reported to MSHA 

by mine management. MSHA Inspector T. J. Ingram issued a 

verbal § 103(k) withdrawal order for purposes of preserving 

the scene of the ignition pending an investigation by MSHA. 

Inspector Ingram subsequently reduced his verb.al order to 

writing (Exhibit P-20). 

9 ,, •)7 ._v._ 
On Monday, June 20, 1983, MSHA Inspector Theron E. Walker, 

was instructed by his supervisor to go to the mine to investigate the reported ignition, and Inspector Walker and other 

MSHA inspectors, along with company and union officials, 

conducted an investigation, and the results were reported in 

MSHA's official report of investigation (Exhibit P-2). 

Inspector Walker had previously inspected the mine as 

part of his regular quarterly inspection, which had not been 

completed at the time of the ignition in question. However, 

on Monday, June 20, 1983, his principal mission was to conduct 

an investigation concerning the ignition, and he did not 

continue his regular inspection of the mine on that day. 

Mr. Steve Marable, a miner employed at the mine, was 

the duly authorized and recognized UMWA walkaround representative, 

and he had in the past, accompanied Inspector Walker during 

his regular inspections of the mine. During the special 

face ignition investigation conducted on June 20, 1983, 

Mr. Marable participated in the investigation as the duly 

designated UMWA representative, but he was not compensated 

and lost a day's pay. Mine management informed him that he 

would not be paid, and he so informed Inspector Walker. 

Respondent's counsel conceded that Mr. Marable was not paid, 

and counsel further conceded that it was mine management's 

policy to pay UMWA walkaround representatives only for 

accompanying MSHA inspections on regular enforcement inspections 

of the mine, and that no payment was authorized for accident 

investigations of the kind conducted in this case. 

Upon completion of the investigation on June 20, 1983, 

the § 103(k) order was terminated. MSHA's investigation did 

not result in the issuance of any notices or orders for any 

violations of any mandatory safety or health standards, and 

MSHA's findings concluded that the investigation did not 

reveal any violations. 

Inspector Walker testified that he waited until July 18, 

1983, to issue his citation because it took that long for 

Mr. Marable to produce his payroll records to document the 

fact that he was not paid for June 20, 1983. Mr. Walker 

confirmed that he terminated the citation on August 11, 1983, 

after Mr. Marable documented the fact that he was completely 

compensated. Respondent's counsel confirmed all of these 

facts. 

Petitioner's Arguments 

In support of its case, the petitioner states that the 

Third Circuit has recently joined the District of Columbia 
Circuit in holding that compensation of a miner representative 

is required for spot inspections.as well as regular inspections. 

Consolidation Coal Company v. FMSHRC and Donovan, ~- F.2d 

(3rd Cir. 1984). In response to the respondent's asserted 

narrow reading of the law, petitioner cites the following 

from page 6, slip copy of the Court's decision: 

The narrow reading urged by the company is 

inconsistent with the declared intent of Congress 

to promote safety in the mines and encourage miner 

participation in that effort. 

Petitioner also cites my prior decision in Secretary of 

Labor v. Monterey Coal Company, 5 FMSHRC 1223 (1983), where 

I held that a miner's representative accompanying an inspector 

during a roof control "technical investigation" was entitled 

to be compensated for the time spent with the inspector. ~/ 

Petitioner argues that the Monterey decision is consistent 

with the Interpretative Bulletin published by MSHA on 

April 25, 1978 (Exhibit P-1), and that when read together, 

establishes that the respondent has violated § 103(f) of 

the Act. Petitioner concludes that the "inspection" in 

question in this case was made for several of the purposes 

set forth in§ 103(a), and that Inspector Walker was obviously 

present at the mine site to physically observe or monitor 

safety and health conditions. Under these circumstances, 

petitioner concludes further that}1r. Walker's physical 

inspection was part of direct safety and health enforcement 

activity. 

Respondent's Arguments 

Respondent argues that walkaround pay is not required 

in cases where a miner's representative accompanies an 

MSHA inspector during an investigation. Respondent maintains 

that such pay is required pursuant to § 103{f), only when the 

inspector is at the mine to perform an inspection function 

as a duly authorized representative of the Secretary of Labor. 

In support of its argument, respondent asserts that inspections 

made pursuant to§ 103(f) of the act seems to be limited 

to physical inspections of the mine and pre- or post-inspection 

conferences in connection with the inspection held at the mine. 

Respondent points out that while§ 103(f) refers to§ 103(a), 

it does not seem to incorporate all of § 103(a) for§ 1Q3(a) 

refers to both inspections and investigations. Respondent 

concludes that Congress must have intended two separate 

activities by these two words or they would have used only 

one as they did in§ 103(f), and it cites Webster's New 

International Dictionary, 2d Ed., which. indicates that "inspect" 

means "to look upon, to view clearly and critically, especially 

so as to ascertain quality or state, to detect errors, etc.," 

while "investigate" means "to follow up by patient inquiry 

or observation; to inquire and examine into with systemic 

*/Affirmed by the 7th Circuit on September 14, 1984, 

Monterey Coal Co. v. FMSHRC, F.2d (7th Cir.). 
attention to detail and relationship." Respondent maintains 

that this seems purposefully consistent with the theory that 

Congress intended that miners be paid when they accompany 

an MSHA inspector who is engaged in an enforcement activity, 

i.e., a physical inspection of the premises ·to determine if 

the operator has met the standards of compliance required 

by the mandatory health and safety standards. Respondent 

concludes that one must presume Congress meant what it said 

when it left the word "investigation" out of § 103'(f), i.e., 

there is no requirement that a miner be paid to accompany 

an inspector who is examining the underlying causes of an 

event. 

Respondent recognizes that a methane ignition can occur 

even when the mine is fully in compliance with the federal 

regulations (Tr. 49). Conceding the fact that the purpose 

of a methane ignition investigation is to determine what 

can be done in the future to prevent a reoccurrence (Tr. 17), 

and that an inspector has to issue a citation everytime, he 

sees a violation (Tr. 27), respondent maintains that this 

does not change the purpose for which he entered the mine. 

In response to the petitioner's reliance on Monterey 

Coal Company, supra, respondent maintains that the inspector 

there was investigating whether the operator was in compliance 

with his roof control plan. Respondent points out that since 

a roof control plan becomes a mandatory safety standard at the 

mine where Lt is adopted, the purRose of the investigation 

was to determine compliance with a mandatory standard. 

Respondent argues that the instant case is easily distinguishable 

·in that the inspector admits that his purpose in coming to 

the mine was not to inspect the mine to see if it was in 

compliance with mandatory safety standards, but to investigate 

why a methane ignition occurred and to determine what could 

be done to prevent the occurrence of a second ignition. 

Respondent concludes that the facts in this case are clear 

that the visit to the mine on June 20, 1963 was not an 

enforcement activity (Tr. 17), the inspector did not arrive 

at any conclusions as to how another ignition could be avoided, 

and in fact, the mine had another ignition the next shift (Tr. 62). 

Findings and Coraclusions 

The arguments made by the respondent in this case are 

essentially the same arguments made by Monterey Coal Company. 

The crux of Monterey's arguments was that a roof control 

technical investigation conducted by an MSHA inspector was 

not compensable under § 103(f) because the terms "inspections" 

and "investigations" have different meanings and were never 
used interchangeably in the Act. Monterey maintained that 

the fact that Congress included both terms within the coverage 

of§ 103(a} ,·but used only the term "inspection" in§ 103(f}, 

indicated that Congress clearly intended that compensation 

only be paid for inspections and not for investigations. 

Inspector Walker confirmed that the§ 103(k} order which 

was issued in this case c.ontained an "AFC" designation code, 

and that it is not the same as a § 103 spot inspection 

(Tr. 18, 22). He indicated that in a methane ignition 

investigation, witnesses are interviewed in an attempt to 

determine what can be done to prevent further ignitions, 

whereas in a spot inspection, he is looking for violations 

of particular standards (Tr. 22-23). MSHA's official Report 

of Investigation (Exhibit P-2), confirms that Mr. Walker was 

conducting an AFC, or "Noninjury Methane Gas Ignition" 

investigation. 

Inspector Walker confirmed that Mr. Marable is the 

regularly assigned Union walkaround representative who routinely 

accompanies him during his regular inspection of the mine. 

Mr. Walker also confirmed that the mine is o~ an MSHA "103(i} 

spot inspection cycle" because it is more gassy than some 

mines (Tr. 12, 14-15), and he testified that during his 

investigation at the scene of the ignition on June 20, 1983, 

he checked out the equipment present, the ventilation, roof 

conditions, equipment permissibility, and made gas tests (Tr. 13). 

He confirmed that this is essentially what is done during his 

regular AAA inspections (Tr. 13). 

Section 103(a} of the Act authorizes the Secretary to 

conduct inspections or investigations to determine the causes 

of accidents. Any time there is a mine accident or disaster, 

MSHA's usual practice is to issue "control orders" to either 

withdraw miners from the scene, preserve evidence, or both. 

Once this is done, accident inspection teams consisting 

of state, federal, union, and company personnel enter the mine 

for the purpose of conducting an investigation. In this 

context, I believe that an MSHA inspector is there to 

investigate and to inspect. One function cannot be separated 

from the other, and in both instances, an inspector is 

performing an eh,forcement function, and it is unrealistic 

to suggest that he is there for any other purpose. 

While it is true that Mr. Walker's initial investigative 

mission on June 20, 1983, focused on finding the cause of 

the methane ignition so as to prevent a second such incident, 

it is clear that had he found any evidence that a violation 

of a mandatory safety standard was a contributing factor, he 
was authorized to issue a citation. It is also clear that 

during his investigation of the methane ignition, he conducted 

a physical inspection of the area, including the equipment. 

Given these circumstances, I cannot distinguish this case 

from the Monterey case. While it is true that in Monterey, 

an investigation as to whether or not the mine operator was 

in compliance with its roof control plan was closer to a 

"spot inspection," in both instances, I believe that the 

inspector was performing an enforcement function. 

In the case at hand, Inspector Walker confirmed that 

after terminating the§ 103(k) Order at 9:50 a.m., he left 

the underground portion of the mine and spent the rest of 

his time on the surface doing "normal paperwork" while waiting 

for the second shift to come to work. The second shift 

reported in at approximately 2:00 p.m. and were then available 

for interview with respect to the methane ignition (Tr. 23-26). 

While I believe that a Union representative must be 

compensated for the productive time spent walking around 

with an MSHA inspector, I do not believe that an operator is 

obligated to compensate the representative for "waiting around" 

with an inspector while he catches up on unrelated paperwork 

while awaiting the arrival of mine personnel to interview. 

After careful consideration of all of the testimony 

and evidence adduced in this case,4 including the arguments 

made by the parties in support of their positions, I conclude 

and find that on June 20, 1983, Inspector Walker's visit to 

the mine in question constituted an inspection and investigation 

of the mine much akin to a spot inspection, and that the 

walkaround representative was entitled to be compensated 

for the time spent accompanying the inspector during the 

actual performance of duties connected with his investigation 

and inspection. 

In view of the foregoing findings and conclusions, I 

conclude that the petitioner here has established a violation 

of § 103(f), and the citation IS AFFIRMED. 

Negligence 

The parties have advanced no arguments concerning negligence. 

However, I conclude that the respondent's refusal to pay 

the walkaround representative was prompted by its interpretation 

of the scope of § 103(f), and that respondent's intent was 

to test the law. Given these facts, I cannot conclude that 

there was any negligence in this case. ·· 
Size of Business and Effect of Civil Penalty on Respondent's 

Ability to Remain in Business. 

The parties have stipulated that the respondent is a 

large mine operator and that the proposed civil penalty will 

not adversely affect its ability to remain in business. 

I adopt these stipulations as my findings and conclusions. 

History of Prior Violations 

The parties have stipulated that the respondent has an 

average history of prior violations, and I adopt this as 

my finding on th1s issue. 

Gravity 

The parties have advanced no arguments concerning the 

gravity of the violation, and I conclude that it was nonserious. 

Good Faith Abatement 

The record reflects that the respondent has paid the 

walkaround representative, and the parties have stipulated 

that the violation was abated in good faith, I adopt this 

as my finding on this issue. 

Penalty Assessment_ and Order 

MSHA's initial proposed civil penalty assessment of $20 

for the violation in question seems reasonable in the circumstances 

and I accept it. Respondent IS ORDERED to pay the $20 civil 

penalty assessment within thirty (30) days of the date of 

this decision. 

~ -~~a~ ~~ y: -Koutras 

Administrative Law Judge 

Distribution: 

George D. Palmer, Esq., U.S. Department of Labor, Office of the 

Solicitor, 1929 9th Ave., South, Birmingham,· AL 35256 

(Certified Mail) 

Louise Q. Symons, Esq., U.S. Steel Mining Co., Inc., 600 Grant 

St., Rm. 1580, Pittsburgh, PA 15~30 (Certified Mail) 

/slk 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), Docket No. PENN 84-93 

. Petitioner A.C. No. 36-00967-03564 

v. . . 

: Clyde Mine 

BCNR MINING CORPORATION, 

Respondent 

Appearances: 

Before: 

DECISION 

Howard K. Agran, Esq., Office of the Solicitor, U.S. Department of Labor, Philadelphia, 

Pennsylvania, for Petitioner; 

B. K. Taoras, Esq., Kitt Energy Corporation, 

Meadow Lands, Pennsylvania, for Respondent. 

Judge Melick 

This case is before me npon the petition for civil penalty 

filed by the Secretary of Labor pursuant to § 105(d) of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801, et seq., 

the "Act" for two violations of the regulatory stand?trd at 30 

C.F.R. § 75.200. The general issues before me are whether the 

BCNR Mining Corporation (BCNR) has violated the regulations as 

alleged, and if so, whether those violations were of such a nature as could significantly and substantially contribute to the 

cause and effect of a mine safety or health hazard, i.e. whether 

the violations were "significant and substantial." If violations 

are found, it will also be necessary to determine the appropriate 

civil penalty to be assessed in accordance with section llOCi) of 

the Act. 

The parties have submitted the case on a stipulation of 

facts and have agreed that the general issues may be resolved 

upon these facts and the determination of a specific legal issue, 

i.e. whether Safety Precaution No. 20 of Respondent's approved 

roof control plan applies to certain cross bars or beams that had 

been installed as roof support prior to the incorporation of Safety Precaution No. 20 into the approved roof control plan. It is 

stipulated that the cross bars or beams cited had in fact been 

installed before the incorporation of Safety Precaution No. 20 

into the approved roof control plan. Safety Precaution No. 20 

reads as follows: 
"On haulageways, all crossbars or beams shall be 

installed with some means of support that will prevent 

the beam or crossbar from falling in the event the supporting legs are accidentally dislodged." 

The facts as stipulated by the parties are as follows: 

I. Factual Background 

On November 18, 1983 MSHA Inspector Thomas H. Devault, while making an inspection of the Clyde Mine, 

noticed approximately 50 steel beams between the 16 

Flat overcast and the upright pump 200 feet inby the 

overcast which were not secured from falling in the 

event support legs to the beams would be dislodged. As 

a result, he issued Citation 2105238 at 8:35 a.m. on 

November 18, 1983 to the Clyde Mine. 

On December 2, 1983, while on an inspection checking the abatement of the citation which had been issued 

on November 18, 1983, Inspector Devault issued a second 

citation as the result of his observing approximately 

30 steel beams located at a point starting 500 feet 

inby the pump and continuing inby for a distance of 300 

feet which were not secured from falling in the event 

that support legs would be dislodged. Thus, Citation 

2105239 was issued at 11:15 a.m. on December 2, 1983. 

The said citations were issued pursuant to Section 

104Ca) of the Act for "significant and substantial" 

violations of 30 C.F.R. § 75.200, for violation of safety precaution #20 of the Approved Roof Control Plan 

which states as follows: 

"On haulageways, all crossbars or beams 

shall be installed with some means of support 

that will prevent the beam or crossbar from 

falling in the event the supporting legs are 

accidentally dislodged." 

A copy of the roof control plan dated September 

13, 1982 is attached hereto, made a part hereof and 

marked Exhibit "A". 

Citation 2105238 was terminated on December 2, 

1983 after the mine inspector observed that wire ropes 

had been installed as straps to provide additional support to the cited steel beams. Citation 2105239 was 

2~~35 
terminated on January 19, 1984 when a mine inspector 

observed that all cited steel beams had been adequately 

secured and prevented from falling in the event that 

their ~upporting legs were knocked out. 

Safety precaution #20 was adopted by Approved Roof 

Control Plan on October 7, 1976. Prior to that ·date, 

the safety protection afforded by the said precaution 

was afforded only by Safeguard l GFM which was issued 

to the Clyde Mine on August 14, 1973. The said safeguard provides as follows: 

"Nume~ous crossbars, steel rails and I beams 

supported by posts or cribs which could be 

dislodged in the event of a derailment of a 

trolley locomotive or a trip of mine cars 

were observed along the track haulageways of 

this mine. Cabs or other suitable means of 

protecting the operators of all trolley locomotives from falling material in the event of 

a derailment shall be provided at this mine." 

On December 16, 1973, the Mine Operator implemented a policy of abating the conditions cited in the 

said Safeguard by installing root straps to prevent the 

"crossbars, steel beams and I beams" from falling. 

This method of abatement was approved by MSHA as a 

"suitable means of protecting ••• operators" as required by the Safeguard. 

The haulageways requiring strapping extended approximately 12 miles. Following issuance of the safeguard and the Operator's intiation [sic] of abatement 

efforts in December 1973, citations alleging violations 

of the Safeguard were extended and/or modified about 

100 times as strapping operations continued. 

However, on December 15, 1982 a Section 104(b) 

Order was issued to the Mine for its alleged failure to 

continue the strapping operation in a timely fashion. 

That Order was contested and is presently the subject 

of a notice of contest and penalty contest case under 

Docket Nos. Penn 83-56-R and Penn 83-139 before Judge 

William Fauver. That Order was terminated on April 19, 

1983. 

Thereafter, three § 104(a) citations were issued 

to the Clyde Mine alleging violation of Safety Precaution #20 of the Approved Roof Control Plan. Those cita-
tions are: Citation 2104665 issued on April 21, 1983, 

Citation 2104668 issued on May 2, 1983 and Citation 

2104672 .issued on May 11, 1983. Following their issuance, the mine sat idle for a period of months before 

Citations 2105238 and 2105239 were issued. 

Additional facts concerning the conditions alleged 

as violations are as follows: 

The entry in which the beams are located contains 

the track haulage road. The entry varies from approximately 16 to 20 feet wide. Men, equipment, and supplies are hauled through this area by means of an electric trolley haulage system. The trolley wire is located on the right side of the entry (looking inby) and 

is approximately 2-3 feet from the rib. Approximately 

3 feet of clearance is provided between the track and 

the rib on the tight side and about 4-5 feet on the 

wide side. The height of the entry from floor to bottom of beams is approximately 6 feet. The track is 

generally the same height as the mine floor. 

The beams are lengths of steel track set against 

the roof crosswise to the direction of the entry. Wooden posts are set under the ends of the beams to hold 

the beams and the roof above them. The beams are approximately 15-20 feet long and are spaced approximately 5 feet apart. 

The trolley locomotives and trip cars which move 

on the tracks of the track haulage derail from time to 

time. When they do, they can strike (and have struck) 

the wooden posts supporting the overhead beams causing 

the overhead beams to fall, posing a serious hazard to 

locomotive operators and any other miners in the vicinity. 

When the bea~s were originally installed along the 

roof of the track haulage entry, some of them were supported by being set on a support system fastened into 

the rib near the roof. However, over time, due to ordinary weathering, the coal rib and roof suffered sloughage and fell making the original support system inadequate. Wooden posts (legs) were then set from the 

floor to support the steel beams. 

This process occurred over a period of many years. 

The haulage entry was initially drawn (mined) approximately 40 years ago and the track haulage was installed 

0 '} '"7 .i:~u0 
shortly thereafter. The beams were installed over a 

course of years as roof conditions along the haulage 

changed. By 1970, the original support for the beams 

had been replaced by the wooden legs. 

II. Facts with Respect·to the Size of the Operator 

and History of Prior Violations 

Respondent, BCNR Mining Corporation and its Clyde 

Mine is an Operator which as of March 21, 1984, was 

producing 196,923 production tons of coal annually. 

During the two year period preceding issuance of 

Citation 2105238, 678 violations were issued to the 

Clyde Mine. During the two year period preceding issuance of Citation 2105239, 683 violations were issued to 

the Clyde Mine. 

It may be presumed, based upon the legal issue presented by 

the parties that the Respondent's position is that the roof control plan approved on October 7, 1976, applies only prospectively 

in the sense that pre-existing conditions, even though in violation of the plan, are exempt from enforcement action under the 

plan. Respondent does not, however, cite any legal impediment to 

the enforcement action for conditions_which continued to exist 

after the effective date of that plan. The violations cited were 

alleged to have occurred well after the effective date of the 

roof control plan. I am indeed baffled by Respondent's contention, for even if the roof control plan had incorporated a criminal violation the enforcement action herein was directed to conditions existing after the effective date of the plan and therefore 

would not have been barred by the Constitutional provisions against ex post facto laws. Accordingly, I reject the Respondent's unsupported argument and affirm the "significant and substantial" violations cited herein. Considering the stipulated 

facts in light of the criteria under Section llOCi} of the Act, I 

find that the proposed penalties of $126 for each citation are 

appropriate. 

') ') 3·. 8 ·-0 
ORDER 

Citation.Nos. 2105238 and 2105239 are affirmed. The BCNR 

Mining Corporation is hereby ordere to pay civil penalties of 

$252 within 30 days of the date of t decisio • 

Distribution: 

Gary Meil"ck 

Assistai~ Chief 

Howard K. Agran, Esq., Office of he Solicitor, U.S. Department 

of Labor, 14480 Gateway Building· 3535 Market Street, Philadelphia, PA 19104 (Certified Mail) 

B. K. Taoras, Esq., Kitt Energy Corporation, Managing Agent for 

BCNR Mining Corporation, 455 Race Track Road, P.O. Box 500, Meadow Lands, PA 15347 (Certified Mail) 

/nw 
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: CENT 84-15-M 

A.C. Mo. 41-01007-05503 

v. 

. . 

Corpus Christi Mill 

·N.L. BAROID-DIV/NL 

INDUSTRIES, INC., 

Respondent 

Appearances: 

Before: 

DECISION 

Jack F. Ostrander, Esq., Office of the 

Solicitor, U.S. Department.of Labor, Dallas, 

Texas, for the Petitioner; 

J.D. Fontenot, Safety and Health Manager, 

N.L. Baroid Division, NL Industries, Inc., 

Houston, Texas, for the Respondent. 

Judge Koutras 

Statement of the Case 

This is a civil penalty proceeding initiated by the 

petitioner against the respondent pursuant to section llO(a) 

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

820(a), seeking civil penalty assessments in the amount of 

$80 for four alleged violations of certain mandatory safety 

standards found in Part 55, Title 30, Code of Federal 

Regulations. 

The respondent filed a timely answer and contest, and 

pursuant to notice, a hearing was held in Corpus Christi, 

Texas, on July 12, 1984. The parties waived the filing of 

post-hearing briefs. However, I have considered their oral 

arguments made on the record during the course of the 

hearing. 

Issues 

The principal issues presented in this proceeding are 

(1) whether respondent has violated the provisions of the 
Discussion 

All of the citations issued by Inspector White were 

section 104(a), non "S&S" violations, and they are as 

follows: 

Citation No. 2232152, issued August 16, 1983, citing a 

violation of 30 CFR, 55.9-87, and the condition or practice 

cited states: 

The hyster forklift was provided with a backup 

alarm. The alarm was not in working order. 

Citation No. 2232254, issued August 16, 1983, citing a 

violation of 30 CFR 55.9-1, and the condition or practice 

states: 

Records were not made available when requested as 

to the preshif t inspection on the mobile 

equipment. 

Citation No. 2232153, issued August 171 1983, citing a 

violation of 30 CFR 55.14-1, and the condition or practice 

cited states: 

The pinch point on the head pulley of the short 

belt conveyor <recirculating) was not guarded. 

The head pulley was located next to the catwalk. 

No one was observed in the area. 

Citation No • .2232155, issued on August 17, 1983, citing 

a violation of 30 CFR 55.12-8, and the condition or practice 

states: 

The power conductors for the overhead hoist in the 

machine shop had pulled out of the metal housing 

and was secured by a small wire, thus not properly 

housed. No one was observed using the hoist. 

MSHA Inspector Robert W. White, testified as to his 

background and experience which includes past employments as 

a mine superintendent, and service as a Federal mine 

inspector since 1976. He described the respondent's Corpus 

Christi mill as a free-standing mill which processes raw 

barite through a process which includes grinding, milling, 

and screening of the raw material which is trucked to the 

facility. The processed barite is stored in silos and then 

is sold in bulk or as a bagged product (Tr, 10-12). 
Act and implementing regulations as alleged in the proposal 

for assessment of civil penalty filed, and, if so, (2) the 

appropriate civil penalty that should be assessed against 

the respondent for the alleged violations based upon the 

criteria set forth in section llOCi) of the Act. Additional 

issues raised are identified and disposed of where 

appropriate in the course of this decision. Included among 

these issues is the question as to whether the cited 

violations were "significant and substantial." 

In determining the amount of a civil penalty 

assessment, section llOCi> of the Act requires consideration 

of the following criteria: Cl> the operator's history of 

previous violations, (2) the appropriateness of such penalty 

to the size of the business of the operator, (3) whether the 

operator was negligent, (4) the effect on the operator's 

ability to continue in business, (5) the gravity of the 

violation, and (6) the demonstrated good faith of the 

operator in attempting to achieve rapid compliance after 

notification of the violations. 

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. s7q 

2. Section llOCi) of the 1977 Act, 30 u.s.c. §820(1). 

3. Commission Rules, 29 C.F.R. §2700.1 et ~ 

The parties stipulated that the respondent's Corpus 

Christi mining operation is small 1n scope and that it 

consists of a milling and grinding operation processing 

approximately 150,000 tons of barite annually, utilizing 

40,000 man hours. The parties also agree that as a 

corporate operation, the respondent operates an additional 

10 mining operations, and employs approximately 300 workers 

in all of its operations (Tr. 7-8). 

The parties stipulated further that the respondent's 

mining operations at the Corpus Christi facility affects 

interstate commerce and that the respondent is subject to 

MSHA's enforcement jurisdiction. 

The parties stipulated to the authenticity and 

admissibility of their respective exhibits CP-1 through P-5, 

and R-1 through R-4.). 

~342 
Inspector White confirmed that he conducted inspections 

at the mine on August 16 and 17, 1983, and that he issued 

the citations in question and served them on respondent's 

safety representative Bob Spradling {Tr. 12). 

With respect to citation No. 2232152, which he issued 

because of an inoperative back-up alarm on a forklift, 

Mr. White confirmed that the machine was equipped with an 

alarm but when he had the operator put the machine in 

reverse, the alarm did not sound. The machine was not 

tagged out, and Mr. White did not observe it in actual use. 

The machine w~s parked outside of the machine shop, and he 

believed the machine was used periodically as needed to 

transport machinery and equipment in and out of the shop, 

and when it backed out of the shop the rear yiew at the 

corner of the shop would be obstructed. The machine was 

equipped with a canopy, with corner support posts, and 

Mr. White described it as a forklift which is larger than 

others which are in use at the facility (Tr. 13-14). 

Mr. White did not know how long the backup alarm had 

been inoperative, and he stated that when he asked for the 

inspection report record to ascertain how long it had been 

inoperative, Mr. Spradling couldn't produce it (Tr. 14-16). ~ 

With regard to citation 2232154, Inspector White 

confirmed that he issued it after the respondent's 

representative failed to produce any record concerning the 

fact that the hyster forklift had been preshifted and found 

to have had an inoperative backup alarm. He confirmed that 

no records have to be kept if no equipment defects are 

noted, and he indicated that different people use the 

equipment, but that one equipment operator told him that he 

did not check the forklift (Tr. 18-19). The citation was 

abated after the operator's representative noted his records 

that the backup alarm was inoperative (Tr. 19). 

With respect to citation 223215, concerning the hoist 

power conductors, Mr. White stated that bushings on the box 

where the wires entered had been pulled out, and while the 

three or four small wires entering the box through the metal 

housing were insulated, he believed they were subject to 

possible breakdown of the insulation, thereby presenting an 

electrical or short hazard CTr.22). The condition was 

corrected by installing a housing grommet, which kept the 

wires from pulling out. The grommet also served as added 

protection for the wires (Tr. 23). 

2343 
Mr. White confirmed that the hoist was not being used, 

but that the power was on, and a mechanic advised him that 

while the hoist is not used for long periods of time, there 

are days· when it is used quite a bit (Tr. 23). Mr. White 

could not state how long the condition had existed, and he 

confirmed that the small wires were secured by another piece 

of wire (Tr. 24). 

On cross-examination, Inspector White conceded that 

when he arrived at the plant on August 16, it was not in 

normal operation and no materials were bring processed. He 

confirmed that the facility was on a hurricane alert and was 

in the proce~s of carrying out several phases of shutting 

down because of the hurricane alert (Tr. 26). 

Mr. White confirmed that the cited forklift was in the 

yard and not in the shop when he inspected it, and he 

conceded that he did not consider that any hazards were 

presented by the forklift violation (Tr. 27). He conceded 

that while the forklift in question has a vertical rollover 

bar which does not obstruct the operator's view, the 

operator's view to the rear while backing out of the shop 

would be obstructed because he could not observe anyone 

around the shop corner (Tr. 34). Mr. White also confirmed 

that the machine was not being operated when he observed it, 

and while the respondent got someone to operate it, the 

operator was not backing out of the shop, and he did not 

have an obstructed view at the time he issued the citation 

(Tr. 34-35). Mr. White conceded that the only time the 

cited standard requires a backup alarm is when the operator 

has an obstructed view to the rear (Tr. 36). He also 

conceded that the machine itself would not obstruct the 

operator's view in any way, and that he could turn in all 

directions and see behind the machine (Tr. 38). 

With regard to the inspection report citation, 

Inspector White indicated that after he cited the forklift 

violation, he asked to see a copy of the inspection reports 

concerning the mobile equipment inspections, and when asked 

whether he requested the particular report on the forklift, 

or all reports, he replied "I don't recall for how long a 

period I asked for. It could have been that day or that 

week. I just asked to see the records on the mobile 

equipment checks" (Tr. 39). 

Inspector White stated that he was provided with an 

"operator's report" concerning "crushing and stuff like 

that" (Tr. 39). He conceded that "it's left to the operator 

2344 
as to what type of forms he uses", and he further conceded 

that no particular prescribed forms are required to be 

maintained for equipment defects. When shown a copy of 

respondent's exhibit -3, Mr. White confirmed that he saw 

such forms, but he indicated that such forms are proper 

"production reports" under.section 55.18-1, and that he 

advised the respondent's representative that "it looked like 

a production report rather than a mobile equipment 

checklist" CTr.41). However, Mr. White also indicated that 

had the "bad forklift alarm" been noted on the face of the 

exhibit in question, he would have accepted it as compliance 

with the cited standard (Tr. 42). 

With regard to the wire conductor citation, Inspector 

White stated that the hoist was approximately 8-1/2 feet off 

the ground, and that he observed no rubber outer covering on 

the wires which went through the hoist housing, but just the 

wire holding the other small wires together. He could not 

state whether there was any stress on the wires, and 

confirmed that he issued the citation because of the lack of 

a proper bushing to secure the wires as they entered the 

housing (Tr. 44-46). 

In response to certain bench questions, Inspector White 

indicated that he assumed the cited forklift would be used 

to transport and protect equipment from the hurricane, and 

that it is normally used to move motors and parts around, 

and that he did not believe that it is normally used to 

store or move the bagged materials which are processed at 

the plant. He indicated that other forklifts are used for 

that purpose (Tr. 49). When asked to explain why he issued 

the citation, he summed it up as follows (Tr. 50): 

* * * * * * 

Now, let's assume you've got this 

forklift parked, and the operator decides not 

to use it that day at all, then you come on 

the scene and decide to inspect it, and you 

crank it up and find that the backup alarm is 

inaudible. That's essentially what happened 

here, isn't it? 

THE WITNESS: Yes, sir. 

ADMINISTRATIVE LAW JUDGE: Would that be 

a violation? 

2315 

* 
THE WITNESS: The equipment was ready to 

be operated. In other words, I had asked 

them what equipment was subject to be ran and 

what equipment was being operated during the 

course of a day, and the only thing they told 

me was that they had one front-end loader 

that was out of service, that they knew it 

needed, I think it was brakes, and they 

weren't going to let anybody operate it. To 

me that was fine and ••• 

ADMINISTRATIVE LAW JUDGE: So based on 

what you determined, they had some that was 

tagged out and some that wasn't, and this 

wasn't? 

THE WITNESS: Yes, sir, that's right, 

from what they told me. 

Torn Roe, respondent's plant manager, confirmed that at 

the time of the inspection the plant was under phase three 

of a hurricane preparation, and that the plant was in the 

process of being secured., He described the preparations 

that were being conducted, and conf irrned that the plant was 

not in production (Tr. 59-61). He confirmed that Hurricane 

Alicia made landfall in the Galvest6n area on August 17th. 

He also confirmed that he knew the cited forklift· had an 

alarm which was out, but it still was used to secure plant 

equipment (Tr. 63). At the time the citation was issued, a 

micro-switch required to repair the alarm had already been 

ordered, but not delivered by the supplier (Tr. 63). Rather 

than wait, a completely different alarm was purchased and 

installed that same evening, and it was in operation the 

next day (Tr. 64). He confirmed that all forklifts at the 

plant are equipped with alarms, and this is done for the 

safety of all employees (Tr. 64). Mr. Roe stated that the 

forklift in question had been tagged out, but that it was 

put back in service because it was absolutely necessary to 

secure plant equipment (Tr. 65). 

With regard to the reporting citation, Mr. Roe stated 

that previous MSHA inspectors had accepted the daily 

reports, such as exhibit R-3, and any defects in. equipment 

are noted on these reports (Tr. 65). He explained how the 

reports are prepared (Tr.66). 

With regard to the wire conductor citation, Mr. Roe 

explained as follows (Tr. 67): 

')" 116' i-LI · 
Q. Okay, did you have personal knowledge 

that the grommet had come out of the housing? 

A. I had no personal knowledge myself, but my 

maintenance people did. 

Q. Had they attempted to correct? 

A. Right. They told me that the rubber grommet that 

holds the wires into the housing, the least little pull 

will pull the rubber grommet loose. Our electrician 

had been notified, and he had checked it, and said he 

had to change types of grommet because that grommet 

just would not hold, so a wire was attached to that 

cable to hold it up to keep anybody from pulling the 

cord to keep the insulation from being broken on 

existing wires. 

Q. And who installed that wire? 

A. It was factory. 

Q. No, the extra wire to keep from ••• 

A. Oh, maintenance personnel~at the Corpus Christi 

plant. 

Q. Was this under the direction of the electrician? 

A. No, huh-uh. 

Q. Okay, the electrician evidently didn't feel like 

there was a hazard because he didn't do anything, is 

that right? 

A. No, he didn't do anything. He said he would have 

to order a different type of grommet for it. 

Q. Okay, was that grommet ordered? 

A. It was. 

Q. Was it installed? 

A. It was installed. 

On cross-examination, Mr. Roe confirmed that the cited 

forklift has a rated lifting capacity of 6,000 pounds, and 

·it 
would be classified as a large forklift (Tr. 69). He 

identified exhibit R-4 as an equipment checklist prepared to 

abate the reporting citation, and indicated that such a form 

was not previously used (Tr. 70). He conceded that the 

operational report, exhibit R-3, shown to the inspector, did 

not note that the forklift.alarm was inoperative, but he 

insisted that it would have been recorded on previous 

operational reports which he did not have with him at the 

hearing CTr. 71). Mr. Roe stated that while he gave 

Inspector White only the daily record for the day he was 

there, exhibit R-3, all of his records were available in the 

office {Tr. 82). He later indicated that he gave the 

inspector all of the file, and not just the one report (Tr. 

90). Mr. Roe explained further as follows (Tr. 74-77): 

ADMINISTRATIVE LAW JUDGE: Well, now, 

did you ask Mr. White what he had in mind 

when he issued you the citation for not 

providing these records? 

THE WITNESS: When we provided the 

records he looked them over and first stated, 

he said, "Well, I can accept these." 

ADMINISTRATIVE LAW JUDGE: Which 

records? 

THE WITNESS: The ones you have in your 

hand. 

ADMINISTRATIVE LAW JUDGE: Just this 

one, R-3? 

THE WITNESS: Right. 

ADMINISTRATIVE LAW JUDGE: But you 

provided no other ones prior to this time? 

THE WITNESS: No, sir. 

* * * * * 

ADMINISTRATIVE LAW JUDGE: All right, 

with that I assume that had he found on this 

one a defect noted on the forklift, he would 

have acceptd that? 

THE WITNESS: He didn't state that. He 

said he would accept these records at first, 

2318 
and then during the conversation he kept 

going through there and he said, "No, I don't 

believe I can accept these records because I 

don't think any other inspector would accept 

them," and therefore he wrote the citations. 

ADMINISTRATIVE LAW JUDGE: Well, what 

was his reason for not accepting them, do you 

remember? 

THE WITNESS: His reason that he gave us 

was that any other inspector would not accept 

them. 

ADMINISTRATIVE LAW JUDGE: For what 

reason would any other inspector not accept 

them? 

THE WITNESS: He didn't say. He did not 

say, "Because the forklift is not listed on 

here I cannot accept these." He said, "I 

cannot accept these because I don't think any 

other inspector would accept them." 

ADMINISTRATIVE LAW JUDGE: What did you 

provide to the Inspector, to Mr. White, to 

have this citation terminated or abated? 

THE WITNESS: The additional, number 

three. 

ADMINISTRATIVE LAW JUDGE: Which is what 

you have in your hand? 

THE WITNESS: Yes, sir, R-4. 

ADMINISTRATIVE LAW JUDGE: R-4. When 

was that provided to him? 

THE WITNESS: We started this one on the 

twenty-second, and he was supposed to be back 

that same week, I believe, but he got tied up 

and couldn't make it back. He came back the 

next morning, to abate what we've got on, and 

he was supposed to come back the following 

week, and it wa~ several days before he got 

back. 
ADMINISTRATIVE LAW JUDGE: When he came 

back the next day, he abated the forklift 

citation because you had put an alarm on it, 

is that correct? 

THE WITNESS: Yes, sir. 

ADMINISTRATIVE LAW JUDGE: How did he 

abate this one? 

THE WITNESS: I don't know. I don't 

know of an abatement made on that. 

ADMINISTRATIVE LAW JUDGE: It says 

September twenty-second. 

THE WITNESS: That's when he came back. 

ADMINISTRATIVE LAW JUDGE: But this form 

that you're holding in your hand, which is 

Exhibit R-4, was that a form that was used 

prior or at the same time he inspected? 

THE WITNESS: No, sir, this is a form 

that we started using by his request. 

ADMINISTRATIVE LAW JUDGE: Who designed 

that form? 

THE WITNESS: He told us what we should 

have on there, and we designed it ourselves. 

Mr. Roe pointed out that equipment defects are noted on 

the daily reports, and he pointed to the fact that exhibit 

R-3, contains a notation with respect to a Caterpillar 

machine (Tr. 78). He insisted that he provided Mr. White 

with his records, and that he gave him his reports for 

mobile equipment, but that Mr. White would not accept them 

as compliance records (Tr. 79). 

Bob Spradling, respondent's safety supervisor, 

confirmed that he accompanied Inspector White on his 

inspection rounds, and he conceded that the cited forklift 

had been out of service the day before, but that it was put 

back in service because of the hurricane emergency. He 

stated that the respondent had not been previously cited for 

mobile equipment violations (Tr. 93). He testified that he 

conducts regular safety meetings, and that equipment which 

is found to be defective is always taken out of service (Tr. 

9 4). 
Mr. Spradling stated that he gave Mr. White the daily 

operating report, as well as the file for the month, and he 

indicated·that Mr. White did not ask for the specific report 

for the forklift, but only generally wanted to see mobile 

equipment reports (Tr. 95)a He confirmed that approximately 

16 to 20 employees normally work at the plant in question 

(Tr. 96). 

Mr. Spradling stated that he had not previously noticed 

the grommet pulled out of the hoist connector. However, he 

indicated that maintenance personnel were aware of it and 

ordered a replacement part. In his opinion, the wires did 

not present any hazard because they were individually 

insulated and no bare wires were present. The wire which 

held the insulated wires together was there to keep tension 

off the hoist cable, and this was done to eliminate any 

safety hazard (Tr. 98). 

Mr. Spradling stated that the remainder of the week of 

August 16, 1983, was spent undoing what was done to secure 

the plant from the hurricane, and that the plant "was 

gradually built back up to full capacity by Thursday and 

Friday", but was shut down over the weekend (Tr. 104). 

Inspector White was called in rebuttal, and he 

testified as follows (Tr. 108-110): 

Q. What specifically did you discuss with 

him then? 

.A. I asked Mr. Spradling if he could show 

me the records where the defective backup 

alarm was not working on this mobile 

equipment checklist. 

Q. What, if anything, did he tell you at 

that time? 

A. He didn't make them available. He 

didn't know. He just went and got the 

production sheets. 

Q. Now what type of production sheet did he 

show you? 

A. The ones over in the control booth. 

2351 
Q. - Are these the same ones he testified to 

previously? 

A. Yes. 

Q. Did he show you a whole month of 

reports? 

A. A whole month? 

Q. Yes. He testified he had a whole month 

of production reports. 

A. No, he wouldn't have had a whole month. 

I don~t recall how many reports that he did 

show me. I looked at some reports. I've 

never seen the defect list. 

Q. Did you bring up the defect with him 

again? 

A. Yes, that was the purpose, yes. That's 

what I told him, "I'd iike to see where this 

has been reported." 

Q. Did he make any effort at~all to find 

the defect in the production reports? 

A. Well, he didn't bring it to me. I don't 

know if he looked back through them and found 

them or what. 

Q. What happened after you were there with 

the records and you told him that you wanted 

to see a report of the defects? 

A. That he couldn't make it available, and 

I told him that was the reason I issued the 

citation, and then we went ahead and did the 

inspection on the other pieces of equipment, 

and I showed him what I looked for, and as a 

recommendation how other people were, told 

him how other people were complying with that 

standard. 

* * * * * 

ADMINISTRATIVE LAW JUDGE: No, I mean 

did you issue a citation here because there 

* 
wasn't a record produced that they had known 

about the defect, or did you issue the 

citation because the operator was being a 

little recalcitrant and uncooperative, and 

just didn't make his files available to you? 

THE WITNESS: No, sir, that wasn't it. 

I issued the deal because there was a defect 

that I couldn't, that they didn't make 

available, that it was recorded, that's all 

CTr. 114). 

* * * * * * 

ADMINISTRATIVE LAW JUDGE: Well, your 

intent, Mr. White, in issuing this citation 

in here, the failure of the operator to make 

it available, was not, or was it, to look at 

all of his records on mobile equipment, or 

just on this particular forklift? 

THE WITNESS: Just -- I wanted to see 

his records. When I find a violation on that 

particular deal, I want to see that they were 

in fact recording the defects On mobile 

equipment. 

ADMINISTRATIVE LAW JUDGE: Now, as you 

were perusing through the file that he gave 

you, did you feel or did you make any 

judgments then as to the utility of using 

such a form like this, or did you feel that 

they probably should have had something over 

and above this particular form? 

THE WITNESS: I gave them some 

suggestions of what I seen. Maybe that was 

more of a production report, and it didn't 

leave much for the operator. 

Findings and Conclusions 

Fact of Violations 

Citation 2232155. Petitioner has established that the power 

conductors for the overhead hoist were not properly housed 

or secured and that they were pulled out of the metal 

housing and secured with a wire. Section 55.12-8, requires 

'1 '~ f .... r ;~ L) tJ ~ 
that such wires entering through electrical compartments 

either have proper fittings or are bushed with insulated 

bushings. In this case, they were held together with a 

piece of wire which had been installed by respondent's 

maintenance personnel. The citation is AFFIRMED. 

Citation 2232154. Section 55.9-87, requires that heavy 

duty mobile equipment be provided with audible warning 

devices. When the operator of such equipment has an 

obstructed view to the rear, the equipment is required to 

have either an automatic reverse signal alarm which is 

audible above the surrounding noise level, or an observer to 

signal when it is safe to back up. 

In defense of the forklift citation, respondent 

asserted that since the forklift is not used to load, dump 

or haul materials which are processed at the mill, it does 

not qualify as "heavy duty mobile equipment" under the cited 

standard CTr. 32). The fact that the cited standard is 

listed under the general section 55.9 regulatory heading of 

"Loading, hauling, dumping", does not mean that equipment 

not used for these tasks are excluded from the requirements 

of section 55.9-87. Accordingly, respondent's defense is 

rejected. I conclude that the record here supports a 

finding that the forklift in question is a heavy duty mobile 

piece of equipment. 

The forklift in question was provided with a backup 

alarm, but it was inoperative. Respondent conceded that the 

cited forklift was not put out of service at the time of the 

inspection, and that it was to be used to store and secure 

material from the hurricane CTr. 57). Mr. Roe confirmed 

that the forklift had been taken out of service a week 

before the inspection after the backup alarm went out, but 

that he had been checking on the switch part which had been 

ordered because the forklift was needed (Tr. 90). 

Respondent's representative indicated that the 

respondent equipped all of its forklifts with backup alarms, 

not for compliance with any MSHA requirements, but for the 

protection of its employees. The representative agreed that 

backup alarms are sensible items, but that in this case 

where the backup alarm wasn't working, the parts had been 

ordered, and the equipment was being used in an emergency 

situation, he was of the view that the backup alarm was of 

small consequence (Tr. 119-120). 

Inspector White conceded that there was no hazard 

presented by the forklift violation, and he admitted that 
the machine was parked on the parking lot and that he never 

observed it backing out of the shop. He agreed that the 

configuration of the machine is such as to not obstruct the 

operator's view to the rear, and he admitted that the 

operator could turn in all directions and see behind the 

machine. Mr. White's only.concern was that the operator 

would not be able to see anyone coming around the corner of 

the shop if he were to back out of the shop. 

Mr. White indicated that the forklift in question is 

not used to move or store the bagged materials which are 

processed at the plant, and that other types of forklifts 

are used for that purpose. He assumed that the cited 

forklift would be used to help secure equipment from the 

hurricane, and he indicated that it was normally used to 

move motors and parts around the plant. 

Although it is true that at the precise time that the 

inspector viewed the forklift, it was not backing up, the 

fact is that when it is in normal use in and around the 

plant transporting' equipment and parts, one can logically 

assume that it will back in and out of areas after 

depositing its load. Mr. Spradling confirmed that the 

machine might be used during the day to load out trucks with 

pallets and material or during an overhaul which takes place 

every two or three months (Tr. 98).~ Since the machine is 

equipped with a backup alarm, it makes good sense to insure 

that it is operational, and the respondent candidly admits 

that this is true. While the respondent has established 

that the forklift was not backing out of the shop at the 

time the inspector observed it, respondent has not rebutted 

the inspector's assertion that when it does back out of a 

shop area, the operator can not see around the corner. 

After careful consideration of all of the testimony 

with regard to this citation, I conclude and find that 

petitioner has established a violation of section 55.9-87, 

and the citation is AFFIRMED. 

Citation 2232154. The inspector here charges that the 

respondent violated section 55.9-1, for purportedly failing 

to make available certain records as to the pre-shift 

inspection on the mobile equipment. The requirements of 

section 55.9-1, are as follows: 

55.9-1. Mandatory. Self-propelled 

equipment that is to be used during a 

shift shall be inspect~d by the 

equipment operator before being placed 
in operation. Equipment defects 

affecting safety shall be reported to, 

and recorded by the mine operator. The 

records shall be maintained at the mine 

or nearest mine off ice for at least 6 

months from the date the defects are 

recorded. Such records shall be made 

available for inspection by the 

Secretary of Labor or his duly 

authorized representative. 

Respondent's representative indicated that he was under 

the impression that the citation was issued because the 

inspector would not accept the company's daily production 

reports as preshift inspection reports for mobile equipment. 

The representative stated that the backup alarm defect had 

been reported a week prior to the inspection of August 16, 

1983, and that he only brought to the hearing the daily 

report for that date because he believed that this was the 

issue presented {Tr. 71-72). He also maintained that the 

respondent's records were made available to Inspector White, 

but that he would not accept them as preshift inspection 

checklists, and that preshift inspection records are not 

required unless a defect is noted {Tr. 84). 

I believe there is a ring of truth to the respondent's 

assertion in this case that Inspector White would not accept 

the daily production form as a suitable form for noting 

equipment defects. Mr. White admitted that he made some 

"suggestions" as to what equipment operators may use as a 

"checklist", and he expressed some reservations that the 

production report being used at the time of his inspection 

"didn't leave much for the operator" (Tr.117). The 

respondent here obviously followed the inspector's 

"suggestions" and devised a new form which satisfied him. 

Further, Mr. White testified that when he asked Mr. 

Spradling to show him "the records where the defective 

backup alarm was not working on his mobile equipment 

checklist", Mr. Spradling produced the production sheets 

kept in the control booth {Tr. 108-109). Mr. White couldn't 

recall how many reports he was shown, but confirmed that he 

looked at "some reports", and he also confirmed that he 

explained to Mr. Spradling how other mine operators were 

complying with the standard which he cited (Tr. 110). 

The citation does not charge the respondent with a 

failure to note any defects in equipment. It simply charges 

that the respondent failed to make preshift inspection 

records available to the inspector when requested to do so. 
Mr. White indicated that had the forklift been tagged out 

and not used on August 16, he would not have issued the 

citation (Tr. 126). He confirmed that once the respondent 

intended to use the machine, it had to be inspected and 

reported (Tr. 126). This leads me to conclude that 

Mr. White expected to find the defective backup alarm noted 

on some "checklist", and when Mr. Spradling failed to 

produce such a form, and only produced the daily inspection 

records, Mr. White rejected them and issued the citation. 

I find Mr. Roe and Mr. Spradling to be credible 

witnesses, and I believe their version as to the events 

surrounding the records in question. I also believe that 

there was a lack of communication between the respondent's 

representatives and the inspector, particularly with respect 

to precisely what was being charged as a violation. The 

inspector's one sentence description of the charge is 

lacking in clarity and precision and leaves much to the 

imagination. 

After careful review of all of the testimony and 

evidence ~dduced with regard to the citation, I conclude and 

find that the petitioner has failed to establish the fact 

of violation by a preponderance of the evidence. I find 

that the respondent has established that it made its 

appropriate records available to the inspector at the time 

of his inspection. The citation is VACATED. 

Petitioner's counsel moved to dismiss citation No. 

2232153, on the ground that MSHA could not establish the 

fact of violation by a preponderance of any credible 

evidence. The motion was granted from the bench, and I 

hereby re-affirm this action and VACATE the citation (Tr. 

8 ) • 

While there is merit to the respondent's argument that 

the plant was preparing to shut down in the face of a 

hurricane threat and that the inspector should have left the 

employees alone, this fact does not excuse the violations. 

However, since the plant was not in production at the time 

of the inspection, and in view of the emergency situation 

which was presented, I have considered these factors in 

mitigating the penalties assessed for the violations which I 

have affirmed. 

Size of Business and Effect of Civil-Penalties on the 

Respondent's Ability to Continue in Business. 

'"''':r-7 

-~ c) iJ 
The parties are in agreement that the respondent 

operates ten barite mining operations, some of which are 

dormant, and some of which are in active production. They 

also agreed that the Corpus Christi Mill is a small grinding 

mill operation, operating 40,000 man hours a year, 

processing an average of l~0,000 tons a year, and that the 

overall company personnel consists of approximately 300 

employees CTr. 7-8). 

I conclude that the respondent is a small mine operator 

and that the civil penalties which I have assessed will not 

adversely affect its ability to continue in business. 

Good Faith Compliance 

The record supports a finding that the violations in 

question were timely abated by the respondent, and that the 

cited violations were corrected in good faith. 

History of Prior Violations 

Exhibit P-1, is a computer print-out summarizing the 

respondent's compliance record for the period August 1, 1981 

through July 31, 1983. That record reflects that the 

respondent received a total of seven citations during this 

time period, none of which were for~violations of the 

mandatory standards cited in this case. Under the 

circumstances, I conclude that the respondent has a good 

compliance record, and this fact is reflected in the 

penalties which I have assessed for the violations which 

have been affirmed. 

Negligence 

I conclude and find that the violations in question 

here resulted from the respondent's failure to exercise 

reasonable care, and that this amounts to ordinary 

negligence. While it is true that the respondent placed the 

forklift in service knowing that it had been tagged out for 

a defective backup alarm, I have considered the emergency 

situation facing the respondent at the time this was done. 

Gravity 

Mr. Roe indicated that in his 29 years at the 

respondent's plant, there have never been any injuries due 

to forklift operations, and the last time the plant 

experienced a lost-time accident was in 1982, when a man 

injured his knee playing basketball during lunch (Tr. 91). 
Inspector White conceded that he considered no hazards 

presented by the use of the forklift in question (Tr. 27). 

Under the circumstances, I find that this violation is 

nonserious. 

With regard to the hoist conductor citation, I note 

that Inspector White considered it to be non-"S&S". Given 

the fact that the wires were insulated, somewhat isolated 

from anyone's reach and secured with another wire as 

support, with no evidence of any breaks or wear in the 

insulation, I agree with his finding and find that the 

citation is nonserious. 

Penalty Assessments 

On the basis of the foregoing findings and conclusions, 

and taking into account the requirements of section llOCi) 

of the Act, I conclude and find that the following civil 

penalty assessments are appropriate for the citations which 

have been affirmed: 

Citation No. 

2232152 

2232155 

Date 

8/16/83 

8/17/83 

30 CFR Section 

55.9-87 

55.12-8 

Assessment 

$20 

$20 

Citations 2232154 and 2232153 are VACATED, and the 

proposal for assessment of civil penalties as to those 

citations is DISMISSED. 

ORDER 

Respondent is ORDERED to pay the civil penalties 

assessed by me for the two citations which have been 

affirmed, and payment is to be made to MSHA within thirty' 

(30) days of the date of this decision and order. Upon 

receipt of payment, this proceeding is DISMISSED. 
Distribution: 

Jack F. Ostrander, Psq., U.S. Department of Labor, Office 

of the Solicitor, 555 Griffin Square, Suite 501, Dallas, TX 

75202 (Certified Mail) 

Mr. J.D. Fontenot, Manager, Safety and Health, NL Baroid/NL 

Industries, Inc., P.O. Box 1675, Houston, TX 77001 

(Certified Mail) 

/db 

;:::. "''G'O ,j . 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 OCT 3 i9M 

BECKLEY COAL MINING CO., 

Contestant 

CONTEST PROCEEDINGS 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BECKLEY COAL MINING CO., 

Respondent 

: Docket No: WEVA 83-252-R 

: Citation No. 2124098; 8/11/83 

Docket No: WEVA 83-253-R 

Citation No: 2124099; 8/12/83 

Beckley Mine 

CIVIL PENALTY P~OCEEDINGS 

Docket No: WEVA 84-30 

A/0 No: 46-03092-03530 

Docket No: WEVA 84-31 

A/O No: 46-03092-03531 

Beckley Mine 

DECISIONS 

Appearances: 

Before: 

Edward N. Hall, Esq., Charleston, West 

Virginia, for Contestant/Respondent; 

Sheila K. Cronan, Esq., Office of the 

Solicitor, U.S. Department of Labor, 

Arlington, Virginia, for Respondent/ 

Petitioner 

Judge Koutras 

Statement of the Proceedings 

These consolidated proceedings concern two notices of 

contests filed by Beckley Coal Mining Company challenging 

the validity of two section 104(a) citations, with special 

"significant and substantial" findings, issued pursuant to 

the Federal Mine Safety and Health Act of 1977, and civil 

penalty proposals filed by MSHA seeking civil penalty 

2361 
assessments for those citations, as well as six additional 

citations (non S&S) issued pur~uant to section 104(a) of 

the Act. 

The parties were afforded an opportunity to file 

post-hearing proposed findings and conclusions, and the 

arguments presented have been considered by me in the 

course of these decisions. 

Issues 

The issues presented in these proceedings are Cl) 

whether the violations occurred as- stated in the citations 

issued by the MSHA inspectors, (2) the appropriate civil 

penalties to be assessed for any violations which have 

been established by the preponderence of the evidence 

adduced during the hearing in these proceedings, and (3) 

whether several of the citations were in fact "significant 

and substantial" as alleged by the inspector who issued 

them. 

APPLICABLE STATUTORY AND REGULATORY PROVISIONS 

1. The Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 801, et seg. 

2. Commission Rules, 29 CFR § 2700.1 et. seg. 

3. Mandatory Standards 30 CFR §§ 75.1102 and 77.410. 

DISCUSSION 

The citations and allegations in each of these 

dockets follow below. 

WEVA 83-252-R and WEVA 84-30 

Section 104(a) "significant and substantial" Citation 

No. 2124098, 1:54 P.M., August 11, 1983, cites a violation 

of 30 CFR § 75.1102, and the cited condition or practice 

is described as follows: 

The slippage switch was inoperative on the 

southwest No. 1 belt conveyor in that the 

belt would not stop when the slippage roller 

was blocked. 

WEVA 83-253-R and WEVA 84-31. 

2362 
Section 104Ca) "significant and substantial" citation 

No. 2124099, 10:00 A.M., August 12, 1983, cites a 

violation of 30 CFR § 75.1102, and the cited condition or 

practice is described as follows: 

WEVA 84-31 

The slippage switch installed on the No. 2 

conveyor belt southwest was not working 

properly in that the slippage switch device 

would not stop the belt conveyor drive when 

the belt conveyor would slow down or slip 

in the drive rollers. 

In this docket, the inspector issued five non-S&S 

section 104Ca> citations, all for alleged violations of 30 

CFR § 75.1102. 

Citation No. 2124155, was issued on August 11, 1983, 

and the inspector found that "the slippage switch 

installed under the 6 panel section belt conveyor was 

inoperative." 

Citation No. 2124157, was issued on August 16, 1983, 

and the cited condition is described as follows: 

The slip switch device installed on the 

chestnut mains parallel belt conveyor 

would not stop the drive rollers in the 

event the belt would start slipping. The 

slip switch circuit would only stop the 

drive rollers if the belt was completely 

stopped. 

Citation No. 2124158, was issued on August 16, 1983, 

and the cited condition is described as follows: 

The slip switch device installed on the 5 panel 

section belt conveyor would not stop the drive 

rollers in the event that the belt would 

start slipping. The slip switch circuit 

would only stop the drive rollers if the belt 

was completely stopped. 

Citation No. 2124159, was issued on August 16, 1983, 

and the cited condition is described as follows: 

2JG3 
The slip switch device installed on the 

chestnut mains belt conveyor would not stop 

the drive rollers in the event that the 

belt would start slipping. The slip switch 

circuit would only stop the drive rollers 

if the belt load.completely stopped. 

Citation No. 2124160, was issued on August 16, 1983, 

and the cited condition is described as follows: 

The slip switch device installed on the blackburns mains belt conveyor would not stop the 

drive rollers in the event that the belt would 

start slipping. The slip switch circuit would 

only stop the drive rollers if the belt was 

completely stopped. 

Stipulation 

The parties stipulated to the following (Tr. 8-9): 

1. The contestant/respondent owns and 

operates the mine where the citations 

in question were issued. 

2. The contestant/respondent is subject 

to the jurisdiction of the Act. 

3. The presiding administrative law judge 

has jurisdiction to hear and decide these 

cases. 

4. The inspectors who issued the citations in 

these proceedings are duly authorized 

representatives of the Secretary of Labor. 

5. Copies of the citations issued by the 

inspectors in these proceedings exhibits 

CG-2, and G-5) including all extensions of 

the abatement times and terminations, 

exhibits CG-2, and G-5 through G-19) may be 

admitted to establish that they were 

properly issued and served, but not to 

establish the truth of the conditions or 

practices recited therein. 

6. Payment by the respondent of the civil 

penalties assessed in these proceedings 
will not adversely affect the respondent's 

ability to continue in business. 

7. Respondent's annual coal production for the 

subject mine at the time the citations were 

issued was approximately 722,300 tons. 

8. The subject mine liberates approximately 

three million cubic feet of methane per 

24-hours. 

9. The subject mine employs approximately 490 

miners on the surface and underground. 

10. Respondent/contestant concedes and admits 

that the conditions or practices cited by 

the MSHA inspectors in citation 2124098 and 

2124155 constitute violations of the cited 

mandatory safety standard section 20 C.F.R. 

§ 75.1102. 

MSHA's Testimony and Evidence-Docket No. WEVA 84-31 

MSHA inspector Billy P. Sloan testified that he is an 

MSHA coal mine electrical inspector, and that he has 

served in this position since June, 1971. He confirmed 

that his duties include the inspection of underground and 

surface mines for electrical and mechanical hazards, and 

he testified as to his background and experience in the 

mining industry, including his experience and training as 

a mine electrician. He confirmed that he was familiar 

with the Beckley Mine, and he described it as a slope and 

shaft mine with eight working sections. He confirmed that 

coal is.mined with continuous miners, and that the coal is 

transported out of the mine to the surface by a belt 

conveyor system encompassing some ten to twelve miles of 

conveyor belts. He also confirmed that the belt conveyors 

are used only for the removal of the mined coal and that 

they are not used as designated man-trips or for the 

movement of supplies and materials. 

Inspector Sloan confirmed that his inspection of the 

mine began on August 11, 1983, and that he was part of two 

MSHA inspection teams dispatched to the mine as a result 

of a safety complaint received in his district off ice from 

the UMWA district safety department. He also confirmed 

that he was accompanied on his inspection by an MSHA 

ventilation specialist, a member of the mine safety 

committee, and a representative of mine management's 

safety department (Tr. 10-23). 

2365 
Inspector Sloan identified exhibit G-3, as a drawing 

indicating a typical belt conveyor drive with two drive 

roller~ and a head roller dumping on another belt (Tr. 

25), and using that diagram, he explained how the sequence 

switches used to automatically start and stop the drive 

mechanism for the No.2 belt conveyor are supposed to 

function. He confirmed that the citations deal with 

slippage switches, but indicated that while the two 

switching devices "physically can be the same", they serve 

different purposes in the belt control circuit (Tr. 30). 

Mr. Sloan stated that the citations were issued 

because of the manner in which the slippage switches were 

connected in the circuits he cited. Since the cited 

belts could be started and stopped with the slippage 

switches, he believed that they were wired incorrectly. A 

correctly wired slippage switch would not permit the belts 

to stop and start by means of the slippage switches (Tr. 

31). When asked whether it was illegal to start and stop 

the belt by means of ~ slippage switch, he replied "the 

whole idea behind the violations themselves is if the slip 

switch is wired into the control circuit properly, you 

can't do that" (Tr. 31). 

Mr. Sloan identified exhibit G-4, as a wiring diagram 

depicting the switch control circuit, and he stated that 

the diagram was issued by the Continental Conveyor Company 

in 1960 before the present law was passed (Tr. 62). He 

used the diagram "to illustrate the manner in which a slip 

switch should be installed in a control circuit to 

function the way that I think it should function" (Tr. 34). 

He also indicated that he intended "to show what would 

happen if certain things were eliminated from this 

diagram" (Tr. 34). 

Mr. Sloan confirmed that approximately 20 belt 

drives and slip switches were inspected by MSHA, that they 

were constructed by different manufacturers, and 

respondent's counsel asserted that the citations issued by 

Mr. Sloan were "abated" by the respondent re-designing the 

slippage switch circuit to conform to Mr. Sloan's opinion 

as to how they should be wired (Tr. 37). Mr. Sloan also 

confirmed that none of the cited switching devices were 

taken apart, and that he determined and concluded that 

they were improperly wired because they did not perform 

the way he believed they were intended to perform at the 

time they were tested (Tr. 39). Aside from changing out 

slippage switches which may have been faulty, Mr. Sloan 

2366 
confirmed that the control circuits were re-wired in a 

manner which he accepted as abatement (Tr. 40). He 

explained how he believed the slippage switches should 

function if properly wired (Tr. 40-43). 

With regard to Citation No. 214155, Inspector Sloan 

confirmed that the slippage switch was tested by the 

maintenance foreman pinching the roller between the roller 

framework and the roller itself, and that he did this at 

Mr. Sloan's request. Mr. Sloan indicated that the test 

was intended to induce the symptoms of a belt slippage, 

and that when this was done, the slippage switch should 

have been activated, thereby shutting down the belt drive 

mechanism and stopping the belt altogether (Tr. 25). 

Using a diagram, exhibit G-3, Mr. Sloan began to explain 

how he tested the belt to determine whether the slippage 

switch was operative. Respondent's counsel pointed out 

that since the switch was in fact inoperative, and the 

respondent admitted this, the validity of the test to 

establish that the other cited slippage switches were also 

inoperative is suspect (Tr. 27-28). 

Mr. Sloan testified that he tested the Hawkeye solid 

state slippage switch on the 6 panel section belt conveyor 

by asking the maintenance foreman, Clyde Bare, to stop the 

belt roller where the slippage switch was connected to, 

and that Mr. Bare did this by inserting a long roof bolt 

or a piece of wood between the roller and the conveyor 

frame. When the roller was completely stopped, the belt 

conveyor drive mechanism started to slow down, and when 

Mr. Bare removed the device used to stop the roller, the 

drive mechanism on the conveyor drive "took off again". 

He then asked Mr. Bare to test it again, and when Mr. Bare 

removed the testing device, the belt started up again. 

Mr. Sloan indicated that he instructed Mr. Bare to remove 

the testing device before the conveyor came to a complete 

stop, and while it was "coasting", it started up again 

(Tr. 44). 

Mr. Sloan asserted that Citation No.214155 "contained 

exactly the same defect that the remaining ones contained" 

(Tr. 45). He also asserted that the four remaining cited 

belts were all tested while the belts were moving, and 

they were tested by means of a bar inserted between the 

slippage switch rollers and the belt conveyor structure. 

However, Mr. Bare was not with him when these belts were 

tested, and Mr. Sloan indicated that another maintenance 

foreman, Arnold Hill, was with him on "some of them" (Tr. 

46-47). 

2367 
Mr. Sloan stated that the intent of the standard 

requiring slippage switches is that in the event of a belt 

"hang up" or slippage, friction could be encountered in 

the drive rollers, and the switches are intended to stop 

the belt. He also indicated that the purpose of the tests 

was to simulate a belt slippage by interrupting the normal 

speed of the belt, thereby triggering the switch circuits 

to take care of the slippage problem (Tr. 49). Since the 

test on the 6 panel slippage switch resulted in the 

failure of the switch to function properly in that it 

failed to keep the belt drive mechanism shut down, he 

issued Citation No. 214155 (Tr. 50). He was of the view 

that the coridition would result in smoke being generated 

by the friction- between the belt and the driver (Tr. 50). 

He confirmed that all of the cited belts were running 

when he inspected and tested them, and that the section 

was producing coal (Tr. 50). 

With regard to the remaining citations which he 

issued, Nos: 2124157 through 2124160, Mr. Sloan indicated 

that the cited conditions were the same as those found on 

the 6 panel belt, and he explained as follows (Tr. 55-57). 

Q. Were the conditions that you cited in all five 

of the citations, were they the same? 

A. Basically the way they were connected in the 

control circuit, yes. However, they were using not 

only the Hawkeye or the solid state slip device, they 

were using also a centrifugal drive roller under 

certain belts. Basically, the function of the switch 

itself would be the same if connected in a control 

circuit. 

JUDGE KOUTRAS: I am saying that all the conditions or 

practices that you put in these citations as a violation, the slippage, they are all the same, are they 

not? 

THE WITNESS: You're right. 

Q. Including the first one, is that right? 

A. Right. 

JUDGE KOUTRAS: The conditions are all the same. He 

is saying that he found a slip switch device that 

'"''-'r'B 

~·.iv 
would not de-energize and shut off the drive rollers 

when the belts slowed down and that it took the 

complete shutting down of the -- the only time it 

would shut it down is if the belt was completely 

stopped. That's the condition or practice that he 

observed. And that's.the condition or practice that 

he recited in all of these citations. Isn't that 

true? 

THE WITNESS: Correct. 

MR. HALL: Correct. 

* * * * * * * 

Q. Was the test you performed in all five citations 

the same? 

A. Yes. 

Q. And the results were the same in all five 

citations? 

A. Yes. 

Mr. Sloan was asked to explain the standards or 

guidelines that he follows in determining whether or not 

any particular belt slippage is in compliance with the 

requirements of the cited mandatory standard. He replied 

that there was nothing in writing, and he follows "the 

practice throughout the industry for the diagrams that 

I've seen and the starters that I have wired myself" (Tr. 

58). Wh~n asked about the "industry practice", he replied 

as follows (Tr. 59). 

A. Like I said, the only thing I have to go by 

is what I have seen in the past and the ones I have 

checked since I have had this job. And I've checked 

several hundred belt drives since I've had this job 

and while I was working in industry I wired those 

panels by myself and wired quite a few belts. I've 

got 21 years of experience. 

With respect to the tests which he conducted, 

Mr. Sloan indicated as follows (Tr. 61-62): 

Q. Is this an industry-wide test? Have you read 

literature by people putting crow bars and moving 
belts conveyor drives to test these circuits? 

A. No. This is just the way that I've always 

checked them and the people that I've been around 

I've seen them check them the same way. 

I might add that this 

this law ever took effect. 

presented was taken off of 

in the 1960's. 

method was employed before 

This schematic that I 

a drawing that was put out 

When asked to explain why he did not consider any of 

the citatidns to be "significant and substantial", 

Mr. Sloan explained as follows: 

A. For the simple reason that the ventilation man,· 

George Martin, was present with me from the opening 

day and they were forcing the air on the belt 

conveyor system from the section down. 

In other words, the air part was going in the 

same direction that the conveyor belt was. They 

weren't taking air into the belt and dumping it. 

They were taking the, air up by another entry and 

crossing it over in the belt and taking it down the 

belt, away from the sections themselves. 

Q. So had these slippage switches gone undetected 

and uncorrected? Your direct testimony was eventually it would bind up the roller and possibly start 

smoking and possibly start a fire? 

A. It could lead to that, yes. 

Q. If it could lead to all that, where does the 

ventilation -- I mean that to me sounds like an 

S&S violation? 

A. It would course the air away from the major part 

of the mine. That's the reason I only put one person 

in. Maybe somebody working the belts would be 

affected. It could very well be S&S. But that was 

the reason why I didn't mark it S&S was for the 

reason that the air cart was going away from the 

major part of the workers. 

Q. So based on the fact that you saw on that day, 

you said it was not S&S. 

2370 
A. Right. 

Q. And you didn't go on this theory? 

A. That it could go.undetected or go on forever? 

Q. Yes. 

A. Well, let me tell you something there. At that 

particular time, when we issued those citations back 

in August, we have had additional, you might say, 

training. 

Q. What kind of training? 

A. Well, there was a whole lot of the fact that a 

lot of people was under the impression that this S&S 

would not be applied in the manner that if this went 

on undetected forever. 

Q. Yes. 

A. A lot of people were under the influence that 

this thing, as long as it was corrected, or maybe 

corrected, in the next scheduled examinations for it, 

if it was corrected then it wouldn't be S&S but we've 

had explanations. 

Q. Which is what? 

A. Well, the simple reason that this violation here 

now that we are talking about could very well be S&S. 

Q. It could be S&S today? 

A. Right. 

Q. Where did this enlightenment come from? 

A. The Marshall District Manager at a recently held 

staff meeting. 

Q. Where was he enlightened from, do you know? 

A. I couldn't tell you that. I assume from Senior 

Staff Meetings. I don't know. 

2 '} ,.., 1· 

0 1 
Q. So, today, you would use a different standard to 

determine whether these five citations would be an 

S&S than what you used back in August of 1983? 

A. It very well could be. Yes. 

* * * * * * * 

THE WITNESS: We have had several memos come 

down through the years on S&S policy. This latest 

one -- there is not anything that I know of in 

writing. As a matter of fact, it is the understanding of the fact that this violation could go on 

forever and ever would change the outlook on S&S itself. 

Q. How could it go on forever and forever? 

A. Just for the simple reason of what I found right 

here. This was continuing to go on undetected or uncorrected forever and ever, then it would change my 

understanding of S&S and I would have marked these 

reasonably likely instead of unlikely. 

Q. Well, let me ask you a question. Did you have 

any indication that any of these belts were slipping 

before you induced the test? You induced the slippage by making the test. 

A. Not on these particular belts that I checked. 

Q. If these belts were running from the day that 

they were put in that mine without any slippage whatsoever, and let's assume as a hypothetical that they 

were running for ten years without any slippage, then 

there wouldn't be any problem, would there? 

A. Well, the reason that the test was performed was 

the initiation of the complaint itself from having 

the belt in the past. 

On cross-examination, Mr. Sloan conceded that the 

results of the "tests" he conducted on the cited belts 

were his judgements as to whether or not the slippage 

switches were performing as they are supposed to (Tr. 74). 

He stated that either he or the person actually performing 

the tests allowed the belts to come to a complete stop in 

order to determine whether or not they would start up 

again (Tr. 75). At no time during the tests did he ever 

2372 
detect any smoke or friction between the drive rollers and 

the belts. He confirmed that he stopped the roller itself 

and at no time did he test the speed of the belt (Tr. 76). 

He also conceded that at no time did he ever calculate the 

speed of the belts (Tr. 77). 

In response to questions concerning any guidelines as 

to the speed of the belt and when it should shut down, 

Mr. Sloan stated that there are no guidelines as to the 

rpm levels required before a belt is shut down (Tr. 78). 

He further explained his testing procedures of the 

belts as follows (Tr. 79-80). 

Q. If you indicated that the belt slowed in every 

violation, then that means that the switch that you 

were checking at the time was working because it 

released the contact points and consequently shut 

down the power to the rollers, correct? 

A. Yes, it could. 

Q. In everyone of these, the same thing happened. 

The belt slowed just like you've testified, is that 

correct? 

A. There's nothing in the regulations that says 

that the belt has to slow to a certain speed. 

Q. Have there been occasions, to your knowledge, 

in which another electrial inspector has visualized 

a Hawkeye switch in place operating as you have 

suggested under testing conditions similar to yours 

in which it was checked out to be okay? 

A. I'm not aware of it. 

Q. Would you say that every electrical inspector 

in your district performs the same tests? 

A. You mean by stopping the roller itself? 

Q. Yes? 

A. I would say the greater percentage of them 

in District 4 check them the same way I do. I 

don't know that to be a fact. 
JUDGE KOUTRAS: Let me ask you a question if I might. 

Do you see any problems with inspectors 

checking belts five or six different ways to 

determine whether or not there's compliance? 

THE WITNESS: Do I see any hazard in it? 

JUDGE KOUTRAS: Not hazard. Do you see any 

problem with that? 

THE WITNESS: Yes, I do. 

JUDGE KOUTRAS: What's the problem. 

THE WITNESS: A difference in interpretation as far 

as compliance. 

JUDGE KOUTRAS: What I am saying is is there 

nothing in writing in your District as to how to 

go about checking this slip switch device? 

THE WITNESS: That's right. 

JUDGE KOUTRAS: Why? 

THE WITNESS: I don't know why. That's why 

I told you a little while ago this is the way 

I've always checked. 

Inspector Sloan confirmed that the drive roller 

materials are flame resistant, and he conceded that the 

greatest amount of belt friction is present when the belts 

are started up (Tr. 83). With regard to his recommended 

circuitry for the slippage switches, Mr. Sloan indicated 

that he believed it was used by a great number of manufacturers because he has reviewed their diagrams (Tr. 85). 

However, he conceded that there are circuits used in the 

industry which do not contain his "MA insertion" (Tr. 85). 

Mr. Sloan confirmed that the belts were operating 

when he performed his tests, and he further explained his 

tests as follows (Tr. 88-90): 

Q. At the conclusion of the test that you performed 

in each of these cases, the belt was moving at such a 

speed that whenever you released the roller, the 

speed was above that which the switch was designed to 
read and consequently shut off the power? 

A. On some of them, it possibly could. 

Q. The switch does not disengage the power to the 

drive rollers, is that correct? 

A. Right. 

Q. So if that is the case, everytime you release 

the roller, the belt is transferring at such a speed 

that it was above that which would be sensed by the 

switch and consequently turn off the drive holes? 

A. It could have been. 

Q. It's obvious if you shut the system down, you 

would have had to restart? 

A. I didn't have any way to determine what the 

revolution of that roller was at that particular 

time. 

Q. Did the belt shut down at the time you conducted 

any of your tests? 

A. The way that I had them tested? 

Q. Yes. 

A. No. 

Q. Well, if they didn't shut down, wasn't that what 

they were supposed to do? 

MR. HALL: Your Honor, I am illustrating that the belt 

speed is what's tested by this device. 

JUDGE KOUTRAS: The belt speed is what is tested? 

MR. HALL: Right. And that this belt speed is never 

allowed to get down to the speed where this device 

would stop the rollers. This test was inaccurate and 

improper because the speed was so fast. 

JUDGE KOUTRAS: Are you saying that by performing this 

test with the bar, having the man slow it down --
MR. HALL: He stops this hole completely and that is 

what engages the open contacts because of the stop. 

JUDGE KOUTRAS: Are you saying he didn't slow it down 

enough to cause it to trigger to shut it off? 

MR. HALL: Exactly. 

Mr. Sloan confirmed that the belts in question have 

been in operation in the mine for the past ten years, and 

that there are "stop-start" buttons located along the 

belts (Tr. 92). Mr. Sloan stated that he could not 

audibly hear the contactors disconnect in the box when he 

stopped the roller (Tr. 95). He further explained his 

testing· procedure as follows CTr. 96-98): 

Q. Mr. Inspecor, did you slow the belt down by 

putting the bar at that point? 

A. I had them slow the roller down. 

Q. Did that slow the belt? 

A. No, not the belt itself. 

Q. The belt kept at a constant speed. 

A. Right. Once you sense that the belt conveyor 

was slowing down, when the roller was fouled, then 

when he released the roller that had the sensing 

device on it, it began to roll because the conveyor 

was still coasting. And the drive started right back 

up. 

On all of these systems that I checked, his 

point is that to determine the speed of the pick-up 

on this particular one, Hawkeye, is entirely different than the pick-up on a centrifugal roller as far 

as closing the contacts. So the same method was used 

to check most of them but I can understand his argument that a predetermined speed of this particular 

roller. 

JUDGE KOUTRAS: Let me ask you a question. Your citation says that the slip switch wouldn't do it's job 

when the belt started slipping and it would only do 

its job when the belt completely stopped. What 

effect did your test have on the belt, Mr. Sloan? 

2376 
THE WITNESS: Well, your Honor, you couldn't very 

well stop or slow the belt down. 

JUDGE KOUTRAS: Why not? 

THE WITNESS: For the simple reason that in most 

cases there was probably anywhere from 75 to 125 

horsepower motor. 

JUDGE KOUTRAS: But my question is is there a distinction between belt slippage and stuck rollers? 

THE WITNESS: Let me try to clarify something. A 

slippage switch device operates off of the roller itself. It can operate off of a small roller, or with· 

this particular type, it can operate off of one of 

the drive rollers or the head roller itself. 

JUDGE KOUTRAS: Was this belt slipping when you tested 

the .roller? 

THE WITNESS: No. 

JUDGE KOUTRAS: Then if it wasn't slipping, your citations say that the thing wouldn't do the job in the 

event the belt would start slipping? 

THE WITNESS: What I did, I simulated a slipping 

condition by slowing down the roller that would 

detect if the belt actually would slow down itself. 

JUDGE KOUTRAS: You mean to tell me that by fouling 

that roller it would give you an indication the belt 

was slipping? 

THE WITNESS: It would just simulate a slipping 

condition of the belt by slowing down the particular 

roller. Because if the belt would start slipping, 

this same roller would slow down. 

Mr. Sloan again confirmed that the belts he examined 

were not slipping at the time that he inspected them, and 

that he simply "fouled" the rollers in order to simulate a 

slippage situation on the sensor devices to determine 

whether the switches were operating properly (Tr. 101). 

He could not state which of the cited belts had belt slack 

take-up systems and which ones did not (Tr. 107). He 

further explained his testing as follows (Tr. 111-113): 

237'7 
Q. (By Ms. Cronan) Mr. Sloan, didn't you stop 

the roller altogether and did the person who was 

accompanying you do that? 

A. Yes. 

JUDGE KOUTRAS: So for that one roller to stop altogether, that would give a signal that there's 

slippage in the belt? 

THE WITNESS: Right. 

Q. What happened when you stopped that roller altogether? 

A. When they stopped the roller altogether and held 

it until the conveyor belt came to a complete stop, 

the belt stopped. The drive mechanism stopped. 

JUDGE KOUTRAS: And when should it have stopped? 

THE WITNESS: Well, it should have stopped when the 

belt began to slow down. Or what the whole matter is 

is the simple fact that the method in which I submitted this diagram, if, for any reason, that 

slippage switch ~ircuit is interrupted, with the 

diagram that I submitted, the belt would have to be 

recycled. 

I don't have any way of determining the speed of 

the belt or how slow the belt would have to go in 

order to drop all these switches because all these 

switches are not all alike. 

JUDGE KOUTRAS: Let me ask you this question. If you 

stopped that roller completely? 

THE WITNESS: I had it stopped. 

JUDGE KOUTRAS: But then the belt slowed down? 

THE WITNESS: Right. 

JUDGE KOUTRAS: And it eventually stopped? 

THE WITNESS: Right. 

2378 
JUDGE KOUTRAS: Isn't that what you are supposed to 

do? 

THE WITNESS: In my own personal opinion, it should 

stop the belt from operating completely. Right away. 

Now the whole gist of the thing is that as long as 

that roller right there was turning a small amount of 

revolutions, it would energize or the signal would be 

sensed and the belt would start right back up. So, 

what I am saying is, going back to the fact that 

assuming the belt would go 500 feet a minute, okay,--

JUDGE KOUTRAS: Let's assume it started up again. 

wouldn't that be an indication that the slippage has 

gone away? Or that the piece of rock is jammed in 

the roller or something? 

THE WITNESS: Not necessarily. 

JUDGE KOUTRAS: What? 

THE WITNESS: If you stopped the roller from--

JUDGE KOUTRAS: Let's take your test again. You stop 

the roller completely, The belt slows down and then 

it stops. Okay? Let's assume that you take the 

impediment in the roller out and the roller starts. 

turning again? Will the belt start up again? 

THE WITNESS: The way it was wired, yes. 

JUDGE KOUTRAS: Then it did that because you unstopped 

the roller? 

THE WITNESS: Right. 

And, at {Tr. 119-124): 

JUDGE KOUTRAS: Let's talk about your test. Now, you 

stopped t?is roller, right? 

THE WITNESS: Right. 

JUDGE KOUTRAS: On this day? 

THE WITNESS: Yes. 

JUDGE KOUTRAS: On all of these five locations? 
THE WITNESS: Right. Completely. 

JUDGE KOUTRAS: How long did it take for the drive 

rollers to shut down? 

THE WITNESS: I don't know exactly how long it would 

take for all of them to shut down. 

JUDGE KOUTRAS: How long did it take you when you conducted the test? 

THE WITNESS: There was probably within four or five 

seconds the belt contactors all dropped out and then 

the time the belt coasted I don't know. 

JUDGE KOUTRAS: All right, Ms. Cronan, the citation 

says that the sl.ip switch device would not stop the 

drive rollers in the event that the belt would start 

slipping. 

MR. HALL: 

it in the 

performed 

slipping. 

That's what he said. It wouldn't stop 

event the belt starts slipping. When he 

his task he induced a symptom of the belt 

MS. CRONAN: He induced the symptom of the belt 

stopping altogether. 

MR. HALL: Of the belt slipping. 

MS. CRONAN: I think there's a distinction here between the slippage and stopping. 

JUDGE KOUTRAS: I'm reading from Citation 2124157 and 

all the others. The first sentence says "the slip 

switch device installed on the belt conveyor would 

not stop the drive rollers in the event the belt 

would start slipping." He says if this belt slipped, 

the drive rollers wouldn't stop. 

MS. CRONAN: That's right. 

JUDGE KOUTRAS: Now, when he conducted his test, he 

simulated the belt slipping, did he not? 

MS. CRONAN: 

stopping. 

And he also simulated the belt 

2380 
JUDGE KOUTRAS: Let's take the slipping first. When 

he stopped that roller he induced a symptom of the 

belt slipping, did he not? 

THE WITNESS: When tne roller came to a complete 

stop it was as if the belt had stopped. It completely stopped. 

JUDGE KOUTRAS: How long did it take for it to stop 

actually? 

THE WITNESS: Once the roller was fouled I'd say it 

was in three or four seconds. 

JUDGE KOUTRAS: So it did stop then, didn't it? 

THE WITNESS: Yes. 

MS CRONAN: It was only when the belt, there was 

a simulation of the belt coming to a complete halt. 

JUDGE KOUTRAS: You mean to tell me when he fouled 

this roller the belts quit running? 

THE WITNESS: Essentially, what they had was two 

sequence switches -- in a manner of speaking -- they 

were so wired. 

JUDGE KOUTRAS: Mr. Inspector, I am not trying to confuse you and I am not trying to confuse counsel. I 

am trying to understand the condition here. 

MS ·cRONAN: Your Honor, I think going back to what 

we were talking about before the roller that he artificially stopped is the roller that would be stopped 

if the belt stopped. And the switch would sense that 

and cause the mechanism to stop. 

The problem is that it's also supposed to 

detect slippage. That stops the mechanism, when 

there's slippage. Now, by slowing down that roller, 

he simulated slippage. And it did not stop. 

JUDGE KOUTRAS: I thought he said in three seconds it 

did. 

MS CRONAN: His citation states and his testimony, 
I think, has been consistent with that, that it only 

stopped ·when he simulated the belt coming to a 

complete halt. 

JUDGE KOUTRAS: Is that your testimony? 

THE WITNESS: Yes. 

MS CRONAN: And that's the problem. There would 

be slippage and the mechanism would continue to 

operate. The switch would not stop it and the slippage switch is supposed to stop the mechanism when 

there is slippage. It seems as a matter of 

definition very clear. That's why the term "slippage" is used. And we didn't have that here. 

JUDGE KOUTRAS: Mr. Hall? 

MR. HALL: Your Honor, Government's counsel says that 

there is some point within a three-second interval in 

which this test can be performed and determine the 

difference between slippage and stoppage. 

Obviously the te~t did what it was designed to 

do. It detected when the belt roller was slowing or 

stopping and it disengaged it. 

JUDGE KOUTRAS: At what point in time in this test, 

Ms. Cronan, is it your understanding that the drive 

rollers actually stopped? 

MS. CRONAN: When the roller was completely 

stopped. Is that correct? 

THE WITNESS: I'd say approximately three seconds or 

so after the slip switch was completely brought to a 

stop. 

JUDGE KOUTRAS: Are you suggesting that your test 

indicated that this drive roller would never be shut 

off? 

THE WITNESS: What I am suggesting is the manner in 

which they were wired would essentially, you could 

have a belt in that Figure 8, and the manner in which 

they were wired -- the slip switch would continue to 

shut the belt off everytime the belt came to a complete stop but as long as the conveyor would run fast 

n3·80 " (.., 
enough to turn that four-inch roller as much as say, 

30 RPM's, depending on how the thing is adjusted, it 

would recycle the drive mechanism and continue on and 

on and on. That was the only reason why I asked them 

to incorporate this in the controi circuit. It was 

to eliminate this possibility. 

MSHA's Testimony and Evidence- Dockets WEVA 83-252-R, 

83-253-R, and WEVA 84-30. 

MSHA inspector Pete Teel testified as to his 

background and experience in the mining industry, and he 

confirmed that he is an MSHA electrical and mechanical 

inspector and that his duties include the inspection of 

underground and surf ace electrical and mechanical 

equipment. He also confirmed that he was part of an 

inspection team that inspected the mine in question, but 

that he was not part of of the inspection party which 

included Inspector Sloan. 

Mr. Teel confirmed tht he issued citations 2124098 

and 2124099, and he stated that citation 2124098 concerned 

a centrifugal slippage switch. In addition to certain 

tests made on the cited conveyor belts, Mr. Teel confirmed 

that he determined that the centrifugal slippage switch 

was inoperative by opening the lid on the switch box and 

observing that the contactor points were inoperative. The 

contacts would not open, and the belt would not shut down 

(Tr. 142-147). 

With regard to the centrifugal switch, Mr. Teel 

stated that if the belt were stopping and starting, as he 

described it during the testing, the slippage switch would 

not completely stop the belt unless the roller was 

completely stalled, and the belt would restart itself. 

He explained further as follows (Tr. 153): 

JUDGE KOUTRAS: Are you saying that even with the 

blockage slippage roller, did the belt continue to 

run. Is that what you're asking? 

Q. I am saying if there is slippage on the belt 

which is not sufficient to stop the belt. 

A. To stall it completely. 

Q. To stall it completely. Just slowing it down 

with the type of switch that you observed when you 

2333 
issued this citation, how would that set the switch 

up? 

A. ·It would not break at all. Because it didn't 

cut it off at all. 

With regard to the Hawkeye slippage switch, Citation 

No. 2123099, Mr. Teel stated that when he stalled the 

slippage belt roller, the conveyor motor shut down and the 

belts began to coast. He allowed the belts to coast 

"until it was almost dead stopped" and when he released 

the slippage roller, the conveyor belt started up again. 

He explained that this was the reason why he issued this 

citation (Tr. 154). 

In further explanation as to why he issued Citation 

No. 2124099, Mr. Teel testified as follows (Tr. 154-157): 

Q. All right, but why is the condition that you 

observed when you performed this test, why was that 

a violation? 

A. Because it won't control that conveyor when it 

starts slipping. It won't shut it down and keep it 

down until some responsible person checks the condition. They go and restart it several times and the 

belt will go through its cycle and shut itself back 

down. Somebody has to go and find out what the problem is. 

JUDGE KOUTRAS: Well, now, didn't you slow it down 

with this test? 

THE WITNESS: No. 

JUDGE KOUTRAS: You just told me when you -- tell me 

what you did again? 

THE WITNESS: I blocked this roller. The drive 

unit shut down. Not the belt. 

JUDGE KOUTRAS: The drive unit? 

THE WITNESS: On what? 

JUDGE KOUTRAS: On the belt there. That shut down? 

THE WITNESS: Yes. 

~0 0n34 
JUDGE KOUTRAS: But the belt kept coasting? 

THE WITNESS: The belt kept coasting. 

JUDGE KOUTRAS: The belt was moving at a fairly fast 

speed? 

THE WITNESS: I let it slow way down and it was just 

barely moving and turned this roller loose. 

JUDGE KOUTRAS: If you hadn't turned the roller 

loose, would this belt come to a complete stop? 

THE WITNESS: It would have stayed down. 

JUDGE KOUTRAS: Isn't that what that thing is supposed 

to do? 

THE WITNESS: 

yes. 

The way they have got theirs wired, 

Q. What is a proper slippage switch supposed to do? 

A. It's supposed to shut the belt down when it 

starts? 

JUDGE KOUTRAS: Instantaneously? 

THE WITNESS: No. 

JUDGE KOUTRAS: There is some coasting action and 

that's what happened here, isn't it, when you did 

something to block that roller, the belt started 

coming to a blinding halt and then it coasted and it 

slowed down but before it stopped completely you 

turned it to the roller and then it kicked on again? 

THE WITNESS: Right. 

JUDGE KOUTRAS: And it started up again? 

THE WITNESS: Right. 

JUDGE KOUTRAS: But would it have stopp~d completely? 

THE WITNESS: Sir? 

2385 
JUDGE KOUTRAS: Would the belt have stopped completely 

had you not turned loose the roller. 

THE WITNESS: If that roller had stayed stalled, it 

would have stayed down. 

* * * * * * * 

Q. You're saying that it started slipping and continued slipping for a long period of time before it 

would come to a complete halt. Is that what you're 

saying? 

A. I am saying the belt can stop that roller and 

then the belt can move like Mr. Sloan said. When it 

stalls, there's a lot of tension and it could roll 

backwards and if that roller moves the belt continues 

to start itself up. It could start itself over and 

over. 

Q. Why would this be a violation of the regulations? 

A. I can't answer that. We don't have any guidelines. 

In explaining the guidelines that he follows in 

finding that citations 2124098 and 2124099, were 

"significant and substantial" violations, Mr. Teel stated 

as follows {Tr. 163-164): 

Q. Specifically, in making a determination of 

whether a condition is significant and substantial. 

What goes into making that determination? 

A. First, it has to be a serious-type violation. 

Second, they have informed us that when we find 

the conditions, we have to take that too. It's not 

going to be corrected. It's going to stay there. 

Third, if it's reasonably likely that a health 

and safety hazard could be caused by it, and taking 

into consideration that criteria, if it's reasonably 

likely that it is going to contribute to health and 

safety hazards, it's not going to be corrected and I 

have no other choice but to mark it S&S. 

2386 
And if it's unwarranted on the part of the 

operator to comply, I have to put a 104(d) (1) citation. 

JUDGE KOUTRAS: What's this business about it's not 

going to be corrected? What does that mean? 

THE WITNESS: I don't know. That's a determination 

someone else made. I didn't make it. 

Mr. Teel confirmed that at the time the citations 

were issued, the section was producing coal and the belt 

lines were in operation (Tr. 165). In response to a 

question as to why he believed the violations were "S&S", 

he explained that the respondent had successfully filed 

for a modification of its ventilation system to permit the 

use of a "CL" System", or in more common terms, smoke 

detectors, along its belt lines. This allowed the 

respondent to use the belt areas at the faces. However, 

it was his view that in the event of a belt fire resulting 

from any friction on the coveyor belt drive rollers, the 

smoke would be coursed to the working faces where miners 

would be exposed to possible smoke inhalation. Under 

these circumstances, he considered this in making his 

"S&S" determination (Tr. 164). 

On cross-examination, inspector Teel conceded that 

the respondent's ventilation system was in compliance with 

its approved ventilation plan and that the respondent 

successfully prevailed in obtaining a modification for 

the belt area in question and that it was in compliance 

with the law. He also confirmed that at the time he 

issued the citations, respondent's belt fire warning and 

suppression water spray systems were operative and that he 

found no other conditions which were in violation of 

MSHA's mandatory safety standards (Tr. 171-179-181). 

Inspector Teel stated that it was "possible" that he 

made a statement that given the fact that the cited 

conveyor belts were provided with operable water sprays, 

that the belts were constructed of fire resistant 

materials, and that he found no other violative conditions 

in the cited areas, he would not have marked the citations 

as "significant and substantial" violations. He also 

stated that given the "possibility" of such an admission 

on his part, his findings that the violations were 

"significant and substantial" would have resulted from 

instructions from George Vargo, his supervisor (Tr. 

177-179). 
In response to further questions, Mr. Teel confirmed 

that the tests he performed on the cited belts he cited 

were similar to those performed by Inspector Sloan, and he 

explained the test results as follows (Tr. 186): 

Q. I believe you indicated on the record that when 

the slippage roller was introduced into that roller 

that it slowed to a stop? 

A. On the one. 

Q. The second citation or Government Exhibit 18 

which was issued on the 12th? 

A. Yes, sir. 

Q. When that switch or roller was engaged the 

wedge, you performed that yourself? 

A. Yes, sir. 

Q. And when you engag~d the wedge and stopped.that 

roller that the switch worked as it was designed to 

work? 

A. Yes. 

Q. There was no smoke or fire hazard in the area at 

all? 

A. ~. 

Q. There was no friction? 

A. The belt was driving normal if that's what you 

are saying. 

Respondent's Testimony and Evidence 

Ernie Boggs, Chief Engineer, Owens Manufacturing 

Company, testified that he holds A.S. degrees from the 

Bloomfield State College in mechanical and electrrical 

engineering. He confirmed that he is familiar with belt 

slippage switches, and he indicated that he has three 

years of experience in assisting engineers in the design 

of such switches. He also confirmed prior mining 

experience with slippage switches and conveyor belts (Tr. 

201-204). 

~u ~aa 
Mr. Boggs examined a Hawkeye slippage switch used for 

demonstration, and he testified as to its characteristics 

and operation CTr. 207-209). He also testified as to the 

frictional parameters of the belt systems in question, and 

indicated the conditions under which belt friction would 

occur (Tr. 209-213). He also testified as to the wiring 

requirements imposed on the respondent by the inspectors 

who issued the citations, and in his opinion requiring the 

belts to be manually restarted once they are shut down by 

the re-wired switches, pose more of a frictional hazard 

(Tr. 214). 

On cross~examination, Mr. Boggs conceded that he had 

not inspected the slippage switches at the mine in 

question, and he affirmed that these switches may be wired 

in different ways once they are received from the 

manufacturers (Tr. 220). Mr. Boggs asserted that every 

time a belt conveyor belt is started up there is a greater 

degree of friction generated by that action (Tr. 221). 

During a bench colloquy with MSHA's counsel and the 

witness, the following statements were made (Tr. 230-232): 

JUDGE KOUTRAS: I am trying to understand the theory 

of the citations and the theory of enforcement action 

in this case. It's obvious to me that no amount of 

tolerance was allowed in this case in terms of slippage, isn't that true? 

MS. CRONAN: Well, based on the testimony of the 

inspectors and the tests they performed, they induced 

a situation which simulated a considerable amount of 

slippage and the switch did not shut down. 

JUDGE KOUTRAS: What if this device was set below the 

speed of the simulation then it would never have 

triggered? 

MS. CRONAN: That's right. That's the problem. 

JUDGE KOUTRAS: Why is it a problem? 

MS. CRONAN: The problem is that there could be 

slippage, a considerable amount of slippage, enough 

to cause a fire, and the slippage switch in this 

particular device that this witness is testifying 

about, would not stop the belt. 

,, .. , 0 9 ~0() 
JUDGE KOUTRAS: So by requiring him to put this device 

in there, this switch now, any amount of slippage? 

What's the slippage tolerance under the new system?. 

MS. CRONAN: I don't know. 

THE WITNESS: It would depend upon the switch. I 

mean if this thing were still set for 39.25 you 

inserted the contacts here where he has that switch 

drawn and the belt still has to go to 39.25 to be 

energized. 

Q. You testified about something called a motor 

overload? 

A. Yes. 

Q. Can you tell me what that is again? 

A. Motor overload is a device that since it's 

current and/or temperature. 

Q. What does it do? 

A. It energizes or it de-energizes a set of contacts in the control circuit that would cause the 

mechanism to de-energize and stall. 

Q. But you have no information as to whether the 

motor overload devices were in existence in the conditions cited in this case? 

A. Yes. All motors have overloads. 

Q. All motors do? 

A. Well, all control boxes have. 

Q. So you are saying that they were operating in 

this instance? 

A. That would be my opinion. I did not lay my 

hands on them to make sure but that's right. 

With regard to the testing procedures used by the 

inspectors in these cases, Mr. Boggs agreed that while 

they were not safe, they were acceptable means of testing 

the belts (Tr. 235). He believed that the one way to test 

2380 
a centrifugal switch is by means of a crowbar or iron bar 

as- used by the inspecors (Tr. 235). He conceded that he 

has never observed the specific switches in issue in these 

proceedings, and he had no knowledge as to how they may 

have been wired (Tr. 2365). However, he did indicate that 

the inspectors were concerned about the amount of belt 

slippage between the drive rollers and the belt (Tr. 236). 

He was of the opinion that as long as the belt was 

coasting during the testing, there was a chance of it 

starting up again (Tr. 236). 

Danny Morgan, respondent's maintenance superintendent, 

confirmed that he has had 13 years of experience as an 

electrician, and he testified as to his mining background 

and experience (Tr. 238). He confirmed that the Hawkeye 

and centrifugal switching systems both sense the speed of· 

the belt as it moves across the roller, and he testified 

as to the belt rpm's and the minimum threshold belt speeds 

(Tr. 240-243). He also alluded to certain overload 

safeguards which he believed were operational at the.time 

of the August 12, 1983, inspection (Tr. 245), and he 

confirmed that the belt would have to slow down to a "very 

slow" speed before it would smoke or heat up. (Tr. 248). 

Mr. Morgan testified as to the work done to abate the 

citations, and he confirmed that the Hawkeye sensing 

devices were all wired according to the manufacturer's 

specifications, and that there was no attempt to re-wire 

them in order to give false readings or to otherwise 

jeopardize the integrity of the system (Tr. 250). He 

explained that the purpose of the interlock device 

installed for abatement is that "once tripped on belt 

slip, the belt must come to a complete stop and be 

recycled" (Tr. 251). 

Mr. Morgan stated that he discussed the abatement 

with the inspectors and that at no time did they indicate 

that the sensor on the Hawkeye device was inappropriate. 

He confirmed that the belt monitoring systems have been in 

effect for a long, time, and that the Hawkeye has been used 

for the past seven or eight years (Tr. 254). He also 

explained how the belt speed tolerances are activated in 

both of the belt sensing devices so that the belts are 

stopped in the event of belt slippage (Tr. 256). 

On cross-examination, Mr. Morgan stated that the 

Hawkeye sensing device is set to stop the belt at speeds 

below 39.25 feet per minute, and that at speeds above that 

level, the switch will not come into play. He confirmed 

2391 
that the normal belt speed is 450 feet per minute, and 

that if the belt speed is reduced to 40 feet per minute, 

the belt will not stop (Tr. 258-259). He indicated that 

if this happened, it does not necessarily mean that 

slippage will occur in the belt roller (Tr. 259). 

However, he conceded that if the belt slowed to 40 feet 

per minute there could be some friction CTr. 260), and 

that if any friction continued for a sufficient length of 

time, some smoke could result CTr. 261). 

Mr. Morgan explained the various operational speeds 

of the belts (Tr. 263-265). He confirmed that he did not 

inspect the motor overload systems on August 11 and 12, 

1983, and that he personally did not inspect all of the 

switches which were cited during the inspection (Tr. 

27 2) • 

Eugene L. Brown testified that he is employed by the 

respondent as director of safety and training. He stated 

that he was familiar with the citations issued by Inspector Sloan 

during his August 11 and 16, 1983, mine inspections, and 

that he accompanied Mr. Sloan during those inspections 

(Tr. 328-330). 

With regard to citation No. 2124155, (exhibit G-2), 

Mr. Brown confirmed that the slippage switch on the 6 panel 

section belt conveyor was inoperative, and that when tested, 

the switch contact points would not "drop out," or function. 

He indicated that the condition was corrected on the evening 

shift on the same day that the citation was issued. He 

identified the switch in question as a Hawkeye switch, and 

he stated that the MSHA inspectors inspected the area and 

found that the fire extinguishers, fire sensors, and other 

safety systems were operative, and that the mine was "damp 

to wet" on August 11, 1983, when the citation was issued. 

He also indicated that the nearest working section was 

approximately 1,000 feet from the location of the citation, 

and that the air was going in the opposite direction in 

accordance with the mine ventilation plan which had MsHA's 

approval (Tr. 330-333). 

With regard to citations 2124157, 2124158, 2125159, 

and 2125160, (exhibits G-7, G-9, G-11, and G-13), Mr. Brown 

stated that the cited belt locations were approximately 1,000, 

3,000, and 2,000 feet, respectively, from the nearest working 

sections where miners would be working, but that one belt 

man would be in those locations (Tr. 334). 

2~\92 
With regard to the citations issued by Inspector Sloan 

on August 16, 1983, Mr. Brown confirmed that the tests, 

as described by Mr. Sloan were conducted by use of a short 

scaling bar which Mr. Sloan had with him (Tr. 336). 

Mr. Brown identified the slippage switches cited at 

the 5 panel section belt conveyor and the Blackburns mains 

belt conveyor as Hawkeye switches, and the slippage switch 

at the chestnut mains beli conveyor as a centrifugal switch. 

With regard to the tests conducted by Inspector Sloan, 

Mr. Brown stated that once the bar was inserted into the 

slippage roller by Inspector Sloan to "stall" the roller, 

it took "a few seconds" to stop the roller. Once the roller 

stopped, the belts started slowing down, and Mr. Brown stated 

that he could hear the slippage switch contact points separate. 

He indicated that the purpose in stopping the rollers by 

means of the bar was to determine whether or not the contactor 

points would separate or "drop out." Since they did, it 

was Mr. Brown's opinion that they performed the function 

for which they were intended, and stopped the power to the 

belt conveyor motor (Tr. 338). 

Mr. Brown did not know how many centrifugal slippage 

switches were installed on the mine belt conveyors on 

August 11, 1983. He stated that he has escorted MSHA 

inspectors during their underground inspections for the past 

seven years and that these inspectors have tested the slippage 

switches on the belt conveyors in the same manner as those 

tested by Inspector Sloan, and that the slippage switches 

were always found to be in proper working order (Tr. 339-340). 

Mr. Brown confirmed that he was given an abatement schedule 

by the inspector,· but that when he returned the next day, he 

would not accept the wiring and an electrician immediately 

began installing interlock devices on the switches in question 

(Tr. 343) . 

On cross-examination, Mr. Brown conceded that he had 

no particular electrical expertise. He confirmed that a 

citation was issued on August 11, 1983, because of an inoperative 

water deluge system on the six panel section belt conveyor. 

He also confirmed that a citation was also issued on August 12, 

1983, because of an inoperative surface fire warning monitoring 

system which had been knocked out by an electrical storm 

(Tr. 3 52) • 

When asked to explain what he knew about the UMWA 

complaint concerning an alleged belt fire on August 5, 1983, 

Mr. Brown confirmed that the information he received indicated 

that there was a malfunction on the belt drive and that the 

belt rubbed in two and there was some smoke but no flame 

(Tr. 3 6 0) . 

2.393 
Mr. Brown stated that he was with Inspector Sloan on 

August 11 and 12, when he tested the slippage switches, and 

he confirmed that the tests were the standard and normal 

practice used by-MSHA inspectors to test such switches 

(Tr. 362). Mr. Brown confirmed that he had no knowledge of 

the specifics concerning the operation of slippage switches 

(Tr. 3 6 3) . 

In response to further questions concerning the electrical 

storm, Mr. Brown stated that the citation in question concerned 

only the audible warning system located on the surface, and 

that the underground CO monitoring devices located at 

each position were operational and would sound a warning 

if there were any problems with carbon monoxide (Tr. 369). 

Mr. Brown also explained that other precautionary measures 

were taken and that the inoperative surface system was 

promptly repaired (Tr. 370-372). 

Warren Burkhart, testified that he is employed by 

the respondent as a safety inspector, and has been employed 

in that capacity for six years. He testified as to his 

mining background and experience, and confirmed that his 

duties include working on the belts "here and there," 

including their installation and set-up. However, he also 

indicated that he had no particular experience with respect 

to the belts. 

Mr. Burkhart confirmed that he was familiar with citations 

2124098 and 2124099, which were issued by Inspector Teel 

on August 11, 1983, and August 12, 1983, (exhibits G-15 and 

G-18), and while they state they were served on "Warren Buckley," 

he asserted that his last name as shown on the citations is 

erroneous. 

With regard to citation No. 2124099, Mr. Burkhart stated 

that he was with Mr. Teel when Mr. Teel himself tested the 

Hawkeye slippage switch on the South West No. 1 belt conveyor. 

Mr. Burkhart stated further that Mr. Teel tested the switch 

with a "glut," which he described as a wooden wedge approximately 

eight to ten inches long. Mr. Teel inserted the wedge between 

the upper slippage roller and the belt conveyor frame in 

order to stop the roller from turning. Upon inserting the 

wedge, it took approximately three to five seconds to stop 

the roller, and Mr. Burkhart stated that he saw the belt 

slowing down, that he could bear the belt m9tor slowing down. 

He also stated that he heard the switch circuit contactors in 

the control box which was some 20 to 25 feet away "drop out" 

or separate, and that this occurred as the belt motor and 

belt slowed down and as Inspector Teel released the wedge 

from the slippage roller. Mr. Burkhart asserted that at no time 

during the test did the belt drive rollers come to a complete 

stop. 

f) <\ 8' -4 ... ~.- '-i _ ..... '-' 
Mr. Burkhart asserted that the nearest working area 

where miners would be present was approximately 1600 to 

1700 feet inby the cited belt head location. He indicated 

that the area around the cited belt switch in question had 

operable deluge water sprays and fire sensors, and that the 

roof and ribs were rock-dusted. He also indicated that the 

belt drive was taken out of service and that the cited condition 

was corrected that same evening during the evening shift. 

Mr. Burkhart stated that he discussed Mr. Teel's "S&S" 

finding with him, and when he asked him why he designated 

the citation "S&S" given the fact that the water sprays, fire 

sensors, and rock-dust were present, Mr. Teel advised him 

that while he personally did not believe it was an "S&S" 

violation, he nonetheless marked the citation "S&S" upon 

instructions from his supervisor (Tr. 393). 

Mr. Burkhart indicated that approximately five to 

seven seconds elapsed between the time that Inspector Teel 

began his test with the wedge until he heard the contactor 

points separate in the control box. Mr. Burkhart was of 

the opinion that Mr. Teel had the opportunity to see and 

hear what he saw and observed during the time the test 

was conducted. 

With regard to citation No. 2124098, Mr. Burkhart 

described the conditions of the area cited, and he indicated 

that the mine bottom was muddy, that the roof and ribs 

were rock-dusted, and that the C.O. monitors and other fire 

safety devices were all in operative condition. He also 

indicated that the nearest working section was approximately 

5100 feet from the cited belt location, and that one belt 

man would be in that location. 

Mr. Burkhart confirmed that he has certified electrician 

and mine foreman's papers issued by the State of West Virginia, 

and that the mine operator had no prior knowledge that the 

slippage switch in question was inoperative (Tr. 397). 

On cross-examination, Mr. Burkhart stated that he was 

not with Inspector Teel on August 11, when he conducted his 

test, but was with him on August 12, when he tested the 

centrifugal switch to determine whether to abate the 

citation (Tr. 401). Mr. Burkhart confirmed that the tests 

which he did observe being made by Mr. Teel were the same, 

and that he used the wedge device to test a centrifugal 

switch and a Hawkeye switch (Tr. 403). 

Mr. Burkhart explained the results of the tests conducted 

by the inspector, and he stated that when the slippage switch 
was activated, the belt started to slow up but did not come 

to a complete stop. Once the roller was stopped and the 

test wedge released, the drive rollers started up again 

(Tr. 404). However, at no time did the belt drive roller 

come to a complete stop, and he indicated that had Inspector Teel 

left the test wedge in place long enough, the belt would 

have stopped and could only be started up again by activating 

the remote switch (Tr. 406). 

Blaine Toler, belt foreman, testified that his duties 

include the installation and maintenance of the mine conveyor 

belts. He confirmed that the belts are constructed of a 

rubber neoprene based fire resistant material. Based on 

his experience, he believed that a drive roller will cause 

a belt to separate by rubbing before there is any smoke or 

fire generated (Tr. 417-418). It was his understanding that 

during the tests conducted by the MSHA inspectors in these 

proceedings, at no time did the belt reach a speed below that 

calculated to bring it to a halt (Tr. 419). In his opinion, 

as long as the belt continues to go through the drive rollers, 

no smoke or fire hazard is created (Tr. 420). 

On cross-examination, Mr. Toler confirmed that the 

normal belt speed is 450 feet per minute and that the belt 

drive electrical motors are set to drive the belt at that 

speed. Should something happen to the belt, the drive rollers 

would continue to revolve at approximately the same speed 

required to drive the belt at 450 feet per minute. Should 

the belt slow down and the rollers continued to revolve 

at a rapid speed, there would be friction between the belt 

and the drive rollers (Tr. 421). There would also be a 

danger of smoke, but when belt slippage occurs, in most cases 

the belt will come to a complete stop (Tr. 422). 

Ronald H. Scaggs, stated that in August 1983, he was employed 

by Beckley Coal Mining Company as the director of safety 

and training. He confirmed that he was aware of a citation 

which was issued on August 12, 1983, for an inoperative fire 

warning device on the mine belt conveyors (exhibit G-21). He 

described the mine computerized fire warning system, and 

he indicated that the system is designed to detect carbon 

monoxide in the belt entries. He confirmed that when the 

citation was issued the surface belt alarm system was inoperative, 

but the underground system continued to function independently (Tr. 431) 

Although the citation was marked "S&S" as introduced 

by MSHA, Mr. Scaggs stated that during a conference in the 

Mt. Hope office, the inspector who issued the citation deleted 

the "S&S" finding (Exhibit R-3) (Tr. 436). 

MSHA's Rebuttal Testimony 

Harold Newcomb, Electrical Engineer, MSHA Mountain 

District Off ice, testified that he is an authorized mine 
inspector and that he deals with both surface and underground mines. He holds a B.S. degree in electrical engineering 

from the West Virginia Institute of Technology, and he testified 

as to the operational parameters of the cited belts, including 

the question of belt slippage (Tr. 441-447) .. 

Mr. Newcomb testified that in the event a belt would 

energize and then deenergize, friction would result, and smoke 

or fire would be present (Tr. 451). He confirmed that he 

was familiar with slip switch equipment, and that the manner 

in which the inspectors tested the belts was a normal method 

of testing such equipment (Tr. 454). 

On cross-examination, Mr. Newcomb conceded that he was 

not familiar with the particular belt drives cited by the 

inspectors in these proceedings. He confirmed that he did 

review the citations, but that he has never been underground 

in the mine in question, nor has he ever observed the locations 

where the citations were issued (Tr. 456). He did not know 

whether any of the belt drives in question were equipped 

with devices for reducing belt slack (Tr. 457). 

Mr. Newcomb stated that in his opinion, if the speed 

of a belt were decreased by 50 percent of what it was set 

at, slippage would result (Tr. 460). He explained the 

procedure he would follow to determine whether the Hawkeye 

or centrifugal switches were functioning properly (Tr. 473-477). 

Findings and Conclusions 

Dockets WEVA 83-253-R and WEVA 84-31 

Fact of Violation - Citation No. 2124155 

Respondent conceded and stipulated that the cited slippage 

switch here was inoperative and in violation of section 

75.1102. Accordingly, this_citation IS AFFIRMED. 

Fact of Violations - Citations 2124157, 2124158, 2124159, 2124160 

Each of these citations charges that the cited slip 

switch device would not stop the drive rollers in the event 

the belt would start slipping. The slip switch circuit would 

only stop the drive rollers if the belt was completely stopped. 

In each instance, Inspector Sloan cited a violation of 30 

C.F.R. § 75.1102, which provides as follows: 

Underground belt conveyors shall be equipped 

with slippage and sequence switches. 
Section 75.1102, contains no definition of "slippage" 

or "slippage switch." However, the Dictionary of Mining, 

Mineral, and Related Terms, U.S. Department of the Interior, 

1968, provides the following definitions: 

belt slip. The difference in speed between 

the driving drum and the belt conveyor. Belt 

slip at the drivehead can cause heating of 

the driving drum. Devices are available 

which measure the belt slip and which cut off 

the power when a predetermined amount of slip 

takes place. 

belt-slip device. A device fitted to a belt 

conveyor to give an alarm or to cause the 

conveyor to stop in the event of belt slip 

exceeding a predetermined amount. 

belt-slip protection device. An assembly which 

causes the power to be disconnected if the belt 

slips excessively ori the drive pulley. 

switch. A mechanical device for opening and 

closing an electric circtiit. 

slip. A measure of the slipping of a belt on a 

pulley, for example, 5 percent slip implies 

that the driven pulley is rotating 5 percent 

slower than the driver. 

MSHA's approval standards for electrically operated 

components, 30 C.F.R. 18.48(f), provides as follows: 

Belt conveyors shall be equipped with control 

switches to automatically stop the driving 

motor in the event the belt is stopped, or 

abnormally slowed down. 

In support of the citations, MSHA asserts that on August 11, 

1983, Inspector Sloan first tested the slippage switch which 

is the subject of citation 2124155, by having the maintenance 

foreman (Bare) , "pinch the roller between the roller framework 

and the roller itself." When Mr. Bare stopped the roller 

that activated the slippage switch, the belt began to slow 

down, and when he turned the roller loose, it picked up 

speed and the belt started up again. Mr. Sloan then issued 

the citation because the slip switch device failed to keep 

the drive mechanism shut down when the "simulated slippage 

test" was performed. When Mr. Sloan returned to the mine 

the next day, he tested the slip switch again, and after 

finding that it still would not stop the drive, he extended 

2398 
the abatement time after being informed that "the control 

box pertaining to the solid state switch device" was thought 

to be defective. Inspector Sloarl terminated the citation 

after the switch was repaired. 

Contestant/respondent conceded that the solid state 

"Hawkeye" switch which was the subject of citation 2124155 

was defective, and the record reflects that Inspector Sloan 

extended the abatement time in order to allow the defective 

switch to be repaired. Thus, on August 11, 1983, when the 

"slippage test" was performed, it was apparently performed 

with the defective slip switch in place. 

In support of the four remaining citations issued by 

Inspector Sloan, MSHA argues that when he returned to the 

mine on August 16, 1983, he performed the same test as on 

August 11th, with the same results (Tr. 57). MSHA asserts 

that company witness Brown corroborated Mr. Sloan's testimony 

regarding the way the switches were tested and the way they 

responded to the test (Tr. 336-339; 365). Although three 

of the switches were solid state "Hawkeye" switches (citations 

2124157, 2124518, 2124160), and the other one (2124159), a 

centrifugal switch, MSHA maintains that there was no difference 

in the way the two types functioned when tested by the inspector. 

I conclude and find that the purpose of the tests 

conducted by the inspectors .in these proceedings was to 

determine whether or not the slippage switches in question 

were functioning properly so as to disconnect the power to 

the electrically driven belt drive rollers in the event of 

belt slippage. I further conclude and find that the term 

"belt slippage" includes a reduction in the revolutions 

per minute of the slippage switch roller below a predetermined 

set speed, or if stopped completely. 

MSHA has the burden of proving by a preponderance of the 

credible evidence that the alleged inadequate slippage switches 

were in violation of the requirements of section 75.1102. 

One basic initial obstacle facing MSHA is the fact that the 

standard simply requires that belt conveyors be equipped 

with slippage switches, and the inspectors are left on 

their own to determine how to interpret and apply the standard. 

The basic question cutting across all of the citations 

in issue in these proceedings i$ whether or not MSHA has 

established that the cited slippage switches were inadequate 

when tested by the inspectors. The thrust of MSHA's case 

is that the manner in which th2 switches were wired allowed 

2399 
the belt to restart itself once slippage was induced by 

placing a bar between the switch roller and the belt frame. 

Although Inspector Sloan stated that during the test, and 

while the conveyor belt was coasting, once the "slipped" 

roller was released, the Hawkeye sensor device picked up 

that signal and started the drive mechanism back up, he conceded 

that this was the wa it was desi ned to work (Tr. 79). 

Further, contestant respo"ndent points out that there is no 

specific mandatory safety standard requiring the slippage 

switch to insure that the electric motor does not reenergize 

if the slippage switch roller is released during the test 

procedure and regain the belt speed above which the slippage 

switch is set to fully deenergize the motor and disconnect 

the electric circuitry. 

Mr. Brown testified that during all of the tests 

conducted by Mr. Sloan, once the rollers were stopped by 

inserting the test bar at the roller switch locations, the 

starter or control box contactors would "drop out," and 

the belt would start slowing down. He could hear the reduction 

in the speed of the motor and visualized the belt itself 

slowing down. This indicated to him that all of the slippage 

switches, both Hawkeye and centrifugal, all performed their 

function and opened the contractor points, thus stopping 

the power to the motor (Tr. 336-339). However, he confirmed 

that once the stopped rollers were released, the drive started 

up again, and the belt continued to operate as it had prior 

to the testing (Tr. 365-366). 

Mr. Brown stated that during a recent inspection prior 

to the one conducted by Mr. Sloan, MSHA Inspector Phillip 

Washington tested the slippage switches in the same manner 

as did Mr. Sloan, but that when Mr. Washington heard the 

contactors "go out," he released the rollers "and we went 

about our business." Mr. Brown indicated that Inspector 

Washington approved the continued operation of the switch 

following his tests (Tr. 340). 

Inspector Sloan testified that he did not calculate 

the speed of the belt at the time he performed his tests, and 

he conceded that there are no MSHA guidelines as to the 

acceptable rpm levels which should be maintained in order 

to facilitate the particular speed at which the switch 

sensing device will cut off the current to the drive rollers 

(Tr. 78). When asked whether all inspectors in his district 

performed the tests by stopping the roller itself, he replied 

"I would say the greater percentage of them in District 4 

check them the same way I do. I don't know that to be a 

fact" (Tr. 79-80). He conceded that the lack of any MSHA 

written procedures or guidelines for testing the switches 

does present a problem insofar as consistent interpretations 

and compliance are concerned (Tr. 80). 

2400 
Although MSHA relies somewhat on the testimony of its 

rebuttal witness, electrical engineer Harold Newcomb, it seems 

clear to me that his testimony is based only on his review 

of the written citations. Mr. Newcomb conceded that he had 

never been in the underground mine, was not familiar with 

the particular belt drives in question, and had never observed 

the particular devices which were cited in these proceedings 

(Tr. 454-456). Further, he had no idea how much belt slippage 

would be required to cause the slippage switch to ope~, and 

he conceded that it would depend on the speed at which the 

switch was set (Tr. 471). Under the circumstances, I have 

given little weight to Mr. Newcomb's testimony. 

I cannot conclude that MSHA has established that the 

cited slippage switches were not functioning in the way they 

were intended. Inspector Sloan's initial test on August 11, 

was performed on a switch which was apparently defective 

at the outset. This not only raises a question as to the 

credibility of that test, but also as to the others, particularly 

since he indicated that he followed the same procedures in 

testing the other switches on August 16th. Inspector Sloan 

conceded that he did not calculate the speed of the belts 

he tested, and he admitted that there are no MSHA guidelines 

or policies concerning the acceptable belt speeds which should 

be maintained, or the threshold speed limits necessary to 

trigger the particular belt sensing devices in the event 

there is any indication of slippage. Further, MSHA has 

not rebutted the testimony that other inspectors who conducted 

the same basic tests as did Mr. Teel and Mr. Sloan nonetheless 

approved the continued operation of the switches. Although 

MSHA's reply brief argument that the failure by other inspectors 

to cite violations may not be used to support any "waiver" 

theory is correct, it seems to me that MSHA should be concerned 

about inconsistent enforcement practices, particularly in 

instances where the inspector is left to his own imagination 

as to how the standard should be interpreted and applied. 

I take note of the fact that while the citations charge 

that the cited slip switches would not stop the belt drive 

rollers in the event of belt slippage, the inspectors 

artificially stopped the rollers which activated the 

slippage switches, and when they did, the activated slippage 

switches caused the drive roller to be deenergized, and the 

belt began to slow down. Rather than permitting the belt 

to come to a complete stop, the inspectors had the rollers 

released after the belt had slowed to an unkown speed, and 

when this was done, the belt started up to its normal speed 

again. Given these circumstances, I conclude and find that 

the tests conducted by the inspectors indicated that the 

2401 
switches did precisely what they were expected to do. They 

detected the induced slippage, they caused the contactors 

to "drop out," thereby stopping the power to the drive motor, 

which in turn caused the belt to slow down or come to a 

"coasting" speed. 

After careful consideration of all of the credible 

testimony and evidence adduced in these proceedings, and 

on the basis of the foregoing findings and conclusions, I 

conclude and find that MSHA has failed to establish any 

violations of § 75.1102. Accordingly, citations 2124157, 

2124158, 2124159, and 2124160 ARE VACATED, and petitioner's 

civil penalty proposals as to those citations ARE DISMISSED. 

Dockets WEVA 83-252-R and WEVA 84-30 

Fact of Violation - Citation No. 2124098 

Inspector Teel confirmed that when he opened the lid 

on the cited centrifugal switch, he looked at the switch 

contacts and found that they would not open and the belt 

would not shut down. Since the switch was obviously inoperative, 

he issued the citation. When he returned the next day, 

the switch would still not perform the way he expected it 

to, and he extended the abatement time so that the switch 

could be rewired. 

Respondent has conceded and stipulated that the cited 

slippage switch noted in Citation No. 2124098 was inoperative 

and in violation of § 75.1102, but denies that the violation 

was "significant and substantial." Accordingly, I conclude 

that a violation of section 75.1102 has been established, 

and the citation IS AFFIRMED. 

Significant and Substantial 

In its post-hearing brief, MSHA relies on the testimony 

by Inspector Teel that he believed this violation to be 

significant and substantial because the air along the beltway 

in the particular area of the mine where the violation was 

found was ventilated toward the face (Tr. 171). Conceding 

that the manner in which the air was being coursed was an 

approved part of the company's ventilation plan, and that the 

inspector did not indicate any disapproval of the ventilation 

system, MSHA nonetheless relies on the inspector's view 

that it greatly increased the danger than an injury could 

result from the violation since smoke generated by belt 

slippage would be carried to the face and could result in 

smoke inhalation injuries to the miners working at the face 

(Tr. 162-166). 

jo·~ . 2 ~ 
In support of its arguments that the violation was not 

"S & S," contestant/respondent maintains that Inspector Teel 

indicated that when considering the condition and likelihood 

of the occur.rence of a hazard in the area, it was possible 

that he indicated to others present that he would not have 

marked the citation as "S & S," but that he did so on the 

instructions of his supervisor, MSHA Inspector George Vargo, 

who had not been underground to see the conditions. Further, 

contestant/respondent maintains that Mr. Teel marked the 

citation "S & S" because he thought the air in the belt entry 

should not have been coursed in the direction of the face, 

even though the operator was doing so in compliance with 

a ventilation plan modification approved by MSHA (Tr. 117-179). 

In support of these contentions, contestant/respondent offered 

the corroborating testimony of Mr. Burkhart, indicating that 

Mr. Teel admitted to him that he would not have marked the 

citation "S & S," but did so on instructions from his supervisor 

(Tr. 392-393). 

I fail to comprehend MSHA's position with respect to 

the "S & S" finding made by Inspector Teel in connection 

with citation 2124098. His principal concern was that the 

manner in which the area was being ventilated would cause 

any smoke from a fire to go to the face. Yet, MSHA approved 

the very same ventilation plan which the inspector is concerned 

about. Further, MSHA's counsel conceded that the mine 

operator here has not violated any ventilation regulations 

or policies, and indicated as follows (Tr. 174-175): 

JUDGE KOUTRAS: But if it were not for the 

fact that the smoke would be directed toward 

the face, there wouldn't be an S&S in this 

case, would there? 

MS. CRONAN: That's what the Inspector has 

testified. That was the determination 

that was made. 

JUDGE KOUTRAS: So if you didn't have the 

modification and the smoke still went to the 

face, there would be another violation they 

would be faced with? 

MS. CRONAN: That's right. 

JUDGE KOUTRAS: But in this case, the approved 

ventilation system, in the event of ·a fire, would 

take the smoke to the face? 

MS. CRONAN: That's right. 

2403 
JUDGE KOUTRAS: That's significant and substantial 

for the purposes of this but other than that, it's 

okay. It's perfectly legal to have the ventilation 

system.that way. 

MS. CRONAN: Yes. 

I believe that the contestant/respondent's assertion 

that Inspector Teel was reluctant to mark the citation "S & S," 

and did so at the urging of his supervisor, is true. 

Inspector Teel's reluctance to flat out admit this is 

obviously tempered by the fact that he does not wish to offend 

his supervisor.· However, Mr. Teel's admission that it is 

"possible" that this occurred lends support to the contestant/ 

respondent's testimony concerning this issue, particularly 

since MSHA did not call Supervisory Inspector Vargo to rebut 

the allegation. 

In connection with citation 2124099 (exhibit G-18), 

Inspector Teel conceded that the deluge water devices in 

the cited area were in working order, the fire resistant 

belt and drive rollers were in proper order, the required 

fire extinguishers were in place, the roof and ribs were 

adequately blocked, and the area around the belt drive rollers 

was wet and muddy (Tr. 179-180). He also confirmed that he 

detected no smoke or fire hazard in the area, and observed 

no belt friction (Tr. 186). When asked whether these same 

safeguards were also in proper working order in connection 

with citation 2124098, Inspector Teel responded "Yes" (Tr. 185). 

During the second hearing day, after Inspectors Teel 

and Sloan had testified, MSHA's counsel produced a copy of 

a § 104 (a), "S & S" citation, no. 2123864, issued 

by MSHA Inspector Charles W. Cline, at 11:30 a.m., August 12, 

1983, citing a violation of mandatory standard § 75.1103 

(exhibit G-21). The "condition or practice" is described 

on the face of the citation as follows: 

The automatic fire warning device for 

the belt conveyors at this mine was (sic} 

inoperative in that the system would not 

give an audible and visual warning when 

tested. The system in use is a CO 

monitoring system. The inoperative 

condition is due to damage to the central 

computer unit from an electrical storm 

8/11/83. 

2404 
Contestant/respondent asserts that even though the CO 

monitoring system was rendered inoperative on August 12, 1983, 

the reasonaple likelihood of the occurrence of any hazard 

was reduced if not eliminated by the installation of cinder 

block air stoppings and flaps to prevent the transmission 

of any smoke to the working section following the storms 

effect on the CO monitoring system the night of August 11, 

1983 (Tr. 396). Further, contestant/respondent points out 

that the CO monitoring system was only inoperative with 

regard to the surface audible warning device, and that MSHA 

has offered no evidence that this would have enhanced the 

particular hazard potential. Contestant/respondent's 

assertions are corroborated by the unrebutted testimony 

of safety director Scaggs that the underground CO monitoring 

system continued to function independently of the surf ace 

system which had been rendered inoperative by the storm, 

and that the two systems do in fact operate separately and 

independently of each other (Tr. 431). 

Finally, contestant/respondent points to the unrebutted 

testimony of Mr. Scaggs indicating that the "S & S" finding 

initially made by Inspector Cline with regard to citation 

2123864, for the inoperative CO monitoring system, was 

subsequently modified by Mr. Cline to delete his "S & S" 

finding (Tr. 431-435). 

I take particular note of the fact that in its posthearing 

initial and reply briefs, MSHA counsel does not mention the 

issuance of the aforementioned citation, and the briefs 

contain no discussion as to how this citation may have 

impacted on the "S & S" findings made by the inspector, 

I also take note of the fact that Inspectors Teel and Sloan 

were not recalled to rebut the testimony and evidence adduced 

by the contestant/respondent with regard to this citation. 

Arter careful consideration of all of the testimony 

and evidence, I cannot conclude that MSHA has establish that 

the inoperative slippage switch cited in citation no. 2124098, 

was a significant and substantial violation, and its arguments 

to the contrary ARE REJECTED. 

Fact of Violation - Citation No. 2124099 

Inspector Teel confirmed that during the past eight 

years, he has been to the belt line 12 to 15 times and was 

never aware of any belt slippage problems. He conceded 

that prior to his inspection in this case, he had never 

previously checked any belts, and he further conceded that 

his inspection was prompted by a union complaint. Aside 

from Mr. Teel's testimony concerning the tests in question, 
I take particular note of the fact that he admitted that he 

did not know the definition of a "slip switch," and that he 

obviously had no guidance from MSHA since there are no 

guidelines or policies as to how to interpret and apply 

§ 75.1102. 

Mr. Teel conceded that the tests he conducted on the 

belts which he inspected were conducted in a similar manner 

as those conducted by Inspector Sloan. With regard to 

citation no. 2124099, Mr. Teel testified that he personally 

tested the switch roller with a wedge, and when he engaged 

the wedge and stopped the roller, the switch worked as it 

was designed to work (Tr. 186). He observed no smoke, fire, 

or friction hazards and the belt was driving normal· (Tr. 186). 

His earlier direct testimony was that when he blocked the 

roller, the belt drive unit shut down, but the belt kept 

coasting. He conceded that had he not turned the roller loose, 

the belt would have·"stayed down," and the conceded that 

considering the way the switch was wired, this is precisely 

what it was supposed to do (Tr. 155-156). 

I conclude and find that MSHA has failed to establish 

a violation of § 75.1102. Aside from any reservations. 

concerning the credibility and integrity of the so-called 

tests conducted by the inspectors in this case, Inspector 

Teel's own testimony reflects that the slippage switches 

performed as expected, and I conclude and find that MSHA 

has failed to establish otherwise. Accordingly, citation 

no. 2124099 IS VACATED, and MSHA's civil penalty proposal 

IS DISMISSED. 

Size of Business and Effect of Civil Penalties on the 

Respondent's Ability to Continue in Business 

On the basis of the stipulations by the parties, I 

conclude that for purposes of civil penalty assessments, 

the respondent is a medium sized operator and that the 

penalties assessed will not adversely affect its ability 

to continue in business. 

History of Prior Violations 

Respondent's history of prior violations is reflected 

in a computer print-out listing the assessed and paid 

violations for the period July 23, 1981 through July 22, 1983, 

for the Beckley Mine. The information reflects that the 

respondent has made payment in the amount of $19,399 for 

386 violations. Three of these prior violations are for 

violations of § 75.1102, and each was assessed as a "single 

penalty assessment" in the amount of $20. 

240G 
Considering the size of the operation of the Beckley 

Mine (722,300 tons a year), I conclude that the respondent 

has a less than average prior history of compliance, and 

I have taken this into account in assessing civil penalties 

for the violations which have been affirmed. 

Good Faith Compliance 

The record here supports a finding that the respondent 

abated the violations in good faith by rewiring the switches 

to suit the inspectors. 

Negligence 

MSHA's posthearing briefs do not address the question 

of neglige·nce. As to the two citations which have been 

affirmed, since the respondent conceded that the cited 

switches were inoperative, I can only conclude that the_ 

violations resulted from the respondent's failure to exercise 

reasonable care, and that this constitutes ordinary negligence. 

Gravity 

Although I have concluded that the two violations 

were non-"S & S", I believe that they were serious violations. 

Since the switches were inoperative, it was altogether 

possible that belt slippage would have gone undetected, with 

the possibility of friction and smoke resulting from such 

belt slippage. 

Penalty Assessments 

On the basis of the foregoing findings and conclusions, 

and taking into account the requirements of § llO(i) of the 

Act, I conclude and find that the following civil penalty 

assessments are appropriate for the citations which have been 

affirmed: 

Docket No. WEVA 84-30 

Citation No. Date 30 CFR Section Assessment 

2124098 8/11/83 75.1102 $75 

Docket No. WEVA 84-31 

Citation No. Date 30 CFR Section Assessment 

2124155 8/11/83 75.1102 $75 

2407 
ORDER 

Respondent IS ORDERED to pay the civil penalties assessed 

by me, in.the amounts shown above, within thirty (30) days 

of the date of these decisions. Upon receipt of payment by 

MSHA, these proceedings are dismissed. 

,-/~~~ Administrative Law Judge 

Distribution: 

Edward N. Hali, Esq., :?.O. Box 3969, Charleston, WV 25339 

{Certified Mail) 

Sheila K. Cronan, Esq., U.S. Department of Labor, Office of 

the Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 

{Certified Mail) 

/slk 

2408 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 4 1984 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA} , 

Petitioner 

v. 

JUMACRIS MINING, INC., 

Respondent 

DECISION 

Docket No. WEVA 84-137 

A.C. No. 46-05529-03505 

Docket No. WEVA 84-138 

A.C. No. 46-05529-03507 

Jumacris No. 10 Mine 

Appearances: Leo J. McGinn, Esq., Office of the Solicitor, 

U.S. Department of Labor, Arlington, Virginia, 

for Petitioner; 

Before: 

Mr. Floyd Barnette, Jr., Owner, Jumacris 

Mining, Inc., Gilbert, West Virginia, for 

Respondent. 

Judge Kennedy 

The captioned matters came on for an evidentiary hearing 

in Paintsville, Kentucky, on July 11, 1984. As a result, the 

trial judge entered tentative bench decisions with respect to 

three of the four violations that appear at pages 184, 234, 

and 272 of the transcript finding the violations charged did, 

in fact, occur and assessing penalties as follows: 

Citation 2145237 - $300 

Order 2145238 - $1,000 

Order 2145239 - $250 

Finally, the trial judge entered an order approving 

settlement of Order· 2145240 in the amount of $300 (Tr. 282). 

After receipt of the transcript an order issued to show cause 

why the tentative bench decisions should not be affirmed as 

the trial judge's final disposition and decision in this 

matter. 
No cause to the contrary having been shown, it is 

ORDERED that the tentative bench decisions and order approving 

settlement be, and hereby are, ADOPTED and AFFIRMED as the 

final decision in this matter. It is FURTHER ORDERED that 

the operator pay the amount. of the penalties assessed and 

agreed upon, in the amount of $1,850 on or before Friday, 

October 26, 1984, and the captio matters·DISMISSED. 

Distribution: 

Leo J. McGinn, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified 

Mail) 

Mr. Floyd Barnette, Jr., Owner, Jumacris Mining, Inc., Drawer D, 

Gilbert, WV 25621 (Certified .Mail) 

/ejp 

2410 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 OCT 4 1984 

KITT ENERGY CORPORATION, 

Contestant 

CONTEST PROCEEDING 

v. Docket No. WEVA 83-125-R 

Order No. 2115977; 3/24/83 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

Kitt No. 1 Mine 

Appearances: 

Before: 

DECISION 

Bronius K. Taoras, Esq., Kitt Energy Corp., 

Meadow Lands, Pennsylvania, for Contestant; 

Howard K. Agran, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania, for Respondent. 

Judge Fauver 

This is a contest proceeding under section 105(d) of the 

Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801, 

et seq., to review a section 104(d) (2) order issued by a 

federal mine inspector at the Kitt No. 1 Mine on March 24, 1983. 

The order cites a violation of 30 CFR § 75.503 in that 

(1) unauthorized modifications were made to the longwall 

equipment in use at the mine, and (2) the equipment was not 

maintained in permissible condition. 

The subject order is based upon a previous section 104(d) (2) 

order issued at Kitt Mine on December 1, 1982, during a previous 

regular quarterly inspection. 

Kitt Energy contests the March 24, 1983, order on the 

ground that a clean inspection of the mine had occurred since 

the last preceding section 104(d) (2) order. Two other 

issues are (1) whether Kitt Energy's failure to obtain approval 

of mine equipment under 30 C.F.R. Part 18 was a violation of 

30 C.F.R. § 75.503 and (2) whether its failure to maintain the 

equipment in permissible condition was unwarrantable. 

The case was heard at Falls Church, Virginia. 

Having considered the testimony, exhibits, and the record 

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

substantial, and probative evidence establishes the following: 
FINDINGS OF FACT 

1. Kitt Energy Corporation is the owner and operator of 

Kitt No. 1 Mine, located at Phillippi, Barbour County, West 

Virginia. At all relevant times the mine produced coal for 

sale or use in or affecting.interstate commerce. 

2. A quarterly inspection by MSHA is a complete inspection 

of the mine and may involve a number of visits to the various 

sections of the mine. 

3. MSHA' s first quarterly inspection of Kitt No .. 1 

Mine for Fiscal Year 1983 began on October 14, 1982, and 

continued until its completion on December 17, 1982. During 

that inspection, on December 1, 1982, Inspector John Paul 

Phillips issued a section 104(d) (1) citation and modified it 

to a section 104(d) (2) order. 

4. MSHA began its second quarterly inspection (FY 83) 

at Kitt No. 1 Mine on January 12, 1983, and completed it on 

March 29, 1983. On March 24, 1983, during the second quarterly 

inspection, MSHA Resident Inspector Frank Cervo made an 

inspection of the mine's surface area with Mining Engineer 

Barry Ryan to follow up· on an employee complaint that there 

were hazardous chemicals in that area. Prior to March 24, 

1983, Cervo had inspected everything on the surface but for 

the chemicals, which he had not previously inspected. His 

inspection on March 24 took about 8 hours to conduct including 

travel time. · 

5. On March 25, 1983, Assistant Resident Inspector 

Bretzel Allen conducted an inspection of the U Mains area of 

the mine to check on abatement of conditions cited the day 

before. 

6. Frank Cervo and Bretzel Allen were assigned by 

MSHA to Kitt No. 1 Mine as resident inspector and assistant 

to the resident, respectively, becaqse the Kitt No. 1 Mine 

is considered a more hazardous mine~ The mine liberates 

about 3 million cubic feet of methane per day and is on the 

section 103(i) spot inspection list, which requires inspections 

every 5 days (for mines liberating more than 1 million cubic 

feet of methane per day) . 

7. Methane can be liberated at any time at the Longwall 

at the Kitt No. 1 Mine, but is liberated particularly during 

the extraction of coal. Sources of methane at the Longwall 

are the face itself and the gob area behind it. 

8. On Monday, March 21, 1983 (during the 2nd quarterly 

inspection) , Electrical Inspector Wayne Fetty began an 
electrical inspection of Kitt No. 1 Mine. 

to assist fellow Electrical Inspector John 

had. conducted a required annual electrical 

mine almost one year earlier. 

He had been assigned 

Paul Phillips who 

inspection of the 

9. During the evening of March 21, 1983, Fetty was 

contacted at his home by his supervisor, Paul M. Hall, Chief 

Electrical Engineer for Special Services, District 3, and 

advised that there may have been an unauthorized field change 

on the Section D-5 Longwall. In order to inspect the Longwall, 

Fetty arranged with Hall to obtain a copy of the electrical 

diagram for the Longwall kept in the Morgantown MSHA office 

on Wednesday, March 23, 1983. 

10. On Tuesday, March 22, 1983, while at the mine, Fetty 

asked several miners if there had been any changes to the 

Longwall Mining Unit and was told that the Eickhoff Shearer 

had been removed and replaced with a Joy Shearer. The next 

day, while checking at the MSHA District office in Morgantown, 

he learned that no documents were on file showing a company 

application for field modification for the change of shearers. 

11. On Wednesday, March 23, 1983, Inspector Fetty was 

instructed by his supervisor, Mike Lawless, not to issue an 

unwarrantable failure violation if he found a violation that 

involved merely a technical violation. 

12. On March 24, 1983, Fetty returned to Kitt No. 1 

Mine. Before entering the mine, Fetty, accompanied by fellow 

Electrical Inspector James Cross, met with Kirby Smith, General 

Maintenance Foreman, Roger Harris, Longwall Maintenance Foreman, 

and Bob Evans, Superintendent of Kitt No. 1 Mine, and others 

and asked them if the shearer in the Longwall operation had 

been changed from an Eickhoff to a Joy Model without making an 

application for a field change. The company representatives 

stated that they had changed shearers and had not made an 

application for a field change, but they believed it was not 

necessary. Fetty asked if any other changes had been made 

on the Longwall and was told by Smith, Harris and Evans, 

"No, none whatsoever." 

13. In answer to questions as to what he would do underground, Fetty replied that he could not say until he had 

actually inspected the Longwall and had seen the conditions 

himself. 

14. Following the meeting at the mine on the morning 

of March 24, 1983, Fetty, accompanied by James Cross, Ron Cross, 

Kirby Smith, Roger Harris and Union Representative Roger 

Mitchell, went underground to the Section D-5 Longwall, 

arriving at about 10:35 a.m. 
15. On arriving at the Longwall, Kirby Smith instructed 

the Section Foreman to deenergize the Longwall. After this 

was done the inspection commenced. 

16. The Longwall operation involves a number of machines 

which working together serve to cut coal along a 575 foot face 

and convey the coal onto conveyor belts. The shearer cuts 

the coal as it travels the length of the coal face. The 

coal is dumped onto the face conveyor (pan line) , which is 

driven by motors at either end to convey the coal to the 

stage loader and onto the mine's belt system. 

17. On examining the D-5 Longwall unit, Fetty observed 

that about 80% of the Longwall equipment had been changed. 

Specifically, he found that: 

(1) The shearer had been changed from an Eickhoff 

to a Joy model. 

(2) The pan line (conveyor line) had been replaced. 

(3) The Siemens Allis motors that powered the pan 

line at the headgate and at the tailgate had been replaced 

by Reliance motors. 

(4) The headgate and tailgate junction boxes had 

been replaced. 

18. Kitt Energy had not applied to MSHA for approval 

of the above changes. 

19. Fetty also observed the following conditions, 

which he found to be hazardous: 

(1) The cable entering the head conveyor junction 

box was loose indicating that it was inadequately packed. 

(2) The mid face junction box cable on the outby 

side was loose and could be worked in and out freely, indicating 

that it was inadequately packed. 

(3) The cable entering the tail conveyor junction 

box had been pulled completely out of the packing gland. The 

outer jacket of the cable had been pulled back for 3 to 4 

inches leaving the conductors and ground wire rubbing against 

the metal packing gland nut. There was no packing at all left 

in the junction box and the base conductor wires, pilot wire 

and grounding wire had all been left exposed. 

2414 
(4) The inside of each of the junction boxes was 

rusted, wet and contained accumulations of coal dust. 

(5) There was no clamping at all for the cables 

entering the head conveyor junction box and the tail conveyor 

junction box. 

20. The loose and missing packing glands for the head 

face, mid face and tail gate junction boxes did not provide 

the flame path protection required to prevent the escape of 

flames from the junction boxes should an ignition occur inside. 

Thus, the junction boxes were not permissible. 

21. The electrical cables linking the head face, mid 

face and tail gate junction boxes were subject to the movement inherent in the operation of the pan line. Since there 

were neither clamps nor packing glands to restrain movement 

of the cables, the cables were subject to rubbing against 

packing nuts and straining the internal connections within 

the junction boxes. 

22. Sparks and ignitions are likely within the junction 

boxes if lead wires come into contact with the junction box 

frames. Loosening electrical connections within the junction 

boxes may generate heat causing the breakdown of the wires' 

insulation and thus cause bare wires to contact the box 

frames. 

23. Each of the junction boxes had become rusty, wet 

and had accumulated coal dust. Since the Longwall area was 

subject to the liberation of methan~ and the generation of 

coal dust, the junction boxes were hazardous, and lacked 

the protection that properly maintained packing glands would 

have provided to contain flames and explosions. A fire or 

explosion in one of the junction boxes could have easily 

spread outside the box to the surrounding atmosphere in the 

mine. 

24. After Fetty had discovered the modifications to 

the Longwall unit and the hazardous conditions listed above, 

he issued a section 104(d) (2) withdrawal order, citing 

unauthorized modifications and permissibility violations. 

25. Petitioner was aware of the official process by which 

approvals, certifications and modifications are to be obtained. 

For example: 

(1) During the summer of 1981, prior to the startup 

of the mine's 1st Longwall operation on Section D-3, Inspectors 

Fetty and Shuttlesworth along with Electrical Engineer Hall 

2415 
met with company personnel to discuss all aspects of Longwall 

certification and approval, including filing for modifications 

after approval. Also, they advised the Operator to contact 

MSHA's Approval and Certification office if they had any 

problems or questions. · 

(2) Before the 1981 meetings, in June 1979, 

General Maintenance Foreman Kirby Smith had filed modification requests with MSHA with respect to lights for 12 S&S 

Scoops at the Mine. 

(3) On August 10, 1982, Longwall Maintenance 

Foreman Roger c. Harris filed a field modification request 

with MSHA for the Longwall stage loader. 

26. Petitioner was aware of the need to properly 

maintain packing glands and strain clamps as these matters 

were listed as discrepancies and abated prior to the startup of its D-3 Longwall system in January of 1982. 

27. On March 24, 1983, at a meeting between Inspectors 

Fetty and Cross and management representatives, it was 

agreed: (1) the Longwall would be reinspected to determine 

whether the hazardous conditions cited had been corrected; 

(2) if other hazardous conditions were observed they would 

be cited; (3) the Operator would prepare an engineering 

drawing and letter requesting a field modification for all 

machinery changed on the Longwall; and (4) the section 

104(d) (2) order would be modified permitting the Longwall 

Unit to operate pending approval of the modifications 

requested. 

28. Inspectors Fetty and Cross reinspected the Longwall. 

In the process, they determined the abatement of the conditions 

previously cited and issued citations for additional violations noted. When all violations were found to be abated, 

Order No. 2115977 was "modified to permit the Longwall 

mining unit to be operated until MSHA provides formal approval 

for the modified mining unit," at 8:30 p.m., March 24, 1984. 

DISCUSSION WITH FURTHER FINDINGS 

I. Was there a "clean" inspection before the 

March 24, 1983 order? 

The threshold issue is whether the Secretary of Labor met 

his burden of proving that a "clean" inspection of the mine had 

not occurred between the last preceding section 104(c) (2) order 

(December 1, 1982) and the date of the order at issue (March 24, 

1983). 
Section 104(d) 1/ of the Act creates an enforcement tool 

which-gives the Secretary increased sanctions in the form of 

withdrawal (closure) orders to operators who repeatedly 

allow violations to occur through an unwarrantable failure 

to comply with mandatory health and safety standards. In 

essence, it authorizes the Secretary to issue withdrawal 

orders for a certain chain of violations, the chain to be 

broken only by a "clean" inspection of the entire mine. The 

question here is whether such a complete inspection of the 

Kitt Mine took place between the date of the preceding 

104(d) (2) order December 1, 1982, and March 24, 1983. 

!/ Section 104(d) provides: 

"(1) If, upon any inspection of a coal or other mine, an 

authorized representative of the Secretary finds that there 

has been a violation of any mandatory health or safety 

standard, and if he also finds that, while the conditions 

created by such violation do not cause imminent danger, 

such violation is of such nature as could significantly and 

substantially contribute to the cause and effect of a coal 

or other mine safety or health hazard, and if he finds such 

violation to be caused by an unwarrantable failure of such 

operator to comply with such mandatory health or safety 

standards, he shall include such finding in any citation 

given to the operator under this Act. If, during the same 

inspection or any subsequent inspection of such mine within 

90 days after the issuance of such citation, an authorized 

reperesentative of the Secretary finds another violation of 

any mandatory health or safety standard and finds such violation to be also caused by an unwarrantable failure of such 

operator to so comply, he shall forthwith issue an order 

requiring. the operator to cause all persons in the area 

affected by such violation, except those persons referred 

to in subsection (c) to be withdrawn from, and to be prohibited from entering, ~uch area until an authorized representative of the Secretary determines that such violation 

has been abated. 

"(2) If a withdrawal order with respect to any area in 

a coal or other mine has been issued pursuant to paragraph (1), 

a withdrawal order shall promptly be issued by an authorized 

representative of the Secretary who finds upon any subsequent 

inspection the existence in such mine of violations similar 

to those that resulted in the issuance of the withdrawal 

order under paragraph (1) until such time as an inspection of 

such mine discloses no similar violations. Following an 

inspection of such mine which discloses no similar violations, 

the provisions of paragraph (1) shall again be applicable to 

that mine." 

2417 
Although the Act does not define what constitutes a 

complete inspection of a mine, several Commission decisions 

have held that a complete inspection of a mine is not synonymous 

with a complete regular quarterly inspection. 

In Secretary of Labor (MSHA) v. C F & I Steel Corporation, 

2 FMSHRC, 3459 (1980), the Commission held that the burden of 

proving the absence of a clean· inspection is on MSHA as part 

of its prima facie case to sustain the order. It went on to 

say that "nothing in the record . . • suggests that the 

Secretary's position -- that only a complete regular quarterly 

inspection can constitute a 'clean' inspection of the entire 

mine -- is necessary" to further the public interest in promoting 

compliance with mandatory safety and health standards. 

In Secretary of Labor (MSHA) v. United States Steel 

Corporation,. 3 FMSHRC 5 (1981), the Commission again held that 

MSHA must establish the absence of a "clean" inspection after 

the issuance of a 104(d} (1) order as part of its prima facie 

case. 

In Secretary of Labor (MSHA) v. Old Ben Coal Company, 

3 FMSHRC 1186 (1981), the Commission upheld an administrative 

law judge's vacating of a 104(d) (2) order where the complete 

inspection of the mine was comprised of a series of spot 

inspections and regular inspections which were not a complete 

regular quarterly inspection. 

In this case MSHA has established only that a complete 

regular quarterly inspection had not been finished by 

March 24, 1983. Mr. Cervo, the resident inspector, felt that 

until a closeout meeting was held and he completed his paper 

work, the regular quarterly inspection was not over and, 

therefore, the mine was not completely inspected. This is 

the position that MSHA took in the Old Ben case, supra, 

which the Commission rejected. 

All areas of the Kitt No. 1 Mine had' been inspected between 

December 2, 1982, and March 23, 1983. Only two regular "AAA" 

inspections were conducted after March 23, 1983, and both of 

those were to check on two specific items. They were Mr. Cervo's 

inspection of the suspected hazardous chemicals on the surf ace 

on March 24, 1983, and Mr. Allen's inspection of U-Mains on 

March 25, 1983, to check the abatement of a citation issued the 

previous day during a spot inspection. Both of the areas visited 

in those two inspections had been completely inspected earlier 

in the course of the regular quarterly inspection. 

It was also brought out in testimony by Petitioner that 

numerous inspections had occurred between January 19, 1983, and 

March 23, 1983. Petitioner's Exhibits 6 and 7 show that the 

2418 
entire mine was completely inspected through numerous visits 

by MSHA. inspectors to all areas of the Kitt No. 1 Mine. This 

testimony was not disputed. In fact, Mr. Cervo's testimony 

supported it. 

MSHA has failed to pass the threshold requirement of 

showing that a clean inspection of the mine had not occurred 

since the last preceding 104(d) (2) order on December 1, 1982. 

Therefore, the 104(d) (2) order by Inspector Fetty of March 24, 

1983, must fail. The proper chain to support such an order 

was missing. 

Independent of this holding, the underlying 104(d) (2) 

order of December 1, 1982, in this case, has recently been 

invalidated by the Commission because of an intervening clean 

inspection before December 1, 1982. Secretary of Labor v. 

Kitt Energy Corpcration, WEVA 83-65-R, decided July 18, 1984. 

Such holding is a further ground for invalidating the 104(d) (2) 

order at issue in this case. 

Accordingly, the March 24, 1983, order will be invalidated. 

However, that does not end the case, because the Secretary 

charged violations in the order. The issues concerning those 

allegations must be resolved and, if charges of violations are 

sustained, the 104(d) (2) order should be converted into a 

section 104(a) citation to the extent of the valid charges. 

II. Did the failure to obtain final approval of D-5 

Longwall equipment pursuant to 30 CFR Part 18 

constitute a violation of 30 C.F.R. §75.503? 

Order No. 2115977 contains charges of violation of 

30 C.F.R. §75.503 which include Petitioner's implementation of 

unauthorized modifications to its Longwall Mining Unit, the 

Operator's failure to maintain adequate packing to secure and 

provide protection for cables entering junction boxes and the 

Operator's failure to provide and maintain clamping for cables 

entering the head face and tail face motor junction boxes. 

At the hearing Petitioner stipulated that certain charges 

listed in Order No. 2115977 constituted violations of 30 C.F.R. 

§75.503: 

It was also discovered that the following 

permissibility violations existed. (1) The 4/0 3/C 

type SHD-GC cable is not provided with an adequate 

amount of packing, where the cable is entering the 

head face motor junction box, the cable can be moved 

freely by hand. (2) The 4/0 3/C type SHD-GC trailing 

cable is not provided with adequate packing where 

2419 
1t enters the mid-face junction box XP 1665-25 on 

the outby side, the cable is loose and the packing 

nut can be turned freely by hand and the cable pulled 

in and out freely. (3) The 4/0 3/C type SHD-GC cable 

for the 250 HP reliance tail conveyor motor XP 1478-94 

is pulled out of the junction box through the packing 

nut exposing the conductors in the cable. (Tr. 14.) 

A main issue is whether the failure to obtain approval 

of changes in the Longwall equipment, as required by 30 

C.F.R. Part 18, constituted a violation of section 75.503. 

30 C.F.R. § 75.503 states: 

Section 75.503. Permissible electric face equipment; 

maintenance 

The operator of each coaJ rr.ine shall maintain in 

permissible condition all electric face equipment 

required by §§75.500, 75.501, 75.504 to be permissible 

which is taken into or used inby the last open 

crosscut of any such mine. 

Section 75.503 does not set the standards for permissibility; it requires only that certain equipment be maintained in permissible condition. 

The Act, in section 318(i), defines "permissible" as 

follows: 

"permissible" as applied to electric face equipment means all electrically operated equipment 

taken into or used inby the last open crosscut of an 

entry or a room of any coal mine the electrical 

parts of which, including, but not limited to, 

associated electrical equipment, components, and 

accessories, are designed, constructed, and installed, 

in accordance with the specifications of the Secretary, 

to assure that such equipment will not cause a mine 

explosion or mine fire, and the other feature of 

which are designed and constructed, in accordance 

with the specifications of the Secretary, to prevent, 

to the greatest extent possible, other accidents in 

the use of such equipment; and the regulations of the 

Secretary or the Director of the Bureau of Mines in 

effect on the operative date of this title relating 

to the requirements for investigation, testing, 

approval, certification, and acceptance of such 

equipment as permissible shall continue in effect 

until modified or superseded by the Secretary, except 

that the Secretary shall provide procedures, including, 

2 .• "0 'f~ 
where feasible, testing, approval, certification, 

and acceptance in the field by an authorized representative of the Secretary, to facilitate compliance 

by an.operator with the requirements of section 305(a) 

of this title within the periods prescribed therein; 

In order to meet the permissibility standard of 30 C.F.R. 

§75.503, the equipment must be built according to the requirements of Schedule 2G, which is set forth in 30 C.F.R. Part 18. 

See, e.g., Kaiser Steel Corporation, IBMA 75-15, 3 IBMA 489 

(1974~nd Eastern Associated Coal Corporation, IBMA 75-23, 

75-25, 5 IBMA 185 (1975). 

Accordingly, the requirement in 30 C.F.R. §75.503 

that electric face equipment be maintained in "permissible 

condition" refers to the requirements of Schedule 2G which 

are set forth at 30 C.F.R. Part 18. 

30 C.F.R. §18.15 requires that: 

[i]f an applicant desires to change any feature 

of approved equipment or a certified component, 

he shall first obtain MSHA's concurrence pursuant 

to the following procedure: * * * 

Petitioner was an "applicant" because it was a "corporation" that controlled "the assembly of an electrical machine 

or accessory" (30 C.F.R. §18.2, definition of "Applicant") 

when it reassembled its Longwall Mining Unit at the D-5 

location. As an "Applicant," Petitioner was required by 

30 C.F.R. §§18.15 and 18.81 to apply in writing to the Approval 

and Certification Center, MSHA, in advance of making the 

changes to approved equipment so that MSHA could "determine 

whether inspection or testing will be required. . . if there 

is a possibility that the change(s) may adversely affect 

safety" (§18.15(b)). MSHA would also need to determine 

whether the "[p]roposed modifications ... conform with the 

applicable requirements of Subpart B of this part [Part §18], 

and not substantially alter the basic functional design that 

was originally approved for the equipment" (Part 18.18(b)). 

The Longwall Mining Unit with the original Eikhoff 

Shearer in place and the Siemens Allis Motors in place had 

been approved by MSHA under MSHA Approval No. 2G-3365A-0 

(Exhibit G-1, Electrical Component Layout). The record 

establishes that Petitioner made changes to.its approved 

Longwall Mining Unit and operated the unit with those changes 

without complying with the requirements of 30 C.F.R. Part 18. 

I hold that the changes in the Longwall equipment without 

obtaining MSHA approval constituted a violation 0£ 30 C.F.R. 

§75.503. 

"),101 ?... {;11..,, 
III. Failure to provide or to maintain clamps 

for the cable entering the Head face and 

Tail face Motor Junction boxes. 

At hearing it was established that there were no clamps 

to protect the cables entering the head face conveyor junction 

box and the tail face conveyor junction box against strain 

from movement of the conveyor system. 

Cable clamps are required by 30 C.F.R. §18.40 to be 

provided: 

for all portable (trailing) cables to prevent 

strain on the cable terminals of a machine. 

Also insulated clamps shall be provided to prevent 

strain on both ends of each cable or cord leading 

from a machine to a detached or separately mounted 

component. 

At hearing, Inspector Fetty testified that the cables 

leading to the head face and tail face conveyor junction boxes 

were "trailing cables" and not inr:er machine cables because 

they are subject to the movement of the conveyor system 

during the mining process (Tr. pp. 117-118). I accept this 

definition and hold that Petitioner failed to comply with 30 

C.F.R. §18.40. For the reasons set forth above, I hold that 

this violation of 30 C.F.R. §18.40 constituted a failure to 

"maintain . . . electric face equipmerd~ . . . in permissible 

condition" and thus is also a violation of 30 C.F.R. §75.503. 

IV. Were the violations of 30 C.F.R. §75.503 

"Unwarrantable"? 

Petitioner's management officials intentionally modified 

the existing approved Longwall Mining Unit by changing the 

shearer, conveyor motors, pan line and accessories amounting 

to some 80% of the Longwall Mining Unit, without applying to 

MSHA for approval of the changes to the Longwall Mining Unit. 

The management officials were aware of the approval and 

modification processes required by MSHA, having discussed 

them with MSHA representatives Fetty, Shuttlesworth and Hall 

in the si.:mmer of 1981, and having filed Field Modification 

requests concerning S&S Scoop tractors in June 1979 and the 

Longwall stage loader in August 1982. 

I hold that Petitioner's failure to comply with the 

application and certification procedures was "unwarrantable." 

If Petitioner had any question as to the requirement for an 

application for approval of the: type modifications it planned, 

it could have resolved the question by contacting MSHA to 

see whether an application was needed. By acting without 
inquiring into the legality of its actions, it showed a 

careless disregard for it statutory and regulatory duty as 

an operator. 

As to the other violations of section 75.503, a 

thorough inspection of the Longwall Mining Unit conducted 

by MSHA in January 1982 produced a long list of items that 

needed correction by the operator prior to start up that 

included numerous references to improperly packed packing 

glands and cables not provided with adequate strain relief 

(i.e., strain clamps). I find that Petitioner knew or should 

have known of the packing gland and cable clamp violations and 

corrected them before the inspection on March 24, 1983. I 

therefore hold that these violations constituted an "unwarrantable" failure to comply. 

CONCLUSIONS OF LAW 

1. The judge has jurisdiction over this proceeding. 

2. MSHA Order No. 2115977, March 24, 1983, is not valid 

because the Secretary has not met his burden of proving that 

an intervening "clean" inspection had not occurred. Order 

No. 2115977 should be converted into a section 104(a) citation. 

3. The violations charged in Order No. 2115977 were 

proved by the Secretary, by a preponderance of the evidence, 

and each was proved to be an "unwarrantable" violation. 

ORDER 

WHEREFORE IT IS ORDERED that: 

1. MSHA Order No. 2115977 is MODIFIED to change it 

from a section 104(d) (2) order into a section 104(a) 

citation. As so modified, this citation including all the 

charges therein is AFFIRMED. 

Distribution: 

4)~,;.. =r~t/1- William Fauver 

Administrative Law Judge 

B. K. Taoras, Esq., Kitt Energy Corp., P.O. Box 500, 450 Race 

Track Road, Meadow Lands, PA 15347 (Certified Mail) 

Howard K. Agran, Esq., Office of the Solicitor, U.S. Department 

of Labor, 3535 Market St., Philadelphia, PA 19104 (Certified 

Mail) 

Michael H. Holland, Esq., UMWA, 900 15th Street, N.W., 

Washington, DC 20005 (Certified Mail) 

/ejp 

2 (1 •) ·) ,..,, :i i:..,u 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 OCT 9 1984 

SECRETARY OF LABOR, CIVIL PENALTY PROCERDING 

MINE SAFETY AND HE~LTH 

ADMINISTRATION (MSH'A), 

Petit loner 

Docket No! KENT 84-92 

A/O No: 15-02162-03513 

v. : South Hopkins No. 2 

SOUTH HOPKINS COAL COMPANY, 

Respondent 

Appearances: 

Before: 

DEFAULT DECISION 

Carole M. Fernandez, Esq., Office of 

the Solicitor, U.S. Department of Labor, 

for Petitioner 

Judge Moore 

The above case was scheduled for hearing on September 5, 

1984 at 10:00 A.M. in the Hopkins County Courthouse in 

Madisonville, Kentucky. At 10:30 A.M. I made the following 

statement: 

"It is now 10:30 A.M. and respondent is 

not present. My office has proof of 

service of the Notice of Hearing and site 

notice. I hereby declare respondent in 

default and will issue a formal order when 

I return to my office." 

As of the date of this decision being issued I have still 

not heard from respondent. I hereby confirm my oral ruling 

that respondent is in default, AFFIRM the two citations 

involved and assess a penalty of $242 against respondent. 

Respondent is accordingly ORDERED to pay to MSHA, 

within 30 days, a civil penalty in the amount of $242. 

Respondent is further ORDERED to inform me, within 30 

days, why it did not let me, the government's counsel, 

or the inspector know that it did not intend to appear at the 

hearing. 

Charles C. Moore, Jr. 

Administrative Law Judge 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 OCT 10 1984 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

JAMES McNEIL TAYLOR, 

Complainant 

v. 

BUCK GARDEN COAL COMPANY, 

Respondent 

Docket No. WEVA 83-241-D 

MSHA Case No. HOPE CD 83-25 

No. 4 Mine 

DEFAULT ORDER 

The operator having failed to show cause why it should 

not be declared in default of its settlement agreement and 

a final enforceable order entered in the captioned matter, 

it is ORDERED that respondent be'· and hereby is, deemed in 

default of its settlement agreem~nt and the Secretary 

directed to take such action as is necessary to enforce 

under section 106(b) of the Mine ~ct this final order of 

default and dismissal of this caseArom the Commission's 

docket. ,. · 

Distribution: 

Joseph B. Kenn dy 

Administrative Law 

Catherine Oliver-Murphy, Esq., Office of the Solicitor, 

U.S. Department of Labor, 3535 Market St., Philadelphia, PA 

19104 (Certified Mail) 

Richard L. Dailey, Esq., Attorney for Buck Garden Coal 

Company, 608 Virginia Street, East, Charleton, WV 25301 

(Certified Mail) 

Dare McKinney, President, Buck Garden Coal Co., P.O. Box 145, 

Gilboa, PA 26671 (Certified Mail) 

James McNeil Taylor, Star Route 1, Box 2, Fenwick Mountain, 

WV 26202 (Certified Mail) 

/ejp 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE. SUITE 400 OCT l 0 i984 

DENVER, COLORADO 80204 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

Docket No. CENT 84-3-M 

A.C. No. 29-01893-05502 

Docket No. CENT 84-19-M 

A.C. No. 29-01890-05501 

Portable Crushing Plant No. 

3 & 4 

SOUTHWAY CONSTRUCTION COMPANY,: 

INC., 

Respondent 

Docket No. WEST 84-27-M 

A.C. No. 05-03880-05501 BY2 

Docket No. WEST 84-28-M 

A.C. No. 05-03880-05502 BY2 

Union Carbide Pit 

DECISION 

Appearances: James H. Barkley, Esq., Office of the Solicitor, 

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

for Petitioner; 

Ms. Izora Southway and Leroy Belt, Southway 

Construction Company, Inc., Alamosa, Colorado, 

pro se. 

Before: Judge Morris 

These cases, heard under the provisions of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 801 et~., (the 

"Act">, arose from inspections of respondent's sand and gravel 

operations in New Mexico and Colorado. The Secretary of Labor 

seeks to impose civil penalties because respondent violated 

regulations promulgated under the Act. 

After notice to the parties, a hearing on the merits was 

held in Alamosa, Colorado on August 28, 1984. 

The parties waived the filing of post-trial briefs. 

Issues 

The issues are whether r·~spondent violated the regulations; 

if so, what penalties are appropriate. 

Stipulation 

At the commencemont of the h~aring the parties stipulated 

that the respondent was subjer;t to the Act (Tr. 8). 
CENT 84-3-M 

Ci~ation 2091920 

This citation alleges a violation of Title 30, Code of 

Federal Regulations, Section 56.14-1 which provides as follows: 

Guards 

56.14-1 Mandatory. 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. 

Summary of the Evidence 

During this inspection on August 10, 1983 near Wagon Mound, 

New Mexico, MSHA Inspector Alfredo Garcia was accompanied by 

Darrell Yohn, the company representative. A particular place in 

the worksite came to the inspector's attention because a worker 

was cleaning debris at a tail pulley. The worker was kneeling 

on the ground about two feet from the end of the pulley. The 

unguarded tail pulley was under the L.J. Crusher. Photographs 

taken by the inspector showed the moving parts at the tail 

pulley. (Transcript at pages 10 through 17, 27, 28; Exhibits Pl 

and P2). 

In the inspector's opinion, there was a hazard to this 

worker. He could become entangled in the tail pulley. This 

hazard was further complicated by the dusty conditions in the 

immediate vicinity. In the event the worker were to be caught in 

the tail pulley, injuries could range as high as a permanent 

disability (Tr. 17-21). 

Mrs. Izora Southway, an officer of respondent, testified 

that Inspector Garcia was at this site and issued a citation on 

March 23, 1983. However, Mrs. Southway pointed out that no 

citation was issued at that time for this particular unguarded 

tail pulley. Mrs. Southway felt that since the citation was not 

issued at the time of the previous inspection it could not now be 

a violation of a substantial and significant nature (Tr. 22-24). 

Discussion 

The evidence here establishes a violation of the guarding 

standard, 30 C.F.R. S 56.14-1. It is true there was a guard 

located above the tail pulley which would prevent access to the 

area for anyone other than the employee who was cleaning the tail 

pulley itself. It is, however, the general purpose of the 

regulation to protect all employees and this would include the 

clean-up man working at this location. Cf. Missouri Gravel 

Company, 3 FMSHRC 2470 (1981). 
Ths evidence further establishes that the violation is of a 

significant and substantial nature. In view of the testimony and 

experience of Inspector Garcia, I am unwilling to hold to the 

contrary, Cf. Consolidation Coal Company, 6 FMSHRC 34, (1984). 

It is true that there was a guard located above the tail 

pulley. Photographs indicate that access was very limited for 

the clean-up man (Exhibits Pl and P2 illustrate the access~) 

These factors cause me to conclude that the negligence of the 

operator is somewhat overstated. This issue is addressed in the 

assessment of the civil penalty which is considered, infra. 

The evidence offered by respondent concerns the failure of 

Inspector Garcia to issue a citation for this violative condition 

in March, 1983. This testimony essentially invokes the doctrine 

of collateral estoppel. In short, should MSHA now be estoppedfrom claiming this violation occurred since it did not previously 

issue a citation for this condition? 

This case particularly illustrates the weakness in 

respondent's argument. Inspector Garcia indicated that this 

condition was brought to his attention because the cleanup man 

was working at the end of the tail pulley. The position of this 

man, his activities with his shovel and his close proximity to 

the unguarded tai-1 pulley brought the entire matter into focus. 

The citation was issued and properly so. The doctrine of 

collateral estoppel should not and cannot be invoked here to deny 

miners the protection of the Mine Safety Act. I have previously 

refused to apply the doctrine in similar circumstances. Servtex 

Materials Company, 5 FMSHRC 1359 (1983); Kennecott Minerals 

Company, WEST 82-155-M, August 1984; also on the issue of collateral estoppel, see the Commission decision in King Knob Coal 

Company, Inc., 3 FMSHRC 1417 (1981). 

The citation should be affirmed. 

CENT 84-19-M 

Citations 2090946, 2090947, 2090948 

The above citations allege separate violations of 30 C.F.R. 

§ 56.5-l(a) and 5-5 which provides: 

Air Quality 

56.5-1 Mandatory. Except as permitted by § 56.5-5: 

(a) Except as provided in paragraph Cb), the exposure 

to airborne contaminants shall not exceed, on the basis 

2428 
of a time weighted average, the threshold limit values 

adopted by the American Conference of Governmental Industrial Hygienists, as set forth and explained in the 

1973 edition of the Conference's publication, entitled 

"TLV's Threshold Limit Values for Chemical Substances 

in Workroom Air Adopted by ACGIH for 1973," pages 1 

through 54, which are hereby incorporated by reference 

and made a part hereof. This publication may be obtained from the American Conference of Governmental 

Industrial Hygienists by writing to the SecretaryTreasurer, P.O. Box 1937, Cincinnati, Ohio 45201, or may 

be examined in any Metal and Nonmetal Mine Health and 

Safety District or Subdistrict Off ice of the Mining 

Enforcement and Safety Administration. Excursions above 

the listed thresholds shall not be of a greater magnitude than is characterized as permissible by the Conference. 

56.5-5 Mandatory. Control of employee exposure to 

harmful airborne contaminants shall be, insofar as 

feasible, by prevention of contamination, removal by 

exhaust ventilation, or by dilution with uncontaminated air. However, where accepted engineering control 

measures have not been developed or when necessary by 

the nature of work involved (for example, while establishing controls or occasional entry into hazardous 

atmospheres to perform maintenance or investigation), 

employees may work for reasonable periods of time in 

concentrations of airborne contaminants exceeding permissible levels if they are protected by appropriate 

respiratory protective equipment. Whenever respiratory 

protective equipment is used a program for selection, 

maintenance, training, fitting, supervision, cleaning, 

and use shall meet the following minimum requirements: 

·(a) Mining Enforcement and Safety Administration approved respirators which are applicable and suitable 

for the purpose intended shall be furnished, and employees shall use the protective equipment in accordance with training and instruction. 

Cb) A respirator program consistent with the requirements of ANSI Z88.2-1969, published by the American 

National Standards Institute and entitled "American 

National Standards Practices for Respiratory Protection 

ANSI Z88.2-1969," approved August 11, 1969, which is 

hereby incorporated by reference and made a part hereof. 

n .~ f);.:J • .:. l ± f.., ti.J 
This publication may be obtained from the American National Standards Institute, Inc., 1430 Broadway, New 

York, New York 10018, or may be examined in any Metal 

an~ Nonmetal Mine Health and Safety District or Subdistrict Off ice of the Mining Enforcement and Safety 

Administration. 

(c) When respiratory protection is used in atmospheres 

immediately harmful to life, the presence of at least 

one other person with backup equipment and rescue capability shall be required in the event of failure of the 

respiratory equipment . 

. summary of the Evidence 

On May 23, 1983, MSHA Inspector Archie Fuller inspected 

respondent's worksite two miles northeast of Blanco, New Mexico. 

The location was a basic sand and gravel operation with three 

workers at the site (Tr. 79-81). 

The inspector placed a Bendix dust pump on the lapel of each 

worker and sampled them for nine hours of an eleven-hour shift. 

The filters had been pre-weighed, numbered and marked. At this 

time the foreman, as the primary loader operator, would change 

off with the crusher operator about half of the time. The 

clean-up man drove the water truck. At the commencement of the 

inspection the inspector requested that the workmen perform their 

normal duties as far as was possible. At the conclusion of the 

sampling, he sealed the samples and forwarded them to MSHA for an 

analysis (Tr. 81-84, 87, 88). 

The sampling results obtained from MSHA's technical 

laboratory indicated the following exposures for which citations 

were issued: 

Occupation and Sampling Sample SI02 %SI02 TWA 'rLV 

Location Time-min Wt.-mg Wt.-mg mg/m3 mg/m3 

Loader Oper- 540 .420 .103 24.52 .515 .377 

a tor (Foreman) 

Crusher Oper- 540 .344 .097 28.19 .422 .331 

a tor 

Plant Laborer 540 .407 .095 23.34 .499 .395 

(Tr. 84-86; Exhibit P-4) 

The company had respirators on the jobsite but they were not 

being worn. There was very little visible dust to be seen. In 

the inspector's opinion, the company should have been aware of 

the silica dust problems due to prior MSHA inspections (Tr. 

86-90, 93). 

2430 
Respondent's evidence shows that on August 2, 1983, this 

particular worksite was inspected by the same compliance officer. 

At that time the company was found to be in compliance with this 

regulation. 

Discussion 

The evidence establishes that each of the employees was 

over-exposed to silica dust. Cf. Climax Molybdenum Company, a 

division of Amax, Inc., 2 FMSHRC 2748 (1980). 

The mere fact that an inspection in August, 1983 revealed 

the company was in compliance does not constitute a defense to 

the violations that occurred on May 23, 1983. 

The three citations should be affirmed. 

WEST 84-27-M 

Citation 2096998 

This citation alleges a violation of 30 C.F.R. § 56.15-4 

which provides: 

56.15-4 Mandatory. All persons shall wear safety 

glasses, goggles, or face shields or other suitable 

protective devices when in or around an area of a 

mine or plant wh~re a hazard exists which could cause 

injury to unprotected eyes. 

Summary of the Evidence 

Respondent was crushing rock for Corn Construction Company 

near Rifle, Colorado when MSHA Inspector Michael T. Dennehy 

arrived at the worksite before 8:00 a.m. on August 16, 1983. He 

contacted the company representative, Jim Farley. Before 

commencing his activities, Inspector Dennehy told Farley that he 

would be inspecting the area and he suggested that all of the 

employees wear their safety equipment. At that time it was established that there was only one pair of safety glasses available for the three workers at the jobsite. At that point one of 

the employees was designated to wear the available safety glasses 

(Tr. 30-35, 37). 

Inspector Dennehy then proceeded with his inspection. 

During the course of his activities he saw a worker striking 

metal to metal. He was hammering a metal guard into place. In 

addition, the worker, who had been designated to wear the safety 

glasses, was in fact, w~aring sunglasses. The sunglasses did not 

meet safety specifications. Sunglasses, such as he was wearing, 
complicates the hazard because those glasses could shatter if 

struck with a piece of metal (Tr. 32, 33). 

It is c·ommon practice in the industry to wear safety glasses 

when striking metal to metal. If this worker continued the 

practice there would be a substantial likelihood that an injury 

would occur (Tr. 34, 36). 

Respondent offered no evidence to rebut this violation. 

Discussion 

The evidenc~ establishes a violation of 30 C.F.R. § 56.15-4. 

This particular miner was without safety glasses or other suitable protection when he was striking metal to metal. The hazard 

was clear. Unprotected eyes could be injured. 

The citation should be affirmed. 

WEST 84-28-M 

Citation 2096710 

This citation alleges a violation of 30 C.F.R. § 56.5-1, 

cited, supra. 

Summary of the Evidence 

On the day he issued the citation for the failure to have 

safety glasses Inspector Dennehy conducted a dust and noise 

survey at the Union Carbide pit (Tr. 40-41, 53). 

Inspector Dennehy prepared for his survey by precalibrating 

his pumps, then numbering them, and sealing the filters. He 

monitored two miners for an entire day. The sampling device was 

placed on respondent's employee Phil Miller, the clean-up man. 

At the conclusion of the work day Inspector Dennehy resealed the 

filters, recalibrated his pumps, and turned them in to be weighed. 

In the inspector's opinion, the samples were very valid (Tr. 41, 

42) • 

An MSHA analysis of the sample established that Miller's 

exposure was 1.6 times over the TLV for silica. There was some 

visible dust present in the area, as well as some water sprays. 

MSHA advised the company of its analysis of the silica dust 

(Exhibit P3). Employee Miller, who was not wearing any personal 

protective equipment, was exposed to a dust concentration consisting of 16.21 percent silica. The citation itself was issued 

after the inspector received the technical data from MSHA's staff 

(Tr . 4 2 - 4 3 ; Exhibit P 3 ) . 

Witness Richard Durand, an MSHA industrial hygienist and a 

person experienced in the effects of silicosis on the human body, 
testified in the case. 1/ Witness Durand indicated that a 16 

percent concentration of silica dust is relatively high. However, sand and gravel operations usually average silica dust 

concentrations in the vicinity of 16 to 20 percent (Tr. 55-58). 

Silica affects a person's lungs. Fibrosis can result. 

After a person has been exposed, the scarring may progress 

further without any additional exposure. The disease and lung 

problems progress in tandem. As the lungs lose their elasticity, 

the heart, in turn, must pump harder (Tr. 58-61). 

If an individual has been exposed to silicosis, he is 

thereby susceptible to tuberculosis. A chronic silicosis can 

develop from an exposure from about 1 to 16 percent over a long 

period of time. Acute silicosis can develop when there is an 

exposure above fifty percent for a period of two to five years. 

The witness considered any exposure above fifty percent to be 

high (Tr. 60-63, 69, 73). 

Disability or death can be the ultimate results (Tr. 60-61, 

7 3) • 

If workers are not wearing respirators then·their problems 

with silica can be greatly enhanced. 

Respondent offered no evidence to rebut the foregoing 

evidence. 

Discussion 

The evidence here establishes a violation of the regulation. 

The exposure to employee Miller to silica dust was 1.6 times of 

the threshold limit value. 

On the uncontroverted evidence, the citation should be 

affirmed. 

CIVIL PENALTIES 

The statutory criteria for assessing a civil penalty is 

contained in 30 u.s.c. § 820(i). It provides as follows: 

1/ Witness Durant's testimony was offered in connection with 

WEST 84-28-M and CENT 84-19-M. 
The Commission shall h;ive authority to assess all 

civil penalties provided in this Act. In assessing 

civil monetary penalties; the Commission shall consider 

the operator's history of previous violations, the 

appropriateness of such penalty to the size of the 

business of the operator charged, whether the operator 

was negligent, the effect on the operator's ability to 

continue in business, the gravity of the violation, and 

the demonstrated good faith of the person charged in 

attempting to achieve rapid compliance after notif ication of a violation. 

In considering these factors I find that respondent had 64 

citations issued against it in 1983. These were the result of 14 

inspections at five different worksites (Tr. 115-116). Respondent's operations are highly mobile involving as many as 30 

different sites a year (Tr. 116). 

Respondent's prior citations were assessed a single penalty 

(Tr. 115, 116). Respondent contends that the citations in 

contest here should be assessed on the same basis. I reject this 

view. The Commission is bound by the statutory criteria and has 

rejected the Secretary's single assessment regulation. United 

States Steel Mining Co., Inc., 6 FMSHRC 1148 (1984). 

Mrs. Southway testified that in 1983 the company compiled 

51,136 man hours with no.injuries at all of the mine sites (Tr. 

116, 117). The company has three to four employees at each site 

with a maximum of about 20 employees (Tr. 117). 

Mrs. Southway's testimony established that the company 

provided protective equipment in their plants. Further, the 

employees were instructed in their use, and they understood the 

MSHA regulations. I accept Mrs. Southway's testimony but an 

operator must do more than merely furnish protective equipment. 

It is the company's obligation to insist on the use of such 

equipment by its employee. This obligation can be met by 

training and other means. I consider the operator was negligent 

as noted in connection with each citation. 

Mrs. Southway indicated the monetary significance of the 

penalties was not extreme. But she was concerned about the later 

effect of these citations on the company (Tr. 120). The general 

statutory scheme of imposing penalties seeks to promote an 

operator's efforts to provide for the safety and health of its 

miners. Since the violations have been established in these 

cases a penalty in accordance with the statutory criteria must be 

assessed. 

9 :1!")1-i /._, 'J; u :J. 
The gravity of each violation appears in the record. As 

previously stated the negligence concerning Citation 2091920 

(unguarded tail pulley) is overstated. The penalty should be 

reduced to $25.00. The three citations in CENT 84-19-M relate to 

silica dust and a civil penalty of $30.00 is proposed for each. 

On the other hand, in WEST 84-28-M, the Secretary proposes a 

penalty of $63.00 for a single exposure to silica dust. Considering the statutory criteria I believe that the penalty for 

Citation 2096710 should be reduced to $30.00 from $63.00. 

It is to respondent's credit that it abated all of the 

violative conditions (Tr. 121). 

After carefully considering the statutory criteria, I deem 

that the penalties noted hereafter are appropriate and they 

should be affirmed. 

Citation No. 

2091920 

2090946 

2090947 

2096948 

2096998 

2096710 

Proposed 

Assessment 

$54.00 

30.00 

30.00 

30.00 

68.00 

63.00 

Disposition 

$ 25.00 

30.00 

30.00 

30.00 

68.00 

30.00 

Accordingly, based on the foregoing findings of fact and 

conclusions of law I enter the following: 

ORDER 

1. In CENT 84-3-M: Citation 2091920 is affirmed and a 

penalty of $25.00 is assessed. 

2. In CENT 84-19-M: Citations 2090946, 2090947, and 2090948 

and penalties of $30.00 for each such violation are assessed. 

3. In WEST 84-27-M: Citation 2096998 is affirmed and the 

proposed penalty of $68.00 is assessed. 

4. In WEST 84-28-M: Citation 2096710 is affirmed and a 

penalty of $30.00 is assessed. 

5. Respondent is ordered to pay to the Secretary the sum of 

$213.00 within 40 days of the date of this decision . 

,John 

. 

J. 4ris 

. ~ 

Admini~~~ive Law Judge 
Distribution: 

James H. Barkley, Esq., Office of the Solicitor, U.S. Department 

of Labor, 1585 Federal Building, 1961 Stout Street, Denver, 

Colorado 80294 (Certified Mail) 

Mrs. Izora Southway and Mr. Leroy Belt, Southway Construction 

Company, Inc., 117 White Pine Drive, Alamosa, Colorado 81101 

(Certified Mail) 

/blc 
FEDERAL Mtr.E SAFETY AND HEALTH REVIEW-- ~OMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 12 1984 

PITTSBURGH AND MIDWAY 

MINING CORPORATION 

Contestant 

CONTEST PROCEEDING 

Docket No: WEST 82.-131-R {A) 

: Citation No: 1016965 

v. : Edna Mine 

SECRETARY OF LABOR, : 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Appearances: 

Before: 

DECISION 

John A. Bachman, Esq., The Gulf Corporation, 

Law Department, Denver, CO, for Contestant 

James H. Barkley, Esq., Office of the 

Solicitor, U.S. Department of Labor, 

Denver, CO, for Respondent 

Judge Moore 

During the course of an inspection of applicant's strip 

mine on February 23, 1982, Inspector Horbatko was approached 

by a drill operator and informed that a "slump" had occurred. 

The drill operator expressed some concern for his own safety. 

Inspector Horbatko then went to the area of the spoil 

bank that the driller had indicated and observed conditions 

that indicated to him that a "slump" had occurred. A "slump" 

which was called by several other names during the course 

of the hearing, is a movement in the spoil bank which 

results in some of the material composing the spoil bank sliding 

down the bank towards the bottom of the pit. The word 

"slump" is not used to describe a complete spoil bank failure 

which would be similar to an avalanche. 

A trench at the foot of the spoil bank called a catch 

pit is designed to catch any slumping material and keep it 

from going into the pit area where the mining is being done. 

The inspector testified that a slump does not create a 

hazard unless the sliding material is in such a quantity that 

it fills the catch basin and then overflows out into the 

working area. But the evidence that Inspector Horbatko saw 

together with the concern expressed by the drill operator 

led him to believe that the slump had overflowed the 

catch pit. He considered the slump a hazardous condition 

and re-examined the company's books and found no notation 

that a slump had occurred. 
After some discussion with loading foreman Isenbager, 

the inspector issued a citation charging a violation of 

30 CPR 77.1713(c). That section provides as follows: 

After each examination conducted in accordance 

with the provisions of paragraph (a) of this 

section, each certified person who qonducted all 

or any part of the examination required shall 

enter with ink or indelible pencil in a book 

approved by the Secretary the date and a report of 

the condition of the mine or any area of the mine 

which he has inspected together with a report of 

the nature and location of any hazardous condition 

found to be present at the mine. The book in 

which such entries are made shall be kept in an 

area at the mine designated by the operator to 

minimize the danger of destruction by fire or 

other hazard. 

Foreman Isenbager testified that the slump had in fact 

occurred and that it was of sufficient magnitude to overflow 

the catch pit and spill out on. to the floor of the mine. 

The slump did not occur on February 22 as Inspector Horbatko 

had assumed, but on February 21 after the end of the shift. 

He testified that during the winter months, because of the 

thawing and the freezing, almost all slumps occur around 

5:30 P.M. and after the dragline has advanced one set past 

the area in question 1/. Mr. Isenbager noticed the slump on 

his pre-shift examination on the morning of February 22 and 

had it cleaned up before any other work was done. The slump 

could have possibly occurred during the early morning of 

February 22, but because of the history of slumps at this 

mine during the wintertime, the great probability is that it 

occurred on the previous day. In any event, it occurred 

after one shift ended and before the next shift began. 

No one would have been in the pit at the time of the slump. 

Mr. Isenbager testified that if there had been miners 

working in the pit at the time of the slump he would have 

recorded it as a hazard because of the possibility of injury 

to a miner who might be working near the spoil bank. Inasmuch 

as the slump had already occurred during non-working hours 

however, he could not see that it was a hazardous condition 

that had to be recorded. 

1 

After a dragline has removed as much overburden as 

it can from one location, it is moved to a new location 

further down the pit so that it can remove overburden 

from the area where it had previously been stationed. 

The distance from one location·to another is called 

a set. 

0 ,4 (J ~l 

.:~ '1. tJ u 
During the course of the testimony reference was made 

to exhibits that had been received in evidence in Dockets 

No: WEST 82-131-R and WEST 82-170 which involved the same 

parties in the same mine. (My decision of June 16, 1983 is 

reported at 5 FMSHRC 1146). Applicant's exhibit 1, is a top 

view of the pit area where the slump occurred. The station 

markers - 14 through 20 - are on the highwall side of the 

pit, but the slump involved herein was on the spoil bank 

across the pit from the area between station 16 and station 

17. Applicant's exhibit 2 is a cross-section of a typical 

portion of the pit and it shows the catch pit and how a 

typical slump would fall into the catch pit. 

It is obvious that a slump is not some rare and 

unexpected occurrence 2/ They occur often and the catch pit 

is designed to contaiil"the material. When material overflows 

from the catch pit, a hazard could be created if there were 

a miner in the area to be injured. The question I have to 

decide however, is whether a condition which was not 

hazardous when found and cleaned up must nevertheless be 

recorded in the pre-shift examination book. MSHA argues 

that it needs such information to assist it in ·reviewing the 

ground control plan. It might well be that MSHA does need 

information as to which slumps overflow the catch basin, but 

in my opinion the regulation involved in this case does not 

require that it be recorded. The requirement is that the 

certified person, after making his examination must record 

in the book "the nature and location of any hazardous condition 

found to be present at the mine" (emphasis added) . I interpret 

that to mean that the-condition which must be reported, must 

be hazardous at the time it is found. Unlike a roof fall, 

which may create further hazards, a slump removes the instability 

in the spoil pile and eliminates the hazard. In the instant 

case the hazard had been eliminated before the pre-shift 

examination while no one was in the pit area, I find that 

the regulation in question does not require that a slump 

which occurred between shifts be recorded in the examination 

book. 

The citation is VACATED acz;: icIS?;~ ~' 

2 

Charles C. Moore, Jr. 

Administrative Law Judge 

The company's hearsay objections are rejected because 

not only did Inspector Horbatko corroborate the hearsay 

by visual inspection of the site, but Mr. Isenbager 

furnished an eye-witness report of the existence of the 

report. 

") , .. '~ 'J'. 

f..,; ':i u 
Distribution: 

James H. Barkley, Esq., Office of the Solicitor, U.S. 

Department of Labor, 1961 Stout Street, Denver, CO 80294-

(Certif ied Mail) 

John A. Bachman, Esq., The Gulf Corporation, Law Department, 

1720 So. Bellaire Street, Denver, CO 80222 (Certified Mail) 

/db 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG Pl KE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

Docket No: LAKE 83-8 

A/O No: 11-01845-03507 

v. Zeigler No. 5 Mine 

ZEIGLER COAL COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION 

Rafael Alvarez, Esq., Office of the 

Solicitor, U.S. Department of Labor, 

Chicago, Illinois, for Petitioner 

H. Halbert Woods, Esq., Zeigler Coal 

Company, Des Plaines, Illinois, for 

Respondent 

Judge Moore 

On the evening of May 17, 1982, Inspector Buelow 

entered respondent's mine for the purpose of conducting 

a ventilation inspection. He was accompanied by mine 

management personnel Leroy Johnson and Dan Kroll until 

he got to the dinner .hole just inside the section. From 

there on, Sam Meadows the section foreman accompanied the 

investigating team. They proceeded down the No. 5 entry 

toward the faces and as they proceeded under the last 

check curtain (a pull-through curtain) they saw a 

continuous miner and a shuttle car operating in a crosscut 

to the left of No. 5 entry. There was no line brattice 

directing air to the lef thand crosscut and the cutting 

blades of the miner were inby the rib of No. 5 entry by 

about sixty feet. The crosscut was bolted for forty feet. 

The inspector issued a 104(d) (1) notice with accompanying 

findings of significant and substantial as·well as unwarrantable failure. The.ventilation plan 6alls for a blowing line 

curtain to within twentyfive feet of the face and inasmuch 

as there is no dispute as to the absence of the curtain, 

there is no dispute as to the existence of the violation. 

The dispute is as to the violation's designation as significant 

and substantial and as an unwarrantable failure. 

The general practice in this mine is that the continuous 

miner cuts a crosscut by cutting to a depth of twenty feet 

and then backs out so that the roof bolter can come in. 

The continuous miner then goes to other faces and when it 

.,._ 

') ,"4:1, ·"' :tr l 
comes back to where it started it cuts another twenty feet, 

backs out and then again leaves the area so that the roof 

bolter can come in. Inasmuch as the crosscut on the left had 

been cut almost sixty feet and then bolted for forty feet, 

it was the opinion of the inspector that three different 

twenty foot deep cuts had been made without any air being 

directed into the crosscut. He blamed the section foreman Sam Meadows for allowing this situation to occur. 

He may have made statements to the effect that it was 

not entirely Sam Meadows' fault, but it was Sam Meadows' 

negligence that he attributed to the coal mine operator, 

and it was that negligence that led to the unwarrantable 

failure aspect of the. case,. As to the significant and 

substantial finding, while his methane reading showed 

only 4/lOths of 1%, there was always a chance of hitting 

a methane feeder and without the required ventilation the 

methane concentration could have become high enough to 

cause an explosion if there had been an ignition. 

Section foreman Sam Meadows testified that at the 

beginning of the shift he gave a standard talk on the 

importance of ventilation and of keeping the brattice 

curtains in their proper position. He further testified 

that the continuous miner wa~ cutting a new crosscut on 

the right hand side of the entry, and that before he went 

to the dinner hole for his evening meal he directed the 

miner operator to square up the new crosscut, a procedure 

that would have taken some forty--five minutes. He again 

cautioned the operator and helper to keep their ventilation 

curtain within twentT-f ive feet of the face as they squared 

up. He and a Mr. Crawford, a face man, whose job it was 

to see that a line curtain was available, went to the 

dinner hole and proceeded to eat. Before they finished 

eating, the inspection party showed up at the dinner hole 

and Mr. Meadows sent Mr. Crawford back to the face area 

with instructions to make sure that the ventilation curtains 

were in the proper position. 

The rest of the sequence is the same as that related 

by Inspector Buelow. When they went through the pullthrough curtain they saw the continuous miner working in 

the left hand crosscut with no line curtain directing air 

to the face. Mr. Meadows testified that the operator 

of the continuous miner had not followed his instructions 

and squared up the notch of the new crosscut being driven 

on the right hand side of the entry. He said that the 

miner operator had, without any authority, backed out of 
the crosscut on the right and started mining the crosscut 

on the left. The miner operator and helper were reprimanded 

by Mr. Meadows for failing to carry out his instructions 

and for mining in the left hand crosscut without authorization 

to do so. From the conversation it appeared that the 

miner and helper had deliberately gone into the crosscut, 

knowing that the line curtain was not up, because they 

made some remarks as to not wanting to do Mr. Crawford's 

work while he was sitting in the dinner hole. Mr. Crawford, 

the man they were referring. to had gotten. into a conversation 

with someone after Mr. Meadows had sent him back to the 

face area and he had not reached the continuous miner before 

the inspection party got there. 

I have no reason to doubt Mr. Meadows' testimony. If 

his instructions had been carried out, the continuous miner 

would still have been working in the right hand crosscut 

squaring it up when Mr. Meadows returned from the dinner 

hole. While the left hand crosscut would have been the next 

area to be mined, it had not been mined by any of 

Mr. Meadows' shifts and I can not make the assumption 

that Mr. Meadows would have sent the continuous miner into 

the crosscut without seeing that the appropriate curtains 

were hung. 

I find no negligence on the part of section foreman 

Meadows and I therefore VACATE the unwarrantable finding. 

The violation in my opinion was significant and substantial 

however. The mine liberates 500,000 to 600,000 cubic feet 

of methane per day and while only a small percentage of 

that methane comes from the face areas there is always the 

possibility of a methane build-up if proper ventilating 

techniques are not used. In view of these findings and 

together with the other criteria which have been the 

subject of a stipulation, I consider a $200 penalty to be 

appropriate. 

The Zeigler Coal Company is accordingly ORDERED to pay 

to MSHA, within 30 days, a civil penalty in the amount 

of $200. 

Charles c. Moore, Jr. 

Administrative Law Judge 

'') 1 1 l ,· f.4 L , ) ......... _ ..... 
Distribution: 

Rafael Alvarez, Esq., Office of the Solicitor, U.S. 

Department of Labor, 230 So. Dearborn Street, Chicago, 

IL 60604 (Certified Mail) 

J. Halbert Woods, Esq., Zeigler Coal company, 2700 River 

Road, Des Plaines, IL 60018 (Certified Mail) 

/db 

2441 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

HOMER W. DAVIS, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

ARMCO STEEL CORPORATION, 

Respondent 

: 

Docket No. WEVA 84-118-D 

HOPE CD 8·4- 2 

No. 8 Mine 

DECISION AND ORDER OF DISMISSAL 

Before: Judge Lasher 

This proceeding, which was initiated by the filing with 

the Federal Mine Safety and Health Review Commission of a complaint of discrimination by Mr. Homer W. Davis on February 1, 

1984, arises under section 105(c) of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et seq. (1976 & Supp. 

V 1981), hereinafter "the Act". 

By letter dated January 23, 1984, the Complainant had 

been notified that his complaint of discrimination (filed December 15, 1983) before the Mine Safety and Health Administration (MSHA) had been investigated and the determination made 

that "a violation of section 105(c) had not occurred." Under 

the Act, a complaining miner has an independent right to bring 

a complaint before this Commission and this pr~ceeding is 

based on that right. 

On April 17, 1984, the Respondent filed a Motion to Dismiss alleging inter alia that: 

1. The Complaint was not timely filed, i.e. not 

filed within 60 days "after the alleged October 31, 1980 discriminatory act of Respondent." 

2. The Complaint fails to state a claim recognizable under the Act. 

A preliminary hearing to determine the two issues raised 

by the motion to dismiss was held on the record in Charleston, 

West Virginia, on June 21, 1984, at which Respondent was represented by counsel and Complainant appeared pro ~· 

The reliable and probative evidence of record indicates 

that the Complainant was employed by Respondent, Armco Steel 

Corporation (ARMCO), from October 18, 1979 (Tr. 38) through 

November 15, 1979, on which latter date he voluntarily quit 
to take care of "personal business" in California. On or about 

October 15, 1979, Respondent had received a "Pre-employment" 

Chest X-ray, the results of which were r~ported by J. Dennis 

Kugel, M.D. (Exhibit R-1), and the pertinent portion of which 

provided as follows: 

PA CHEST: The projection is somewhat underexposed. There appears to be a fine nodular 

fibrosis in fairly prominent amount throughout 

the lung fields so that if there is a proper 

history of exposure an Occupational pneumoconiosis should be considered of a UICC-p 2/3 all six 

lung zones. A repeat chest study is suggested 

with some increase in penetration. !/ 

Whether the report of Dr. Kugel indicates occupational 

pneumoconiosis depends on Complainant's having an appropriate 

history of exposure (Tr. 10, 27). This question which goes to 

the merits of the complaint was not resolved in the preliminary 

hearing which was limited to the 2 issues raised in the motion 

to dismiss. However, as noted subsequently, a Workmen's Compensation claim filed by Complainant in 1982 was turned down 

because he had insufficient exposure. 

Sometime in May of 1980, Complainant discussed re-employment with Terry E. Whitt, Respondent's Personnel Relations Representative, and on May 19, 1980, he filed an employment application. He was not rehired. ~/ 

At unspecified times during the period May 1980 into the 

autumn of 1980, conversations took place between Complainant 

and MSHA officials in which it appears that Complainant had 

discussed with MSHA possible discrimination by Respondent in 

not rehiring him (Tr. 20-23). 

Al though not clearly articulated·, Complainant 1 s contention 

of discrimination appears to be that he was not rehired in the 

Spring of 1980 (Tr. 54) because he had pneumoconiosis. He became aware that he had pneumoconiosis on or about October 23, 

1/ The face of the X-Ray report shows it was taken on 10-12-79, 

and "Received" on 10-15-79. Since it was part of Complainant's 

Pre-employment examination, I infer that it is unlikely that 

Complainant would have gone on the payroll prior to Respondent's 

being aware of it. 

'!:_/ At the prehearing conference, Mr. Whitt gave the following 

explanation why Complainant was not rehired: 

"Basically he was under consideration for hire. ·We had 

several other employees, applicants that we had. Mr. Davis 

worked for us for approximately three weeks, and I wasn't quite 

sure whether or not his family problems were through and did 

not know if he was stable or not." (Tr. 17, 18). 

) ,1 A .·· ·-·' · 1. '± lJ 
1981 (Tr. 46, 56). Complainant contends that sometime during 

the period July 26, 1982 - August 9, 1982, he first became aware that when he went to work for Respondent in 1979 that Respondent had evidence that he had pneumoconiosis (Tr. 57, 58). 

On January 27, 1983, Complainant's claim against the West Virginia Workmen's Compensation Fund for pneumoconiosis was turned 

down because he had insufficient exposure to the hazards of 

"occupational pneumoconiosis" during the pertinent 10-year and 

15-year periods. (Court Exhibit 1). The claim itself was filed 

by Complainant on July 26, 1982. In approximately October 1981, 

Complainant sought employment with Kanawha Coal Company. He was 

rejected on the basis of an X-Ray report dated October 23, 1981, 

which indicated pneumoconiosis (Tr. 55). Sometime in 1982, Complainant filed with MSHA a discrimination complaint against 

Kanawha Coal Company which Complainant testified was later withdrawn for reasons which were not delineated at the hearing (Tr. 

61-68). 

The complaint herein was filed on December 15, 1983 (Tr. 

4 3) • 

There is no question but that the complaint was not timely 

filed with the Secretary within the 60-day period prescribed in 

section 105 (c) (2) of the Act. 

The Commission has held that the purpose of the 60-day 

time limit is to avoid stale claims, but that a miner's late 

filing may be excused on the basis of "justifiable circumstances," 

Joseph W. Herman v. IMCO Services, 4 FMSHRC 2135 (December 1982). 

The Mine Act's legislative history relevant to the 60-day time 

limit states: 

While this time-limit is necessary to avoid 

stale claims being brought, it should not be 

construed strictly where the filing of a 

complaint is delayed under ·justifiable circumstances. Circumstances which could warrant the extension of the time-limit would 

include a case where the miner ~ithin the 

60-day period brings the complaint to the 

attention of another agency or to his employer, or the miner fails to meet the time 

limit because he is misled as to or misunderstands his rights under the Act. 

S. Rep. No. 181, 95th Cong., 1st Sess. 36 (1977), reprinted in Senate Subcommittee on Labor, Committee on 

Human Resources, 95th Cong., 2d Sess., Legislative 

History of the Federal Mine Safety and Health Act of 

1977, at 624 (1978) (emphasis added). Timeliness questions must be resolved on a case-by-case basis, taking 

into account the unique ci~cumstances of each situation. 
Here, Respondent's failure to rehire Complainant occurred 

in October 1980, but his complaint of discrimination with the 

Secretary was not filed until December 15, 1983, more than 3 

years beyond the statutory filing deadline. Accepting the 

relevant time factors as presented by Complainant, it appears 

that at least by the end of 1982, he was aware (1) that he had 

pneumoconiosis, (2) that Respondent might have had evidence 

when he was first hired and also when he was subsequently refused re-employment that he had pneumoconio·sis (whether or not 

"occupational" pneumoconiosis), and (3) of his right to bringand the procedure for bringing-a discrimination complaint under the Act against Respondent (Tr. 22, 23). 

The 60-day statutory limitation is not a particularly 

long filing period in view of the lack of sophistication of 

the average Complainant and the complexity of some of the legal 

bases for bringing a discrimination action. On the other hand, 

the placement of limitations on the time-periods during which 

a plaintiff may institute legal proceedings is primarily designed to assure fairness to the opposing party by preventing 

surprises through the revival of claims that have been allowed 

to slumber until evidence has been lost, memories have faded, 

and witnesses have disappeared. The theory is that even if one 

has a just claim it is unjust not to put the adversary on notice to defend within the peribd of limitation and that the 

right to be free of stale claims in time comes to prevail over 

the right to prosecute them. Where, as here, the filing delay 

is remarkably prolonged, it seems a fair proposition to require a proportionately strong and clear justification therefor. 

The lengthy time lapse and sequence of events here mandates the conclusion that Complainant's delay in filing his 

complaint 3/ was not justified and that the complaint was not 

timely filed. 4/ 

ORDER 

Respondent's motion to dismiss is granted and this proceeding is dismissed. 

~ilft ~/2- Michael A. Lasher, Jr. 

Administrative Law Judge 

3/ Cf. Walter A. Schulte v. Lizza Industries, Inc., 6 FMSHRC 

8 (January 1984) (31-day delay}. 

4/ In view of this holding, the question of whether the complaint states a cause of action under the Act is not reached. 

244d 
Distribution: 

Mr. Homer w. Davis, General Delivery, Gordon, WV 25093 (Certified Mail) 

William T. Brotherton III, Esq., Spilman, Thomas, Battle & 

Klostermeyer, 1101 Kanawha Banking & Trust Building, Charleston, 

WV 25301 (Certified Mail) 

yh 

214J 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 t'''j ~,..' . ; 

-: .~ ~ . 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

I. B. ACTON 

GRADY ADERHOLT 

FREEMAN BUTLER 

JAMES L. CAMPBELL 

J. D. ELLENBERG 

W. D. FRANKLIN 

BILLY R. GLOVER 

TERRY PEOPLES 

WILLIAM REID 

CHARLES W. RICKER 

TERRY SHUBERT 

THEODORE TAYLOR 

MARVIN WISE 

CHARLES BLACKWELL 

ROBERT BURLESON 

HOUSTON EVANS 

KENNETH RANDALL COFER, 

Complainants 

UNITED MINE WORKERS OF 

AMERICA (UMWA), 

Intervenor 

v. 

JIM WALTER RESOURCES, INC., 

Respondent 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

Docket No. SE 

SE 

SE 

SE 

SE 

SE 

SE 

SE 

SE 

SE 

SE 

SE 

SE 

MSHA Case No. 

Nebo Mine 

Docket No. SE 

MSHA Case No. 

Docket No. SE 

MSHA Case No. 

Docket No. SE 

MSHA Case No. 

No • 7 Mine 

Docket No. SE 

MSHA Case No. 

Flat Top Mine 

DECISION 

2·150 

84-31-D 

84-32-D 

84-33-D 

84-34-D 

84-35-D 

84-36-D 

84-37-D 

84-39-D 

84-40-D 

84-41-D 

84-42-D 

84-43-D 

84-44-D 

BARB CD 83-18 

84-45-D 

BARB CD 83-27 

84-46-D 

BARB CD 83-28 

84-47-D 

BARB CD 83-31 

84-52-D 

BARB CD 83"-18 
Appearances: Frederick W. Moncrief, Esq., Office of the Solicitor, u. s. Department of Labor, Arlington, Virginia, for Complainants; 

Before: 

Mary Lu Jordan, Esq., Washington, DC, for Intervenor; 

David M. Smith, Esq., Maynard, Cooper, Frierson & 

Gale, P.C., Birmingham, Alabama, and Robert W. 

Pollard, Esq., Jim Walter Resources, Inc., Birmingham, Alabama, for Respondent. 

Judge Melick 

These consolidated cases are before me upon the complaints 

of discrimination by the Secretary of Labor on behalf of 17 miners under the provisions of Section 105(c) (2) of the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. § 801 et seq., the "Act". 

The individual complainants, former surface miners who had been 

laid off during a reduction in force, allege that Jim Walter Resources, Inc. (Jim Walter) discriminated against them in violation of Section 105(c)(l) of the Actl because they had not 

been provided the underground safety training required by section 

1 Section lOSCc)(l) of the Act provides as follows: 

No person shall discharge or in any manner discriminate against or cause to be discharged or cause discrimination against 

or otherwise interfere with the exercise of the statutory rights 

of any miner, representative of miners or applicant for employment in any coal or other mine subject to this Act because such 

miner, representative of miners or applicant for employment has 

filed or made a complaint under or related to this Act, including 

a complaint notifying the operator or the operator's agent, or 

the representative of miners at the coal or other mine of an alleged danger or safety or health violation in a coal or other 

mine, or because such miner, representative of miners or applicant for employment is the subject of medical evaluations and 

potential transfer under a standard published pursuant to section 

101 or because such miner, representative of miners or applicant 

for employment has instituted or caused to be instituted any proceeding under or related to this Act or has testified or is about 

to testify in any proceeding, or because of the exercise by such 

miner, representative of miners or applicant for employment on 

behalf of himself or others of any statutory right afforded by 

this Act. 
115 of the Act.2 The alleged discrimination occurred when 

Jim Walter recalled other miners from the panel lists who had 

terms of company service shorter than those of Complainants but 

who had completed that training. Most of the Complainants also 

allege that Jim Walter is obligated to reimburse them for the 

time and expense involved in subsequently obtaining the undarground safety training during the time when each was laid off. 

Jim Walter does not deny that the Complainants were thus 

bypassed for underground positions at least in part because they 

had not completed the 32 hour required safety training for underground miners at an MSHA-approved course but maintains that these 

decisions were mandated by the terms of the applicable collective 

bargaining agreement (the "Agreement") and in particular by the 

seniority provisions contained in Article XVII of the Agreement. 

Those provisions require as an element of seniority that the miner have the ability to perform the work of the job at the time 

the job is awarded. It is Respondent's position that a miner 

requiring the safety training is not able to perform the work of 

the job at the time the job is awarded. 

The Commission held in Secretary ex rel Bennett, Cox, et al. 

v. Emery Mining Corporation, 5 FMSHRC 1391 (1983), that in enacting section 115, Congress did not restrict the prerogative of the 

mine operators in setting pre-employment qualifications based on 

2 Section 115 states in part: 

(a) Each operator of a coal or other mine 

shall have a health and safety training program which shall be approved by the Secretary. 

• . • Each training program approved by the 

Secretary shall provide as a minimum that -

Cl) new miners having no underground mining experience shall receive no less than 40 hours of 

training if they are to work underground. 

Cb) Any health and safety training provided 

under subsection Ca> shall be provided during 

normal working hours. Miners shall be paid 

at their normal rate of compensation while 

they take such training, and new miners shall 

be paid at their starting wage rate when they 

take the new miner training. If such training shall be given at a location other than 

the normal place of work, miners shall also 

be compensated for the additional costs they 

may incur in attending such training sessions. 

I 
experience or training and that the operator's policy in that 

case of requiring applicants for employment to obtain the 32 

hours of MSHA-approved training prior to being hired did not violate the Act~ 

Within this legal framework it is therefore immaterial whether the affected applicants for employment are "strangers" to the 

industry and the employer, as in the Emery case, or are former 

employees awaiting the possibility of reemployment from a recall 

list, as in the instant case. In either case, pre-employment 

training and experience criteria may be used by the mine operator, including the requirement that prospective underground miners have completed their MSHA-approved safety training, without 

running afoul of the Act. 

It follows then that the mine operator is also free to contract with its employee bargaining unit to require consideration 

of such pre-employment training as an element of seniority. In 

neither case is such criteria discriminatory under the Act. Accord UMWA o.b.o. Shepard v. Peabody Mining Co., 4 FMSHRC 1338 

(1982); but see UMWA o.b.o. Rowe et.al. v. Peabody Coal Co., 6 

FMSHRC 1634 (1984). There is accordingly no need to decide in 

this case whether or not requiring such pre-employment training 

as an element of seniority violates the provisions of Article 

XVII of the collective bargaining agreement. I note however that 

the Respondent's position (that it was obligated under that part 

of the Agreement to give priority in its recall decisions to 

those paneled miners who then had completed the MSHA approved 

safety training because only they had "the ability to step into 

and perform the work of the job at the time the job is awarded") 

was upheld in Arbitration (Joint Exhibit No. 18). 

The second allegation of discrimination before me concerns 

Respondent's failure to pay those miners it recalled for underground positions for the expenses of the training the1 received 

and for comparable wages during that training period. The 

Emery decision is again controlling. It is clear from that decision that since the employer has been made responsible under the 

Act for the costs of such training, it is unlawful under section 

105(c)(l) if, after hiring the Complainants as underground miners, it fails to compensate them for their 32 hours of classroom 

training but relies on that training to satisfy its training obligations under section 115. The Commission concluded in the Emery 

decision that under section 115Cb) the mine operator was required 

to reimburse the Complainants for the cost of their training and 

3 Complainants Acton, Aderholt, Burleson, Butler, Campbell, 

Franklin, Glover, Peoples, Reid, Ricker, Shubert, Taylor, and 

Wise come within this category. 
the equivalent of wages at their starting pay rate for the time 

spent in training. 

Respondent argues that the Emery decision is distinguishable 

in two respects. It first argues that the training required by 

the Emery Mining corporation was a mandatory hiring prerequisite 

for all applicants whereas in the instant case, new miner training was not an absolute, uniform qualification for hiring or recall by Respondent. Respondent argues, secondly, that the Emery 

case involved job applicants who had no previous opportunity to 

obtain new miner training from the operator, whereas, in the instant case, the Complainants' lack of experienced miner status 

was due to previous decisions by the miners to move out of underground positions. 

The thrust of the Emery decision was, however, that the mine 

operator cannot discharge its statutory obligations by obtaining 

the benefit of the requisite safety training without reimbursing 

the miners for the cost of that training. As the Commission 

pointed out, this action circumvented the statutory mandate that 

the mine operators must pay for such training and that this interfered with the miners' rights under section 115. Similarly in 

the case at bar, Respondent relied on the safety training obtained by the individual miners'to satisfy its statutory obligations to provide training for those miners. Accordingly, Respondent too should compensate the recalled miners for that training. 

Emery is not at all distinguishable in this regard. 

I agree, however, with Respondent's position that it was not 

required to reimburse the underground safety training expenses of 

Complainant Cofer who did not return to underground work. In 

keeping with the rationale of the Emery decision that the employer took advantage of unreimbursed training to attempt to comply 

with the training requirements of section 115, it is clear that 

Respondent is not required to reimburse a miner who returns to 

surf ace work where the underground safety training was not required. Respondent did not take advantage of the unreimbursed 

training for underground positions in regard to this employee. 

Mr. Cofer is accordingly not entitled to any reimbursement for 

training which had not been taken advantage of by the Respondent 

in fulfilling its statutory obligations. 

Timeliness of Filing 

As noted, I have found that Respondent did violate section 

105(c)(l) when, after recalling certain Complainants to positions 

as underground miners, it refused to compensate those miners for 

their 32 hours of training but relied on that training to satisfy 

-> ·

1 S1 .Cv 'if . 
its training obligations under section 115. Respondent maintains, however, that ten of the Complainants in this category, 

namely, Acto~, Campbell, Franklin, Glover, Peoples, Reid, Ricker, 

Shubert, Taylor, and Wise filed their complaints beyond the sixty 

day time limit set forth in section 105Cc)(2) of the Act and 

therefore those complaints should be barred. 

If a miner believes that he has suffered discrimination in 

violation of the Act, and wishes to invoke his remedies under the 

Act, he is indeed required under section 105(c)(2), to file his 

initial discrimination complaint with the Secretary of Labor within sixty days after the alleged violation. A miner's late filing 

may be excused however where "justifiable circumstances" exist. 

Herman v. Imco Services, 4 FMSHRC 2135 (1982), Hollis v. Consolidation Coal Company, 6 FMSHRC 21 (1984). 

In the case at bar, it is apparent that the act of discrimination occurred only after the miners were recalled for underground positions and only after Respondent refused to pay the 

training expenses and comparable wages upon demand or upon the 

failure of Respondent to pay such expenses and wages after a reasonable period of time following recall, considering the time 

needed to perform necessary bookkeeping functions for such payments. In the latter case, I conclude that a date 30 days from 

the date of recall constitutes the discriminatory event. 

Within this framework it appears that no more than three 

Complainants may have filed untimely, i.e., Mssrs. Peoples, Shubert, and/or Wise. These miners were all recalled by Respondent 

on November 14, 1983, and therefore should have been reimbursed 

for their training expenses and comparable wages by December 14, 

1983. Since Respondent failed to make such payments by December 

14, 1983, that date became the date of the discriminatory event. 

The miners accordingly should have filed their complaints with 

the Secretary within sixty days thereafter,or by February 12, 

1984. Since the Secretary filed his complaint with the Commission on February 24, 1984, and incorporated therein a complaint 

that the miners had not been reimbursed for their training expenses and comparable wages, it may reasonably be presumed that 

the complaints now at issue had been brought to the Secretary's 

attention at least two weeks before that date. Accordingly, I 

find that the complaints had been timely filed with the Secretary. 

I note in any event that Respondent does not dispute that the issue of nonpayment for training was raised in a timely manner by 

other Complainants and Respondent accordingly cannot deny that it 

had timely notice of the nature of the claim raised. Respondent 

has, moreover, cited no legal prejudice by any filing delay. Under the circumstances, I find that all of the Complainants met 

the filing requirements set forth in section 105(c) (2). 
Disposition of Discrimination Proceedings and Damages 

A. Dockets No. SE 84-35-D, SE 84-45-D, SE 84-47-D, and 

SE 84-52-D 

Inasmuch as Complainants Blackwell, Ellenberg, and Evans 

did not attend any training program for underground miners, they 

incurred no expenses relating thereto. Consistent with my decision herein, they suffered no discrimination and their cases are 

therefore dismissed. For the reasons stated in this decision, 

the complaint of Mr. Cofer is also dismissed. Wherefore case 

Dockets No. SE 84-35-D, SE 84-45-D, SE 84-47-D, and SE 84-52-D 

are hereby dismissed. 

B. Dockets No. SE 84-31-D, SE 84-32-D, SE 84-33-D, 

SE 84-34-D, SE 84-36-D, SE 84-37-D, SE 84-39-D, 

SE 84-40-D, SE 84-41-D, SE 84-42-D, SE 84-43-D, 

SE 84-44-D, and SE 84-46-D 

The complaints of discrimination in the remaining cases before me are denied in part and granted in part in accordance with 

my decision herein. To the extent that the complaints are granted, and based upon the uncontested evidence of expenses and relevant wages, I award the following costs and damaages: 

Names of Miners 

I.B. Acton 

Grady Aderholt 

R. Burleson 

F. Butler 

J.L. Campbell 

W.D. Franklin 

B.R. Glover 

T. Peoples 

W.C. Reid 

C.W. Ricker 

T. Shubert 

T. Taylor 

M. Wise 

Training Expenses 

$ 84.60 

80.80 

128.80 

18.46 

55.00 

32.80 

25 .12 

36.60 

21.12 

61.12 

20.20 

35.00 

4.92 

Comparable Wages 

$438.88 

404.74 

399.94 

399.94 

438.88 

404.74 

404.74 

399.94 

404.74 

438.88 

399.94 

404.74 

399.94 

Total 

$523.48 

485.54 

528.74 

418.40 

493.88 

437.54 

42 9. 86 

436.54 

425. 86 

500.00 

420.14 

43 9. 7 4 

40 4. 86 

Interest is to be computed on the above amounts based upon 

my finding that those amounts were due on the 30th day following 

the recall of each miner and such interest is to be calculated by 

Complainant in accordance with the formula set forth in Secretary 

of Labor o.b.o. Bailey v. Arkansas-Carbona Company and Michael 

Walker, 5 FMSHRC 2042 (1983). Agreement should be reached among 

the parties as to such calculations and such calculations must be 

submitted to the undersigned along with any petition for attorney 
fees within 20 days of the date of this decision. This decision 

is not a final disposition of the cases and no final disposition 

of these cases will be made until such time as the issues of interest and attorneys' fees, if any, are resolved. 

Disposition of Civil Penalty Proceedings 

A. Dockets No. SE 84-35-D, SE 84-45-D, SE 84-47-D, and 

SE 84-52-D 

Inasmuch as I have found no discrimination in the Complaints 

of Mssrs. Blackwell, Cofer, Ellenberg, and Evans, the corresponding civil penalty proceedings are dismissed. Wherefore Civil 

Penalty Proceedings in Dockets No. SE 84-45-D, SE 84-52-D, SE 

84-35-D, and SE 84-47-D are dismissed. 

B. Dockets No. SE 84-31-D, SE 84-32-D, SE 84-33-D, 

SE 84-34-D, SE 84-36-D, SE 84-37-D, SE 84-39-D, 

SE 84-40-D, SE 84-41-D, SE 84-42-D, SE 84-43~0, 

SE 84-44-D, and SE 84-46-D 

The Secretary's representations in the amended complaint for 

civil penalty are not disputed in these cases. In light of the 

clear mandates set forth in the Emery decision (issued August 8, 

1983) that new underground miners must be reimbursed for their 

statutorily required safety training which is taken advantage of 

by the mine operator, I find that Respondent herein should have 

promptly paid those training expenses for the Complainants herein 

who were recalled for underground work. The failure of Respondent to do so in a timely manner warrants not only repayment of 

those expenses and comparable wages plus interest, but also a 

civil penalty appropriate to the relevant criteria under section 

llO(i) of the Act. 

In this regard, I observe that no evidence of prior violations has been presented. The mine operator is large in size. 

The mine operator has not paid for the training expenses or comparable wages noted.herein and accordingly has not yet abated the 

violations. In light of the clarity of the Emery decision on 

this point, it should have done so. Accordingly, Jim Walter 

2457 
Resources will be directed to pay a civil penalty of $50.00 in 

each of the cases in this category t the time of final disposition of these proceedings. 

Distribution: 

Frederick W. Moncrief, 

partment of Labor, 4015 

(Certified Mail> 

aw Judge 

q., Office of the Solicitor, U. S. Deilson Boulevard, Arlington, VA 22203 

Mary Lu Jordan, Esq., United Mine Workers of America, 900 - 15th 

Street, NW, Washington, DC 20005 (Certified Mail) 

David M. Smith, Esq., Maynard, Cooper, Frierson & Gale, P.C., 

1200 Watts Building, Birmingham, AL 35202 (Certified Mail) 

Robert W. Pollard, Esq., Jim Walter Resources, Inc., P. 0. Box 

C-79, Birmingham, AL 35283 (Certified Mail) 

/nw 
FEDERAL MtNE SAFETY AND HEALTH REVIE~ COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 1 7 198.t 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BIGELOW LIPTAK CORPORATION, 

Respondent 

DECISION 

Docket No: CENT 84-24-M 

A/O No: 41-00010-055 03 W24 

Capitol Cement Plant 

Appearances: Jack F. Ostrander, Esq., Office of the 

Solicitor, U.S. Department of Labor, 

Dallas, Texas, for the Petitioner 

Laurel D. Breitkopt, for the Respondent 

Before: Judge Moore 

Bigelow Liptak Corporation is a construction company 

and at the time of the events involved in this case, it was 

engaged in the construction of a large vessel for the 

Capitol Cement Company. Bigelow Liptak stipulated that it 

was covered by and subject to the Federal Mine Safety and 

Health Act of 1977. 

The company's specific task was to lay the brick and 

add gunnite to the inside of the steel vessel. Respondent's 

exhibit 2 was a drawing of the vessel but it was neither to 

scale nor is it accurate in the measurements shown. */ 

The tubular vessel with a cone-shaped lower part is used in 

the manufacture of cement. At the time of the inspection 

involved herein, respondent had already laid the brick, and 

had completed the spraying of the gunnite, a stucco-like 

cement mixture, and was engaged in cleaning up the gunnite 

that had bounced off the walls and fallen into the lower. 

part of the conical vessel. Inspector Lilley said he entered 

the vessel through the port depicted on the right hand side 

of respondent's exhibit 2 and that he saw workers on two 

levels below him. On his level there was at least one 

worker and the scaffolding consisted of loose boards laid 

* 

The court reporter states that the exhibits were mailed with 

the transcript. This office has no record that they were 

received. I am attaching a drawing that is consistent with my 

recollection. If this decision is appealed, the parties 

will have to resubmit the exhibits for the Commission. 

2 1 ~~ .. ;i -v '1. f._; tJ 
~ rlil'fMll t11n/(1':f./I I)~ ~--- - --·---·-··----····--------·-- ---- -~·-· .... 

R li,ffllNIJJtNT's fZ-Y1+1e1r :i- Ffl/n 

f1R11tJ7. 

24GO 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W_ COLFAX AVENUE. SUITE 400 

DENVER. COLORADO 80204 n CT i. --;--· 1984 

TERRY D. DAVIS, 

Complainant 

v. 

CANYON VALLEY ELECTRIC CO., 

Respondent 

DISCRIMINATION PROCEEDING 

Docket No. KEST 83-97-DM 

MSHA Case No. MD 82-14 

Logan Wash 

DECISION APPROVING SETTLEMENT 

Before: Judge Carlson 

The parties, through counsel, have filed a stipulation and 

other documents which would settle all matters at issue in this 

discrimination proceeding. 

At the center of the settlement is an agreement by the 

respondent to pay a sum of money to complainant in return for a 

full release of all claims arising out of respondent's employment 

and discharge of complainant. 

I conclude that the proposed settlement should be approved 

in all respects. Accordingly, the settlement is approved. 

Respondent shall pay the agreed sum within 30 days of the date of 

this decision, with each party to bear its own costs. This 

proceeding is dismissed with prejudice. 

SO ORDERED. 

Administrative Law Judge 

Distribution: 

Richard A. Brown, Esq., 484-1/2 28 1/2 Road, Grand Junction, 

Colorado 81501 (Certified Mail) 

Richard T. Casson, Esq., Sharp & Black, 401 Lincoln Avenue, P.O. 

Box 774608, Steamboat Springs, Colorado 80477 (Certified Mail) 

/blc 
fEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 OCT 17 1984 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

Docket No. PENN 84-20 

A.C. No. 36-03425-03543 

v. 

Maple Creek No. 2 Mine 

U.S. STEEL MINING CO., INC., 

Respondent 

Appearances: 

Before: 

DECISION 

Thomas A. Brown, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania, for Petitioner; 

Louise Q. Symons, Esq., U.S. Steel Mining Co., 

Inc., Pittsburgh, Pennsylvania, for Respondent. 

Judge Kennedy 

On May 24, 1984, the trial judge entered a tentative 

bench decision vacating the S&S finding and rejecting MSHA's 

claim that the roof cited in the captioned citation was 

inadequately supported (Tr. 121-122). At the same time, the 

trial judge cound that because the roof was not bolted to 

plan there was a technical violation of the approved roof 

control plan. A penalty of $150 was assessed for the 

violation found. 

In response to an order to show cause why the tentative 

decision should not be adopted as the final disposition in 

this matter, the operator moved to vacate the tentative 

decision. The ground assigned was that the roof control 

plan did not apply to the roof in the area cited and/or that 

the area cited was bolted before the effective date of the 

requirement for a roof control plan. After the matter came 

on for oral argument on MSHA's opposition to vacation of the 

bench decision, the parties agreed to settle the matter 

provided the trial judge would modify his decision so as to 

delete the finding of a technical violation of the roof 

control plan and substitute therefor a finding that the 

violation was a result of the operator's failure to control 

adequately the roof in the area cited. This in turn would 

be predicated on evidence which showed that because the 

operator initially chose to install bolts on four-foot 

centers the absence of such a bolting pattern established 

a failure to adequately control the roof in that area, a 

violation of the first sentence of 30 C.F.R. 75.200. 

•)11C'? 

..... -:tu......, 
Accordingly, it is ORDERED that as so modified the 

bench decision be, and hereby is, CONFIRMED AND ADOPTED as 

the final decision in this matter. It is FURTHER ORDERED 

that the operator pay the amount of the penalty assessed 

and agreed upon, $150, on or befo Friday, October 26, 1984. 

Distribution: 

Thomas A. Brown, Esq., Office of the Solicitor, U.S. Department of Labor, 3535 Market St., Philadelphia, PA 19104 

(Certified Mail) 

Louise Q. Symons, Esq., U.S. Steel Mining Co., 

600 Grant St., Rm. 1580, Pittsburgh, PA 15230 

Mail) 

/ejp 

Inc., 

(Certified 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCTJ.81984 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE ·SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

Docket No. PENN 84-175 

A.C. No. 36-07556-03501 

v. 

Faust and Miller Breaker 

FAUST AND MILLER COAL COMPANY,: 

Appearances: 

Before: 

Respondent 

ORDER OF DISMISSAL 

Mark V. Swirsky, Esq., Office of the Solicitor, U.S. Department of Labor, Philadelphia, Pennsylvania, for Petitioner; 

W. J. Krencewicz, Esq., Shenandoah, Pennsylvania, for Respondent. 

Judge Melick 

At hearing, Petitioner requested approval to withdraw 

his Petition for Civil Penalty in the captioned case for the 

reason that there is insufficient evidence to support the 

citation and order therein. Under t circumstances, permission to withdraw is granted. 29 R § 2700.11. The case 

is therefore dismissed. 

'w Judge 

Distribution: 

Mark v. Swirsky, Esq., the Solicitor, U.S. Department of Labor, 144 0 Gateway Building, 3535 Market 

Street, Philadelphia, PA 19104 (Certified Mail) 

W.J. Krencewicz, Esq., 24 West Centre Street, Shenandoah, PA 

17976 (Certified Mail) 

nw 

24-61-
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE OCT 181984 

FALLS CHURCH, VIRGINIA 22041 

LOCAL UNION 1609, DISTRICT 2, 

UNITED MINE WORKERS OF 

AMERICA (UMWA) , 

Complainant 

v. 

GREENWICH COLLIERIES, 

DIVISION OF PENNSYLVANIA 

MINES CORPORATION, 

Respondent 

COMPENSATION PROCEEDINGS 

Docket No. PENN 84-158-C 

Order No. 2254681; 2/16/84 

Docket No. PENN 84-159-C 

59 Orders of Withdrawal 

Greenwich Collieries No. 1 

SUMMARY DECISIONS 

Before: Judge Koutras 

Statement of the Case 

These consolidated proceedings concern two complaints 

filed by the complainants against the respondent pursuant to 

section 111 of the Federal Mine Safety and Health Act of 1977, 

seeking compensation for miners at the respondent's Greenwich 

Collieries No; 1 Mine. The cases are before me for a ruling 

on the respondent's Motions for Summary Decision, filed pursuant 

to Commission Rule 64, 29 C.F.R. § 2700.64. Complainant's have 

filed oppositions to the motions, and based on the pleadings 

filed by the parties, the facts which prompted the complaint 

follow below. 

On February 16, 1984, at approximately 5:00 a.m., an 

explosion occurred at the Greenwich No. 1 Mine. Subsequently, 

that same day, at 7:00 a.m., an MSHA inspector issued 

Order No. 2254355, pursuant to section 103(j) of the Act 

(Exhibit 1 attached to respondent 1 s Motion for Summary Decision). 

This Order was subsequently modified by another MSHA inspector 

from a 103(j) to a 103(k) Order at 2:00 p.m., that same day 

(Exhibit 2 attached to respondent's motion). This order 

applied to the entire mine, and prohibited anyone from entering 

the mine other than federal and state inspectors, UMWA 

representatives, and company officials. The 103 order thus 

idled all miners scheduled to work at the mine, and on its 

face, states as follows: 

') :l (~ r - .. u\J 
A methane ignition and/or explosion has occurred 

at approximately 5:00 a.m. in and around the 

active D-5 (037) working section. Three miners 

who were working in the D-3 section are not 

accounted for. The following persons are permitted 

to enter or remain in the mine for the purpose 

of rescue operations. State and MSHA officials, 

company officials, and UMWA personnel who are 

necessary to conduct the rescue operations. 

At 10:15 a.m., on February 16, 1984, the same inspector 

who issued the modified section 103(k) order issued Withdrawal 

Order No. 2254681, pursuant to section 107(a) of the Act~ 

This order applied to the entire mine, and the condition or 

practice shown on the face of the order states as follows: 

An underground mine explosion has occurred in 

this mine. This Order is issued to assure the 

safety of any persons in the mine until an 

examination is made to determine if the entire 

mine is safe. 

The section 107(a) order required the withdrawal of all 

miners from the mine except those referred to in section 104(a). 

On March 20, 1984, the mine was still idled, and MSHA 

commenced a "Safety and Health (Saturation) (AAB) Inspection" 

of the entire mine on that day. As a result of that inspection, 

MSHA inspectors issued 59 withdrawal orders pursuant to 

section 104(d) (1) of the Act. 

At the time of the filing of both complaints, the 

complainant indicated that it was incapable of listing every 

coal miner affected by the section 107(a) order or the 59 orders, 

or the exact dollar amount claimed under section 111 of the 

Act, but that a prompt effort would be made to obtain this 

information through the available discovery procedures. 

Arguments Presented bt the Parties 

In its complaint filed in Docket No. PENN 84-158-C, the 

complainant states that it "anticipates that the final results 

of MSHA's inspections and investigation will reveal that 

the conditions which led to the issuance of the imminent 

danger order of February 16, 1984, were caused by the operator's 

failure to comply with mandatory safety standards." Complainant 

seeks compensation under section 111 of the Act for each of 

the miners idled as a result of this order, up to one week's 

compensation at his or her regular rate of pay. Complainant 

also seeks interest at 20% per annum, and reimbursement for 

attorney fees in connection with the claimed compensation. 

2:1G6 
In its answer to the complaint, the respondent denies 

that the conditions which led to the issuance of the irruninent 

danger order of February 16, 1984, were caused by the operator's 

failure to comply with mandatory safety standards. Respondent 

also denies that the idled miners are entitled to the claimed 

compensation, and asserts that the complainant has no right 

to obtain reimbursement for attorney's fees. 

In support of its summary decision motion, the respondent 

asserts that its exhibits demonstrate that the miners who 

seek a week's compensation were idled by the section 103(j) 

order, and therefore cannot rely on this order in seeking a 

week's compensation because the relevant provision in section 111 

of the Act makes that remedy available only when miners are 

idled by certain orders issued pursuant to sections 104 and 107, 

and not pursuant to section 103. 

Although recognizing that MSHA subsequently issued a 

section 107(a) order, the respondent maintains that this 

order cannot trigger a week's compensation because it had no 

idling effect. Respondent points out that by the time MSHA 

issued the 107(a) order, the miners had already been idled 

by the 103(j) order, which had closed the entire mine. 

Respondent concludes that the 107(a) order closed no additional 

areas or operations and therefore had no effect on the work 

status of the miners. 

Respondent maintains that the pleadings also demonstrate 

that the second condition found in section 111 of the Act 

for obtaining one week's compensation has not been satisfied 

in that the 107(a) order on which the complainant relies 

does not charge the respondent with "a failure of the operator 

to comply with any mandatory health or safety standards," nor 

does the order even hint at any such violation. Respondent 

also points out that the 103(j) and 103(k) orders likewise 

show no hint of any violations. Respondent cites a c~se 

interpreting section 111 and its predecessor, section 110 

of the Federal Coal Mine Health and Safety Act, which it claims 

held that whether miners are entitled to a week's compensation 

must be determined by the text of the order. E.g., UMWA, Local 1993 

v. Consolidation Coal Co., 8 IBMA 1 (1977) (compensation'must 

be determined "under terms of the closure order as issued"). 

In support of its opposition to the summary decision 

motion, the complainant maintains that the fact that the MSHA 

inspector did not allege a violation of a particular health 

or safety standard at the time he issued the section 107(a) 

order should not, in this case, preclude the miners from 

obtaining a week's compensation under section 111. Complainant 

argues that the inspector's main concern in issuing an irruninent 
danger order is to insure the protection of the miners by 

requiring their immediate removal, or, where miners are 

already withdrawn, to insure that they do not reenter the 

mine until the imminent danger has subsided. In the event 

of an explosion or accident, MSHA's typical response is to 

issue immediate orders giving themselves the ability to 

protect lives, avoid the destruction of evidence and, where 

necessary, supervise the rescue and recovery efforts. In many 

such cases, asserts the complainant, the conditions that 

existed at the time of the explosion, and which may have 

contributed to it, will not be determined until after an 

investigation. Although orders are issued, and miners are 

idled at the time the explosion occurs, citations relating 

to the explosion are not issued until months later. 

Complainant asserts that on many occasions, the inspectors 

will be able to readily determine that a violation of a 

mandatory health or safety standard caused the imminent danger, 

and will presumably cite the violation on the face of the 

order. In other situations like the instant proceeding, it 

may be difficult, if not impossible, for MSHA to determine 

the existence of violations at the time the order is issued. 

Complainant concludes that this should not deprive the miners 

of the compensation to which they would otherwise be entitled. 

Complainant points to the fact that section 107(a) 

explicitly provides that the issuance of an imminent danger 

order does not preclude a subsequent citation under section 104 

for the violations which precipitated the imminently dangerous 

condition. Complainant argues that in enacting section 107(a), 

Congress expressed its awareness that the causes of an 

explosion or other emergency conditions requiring the immediate 

withdrawal of miners from the mine might not become apparent 

until well after the closure order is issued. Complainant 

concludes that if a subsequent section 104 citation issued 

pursuant to section 107(a) does describe violations which 

caused the imminently dangerous condition, then the elements 

of section 111 have been satisfied and compensation should be 

awarded. 

Complainant argues that since the explosion was the 

condition which prompted the issuance of the imminent danger 

order upon which the compensation claims are based, the miners 

should not be penalized because that explosion which prompted 

the issuance of the order also prevented MSHA from immediately 

determining which violations may have caused or contributed 

to the explosion. Complainant maintains that to deny miners 

compensation on this basis would serve to reward those operators 

who have allowed the most dangerous conditions to develop in 

their mines. 
Complainant argues further that allowing a mine operator 

to escape liability under section 111 on the basis of the 

respondent's-narrow and technical interpretation, would be 

contrary to the mandate of Congress that the Act be construed 

liberally to further its primary purpose, the protection of 

miners. Citing the legislative history of the Act, complainant 

asserts that the Congressional drafters of section 111 viewed 

it as "a remedial provision which also furnishes added 

incentive for the operator to comply with the law." Complainant 

concludes that requiring the respondent to pay up to one 

week's compensation in this case best comports with the 

Congressional intent behind section 111. 

In response to the respondent's arguments that the miners 

had already been idled by the section 103(k) order by the time 

the inspector issued the section 107(a) order, complainant 

asser~s that it is well-settled that miners are considered 

idled, for purposes of section 111, by the issuance of a 

section 107(a) order, regardless of the fact that they may 

have been previously withdrawn from the mine, and regardless 

of whether the prior removal resulted from a vol~ntary action 

on the part of the operator or whether it resulted from the 

issuance of an earlier withdrawal order. UMWA District 31 v. 

Clinchfield Coal Co., 1 MSHC 1668 (1978); UMWA Local 2244, 

District 5 v. Consolidation Coal Co., 1 MSHC 1674 (1978); 

Roscoe Page v. Valley Camp Coal Co., 1 MSHC 1394 (1976); 

and Peabody Coal Co. v. Mineworkers, 1 MSHC 2220 (1979). 

Finally, complainant argues that on the facts of the 

instant case, the condition that caused the idling of the miners 

was the explosion. Since the explosion is the same condition 

that led to the issuance of the section 107(a) imminent danger 

order, complainant concludes that it provides a nexus sufficient 

to justify compensation under section 111, and that if the 

violations had been issued simultaneously with the section 

107(a) order, the idled miners would have been entitled to up 

to one week's compensation. Complainant concludes further 

that allowing an operator to escape liability in those situations 

where the violations leading to the order are detected after 

the order's issuance, removes a powerful incentive to comply 

with the law. Such.an approach, maintains complainant, serves 

to reward those operators who, by their failure to comply 

with the law, create the most extreme forms of an imminently 

dangerous situation: an explosion leading to a shutdown 

of the entire mine. 

In Docket No. PENN 84-159-C, the complainant asserts 

that the violations which led to the issuance of the 59 orders 

were independent and separate from any violations which may 

have contributed "to the events which closed the mine on 

February 16, 1984." Complainant also asserts that but for 

these violations, the mine would have reopened upon abatement 

of the violations, and that as a result of these violations 

the reopening of the mine was delayed by several weeks. 

2469 
The respondent denies that any alleged violations which 

prompted the orders existed, and it asserts that it has filed 

Notice of Contests "over a majority of those orders," and 

that the contests are Still pending. 

The complainant maintains that in accordance with section 111 

of the Act, each of the miners idled as a result of the 59 

withdrawal orders issued during the inspection of the mine 

initiated on March 20, 1984, is entitled to up to one week's 

compensation at his or her regular rate of pay, such 

compensation being apart from and in addition to any 

compensation received under section 111, for the withdrawal 

order issued on February 16, 1984, pursuant to section 107(a) 

of the Act. The complainant also asserts that each miner 

idled by the orders is entitled to interest on the amount 

of compensation claimed at the rate of 20% per annum, and 

to reimbursement for the attorney's fees incurred in obtaining 

said compensation. 

In support of its Motion for Summary Decision, the 

respondent asserts that section 111 of the Act makes it clear 

that the compensation sought by the complainant is available 

only if (1) the withdrawal order that idles the miners is 

issued under section 104 (30 U.S.C. § 814) or section 107 

(30 U.S.C. § 817), and (2) the order is issued "for a failure 

of the operator to comply with any mandatory health or safety 

standards." 

The respondent maintains that the pleadings and its 

exhibits demonstrate that the miners who seek a week's 

compensation were idled by the section 103 order issued on 

February 16, 1984, and that none of the 59 withdrawal orders 

issued between March 20 and April 16, 1984, had any idling 

effect due to the existence of the February 16, 1984, section 

103(k) order. Respondent argues that the complainant cannot 

rely on this section 103 order in seeking a week's compensation 

because the relevant provision in section 111 of the Act 

makes that remedy available only when miners are idled by 

certain orders issued pursuant to sections 104 and 107, and not 

pursuant to section 103, as was the case here. 

The respondent asserts further that the pleadings also 

demonstrate that the second condition found in section 111 

for obtaining one week's compensation has not been satisfied 

in that the respondent has denied that violations existed 

which led to the issuance of the orders. Since it has contested 

a majority of the orders through the filing of Notices of 

Contests, which are still pending, the respondent concludes 

that the validity of the orders has not been finally determined 

and that the prerequisite for the award of one week's pay 

under section 111 has not been met. 
In its opposition to the summary decision motion, 

complainant again reiterates that for purposes of section 111, 

miners are considered idled regardless of the fact that 

they may have been previously withdrawn from the mine. 

Complainant cites the same cases previously cited in opposition 

to the motion filed in Docket No. PENN 84-158-C, in support 

of its arguments, including the previously cited legislative 

history references. 

Complainant again reiterates that the explosion triggered 

the idling of the miners on February 16, 1984, and that but 

for the conditions which led to the issuance of the 59 --

withdrawal orders, the mine would have reopened in March 1984. 

Quoting from the Commission's decision in Mine Workers, 

District 17 v. Eastern Associated Coal Co., 2 MSHC 1296, 

1298-1299 (1981), complainant asserts that because "withdrawal 

situations can arise involving . . complicated sequences 

of events or concurrent operations of causative factors," the 

nexus between a withdrawal order and the miners' idlement 

should be examined on a case-by-case basis. In support of 

this argument, complainant cites the following language from 

this case: 

[W]here a work stoppage due to safety concerns 

precedes an order and is occasioned by the 

same exigent or emergency conditions leading 

to the order, compensation may be justified to 

effectuate those safety purposes. Id. at 1299. 

Finally, complainant states that it is curious that the 

respondent should argue that because it denies having 

committed any of the violations which may have precipitated 

the issuance of the imminent danger order, summary decision 

should be awarded in its favor. Complainant's view is that 

this assertion by the respondent raises genuine issues of 

material fact, which, under the summary decision provisions 

of 29 C.F.R. § 2700.64(b) (1), precludes the granting of the motion. 

Discussion 

The first three sentences of § 111 of the Act provides 

in pertinent part as follows: 

[l] If a coal or other mine or area 

of such mine is closed by an order issued 

under section 103, section 104, or section 

107, all miners working during the shift 

when such order was issued who are idled 

by such order shall be entitled, regardless 

of the result of any review of such order, 

to full compensation by the operator at 

their regular rates of pay for the period 

24 ~? l 
they are idled, but for not more than the 

balance of such shift. [2] If such order 

is.not terminated prior to the next working 

shift, all miners on that shift who are idled 

by such order shall be entitled to full 

compensation by the operator at their regular 

rates of pay for the period they are idled, 

but for not more than four hours of such 

shift. [3] If a coal or other mine or area 

of such mine is closed by an order issued under 

section 104 or section 107 of this title for 

a failure of the operator to comply with any 

mandatory health or safety standards, all miners 

who are idled due to such order shall be fully 

compensated after all interested parties are 

given an opportunity for a public hearing, 

which shall be expedited in such cases, and 

after such order is final, by the operator for 

lost time at their regular rates of pay for such 

time as the miners are idled by such closing, or 

for one week, whichever is the lesser. 

Section 103(j) provides: 

In the event,of any accident occurring in 

any coal or other mine, the operator shall 

notify the Secretary thereof and shall take 

appropriate measures to prevent the destruction 

of any evidence which would assist in investigating 

the cause or causes thereof. In the event of 

any accident occurring in a coal or other mine, 

where rescue and recovery work is necessary, the 

Secretary or an authorized representative of 

the Secretary shall take whatever action he 

deems appropriate to protect the life of any 

person, and he may, if he deems it appropriate, 

supervise and direct the rescue and recovery 

activities in such mine. 

Section 103(k) states: 

In the event of any accident occurring in a 

coal or other mine, an authorized representative 

of the Secretary, when present, may issue such 

orders as he deems appropriate to insure the 

safety of any person in the coal or other mine, 

and the operator of such mine shall obtain the 

approval of such representative, in consultation 

with appropriate State representatives, when 

feasible, of any plan to recover any person in 

such mine or to recover the coal or other mine 

or return affected areas of such mine to normal. 
Section 107(a) provides: 

If, upon any inspection or investigation 

of a coal or other mine which is subject to 

this Act, an authorized representative of the 

Secretary finds that an imminent danger exists, 

such representative shall determine the extent 

of the area of such mine throughout which the 

danger exists, and issue an order requiring 

the operator of such mine to cause all persons, 

except those referred to in section 104(c), to 

be withdrawn from, and to be prohibited from 

entering, such area until an authorized representative of the Secretary determines that 

such imminent danger and the conditions or 

practices which caused such imminent danger no 

longer exist. The issuance of an order under this 

subsection shall not preclude the issuance of a 

citation under section 104 or the proposing of 

a penalty under section 110. 

The facts presented in the instant proceedings are 

similar to those presented in Local Union 1889, District 17, 

UMWA v. Westmoreland Coal Company, WEVA 81-256-D, summarily 

decided by Judge Steffey on April 28, 1982, 4 FMSHRC 773 

(April 1982). An explosion occurred inside Westmoreland's 

mine early on the morning of November 7, 1980. When it became 

aware of this explosion, the company withdrew the miners 

working on the 12:01 a.m. to 8:00 a.m. shift. At 7:30 a.m., 

an MSHA inspector issued a§ 103(j) withdrawal order. One 

half hour later, at 8:00 a.m., an inspector issued a§ 107(a) 

imminent danger withdrawal order which stated: 

All evidence indicates that an ignition of 

unknown sources has occurred and five 

employees cannot be accounted for. 

On December 10, 1980, after rescue operations had been 

completed, both orders were modified to show that the area 

of the mine affected by the orders was limited to sealed portions 

of the mine, and the orders remained in effect. The miners 

who were withdrawn from the mine 'during the 12:01 a.m. to 

8:00 a.m. shift on November 7, were paid their entire shift, 

and miners who were expected to work the November 7 day shift 

(8:00 a.m. to 4:00 p.m.), were paid four hours of compensation 

under section 111. 

Following its investigation into the explosio~ MSHA 

issued thirteen§ 104(d) (2) orders to Westmoreland on July 15, 

1982, and they were based on statements taken during the 

2 ~ ,,, ') :1 I tJ 
investigation. Westmoreland contested all thirteen orders, 

and they were subsequently consolidated with several civil 

penalty prqposals filed by MSHA, and assigned to Judge Steffey 

for adjudication. On May 4, 1983, Judge Steffey vacated 

all 13 orders on the ground that they were erroneously 

issued, but left intact the alleged violations for consideration 

on the merits in the civil penalty cases. Thereafter, 

on motion by the parties, Judge Steffey approved a settlement 

disposition of the. cases on May 11, 1984, 6 FMSHRC 1267. 

In its complaint filed with Judge Steffey, the Union 

alleged that the "imminent danger" that existed on November 7, 

and which led to the issuance of the two order&was caused 

by Westmoreland's failure to comply with mandatory safety 

and health standards. Thus, under the third sentence of 

§ 111, the Union claimed that each miner was entitled to 

up to one week's compensation based on the imminent danger 

order. The Union subsequently filed an amended complaint 

seeking limited compensation for both the§ 103(j) and § 107(a) 

orders under the first two sentences of § 111, and repeated 

its original claim for a week's compensation under the third 

sentence of § 111. 

Judge Steffey ruled that the miners were entitled to 

compensation for the remainder of the shift on which the 

§ 103(j) order was issued and for four hours of the next 

working shift. He denied the Union's request for one week's 

compensation based on the § 107(a) order because the order 

did not allege a violation of a mandatory health or safety 

standard. He also d~nied the Union's request to retain 

jurisdiction of the case until MSHA had completed its 

investigation of the explosion. The Union had apparently 

believed that upon completion of its investigation, MSHA 

would then terminate the § 107(a) order either with or without 

modifying it to allege a violation of a mandatory health or 

safety standard. 

On appeal, the Commission let stand Judge Steffey's 

rulings concerning the Union's claims to compensation 

concerning the§ 103(j) order, but vacated his order dismissing 

the Union's claim for a week's compensation and remanded 

the case with instructions to hold the record open as to 

this claim. 'In its remand decision, the Commission stated 

as follows at 5 FMSHRC 1413, August 12, 1983: 

We express no view about whether these 

thirteen 104(d) (2) orders or any later 

modification of the 107(a) Order may 

provide the basis for a week's compensation 

2 . .,~···1 /1 i (_ 
under the third sentence of section 111. 

We also do not reach the legal arguments 

raised by Westmoreland concerning 

whether the imminent· danger order. as 

issued must contain an allegation of a 

violation for purposes of section 111 

compensation. All of these questions 

on the merits of the Union's claim are 

appropriate for resolution in the first 

instance by the judge. 

* * * 

*** The case is remanded to the judge 

with instructions to hold the record open 

as to the Union's claim for a week's compensation. The parties are free to submit 

any appropriate motions or showings. If 

the Union fails to make appropriate showings 

upon the completion of MSHA's investigation, 

Westmoreland may file an application for a 

show cause order to determine if the claim 

should be dismissed. The judge's resolutions 

of the Union's other claims are final, since 

no review was taken as to those aspects of 

his decision. 

Following the Commission's remand, Judge Steffey issued 

a second summary decision on September 24, 1984. He denied 

the Union's claim for up to one week of compensation for 

the§ 107(a) order on the ground that the miners were initially 

idled and withdrawn from the mine by the§ 103(j) order and 

not by the§ 107(a) order. Judge Steffey observed that the 

Union could not and did not establish that any miners were 

withdrawn or idled by a § 107(a) order, and at page 11 of 

his slip decision stated as follows: 

Assuming that UMWA could show that miners 

were withdrawn by the § 107(a) order, MSHA 

has terminated the 107(a) order without modifying 

it in any way to reflect that the imminent 

danger occurred because of Westmoreland's failure 

to comply with any mandatory health and safety 

standards. Although MSHA's investigation resulted 

in the issuance of 13 withdrawal o~ders pursuant 

to § 104(d) of the Act, citing alleged violations 

of the mandatory health and safety standards, 

those orders cannot be said to allege violations 
as part of an imminent-danger order because 

they could not have been issued in the first 

instance without a finding that the violations 

cited in the orders did not cause an imminent 

danger. 

Findings and Conclusions 

PENN 84-159-C 

The facts here show that on February 16, 1984, after 

the explosion had occurred, the mine was shut down and the 

miners were idled by the issuance of the § 103(j) order 

which later that same day was modified to a§ 103(k) order. 

Thus, the effect of these two initial orders was to idle 

all miners scheduled to work at the mine. Later that 

same day, a§ 107(a) imminent danger order was issued, 

and it was obviously intended to maintain the status quo 

and to prohibit anyone from entering the mine until it 

could be examined to determine whether it was safe. The 

mine remained idle until April 17, 1984, when according to 

the complainant, general work and limited production of coal 

resumed. During the interim, from the date of the explosion 

until it was reopened, MSHA had control of the mine and 

was conducting an investigation of the explosion, as well 

as a mine inspection which began on or about March 20, 1984. 

During the course of that inspection, MSHA issued 59 

§ 104(d) (1), withdrawal orders, and the record reflects 

that they were all issued during the period March 20 to 27, 

1984. 

Complainant asserts that the violations which led to 

the issuance of the 59 withdrawal orders "were independent 

and separate from any violations which may have contributed 

to the events which closed the mine on February 16, 1984," 

and that but for the conditions that led to the issuance 

of the 59 orders, the mine would have reopened in March. 

Complainant concludes that since these 59 orders closed the 

mine for several more weeks, the idled miners are entitled 

to compensation under § 111. 

After careful review of all of the arguments presented 

by the parties in support of their respective positions, I 

concl~de and find that for purposes of compensation due 

under § 111 of the Act, the miners in question were idled 

by the issuance of the § 103 and § 107 orders on 

February 16, 1984. The 59 § 104(d) orders were issued over 

a month later, and at that time the mine was still closed, 

and the miners were still idled by the previously issued 

• • .4 ...... e r.::.,•.t ( u 
orders. I take note of the fact that some of the orders 

affected on_ly equipment, one cited an unsanitary toilet, 

and all of them indicated that "no area" of the mine was 

affected. This notation is obviously due to the fact that 

the mine had already been idled by the § 103 and § 107 orders. 

Even if I were to accept the complainant's assertion that 

the mine would have reopened had the 59 orders not issued, 

compensation for one week's pay still would not lie because 

the previously issued § 103 orders idled the mine, and it 

stayed in that posture until it reopened. Section 111 

simply does not provide compensation for one week's pay 

for orders issued pursuant to § 103. The third sentence 

of § 111 makes it clear that the compensation sought is 

only provided in the event of closure orders pursuant to 

§ 104 and § 107 for failure to comply with any mandatory 

health or safety standards. Here, the mine had been idled 

by § 103 orders for at least thirty days before the § 104 

orders issued. The question of compensation rights pursuant 

to the§ 107(a) order is the subject of Docket PENN 84-158-C, 

and my findings and conclusions follow below. 

In view of the foregoing findings and conclusions, I 

conclude and find that the miners are not entitled to one 

week's compensation because of the issuance of the 59 § 104(d) 

orders, and the complainant's arguments in this regard ARE 

REJECTED. Respondent's Motion for Summary Decision IS GRANTED. 

PENN 84-158-C 

In this case, the complainant maintains that the miners 

were idled by the explosion which occurred on February 16, 

1984, and that the § 107(a) order was issued because of that 

explosi9n. Recognizing the fact that the inspector did not 

cite any violations of mandatory safety or healtn_ standards 

when he issued the § 107(a) order, the complainant nonetheless 

argues that this should not preclude the miners from receiving 

a week's compensation. For the reasons which follow, the 

complainant's arguments ARE REJECTED. 

The third sentence of § 111 of the Act makes it clear 

that miners cannot be awarded one week's pay for the issuance 

of a§ 107(a) order unless that order was issued for a 

violation of a mandatory standard. In short, the condition 

precedent for the awarding of a week's compensation in these 

circumstances is that the mine is idled by the issuance of 

a § 107(a) order which cites a violation. On the facts 

of this case, neither condition is present. At the time the 

§ 107(a) order was issued, the mine had already been idled 

by the § 103 order, and the order, on its face, cited no 

violations of any mandatory standards. 

q 1 ·"j•-j 1::..' I { 
While I agree with the complainant's assertion that 

the legislative history of the Act recognizes that § 111 

was viewed as a remedial provision which also furnishes 

added incen~ive for compliance by a mine operator, complainant 

would have me ignore the plain wording of the statute, or 

in the alternative, rewrite it. This I decline to do. 

Further, I take note of the fact that the legislative history 

of § 111 indicates that it is not intended to be a punitive 

provision. Congress obviously intended limited compensation 

for miners idled pursuant to the types of orders covered 

by this section of the Act, and I find nothing in the legislative 

history to suppqrt any notion that Congress intended a mine 

operator to generally guarantee salary compensation for mines 

which may be idled due to no fault of the miner. 

In view of the foregoing, I conclude and find that the 

miners are not entitled to a week's compensation because of 

the issuance of the§ 107(a) order. Accordingly, the 

respondent's Motion for Summary Decision IS GRANTED. 

Additional Rulings 

1. The complainant's suggestion that these dockets are 

not ripe for summary decision because the 59 withdrawal orders 

have as yet to be litigated IS REJECTED. The parties are 

in agreement as to the essential facts in these dockets, and 

I conclude that respondent is entitled to relief as a matter 

of law. Further, the facts here show that the mine was 

reopened on April 16, 1984, and production resumed. 

The complainant's assertion that the "conditions" which led 

to the issuance of the§ 107(a) imminent danger order on 

February 16, 1984, were caused by the respondent's failure 

to comply with mandatory standards is simply not so. The 

§ 107(a) order was obviously issued as yet another means·by 

MSHA to insure its control over the scene of the explosion 

and to maintain the status quo. 

2. Complainant's claims for attorney's fees ARE DENIED. 

. I /-c:-.L~~·--;: 

/(;~ A. Koutras 

Administrative Law Judge 

' 
Distribution: 

Joseph T. Kosek, Jr., Esq., Greenwich Collieries, 

Division of Pennsylvania Mines Corp., P.O. Box 367, 

Ebensburg, PA 15931 (Certified Mail) 

Joyce A. Hanula, Legal Assistant, Earl R. Pfeffer, Esq., 

United Mine Workers of America, 900 15th St., N.W., 

Washington, DC 20005 (Certified Mail) 

/slk 

')A •·H9. ,.._ 'i I · 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

LONNIE JONES, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lath FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 0 CT 18 1984 

DISCRIMINATION PROCEEDING 

Complainant 

. . Docket No. KENT 83-257-DCA) 

D & R CONTRACTORS, 

Respondent 

BARB CD 83-19 

Appearances: 

Before: 

DECISION 

Jeffrey A. Armstrong, Esq., Appalachian Research 

and Defense Fund of Kentucky, Inc., Barboursville, 

Kentucky, for Complainant; 

Larry E. Conley, Esq., Williamsburg, Kentucky, and 

Ron Perkins, Siler, Kentucky, for Respondent. 

Judge Melick 

By decision dated May 15, 1984, it was held that the Complainant, Lonnie Jones, was discharged by D & R Contractors in 

violation of section 105(c)(l) of the Federal Mine Safety and 

Health Act of 1977, 30 u.s.c. § 801, et seg., the "Act". 6 

FMSHRC 1312. Hearings were thereafter held on the issues of 

costs, damages, and attorneys' fees. This decision is limited to 

resolution of those issues. 

Back Pay 

Lonnie Jones was unlawfully remov.ed or discharged from D & R 

Contractors on April 25, 1983. Whether or not that unlawful removal of Mr. Jones from the partnership caused a dissolution and 

termination of the partnership at that time is not material for 

purposes of liability. Even had· the partnership terminated, the 

immediate resumption of coal mining by the remaining partners and 

work force in the same mine, using the same equipment under the 

same working conditions and methods of production and under the 

same business name creates a presumption of successorship with 

its attendant liability. Munsey v. Smitty Baker Coal Co., Inc., 

et. al., 2 FMSHRC 3463 (1980) citing EEOC v. McMillan Bleodel 

Containers, Inc., 503 F.2d 1094 (6th Cir. 1974). It is not disputed that this business entity continued mining operations in 

this manner through May 21, 1983, and that had the Complainant 

not been discharged, he would have earned $1,613.50 for this period. 

2430 
Thereafter, on July 11, 1983, a new partnership agreement 

was executed, creating another business entity named D & R Contractors with three of the original nine partners (Ron Perkins, 

Ronnie Siler·, and Tony Lambdin). A third partnership, D & R Contractors, commenced business on August 29,.1983, and included the 

same three original partners. 

In Munsey v. Smitty Baker Coal Co., Inc., et al., supra, 

the Commission applied the criteria set forth in EEOC v. McMillan 

Bloedel Containers, Inc., supra, in resolving the question of 

successorship. Those criteria are as follows: Cl) whether the 

successor company had notice of the charge, (2) the ability of 

the predecessor to provide relief, (3) whether there has been a 

substantial continuity of business operations, (4) whether the 

new employer uses the same plan, (5) whether he uses the same or 

substantially the same work force, (6) whether he uses the same 

or substantially the same supervisory personnel, (7) whether the 

same jobs exist under substantially the same working conditions, 

(8) whether he uses the same machinery, equipment, and methods of 

production, and (9) whether he produces the same product. 

The undisputed evidence shows that the purported managing 

partner and a partner common to all three partnerships, Ron Perkins, has had notice of discrimination proceedings brought by the 

Complainant Lonnie Jones as early as May 1983 when Jones filed 

his first complaint with the Federal Mine Safety and Health Administration. Subsequently, Mr. Jones moved to join D & R Contractors in these proceedings before this Commission on August 2, 

1983. Since the law of Kentucky charges each partner with the 

knowledge of any one of its partners regarding partnership affairs, it is apparent that the "partners" in the successor partnerships, D & R Contractors, had knowledge through Ron Perkins of 

the continuing litigation concerning Lonnie Jones. See Kentucky 

Revised Statutes, section 362.205. 

The evidence also shows that Jones woμld have continued working for the successor partnerships had he not been unlawfully 

discharged and the evidence shows that the successor partnerships 

did continue in business. Accordingly, full relief would not be 

available to the Complainant without the joinder of the successor 

partnerships. I also observe that the subsequent partnerships 

continued mining operations under the same name in another mine 

owned by Mingo Coal Company with three of the original partners. 

The undisputed evidence also shows that the subsequent partnerships continued to produce coal using machinery leased, as before, from the Mingo Coal Company • 

! ... ! ·1n1 .-.;; . 0 
Within this framework I conclude that, indeed, the subsequent partnerships were successor business entities and therefore 

were also liable for damages sustained by Mr. Jones in connection 

with his unlawful discharge on April 25, 1983. Munsey, supra. 

Accordingly, the successor partnerships are liable for the pay 

Mr. Jones could have earned working for these successor entities. 

It is not disputed that for the relevant peri9d, July 11, 1983, 

through September 17, 1983, Jones would have earned $3,059.00. 

Jones earned $180 during this period in other work and this is 

deductible from the back pay award. The undisputed calculation 

of interest due on the back pay award through September 30, 1984, 

is $540.05. 

Expenses 

The parties have stipulated that Mr. Jones expended $90 in 

witness fees. The evidence further shows that Jones traveled 430 

miles in connection with the preparation of the case and attendance at hearings. Applying the applicable mileage rate of 20.5~ 

per mile, he is entitled to $88.15 in mileage fees. ·No interest 

has been requested on these expenses. 

Attorney Fees 

Respondent does not dispute the reasonableness of the attorney fees sought by counsel for Mr. Jones, but contends that fees 

attributable to the period before the joinder of D & R Contractors in these proceedings are not chargeable to D & R Contractors. 

To the extent that counsel for Mr. Jones did in fact cause delay 

in these proceedings by his failure to have joined D & R Contractors in the initial complaint, there is some merit to the contention. I observe, however, that the ti~e involved for the preparation of trial in this case would not have differed significantly 

whether or not D & R Contractors had been joined initially. Under the circumstances, I have made a downward adjustment of 6 

hours in the fee application attributable 6nly to the time reasonably spent in matters specifically related to the late joinder of 

D & R Contractors. 

Accordingly, I find that counsel devoted 105 hours to the 

proceedings in this case. Utilizing the uncontested proposed 

rate of $65 per hour, I conclude that counsel for Mr. Jones is to 

be awarded $6,825 in attorneys fees. No further adjustments are 

warranted. Copeland v. Marshall, 641 F.2d 880 (D.C. Cir. 1980). 

··~ c n ') r..:. 'l () (..... 
ORDER 

D & R Contractors and Ron Perkins are hereby ordered, jointly and severally, to pay to Lonnie Jones within 10 days of the 

date of this decision the amount of $5,032.55 in back earnings 

and interest and the amount of $178.15 in expenses. D & R Contractors and Ron Perkins are further ordered,_jointly and severally, to pay within 10 days of the date of this decision the amount 

of $6,825.00 in attorney fees to Jef rey Armstrong, Esq. 

Distribution: 

( .. J 

Gary Meli 

Assistant 

Jeffrey A. Armstrong, Esq., Appalachian Research and Defense Fund 

of Kentucky, Inc., P.O. Box 919, Barboursville, KY 40906 (Certified Mail} 

Larry E. Conley, Esq., P.O. Box 577, 102 South Third Street, Williamsburg, KY 40769 (Certified Mail} 

Ron Perkins, D & R Contractors, P.O. Box 54, Siler, KY 40763 

(Certified Mail} 

/nw 

2483 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 1. 9 1984 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (.MSHA) , 

Petitioner 

Docket No. CENT 84-17-M 

A.C. No. 16-00188-05503 

v. 

LONE STAR INDUSTRIES, INC., 

Respondent 

Louisiana Cement Company 

New Orleans Plant 

DECISION 

Before: Judge Kennedy 

This matter is before the trial judge on the parties' 

waiver ofa testimonial hearing and stipulation to submit the 

case for decision on the written record. Based on a 

consideration of that record I find: 

1. The parties have agreed to vacation of 

Citations 2236382, 2236390 and 2236392. 

2. That the penalties appropriate for the 

guarding violations set forth in Citations 

2236387 and 2236391 are $20 each. 

3. That the violation charged in Citation 

2237386--failure to provide hand rails 

on an elevated walkway did, in fact, occur; 

was significant and substantial, and the 

result of ordinary negligence, but was 

mitigated by the fact that employees wore 

safety belts. Accordingly, I conclude 

the penalty warranted is $100. 

4. That Citation 2236389 should be modified 

to show the violation, which did, in fact, 

occur; was an unguarded pinchpoint that was 

the result of ordinary negligence. Further 

that it was a serious violation that 

significantly and substantially contributed 

to the hazard of a disabling injury. For 

these reasons, I conclude the penalty warranted 

and that deemed necessary to deter future 

violations and insure voluntary compliance 

is $150. 
5. That based on an independent evaluation 

and de novo review of the circumstances 

the settlement proposed for Citation 2236388 

in the amount of $119 should be approved. 

The premises considered, I find the amount of the 

penalties warranted and hereby assessed total $409 of which 

$259 has previously been paid. Accordingly, it is ORDERED 

that the operator pay the balance of the penalties due, $150, 

on or before Friday, November 2, 1 , and that subject to 

payment the captioned matter be, hereby is, DISMISSED. 

Distribution: 

Joseph B. Kennedy 

Administrative Law 

Jack F. Ostrander, Esq., Office of the Solicitor, U.S. Department of Labor, 555 Griffin Sqμare Bldg.,_ Dallas, TX 75202 

(Certified Mail) 

Mr. Joseph Mule, .Personnel Manager, -Lone Star.· Industries, Inc., 

149ao Intracoastal Drive, New Orleans, LA 70129 

(Certified Mail) 

/ejp 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 2204i 

OCT 2 ·'- 1384 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

ON BEHALF OF 

DAVID J. McCONNELL, 

Complainant 

UNITED MINE WORKERS OF 

AMERICA (UMWA) , 

Intervenor 

v. 

JIM WALTER RESOURCES, INC., 

Respondent 

Docket No. SE 84-38-D 

BARB CD-83-18 

Nebo Mine 

ORDER OF DISMISSAL 

Appearances: 

Before: 

Frederick W. Moncrief, Esq., Office of the 

Solicitor, U.S. Department of Labor, Arlington, Virginia, for Complainant; 

Mary Lu Jordan, Esq., United Mine Workers of 

America, Washington, D.C., for Intervenor; 

David M. Smith, Esq. , Maynard, Cooper, Frierson & Gale, P.C., Birmingham, Alabama, and 

Robert W. Pollard, Esq., Jim Walter Resources, 

Inc., Birmingham, Alabama, for Respondent. 

Judge Melick 

At hearing the Secretary requested approval to withdraw 

the complaint in the captioned case. Documentation and representations subsequently filed show that Mr. McConnell 

never filed a complaint of discrimination with the Secretary 

and that the complaint now before thi. Commission was inadvertently filed. Under the circumsta ces, permission to 

withdraw the complaint is granted. 2 C.F.R. § 2700.11. 

The case is therefore dismissed. 

Gary 

Assistant Law Judge 
Distribution: 

Frederick w. Moncrief, Esq., Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, Arlington, VA 

22203 (Certified Mail) 

Mary Lu Jordan, Esq., United Mine Workers of America, 900 

Fifteenth Street, N.W., Washington, DC 20005 (Certified 

Mail) 

David M. Smith, Esq., Maynard, Cooper, Frierson & Gale, 

P.C., 1200 Watts Building, Birmingham, AL 35202 (Certified 

Mail) 

Robert W. Pollard, Esq., Jim Walter Resources, Inc., P.O. 

Box C-79, Birmingham, AL 35283 (Certified Mail) 

/nw 

248'7 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 OCT 2 5 1984 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

PYRO MINING COMPANY, 

Respondent 

DECISION 

Docket No. KENT 83-212 

A.C. No. 15-10339-03516 

Pyro No. 11 Mine 

Appearances: Carole M. Fernandez, Esq., Office of the 

Solicitor, U.S. Department of Labor, 

Nashville, Tennessee, for Petitioner; 

Steven P. Roby, Esq., Pyro Mining Company, 

Providence, Kentucky, for Respondent 

Before: Judqe Fauver 

The Secretary seeks civil penalties for four alleged 

violations of the Federal Mine Safety and Health Act of 

1977, 30 u.s.c. § 801, et seq. 

The charges were issued in connection with the 

investigation of a fatal accident. Dean H. Lundy, a general 

laborer, was electrocuted while disconnecting a conveyor 

belt control line. 

A hearing was held in Lexington, Kentucky. Having 

considered the testimony, and the record as a whole, I 

find that a preponderance of the re-liable, probative, and 

substantial evidence establishes the following: 

FINDINGS OF FACT 

1. On the date of the accident, September 27, 1982, 

Lundy was assigned by mine foreman Barry Teaque to work 

with the belt crew. The crew, under lead belt mechanic and 

crew leader Harlan Belt, were extending a conveyor belt. 

2. Extending the belt required, among other things, 

disconnecting a splice on a 110-volt pilot line for the belt 

control switch, splicing new line to the old line, and 

advancing the switch to the new location. 
3. Contrary to a company rule against working on an 

energized line and a mandatory federal safety standard 

forbidding it, it was common practice for employees to 

disconnect,· splice, and re-connect a live pilot line a 

number of times each week when the belt was being advanced. 

In addition, nonqualified employees were permitted to do 

this work on pilot lines. As a general practice, nonqualified 

employees would do this work on pilot lines (disconnecting, 

splicing, and re-connecting) 2 or 3 times a week. The crew 

leader, who himself was nonqualified, testified that he also 

worked on energized pilot lines, that he had seen others do 

so, and that this was allowed by mine foreman Barry Teaque 

so long as only 110 volts were involved. 

4. On each belt, the pilot line was extended about 

once a week. About a third of the time, the power was left 

on when the line was being extended. As a general practice, 

the power was cut off during an extending operation only 

when the power center was being moved; that is, when the 

power center was not being moved during a belt advance, the 

pilot line was disconnected, extended, and respliced without 

cutting off the power. 

5. On September 27, 1982, crew leader Harlan Belt told 

his immediate supervisor, Barry Teaque, that one crew member 

was absent, and requested a replacement. Teaque assigned 

Dean H. Lundy, a general laborer, to work on Harlan Belt's 

crew that shift. Lundy, age 24, had 2 years 3 months mining 

experience. 

6. Shortly before the electrocution of Lundy, he was on 

one side of the tailpiece of the belt, the crew leader, 

Harlan Belt, was on one side, and the belt mechanic, 

Eddie Puckett, was near and in clear hearing of both of 

them. I find Puckett's testimony credible as to what was 

said by Lundy and Belt at that time, and the following part 

of his testimony is incorporated herein as factual and 

accurate (Tr. 191-193): 

Q Tell me what was happening right then, 

who was doing what, and where, and what 

conversation transpired between Harlan 

and Dean Lundy. 

Q Okay. Like I say, I had stripped outer 

layer of the dead end wire off. 

2489 
Q Which end of the pilot was that? 

A That was _the end next to the tail piece. 

It hadn't never been hooked into the 

whole wire yet because I, prior to that, 

I had hollered up there and made sure 

Torruny Gatton or one of them--.I hollered 

and made sure none of them had tied it 

in, made sure it wasn't hot. And Tommy 

Gatton told me, no. I stripped the wire 

back and started to pull tail piece. 

Steve Lone hollered down. Harlan said, 

"Let's wait on Eddie," and I told him 

then, I said, "Ya'll go ahead and when 

you pull it, I'll drop what I'm doing 

and help set the jacks on the tail piece," 

because when you pull the tension out on 

that belt, you need to get the jacks set as 

quick as you can because the scoop won't 

just sitting there and holding all the time. 

So Steve pulled the tail piece out, and 

I drofped the wire on the ground. I went 

over and helped them set the jacks, me and 

Harlan. Well, Harlan was on one side of the 

tail piece and Lundy was on the other~ I 

was pretty much in between the two. And 

-Harlan told me to go get the feeder, and the 

mechanics was working on the feeder that 

night. Feeders was around 60 feet or better 

from where he was at then. And that's when 

Harlan--that's when Lundy had walked over 

there where I was stripping the insulation 

off the wire, and the three conductors, three 

there I had never stripped nothing off of 

them. And that's what Dean Lundy was doing, 

and that's when I heard Harlan told him not 

to fool with that, not to ·be fooling with the 

pilot wire because he might kick the belt on, 

and those guys was up there knocking clamps 

and might hurt one of them. 

And Dean Lundy told him, he said, "No," 

he said, "What I'm doing," he said, "that end 

up t.l::ere is not hooked in yet." He said, "I'm 

getting this end here ready, and I'll go up 

2480 
there and get the other end of it ready, and 

I'll make sure the clamps and everything is 

knocked off, and clear and all we have to do 

is take the box off and move it down here and 

hook it up." And then that's when I went off 

and got to go get the feeder, and they was 

putting the front bumper on the feeder. 

And I asked them how--the mechanics--how 

long they was going to be, and they said 

probably five minutes. And no longer than 

after I said that, I heard Harlan scream for 

me, and told me to come up there. And I 

went up there, and that's when I seen Lundy 

laying down on the ground. 

7. When Lundy screamed, Belt ran over to him. He 

found Lundy unconscious. He could see that Lundy-had touched 

a bare wire in the pilot line. He assumed that a minor 

shock had frightened him and that he had hit his head on a 

top roller. When they (others arrived) turned Lundy over, 

Belt saw that Lundy's hand was burned, and he then realized 

that Lundy had probably been shocked with much more power 

than 110 volts. He told the rest of the crew, "Nobody touch 

this pilot line until it gets checked out. We got to get 

somebody down here so I know what's going on" .(Tr. 167). 

8. Lundy was breathing, but gasping for breath. Belt 

said, "He's all right. He's breathing. What we need to do 

is get him out of here. Somebody go get the golf cart so we 

can get him on and get him outside" (Tr. 167). Belt then 

went to the phone and called outside to tell them what had 

happened and to have a vehicle meet the cart at the end of 

the track. 

9. There was room for only two people on the cart. 

Belt told Puckett to take Lundy out of the mine. The cart 

left and Belt called outside again, to make sure the vehicle on 

the outside was on its way to meet the cart. 

10. Several men met the cart at the end of the track. 

Lundy had stopped breathing and they administered CPR. The 

mine foreman, Teaque, arrived and assisted in the CPR as 

they took Lundy to a helicopter, which took him to a hospital. 

Lundy did not regain consciousness. He died of the electric 

shock. 

2491 
11. After seeing Lundy's burned hand, and suspecting 

that Lundy had been shocked by more than 110 volts, Belt 

went to the chief maintenance foreman for the third shift, 

Lowell Duk~s, and told him he thought the pilot line h~d 

more than 110 volts, and asked him whether there was any way 

he· could check the voltage on the line. Dukes said he could 

do that. 

12. Dukes checked the pilot line and told Belt 

the pilot line had only 110 volts. With that, Belt resumed 

work on the belt move, so the next shift could mine coal. 

13. After the accident, the belt move was completed by 

Belt's crew. When he had it hooked up and ran the belt, 

he got word from the surface to come out of the mine, because 

Lundy was dead. 

14. MSHA's chief electrical investigator of the accident, 

Jewell Larmouth, arrived at the mine within three hours after 

the accident. The work of extending the belt and pilot line 

had been completed. He suspected, as Belt had, that more 

than 110 volts had been involved in the electrocution. He 

first inspected the 480 volt power center that supplied 

power to the entire belt system. The power was on; there 

was no evidence that the circuit had been deenergized; the 

cable coupler had not been removed and there was no lock-out 

device or tag available. Larmouth questioned those present to 

see if anyone had tags and no one did. He proceeded to check 

for a malfunction in the transformer and control circuit. 

Someone indicated that a check of the pilot line conductors 

had revealed only 110 volts; but Larmouth made a more thorough 

examination, testing from wire to earth and to the belt 

framework and discovered that the transformer was defective. 

A contact between the primary and secondary windings in the 

-transformer resulted in 330 volts tb ground in one of the pilot 

·wires and 230 to ground in the other pilot current-carrying 

wire. 

15. Larmouth immediately issued an imminent danger 

order forbidding use of the short-circuited transformer. The 

transformer. had remained in service after the accident until 

Larmouth informed the operator that it was an imminent danger. 

16. The operator sent the defective transformer to 

Minesafe Electronics, Inc., for an opinion as to the cause of 

the defect. The opinion stated that the failure resulted 

from inadequate insulation between the primary and secondary 

windings and one of two other conditions: "(l) a large voltage 

2482 
transient pierced the varnish shorting primary and secondary, 

effecting shorted turns, which in time generated sufficient 

heat to destroy the insulation ..• or (2) sustained overload 

condition causing overheating weakened the insulation to the 

point that the area of weakest insulation broke down under 

normal operating voltages, thus welding primary to secondary." 

17. Misuse of a cable could cause an overload of the 

transformer, but there was no evidence of misuse of a cable. 

18. During his inspection on September 27, 1982, Inspector 

Larmouth discovered that the automatic circuit breakers for 

the No. 16 AWG (American Wire Gauge) No. 2 conveyor belt control 

line were 20 amperes and were so stamped; the No. 16 gauge 

cable was also clearly stamped as to size. Twenty amperes 

exceeded the correct amperage for this No. 16 standard wire. 

19. The remote control pilot line extended· from the 

conveyor belt starter for approximately 480 feet to the existing 

start-stop switch. The remote line was type S 0 neoprene No. 

16-3 AWGi the ground wire was continuous from the conveyor belt 

starter metal frame to the start-up switch metal frame. The 

purpose of the control line was to start or stop the No. 2 unit 

conveyor belt remotely when necessary. The remote control line 

involved in the accident was supplied power from a Westinghouse 

.500 KVA, 480 volt to 110 volt single-phase control transformer 

located in the conveyor belt starting enclosure. 

20. Tests conducted during the investigation revealed 

that a primary to secondary winding fault had occurred in the 

control transformer. Resistance readings were approximately 

2 ohms from primary to secondary windings of the control 

circuit transformer. Voltage readings were: XI to ground 

330 volts, X3 to ground 230 volts. As a result of the fault 

in the transformer the white insulated conductor of the remote 

control line became energized at 330 volts to ground. 

21. The last weekly examination (as required by 30 

C.F.R. § 75.512) prior to the accident was conducted by Bill 

Gatton on September 22, 1982, and no defects were recorded. 

22. No one deenergized the remote control line before 

Lundy started to disconnect the switch. Lunqy was not wearing 

gloves, and he was not wearing insulated (shock hazard boots) 

footwear. The accident area was very wet with some surface 

water. Lundy contacted the white conductor, which was energized 

at 330 volts to ground as a result of the primary to secondary 

fault in the control transformer. 
23. Lundy was not qualified to do electrical work as 

required by 30 C.F.R. § 75.153 and was not working under the 

direct supervision of a qualified person. The scoop type 

tractor operator (Steve Long) was the qualified person on 

the conveyor belt move crew; however, he was not performing 

or supervising electrical work at the time of the accident. 

24. Respondent is a substantial sized mine operator, 

producing about 3,500 tons of coal daily and employing about 

270 underground miners. 

25. Respondent's compliance history from April 7, 

1981, until the inspection in this case shows 128 violations 

for which civil penalties totaling $6,894 were paid. 

DISCUSSION WITH FURTHER FINDINGS 

As a result of his investigation, Inspector Larmouth 

charged Respondent with four violations of mandatory safety 

standards. 

Citation No. 2075231 

This citation charges a violation of 30 C.F.R. § 75.509, 

which provides: 

All power circuits and electric equipment shall 

be deenergized before work is done on such circuits and equipment, except when necessary for 

trouble shooting or testing. 

The citation alleges that the pilot line was not deenergized 

before work was done on it and a fatality occurred. 

Even though Respondent published' general instructions 

against working on energized lines, it was a common practice 

for work to be done on the belt pilot line while it was 

still energized. This was a common practice which management 

knew or should have known and should have prevented by 

better training and supervision of its line supervisors and 

miners. Lundy's immediate supervisor, Harlan Belt, acknowledged 

that the pilot line was frequently re-connected without 

deenergizing it, and that Belt's immediate supervisor, 

Teaque, allowed this practice. Belt and others assumed that 

the pilot line would always conduct only 110 volts and that 

this amount of power would not be hazardous to touch. This 

attitude reflects a patent disregard of a mandatory safety 

standard (§ 75.509). It also shows gross error in judgment, 

since 110 volts, depending on conditions such as wetness, body 

resistance, clothing, duration of contact, etc., can inflict 

serious injury, even death. Crew Leader Belt's attitude is imputable 
to management. His failure to have the pilot line deenergized 

for the belt move was gross negligence, which is imputed to 

management. 

The exchange between Harlan Belt and Lundy is not a 

defense to this charge. When Belt told Lundy "not to fool 

with" the pilot line, Belt was not concerned with the fact 

that Lundy might" receive an electric shock. Belt was simply 

concerned about the possibility that touching the pilot line 

at that time might accidentally start the belt and injure 

the men who were removing clamps from the belt. Belt did 

not tell Lundy he should not touch the energized pilot 

line. When Lundy replied, as follows, Belt did not forbid 

him to do any work on the pilot line: 

[Testimony of Puckett] : 

He [Lundy] said, "I'm getting 

ready, and I'll make sure the 

everything is knocked off and 

we have to do is take the box 

it down here and hook it up. 

this end here 

clamps and 

clear and all 

off and move 

[Tr. 192). 

I find that Respondent, through gross negligence, violated 

§ 75.509 by failing to see that the pilot line was deenergized 

before work was done on it. This violation was a major causal 

factor in the death of Lundy. Belt did not know that the pilot 

line conductor wires would conduct 330 volts or 220 volts, 

respectively, instead of 110 volts, because of an unknown 

short-circuit in the transformer. But the risk he permitted of 

even a 110-volt electric shock was ~ most serious violation; a 

shock of that amount could cause serious injury, even death, 

depending on conditions. 

Gross negligence and severe gravity". as to this violation 

are well established by the probative, relevant, and substantial 

evidence. In considering the six statutory criteria for 

assessing a civil penalty, I find that a penalty of $7,000 is 

appropri~te for this violation. 

Citation No. 2075232 

This citation charges a violation of 30 C.F.R. § 75.511, 

because (1) an unqualified person was permitted to perform 

electrical work on an ·energized conveyor belt control line 

and (2) a disconnecting device for the 480 volt A.C. cable 

coupler was not provided and a method of tagging was not 

used. 
Section 75.511, 30 C.F.R., provides: 

No electrical work shall be performed 

on low, medium, or high-voltage distribution circuits or equipment~ 

except by a qualified person or by a 

person trained to perform electrical 

work and to maintain electrical equipment under the direct supervision of 

a qualified person. Disconnecting 

devices shall be locked out and 

suitably tagged by the persons who 

perform such work, except that in 

cases where locking out is not 

possible, such devices shall be 

opened and suitably tagged by such 

persons. Locks or tags shall be 

removed only by the persons who 

installed them or, if such persons 

are unavailable, by persons authorized 

by the operator or pis agent. 

Dean Lundy was not a qualified person under 30 C.F.R. 

75.511-1 and 30 C.F.R. 75.153. At the time of the accident, 

Steve Long had not required the system to be locked out and 

there is no indication of any electrical supervision at that 

time. I conclude that "direct supervision" within the meaning 

of the regulations would require that the circuit be deenergized 

and examined by a qualified person and the unqualified person's 

work be examined prior to reenergizing the circuit. Neither 

of these things was done in this case. 

I find that Lundy's supervisor, Harlan Belt, permitted 

Lundy to attempt the splice change•by failing to order him 

specifically not to work on the pilot line after Lundy told 

Belt the following: 

•.. I'll go up there and get the 

other end of it ready, and I'll make 

sure the clamps and everything is knocked 

off, and clear and all we have to 

do is take the box off and move 

it down here and hook it up. 

Considering management's lax safety attitude toward 

working on the energized pilot line and permitting nonqualified 
persons to work on the pilot line, I find that Lundy's 

attempt to disconnect the pilot line was permitted by Harlan 

Belt's attitude and conduct. Harlan Belt did not specifically 

and effectively order Lundy not to do any work on the pilot 

line and he did not follow up by seeing that Lundy did not 

do so. Belt's actions in not exercising proper supervision 

over the belt move and Lundy's performance constituted gross 

negligence in allowing a nonqualif ied employee to work on an 

electrical circuit. This was a violation of § 75.511. 

Also, Belt did not attempt to have the pilot line deenergized 

before working on it. The pilot line was not locked out at 

the power center or disconnected and tagged before work was 

done on it. This condition was also a violation of § 75.511 

due to gross negligence. The violations of § 75.511 had a 

direct causal relationship with Lundy's death. 

In considering the six statutory criteria for assessing 

a civil penalty, I find a penalty of $5,000 is appropriate 

for Respondent's violation of § 75.511. 

Citation No. 2075233 

This citation charges a violation of 30 C.F.R. § 75.518, 

because the automatic circuit breakers in use were of too 

high a capacity (20 amperes) to provide adequate short 

circuit and overload protection for the No. 16 American Wire 

Gauge (AWG) No. 2 conveyor belt control line. 

Section 75.518 provides: 

Automatic circuit-breaking devices 

or fuses of the correct type and 

capacity shall be installed so as 

to protect all electric equipment 

and circuits against short circuit 

and overloads. Three-phase motors 

on all electric equipment shall be 

provided with overload protection 

that will deenergize all three phases in the event that any phase is 

overloaded. 
The condition alleged was discovered during Inspector 

Larmouth's examination of the control circuit just after 

the accident. Although there was no direct relationship 

between this violation and the fatality, it was a serious 

electrical violation, concerning an integral part of the 

circuit involved in the fatality and in and of itself a 

danger to human life. Short circuit and overload protection 

is an 'important safety standard to prevent f·ires, electric 

shock, explosions, etc., in connection with electrical 

equipment and circuits. 

The operator's negligence is high as to this violation 

because the violation was clearly visible and should have 

been apparent to qualified electrical personnel. 

Inspector Larmouth relied upon the National Electric 

Code table, pursuant to 30 C.F.R. § 75.518-1, which provides: 

(a] device to provide either short 

circuit protection or protection 

against overload which does not 

conform to the provisions of the 

National Electric Code, 1968, does 

not meet the requirement of § 74.518. 

The operator at hearing called attention to a private 

publication, the Electrical Protection Handbook, assertedly 

based on the 1980 National Electric Code, to support the use of 

20 amper~ fuse~ for the circuit in question. However, as 

Larmouth pointed out, the publication refers to fuses, not 

circuit breakers. Further, the handbook is not relevant as a 

mitigating factor because there was no showing of reliance 

by the operator. Nor was it shown that the operator actually. 

relied on the diagram by Long Aldrex Manufacturing Company 

for belt starting boxes, also presented by the operator at 

hearinq. Reliance on this diagram would not have been 

justified in any event since the diagram did not accuractely 

reflect the size of the wire in: use •. 

In considering the six statutory criteria for assessing 

a civil penalty, I find a penalt7·of $200 to be appropriate 

for this violation. 

0 /l lj ..• ,.,,. ··± ........... t .. 
Citation No. 2075924 

On November 19, 1982, MSHA Inspector Jewell Larmouth 

issued a section 104(a) citation, No. 2075924, for violation 

of 30 C.F.R. § 75.1725(a) because of the hazardous condition 

of the control circuit transformer. A previously issued 

107(a) Order of Withdrawal, No. 2075234, was the basis for 

issuance of this citation. 

Section 75.1725(a) provides: 

Mobile and stationary machinery and 

equipment shall be maintained in 

safe operating condition and 

machinery or equipment in unsafe 

condition shall be removed from 

service inunediately. 

The stepdown transformer referred to in the citation was 

supposed to have a primary voltage of 480 volts and a secondary 

voltage of 110 volts: however, Larmouth's investigation disclosed 

that on one conductor of the remote control line, at the scene 

of the accident, there was 330 volts, and on the other conductor 

of that line there was 230 volts. This increased voltage 

resulted from a fault in the transformer which created a 

connection between the primary and secondary windings. 

Because of this condition, (1) the pilot line conductors 

carried 330 volts and 230 volts, respectively, instead of 110 

volts, and (2) touching either conductor could create an 

electric shock whereas under normal conditions the pilot line 

conductors could shock a person only if both conductors were 

touched. This condition made the pilot line a deathtrap for 

the unwary. The transformer was thus an inuninent danger, as 

the inspector found in ordering it out of service after the 

accident. 

Respondent was not negligent before the accident, 

because the transformer short-circuit was not known or reasonably 

forseeable, and because this condition would not be detected 

by ordinary electrical tests required by the regulations. 

However, after the accident, a reasonably prudent operator 

would have suspected that there was a malfunction of the 

transformer. Harlan Belt did in fact suspect that there 

was a malfunction. The operator was guilty of gross negligence 

in failing to take inunediate and appropriate action after the 

accident to detect the hazard in the transformer and to remove 

the transformer from service until proper repair or replacement 
was made. An imminent danger existed at the time, yet work 

was allowed to continue. The electrical equipment which 

was in an unsafe condition should have been removed from 

service iminediately. 

~espondent's attitude and conduct, through its 

supervisors, in resuming operations with the defective 

transformer after the accident shows gross negligence. 

This violation is of a most serious nature. In applying 

the six statutory ·criteria for assessing a civil penalty, 

I -find that a penalty of $5,000 is appropriate for this 

violation. 

Proposed findings of fact and conclusions of law 

inconsistent with the above are hereby rejected. 

CONCLUSIONS OF LAW 

1. The Judge has jurisdication over the subject matter 

of this proceeding. 

2. Respondent violated the safety standards as charged 

in the four citations involved herein and is assessed the 

civil penalties stated above. 

ORDER 

WHEREFORE IT IS ORDERED that Respondent shall pay the 

above assessed civil penalties, in the total amount of 

$17,200.00, within 30 days from the date of this Decision. 

LJJ.t ~ ~a/ f/L 

William Fauver 

Administrative Law Judge 

Distribution: 

Carole M. Fernandez, Esq., U.S. Department of Labor, Office 

of the Solicitor, 280 U.S. Courthouse, 801 Broadway, Nashville, 

TN 37203 (Certified Mail) 

Steve Robey, Esq., The Traders Building, 608 East Main Street, 

Providence, KY 42450 (Certified Mail) 

q;-,;n .C:.d1...,1.. 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER. COLORADO 80204 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

POWDERHORN COAL COMPANY, 

Respondent 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 82-150 

A.C. No. 05-00281-03066 V 

Roadside Mine 

Appearances: James H. Barkley, Esq., Office of the Solicitor, 

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

for Petitioner; 

Randy Bishop, Safety Director, Powderhorn Coal 

Company, Grand Junction, Colorado, pro se. 

Before: Judge Carlson 

When this civil penalty proceeding was called for hearing 

at Grand Junction, Colorado, on September 26, 1984, the parties 

announced upon the record that they had reached a settlement. 

Counsel for the petitioner moved that the penalty be 

reduced from the $750.00 originally proposed to $600.00. 

Respondent, in turn, moved to withdraw its notice of contest. 

Based upon my review of the file and information placed 

upon the record at the hearing, I am satisfied that the settlement terms are appropriate and should be approved. 

Accordingly, the motions made at trial are granted. 

Respondent's notice of contest is withdrawn; the citation is 

affirmed; and respondent shall pay a civil penalty of $600.00 

within 30 days of the date of this decision. 

SO ORDERED. 

John A. Carlson 

Administrative Law Judge 
Distribution: 

James H. Barkley, Esq., Office of the Solicitor, U.S. Department 

of Labor, 1585 Federal Building, 1961 Stout Street, Denver, 

Colorado 80294 (Certified Mail) 

Mr. Randy Bishop, Director of Safety, Powderhorn Coal Company, 

P.O. Box 1430, Palisade, Colorado 81526 (Certified Mail). 

/ot 

2502 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER. COLORADO 80204 

() f'·T --~ n 1084 . , .·' • ·~I ~ .. : ~ ,, •.·.. . ' 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SILVER VENTURES CORPORATION, 

Respondent 

Docket No. WEST 82-215-M 

A.C. No. 05-03585-05501 

Docket No. WEST 83-53-M 

A.C. No. 05-03585-05504 

Comstock-Lake Mine 

DECISION 

Appearances: Margaret Miller, Esq., and James H. Barkley, Esq., 

Office of the Solicitor, U.S. Department of Labor, 

Denver, Colorado, 

for Petitioner; 

Mr. Alfred G. Hoyl, Silver Ventures Corporation, 

Rollinsville, Colorado, pro se. 

Before: Judge Carlson 

This consolidated case, heard under the provisions of the 

Federal Mine Safety and Health Act of 1977 (the "Act"), arose out 

of inspections conducted on June 2, 1982 and September 22, 1982 

at respondent's underground precious metals mine near Idaho 

Springs, Colorado. As a result of these inspections, the 

Secretary issued five citations alleging violations of various 

mandatory safety standards promulgated under the Act. 

General Background. 

REVIEW AND DISCUSSION 

OF THE EVIDENCE 

In 1982, respondent Silver Ventures was engaged in the 

opening of a gold and silver mine. Shaft driving was in 

progress, and surface installations were not yet completed. The 

June and September inspections with which this decision is 

concerned took place against that background. 

Citation No. 573968, Docket No. WEST 82-215-M 

During Inspector Richard W. Coon's June 2, 1982 inspection 

of respondent's mine he examined three wires extending from a 

switch box in the air building, a surface structure where the 

':) ~·) ·u·· .., r..., 11., u 
ventilating fan and compressor are located. According to the 

inspector, the three wires extended from the bottom of the box to 

about six inches from the floor in what he described as a walkway 

along an interior wall of the building. The wires had been cut, 

and insulating material had been stripped from the ends of each. 

The wire thus made bare, he testified, had been wrapped with a 

single layer of plastic electrical tape. After determining that 

the wires were energized with 440 volts, the inspector issued a 

citation ~/ charging a violation of the mandatory safety 

standard published at 30 C.F.R. § 57.12-30. That standard 

provides: 

When a potentially dangerous condition is found 

it shall be corrected before equipment or wiring 

is energized .. 

The inspector believed that the wires represented a 

"dangerous condition" because the tape wrapping did not provide 

sufficient insulation. This, coupled with the high voltages involved and the accessibility of the wires to miners, offered a 

likelihood of a fatal injury. 

Mr. Hoyl, respondent's president, testified that the ends of 

the wires were covered with "two to three" wraps of plastic tape, 

rather than one as the inspector contended. Moreover, the area 

in which the wires hung was not in the walkway, he testified; 

access to equipment in the building could be better achieved by 

another route. Finally, he suggested that the inspector knew 

that the wires had been placed there only temporarily to allow 

use of a welding machine during installation of the air house 

equipment. 

The evidence convinces me that the violation occurred. The 

wrappings of plastic tape were clearly insufficient. In so 

finding I rely not only upon the inspector's testimony, but also 

upon the photographs of the wraps (petitioner's exhibit 2). 

Whether the wires were wrapped one, two, or three times with 

tape, the wraps provided much less insulation than the thick 

factory coating shown in the photograph. It is simply not 

reasonable to believe that a couple of thicknesses of plastic 

tape will render a 440 volt conductor safe. ~/ 

ll The inspector also issued a withdrawal order under section 

107(a) of the Act. The propriety of the withdrawal order is not 

at issue in this proceeding. 

2/ The inspector's testimony that the tape manufacturer, in 

response to an inquiry, recommended at least six wraps is accorded little weight because of its hearsay character. 
The other matters raised by the respondent do not relate to 

the question of violation, but to the appropriateness of the 

proposed $36·.00 penalty. Assuming that the wires did not extend 

into a frequently used walkway, it is nevertheless plain that 

they were in an area where anyone could walk. The concededly 

temporary purpose of the wiring goes to the potential duration of 

the violation, not its existence. 

The inspector classified this wiring violation as 

"significant and substantial" under section 104(d) of the Act. 

In Cement Division, National Gypsum Company, 3 FMSHRC 822 (1981), 

the Commission defined such a violation as one where" ... there 

exists a reasonable likelihood that the hazard contributed to 

will result in an in~ury or illness of a reasonably serious 

nature." 

The record in the present case shows that the insufficiently 

insulated wiring, located as it was, created a realistic 

possibility that an unwary miner could receive a serious or fatal 

electrical shock. The violation was significant and substantial. 

Citation No. 573969, Docket No. WEST 82-215-M 

In his inspection of respondent's dry house or change room 

on June 2, 1982, Inspector Coon found what he cited as another 

electrical violation. According to his testimony, wiring 

extending from a switch box on an interior wall of the room 

lacked the protection of an insulated fitting or bushing around 

the "knockout plug" through which the wiring exited the metal box. 

This, in the inspector's view, violated the standard published at 

30 C.F.R. § 57.12-8. As pertinent here, that standard provides: 

Power wires and cables shall be insulated adequately 

where they pass into or out of electrical compartments. 

*** when insulated wires, other than cables, pass 

through metal frames, the holes shall be substantially 

bushed with insulated bushings. 

The inspector indicated that bushings are necessary to avoid 

abrasion of the insulation surrounding the electrical wires. 

By way of defense, the respondent, in the person of Mr. 

Hoyl, maintained that the wiring in question was a temporary 

installation furnishing power to a welding machine. He also 

insisted that the wiring emerged from the back of the box and 

thence through a wall to the outside of the building, not from 

the bottom of the box as the inspector testified. Most important, according to Mr. Hoyl, an MSHA official had looked at 

this particular wiring installation during an earlier "compliance assistance" visit and found it satisfactory for temporary 

use. 
I accept all of these representations as true. None, 

however, constitutes a valid defense against the citation. 

Respondent does not deny that the wiring, wherever it may have 

emerged from· the box, was not protected by a bushing. The 

bushing requirement set forth in the standard is absolute. As to 

the "approval" given the temporary wiring during an earlier 

"compliance assistance visit," no evidence discloses that the 

MSHA inspector noticed the absence of a bushing. On the 

contrary, the evidence tends to show that discussions with that 

inspector focused upon the question of whether the temporary 

wiring needed to be encased in a conduit for its entire length. 

I therefore conclude that respondent violated the standard. 

The matters raised by Mr. Hoyl may properly be considered to 

affect the size of the civil penalty. 

Citation No. 573970, Docket No. WEST 82-215-M 

During the course of Inspector Coon's June inspection he 

noted that five power switch boxes located in the air house and 

dry house lacked labels disclosing their respective purposes. He 

testified that he could not readily determine such purposes by 

the mere location of the boxes. These conditions, in the 

inspector's view, violated the following standard, published at 

30 C.F.R. § 57.12-18: 

Principal power switches shall be labeled to show 

which units they control, unless identification can 

be made readily by location. 

According to Mr. Coon, the failure to affix labels created a 

danger that a miner could inadvertently energize the wrong piece 

of equipment, thus possibly putting fellow miners in jeopardy. 

Respondent concedes that the switches lacked labels, but 

stressed that everything involved was new at the time and that 

the company had simply lacked the time to use the plastic tape 

labeler which was already on hand. 

The facts of record show a violation. The provisions of the 

standard make no implied allowance for any citation-free interim 

between installation and labeling. 

Citation No. 574807, Docket No. WEST 82-215-M 

While underground in the mine on June 2, 1982, Inspector 

Coon noted what he perceived to be a violation of the safety 

standard published at 30 C.F.R. § 57.13-21. That standard 

provides: 

Except where automatic shutoff valves are used, 

safety chains or other suitable locking devices 

shall be used at connections to machines of highpressure hose lines of 3/4-inch inside diameter or 

25uC 
larger, and between high-pressure hose lines of 3/4-

inch inside diameter or larger, where a connection 

failure would create a hazard. 

According to the inspecto~, an air-operated water pump at 

the base of the shaft had no automatic shutoff valve and lacked 

safety chains (or restraining cables) on the end of the 

high-pressure air hose that connected to the pump. The hose was 

an inch in diameter. Mr. Coon testified that the pump was in 

operation when he observed it, and that when he pointed out the 

absence of a chain or cable restraint device, a member of the 

crew obtained one from a nearby storage area in the shaft and 

attached it immediately. The inspector maintained that an 

unrestrained hose, should it become uncoupled during operation, 

could whip about, th~s inflicting injury on any nearby miners. 

Mr. Hoyl, on behalf of respondent, pointed out that it was 

established practice to use cable restraints on the pump in 

question. He said that such restraints are easy to lose and 

speculated that the one which had been on the hose had simply 

dropped off and been lost in the muck. He also maintained that 

the crew had not started the machine at the time of Inspector 

Coon's observations. 

The inspector, on cross examination, agreed that respondent 

had a supply of restraints in the mine, and that the pump had 

recently been moved (and therefore disconnected). He nevertheless testified in a convincing way that he was certain that it 

was in operation when he noticed the absence of any sort of hose 

restraint. 

I credit that testimony, and consequently find that the 

violation is established. 

Citation No. 2009724, Docket No. WEST 83-53-M 

Inspector Coon visited respondent's mine a second time on 

September 22, 1984. On that occasion he inspected the hoist. 

The undisputed evidence shows that the Silver Ventures hoist 

operates on rails on an inclined shaft which, at the time of 

inspection was over 100 feet deep. The hoist, according to Mr. 

Coon, lacked an overspeed device as required by the standard 

published at 30 C.F.R. § 57.19-7. That standard provides: 

All man hoists shall be provided with devices to 

prevent overtravel. When utilized in shafts exceeding 100 feet in depth, such hoists shall also 

be provided with overspeed devices. 

Inspector Coon testified that the overspeed device had been 

on the hoist in June when he examined· it, but had since been 

,. ·- . 

~0U, 
removed. The hoist operator, he said, informed him that the 

device had been removed because of "some vibration problems." 

This was done some three weeks before; the device had been "sent 

..• down to be repaired," the hoistman told the inspector. The 

inspector testified that the hoist conveyance was moving men up 

and down the shaft while he was present on September 22, 1982. 

Under cross examination he conceded that he had not actually 

seen the overspeed device in June. Rather, he said, he had 

inspected the hoist operator's log entries which showed both the 

overtravel and overspeed devices had been checked daily to 

confirm that they were operational. He denied that a worm gear 

drive operating through a speed reducer would furnish protection 

equivalent to that provided by a separate overspeed device. 

In addition to Mr. Coon, another inspector, Mr. Edward 

Machesky, testified for the petitioner concerning this citation. 

Machesky indicated that he had been present twice at the mine 

site prior to Inspector Coon's June inspection. According to 

Machesky, he was present at the compliance assistance visit in 

April of 1982, and was present again in early May of that year 

for a complaint triggered by a worker complaint concerning the 

unauthorized use of the hoist conveyance to move men. Machesky 

insisted that during the first visit the lack of an,overspeed 

device was pointed out to management, and that it was agreed that 

materials but not miners could be moved by the hoist. (Other 

evidence shows that miners coul~ gain access to all levels of the 

shaft by a series of ladders.) He maintained that the second 

visit, in response to a telephone complaint, was limited 

primarily to interviews with mine personnel to determine whether 

the hoist had been "misused" to haul miners. The evidence 

gathered, Machesky testified, did not warrant issuance of any 

citations. He insisted, however, that no permission had been 

given during either inspection to hoist miners without an 

overspeed device. 

Mr. Hoyl, testifying for respondent, first stressed that in 

his belief the hoist required no separate overspeed device since 

the skip or conveyance was raised or lowered by a low-speed motor 

with "electric dynamic braking" as well as manual braking and a 

deadman switch. Hoyl insisted that the entire hoist was 

intensely examined by the inspectors on the May visit and it had 

no overspeed device then. The company did attach such a device 

"just prior" to Inspector Coon's September 22 visit, but the belt 

was too short. Longer belts were on order when Coon issued the 

citation. Beyond all this, according to Mr. Hoyl, he had an 

understanding with other MSHA officials, particularly one Paul 

Tally of the Denver off ice, th~t the existing safeguards on the 

hoist were sufficient. 

I found Mr. Hoyl a credible witness throughout, and I 

therefore accept that he genuinely believed that the hoist was 

safe for moving miners. I also accept that he believed that at 

least some MSHA officials agreed.with him. I am not convinced, 
however, any MSHA official did in fact agree. It is clear that 

neither Coon nor Machesky did, and I find it difficult to believe 

that any official, in the face of the clear words of the 

standard, would take such a position. Far more likely, I think, 

was a mutual misunderstanding between MSHA and Mr. Hoyl. 

Upon the evidence I must find that an overspeed device is 

a specific mechanism, operating quite beyond those existing 

features described by Mr. Hoyl. The later installation of such a 

device strengthens the finding. Besides, the plain words of the 

standard clearly contemplate the necessity for such a separate 

device on all man-hoists which fall within the shaft-depth 

definitions of the standard. 

Finally, even if someone connected with MSHA had indeed told 

Mr. Hoyl that he could lift men or women on the hoist without an 

overspeed device, such a clearly erroneous piece of advice could 

not fully exculpate the company - not, at least, in the absence 

of evidence of a deliberate design to mislead the company to its 

detriment. There is no such evidence in this case. We must also 

bear in mind Inspector Machesky's strong testimony that in May he 

specified to management that miners could not ride in the skip. 

The evidence shows a violation of the cited standard, 

although the surrounding circumstances militate against a heavy 

penalty. 

Penalties 

The petitioner seeks relatively small penalties for the 

three electrical violations and the air hose infraction. 

Specifically, he proposes a $36.00 for the wiring in the air 

house (citation 573968), and $20.00 for each of the other 

violations comprising docket No. WEST 82-215-M (citations 573969, 

573970, and 574807). Additionally, he proposes another $20.00 

for the single hoist violation comprising docket No. WEST 83-53-M 

(citation 2009724). 

Section llO(i) of the Act requires the Commission, in 

penalty assessments, to consider the mine operator's size, its 

negligence, its good faith in seeking rapid compliance, its 

history of prior violations, the effect of a monetary penalty on 

its ability to continue in business, and the gravity of the 

violation itself. 

The evidence in the present case shows Silver Ventures to be 

quite small, with no history of prior violations. It also tends 

to show that most of the violations were transitory, the products 

of the start-up phase of a new operation. Moreover, the record 

shows that, overall, the respondent displayed a commendable interest in complying with all s~fety requirements from the day the 

project began. Its good faith was never in question. Where 

penalties are concerned virtually all factors weigh heavily in 

respondent's favor. 
I must note, however, that the representatives of the 

Secretary of Labor appear to have been well aware of all of these 

mitigating considerations, since the proposed penalties were all 

minimal. On· balance, I must conclude that the modest penalties 

proposed by the petitioner should be imposed. 

Consequently, I hold that $20.00 is the appropriate penalty 

for each of the citations here involved except for the wiring 

violation described in citation 373968. For that violation 

$36.00 is appropriate. 

CONCLUSIONS OF LAW 

Upon the entire record, and in conformity with the factual 

findings embodied in the narrative portion of this decision, it 

is concluded: 

1. That the Commission has jurisdiction to decide this 

matter. 

2. That respondent, Silver Ventures Corporation, violated 

the standard published at 30 C.F.R. § 57.12-30 as alleged in 

Citation No. 573968 in Docket No. WEST 82-215-M; and that $36.00 

is the appropriate penalty for the violation. 

3. That respondent violated the standard published at 30 

C.F.R. § 57.12-8 as alleged in Citation No. 573969 in Docket No. 

WEST 82-215-M; and that $20.00 is the appropriate penalty for'.the 

violation. 

4. That respondent violated the standard published at 30 

C.F.R. § 57.12-18 as alleged in Citation No. 573970 in Docket No. 

WEST 82-215-M; and that $20.00 is the appropriate penalty for the 

violation. 

5. That respondent violated the standard published at 30 

C.F.R. § 57.13-21 as alleged in Citation No. 574807 in Docket No. 

WEST 82-215-M; and that $20.00 is the appropriate penalty for the 

violation. 

6. That respondent violated the standard published at 30 

C.F.R. § 57.19-7 as alleged in Citation No. 2009724 in Docket No. 

WEST 83-53-M; and that $20.00 is the appropriate penalty for the 

violation. 
ORDER 

Accordingly, it is ORDERED that all citations herein are 

affirmed, and that respondent shall pay penalties totaling 

$116.00 within 30 days of the date of this decision • 

Distribution: 

.._.,~/? ohn .... 

A. 

~ Carlson 

Administrative Law Judge 

Margaret Miller, Esq., and James H. Barkley, Esq., Office of the 

Solicitor, U.S. Department of Labor, 1585 Federal Building, 1961 

Stout Street, Denver, Colorado 80294 (Certified Mail) 

Mr. Alfred G. Hoyl, President, Silver Ventures Corporation, 

Los Lagos Ranch, Rollinsburg, Colorado 80474 (Certified Mail) 

/blc 

r. ~ - • c. i:J _L .. 
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. 

INCOAL, INCORPORATED, 

Respondent 

0 CT 31 1984 

CIVIL PENALTY PROCEEDINGS 

Docket No. KENT 83-171 

A/0 No. 15-02290-03508 

Docket No. KENT 83-240 

A.C. No. 15-02290-03512 

No. 11 Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Broderick 

On October 19, 1984, the Secretary filed a motion to 

approve a settlement agreement in the above cases. 

The two dockets involve nine orders of withdrawal which 

were issued during the investigation of a coal dust explosion 

which occurred at the subject mine on December 7, 1981. A 

copy of the Investigation Report was filed with the settlement motion. The explosion resulted in the deaths of eight 

miners including the section foreman. The investigation 

concluded that the explosion occurred with the face and 

right crosscut were being blasted simultaneously from the 

solid in the No. 1 entry. A train of explosives in the 

second hole from the right rib failed to detonate causing 

the rib hole to blow out and igniting coal dust in sμspension 

fro~the blast of the other holes and coal dust in suspension 

which had accumulated on the floor, roof and ribs. 

Citation No. 1112641 charged_ a- violation of 30 C.F.R. 

§ 75.400 because of an accumulation of coal dust. It was 

originally assessed at $10,000 and the parties propose to 

settle for $10,000. 

Two orders, Nos. 1111027 and 1111028, charged separate 

violations of 30 C.F.R. § 75.1303 because (1) blast holes 

were being shot with excessive explosive powder in the hole 

and without proper stemming; (2) one blast hole contained a 

continuous train of undetonated explosives without a blasting 

cap. Each of these violations was assessed at $10,000, and 

the parties propose to settle each for the payment of $10,000. 
Order No. 1112643 charged a violation of 30 C.F.R. 

§ 75.316 because line brattice was not installed or maintained to provide adequate ventilation to the working faces. 

This violation was assessed at $8,000 and the parties 

propose to settle for $8,000. 

Order No. 1112645 charged a violation of 30 C.F.R. 

§ 75.403 because the mine dust had an incombustible content 

below the minimum required for the intake and return 

aircourses. This violation was assessed at $8,000, and 

the parties propose to settle for $4,000. 

Order No~ 1112642 charged a violation of 30 C.F.R. 

§ 75.1307 because the explosives for use in the working 

places were not kept in separate closed containers located 

out of the line of blast and not less than 50 feet from the 

working face. This violation was originally assessed at 

$6,000 and the parties propose to settle for $6,000. 

Order No. 1112644 charged a violation of 30 C.F.R. 

§ 75.401 because water was not applied to coal dust on the 

ribs and roof to minimize explosive hazards. This violation 

was.originally assessed at $6,000 and the parties propose 

to settle for $6,000. 

Order No. 1111026 charged a violation of 30 C.F.R. 

§ 75.1305 because explosives in their original shipping 

paper were trapsported to the working section in an exposed 

metal bucket of a battery powered scoop. This violation 

was originally assessed at $5,000 and the parties propose to 

settle for $2,000. The investigation did not implicate this 

violation as a cause of, or as contributing to the fatal 

explosion. 

erder No. 1111025 (in Docket No. K-E.NT 83-240) charged 

a violation of 30 C.F.R. § 75.1702 because the operator did 

not effectively search for smoking materials to insure that 

persons entering the underground ar~as of the mine did not 

carry smoking materials, matches 9r lighters. This violation 

was originally assessed at $1,000 and the parties propose to 

settle for $1,000. The investigation did not implicate this 

violation as a cause of, or as contributing to the fatal 

explosion. 

Thus, the nine violations were originally assessed at 

a total amount of $70,000. The settlement proposal totals 

$57,000. In addition, the parties propose that the $57,000 

be paid in 6 monthly installments as follows: $7,000 shall 

be paid on the last day of November, 1984 and $10,000 shall 

be paid on the last day of each of the next 5 months. This 
method of payment is proposed because the operator states 

that .the financial condition of the operator makes payment 

very difficult. The operator does not admit that the 

violations charged in the orders and citation occurred. 

All of the violations involved in these proceedings 

were very serious. Those directly related to the cause of 

the explosion, Citation No. 1112641, Order Nos. 1111027 and 

1111028 were extremely serious and were assessed at the 

statutory maximum amount. Those contributing to the fatal 

explosion, Order Nos. 1112643, 1112642, and 1112644 were 

assessed at $8,000, $6,000 and $6,000 respectively. These 

violations were also extremely serious. The violations of 

30 C.F.R. § 75.1305 (Order No. 1111026) and 30 C.F.R. 

§ 75.403 (Order No. 1112645), while very serious were not 

directly related to the explosion, nor was the violation of 

30. C.F.R. § 75.1702 (Order No. 1111025). All were the result 

of the operator's negligence. 

The operator is of medium size. The payment of the 

penalties will not affect its ability to remain in business. 

. I have carefully considered the settlement proposal in 

the light of the criteria in section llO(i) of the Act and 

conclude that it is in the public interest. 

Therefore, IT IS ORDERED that the settlement motion is 

GRANTED; IT IS FURTHER ORDERED that the operator pay the sum 

of $7,000 on the last day of November, 1984 and the sum of 

$10,000 on the last day of each month for the following 

5 months until the total of $57,000 is paid. When that 

amount has been paid these proceedings are DISMISSED. 

Distribution:, 

/

1/t/'μ-5 .,~"Dck"-''lei James A. Broderick 

Administrative Law Judge 

Edward H. Fitch, Esq., Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, Arlington, 

VA 22203 (Certified Mail) 

Robert I. Cusick, Esq., Wyatt, Tarrant & Combs, 

2600 Citizens Plaza, Louisville, KY 40202 (Certified Mail) 

/fb 

*U.S. GOVERNMENT PRINTING OFFICE: 461-256/1J608