SEP1'EMBER 1993 

COMMISSION DECISIONS AND ORDERS 

09-08-93 

09-13-93 

09-13-93 

09-17-93 

09-22-93 

09-24-93 

09-27-93 

Texas Gravel, Inc. 

Pittsburg & Midway Coal Mining Co. 

Sec. Labor on behalf of Cletis Wamsley 

and Robert Lewis v. Mutual Mining 

Dow Sand and Gravel 

Aluminum Company of America 

American Mine Services, Inc. 

Energy West Mining Company 

ADMINISTRATIVE LAW JUDGE DECISIONS 

09-03-93 

09-07-93 

09-08-93 

09-09-93 

09-10-93 

09-10-93 

09-10-93 

09-13-93 

09-15-93 

09-15-93 

09-15-93 

09-16-93 

09-16-93 

09-17-93 

09-20-93 

09-20-93 

09-23-93 

09-23-93 

09-23-93 

09-24-93 

09-24-93 

09-27-93 

09-27-93 

09-27-93 

09-29-93 

09-29-93 

09-29-93 

09-30-93 

Sec. Labor on behalf of Dennis R. Burress 

v. Garden creek Pocahontas co.,·etc. 

Abyss Sand & Gravel, Inc. 

Davis Trucking Company 

Ricky Darrell Ealy v. R B Mining Company 

s & H Mining, Incorporated 

Jim Walter Resources, Inc. 

Consolidation Coal Company 

Bell County Coal Corporation 

Ash Trucking Company, Inc. 

Bobby Lee Price emp. by Crockett Coal 

Peabody Coal Company 

Consolidation Coal Company 

Sec. Labor on behalf of Jerry Lee Dotson 

v. Lad Mining Inc., etc. 

UMWA Local 5922 v. Bear Run Coal co., etc. 

Americold Corporation 

A-1 Grit Company 

Drillex Incorporated 

Pyramid Mining Incorporated 

Moline Consumers Company 

Calmat of Central California 

Bobby Johnson v. Bohica Inc./Shiloh Mining 

Lonnie D. Ross and Charles E. Gilbert 

v. Shamrock Coal Company, Inc. 

Wyoming Fuel Company 

Kanitz Contracting, Inc. 

Melvin Fultz v. Harriman Coal Corporation 

Sec. Labor on behalf of Donald B. Carson 

v, Jim Walter Resources, Inc. 

Barrett Paving Materials, Inc. 

United Energy Services, Inc. 

CENT 93-104-M 

CENT 92-142 

WEVA 93-375-D 

YORK 93-14-M 

CENT 92-362-M 

WEST 91-563 

WEST 91-251 

VA 

SE 

LAKE 

KENT 

SE 

SE 

WEVA 

KENT 

KENT 

KENT 

KENT 

WEVA 

SE 

WEVA 

CENT 

WEST 

SE 

KENT 

LAKE 

WEST 

WEVA 

KENT 

WEST 

WEST 

PENN 

93-52-D 

92-493-M 

92-421-M 

93-662-D 

92-455 

93-335-R 

91-1964 

93-376 

93-227 

92-577 

93-295 

92-1012 

92-181-D 

93-358-C 

92-128-M 

92-527-M 

92-130-M 

93-184 

92-368-M 

93-362-M 

93-105-D 

91-76-D 

92-340 

92-607-M 

93-198-D 

SE 93-109-D 

YORK 92-10-RM 

WEVA 92-916 

Pg. 1811 

Pg. 1813 

Pg. 1816 

Pg. 1819 

Pg. 1821 

Pg. 1830 

Pg. 1836 

Pg. 1841 

Pg. 1843 

Pg. 1849 

Pg. 1851 

P.g. 1853 

Pg. 1862 

Pg. 1865 

Pg. 1869 

Pg. 1870 

Pg. 1872 

Pg. 1887 

Pg. 1895 

Pg. 1921 

Pg. 1924 

Pg. 1925 

Pg. 1939 

Pg. 1941 

Pg. 1950 

Pg. 1954 

Pg. 1963 

Pg. 1965 

Pg. 1966 

Pg. 1968 

Pg. 1984 

Pg. 1990 

Pg. 1992 

Pg. 1999 

Pg. 2022 

SEPTEMBER 1993 

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

Secretary of Labor, MSHA v. Texas Gravel, Inc., Docket No. CENT 93-104-M. 

(Chief Judge Merlin, Default Decision of August 9, 1993- unpublished). 

Secretary of Labor on behalf of Cletis Wamsley and Robert Lewis v. Mutual 

Mining, Inc., Docket Nos. WEVA 93-375-D, WEVA 93-376-D. (Judge Amchan, Order 

of Temporary Reinstatement of August 16, 1993). 

Secretary of Labor, MSHA v. Dolese Brothers Company, Docket No. CENT 92-110-~. 

(Judge Fauver, August 9, 1993). 

Energy West Mining Company v. Secretary of Labor, MSHA, Docket Nos. 

WEST 92-819-R, WEST 93-168. (Judge Lasher, August 10, 1993) 

Secretary of Labor, MSHA v. Dow Sand & Gravel, Docket Nos. YORK 93-14-M, etc. 

(Chief Judge Merlin, Default Decisions of August 9, 1993- unpublished). 

Secretary of Labor, MSHA v. Peabody Coal Company, Docket No. LAKE 93-23. 

(Judge Melick, August 12, 1993). 

Secretary of Labor, MSHA v. Buffalo Crushed Stone, Inc., Docket Nos. 

YORK 92-117-M, YORK 92-128-M. (Judge Weisberger, August 11, 1993). 

Secretary of Labor, MSHA v. Steele Branch Mining, Docket No. WEVA 92-953. 

(Judge Koutras, August 13, 1993). 

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

(Judge Melick 1 August 16, 1993).s 

Secretary of Labor, MSHA v. Cyprus Plateau Mining Corporation, Docket No. WEST 

92-371-R, WEST 92-485. (Judge Morris, August 24, 1993). 

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

Secretary of Labor, MSHA v. Brown Brothers Sand Company, Docket No. 

SE 92-246-M. (Judge Barbour, August 19, 1993). 

COMMISSION DECISIONS AND ORDERS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

TEXAS GRAVEL, INC. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 8. 1993 

Docket No. CENT 93-104-M 

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

BY THE COMMISSION: 

This civil penalty proceeding arises under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act"). On August 9, 

1993, Chief Administrative Law Judge Paul Merlin issued an Order of Default to 

Texas Gravel, Inc. ("Texas Gravel") for failing to answer the proposal for 

assessment of civil penalties filed by the Secretary of Labor or the judge's 

May 19, 1993, Order to Show Cause. 1 The judge assessed civil penalties in 

the sum of $2,100. For the reasons that follow, we vacate the default order 

and remand this case for further proceedings. 

On August 30, 1993, the Commission received from Toribio Palacios, Texas 

Gravel's counsel, a motion to set aside the default order. Mr. Palacios 

explained that Texas Gravel had inadvertently failed to file an answer and, 

because negotiations with the Secretary's Office of the Solicitor had already 

begun, the Secretary was on notice .that Texas Gravel wanted a hearing in this 

case. 

The judge's jurisdiction over this case terminated when his decision was 

issued on August 9, 1993. Commission Procedural Rule 69(b), 58 Fed. Reg. 

12171 (March 3, 1993), to be codified at 29 C.F.R. § 2700.69(b) (1993). Under 

the Mine Act and the Commission's procedural rules, relief from a judge's 

decision may be sought by filing a Petition for Discretionary Review with the 

Commission within 30 days of its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R. 

§ 2700.70(a). We deem Texas Gravel's motion to be a timely filed Petition for 

1 As noted by the judge in his Order of Default, the file contains a signed 

return receipt card for the Order to Show Cause. 

1811 
Discretionary Review, which we grant. See, ~. Middle States Resources, 

10 FMSHRC 1130 (September 1988). On the basis of the present record, we 

are unable to evaluate the merits of Texas Gravel's position. In the interest 

of justice, we remand this matter to the judge, who shall determine whether 

default is warranted. Hickory Coal Co. 12 FMSHRC 1201, 1202 (June 1990). 

For the reasons set forth above, we vacate the judge's default order and 

remand this matter for further proceedings. 

Distribution 

Toribio Palacios, Esq. 

Garcia, Quintanilla & Palacios 

5528 N. lOtn Street 

McAllen, TX 78504 

B. Carpentier, 

Office of the Solicitor 

U. S. Department of Labor 

525 Griffin St., Suite 501 

Dallas, TX 75202 

Arlene Holen, Chairman 

/J 

/ / ~ 

c;;:_-L ~ ~~c/L A~ ~ Richard V. Backley, Commissioner 

L. Clair Nelson, Commissioner 

Chief Admini.strative Law Judge Paul Merlin 

Federal Hine Safety & Health RevieH Commission 

1730 K Street, N.W., Suite 600 

Washington, D.C. 20006 

1812 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

PITTSBURG AND MIDWAY COAL 

MINING COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 13, 1993 

Docket No. CENT 92-142 

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

BY THE COMMISSION: 

In this civil penalty proceeding ar~s~ng under the Federal Mine Safety 

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

Secretary of Labor and Pittsburg and Midway Coal Mining Company ("P&M") have 

filed with the Commission a joint motion to approve settlement of this case. 

For the following reasons, the parties' settlement motion is granted, and this 

matter is dismissed. 

On June 16, 1993, we granted P&M's petition for discretionary review of 

a decision of Administrative Law Judge Michael A. Lasher, Jr. In their 

motion, filed August 16, 1993, the parties explain that P&M stipulated, before 

the judge, that it violated 30 C.F.R. § 75.302-4 by allowing exhaust air to 

recirculate into the intake entry through a three-inch diameter ventilation 

tube, but that it had contested the S&S designation. The judge concluded that 

the violation was S&S. 15 FMSHRC 1039, 1041-46 (May 1993) (ALJ)(published 

June 1993). The only issue raised by P&M on review is whether substantial 

evidence supports the judge's S&S finding. After further evaluation by the 

Secretary, he now agrees with P&M that substantial evidence of record does not 

support the judge's finding that P&M's violation of section 75.302-4 was S&S. 

The parties ask the Commission to grant their motion, vacate the S&S finding, 

reduce the civil penalty to $50, and dismiss this proceeding. 

Oversight of proposed settlements of contested cases is among the 

Commission's adjudicative responsibilities under the Mine Act (30 U.S.C. 

§ 820(k)) and is, in general, committed to the Commission's sound discretion. 

See,~. Pontiki Coal Corp., 8 FMSHRC 668, 674-75 (May 1986); Medusa Cement 

Co., 10 FMSHRC 1913, 1914 (October 1990). We conclude that adequate reasons 

exist to approve the parties' settlement in this case. No reason appears on 

this record to warrant disapproval of the settlement. 

1813 
Therefore, upon full consideration of the motion, the settlement is 

approved. Citation No. 3244895 is modified to delete the significant and 

substantial designation and P&M is ordered to pay a civil penalty of $50 

within 30 days of the date of this decision. Our direction for review is also 

vacated and this proceeding is dismissed. 

~~~.___/c-/~~~~L Richard V. Backley, Commissioner -- ~ 

Joyce A. Doyle, Commissio r 

"-._.f I I I J ' \. ----~,L· ' 

__;._;, ) ·(, r 1 . G .l .(l..,_A_N .; "-~ -\i <.--,'-' 

L.vClair Nelson, Commissioner 

1814 
Distribution 

Jerald S. Feingold, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

, VA 22203 

John W. Paul, Esq. 

Pittsburg & Midway Coal Hining Co. 

6400 S. Fiddler's Green Circle 

' co 80111 

Administrative Law Judge Michael A. Lasher, Jr. 

Federal l1ine Safety & Health Review Commission 

1244 Speer Boulevard, Suite 280 

Denver, Colorado 80204 

1815 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 13, 1993 

SECRETARY OF LABOR, MINE SAFETY 

AND HEALTH ADMINISTRATION (MSHA), 

on behalf of CLETIS R. WAMSLEY 

and ROBERT A. LEWIS, APPLICANT 

v. 

MUTUAL MINING, INC. , RESPONDENT 

TEMPORARY REINSTATEMENT 

PROCEEDING 

DOCKET NO. WEVA 93-375-D 

DOCKET NO. WEVA 93 376-D 

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

BY THE COMMISSION: 

In this discrimination proceeding, ar1s1ng under the Federal Mine Safety 

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

Hutual Mining, Inc., has filed a petition for review of Administrative Law Judge 

Arthur Amchan' s August 16, 1993, Order of Temporary Reinstatement issued pursuant 

to Commission Procedural Rule 45, 58 F.R. 12158 (March 3,1993), to be codified 

at 29 C.F.R. §2700.45 (1993). We grant respondent's petition for review and, for 

the reasons that follow, affirm the judge's order requiring the temporary 

reinstatement of Cletis Warns and Robert Lewis. 

Complainants Warns ~nd Lewis were miners employed by Mutual Hining, Inc. 

and active union safety committeemen until their layoff on December 21, 1992. 

On December 22, filed discrimination complaints with the Secretary of 

Labor's Mine Safe and Health Administration ("MSHA"). Following an 

investigation, the Secretary determined that the discrimination complaints filed 

by wamsley and Lewis were not frivolous. On July 6, 1993, the Secretary filed 

an application for temporary reinstatement of the two miners. On August 5, an 

evidentiary hearing on the application was held. On August 16, the j issued 

his decision in which he concluded that the complaints were not frivolous. 

The Secretary alleges that Wamsley and Lewis were laid off because of their 

activities as union safety committeemen, including their participation in fil 

a complaint, pursuant to section l03(g) of the Mine Act, 30 U.S.C. § 803(g), and 

their involvement in a "safety run." Subsequently, MSHA responded to the section 

103(g) complaint and issued 20 citations and orders. On the day of the MSHA 

inspection, respondent laid off Warns and Lewis, along with ten other miners. 

Respondent contends that the miners were laid off for economic reasons and that 

the layoff had been planned long before the safety complaints and the MSHA 

inspection. 

1816 
As the Commission has previously stated, "The scope of a temporary 

reinstatement hearing is narrow, being limited to a determination by the judge 

as to whether a miner's discrimination complaint is frivolously brought." 

Secretary of Labor o.b.o. Price and Vacha v. Jim walter Resources, Inc., 9 FMSHRC 

1305, 1306 (August 1987), aff'd, Jim walter Resources. Inc. v. FMSHRC, 920 F.2d 

738 (11th Cir. 1990). 

The judge held an evidentiary hearing and considered the testimony of five 

witnesses in addition to the two complainants. He determined: 

The Secretary of Labor has the burden of 

proving that the complaints were not frivolous .... 

I ... find that the record as a whole establishes 

that the complaints were not frivolous. 

Sl op. at 1-2. 

The only issue before us is whether wamsley's and Lewis' discrimination 

complaints were frivolously brought: After careful review of the evidence and 

, we conclude that the judge • s determination that the complaints are not 

frivolous is supported by the record and is consistent with applicable law. we 

intimate no view as to the ultimate merits of this case. 

Respondent has also moved the Commission to stay the order of the judge. 

In support of its motion, respondent asserts that reinstatement of the 

complainants would contravene its collective bargaining agreement and that the 

complainants are currently employed. To the extent that respondent sought relief 

pending our consideration of the instant matter, such relief was considered and 

denied. To the extent that respondent seeks a stay of the temporary 

reinstatement order pending a final determination of whether a violation of 

section 105 (c)(l) of the Mine Act has occurred, its motion is denied. 

Accordingly, the judge's order the temporary reinstatement of 

Cletis wamsley and Robert Lewis is affirmed. 

F/1-~~LG~, Richard V. Backley, Cornrnissioner 9 

L. , Commissioner 

1817 
Distribution 

W. Jef Scott, !~sq. 

Mutual Mining l.nc. 

P.O. Box 608 

Grayson, Kentucky 41143 

Tana M. Addc, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Administrative Law Jud~e Arthur Amchan 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, VA 22041 

1818 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

DOW SAND & GRAVEL 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 17, 1993 

Docket Nos. YORK 93-14-M 

YORK 93-19-M 

YORK 93-20-M 

YORK 93-28-M 

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

BY THE COMMISSION: 

These civil penalty proceedings arise under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act"). On August 9, 

1993, Chief Administrative Law Judge Paul Merlin issued four Orders of Default 

to Dow Sand & Gravel ("DS&G") for failing to answer the civil penalty 

proposals filed by the Secretary of Labor ("Secretary") and the judge's April 

19, 1993 Orders to Show Gause. The judge assessed civil penalties of $1,490 

as proposed by the Secretary. For the reasons that follow, we vacate the 

default orders and remand the cases for further proceedings. 

On September 7, 1993, E. Milton Dow filed a letter with the Commission 

requesting that the default orders be set aside. Dow submits that DS&G 

responded to the show cause orders. Dow also attached a copy of an undated 

motion by the Secretary for approval of settlement in Dow Sand & Gravel, 

Docket No. [92]-161-M, in which the Secretary has apparently agreed to a 

substantial reduction of civil penalties because of DS&G's operating losses 

and improved attitude toward compliance. 

The judge's jurisdiction over these cases terminated when his decision 

was issued on August 9, 1993. Commission Procedural Rule 69(b), 58 Fed. Reg. 

12171 (March 3, 1993), to be codified at 29 C.F.R. § 2700.69(b)(l993). Under 

the Mine Act and the Commission's procedural rules, relief from a judge's 

decision may be sought by a Petition for Discretionary Review with the 

Commission within 30 days of its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R. 

§ 2700.70(a). We deem DS&G's request to be a timely filed Petition for 

Discretionary Review, which we grant. See, ~. Middle States Resources, 

Inc., 10 FMSHRC 1130 (September 1988). On the basis of the present record, we 

are unable to evaluate the merits of DS&G's position. In the interest of 

justice, we remand these matters to the judge, who shall determine whether 

default is warranted. Hickory Coal Co., 12 FMSHRC 1201, 1202 (June 1990). 

1819 
For the reasons set forth above we vacate the judge's default orders 

and remand these matters for further ~roceedings. 

Distribution 

Milton IJow 

Dow Sand & Gravel 

RR l, Box 181 

Ossipee, New Hampsili re 03864 

David L. Baskin, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

One Congress St., llth Floor 

P.O. Box 8396 

Boston, MA 02114 

Arlene Holen, Chairman 

-~~.~ 

L. Clair Nelson, Commissioner 

Chief Administrative Law Judge Paul Merlin 

Federal Mine Safety & Health Review Commission 

1730 K Street, N.W., Suite 600 

Washington, D.C. 20006 

1820 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

ALUMINUM COMPANY OF AMERICA 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

22, 1993 

Docket No. CENT 92-362-RM 

SECRETARY OF LABOR, MINE SAFETY 

AND HEALTH ADMINISTRATION (MSHA) 

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

BY THE COMMISSION: 

This contest proceeding arises under the Federal Mine Safety and Health 

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

is whether an accident control withdrawal order ("control order") was properly 

issued to Aluminum Company of America ("Alcoa") pursuant to section 103(k) of 

the Mine Act by an inspector of the Department of Labor's Mine Safety and 

Health Administration ("MSHA") . 1 The inspector issued the control order to 

Alcoa after he determined that an area in Alcoa's Point Comfort Alumina Plant 

had been contaminated by mercury. Administrative Law Judge Roy J. Maurer 

vacated the control order after determining that the Secretary failed to 

establish that an "accident," as that term is defined in the Mine Act, had 

occurred. 14 FMSHRC 1721, 1723 (October 1992)(ALJ). For the reasons set 

forth below, we affirm the judge's decision. 

Section 103(k) of the Mine Act 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 suet. 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. 

30 u.s.c. § 813(k). 

1821 
I. 

Factual and Procedural Background 

Alcoa operates an alumina hydrate production facility in Point Comfort, 

Texas. On August 5, 1992, MSHA Inspector Ralph Rodriguez inspected the plant 

in response to a miner's complaint filed under section 103(g) of the Mine 

Act, 2 which alleged that workers were being exposed to mercury and other 

hazardous substances. George Weems, an MSHA industrial hygienist, conducted a 

health survey of the plant on August 25-26, 1992. As part of his survey, 

Weems inspected and sampled an area known as R-300, where, according to Alcoa 

and miner representatives, mercury had previously been used, most probably in 

the production of chlorine between approximately 1965 and 1979. Tr. 94, 200, 

206. Apparently, mercury has not been used at the site since that time. 

Rodriguez and Weems observed beads of mercury, each measuring two to 

three millimeters in size, at several locations inside and outside the R-300 

building, including in cracks in foundations that had served as pump mounts 

and along the exterior wall of the building. Tr. 148-49. MSHA also sampled 

for and detected mercury vapor in several places in the R-300 area including 

in the pump foundations. No mercury vapor was detected in the breathing zone 

or higher than knee level. Soil samples were also taken in the area adjacent 

to the R-300 building. Inspector Rodriguez cited Alcoa, alleging a violation 

of 30 C.F.R. § 56.20011 for failure to barricade or post signs at the R-300 

building. 3 

Rodriguez returned on September 4, 1992, and determined that Alcoa had 

abated the previous citation by posting signs and barricades at the building. 

He also observed six people working in an area adjacent to the R-300 building. 

These workers, who were Alcoa's environmental consultants, were using a 

backhoe to remove a manhole cover from an underground pipe. They were not 

2 Section 103(g) provides, in pertinent part: 

Whenever a representative of the miners ... has 

reasonable grounds to believe that a violation of this 

Act or a mandatory health or safety standard exists ... 

such ... representative shall have a right to obtain an 

immediate inspection by giving notice to the Secretary 

or his authorized representative of such violation .... 

30 u.s.c. § 813(g). 

3 Section 56.20011 provides: 

Areas where health or safety hazards exist that 

are not immediately obvious to employees shall be 

barricaded, or warning signs shall be posted at all 

approaches. Warning signs shall be readily visible, 

legible, and display the nature of the hazard and any 

protective action required. 

1822 
wearing protective equipment. Consequently, Rodriguez issued Alcoa a citation 

alleging a violation of 30 C.F.R. § 56.15006 for failure to wear protective 

equipment when encountering chemical hazards. 4 

MSHA issued a report on its health survey of Point Comfort on September 

9. Gov. Ex. 7. The report concluded that mercury vapor and metallic (liquid) 

mercury were present at R-300, but that, according to MSHA's readings, mercury 

vapor was not present at breathing zone heights. The report also concluded 

that the ground west of the R-300 building was heavily contaminated with 

mercury. The report recommended that people entering the area wear protective 

clothing and equipment and that Environmental Protection Agency ("EPA") 

procedures be followed in disposing of or cleaning contaminated clothing or 

equipment. 

On September 11, 1992, MSHA Supervisory Inspector Doyle Fink issued the 

subject control order, which stated: 

Gov. Ex. 6. 

Mercury contamination has occurred at all the R-300 

facility and area approximately 70 feet west extending 

to the paved roadway parallel to the R-300 facility to 

be covered by this 103(k) order. In order to protect 

the health and safety, all persons are prohibited from 

entering this area, except with the approval of the 

District Manager or his representative pending further 

investigation of the extent of the hazard. 

Alcoa filed a notice of contest of the control order and an expedited 

hearing was held before Judge Maurer on October 6, 1992. At the conclusion of 

the Secretary's case, the judge entered a decision from the bench granting 

Alcoa's motion to dismiss. The judge subsequently issued a written decision 

confirming his bench decision. While the judge credited the testimony of the 

Secretary's witnesses, including expert testimony as to the hazardous nature 

of mercury (14 FMSHRC at 1721.-22), he held that the Mine Act gives the 

Secretary the authority to issue a section 103(k) order only if there has been 

an "accident," as that term is defined by section 3(k) of the Mine Act. 

4 Section 56.15006 provides: 

Special protective equipment and special 

protective clothing shall be provided, maintained in a 

sanitary and reliable condition and used whenever 

hazards of process or environment, chemical hazards, 

radiological hazards, or mechanical irritants are 

encountered in a manner capable of causing injury or 

impairment. 

1823 
14 FMSHRC at 1722. 5 The judge concluded that the Secretary did not prove 

that the mercury contamination detected in the R-300 area was the result of an 

accident and, accordingly, he vacated the section 103(k) order. 14 FMSHRC at 

1723. He noted that the Secretary could have protected the safety and health 

of miners through use of the enforcement mechanisms contained in section 104 

of the Mine Act, 30 U.S.C. § 814. Id. 

The Commission granted the Secretary's Petition for Discretionary Review 

of the judge's decision. 

II. 

Disposition of the Issues 

The Secretary argues that the judge's interpretation of the definition 

of the term "accident" in section 3(k) of the Act is contrary to its plain 

language and the Act's protective purposes. The Secretary maintains that an 

unplanned and uncontrolled release of mercury, including a gradual release 

that creates a long-term hazard, is an accident under the Mine Act. The 

Secretary also maintains that the judge erred in vacating the order on the 

basis that MSHA could have corrected the hazard using the enforcement 

mechanisms of section 104 of the Act·. 

Alcoa argues that the judge correctly concluded that the order was 

defective because no accident had occurred. It contends that no one was 

injured as a result of the alleged mercury contamination and that the 

contamination was otherwise outside the scope of accident in section 3(k). In 

addition, the Secretary failed to present any evidence that there had been a 

sudden spill of mercury or an increase in the level of mercury before the 

issuance of the order. Alcoa argues that, in the absence of an accident, the 

Secretary is not authorized to issue orders to take control of an area to 

prevent future injuries. 

We agree with the judge that an accident is "a necessary precondition to 

the issuance of a section 103(k) order." 14 FMSHRC at 1722. The judge 

dismissed the case because he found that the Secretary did not prove that an 

accident had occurred in the R-300 area. Thus, the primary issue in this case 

is evidentiary in nature: whether the Secretary established that the mercury 

contamination was the result of an accident. 

The Secretary maintains that the mercury release qualifies as an 

accident as that term is defined in section 3(k) of the Mine Act. The 

Secretary correctly asserts that "a mercury release that involves 'injury to, 

or death of, any person' is an accident" under section 3(k) of the Act. 

5 Section 3(k) provides: 

"accident" includes a mine explosion, mine 

ignition, mine fire, or mine inundation, or injury to, 

or death of, any person .... 

30 u.s.c. § 802(k). 

1824 
S. Br. 8. The Secretary further argues that the "fact that the extent of 

injury to miners cannot yet be determined does not mean that the kind of 

exposure that can produce injury has not already occurred." S. Reply Br. 5. 

He argues that it would be inconsistent with the protective purpose of section 

103(k) to hold that "MSHA could not issue a Section 103(k) order protecting 

miners from continued exposure until exposure had manifested itself in 

diagnosable injury." In the evidentiary context of this case, the 

Secretary's argument is misplaced. 

The Secretary established that mercury vapor was present at ground 

level, but not in a miner's normal breathing zone. The Secretary also 

established that approximately 10 to 20 small beads of mercury were found in 

cracks around the foundations and motor mounts. Tr. 174-75, 206. The 

Secretary did not, however, offer any evidence that miners had been exposed to 

mercury vapor in violation of the applicable threshold limit value ("TLV") 6 

or that miners had come in contact with the liquid mercury. The Secretary's 

position that an injury had occurred, but that the extent of the injury had 

not yet been determined, has no foundation in the record. The Secretary 

established neither overexposure to mercury vapor or harmful contact with 

liquid mercury, nor resulting il,lness or injury. 7 

The Secretary points out that the definition of accident in section 3(k) 

of the Mine Act "includes a mine explosion, mine ignition, mine fire or mine 

inundation" even if no injury results. 8 S. Br. 7-8. The Secretary does not 

contend that the events specified in the definition encompass this mercury 

contamination. Rather, the Secretary argues that the word "includes" in the 

definition is a term of enlargement. S. Br. 9, n.5. He maintains that an 

event not specifically listed in the definition falls within the definition of 

"accident" if it is "similar in nature or present[s] a similar potential for 

6 30 C.F.R. § 56.5001 provides that exposure to airborne contaminants (such 

as mercury vapor) shall not exceed the TLV' s established by the American 

Conference of Governmental Industrial Hygienists. 

7 Supervisory Inspector Fink testified that the order was issued because 

of "perceived concern[s] about the mercury ... to make sure that the employees 

working there were first in priority .... " Tr. 93. He stated that the section 

103(k) order was issued to force Alcoa to sample the area, post and barricade it, 

and make sure that employees entering the area wore protective equipment. Tr. 

127. He issued the order to keep "everybody out until we've got time to look at 

this thing and decide where we're going .... " Tr. 134-35, 137. Margie Zalesak, 

a senior l'1SHA industrial hygienist, stated that the control order was issued 

because "the [environmental] contractor did not appear ... knowledgeable in the 

handling of mercury" to make sure that "anyone going into the area would be 

protected .... " Tr. 204. 

8 "Inundation" is defined as an "inrush of water on a large scale which 

floods the entire mine or a large section of the workings." Bureau of Mines, 

U.S. Department of the Interior, Die tionary of. Mining. Mineral, and Related Terms 

587 (1968). "Inundation," as used in section 3(k) of the Mine Act, may include 

the inrush of any liquid or gas. See 30 C.F.R. § 50.2(h)(4). 

1825 
~nJury or death as a mine explosion, ignition, fire, or inundation." S. Reply 

Br. 3-4. In general, the Secretary is correct. Whether a specific event is 

similar in nature must, however, be determined on a case-by-case basis. 9 

The Secretary contends that the mercury contamination at Alcoa's 

facility was similar in nature to the events specifically listed in the 

definition. The Secretary presented no evidence, however, that the mercury 

contamination involved in this case was similar in nature or presented a 

potential for injury similar to that of a mine explosion, ignition, fire or 

inundation. 10 Mine explosions, ignitions, fires and inundations typically 

are sudden events that pose an immediate hazard to miners and require 

emergency action. If there is a sudden spill of mercury or other hazardous 

chemical in an active area of a mine, it may be reasonable for the Secretary 

to conclude that an accident has occurred. However, the Secretary did not 

establish such an occurrence at Point Comfort. 

The Secretary has issued regulations at 30 C.F.R. Part 50, implementing 

the accident reporting provisions of section 103 of the Mine Act, 30 U.S.C. 

§ 813. In Part 50, the Secretary sets forth the meaning of the term 

"accident" for reporting purposes. The Secretary has listed at 30 C.F.R. 

§ 50.2(h) events that he considers to·be similar in nature and severity to a 

mine explosion, ignition, fire or inundation. Although the list is not 

exhaustive, it is noteworthy that neither chemical spills nor chemical 

contamination are included. Moreover, the events listed require quick action. 

They include an entrapment of an individual for more than 30 minutes; an 

unplanned inundation of a mine by a liquid or a gas; certain unplanned roof 

falls; unstable impoundments, refuse piles and culm banks that require 

emergency action; and damage to hoisting equipment that endangers an 

individual. 

9 The Secretary argues that the judge concluded that the release of mercury 

was not an accident because mercury contamination is not included in the list of 

events in the statutory definition. S. Br. 11 12; S. Reply Br. 6 n.l. We 

believe that the Secretary has misconstrued the judge's decision. The judge 

recognized that the events listed in the definition were "not meant to be 

exclusive or exhaustive." 14 FMSHRC at 1722. The critical determination by the 

judge, however, was his finding that, short of "torturing the terminology," no 

accident was shown. 14 FMSHRC at 1723. 

10 The Secretary's witnesses stated that they were not sure of the source 

of the mercury or quantity present in the R-300 area but that they assumed that 

the mercury had contaminated the area when chlorine was being produced there. 

See,~. Tr. 94. Industrial hygienist Zalesak described the situation as being 

very unusual because the contaminated area was not in active production. Tr. 

200. She stated that it was unlikely that these beads had been "sitting [on the 

surface] for 13 years" because mercury "vaporizes off." Id. She assumed that 

the mercury had been deposited in the area when chlorine was produced and that 

the mercury was seeping up through cracks in the concrete and around the 

foundation. Tr. 200, 203, 206. 

1826 
Finally, the Secretary argues that section 103(k) should not be limited 

to sudden occurrences that create immediate hazards but should equally apply 

to "gradual occurrences that create more long-term hazards" because they 

create a similar potential for injury. S. Br. 13-14. He contends that, 

because "gradual occurrences and long-standing conditions" can produce serious 

injuries, they are "no less amenable than sudden events to the remedial scheme 

authorized by section 103(k)." S. Br. 14. The Secretary maintains that, 

since there had been "an unplanned and uncontrolled release of a known toxic 

chemical," MSHA was authorized to issue the accident control order to prevent 

injury to any person and to insure that the operator has a plan to return the 

affected area to normal. Id. 

The Secretary may be authorized to issue a control order in the event of 

a gradual unplanned release of a toxic chemical, but only if there has been an 

accident as that term is defined by the Mine Act. The Secretary's witnesses 

did not attempt to relate the hazards associated with the conditions in the 

area to an event similar to a mine explosion, fire or inundation. While we 

agree with the Secretary that an accident need not necessarily involve a 

sudden occurrence that creates an immediate hazard, the evidence in this case 

fails to support the Secretary's argument that this particular gradual release 

of a toxic chemical was similar in nature or presented the same potential for 

injury as the events set forth in the statutory definition of accident. 11 

We disagree with the Secretary's argument that the judge vacated the 

section 103(k) order because MSHA could have achieved the same results through 

the more usual remedial mechanisms in the Mine Act and that he thereby 

improperly intruded on the Secretary's enforcement discretion. S. Br. 15-16. 

The judge's reasoning is based on his determination that the occurrence of an 

accident had not been proven. 14 FMSHRC at 1722-23. 

As the judge noted, however, the Secretary was not without a remedy in 

this case. As discussed above, the Secretary has standards requiring 

operators to post or barricade hazardous areas and requiring that protective 

clothing be worn in areas where chemical hazards are present. 30 C.F.R. 

§§ 56.20011 & 56.15006; ~notes 3 & 4, supra. In addition, the Secretary 

has standards that limit the exposure of workers to airborne contaminants. 

See note 6, supra. If Alcoa failed to abate a citation alleging a violation 

of these standards, MSHA could issue a withdrawal order pursuant to section 

11 Industrial hygienist Weems testified that the conditions at R-300 

presented a potential mercury vapor problem because workers could get mercury on 

their work boots, track the mercury into confined spaces and expose workers to 

harmful concentrations of mercury vapor. Tr. 154, 164. Industrial hygienist 

Zalesak testified that mercury can be absorbed through inhalation and through the 

skin. Tr. 198. At the time the order was issued, however, warning signs and 

barricades had been posted in the R-300 area in accordance with 30 C.F.R. § 

56.20011. In addition, it appears that workers did not regularly enter the area 

because, as Supervisory Inspector Fink testified, the R-300 area was only used 

"occasionally for storage." Tr. 106. Moreover, MSHA's investigation revealed 

that there was no detectable mercury vapor in the breathing zone of workers who 

might enter the. area. 

1827 
104(b) of the Mine Act, 30 U.S.C. § 814(b). If Alcoa continued to violate 

these standards, it would be subject to the sanctions set forth irt sections 

104(d) and (e) of the Act, 30 U.S.C. § 814(d) & {e). 

Neither the judge's nor our decision in this case interferes with the 

Secretary's general authority under section 103 of the Act, 30 U.S.C. § 813, 

to continue his investigation of the mercury release at Point Comfort. We do 

not disagree with the Secretary's broad interpretation of section 103(k) of 

the Act. Our conclusion in this case is based solely on the record developed 

before the judge and we do not suggest that the gradual release of a toxic 

substance can never qualify as an accident subject to the provisions of 

section 103 (k) . 12 

12 On August 4, 1993, the Secretary asked the Commission to take official 

notice of a document published by the EPA in the Federal Register on June 23, 

1993, which indicates that the Point Comfort facility has been included in a list 

of potential hazardous waste sites warranting further investigation by the EPA. 

In response, Alcoa asked the Commission to deny the Secretary's request as 

"improper, irrelevant and untimely." As a general matter, the record on review 

before the Commission is limited to the record developed before the judge. See 

~. Twentymile Goal Co., 15 FMSHRC 941, 946-47 (June 1993); Union Oil Co. of 

California, 11 FMSHRC 289, 300-01 (March 1989). The Secretary has not 

demonstrated the relevance of the EPA document to this proceeding or set forth 

a compelling reason why the Commission should take official notice of it. 

Accordingly, the Secretary's request is denied. 

1828 
III. 

Conclusion 

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

Distribution 

Colleen A. Geraghty, Esq. 

Office of t~e Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Timothy P. Ryan, Esq. 

Eckert, Seamans, Cherin & Mellott 

600 Grant Street, 42nd Floor 

Pittsburgh, PA 15219 

Arlene Holen, Chairman 

L Cl . N l C . . . a1r e son, omm1ss1oner 

Administrative Law Judge Roy J. Maurer 

Federal Hine Safety & Health RevieH Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, VA 22041 

1829 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSr~) 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 24, 1993 

v. Docket Nos. WEST 91 563 

WEST 91 624 

AMERICAN MINE SERVICES, INC. 

BEFORE: Holen, Chairman; Back1ey, Doyle, and Nelson, Commissioners 

BY THE COMMISSION: 

This civil ty proceeding under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seq. (l988)("Mine Act" or "Act"), 

presents the issue of whether a violation by American Mine Services, Inc. 

("AMS") of 30 C.F.R. § 75.1400-3 1 was caused by AMS's unwarrantable failure 

to comply with the standard. Administrative Law Judge John J. Morris 

concluded that the violation was not a result of the operator's unwarrantable 

failure. 14 FMSHRC 2123 (December 1992)(ALJ). The Commission granted the 

1 Section 75.1400-3, ~ntit1ed "Daily examination of ho 

provides: 

Hoists and elevators shall be examined daily and 

such examinations shall include, but not be limited 

to, the following: 

* * * 

(b) (l) An examination 

of the rope fastenings for defects; 

(2) An examination of the safety catches; 

(3) An examination of the cages, platforms, 

elevators, or other devices for loose, missing or 

defective parts; 

(4) An examination of the head sheaves to check 

for broken flanges, defective bearings, rope 

alignment, and proper lubrication; and 

(5) An observation of the lining and all other 

equipment and appurtenances installed in the shaft. 

1830 

equipment," 
Secretary's petition for discretionary review, which challenges the judge's 

finding on unwarrantable failure. For the reasons that follow, we affirm. 

I. 

Factual and Procedural Background 

AMS operates the west Elk Mine, otherwise known as the Mount Gunnison 

No. l Mine, an underground coal mine in Somerset, Colorado. On January 23, 

1991, a hoist malfunctioned, trapping three miners in the ventilation shaft 

for two and a half hours. The malfunction was caused by a collar door jam. 

' The hoist operator had not examined and checked the hoisting equipment 

prior to transporting the three miners. Inspector Cosme Gutierrez of the 

Department of Labor's Mine Safety and Health Administration ("MSHA") 

investigated the incident. Inspector Gutierrez issued a citation to AMS under 

section l04(d)(l) of the Mine Act, 30 U.S.G. § 814(d)(l), for failure to make· 

a daily inspection of the hoisting equipment as required under section 

75.1400-3. 

AMS contested the citation, and a hearing was held before Judge Morris. 

The operator argued that there had-been no violation of section 75.1400-3 

because AMS inspected the hoist on a daily basis, as required by the standard. 

The judge concluded that AMS violated section 75.1400-3 by failing to check 

the hoisting equipment "at the commencement of the shift or at least prior to 

[the] beginning of any hoist functions." 14 FMSHRC at 2128. The judge also 

concluded that the violation was significant and substantial ("S&S") 2 in 

nature. 14 FMSHRG 2128-29. He determined, however, that AMS's conduct did 

not constitute an unwarrantable failure to comply with the safety standard. 

14 FMSHRC at 2129. with respect to assessment of a civil penalty, the judge 

concluded that AMS was moderately negligent. Id. 

The Secretary appealed the judge's finding on unwarrantable failure. 

AMS did not seek review of the judge's determinations as to violation or S&S 

designation. 

II. 

Disposition 

On review, the Secretary asserts that the judge failed to consider two 

evidentiary factors presented below, which, he asserts, establish unwarrantable failure. The Secretary had introduced evidence that the mine operator 

knew of recent malfunctions in the upper limit switch3 of the hoist, which 

2 The S&S terminology is taken from section 104(d)(l) of the Act, which 

distinguishes as more serious in nature any violation that "could significantly 

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

health hazard .... " 

3 A "limit switch" is a "device fitted to an electrically driven hoist or 

winding engine which becomes effective at the end of a wind to prevent the cage 

overwinding or underwinding." Bureau of Mines, U.S. Department of Interior, 

1831 
should have put him on notice of a need for heightened scrutiny of the hoist. 

In addition, the hoist operator's explanation to the inspector, that he was 

too busy to perform the test, showed that the operator knew the hoist should 

have been inspected before the miners were lowered. The Secretary argues that 

the judge's decision, which overlooks these factors, is not supported by 

substantial evidence. The Secret4ry seeks a remand for further consideration 

of the record. 

In finding the Secretary's evidence inadequate to establish unwarran~ 

table failure, the judge discussed and discounted the fact that AMS was cited 

for a violation of 30 C.F.R. § 75.1400~4 a few minutes before issuance of the 

contested citation. The judge did not discuss the evidence referenced by the 

Secretary on appeal. Nevertheless, we conclude, based on the record before 

us, that AMS's actions do not constitute unwarrantable failure. 

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

Commission determined that unwarrantable failure is aggravated conduct 

constituting more than ordinary negligence. This determination was derived, 

in part, from the plain meaning oL."unwarrantable" ("not justifiable" or 

"inexcusable"), "failure" ("neglect of an assigned, expected, or appropriate 

action"), and "negligence" ("the failure to use such care as a reasonably 

prudent and careful person would use ... characterized by 'inadvertence,' 

'thoughtlessness,' and 'inattention'"). Id. at 2001. Unwarrantable, failure 

is characterized by such conduct as "reckless disregard," "intentional 

misconduct," "indifference" or a "serious lack of reasonable care." Id. at 

2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 193-94 (February 

1991). The Commission's determination was also based on the purpose of 

unwarrantable failure sanctions in the Mine Act, the Act's legislative 

history, and on judicial precedent. Emery, 9 FMSHRC at 2002-03. 

The Secretary and AMS stipulated that AMS inspected the hoist three 

times daily, once each shift. Tr. 164-65. The standard requires that hoists 

and elevators "shall be examined daily .... " 30 C.F.R. § 75.1400-3. AMS had 

inspected the hoist on the night shift of January 21, which was the last 

working day and shift before the hoist malfunction. Tr. 177-79. The record 

also contains undisputed evidence that the hoist was generally maintained in 

good working order and that the hoisting apparatus exceeded MSHA's safety 

standards. Tr. 170; Tr. II 230. 

In 9 FMSHRC at 2004-05, the Commission determined that the 

operator's failure to detect four popped roof bolts was not aggravated conduct 

where Emery had otherwise taken additional measures to provide support and was 

not indifferent to roof support. Rushton Mining Co., 10 FMSHRC 249, 

253 (March 1988). Here, AMS had taken extra measures with respect to the 

hoist apparatus itself and the frequency of inspections and, in general, was 

not indifferent to hoisting safety measures. 

Dictionary of Mining. Minerals and Related Terms 643 (1968). Inspector Gutierrez 

testified that "limit switches or safety valves would cause that cage to shut off 

before it hits the top of the chutes." Tr. 57. 

1832 
The Secretary contends that the required daily inspection must be 

performed prior to use of the hoist.. At the hearing, the MSHA witnesses 

testified as to that timing requirement but said they knew of no written 

document .specifying such a Tr. 155-56. The regulation at issue 

does not expressly set forth when, during a day or during a shift, a hoist 

inspection is to be made. A potential f9r confusion arises from the 

difference between the language of the regulation and MSHA's unwritten 

enforcement policies. In King Knob Coal Co., Inc., 3 FMSHRC 1417, 1422 (June 

1981), the Commission held that confusing or unclear MSHA policies are a 

factor mitigating operator We conclude that the absence of 

specific guidance by MSHA its view of the meaning of "daily" 

examination under section 75.1400 3 mitigates against a finding of aggravated 

conduct on the part of AMS. 

As to prior malfunction of the limit switch, the operator's master 

mechanic, Tony Bowac, testified that he had adjusted and checked the limit 

switch the day before the incident. The log book contained the notation of 

"check and adjust" on January 22. Tr. II 203-04. The Commission has 

explained that a defective condition may place an operator on notice of the 

need for heightened scrutiny to ensure compliance with Mine Act 

See Eastern Associated Coal Corp., 13 FMSHRC 178, 187 (February 1991) 

(continuing leakage problem the operator on notice of the need for 

heightened scrutiny of the leaks); Youghiogheny & Ohio Coal Co., 9 FMSHRC 

2007, 2011 (December l987)(history of roof falls at mine placed operator on 

notice that heightened scrutiny of roof conditions was vital). There is no 

evidence, however, to suggest that a limit switch malfunction should have 

alerted the operator to a possible problem with the collar door. AMS acted 

appropriately by inspecting and adjusting the limit switch prior to us the 

hoist. 

The Secretary also relies on the inspector's testimony that the hoist 

operator told him that he had "neglected" to examine the hoist prior to its 

use due to a "hectic morning." Tr. 61. This statement, even taken at face 

value, neither constitutes a defense nor, under the circumstances, indicates 

the aggravated conduct of unwarrantable failure. Emery, 9 FMSHRC at 2003 04. 

Cf., ~. Rochester & Pittsburgh, 13 FMSHRC at 193-94 (aggravated conduct 

shown where operator failed to make the required weekly examination, but 

certified that he had); 9 FMSHRC at 2011 (aggravated 

conduct presented when foreman demonstrated serious lack of reasonable care by 

violating clear terms of roof control plan). 

\.Je conclude that substantial evidence4 supports the judge's 

determination that the failure to check the hoist before lowering the miners 

did not amount to aggravated conduct. 14 FMSHRC at 2129. Although the 

4 The Commission is bound by the substantial evidence test when 

an administrative law judge's factual determinations. 30 U.S.C. § 823(d)(2) 

(A) (ii) (I). "Substantial evidence" means "such relevant evidence as a reasonable 

mind might accept as adequate to support [the judge's] conclusion." 

& Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (November 1989), 

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

1833 
judge failed to address some of the Secretary's evidence, the evidence 

presented on this record, including that on which the Secretary relies, 

supports no other conclusion than that the conduct of AMS was not 

unwarrantable failure. In such circumstances, a remand to the judge for 

reconsideration would serve no purpose. See Donovan v. Stafford Construction 

Co., 732 F.2d 954, 961 (D.C. Cir; l984) (remand unnecessary because evidence 

could justify only one conclusion). 

1834 
III. 

For the foregoing reasons, we affirm in result: the judge's determination 

that t:he conduct of ANS was not unwarrantable failure. 

Distribution 

Susan E. Long, Esq. 

Office o the So-icitor 

U.S. Department of Labor 

40LS wilson Blvd. 

Arlington, VA 2203 

Hr. Hichael Schutlz 

American Mine Services, Inc. 

14160 East Evans Avenue 

Aurora, Colorado 80014 

Arlene Holen, Chainnan 

Richard V. 

L. Clair Nelson, Commissioner 

Administrative Law Judge John J. Horris 

Federal Mine Safet 

280 Federal Bldf. 

1244 Speer Boulevard 

Denver, CO 80204 

& Health Rev ie\·l Commission 

1835 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

Se;;ternber 27. l.993 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. Docket No. WEST 91-251 

ENERGY WEST MINING COMPANY 

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

DECISION 

BY THE COMMISSION: 

This civil penalty proceeding arising under the Federal Mine Safety and 

Health Act of.l977, 30 U.S.C. § 801 et seq. (l988)("Mine Act" or "Act"), 

presents the issue of whether a violation by Energy West Mining Company 

("Energy West") of 30 C.F.R. § 75.503 (1992) 1 was significant and substantial 

("S&S") in nature. 2 Administrative Law Judge Michael Lasher concluded that 

the violation was S&S and assessed a $750 civil penalty. 14 FMSHRC 1595 

(September 1992)(ALJ). For the reasons discussed below, we remand for further 

proceedings. 

l 30 C. F .R. § 75.503, entitled "Permissible electric face equipment; 

maintenance," provides in pertinent part: 

The operator of each coal mine shall maintain in 

permissible condition all electric face equipment ... 

which is taken into or used inby the last open crosscut 

of any such mine. 

2 The S&S terminology is taken from section 104(d)(l) of the Act, 30 U.S.C. 

§ 814(d)(l), which distinguishes as more serious in nature any violation that 

"could significantly and substantially contribute to the cause and effect of a 

... mine safety or health hazard .... " 

1836 
I. 

Factual and Procedural Back~round 

Energy West operates the Cottonwood Mine, an underground coal mine in 

Huntington, Utah. On October 24, 1990, Donald Gibson, an inspector of the 

Department of Labor's Mine Safety and Health Administration ("MSHA"), 

conducted an examination of the electrical equipment at the longwall mining 

unit in the 16 West Section. At one longwall shield, the inspector discovered 

an impermissible opening between the ballast box3 and its cover. The 

inspector inserted a measuring gauge into the plane flange joint and 

determined that the opening was .005 of an inch, exceeding the permissibility 

standard set forth at 30 C.F.R. § 18.3l(a)(6). 4 The inspector, together with 

Energy West's foreman, Tom Kerns, removed the box's cover and discovered that 

rust had caused the opening. He issued a citation to Energy West alleging an 

S&S violation of section 75.503. 

MSHA subsequently proposed a civil penalty of $350 for the alleged 

violation and Energy West contested it. At the hearing before Judge Lasher, 

Energy West conceded the violation but contested its S&S designation. 

The judge concluded that the violation was S&S. 14 FMSHRC at 1623. 

Because of the gravity of the ignition hazard contributed to by the violation, 

the presence of miners, and Energy West's negligence, the judge assessed a 

civil penalty of $750. Id. 

We granted Energy West's petition for discretionary review, which 

challenges the judge's S&S determination and his civil penalty assessment. 

II. 

Disposition of Issues 

A violation is properly designated as being 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 an 

illness of a reasonably serious nature." Cement Division. National Gypsum 

Co., 3 FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1, 3-4 

(January 1984), the Commission explained: 

3 Steel ballast boxes, located on the longwall shields, provide power for 

auxiliary lighting. Each box is approximately 8~-by-ll inches in size and 2 

inches thick. A 120-volt cable enters one side of the box, passes through a 

power supply module encased in rubber, and is connected to the next ballast box. 

An aluminum cover about 3/8 of an inch thick is bolted onto each box. The "plane 

flange joint," formed where the cover meets the box, prevents sparks or 

explosions from escaping the box. Tr. II 117, 143-44, 150; Exs. G-4, G-5. 

4 The regulation requires that the opening for the cited ballast box not 

exceed .004 inch. 30 C.F.R. § l8.3l(a)(6). 

1837 
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 also Austin Power Co. v. Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988), 

aff'~ 9 FMSHRC 2015, 2021 (December l987)(approving Mathies criteria). The 

Commission has held that the third element of the Mathies formula "requires 

that the Secretary establish a reasonable likelihood that the hazard 

contributed to will result in an event in which there is an injury." U.S. 

Steel Mining Co., 6 FMSHRC 1834, 1836 (August l984)(emphasis in original). 

When examining whether an explosion or ignition is reasonably likely to occur, 

"it is appropriate to consider whether a 'confluence of factors' exists to 

create such a likelihood." 15 FMSHRG 949, 953 (June 1993) 

~~oo.Texas~ulf, Inc., 10 FMSHRC 49'8, 501 (April1988). 

The judge noted that the first element of the test, violation of 

a safety standard, was conceded. 14 FMSHRC at 1621. The judge determined 

that the second element, a discrete safety hazard contributed to by the 

violation, was present because the permissibility violation posed the danger 

of a methane or coal dust explosion. 14 FMSHRG at 1621-22. 

With respect to the third element, which is the subject of dispute on 

review, the judge concluded that a reasonable likelihood of an injury was also 

present. 14 FMSHRC at 1622. The judge analyzed the evidence from the 

standpoint of a "substantial possibility" of injury standard. See 14 FMSHRC 

at 1607-1609, 1622. As to the fourth element, a reasonable likelihood that 

any injury would be of a reasonably serious nature, the judge found that, 

because miners worked near th0 area of the violation, serious injuries would 

result if an explosion occu::::red. 14 FMSHRG at 1622. 

On review, Energy West challenges only the judge's findings as to the 

third element of It contends that the judge's conclusion is not 

supported by substantial evidence 5 in the record and that the judge relied on 

an improper standard. The judge found no "specific evidence" of prior 

levels of methane in the mine, but he deemed "credible and convincing" 

the inspector's testimony that a methane explosion was always possible. 14 

FMSHRC at 1622. He noted that the violation occurred within 150 feet of 

5 The Commission is bound by the substantial evidence test when reviewing 

an administrative law judge's factual determinations. 30 U.S.G. § 823(d)(2) 

(A) (ii) (I). "Substantial evidence" means "such relevant evidence as a re:asonable 

mind might accept as adequate to support [the judge's] a conclusion." fochester 

& Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (November 1989), quoting 

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

1838 
extraction and that the longwall shearing machine generates and 

coal dust. Id. The judge credited the inspector's testimony that 

the opening in the plane joint was large enough either to permit 

electrical sparking to the outside or to admit methane or coal dust into the 

opening to cause an explosion. 14 FMSHRC at 1619, 1622. The judge concluded 

"that there existed a substantial possibility that the hazard contributed to 

by the violation would have resulted in an injury or fatality occurring," and 

that, therefore, the third element was established. 14 FMSHRC at 

1622. 

The Commission has uniformly applied the Mathies test to analyze S&S 

violations since 1984. The judge expressed his view that his finding of a 

substantial possibility of a resulting injury satisfied the reasonable 

likelihood element. 14 FMSHRC at 1622. We disagree with the judge that a 

substantial possibility formulation is the equivalent of reasonable 

likelihood. Such a formulation is at variance with the Commission's criteria 

for determining S&S. We acknowledge the judge's effort to the Mathies 

test, but we decline to alter that test. Accordingly, we conclude that the 

judge erred in applying a substantial possibility concept in place of 

reasonable likelihood. 

The judge's substantial possibility analysis does not lend itself to 

review under the third standard. Therefore, we remand this case to 

the judge for application of the third Mathies element, i.e., whether there 

was a reasonable likelihood that the hazard contributed to would result in an 

ury. 

We note two additional issues to be resolved. The judge made unclear 

findings as to ignitable levels of methane in the past and we request the 

judge to clarify his findings on that subject. 6 The j referred to the 

mine as "gassy" (14 FMSHRC at 1622) and, on review, the parties have disagreed 

as to whether the mine is subject to spot inspections under section 103(i) of 

the Act, 30 U.S.C. § 813(i). The Mine Act does not employ "gassy" 

or "nongassy" classifications. We ask the judge on remand to clarify whether 

the Cottonwood Mine was ect to section 103(i) 

6 The judge found that there was no evidence of prior detection of high 

levels of methane, although he noted testimony by Inspector Gibson that the mine 

had experienced ignitable levels of methane. 14 FMSHRC at 1620, 1622. The judge 

also found, in his analysis of another citation decided in this consolidated 

proceeding, that ignitable levels of methane have never been detected in this 

mine. 14 FMSHRC at 1606 n.9. 

1839 
III. 

Conclusion 

For the foregoing reasons, we vacate the judge's S&S determinations and 

remand for analysis pursuant to the standard. We do not reach the 

civil penalty issues raised by Energy West. 

Distribution 

Thomas C. Means, Esq. 

Crowell & Moring 

1001 Pennsylvania Ave., N.W. 

Washington, D.C. 20004 

Tana Adde, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Arlene 

~JUk Holen, Chairman~ 

~ 

z},uy~ A? Doyle Commissioner d~ 

L. 

~~ Clair Nelson, Commissioner 

Administrative Law Judge Michael Lasher, Jr. 

Federal Mine Safety & Health Review Corrunission 

280 Federal Building 

1244 Speer Boulevard 

Denver, Colorado 80204 

1840 
ADMINISTRATIVE LAW JUDGE DECISIONS 

J'BDBRAL J[[J!IB SAFETY UJD BBAL'1'B RE'VIBW COXI!I.I:SS:IOJI 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 3 1993 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. VA 93-52-D 

ex rel. , ON BEHALF OF 

DENNIS RAY BURRESS, NORT CD 92-05 

Complainant 

v. V. P. No. 6 

GARDEN CREEK POCAHONTAS 

COMPANY, WILLIAM FIX & 

CLIFTON HUCKLEBERRY, 

Respondents 

DECISION APPROVING SETTLEMENT 

Before: Judge Fauver 

This is a discrimination proceeding under § 105(c) 

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

§ 801 et seq. 

The parties have moved for an order approving a proposed 

settlement and dismissing the case. 

FOR GOOD CAUSE SHOWN, the motion is GRANTED. 

ORDER 

WHEREFORE IT IS ORDERED that: 

1. The settlement is approved, and the parties are 

directed to comply with all of its terms. 

2. Subject to compliance with the settlement, this 

proceeding is DISMISSED. 

(J)dt.~ 1-lt#l v ~ William Fauver 

Administrative Law Judge 

1841 
Distribution: 

Caryl L. Casden, Esq., Office of the Solicitor, u.s. Oepartment 

of Labor, 4015 Wilson Boulevard, Suite 516, Arlington, VA 22203 

(Certified Mail) 

Marshalls. Peace, Esq., 201 W. Vine Street, Lexington, KY 40507 

(Certified Mail) 

jefw 

1842 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 71993 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ABYSS SAND & GRAVEL, INC., 

Respondent 

Docket No. SE 92-493-M 

A.C. No. 01-02915-05505 

Baker Mann Mine 

'DECISION 

Appearances: Kathleen G. Henderson, Esq., Office of the 

Solicitor, u.s. Department of Labor, Birmingham, 

Alabama, for the Petitioner. 

Before: Judge Koutras 

Statement of the Case 

This proceeding concerns a proposal for assessment of civil 

penalty filed by the petitioner against the respondent pursuant 

to section 110(a) of the Federal Mine Safety and Health Act of 

1977v 30 u.s.c. § 820(a), seeking civil penalty assessments for 

two alleged violations of certain mandatory safety standards 

found in Part 56, Title 30, Code of Federal Regulations. The 

respondent contested the alleged violations and a hearing was 

convened in Montgomery, Alabama, pursuant to notice. The 

petitioner appeared, but the respondent did not, and the hearing 

proceeded as scheduled. For reasons discussed later in this 

decision, the respondent is held to be in default, and is deemed 

to have waived its opportunity to be further heard in this 

matter. 

Applicable Statutory and Regulatory Provisions 

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

Pub. L. 95-164, 30 u.s.c. § 801, et seq. 

2. Section 110(i) of the 1977 Act, 30 u.s.c. § 820(i). 

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

1843 
Issues 

The issues presented in this case are (1) whether the 

petitioner has established the violations as cited in the 

contested citations, and (2) the appropriate civil penalties 

that should be assessed for the violations. 

Discussion 

section 104(a) non-"S&S" Citation No. 3426449, July 21, 

1992, cites an alleged violation of mandatory safety standard 

30 c.F.R. § 56.1413l(a), and the cited condition or practice 

states as follows (Exhibit P-4): 

A seat belt was not provided for the Euclid Model R-22 

haul truck and was operating in the pit area. However, 

the ground was level and was not operating on elevated 

roads. 

Section 104(a) "S&S" Ci~ition No. 3426448, July 21, 1992, 

cites an alleged violation of mandatory safety standard 30 C.F.R. 

§ 56.14132(a), and the cited condition or practice states as 

follows (Exhibit P-5): 

The back alarm was not working on the 980 Cat end 

loader and was operating in the plant and stock pile 

areas. 

The respondent failed to appear at the hearing in this 

matter. The notices of hearing were mailed to the respondent's 

business address of record by regular mail and certified mail. 

The certified mailings were returned from the post office as undeliverable 99 p 11 unclaimedn and "no mail receptacle". 

The applicable Commission default Rule 66, 29 C.F.R. 

§ 2700.66p provides as follows: 

(b) Failure to attend hearing. If a party fails to 

attend a scheduled hearing, the Judge, where 

appropriater may find the party in default or dismiss 

the proceeding without issuing an order to show cause. 

c) Penalty Proceedings. When the Judge finds a party 

default in a civil penalty proceeding, the Judge 

shall also enter an order assessing appropriate 

penalties and directing that such penalties be paid. 

William Wilkie, MSHA Inspector and field supervisor, 

confirmed that he sent an inspector to the respondent's mine site 

in an attempt to contact the respondent, but found the entrance 

gate closed, and he could not gain entry. Telephone calls were 

also placed to the mine phone number listed on MSHA's Legal 

1844 
Identity form, as well as the respondent's home, but no one 

answered the phone (Tr. 54). Mr. Wilkie confirmed that MSHA 

permanently closed the mine on March 29, 1993, and he did not 

know the whereabouts of the respondent mine operator {Tr. 54). 

The Birmingham, Alabama solicitor's office advised me that 

several prehearing attempts to contact the respondent by 

telephone at his last known business and residence telephone 

numbers were to no avail (Tr. 55-56). 

In view of the foregoing, the petitioner's counsel moved 

that a default judgment be entered against the respondent 

pursuant to commission Rule 66(b), 29 C.F.R. § 2700.66(b), and 

that both of the citations be affirmed (Tr. 5-6). The motion was 

granted from the bench (Tr. 6), and my ruling in this regard is 

herein reaffirmed, and I find the respondent to be in default. 

Petitioner's Testimony and Evidence 

''•· 

The evidence presented by the petitioner in the course of 

the hearing establishes that the respondent is subject to the 

jurisdiction of the Act, and that the petitioner correctly 

exercised its enforcement jurisdiction in inspecting the mine and 

issuing the citations in this case (Tr. 8-12). 

MSHA Inspector Jose o. Garcia testified that he inspected 

the mine in July, 1992, and issued the citations in question. He 

confirmed that a seat belt was not provided for the cited truck 

which he observed being operated. He stopped the truck and 

observed that it did not have a seat belt for the operator to use 

while driving the truck (Tr. 13-16). He also confirmed that he 

inspected the cited loader and asked the operator to back it up. 

When he did 9 the backup alarm did not work (Tr. 22). 

Inspector Garcia testified to the hazards presented in 

operating the truck without a seat belt, and operating the loader 

with an inoperative backup alarm {Tr. 16-17; 22-26). He also 

explained the basis for his 11 5&511 finding with respect to the 

backup alarm violation, and he confirmed that he considered the 

seat belt violation to be non-"S&S" (Tr. 27-29; 41-47). 

Mr. Garcia testified that the plant area in question was a 

rather confined area and that the stockpiles are close to the 

conveyor belts where the truck drivers come into in the area. He 

observed people on foot in the area, and he indicated that most 

loader accidents occur when the loader is backing up in the 

direction of someone walking nearby. He confirmed that the shift 

started at 7:00a.m., and that he observed the loader shortly -

1845 
after noon and concluded that it had been operating that morning 

moving materials around the plant area and loading trucks 

(Tr. 49-52). 

Findings and Conclusions 

Fact of Violations 

As previously noted, the respondent failed to appear at the 

hearing and it has been defaulted. Based on the evidence and 

testimony presented by the petitioner, I conclude and find that 

the violations have been established, and the contested citations 

ARE AFFIRMED as issued. 

Size of Business and Effect of Civil Penalty Assessments on the 

Respondent's Ability to continue in Business 

Inspector Garcia confirmed that the respondent is no longer 

in business and that the mine has been closed. He characterized 

the respondent as a small operator employing six or seven people 

when it was in operation. The mine had an annual production of 

1,600 tons or hours worked as a sand and gravel operation 

(Tr. 32-34) . 

I conclude and find that the respondent is a small mine 

operator, and in the absence of any evidence to the contrary, and 

notwithstanding the fact that the respondent has apparently 

closed its mining operation, I cannot conclude that payment of 

the penalty assessments for the violations which have been 

affirmed will adversely affect the respondent's ability to 

continue business. 

History of Prior Violations 

The inspector confirmed that the respondent has a history of 

prior violations (Tr. 35). However, the petitioner did not 

produce a computer print-out detailing any prior violations or 

assessments, and the inspector had no knowledge of any prior 

backup alarm or seat belt violations (Tr. 39-40). The pleadings, 

which include certain information concerning the penalty criteria 

found in section llO{i) of the Act, reflect 16 prior assessed 

violations but no further information is provided (Tr. 39). 

I take note of the fact that in a prior civil penalty 

proceeding involving these same parties, Docket No. SE 92-10-M, 

I issued a settlement decision on June 24, 1992, concerning 

fourteen (14) prior violations, including a violation of 

section 56.14131, issued on July 18, 1991, and a violation of 

section 56.14132(b) (1), issued that same date. The first 

citation was assessed at $20, and the respondent agreed to settle 

it by paying the full amount. The second citation was assessed 

at $68, and it was settled for $30. 

1846 
Negligence 

The inspector testified that the seat belt violation 

resulted from a moderate degree of negligence on the part of the 

respondent (Tr. 17-19). He confirmed that he discussed the 

citations with Mr. Mann, the mine operator, and that he offered 

no explanations for the violations other than to point out that 

the truck was an old truck which was not equipped with a seat 

belt (Tr. 48}. The inspector also found a moderate degree of 

negligence associated with the backup alarm violation. I agree 

with the inspector's negligence findings and adopt them as my 

findings and conclusions. 

Gravity 

I conclude and find that the seat belt violation was 

nonserious, and that the violation for the inoperative backup 

was a serious violation. 

Good Faith Abatement 

The inspector confirmed that the seat belt violation was 

abated the day after the citation was issued (Tr. 17). He also 

confirmed that the backup alarm violation was abated and that the 

respondent acknowledged both of the violative conditions that 

were cited (Tr. 29). He confirmed that a new switch was 

installed to repair the backup alarm (Tr. 47-48). I conclude and 

find that the cited conditions were timely abated by the 

respondent in good faith. 

Civil Penalty Assessments 

Although the respondent failed to appear at the hearing and 

has been defaultedu I nonetheless take note of its answer in this 

case contesting the amount of the proposed civil penalty 

assessmentsQ The respondent asserted that its sand and gravel 

operation has been closed due to the lack of operating funds and 

its "struggle to pay bills". The respondent characterized the 

proposed civil penalty assessment of $595 for the "S&S" 

inoperative backup alarm violation, and $204 for the non-"S&S" 

seat belt violation as waamazing. 10 The petitioner"s oral motion 

that I affirm the amounts of the proposed penalty assessments was 

taken under advisement (Tr. 52). 

It is well settled that the presiding judge is not bound 

by the proposed civil penalty assessments and may make his own 

de novo penalty determinations based on the civil penalty 

criteria found in section 110(i) of the Act. Further, Commission 

Rule 66(c) authorizes the judge to enter an order assessing 

"appropriate penalties" in the case of a defaulting mine 

operator. Under the circumstances, and based on my consideration 

1847 
of all of the facts in this case, I conclude and find that the 

following civil penalty assessments are reasonable and 

appropriate in this case: 

Citation No. 

3426448 

3426449 

7/21/92 

7/21/92 

30 C.F.R. Section 

56.14132(a) 

56.1413l(a) 

ORDER 

Assessment 

$125 

$75 

The respondent IS ORDERED to pay the civil penalty 

assessments made by me for the enumerated violations which have 

been affirmed by me in this matter. Payment is to be made to the 

petitioner (MSHA) within thirty (30) days of the date of this 

decision and order, and upon receipt of payment, this matter is 

dismissed. 

Distribution: 

George A. Koutras 

Administrative Law Judge 

Kathleen G. Henderson, William Lawson, Esqs., u.s. Department of 

Labor, Office of the Solicitor, suite 201, 2015 Second Avenue 

North, Birmingham, Alabama 35203 (Certified Mail) 

Mr. Henry Mann, President, Abyss Sand & Gravel, P.O. Box 96, 

Tallasseep AL 36078 (Certified Mail} 

1848 
FEDERAL MINE SAFETY ANO HEALTH REVIEW COMMISSION 

1730 K STREET NW. 6TH FLOOR 

WASHINGTON, D.C. .?OYJE 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

DAVIS TRUCKING COMPANY, 

Respondent 

SEP 8 l99J 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 92-421-M 

A. C. No. 33-00058-05502GTJ 

Diamond Stone Mine 

DECif?ION APPROVING SETTLEMENT 

Before: Judge Merlin 

This case is before me upon a petition for assessment of the 

civil penalties under section 105(d) of the Federal Mine Safety 

and Health Act of 1977. The Solicitor has filed a motion to 

ap~rove settlement. A reduction in the penalty from $2,000 to 

$1,000 is proposed. The one violation in this case was issued 

for failing to require the use of seat belts by the operator's 

truck drivers. The Solicitor represents that the reduction is 

warranted because the operator immediately instructed its drivers 

to wear seat belts after receiving the violation. In addition, 

the Solicitor advises that the operator small in size, has a 

modest history of prior violations and is experiencing financial 

difficulties. 

I have considered the representations and documentation 

submitted in this case, and I conclude that the proffered 

settlement amount which remains substantial is appropriate under 

the criteria set forth in section llO(i) of the Act. 

WHEREFORE, the motion for approval of settlement is GRANTED, 

and it is ORDERED that the operator pay a penalty of $1,000 

within 30 days of this order. 

Paul Merlin 

Chief Administrative Law Judge 

1849 
Distribution: (Certified Mail) 

Kenneth Walton, Esq., Office of the Solicitor, U. s. Department 

of Labor, 881 Federal Office Building, 1240 East Ninth Street, 

Cleveland, OH 44199 

Marshall B. Douthett, Esq., 239 Main Street, Jackson, OH 45640 

Mr. Lou Barker, Davis Trucking Company, P. 0. Box 109, Jackson, 

OH 45640 

/gl 

1850 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1Oth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 2204 1 

SEP 91993 

RICKY DARRELL EALY, 

Contestant 

v. 

R B MINING COMPANY, INC., 

Respondent 

. . DISCRIMINATION PROCEEDING 

: Docket No. KENT 93-662-D 

: BARB CD 93-15 

RB #4 Mine 

SUMMARY DECISION AND ORDER OP DISMISSAL 

On March 9, 1993, Contestant, Ricky Darrell Ealy, filed a 

discrimination complainant with MSHA alleging that he had been 

fired on June 10, 1992, due to an injury to his knee and the need 

for surgery. On May 17, 1993, MSHA informed Contestant that it 

had determined that a violation of § 105{c) of the Act had not 

occurred. Thereupon, Mr. Ealy filed a complaint with the 

Commission. 

Respondent, in its Answer, requested dismissal of the 

Complaint on the grounds that it was not timely filed and that it 

failed to state a cause of action upon which relief could be 

granted. On August 5, 1993, I issued an Order To Show Cause 

requiring Mr. Ealy to show why the Complaint should not be 

dismissed on the grounds raised in the Answer. 

Contestant responded to this Order on August 20, 1993. With 

regard to the timeliness issue, he states that he filed his 

discrimination case nine months after he was fired because he was 

unaware of the requirement that discrimination complaints be 

filed within 60 days. 1 As to the issue of whether his complaint 

states a claim upon which relief can be granted, Contestant 

responded: 

I do feel I was discriminated against due to the injury 

to my knee and that I had to have surgery. I feel the 

only reason I was fired was so that the mines (sic) 

would not have to pay me compensation. 

1

In light of my disposition of the issue of whether 

contestant has stated a claim upon which relief can be granted, I 

need not reach the question as to whether his response is 

sufficient to avoid dismissal on timeliness grounds. 

1851 
Contestant also alleges that he was threatened with discharge if 

he filed for Black Lung Benefits. 

Mr. Ealy, in responding to the Show cause Order, attached a 

June 18, 1992, letter he filed with an agency of the State of 

Kentucky. on page 4 of that letter there is an account of 

conversation with one Steve Brock on June 13, 1992, in which Mr. 

Brock apparently told Contestant that Federal Mine Inspectors 

were on Respondent's property and that Respondent "was saying 

that (Contestant] had called them, which [Contestant] had not." 

Contestant does not allege, however, that Respondent was under 

the impression that he had contacted MSHA prior to discharging 

him on June 10, 1992. 

The record in this matter contains no allegation that 

Contestant engaged in activity protected by section 105(c) of the 

Federal Mine Safety and Health Act. See Randy J. Collier v. 

Great Western Coal. Inc., 1-2 FMSHRC 35 (Judge Broderick, January 

1990). Even if Mr. Ealy were to establish that Respondent 

discriminated against him due to his physical condition or his 

need of surgery, I would be unable to afford him any relief. 

I construe Respondent's Answer as a motion for summary 

decision pursuant to the Commission's Rules of Procedure, 29 c. 

F. R. 2700.67. Missouri Gravel Company, 3 FMSHRC 2470 (November 

1981). I find that there is no genuine issue as to any material 

fact; and that Respondent is entitled to summary decision as a 

matter of law. I, therefore, grant this motion and dismiss 

Contestantts discrimination complaint. 

Distribution~ 

ili~ Administrative Law Judge 

703-756-4572 

Ricky Darrell Ealy, P.O. Box 65 9 Hulen, KY 40845 (Certified Mail) 

Susan C. Lawsonu Esq., Buttermore, Turner, Lawson & Boggs, P.O. 

Box 935 0 Harlanu KY 40831 (Certified Mail) 

/jf 

1852 
I'BDBRAL JIIBB SUBTY UD JIBALTB RBVJ:D COIDD:SSIOB 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

S & H MINING, INC., 

Respondent 

SEP 101993 

CIVIL PENALTY PROCEEDINGS 

Docket No. SE 92-455 

A. C. No. 40-02045-03577 

: 

Docket No. SE 92-456 

A. C. No. 40-02045-03578 

s & H Mine No. 2 

DECISION 

Appearances: Thomas A. Grooms, Esq., Office of the Solicitor, 

u. s. Department of Labor, Nashville, Tennessee, 

for the Secretary; 

Imogene A. King, Esq., Frantz, McConnell & Seymour, 

Knoxville, Tennessee, for Respondent. 

Before: Judge Feldman 

The above proceedings are before me as a result of petitions 

filed by the Secretary of Labor, pursuant to section 105(d) of 

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

et seq.p (the Act). These cases were heard on June 17u 1993, in 

Knoxvilleu Tennessee.. The pertinent jurisdictional stipulations 

and stipulations concerning the civil penalty criteria contained 

in section 110(i) of the Act are of record. 

The parties moved to settle the citation in issue in Docket 

No. SE 92-456 after presentation of the Secretary's direct case. 

The terms of the settlement agreement concerning this case were 

approved at the hearing and will be incorporated as part of this 

decision. 

Remaining Docket No. SE 92-455 was tried in its entirety. 

This docket involves two 104(a) citations, designated as 

significant and substantial, associated with alleged operational 

violations of the respondent's No. 1 and No. 4 conveyor belt 

mantrips. Specifically, the respondent has been cited for 

violation of the mandatory safety standard specified in 

section 75.1403-5(a), 30 C.F.R. § 75.1403-5(a). This mandatory 

safety standard provides: 

1853 
Positive-acting stop controls should be installed 

along all belt conveyors used to transport men, and 

such controls should be readily accessible and 

maintained so that the belt can be stopped or started 

at any location. (Emphasis added). 

The threshold issue for determination is whether the 

positive-acting stop controls (the stop cords) were "readily 

accessible" as contemplated by the applicable mandatory safety 

standard. Inspector M. J. Hughett and Supervisor Harrison R. 

Boston testified on behalf of the Secretary. The respondent 

called Paul G. Smith, President of S & H Mining, Inc., and 

Lonnie P. Carden, an employee of the corporate respondent. The 

parties 1 have also filed post hearing and reply briefs which I 

have considered in my disposition of this case. 1 

PRELIMINARY FINDINGS OF FACT 

On the morning of Aprill6, 1992, MSHA Inspector 

M. J. Hughett arrived at the respondent's No. 2 Mine for the 

purpose of performing a routine inspection. Hughett was 

accompanied by Jacksboro Field Office Supervisor Harrison R. 

Boston. Boston was accompanying Hughett to evaluate Hughett's 

performance as a coal inspector. (Tr. 58). Hughett and Boston, 

accompanied by the respondent's Superintendent Charles White, 

proceeded to travel inby to inspect the mine's conveyor belt 

system. 

The No. 2 Mine utilizes four conveyor belt mantrips for the 

purpose of transporting miners from the surface to the working 

face. These four belts are numbered consecutively starting with 

originating at the surface. Each belt is approximately 

28 wide and travels at speeds between 200 and 250 feet per 

minute. To ride the belts to the faceu personnel must lie flat 

on their chests in a prone position. There is a shutoff switch 

at the head and tail end of each conveyor belt and at the middle 

of each In between each of these switches is a positiveacting stop cord that is hung to enable miners to stop or start 

the belt at any location. The stop cord installed along the 

belt line on the mineris left side as the miner is facing inby. 

Boston testified that the mandatory safety standard requires the 

stop cord to be readily accessible by positioning it where the 

1 The respondent filed proposed findings on August 5, 1993. 

Due to a delay in obtaining the transcript of this proceeding, 

the Secretary was permitted to file his proposed findings, which 

also served as reply findings, on August 30, 1993. The 

respondent filed reply findings on September 7, 1993. 

1854 
cord can be seen and reached by "just sticking [one's] arm 

straight out." (Tr. 66). As a result of his inspection, Hughett issued citations alleging violations concerning the condition of 

the stop cord for all four conveyor belts. 2 

Citation No. 3382643 - No. 1 Conveyor Belt 

The No. 1 belt entry is a comparatively old entry with 

numerous timbers and cribs on each side of the belt to support 

the roof which has sloughed and fallen over the years. (Tr. 23, 

88). This belt line is approximately 250 feet long. The height 

of the belt entry from floor to ceiling is between 28 and 34 

inches. (Tr. 26, 52, 59, 104). Clearance from the level of the 

belt line to the roof, however, is only 24 inches. (Tr. 52, 104, 

152). Approximately 25 feet inby from the portal is an area with 

diminished clearance which is approximately 45 feet long. 

(Tr. 148). In this area, the ceiling is approximately 6 inches 

lower than the remainder of the roof along the No. 1 belt entry 

due to additional collars that have been installed to support an 

area of draw rock. (Tr. 130}. In this cross-timbered area, 

clearance from the belt line to the roof decreases from 

approximately 24 inches to 18 inches. (Tr. 152). 

The weight of the miner causes the No. 1 belt to operate in 

a cupped or concave manner analogous to the shape of a hammock. 

(Tr. 120). Thus, the edges of the belt are higher than the 

middle of the belt. The bottom rollers that move the belt are 

set into holes dug in the floor. The top rollers which are 

2 inches wider than the belt are slightly higher than the edge of 

the belt line. (Tr. 136-137). 

Upon inspecting the No. 1 conveyor, Hughett concluded that 

the stop cord was not readily accessible along the entire length 

of the belt. His conclusion was based on excessive slack in the 

line which caused it to hang lower than the belt line so that it 

could not be reached. (Tr. 18). Hughett described the inaccessible slack areas as existing "all the way" along the belt line. 

(Tr. 23)o He also testified that the cords "swagged" down below 

the belt line between each timber to which the cord was attached 0 

2 Citation Nos. 3382644 and 3382645 were issued for 

violations in connection with the stop cord controls along the 

No. 2 and No. 3 conveyor belts. (Gov. Ex. 5, 6). The violative 

conditions cited in these citations are different from those 

cited in the citations in issue concerning the No. 1 and No. 4 

belt lines. (Tr. 34). The citations issued for the No.2 and 3 

belt lines were uncontested by the respondent and the proposed 

civil penalties for these citations were paid. (Tr. 26). 

1855 
although he could not recall the distance between the timbers. 

(Tr. 35, 41). Boston testified that the cord was not clearly 

visible for approximately 50 percent of the distance along the 

belt. (Tr. 118). 

In rebuttal, Smith testified that the stop cord was hung 

from 6 to 8 inches above the belt at all locations along the 

No. 1 belt line except for the 45 foot area that was crosstimbered. (Tr. 132, 149). Smith further testified that in this 

cross-timbered area, the stop cord was intentionally installed at 

a lower level than the timbers so that it would be easier to 

reach because the miners tend to duck under this low clearance 

area. (Tr. 130, 152). Smith described the location of the stop 

cord in this area as approximately 2 to 3 inches beneath the top 

level of the top roller. (Tr. 156). 

Citation No. 3382643 was terminated by Hughett on April 22, 

1992, wherein Hughett concluded that the "· •• stop control 

along the No. 1 belt line was installed to a properly [sic] 

working condition." Smith testified that the only action taken 

to abate this citation was to raise the stop cord 6 inches on the 

lateral timbers in the 45 foot cross-timbered area. (Tr. 139). 

Citation No. 3382646 - No. 4 Conveyor Belt 

The No. 4 conveyor belt, which advances as the working face 

advances, was approximately 1800 feet long from the belt drive to 

the tail piece when inspected by Hughett on April 16, 1992. 

Although the width of the No. 4 belt is the same as that of the 

No. 1 belt, the clearance from floor to roof is considerably 

greater along the No. 4 conveyor belt. (Tr. 146). 

Hughett testified that the stop cord was inaccessible at a 

distance of aa3 or 4 feetn from the belt line in three or four 

different places. (Tr. 28, 48). Other than these three or four 

places, Hughett testified that the placement of the stop cord 

complied with the regulations. (Tr. 48). Boston testified that 

the 1 cord was inaccessible at distances from 11 3, 5 or 6 feet 

from the belt~~ in six, possibly eight locations. (Tr. 117, 

118}. Hughett noted no problem with the installation height of 

the stop cord. {Tr. 46). Boston testified that the stop cord 

was unreachable for approximately 20 percent of length of the 

No. 4 conveyor belt. (Tr. 117). Boston further testified that 

w'the [cord for the] No. 4 belt was definitely more accessible 

than the No. 1 [belt].n (Tr. 119). Finally, Boston testified 

that he determined the cord's accessibility by sticking his arm 

straight out to see if the cord could be reached. (Tr. 66, 67). 

Lonnie Carden, an employee of the respondent, is a certified 

beltman with foreman's papers. (Tr. 190, 191). At the time of 

the inspection, Carden's responsibilities included performing the 

preshift examinations on the No. 1 through No. 4 conveyor belts. 

1856 
(Tr. 179, 180). Carden was also responsible for the maintenance 

of the No. 4 belt, including operation of the pull cords and belt 

switches. (Tr. 191). Carden stated that on April 16, 1992, at 

approximately lunch time, he rode the No. 4 belt outby behind 

Hughett and Boston. (Tr. 195, 200). Carden observed Boston 

reach his hand out to evaluate the stop cord distance. (Tr. 192, 

193). Carden admitted that Boston could not reach the cord at 

certain locations. However, Carden testified that, at these 

locations, Boston remained in the middle of the belt extending 

his arm directly from that point without making any effort to 

shift his body which would have brought him into contact with the 

cord. (Tr. 198). Carden, who was familiar with the No. 4 

conveyor belt, stated that in order to reach the cord at those 

locations it was only necessary for Boston to slide or move his 

body slightly toward the cord. (Tr. 198). 

On April 22, 1992, Hughett terminated Citation No. 3382646 

on the basis of his conclusion that the positive-acting start and 

stop control along the No. ·4 belt was installed "properly. 11 

(Gov. Ex. 3). However, both Smith and Carden testified that they 

took no action to abate this citation because they could not find 

an area where the stop cord was inaccessible. (Tr. 181, 182). 

FURTHER FINDINGS AND CONCLUSIONS 

Fact of occurrence 

As noted above, the question for resolution is whether the 

stop cords on the No. 1 and No. 4 belts were readily accessible 

as required by section 75.1403-5(a). Webster's Third New 

International Dictionary, (1986 Edition) (l'Webster's 11 ) defines 01 readily" as 11with fairly quick efficiency• without needless loss 

time< reasonably fast; with a fair degree of ease; without 

:much difficulty; with facility; easily. 11 

No. 1 conveyor Belt 

With respect to the Noo 1 belt line, it is uncontroverted 

that the stop cord was obscured for a significant distance 

(approximately 45 feet). Both Hughett and Boston testified that 

the stop cord was swagged and the cord was not visible because it 

was hanging below the belt. 

Significantly, Smith's testimony tended to support the 

observations of Hughett and Boston. Smith conceded that the stop 

cord was "an inch at the most" below the belt line. (Tr. 131). 

Smith also described the swag in the cord as "maybe a half an 

inch below the rollers." (Tr. 131). Although Smith characterized the cord in this 45 foot area as "visible, .. he stated that 

you "couldn't see the cord if you were looking at the roller, but 

you could see between the rollers, and the belt is down between 

the rollers, and you can see between them and see the cord there 

1857 
if it were swagging below that." (Tr. 132-133). In a further 

acknowledgement that the cord was obscured, Smith testified that 81 you can put your head up to the edge and see out over the 

belt e 0 .if you hang your head out over the belt you could stick 

it into a timber also. But you've got to know what you are 

doing, and you can come to the edge and you can look down." 

(Tr. 135). 

Applying the operative term "readily" accessible, it is 

clear that an object that cannot be easily visualized cannot be 

construed to be readily accessible as contemplated by 

section 75.1403-S(a). Thus, I conclude that the Secretary has 

met his burden of establishing that a violation of the applicable 

mandatory safety standard did in fact occur at the No. 1 conveyor 

belt. 

No. 4 Conveyor Belt 

Turning to the No. 4 belt line, the issue is whether the 

stop cord was a lateral distance of 3 to 6 feet from the edge of 

the belt at several locations as the Secretary alleges, or, 

within reach by shifting the position of one's body on the belt 

as the respondent argues. The Secretary must bear the burden of 

establishing the fact of a violation. In this case, Hughett and 

Boston have provided contradictory and inconsistent testimony 

concerning the number of locations where the cord was allegedly 

unreachable and the distances at these locations from the cord to 

the edge of the belt. (See Tr. 28, 117, 118). 

Moreover, the Secretary has failed to rebut Smith's claim 

that no remedial action was taken to abate Citation No. 3382646 

because the stop cord was accessible along the entire length of 

'the Noc 4 Significantly, Hughett@s April 22, 1992, ~ermination of Citation No. 3382646 fails to specify what action 

was taken to abate the alleged violation. Nor does Hughett's 

contemporaneous notes taken on April 22, 1992, which were 

described by the Secretary's counsel as nsketchy,n specify what 

actiong if any, was taken to abate the citation. (Tr. 219). 

Hughettgs recollection concerning the respondent's abatement 

efforts was vague and faultyo (See Tr. 214-222). Finally, 

Hughett testified that he may have been over-zealous in the 

presence of Boston who was evaluating his performance as an 

inspectoro (Trc 44-45). 

Bostonws testimony also does not effectively rebut the 

respondent 1 s assertion that no corrective action was taken. 

Boston testified that he does not have any reason to believe that 

the conditions were not corrected. However, he indicated that he 

does not have an independent recollection of what was done to 

terminate the citation. (Tr. 111). Later in Boston's testimony 

during cross-examination as a rebuttal witness, Boston testified 

that his recollection concerning the respondent's abatement had 

1858 
been refreshed by reading Hughett's notes. (Tr. 235-236). 

However, these notes are silent concerning abatement at the No. 4 

conveyor belt. (Tr. 220-222; Gov. Ex. 12). 

In an effort to overcome the inconsistencies in the testimony of Hughett and Boston, the Secretary faults the respondent 

for its failure to call its Superintendent, Charles White, to 

corroborate Hughett's and Boston's account. (Petitioner's Brief, 

13-14). However, the Secretary has the burden of proving the 

fact of a violation. The respondent is under no obligation to 

assist the Secretary in this endeavor. If the Secretary 

considered White's testimony to be crucial, he was free to 

subpoena him as an adverse witness. See Brown v. United States, 

414 F.2d 1165, 1167 (D.C. Cir. 1969). Having failed to do so, 

the Secretary is not entitled to a beneficial inference that 

White, if called, would have buttressed the Secretary's case. 

Significantly, White does not possess the requisite unique or 

special knowledge with regard to Hughett's or Boston's 

observations that warrants anadverse inference against the 

respondent. Cf. NLRB v. Laredo Coca-Cola Bottling Co., 613 F.2d 

1338 (5th Cir. 1980); NLRB v. Dorn's Transportation Co., 405 F.2d 

706 (2d Cir. 1969) (cases permitting an adverse inference 

concerning missing witnesses• statements or motivations). 

Thus, on balance, I credit the testimony of Carden and Smith 

that the cord was reachable in the areas in question by simply 

sliding or moving the body toward the edge of the belt and 

reaching for the cord. (Tr. 166, 181, 184-185, 198). Having 

concluded that the cord was reachable by leaning and reaching out 

over the edge of the belt, I find that the Secretary has failed 

to demonstrate that the stop cord was not readily accessible. 

Therefore, Citation No. 3382646 shall be vacated. 

~ignificant and Substantial 

The remaining issue is whether Citation No. 3382643 issued 

for the No. 1 conveyor belt was properly designated as 

significant and substantial. A violation is deemed to be 

•usignificant and substantial" if there 11 a reasonable likelihood 

that the hazard contributed to will result in an injury or 

illness of a reasonably serious nature." u. s. steel Mining 

Company. Inc., 7 FMSHRC 327, 328 (1985)1 Cement Division, 

National Gypsum Company, 3 FMSHRC 822, 825 (1981); Mathies Coal 

Company, 6 FMSHRC 1, 3-4 (1984). This evaluation is made in 

terms of 11 continued normal mining operations." u. s. steel 

Mining Company. Inc., 6 FMSHRC 1573, 1574 (1984). The question 

of whether a particular violation is significant and substantial 

must be based on the particular facts surrounding the violation. 

1exas Gulf, Inc., 10 FMSHRC 498 (1988); Youghioghney & Ohio Coal 

Company, 9 FMSHRC 2007 (1987). 

1859 
Hughett testified that the function of the stop cord is to 

enable a miner to deenergize the belt in case o.f an emergency. 

(Tr. 12). Hughett and Boston testified that an ever present 

hazard is roof material falling on the belt. In such an event, 

given the concavity of the belt, it is possible that a miner 

could sustain serious injury by being carried on the belt 

underneath fallen roof material. In this regard, the testimony 

reflects that the No. 1 belt line is located in an area that is 

prone to roof fall. (Tr. 23, 87, 88). Moreover, in view of the 

number of timbers and cribs required to support the roof, Boston 

testified that it would be almost impossible to jump off the 

No. 1 belt because of the lack of lateral clearance along the 

belt line. (Tr. 122). 

Boston characterized the hazard contributed to by this 

violation as twofold. The first hazard, as noted above, is that 

a miner could not stop the belt in case of an emergency because 

he could not locate the stop c.ord. . .The second hazard is the risk 

associated with injury to the hand or arm if a miner extended his 

upper extremities beneath the belt. In such an event, the 

rollers, which are spaced 8 to 10 feet apart, can cause a serious 

crushing injury to the hand. There are also wood supports 

installed against the belt itself which can cause serious 

injuries to the head or hand as the miner maneuvers for the cord. 

Thus, it is apparent that this violation exposes the miner to 

significant injuries by virtue of his inability to deenergize the 

belt as well as by the act of blindly reaching for the cord. As 

such, the Secretary has established that there is a reasonable 

likelihood that the hazards contributed to by this violation will 

result in a serious injury given continued mining operations. 

Consequently, Citation No. 3382643 was properly designated as 

significant and substantial. 

Citation No. 3382643 notes a moderate degree of negligence 

with regard to the violation associated with the No. 1 belt. 

Negligence is commonly referred to as a measure of one 1 s carelessness. In this regardu Smith testified that the stop cord was 

intentionally hung lower in this 45 foot cross-timbered area 

because it was an area of lower clearance where miners tend to 

duck their heads down. (Tr. 153}. Therefore, the respondent was 

of the opinion that hanging the cord in a lower position made it 

easier for miners to reach. (Tr. 130-140). While I find that 

this concern is outweighed by the risk of hand injury associated 

with placing the hand under the belt and rollers, the 

respondent 1 s rationale for the placement of the cord is an 

1860 
appropriate mitigating factor. Therefore, the underlying degree 

of negligence associated with Citation No. 3382643 shall be 

reduced to low. The gravity, however, in view of the risk of 

significant injury, remains serious. Consequently, I am 

assessing a civil penalty of $200 for this citation. 

Qocket No. SE 92-456 

As previously noted, the parties moved to settle citation 

No. 3382587 which is the subject of Docket No. SE 92-456. The 

respondent has agreed to pay a civil penalty of $75 in return for 

the Secretary's agreement to remove the significant and 

substantial designation. The motion to approve settlement was 

granted on the record and is incorporated herein. 

ORDER 

Based on the above findi.ngs of fact and conclusion of law, 

it IS ORDERED that: 

1. Citation No. 3382646 IS VACATED. 

2. Citation No. 3382643 IS AFFIRMED although the underlying 

negligence is reduced from moderate to low. 

3. The settlement motion concerning Citation No. 3382587 

IS APPROVED and the significant and substantial designation 

XS DELETED. 

4. The respondent SHALL PAY a total civil penalty of $275 

within 30 days of the date of this decision. Upon receipt of 

paymentr these cases ARE DISMISSED. 

Distribution: 

.. 

Jerold Feldman 

Administrative Law Judge 

Thomas A. Groomso Esq.u Office of the Solicitor, U. S. Department 

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

37215 (Certified Mail) 

Imogene A. King, Esq., Frantz, McConnell & Seymour, P. o. Box 39, 

Knoxville, TN 37901 (Certified Mail) 

dcp 

1861 
nDBIU\L Kl:D 8U'B'1'Y UD BBALD UVJ:ft COIIIlXSSI:OB 

OPPICE OP ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th PLOOR 

5203 LEESBURG PIKB 

FALLS CHURCH, VIRGINIA 22041 

JIM WALTER RESOURCES, INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Rc::pcndent 

SEP 1 01993 

: 

0 

. 

. 

e 

. . 

. 

Q 

CONTEST PROCEEDINGS 

Docket No. SE 93-335-R 

Citation No. 3007642; 

6/2/93 

Docket No. SE 93-336-R 

Citation No. 3007641: 

6/2/93 

Mine No. 3 

: Mine ID 01-00758 

DECISION 

Appearances: R. Stanley Morrow, Esq, Jim Walter Resources, Inc., 

and David M. Smith, Esq., Maynard, Cooper, Frierson 

& Gale, Birmingham, Alabama, for Contestant; 

William Lawson, Esq., Office of the Solicitor, 

U. s. Department of Labor, Birmingham, Alabama, for 

Respondent. 

These contest proceedings were initially heard on June 18, 

1993u in Hoover, Alabama. On July 6 6 1993, I issued a Partial 

Pecision formalizing my bench decision in this proceeding. 

Partial Decision in Jim Walter Resources, Inc., 15 FMSHRC 1447. 

The Partial Decision identified the following two central issues: ~1) whether a citation issued for violative dust concentration 

condition; which promptly corrected, in the absence of any 

recurrenceu provides a basis for recision and modification of the 

dust control plan under section 303(o) of the Mine Safety and 

Health Act of 1977 0 30 U~S.C. § 863(o)u or section 75.370(a) (1) 

of the regulationsu 30 C.F.R. § 75.370(a)(l): and (2) in the 

absence of any evidence of repeated or continuing dust concentration violations, whether an operator's unilateral decision to 

increase the air velocity at the working face and the water 

pressure of the sprays in excess of the minimum requirements in 

the existing dust control plan, in view of increased production 

output, provides a basis for modifying the existing dust control 

plan to reflect higher minimum air velocity and water pressure 

standards. 

1862 
The Partial Decision granted the contestant's contest with 

respect to the first issue and temporarily reinstated the 

existing dust control plans. In the Partial pecision, citing 

feabody Coal company, 15 FMSHRC 381, 386 (March 1993): Carbon 

County Coal Company, 7 FMSHRC 1367 (September 1985): and Zeigler Coal Co. y. Kleppe, 536 F.2d 398, 404-407 (D.C. Cir. 1976), I 

noted that it is well established that the statutory language in 

aection 30J(o) of the Mine Act requires mine ventilation or dust 

control plan provisions to address specific conditions at a 

particular mine. Partial Pecision, 15 FMSHRC at 1449. Thus, the 

Secretary is precluded from imposing general rules applicable to 

all mines in the plan approval process. ~ I concluded, 

therefore, that the Secretary lacks the statutory authority to 

routinely rescind dust control plans whenever a violation of the 

respirable dust concentration standard in section 70.100(a), 30 

C.F.R. § 70.100(a) is detected. ~ at 1450. 

At the hearing, the parties expressed a willingness to 

pursue settlement of the remaining issue. Resolution of this 

issue depends upon whether the minimum air velocity and water 

pressure standards contained in the existing dust control plans 

are adequate dust suppression measures for the continuous mining 

or longwall operations at the individual mine in question. The 

Secretary bears the burden of proof concerning the suitability of 

minimum dust control plan provisions. Peabody, 15 FMSHRC at 388. 

However, it is incumbent on the operator to explain why these 

minimum provisions are sufficient if, as in the instant case, the 

operator operates with air velocity and/or water pressure levels 

that are considerably greater than the minimum standards. In 

attempting to resolve these issues, it is fundamental that the 

parties must engage in good faith negotiations. ~ 

In ~ letter dated August 25 8 1993 8 the Secretary now moves ~o vacate the two contested citationsu thus, reinstating the 

rescinded dust control plans. Counsel for the contestant has 

informed me, albeit reluctantly, that he interposes no objection 

to the Secretary's motion to vacate. 

I also note 8 parentheticallyu that declaratory relief in 

this instance is inappropriate. The conditions noted at the 

respondent 8 s No. 3 Mine during the March 10, 1993e inspection 

which provided the basis for this proceeding are not static and 

are subject to change. Therefore, there is no substantial 

likelihood of recurrence of this alleged enforcement harm as dust 

control plans are mine specific and relate to current mine 

operations and conditions. See Mid-continent Resources. Inc •• 

and QMWA, 12 FMSHRC 949, 956 (May 1990). Consequently, the 

Secretary's motion shall be granted. 

1863 
ORDBR 

Accordingly, the Secretary's motion to vacate the subject 

Citation Nos. 3007641 and 3007642 ZS GRANTED and IT IS ORDERED 

that these contest proceedings as they relate to these citations 

aaB DISMISSED WITH PREJUDICE against the Secretary. 

Distribution: 

cJ!c. Q;) § } =::,. 

Jerold Feldman 

Administrative Law Judge 

R. Stanley Morrow, Esq., Jim Walter Resources, P. o. Box 133, 

Brookwood, AL 3~444 (Certifi~~ Mail} 

David M. Smith, Esq., Maynard, Cooper, & Gale, 

2400 AmSouthjHarbert Plaza, 1901 6th Avenue North, Birmingham, AL 

35203 (Certified Mail) 

William Lawson, Esq., Office of the Solicitor, U. s. Department 

of Labor, 2015 2nd Avenue North, Suite 201, Birmingham, AL 35203 

(Certified Mail) 

dcp 

1864 
FEDERAL MINE SAFElY 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. 

SEP 1 01993 

CONSOLIDATION COAL COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 91-1964 

A.C. No. 46-01867-03904 

Docket No. WEVA 91-1965 

A.C. No. 46-01867-03905 

Blacksville No. 1 Mine 

DECISION ON REMAND 

Before: Judge Weisberger 

The Commission, in its decision in this case, (Consolidation 

Coal Company, 15 FMSHRC 1555 {August 21, 1993)), remanded this 

proceeding to me to determine whether the violation of 30 C.F.R. 

§ 75.1707, set forth in Citation No. 3315803 was significant and 

substantial, and to a~sess a civil penalty. 

I. Significant and Substantial 

According to MSHA Inspector Richard Gene Jones, the 

violation herein is significant and substantial in that¥ in the 

event of a fire in the track entry, with no air-tight separation 

between the intake and track entries, smoke and carbon monoxide 

would enter the intake entry. Workers inby would thus be exposed 

to the hazard of smoke inhalation and carbon monoxide poisoning. 

He also indicated that a decrease in visibility caused by smoke 

could cause lack of orientation, which could result in 

contusions. Jones noted the existence of fire sources such as a 

high voltage cable, the liberation of methane which would 

accumulate in a roof cavity, 1 and the fact that the gauge of the 

trolley track is incorrect which causes the trolley pole to jump 

off the wire, and hit the trolley which causes arcing. 

The Commission has set forth in Mathies Coal Company 

6 FMSHRC 1 (1984) the elements that must be established to prove 

a violation is significant and substantial as follows: 

1 The mine is classified by MSHA as one that liberates more 

than one million cubic feet of methane in a 24 hour period. 

1865 
In order to establish that a violation of a 

mandatory safety standard is significant and 

substantial under National Gypsum the Secretary of 

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

mandatory safety standard; (2) a discrete safety 

hazard--that is, a measure of danger to safety- contributed to by the violation; (3) a reasonable 

likelihood that the hazard contributed to will result 

in an injury; and (4} a reasonable likelihood that the 

injury in question will be of a reasonably serious 

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

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

1129, the Commission stated further as follows: 

we have explained further that the third element 

of the Mathies formula "requires that the Secretary 

establish a reasonable likelihood that the hazard 

contributed to will result inan event in which there 

is an injury. 11 u.s. Steel Mining Co., 6 FMSHRC 1834, 

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

accordance with the language of section 104(d) (1), it 

is the contribution of a violation to the cause and 

effect of a hazard that must be significant and 

substantial. u.s. Steel Mining Company, Inc., 6 FMSHRC 

1866, 1868 (August 1984). 

In analyzing whether it has been established that the 

violation was significant and substantial, I note the finding by 

the Commission of the violation by Respondent of Section 75.1707. 

Further I find that the violation contributed to the hazard of 

miners the intake entry being exposed to the dangers of smoke, 

should a fire occur in the track entry. Also, the hazards of 

smoke exposure could certainly result in serious injury as set 

forth in Jones' uncontradicted testimony. 

The issue for resolution, is the likelihood of a fire 

causing smoke to course from the track entry, through the hole in 

the stopping at issue, to the intake entry. (See, BethEnergy 

Mines, Inc.~ 14 FMSHRC 1232~ (August 4, 1992)). In other words, 

since the hole in the stopping contributed to a hazard only in 

the event of a fire, must be established that the event of the 

fire was reasonably likely to have occurred. (See, BethEnergy, 

supra) . 

The mere existence of various ~tential fire sources cannot 

support a conclusion that the event of a fire was reasonably 

likely to have occurred in the normal course of mining 

operations. There is no evidence of the existence of any fault 

in the condition of the high voltage cable. Further, on crossexamination, Jones indicated that the portion of the track where 

the gauge is not correct is not within the P8 Panel, i.e., the 

1866 
panel at issue. 2 He conceded that, accordingly, a fire started 

by arcing caused by the incorrect track gauge should not affect 

the P8 panel in issue, unless the fire gets out of control. 

There is no evidence that this would be reasonably likely to 

occur. Also, contrary to Petitioner's assertion in his brief 

that the mine in question has a history of mine fires, the only 

evidence on this point is the testimony of Jones that there was a 

fire causing fatalities in 1972. I thus conclude that, inasmuch 

as the record fails to establish the likelihood of a hazard 

producing event i.e., a fire, it must be concluded that the 

violation herein was not significant and substantial (See, 

Mathies Coal Co., supra). 

II. Civil Penalty 

In evaluating the negligence, if any, of the Respondent with 

regard to the specific violation cited herein, not much weight is 

placed on the fact that on various dates in January and February, 

1991, Jones issued citations to Respondent alleging violations of 

Section 75.1707, supra, with regard to stoppings located at other 

longwall panels. The issuance of these citations is accorded 

little weight in evaluating whether Respondent knew or reasonably 

should have known of the existence of the specific hole in the 

stopping in question. 

Jones indicated that the hole in the stopping was "very 

obvious" (Tr. 48) and the stopping was approximately 20 to 25 

feet from where a person would get off the mantrip. However, 

there was no evidence as to how long the hole existed prior to 

the inspection, nor is there any evidence to indicate what caused 

the hole. 

I find, for the above reasons, that there is insufficient 

evidence to base a conclusion that the Respondent's negligence 

herein was more than a slight degree. Taking into account the 

remaining factors in Section 110(i) as stipulated to by the 

parties, I conclude that a penalty of $100 is appropriate for the 

violation cited in Citation No. 3315803. 

The parties stipulated that the decision regarding Citation 

No. 3315803 would apply to Citation No. 3315865 (Tr.7). 

Accordingly, consistent with my decision regarding Citation No. 

3315803, I find that the violation cited in Citation No. 3315865 

was not significant and substantial, and that a penalty of $100 

is appropriate. 

2 The parties stipulated that the site of the incorrectly 

gauged trolley track is between the P7 and P8 Panels. 

1867 
ORDER 

It is ORDERED that, within 30 days of this decision, 

Respondent shall pay $200 as a civil penalty for the violations 

found herein. 

It is further ORDERED that Citation Nos. 3315803 and 3315865 

be amended to reflect the fact that the violations cited therein 

are not significant and substantial. 

Distribution: 

((L_~ Avram Weisberger 

Administrative Law Judge 

Susan E. Long, Esq., Roberts. Wilson, Esq., Office of the 

Solicitor, u. s. Department of Labor, 4015 Wilson Boulevard, Room 

516, Arlington, VA 22203 (Certified Mail) 

Daniel E. Rogers, Esq., Consol Inc., Consol Plaza, 1800 

Washington Road, Pittsburgh, PA 15241-1421 (Certified Mail) 

nb 

1868 
OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 13 1993 

CO-aTSSIOII 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING . MINE SAFETY AND HEALTH . ADMINISTRATION (MSHA), 

Petitioner 

Docket No. KENT 93-376 

A.C. No. 15-09568-03607 

v. 

Stone Mine No. 2 

BELL COUNTY COAL CORPORATION, 

Respondent 

Appearances: 

Before: 

DECISION APPROVING SETTLEMENT 

Thomas A. Grooms, Esquire, Office of the 

Solicitor, u.s. Department of Labor, Nashville, 

Tennessee, for Petitioner; 

Gary G. Thompsen, Safety Coordinator, Bell County 

Coal Corporation, Middlesboro, Kentucky, for 

Respondent 

Judge Melick 

This case is before me upon a petition for assessment of 

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

and Health Act of 1977 (the Act). At hearing, Petitioner filed 

a motion to approve a settlement agreement and to dismiss the 

case. Respondent has agreed to pay the proposed penalty of 

$1,400 in full. I have considered the representations and 

documentation submitted in this case, and I conclude that the 

proffered settlement is appropriate under the criteria set forth 

in Section llO(i) of the Act. 

WHEREFORE, the motion for a approval 

GRANTED and it is ORDERED that Respondent 

of settlem nt is 

pay a pen ty of 

I $1,400 within 30 days of this order. 

Distribution~ 

Thomas A. Grooms, Esq., Office of the s icitor, 

u.s. Department of Labor, 2002 Richard nes Road, 

Suite B-201, Nashville, TN 37215 (Certi ied Mail) 

I 

Gary G. Thompson, Safety Coordinator, Bell County Coal 

Corp., P.O. Box 758, Middlesboro, KY 40965 (Certified Mail) 

\lh 

1869 
I'BDBDJ\L IUD SUETY UD llBAL'l'B J1BVXB1f COHK:ISSXOII 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 S(YLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 151993 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

. . Docket No. KENT 93-227 

A.C. No. 15-06702-03554 

v. 

: M-2 Mine 

ASH TRUCKING COMPANY, INC., 

Respondent 

Appearances: 

Before: 

DECISION 

Donna E. Sonner, Esquire, Office of the 

Solicitor, u.s. Department of Labor, Nashville, 

Tennessee, for Petitioner; 

Rodney E. Buttermore, Jr., Esquire, Buttermore, 

Turner, Lawson and Boggs, Harlan, Kentucky, 

for Respondent 

Judge Melick 

This case is before me upon a petition for assessment of 

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

and Health Act of 1977 (the Act). At hearing, Petitioner filed 

a motion to approve a settlement agreement and to dismiss the 

case. A reduction in penalty from $16,800 to $12,200 was proposed. I have considered the representations and documentation 

submitted in this case, and I conclude that the proffered 

settlement is appropriate under the criteria set forth in 

Section llO(i) of the Acto 

WHEREFORE, the motion for approval of settlement is 

GRANTEDu and it is ORDERED that Respondent pay a penalty of 12~200 in three equal installments -- the first insta lment 

90 days from the date of this order ~nd the 'ng 

lments 30 days and 60 days,! therea/rer. 

;v t'1;t ~A~'-'-- Gary Mel ck 

Administ ative 

1870 
Distribution: 

Donna E. Sonner, Esq., Office of the Solicitor, 

u.s. Depart~ent of Labor, 2002 Richard Jones Road, 

suite B-201, Nashville, TN 37215-2862 (Certified Mail) 

Rodney E. Buttermore, Jr., Esq., Buttermore, Turner, . Lawson and Boggs, P.O. Box 935, Harlan, KY 40831 (Certified Mail) 

\lh 

1871 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 1 51993 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Vo 

BOBBY LEE PRICE, Employed by 

CROCKETT COAL COMPANY, 

Respondent 

. . Docket No. KENT 92-577 

A.C. No. 15-11986-03552 A 

Mine No. 211 

DECISION 

Appearances: J. Philip Smith, Esq., Office of the Solicitor, 

u.s. Department of Labor, Arlington, Virginia, for 

the Petitioner; 

Before: 

Bobby Lee Price, Elkhorn City, Kentucky, pro se, 

for the Respondent. 

Judge Koutras 

Statement of the Case 

This is a civil penalty proceeding filed by the petitioner 

against the respondent pursuant to section 110{c) of the Federal 

Mine Safety and Health Act of 1977 0 30 u.s.c. 820(c), charging 

the respondent with an alleged nknowing" violation of mandatory 

safety standard 30 C.F.R. § 75.220. At the time of the alleged 

violation, the respondent was employed by the Crockett Coal 

Company as a section foreman. 

The respondent contested the alleged violation and filed an 

answer to the petitioner;s proposal for assessment of a civil 

penalty the amount of $600. A hearing was held in Pikeville, 

Kentuckyv and the parties appeared and participated fully 

therein. The parties waived the filing of posthearing briefs, 

but I have considered their arguments made on the record in the 

course of the hearing in my adjudication of this matter. 

Issues 

The principal issue presented in this case is whether or not 

the respondent knowingly authorized, ordered, or carried out the 

alleged violation. If he did, the next question presented is the 

appropriate civil penalty which should be assessed against the 

respondent taking into account the civil penalty criteria found 

1872 
in Section 110(i) of the Act. Additional issues raised by the 

parties are disposed of in the course of this decision. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 

1977, P.L. 95-164. 

2. Section 110(c) of the 1977 Act, 30 u.s.c. 

§ 820(c). 

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

Discussion 

Section 104(a) "S&S" Citation No. 3519163, issued on 

January 14, 1991, by MSHA Inspector Ronald Hayes, cites a 

violation of 30 C.F.R. § 75.220, and the cited condition or 

practice is described as follows: 

The approved roof control plan is not being complied 

with on the MMU 001-0, which is in the process of 

extracting pillars, because the pillar block which was 

located between the No's 6 and 7 entries was almost 

entirely extracted. The cuts taken from this coal 

block were approximately 30 feet wide and from 

(approximately) 25 to 30 feet deep. The block of coal 

was approximately 50 feet by 50 feet, and after the 

extraction only 5 small coal blocks were left ranging 

from approximately 2 to 4 feet wide and from 

(approximately) 6 to 8 feet long. All the cuts were 

intersected with one another, leaving nothing in the 

center of the block on the outby side of it. 

The approved roof control states that the extraction of 

pillars shall be a 3 cut plan. The cuts shall be 

20 feet wide and 20 feet deep. Also, a butt off was 

driven to the right of the No. 8 entry approximately 

60 feet outby the last open crosscuts~ where advance 

mining was stopped for the extraction of pillars. This 

butt off was approximately 60 to 70 feet deep and the 

left side of the butt off was extracted beginning at 

the end of the but off and continuing back to within 

10 feet of the No. 8 entry. This extraction was from 

50 to 60 feet wide and the cuts were from 20 to 25 feet 

deep and only 8 wooden roof supports were installed in 

the center of the extraction. Also, the No.'s 3 thru 8 

headings were advanced approximately 60 to 70 feet inby 

the last open crosscut. These entries also had coal 

extracted from the left and right side of the entries. 

The extraction began in the face of the entries and 

continued outby to within approximately 10 feet of the 

1873 
last open crosscut. The cuts taken from them were 

approximately 25 to 30 feet deep and only a few wooden 

roof supports were installed. 

The approved roof control plan does not have any kind 

of provisions included in it that shows this kind of 

extraction of coal. This citation is in conjunction 

with 107-a order No. 3519162, and therefore no abate 

time is set and will not be abated until the provisions 

written in the 107-a Order No. 3519162 are mete 

Petitioner's Testimony and Evidence 

MSHA Inspector Ronald Hayes identified a copy of an MSHA 

Mine Legal Identify Form concerning the Crockett Coal Company, 

and he confirmed that this company was in fact a corporation 

(Exhibit P-1, Tr. 10). Mr. Hayes also identified a copy of the 

section 104(a) citation that he issued on January 14, 1991, as 11 a 

contributing factor" to a s.~.ction 107 (a) order that he issued on 

that same day (Exhibits P-2 and P-3; Tr. 1-18). He also 

identified copies of the approved mine roof control plan which 

was in effect at the time he issued the citation, and a copy of a 

map and sketch that he made documenting his observations of the 

pillar area that had been extracted {Exhibits P-4 and P-5; 

Tr. 20-22). 

The respondent Bobby Lee Price agreed that the Crockett Coal 

Company was a corporation, but he stated that the company has 

been sold and that he was no longer in its employ. However, he 

confirmed that he was employed by crockett Coal at the time the 

citation was issued by Mr. Hayes (Tr. 10). He also confirmed 

that he was familiar with the conditions or practices cited by 

Mr. as a violation 9 as well as the roof control plan relied 

on cited by the inspector (Tr. l9p 22). 

Inspector Hayes ·testified that MSHA Inspector James Osborne, 

who was regularly assigned to the mine in question, was not in 

the office at the time "a tip" was received from a Kentucky 

Department of Mines inspector that he had 19 observed a mining 

practice that wasn"t right 90 and had withdrawn miners& Since 

Mr" Osborne was not available, the acting office supervisor asked 

Mro Hayes to go to the mine for an inspection. After making a 

copy of the mine pillar plan, Mro Hayes went to the mine and met 

with the state inspector. Mro Hayes then informed mine manager 

Robert Jessee that he was going underground to conduct an 

inspection. He also met with Mr. Price, and proceeded 

underground in the company of Mr. Jessee, Mr. Price, and the 

state inspector (Tr. 23-26). 

Mr. Hayes explained the observations he made during his 

inspection, and he stated that the coal pillar between the No. 6 

and No. 7 entry had been extracted and that the remaining blocks 

1874 
of coal were two to four feet wide and approximately six to seven 

feet long. He also observed that very few timbers had been set 

and that there were "hill seams" in the roof. Based on his 

observations, he informed Mr. Jessee and Mr. Price that he was 

issuing a section 107(a) order (Tr. 27). Mr. Hayes stated that 

he discussed the size of the remaining pillar stumps that were 

left after the coal was extracted, and that Mr. Jessee and 

Mr. Price agreed with his calculations. Mr. Hayes stated that he 

did not go into the stump areas to measure them because "all the 

coal was gone, it was dangerous up there", and that he was not 

going inby roof support (Tr. 28). 

Mr. Hayes stated that the three-cut pillar roof control plan 

required that eight-foot corners be left when a pillar is mined, 

and that the blocks on the bottom part of the pillar are to be 

eight-foot square. He stated that Mr. Price was supervising the 

work when the pillar was cut and when he asked Mr. Price about 

it, "he said he had instructed those men to cut that pillar block 

that way". Mr. Hayes identified a copy of an MSHA "Possible 

Knowing and Willful Violation Review Form" that he filled out and 

submitted documenting the admission made to him by Mr. Price 

{Exhibit P-6; Tr. 30-31). Mr. Hayes stated that he also recorded 

in his notes Mr. Price's statement that "he instructed his miner 

man to extract the pillar between six and seven entries" 

(Tr. 31) • 

Mr. Hayes testified that Mr. Price had a copy of the roof 

control plan in his pocket and admitted that he was familiar with 

it and knew the roof control requirements (Tr. 32). Mr. Hayes 

explained how the pillar block should have been cut under. the 

approved plan, and he stated that all of the cuts had intersected 

together, and there was no eight foot block left on the corner as 

required (Tr. 34). He also believed that the roof cracks and 

hill seams, standing alonev constituted adverse roof conditions, 

and that coupled with the smaller blocks that were left, he 

believed there was a possibility of "a major roof fall and 

multiple deaths" from these conditions {Tr. 35). He explained 

that the pillar blocks are designed to hold up the roof, and the 

more that is taken out, the more weight will likely cause a roof 

fall (Tro 37). 

Mr. Hayes stated that he could not prove that men went inby 

roof support, and he confirmed that a remote controlled miner was 

used and could take a 35-foot cut without exposing anyone past 

the roof bolts. Howeveru men were in the entry, and if the roof 

fails above the anchorage and falls out, it will crack all the 

way to the pillar. The potential for a roof fall, and the 

presence of the miner operator and shuttle cars in the area 

prompted him to issue the imminent danger order {Tr. 38-39). He 

also explained several additional conditions that contributed to 

that order (Tr. 39-40). 

1875 
Mr. Hayes stated that Mr. Price gave him the following 

explanation as to why the pillars were mined the way he found 

them (Tr. 42): 

A. They stopped mining here and they had 

projections to go on. According to Mr. Price 

when I had -- that is why they stopped this 

and did this. And according to Mr. Price -- I 

asked him why they did cut this pillar this 

way and that was to get a good roof fall, 

because they needed to get quick coal, 

because they were getting out of this mine. 

They were pulling out of it to possibly sell 

or trade, or whatever to another company or 

corporation that was to come in. But they 

were shutting down. 

Q. They were trying to get out all of the coal 

they could? 

A. Trying to get all the coal the could at that time. 

Mr. Hayes stated he based his "high negligence" finding on 

the fact that Mr. Price "told them to cut the pillar that waytt, 

and since he was the foreman, "he was responsible" (Tr. 45). 

On cross-examination, Mr. Hayes confirmed that he did not 

measure the pillar cuts and just estimated them (Tr. 46). 

Mr. Price stated that "we set back and looked at the pillars 

where they had been cutting them and we agreed that the blocks 

were smaller than eight foot" (Tr. 46). Inspector Hayes agreed 

that this was true (Tr. 46). Mr. Price also stated that he told 

MSHA'S special investigator that the blocks "were approximately 

from three to six foot and maybe bigger in behind, where we 

couldn°t see them" (Tr. 47). Mr. Hayes stated that "we had no 

idea what the backside looked like", and that "we were talking 

about these front two and this one in the center" (Tr. 47). 

Mr. Hayes explained the timbering that he observed, and he 

confirmed that some of the timbers were properly in place, but 

that others that were required were missing and not set 

(Tr. 50-51). 

Mr. Hayes explained the dangers in leaving only two to four 

foot pillar corners, instead of the required roof control plan 

eight square foot corners as follows at (Tr. 62-63): 

A. My opinion, the way this block was pulled 

with these stress cracks in the roof which is 

making adverse conditions, which makes a roof 

fall potential larger than what it would 

1876 
normally be, it would have been an imminent 

danger to those people setting those timbers 

or mining the next block of coal right here. 

Because if this had failed, with the stress 

cracks in that mine, there is a very great 

possibility it would have overrode these 

breaker timbers and come in on those people 

that was over here mining this area right 

here, this block which had to be mined next. 

Q. So there was a potential there for rock 

falling on people. 

A. Yes, there was. The potential was there. 

Q. Inby unsupported roof. 

A. Inby -- If they were under supported roof, it was a 

potential they woql,d fall in on them. Yes, it was. 

And, at (Tr. 68): 

Q. These stress cracks were in the area that 

we're concerned with here. 

A. Yes, they were all over the place. 

Q. And what your point is, is that leaving these 

pillars this small with those added stress 

cracks there created --

A. And going by the minimum plan and not doing 

anything else to help that adverse condition 

of the stress cracksp yesu it caused an 

imminent danger. 

Charlie D. Bryant, testified that on January 14, 1991, he 

was employed at the mine as a continuous miner helper. He 

identified a copy of a statement that he made to MSHA Special 

Investigator James Frazier when Mr. Frazier intreviewed him on 

April 9, 1991 (Exhibit P-7: Tr. 70-72). Mr. Bryant confirmed 

that he was present when Mr. Hayes inspected the mine on 

January 14, 1991, and he confirmed that he made the following 

statement to Mr. Frazier (Tr. 72-73)~ 

Q. "We pulled one block before the inspector got 

to the section. We took the cuts two sumps 

wide (twenty-two feet). All of the cuts in the 

block cut together. Bobby Price told us to 

leave a three to four-foot stump on the 

corner." Is that correct? 

1877 
An Yes, Sir. 

Q. Is that the correct statement of --

A. Yes. 

Q. Did he give these instructions to you, and who 

else, sir? 

A. Me and the continuous miner operator which was -- Darrell Caudill, I think, was the day that 

it was started. Darrell Caudill or Thomas 

Wright was there. But it was given 

specifically, yes. 

Q. And is that how you all cut them? 

A. Yes, Sir. 

Q. You just left three or four-foot stumps? 

A. Yes, Sir. 

Q. And do you know, in fact, that it's supposed to 

be eight foot square? 

A. I was told by Thomas Wright it was, yes, sir. 

Q. So you knew this was supposed to be eight foot 

square, but you cut it the way you were told to 

by Mr. --

Mr. Bryant explained how the pillar cuts were madep and he 

confirmed :c.ha·t he made no measurements of the cuts because "I 

wasnit going to go in there and measure it, but they told us to 

leave a three to four-foot stump on the end" (Tr. 74-76). 

MSHA Inspector James E. FrazierG testified that he conducted 

special investigation Mr. Priceus case. He stated that the 

produced at the mine quesiton was transported to the 

company that leased the coal to the Crockett Coal Company, and it 

was then shipped out of state. At the time of his investigation, 

approximately 15 employees worked at the mine, and it produced 

800 tons a shift, and Mr. Price worked as a section foreman 

• 77-79). 

Mr. Frazier identified a copy of a statement made to him by 

Mr. Price when he interviewed him on April 3, 1991 (Exhibit P-8), 

and he confirmed that Mr. Price signed the statement, and that he 

gave him an opportunity to review the statement and to make any 

1878 
corrections. Petitioner's counsel quoted the following relevant 

portions of Mr. Price's statement (Tr. 80-81): 

Q. I direct your attention to page two there. 

Near the top of the page there or somewhere 

near the top, it says, 11 I came back to work on 

January 9, 1991. I had been off since 

January 3, 1991. When I came back to work on 

January 9, 1991, the headings had been winged 

from right to left over to number two, I think. 

I worked on the left side developing x-cut ••• 11 

I take it that means crosscuts. Is that right? 

A. Yes, Sir. 

Q. " ••• And entries and on the right side doing the 

same. The shift of January 3, 1991, our 

section had not started retreat work. On 

Monday, January 14, 1991, my crew started 

retreat mining the pillars. 

"I knew the pillar plan ••. this mine had for a 

continuous miner. They had a three-cut plan. 

We were supposed to cut twenty two wide. I 

followed the cut sequence according to the 

plan. All of the timbers were set, plus five 

more additional timbers than the plan required. 

11 I stayed with the miner during the entire 

extraction of this pillar. This pillar block 

was supposed to be forty feet times forty feet. 

This area was developed on sixty-foot centers. 

The miner was operated with remote control. 

01We cut this block the same way we had for 

years. No emphasis had ever been placed on 

leaving eight-foot stumps on the bottom end of 

the blocks. It was always hard to turn a place 

and maintain the eight-foot stumps. This stump 

we had left was in a triangular slope. It was 

probably only two feet in some place, but I'm 

sure it was thicker in some of it." 

Mro Frazier confirmed the accuracy of the statements made by 

Mr. Price, and confirmed that Mr. Price admitted that the stumps 

were not eight foot, that he knew the roof control plan, and that 

the stumps were only two feet in some places (Tr. 82). 

Mr. Frazier was of the opinion that this was a violation of the 

roof control plan, that Mr. Price 11 virtually admitted" a 

violation of the plan, and was highly negligent because "he knew 

the plan and he knew the bottom stumps were less than eight feet" 

(Tr. 84). Based on all of his interviews and his mining 

1879 
experience, Mr. Frazier was of the op1n1.on that "the stress hill 

seams and the small blocks of coal being left, it was a dangerous 

situation" (Tro 84). 

Mr. Price acknowledged that he made the statement to 

Mr. Frazier (Tr. 84), but stated as follows at (Tr. 85): 

Mr. Price: On these blocks here, and stumps and things 

we were talking about here, and where it says I told 

the miner man, you know, to cut them this way, I told 

the miner operator to go to that area where we were 

going to start extracting pillars that morning. I did 

not tell him to cut them and leave two or three-foot 

stumpsv which these stumps were bigger. But I did make 

this statement to Mr. Frazier. 

Respondent 8 s Testimony and Evidence 

Respondent Bobby Lee Price., confirmed that a state mine 

inspector was at the mine prior to the inspection by Mr. Hayes 

and when the upper area of the section was extracted. Mr. Price 

stated that mine superintendent Jessee told him that after the 

state inspector left the mine, the remaining two blocks of coal 

would be mined. Mr. Price denied that he instructed Mr. Bryant 

to cut the blocks and leave two and three foot stumps. Mr. Price 

stated that he informed his crew that "we're going to start 

pillaring this morning. This is the block over here we cut" 

(Tr. 92). 

Mr. Price stated that in the three-and-one-half years that 

he mined pillars in the mine, he always installed extra roof 

support around the pillars. He also stated that "I never left a 

pillar in that mine that my miner man was cutting on that I 

didn il t. stay right with himi1 • He denied ever putting any of his 

men ou·c from under roof support and stated that he has 

"threatened to fire people over it" (Tr. 92-94). 

Mr. Price stated that the mine roof was composed of 

sandstone: and that nthose little cracks 11 needed to be 

continually strapped. He conceded that the cracks "were from 

fingernails to some of them was a foot and a half, two feet 

wide'0 • However, he indicated that each time a bolt was 

installed, a strap was also installed across the crack. He 

confirmed the presence of stress cracks in the roof at the pillar 

extraction locations in question, but stated that extra timbers 

were always installed and that "we always tried to protect my 

men'' (Tr. 95). He stated that timbers were installed in the 

pillar extraction areas in question according to the roof plan (Tr. 96~97) • 

Mr. Price stated that in the three-and-one-half years he has 

pulled pillars in the mine, the citation issued by Mr. Hayes was 

1880 
the first one he ever received (Tr. 98). He stated that after 

the citation was issued, he reviewed the roof control plan with 

his men to the satisfaction of the inspectors, and the men were 

allowed to return to work (Tr. 99). He explained that it was 

difficult not to cut through when the miner is cutting an angle 

and that the miner operator cannot tell when the miner head will 

cut through a place (Tr. 101). When the miner ripper head 

continued to cut through the blocks, Mr. Price said he quit the 

mine nbecause the superintendent, he just wanted so much stuffcrazy stuff done. I wouldn't do it" (Tr. 101). He confirmed that 

after the citation was issued and terminated, the remaining 

blocks of coal were cut in essentially the same manner as they 

were when Inspector Hayes was there, and although some blocks 

avwere not cut through as bad81 , some of them fell through when 

they were penetrated by the miner head (Tr. 102). 

Mr. Price disagreed with the sketch of the cited area 

prepared by Inspector Hayes and stated that timbers were placed 

in several areas where the sketch shows none installed, 

and several of the entries on, ·the sketch "had not been pushed up" 

(Tr. 103-104). 

On cross-examination, Mr. Price stated that he was currently 

employed by the Husky Coal Company as a foreman and electrician 

at a salary of $125 a day. He denied that he instructed 

Mr. Bryant and the miner operator to cut the corner of the block 

so there was only three or four feet left. He stated that "It's 

like I told Mr. Frazier. I told them to go cut the block. You 

know, I didn't tell them to steal every bit of coal that was in 

the block" (Tr. 104-105). Mr. Price further stated that 

Mr. Bryant "lied about me telling him to go over there and cut 

and leave two to three-foot blocks" (Tr. 105). He further stated 

that Mr. Bryant was an unsafe worker and that "I had to ride him 

from daylight to dark19 and "rode charlie pretty hard on safetyn 

for not setting timbers or exposing his feet and legs while 

operating the miner machine (Tr. 106). 

Mr. Price denied telling Mr. Hayes that he told his men to 

cut the block the way it was cut. He stated that "I told them to 

go and cut the pillars 1v. I said "Boys, we're going to start 

pillar extraction this morning. Take the miner over there and 

start on that pillar. That is what I told them" (Tr. 106). 

Mr. Price confirmed that he was present when the pillars 

cited by Mr. Hayes were cut. He admitted that the pillars were 

cut together "not only this time, but other times. But maybe it 

was, just like I said, maybe not, as bad as this one" (Tr. 113). 

He further stated that "when the miner went in those pillars, you 

could not keep it from cutting one way or the other into the 

other blocks. And this is the first time that I was ever wrote 

anything on those pillars like that" (Tr. 113). 

1881 
Mr. Price conceded that he told Mr. Frazier that some of the 

blocks could have been cut only two feet wide "where you was 

looking into the end of them" (Tr. 114). Inspector Hayes did not 

disagree that cutting the block at an angle would leave the 

corner less than eight feet, but he did not believe that it would 

result in a five foot corner or a corner from two to four feet 

(Tr. 116). 

Findings and Conclusions 

Fact of Violation 

The respondent Bobby Lee Price is charged with a "knowing" 

violation of mandatory safety standard 30 C.F.R. § 75.220, for 

failing to follow the approved mine roof control plan with 

respect to the extraction of certain pillar areas described in 

detail in the citation issued by Inspector Hayes. The inspector 

cited the conditions after going to the mine and conducting an 

inspection in response to information given to MSHA by a state 

mine inspector with respect to certain pillar extraction that was 

taking place at the upper end of the section. Although the 

petitioner does not dispute Mr. Price's assertion that he was not 

at the mine when the state inspector stopped this activity and 

withdrew miners from the mine, the petitioner pointed out that 

the Crockett Coal Company and three of its "agents" (two foremen 

and the mine manager) were charged with violations of section 

75.220, for mining the entries cited by the state inspectors in 

violation of the roof control plan, and that the corporate 

respondent (Crockett Coal Company), and its cited agents did not 

contest the violations and paid the proposed penalty assessments. 

Counsel further pointed out that in this case Mr. Price is only 

charged with a violation in connection with the mining of the 

lar blocks cited by Inspector Hayes (Tr" 45, 58-59, 86-87). 

The petitionervs counsel stated that the essence of the 

violation in this case is the fact that the cited coal pillar 

blocks were cut too small, leaving corners that were less than 

eight foot for roof support as required by the approved mine roof 

control plan (Tr. 52). Mr. Price has not rebutted the credible 

testimony of Inspector Hayes with respect to the existence of the 

cited violative conditions. Indeed, Mr. Price did not deny that 

the pillar blocks which were extracted during his supervisory 

work shift left corners less than the eight feet required by the 

roof control plan (Tr. 52). Further, Mr. Price acknowledged that 

he told Inspector Frazier that the pillar blocks had been cut in 

such a manner leaving stumps or corners less than eight feet 

as required by the plan, and only two feet in some places 

(Tr. 84-85). Under all of these circumstances, I conclude and 

find that the petitioner has established a violation of section 

77.220, by a clear preponderance of all of the credible evidence 

and testimony adduced in this matter, and the citation IS 

AFFIRMED. 

1882 
The next question presented is whether or not the petitioner 

has proved that Mr. Price "knowingly" authorized, ordered or 

carried out the violation. section 110(c) of the Act, 30 U.s.c. 

§ 820(c), provides in relevant part as follows: 

Whenever a corporate operator violates a mandatory 

health or safety standard ••• , any director, officer, 

or agent of such corporation who knowingly authorized, 

ordered, or carried out such violation, • • • shall be 

subject to the same civil penalties, fines, and 

imprisonment that may be imposed upon a person under 

subsections (a) and (d) of this section. 

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

the statutory predecessor to section 110(c), in Kenny Richardson 

v. Secretary of Labor, 3 FMSHRC 8 (January 1981), aff'd 669 F.2d 

632 (6th Cir. 1982), cert denied, 461 u.s. 928 (1983), as 

follows: 

"Knowingly," as used in·the Act, does not have any 

meaning of bad faith or evil purpose or criminal 

intent. Its meaning is rather that used in contract 

law, where it means knowing or having reason to know. 

A person has reason to know when he has such 

information as would lead a person exercising 

reasonable care to acquire knowledge of the fact in 

question or to infer its existence . • • • We believe 

this interpretation is consistent with both the 

statutory language and the remedial intent of the Coal 

Act. If a person in a position to protect employee 

safety and health fails to act on the basis of 

information that gives him knowledge or reason to know 

of the existence of a violative condition, he has acted 

knowingly and in a manner contrary to the remedial 

nature of the statute. 3 FMSHRC 16. 

In Secretary of Labor CMSHAl v. Bethenergy Mines, Inc., et 

al., 14 FMSHRC 1232 (August 1992), the Commission reaffirmed its· 

prior holding in Kenny Richardson, supra, and stated that "the 

proper legal inquiry for purposes of determining liability under 

section 110(c) of the Act is whether the corporate agent "knew or 

had reason to know" of a violative condition, and that the 

Secretary must prove only that the cited individual knowingly 

acted and not that he knowingly violated the law, 14 FMSHRC 1245. 

Inspector Hayes testified that when he spoke with Mr. Price 

on the day of his inspection after issuing the citation, 

Mr. Price admitted that he had instructed his men to cut the 

pillar the way Mr. Hayes found it, and that he (Price) was aware 

of the roof control plan when this work was done. Inspector 

Hayes confirmed that he noted Mr. Price's admissions in an MSHA 

form that is used by an inspector to recommend a 11 possible 

1883 
knowing/willful violation" investigation (Exhibit P-6), and that 

he also noted in his notes that Mr. Price instructed his miner 

man to extract the pillar between the No. 6 and 7 entries 

(Tro 30-31). 

Continuous Miner Helper Charlie Bryant who was present 

during Mr. Hayes' inspection of January 14, 1991, confirmed a 

prior statement that he had made to special investigator Frazier 

that Mr. Price instructed him and the continuous miner helper to 

cut the pillar blocks and to leave a three to four-foot stump on 

the corner. Mr. Bryant testified that he was told that an eightfoot square corner was required but that the stump in question 

was cut the way he was instructed. 

Special Investigator Frazier produced a copy of a signed 

statement by Mr. Price in which he admits that he was aware of 

the roof control plan and that the block that was cut on 

January 14, 1991, was cut "the way we had for years", that no 

emphasis had ever been placed.on leaving eight-foot stumps, and 

that the cited stump "was probably only two feet in some place" 

(Exhibit P-7). 

Mr. Price vehemently denied that he ever instructed 

Mr. Bryant and the miner operator to specifically leave two or 

three-foot blocks when mining the pillars in question. Mr. Price 

also denied telling Inspector Hayes that he instructed his men 

"to cut the block the way it was cut". Howt:!vt::u::, i•Ir. Price 

acknowledged the accuracy of the statements that he made to 

Special Investigator Frazier. Mr. Price also confirmed that he 

assigned his crew the task of cutting the pillars in question on 

January l4p 1991, and that he was present when they were cut the 

way that Inspector Hayes found them. Mr. Price also admitted 

that he told Mr. Frazier that some of the blocks could have been 

two feet wide, and he admitted that the cited coal 

were cut together on January 14, 1991, as well as on 

previous occasions. 

Mr. Priceus principal defense in this case is his concern 

over the gravity findings made by MSHA's office of assessments 

that "the violation could have contributed to the cause of a roof 

fall accident" (Tr. 52). Mr. Price denied that he ever 

knowinglyu on January 14, 1991, or at any other time in his 

mining career, exposed members of his crew to any hazardous roof 

fallso Mro Price also denied that any of the miners on his crew 

worked inby roof support on January 14, 1991, as stated in MSHA's 

gravity findings (Tr. 54). Inspector Hayes confirmed that he 

made no such findings, and that his citation does not include any 

allegations .of miners working inby roof support (Tr. 54-55). 

I conclude and find that Mr. Price's concerns about MSHA's 

gravity findings in connection with the proposed penalty 

assessment are irrelevant to the issue of whether he "knowingly" 

1884 
violated the cited standard section 75.220. Further, after 

careful consideration of all of the testimony and evidence in 

this case, including the aforementioned admissions by Mr. Price, 

and the unrebutted testimony of the credible witnesses presented 

by the petitioner in support of its case, I conclude and find 

that Mr. Price knew that the pillars cited by Inspector Hayes 

were being cut in such a manner on January 14, 1991, as to leave 

less than the eight-foot corners required by the approved roof 

control plan. I further conclude and find that Mr. Price had 

knowledge of the roof control plan requirements for leaving 

eight-foot wide corners as the pillar blocks were being 

extracted, and that notwithstanding this knowledge on his part, 

Mr. Price permitted the cited pillars to be cut and extracted in 

a manner contrary to the approved plan. Under all of these 

circumstances, I conclude and find that the petitioner has 

established a "knowing" violation on the part of Mr. Price within. 

the meaning of section 110(c) of the Act, and the Commission's 

precedent decisions. 

Gravity 

Inspector Hayes testified that the roof cracks and "hill 

seams" that were present in the cited area where Mr. Price and 

his crew were working constituted adverse roof conditions, and 

that coupled with the small corner blocks that were left during 

the extraction of the pillars, Mr. Hayes believed that there was 

a possibility of a major roof fall exposing the miners to fatal 

injuries as a result of the cited conditions. Mr. Hayes 

determined that serious and permanently disabling injuries were 

highly likely as a result of the cited conditions, and he 

concluded that the violation was "significant and substantial". 

Furtheru given the presence of miners and equipment in the cited 

area, and his concern about a potential roof fallu Mr. Hayes 

issued a section 107(a) imminent danger order in conjunction with 

the citationo The petitioner's counsel stated that the imminent 

danger order is not at issue in this case, but that it was 

relevant to any gravity determination (Tr. 33). I conclude and 

find that the violation was serious. I also conclude and find 

that the inspector~'s "S&S11 finding was justified, and it is 

affirmedo 

Negligence 

r conclude and find that Mr. Price's knowing violation 

supports the inspector 8 s determination that the violation 

resulted from a high degree of negligence. 

History of Prior Violations 

The petitioner's counsel confirmed that Mr. Price has not 

previously been charged with any other section llO(c) violations 

(Tr. 87) . 

1885 
Good Faith Abatement 

The record reflects that the violation was abated on 

January 15, 1991, a day after the citation was issued, and that 

all underground employees were retrained on the approved roof 

control plan before resuming work underground. Petitioner's 

counsel confirmed that the mine was subsequently abandoned in 

1991. 

Civil Penalty Assessment 

Mr. Price confirmed that he is gainfully employed, and in 

the absence of any evidence to the contrary, I cannot conclude 

that the payment of the civil penalty that I have assessed for 

the violation will adversely jeopardize Mr. Price's financial 

situation. 

The petitioner's counsel requested that the initial proposed 

civil penalty assessment of ,$600 against Mr. Price be increased 

to $1,000, because "this evidence shows that this was an 

extremely reckless thing on his part that could have endangered 

a lot of men" (Tr. 86). After further consideration of this 

request, IT IS DENIED. 

on the basis of the aforementioned findings and conclusions, 

and taking into account the civil penalty assessment criteria 

found in section llO(i) of the Act, I conclude and find that the 

initial proposed civil penalty assessment of $600 is reasonable 

and appropriate for the violation which has been affirmed. 

ORDER 

The respondent Bobby Lee Price IS ORDERED to pay a civil 

penalty assessment of six-hundred dollars ($600) for the 

violation which has been affirmed in this matter. Payment is to 

be lade to MSHA within thirty (30) days of the date of this 

decision and order, and upon receipt of payment, this matter is 

dismissed. 

~K{ia~ Administrative Law Judge 

Distribution: 

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

of Labor, 4015 Wilson Boulevard, 4th Floor, Arlington, VA 22203 

(Certified Mail) 

Mr. Bobby Price, P.O. Box 1014, Elkhorn City, KY 41522 

(Certified Mail) 

/ml 

1886 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1Oth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 1 51993 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. KENT 93-295 

: A.C. No. 15-14074-03630 

v. 

PEABODY COAL COMPANY, 

: Docket No. KENT 93-296 

A.C. No. 15-14074-03631 

Appearances: 

Before: 

Respondent MARTWICK UNDERGROUND 

DECISION 

MaryBeth Bernui, Esq., Office of the Solicitor, 

u.s. Department of Labor, Nashville, Tennessee, 

for Petitioner; 

David R. Joest, Esq., Peabody Coal 

Company, Henderson, Kentucky, for Respondent. 

Judge Amchan 

These cases are before me upon petitions for the assessment 

of civil penalties pursuant to § 105 and 110 of the Federal Mine 

Safety and Health Act of 1977. Docket Kent 93-295 concerns one 

citation, number 3417307, which alleges a violation of 

30 C.F.R. 75.316 for Respondent's failure to comply with its 

approved ventilation plan. More specifically, the citation 

alleges that when the continuous miner and its scrubber were not 

operating, air circulation at the inby end of the line brattice 

near the continuous miner was significantly less than what was 

required by Respondent's approved ventilation plan. A $267 civil 

penalty was proposed. As discussed herein, I affirm the 

citation as a "non-significant and substantial" violation of the 

Act and assess a $267 penalty. 

Docket Kent 93-296 concerns citation 3546915 alleging a 

violation of 30 C.F.R. 75.11051 in that air ventilating a battery 

charging station was vented to the surface of the mine rather 

than to the return air shaft. An order, numbered 3546916, was 

issued pursuant to § 104(b) of the Act for Respondent's alleged 

failure to timely abate citation 3546915. A $1,855 penalty was 

proposed for these alleged violations. I affirm citation number 

1

The requirements of this standard have been modified by the 

provisions of 30 C.F.R. 75.340(a)(1) since the inspection. 

1887 
3546915 as a "non-significant and substantial" violation and 

assess a $10 penalty. I vacate order number 3546916 on the 

grounds that it was unreasonable for MSHA to require abatement 

before the effective date of its new ventilation standards given 

the unique circumstances of this case. 

Docket Kent 93-296 

On october 22, 1992, Louis w. Stanley, an MSHA supervisory 

ventilation specialist inspected the Martwick mine as part of a 

review of Respondent's ventilation plan. During this inspection 

he determined that the air ventilating a battery charging station 

located 300 feet inby from the bottom of the slope of the mine 

was vented to the surface rather than to the return air shaft, as 

required by 30 C.F.R. 75.1105 (Tr. 11- 18). 2 That standard 

provided: 

Underground transformer stations, battery-charging 

stations, substations, compressor stations, shops, and 

permanent pumps shall be housed in fire-proof. 

structures or areas. Air currents used to ventilate 

structures or areas enclosing electrical installations 

shall be coursed directly into the return ... (emphasis 

added) 

Mr. Stanley issued Respondent citation 3546915, which 

required that the violation be terminated by 8:00 a.m. on October 

24, 1992 (Tr. 15). The danger presented by this violation in 

Mr. Stanley's view is that, if a fire were to break out at the 

battery charging station, the smoke would travel up the slope to 

the entry of the mine. Miners going in and out of the mine, 

particularly during a shift change, could be exposed to a hazard 

(Tr. 46 9 57= 58)c 

Upon receiving the citation, Respondent installed curtains 

and a 4-inch diameter pipe to direct the air current into the 

return (Tr. 65- 71). After this proved unsuccessful, Respondent 

installed a four inch exhaust fan to draw the air from the 

battery charging station into the pipe (Tr. 73- 79). However, 

when Mr. Stanley returned on October 26, 1992, he tested the air 

flow with smoke and it still vented up the slope towards the 

surface of the mine {Tr. 16- 18). As a result of this test, 

Mr. Stanley issued order number 3546916 pursuant to § 104(b) of 

the Act, alleging a failure to timely abate his original 

citation. Afterwards, Respondent abated the alleged violation by 

moving the battery charging station (Tr. 18). 

2

There were 5 battery chargers at this station, which was 

one of approximately 15 battery charging stations in the mine. 

The chargers are electrically powered and are used to charge the 

batteries on equipment such as man trips (Tr. 25- 26). 

1888 
on November 16, 1992, less than a month after the inspection 

in this case, new MSHA ventilation standards for underground coal 

mines went into effect. Among these standards was one at 

30 C.F.R. 75.340(a) (1), which provides that battery charging 

stations shall be "[v]entilated by intake air that is coursed 

into a return air course or to the surface and that is not used 

to ventilate working places ••• (emphasis added)." Petitioner 

concedes that Respondent would not have been in violation of the 

Act with regard to the instant citation and order after 

November 16, 1992 (Tr. 38- 39). 

The new standard was promulgated as a final rule on May 15, 

1992, with an effective date of August 16, 1992. on August 6, 

1992, MSHA delayed the effective date of the new ventilation 

standards until November 16, 1992, due primarily to difficulties 

some mine operators were having coming into compliance with some 

of the new regulations by August 16. No specific reference to 

30 C.F.R. 75.340(a) (1) was made in regard to the delay. 

57 FR 34683-4 (August 6, 1992J .• 

When promulgating the final rule in May 1992, MSHA provided 

the following explanation for revising the requirements of 

§ 75.1105: 

Unlike the existing rule, however, the final rule does 

not require that the intake air be coursed "directly" 

to the return. This existing requirement has caused 

much confusion under the existing rule. The final rule 

clarifies that the intake air installation may not also 

be used to ventilate active working places. Thus, the 

air may be coursed into other entries before being 

coursed into a return, if the air is never used to 

ventilate a working place. Since this air will not be 

used to ventilate face areas, the final rule provides 

the same level of protection as the existing rule. 

57 FR 20888-9 (May 15, 1992). 

Inspector Stanley believes the revision allowing the venting 

of battery charging stations to the surface to be ill-advised 

(Tr" 40)o Howeveru MSHA has made a finding that this practice 

poses no threat to employee safety and health. MSHA and 

Inspector Stanley are bound by this determination, which was made 

prior to the issuance of the citations in this case. 

Respondent clearly violated the requirements of the Mine Act 

as they existed on October 22 and 26, 1992. However, this 

violation was of a purely technical nature--given the agency~s 

formal determination that the venting of battery charging 

stations to the surface is an acceptable practice. In assessing 

a civil penalty, the Commission is required to consider the 

operator's history of previous violations, the size of its 

business, its negligence, the effect on its ability to stay in 

1889 
business, the gravity of the violation and the operator's good 

faith in achieving rapid compliance after being notified of the 

violation. 

In view of MSHA's prior determination that the violation was 

of no consequence to employee safety, I find a minimal penalty of 

$10 is appropriate for this violation. 3 I also find that 

Respondent's negligence was extremely low in view of the fact 

that MSHA had already determined that venting to the surface was 

a safe practice when this violation occurred. 

Section 104 (a) of the Act provides that a citation shall 

fix a reasonable time for the abatement of a violation. I hereby 

vacate order 3546916 because I do not think it was reasonable to 

require abatement of citation 3546915 prior to the effective date 

of the new MSHA ventilation regulations. It is important to note 

that the new regulations were final rules, not proposed rules at 

the time of the inspection in this case, and MSHA had published 

its rationale for the change'in the specific regulation under 

which Respondent had been cited. 

Although, the effective date of the new regulations had been 

postponed, MSHA's rationale for the delay had nothing to do with 

the propriety of§ 75.340(a) (1). Moreover, there was no 

indication, as of October 22, 1992, that § 75.340 was the subject 

of any legal challenge or that it was being reconsidered by the 

Agency. Given the unique circumstances of this case, the 

reasonable course for MSHA would have been to allow Respondent 

three weeks to abate the original violation in order to determine 

whether it still was under a legal obligation to do so. 

Docket KENT 93-295 

On November 19u 1992u MSHA Inspector Darold Gamblin 

conducted a regular quarterly inspection of the Martwick mine. 

During this inspection he encountered a employee working with a 

continuous mining machine in the number 2 entry of the number 1 

working sectiono Inspector Gamblin sampled the air flow at a 

point 25 feet behind the cutting edge of the machine, at the end 

of the line curtainf near where the employee was working. When 

the continuous miner was not operating the air flow was 2,340 

cubic feet per minute (cfm) (Tr. 86- 87). Respondent's approved 

ventilation plan (Exh. G-4) required an air flow of 5,000 cfm, 

before the continuous miner was turned on, at the inby end of the 

line brattice. (Exh. G-4, page 4, paragraph# 2). 

As a result of this air flow reading, Inspector Gamblin 

issued Respondent citation 3417307, alleging a significant and 

3

The statute requires that a penalty be assessed for each 

violation. Tazco, Inc., 3 FMSHRC 1895 (August 1981). 

1890 
substantial violation of 30 C.F.R. 75.316. This regulation, which requires operator compliance with approved ventilation 

plans4 ,was superseded by 30 C.F.R. 75.370, just three days before 

the inspection in this matter. Since the requirements of § 

75.370 are essentially the same as the former 75.316, I will~ 

sponte amend the pleadings to conform to the evidence. See 

cyprus Empire Corporation, 12 FMSHRC 911,916 (May 1990); Rule 

15(b) of the Federal Rules of Civil Procedure. Section 75.370 

(a)(1) requires that "[t]he operator shall develop and follow a 

ventilation plan approved by the district manager ••• " 

Respondent has conceded that it was in violation of the Act 

but takes issue with the characterization of the violation as 

"significant and substantial" (Respondent's Answer, paragraph 5, 

Respondent's Response to the Prehearing Order, paragraph 2). Th~ 

elements of a "significant and substantial" violation have been 

set forth by the Commission as follows: 

(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. Mathies Coal Co., 6 

FMSHRC 1, 3-4 (January 1984). 

There is no question that the evidence in this case 

satisfies the first and fourth elements of the Mathies test. 

Respondent has conceded the violation and there is no question 

that injuries, to which the violated requirement is directed, 

inhalation of excessive amounts of respirable coal dust and fires 

and explosions due to excessive concentrations of methane, are of 

a serious nature (Tr" 93). 

What is at issue are the second and third elements of the 

Mathies test. Respondent's evidence suggests that, due to the 

air flow capacity of the scrubber on the continuous miner, the 

inadequate ventilation prior to the scrubber's operation either 

presents no hazard, or that injury or illness is sufficiently 

unlikely that the violation cannot be properly considered 

09 significant and substantial 10 See Cement Division , National 

Gypsum Co .• 3 FMSHRC 822 (April 1981). 

The Commission in National Gypsum has held that a 

nsignificant and substantial" violation is not established by 

merely showing that the chance of an injury or illness resulting 

4Zeigler Coal co. v. Kleppe, 536 F.2d 398 (D.C. Cir., 1976); 

Secretary v. Mid-Continent Coal and Coke co., 3 FMSHRC 2502 

(1981). 

1891 
from the violation is more than remote or speculative. In this 

case the Secretary has simply not established how likely an 

accident would be when the inby end of the line brattice is 

ventilated by 2,340 cfm of air prior to operation of the 

scrubber 1 rather than 5,000 cfm. 

Assuming that the provision for 5,000 cfm is important, 

the Secretary's evidence leaves unanswered the question of what 

degree of noncompliance makes an accident or injury "reasonably 

likely". To rule in favor of the Secretary, I would have to 

infer that any amount of ventilation less than 5,000 cfm creates 

a substantial likelihood of injury or illness. I find no basis 

for such an inference. It would seem likely that a small 

deviation from the 5,000 cfm requirement would not create a 

reasonable likelihood of injury or illness. If I were to credit 

the Secretary's witnesses, I might infer that at some point 

inadequate ventilation prior to operation of the scrubber would 

create such a reasonable likelihood. However, there is simply no 

evidence in this record tying the 2,340 cfm measured by Inspector 

Gamblin to the likelihood of injury or illness. 

Inspector Gamblin testified that he believed injury or 

illness "reasonably likely" (Tr. 93- 98). However, this 

testimony is purely conclusory and I have no idea what underlies 

Gamblin's opinion. There is also testimony by MSHA ventilation 

supervisor Louis Stanley that he would not approve a ventilation 

plan in a deep cut mine such as Martwick unless it contained a 

requirement for 5,000 cfm of air before the scrubber is activated 

(Tr. 191). From this testimony, it appears that Mr. Stanley 

believes that without that quantity of air flow, injury from a 

fire or explosion, or inhalation of excessive respirable dust is 

oossible. Howeveru there is an insufficient rationale in this 

record for me t.o conclude from his testimony that there is a 

reasonable likelihood of injury or illness when the ventilation 

at the end of the line curtain is 2,340 cfm, rather than 5,000 

cfm. 

The Secretaryu at pages 9 and 10 of its Post-Trial Brief, 

relies on U. s. Steel Mining Co.u 7 FMSHRC 1125 (August 1985), a 

case which the Commission reversed an ALJ decision that 2,400 

cfm of air at a working face was not a "significant and substantial~' violation. In that case the operator's ventilation 

plan also required 5uOOO cfm. I find the u. s. Steel decision 

easily distinguishable from the instant case and not particularly 

helpful in meeting the Secretary's evidentiary burden. The 

requirement of u.s. Steel's ventilation plan was for 5,000 cfm 

once mining commenced and the commission decision relies heavily 

on its conclusion that ignition of methane was reasonably likely 

given the ignition source provided by the arcing and sparking of 

the continuous miner. In the instant case where the requirement 

of 5,000 cfm applied before the operation of the continuous miner 

and the evidence indicates that ventilation of the working face 

1892 
would have been much greater than 2,340 cfm when cutting 

operations began, I find no basis for relying on the U. s. Steel 

decision to conclude that an accident was reasonably likely on 

the record before me. 

Controverting the Secretary's evidence is the testimony of 

Respondent's witness, Randy Wolfe. Mr. Wolfe, a supervisory 

safety engineer employed by Respondent, testified that the 

scrubber on the continuous miner will adequately eliminate any 

hazard from dust or methane without any other source of 

ventilation. He concluded that there is no reasonable likelihood 

of injury or illness resulting the fact that the air flow prior 

to operation of the scrubber was less than s,ooo cfm--assuming 

that conditions remained the same as they were on the 

November 19, 1992 (Tr. 171- 172). Mr. Wolfe also testified that 

2,340 cfm airflow to the inby end of the line brattice was 

adequate to eliminate any hazard of methane ignition prior to the 

activation of the continuous miner (Tr. 161- 162). 

''••· 

The preponderance of the evidence suggests that the lack of 

5,000 cfm of air prior to operation of the scrubber increased the 

likelihood of serious injury or illness to some extent. In this 

regard, I consider it significant that Mr. Wolfe's opinion with 

regard to the absence of a reasonable likelihood of injury and 

illness was qualified by the proviso that conditions remain the 

same. The Hartwick mine is a one that is subject to spot 

inspections by MSHA due to its propensity for methane release. I 

infer from this fact, and the requirements of Respondent's plan, that maintaining s,ooo cfm prior to operation of the scrubber is 

necessary to insure employee safety.s However, these facts alone 

do not warrant the conclusion that when the airflow is 2,340 cfm, 

prior to the operation of the scrubber 9 injury or illness is 

reasonably likelyo 

I assess the $267 penalty proposed by the Secretary. I note 

first that this penalty is very low--particularly considering the 

Respondentws size. Peabody has stipulated that it is a large 

operator and a reasonable penalty will not affect its ability to 

5I do not accord great weight to Mr. Wolfe's testimony 

regarding the adequacy of the 2,340 cfm. Mr. Wolfe's highest 

level of education is an Associates degree in Applied Science 

from Madisonvilleu Kentucky Community College. His testimony was 

largely based on a paper prepared by Dr. John Campbell. Little 

information was provided regarding Dr. Campbell's qualifications 

other than that he had worked for Respondent in the past. 

Indeed, it is not even clear in what field Dr. Campbell holds his 

doctorate. There is also no indication as to whether Dr. 

Campbell's conclusions are widely held in the scientific 

community or whether his paper was ever subjected to an impartial 

peer review. 

1893 
remain in business. I believe that the gravity of the 

violation, particularly the seriousness of an injury if one 

occurred, warrants a $267 penalty. On the other hand, I find 

that no higher penalty is warranted given the low to moderate 

negligence that caused the violation and Respondent's prompt 

abatement of the violation by extending and tightening its line 

curtains to increase the air flow (Tr. 98- 99). I see no reason 

to either raise or lower the penalty on the basis of Respondent's 

history of previous violations. 

ORDER 

citation No. 3417307 (Docket Kent 93-295) is affirmed as a 

"non-significant and substantial" violation and a $267 civil 

penalty is assessed. Citation No. 3546915 is affirmed as a "nonsignificant and substantial" violation and a ten ($10) penalty is 

assessed. Order No. 3546916 is vacated. Within thirty (30) days 

of the date of this decision, Respondent is ordered to pay a 

civil penalty of $277 for th&violations found herein. 

Distribution: 

~~ Administrative Law Judge 

703-756-4572 

MaryBeth Bernui, Esq., Office of the Solicitor, u.s. Department 

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

37215 (Certified Mail) 

David Ro Joestu Esqou Peabody Coal Companyu 1951 Barrett Courtu 

PoOo Box 199Du Henderson, KY 42420 (Certified Mail) 

/jf 

1894 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH. VIRGINIA 22041 

SEP 161993 

SECRETARY OF LABOR, . . CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

. . 

. . 

Docket No. WEVA 92-1012 

A.C. No. 46-01455-03895 

Osage No. 3 Mine 

DECISION 

Appearances: Charles M. Jackson, Esq., Office of the Solicitor, 

u.s. Department of Labor, Arlington, Virginia 

Before: 

for Petitioner; 

Daniel E. Rogers, Esq., Consol Incorporated, 

Pittsburgh, Pennsylvania for Respondent. 

Judge Barbour 

STATEMENT 01' THE CASE 

This case is before me upon the petition for assessment of 

civil penalties filed by the Secretary of Labor ("Secretary") 

against Consolidation Coal Company ("Consol"} pursuant to 

sections 105 and 110 of the Federal Mine Safety and Health Act of 

1977 (the "Mine Act" or "Act"). 30 U.S.C. 815 and 820. The 

petition alleges two violations of certain mandatory safety 

standards for underground coal mines found in Part 75 of 

Volume 30 of the Code of Federal Regulations ("C.F.R."). The 

alleged violations are set forth in orders of withdrawal issued 

pursuant to section 104(d) (2) of the Act. 30 u.s.c. § 814(d) (2). 

In addition to the allegations of violation, the orders assert 

the violations each constituted significant and substantial 

contributions to mine safety hazards ("S&S" violations) resulting 

from Consol 1 s unwarrantable failure to comply with the cited 

standards. Consol answered, denying the Secretary 1 s allegations, 

and hearings were held in Morgantown, West Virginia. 1 

The issues for decision are whether the violations existed 

as charged and, if so, whether they were S&S in nature and the 

result of Consol's unwarrantable failure to comply. In addition, 

1

Because the case could not be heard in full during the time available, 

the initial hearing was adjourned short of completion. It was reconvened 

about one month later. Citations to the transcript of the first hearing are 

signaled "Tr. I". Citations to the transcript of the second are signaled 

•Tr. II". 

1895 
if violations are found, appropriate civil penalties must be 

assessed. 

At the close of the hearing counsels presented oral 

summaries of their positions. 

STIPULATIONS 

Pertinent to this decision, the parties agreed as follows: 

1. Consol is the owner and operator of the Osage No. 3 

Mine. 

2. Operations of Consol are subject to the 

jurisdiction of Act. 

3. This proceeding is under the jurisdiction of the 

Federal Mine Safety and Health Review Commission 

("Commission") and its designated Administrative 

Law Judge. 

4. Mine Safety and Health Administration ("MSHA") 

Inspector Lynn Workley was acting in his official 

capacity and as an authorized representative of the 

Secretary when the orders at issue were served. 

5. True copies of each of the orders were served on 

Consol or its agent as required by the Act. 

6. The total proposed penalty for the orders contested 

by Consol in this proceeding will not affect 

Consol's ability to continue in business. 

Tro 8o 

ORDER NO. 

3718491 

The order states~ 

DATE 

2/10/92 

30 C.F.R. § 

75.323 

The 7 butt intake escapeway was examined by 

Ron Wyatt (certified foreman) on 1/23/92 and 

he entered in the approved book that added 

roof support is needed at 55 block from the 

intake door to the return door. The report 

was countersigned by Joe Statler[,] mine 

foreman[,] and by Aaron Cage[,) assistant 

super[intendent]; however no action has been 

taken to correct this hazard. 

Gov. Exh. 4. 

1896 
THE EVIDENCE 

THE SECRETARY'S WJ:TIESS 

LYD WORKLEY 

MSHA Inspector Workley testified that on January 23, 1992, 

during the course of an inspection of the Osage No. 3 Mine, he 

traveled the 7 butt intake escapeway with Consol inspection 

escort, Norman Hill, and UMWA representative, Ronald Schriver. 

At No. 55 break {a crosscut) Workley saw that the roof was 

sagging. In the crosscut Workley observed a diagonal crack from 

the outby right hand rib of the escapeway to the inby left hand 

rib. (In other words, the crack extended across the entire 

intersection of the escapeway entry and the crosscut. See Exh. 

Gov. 7.) The crack was opened about a 1/2 inch. According to 

Workley, the mine roof was deteriorating in the right and left 

crosscut and coal had fallen from the roof at the corner where 

the rib and roof met. Tr. I 22. Workley testified that he 

believed the roof could have fallen at any time. Tr. I 45. 

There were stoppings in the right and left crosscut and the 

distance between the stoppings was approximately 100 feet. Id.; 

Gov. Exh. 7. The intake entry and crosscut were each 15 feet 

wide. Tr. I 52. 2 Workley believed that the condition of the 

roof at the intersection was such that the miner who weekly 

examined for hazardous conditions should have observed and 

reported it. Workley stated that at the time he saw the 

condition he was not aware if the condition had been reported 

and, at the suggestion of Hill, he decided to wait until he got 

to the surface in order to check the weekly examination book (the 

book wherein hazardous conditions noted during the weekly 

examination are recorded) o Tr. I 23. 

Upon checking, Workley found an entry in the book regarding 

the condition had been made that day by Ronald Wyatt, the 

midnight shift foreman who had examined the escapeway. Wyatt had 

indicated that additional r.oof support was needed between the 

stoppings in the No. 55 break. Tr. I 24. 

Workley identified a copy of a page from the book. The page 

is titled Emergency Escape Facilities and Escapeways Examined 

(Weekly) and it states in pertinent part "1-23-93[,] 7 Butt Face 

to 6 Butt Split[,] 55 Block From Track Door to Return Door Needs 

2

Although Workley's sketch of the area shows the crosscut as intersecting 

the entry at a 90 degree angle, Workley acknowledged that the crosscut 

actually intersects at a 60 degree angle. When asked whether cutting 

crosscuts on a 60 degree angle can reduce the danger of roof fall, he replied, 

"It can." Tr. I 56; ~also Gov. Exh. 7. 

1897 
Additional Support[,] R. Wyatt [signature]" Gov. Exh. 6 at 2. 

The page was countersigned by Joseph Statler, the mine foreman, 

and by Aaron Gage, the assistant mine superintendent. 

Workley testified that when he viewed the intersection he 

noticed that two posts had been set at its outby right corner, 

one on either side of the crack. Tr. I 25, 52. (The posts are 

depicted by small circles on Gov. Exh. 7.) Workley believed the 

posts were insufficient to properly support the roof. However, 

he did not issue a citation at that time because Consol was 

following the "correct procedure" in that Wyatt had traveled the 

area as required, had noted the hazardous condition and had 

recorded the condition in the book. Tr. I 24-25. Further, 

Workley stated that when additional roof support is needed it 

normally takes at least one shift to transport roof support 

materials such as cribs and posts to an area and to arrange for 

miners to come t~ the area and do the work. Tr. I 26. Workley 

testified that after he reviewed the "Weekly Examination" book he 

explained to Hill and Schriver his reasons for not writing a 

citation and he left the mine. 

Workley returned to the mine during the afternoon shift of 

February 10 to conduct another inspection. This time Workley was 

accompanied during his inspection by Consol representative Art 

Jordan and miners' representative Eddie Cheslik. Workley 

returned to the No. 55 break of the No. 7 butt intake escapeway. 

Workley stated that he found conditions to be "almost exactly the 

same" as they had been on January 23. Tr. I 27. Workley told 

Jordan and Chesl.ik lhal:. ht:! was issuing a section 104(a) citation 

requiring installation of additional roof support and a section 

104(d} (2) order of withdrawal for an unwarrantable failure to c:~orrect the hazardous condition that had been recorded in the 

\.:teel<ly examination book on January 23. Id. 

After issuing the order, Workley checked the weekly 

examination book and found an entry for January 30, 1991, 

indicating that additional roof support was needed in the area of 

the intersection. Workley identified a copy of the page bearing 

\che entry. Gov. Exh. 6 at 4. (Workley read it into the record, 

30/92 9 seven butt face to Moorsville, 55 block, track door to 

I:eturn, needs added support." Tr. I 29.) Workley believed the 

entry indicated that between January 23 and 30 Consol had done 

essentially nothing to correct the condition, even though Statler 

had told him that a miner had been assigned to take corrective 

action and that a couple of posts had been set at No. 55 block. 

Tr o I 29 u 43. 

Workley acknowledged there were still two posts present on 

February 10, one set on each side of the crack at the outby right 

corner. In addition, he acknowledged that there may have been 

some posts in the crosscut on both January 23 and February 10. 

Tr.I 30, 54. He indicated, however, that even if some posts had 

1898 
been set between January 23 and February 10, they did not correct 

the hazardous condition, for he noted that to abate the condition 

Consol had to install six cribs and twenty seven additional posts 

in addition to whatever posts may have been there. Tr. I 31; 

Gov. Exh. 6 at 5. In Workley's opinion the failure to correct 

the condition of the roof in the intersection between January 23 

and February 10 violated section 75. 323 because that standard 

required reported hazardous conditions be corrected promptly. 

Tr. I 32. 

Workley believed failure to install the required roof 

support had subjected persons traveling through the intersection 

to the danger of injuries from roof fall and that such injuries 

could range from quite serious to fatal. Tr. I 33. He also 

believed it reasonably likely that a reasonably serious injury 

would have occurred had mining continued. He noted some blocks 

of head coal adjacent to the crack and measuring approximately 

6 to 8 inches wide had fallen from the roof and that he had asked 

Jordan and Cheslik not to go .. under the area. Workley stated, 

"I felt extremely uncomfortable getting under far enough to see 

the crack and what more deterioration had taken place • • • " 

Tr. I 41. Because of the sag in the roof, the amount of loose 

rock and coal adjacent to the crack and the sloughage from the 

top part of the ribs in the crosscuts, Workley believed parts of 

the roof could have fallen at any time. Tr. I 42. 

According to Workley, those miners likely to have been 

injured were the miner who was required to travel the entry 

weekly to examine the escapeway, the one or more section workers 

who usually accompanied the examiner and persons using the 

crosscut to travel from the return entry to the track entry. 

Tr. I 43o Moreoveru if a section crew had to use the escapeway 

to evacuate the mine~ the entire crew of up to six or seven 

miners would have been subject to injury because they would have 

had to pass under the defective roof on their way out of the 

mine. Tr. I 35. 

With regard to Consol's negligence in failing to correct the 

conditionu Workley believed that because the mine foreman 5 

Statlerv and the assistant superintendent, Gage, had 

countersigned the page containing the report of the condition, 

they were aware of it. Tr. I 35. Moreover, because the 

condition was the same or worse on February 10 than it had been 

on January 23, Workley believed that mine management had taken no 

apparent action to correct the condition. This belief was 

confirmed by the fact that there were no entries in the book to 

show that any action had been taken, only an entry on January 30, 

to indicate that the same condition still existed. Tr. I 37. 

Mining had been taking place while the condition existed and 

Workley concluded Consol had given priority to production, not to 

maintenance of the roof in the escapeway. Tr. I 37-38. 

1899 
When asked whether he would have considered it a violation 

if eight posts had been set in the area of the crack, Workley 

replied that Consol would still have been in violation because it 

took more than eight posts to eliminate the hazard. (He 

specifically noted six cribs had been build for abatement 

purposes and stated that the roof support given by one crib is 

equal to that of a dozen posts. Tr. I 39.) 

The condition was abated by the midnight crew on 

February 11o Workley described the abatement as timely. 

Tr.I 40. 

CONSOL'S WITNESS 

JOSEPH STATLER 

statler is the general mine foreman at the Osage No. 3 Mine 

and he held that position during Workley's inspections of January 

and February 1992. Statler was asked what was done in response 

to wyatt's entry of January 23, 1992, in the preshift examination 

book -- the entry that indicated the subject area needed roof 

support? He responded that immediately after the inspection on 

January 23, Hill had told him that posts would have to be set in 

the area. statler stated that he then told the foreman of the 

next shift, the afternoon shift, to send people into the area, to 

see what needed to be done and to do it. Tr. I 59-60. Statler 

also stated that "as a backup" he left a note for the foreman of 

the midnight shift -- the shift following the afternoon shift -- to "make sure that •.• area was taken care of." Tr. I 60. 

According to statler, the midnight shift foreman found that no 

work had been done in the area during the afternoon shift, and he 

therefore took two men into the area and the crew set eight 

posts. Tr. ! 60-61. 

statler identified a copy of a page from the mine work 

book -- a book that is kept at the mine and referred to by 

statler to determine what work has been done. Op. Exh. 1, 

Tr. ! 61-62* Statler identified an entry for the midnight shift 

on January 24, 1992. The entry states that miners Nabors and 

Coburn had "picked up empty flat put in 6 Butt spur. Went to 8 

west tailpiece replaced skirts. Changed rollers on 8 west belt. 

Set 8 posts 7 Butt intake 55 block." Op. Exh. 1 (emphasis added}; 

see Tr. I 62. Statler also stated that he never went to the 55 

block to see the posts the work book indicated had been set. 

Tr. I 63. 

Statler was then referred to the entry of January 30, 1992, 

in the book used to record the results of the weekly examination 

of escapeways. Gov. Exh. 6 at 4. The entry contains two 

illegible, marked through words. Statler was of the opinion that 

the weekly examiner, Parker, had written the words "none found" 

in the column titled "Hazards Noted" and that these words had 

1900 
been scratched out subsequently. Statler noted that above the 

scratched out words examiner William Varner had written the 

phrase "55 block track door to Ret needs add support," which 

Statler deciphered as "55 block track door to return needs 

additional support." Gov. Exh 6 at 4; Tr. I 67. In Statler's 

opinion, Varner had walked the entry with Parker, they had not 

noticed the area as having been in need of any support but when 

they came out of the mine and reviewed the book and saw that a 

week earlier the area had been indicate as being in need of 

support, they could not recall if roof supports had been 

installed or not. Therefore, they erred on the side of safety 

and marked out "none found" in the hazards column and added the 

entry indicating additional support was needed. Statler was 

candid that this was only speculation on his part. He had not 

discussed the situation with either man. Tr. I 68-69. 

Continuing his testimony regarding the weekly examination 

book, statler noted that on February 6, 1992, Lee Wolf had 

examined the 7 Butt face to the 6 Butt split -- an examination 

that would have required him to walk through the subject 

intersection -- and that he had indicated no hazards had been 

found. Tr. I 70; Gov. Exh 6 at 3. 

THE VIOLATION 

Section 75.323 stated in part: 

The mine foreman shall read and 

countersign promptly • • • the weekly report 

covering the examinations for hazardous 

conditions. Where such reports disclose 

hazardous conditions, they shall be corrected 

promptly o [ 3 ] 

Counsel for the Secretary argues the evidence establishes 

the condition of the crosscut was hazardous, that it was observed 

by Wyatt on January 23 and was recorded as a hazardous condition, 

that it was not corrected until February 10, 1992, and that the 

fifteen day delay in correcting the condition violated the 

standardijs mandate that reported hazardous conditions be 

corrected 81 promptly. ~~ Counsel further asserts that even if eight 

posts were placed in the crosscut, as Consol alleges, the eight 

posts did not abate the condition and constitute prompt 

correctiono Tro I 76-79o 

Counsel for Consol argues that within a day after the crack 

in the roof was noted additional roof support (i.e., the eight 

3Section 75.323 was one of the ventilation regulations revised 

effective August 15, 1992. 57 FR 20914 (March 15,1992). The requirements 

of section 75.323 now are subsumed in section 75.364. 

1901 
posts) had been set and that this roof support was sufficient to 

take care of the situation as it existed at the time, even though 

it may have deteriorated subsequently and have required 

additional work at a later date. Tr. I 84. 

I conclude the violation existed as charged. I am persuaded 

of this by the testimony as well as the fact that Consol chose 

not to call witnesses whose testimony would have presumably 

supported -- and strongly supported -- its argument. 

There is no dispute about the condition found by Workley on 

January 23. The roof in the intersection of the escapeway and 

the crosscut was sagging and a 1/2 inch wide crack in the roof 

ran diagonally across the intersection. In addition, the roof in 

the crosscuts had deteriorated and coal had fallen at corners of 

the intersection. There were two posts set at the outby corner 

of the intersection of the escapeway and the crosscut, but they 

were totally inadequate to support the roof. I credit Workley's 

opinion that the condition of''the roof was such that it could it 

presented a danger of falling, and I conclude therefore that the 

condition in the escapeway was hazardous. 

There is likewise no dispute that the condition was observed 

and recorded and that the weekly report was read and 

countersigned by mine foreman statler, as was then required by 

section 75.323. Statler 's signature appears on the page bearing 

Wyatt's January 23, 1992 report of the condition. Gov. Exh 6 

at 2. Up to this point, Consol complied with section 75.323. 

The problem, of course, is that the section also required 

the hazardous condition to be "correctly promptly." I agree with ~ne Secretary that this was not done. In my view, prompt 

correction means that the hazardous condition must be corrected ~s quickly as reasonably possible under all of the relevant 

circumstances. Here, as Statler recognized, that would have 

required the foreman on the shift after the hazardous condition 

was reported on January 23 -- the afternoon shift -- to make 

certain the roof was adequately supported. I credit statler's 

testimony that he told the afternoon shift foreman to take care 

of the situation. I also credit his testimony that the foreman 

did nothingu and I conclude from this that the hazardous 

condition was not corrected promptly and that the standard was 

violated. 

In addition, I conclude the violation was ongoing. Even if, 

as Consol maintains, eight posts were set on the midnight shift, 

the preponderance of the evidence is that they did not adequately 

correct the condition. I am persuaded the entry in the weekly 

examination book for January 30 that additional roof support was 

needed accurately reflects that fact, and I do not believe that 

the roof was deteriorating fast enough that whatever support was 

installed on the midnight shift of January 23-24 was made 

1902 
obsolete. Rather, it seems clear to me that the condition of the 

roof as it existed on January 23 was never fully corrected until 

the violation was abated on February 11. I especially note that 

Consol did not call either Parker or Varner as witnesses, 

although both had observed the condition of the roof on 

January 30. Rather Consol relied solely upon the testimony of 

Statler, a witness who never saw the condition at issue. 

In reaching the conclusion the violation was continuing, I 

discount the February 6 entry of mine examiner Wolf to the effect 

that no hazards were found in the subject intersection. Without 

actual testimony from Wolf, I cannot find that his written 

comment outweighs the opinion of Workley, that Consol never 

corrected the ongoing problem with the roof. Afterall, Workley 

twice viewed the area. Moreover, the significant amount of roof 

support that was necessary to eliminate the hazard adds credence 

to Workley's opinion that the hazardous roof existed from 

January 23 until February 11. I believe it extremely unlikely 

that the roof would have been adequately supported and then 

rapidly deteriorated to the point where such massive additional 

roof support was needed. 

S&S AND GRAVITY 

The Commission has held that a violation is "significant and 

substantial" if, based on the particular facts surrounding the 

violation, there exists a "reasonable likelihood that the hazard 

contributed to will result in an injury or illness of a 

reasonably serious nature.;: Cement Division, National Gypsum 

co., 3 FMSHRC 822, 825 (April 1981). Further, the Commission has 

offered guidance upon the interpretation of its National Gypsum 

definition by explaining four factors the Secretary must prove in 

order to establish that a violation is S&S. 4 

Hereu I have found a violation of the cited safety standard. 

Furtherv the violation posed a discrete safety hazard in that 

failure to promptly correct the condition of the roof subjected 

miners passing beneath it to the danger of injuries due to a roof 

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

Commission stated: 

[T)o establish that a violation of a mandatory 

standard is significant and substantial under National 

Gypsum the Secretary .•• must prove: (1) the 

violation of a mandatory safety standard; (2) a 

discrete safety hazard contributed to by the 

violation; (3) a reasonable likelihood that the hazard 

contributed to will result in an 1nJury; and (4) a 

reasonable likelihood that the injury in question will 

be of a reasonably serious nature. 

1903 
fall. If such an accident had happened, the resulting injuries 

were reasonably likely to be serious or even fatal. Roof fall 

is 9 afterall, a leading cause of serious injury and death in the 

nation's underground coal mines. 

As is frequently the case when the alleged S&S nature of a 

violation is challenged, the question is whether the Secretary 

has established a reasonable likelihood that the hazard 

contributed to will result in an injury? Or, as the Commission 

has put 1 whether the Secretary has established that "the 

hazard contributed to will result in an event in which there is 

an injury? 9

' u.s. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 

(July 1984); Halfway, Inc. 8 FMSHRC 12 (January 1984). 

The relevant frame for determining whether a reasonable 

likelihood of injury existed includes both the time that the 

violative condition existed prior to citation and the time that 

it would have sted if normal mining operations had continued. 

Halfway, 8 FMSHRC at 12; U.S. Steel Mining Co., 7 FMSHRC 1125, 

1130 (August 1985). 

Counsel for the Secretary,maintains the testimony 

establishes the area in ·which the violation existed was traveled 

regularly by the weekly examiner and by other miners as well. 

He argues that the area was not adequately supported from 

January 23 through February 10 and that the condition was not 

focused upon and corrected and thus would have been a continuing, 

ongoing hazard had Workley not forced the issue. Therefore, he 

views it as highly likely that the roof would have fallen and 

injured someone had normal mining operations continued. 

Tro I 79-80. 

Counsel for Consol argues that miners "very, very rare[ly]" 

affected roof and therefore that it was not 

t.hat someone vJould have been injured. 

'T:::::, :::: 85 o }lfloreover, observes that between January 23 and 

10 nothing serious happened and that this speaks for 

establishing that the probability of something 

occurring was "ni " Tr. I 86. 

Consol 1 s arguments and conclude that Workley 

the violation was S&S. The Secretary is right in 

area in which the bad roof occurred was regularly 

<;r~veled and was traveled not only by the weekly examiner and 

c,;homever accompanied him but by other miners as well. 

under the roof on a regular basis in 

the requirement that the area be examined for 

haze.rdous conditions. He was accompanied usually by at least one 

of;:.her miner. ~1:oreover, as Workley noted, miners used the area to 

between the track and return entries, as attested by the 

man doors in the stoppings at both ends of the crosscut. 

Fur~herf the escapeway ever had to be used for its intended 

1904 
purpose, an entire section crew would have had to pass under the 

area. 

I have already found that the inadequately supported roof 

existed between January 23 and February 10. Workley was 

uncertain whether, as Statler maintained, up to eight posts had 

been installed to support the roof, but I have agreed with 

Workley that whether or not they were installed the hazard was 

not alleviated. I further conclude that the unsupported roof 

would have continued to exist had normal mining operations 

continued. I accept counsel for the Secretary's argument that 

the testimony fully supports the conclusion the condition was 

only corrected because Workley cited the violation. Workley, the 

only witness to testify who had first hand knowledge of the 

condition, stated that on February 10 the cited area was about 

the same as it had been on January 23. It was clear to Workley, 

and it is clear to me, that Consol's correctional efforts were at 

most woefully inadequate. In this regard, Statler's testimony 

and Consol's own records afford a compelling basis from which to 

infer its indifference to the situation. The first foreman sent 

by Statler to correct the condition did nothing, and Consol's 

record of the weekly examination for hazardous conditions that 

was conducted after the January 23 examination (the January 30 

examination) indicates that additional support was still needed. 

The implication Consol was indifferent to the condition is 

inescapable. Given these factors, I fully agree with counsel for 

the Secretary it was reasonably likely that "someone would have 

gotten struck by rock from a roof fall." Tr. I 80. The violation 

was S&S. 

In determining the gravity of the violation I must consider 

both the potential hazard to the safety of the miners and the 

likelihood of the hazard occurring. As has been noted, the 

violation subjected miners to serious injury or death from a fall 

of the roof. In additionv given the extensive roof support that 

had to be installed to correct the condition and the fact that 

miners unquestionable traveled under the inadequately supported 

roof, it was likely that a miner would have been involved in a 

roof fall accident. Therefore, I conclude the violation was 

serious. 

UNWARRANTABLE FAILURE AND NEGLIGENCE 

The Commission has held that unwarrantable failure is 

aggravated conduct constituting more than ordinary negligence by 

a mine operator in relation to a violation of the Act. Emery 

Mining Corp. 1 9 FMSHRC 1997, 2004 (December 1987); Youghiogheny & 

Ohio Coal Corp., 9 FMSRHC 2007, 2010 (December 1987). The 

Commission has explained that this determination is derived, in 

part, from the ordinary meaning of "unwarrantable " ("not 

justifiable" or "inexcusable"), "failure" ("neglect of an 

assigned, expected or appropriate action91 ), and "negligence" (the 

1905 
failure to use such care as a reasonably prudent and careful 

person would use, characterized by "inadvertence," 

"thoughtlessness," and "inattention"). Emery, 9 FMSHRC at 2001. 

Counsel for the Secretary argues that Statler's failure to 

go to the affected area and make certain the condition of the 

roof was corrected was aggravated conduct on Consol's part. 

Tr. I 81. Counsel for Consol counters that within a day after the 

condition was first noted by Workley, the eight posts were set 

and that this was sufficient to take care of the situation as it 

existed at the time, even though it may have deteriorated later. 

By promptly attending to the situation, consol did not exhibit 

the kind of aggravated conduct that constitutes unwarrantable 

failure. Tr. I 84-85. 

In my view, Counsel for Consol is wrong. As I have found, 

even if the eight po~ts w~rP set, they did not correct the 

hazard. The roof in the area continued to be inadequately 

supported until the violation was correctedr and Consol was well 

aware of this in that the repQrt of the January 30 examination 

for hazardous conditions specifically called for more roof 

support. Still, nothing was done and ten days later, when 

Workley again viewed the area it was in no better condition than 

it had been on January 23. In knowing that the area had poor 

roof and that its examiner had called for additional support, not 

once but twice within a period of slightly more than two weeks, 

and in failing to ensure the support was present even after it 

had received a second "wakeup call," Consol exhibited the type of 

heightened and inexcusable neglect that constitutes unwarrantable 

failure. 

It is likewise clear to me that Consol's failure to 

adequately support the roof by February 10 was the result of its 

lure to meet the standard of care required of it under the 

circumstances and that its failure represented a high degree of 

negligence. 

ORDER NO. 

3717961 

The order states: 

DATE 

2/20/92 

30 CoFeR. S 

75.301-4(a) 

The mean entry air velocity was calculated to 

be 41.6 feet per minute in the crosscut 3 to 

2 where the 7 butt continuous mining machine 

was operated. A mean entry air velocity of 

60 feet per minute is the minimum required to 

dilute -- render harmless --and carry away 

methane and respirable dust. 

Gov. Exh. 9. 

1906 
THE EVIDENCE 

THE SECRETARY'S WITNESSES 

LYNN WORKLEY 

Workley stated that he conducted another inspection at the 

mine on February 20, 1992. During this inspection he was 

accompanied by Bill Kun, a Consol safety escort and head of the 

mine's safety department and by miners' representative, Larry 

Numeric. Tr. II 9-10. Workley arrived at the mine at 

approximately 7:45 a.m. Before proceeding underground he met a 

roof bolting machine operator who asked Workley to go the 7 butt 

section and check the ventilation tubes because there was no 

ventilation on the section. The miner's face was black with coal 

dust. Tr. II 10. 

Workley went to the 7 butt section, a section where mining 

was performed by a continuous mining machine ("continuous 

miner"). Tr. II 11. Workley arrived on the section at 

approximately 9: oo a.m. Tr. '!I 42. · Mining was not taking place 

when Workley arrived and none took place while he was there. 

Tr. II 11, 39, 42. Some miners were moving supplies and some 

were in the process of completing a belt move that had been 

started the previous shift. Tr. II 11, 51. Workley stated he 

walked to the face of the section and had a conversation with the 

section foreman, Louis Parker, and the continuous miner operator, 

Joseph Jimmy. Workley asked Parker if he was ready to being 

mining coal, and, according to Workley, Parker said, "yes." 

Tr. II 11. 5 Workley stated that he then took an air reading in 

the last ventilation tube in place in the face area. Workley 

described the type of air reading he conducted as one as one in 

which he used a magnehelic and Pitot tube. Id. 6 

6

Later, Workley changed and supplemented his testimony regarding the place 

where the conversation occurred. He stated that he and Parker spoke in the 

intersection of the crosscut and the entry leading to the face ("E" on Gov. 

Exh. 10). Because this area was near the auxiliary fan, most in the area, 

himself included, were wearing ear protection at the time. Nonetheless, 

Workley maintained that he and Parker were near enough easily to hear one 

another. Tr. II 129-130. 

"Pitot tube" is defined as a device that: 

[C]onsists of two concentric tubes bent in an L shape. 

In operation, the instrument is pointed in the 

direction of air flow: the inner tube, open at the end 

directed upstream, measures total head, and the outer 

tube, perforated with small openings transverse to the 

air flow, records static head. Each tube is connected 

to a leg of a manometer, when reading velocity head. 

(cent inued •.• ) 

1907 
As a result of the air reading Workley determined the 

of air in the last tube was far less than required. 

testified h test established a velocity of 3,574 cubic 

minute ("cfm"). Since the area of the entry was 86 

feet, Workley calculated the mean entry air velocity of 

to be 41.6 feet per minute. 7 According to Workley, 

75.301-4(a) of the regulations, which was in effect at 

, required a mean entry air velocity of at least 60 feet 

Tr . I I 12 , 14 . 

Workley decided to issue an order of withdrawal after Parker 

he was ready to mine coal. Had Parker stated that he 

was not ready to mine, Workley would have issued a citation for a 

of section 75.301-4(a) on the previous shift, the 

shift, because in his opinion the mean entry a 

\clas no more than 41 feet per minute toward the end of 

ight shift. Tr. II 145. Workley issued the subject 

::.04 (d.) (2) order of withdrawal to Kun at approximately 

9~40 a.m." Tr. II 13, 42; Gov. Exh. 9. 

Workley identified a drawing he had made depicting the 

subject area as it had existed on February 20, 1992. 

Gov. Exh. 10. Workley explained that the section was ventilated 

by an exhaust system, in that air ventilating the face was sucked 

by an liary fan through tubing and away from the face. In 

other words, air coursed up the entry into the face area, crossed 

the face and was exhausted out of the face area and through the 

Tr. II 16. Workley testified that the tubing was 

damaged and Workley was of the opinion that the 

caused the insufficient ventilation. Tr. II 15. 

The tubing, which was hung from the miner roof with steel 

spads, was made of fiberglass and was assembled in a 

::line regular sections. Each section tvas 10 feet long. 

The regular sections of tubing were approximately 

ll wide. The section nearest the face 

ooCOntinued) 

of the Interior, A Dictionary of Mining, Mineral, and Related 

6En at 828. Horkley explained that because there was low air 

o~' ·::he section a magnehelic and Pitot tube reading \<Jas the only way 

.:oL~ld determine the quantity of air drawn to the working face and 

figure could calculate the mean entry air velocity coming up into 

place. Tr. II 12. If the velocity of air on the working face had 

:.:.e could have used an anemometer. Tr. II 40. Or, if another 

been present to help conduct the inspection, he could have used a 

nmoh:e c;loud6 Ido 

described the "mean entry air velocity" as "[t]he average velocity 

~cro~s ~he entire cross-sectional area of the entry." Workley took only one 

th the Pitot tubes and he maintained that it was not necessary to 

take more than one reading to calculate the mean entry air velocity. 

TJ:. E t~0-4L 

1908 
was called the "peewee section" because it 1 s height and width 

were smaller than the regular tubing. The peewee section was 

17 1/2 inches high by 9 inches wide. It slid into and out of the 

larger tubing, making its length easily adjustable. Tr. II 17. 

An auxiliary fan was located in a crosscut outby the face. 

Tubing extended from the fan up the entry leading to the face and 

into the face area. At the corner of the crosscut in which the 

fan was located and at the corner of the entry leading to the 

face area the tubing made approximately 90 degree turns. 

Workley measured the air volume by inserting the Pitot tube 

into the peewee tube about five feet back from the end of the 

peewee tube and about 14 feet outby the face. Tr. II 19, 65; "B" 

on Gov. Exh. 10. Workley stated that he measured at this point 

rather than at the end of the peewee tube because it was as close 

as he could get to UH~ end of the tube and still get an accurate 

air reading. Tr. II 63-65. 

In WorkleyRs opinion, because the peewee tube slid into the 

angle tube it was not possible for the peewee tube to be adjusted 

as it normally would have been. Tr. II 18. Consequently, there 

was a gap between the peewee tube and the regular size angle tube 

and Workley maintained that there was loss of air where the 

peewee tube slid into the angle tube and the loss diminished the 

velocity of air that he measured, as did every other damaged 

place in the tubing were air leaked into the tubing. As Workley 

stated, "Each leak between the fan and [the] point [where he 

measured the air] reduces the amount of air that•s shown in the 

reading that 9 s being provided at the end of the ventilation 

tube.~~ Tr. II 19. In Work ley 1 s opinion, he obtained an accurate 

reading of the air at the end of the tube because there were no 

leak between where he took the reading and the end of the peewee 

tube. Tr. II 19-20. 

Workley was asked about notations he had made on 

Gov. Exh. lOg notations that indicated places where the tubing 

was 91mashed io or had 99 holes. 51 He stated that they depicted places 

where his notes indicated the tubing had been "busted" during 

frequent use and also where it had small multiple holes. At the 

joint between the peewee tube and the angle tube Workley found a 

gap at the top of the peewee tube that measured approximately 

6 inches high by 2 inches wide" Wcrkley believed air that was 

being sucked in·to the gap 'l.'lould have gotten no further than the 

gap. In other words, that air would not first have swept the 

face as was supposed to do. Tr" II 134-138i 140. At other 

places Workley found a hole 3 inches high by 9 inches wide, as 

well as two other holes large enough to stick a hand into. 

Tr. II 21=22. 

Workley stated that Parker told him mining had been done 

during the midnight shift. Tr. II 68. Because, as the tubing 

1909 
was extended the velocity of air at the end of the tubing 

dropped, Workley concluded that on some part of the midnight 

shift, possibly the last hour and a half, the mean entry air 

velocity dropped to the level he found it. Tr. II 22. However, 

given the amount of coal dust he had seen on the miner's face, 

the velocity may have been below 60 cfm for a longer period 

because "short duration exposition would not cause that quantity 

of float coal dust to stick to you." Tr. II 26. 8 

Workley believed that due to the lack of a sufficient mean 

entry air velocity excessive quantities of float coal dust were 

likely to be generated in the face area, especially in the 

working environment of the roof bolting machine and continuous 

miner operators. Workley stated that breathing excessive 

quantities of such dust can lead to pneumoconiosis, a potentially 

fatal disease. Tr. II 26. (Workley checked the continuous miner 

and found the sp!"ay system 'I.<Tas operational. He could not think 

of any other cause for excessive coal dust in the face area 

beside inadequate ventilation. Tr. II 80.) Moreover, if mining 

continued with an insufficient velocity of air, the contraction 

of pneumoconiosis by such miners was reasonably likely. 

Tr. II 27. 

Further, Parker had told Workley he had been trying to get 

mine management to furnish better tubing for two weeks, Workley 

therefore believed it reasonably likely the condition would have 

continued and that repeated shifts would have had to mine without 

adequate ventilation. Tr. II 59-60. 

In addition to the health hazard created by the violation 

Workley feared the lack of adequate ventilation could result in a 

fire or explosion. Because excessive quantities of float coal 

dust were likely in the face area and because such dust could be 

ignited f it. was Work ley 1 s opinion that miners in the face area 

were exposed to the danger of burns and possible concussions, 

especially miners roof bolting or operating the continuous miner. 

Tr. II 27. An ignition source could have been the bits of the 

continuous miner striking stone or hard rock at the face and 

producing sparks. Tr. II 60. If such ignitions occurred, 

injuries could have ranged from minor (burned eyebrows and facial 

hair) to fatalr but under the conditions he observedp Workley 

believed the ignitions would have caused sever burns. 

Tr, !! 27-28. 

He based his opinion on the fact that the auxiliary fan and 

tubing had been left exactly as it been on the midnight shift, 

3

0n cross examination Workley admitted he did not know how the miner had 

gotten so dirty. He stated the miner might have been elsewhere on the section 

than the face area. Tr. II 43. 

1910 
and the roof bolting machine operator's face indicated the 

operator had been working in excessive quantities of float coal 

dust for most of the midnight shift, and mining was about to 

continue with no change in the ventilation system. Tr. II 29. 

Moreover, Workley was of the view that an ignition was reasonably 

likely because he had investigated such ignitions in face areas 

at other mines in the area. Id. Further, although Workley 

only found .4 percent methane at the end of the tubing, if mining 

had continued at some point it would have been reasonably likely 

for methane to have reached the minimum explosive level of 5 

percent. Tr. II 60, 73-74. 

Turning to his belief the lack of adequate air velocity was 

the result of unwarrantable failure on Consol's part, Workley 

again noted that after the violation was cited Parker stated he 

had been trying to get better tubing for two weeks. 

Tr. II 30-31, 78-79. (Workley maintained that Jimmy was present 

when Parker told him this. Tr. II 52, 78. Workley could not 

recall if Kun or Numeric were also present. Tr. 'II 52.) Further, 

the miner with the black face told Workley he had complained to 

people in mine management that the crew could not maintain 

adequate ventilation. Tr. II 31. Moreover, Workley thought that 

a person actually could feel the difference between a mean entry 

air velocity of 60 cfm and one of 41 cfm. Finally, Workley 

maintained that when mining was in process the foreman would have 

seen "dust rolling back over the roof bolters and to the 

[continuous] miner operator," and this should have alerted the 

foreman to the inadequate air velocity. Tr. II 32. 

Workley was also of the opinion that Parker was negligent in 

that he was going to begin mining and he was going to do so in a 

situation where he clearly knew or should have known that the 

lation was inadequate. Tr. II 61. 

order to abate the cited violation the foreman and 

continuous miner operator cut up brattice cloth and wrapped the 

cloth around the tubing to cover the leaks. Tr. II 33-35. 

Workley could not recall where they had obtained the cloth, and 

Workley did not see the cloth in the vicinity of the face prior 

~c citing the violation. Tr. II 33. This indicated to Workley 

the tubing would not have been wrapped before mining started 

that the tubing had not been wrapped on the midnight shift. 

Tro II 34o 

Section 75.301-4(a) provided an exception from the 60 cfm 

requirement for working places where a blowing system was the 

primary means of face ventilation or where a lower mean entry air 

velocity had been determined by the MSHA district manager to have 

been adequate. Workley stated that neither exception applied in 

this instance. Tr. II 36. 

1911 
The question of whether a check curtain had been hung in the 

crosscut immediately inby the auxiliary fan was raised on cross 

examination by Consol's counsel. Workley maintained that 

although he was not certain, he did not believe that such a 

curtain was in place. However, if it had been so hung, it would 

not have increased ventilation at the face. This was because the 

air in the crosscut where the fan was located was 26,500 cfm, 

which would have blown out the bottom of any curtain. 

Tr. II 54-55. 

CONSOL'S WITNESSES 

DANNY SERGE 

Consol inspection escort Danny Serge was Consol's initial 

witness" He was not with Workley during the inspection of 

20, 

Serge testified that he is in charge of control of 

respirable dust at the mine. Tr. II 83. According to Serge, 

when mining is in progress a '·check curtain normally is in place 

immediately inby the auxiliary fan. With the curtain in place 

all air in the crosscut where the fan is located is directed up 

the entry to the face. Tr. II 85-56. 

Serge, who testified he regularly toolt Pitot tube readings 

determine air velocity, stated that he normally took them not 

in the peewee tube but in the tube next to it. Serge maintained 

that until the reading taken by Workley he had never heard of any 

person from either MSHA or Consol taking a Pitot tube reading in 

the peewee tube. Tr. II 97. Readings taken in the peewee tube 

could result in significantly different results than those taken 

regular tubing further away from the face. A reading taken in 

~:.}:'-""' ·::.ube L:~ext t.o the peewee tube would have been higher than the 

·cube result because of the gain of air through the joint 

where the peewee tube fit into the next tube. Tr. II 89-91. 

speculated that the air reading would have been increased 

much as 50 percent if it had been taken further back from 

where Workley took it. Tr. II 93. 

believed that the air going up the entry swept the 

before being sucked into the gap between the peewee tube and 

tube and thus that a reading taken in the regular 

~ould represent the air present at the face. 

Q}.=104o 

WILLIAM KUN 

William Kun 1 safety supervisor at the Osage No. 3 mine, was 

Conso1's last witness. Kun accompanied Workley and was served 

Order No. 3717961. Kun stated that at the commencement of the 

inspection he and Workley went directly to the 7 butt section. 

1912 
(Kun was unaware at the time of any prior conversation Workley 

may have had with a miner.) They arrived on the section around 

8:40 a.m. They observed three or four miners at the tailpiece 

who were installing rollers on the tailpiece. Coal was not being 

mined and it could not be mined until the tailpiece was 

completed. Kun had "no knowledge" of how long it would have been 

before work at the tail piece was finished. Tr. II 107-108. 

The inspection party proceeded up the entry toward the face 

area. Along the way Kun recalled Workley looking "at a couple of 

tubes." Tr. II 125. At the face area, the continuous miner was 

located adjacent to the peewee tube. Tr. II 109. Kun was not 

certain whether or not Jimmy was present at the continuous miner. 

Tr. II 122. 

With regard to the condition of the tubing, Kun agreed that 

there were some holes in it. Tr. II 112. Kun also believed that 

Serge was correct to believe that taking a reading in the next 

tube back from the peewee tube would have given a· true 

representation of the air passing the face. He stated, "[Y)ou•re 

finally getting all the air that swept the face because the air 

that goes through the end of the slider tube, which is closest to 

the face, plus what goes in at that joint is now giving you a 

true representation of what is being passed by the face." 

Tr. II 112-113. 

After the face area had been inspected the inspection party 

moved down the entry and met Parker at the intersection of the 

crosscu.t and the entry. Prior to that, Parker had been working 

with the miners who were moving the belt and he had completed 

checking for methane at three idle faces on the section. Tr. II 

115. It was at this point that Parker and Workley had a 

conversation 8 but Kun maintained that he did not hear Parker 

mention anything about the tubing to Workley. Tr. II 110, 114. 9 

However~ Kun did hear Workley ask Parker if Parker was ready to 

start mining and, according to Kun 1 Parker replied, "I'm about 

ready.'~ Tr. II 116. Kun believed that Parker could not have 

meant mining was going to start immediately because only the 

continuous miner operator was at the face and various checks 

would have had to be made by other miners before mining could 

commence. Tr. II 117. In addition, the roof bolter operator and 

the loader operator were at the tailpiece and they would have had 

to be in the face area for mining to begin. 

Tr. II 119. 

9 In fact, Kun was standing several feet away from the two men. 

Tr. II 116. In addition, as previously mentioned, the auxiliary fan was 

running and Kun believed the inspection party was wearing ear protection. 

Tr. II 127. 

1913 
THE VIOLATION 

Section 75.301-4(a) stated in pertinent part: 

[E]xcept in working places using a 

blowing system as a primary means of face 

ventilation or in working places where a 

lower mean entry air velocity has been 

determined to be adequate to render harmless 

and carry away methane and to reduce the 

level of respirable dust to the lowest 

attainable level by the . • • [MSHA] District 

Manager, the minimum mean entry air velocity 

shall be 60 feet a minute in (1} all working 

places where coal is being cut, mined or 

loaded from the working face with mechanical 

mining equipment . . . [to) 

Counsel for the Secretary argues that Workley's air 

measurement, by which he det~rmined the air quantity (volume), 

was validly taken and produced a true result. Consequently, 

Workley's calculation of the mean entry air velocity was likewise 

accurate. Counsel terms as "irrelevant" the fact that no mining 

was taking place because Parker told Workley he was going to 

start. Moreover, Consol was mining on the midnight shift and by 

inference the violation occurred on that shift as well. 

Tr. II 150-152. 

Counsel for Consol notes the regulation applies where coal 

is being "cut, mined or loaded" and argues that coal was not 

being cut, mined or loaded when the alleged violation occurred. 

Tr. II 157-158. In the alternative, Counsel argues that if the 

standard is applicable despite the lack of actual mining, 

Workley 0 s air reading cannot establish the violation because by 

taking the reading as he did 1 Workley missed a 90 significant 

quantity of air.u Tr. II 158. 

I conclude that on the morning of February 20v 1993, the 

violation existed as charged. 11 Consol' s argument that the 

standard should be interpreted to mean what it saids ~- that is, 

10Like section 75.323, section 75.301-4(a) was revised effective 

August 15, 1992. 57 F.R. 20914 (May 15, 1992). Its requirements now are 

included in section 75.326. 

11Because I conclude a violation of section 75.301-4(a) existed when cited 

by Workley, I need not decide whether such a violation also existed on the 

midnight shift. I note, however, that although Workley stated he believed a 

violation of section 75.301-4(a) had taken place on the midnight shift, it is 

clear that he chose not to cite Consol for such a violation and the 

Secretary's attempt to belatedly bring that "violation" within the parameters 

of Order No. 3717961 is dubious at best. 

1914 
it should be applied in all working places where coal is being 

cut mined or loaded -- usually would carry the day, for 

regulatory interpretation would normally stop where the wording 

is clear. However, a reading of the entire standard convinces me 

it presented one of the rare instances where seemingly 

unambiguous language must be subjected to further interpretation. 

I reach this conclusion because of the directive of section 

75.301-4(c) that "[t]he determination of mean entry air velocity 

may be made either immediately before mining equipment enters a 

working place or during its presence in such working place." 

Obviously, if the determination upon which a violation of the 

standard hinges could have been made "immediately before mining 

equipment enters a working place,~ then an operator could have 

been in violation of the standard even before coal actually was 

cutr mined or loaded. In my view, the standard thus contemplated 

the presence of the required mean entry air velocity beginning at 

a point "immediately prior" to actual cutting, mining or loading. 

Moreover, it is perhaps obvious, but nonetheless worth 

observing, that when regulatory interpretation is undertaken the 

law prefers reasonable consequences. Given the purpose of the 

standard to have protected miners from the hazards of methane and 

respirable dust, it was reasonable and furthered that purpose to 

have allowed an inspector to take preemptive action when the 

catalyst for such hazards -- the actual mining of coal -- was 

immediately at hand. In sum, I agree with counsel for the 

Secretary that the inspector "should not [have] be[en] required 

to permit [an unsafe condition] ... to go on .•• when he had 

been given every . . • inaication from the operator • . . that 

such activity [was] imminent." Tr. 152. 

Here, I fully credit Workley's testimony that Parker stated 

coal was ready to be mined. Kun testified that Parker said he 

':Yas "about ready" u but Kun was not standing with Workley and 

q the noise from the auxiliary fan, Kun agreed he, Kun, might 

nave been wearing ear muffs. on the other hand, Workley, was 

certain he and Parker could hear one another and certain about 

what had been said. More telling yet, is the fact that Consol 

did not call Parker as a witness. This speaks almost as loudly 

e;:s ~\lorkley and Parker must have been. 

Workley knew the continuous miner was in the face area. 

been told by the foreman that the foreman was ready to 

mine, I believe Workley was justified in taking Parker at his 

word. In my view it would be unreasonable to hold that Workley 

should have questioned Parker further about the "readiness" of 

~he roof bolters or loader operator. An inspector may assume a 

foreman knows whereof he speaks. 

Further, it was reasonable for Workley to conclude that 

mining would have been conducted under the circumstances he had 

observed on the section. There was, as Workley testified, no 

1915 
visual indicated that efforts had been made to patch or repair 

the tubing nor any evidence that such repair work was planned. 

I realize that Workley took the air reading upon which the 

violation is based prior to his discussion with Parker. 

Nonetheless, nothing had occurred between the taking of the 

reading and the discussion to change the result Workley obtained, 

and I therefore hold that Workley properly understood the mining 

coal was immediately at hand in a working place with a mean 

entry air velocity of less than 60 cfm. 

This conclusion is also based upon the fact that I reject 

Consol~s challenge to the manner in which Workley measured the 

mean entry air velocity. In particular, I am not persuaded by 

Consol's contention that the air entering the gap between the 

peewee tube and the main tube (the angle tube) would of necessity 

have ventilated t~e face area and thus that Workley failed to 

measure a 8 significant" amount of air. Rather, I credit the 

essence of Workley 1 s testimony in this regard -- that much of the 

entering the gap would have been sucked directly into it 

rather than going to the face .. first. This represents an 

elementary principle of physics and thus, while it is true that 

had he taken a reading outby the gap Workley would probably have 

obtained a higher reading, it would not have been a reading 

relevant to determine the quantity of air necessary for 

ca of the mean entry air velocity. 12 I therefore 

conclude the Secretary has established a violation on 

sect 75.301-4(a). 

S&S AND GRAVITY 

Counsel for the Secretary argues that the S&S nature of the 

fully established by Workley's testimony. He states 

normal mining operations had continued, excessive 

of methane and respirable coal dust could have been 

t.he face area" He further argues that Workley 

vely tesccified the cutter heads on the continuous miner 

an ignition source and that if mining had continued the 

deterioration of the ventilation would have been reasonably 

to result an ignitiono Further, according to counsel, 

~· :i:;.v::ther find on the face of this record that Workley correctly 

c',~t.erz,>ined <.:he mean entry air velocity based on one measurement of the 

of air. Although Consol challenged the point at which Workley made 

measurement, it did not offered any testimony to refute Workley's 

nssertian that he had calculated the mean entry air velocity properly based 

c;.pon t.he resuh: of his single measurement. Nor did Consol point to any 

or MSHA guidelines that prohibited such a practice. Nevertheless, 

i'c !!leems incongruous indeed to find the "mean" on the basis of one 

,,iaasu:rement, and the issue might well have been decided differently had other 

ovidence been offered. 

1916 
Workley credibly testified pneumoconiosis was reasonably likely 

given the coal dust. Tr. II 153-154. 

Counsel for Consol argues that at the time Workley inspected 

the section no respirable coal dust was present, methane was low 

and there was no ignition source. Further, if mining had 

continued there was no reasonable likelihood of injury because 

adequate air was moving up the entry to remove the methane and 

coal dust, and the fact that Workley saw one miner with a dirty 

face was no indication pneumoconiosis was reasonably likely. 

Tr. II 159-161. 

I conclude the testimony supports Workley's S&S finding. A 

violation of the cited standard existed. In the context of 

continued normal mining operations the violation posed the safety 

hazard of an explosion and fire due to methane or coal dust and 

the health hazard of pneumoconiosis due to excessive 

concentrations of respirable dust. These hazards could have 

resulted in serious, even fatal, consequences to miners. 

Moreoverf I conclude there was a reasonable likelihood the 

hazards would have resulted in injury or illness. There is no 

indication Consol was going to repair the tubing, thus there is 

no indication the inadequate ventilation would have improved. 

Methane is liberated at the mine and it is common knowledge that 

methane liberation increases during mining. Without the required 

mean entry air velocity liberated methane was less likely to have 

been swept from the face area. Further, Consol does not dispute 

Workley's testimony that the bits of the continuous miner could 

cause sparks, thus providing an ignition source for accumulated 

methane. Given these factors and in the context of ongoing 

mining operations an ignition was reasonably likely. 

In addition, I conclude the contraction of pneumoconiosis in 

the context of normal continued mining operations was reasonably 

likely given the fact that the continuous miner creates 

respirable dust when mining is taking place and the violation 

made adequate removal of that dust unlikely. While I agree with 

Consol that the miner with the dirty face does not prove 

reasonable likelihood (afterall, Workley admitted he did not know 

for certain where the miner had been working or what he had been 

doing on the midnight shift) , I do not believe a physical indicia 

of the presence of coal dust is necessary to uphold an S&S 

finding. Pneumoconiosis is a cumulative disease. Illness 

results from repeated exposure. It is not possible to state that 

any one exposure is more "likely" to bring on the disease than 

any other and I therefore believe all to be equally hazardous. 

Thus, in my view, a condition such as this violation, that is 

reasonably likely to lead to exposure to excessive respirable 

coal dust is reasonably likely to result in an illness. 

1917 
As I have noted, the violation subjected miners in the face 

area to serious or even fatal injury and illness. Further, as 

mining continued it was likely miners would have been injured or 

been made ill by the conditions created by the violation. 

Therefore, I also conclude the violation was serious. 

UNWARRANTABLE FAILURE AND NEGLIGENCE 

The issue of unwarrantable failure can be decided 

by answering the question of whether the violation of 

section 75.301-4(a) was due to Consol's aggravated conduct 

constituting more than ordinary negligence? The Secretary's 

counsel emphasizes Workley's testimony that the problem with the 

tubing was ongoing, that Parker told him he had been unable to 

secure replacement tubing and that there was nothing noticeably 

present on the section with which to make on-the-site repairs of 

the tubing (e.g., materials to wrap the tubing). Further, 

counsel points to the miner with the black face and asserts the 

inadequate ventilation had to be apparent to management. 

Tr. II 154-155. 

Counsel for Consol counters that although the tubing was in 

"rather dilapidated condition" this does not establish 

unwarrantable failure to comply with the cited ventilation 

standard. Tr. II 162. Section 75.301-4(a) requires a specified 

amount of ventilation, not maintenance of the ventilation system. 

Tr. II 160-161. 

I find for the Secretary. The condition of the tubing was 

visually obvious. As even consol's counsel admits, the tubing 

was badly damaged. The damage was so extensive I conclude it 

must have occurred over several shifts, and this conclusion is 

supported by Workley~s entirely credible account of the 

conversation in which Parker told Workley he had been trying for 

two weeks to get mine management to provide better tubing. (As I 

have previously noted, Consol did not call Parker as a witness.) 

The unexplained, long term failure of mine management to have 

provided its foreman with the means to comply with something so 

elementary to safety as the cited ventilation standard was indeed 

inexcusable a 

Nor does the inexcusable fault rest solely with nameless 

management officials. Parker also must share in the blame. He 

knew the tubing was damaged and he must have known the 

consequences of that damage upon the ability of the tubing to 

maintain adequate ventilation at the face. Yet, on February 20, 

he was ready to begin mining without making repairs to the tubing -- repairs that would have permitted compliance with the 

standard, as the abatement of the order shows. While he may not 

have been able to obtain better tubing, it is not too much to 

expect he could have obtained brattice cloth or other materials 

1918 
to wrap the tubing, and I conclude .that his failure to do so was 

inexcusable. 

Finally, Consol's failure to adequately maintain the mean 

entry air velocity of February 20 was the result of management's 

and the foreman's failure to meet the standard of care required 

of them under the circumstances and their failure represents a 

high degree of negligence. 

OTHER CIVIL PENALTY CRITERIA 

Gov. Exh. 1 is a computer print-out listing assessed and 

paid violations at the Osage No. 3 Mine in the twenty four months 

preceding the first violation alleged in this case. The printout lists a total of 1,180 paid violations. Of these, there 

was one violation of section 75.323 and no violations of 

section 75.301-4(a). Counsel for the Secretary •rgues that this 

is an "average history" of previous violations. I find the 

history is large and while there is no evidence of a pattern of 

noncompliance with the standards at issue, the total history 

warrants commensurately large'·civil penalties. 

In addition, 

a large company. 

assessed will not 

business. 

I find the mine is large in size and Consol is 

The parties have agreed that any penalties 

affect Consol's ability to continue in 

Finally, I find that once the violations were cited, Consol 

exhibited good faith in rapidly abating them. 

CIVIL PENALTY ASSESSMENTS 

The Secretary has proposed a civil penalty of $900 for the 

violation of section 75.323 and a civil penalty of $1300 for the 

violation of section 75.301-4(a). With regard to the violation 

of section 75.323u given its S&S nature, the unwarrantable 

failure of Consol in allowing it to exist, the mine's large 

history of previous violations and Consol's status as a large 

operator, I find an increase in the proposed amount to be 

appropriatev and I assess a civil penalty of $1200. 

With regard to the violation of section 75.301-4(a), 

considering the same factors, and noting especially what I 

believe to have been the particularly egregious lack of care of 

Consol in allowing the violation to exist, I find an increase in 

the proposed amount to $1800 to be appropriate. 

1919 
ORDER 

Section 104(d) (2) Order No. 3718491 is AFFIRMED and Consol 

IS ORDERED to pay a civil penalty in the amount of twelve hundred 

dollars ($1200) for the violation of section 75.323 alleged 

therein. 

Section 104(d) (2) ORDER No. 3717961 is AFFIRMED and Consol 

is ORDERED to pay a civil penalty in the amount of eighteen 

hundred dollars ($1800) for the violation of section 75.301~4(a) 

alleged therein. 

Payment is to be made to MSHA within thirty (30) days of the 

date of this decision. 

This proceeding is DISMISSED. 

Distribution: 

David F. Barbour 

Administrative Law Judge 

Charles M. Jackson, Esq., Office of the Soli9itor, 

u.s. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 

22203 (Certified Mail) 

Daniel E. Rogers, Esq., consol, Incorporated, Consol Plaza, 1800 

Washington Road 0 Pittsburgh, PA 15241-1421 (Certified Mail) 

/epy 

1920 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1Oth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 -. 

-'II 

SECRETARY OF LABOR DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , on behalf of 

JERRY LEE DOTSON, 

v. 

LAD MINING INC., LARRY FLYNN, 

AND RONALD CALHOUN, 

Respondent 

Docket No. SE 92-181-D 

Mine No. 50 

FINAL DECISION 

Appearances: 

APPROVING SETTLEMENT 

Gretchen M. Lucken, Esq., Office of the Solicitor, 

u.s. Department of Labor, Arlington, Virginia, 

for Petitioner; 

Michael W. Boehm, Esq., and Thomas s. Kale, Esq., 

Spears, Moore, Rebman and Williams, Chattanooga, 

Tennessee, for Respondent. 

Before: Judge Barbour 

STATEMENT OF THE CASE 

This case is before me upon the complaint of the Secretary 

of Labor ("Secretary") on behalf of Jerry Lee Dotson, pursuant 

to Section 105(c) (2) of the Federal Mine Safety and Health Act 

of 1977, 30 u.s.c. § 815(c) (2) ("Act"). The Respondents are Lad 

Mining, Incorporated ("Lad"), Larry Flynn and Ronald Calhoun. 

The essence of the Secretary's complaint is as follows: (1) that 

Dotson was working at Mine No. 50; (2) that the operator for whom 

Dotson was working went out of business and closed the mine; (3) 

that shortly, thereafter 1 the mine reopened under a new operator, 

Lad, and that Larry Flynn, the owner of Lad, and Ronald Calhoun, 

the president of the company that leased coal rights to Lad, 

refused to hire Dotson to continue working at the mine because of 

Dotson 1 s protected activity and in violation of Section 105(c) (1) 

of the Act. 

A hearing on the merits of the complaint was held in 

Chattanooga, Tennessee. Following the submission of post-hearing 

briefs by counsels for the Secretary and the Respondents, I 

issued a Partial Decision Pending Final Order in which I found 

the Secretary had proved that Dotson engaged in protected 

activity, that Respondent Calhoun knew of his activities and was 

motivated by them to take adverse action against Dotson and that 

1921 
Respondent's Flynn and Calhoun likewise were motivated by the 

protected activity to take adverse action against Dotson. I 

further found that the Respondent's failed to rebut the 

Secretary's case or to establish an affirmative defense to his 

allegations. Therefore, I concluded the Respondent's had 

violated Section 105(c) (1) of the Act. Secretary of Labor on 

behalf of Dotson v. Lad Mining Incorporated, 15 FMSHRC 634, 659 

(April 1993). 

Having found the Respondent's in violation of the Act, I 

ordered the parties to confer with respect to the remedies due 

Dotson and to advise me regarding the results of their 

discussions. I stated that if the parties were not able to agree 

regarding the remedial aspects of the matter, a further hearing 

would be convened. 15 FMSHRC at 660. 

DISCUSSION 

Subsequently, the parties engaged in extensive discussions 

and negotiation; and the parties efforts have resulted in a 

settlement agreement (the "Agreement") between the Complainant 

and the Respondents. Counsel for the Respondents has submitted a 

copy of the Agreement for my review. The Agreement is signed by 

counsel for the Respondents and counsel for the Secretary. The 

Complainant also has signed it. The Agreement sets forth the 

terms of the settlement with respect to the remedial aspects of 

this matter. 

In addition Lu lh~ AgLeeruent the parties have filed a Joint 

Motion to Dismiss this matter on the basis that the Agreement 

resolves all outstanding issues to the parties' mutual 

satisfaction. 

CONCLUSION 

I have reviewed the Agreement and considered the motion. I 

conclude and find the settlement disposition is reasonable and in 

the public interest. Accordingly, the settlement is APPROVED. 

The parties' joint motion to dismiss with full prejudice is 

GRANTED. 

ORDER 

The parties are ORDERED to comply with all provisions of the 

Agreement. In view of the settlement disposition of this case, 

this matter is DISMISSED. 

J)vt/,, r/ -{ 6 V/7 6 o '--' /'(__ 

David F. Barbour 

Administrative Law Judge 

1922 
Distribution: 

Gretchen M. Lucken, Esq., Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, 4th Floor, Atlington, 

VA 22203 (Certified Mail) 

Michael W. Boehm, Esq., Thomas s. Kale, Esq., Spears, Moore, 

Rebman & Williams, 801 Pine Street,·sth Floor, Blue Cross 

Building, P.O. Box 1749, Chattanooga, TN 37401-11749 

(Certified Mail) 

jepy 

1923 
PBDBRAL JD:IIB SAFETY AND BBAL'l'B RBVJ:BW COJIXXSSIOB 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

S£P 1 71993 

INTERNATIONAL UNION, 

UNITED MINE WORKERS OF 

AMERICA, LOCAL 5922, 

Complainants 

v. 

BEAR RUN COAL COiviPANY, AND 

W. P. COAL COMPANY, 

Respondents 

COMPENSATION PROCEEDING 

Docket No. WEVA 93-358-C 

No. 21 Mine 

ORDER OF DISMISSAL 

Before: Judge Hodgdon 

This case is before me on a complaint for compensation under 

Section 111 of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 821. The parties have filed a motion to approve 

withdrawal of the complaint and to dismiss the case. The motion 

states that the Complainants have been paid by respondent the 

compensation claimed and that the issue in this case is, 

therefore, moot. 

Accordinglyu the joint motion to withdraw the complaint is 

GRANTED and the case is DISMISSED with prejudice. 

Distribution: 

'!~~ Administrat~ve Law Judge 

(703) 756-4570 

Mary Lu Jordan, Esq., United Mine Workers of America, 900 15th 

Street, N.W., Washington, DC 20005 {Certified Mail) 

E. Forrest Jones, Jr., Esq., Albertson and Jones, Number 12 

Kanawha Boulevard, West, P.O. Box 1989, Charleston, WV 25327 

(Certified Mail) 

Mr. Vernon Cornette, w. P. coal Company, P.O. Box 570, omar, WV 

25638 (Certified Mail) 

jefw 

1924 
FEDERAL KillE SAFETY ABD HEALTH REVIEW COIIJUSSIOH 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

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

SEP 2 01993 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. CENT 92-128-M 

A.C. No. 14-00159-05528 

v. Inland Quarries 

AMERICOLD CORPORATION, 

Respondent 

Appearances: 

Before: 

DECISION 

susan J. Eckert, Esq., Office of the Solicitor, 

u.s. Department of Labor, Denver, Colorado, 

for Petitioner; 

Bohn A. Frazer, Quarry Manager, Kansas City, 

Kansas, 

for Respondent. 

Judge Morris 

The Secretary of Laboru on behalf of the Mine Safety and 

Health Administration (MSHA), charges Americold Corporation 

("Americold") with violating two safety regulations promulgated 

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

Section 801, et seq. (the "Act")o 

A hearing on the merits was held in Kansas city8 Missouri, 

on May 1lq 1993o The parties waived post-trial briefs and submitted the case on oral argument. 

STIPULATION 

The parties stipulated as follows: 

1. Americold Corporation is engaged in m1n1ng and selling 

of limestone in the United States, and its mining operations affect interstate commerce. 

1925 
2. Americold Corporation is the owner and operator of the 

Inland Quarries, MSHA I.D. No. 14-00159. 

3. Americold Corporation is subject to the jurisdiction of 

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

801 et seg. ("the Act"). 

4. The Administrative Law Judge has jurisdiction in this 

matter. 

5. ·The subject citations were properly served by a duly 

authorized representative of the Secretary upon an agent of 

respondent on the dates and places stated therein, and may be 

admitted into evidence for the purpose of establishing their 

issuance, and not for the truthfulness or relevancy of any 

statements asserted therein. 

6. The exhibits to be offered by respondent and the 

Secretary are stipulated to be authentic but no stipulation is 

made as to their relevance or the truth of the matters asserted 

therein. 

7. The proposed penalties will not affect respondent's 

ability to continue in business. 

8. The operator demonstrated good faith in abating the 

violations. 

9. Americold Corporation is a small mine operator with 

45,327 annual hours worked in 1990. 

10. The certified copy of the MSHA Assessed Violations History accurately reflects the history of this mine for the two 

years prior to the date of the citations. 

citation No. 3907226 

The above citation describes .the following violative 

condition~ 

Ventilation control measures were not provided for the underground shop area to confine or prevent the spread of toxic 

gases originating from a shop fire. Smoke from a shop fire would 

most likely travel directly to the active mine face areas. 

The shop was located approximately 2,500 feet in the main 

mine portal entry. The present primary and secondary escape 

routes, as indicated on the escape and evacuation plan, were 

located just north of the shop area. 

1926 
The citation further alleges that the described condition 

violates 30 C.F.R. § 57.4761. The cited regulation provides as 

follows: 

Section 57.4761 Underground shops. 

To confine or prevent the spread of toxic gases from a fire 

originating in an underground shop where maintenance work is 

routinely done on mobile equ.ipment, one of the following measures 

shall be taken: use of control doors or bulkheads, routing of the 

mine shop air directly to an exhaust system, reversal of mechanical ventilation, or use of an automatic fire suppression system 

in conjunction with an alternate escape route. The alternative 

used shall at all times provide at least the same degree of safety 

as control doors or bulkheads. 

(a) Control doors or bulkheads 

If used as an alternative, control doors or bulkheads 

shall meet the following requirements: 

(1) Each control door or bulkhead shall be constructed to 

serve as a barrier to fi·re, the effects of fire, and air leakage 

at each opening to the shop. 

(2) Each control door shall be--

(i) Constructed so that, once closed, it 

will not reopen as a result of a differential in air 

pressure; 

(ii) Constructed so that it can be opened 

from either side by one person or can be provided with 

a personnel door that can be opened from either side; 

(iii) Clear of obstructions; and 

(iv) Provided with a means of remote or 

automatic closure unless a person specifically designated to close the door in the event of a fire can 

reach the door within three minutes. 

(3) If located 20 feet or more from exposed timber or other 

combustible material, the control doors or bulkheads shall provide 

protection at least equivalent to a door constructed of no less 

than one-quarter inch of plate steel with channel or angle-iron 

reinforcement to minimize warpage. The framework assembly of the 

door and the surrounding bulkhead, if any, shall be at least 

equivalent to the door in fire and air-leakage resistance, and in 

physical strength. 

(4) If located less than 30 feet from exposed timber or 

other combustibles, the control door or bulkhead shall provide 

protection at least equivalent to a door constructed of two layers 

of wood, each a minimum of three-quarters of an inch in thickness. 

The wood-grain of one layer shall be of the other layer. The wood 

construction shall be covered on all sides and edges with no less 

than 24 gauge sheet steel. The framework assembly of the door and 

the surrounding bulkhead, if any, shall be at least equivalent to 

1927 
than 24 gauge sheet steel. The framework assembly of 

the door and the surrounding bulkhead, if any, shall 

be at least equivalent to the door in fire and airleakage resistance, and in physical strength. Rolldown steel doors with a fire-resistance rating of 1.5 

hours or greater, but without an insulation core, are 

acceptable provided that an automatic sprinkler or 

deluge system is installed that provides even coverage 

of the door on both sides. 

(b) Routing air to exhaust system. If used as an alternative, routing the mine shop exhaust air directly to an exhaust 

system shall be done so that no person would be exposed to toxic 

gases in the event of a fire. 

(c) Mechanical ventilation reversal. 

If used as an alternative, reversal of mechanical ventilation shall--

(l) Be accomplished by a main fan. If the main fan 

is located underground: 

(i) The cab~~ or conductors supplying power to the 

fan shall be routed through areas free of fire hazards; or 

(ii) The main fan shall be equipped with a 

second, independent power cable or set of conductors 

from the surface. The power cable or conductors shall 

be located so that an underground fire disrupting 

power in one cable or set of conductors will not 

affect the other; or 

(iii) A second fan capable of accomplishing 

ventilation reversal shall be available for use in the event 

of failure of the main fan; 

(2) Provide rapid air reversal that allows persons 

underground time to exit in fresh air by the second escapeway or 

find a place of refuge; and 

(3) Be done according to predetermined conditions and 

procedures. 

(d) Automatic fire suppression system and escape route. If 

used as an alternative, the automatic fire suppression system and 

alternate escape route shall meet the following requirements: 

(1) The suppression system shall be--

{i) Located in the shop area; 

(ii) The appropriate size and type for the particular 

fire hazards involved; 

and; 

(iii) Inspected at weekly intervals and properly 

maintained. 

(2) The escape route shall bypass the shop area so that 

the route will not be affected by a fire in the shop area. 

1928 
EVIDENCE 

The evidence in connection with Citation No. 3907226 is 

essentially uncontroverted. 

RICHARD LAUFENBERG is a federal mine inspector as well as a 

mining engineer. 

He is familiar with Inland Quarries Mine, which is an underground limestone mine. It is mined by room and pillar method. 

On April 2, 1991, Mr. Laufenberg inspected the Inland Quarries to assist Jerry Fuller of MSHA's Denver Technical Support. 

A ventilation survey was being conducted because in February 1991 

a trash fire occurred in the vicinity of the underground shop and 

MSHA's district manager was concerned. Mr. Gomez, then district 

manager, instructed Technical Support to do the ventilation survey. This was a Code 36, or "miscellaneous inspection." 

Messrs. Fuller and Laufenberg met with Bohn Frazer and they 

went underground. 

Exhibit P-4 is an underground map that shows the main air 

flow of the ventilation system. 

The map is marked in green to indicate the main haulway 

system in the escapeways. Red arrows show the evacuation route 

and pink arrows show the primary flow of fresh air. 

The shop itself is marked with an"A" in the L-shaped darkened area. Limestone is mined in the places marked "B-1" and 

ooB-2 no. 

The storage area, which is under OSHA 1 s jurisdiction, has 

been marked with a "C". 

The mine portal is marked with a "D". The mine itself and 

the storage area are not completely separated. 

Mr. Laufenberg issued citation No. 3907226 because this 

underground facility with an underground shop. Routine and 

typical shop work was being done and this included work with 

toolsu torches, grinders, and compressors. They were also 

working on equipment in the shop. 

The shop did not control the spread of toxic gases. The 

area is well lit and about seven to eight times the size of the 

courtroom. (The courtroom is approximately 120 to 150 feet by 80 

feet • Tr. 3 7) . 

1929 
The shop is enclosed by pillars, with one opening on the 

east side and one large opening on the south side. The two 

openings are 15 to 20 foot wide. 

A fire could occur in the shop from the use of torches, as 

well as grinding and electrical equipment. There was also grease 

and oil stored in the area. MSHA's regulation required adequate 

control measures to prevent the spread of toxic gases. The toxic 

gas most likely to occur was carbon monoxide. In the event the 

oils and greases caught fire, they would produce carbon monoxide 

which would flow through the mine. 

The shop, which was 5,000 to 7,000 feet from the face area, 

was also adjacent to the primary and secondary escape routes. 

Mr. Laufenberg did not see any control measures. Specifically, there were no control doors or bulkheads nor had the company tried to route the air. In addition, there was no reversal 

mechanical ventilation possible nor was there any automatic fire 

suppression system. 

Sixteen workers were affected by this condition. It was the 

inspector's opinion that the violation was significant and substantial. If a fire occurred, the miners would be exposed to 

carbon monoxide gas and the existing ventilation would carry the 

gas into the face area. Carbon monoxide can overcome miners. It 

would be easy for someone to be injured. 

Mr. Laufenberg considered the company's negligence to be 

moderate, as MSHA has regulated underground shops and the company 

should have recognized the violative condition. The company 

abated the violation by installing fire control doors. 

Mr. Laufenberg identified the operator's ventilationv escape 

and evacuation plan submitted to MSHA by date of December 2u 

1985. 

JERRY LEE FULLER serves as a senior m~n~ng engineer for MSHA 

with Denver Technical Support. He is a mining engineer with 

special training in ventilation. Mr. Fuller provides support for 

the Metal and Non-Metal Division in MSHA. 

After a trash fire occurred at the quarry, he was asked to 

do a ventilation inspection. The inspection took place April 2 

and April 3 0 1991. 

Attached 

overlay map. 

the warehouse 

of P-4. 

to Mr. Fuller's report (Exhibit P-5) is a clear 

Exhibit P-5 differs from Exhibit P-4 as it shows 

area more clearly. The map is basically an overlay 

1930 
The inspection group traveled the ventilation circuit and 

measured the air quantity. They took measurements throughout the 

underground operation. The air quantity was calculated per minute and then converted into the total air volume. His partner in 

the inspection ran the anometer. All of the measurements that 

were taken are noted on Exhibit P-5. 

In this mine most of the air comes in the portal and up past 

the shop. The air then goes through the openings in the wall and 

is exhausted out of the mine as shown by the pink arrows on 

Exhibit P-4. 

As a result of his survey, Mr. Fuller concluded the mine was 

well ventilated. 

Mr. Fuller further agrees with Mr. Laufenberg that the violation was S&S. There is an S&S problem if the smoke was not 

controlled. The basic problem would be toxic gas (carbon monoxide) which would go directly to the face. 

Mr. Fuller did not know how long it would take the gas to 

get to the face. It was entirely likely that the carbon monoxide 

could get there before any smoke. In his opinion, it was not 

likely that a miner at the face could see any fire in the shop. 

Inland Quarries' Evidence 

EARL HUFFMAN is a mechanic at Inland Quarries and he has 

performed various jobs for the company. 

Mro Huffman indicated that MSHA has never made an issue 

about a barrier between the pillars or the fire doors for the 

shop" Mr. Bohn FrazerQ the quarry manager, said MSHA wanted to 

check the warehouse. In addition, he told the employees that 

MSHA would not issue a citation. Nevertheless, the company 

received a citation. 

The company has always had good ventilation. 

WALT KNIGHT is the general manager for the Americold Kansas 

ty operation. The warehouse system was developed in 1988. In 

l989 the Occupational Safety and Health Administration (OSHA) 

changed the carbon monoxide exposure threshold limit value from 

50 PPM to 35 PPM. The company knew they could not meet the new 

requirements and they secured the services of a ventilation engineer who made recommendations. Eventually fans were installed at 

all of the places on Exhibit P-4. The ventilation changes cost 

approximately $300,000.00. 

1931 
During Mr. Knight's tenure, MSHA did not inspect the warehouse nor the ventilation system. Mr. Knight permitted entry by 

MSHA into the warehouse area to inspect the fans. Before the 

inspection Mr. Laufenberg said MSHA would not issue any citations 

if the company granted MSHA permission to enter the warehouse 

area. 

It is not possible to physically inspect the fans shown as 

No. 2, 3, and 4 in Exhibit P-5 because the area is locked and 

quarry personnel could not enter the area. MSHA previously had 

never requested permission to enter. 

The trash fire that resulted in the inspection occurred on a 

Sunday morning. However, there was no one working and there was 

no damage or injuries. The fire was extinguished about noon on 

Sunday. MSHA had never expressed concern about lack of fire 

doors. 

BORN FRAZER has been the quarry manager since December 

1987. 

He received a call from MSHA's representative Laufenberg who 

indicated MSHA desired to inspect the ventilation in the mine. 

He further stated that, if they would grant permission, no citations would be issued. Permission was then granted. When 

Mr. Laufenberg came back to the office with the citation, Mr. 

Frazer was aghast. 

The company takes particular pride in safety and they try 

and cooperate with the authorities. 

When they were told to install a one and a half hour fire 

doorr they obtained a three hour rated door and MSHA said they 

had to apply for a variance~ It took six months to install the 

door" 

These things are a mystery to the company and Mr. Frazer 

felt the company was not being treated fairly. 

Mro Frazer personally heard Mr. Laufenberg state that, if 

the company allowed the inspections, they would not write any 

citations in the mine area. This was agreed during a telephone 

conversation. 

DISCUSSION and FURTHER FINDINGS 

The uncontroverted evidence establishes a violation of 30 

C.F.R. S 57.4761. The underground shop was not equipped with any 

of the control measures deemed necessary by MSHA's regulation to 

confine or prevent the spread of toxic gases from a fire originating in the underground shop. 

1932 
SIGNIFICANT AND SUBSTANTIAL 

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

on the particular facts surrounding the violation, there exists a 

reasonable likelihood that the hazard contributed to will result 

in an injury or illness of a reasonably serious nature." Cement 

Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). 

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

In order to establish that a violation of a mandatory standard is significant and substantial under 

National Gypsum the Secretary must prove: {l) 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 ~easonably serious nature. 

also Austin Power Co. v. Secretary, 861 F.2d 99, 103-104 (5th 

cir. 1988), aff'q 9 FMSHRC 2015, 2021 (December 1987) (approving 

Mathies criteria). The question of whether any specific violation is S&S must be based on the particular facts surrounding the 

violation. Texasgulf, Inc., 10 FMSHRC 498, 500-501 (April 1988); 

Youghioqheny and Ohio Coal Co., 9 FMSHRC 2007, 20011-1012 

(December 1987). 

Following the Mathies formulation, I conclude there was an 

underlying violation of a 30 C.F.R. § 57.4761. A clear measure 

of danger to safety was contributed to by the violation. Furtheru I credit the testimony of Inspectors Laufenberg and mining 

engineer Fuller that the violation was S&S. A reasonable likelihood that the hazard contributed to will result in an injury was 

established by MSHA's expert witnesses. (Tr. 58, 112-114}. Specifically, Mr. Laufenberg testified the violation was S&S because 

the electrical circuits, oil and greases present made a fire reasonably likely. (Tr. 39-47). The lack of controls would carry 

carbon monoxide to the active face. Such toxic gases are likely 

to cause a fatality. {Tr. 46). 

Mr. Fuller agreed the violation was S&S. He stated 11 4761" 

[30 C.F.R. S 57.4761] presupposes that a fire would originate in 

the shop and at that point, addressing the standard correctly, 

means that you have to be able to control that smoke. So the 

presumption of a fire already existing in the shop, to me, indicates that it's a significant and substantial problem if you are 

not controlling it." Compare Bethenergy Mines, Inc., 14 FMSHRC 

1232, 1243. 

1933 
Citation No. 3907227 

The above citation describes the following violative 

condition: 

The underground limestone mine did not have two 

or more totally separate escapeways to the surface. 

The primary escape route was designated in the escape 

and evacuation plan as the main haulage road from the 

mine portal to the active mine faces. The secondary 

escape route, indicated as the paved underground roadway, was located in the warehouse area and did not 

extend to the face. From a ventilation stand point, 

the escape routes were not separated. There were no 

stoppings constructed between the two escape routes 

for ventilation control. 

It was further alleged the described condition violated 30 

C.F.R. § 57.11050(a). The cited regulation provides as follows: 

Section 57.11050 Escapeways and refuges. 

(a) 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. 

Evidence 

Mr. Laufenberg issued this citation. 

The area marked in green on Exhibit P-4 is the primary 

escape route and the escapeways are nothing more than the haul 

roads. 

The two roads are separated by a pillar line. There is a 

40-foot open space between the pillars. If there was a toxic 

gasu it would migrate into both of the escapeways. 

sixteen miners were exposed to the violation and the exposure was continuous. There were always ignition sources present, 

such as trucks. 

It was likely that someone would be injured or killed in an 

underground fire. 

MSHA requires two separate escapeways. 

1934 
It was a distance 3,200 feet in which the pillars were separated by the 40-foot openings. 

To abate this condition the company constructed ventilation 

stoppings between the pillars and curtains were hung. 

The effectiveness of the abatement was established when a 

December 1991 fire occurred and the entire mine remained clear of 

carbon monoxide. This was after the curtains had been installed. 

Mr. Laufenberg identified Exhibit R-1 as the company's 

ventilation plan dated December 2, 1985. 

Mr. Laufenberg agreed that it would be obvious to anyone 

entering the mine that there was no ventilation barrier between 

the pillars and he did not know why he had not previously cited 

the company. He did not see it. 

Mr. Laufenberg agreed MSHA has no jurisdiction to inspect in 

the area where the fans are located inside the warehouse. This 

particular area is under OSHA ''s jurisdiction. 

Jerry Fuller agreed with Mr. Laufenberg that a violation of 

the regulation occurred. 

He indicated the regulation requires that damage to one 

escapeway does not affect the other. In this case, if a fire 

occurred, you could not use the escapeways to get out and it 

would be like driving through a black cloud. 

Mr. Fuller believed this violation was S&S. The object of 

the regulation is to provide two separate escapeways and, in 

effectv the openings between the pillars resulted in only one 

escapewayo 

In order to complete the ventilation survey, it would be 

necessary for Mr. Fuller to look at the fans. If permission was 

required, he would get it; however, he did not know who had 

granted permission to inspect the warehouse, which is under OSHA 

jurisdictiono 

Mro Fuller acknowledged that, after four inspections a year 

(for a total of 56 inspections), he was unable to explain why 

MSHA had not detected the lack of proper ventilation and the lack 

of fire doors in the shop area. 

DISCUSSION AND FURTHER FINDINGS 

The uncontroverted evidence establishes that the "escapeways" were simply two paved haul-roads separated by a pillar 

line. Since a 40-foot open space separate each pillars any toxic 

gas would migrate into both the "escapeways. 11 (See Ex. P-4). As 

1935 
a result there were not "two or more escapeways" as required by 

57.11050. 

SIGNIFICANT AND SUBSTANTIAL 

The case law framework for S&S allegations are set forth in 

connection with the previous citation. However, in connection 

with this citation, no expert testimony supports paragraph 3 of 

the Mathies formulation. Specifically, Mr. Laufenberg did not 

testify as to any S&S allegations concerning the escapeways. 

Mr. Fuller, a ventilation expert, hedged his opinion that the 

escapeway violation was S&S, based "on his ventilation survey." 

(Tr. 118; Ex. P-5}. The ventilation survey and the testimony 

does not support paragraph 3 of the Mathies formulation. 

The S&S allegations should be stricken as to Citation No. 

3907227. 

AMERICOLD'S CONTENTIONS 

Americold's arguments address a number of issues: the 

operator urges the Commission to consider MSHA's failure to 

detect that no ventilation barriers existed between the primary 

and secondary escape routes for many years. 

Further, the company was assured no citations would be 

issued as a result of MSHA's inspecting the warehouse area. 

(Mr. Laufenberg denies he entered into such an agreement.) 

Americold's arguments basically embody the legal doctrine of 

estoppel. 

It is clear that the mine is subject to inspection as required by the Mine Act, and likewise a penalty is required to be 

assessed for any violation. There is no support from a purely 

equitable standpoint for Americold's arguments that the Inspector's "no citation" promise, even if true, would bind the Secretary of Laboru and excuse Americold from the requirements of the 

Acto 

In Secretary of Labor v. King Knob Coal Company. Inc., 

3 FMSHRC 1417 (1981), the Commission refused to invoke the 

doctrine of equitable estoppel. It also viewed the erroneous 

action of the Secretary (mistaken interpretation of the law 

leading to prior non-enforcement} as a factor which can be 

considered in mitigation of penalty, stating: 

The Supreme Court has held that equitable estoppel 

generally does not apply against the federal government. Federal Crop Insurance Corp. v. Merrill, 332 

1936 
u.s. 380, 383-386 (1947); Utah Power and Light Co. v. 

United States, 243 u.s. 389, 408-411 (1917). The 

Court has not expressly overruled these opinions, 

although in recent years lower federal courts have 

undermined the Merrill/UtAh Power doctrine by permitting estoppel against the government in some circumstances. See, for example, United States v. GeorgiaPacific Co., 421 F.2d 92, 95-103 (9th Cir. 1970). 

Absent the Supreme Court's expressed approval of that 

decisional trend, we think that fidelity to precedent 

requires us to deal conservatively with this area of 

the law. This restrained approach is buttressed by 

the consideration that approving an estoppel defense 

would be inconsistent with the liability without fault 

structure of the 1977 Mine Act. See El Paso Rock 

Quarries, Inc., 3 FMSHRC 35, 38-39 (1981). Such a 

defense is really a claim that although a violation 

occurred, the operator was not to blame for it. 

Furthermore, under the 1977 Mine Act, an equitable 

consideration, such as the confusion engendered by 

conflicting MSHA pronouncements, can be appropriately 

weighted in determining the appropriate penalty. 

The Supreme Court of the United States in a recent decision 

again refused to invoke estoppel against the government and the 

Court has reversed every lower court decision granting estoppel 

that it has reviewed. (Office of Personnel Management v. Richmond, 110 s.ct. 2465 (1990), decided June 11, 1990). Insofar as 

it may be pertinent to this case, the Court held that erroneous 

oral and written information given by a Government employee to a 

benefit claimant who relied, to his detriment, on the misinformation cannot estop the Government from denying benefits not 

otherwise permitted by law. 

The Court also stated: 

It ignores reality to expect that the Government 

will be able to "secure perfect performance from its 

hundreds of thousands of employees scattered throughout the continent." Hansen v. Harris, 619 F.2d 942, 

954 (CA2 1980) (Friendly, J., dissenting), rev'd sub 

nom., Schweitker v. Hansen, 450 u.s. 785, 101 s. Ct. 

1468, 67 L.Ed.2d 685 (1981). To open the door to 

estoppel claims would only invite endless litigation 

over both real and imagined claims of misinformation 

by disgruntled citizens, imposing an unpredictable 

drain on the public fisc. Even if most claims were 

rejected in the end, the burden of defending such 

estoppel claims would itself be substantial. 

For the foregoing reasons, Americold's defense is REJECTED 

and the citations herein, as modified, are AFFIRMED. 

1937 
CIVIL PENALTIES 

In determining the amount of penalty to be assessed, Section 

110{i) of the Act requires consideration of certain criteria. 

In the instant case, Americold's favorable history shows it 

was assessed 14 violations for the two year-period ending April 

1, 1991. (Ex. P-1). 

Americold is a small operator with 45,327 annual hours 

worked in 1990. (Stipulation}. 

Americold was negligent. It should have known of the MSHA 

requirements. 

The proposed penalties will not affect the company's ability 

to continue in business. (Stipulation). 

The gravity of each violation should be considered as high. 

A possible fire, the spread of .. toxic gases, and the lack of two 

separate escapeways present hazardous conditions to underground 

miners. 

Americold rapidly abated the violations, so it is entitled 

to statutory good faith. Further, the company, in abating those 

two citations, demonstrated extreme good faith. 

The Judge believes the penalties set for in the order of 

this decision are appropriate. 

For the foregoing reasons, I enter the following: 

L Citation No. 3907226 is AFFIRMED and a civil penalty 

$150 is ASSESSED. 

:L Citation No. 3907227 is AFFIRMED and a civil penalty 

$100 is ASSESSED. 

Law Judge 

Distribution~ 

Susan J. Eckert, Esq., Office of the Solicitor, u.s. Department 

of Laboru 1585 Federal Office Building, 1961 Stout Street, 

Denver, CO 80294 (Certified Mail} 

Mr. Bohn A. Frazer, Quarry Manager, AMERICOLD CORPORATION, P.O. 

Box 2926, Kansas City, KS 66110 (Certified Mail) 

ek 

1938 

of 

of 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

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

r"(~'"l 201993 ;;~:t 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

A-1 GRIT COMPANY, 

Respondent 

Docket No. WEST 92-527-M 

A.C. No. 04-04963-05521 

A-1 Grit Irwindale 

DECISION APPROVING SETTLEMENT · 

Before: Judge Morris 

This case is before me upon a petition for assessment of the 

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

Health Act of 1977, 30 u.s.c. § 801, et ~(the "Act"). 

The Secretary filed a motion seeking to settle the four 

citations, originally assessed for $942.00 for the sum of 

$754.00. 

In support of the motion, the secretary further submitted 

information relating to the statutory criteria for assessing 

civil penalties as contained in 30 U.S.C. S 820(i). 

I have reviewed the settlement and I find it is reasonable 

and in the public interest. It should be approved. 

Accordinglyu I enter the following: 

ORDER 

1. The settlement is APPROVED. 

2. The citations and the amended penalties are AFFIRMED. 

3. Respondent is ORDERED TO PAY to the Secretary of Labor 

the sum of $754.00 within 30 days of the date of this decision. 

Law Judge 

1939 
Distribution: 

J. Mark Ogden, Esq., Office of the Solicitor, u.s. Department of 

Labor, 3247 Federal Building, 300 North Los Angeles Street, Los 

Angeles, CA 90012 (Certified Mail) 

Mr. Samuel Newman, A-1 GRIT COMPANY, Newman Brothers of California, Inc., P.O. Box 12, Redlands, CA 92373-0012 (Certified Mail) 

ek 

1940 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1Oth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP ~ :3 ;9q3 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

DRILLEX INCORPORATED, 

Respondent 

Docket No. SE 92-130-M 

A.C. No. 54-00340-05501 

Proyecto Montehiedra 

DECISION 

Appearances: Jane Snell Brunner, Esq., Office of the Solicitor, 

U.S. Department of Labor, New York, New York for 

the Petitioner; 

Doris Quinones-Tridas, Esq. and Miquel E. 

Bonilla-Sierra, Esq., for Respondent. 

Before: Judge Barbour: 

STATEMENT OF THE CASE 

In this civil p~~~J.ty proceeding, brought by the Secretary 

of Labor ("Secretary") against Drillex Incorporated ("Drillex") 

pursuant to sections 105(d) and 110(a) of the Federal Mine Safety 

and Health Act of 1977 ("Mine Act" or "Act"), 30 u.s.c. §§ 815(d) 

820(a)~ the Secretary charges Drillex with 13 violations of 

mandatory safety standards for surface metal and nonmetal mines 

found in Part 56, Title 30, Code of Federal Regulations 

("C.F.R."), and with one violation of the legal identity 

reporting requirements found at Part 41, 30 C.F.R. In addition, 

the Secretary asserts that several of the alleged violations were 

significant and substantial contributions to mine safety hazards. 

("S&S" violations). 

The alleged violations were cited on August 17, 1992, by 

inspectors of the Secretary's Mining Enforcement and Safety 

Administration ("MSHA") during an inspection of Drillex•s 

Montehiedra Project (the "Project"). In answer to the 

Secretary's subsequent proposal for the assessment of civil 

penalties, Drillex did not deny the existence of the violations 

or that they were S&S, but rather raised a more fundamental issue 

by asserting the Project was not a "mine" within the meaning of 

the Act and therefore that MSHA was without jurisdiction to issue 

the citations in question. 

The matter was one of a series of cases involving different 

operators that was called for hearing in San Juan, Puerto Rico. 

1941 
At the commencement of the hearing, counsels for the parties 

stated that they had reached stipulations regarding all factual 

issues, thus obviating the need for the taking of testimony. 

Tr. 4-5. They further agreed the controlling issue of law was 

"whether Respondent's operation was a mine, conducting activities 

covered by the Act." Tr. 4. 

The stipulations were read into the record by counsel for 

the Secretary and in written form were entered into the record as 

a joint exhibit. Tr. 5-8; Jt. Exh. 1. In addition, I questioned 

counsels in order to clarify my understanding of the 

stipulations, and I requested the submission of briefs, which 

were duly submitted. 

STIPULATIONS 

The parties stipulated in pertinent part as follows: 

1. That on February 1, 1993, the u.s. Department of 

Labor filed a proposed Assessment of Civil Penalty with 

the Federal Mine Safety and Health Review commission 

against Drillex • ~ . for alleged violations of the 

[Mine Act] at the • • 0 Project. 

2. That [Drillex] contested the proposed assessment 

of civil penalties on the grounds that the operation 

conducted by Drillex . • • at the • . • Project does 

not fall within the jurisdictional scope of the 

foregoing statute, arguing that • . o [Drillex] is not 

a mine performing operations covered by the Act. 

Whether ••. [Drillex] has engaged in [i]nterstate 

commerce is not a contested issue in the instant case. 

3. That the following stipulation of facts is 

submitted by the parties in order to resolve the 

jurisdictional issue presented by ... [Drillex]: 

a. That on or about July 10, 1992 • . • 

Drillex .• o entered into an agreement with 

A.H. Development Corporation under which 

Drillex was to preform drilling, blasting, 

rock excavation and crushing of a minimum of 

20,000 cubic meters of stone to be used as 

fill for embankment and road base at the • o • Project. [ 1 ] The specified work was 

1

In response to my question why the Project should not be considered as 

coming within Mine Act jurisdiction if drilling, blasting, rock excavation and 

crushing was conducted at the site, co-counsel for Drillex emphasized that the 

crushing of stone was undertaken only for the building of roads at the 

construction site. Tr. 12. 

1942 
the only work preformed by Drillex at the 

. Project and the material was processed 

an average of three . . times a week. 

b. The [Project] . is a privately owned. 

construction project wherein over two-hundred 

. residential units are being built. 

c. The material processed by Drillex 

. was extracted from the project site and 

hauled to the crusher area located within the 

project. 

d. The extracted material was to be reduced 

to gabion size by one . . employee using a 

hydraulic hammer.[ 2 ] The remaining stone was 

reduce~ t~ t~rcc . . inches down in size 

with the use of a portable jaw crusher. 

plant.[ 3 ) Two. . employees were retained 

for this purpose including the project 

supervisor. 

e. Drillex •.• removed six trucks of 

contaminated material (stone mixed with clay) 

from the project site. Said material was 

deposited in a property adjacent to Canteras 

de Puerto Rico in Guaynabo, which is in the 

process to be acquired by Drillex.[ 4 ] Said 

material. WJ.ll. .oe used to provide temporary 

access road for trucks and equipment in the 

property. 

fo None of the referred material was 

marketed or soldo 

2I inquired regarding the meaning of "gabion size"? Counsel for Drillex 

replied, hGabion size is stones of about one-foot big, 12 inches in size." 

Tr. 8. She further explained, "Those were broken down with a hydraulic hammer 

and not with a crusher." Id. 

3

counsel for Drillex further explained, "We have two sizes, we have the 

gabion size, which is done with a hammer, and not with the crusher, and then 

we have the three inches down in size, which is processed with a crusher." 

Tr. 8. 

4

counsel for Drillex stated Canteras de Puerto Rico is a quarry located 

in Guanynabo. According to counsel, the stone mixed with clay that was 

removed from the Project was not deposited at the quarry but rather was put in 

the ground at property adjacent to the quarry, property that is being acquired 

by Drillex. It takes about ten to fifteen minutes to drive from the Project 

to the property where the material was deposited. Tr. 9-11. 

1943 
4. The parties further stipulate that the only legal 

matter to be determined will be limited to whether 

[Drillex's] operations at the ..• Project constitute 

a mine under the provisions of the ... [Mine Act.] 

[Drillex] is not contesting the existence of the 

violations underlying the citations issued by MSHA. 

Jt. Exh. 1. 

THE ISSUE 

Was the Montehiedra Project subject to the jurisdiction of 

the Mine Act on August 17, 1992. 

PARTIES 1 ARGUMENTS 

THE SECRETARY 

The Secretary's counsel argues that the stipulations compel 

the conclusion the Project was 'SUbject to Mine Act jurisdiction. 

She bases her argument on both commission precedent and the 1979 

agreement between MSHA and the Secretary's Occupational Safety 

and Health Administration ("OSHA") (the "Agreement"). 5 

Counsel focuses initially upon the nature of the activities 

undertaken at the Project -- the drilling, blasting, excavation 

and crushing of rock to be used as fill for embankment and road 

base and the separation of waste from the rock and the removal of 

waste from the site. Counsel states that two Commission cases, 

Mineral Coal Sales, Inc., 7 FMSHRC 615 (May 1985), and Alexander 

Brothers, Inc., 4 FMSHRC 541 (April 1982), have held that the 

process of excavation and separation of minerals for a particular 

use causes Mine Act jurisdiction to vest. Since these processes 

were undertaken by Drillex, the Project came within the 

jurisdiction of the Act. Sec. Br. 4-7. Further, under the 

Agreement the specific activities which Drillex carried out at 

the Project are allotted to MSHA's authority and thus were 

covered by the Act. Sec. Br. 7-9. 

DRILLEX 

Counsel for Drillex counters that there is no precedent for 

finding MSHA jurisdiction at construction sites in which the 

extraction of minerals is not performed for their intrinsic 

qualities as minerals, but rather is an incidental operation 

needed for the construction of roads in the construction project. 

Drx. Br. 3. Counsel notes the Act's definition of "mine" 

5The Agreement was published in the Federal Register, 44 F.R. 2287 

(April 17, 1979) and was subsequently amended, 48 F.R. 7521 (February 22, 

1983). The Agreement is reprinted in the BNA Mine Safety and Health Reporter 

and notations herein referencing the Agreement are cited to the Reporter. 

1944 
includes the milling of minerals and that milling may consist of 

crushing. She asserts, however, that for the Mine Act to apply, 

the crushing of minerals must be associated with a process in 

which, as the Agreement states, "one or more valuable desired 

constituents of the crude is separated from the undesirable 

contaminants with which it is associated," something counsel 

argues Drillex did not do. Id. 3-4. At the Project the stone 

was reduced in size but it was not separated from any valuable 

desired constituent. Id. 5. Rather, the activities at the 

Project were similar to a "borrow pit," an operation the 

Agreement reserves for OSHA jurisdiction. 

Counsel asserts that: 

[A] jurisdictional line should be drawn 

between crushing as part of a milling process 

and crushi~g as a~ incidental operation to 

extraction. Classification as the former 

will undoubtedly carry with it Mine Act 

coverage; classificatTon as the latter 

results in [OSHAct] regulation. 

Drx. Br. 5. 

JURISDICTION 

I conclude the Secretary's exercise of Mine Act jurisdiction 

at the Project was permissible. I reach this conclusion despite 

the fact the Project ~s tar from what is viewed traditionally as 

a "mine." More than fifteen years have passed since the 

effective date of the Act, yet it has been clear, almost from the 

inception of enforcement, that the Act's pervasive regulation is 

intended to apply not only to conventional mines, but also to 

entities that are not engaged in "mining" in the classic sense. 

Thus, while it may be true, as Drillex maintains, that there is 

no precedent for the imposition of Mine Act jurisdiction at a 

construction project where minerals are extracted solely for road 

construction at the project -- a purpose incidental to the main 

objective of the project -- that does not signal a prohibition of 

the exercise of Mine Act jurisdiction. 

The Act states that "[e]ach coal or other mine, the products 

of which enter commerce . • . shall be subject to the provisions 

of this Act. 30 U.S.C. § 803. Section 3(h) (1) of the Act 

defines the facilities and processes that constitute a "coal or 

other mine." 30 u.s.c. § 802(h) {1). If what was done at the 

Project came within this definition, Mine Act jurisdiction 

applied. 

1945 
The statutory definition of "coal or other mine" states in 

part: 

(A)an area of land from which minerals are 

extracted in nonliquid form . . . and (C) 

lands, excavations .•. workings, 

structures, facilities, equipment, machines, 

tools or other property . • • used in, or to 

be used in, or resulting from, the work of 

extracting such minerals from their natural 

deposits . . . or to be used in the milling 

of such minerals, or the work of preparing . , . . . m~nera-~.s. 

30 u.s.c. §802(h) (1). Thus, the Act classifies as mining and 

subjects to its coverage, the extraction, milling and preparation 

of minerals. The Act does not further define the terms "milling 

of minerals" or "work of preparing ..• minerals." However, the 

Commission has expressed its opinion that use of the terms 

"signals an expansive reading--is to be given to mineral processes 

covered by the Mine Act," Carolina Stalite Company, 

4 FMSHRC 423, 424 (March 1982) n.3, rev'd sub nom. Donovan v. 

Caroline Stalite Company, 734 F.2d 1547 (D.C. Cir. 1984}, a view 

consistent with the Commission's recognition that a "broad 

interpretation is to be applied to the Act's expansive definition 

of a mine." Oliver M. Elam. Jr., Co., 4 FMSHRC 5, 6 (January 

1982); see also Cyprus Industrial Minerals Co. v. FMSHRC, 664 

F.2d 1116, 1117 (9th Cir. 1981); Marshall v. Stoudt's Ferry 

Preparation Co., 602 F.2d 589, 592. (3rd Cir. 1979). 

The dispositive question here is whether mineral extraction, 

preparation or milling was engaged in at the Project? In mining, 

t.he word "extraction" connotes the process of removing a mineral 

from its natural deposit in the earth. See u.s. Department of 

Interioru A Dictionary of Mining, Mineral and Related Terms 

(1968) at 404. Mineral preparation and milling while not 

specifically defined in the Act, are terms whose meanings involve 

the processes by which a mineral is made ready for use. As the 

parties have emphasized, MSHA and OSHA have entered into the 

Agreement in order to delineate their respective areas of 

authority with regard to mineral milling. Under the Agreement, 01milling" is defined as "the art of treating the crude crust of 

the earth to produce therefrom the primary consumer derivatives. 

The essential operation in all such processes is separation of 

one or more valuable desired constituents of the crude from the 

undesired contaminants with which it is associated. 01 MSHA -OSHA 

Interagency Agreement, Mine Safety & Health Reporter (BNA) ~ 

21:1101 (1983). 

1946 
The Agreement gives examples of milling processes that MSHA 

has authority to regulate. It states that milling consists of 

one or more of various processes, including crushing and sizing, 

and it defines "crushing" as "the process used to reduce the size 

of mined materials into smaller, relatively coarse particles" and 

"sizing" as consisting of "the process of separating particles of 

mixed sizes into groups of particles of all the same size, or 

into groups in which parties range between maximum and minimum 

size." Id. ! 21.1103. 

Given the meaning of the terms extraction and milling, I 

find these activities were carried out at the Project and, 

consequently, that the Project was a mine subject to Mine Act 

jurisdiction. The parties have stipulated that Drillex, pursuant 

to its agreement with A.H. Development Corporation performed 

drilling, blasting and rock excavation at the Project. Rock is a 

mineral or a COilip06it~ of minerals and drilling, blasting and 

excavation were conducted to remove the rock from· the earth. 

They were a part of the extraction process. 

The parties have stipulated further that once the rock was 

extracted it was reduced to gabion size by an employee using a 

jack hammer and that what remained was further reduced to 3 inch 

size or less by a crusher. The stipulations also reflect that 

the rock was separated from the "contaminated material," stone 

mixed with clay. Despite Drillex counsel's argument to the 

contrary, I conclude these activities constituted milling. In 

this instance the rock itself was the "valuable desired 

constituent of the crude" and it was separated from the waste 

material, the stone mixed with clay. It was then reduced into 

"smaller relatively coarse particles" in two stages and was 

separated into groups according to size. In other words, the 

rock was crushed and sized. 

Moreover 9 because the Secretary 1 s decision to exercise MSHA 

authority at the Project was based on the statutory definition of 

"mine," I must accord it deference. Carolina Stalite Co., 734 

F.2d at 1552. In doing so, I am mindful of the admonition from 

the Act's legislative history that "what is considered to be a 

mine and to be regulated under [the] Act be given the broadest 

possible interpretation, and . . • that doubts be resolved in 

favor of inclusion of a facility within the coverage of the Act." 

s. Rep. 95-181, 95th Cong., 1st Sess., 14 {1977), reprinted in 

Legislative History of the Federal Mine Safety and Health Act of 

1977 9 at 602. 

It is true, as Counsel for Drillex points out, that the 

Secretary has allotted jurisdiction over barrow pits to OSHA. 

1947 
The Agreement states: 

"Barrow Pits" are subject to OSHA 

jurisdiction except those borrow pits located 

on mine property or related to mining 

• • . "Barrow pit" means an area of land 

where the overburden consisting of 

unconsolidated rock, glacial debris, or other 

earth material overlaying bedrock is 

extracted from the surface. Extraction 

occurs on a one-time only basis or only 

intermittently as need occurs, for use as 

fill materials by the extracting party in the 

form in which it is extracted. No milling is 

involved except for the use of a scalping 

screen to remove large rocks, wood and trash. 

The m~tarial is used by the extracting party 

more for its bulk than its intrinsic 

quantities on land which is relatively near 

the borrow pit. 

Mine Safety & Health Reporter, (BNA)! 21:1102 (1983). While the 

stipulated operations at the Project were in some respects 

similar to a barrow pit as defined in the Agreement, there are 

crucial differences. At the Project extraction was not on a 

one-time only basis or intermittent but was undertaken pursuant 

to an agreement to produce a total of 20,000 cubic meters of 

stone and was carried out approximately three times a week. More 

important, mill1ng, in the form of separation, crushing and 

sizing, was carried out following extraction. Further, it was 

the particularly sized stone that was used primarily for a 

specific purpose -- for road base and embankment fill -- and not 

the bulk material originally extracted. When these factors are 

added to the fact that the Secretary, who drafted and administers 

the Agreement~ has concluded MSHA jurisdiction is appropriate 

under the Agreement, I am compelled to reject the barrow pit 

analogy. See New York State Department of Transportation, 2 

FMSHRC 1749 (July 1980) (ALJ Laurenson). 

For the foregoing reasons I hold the Secretary properly 

exercised Mine Act jurisdiction when inspecting the Project. 

THE VIOLATIONS AND CIVIL PENALTIES 

Drillex does not contest the existence of the alleged 

violations, and I find they occurred. I further find that in 

proposing civil penalties for the violations the Secretary 

properly considered all applicable civil penalty criteria and 

that the proposed penalties are appropriate. Therefore, I assess 

the penalties as proposed. 

1948 
CITATION/ORDER NO. DATE 30 C.P.R. s PENALTY 

3611057 8/17/92 56.1000 $ 50 

3611058 8/17/92 41.20 $ 50 

3611059 8/17/92 56.15001 $ 50 

3611060 8/17/92 56.12028 $108 

3611221 8/17/92 56.18012 $ 50 

3611222 8/17/92 56.15002 $189 

3611223 8/17/92 56.15003 $157 

3611224 8/17/92 56.11002 $119 

3611225 8/19/92 56.14132(a) $119 

3611227 8/17/92 56.14130(g) $119 

3611228 8/17/92 56.11001 $119 

3611229 8/17/92 56.14200 $337 

3611230 8/17/92 56.4203 $ 50 

3611231 8/17/92 56.18002(b) $ 50 

ORDER 

The citations/orders referenced above are AFFIRMED. Drillex 

is ORDERED to pay the civil penalties for the violations as 

assessed totalling one thousand five hundred and sixty-seven 

dollars ($1,567) within thirty (30) days of the date of this 

decision. 

This proceeding is DISMISSED. 

Distribution~ 

flvVtc/~~~ David F. Barbour 

Administrative Law Judge 

Jane Snell Brunner, Esq., Office of the Solicitor, u.s. 

Department of Labor, 201 Varick Street, New York, NY 10014 

(Certified Mail) 

Doris Quinones-Tridas and Miguel E. Bonilla-Sierra, Gonzalez, 

Bonilla and Quifiones-Tridas, 14 O'Neil Street, Suite c, 

Hato Rey 0 PR 00918 (Certified Mail) 

fepy 

1949 
FEDERAL MINE SAFElY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PYRAMID MINING INCORPORATED, 

Respondent 

DECISION 

Docket No. KENT 93-184 

A.C. No. 15-11620-03533 

No. 2 Hall 

Appearances: Darren L. Courtney, Esq., u.s. Department of 

Labor( Office of the Solicitor, Nashville, 

Tennessee for Petitioner; 

Carl B. Boyd, Jr., Esq., Henderson, Kentucky. 

Before: Judge Weisberger 

Statement of the Case 

This case is before me based on a Petition for Assessment of 

a civil Penalty filed by the Secretary (Petitioner) alleging a 

violation by the Operator (Respondent} of 30 C.F.R. § 77.1505. 

Pursuant to Notice, the case was heard in Evansville, Indiana, on 

July 8v 1993. At the hearing, Darold Gamblin testified for 

Petitioner. Joe Clark, and James Michael Hollis, testified for 

Respondent. The parties filed Briefs on August 23, 1993. 

Findings of Fact and Discussion 

Respondent operates a coal mine known as Hall No. 2. 

Respondent arranged for a.contractor to extract coal from an 

above ground seam by use of a continuous miner, or auger. The 

seam was developed in sections commencing November 1991. 1 In 

normal operations the miner excavated a hole 10 to 11 feet wide, 

approximately 4 feet, high and 420 feet in length. Once a hole 

was excavated the miner was moved 3 to 4 feet, and another hole 

was excavated. This cycle continued as the section was 

1

The sequence in which the sections were developed, the 

month and year in which they were developed, and their relative 

locations, are depicted on Respondent's Exhibit No. 2. 

1950 
developed. In November 1992, 4 Sections had been excavated, and 

one was being mined. 

on March 20, 1992, the subject site was inspected by MSHA 

Inspector Darold Gamblin. Approximately 35 to 40 hole~ were not 

blocked. These were located in an area 2,000 feet from the area 

that was being mined. In the normal course of mining, no one 

enters unblocked auger holes. However, according to Gamblin, 

children from a nearby residential area might enter these 

unblocked holes. A person entering an auger hole would be 

exposed to the hazards of unsupported roof, methane, or 

insufficient oxygen. Exposure to these hazards could result in a 

serious injury or fatality. 

Gamblin issued a citation alleging a violation of 30 C.F.R. 

§ 77.1505, which provides as follows: "Auger holes shall be 

blocked with highwall spoil or other suitable material before 

they are abandoned." 

Respondent did not impe~ch or contradict Gamblin's testimony regarding the existence of auger holes that were not blocked. 

The issue for resolution is whether the holes were abandoned. 

Gamblin determined that the holes were abandoned because no 

mining was taking place in the sections at issue. The only area 

being mined was located 2,000 feet away from the cited holes. In 

this connection, Gamblin opined that it would take the miner 2 to 

3 days to travel from the area where it was mining on March 20, 

to return to the he!~= th~t h~d not been blocked. He indicated 

that he had seen the same holes in January 19922 , during a 

previous examination. 3 Gamblin noted that he does not know of 

any reason why an operator would leave an area where they were 

drilling auger holes, and go to a different section of the mine, 

and then return later to the original area. 

According to Joe Clark, Respondent's ground manager, in the 

normal course of mining, auger holes are developed to a length of 

2 There is no clear convincing evidence to establish when 

the open holes cited in March 1992 1 had been augered. Joe Clark, 

Respondent's ground manager, when asked when they were originally 

drilled answered as follows: "They would have been drilled 

between November and March." (Tr. 58) (Emphasis added). 

3 In response to questions from counsel, Gamblin indicated 

that, to his "knowledge" Respondent did not ever go back and ~'redrill" those holes (Tr. 35) (sic). The record does not 

establish the basis for Gambin's "knowledge". Also, there is no 

evidence in the record from anyone who had personal knowledge as 

to whether Respondent returned to further excavate the holes in 

issue after they had been initially augered. 

1951 
420 feet. However, according to Clark, at times, either due to 

geological conditions, or more commonly due to mechanical 

problems with the miner, an auger hole was not drilled to the 

full length of 420 feet. He indicated that the miner at issue 

had lots of mechanical problems. He indicated "we" (T~.49) were 

not satisfied with the performance of the contractor, who did not 

want to re-enter holes that had not been completed. He said that 

11we were going to insist that they go back and get full 

penetration" (Tr. 55). He said that Respondent did not consider 

the holes to be abandoned. 

James Michael Hollis, Respondent's safety and reclamation 

supervisor testified that as far as Respondent was concerned the 

holes were not abandoned, and it was the "intent" of Respondent 

to get full penetration (Tr.70). He said that " ... we were going 

to go back and try to go back to those holes to get full 

penetration". (Tr. 75-76) (sic) 

There is no definition in Part 77 of volume 30 of the Code 

of Federal Reg·u.:J.ations, of the word "abandoned. 114 Hence, 

reference is made to the common meaning of the word "abandoned." 

In Webster's Third New International Dictionary, (1986 ed.) 

("Webster's"), "abandon" and the transitive verb "abandoned", are 

defined as 11 1: to cease to assert or exercise an interest, right 

or title to esp. with intent of never again resuming or asserting 

it; 2: to give up (as a position, a ship) by leaving, 

withdrawing, ceasing to inhabit, to keep, or to operate often 

because unable to withstand threatening dangers or encroachments 

•••• " "abanado~ed 11 1 when used as an adjective, is defined in 

Webster's, supra as "1: given up: DESERTED, FORSAKEN •••• 11 

The record does not convencingly establish.the exact dates 

when the contractor stopped the initial drilling of the holes in 

issue. Hence, I cannot make a finding as to the specific length 

of time Respondent had ceased working on these holes when cited 

by Gamblin on March 20, 1992. On the other hand, I find the 

testimony of Gamblin insufficient to rebut the testimony of 

Respondent's witnesses, whom I found credible, regarding 

Respondent's intent to go back and get full penetration of the 

holes in question. In this connection I note that on March 20, 

1992 1 when the unblocked holes were cited, the mine site at issue 

was still being minded. 

4 Petitioner cited the definition of "abandoned areas" as 

set forth in 30 C.F.R. § 75.2(h). This definition is not 

relevant to the case at bar. Part 75 of 30 C.F.R. supra, 

pertains to underground mines only. In contrast Part 77, which 

governs this proceeding, pertains to surface mines, and surface 

areas of underground mines. There is no evidence of any 

regulatory intent that definitions set forth in Part 75 supra, 

are to be applied to Part 77 supra. 

1952 
Within the above framework, I conclude that Respondent, on 

March 20, 1992, had not "abandoned" the cited holes as that term 

is commonly defined. Accordingly, Respondent was not in 

violation of Section 77.1505, supra, and the Citation issued by 

Gamblin is ordered to be VACATED. 

It is ORDERED that 

Distribution: 

ORDER 

thi~D:::_ 

Avram Weisberger 

Administrative Law Judge 

Darren L. Courtney, Esq., Office of the Solicitor, u. s. 

Department of Labor, 2002 RichardJones Road, Suite B-201, 

Nashville, TN 37215 (Certified Mail) · 

Carl B. Boyd, Jr., Esq., 223 First Street, Henderson, KY 42420 

(Certified Mail) 

nb 

1953 
I'BDERAL IUD SAFETY DD BEAL'l'B REVJ:BW COJOUSSIOH 

OFFICE OF ADMINISTRATIVE LA~ JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MOLINE CONSUMERS COMPANY, 

Respondent 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 92-368-M 

A. C. No. 11-00134-05512 

Midway Stone 

Appearances: Christine M. Kassak, Esq., Office of the Solicitor, 

U. s. Department of Labor, Chicago, IL, for the 

Petitioner: 

Robert P. Boeye, Esq., Califf & Harper, P.C., 

Moline, Illinois, for Respondent. 

Before: Judge Feldman 

This case is before me as a result of a petition for civil 

penalty filed by the Secretary of Labor pursuant to section 

105(d) of the Feder~l Mine Safety and Health Act of 1977, 30 

u.s.c. § 801, et seg., (the Act}. This matter was heard on July 

13, 1993, in Peoria, Illinois. Mine Safety and Health 

Administration Inspector {MSHA) John E. Guthrie and Assistant 

District Manager John Waxvik testified for the Secretary. The 

respondent called Oscar Ellis, the respondentws President, James 

Chevillev a union steward at the Midway Stone Quarry, James 

Papenhausenv the Safety Director, and Scott Hanson, a mine 

consultant. The parties' post-hearing briefs are of record. 

STATEMENT OF THE CASE 

This single citation proceeding concerns Citation No. 

4099296 issued on May 6, 1992, by Inspector John E. Guthrie for 

an alleged violation of the mandatory safety standard contained 

in section 56.14107(a) 9 30 C.F.R. § 56.14107(a) with respect to 

the respondentws primary jaw crusher at its Midway Stone Mine 

(Midway). Section 56.14107(a) provides: 

1954 
Moving machine parts shall be guarded to protect 

persons from contacting gears, sprockets, chains, 

drive, head, tail, and take-up pulleys, flywheels, 

couplings, shafts, fan blades, and similar moving parts 

that can cause injury (emphasis added). 1 · 

The citation was designated as nonsignificant and substantial in 

apparent recognition of the perimeter fencing of the subject 

primary crusher. However, the Secretary seeks to impose a civil 

penalty of $700.00 under the special penalty assessment 

provisions in section 100.5, 30 C.F.R. § 100.5. 

The issues for determination are whether the respondent's 

perimeter fencing of the moving parts in issue satisfies the 

guarding requirements of Section 56.14107(a), and, if not, the 

propriety of the Secretary's imposition of a special assessment 

in this case. As noted below and at the hearing, the question of 

whether the respondent's perimeter fencing provides an equal or 

greater level of protection than that afforded by the safety 

standard in Section 56.14107(~1 is fibt in issue and is beyond the 

scope of this proceeding. This question must be resolved in 

accordance with the petition for modification procedures 

promulgated in section 101(c) of the Act, 30 u.s.c. § 811(c). 

STIPULATIONS 

At the hearing, the parties entered the following 

stipulations in th~ ~~c0~d (tr. 9-13): 

1. The Federal Mine Safety and Health Review Commission 

has jurisdiction over these proceedings. 

2o Respondent, Moline Consumers Company, owns and operates 

the Midway Stone Mineo 

3. The Midway Stone Mine extracts dolomite which is 

crushed and broken. 

4o The Midway Stone Mine is located in Rock Island County, 

Illinois" 

5o Respondent's operations affect interstate commerce. 

1 Subsection (b) of section 56.14107 specifies that 

guarding of exposed moving parts is not required where the parts 

are at least .seven feet away from walking or working surfaces. 

The parties have stipulated that the primary crusher parts in 

question are less than the requisite distance of seven feet. 

(Stipulation No. 19). Therefore the guarding requirements of 

section 56.14107(a) are applicable in this matter. 

1955 
6. The Midway Stone Mine worked 25,008 production hours 

from January 1, 1991 through December 31, 1991. 

7. Respondent, worked less than 700,000 production hours 

at all of its mines from January 1, 1991 through December 31, 

1991. 

8. Respondent had 12 violations during the preceding 24 

months ending on July 15, 1992. 

9. The payment of the $700 special penalty assessment will 

not affect Respondent's ability to continue in business. 

10. On May 6, 1992, John E. Guthrie,(the "inspector") an 

authorized representative of the Secretary of Labor, issued 

citation No. 4099296 at Respondent's, Moline Consumers Company's, 

Midway Stone Mlne, ln Rock Island County, Illinois, alleging a 

violation of 30 C.F.R. § 56.14107 in that Respondent had failed 

to provide guarding for its primary jaw crusher drive sheaves and 

belts and flywheel. 

11. A complete and accurate copy of Citation No. 4099296 is 

attached hereto as Exhibit A. 

12. The correct Mine Identification Number for the Midway 

Stone Mine is 11-00134. 

13. On May 6, 1992, Respondent did not have pending a 

Petition for Modification for this mine identification number. 

14. Respondent has not, to date, filed a Petition for 

Modification for this mine identification number. 

15. Respondent was aware that MSHA required the primary 

crusher to be guarded" 

16. On May 6, 1992, the primary jaw crusher, which is the 

subject of Citation Number 4099296, was guarded by a fence and a 

gate which was locked, bolted, and had a starter wire connection 

at the gate. 

l7o Respondent's workers leave the gate unlocked at night 

so that greasing can be performed prior to start up. 

18. On may 6, 1992, the electric motor, drive sheave and 

belts and the flywheel on the primary jaw crusher, which are the 

subject of Citation No. 4099296, did not have individual guarding 

inside the fenced enclosure. 

19. The exposed moving parts on the primary jaw crusher, 

which are the subject of Citation No. 4099296, are less than 

seven feet above walking or working surfaces. 

1956 
20. Contact with the moving parts on the primary jaw 

crusher, which are the subject of Citation No. 4099296, could 

result in entanglement, crushing andjor death. 

PRELIMINARY FINDINGS 

The essential facts are not in dispute and can be briefly 

stated. The respondent operates the Midway Stone Quarry in Rock 

Island County, Illinois. The primary crusher machine at this 

facility has drive assemblies which include drive belts which run 

between sheaves andjor flywheels. Pinch points occur when the 

belts pass over the flywheels. The respondent has erected a 

chain link fence approximately 12 feet wide by 17 feet long by 

6 1/2 feet high around the perimeter of the crusher blocking 

access to the area where the belts and drives are located. The 

only entrance into the area is through a gate. The gate is 

secured by a stLap and bolt locking system and, in addition, the 

gate is locked with a padlock. The key to the padlock is located 

in a separate structure approximately 250 feet from the crusher. 

As a further measure of protection, the respondent has installed 

an interlock electrical system at the gate. This system requires 

the unplugging of an electrical cord whenever the gate is opened 

which automatically shuts down the crusher. 

Finally, the respondent has established a "lock-out" 

procedure which requires all employees to first shut off the main 

power source to the primary crusher before entering the fenced in 

area. In order to shut off the main power source, it is 

necessary to go to a separate structure located approximately 250 

feet from the machinery. This procedure prevents exposure of 

personnel to parts that continue to move for a short period of 

time even though power has been turned off. (Tr. 210, 211, 216, 

219-221)o 

The respondent utilizes a similar method of area fencing of 

its primary crusher at its Valley Plant No. 7 (Valley) facility. 

(Tr. 34). On October 17, 1990, Administrative Law Judge George 

A. Koutras issued a decision wherein he concluded that the 

respondentvs perimeter fencing of its primary crusher at Valley 

did not satisfy the guarding requirements of Section 56.14107. 

Moline Consumers Company, 12 FMSHRC 1953 (October 1990). Judge 

Koutras 1 decision was based on the fact that the crusher "· •• 

belt drive was not individually physically guarded at the time of 

the inspection, and the gate which served as guard was unlocked 

and opened, thereby allowing free access to the crusher belt 

drive area immediately inside the gate." Id. at 1965. MSHA 

Supervisory Inspector Ralph D. Christensen permitted the 

respondent to abate the citation in Judge Koutras• case by 

replacing the padlock with the installation of a nut and bolt to 

secure the gate. Judge Koutras questioned the effectiveness of 

1957 
this solution. Id. at 1967. Consequently, Judge Koutras, noting 

that "[t]he belt drive itself continues to be unguarded," urged 

the respondent to initiate modification proceedings under section 

101(c) of the Act. 

On November 30, 1990, in response to Judge Koutras• decision 

and the nut and bolt use allowed by Christensen, MSHA 

specifically addressed the issue of remote barriers and issued a 

memorandum to North Central District enforcement personnel 

informing them that perimeter guarding, regardless of how gates 

are secured, does not comply with the guarding requirements of 

section 56.14107. {P's Ex. C). The memorandum noted that 

affected operators should be given an opportunity to comply 

before being cited. Christensen is a Field Office Supervisor in 

Peru, Illinois and does not have the authority to establish MSHA 

policy. (Tr. 132-134, 169, 170-173). 

By petition dated July 12, 1991 (amended July 26, 1991), the 

respondent sought to be relieved of it obligations under section 

56.14107 for its crushers at'its Valley and Allied Stone (Allied) 

plants. The respondent.requested a variance from the standard in 

order to use perimeter or area guarding by fence, gate and 

padlock. The respondent's petition was initially denied by 

MSHA's district manager on October 2, 1991 and was denied on 

reconsideration on November 20, 1991. Thereafter, on December 

17, 1991, the respondent filed a notice of appeal. The hearing 

on the respondent's petition for modification was ultimately 

scheduled for June 3, 1992, before Department of Labor 

Administrative Law Judge Robert s. Amery. 2 

In the interim, on or about April 30, 1992, Inspector 

Guthrie inspected the respondent's Midway facility. At that 

time 1 the primary crusher was not in operation. Guthrie noted 

that the pinch points of the primary crusher were not 

individually guarded. (Tr. 50-51). Guthrie advised Spud 

Reiling, the plant supervisor, that the respondent must "· 

guard the moving parts at the point of contact rather than area 

guarding," once production resumed. (Tr. 60). 

Guthrie returned to Midway on May 6, 1992, and determined 

that individual guarding had not been installed at the crusher's 

moving parts despite his earlier warning that point of contact 

guarding was required. Consequently, Guthrie issued Citation No. 

4099296 and concluded that the respondent's underlying negligence 

associated with the violation was high. (Tr. 56-57). 

2 A hearing on a petition for modification is held before a 

Department of Labor Administrative Law Judge. 30 C.F.R. §§ 

44.20-44.35 (hearings). 

1958 
The modification hearing for the Valley and Allied crushers 

was held on June 3, 1992, before Judge Amery. On September 28, 

1992, Judge Amery decided that the respondent's alternative 

method of guarding, which consists of a fence with a gate 

equipped with a padlock, plus a bolt and nut to form a barrier, 

as well as an electrical interlock system, warning signs and the 

respondent's lockout procedure, assures at least the same measure 

of protection as that afforded under the provisions of section 

56.14107. Judge Amery imposed the additional requirement that 

the respondent place a box or cage over the rotating motor shaft 

during annual vibration tests to check the bearings when the 

drive belts are removed. Petition for Modification Hearing, 

Moline Consumer's Company v. MSHA, {Amery Decision) DOL No. 92-

MSA-10 (September 28, 1992); Joint Ex. No. 3. 

FURTHER FINDINGS AND CONCLUSIONS 

Fact of Occurrence of violation 

As noted above, the only .. dispositive issue is whether the 

respondent's system of area guarding satisfies, not equals, the 

mandatory safety standard in section 56.14107. In this regard, 

the respondent has acknowledged, in its petition for modification 

proceeding before Judge Amery, that its system of area guarding 

is an alternative to the MSHA approved point of contact guards of 

the primary crusher's moving parts. Amery Decision, Joint Ex. 3, 

pp. 4-5, 7. Having argued that its area guarding affords equal, 

if not better, protection than the mandatory standard at Valley 

and Allied, the respondent is estopped from asserting that its 

area ~uarding at Midway meets the mandatory standard. (Tr. 107-

108). 

However, the respondent asserts that it reluctantly 

participated in the modification proceeding to avoid further 

enforcement action although it firmly believes that its area 

guarding meets the mandatory standard. {Tr. 99-103). Therefore, 

estoppel notwithstanding, I shall address this issue on the 

merits. 

In resolving this question, it is fundamental that we look 

to the language and purpose of the standard. Where the terms of 

a statutory or regulatory provision are clear, such terms must be 

given effect unless the legislative or regulatory body clearly 

3 Although I noted that I was inclined to conclude that the 

respondent was estopped from asserting that its area guarding 

meets the mandatory safety standard contained in section 

56.14107, I withheld final judgment on this issue and permitted 

the respondent to present its entire case concerning whether area 

guarding satisfies the mandatory standard. (Tr. 107-108, 114-

115). 

19 59 
intended the words to have a different meaning. See Utah Power 

and Light Company, 11 FMSHRC 1926, 1930 (October 1989) citing 

Chevron, U.S.A. v. NRDC, 467 U.S. 837, 842-843 {1984); United 

States v. Baldridge, 677 F.2d 940, 944 (D.C. Cir. 1982); Phelps 

Dodge Corp. v. FMSHRC, 681 F.2d 1189, 1192-1193 (9th Cir. 1982). 

Turning to the language of section 56.14107, it is noteworthy 

that this section is entitled "Moving Machine Parts 11 • This 

mandatory standard is obviously intended to protect individuals 

from moving component parts rather than the machine itself. This 

standard protects individuals who perform maintenance. It also 

protects against injury from parts that continue to move even 

after equipment is de-energized. Significantly, Judge Amery 

recognized this distinction by imposing the requirement to shield 

(guard) the motor shaft as a component part during annual 

vibration testing in addition to the respondent's system of area 

guarding the entire piece of equipment. 

Moreover, Scott Hanson, the respondent's consultant witness, 

recognized that section 56.14107 is intended as a safety standard 

to be applied to moving parts' 'rather than an entire machine. 

(Tr. 286-287). Therefore, the plain and unambiguous language of 

section 56.14107 fails to support the respondent's contention 

that its area guarding meets the standard. 

Consistent with the plain meaning of this mandatory safety 

standard, Commission Administrative Law Judge Morris has also 

concluded that a gate 4 to 5 feet from an unguarded chain drive 

assembly on a hopper feen~r conveyor belt does not satisfy the 

standard in 56.14107. See Yaple creek Sand & Gravel, 11 FMSHRC 

1471 (August 1989). Similarly, Department of Labor modification 

proceedings have recognized that area guarding is an alternative 

to the required guarding of moving parts contained in section 

56.14107. See Petition for Modification Hearing, Richem 

Construction Co., Inc. v. MSHA, DOL No. 92-MSA-18, (March 10, 

1993) (ALJ Vittone}; Amery Decision, Joint Ex. 3. 

While I am cognizant of the respondent's sincere and 

apparently effective efforts to protect its employees from 

exposure to the crusher's moving parts, it is the respondent's 

responsibility to pursue alternative safety measures through the 

petition for modification procedure contained in section 101(c) 

of the Act. If an operator fails to do so it must be subject to 

civil penalty sanctions. Any other approach would permit the 

operator, rather than the Secretary, to unilaterally determine 

whether alternatives to mandatory safety standards are effective. 

Otis Elevator Company, 11 FMSHRC 1918, 1923 (October 1989). 

Thus, the respondent's area guarding of its primary crusher at 

its Midway facility, for which it has not filed a petition for 

1960 
modification, constitutes a violation of the mandatory standard 

contained in section 56.14107. Accordingly, Citation No. 4099296 

shall be affirmed. 

Special Assessment 

Having determined the fact of the violation, the rema1n1ng 

issue is whether a waiver of the regular assessment formula and 

the imposition of a special assessment is appropriate in this 

case. The Secretary proposes a civil penalty of $700.00 for this 

non-significant and substantial violation under the special 

assessment criteria in section 100.5(h) which permits special 

assessments for "[v)iolations involving an extraordinarily high 

degree of negligence or gravity or other unique aggravating 

circumstances." 

A special assessment was imposed by MSHA on May 22, 1992, 

because "[t]he company continues to use a fence and gate system 

of guarding on primary crushel.".s. A petition for variance was 

denied on November 21, 1991. Therefore, Citation 4099296 should 

be special assessed." (Tr. 138-139; Petitioner's Ex. D). 

However, the respondent»s hearing before Judge Amery was not 

heard until June 3, 1992. The respondent is entitled to exhaust 

its administrative remedies in an effort to prevail on the merits 

of its modification petition. The respondent's failure to comply 

with MSHA's directive to install pinch point guarding during the 

pendency of its modification petition under circumstances where 

there is no likelihood of serious injury is not indicative of 

high negligence. 

However, the respondent acts at its own peril with respect 

to the imposition of civil penalties if it fails to seek 

modification authority for a particular mine. 4 Had the 

respondent included Midway in its Valley and Allied modification 

petition prior to the issuance of Citation No. 4099296, section 44.4(c~ would provide a basis for vacating the citation in 

issue. The respondent's failure to a seek a pertinent 

modification in this case does not constitute the requisite gross 

4 Although the respondent filed a petition for modification 

for its area guarding at Valley and Allied, section 44.11, 30 

C.F.R. § 44.11, requires that all mines affected must be 

identified in the petition. For reasons best known to the 

respondent, it failed to include the Midway primary crusher in 

its petition for modification. 

5 Section 44.4(c), 30 C.F.R. § 44.4(c), provides that the 

granting of a modification shall be considered as a factor in the 

resolution of any enforcement action previously initiated for 

claimed violation of the subsequently modified mandatory safety 

standard. 

1961 
negligence or other aggravating conduct necessary for a special 

assessment. Significantly, the Secretary has conceded that the 

respondent's failure to install site-specific guarding at pinch 

points, in view of the respondent's alternative measures, did not 

expose personnel to any significant risk of injury. (T~. 180). 

Consequently, Waxvik's characterization of high negligence as 

"[t]he mine operator's flagrant disregard for the mandatory 

safety standard by substituting area guarding for point of 

contact guarding" is not supported by the evidence. (Tr. 149). 

The respondent cannot be charged with a "flagrant disregard" of a 

mandatory standard when it has acted to provide its employees 

with equivalent protection. Therefore, the Secretary has failed 

to demonstrate that the facts of this case warrant the imposition 

of a special assessment. Accordingly, considering the criteria 

of section 110(i) of the Act, including the low degrees of 

gravity and negligence associated with the subject violation, I 

am assessing a c 1 penalty of $20.00 in this matter. 

Finally, the respondent must file a pertinent petition for 

modification for its Midway p_:rimarycrusher within 45 days from 

the date of this decision. If a petition for modification is 

timely filed, MSHA should defer enforcement of the provisions of 

section 56.14107 pending the outcome of the petition. 

ORDER 

Accordingly, Citation No. 4099296 IS AFFIRMED. IT IS 

ORDERED that the respondent pay a civil penalty of $20.00 within 

30 days of the date of this decision and, upon receipt of 

payment, this proceeding IS DISMISSED. IT IS FURTHER ORDERED 

that the respondent shall file, within 45 days of the date of 

this decision, a petition for modification of the provisions of 

section 56.14107 as they apply to its primary crusher at its 

Midway Stone Quarry. 

Distribution~ 

Vq,~ ~ c.:old Feldman 

Administrative Law Judge 

(703) 756-5233 

Christine M. Kassak, Esq., u.s. Department of Labor, 230 South 

Dearborn St., 8th Floor, Chicago, IL 60604 (Certified Mail) 

Robert P. Boeye, Esq., Califf & Harper, P.C., 600 First Midwest 

Bank Building, 506 15th Street, Moline, IL 61265 (Certified Mail) 

dcp 

1962 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Petitioner 

v. 

CALMAT OF CENTRAL 

CALIFORNIA, 

Respondent 

SEP 2 4 

« 

. 

. . 

i993 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 93-362-M 

A. C. No. 04-01711-05522 

River Rock Plant 

DECISION APPROVING SETTLEMENT 

ORDER TO PAY 

Before: Judge Merlin 

This case before me upon a petition for assessment of 

civil penalties under section 105(d) of the Federal Mine Safety 

and Health Act of 1977. On June 18, 1993, the Solicitor filed a 

motion to approve settlement of the one violation involved in 

this case. The Solicitor sought approval of a 50% reduction in 

the penalty amount. On August 3, 1993, an order was issued 

disapproving the settlement because the Solicitor gave no reasons 

to support the proposed reduction. The Solicitor was ordered to 

file additional information to support his motion. 

On August 24, 1993, the Solicitor filed an amended motion to 

approve settlement and on September 17, 1993, a second amended 

settlement motion. 

In the second amended settlement motion the Solicitor 

furnishes reasons for the suggested reduction from $1019 to $509. 

The citation was issued for an inoperative back-up alarm on a 

crane. According to the Solicitor, gravity and negligence were 

less than originally thought because the crane was out of service 

when the citation was issued and the faulty alarm would have been 

discovered during the mandatory pre-operation inspection. As a 

resultQ the Solicitor has agreed to delete the significant and 

substantial designation. I accept the Solicitor's representations and I conclude that the settlement is appropriate under the 

six criteria set forth in section llO(i) of the Act. The file 

contains a memorandum from the Civil Penalty compliance Office 

for MSHA indicating that the operator has paid $451.50 1 for this 

case. 

$451.50 was the amount specified in the original 

settlement motion but the Solicitor has advised my law clerk that 

the figure was erroneous. 

1963 
In light of the foregoing, it is ORDERED that the settlement 

motion filed September 17, 1993, is ACCEPTED as a response to the 

August 3 order. 

It is further ORDERED that the recommended settlement be 

APPROVED and the operator having paid $451.50, is ORDERED TO PAY 

$57.50 within 30 days of the date of this decision. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Steven R. DeSmith, Esq.~ Office of the Solicitor, U. s. 

Department of Labor, 71 Stevenson street, Room 1110, San 

Francisco, CA 94105-2999 (Certified Mail) 

Mr. Frank D'Orsi, Calmat of Central California, 11599 Noah Friant 

Road, Fresno, CA 93710 (Certified Mail) 

/gl 

1964 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

<'£1.": ·:.: ,~ • 0 93 .) i"" t. r L .. -. 

BOBBY L. JOHNSON, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

BOHICA, INCORPORATED, 

and/or 

SHILOH MINING, 

Respondent 

Docket No. WEVA 93-105-D 

MORG CD 92-09 

Cove Run Deep Mine No. 1 

ORDER OF DISMISSAL 

Before: Judge Weisberger 

on August 31, 1993 an Order was issued wherein Complainant 

was ORDERED as follows, " ..• within 10 days of this Order, 

Complainant Johnson shall file either a statement withdrawing 

this complaint or a statement setting forth good cause why such a 

statement was not filed. It is further ordered, that if 

Complainant fails to comply with this order, this case will be 

DISMISSED." 

To date, Complainant has not compiled with the Order. 

Accordingly, it is ORDERED that thi c se be DISMISSED. 

Judge 

Distribution: 

Bobby L. Johnsonu Route l, Box 157-A, Tunnelton, WV 26444 

(Certified Mail) 

Mr. Robert J. Bailey, President, Bohica, Inc., Rt. 3, Box 39, 

Philippi, WV 24614 (Certified Mail) 

Mr. Wayne Stanley, Shiloh Ming, Route 3, Box 40, Bridegeport, WV 

26370 (Certified Mail) 

nb 

1965 
PBDBRAL XIBB SAFETY MID BBALTB RBVJ:EW COIOUSSIOH .. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 2 71993 

LONNIE DARRELL ROSS, 

Complainant 

DISCRIMINATION PROCEEDINGS 

v. Docket No. KENT 91-76- D 

MSHA No . BARB-CD-90-40 

SHAMROCK COAL COMPANY, INC. Respondent 

CHARLES EDWARD GILBERT, 

Complainant 

: Docket No . KENT 91-77-D 

MSHA No . BARB-CD-90- 41 

v. 

: 

SHAMROCK COAL COMPANY, INC., 

Respondent . . Mine No. 10 

Appearances: 

Before: 

DECISION ON REMAND 

Phyllis L. Robinson, Esq., Hyden, KY, for 

Complainants; 

Tony Oppegard, Esq., Lexington, KY, for 

Mine Safety Project of the Appalachian Research & 

Defense Fund of Kentucky, Inc.; and 

Timothy Wells, Esq. , Manchester, KY, for the 

Respondent. 

Judge Fauver 

on June 24, 1993, the Commission remanded these consolidated 

cases for clarification of interest awards and recalculation of 

the back pay awards ~Y deducting unemployment compensation 

received during the backpay periods. 

After extensive conferences and negotiations, the parties 

have moved for approval of a settlement agreement proposing the 

terms of an order on remand . I have reviewed the proposal and 

accompanying documents, and conclude that the proposed order i s 

appropriate. 

The parties have submitted to the judge the determination of 

an appropriate attorney fee . Having considered the documentation 

submitted regarding an attorney fee, I conclude that Attorney 

Phyllis L. Robinson is entitled to an attorney fee of $150 . 00 per 

hour for 69.50 hours ($10,425 . 00) plus reimbursable expenses of 

$95 . 34, for a total attorney fee of $10,520 . 34. 

1966 
ORDER 

WHEREFORE ~T IS ORDERED that: 

1 . The parties' settlement agreement is APPROVED as a full 

and final settlement of all claims and issues raised in these 

pr oceedings. 

2. Within 30 days of the date of this Decision, the 

parties shall comply fully with paragraphs 1 and 2 of the agreed 

proposed order on remand. 

3. Within 30 days of the date of this Decision . Respondent shall pay Complainants' Attorney, Phyllis L. Robinson, 

an attorney fee of $10,520 . 34 . 

w~~~/WV~ William Fauver 

Administrative Law Judge 

Distribution: 

Phyllis L. Robinson, Esq., P.O. Box 952, Hyden, KY 41749 

(Certified Mail) 

Tony Oppegard, Esq., Mine Safety Project of the Appalachian 

Research & Defense Fund, 630 Maxwelton Court, Lexington, KY 

40508 (Certified Mail) 

Timothy Wells, Esq . , P.O . Box 447, Manchester, KY 40962 

(Certified Mail) 

jefw 

19 6 7 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

(303) 844-5267/FAX (303) 844-5268 

SEP 2 7 1993 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

WYOMING FUEL COMPANY, 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH. 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

EARL WHITE, employed by 

BASIN RESOURCES, INC., 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 92-340 

A.C. No. 05-02820-03621 

Docket No. WEST 92-384 

A.C. No. 05-02820-03627 

Golden Eagle Mine 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 93-186 

A.C. No. 05-02820-03657A 

Golden Eagle Mine 

DECISION 

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

u.s. Department of Labor, Denver, Colorado, 

for Petitioner; 

Charles w. Newcom, Esq. 0 Denver, Colorado, 

for Respondentso 

Before: Judge Morris 

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

Health Administration (MSHA), charges Respondent Wyoming Fuel 

Company with violating safety regulations promulgated under the 

Federal Mine Safety and Health Act, 30 u.s.c. section 801 et seg. 

(the "Act"). The Secretary further charges Respondent White with 

violating section 110(c) of the Act. 

A hearing was held on the merits in Denver, Colorado on 

May 26, 1993, and concluded on June 21, 1993. The parties filed 

post-trial briefs. 

The orders/citations in Docket Nos. WEST 92-340 and 

1968 
WEST 92-384 were issued to Wyoming Fuel Company as the mine 

operator for events that occurred on Sunday, June 23, 1991. 

However, it is uncontroverted that the Golden Eagle Mine was 

purchased by the owner of Basin Resources, Inc. from the owner of 

Wyoming Fuel Company on June 1, 1991. (Tr. 205-206). No issue 

was raised as to this facet of the case. 

In Docket No. WEST 93-186 the Secretary seeks a civil penalty, under section 110(c) of the Act, against Earl White employed by Basin Resources, Inc. 

In view of the above, references in this decision may be to 

Wyoming Fuel Company ("WFC") or Basin Resources, Inc. ("Basin") 

or Earl White ("White"). 

DOCKET NO. WEST 92-384 

CITATION NO. 3905711 

This citation, issued under Section 104(d) (2) of the Act, 

alleges a violation of 30 C.F.R. § 75.316. 1 The citation reads 

as follows: 

The methane, ventilation and dust control plan, 

approved April 16, 1991, was not in compliance in the 

northwest #1 longwall, MMU 009-0, in that page 3 of 

this addendum shows #3 headgate entry as a return air 

course. The air was redirected on 6-23-91 in this 

entry and it is now on intake and, in turn, the air is 

coursed through #1 and #2 bleeder entries toward the 

new proposed exhaust shaft. At the shaft, the air is 

coursed to #58 crosscut of the tailgate return. 

The regulation, Section 75.316, provides as follows: 

Section 75.316 Ventilation System and Methane and Dust 

Control Plan. 

(Statutory Provisions) 

A ventilation system and methane and dust control plan 

and revisions thereof suitable to the conditions and 

the mining system of the coal mine and approved by the 

Secretary shall be adopted by the operator and set out 

in printed form on or before June 28, 1970. The plan 

shall show the type and location of mechanical 

ventilation equipment installed and operated in the 

mine, such additional or improved equipment as the 

Secretary may require, the quantity and velocity of 

air reaching each working face, and such other 

information as the Secretary may require. Such plan 

shall be reviewed by the operator and the Secretary at 

least every 6 months. 

This section is now recodified at 30 C.F.R. S 75.370-372. 

1969 
DOCKET NO. WEST 93-340 

CITATION NO. 3244408 

This citation, issued under Section 104(a) of the Act, 

alleges a violation of 30 C.P.R. S 75.316 {cited above). The 

citation reads as follows: 

Methane in excess of 4.0\ and 5.0\ was present out by 

the Kennedy stoppings in crosscuts #62 and #63 between 

#3 and #4 entries on the #3 side of the northwest 

longwall tailgate area. Also, oxygen in amounts of 

17.1\ was measured with hand-held detectors at least 

four feet out by the stopping in #62 crosscut. Bottle 

samples were collected to substantiate this citation 

and order. 

This was the main contributing factor to the issuance 

of imminent danger order #3244407. Therefore, an 

abatement date was not set. 

Imminent Danger order No. 3244407 

This imminent danger orderwas issued immediately before 

citation No. 3244408. The order, issued under Section 107(a) of 

the Act, was not contested and it has become a final order of the 

Commission. 

The order itself reads as follows: 

An imminent danger existed in the tailgate area of the 

northwest longwall section in that methane (CH4) in 

amounts exceeding 4.0\ and 5.0\ were detected with a 

permissible methane detector out by the Kennedy 

stoppings in crosscuts #62 and #63 between #3 and #4 

entries of the tailgate. A violation of 75.329 C.F.R. 

30. 

DOCKET NO. WEST 93-196 

Secretary Vo Earl White 

Employed by Basin Resources, Inc. 

In this case the Secretary, pursuant to Section llO(c) of 

the Actu seeks civil penalties against Earl White, Respondentu 

for knowingly authorizing, ordering, or carrying out, as an agent 

of the corporate mine operator, the violations alleged herein. 

CITATION NO. 3905711 

DISCUSSION AND FINDINGS 

The critical issue in this citation is whether Basin and its 

manager, Earl White, were required to obtain approval from MSHA 

before implementing any ventilation changes. It is uncontroverted that no prior approval was obtained. 

1970 
On its face 30 C.F.R. § 75.316 does not require an operator 

to comply with a ventilation plan nor does it require prior 

approval before ventilation changes are made. However, the 

Commission has determined that "once the plan is approved and 

adopted, its provisions are enforceable as mandatory standards." 

Jim Walter Resources. Inc. 9 FMSHRC 903, 907 (May 1987); see also 

Zeigler Coal Co. v. Kleppe, 536 F.2d 398, 409 (D.C. Cir~ 1976); 

Carbon County Coal Co., 7 FMSHRC 1367, 1371 (September 1985); 

Penn Allegh Coal Co., 3 FMSHRC 2767, 2771 (December 1981). In an 

enforcement action before the Commission, the Secretary must 

establish that the provision allegedly violated is part of the 

approved and adopted plan and that the cited condition violated 

the provision. Jim Walter, 9 FMSHRC at 907. 

The pertinent portion of the ventilation plan is a letter 

dated November 15, 1990 addressed to Charles W. McGlothlin then 

Vice-President and General Manager of Wyoming Fuel Company. The 

letter reads, in part, as follows: 

RE: G,olden Eagle Mine 

ID No. 05-02820 

Dear Mr. McGlothlin: 

Ventilation System and Methane 

and Dust Control Plan 

The ventilation system and methane and dust control 

plan, dated September 10, 1990, october 3, 1990 and 

November 7, 1990, consisting of three cover letters, a 

48-page plan, and mine map, is approved in accordance 

with 30 CFR 75.316. The plan is subject to revision 

at any time and shall be reviewed by the operator and 

MSHA at least once every six months. Before any 

changes are made in the approved ventilation system, 

they shall be submitted to and approved by the 

District Manager prior to implementation. (Emphasis 

added) o 

The following amendment to the previously approved 

plan is also included in the approval: 

The Slope and Shaft Sinking Plan Amendment 

dated September 21, 1990. 

The map approval applies specifically to the 

provisions of 30 CFR Sections 75.316-1(a), 75.316-

2(!)(1), 75.330, 75.1200 and 75.1200-1. Evaluation of 

escapeways will be accomplished by an on-site 

inspection of the mine by an authorized representative 

of the Secretary. The escapeways shall be the most 

direct and practical route out of the mine and shall 

comply with the criteria in 30 CFR 75.1704.1. 

This plan supersedes the previously approved plan with 

an approval date of May 10, 1989 and all incorporated 

amendments, except as noted above. This approval, 

also, supersedes the conditional approval dated 

November 8, 1990. 

1971 
It is apparent that the underlined portion requires prior 

approval from MSHA before implementing any changes in the 

ventilation system. 

It is further uncontroverted that White made changes in the 

ventilation system without seeking prior approval. 

These changes were substantiated and best illustrated by two 

drawings made by witness Denning, prepared as ttbefore and after" 

illustrations (see Exhibits M-7 and M-8). Basically White 

changed a return aircourse in the No. 1 headgate to an intake 

aircourse. As a result of the change there was no return aircourse in the headgate. 

The Judge recognizes that White stated he was accustomed in 

his previous work to making ventilation changes and then submitting such changes to MSHA for approval. However, although he was 

only at the Golden Eagle Mine a short time he should have been 

familiar with the ventilation plan requirements. 

If the Commission accepts White's theory then the ventilation regulations would be meaningless. 

The Secretary established a prima facie violation of the 

ventilation plan because the prior notice requirement was a part 

of the plan and White, Basin's Vice-President and General Manager, failed to obtain approval from MSHA before implementing such 

changes. 

WFC argues the plan approval "cover letter" cannot be considered part of the plan for a number of reasons. 

WFC initially contends the letter addressed to Mr. McGlothlin is merely a 01 cover letter" and not part of the actual plan. 

I disagree. The letter itself identified the document as 

the Golden Eagle Mine ventilation plan. An amendment is specifically included in the "cover letter", "Escapeways" are also incorporated: "they shall comply with the criteria in 30 C.F.Ro 

7!5o1704ola 00 There appears to be no reason to conclude that "page 

2 of 46" is not part of the ventilation plan for the Golden Eagle 

Mine. However, I recognize that MSHA's use of a cover letter to 

impose ventilation amendments on an operator has been criticized. 

Basin further asserts that MSHA witnesses testified as to 

three alternatives to trigger the prior approval requirement. 

Some MSHA witnesses draw a distinction between "major" and 

"minor" changes. (Tr. 176-178, 189-190}. Inspector Jordan 

contended that prior approval was required for "all changes." 

(Tr. 28, 45). 

1972 
I decline to support any argument that requires prior MSHA 

approval only for "major", but not for minor changes. 

Commission Judges have routinely ruled that any deviation 

from the ventilation plan, even temporary or inadvertent, is a 

violation of 75.316. 

In Consolidation Coal Company, 3 FMSHRC 2207 (September 

1981), Judge Melick affirmed a violation of§ 75.316, for the 

failure by the operator to ventilate an entry with a line curtain. Although the evidence established that the curtain had 

been in place 2 1/2 hours prior to the issuance of the citation, 

but had been taken down for some unexplained reason, the judge 

found that the absence of the curtain at the time the citation 

was issued was a violation. See also: Windsor Power House Coal 

Company, 2 FMSHRC 671 (March 1980~ommission review denied 

April 21, 1980 (Judge Melick affirmed a violation of S 75.316 

because of the operator's failure to maintain adequate ventilation at a working face as required by its ventilation plan); Coop 

Mining Company, 5 FMSHRC 2004 (November 1993) (affirmed a violation of § 75.316, because of an operator's failure to install a 

line curtain as required by its ventilation plan. Although the 

judge considered the fact that the curtain may have been down fo~ 

only a short time due to possible rib sloughage, he ~ound that 

such an unusual occurrence was no defense); Mid-Continent Coke 

and Coal, 3 FMSHRC 2502 (November 1981) (a temporary halt in 

mining to permit other activities does not interrupt ventilation 

requirements) and U.S. Steel Mining Company, 12 FMSHRC 1390 (July 

1990) (violation found where curtain was not required distance 

from face). 

Basin further claims that MSHA cannot unilaterally establish 

plan provisions by adding requirements to transmittal letters 

because plans are the subject of negotiation between MSHA and the 

operator. 

I agree that the approval and adoption process is bilateral 

involving consultation, discussion and negotiation between the 

parties mutually agreeing to ventilation plans suitable to specific conditions at particular mines. Jim Walter Resources Inc. 

9 FMSHRC at 907. However, in the instant cases there is no evidence the parties ever engaged in any such negotiations. In 

short 0 evidence is necessary to support these bare allegations by 

Basin. 

Basin also contends it had no notice of the plan requirements because it could not locate the cover letter in its file 

and it was not produced in discovery. (Tr. 362-363, 405-406). 

The prior notice requirement was contained in MSHA's letter 

of November 15, 1990, addressed to Charles W. McGlothlin (Ex. 

1973 
M-1, page "2 of 46"}. A subsequent letter dated April 3, 1991, 

states in part "This amendment will be incorporated into the 

current ventilation plan originally approved on November 15, 1990 

" The subsequent letter indicates that the letter of November 15, 1990, was sent to WFC. Approvals of this type are transmitted in the regular course of business to the operator and 

various MSHA offices. (Tr. 130). In this situation Basin adopted the previous owner's plans. (Tr. 131). 

Basin further observes that the new ventilation regulations, 

which were adopted after the events in this case, expressly 

require prior approval. 2 As a result Basin argues the elementary rules of statutory construction compel a conclusion that the 

regulation as it existed did not require prior approval by MSHA. 

I agree that the regulation itself, 30 C.F.R. § 75.316, does 

not require prior approval by MSHA. However, the plan itself 

requires such prior approval. As a result the rules of statutory 

construction are not controlling. 

Finally, Basin argues that MSHA's position is undercut when 

its other regulations provide for immediate changes especially 

when methane reaches certain levels e.g., see 30 C.F.R. 

§ 75.308; 309(a); 316-2(d). 

Basin's arguments are rejected. MSHA may properly address 

particular hazards (such as methane) with specific detailed regulations. Such particularized regulations do not prevent the 

enforcement of ventilation plans. 

SIGNIFICANT AND SUBSTANTIAL 

A "significant and substantial" violation is described in 

section l.04(d){1) of the Mine Act as a violation "of such nature 

as could significantly and substantially contribute to the cause 

and effect of a coal or other mine safety or health hazard." A 

violation is properly designated significant and substantial "if, 

based upon the particular facts surrounding the violation there 

2 The new regulation, 30 C.F.R. S 75.370, provides as follows: 

(c) No proposed ventilation plan shall be 

implemented before it is approved by the 

district manager. Any intentional change 

to the ventilation system that alters the 

main air current or any split of the main 

air current in a manner that could materially affect the safety and health of the 

miners, or any change to the information 

required in S 75.371 shall be submitted to 

and approved by the district manager before 

implementation. 

1974 
exists a reasonable likelihood that the hazard contributed to 

will result in an injury or illness of a reasonably serious 

nature." Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 

(April 1981) . 

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

Commission explained its interpretation of the term "significant 

and substantial" as follows: 

In order to establish that a violation of a 

mandatory safety standard is significant and 

substantial under National Gypsum the Secretary of 

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

mandatory safety standard, (2) a discrete safety 

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

contributed to by the violation; (3) a reasonable 

likelihood that the hazard contributed to will result 

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

injury in question will be of a reasonably serious 

nature. 

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

1129, the Commission stated further as follows: 

We have explained further that the third element of 

the Mathies formula "requires that the Secretary 

establish a reasonable likelihood that the hazard 

contributed to will result in an event in which there 

is an injury." u.s. Steel Mining co., 6 FMSHRC 1834, 

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

accordance with the language of section 104(d)(1}, it 

is the contribution of a violation to the cause and 

effect of a hazard that must be significant and 

substantial. u.s. steel Mining Company, Inc., 6 

FMSHRC 1866, 1868 (August 1984); u.s. steel Mining 

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

MSHAus principal and most knowledgeable witnesses were 

Messrso Jordan and Denning. 

Mr. Jordan testified this citation was an "S&S" violation. 

He did so because "anything that has the potential for serious 

injury or bodily harm is automatically significant and substant:ialo 00 {Tr. 40). Mr. Jordan further stated it had the potential • o o 00 and it is only a "guesstimate" of what can occur when it 

[air reversal] is done in this manner." (Tr. 40). It is apparent that Mr. Jordan's definition of "S&S" conflicts with the 

Commissionfs view. 

Mr. Denning, MSHA's ventilation expert, testified that 

reversing the air without approval could cause "unknown changes" 

in the ventilation and cause methane to accumulate "in unknown 

areas." {Tr. 141). 

1975 
However, Mr. Denning elaborated on this condition as 

follows: 

A. It's apparent that the change caused the 

ventilation pressures to be redistributed so that the 

methane accumulates at the tailgate entries and not 

only the change of the direction of air in the air 

course, but the removal of the stoppings that were 

cited in the imminent danger order at crosscuts 62 and 

63. (Tr. 142). 

As noted above the Secretary's experts failed to testify 

there was "a reasonable likelihood that the hazard contributed to 

will result in an injury." In short, the third facet of the 

Mathies formulation was not established. 

However, it is necessary to consider imminent danger Order 

No. 3244407. Section 3(j) of the Mine Act defines an imminent 

danger as "the existence of any condition or practice in a coal 

or other mine which could reasonably be expected to cause death 

or serious physical harm before".such condition or practice can be 

abated ..•• " 30 u.s.c. § 802(j). In Rochester & Pittsburgh Coal 

Co., 11 FMSHRC 2159 (November 1989) {"R&P"), the Commission 

reviewed the precedent analyzing this definition and noted that 

"the u.s. Courts of Appeals have eschewed a narrow construction 

and have refused to limit the concept of imminent danger to 

hazards that pose an immediate danger." 11 FMSHRC at 2163 

(citations omitted). It noted further that the courts have held 

that "an imminent danger exists when the condition or practice 

observed could reasonably be expected to cause death or serious 

physical harm to a miner if normal mining operations were permitted to proceed in the area before the dangerous condition is 

eliminated." Id., quoting Eastern Associated Coal Corp. v. 

Interior Bd. of Mine Op. App., 491 F.2d 277 1 278 (4th Cir. 1974). 

See also Wyoming Fuel Company, 14 FMSHRC 1296 (August 1992) ; Utah 

Power & Light Co.v 13 FMSHRC 1617 (October 1991). 

Imminent danger Order No. 3244407 was issued immediately 

before Citation No. 3244408 and that became a final order of the 

Commission. The order establishes the reasonable likelihood that 

the methane concentration will result in an injury. 

The S&S allegations as to Citation No. 3905711 should be 

affirmed. 

UNWARRANTABLE FAILURE 

In Emery Mining Corp., 9 FMSHRC 1997, 2000-2004 (December 

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

(December 1987), the Commission held that "unwarrantable failure 

means aggravated conduct, constituting more than ordinary negligence, by a mine operator in relation to a violation of the Act." 

This conclusion was based on the ordinary meaning of the term 

1976 
"unwarrantable failure," the purpose of unwarrantable failure 

sanctions in the Mine Act, the Act's legislative history, and 

judicial precedent. The Commission stated that while negligence 

is conduct that is "inadvertent", "thoughtless," or "inattentive," conduct constituting an unwarrantable failure is conduct 

that is "not justifiable" or "inexcusable." Emery, supra, 9 

FMSHRC at 2001. 

The Commission has held that there cannot be an unwarrantable failure resulting from a good faith, although mistaken 

belief that its actions were in compliance with regulations. 

Utah Power & Light Company 12 FMSHRC 965, 972 (May 1990), aff'd 

951 F.2d 292 (lOth Cir, 1991}, Cyprus Tonopah Mining Corporation 

15 FMSHRC 367, 375-377 (March 1993). 

Mr. White did not believe that 30 C.F.R. § 75.316 required 

that he obtain prior approval from MSHA before implementing 

changes in the ventilation system. This belief, shared by 

Thompson, was based on the language in the regulations and his 

previous experience. (Tr. 416-417). 

I conclude this evidence is credible. Mr. White and his 

crew changed the ventilation system on Sunday, June 23, 1991. He 

called Mr. Jordan the next day to advise him of the change. 

Further, White felt he could have been cited for failing to 

correct the problems in the ventilation system. (For apparent 

problems in the system, see Exhibit BR-1). Several recent 

decisions find that insufficient air velocity violated the 

operator's ventilation plan support White's concerns in this 

regard. Bethenergy Mines, Inc., 15 FMSHRC 1200 June 23, 1993, 

(Weisberger, ALJ); Energy West Mining Company, 15 FMSHRC 1185 

June 21 0 1993 (Lasher 0 ALJ). 

The Secretary asserts the unwarrantable failure allegations 

should be sustained because White ignored statements by his two 

deputies (Salazar and Huey) that MSHA should be notified. Further, witness Gossard advised company representatives of the 

necessity of prior notification as it related to an explosion in 

the Golden Eagle Mine in 1991. 

It is true that Salazar and Huey told White 'prior notification was necessary. But at this point White sent Perko (Safety 

Department) for a copy of Part 75. White read Part 75 and stated 

(according to both Salazar and Huey) 11 Show me in the book where 

it says I have to notify MSHA of this change" (Salazar at 64; 

Huey at 81). Huey also confirmed that White read Part 316 

[30 C.F.R. S 75.316]. He indicated there wasn't anything there 

saying he couldn't make the ventilation changes (Huey at 81). 

The evidence also shows that Ronald J. Gossard was assigned 

to head up an MSHA team to investigate the MSHA Golden Eagle mine 

1977 
explosion that occurred in February 1991. At the close out 

conference, ventilation changes were discussed. 

I give Mr. Gossard's testimony zero weight because Basin had 

not yet acquired the Golden Eagle Mine. Mr. Gossard's last trip 

to the mine was in March 1991 and he had no knowledge of the 

practices followed by Basin (Tr. 203). White took over his current position on June 1, 1991 when Entech (Basin) acquired the 

Golden Eagle Mine. (Tr. 206). 

There was no unwarrantable failure because the operator 

through its manager had a good faith honest belief that he was 

complying with the regulations. 

The allegations of unwarrantable failure should be stricken. 

CITATION NO. 3244408 

DISCUSSION AND FURTHER FINDINGS 

At issue here, separate from the dispute involving Mr. 

White's changes in the ventil'ation ··system, is whether the methane 

levels that were detected by Inspectors Jordan and Phelps, when 

they went underground on the afternoon of Tuesday, June 25 constitute a violation. 

It is uncontroverted that Inspector Jordan took his readings 

four feet outby the stoppings at Crosscut 62 and 63. (Tr. 47). 

The methane averaged 4 to 5 percent and above. (Tr. 35). The 

measurement location was supported by the test results which also 

reflect that they were taken four feet from the stoppings. (Ex. 

M-5) • Although Jordan could not tell how far he was from the 

entry, White testified the stoppings are 60 feet from the 

entries. (Tr. 350). 

Basin asserts that the mixing point where the measurement 

should take place is at the intersection of the bleeder taps and 

the return air entries, not the stoppings in the bleeder taps. 

As White explained, methane levels in the bleeder taps are 

naturally going to be higher as the methane coming off the gob is 

diluted on its way to the return air entries in the bleeder 

system. (Tr. 350). Air is traveling up the entry and the 

bleeder taps are at 90 degrees. As the methane comes off the 

gob, the air mixes with it and dilutes it below 2 percent. {Tr. 

350Q 351). There is no hazard in the reduction at that point and 

all the coal mines in the world work in that fashion. (Tr. 351). 

1978 
The ventilation plan provides as follows: 

The methane content in the air in active workings 

(except those active work areas specifically addressed 

elsewhere in the plan or in 30 CFR 75) shall be less 

th~n 1.0 volume per centum. If at any time the air in 

any of these active workings contains 1.0 volume per 

centum or more of methane, changes or adjustments 

shall be made at o~ce in the ventilation in the mine 

so that air shall contain less than 1.0 volume per 

centum of methane. (Ex. M-1, page "14 of 46"). 

The methane content in any return aircourse, other 

than an aircourse returning the split of air from a 

working section, shall not exceed 2.0 volume per 

centum. (Ex. M-1, page "15 of 46"). 

The Secretary's regulations 30 C.F.R. § 75.309-2 Location of 

Methane Test provides as follows: 

The methane content in a split of air 

returning from any working section shall 

be measured at sueh point or points where 

methane may be present in the air current 

in such split between the last working 

place of the working section ventilated by 

the split and the junction of such split 

with another air split or the location at 

which such split is used to ventilate 

seals or abandoned areas. Tests to 

determine the methane content of such 

split shall be made at a point not less 

than 12 inches from the roof or ribs." 

Similarly, 30 C.F.R. S 75.316-2, 

Criteria for approval of ventilation 

system and methane and dust control plan, 

states in subpart (i), "When the return 

aircourses from all or part of the bleeder 

entries of a gob area and air other than 

that used to ventilate the gob area is 

passing through the return aircourses, the 

bleeder connectors between the return 

aircourses and the gob shall be considered 

as bleeder entries and the concentration 

of methane should not exceed 2.0 volume 

per centum at the intersection of the 

bleeder connectors and the return 

aircourses. 

The Secretary has several regulations dealing with location 

of methane tests. 

However, the Judge believes the above provisions should be 

read in conjunction with 30 C.F.R. § 75.310-3 which provides as 

follows: 

1979 
S 75.310-3 Location of methane tests. 

The methane content in a split of air returning from 

any active workings of a mine shall be measured at 

such point or points where methane may be present in 

the air current in such split between the last working 

place ventilated by the split and the junction of such 

split with another air split or at a point where such 

split is used to ventilate seals or abandoned areas. 

Tests to determine the methane content of such split 

shall be made at a point not less than l2 inches from 

the roof or ribs. 

Stripped of its surplusage, 30 C.F.R. S 75.310-3 reads: 

"The methane content shall be measured at a point where such 

split is used to ventilate seals." 

The cited section indicates Inspector Jordan measured the 

methane at the proper location and manner. 

Basin's reliance on Island Creek Coal company 15 FMSHRC 339 

(March 1993) is misplaced. In,Island Creek Coal Company the 

Commission affirmed the Judge's order vacating the citation because there was no evidence that an explosive concentration of 

methane was entering the mine. In the instant case a 4 to 5 

percent concentration of methane existed outby the stoppings. 

Citation No. 3244408 should be affirmed. 

SIGNIFICANT AND SUBSTANTIAL 

The S&S factors as established by the case law are set forth 

above. 

The evidence shows that the methane was found while the mine 

was deenergizedu no workers were present and it occurred in a 

non-working area of the mine. There was no evidence of any 

ignition sources. 

In view of these facts the S&S allegations should be 

stricken. 

UNWARRANTABLE FAILURE 

The case law as to unwarrantable failure is set forth in 

connection with the prior citation. 

The evidence does not support unwarrantable failure and said 

allegations are stricken. 

1980 
DOCKET NO. WEST 93-186 

SECRETARY V. EARL WHITE 

In this case the Secretary seeks a civil penalty against 

Earl White, Basin Manager and Vice-President, under Section 

110(c) of the Act. 

Section 110(c) provides: 

(c) Whenever a corporate operator violates a 

mandatory health or safety standard or knowingly 

violates or fails or refuses to comply with any order 

issued under this Act or any order incorporated in a 

final decision issued under this Act, except an order 

incorporated in a decision issued under subsection (a) 

or section lOS(c}, any director, officer, or agent of 

such corporation, who knowingly authorized, ordered, 

or carried out such violation, failure, or refusal 

shall be subject to the same civil penalties, fines, 

and imprisonment that may be imposed upon a person 

under subsections (a) and (d). · 

In Bethenergy Mines, Inc. et al., 14 FMSHRC 1232 the Commission restated its views that a corporate agent "who knowingly 

authorized, ordered, or carried out •.• [a] violation" committed 

by a corporate operator may be subject to individual liability 

under section llO(c) of the Mine Act. The proper legal inquiry 

for purposes of determining liability under section 110(c) of the 

Act is whether the corporate agent "knew or had reason to know" 

of a violative condition. Secretary v. Roy Glenn, 6 FMSHRC 1583, 

1586 (July 1984), citing Kenny Richardson, 3 FMSHRC 8, 16 (January 1981). In Kenny Richardson, the Commission stated: 

If a person in a position to protect employee safety 

and health fails to act on the basis of information 

that gives him knowledge or reason to know of the 

existence of a violative condition, he has acted 

knowingly and in a manner contrary to the remedial 

nature of the statute. 

3 FMSHRC at 16. In order to establish section 110(c) liability, 

the Secretary must prove only that the individuals knowingly 

acted not that the individuals knowingly violated the law. Cf.g 

~~ United States v. International Minerals & Chemical Corp., 

402 U.S. 558 9 563 (1971). 

Further, the Commission reaffirmed its previous holding that 

a 01 knowing" violation under section 110(c) involves aggravated 

conduct, not ordinary negligence, Bethenergy, 14 FMSHRC at 1245. 

The evidence as to White has been previously reviewed. His 

conduct was not "aggravated." 

Accordingly the llO{c) is DISMISSED. 

1931 
CIVIL PENALTIES 

The statutory criteria to assess civil penalties is 

contained in section 110(i) of the Act. 

The proposed assessment indicates the Golden Eagle Mine 

produced 591,944 tons. 

Further, the penalties assessed should not affect the 

operator's ability to continue in business. 

As to its history, the operator, Basin Resources, was 

assessed eight violations for the period from June 1, 1991 to 

June 24, 1991. (Ex. M-6). 

The operator was negligent as to both citations. The 

company should have known prior MSHA approval was required to 

change ventilation. It should also have ant~cipated the methane 

concentrations would accumulate in the mine. 

The gravity of the violations should be considered as high. 

The change in the ventilation caused the methane to locate in a 

different location. 

The operator demonstrated good faith in promptly abating the 

violative condition. 

The penalties set forth in this order are appropriate. 

For the reasons herein I enter the following: 

ORDER 

1() WEST 92-384~ 

Citation No. 3905711, as modified, is affirmed and a 

civil penalty of $300 is assessed. 

2. WEST 93-340: 

Citation No. 3244408 0 as modified, is affirmed and a 

civil penalty of $400 is assessed. 

3. WEST 93-196: 

The llO(c) case is dismissed. 

Law Judge 

1982 
Distribution: 

Margaret A. Miller, Esq., Office of the Solicitor, U~S. Department of Labor, 1585 Federal Building, 1961 Stout Street, Denver, 

Colorado 80294 (Certified Mail) 

Charles w. Newcom, Esq., SHERMAN & HOWARD, 3000 First Interstate 

Tower North, 633 17th street, Denver, co 80202 (Certified Mail) 

sh 

1983 
PEDERAL KINE SAFETY AND HEALTH REVIEW COKKISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

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

SECRETARY OF.LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Petitioner 

v. 

KONITZ CONTRACTING, INC., 

Respondent 

SEP 2 71993 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 92-607-M 

A.C. No. 24-01813-05508 

Portable Crusher #2 

Appearances: Susan J. Eckert, Esq., Office of the Solicitor, 

u.s. Department of Labor, Denver, Colorado, 

for Petitioner; 

William E. Berger, Esq., Lewistown, Montana, 

for Respondent. 

Before: Judge cetti 

The Secretary of Labor (Secretary) in this civil penalty 

proceeding charges the Respondent, Kanitz Contracting Inc. 

(Konitz)u the owner and operator of two portable crushers, with 

the violation of ten (10) mandatory safety regulations promulgated under the Federal Mine Safety Act of 1977, 30 U.S.Ce § 801 et 

sego {the Act) o 

Respondent filed a timely answer contesting the existence of 

eight (8} of the alleged violations. Pursuant to notice a hearing was held before this Judge at Livingston, Montana on July 20 0 

1993o Oral and documentary evidence was introduced by the 

partiesu oral closing arguments were presented and filing of 

briefs were waived by both parties. This matter was submitted 

for decision with the filing of the transcript of the hearing on 

July 28 0 1993o 

STIPULATIONS 

At the hearing the parties entered into the record stipulations as follows: 

1. Kanitz Contracting, Inc. is engaged in mining and selling of sand and gravel in the United states, and its mining operations affect interstate commerce. 

1984 
2. Konitz Contracting, Inc. is the owner and operator of 

the Portable Crusher #2, MSHA I.D. No. 24-01813. 

3. Konitz Contracting, Inc. is subject to the jurisdiction 

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

SS 801 et ~ ("the Act"). 

4. The Administrative Law Judge has jurisdiction in this 

matter. 

5. The subject citations were properly served by a duly 

authorized representative of the Secretary upon an agent of Respondent on the dates and places stated therein, and may be 

admitted into evidence for the purpose of establishing their 

issuance, and not for the truthfulness or relevancy of any 

statements asserted therein. 

6. The exhibits to be offered by Respondent and the Secretary are stipulated to be authentic but no stipulation is made as 

to their relevance or the truth of the matters asserted therein. 

7. The proposed penalties will not affect Respondent's 

ability to continue in business. 

B. The operator demonstrated good faith in timely abating 

the violations. 

9. Konitz Contracting, Inc. is a small mine operator with 

5657 hours worked in 1991. 

10. Respondent's history of previous violations is average 

for an operator of its size. 

lo The certified copy of the MSHA Assessed Violations History accurately reflects the history of this mine for the two 

years prior to the date of the citations. 

Citation No. 3631657 

This citation charges Konitz with the violation of 30 C.F.R. 

§ 56.18014 which is a mandatory safety standard requiring the 

operator to make advance arrangements for emergency medical 

assistance and emergency transportation for injured persons. The 

cited safety regulation reads as follows: 

30 C.F.R. § 56.18014 

Arrangements shall be made in advance for 

obtaining emergency medical assistance and 

transportation for injured persons. 

{Emphasis added). 

1985 
The narrative allegation of Citation ~o. 3631657 reads as 

follows: 

Advance arrangements were not made to 

assure that emergency medical assistance and 

transportation would be provided at the mine 

site in the event of an injury of an 

employee. 

Ronald S. Goldade, a federal Mine Safety and Health 

Inspector, working out of the Helena, Montana MSHA field office 

testified substantially as follows: 

The field office in Helena makes inspections throughout the 

entire state of Montana. Approximately 70 to 80 percent of his 

inspection duties consist of inspecting portable rock crushers 

operating in Montana. Portable crushers are very mobile. Parts 

of the conveyor systems .are on wheels or can be picked up and put 

on flatbed semi-trailers and transported to different locations 

in a minimal amount of time. . .. Often. people in the area are 

unaware of the presence of a portable crusher operating in their 

area. Typically most portable crushing units stay in one place 

in remote areas for only a week or two. 

Under the provision of the cited safety standard it is 

expected that an operator of a portable crusher located in a 

remote area will have his foreman or whoever's in charge, prior 

to start up, contact the nearest town with ambulance service to 

make sure that the sheriff's department or whoever's responsible 

for the emergency medical assistance in the area knows the 

location of the site of the crusher operation. 

The inspector stated that a lot of these small towns in 

Montana don't have full staff ambulance service and many are 

dispatched .through the sheriff's department. By advance contact 

the operator is assured of learning the procedure and the method 

of communication needed to obtain emergency medical service and 

transportation when it is needed. 

Turning from the general to the specifics in this case~ 

Inspector Goldade testified he was instructed by his field office 

supervisor in April of 1992 to travel to Red Lodge, Montana area 

and make a regular inspection of the crushing Plant Number 2 

which has a mine I.D. No. 24-01813. 

The inspector drove to Red Lodge, a small town with a 

population of 2,000 located in the southwest corner of Montana, 

approximately 50 miles south of Billings which is the largest nearby city. · 

The inspector located Portable crusher No. 2 about 7 miles 

from Red Lodge. The crusher was set up in the middle of a field 

1986 
on a private ranch about 1/2 to one mile off a county road. On 

arriving at the site the inspector made a regular inspection. He 

found a number of violations and based on his inspection issued 

the 10 citations involved in this docket. 

Inspector Goldade talked to the foreman, Ken Bowser, who was 

present and in charge of the operation at the site. It is undisputed that Ken Bowser had been the operator's foreman in charge 

of crusher operations for the past 14 years. Foreman Bowser told 

the inspector that no advance arrangements had been made for 

obtaining emergency medical assistance and transportation at the 

mine site in the event of an injury requiring such assistance. 

Mr. Torn Kanitz, called by Respondent's counsel, testified 

that he was the owner and president of Kanitz Contracting, Inc. 

He has been in the business of operating portable rock crushers 

since he bought Portable Rock crushers No. 1 and No. 2 in 1979. 

Mr. Kanitz stated that he is aware of the cited regulation 30 

C.F.R. § 56.18014 and believed he had complied with it by posting 

on the bulletin board inside the crusher van the phone number of 

the sheriff's department and all other emergency phone numbers 

required by 30 C.F.R. § 56. 18012. (It is undisputed that Kanitz 

was not cited for this latter safety standard.) 

Kanitz stated that the portable crusher is moved frequently 

over long distances in Montana, most of the time in rural, 

sparsely populated areas. At the time of the inspection the 

crusher was set up in a field on a private ranch. The crusher 

was set up and operating about half a mile off Highway 99 and 

could be seen from the highway. In the event a need for 

emergency medical service arose, it was Kanitz's policy to have 

the foreman go to the closest farmhouse with a phone and dial the 

sheriff's office or 911. Konitz stated he has never done more 

than this the past 14 years before this citation was issued and 

had never been previously cited for violation of the safety 

standard in question. Evidence was presented that the closest 

phone to the crusher site was at a farmhouse across the road 91 approximately a mile or two at the most 11 from the crusher site. 

Konitz stated he assumed the farmhouse was not locked but did not 

know whether it was locked or not or whether anyone would be at 

the farmhouse in the event emergency use of the phone was needed. 

Konitz stated that since the issuance of the citation he has 

contacted ambulance service and hospitals with unimpressive 

results. He stated sometimes they'll listen and "take the 

information down 11 and "sometimes they'll not show much.interest." 

He stated "they advertise throughout the state (Montana) that the 

911 and .the sheriff's office 11 is the correct way to.obtain 

emergency assistance in the rural areas of Montana. 

Inspector Goldade stated he has no problem with Mr. Kanitz 

calling the sheriff's office as his 11 first avenue of contact" 

1987 
before operating the crusher in a remote area, giving the 

location of the crusher site and determining in advance of 

starting operations at the new site the procedures needed to 

obtain the emergency medical services specified in the cited 

safety standard. 

DISCUSSION AND CONCLUSION 

It is Respondent's position that he was complying with the 

cited safety standard by posting on the bulletin board that is 

kept in the crusher van the appropriate sheriff's department and 

other emergency phone numbers. This may well have satisfied the 

requirements of C.F.R. S 56.18012 but not the clear mandate of 

the cited standard 30 C.F.R. S 56.18014 that arrangements must be 

"made in advance" for obtaining emergency medical assistance and 

transportation for an injured person. A crusher operator must 

comply with both safety standards. Compliance with one safety 

standard is not a defense to the violation of the other safety 

standard. A reasonably prudent person would have recognized this 

in view of the clear, plain language of both of these safety 

standards. The safety standardcited clearly requires that the 

arrangements for emergency medical assistance and transportation 

for an injured person must be 11made in advance" of starting 

operations at a new mine site. 

The evidence presented establishes a violation of the clear 

mandate of the 30 C.F.R. S 56.18014. The citation is affirmed. 

PENALTY 

Respondent is a small mine operator. I concur in the 

inspector's evaluation of the operator's negligence as moderate 

since the operator should have been aware of the requirements of 

the cited safety standard. on consideration of all the statutory 

criteria in section 110(i) of the Act I conclude that the appropriate penalty in this case for Respondent's failure to make the 

required arrangements in advance, is the $50 penalty proposed by 

MSHA. 

DISPOSITION OF THE REMAINING CITATIONS 

On the record the parties at the hearing advised that they 

had reached an amicable settlement of the remaining nine citations in this docket and jointly offered for approval an agreement covering these citations. 

Under the proposal offered for approval the Respondent 

agrees to pay in full the MSHA proposed penalties of $50 for each 

of the violations alleged in Citation Nos. 3631649, 3631652, 

3631654, 3631655 and 3631656 totaling $250. At least two of the 

$50 penalties in the sum of $100 have already been paid. 

1988 
In addition, the Petitioner moves for leave to vacate four 

of the citations on the grounds of insufficient evidence. These 

citations are Citation Nos. 3631648, 3631650, 3631651 and 

3631653. 

I have considered the evidence, the representations and the 

stipulations received at the hearing and I conclude that the 

proffered settlement of the remaining nine citations referenced 

above is appropriate under the criteria set forth in section 

110(i) of the Act and it is approved. 

ORDER 

1. Citation Nos. 3631648, 3631650, 3631651 and 3631653 are 

VACATED. 

2. Citation Nos. 3631649, 3631652, 3631654, 3631655, 

3631656 and 3631657 are AFFIRMED and a civil penalty of $50 is 

assessed for each of these violations. 

3. RESPONDENT SHALL PAY a civil penalty in the sum of $300 

to the Secretary of Labor within 40 days of this decision and 

order with full credit for all payments that have been previously 

made. 

Distribution: 

st F. Cetti 

inistrative Law Judge 

Susan J. Eckert, Esq., Office of the Solicitor, u.s. Department 

of Labor~ 1585 Federal Building, 1961 Stout street 8 Denver, co 

80294 (Certified Mail) 

William E. Berger, Esq., P.O. Box 506, Lewistown, MT 59457 

(Certified Mail) 

sh 

1989 
MELVIN.FULTZ, 

v. 

OffiCE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

fALLS CHURCH, VIRGINIA 22041 

Complainant 

StP 2 91993 

DISCRIMINATION PROCEEDING 

: Docket No. PENN 93-198-D 

MSHA Case No. WILK CD 93-03 

HARRIMAN COAL CORPORATION, 

Respondent 

. . 

Appearances: 

Before: 

DECISION 

Melvin Fultz, 30 Spring Street, Tremont, Pcnncylva~ia, pro se; 

Mark Semanchik, Esq., Lipkin, Marshall, 

Boharad and Thornburg, Pottsville,· 

Pennsylvania, .for Harriman Coal Corporation 

Judge Melick 

At hearings, the Complainant herein, Melvin Fultz, failed 

to present any evidence that he had any employment or other 

relationship to the Respondent, Harriman Coal Corporation, or 

that such corporation caused any damages cognizable under 

Section 105{c)(1) of the Federal Mine Safety and Health Act 

of 1977, the "Act. '' 1 . In a\lelition, while Mr. Fultz testified 

section 105(c)(1) of the Act provides as follows~ 

e'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 0 representative of miners or applicant for 

employment has filed or made a complaint under or related to 

this Act 0 including a complaint notifying the operator or the 

operator 1 s agent, or the representative of the 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 such 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 the Act." 

1990 
at hearing that the Rausche Creek Contracting Company (though 

not served as a party to this proceeding) failed to compensate 

him for time lost due to injuries sustained while working for 

said company he has not alleged any precipitating activity 

protected under Section 105(c)(1) of the Act. Accordingly, for the above reasons, this case is DISMISSED. 

ORDER 

Discrimination Proceeding Docket No. PENN 9 -198-D is 

hereby DISMISSED. 

Distribution: 

Administ 

G'ry Mel~~ ... \five 

Melvin Fultz, 30 Spring Street, Tremont, PA 17981 (Certified 

Mail) 

Mark Semanchik, Esq., Lipkin, Marshall, Boharad and Thornburg, 

One Norwegian Plaza, P.O. Drawer K, Pottsville, PA 17901 

(Certified Mail) 

/lh 

1991 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1Oth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 2 91993 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), ON 

BEHALF OF DONALD B. CARSON, 

Complainant 

v. 

JIM WALTER RESOURCES, INC., 

Respondent 

DECISION 

Docket No. SE 93-109-D 

BARB CD 92-38 

No. 4 Mine 

Appearances: William Lawson, Esq., Office of the Solicitor, 

u. s. Department of Labor, Birmingham, Alabama, for 

the Secretary; 

R. Stanley Morrow, Jim Walter Resources, Inc., 

Brookwood 1 Alabama, for Respondent. 

Before: Judge Maurer 

STATEMENT OF THE CASE 

The Secretary brings this case on behalf of Donald B. Carson 

and claims that Carson was unlawfully discriminated against in 

violation of section 105(c) of the Federal Mine Safety and Health 

Act of 1977, 30 u.s.c. § 801 et seg. (the Act), in that he was at 

least impliedly threatened with the loss of his job for engaging 

in protected safety-related activity. 

Pursuant to notice, a hearing was held on the merits of this 

case on May 25, 1993, in Hoover, Alabama. Subsequently, the 

parties have both filed posthearing arguments which I have 

considered in the course of my adjudication of this matter. I 

make the following decision. 

FINDINGS OF FACT 

1. At all times relevant to this complaint, Carson was 

employed by respondent at their No. 4 Mine; he has been employed 

at the respondent's No. 4 Mine for approximately 17 years and has 

served on both the safety committee and grievance committee 

during that period of time, although he no longer does so. 

1992 
2. on June 3, 1992, carson was assigned to work in a 

relatively remote section of the mine (Southwest bleeders) 

repairing seals. He spent the entire shift in that area 

rebuilding a seal, and at times experienced some lightheadedness 

and nausea of unknown etiology. Prior to leaving this area at 

the end of his shift, he walked down to where the next sealed 

area was to be built, thinking that the next shift would probably 

finish-up the seal he had been working on and start on the next 

one. In that area, he observed adverse roof conditions in that 

there were roof channels or mats broken and the roof was sagging. 

Upon leaving the mine, Carson went to the safety office and 

informed David Millwood and Ronnie Smith, who are UMWA Safety 

committeemen, of the unsafe roof conditions he had found in the 

mine. 

3. At the same time as Carson was relating his tale about 

the adverse roof conditions to·the safety committeemen, MSHA Coal 

Mine Inspector Bill Deason was also in the mine's safety office. 

He overheard the conversation and became concerned about miners 

being in the area, not only because of the roof conditions he was. 

hearing about, but because he knew that he had previously issued 

a citation in that area for low oxygen. 1 Deason queried Carson 

about who, if anyone, had preshifted the area and about whether 

he had had a co monitor or a methane detector with him while he 

was working in that area. As far as Carson knew, no one had 

preshifted the area and he had none of the aforementioned 

equipment with him. After inspecting the area himself and 

discussing the situation with management, Inspector Deason issued 

two section 104(d) (2) orders; one for failure to conduct a 

preshift examination and a second for failure to comply with the 

mine 1 s ventilation plan. 

4o Carson returned to work the next night and found out 

that the two aforementioned orders had been issued by Inspector 

Deason after he left the previous morning. Towards the end of 

his shift, he was approached by Bob O'Malley, the owlshift mine 

foreman, who purportedly told him that what he did was 11 low-down 

and dirty" and that he no longer respected him. Carson then 

asked O'Malley what he was talking about and O'Malley replied 01 you know what I'm talking about, its about the seals." Carson 

Inspector Deason issued section 104(a) Citation 

No. 3016975 on May 7, 1992, for a purported violation of 

30 C.F.R. S 75.301. Subsequently, it was determined that no 

violation existed and the citation was vacated by MSHA. 

1993 
then attempted, without success, to explain to O'Malley that he 

hadn't had anything to do with the inspector issuing the (d) (2) 

orders. 2 

5. Upon returning to the surface after finishing his shift, 

Carson went straight away to the safety office to see the 

UMWA Safety Committeemen and Inspector Deason about what he 

perceived to be intimidation and/or harassment concerning the 

(d) (2) orders Inspector Deason had issued. It was about this 

time that Mr. Oliver, the general mine foreman, told Carson that 

Mr. Cooley, the mine manager, wanted to talk to him. Carson in 

turn asked his UMWA Safety Committeeman, Millwood, to accompany 

him into the meeting. Carson testified that because of his 

earlier confrontation ";:ith 0 'M~lley, he was concerned about being 

threatened and wanted a union representative with him when he met 

with the mine manager. 

6. Carson and Millwood met with General Mine Foreman 

Oliver, Mine Manager Cooley, and Fred Kozel, the deputy mine 

manager, in Mr. Oliver's office. There is a dispute about 

precisely what was said at that meeting, but the clear 

preponderance of the evidence made the impression on me that the 

mine management was upset over receiving the two (d) (2) orders 

from Deason and they were operating under the assumption that 

Carson was somehow responsible for their issuance. The meeting 

was described by Millwooa as a "tongue lashing, at the least." 

Millwood further opined that it was a "heated conversation" in a 

"threatening" atmosphere. Carson also credibly testified in my 

opinion, that he personally felt threatened. I find as a fact 

that there was an implied threat made by Cooley against carson's 

future employmentv or at the least, a reasonable basis for Carson 

to believe there had beeno 

7. In April of 1992, 2 months before the incident at bar 

took place, there was a reduction in the work force at this mine. 

At that time, carson was "rolled back" from a more desirable 

2 It is important to note that the only evidence of this 

entire conversation comes from the testimony of Mr. carson. It 

is nowhere refuted in the record and is therefore uncontroverted. 

That does not mean, however, that it is undisputed. Respondent 

does dispute it, but unfortunately, Mr. O'Malley, the foreman who 

is credited with making these remarks, was killed in a boating 

accident and was therefore unavailable to testify in this 

proceeding. · 

1994 
outside position to a less desirable one inside the mine. At the 

same time, his wife was laid off. Both were unhappy with the 

company as a result. 

DISCUSSION, FURTHER FINDINGS AND CONCLUSIONS 

Respondent ascribes "revenge" as Carson's motive for filing 

this discrimination complaint. This because of the alleged 

mistreatment that he and his wife feel they suffered at the hands 

of the company as more fully set out in Finding of Fact No. 7, 

supra. 

Be that as it may, the general principles governing analysis 

of discriminati~~ c=ses u~der the Mine Act are well settled. In 

order to establish a prima facie case of discrimination under 

section 105(c) of the Act, a complaining miner bears the burden 

of production and proof in establishing that (1) he engaged in 

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

motivated in any part by that protected activity. Secretary on 

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

2800 (October 1980), rev'd on other grounds sub nom. 

Consolidation Coal co. v. Marshall, 663 F.2d 1211 (3rd Cir. 

1981); Secretary on behalf of Robinette v. United Castle Coal 

Co., 3 FMSHRC 817-18 (April 1981). The operator may rebut the 

prima facie case by showing either that no protected activity 

occurred or that the aciverse act:ion was in no part motivated by 

protected activity. If an operator cannot rebut the prima facie 

case in this manner, it nevertheless may defend affirmatively by 

proving that it also was motivated by the miner's unprotected 

activity and would have taken the adverse action in any event for 

the unprotected activity alone. Pasula, supra; Robinette, supra. 

See also Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642 

(4th Cir. 1987); Donovan v. Stafford Construction Co., 732 F.2d 

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

96 (6th Cir. 1983) (specifically approving the Commission's 

Pasula-Robinette test). Cf. NLRB v. Transportation Management 

Corp., 462 U.S. 393q 397-413 (1983) (approving nearly identical 

test under National Labor Relations Act). 

It is undisputed that Carson did engage in protected 

activity when he made the safety-related complaint or report of 

unsafe conditions to his safety committeemen and unwittingly, to 

the MSHA Inspector who overheard the conversation. See Findings 

of Fact Nos. 2 and 3, supra. 

Therefore, the only remaining issue in complainant's prima 

facie submission is adverse action. That is, did mine management 

threaten andjor intimidate carson as a result of his engaging in 

the aforesaid protected activity. And if they did, does a verbal 

1995 
threat, or what in this case is more properly denominated an 

implied threat, constitute 11 adverse action" within the meaning of 

the Act. 

I find generally credible that testimony of carson and 

Millwood that the meeting described in Finding of Fact No. 6, 

supra, emphasized management's distress over the issuance of the 

two (d) (2) orders, the cost that would be attributable to them 

and the assignment of blame for their issuance squarely onto 

Carson. It was also clearly intimated at that meeting, if not 

stated outright, that it was just exactly this type of activity 

that could result in further layoffs or even a shutdown of the 

mine. In my mind, this is an implied threat to his job, designed 

to have a chilling effect en not only Carson, but on anyone else 

who knew of the situation, and management's quick response. 

Respondent's attempt to explain this meeting away by their 

concern over Carson not coming to mine management first to report 

the unsafe conditions he found or their hunger for more knowledge 

about those conditions is not well taken and is rejected. There 

is plenty of testimony in this record that Carson's chosen 

procedure to notify his UMWA Safety Committeeman of the unsafe 

conditions he found is normal and routine in this mine. 

Furthermore, by the time of the meeting, management knew a lot 

more about the "safety violations" described in the two orders 

than carson did. It must be remembered that carson did not write 

the (d) (2} orders; Inspector Deason did. carson was not even on 

the premises by the time Deason got around to inspecting the area 

and issuing the two orders. Also, Carson did not intentionally 

report the condition to the inspector prior to first notifying 

the company. As I have stated earlier, the usual procedure for 

notifying the company is to inform the safety committeeman who in 

turn notifies the appropriate company management and/or safety 

personnel. 

Accordingly, to the extent that respondent argues that the 

adverse action complained of herein was not motivated in any part 

by the complainant's protected activity; that argument is 

rejected. 

I also believe that the implied threat to his job is 

Qiadverse action" within the meaning of the Act in this instance. 

The threat itself is adverse action. There is no need to wait 

until the threat is carried out. 

1996 
The Commission has previously stated in Moses v. Whitley 

Development Corp., 4 FMSHRC 1475, 1479 (August 1982) that: 

"[C]oercive interrogation and harassment over the exercise of 

protected rights is prohibited by section 105(c) (1) of the Mine 

Act." Section 105(c) (1) states that "no person shall discharge 

or in any manner discriminate against. • • or otherwise interfere 

with the exercise of the statutory right of any miner." (Emphasis 

added). 

In making these broad statements, the Commission was guided 

by the legislative history of the Mine Act which referred to "the 

more subtle forms of interference, such as promises of benefit or 

threats of reprisal. Moses, supra, at 1478, citing Legislative 

History at 624. (Erc.phasis added) . The Commission observed that 

a "natural result" of such subtle forms of interference "may be 

to instill in the minds of employees fear of reprisal or 

discrimination." Moses, supra, at 1478. 

An illustrative ALJ decision which is clearly on point is 

Denu v. Amax Coal Company, 11 FMSHRC 317 (March 1989) (ALJ). In 

that case, a supervisor repeatedly asked a miner if he knew the 

consequences of his actions and told him that those consequences 

included discharge. Although the miner was later told at that 

same meeting that he would receive no disciplinary action, Judge 

Melick nonetheless concluded that the questioning itself 

constituted unlawful interference. The Judge stated in the 

conclusion to his decision that: 

I find however that threats of disciplinary action and 

discharge directed to a miner exercising a protected 

right clearly constitute unlawful interference under 

section 105(c) (1}, whether or not those threats are 

later carried out. Such threats place the miner under 

a cloud of fear of losing his job. In addition, while 

under such threats, a miner would be even less likely 

to exercise his protected rights when future situations 

might clearly warrant such an exercise. 

Denu v. Amax Coal Company, 11 FMSHRC 317, 322 (March 1989) (ALJ). 

I concur that this type of behavior engaged in by highranking management personnel in a coercive, hostile atmosphere is 

a violation of the Mine Act whose primary purpose can only be to 

cause miners to refrain from asserting their rights under the 

Mine Act. It unquestionably has a chilling effect on the miners. 

Even though Carson was not discharged, suspended, or 

demoted, nor did he suffer any pecuniary loss as a result of 

engaging in protected activity in this instance, he nevertheless 

1997 
did undergo discrimination, within the meaning of the Mine Act. 

Accordingly, I find and conclude that the evidence supports a 

finding that respondent unlawfully retaliated against carson for 

engaging in protected safety-related activity in violation of 

section 105(c) of the Mine Act. 

I further conclude and find that mine management knew or 

should have known that they were in serious violation of the Mine 

Act at the time they engaged in the June 5, 1992, meeting with 

Carson. And considering all the circumstances in this case, I 

find a penalty of $1000 to be appropriate for the violation of 

the Mine Act found herein. 

ORDER 

THEREFORE, IT IS ORDERED: 

1. Respondent shall post a copy of this Decision on a 

bulletin board at the subject mine which is available to all 

employees, and it shall remain there for a period of at least 

60 days. 

2. Respondent shall pay to the Department of Labor a civil 

penalty of $1000 within 30 days of the date of this Decision. 

This Decision constitutes my final disposition of this 

proceeding. 

Law Judge 

Distribution: 

William Lawson, Esq. 9 Office of the Solicitor, u. s. Department 

of Laboru 2015 Second Avenue North, Suite 201 6 Birmingham, AL 

35203 (Certified Mail) 

Ro Stanley Morrow, Esq. 9 Jim Walter Resources, Inc., 

Po Oo Box 133, Brookwood, AL 35444 (Certified Mail) 

Mr. Donald B. carson, 7166 Ridge Road, Bessemer, AL 35203 

(Certified Mail) 

dcp 

1998 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE. 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH. VIRGINIA 22041 

BARRETT PAVING MATERIALS, 

INCORPORATED, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

~tP ~ 81993 

' . . CONTEST PROCEEDINGS 

Docket No. YORK 92-10-RM 

Citation No. 3866158; 9/17/91 

Docket No. YORK 92-11-RM 

Citation No. 3866159; 9/17/91 

Docket No. YORK 92-12-RM 

Citation No. '3866160; 9/17/91 

: . Docket No. YORK 92-13-RM 

Citation No. 3866161; 9/17/91 

. 

4 

1999 

Docket No. YORK 92-14-RM 

Citation No. 3866162; 9/17/91 

Docket No. YORK 92-15-RM 

Citation No. 3866163; 9/17/91 

Docket No. YORK 92-16-RM 

Citation No. 3866164; 9/17/91 

Docket No. YORK 92-17-RM 

Citation No. 3866165; 9/17/91 

Docket No. YORK 92~18-RM 

Citation No~ 38661~6; 9/17/91 

Docket No. YORK 92-19-RM 

Citation No~ 3866167: 9/17/91 

Docket No. YORK 92-20-RM 

Citation No. 3866168; 9/17/91 

Docket No. YORK 92-21-RM 

citation No. 3866169; 9/17/91 

Docket No. YORK 92-22-RM 

Citation No. 3866170; 9/17/91 

Docket No. YORK 92-23-RM 

Citation No. 3866171; 9/17/91 
SECRETARY OF LABORu 

MINE SAFETY AND HEALTH 

ADMINISTRATIONu (MSHA)u 

Petitioner 

v. 

BARRETT PAVING MATERIALSu 

Respondent 

Docket No. YORK 92-24-RM 

Citation No. 3866172; 9/17/91 

Docket No. YORK 92-25-RM 

citation No. 3866173; 9/17/91 

Docket No. YORK 92-26-RM 

Citation No. 3866174; 9/17/91 

Docket No. YORK 92-27-RM 

: Citation No. 3866175: 9/17/91 

. . 

. 

• 

: 

Docket No. YORK 92-28-RM 

Citation No. 3866176; 9/17/91 

Docket No. YORK 92-29-RM 

Citation No. 3866177; 9/18/91 

Docket No. YORK 92-30-RM 

Citation No. 3866178; 9/18/91 

Docket No. YORK 92-31-RM 

Citation No. 3866179; 9/18/91 

Docket No. YORK 92-32-RM 

Citation No. 3866180; 9/18/91 

Docket No. YORK 92-33-RM 

Citation No. 3867541; 9/19/91 

: Docket No. YORK 92-34-RM 

Citation No. 3867542; 9/19/91 

CIVIL PENALTY PROCEEDING 

Docket No. YORK 92-119-M 

: A.C. No. 30-02869-05509 

. • 

2000 

Jamesville Quarry 

Docket No. YORK 92-71-M 

A.C. No. 30-00009-05509 

Docket No. YORK 92-72-M 

A.C. No. 30-00009-05510 

Docket No. YORK 92-96-M 

A.C. No. 30-00009-05511 

Norwood Quarry 
Appearances: 

PECISION 

Anthony J. Colucci III, Esq., Block and Colucci, 

P.C., Buffalo, New York for Barrett Paving 

Materials; 

William Staton, Esq., u.s. Department of Labor, 

Office of the Solicitor, New York, New York for 

u.s. Department of Labor. 

Before: Judge Weisberger 

These consolidated cases are before me based upon Petitions 

for Assessment of Civil Penalty filed by the Secretary (Petitioner) alleging violations by the Operator (Respondent) of 

various mandatory safety standards set forth in Volume 30 of the 

Code of Federal Regulations. Pursuant to notice, the cases were 

heard in Syr;:;rnc:.::., N.::.,,r York on June 8, 9 and 10, 1993. 

stephen w. Field, testified for Petitioner, and·Phillip A. Royce and Kurt F. Fleury testified for Respondent. Respondent filed a 

Closing Statement on September 9, 1993. on September 13, 1993, a 

statement was received from Petitioner indicating that he elected 

not to file a post-hearing memorandum. 

pocket Nos. YORK 92-119-M, YORK 92-71-M, and YORK 92-72-M 

At the hearing, Petitioner indicated that Citation No. 

3866158, one of the citations contained in Docket No. 

YORK 92-71-M and Citation No. 3869498 the subject of Docket No. 

YORK 92-119-M, -:,;::;..::.~ !:.;:;. ·,;.:..::::,:.:t..;d e-n the ground that Petitioner is 

unable to sustain its burden of proof of establishing the 

violations alleged therein. Based on the representations of 

counsel, I conclude that the vacation of these citations is 

appropriateu and hence order that Docket No. YORK 92-119-M be 

DISMISSEDu and Citation Nco 3866158 be DISMISSED. 

At the hearing, the parties represented that Respondent is 

no longer contesting the following Citations in Docket No. 

YORK 92-71-M: Citation Nos. 3866166, 3866168, 3866169, 3866176, 

3866177, 3866178, and 3866179. Also it was represented, with 

regard to Docket No. YORK 92-72-M, that Respondent was no longer 

contesting Citation No. 3867542. It was further represented that 

Respondent has agreed to pay the assessed amounts in all these 

citations. I have considered the representations of counsel, as 

well as all the documentation in the record, and I conclude that 

the settlement the parties have arrived at is proper under the 

Federal Mine Safety and Health Act of 1977, ("the Act,"). 

Accordingly it is ORDERED that Respondent pay the full assessed 

amount of $471. 

Findings of Fact and Discussion 

I. Docket No. YORK 92-96 

2001 
A. Citation No. 3866162 

1. Violation of 30 C.F.R. § 56.15004 

(a) Testimony 

On September 17, 1991, Stephen W. Field, an MSHA Inspector, 

inspected Respondent's Norwood Quarry operation. According to 

Field, he drove up to the area of the crusher in the company of 

the quarry superintendent, Kurt F. Fleury. According to Field, 

he and Fleury exited the vehicle. Field indicated that he walked 

towards the north side of the crusher, and Fleury followed him. 

According to Field, when he passed between the crusher and the 

conveyor, he observed dust and rock chips in the air and on the 

ground. According to Field, when he was approximately within 10 

feet of the portable crusher he began to "constantlyu feel rock 

chips hitting hi= face and arms (Tr. 19,24). He did not feel the 

chips until he was under the conveyor. When Field felt the rock 

chips hitting his face and arms, he turned around, and noticed 

that Fleury was not wearing,~afety glasses. According to Field, 

he asked Fleury to put on safety glasses, and Fleury indicated 

that he (Fleury) did not have them with him, and Fleury left the 

area. Field indicated that he did not recall Fleury asking 

permission to leave. Field testified that when Fleury returned 

with his glasses he told him that he was going to issue a 

citation. That evening, Field wrote and subsequently issued to 

Respondent a citation under Section l04(d) (l) of the Act, 

alleging a violation of 30 C.F.R. § 56.15004, which, as pertinent 

requires that persons wear safety glasses " ••• when in or around 

an area of a mine or plant where a hazard exists which could 

cause injury to unprotected eyes." In this connection, Field 

explained that because of the amount of dust and rock chips that 

were in the air, there was a hazard of an injury to a person's 

eyeso 

Fleury testified, in essence, that he exited the pick up 

truck with Field in the vicinity of the primary portable crusher. 

He said that he stood approximately 2 to 3 feet in front of the 

truck, and asked Field if he could be excused to get his safety glasses from the truck. Fleury testified that Field agreed to 

this request. According to Fleury, he checked the glove 

compartment of the truck for his glasses, and when he did not 

find them, he got into the truck and drove to the office to 

obtain his glasses. Fleury testified that when he had been in 

front of the vehicle with Field, there was no discussion 

regarding glasses. According to Fleury, upon his return to the 

area of the crusher, Field told him that he was going issue a 

citation because an "employee" was not wearing safety glasses in 

a hazardous area. (Tr.l6B) Fleury testified that earlier that 

morning, he had seen an employee without glasses near the 

portable crusher. Field testified that he had not seen this 

employee. On rebuttal, Field testified that subsequent to the 

2002 
testimony that he gave under direct and cross-examination, he 

recalled that Fleury had requested him not to put in the citation 

that the supervisor was without glasses, as it would have 

embarrassed him, and therefore he (Field) used the word 

"employee" in the citation. 

(b) Analysis 

Although there are differences in the versions testified to 

by Field and Fleury, the record tends to establish the following 

set of facts: (1) On September 17, 1991, Field and Fleury were 

on their way to inspect the area of the crusher and the conveyor; 

(2) in the area under the conveyor, and in the area between the 

crusher and the conveyor, there was a definite hazard of an eye 

injury; (3) Fleury did not have any safety glasses in his 

possession when he and Field exited the vehicle on the way to.the 

conveyor and cr....::::::~cr: ~:i:l (4) the vehicle was parked 60 or 80 

feet from the primary portable crusher. Within .the context of 

these facts, I find that it has been established that Respondent did violate Section 56 .l5004 .. supra, because Fleury was not 

wearing safety glasses 11 around an·area of a mine ••• where a 

hazard can exist which could cause injury to unprotected eyes." 

(Emphasis added). 

2. Significant and Substantial 

According to Field, he concluded that the violation was 

"significant and substantial" because he ltfelt the violation was 

more serious." ~~~- ~~. 

In analyzing whether the facts herein establish that the 

violation is significant and substantial, I take note of the 

recent Decision of the Commission in Southern Ohio Coal Company, 

lJ FMSHRC 912, (1991) 1 wherein the Commission reiterated the 

elements required to establish a significant and substantial 

violation as follows~ 

We also affirm the judge's conclusion that the 

violation was of a significant and substantial nature. 

A violation is properly designated as significant and 

substantial uif, based on the particular facts 

surrounding that violation, there exists a reasonable 

likelihood that the hazard contributed to will result 

in an injury or illness of a reasonably serious 

nature." cement Division, National Gypsum Co., 

3 FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6 

FMSHRC lu 3-4 (January 1984), the Commission explained: 

In order to establish that a violation 

of a mandatory standard is significant and 

substantial under National Gypsum the 

Secretary must prove: (1) the underlying 

2003 
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 also Austin Power Co. v. Secretary, 861 F.2d 

99, 103-04 (5th Cir: 1988), aff'g, 9 FMSHRC 2015, 2021 

(December 1987) (approving Mathies criteria). The 

third element of the Mathies formula "requires that the 

Secretary establish a reasonable likelihood that the 

hazard contributed to will result in an event in which 

there is an injury" (U.S. steel Mining Co., 6 FMSHRC 

1834, 183~ (~~;~~t 1~8~}), and also that the likelihood 

of injury be evaluated in terms of continued normal 

mining operations (U.s. steel Mining co., Inc. 6 FMSHRC 

1573, 1574 (July 1984); see also Halfway, Inc., B 

FMSHRC 8, 12 (January 1986). 

Southern Ohio, supra at 916-917. 

I have found that, as cited, there was a violation of a 

mandatory safety standard herein which contributed to a hazard of 

an eye injury. It thus becomes incumbent upon the Secretary to 

establish that there was a reasonable likelihood of an injuryproducing eve;,:.. .:. . t;;::. , "'"· "'i ~.::. injury, contributed to by the fact 

that Respondent's employee was not wearing safety glasses. Field 

indicated that there was a large amount of dust and rock chips that were airborne. He said that he."constantly" felt these 

items on his face and arms. He was asked: "What were the size of 

the chips?" and he responded as follows: "Small chips, sixteenth 

by an eighth inch, eighth inch by an eighth inch" (Tr.24)o 

The evidence does not establish that an employee of 

Respondent was in the immediate area where these hazardous 

conditions existed i.e., between the crusher and the conveyor, and under the conveyor. 1 There is no evidence that Fleury 

sntered this immediate area. According to the version testified 

to by Field, Fleury was behind him. It is conjecture that Fleury would have entered the immediate area where rock chips and dust 

were airborne, without having obtained his safety glasses. Also 

Fleury indicated that he reviewed accident records for a five 

year period, and found that none of Respondent's employees had 

1 Fleury testified that he had seen an employee the morning of the 17th without glasses near the portable crusher, but there 

was no evidence as to whether this employee was in the immediate 

area of the hazard. 

2004 
been injured as a consequence of having had a foreign object 

enter their eyes, although three truck drivers had been so 

injured. Further, employee records going back to 1953 did not 

indicate any lost time as a consequence of an eye injury. 

Within the framework of this record, I conclude that it has 

not been established that there was a reasonable likelihood of an 

injury producing event. Accordingly I find that it has not been 

established that the violation herein was significant and 

substantial. 

3. Unwarrantable Failure 

According to Field, he asked Fleury if there was any company 

policy concerning the wearing safety glasses, and Field indicated 

that there was not. He said that Fleury said that glasses were 

available, bu~ that th~~e is no company policy for employees to 

wear them. Also, according to Field, Fleury told him that he 

does not tell employees the locations on the site where glasses 

should be worn. According to ~~eld, at the close out conference 

on September 18, Fleury told him that he would make a poor 

example for employees, as he seldom wears safety glasses. Fleury 

denied making this statement, and indicated that when Field asked 

him if he was aware of any company policy concerning the wearinq 

of safety glasses, he indicated yes, but that no specific areas 

were posted. According to the uncontradicted testimony of 

Fleury, the following Notice is provided to all employees, and is 

also posted in the scale room, which is where employees punch in: 

* * * (4) Eye protection must be worn when welding, grinding, cutting, chipping, or any other operation 

causing hazard to the eyes. 

* * * Any violation of the above rules will result in 

disciplinary actionv including discharge. (Exhibit R-1) 

~ * * 

I observed the demeanor of the witnesses during their 

testimonyu and found Fleury more credible on these points. 

In order to establish that a violation results from an 

operator's unwarrantable failure it must be established that an 

operator has engaged in aggravated conduct which is more than 

ordinary negligence (See, Emery Mining Corp., 9 FMSHRC 1997 

(1987)). Within the framework of the above evidence I conclude 

that Petitioner has not met its burden in this regard. 

I find that as a consequence of the violation herein an eye 

injury could have resulted. Hence, the violation is of a high 

level of gravity. Considering the remaining factors set forth in 

Section llO(i) of the Act, I find that a penalty of $150 is 

2005 
appropriate for this violation. 

B. Order No. 3866175 

1. Violation of Section 56.15004, supra 

on September 17, approximately three hours after Field 

orally issued Citation No. 3666162, he observed an employee2 who 

was not wearing safety glasses. According to Field, at some 

point he noticed the employee (Jack Price) was approximately two 

feet from the 4 1/4 inch screen. Field said he also observed 

dust in the air, and small rock chips "in the area alongside the 

screen" (Tr. 29). He said that the walkway had a "buildup" of 

rock chips that was 4 to 6 inches deep (Tr. 29), and extended for 

about 5 feet on the east side of the walkway facing north. 

According to Field, Price was not wearing safety glasses. said he asked Price wnere his glasses were, and the latter 

they were in the pick-up truck, and that he had just taken 

off. 

Field 

said 

them 

Fleury indicated that when he went to speak to Price when he 

and Field had first observed him, he told him to leave the area, 

and to go to where it was safe. Fleury also observed dust and 

rock chips airborne when he spoke to Price, but indicated that 

they were coming from the crusher below the walkway, and were not 

falling on the walkway. 

After Field spoke to Price, he informed Fleury that he was 

going to issue~ ~n O~dc~ alleging a violation of 30 C.F.R. § 

56.15004, supra. 

Based upon the above, I conclude that inasmuch as an 

employee (Price) was observed around an area where there were 

airborne particles that could cause injuries to unprotected eyes, and the employee was not wearing safety glasses, Respondent did 

violate Section 56.15004 supra. 

2. Unwarrantable Failure 

According to Field, he asked Price if Fleury had told him to 

get his glasses and he answered 11 no" (Tr. 102). Fleury did not 

contradict this statement. 

As discussed above, I(A) (3) infra, there is no evidence that 

Respondent had any policy not to advise employees to wear safety 

glasses. Nor is there any evidence that Fleury was aware that 

Price was not wearing glasses until he approached him, as Fleury 

had been with Field for the entire time'between when he issued 

2 The employee was subsequently identified by Fleury as 

Jack Price. 

2006 
Citation No. 3866162 and Order No. 3866175. When Fleury noted 

that Price was not wearing glasses, although he did not order him 

to get safety glasses, he asked him to leave the area to get to a 

safe area. Within this framework, I find that it has not been 

established that the violation herein resulted from any aggravated conduct on the part of Respondent. Hence, it has not 

been established that the violation was a result of Respondent's 

unwarrantable failure. (See Emery, supra). 

3. Significant and Substantial 

The record establishes that Price was, at the time he was 

cited by Field, within a few feet of airborne rock chips, and was 

not wearing safety glasses. However, then is no evidence as to 

the duties he had to perform which would have required him to 

remain in the immediate area of exposure to airborne particles. There is no evidence reaardina the amount of time Price would 

have been exposed to airborne-particles in the subject area, in 

the normal course of his duties. For these reasons, and for the 

reasons set fe;:r:i:h above, I(A) (2) infra, I find that it has not 

been established that there was a·reasonable likelihood of an 

injury producing event i.e., an eye injury. Hence it has not 

been established that the violation was significant and 

substantial. I find that a penalty of $150 is appropriate. 

II. pocket No. YORK 92-71-M 

A. Citation No. 3866159 

On Septembar 17, at about 10:30 a.m., Field required an 

operator of a 35 ton Euclid haul truck to test the brake lights by applying the brake pedal. The brake light did not work. 

According to Field, the operator told him that he did not realize 

or know that the brake light did not work. 

The vehicle in question travels from the plant to the Quarry 

and back. Part of this route goes down an incline which Field 

estimated.to be 15 percent. In addition, two other haul trueks, 

a water truck, and a maintenance vehicle, travel the same route. 

There are no obstacles, or stop signs between the plant and the 

quarry a 

Field issued a citation alleging a violation of 30 C.F.R. § 

56.l4100(b)q which provides that: "Defects on any equipment, 

machinery, and tools that affect safety shall be corrected in a 

timely manner to prevent a creation of a hazard to persons." 

Clearly the lack of a functioning brake light was a defect. 

Since other vehicles travel the same route, it is conceivable 

that should the subject vehicle have stopped without warning due 

to a break-down of equipment, a vehicle following it might have 

collided with it. Hence, this defect is one that affects safety. 

2007 
In order for there to be a violation of section 56.14100(b), 

supra, it must be established that a defect that affects safety 

was not corrected "in a timely manner". The operator of the 

vehicle had informed Field that he did not know that the brake 

light did not work. There is no evidence as to how long this 

safety defect had existed before it was noted and cited by Field. 

Under these circumstances, I conclude that it has not been 

established that Section 56.14100(b), supra, was violated. 

B. Citation No. 3866160 

At approximately 10:40 a.m. on September 17, Field observed 

that a brake light was not working on another 35 ton Euclid haul 

truck. According to Field, the operator told him that he had not 

noticed that the brake light was not working. There is no 

evidence as to how long the brake light had not been working 

prior to the time it was noted by Field. There is also no 

evidence as to when the vehicle was last examined, and what was 

noted upon that examination. Accordingly, for the reasons 

discussed above regardiDg Citation No. 3866159 it is concluded 

that Petitioner has not established a violation of Section 

56.14100{b), supra. 

c. Citation No. 3866161 

1. Violation of 30 C.F.R. § 56.14112Cbl 

Field indicated that when he and Fleury were at the primary portable crusher on SeptP.mber 17, they observed a guard on the 

ground. This guard was approximately 4 to 5 feet long, 3 feet 

high, and 26 inches wide. Fleury indicated that he did not know 

why it was not in place, and that he had not previously noticed 

that it was not in its usual place. According to Field, the 

lower drive pulley of the belt was exposed. He also indicated 

that the pinch-point of the pulley was 5 1/2 feet above the 

ground. The unguarded pulley was in operation. Field opined 

that although it would have been impossible to reach in and touch 

the unguarded pulley intentionally, a person could have tripped and then touched it accidentally. 

Fleury did not contradict the observations of Field that the 

guard was not in place over the tail pulley, and that the pulley 

was in operation. 

Field issued a Citation alleging a violation of 30 c.F.R. fi 

56.14112(b). Section 56.l4112(b) supra, provides that guards 

shall be securely in place while machinery is being operated, 

except when testing or making adjustments which cannot be 

performed without removal of the guard. 

Inasmuch as when observed by Field, the belt and the pulley 

were in operation, and a guard was not in place, I find that 

2008 
Section 56.14ll2(b), supra, was violated. 3 

2. Significant and Substantial 

According to Field, he observed a loader operator walking within 4 feet of the unguarded pulley while it was in operation. 

He indicated that a person in close proximity to the unguarded pulley could have tripped and touched it, and a serious injury could have resulted such as loss of an arm or fingers, as the 

pulley was rotating at a high rpm. However, the pinch-point was 

5 l/2 feet off the ground. There is no evidence that there were 

any significant slipping or tripping hazards present. Within 

this framework I find that although inadvertent contact with the 

pulley could have occurred, it has not been established that this 

event was reasonably likely to have occurred. Accordingly, I 

conclude that it has not been established that the violation was 

significant and gub~tent~~1-

According to the uncontradicted testimony of Fleury, a 

foreman, Dennis Keily, told him that the guards had been taken 

off the night before in order to facilitate the checking of the 

tension of a new belt that had been installed on September 16. I 

find this factor to mitigate Respondent's negligence herein 

somewhat. I find that a penalty of $75 is appropriate. 

D. Citation No. 3866163 

According to Field, the tail pulley of the portable stacking 

conveyor belt lc=~t~! ~t t~~ discharge end of the portable crusher, was missing a top guard and two side guards. Field said 

that the top of the tail pulley was 6 feet above the ground, the 

tail pulley was 16 inches in diameter, and the pinch-point was at 

the bottom of the tail pulley. The pulley was in operation. 

Fleury indicated that the top guard was on the ground. He 

said that he was told that the guard had been removed to allow 

the belt to be cleaned. According to Fleury, the conveyor was 

resting on a rock that he estimated at being almost 6 feet above 

the ground. He said that the opening on each side of the pulley began 6 inches above the rock, and that the tail pulley was 

recessed 6 inches inside the frame. I find that the testimony of 

3 Fleury indicated that the guard had been removed the 

evening of September 16, as a new belt had been put on the 

conveyor the end of the shift of September 16, and its tension 

had to be adjusted. Fleury indicated that the belt had to be 

tested after it ran, and that it is not possible to check the 

tension in the belt without removing the guard. However, there 

is no evidence that, when cited, testing or adjusting were being performed. To the contrary, the evidence establishes that the 

belt was in operation when cited by Field. 

2009 
Fleury is insufficient to establish, as argued by Respondent, that since exposed moving parts were more than 7 feet from 

walking surfaces, guards were not necessary. 

I find that Respondent did violate Section 56.14112{b), 

supra as alleged by Field in the Citation he issued, as the tailpulley was being operated, and the quard was not securely in 

place. 

The pulley at issue was a self-cleaning pulley with fins 

that protruded from the pulley, and provided an additional source 

of potential injury. Field testified in essence, that he 

observed an employee within 3 feet of the pinch-point. He opined that. it was reasonably likely that someone would contact the 

pinch-point sooner or later, and should this occur a serious 

injury would result. 

Field did not measure the distance from the path taken by employees to the pinch-point, nor did he provide the basis for 

his opinion that the top of the tail pulley was 6 feet above the 

ground, and the diameter of the pulley was 16 inches. In 

contrast, Fleury indicated that he is 6 feet tall, and the bottom 

of the pulley was at eye level. According to Fleury, the pulley 

was set back 6 inches from the frame. He also stated that no one 

is assigned to work at the location in issue on a regular or 

irregular basis. There is no evidence of any walking or 

stumbling hazards in the area in question. Within this framework 

I conclude that it has not been established that the violation 

was significant Qnd substantial. (See u.s.steel, supra,) 

According to Field, the lack of the guard was easily seen. 

He said that when he asked Fleury why the guard was not in place, Fleury said that he had not noticed it, and did not know why it 

was not in placeo According to FleuryQ he was told that the 

guard was taken off so that the belt could be cleaned. I find 

Fleuryvs testimony credible. I find that a penalty of $75 is 

appropriate. 

Eo Citation No. 3866164 

On September 17u on the west side of the walkway, Field 

observed a spoked balance wheel at the east end of the crusher, 

moving at a high revolution per minute (rpm). According to 

Field, the wheel, which was 4 feet in diameter, was approximately l foot from the edge of the walkway in a lateral direction. 

Field indicated that, about 2 feet above the walkway rail, the 

top of the balance wheel was unguarded. 

According to Field, the walkway was 30 inches wide. He said 

he observed the loader operator walk on the walkway "right by" the unguarded balance wheel in question. (Tr. 474). 

2010 
on cross-examination, Field indicated that there were no 

pinch-points in the spokes of the wheel, and that the outside 

surface of the wheel is smooth. Field also indicated that 

diagonal straps between the walkway and the rotating wheel, could 

prevent a person from falling onto the balance wheel. He opined 

that the pinch-point still can be contacted by a person on the 

walkway by reaching between the crusher and the balance wheel. 

However, he could not recall the distance between these items. 

Field issued a Citation alleging a violation of 30 C.F.R. 

§ 56.14107(a), which, as pertinent, provides that "Moving machine 

parts shall be guarded to protect persons from contacting ••• flywheels ••• and similar moving parts that can cause injury.". 

Due to the position of the wheel in relation to the walkway, 

I find that the exposed wheel can be contacted. Should one come 

in contact with the moving balance wheel, an injury can result. 

Accordingly, it has been established that Respondent herein did 

violate Section 56.14107(a), supra. 

Field expressed his concern that since the wheel was not 

guardedf a person could contact the wheel by reaching around from 

the walkway between the crusher and the balance wheel. Field 

indicated that this movement could be done "very easily" over the 

bars (Tr. 496}. However, he could not recall the distance 

between the crusher and the balance wheel. There is no evidence 

of the presence of any tripping, stumbling, or slipping hazards 

in the area in question. There is no evidence that persons 

regularly travel en the ;.:z:.lkway. Two diagonal straps between the 

walkway and the exposed fly wheel could prevent a person from 

falling onto the balance wheel. Within this context, I conclude 

that although inadvertent contact with the unguarded wheel could 

have occurred 1 such an event was not reasonably likely to have 

©ccurredo Hence, it has not been established that the violation ~as significant and substantial (See, u.s. Steel, supra). 

According to Field, the lack of the guard was "easily ~ecognizable" (Tr. 476). The cited condition was 1 foot above 

the flooru and was along the walkway. Considering this fact 

along with the other factors set forth in Section llO(i) of the 

Actu I find that a penalty of $125 is appropriate. 

Fo Citation No. 3866165 

lo Violation of 30 C.F.R. § 56.3131 

According to Field, on September 17, there were several 

loose objects at the top of the 75 foot high highwall to the left 

and the right of the loader operator who was loading muck from a 

pile on the ground at the base of the highwall. He said that the 

loader operator was 30 feet to the left of a "chimney" (a series 

of stacked layers of limestone). He said the chimney was 6 to a 

2011 
inches wide at the top of the highwall, and had separated from 

the highwall. He said the separation narrowed towards the bottom 

of the highwall. He also described a chunk of loose material 6 

feet by B feet by 2 l/2 feet on the top edge of the highwall in 

front of the loader. He indicated that, from the floor of the 

quarry, a gap could be seen around this chunk. Field opined that 

if the loader operator continued working to the left picking up 

muck from the pile, he then would be under this chunk. Field 

also observed several smaller chunks between this large chunk and 

the chimney. He said he also saw smaller chunks on the floor. 

Field opined that if the chimney would fall it could go through the windows of the loader. He said, in essence, that the 

loader has roll-over, and "fall-object protective structures", 

but a large object falling from the highwall could knock the 

loader over, causing a serious injury to the operator inside the 

loader. 

Field issued a Cit~tion alleging a violation of 30 C.F.R. 

§ 56.3131 which provides as pert·inent, as follows: 

In places where persons work or travel in 

performing their assigned tasks, loose or 

unconsolidated material shall be sloped to the angle of 

repose or stripped back for at least 10 feet from the 

top of the pit or quarry wall. Other conditions at or 

near the perimeter of the pit or quarry wall which 

create a fall-of-material hazard to persons shall be 

corrected. 

Field was asked if he knows how long it took Fleury to 

remove the large chunk that he cited. Field answered as follows: 

"I believe he said he just touched it with the dozer blade or 

loader and it fell. 11 (Tr.528) In contrast, Fleury indicated that 

he operated a 50 ton hydraulic jack between the rock and the 

highwall to remove the rock, and it took two hours to push it 3 

feet away from the highwall when it fell. He said that it fell 

50 or 60 feet to the left of where the loader operator was 

operating. I observed Fleury's demeanor in this regard, and 

found his testimony on this point credible. Fleury said that, in 

additionu in order to abate the Citation6 he pushed loose 

material with his feet from the top of the highwall. He 

estimated this material as being between 6 inches and a foot 

square. Fleury indicated that he went to the bottom and top of 

the highwall with Field, and did not see any chimney. He said 

that Field did not tell him that he observed a condition that he 

described as a chimney. He said he did not see any crack in the 

wall that went down to the toe as described by Field. 

Although the evidence is in conflict with regard to the 

existence on the highwall of a chimney or a layer of limestone to 

the right of the operator, I find that there was ~ loose 

2012 
material at the top of the highwall. Also, there was a large chuck of material on the top of the highwall, as described by Field and not contradicted by Fleury. The presence of the loose 

material, and the chunk created ~ degree of "fall-of-materialhazard" to persons. It also is clear that following the normal 

course of mining, the loader operator would have been placed 

below the chunk of material. Hence, I find that Respondent did 

violate Section 56.3131, supra. 

. I find Fleury's testimony credible that it took the SO ton 

hydraulic jack two hours to remove the chunk of material from the 

top of the highwall. Also, there is no evidence to predicate a 

finding that it was reasonably likely for the smaller pieces of 

loose material at the top the highwall and for the chimney 

condition to have fallen. I thus conclude that it has not been 

established that the violation was significant and substantial. 

For the same reasons~ I conclude that the violation was of a low 

level of gravity. According to Field the loader operator told 

him that he had pointed out to his supervisor the existence of 

the large chunk on the highwall, small·chunks, and the chimney. 

However, there is no evidence establishing when he pointed this 

out to his supervisor. Field said he asked Fleury why the 

conditions existed, and Fleury told him that he did not realize 

the conditions still existed, as he thought they had been taken 

care of the previous week. According to Fleury, the highwall had 

been blasted 3 or 4 days prior to the inspection, and he had 

inspected the perimeter of the highwall for loose material. 

Loose material was removed by an excavator. He also indicated 

that he reinspe::".:e~ t!':.c !':.i;::.·.~·~ll on September 17, and loose 

material was removed. I thus find that Respondent's negligence herein was only of a moderate level. I find that a penalty of 

$50 is appropriate. 

Go Citation No. 3866167 

On September 17 0 Field inspected a site at the subject mine 

that contained six dump piles. The total area of the piles was 

approximately 125 feet long4 and so to 60 feet wide. Access to 

the site was by way of a ramp, and the site was 10 feet higher 

than the lower level. There were no berms on the left and right side of the piles. Field indicated that Fleury told him that up 

until two weeks prior to September 17, dump trucks drove up the 

ramp, and backed up on top of the piles to dump their load. 

Field further indicated that Fleury told him that a bulldozer was 

used to push material off the piles. Field did not go to see the 

back side of the piles. 

4 On cross examination Field said that total length of the 

piles was so to 60 feet, and that each pile was 8 to 10 feet 

wide. 

2013 
Fleury testified that between March 1, 1991, and 

September l, 1991, he was usually at the subject site 3 to 4 

times a week, and observed operations on the dump piles. 

According to Fleury, in normal operations before a truck backs up 

to dump, a bulldozer is placed towards the edge of the pile. The 

truck then backs up alongside the bulldozer, which is approximately the same length as the truck, and which is used as a 

reference point to "spot" the trucks. 

Field issued a Citation, which, as modified, alleges a 

violation of 30 C.F.R. § 56.9301 which provides that berms ..... shall be provided at dumping locations where there is a 

hazard of overtravel or overturning". Since the site in question 

was approximately 10 feet higher than the ground below it, and 

since the dump trucks in their normal operation back up on the 

piles to unload, there clearly was a hazard of overtravel or 

overturning, jn ~pite of Respondent's practice for bulldozers to 

"spot" dump trucks. I therefore conclude that Respondent did 

violate Section 56.9301. 5 

According to Field, if a truck would go over the edge of a 

pile, it would overturn. In that event bruises, sprains, 

fractures or even a fatal injury were reasonably likely to have 

resulted. However, although the record establishes that there 

was a hazard that a truck could have backed over the edge of the 

dumping site, there is no evidence in the record to base a 

finding that the conditions were such that this accident was 

reasonably likely to have occurred. Accordingly it must be 

concluded that the violation was not significant and substantial. 

I find that a penalty of $75 is appropriate for this 

violation. 

He Citation No. 3866170 

Respondent 0 s Case 580-C backhoe ("backhoe") is equipped with 

a right brake, and a left brake. These two brakes can be 

operated independently by two separate pedals. In the 

alternative, if a bar is placed over both pedals, the two brakes 

can be operated at the same time. According to Field, on 

September 17 0 when the vehicle in question was in reverse, he had 

the operator apply the two brakes by stepping on the bar that 

applied pressure to both pedals. According to Field, the left 

rear wheel locked-up, and the front of the vehicle pivoted to the 

5 I reject Respondent's argument that the Citation should 

be dismissed as the sites at issue were not being used at the 

date of the inspection. In normal operations there was a hazard 

of over-travel or overturning. Hence, the lack of berms 

constituted a violation of Section 56.9301, supra as set forth 

above. 

2014 
right. When the backhoe was examined after Field noted the 

above, the left brake fluid reservoir was empty. Field said he 

believed that he asked Fleury where the backhoe is used and said 

"its throughout the plant" (Tr. 654) Field said that the backhoe 

goes down ramps. Fleury did not contradict this testimony. 

Field issued a Citation alleging a violation of 30 C.F.R. i 

56.1410l(a) (3) which provides that: "All braking systems 

installed on the equipment shall be maintained in functional 

condition." 

Fleury testified that after the Citation was orally issued 

he had only the right brake pedal applied, and the vehicle 

stopped. 

Essentially, at the hearing, it was Respondent's position 

that, inasmuc~ ~~ ~~~ =~=~~=c is designed to be stopped with 

either brake, and does stop when either brake is applied 

independently, the brakes were functional. Respondent argued 

that there is not any regulation requiring that there be no 

differential between the right and left side brakes. Respondent 

also argues that there is no requirement for the vehicle to stop in a straight line. 

According to Section 56.l4l0l(a) (3) supra the braking 

systems are to maintained in "functional condition". Subsection 

(a) of section 56.14101 is headed 11minimum requirements", and 

provides that " ••• equipment shall be equipped with a service 

brake system cQ.t:-.;:.1..::...; c..r ~~:~LvJ:J,~:.~.ing and holding the equipment with 

its typical load on the maximum grade it travels." 

I find that the backhoe can be stopped by either the right brake or the left brake operating independently. However, I 

further find, based on the uncontradicted testimony of Field, ~hat when both brakes were depressed at the same time by use of a ~arv the backhoe did not stop right away, but the left wheel 

locked-up causing the vehicle to pivot. Accordingly, since the 

backhoe did not stop when both brakes were applied 

simultaneously, the braking system was not being maintained in 

functional condition. I thus conclude that the Respondent did 

violate Section 56.14101(a) (3}u supra as alleged. 

Field opined that if the brakes were to be applied "hard" ~Tr. 641), an operator would loose control, the vehicle would ~pin. He said it then could pivot and strike machinery, or a 

support beam, and could overturn causing serious injuries. 

Certainly this series of event can occur. However due to the 

lack of evidence in the record as to the specific distances of 

this vehicle to structures and other vehicles in the area it 

travels, I conclude that it has not been established that an 

injury producing event was reasonably likely to have occurred. 

Accordingly it is concluded that the violation was not 

2015 
significant and substantial. 

According to Field, he believed the backhoe operator told 

him he did not notice the condition of the brakes. Further, 

Field said that Fleury indicated that he was not aware of the 

condition of the brakes. I find Respondent's negligence to have 

been more than moderate as an operator of the backhoe should have 

been aware of the condition of the brakes. I find that a penalty of $100 is appropriate. 

I. Citation No. 3866171 

According to Field, the upper pulley of the No. l conveyor belt was approximately a few inches laterally removed from the 

walkway. He said the pinch-point of the pulley was 27 inches 

above the walkway. Field said that the diameter of the pulley 

was a to 10 ii.~~eS 1 half of the diameter was not guarded, and the 

pinch-point was exposed. According to Field, Fleury, who was 

with him, said that he could see the pinch-point was exposed. 

Field indicated that Fleury to~d him that no persons are required 

to be in the area when the belt is in operation, but someone 

could go there to investigate should the belt in that area emit 

any noise. Field issued a Citation alleging a violation of 30 

C.F.R. § 56.14107(a). 

Fleury testified that, when cited by Field, the pulley in 

question and its pinch-point were covered by a guard as depicted in photographs taken later on that day, and before any work had 

been undertaken to aba~e ~he violative condition (Exhibits R-9 

and R-10). Further, according to Fleury, the distance between 

the pinch-point and the outer edge of the guard that was in place when cited, was l foot 7 l/2 inches. He said that to abate the 

Citation, the guard that was in place was removed, and another 

guard was installed which was one inch longer. In rebuttal, 

Field testified that the pictures that Fleury referred to did not 

depict what he had observed. He said that the guard that he had a observed extended only to the center of the diameter of the 

pulley, was a few inches short of the pinch-point, and did not 

cover the pinch-point. 

I closely observed the demeanor of the witnesses when they testified, and I found Fleury to be the more credible witness. I 

thus find based upon the testimony of the Fleury, that the pinch- point was guarded, and hence there was no violation of Section 

56.14107(a) supra. 

Ja Citation No. 3866172 

According to Field, at approximately 2:00 p.m. on 

September 17, he observed the No. 2 belt, and saw that there was 

no guard around the bottom of the take-up self-cleaning pulley to 

prevent contact with the nip-points. Field said that the pulley 

2016 
was a couple inches above an eye level. He said that his height is 6 feet 2 inches, and he was 4 to 6 feet away when he made his 

estimates that the bottom of the pulley was six feet off the 

ground, and the pinch-point was 6 feet 8 inches off the ground. Field did not measure the diameter of the pulley. Field said 

that Fleury told that an employee is required to go to the area 

to shovel at the base of the conveyor. Field indicated that he 

also observed footprints in the area. 

According to Field, on September 18, when he returned to the 

subject site, Fleury told him that he had the pulley guarded. Field observed two side guards in place. He asked Fleury 11 ••• to 

extend the guard." (Tr.765) 

In contrast, Fleury testified that on September 18, he was 

with Field at the tail pulley about noon, and at that time four 

guards were in place, and Field had said that the violative 

condition was properly abated. Also, Fleury indicated that at 

the time the citation was issued there two guards in place as 

depicted in a photograph (Exhibit R-19) taken later on that day before anything had been done to correct the violative condition. 

Fleury said that these guards had been installed two months prior 

to the date Respondent was cited. Also, according to Fleury, . after the Citation was issued, two more screens were added in the 

front and in the back of the pulley. He said that pictures taken 

on September 17, measure the height of the guard and the pinch- point. (See, Exhibits R-11 and R-12 indicating the height of the 

pinch-point as a few inches above 7 feet). 

Field cited Respondent for violating 30 C.F.R. 1 56.14107(a) 

which, in essence, requires moving machinery parts to be guarded. 

I find that Section 56.14107(a), supra, must be read along with 

subsection (b) of Section 56.14107, supra, which unequivocally provides that guards shall not be required where the exposed 

moving parts are at least 7 feet away from walking or working surfaces~ I place more weight upon the ruler measurement of the 

distance to the pinch-point taken by Fleury, as opposed to the 

estimate testified to by Field which was not based upon any actual measurement. I thus find that the pinch-point was more 

than 7 feet from the ground. Thus there was no requirement to 

guard the pinch-point. 

Howeverq since the pinch-point was only a few inches more 

than 7 feet above the ground, I find that the bottom of the 

pulley, which is below the pinch-point, was less than seven feet 

from the ground. Footprints were observed in the area by Field. 

Hence, I conclude that there were moving parts of the pulley less 

than 7 feet from a walking surface. Hence a guard was required 

to protect the bottom of the pulley. I observed the witnesses' 

demeanor, and found Fleury more credible regarding his testimony 

that on the date cited the pulley in question was protected by guards on 2 sides. However, even according to Fleury•s testimony 

2017 
2 sides were unguarded, with the moving part of the bottom of the 

pulley less than 7 feet off the ground. Thus Respondent did 

violate Section 56.14107 supra. 

Taking into account the fact that the pinch-point was more 

than 7 feet above the ground, and the fact that exposed moving 

parts were close to 7 feet above the ground, I find that it has 

not been established that an injury producing event, i.e., 

contact with unguarded moving parts, was reasonably likely to 

have occurred. Thus it has not been established that the 

violation was significant and substantial. I find that a penalty of $50 is appropriate. 

K. Citation No. 3866173 

According to Field the c-s belt conveyor take-up pulley, a 

self-cleaning pull=Y: was 4 feet above the ground. Although there were guards on the sides and on top, a back guard panel 

was missing, and the pinch-point was exposed. 6 Field said that 

the pinch-point was about 3 J,/2 to 4 feet above the ground. 

Field issued a Citation alleging a violation of 30 C.F.R. 

§ 56.14112(b), which provides as follows: "Guards shall be 

securely in place while machinery is being operated, except when 

testing or making adjustments which cannot be performed without 

removal of the guard." 

Section 56.14112(b) is violated if guards are not securely in place "while !!'.a-:=hine!"y is being operated". The only evidence 

of record on this point is Field's testimony regarding the 

conveyor as follows: "It was delivering material to the upper level." (Tr.BOB) This statement was provided by Field as a 

response to the following question: "And were you able to 

observe the purpose of this c-e conveyor? 11 (Tr. BOB)o In this 

contextv I find Field 1 s testimony ambiguous as to whether the 

conveyor was actually observed in operation delivering material, 

or as to whether in Field's opinion such is the purpose of the 

conveyor9 I thus find that the record is inadequate to establish 

that when observed by Field, the unguarded pulley was being operatedo Hence 0 I conclude that it has not established that 

Respondent violated Section 56.14112(b) supra. 

L. Citation No. 3866174 

According to Field, on September 17 1 he observed the balance 

6 I accept Field's testimony that the side parallel to the 

back did not have to be guarded as there was no access to that 

side. 

2018 
wheel 7 of the 01 five and a half screen" (Tr. 624). Field said 

that the lower half of the balance wheel was exposed. According 

to Field, the bottom of the wheel was 4 1/2 feet above the edge of a walkway and adjacent to it, although he could not recall 

the lateral distance between the two. On cross-examination Field 

testified that the distance between the balance wheel and the 

walkway was a few inches. He approximated the diameter of the 

wheel as 16 inches. He said that the wheel was operating at a 

high "rpm". He was asked the location of the pinch-point and he 

indicated that " ••• To get your hand in between these spokes while 

this balance wheel is rotating, get your hand in the spokes and 

then there was a housing above it where your hand would get 

pinched" (sic) (Tr. 825). 

Field opined that due to the protrusion of bolts on the face 

of the wheel, a hand coming in contact with the wheel could be 

lacerated or brok~n vpon contacting the bolts. 

Field issued a Citation alleging a violation of 

Section 56.14107(a), supra. 

According to Fleury, a guard did cover most of the wheel 

leaving only a small segment, less than half the area of the 

wheel exposed, as illustrated on a photograph (Exhibit No. R-15) 

taken on September 17, after the area was cited and before 

anything had been done to cure the violative condition. He also 

testified that, as illustrated by Exhibit R-16, the measured 

distance between the subject wheel and the guard was 13 inches. 8 

Also Fleury t~~tifi~d t~at ~wployees worked only in assigned 

areas, and that no one was assigned to work in the cited area, 

and no one is required to be in the area when the conveyor is 

operating and the wheel is turning. 

Although the evidence is in conflict regarding the extent of 

the unguarded portion of the wheel the record is clear that at a 

minimum, a section of the wheel that extended down from the top 

guard approximately 2 1/2 inches, was not guarded; that the wheel 

contained exposed bolts protruding from the surface; and that the ~heel was moving. Due to its location in proximity to a walkway, 

it is conceivable that a person traversing the walkway could have 

7 He testified that the wheel was spoked. However he 

observed the wheel only when it was spinning, and concluded that 

it was spoked based on the blurs that he saw at that time. A 

photograph of the wheel indicates that it was not spoked. 

(Exhibit R-15 and R-16) 

8 On cross-examination, it was elicited that he measured 

the distance between the wheel and a point on the guard that 

protruded approximately 5 inches from the surrounding surface. 

2019 
fallen and come in contact with the exposed moving wheel and 

bolts, and could have sustained an injury. The fact that persons 

are not assigned to work in the area does not negate the 

possibility that at sometime a person could traverse the walkway, and stumble or trip in the area in question. Hence, I find that 

the Respondent herein did violate Section 56.14107(a). 

Field opined that the lack of a quard herein was easily recognizable. However, no persons are assigned to work in the 

area in question. Also, Petitioner did not rebut or contradict 

Fleury's testimony that Respondent had not been cited in the past for inadequate guarding in this area. I conclude that 

Respondent's negligence was only moderate. A penalty of $20 is 

appropriate. 

III. pocket No. YORK 92-72-M 

A. Citation No. 3866180 

On September 19, 1991, Field observed that when the operator 

of a 580-C backhoe turned on the motor for the windshield wiper, 

it did not work. He also noted that a wiper blade and a wiper 

arm were also missing. According to Field, the operator of the 

backhoe informed him that he had been at the quarry cleaning 

spillage. Field noted that there was dust on the windshield, the 

windshield was wet, and light rain was falling. Field said that 

vision through the windshield was obscured. However, he did not 

observe the windshield from looking at it from inside the 

vehicle. 

~ield issued a Citation alleging a violation of Section 

56 100 0 supra. 

The testimony of Field establishes that, as observed by him 

on September 19 1 the vehicle in question was missing a wiper blade and arm, and the wiping mechanism did not work. The ~indshield had dust on it and also light rain was falling. Under 

'these circumstances, I find that the conditions observed by Field 

were defects that created a hazard inasmuch as the view of the 

operator would certainly be obscured given the continuation of 

normal mining operations. 

Field had previously observed and partially inspected the 

same vehicle on September 17, when he cited it in connection with 

Citation No. 3866170. He also reexaminated it again on September 

l8u in connection with the abatement of Citation No. 3866170. On 

neither of these occasions did he observe that the wiper arm and 

blade were missing. Also Field indicated that on September 17, 

the operator of the vehicle in question did not complain to him 

about the lack of wiper blades. According to Field, Fleury told 

him that no one had reported to him (Fleury) that the wiper blade 

and arm were missing, and he had no knowledge of these conditions. 

2020 
According to Field, on September 19, 1991, the backhoe 

operator asked him if he could obtain a windshield wiper. Field 

asked the operator if he had reported the lack of a wiper to his 

supervisor after the pre-shift examination. Field said that the 

operator indicated that he had not because he and others had 

reported, "the condition" in the past and had not been able to 

get a wiper. (Tr.B66) Field did not know when these reports were 

made. Neither the operator of the backhoe nor any other 

individual who allegedly made these reports testified in this 

matter. There is no indication whether the lack of this specific 

wiper and wiper blades had been reported to Respondent. Based on 

all these facts, I conclude that although there were defects 

observed by Field on September 19, there is insufficient evidence 

to establish that Respondent did not timely cure the defects, as 

it has not been established the length of time that Respondent 

had been aware of the conditions on the backhoe at issue. 

Accordingly, this Citr.t;o~ is DISMISSED. 

B. Citation No. 3867541 

At the hearing Petitioner indicated in its decision to 

vacate this Citation. Petitioner's request in this regard is 

granted. 

ORDER 

It is ORDERED that: 

(1) Doc:::k::.t U;,;,.. YORK 92-119 be DISMISSED; (2) The 

following Citation Nos. be DISMISSED: Nos. 386615Bu 3866159 0 

3866l60u 3866171, 3866173, 3866180, 3866754; (3) Respondent ~hall pay a total civil penalty of $1,15 wi hin 30 days of this 

Decision a 

-·· Distribution~ 

Anthony Jo Colucci III, Esq., Black & Colucci, P.c., 1250 Statler 

Towers 0 Buffalo, NY 14202 (Certified Mail) 

William Staton, Esq., Office of the Solicitor, u. s. Department 

of Laboru 201 Varick Street, New York, NY 10014 (Certified Mail) 

2021 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE. lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 3 01993 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

Docket No. WEVA 92-916 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner A.C. No. 46-01309-03501 KYC 

v. 

Docket No. WEVA 92-961 

UNITED ENERGY SERVICES, INC. I A. C. No. 46-01309-03502 KYC 

Respondent 

Docket No. WEVA 92-1045 

: ... A. C. No. 46-01309-03503 KYC 

Docket No. WEVA 93-97 

A. C. No. 46-01309-03504 KYC 

North Branch Power Plant 

SUMMARY DECISIONS 

Before: Judge Koutras 

statement of the Proceedings 

These proceedings concern proposals for assessment of civil 

penalties filed by the petitioner against the respondent pursuant 

'CO section llO{a) of the Federal Mine Safety and Health Act of 

1977, 30 u.s.c. § 820(a), seeking civil penalty assessments for 

seven (7) 1 alleged violations of certain mandatory safety and 

training standards found in Parts 48 and 77, Title 30, Code of 

Federal Regulations. The respondent filed timely contests and 

answers, contending that it is an electrical utility subject to 

regulation by the Occupational Safety and Health Administration 

(OSHA) , and that MSHA has no inspection or enforcement 

jurisdiction over its operations. The petitioner takes the 

position that the respondent is an independent contractor 

performing services at a mine. It also takes the position that 

the respondent's operations, except for the cogeneration plant 

building itself, is "a coal or other mine" pursuant to the Mine 

Act because its operations includes the "work of preparing the 

coal" pursuant to the Act. 

Issues 

The principal issues presented in these proceedings are 

(1) whether the respondent is an independent contractor mine 

"operator" subject to the Act; and (2) whether the respondent's 

2022 
cogeneration plant operations (except for the plant building 

itself), is "a coal or other mine" subject to the Act. Assuming 

that jurisdiction attaches, the additional issues presented 

include the alleged fact of violations, the special findings made 

by the inspectors who issued the violations, and the appropriate 

civil penalty assessments to be assessed for the violations 

taking into account the penalty criteria found in section 110(i) 

of the Act. Additional issues raised by the parties are 

identified and disposed of in the course of these decisions. 

Applicable statutory and Regulatory Provisions 

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

Pub. L. 95-164, 30 u.s.c. § 801 et seq. 

2. Sections 110{a) and (i) of the 1977 Act, 30 u.s.c. 

§ 820(a) and (d). 

3. MSHA's Independent Contractor regulations, Part 45, 

Title 30, Code of Federal Regulations. 

Background 

The North Branch Cogeneration Plant, also referred to as the 

"North Branch Power Plant" or "North Branch Power Project", is 

located on an approximately 370 acre site near the City of Bayard 

in Grant County, West Virginia. The plant converts coal wastes 

contained in a gob pile as fuel to generate electric power. The 

plant was built by North Branch Partners, Limited (NB Partners 

Ltd.), a partnership comprised of three individuals. NB Partners 

Ltd., manages the plant. Approximately ninety eight percent 

(98%) of the plant rests on the property secured by the Bank of 

America, and approximately two percent (2%) of the plant, 

including a belt system and related equipment, is located on land 

owned by the Island Creek Coal Company. There is no fence 

separating the two properties. In addition to the portion of the 

conveyor belt system located on Island Creek's property, that 

property also contains the North Branch Mine, the North Branch 

Preparation Plant, and the North Branch refuse area and gob pileu 

all of which are operated by the Laurel Run Mining Company. The 

respondent asserts that the North Branch Mine and Preparation 

Plant are no longer in operation. 

The respondent has been described by the parties as a 

corporation principally owned by Gilbert and Associates, a 

publicly traded corporation. Pursuant to a continuing services 

agreement with NB Partners Ltd., the respondent provides labor to 

operate and maintain the power plant, the conveyor system to and 

from the plant, and the related facilities. The respondent 

employs sixty-five (65) people at the plant, including plant 

manager Robert E. Seavy, whose deposition reflects that the 

2023 
respondent has approximately 150 other similar service contracts 

throughout the world. Mr. Seavy stated that the respondent 

provides "all of the labor to operate and maintain the facility. 

We purchase all of the material, parts, consumables, as a service 

to them. They pay the bills. We just do the purchasing. We 

provide consulting in engineering" (Tr. 12). 

Mr. Seavy stated that the respondent's presence at the site 

began in the fall of 1988, when it signed a services agreement 

contract with the plant managing company, NB Partners Ltd., but 

that no personnel were placed at the site until the fall of 1989. 

The plant and conveyor belt system were not completed at the time 

the service contract was signed, and substantial completion of 

the plant was accomplished in the late spring of 1991, when the 

conveyor belt system began carrying coal refuse from the gob pile 

to the plant (Tr. 15). The respondent's material handling 

supervisor, Jim Bowman, testified by deposition that his task is 

"to operate and maintain the movement of gob to the power plant", 

and that he supervises sixteen,(16) material handlers to do this 

(Tr. 8, 11). · 

Mr. Seavy stated that the Wylie Construction Company had a 

contract with Energy America to design and install the overlaying 

conveyor belt system used to transport the gob to the power plant 

and to remove the ash after the gob is burned. He described 

Energy America as "the developers of the plant", and indicated 

that Energy America had a contract with Security National Bank 

(Tr. 15-16). He confirmed that with some modification, the 

respondent is maintaining and servicing the belt conveyor system 

designed and installed by the Wylie Construction Company. 

Although the respondent's service contract and the contract 

awarded Wylie Construction overlapped, Mr. Seavy confirmed that 

the respondent never had any contractual relationship with Wylie 

Construction (Tr. 16) o 

In its response and opposition to the petitioner's summary 

judgment motion, the respondent agreed to the following: 

2. 

3. 

The commission and the presiding 

Administrative Law Judge have jurisdiction to 

hear and decide these docketed proceedings 

based on MSHA's issuance of the subject 

citations and orders and the respondent's 

objections thereto based primarily on its 

assertion that MSHA has no jurisdiction over 

its operations. 

True copies of the citation and orders were 

served on the ~espondent. 

The citation and orders attached to the 

petitioner's proposals for assessment o.f 

2024 
civil penalties in these proceedings are 

authentic copies of the citation and orders 

in issue, with all appropriate modifications 

or abatements. 

4. At all times relevant to these proceedings, 

the respondent has been providing labor to 

operate and maintain the power plant conveyor 

system pursuant to a continuing service 

agreement with North Branch Partners Ltd. 

In addition to the aforementioned "Background" information, 

the following facts are not in dispute: 

1. Under the terms of the continuing services 

agreement with North Branch Partners, 

Limited, the respondent has, at all times 

relevant herein, been providing the labor to 

operate and maintain-the plant, the conveyor 

system to and from the plant, and their 

related facilities. 

2. The North Branch refuse area contains the 

remainder of the material mined over the 

years from the North Branch Mine after the 

marketable coal was extracted, with this 

remainder, or gob, having been transported to 

the North Branch refuse area from the North 

Branch Mine and the plant. The gob pile 

extends at least one (1) mile in length. 

3" The plant uses the circulating fluidized bed 

process as the combustion method powering its 

electric generating facility. 

4. The plant uses the gob from the North Branch 

refuse area by burning it in boilers to 

generate electricity. 

5. In order for the electric generating facility 

at the plant to use the gob from the North 

Branch refuse Area as fuel the gob must 

contain no piece that measures larger than 

one-quarter (1/4) inch in any direction. 

6. The gob from the North Branch refuse area is 

supplied to NB Partners under a contract with 

Laurel Run Mining Company, an affiliate of 

Island Creek, whereby gob containing at least 

3,500 BTU per pound with less than ten (10) 

percent moisture content, is supplied, with 

Laurel Run providing disposal of the ash. 

2025 
7. The gob received from the North Branch refuse 

area must contain at least seven (7) to ten 

(10) percent carbon to burn in the plant. 

a. At all times relevant to these proceedings, 

the portion of the conveyor system resting on 

the property owned by Island Creek extends 

approximately three hundred (300) to five 

hundred (500} feet onto the Island Creek 

property and terminates at the North Branch 

Mine refuse area. 

9. The respondent is authorized to operate the 

conveyor system on the property owned by 

Island Creek under the continuing services 

agreement with North Branch Partners. 

10. There are no fences separating the conveyor 

system from the remainder of the property 

owned by Island Creek. 

11. The conveyor system uses two (2) conveyor 

belt systems, with the first used to 

transport the gob to the power plant, and 

with the second used to transport the ash 

created from the burning of the gob back to 

the North Branch refuse area. 

12. Bulldozers push the gob into a dozer trap 

(also referred to as the dozer feeder). 

l3o The bulldozers that push the gob into the 

dozer trap are owned by either Island Creek 

or Laurel Run, and the bulldozer operators 

are employees of Laurel Run. 

14. At all times relevant to these proceedings, 

the dozer trap has been resting approximately 

three hundred (300) to five hundred (500) 

feet from the plant property line and is on 

the North Branch refuse area property. 

l5o As the gob is depleted, the dozer trap will 

be moved closer to the property line in 

increments, and it is expected to reach the 

property line in approximately ten (10) 

years. 

16. The gob is pushed by the dozers through a 

hole in the end plate of the dozer trap. 

2026 
17. The end plate of the dozer trap measures 

approximately ten (10) feet high and twelve 

(12) feet wide, with the hole in the end 

plate measuring approximately three (3) feet 

by three (3) feet. 

18. Although the hole in the end plate of the 

dozer trap measures approximately three (3) 

feet by three (3) feet, it has, at all times 

relevant to these proceedings, been partially 

obstructed by an isolation gate, a sheet of 

metal that drops down over the hole so that 

the size of the opening can be changed. 

19. At all times relevant to these proceedings 1 

the size of the opening in the end plate of 

the dozer trap has been no more than two (2) 

feet high due to the presence of the 

isolation gate. 

20. Items that cannot fit through the opening in 

the end plate of the dozer trap are pulled to 

the side by employees of either Island Creek 

or Laurel Run. 

21. All gob that reaches the plant must pass 

through this opening in the end plate of the 

plate of the dozer trap. 

22. The gob pushed through the opening in the end 

plate of the dozer trap comes to rest on an 

oscillating plate that measures approximately 

three (3) feet by three (3) feet, and which 

moves forward and backward through the 

opening~ 

23. The movement of the oscillating plate forces 

the gob to fall onto a conveyor belt. 

24. As the gob is being transported up the 

conveyor belt described in Paragraph 23, an 

electrically powered magnet picks up any 

metal pieces that may be in the gob, such as 

mining bits, pieces of steel, and old 

wrenches. 

25. The gob is deposited by the conveyor belt 

described in Paragraph 23 onto a grizzly 

feeder. 

26. The grizzly feeder contains eight {8) inch bars 

which, when the gob falls onto the grizzly feeder, 

2027 
permits only those gob pieces smaller than eight 

(8) inches to pass through, with those pieces 

larger than eight (8) inches falling out over the 

end, where they are put back onto the gob pile by 

employees of either Island Creek or Laurel Run. 

27. The smaller pieces of gob that pass through 

the bars of the grizzly feeder fall onto a 

conveyor belt called Gob Moveable One, (also 

called Gob Mobile one (1) conveyor belt), a 

fifty (50) foot transportable conveyor belt, 

which caries the gob to the main conveyor 

belt, also called the No. 2 Gob Conveyor 

Belt. 

28. The dozer trap, the conveyor belt in the 

dozer trap, the magnet, the grizzly, and Gob 

Moveable One are all owned by NB Partners, 

with any repairs tc thes.e items being 

performed by the respondent. 

29. At all times relevant to these proceedings, 

the dozer trap, the conveyor belt in the 

dozer trap, the magnet, the grizzly, and Gob 

Moveable One have been located on Island 

Creek property, in the North Branch refuse 

area. 

30. The main conveyor belt transports the gob 

across the property line shared with the 

Island Creek property on to the plant 

property. 

3lo Title to the gob passes to NB Partners when 

the gob is dumped into the dozer trap located 

in the North Branch refuse area, but payment 

is made by the ton based on the weight at a 

scale on the main conveyor belt located on 

the plant property. 

32. The main conveyor belt carries the gob and 

deposits it into a cone-type hopper called a 

truck dump. 

33. The truck dump is approximately forty (40) 

feet square and forty (40) feet deep, and can 

hold approximately five hundred (500) tons of 

gob, which represents approximately seven (7) 

hours of fuel. 

34. The gob feeds out of the truck dump through a 

vibratory feeder onto another conveyor belt 

2028 
called Conveyor A, which carries the gob into 

the Screening Building, located on the plant 

property. 

35. As the gob is being transported by Conveyor A 

inside the screening building, another 

electrically powered magnet picks up any 

remaining metal pieces that may be in the 

gob, such as mining bits, pieces of steel, 

and old wrenches. 

36. Inside the Screening Building, Conveyor A 

deposits the gob onto a Tabor Screen, which 

separates the gob larger than three (3) 

inches square from the finer gob. 

37. The gob smaller than three (3) inches square 

falls through the Tabor screen onto Con~eyor 

c. 

38. The gob larger than three (3) inches square 

is further separated, with the gob larger 

than six (6) inches square being directed 

into a reject hopper. 

39. The gob larger than three (3) inches square 

but smaller than six (6) inches square rides 

along the top of the Tabor Screen and is 

directed into an impactor, which crushes the 

gob into particles no larger than three (3) 

inches square. 

40. After being crushed by the impactor, the gob 

referred to in Paragraph 38 is directed back 

onto Conveyor C, where it is reunited with 

the gob smaller than three (3) inches square. 

At this point, all of the gob being 

transported is no larger than three (3) 

inches square. 

41. Conveyor c carries the gob from the Tabor 

Screen in the Screening building to the 

Crusher Building, where it goes into another 

hopper, which holds a couple of hours worth 

of fuel. 

42. The hopper in the Crusher Building drops the 

gob into a Pennsylvania Crusher, which 

reduces the material down in size to onequarter (1/4) inch. 

2029 
43. Upon exiting the Pennsylvania crusher, the 

gob drops directly onto G Conveyor, where it 

is transported out of the Crusher Building 

and carried into the plant building. 

44. The ash created by the boiler in the plant 

building is transported out of the building 

by screwcoolers and by a NUVA feeder system, 

which releases the ash into blowers, which in 

turn blow the ash into the Ash Storage Silo. 

45. The ash in the Ash Storage Silo, which has a 

capacity of eight thousand (8,000) tons, 

falls through the bottom of the silo into a 

pug mill, which mixes the ash with water and 

transports the mixture to the No. 1 Ash 

Conveyor. 

46. No. 1 Ash Conveyor carries the mixture 

approximately two hundred fifty (250) feet to 

the No. 2 Ash Conveyor, which then transports 

the mixture approximately five hundred (500) 

feet to the No. 3 Ash Conveyor. 

47. The No. 3 Ash conveyor transports the mixture 

to approximately the property line shared 

with the Island Creek property, where it 

transfers the mixture to Ash Conveyor No. 4. 

48. Ash Conveyor No. 4 transports the mixture 

across the property line shared with the 

Island Creek property onto the North Branch 

refuse area, where it transfers the mixture 

onto an elevated conveyor called Ash conveyor 

No. 5. 

49. Ash Conveyor No. 5 deposits the mixture into 

an ash hopper, which is used to load the 

mixture onto trucks to be spread onto the 

area near the hopper. 

50. Although NB Partners owns the five ash 

conveyors and the respondent operates and 

maintains them, neither the ash hopper nor 

the trucks that carry the ash are owned or 

operated by either NB Partners or the 

respondent. 

2030 
MSHA's Enforcement Activity 

MSHA's initial enforcement interest at the plant site began 

during the spring of 1991, after MSHA's Oakland, Maryland field 

office learned through conversations with Island Creek's 

personnel, that a power plant was being constructed at the site, 

and that the plant planned to burn the refuse (gob) that was to 

be trucked to the plant site from the North Branch mine. The 

planned trucking of the gob was apparently abandoned, and a 

conveyor belt system was constructed to facilitate the 

transportation of the gob from the North Branch refuse area on 

Island Creek's property to the plant. The refuse area contains 

the remainder of the material mined over the years from the North 

Branch mine after the marketable coal was extracted. · That 

material, or "gob", was transported to the gob pile located at 

the refuse area from the North Branch mine and preparation plant, 

and the pile extends for a distance of approximately one mile in 

length. 

On July 30, 1991, MSHA Inspector Phillip M. Wilt went to the 

North Branch refuse area and observed the loading operations 

taking place at that location, including the conveyor system 

carrying gob to the power plant. Mr. Wilt issued citations to 

Island creek coal Company for violations he observed at the 

refuse area on Island Creek's property. Mr. Wilt returned the 

next day, July 31, to terminate the citations, and he made 

additional observations of the area. He next returned to the 

area on August 5, 1991, with his supervisor, Barry Ryan, and 

after meeting with another MSHA inspector, Edwin Fetty, at the 

site, they inspected the refuse area, including the first 

conveyor belt which was 80 to 100 feet in length. Mr. Wilt and 

Mr. Fetty both issued citations to Wiley Construction Company, a 

contractoru for violations found on the North Branch mine 

property" 

MSHA's next inspection and enforcement activity took place 

between February 26, 1992, and August 27, 1992, resulting in the 

issuance of the following citations which are the subject of the 

instant civil penalty proceedings. 

Docket No. WEVA 92-916 

This case concerns one section 104(d) (1) citation and three 

section 104(d) (1) orders issued on February 26, 1992, by MSHA 

Inspector Joseph W. Darios. The citations as initially issued by 

Mr. Darios reflect that they were served on Jim Gilkey, at the 

North Branch Mine, and the mine operator is identified as the 

Island Creek Coal Company. Mr. Darios subsequently modified the 

citations by mail on March 3, 1992, to show that they were served 

on Bob Seavy rather than Jim Gilkey, and the identification of 

the mine operator was changed to reflect United Energy services 1 

Inc., rather than Island Creek Coal Company. The mine 

2031 
identification number was modified to add the letter "KYC" to ID 

Number 46-01309. The citations issued by Mr. Darios are as 

follows: 

Section 104(d) (1) "S&S" Citation No. 3120276 cites an alleged 

violation of 30 C.F.R. § 77.400(d), and the cited condition or 

practice is described as follows: 

Three employees were observed shoveling the No. 2 Gob 

Conveyor Belt tailpiece at the North Branch Refuge 

(sic) Project with the guarding removed from the 

tailpiece along the roadside. 

Jim Bowman, supervisor, is the person responsible. 

This citation will be modified to show the operator 

name to be United Services Corporation upon issuance of 

a contractor identification number. 

Section 104(d) {1) "S&S 11 Order No. 3120277, cites an alleged 

violation of 30 C.F.R. § 77.400(a), and the cited condition or 

practice is described as follows: 

The rear tailpiece guard of the grizzly belt tail 

pulley was removed and a side guard for the grizzly 

belt tail pulley was not provided. The rear tail 

pulley guard was simply laying on the ground behind the 

belt assembly exposing the roller or pulley at one side 

and the rear which could cause injury to persons. 

Section 104Cdl{1) 11S&S" Order No. 3120278, cites an alleged 

violation of 30 C.P.R. § 77.400(d), and the cited condition or 

practice is described as follows: 

The grizzly gob feeder chain drive sprockets and drive 

chain located at the rear side of the grizzly belt 

assembly near the tailpiece was not guarded because the 

cover guard was simply laying on the ground beside the 

belt assembly and the exposure may cause injury to 

persons. 

Section 104(d) (1) "S&S" Order No 3120279, February 26, 1992, 

cites an alleged violation of 30 C.P.R. § 77.400(c), and the 

cited condition or practice.is described as follows: 

The Gob Mobile 1 gob conveyor belt take-up pulley 

guarding did not extend a distance sufficient enough to 

prevent contact by andjor injury to persons because the 

rear side of the tail pulley was exposed approximately 

6 inches past the guarding provided and which could 

permit contact at the pinch point of the roller and 

belt. 

2032 
Docket No. WEVA 92-961 

Section 104(g} {1) 11 S&S 11 Order No. 3120293, was issued on 

February 27, 1992, by MSHA Inspector Phillip M. Wilt, and he 

cited an alleged violation of mandatory training standard 

30 C.F.R. § 48.25(a). The citation, as initially issued, 

reflects that it was served on Bruce Hamrick, at the North Branch 

Mine, and the mine operator is identified as the Island Creek 

Coal Company. The citation was subsequently modified by MSHA 

Inspector Frank B. Johnson on March 13, 1992, to show the mine 

operator as United Energy Services Inc., and to add the letters 11KYC" to the previous ID No. 46-01309. The cited condition or 

practice is described as follows: 

Three employees employed by the United Energy Services 

Corporation, Craig w. Knotts, Randy Rohrbaugh, and 

Homer Fletcher, were observed working near moving 

conveyor belt on the Island Creek Coal Company mine 

property during an MSHA inspection on 2-26-92 without 

first receiving the requfred training of no less than 

24 hrs. of comprehensive training. 

The three employees are considered a hazard to 

themselves and others, and are removed from the mine 

area as required under section 115 of the 1977 coal 

Mine Health and Safety Act. Jim Gilkey, manager of 

construction at this North Branch fuel supply as the 

responsible person. 

Docket No. WEVA 92-1045 

Section 104{d) {2) "S&S" Order No. 3720850, was issued on May 12, 

1992v by MSHA Inspector Kerry L. George, and he cited an alleged 

violation of mandatory safety standard 30 C.F.R. § 77.502. The 

order was served on Jim Bowman at the North Branch Mine, and the 

mine operator is identified as the United Energy Services 

Corporation, with Mine ID No. 46-01309-KYC. The cited condition 

or practice is described as follows: 

A monthly electrical examination was not being 

conducted on any electrical components of the beltlines 

at the Co-Gen (sic) refuse site. The beltlines were on 

mine property and were the responsibility of the 

contractor. The area was under the supervision of Jim 

Bowman, Foreman. 

Docket No. WEVA 93-97 

Section 104(g) {1) "S&S" Order No. 3115366, was issued on 

August 27, 1992, by MSHA Inspector Kerry L. George, and he cited 

an alleged violation of mandatory training standard 30 C.F.R. 

§ 48.25(a). The order was served on Jim Bowman at the North 

2033 
Branch Mine, and the mine operator is identified as the United 

Energy Services Corporation, with Mine ID No. 46-01309-KYC. The 

cited condition or practice is described as follows: 

Stanley Dragovich, material handler, was determined to 

be a new surface miner who had not been given training. 

The miner had been employed by the contractor since 

April 1991. Dragovich was maintaining beltlines at the 

Co-Gen (sic) construction site of North Branch Mine. 

The area was under the supervision of Jim Bowman, 

Foreman. 

Decisions Involving Power Plants 

Old Dominion Power Company v. Donovan, 772 F.2 92 (4th Cir. 

1985), concerned an electric substation erected on land owned by 

Penn-Virginia Resources, and leased to Westmoreland coal Company. 

Westmoreland built and owned the substation, and contracted with 

Elro Coal company to operate the mine on the property. 

Westmoreland purchased high-voltage power from Old Dominion, an 

electrical utility, and transmitted it to the substation for 

conversion to voltage suitable for use by Elro in its mining 

operation. The only facilities owned by Old Dominion at the 

substation was a metering device and other equipment used to 

determine how much power was purchased by Westmoreland for use 

through the substation. In the course of checking the meter 

which had reportedly malfunctioned, an employee of Old Dominion 

was electrocuted when he touched an energized transformer which 

he believed had been de-energized. 

MSHA and OSHA conducted an investigation and Old Dominion 

was not cited by OSHA. However 1 MSHA concluded that Old 

JDominion 8 s employees violated 30 C.F.R. § 77.704 1 a mandatory 

st.andard promulgated pursuant to the Mine Act, by working on 

high-voltage lines without de-energizing and grounding them. 

Confusion then arose as to who should be the recipient of the 

citation because Elro was using the power received at the 

substation, Westmoreland owned and operated the substation, and 

Dominionus employees performed the work that resulted in the 

fatality. MSHA initially served the citation on Elro, and then 

reissued it to Westmoreland. Approximately one year after the 

accidentu the citation was modified to cite Old Dominion as the 

responsible mine operator instead of Westmoreland. Old Dominion 

contested the citation claiming it was neither an "independent 

contractor 91 or an "operator" under the Mine Act. 

Former Commission Judge Richard Steffey initially 

adjudicated Old Dominion's claim, and he concluded that Old 

Dominion was an independent contractor subject to the Mine Act. 

Old Dominion Power Company, 3 FMSHRC 2721 {November 1981). In 

support of his decision, Judge Steffey cited the legislative 

history reflecting Congressional intent for broad coverage of the 

2034 
Act, and he relied on the fact that Old Dominion had contracted 

to construct an electrical facility on mine property, and that 

the facility was essential to coal extraction taking place at the 

mine because the mining equipment would only operate when it was 

connected to electrical power. 

Old Dominion appealed Judge Steffey's decision, and the 

Commission affirmed the decision. Old Dominion Power Company, 

6 FMSHRC 1886 (August 1984). The Commission rejected Old 

Dominion's attempts to separate "mine" from "non-mine" work 

areas, and held that it was properly cited as an independent 

contractor performing services or construction on mine property~ 

The Commission noted Old Dominion's longstanding relationship 

with Westmoreland, including the fact that its employees were at 

the mine at the request of Westmoreland. The Commission 

concluded that citing the party responsible for violations 

committed by its employees effectuated the purposes of the Mine 

Act. (Then Commission Chairman Collyer dissented, and she 

concluded that Old Dominion was onlya vendor with limited 

presence at the mine). 

On appeal of the Commission's decision to the Fourth 

Circuit, the court reversed the commission and held that Old 

Dominion had no continuing presence at the mine and that its only 

relationship with the mine was the sale of electricity. The 

court took note of the inconsistent regulations adopted by MSHA 

and OSHA with respect to electric utilities, and it stated as 

follows at 772 F.2d 99: 

Requiring electric utility employees suddenly to adhere 

to conflicting standards depending on their job 

locations can only lead to danger, especially where 

work around high voltage is involved. o o In additionu 

other MSHA standards, when applied to electric 

utilities, lead to irrational results. 

* * * * * 

OSHA had adopted strict and comprehensive safety 

standards which include standards specifically designed 

to apply to electric utilities. MSHA has adopted 

contradictory regulations. The Secretary of Labor has 

not articulated any reasons why the standards 

applicable to electric utilities under OSHA should be 

different from standards which he says are applicable 

to electric utilities under MSHA. We conclude that 

MSHA regulations do not apply, and were not intended to 

apply, to electric utilities such as Old Dominion whose 

sole relationship to the mine is the sale of 

electricity. 

2035 

* 
Pennsylvania Electric Company v. FMSHRC, 969 F.2 1501 (3rd 

Cir. 1992), concerned an electric generating station located in 

Homer City, Indiana County, Pennsylvania, owned by Penelec and 

the New York State Electric and Gas Corporation. The station 

burned approximately 4.5 million tons of coal a year producing 

electricity generated by coal combustion. The coal purchased by 

Penelec entered the station from a conveyor running from an 

adjacent mine operated by Helen Mining Company: from another 

conveyor running from an adjacent mine operated by the Helvetia 

Mining Company; and from a truck-dump facility receiving coal 

brought from various other Pennsylvania mines. The coal was 

delivered to the generating station facility by conveyor belts 

from the two adjacent mines to scales where it was weighed and 

sampled. The coal then moved by conveyor to a bin where it was 

combined and again sampled. It was then transported to a second 

bin on two conveyors, and then to an on-site coal cleaning plant 

where it was broken, crushed, sized, washed, cleaned, dried, and 

blended for the electric generation facility. The cleaning plant 

was located entirely at the generating station and was owned by 

Penelec and New York State Electric and Gas. However, the 

cleaning plant was operated under contract with the Iselin 

Preparation Company, a subsidiary of Rochester and Pittsburgh 

Coal company. MSHA had previously inspected and otherwise 

exercised jurisdiction over the cleaning plant since 1977, but it 

had never regulated the conveyors used to move the processed coal 

leaving the cleaning plant and going to the generating 

facilities. 

The dispute in Penelec concerned citations issued to Penelec 

by an MSHA inspector for failure to adequately guard the head 

drives of the conveyors in question to protect persons who might 

come in contact with the head rollers. Penelec did not dispute 

the fact that the cited guards were inadequate. It disputed the 

authority of the MSHA inspector to issue the citations claiming 

that it should be inspected and regulated by OHSA. Based on a 

joint stipulation of facts submitted by the parties to Judge 

Melick1 he affirmed the citations and concluded that the conveyor 

head drives were a part of a facility that constituted a "coal or 

other mine 01 as defined by the Mine Act. Judge Melick also 

concluded that the coal processed at the cleaning plant for 

consumption in the Penelec generating station fell within the 

scope of 99work of preparing coal" within the meaning of the Actq 

and that the head drives over which the coal passed on its way to 

the plant were "structures", "equipment", and "machinery" that 

was i'used or to be used in" the 11work of preparing the coal". 

Under all of these circumstances, Judge Melick concluded that "it 

is clear that the head drives of the 5A and 5B conveyor belts are 

indeed subject to the Secretary's jurisdiction under the Act." 

Secretary of Labor (MSHA) v. Pennsylvania Electric Company, 

10 FMSHRC 1780, 1782 (December 1988). 

2036 
On appeal of Judge Melick's decision, the Commission took 

note of the fact that MSHA's regulation of the working conditions 

inside Penelec's on-site cleaning plant, as well as the mines 

adjacent to the generating station that delivered coal directly 

to the station by means of the conveyor systems, were not 

challenged by Penelec. Although the Commission found that Mine 

Act jurisdiction attached to the two cited conveyor head drives 

in question, it found that "Because of the pervasive ambiguity in 

the record", it was unclear as to whether or not the cited 

working condition was enforced under the Mine Act, as argued by 

MSHA, or by regulations enforced by OSHA, as argued by Penelec, 

and it vacated Judge Melick's decision and remanded the case to 

him for further proceedings on the jurisdictional question 

presented and the entry of a new decision. ·Secretary v. 

Pennsylvania Electric Company, 11 FMSHRC 1875, (October 1989). 

In remanding the case, the Commission observed as follows at 

11 FMSHRC 1884, 1885: 

At oral argument before us, counsel for the Secretary 

asserted that the MSHA district manager's letter reflects 

MSHA's policy of inspecting those areas of a power plant 

that involve the handling and processing of run-of-mine coal 

and of leaving to OSHA the inspection of those areas that · involve the handling of previously processed coal. O.A. 

Tr. 28, 29-30, 33. We note, however, that in a prior case 

involving a coal handling power plant, the Commission was 

advised, by different secretarial counsel, that: 

MSHA traditionally has not inspected power plants. 

Although the Secretary is not able to cite to a 

particular memorandum incorporating this policy, MSHA 

and its predecessors have consistently found the 

production of power to be outside the jurisdiction of 

the agency. MSHA has taken into account that a portion 

of the process utilized to produce electric power from 

coal requires handling and processing coal but has 

determined that those activities are subsumed in the 

specialized process utilized to produce electric power, 

and that the overall power plant process is more 

feasibly regulated by OSHA. 

Utility Fuels, Inc., Docket No. CENT 85-59 (Sec. Motion 

to Dismiss (November 29, 1985). 

* * * * * * * 

The importance of, and confusion concerning, the 

jurisdictional question presented in this case is further 

heightened by the fact that subsequent to the issuance of 

the citations in question, the Secretary through OSHA, 

proposed new, comprehensive safety standards applicable to 

the operation and maintenance of electrical power generation 

2037 
facilities. 54 Fed. Reg. 4974-5024 (1989). On their face, 

and as explained in the accompanying explanatory materials, 

these regulations would appear to directly apply to 

operations such as Penelec's including the coal handling 

aspects of such operations. 

* * * * * * * 

These conflicting indications of Secretarial intent raise 

serious questions as to which agency in the Department of 

Labor exercises safety and health authority over power 

generating stations such as Penelec's. The answer is of 

great consequence to Penelec and its employees. It is also 

of importance to similarly situated operators of coal 

burning electric utilities who, along with Penelec, 

must know which safety and health standards must be 

complied with and which statute prescribes the rights 

and duties to which they and their employees must 

conform their conduct. 

* * * * * * * 

* * * Because of the pervasive ambiguity in the record on 

the question of whether the Secretary of Labor, through 

MSHA, has properly exercised her authority to regulate the 

cited working conditions at Penelec's Generating Station, 

and the importance of this question, we find it appropriate 

to order further proceedings. We encourage the Secretary to 

give serious consideration to the questions raised by this 

case and to follow the procedures in the OSHA-MSHA 

Interagency Agreement to resolve the conflicting positions 

taken on her behalf. To do otherwise would be to ignore the 

potential whipsaw effects to which an employer can be 

subjected when important jurisdictional issues appear to be 

resolved with no assurance that potentially competing 

agencies have reached a mutual and definitive determination 

as to their respective roles. 

On remand to Judge Melick, the Secretary of Labor took 

vigorous exception to the Commission's comments concerning the 

QU internal decision-making prOCeSSeS and intrUSiOn a o o intO her 

reasons and motives for such decisions ...• " 12 FMSHRC 123 

(January 1990) • The Secretary believed that she had sole 

discretion pursuant to the Mine Act to decide whether OSHA or 

MSHA should inspect the subject area of the mine based on 9

'administrative convenience". Although Judge Melick found no 

basis for sanctions against the Secretary, he stated that "this 

does to mean that the Secretary's practices disclosed at hearings 

should be condoned or be found to be acceptable. Indeed the 

Secretary's past practice of determining MSHA inspection 

authority over the subject area ••.• is quite bizarre and 

2038 
clearly unacceptable". 12 FMSHRC 123. Judge Melick found that 

once Penelec raised the issued of MSHA/OSHA jurisdiction, nthe 

matter was resolved at the local level". 

Upon reconsideration of the case, and in an evenly split 

decision, the Commission allowed Judge Melick's decision on 

remand to stand as if affirmed. 12 FMSHRC 152, 1563 

(August 1990). The Commission reaffirmed its previous finding 

concerning Mine Act jurisdiction over the cited conveyor head 

drives. With respect to MSHA/OSHA jurisdiction, the Commission 

observed as follows at 12 FMSHRC 567-1568: 

The evidence produced by the Secretary on remand makes 

clear that the particular area in question has been 

inspected by MSHA since at least 1982 and no evidence 

was produced to show that OSHA has ever inspected it. 

As a consequence, the Interagency Agreement has no 

bearing on this case because no question or conflict 

between OSHA and MSHA existed. We now know 'that the 

Secretary has consistently inspected the head drives 

under the Mine Act rather than the OSHA Act. As 

discussed above, Penelec had notice of this fact. 

Penelec filed an appeal with the Third Circuit, and the 

Court affirmed the Commission's decision. Pennsylvania Electric 

Company v. FMSHRC, 969 F.2D 1501 (3rd Cir. 1992). The court 

upheld MSHA's authority to regulate coal handling and processing 

areas at an electric power generating station, and it further 

held that the cited work activity was clearly antecedent to and 

separate from the process of producing electric power, and 

instead, constituted coal preparation. The court observed that 

Gait is clear that Penelec1s head drives come under the Mine Act 

jurisdiction, regardless of whether the facility receiving the 

coal for processing is also under Mine Act jurisdiction. We need 

only look to MSHAus regulation of the conveyors leading to the 

coal cleaning facilities to reach the proper decision in this 

case" 969 F.2d 1504. 

Westwood Energy Properties v. Secretary of Labor {MSHA}, 

11 FMSHRC 105 (January 1989)u concerned a large culm bank refuse 

pile located in Tremont, Pennsylvania on property owned by 

Westwood Energy, the operator of a power generating plant located 

on the premises. The plant was built on the site of an 

anthracite mine that ceased operations in 1947, and the culm pile 

was created as the refuse product of the previously operated mine 

and preparation plant. The pile contained coal mine refuse, 

including rock, slate, shale, wood, metal, both ferrous and 

nonferrous, granite, quartz, pyrite, and a small percentage of 

coal and other carbonaceous material. Westwood used the material 

in the culm pile as fuel to generate electrical power which was 

sold to the Metropolitan Edison Company. Westwood engaged a 

2039 
contractor to remove the material from the Culm bank and load it 

into hoppers where wood and other materials larger than 12 by 

12 inches were removed. Metal was removed by means of a magnet 

and a metal detector. The culm material was then transported to 

a silo and crushed in two steps to a particle size of one-eighth 

of an inch. It was then transported to the combuster where it 

was burned in a process called a circulating fluidized bed 

process of combustion. This process resulted in steam which 

drove turbines and created electrical power. 

On october 27, 1987, MSHA inspectors appeared at the 

Westwood site seeking entry to conduct an inspection. Westwood 

took the position that it was a power generation facility not 

subject to MSHA's jurisdiction, and it denied entry to the 

inspectors. MSHA obtained a restraining order permitting the 

inspection, and the inspectors returned on November 14, 1987, 

conducted an inspection, and issued several citations. At the 

time of the inspection, the work was being done by Westwood's 

contractor and its 30 to 35 employees, but Westwood was in 

overall charge, and except for the question of jurisdiction, it 

did not dispute the violations. 

Commission Judge James Broderick found that Westwood's 

activities were subject to the Mine Act and to MSHA's 

jurisdiction, and he affirmed the citations. Judge Broderick 

reasoned as follows at 11 FMSHRC 111, 115-116: 

The Secretary of Labor is given the initial 

responsibility for determining whether a facility is 

subject to the Mine Act. She is in a unique position 

to determine the dividing line between MSHA and OSHA 

jurisdiction? since both programs are administered by 

hero I assume that the issuance of citations by MSHA 

to Westwood reflects the Secretary's determination that 

the subject facility is a mine and therefore is subject 

to the Mine Act. Although such a determination is not 

binding on the Commission, it must be accorded great 

weight in our consideration of the jurisdictional 

questiono 

* * * 

Westwood argues that "it is a power plant, pure and 

simple"; that it utilizes a stockpile of fuel as a 

conventional power plant would use a stockpile of coal. 

It consumes fuel and does not produce a marketable 

mineral. Westwood's argument emphasizes the latter 

distinction as if the marketing of coal or other 

mineral is essential to the idea of mining or coal 

preparation. But it is not uncommon for mine operators 

to themselves consume the products of their mines. And 

Westwood does more than burn the culm material; it 

2040 

* 
prepares it ''for a particular use." Elam, supra: it 

extracts the culm from the bank and loads it into 

hoppers, where certain waste materials are removed; it 

then transports it on a conveyor belt where ferrous 

metals are removed by a magnet; thereafter a metal 

detector seeks other metals which are rejected. The 

residual fuel is then crushed or sized to particles 

approximately one quarter inch in size. All this takes 

place prior to the fuel being introduced into the 

boiler building. These activities closely resemble the 

"work of preparing the coal" as defined in the Act. 

I am persuaded that the sweeping definition of a coal 

or other mine in the Act, and the admonition in the 

Legislative History that the term be given the broadest 

possible interpretation brings Westwood's facility 

within its terms. Any doubt that the culm bank is or 

includes "lands .••• structures, facilities, .•. 

or other property including impoundments, • . . on the 

surface or underground, used in, • . . or resulting 

from the work of extracting such minerals from their 

natural deposits .•. 11 must be resolved in favor of 

coverage. 

I am further persuaded that Westwood's use of the culm 

includes the work of preparing the coal, since it 

breaks, crushes, sizes, stores and loads anthracite, 

and does other work of preparing coal usually done by 

the operator of a coal mine. 

In both of these conclusions, I am giving deference to 

the determination by the Secretary of Labor that 

Westwood's facility and operation are subject to the 

Mine Act. 

Westwood appealed Judge Broderick's decision to the 

Commission. Westwood Energy Properties v. Secretary of Labor 

(MSHA>v 11 FMSHRC 2408 (December 1989)Q Westwood contended that 

its operations at the culm bank were but one component of an 

operation of an electric generating facility subject to the OSHA 

Actu rather than the Mine Act. The Secretary asserted mine Act 

jurisdiction in connection with Westwood's culm bank activities, 

but did not assert Mine Act jurisdiction with respect to the 

working conditions inside the power generating facility itself, 

and it took the position that those activities were subject to 

OSHA jurisdiction. Westwood maintained that the entire facility, 

including the culm bank, was properly regulated by OSHA. 

The Commission found that Westwood's activities fell within 

the Mine Act's definitions of "mine" or "work of preparing the 

coal", and it concluded that the Secretary had statutory 

authority to make safety standards applicable to the disputed 

2041 
area. However, the Commission was unable to conclude from the 

record whether the Secretary chose to exercise her authority to 

regulate Westwood's operation under the Mine Act or the OHSA Act, 

and it remanded the matter to Judge Broderick for the taking of 

further evidence and the entry of a new decision. In remanding 

the matter to Judge Broderick, the Commission stated as follows 

at 11 FMSHRC 2414-2415: 

We conclude that Westwood literally engages in the 

"work of preparing the coal" in that the processes 

undertaken by Westwood on the mine waste material, 

including coal, are among those specified in the 

statutory definition. We further conclude that 

although Westwood does not undertake to prepare the 

coal contained in the mine refuse to meet market 

specifications, it does engage in the enumerated 

processes, as does the normal coal mine operator, for 

the purpose of making the mined material suitable for a 

particular use; here, as ,a fuel to be consumed at an 

electric generating facility. 

Although Westwood further argues that it is exempt from 

Mine Act jurisdiction because it does not prepare the 

culm for resale but rather is the ultimate consumer of 

the culm, we rejected a similar "ultimate consumer" 

argument in Pennsylvania Electric. 11 FMSHRC at 1881. 

We noted that under the Mine Act consumers of coal who 

otherwise meet the applicable definition of "mine" or 

"work of preparing the coal" are not provided any per 

se exclusion from the Act's jurisdiction. We held 

instead that the determination of Mine Act jurisdiction 

is governed by the two part analysis first set forth in 

Elam and followed in subsequent caseso (footnote 

omitted). 

Andq further at 11 FMSHRC 2419: 

* * * *As we did in Pennsvlvania Electric, we encourage 

the Secretary to give serious consideration to the 

questions raised by this case and to follow the 

procedures in the OHSA-MSHA Interagency Agreement to 

resolve the conflicting positions taken on her behalf. 

on August 3, 1990, Judge Broderick issued his decision on 

remand, 12 FMSHRC 1625 (August 1990), when he approved a 

settlement submitted by the parties. Westwood agreed to pay 

civil penalty assessments in settlement of the contested 

citations, and Judge Broderick dismissed the case subject to 

payment by Westwood. The decision summarizes the settlement as 

follows at 12 FMSHRC 1625: 

2042 
The settlement agreement provides that Westwood will 

withdraw its contest proceedings and pay the $900 in 

civil penalties assessed in my decision of January 26, 

1989. It further provides that MSHA will not assert 

jurisdiction over Westwood's facility in the future, so 

long as Westwood does not materially change the manner 

in which it processes culm as described in the 

Commission decision. If MSHA determines that a 

material change has occurred and decides to reassert 

its jurisdiction, it will so notify Westwood. Westwood 

does not admit MSHA's jurisdiction over any portion of 

the Westwood facility and its withdrawal of the notices 

of contest is without prejudice to its right to contest 

any future assertion of jurisdiction by MSHA. 

Air Products and Chemicals, Inc. v. Secretary of Labor 

CMSHAl, 13 FMSHRC 1657 (October 1991), concerned an electric 

generating facility (Cambria CoGen) utilizing two combustion 

boilers with bituminous coal refuse as its primary energy source 

to power a steam turbine generator. Air Products operated the 

facility, and its primary business was the production and sale of 

electricity to the Pennsylvania Electric Company, and the 

production of steam for a local nursing home. Air Products was 

cited with a violation of section 103(a) of the Mine Act for 

refusing to allow an MSHA inspector to enter its facility for an 

inspection. The matter was adjudicated by Commission Judge Gary 

Melick, and the issues included whether or not the facility areas 

in issue were a "coal mine" within the meaning of the Act and 

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

exercised its authority in a manner sufficient to displace OSHA's 

enforcement authority. 

Judge Melick described the process taking place at the 

facility as follows at 13 FMSHRC 1658: 

The fuel is obtained from bituminous coal refuse piles 

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

and supplied by RNS. The coal refuse is delivered by 

truck to the Cambria CoGen facility and dumped into a 

hopper at the refuse receiving building. The product 

then passes through a grizzly which screens out large 

objects, including rock, slate, timbers, roof bolts, 

and large pieces of coal. The product is then 

transported to a refuse storage building and then 

conveyed as need to the Bradford breaker building. It 

is there fed onto a rotating Bradford drum breaker 

which further screens and sizes the material for easier 

handling and to prevent damage to other equipment in 

the facility. 

2043 
The rema~n~ng minus-6 inch material then proceeds onto 

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

distributes the piles and a reclaim machine places coal 

on another conveyor as needed. The c-2 belt then 

transports coal to the crusher building where screens 

separate minus-2 inch material. That material is then 

further crushed to one-quarter inch to zero-inch size 

with a roll crusher. This product is then conveyed to 

the boiler building storage facility, where it is 

stored until conveyed to the boilers by way of the 

boiler plant feed belt. The Secretary acknowledges 

that MSHA jurisdiction would not extend beyond the 

point where the coal product is dumped onto the plant 

feed belt. (Emphasis added). 

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

the boilers to maintain a proper mix of combustibility. 

This coal is delivered by_ truck and transported by belt 

to the run-of-mine coal storage tepee. That material 

then proceeds to the crusher building where it is 

screened down to one-quarter inch by zero-inch size. 

The material is then fed to the boiler building but 

stored separate and apart form the refuse coal for 

later mixing as needed for the boilers. 

Citing the statutory definitions of a "coal or other mine", 

Judge Melick concluded that the cited areas came within Mine Act 

jurisdiction, and he stated as follows at 13 FMSHRC 1661: 

Within this framework, it is clear that in at least a 

portion of the Cambria CoGen facility cited by MSHA in 

this caseu coal refuse is brokenu crushed, sizedu 

andjor cleaned in preparation for consumption in the 

generating facilityo These activities are all within 

the scope of "work of preparing coal" within the 

meaning of section 3(i) of the Mine Act. It is also 

clear that the area at issue includes "structures," 00 equipmentu 81 and machinery" that are "used in or to be 

used in11 the nwork of preparing the coal. 10 It is 

therefore clear that the areas cited in this case were 

indeed subject to Mine Act jurisdiction. In this 

regard it is also noted that Air Products acknowledges 

that the nature of the facility herein is essentially 

indistinguishable from the nature of the facility found 

by the Commission in Westwood Energy Properties, 11 

FMSHRC 2408 (1989), to be within Mine Act jurisdiction. 

Notwithstanding his jurisdictional finding, Judge Melick 

further concluded that the Secretary failed to clearly designate 

whether OSHA or MSHA should exercise regulatory authority over 

the working conditions at the Air Products facility, and he cited 

the Commission's prior discussions in the Westwood Energy and 

2044 
Pennsylvania Electric cases. Judge Melick concluded that the 

record before him failed to reflect "a reasoned resolution of the 

jurisdictional questions by the Secretary and her agencies", and 

that MSHA's inspection of the facility "simply resulted from an 

ad hoe unilateral assertion of jurisdiction by MSHA". 13 FMSHRC 

1663. Under all of these circumstances, Judge Melick vacated the 

contested citation issued to Air Products, and both parties 

appealed the matter to the Commission. The Commission granted 

review on November 15, 1991, 13 FMSHRC (November 1991), and the 

matter is still pending. 

Petitioner's Arguments 

In support of its motion for summary judgment in the instant 

cases, the petitioner maintains that the respondent's operations 

are subject to Mine Act jurisdiction under two separate statutory 

provisions. First, petitioner asserts that the respondent is an 

"operator" under section 3(d) of the Act because ~t is an 

"independent contractor ••• 'performing services" at a mine. 

Second, petitioner believes that the respondent is subject to the 

Act because an analysis of the functions it performs requires the 

conclusion that its entire operations preceding the entry of the 

gob into the plant building must be considered a "coal or other 

mine" under section 3(h) of the Act because its operations 

perform the "work of preparing the coal" under section 3(i) of 

the Act. 

Petitioner points out that all of the contested citations 

and orders that are the subject of these proceedings were issued 

for violative conditions found on the North Branch Mine property. 

MSHA concludes that the operations taking place on North Branch's 

property clearly constitute "a coal or other mine" as that term 

is defined in section 3(h) of the Act, citing Secretary of Labor, 

MSHAu v. Westwood Energy Properties, 11 FMSHRC 2408 (1991} (culm 

bank is a 11mine"); Consolidation Coal Co. v. FMSHRC, 3 BNA 

MSHC 2135 (4th Cir. 1986) (coal refuse pile is a "mine"). 

Citing Secretary of Labor, MSHA v. Otis Elevator co. 0 

11 FMSHRC 1896 (October 1989)u aff'd, 921 F.2d 1285 (D.C. Cir. 

1990); National Indus, Sand Ass'n. v. Marshall, 601 F.2d 289 (3rd 

Cir. 1979); and Old Dominion Power Co., v. Secretary of Laboru 

772 F.2d 92 (4th Cir. 1985), petitioner asserts that an 

independent contractor's proximity to the mining process 8 and 

the extent of its presence at the mine, are critical factors in 

determining whether an independent contractor is an "operator" 

under the Act. Petitioner further relies on the Commission's 

decision in Secretary of Labor, MSHA v. Bulk Transportation 

Services, Inc., 13 FMSHRC 1354, 1357 (September 1991), holding 

that an independent trucking company hauling a substantial amount 

of coal from a mine to an electric generating station was the 

exclusive coal hauler between the mine and the station, and that 

these services constituted essential services closely related to 

2045 
the coal extraction process subjecting the trucking company to 

jurisdiction under the Act and to MSHA's enforcement 

jurisdiction. 

Petitioner points out that the conveyor system operated and 

maintained by the respondent is the exclusive means of 

transportation for substantial amounts of gob from the mine 

refuse area to the plant which is the only customer for the gob. 

Under the circumstances, the petitioner concludes that the 

respondent's operations on the North Branch Mine property clearly 

perform an essential service for the mine. Petitioner further 

concludes that the extent of the presence of the respondent on 

the mine property must also be held to be clearly sufficient. In 

support of this conclusion, petitioner points out that the 

conveyor and related equipment have been continually present at 

the mine refuse area since their construction, and they are 

expected to continue their presence there for the next ten years. 

Further, the petitioner asserts that the respondent's employees 

must frequently and regularly,enter.on the mine property in order 

to clean the grizzly conveyor magnet each day, adjust the 

isolation gate in the end plate of the dozer trap, inspect, 

maintain, and repair the conveyor belt system, and clean up 

spills around the conveyor belts. 

In support of its argument that the respondent is an 81 operator" because it operates, controls and supervises the coal 

mine operations of the power plant at that property, the 

petitioner asserts that the respondent's work activities 

preceding the entry of the gob into the power plant building are 

the same as those found by the Commission to constitute the "work 

of preparing the coal" in Westwood Energy Properties, supra. In 

support of this conclusionq the petitioner relies on the fact 

that the gob is excavated by bulldozers, then subjected to a 

series of filters to remove the larger particles. Because the 

plant uses the same circulating fluidized bed process as in 

Westwood to burn the gob, the gob is broken and crushed to a 

small uniform size no greater than one-quarter (1/4) of an inch. 

After the gob is cleaned through the use of magnets which removes 

the metal 0 it is stored in hoppers at the truck dump and in the 

crusher building, where it is gradually released into crushers. 

Under all of these circumstances, the petitioner asserts that the 

Westwood decision demands the conclusion that the processes 

undertaken by the respondent on the mine gob waste material, 

including coal waste, constitutes the "work of preparing the 

coal" because they are among the processes specified in the 

statutory definition. 

The petitioner also relies on the Third circuit's holdings 

in Pennsylvania Electric Co., supra, that the delivery of coal 

from a mine to a processing station via a conveyor constitutes 

coal preparation "usually done by the operator of a coal mine", 

969 F.2d·at 1503, and that this was true "regardless of whether 

2046 
the facility receiving the coal for processing is also under Mine 

Act jurisdiction", 969 F.2d at 1504. Petitioner concludes that 

the Court's holding demands that the entire conveyor system 

outside of the power plant building be found to be a "coal or 

other mine", including the portion of the conveyor belt system 

operated and maintained by the respondent in the instant 

proceedings on mine property. Since the entire operations of the 

respondent, preceding the entry of the gob into the plant 

building, constitute the "work of preparing the coal" as defined 

in Section J(i) of the Mine Act, petitioner concludes that these 

operations are a "coal or other mine" under Section J(h) of the 

Act, and that it had jurisdiction under the Act to issue the 

citation and orders for the conditions found at the respondent's 

operations being conducted on the North Branch Mine property. 

Respondent's Arguments 

Citing the Mine Act statutory definitions of "coal or other 

mine" and the"work of preparing coal", the respondent asserts 

that it is clear from the definitions and the scope of the Act 

that a two (2) step analysis is applicable in determining whether 

its activities fall within the Act; namely, (1) which if any, of 

the enumerated processes apply to the respondent's operations, 

and (2) whether the enumerated processes are undertaken nas is 

usually done by the operator of a coal mine". The respondent 

believes the relevant issue is whether the coal is being prepared 

for commercial purposes. Citing the Commission's decision in 

MSHA v. Oliver M. Elam, Jr., 4 FMSHRC 5 (January 7, 1982), the 

respondent points out that the Commission recognized that the 

generally broad interpretation of the Act has certain limits, and 

that simply because an operator in some manner handles coal does 

not mean that its operations constitute a "mine" subject to the 

Act. The respondent further points out that the commission has 

acknowledged that it is not sufficient to check-off whether the 

enumerated processes are being performed, and that the nature of 

the processes must also be considered. 

The respondent asserts that the Commission followed the 

aforementioned two-step process in Alexander Brothers, Inc., 

4 FMSHRC 541 (April 1982), and Donovan v. Inland Terminals, Inc., 

3 MSHC (BNA) 1893 (DC SD Ind., March 28, 1985), in determining 

whether the enumerated coal processes were being performed in 

order to release the coal into the chain of commerce. Respondent 

also cites the Pennsylvania Electric Company decision, supra, in 

support of its argument that the performance of listed work 

activities and the nature of the operation performing those 

activities are relevant in determining whether "coal preparation" 

is taking place. 

Acknowledging the fact that the legislative history of the 

Act reflects that the statutory definitions should be given the 

broadest possible interpretation, the respondent concludes that 

2047 
Congress never intended for ultimate consumers of coal, like the 

plant in question, to be regulated by the Act, and that the 

Congressional intent was to regulate only traditional mines, and 

to establish a single mine safety and health law applicable to 

all mining activity. Citing and quoting Commissioner Doyle's 

dissent in Pennsylvania Electric Company, 11 FMSHRC 2t 1889-1890, 

the respondent argues that there is no indication of any 

Congressional intent to "follow the coal wherever it may go" and 

to regulate other industries such as electric utilities or steel 

mills. The respondent maintains that coal-fired power plants 

have historically been regulated by OSHA rather than MSHA, even 

though the plants engage in many of the enumerated processes 

defined as the "work of preparing coal" under the Mine Act. 

Accordingly, the respondent concludes that the Act has 

consistently been construed as less than all-encompassing, and 

that Congressional acquiescence in this interpretation is 

conclusive evidence that MSHA's insistence that it has 

jurisdiction over the power plant in the instant proceedings 

is inconsistent with years of-prior policy. 

The respondent asserts that the applicable definitions of 

"coal mine" and "work of preparing the coal" at issue in these 

proceedings also apply to cases decided under the Black Lung 

Benefits Act, 30 u.s.c. § 901-945, a subchapter of the Mine Act. 

Citing several cases decided in the context of black lung 

disability claims, the respondent argues that unless a commercial 

purpose is involved, the phrase "preparation of coal" has no 

application. The respondent cites the case of Wisor v. Director. 

OCWP, 748 f.2d 176, 179 (3rd Cir. 1980), as a holding by this 

Commission that the definition of a coal mine "includes a 

commercial purpose requirement". 

The respondent asserts that the Court majority in the 

Pennsylvania Electric Company case misconstrued the two black 

lung cases it relied on in reaching its decision. The respondent 

maintains that if the Commission accepts MSHA's contention that 

its operations constitute "the work of preparing coal" based upon 

the occurrence of the previously discussed enumerated processes, 

then the Commission must totally disregard any exception for the 

ultimate consumer of coal, a result that the respondent believes 

would extend Mine Act jurisdiction far beyond the point intended 

(quoting from the dissenting judge in the Pennsylvania Electric 

Company case) . 

The respondent further argues that reliance on an evaluation 

of the presence of enumerated processes without an assessment of 

the nature of the operation in terms of whether it is the 

ultimate consumer of the coal would require that at least that 

portion of any business which uses coal would be subject to the 

Act. The respondent concludes that an abandonment of the 

"ultimate consumer stream of commerce" test would not provide any 

reasonable guidance in future cases on the issue of where milling 

2048 
preparation ends and manufacturing begins. Citing Old Dominion 

Power Company, supra, at 772 F.2d 99, the respondent further 

concludes that accepting the position of the petitioner with 

respect to MSHA's enforcement jurisdiction would also have 

potentially serious safety consequences. For all of the reasons 

noted, the respondent believes it is evident that its activities 

do not constitute the "work of preparing coal" as contemplated by 

the Mine Act, and that the Act is not applicable. 

MSHA vs. OSHA Enforcement Jurisdiction 

As an alternative argument, the respondent maintains that 

MSHA has failed to exert its regulatory authority in such a 

manner as would preempt OSHA jurisdiction. Citing Columbia Gas 

of Pennsylvania, Inc., v. Marshall, 636 F.2d 913, 915-16 (3rd 

Cir. 1980), the respondent maintains that in order to preempt 

OSHA's jurisdiction, MSHA must specifically show that it has 

exercised its authority by promulgating regulatio'ns in the 

disputed area, and that these 'Concurrent regulations cover 

specific "working conditions" purportedly within OSHA's 

jurisdiction. 

The respondent asserts that a review of the regulatory 

history regarding the power plant in question fails to 

demonstrate that the Secretary of Labor has consistently and 

unequivocally exercised authority under MSHA. The respondent 

points out that even if one were to presume that MSHA has 

promulgated regulations which apply to its operations, in the 

totality of the circumstances existing at the time the subject 

citations and orders were issued, it could not reasonably have 

been known that it was subject to regulation under MSHA. In 

support of its positionu the respondent cites the following: 

~0 The April 17, 1979u MSHA OSHA Interagency 

Agreementr drawn up to apprise facilities of 

the limits of MSHA jurisdiction, cited . facilities closely related to traditional 

mining activities as examples of facilities 

included within MSHA jurisdiction, and the 

issue of jurisdiction over coal handling at 

electric plants was not specifically 

addressed. 

2. In a November 29, 1985, Motion to Dismiss 

filed with the Commission in Utility Fuels, 

Inc., Docket No. CENT 85-89, Counsel for the 

Secretary represented that: 

"MSHA traditionally has not inspected power 

plants. Although the Secretary is not able 

to cite a particular memorandum incorporating 

this policy, MSHA and its predecessors have 

2049 
consistently found the production of power to 

be outside the jurisdiction of the agency. 

MSHA has taken into account that a portion of 

the process utilized to produce electric 

power from coal requires handling and 

processing coal but has determined that those 

activities are subsumed in the specialized 

process utilized to produce electric power 

and that the power plant process is more 

feasibility regulated by OSHA." 969 F.2d 

1501, 1515 (3d. Cir. 1992). 

3. on January 31, 1989, OSHA issued proposed 

Rule 29 C.F.R.1910, relating to Electric 

Power Generation, Transmission, Distribution 

and Electric Protective Equipment. In the 

proposed Rule, OSHA stated that the rule was 

intended to cover work practices at "[f)uel 

and ash handling and.processing installations 

such as coal conveyors and crushers." 54 Fed. 

Reg. 4973-5024. (Jan. 31, 1989). 

4. on January 28, 1989, at oral argument in 

Westwood Energy Properties v. Secretary of 

Labor, MSHA, 11 FMSHRC 2408 (Dec. 1989}, 

counsel for the Secretary stated that coal 

consumers such as steel mills and aluminum 

plants may be subject to the Mine Act 

jurisdiction if they engage in coal 

processing activities. However, even though 

Westwood did engage in such activities, MSHA 

settled the case and declined to assert 

jurisdiction. (MSHA has refused to settle 

the present dispute in a similar manner.) 

5. During construction of the plant in question 

in these proceedings, plant officials met 

with OSHA representatives to discuss the 

functions of plant and compliance with 

applicable OSHA regulations. 

6. The plant in question in these proceedings 

was constructed in compliance with OHSA 

standards and specifications, and OSHA 

asserted jurisdiction over the plant by 

conducting inspections. 

7. In August, 1991, MSHA inspected the dozer 

trap and portion of the conveyor system which 

is located on Island creek Coal Company's 

property for the first time. At that time, 

the dozer and the conveyor system were being 

2050 
operated by Wiley Construction Incorporated. 

This inspection was the result of an 

individual inspector's decision to carry out 

the inspection after having being asked about 

it while inspecting the North Branch Mine, 

and it was not the result of any Secretarial 

policy decision, nor the result of any 

MSHA/OSHA agreement at the District Manager 

level pursuant to the Interagency Agreement, 

nor the result of any decision by the MSHA 

District Manager that such an inspection was 

within MSHA's jurisdiction. 

8. on September 5, 1991, counsel for North 

Branch Partners wrote to OSHA's Area Director 

requesting that a jurisdictional 

determination be made pursuant to the 

MSHA/OSHA Agreement that OSHA had inspection 

and enforcement jurisdiction over the power 

plant in question. A response was received 

on April 8, 1992, indicating that both MSHA 

and OSHA would have jurisdiction over the 

power plant and that MSHA's jurisdiction 

would stop at the property line. The 

respondent does not believe that the OSHA 

response was a definitive response to 

counsel's inquiry as contemplated by the 

OSHA/MSHA Interagency Agreement. 

9. In between the time of the requested OSHA 

determination noted in paragraph eight (8), 

and the response thereto, MSHA again 

inspected the power plant's dozer hopper and 

the portion of the conveyor system located on 

Island Creek property, and one citation and 

four orders were issued by MSHA on February 

26, and 27, 1992. 

lOo At the time the subject citations and orders 

were issued by MSHA, no official Department 

of Labor policy existed which assigned coal 

handling and processing activities undertaken 

by an electric utility to MSHA's 

jurisdictiono In fact, the inspectors who 

actually issued the citations and orders were 

and are themselves unsure of the limits of 

their jurisdiction, as evidence by the fact 

that their inspections stopped at what they 

perceived to be the property line even though 

the coal handling and processing activities 

undertaken above the property line were 

2051 
essentially the same as those undertaken 

below the property line. 

11. Before the last two orders which are at issue 

in these proceedings were issued on May 12, 

1992, and August 27, 1992, respondent's 

counsel specifically requested counsel for 

the Secretary to apprise it of the status of 

interagency negotiations regarding whether 

MSHA or OSHA would have jurisdiction over the 

operations conducted by the respondent • 

Such information was sought through the 

discovery process in this case, and the 

Secretary objected, based on a "interagency 

predecisional deliberative process 

privilege." The respondent concludes that 

the Department of Labor had not (and still 

has not) made up its own mind which agency, 

MSHA or OSHA, should.regulate the activities 

of the respondent. 

12. The respondent points out that while 

insisting that it has jurisdiction over the 

coal handling processes and the conveyance of 

coal at the plant in question, MSHA has not 

asserted jurisdiction over similar operations 

which are regulated by OSHA. As an example, 

the respondent asserts that similar coal 

handling and conveyor processes and 

procedures at the AES Beaver Valley Power 

Plant (as documented by a videotape, Exhibit 

F)u are regulated entirely by OSHA and not 

MSHA. 

The respondent also cites the following relevant deposition 

testimony of MSHA'S inspectors: (1) Inspector Darios' admission 

that MSHA does not inspect power plants but does inspect the 

conveyance system that transport coal to some power plants; (2) 

Inspector Ryanvs admission that MSHA inspects coal delivery 

processes going to the Mt. Storm Power Plant, but asserts no 

jurisdiction once the coal is delivered; (3) Inspector George's 

admission that he had never been in a power plant until the day 

prior to his deposition when he toured the plant in question in 

these proceedings, and his belief that MSHA has a duty to inspect 

any coal handling or conveyance procedures that are similar to 

those at the plant; and (4) Inspector Fetty's admission that he 

had never inspected any power plant previous to his inspections 

in these cases, and that his prior power plant inspections were 

of the systems that delivered the coal to the plant. 

The respondent believes that it has been given conflicting 

signals about its obligations under the Mine Act, and it 

2052 
concludes that the evidence does not demonstrate that it knew 

when the citations and orders were issued that its operations 

were subject to MSHA citation. Further, since the Secretary has 

failed to issue the findings of his interagency negotiations with 

respect to MSHA/OSHA jurisdiction, the respondent concludes that 

"the regulatory confusion highlighted by this case has yet to be 

resolved". The respondent further concludes that the Secretary's 

position in these proceedings is unreasonable in that it leaves 

the plant operator in the position of being required to guess 

what the Secretary's regulatory position will be on any given 

day, and that position, may, in fact, vary in different areas of 

its operation. 

The respondent further contends that overlapping authority 

by MSHA and OSHA at the plant would result in inconsistent 

standards mandating significant differences in the design of 

equipment, and employee work safety rules and training. Under 

the circumstances, and assuming that MSHA has jurisdiction, the 

respondent suggests that before any citations andjor orders can 

be upheld, the Secretary must provide a clear statement regarding 

the jurisdictional limits for prospective enforcement. In 

support of this position, the respondent cites Air Products and 

Chemicals, Inc., supra, where Judge Melick vacated a citation 

because the Secretary failed to clearly designate whether MSHA or 

OSHA should exercise regulatory authority. 

In conclusion, the respondent acknowledges that deference is 

to be accorded interpretations by the agency charged with 

enforcing a law. However, in the instant proceedings, the 

respondent takes the position that the Secretary is not entitled 

to such deference because his attempts to assert jurisdiction 

over electric power generating plants, or to put the operators of 

such facilities on notice of liability under the Mine Act, did 

not occur until the late 198Qis, well after the 1978 effective 

date of the Act. Further, the respondent believes that it is 

clear from the record in these proceedings that the first efforts 

toward inspecting its facilities came from a single inspector, 

and subsequently his District Manager in 1991, and there is no 

indication that their efforts represent the Secretary of Labor 6 s 

interpretation of the Act. Because the Secretary of Labor's 

interpretations are both late in coming and inconsistent, the 

respondent asserts that any deference that would ordinarily be 

due the Secretary in interpreting the Act is not appropriate in 

this instance. Accordingly, the respondent suggests that even 

assuming that Mine Act jurisdiction attaches, the citations and 

orders should nonetheless be vacated. 

2053 
Findings and Conclusions 

The Jurisdictional Question 

These proceedings are the result of MSHA's inspection of 

that portion of the gob conveyor belt that extends approximately 

300 to 500 feet on to the North Branch Mine and preparation plant 

owned by Island Creek Coal Company and operated by its affiliate, 

the Laurel Run Mining Company. Although the respondent asserts 

that the mine and preparation plant are no longer in operation, 

it is undisputed that the mine was operational at the time the 

MSHA inspectors conducted their inspections and issued the 

violations. The mining operation included the aforesaid portion 

of the belt, a preparation plant, and the refuse and gob pile, 

all of which were within the confines of the mine, and not on 

property owned by the respondent or the owners and operators of 

the power plant. 

It does not appear from the record before me that the 

respondent has any ownership interest in the power plant, plant 

equipment, the conveyor belt, or the gob that is transported from 

the North Branch Mine gob pile to the power plant site. Based on 

the available information, including the undisputed facts, the 

respondent has a continuing services agreement with NB Partners 

Ltd., the partnership entity that constructed and manages the 

power plant, to provide the labor and material for operating the 

plant and servicing and maintaining the belt conveyor system. 

The respondent has approximately 150 similar service contracts 

worldwide. The Island creek Coal Company, the Laurel Run Mining 

Company, and NB Partners Ltd., are not parties in these 

proceedings, and the civil penalty proceedings were initiated 

against the respondent United Energy Services, Inc. 

Section 4 of the Mine Act provides as follows: Each coal or 

other mine, the products of which enter commerce, or the 

operations or products of which affect commerce, and each 

operator of such mine, and every miner in such mine shall be 

subject to the provisions of this Act. 

Section 3(d) of the Act defines 11 operator 11 as "any owner, 

lessee, or other person who operates, controls, or superv1sors a 

coal or other mine or any independent contractor performing 

services or construction at such mine." (Emphasis added). 

MSHA's Independent Contractor regulations, which provide 

certain requirements and procedures for contractors to obtain 

MSHA identification numbers, Part 45, Title 30, Code of Federal 

Regulations, section 45.1 et seq., defines an "independent 

contractor" as follows at section 45.2(c): "'Independent 

Contractor' means any person, partnership, corporation, 

2054 
subsidiary of a corporation, firm, association or other 

organization that contracts to perform services or construction 

at a mine; * * *" 

The Commission's decision in Secretary of Labor, MSHA, v. 

Bulk Transportation Services, Inc., 13 FMSHRC 1354, 1357 

(September 1991), summarizes the basis for coverage of 

independent contractors under the Act. 

Section J(d) of the Mine Act expanded the definition of 

"operator" previously contained in the Federal coal 

Mine Health and Safety Act of 1969, 30 u.s.c. § 801 et 

seq. (1976) ("Coal Act"), to include "any independent 

contractor performing services or construction at such 

mine." The legislative history of the Mine Act 

demonstrates that the goal of Congress in expanding the 

definition of "operator" was to broaden the enforcement 

power of the Secretary to reach a wide range of 

independent contractors,-not just owners and leases. 

The Report of the Senate Human Resources Committee 

explained that the definition of operator was expanded 

in order to "include individuals of firms who are ••• 

engaged in construction at such mine, or who may be, 

under contract or otherwise, engaged in the extraction 

process •••• " S. Rep. No. 181, 95th Cong., 1st Sess. 

14 (1977), reprinted in Senate Subcommittee on Labor of 

the Committee on Human Resources, 95th Cong., 2nd Sess. 

Legislative History of the Federal Mine Safety and 

Health Acto 1977, at 602 (1978) (Legis. History.") 

The Conference Report likewise explained that the 

expanded definition "was intended to permit 

enforcement 11 of the [Mine] Act against independent 

contractors q

1performing services or construction and 

ogwho may have a continuing presence at the mine. " 

s. Conf. Rep. No. 461, 95th Cong. 1st Sess. 37 (1977), 

reprinted in Legis. Hist. at 1315. The Commission has 

consistently recognized that the inclusion of 

independent contractors in the statutory definition 

reflects a Congressional purpose to subject such 

contractors to direct MSHA enforcement under the Mine 

Act. [Citation omitted]. 

In otis Elevator Company, (Otis I), 11 FMSHRC 1896 (October 

1989), and Otis Elevator Company, (Otis II), 11 FMSHRC 1918 

(October 1989) 1 aff'd, 921 F.2d 1285 (D.C. Cir. 1990), the 

Commission affirmed two decisions by the presiding Judges holding 

that an elevator service company that inspected, serviced, and 

maintained a mine elevator under a contract with the mine 

operator was an independent contractor "operator" subject to the 

Act and to MSHA's enforcement jurisdiction. The Commission 

2055 
affirmed the Judges' findings that otis had a continuing, 

regular, and substantial presence at the mine site performing 

services on an elevator which was a key facility and essential 

ingredient involved in the coal extraction process. In making 

its determination, the Commission reviewed the case laws 

regarding independent contractors, including National Indus, Sand 

Ass'n v. Marshall, 601 F.2d 289 (3rd Cir. 1979), and Old Dominion 

Power Co. v. Secretary of Labor, 772 F.2d 92 (4th Cir.), relied 

on the expanded definition of "operator" found in the Act, and 

examined the independent contractor's proximity to the extraction 

process and the extent of its presence at the mine to determine 

whether the independent contractor was an operator under the Act. 

This same analysis is relevant and appropriate in these 

proceedings. 

I conclude and find that the operations taking place at the 

North Branch Mine property, when the violations were issued, 

including the mine preparation plant and refuse or gob pile, 

constitute a "coal or other mine" as that term is defined in 

section 3(h) of the Act. Secretary of Labor, MSHA v. Westwood 

Energy Properties, supra; Consolidation Coal Co. v. FMSHRC, 3 BNA 

MSHC 2135 (4th Cir. 1986). Respondent's material handling 

supervisor James Bowman, confirmed that the gob that is 

transported to the power plant over the conveyor belt system is a 

waste product from the coal (Deposition, Tr. 91). Plant Manager 

Robert Seavey, who is employed by the respondent, acknowledged 

that the "mine extraction" process takes place at the North 

Branch mining facility, and that the gob, or refuse, is the byproduct of the mined coal after it has been processed through the 

mine preparation plant, and that the respondent accepts the gob 

or refuse material, from Island Creek Coal Company (Deposition, 

Tr. 44P 54u 59) o 

The undisputed facts reflect that the gob that is 

transported by the conveyor belt system to the power plant is the 

product of coal mining which has taken place at the North Branch 

Mine. After the sale of the marketable mined coal, the remainder 

transported to the mine refuse pile from the mine preparation 

plant. The gob is sold to NB Partners Ltd. by Laurel Creek 

Mining Company, and it must meet certain essential contract 

specifications. The bulldozers used at the gob pile to 

facilitate the loading of the gob onto the conveyor belt for 

transportation to the power plant are owned by either island 

Creek or Laurel Run, and the bulldozer operators are employees of 

Laurel Run. 

According to Mr. Seavy, the respondent entered into the 

services agreement in the fall of 1988, had employees in place at 

the facility in the fall of 1989, and that substantial completion 

of the plant took place in late spring of 1991, when the conveyor 

belt system began transporting the gob from the pile to the 

plant. The gob pile extends for a distance of one mile, and it 

2056 
is estimated that the conveyor belt system will supply the power 

plant for at least the next ten years. The gob is provided 

exclusively to the power plant for its use in generating 

electricity, and the exclusive means of transporting the gob is 

by the conveyor system in question. 

Mr. Seavy's deposition testimony confirms that the 

respondent maintains and services the conveyor belt system 

pursuant to the continuing services agreement with NB Partners 

Ltd. {Tr. 16-17). Although Mr. Seavey denied an contractual 

relationship between the respondent and owners and operators of 

the North Branch Mine (Island Creek and Laurel Run), he testified 

that the respondent is authorized to operate the conveyor belt on 

Island Creek's property as part of the continuing services 

agreement. Although "he's been told11 that an easement has been 

granted, he has never seen it in writing (Tr. 21-22). 

The deposition testimony of respondent's material handling 

supervisor, James Bowman, whose duties include the supervision of 

sixteen (16) material handlers employed by the respondent, 

establishes that these employees perform maintenance on the belt 

conveyor and associated equipment, such as the dozer trap, on a 

regular basis, and that the work includes the greasing of 

bearings and belt conveyor rollers, and making repairs to the 

belt as necessary (Tr. 23, 60, 62, 90). Mr. Bowman testified 

that he visually observes the dozer trap door once every two 

weeks, that at least one or two employees work in that area, and 

they would observe the trap door every day, and that all of the 

16 employees working for him take turns working at the dozer 

feeder and trap areas (Tr. 28-30). He confirmed that the 

respondent's employees clean up the spills from the conveyor belt 

at the refuse pile area (Tr. 64). He also confirmed that as the 

gob material is used up as gob feeding is taking place at the 

bottom of the gob pile, the dozer trap will be moved up the 

conveyor line, and it will eventually reach the power plant 

property line in approximately 10 years (Tr. 88-98}. 

In view of the foregoing, I conclude and find that at the 

time the violations were issued in these cases, the respondent 

had a continuing presence on the North Branch Mine property 

performing services at that mine. Although the respondent's 

presence at the mine was by virtue of its service contract with 

NB Partners, Ltd., rather than Island Creek or Laurel Run Mining 

Companies, the owners and operators of the mine, I find nothing 

to rebut the strong inference that the respondent's presence on 

mine property had the approval of Island Creek and Laurel Run. 

Indeed, the additional posthearing discovery by the parties 

reflected the existence of an unsigned easement agreement between 

Laurel Run and NB Partners, LTD., which was apparently not 

adopted in lieu of the services agreement. In any event, 

notwithstanding the absence of any contractual relationship 

between the respondent and Laurel Run or Island Creek, I still 

2057 
conclude and find that the respondent had a continuing presence 

at the North Branch Mine performing services at that mine within 

the meaning of section J(d) of the Act, at the time the 

violations were issued. 

In addition to the respondent's continuing presence at the 

North Branch Mine, I conclude and find that there is a sufficient 

nexus between the work and services performed by the respondent 

with respect to the operation of the conveyor belt system, 

including the servicing, repairing, cleaning, and maintaining the 

belt system, and the coal extraction and coal processing and 

stockpiling that have taken place at the mine preparation plant, 

and the gob refuse pile. The services performed by the 

respondent are essential, not only to the power plant that 

depends on a steady supply of gob to fuel its boilers, but they 

are also essential to, and closely connected with, the extraction 

of the coal that is processed through the mine preparation plant 

and rendered into a saleable product that produced income for 

Island Creek and Laurel Run. Since the power plant is the only 

customer for the gob, and is dependent on delivery by the 

conveyor belt system in question, the exclusive means of 

transporting the gob from the mine refuse pile to the power 

plant, it is essential that the conveyor belt system be 

maintained in serviceable condition in order to insure a regular 

supply of fuel for the power plant. Without the delivery of a 

steady supply of fuel over a dependable and well-maintained belt 

conveyor system, it seems obvious to me that the power plant will 

not stay in business very long, and Island Creek and Laurel Run 

could conceivably lose its sole customer to whom it sells its 

gob. 

On the basis of the foregoing findings and conclusions, and 

after careful consideration of the arguments advanced by the 

partiesu I conclude and find that at the time the violations were 

issued to the respondent at the North Branch Mine property, the 

respondent was an independent contractor performing services at 

that mine pursuant to section 3(d) of the Act, and it was 

accordingly subject to the jurisdiction of the Act as well as the 

inspection and enforcement jurisdiction of MSHA while performing 

these services on mine property. 

The respondent's suggestion that MSHA is confused and has 

not yet made up its mind as to where its jurisdiction lies is not 

well taken, and it is rejected. I take note of the fact that in 

response to an inquiry of June 25, 1992, from the respondent's 

plant manager Robert E. Seavey, MSHA's District Manager, 

Ronald L. Keaton, advised Mr. Seavey by letter dated July 13, 

1992, that nMSHA's position is that you are under our 

jurisdiction any time that you are working on coal mine 

property". 

2058 
I have carefully reviewed the depositions of MSHA Inspectors 

Darios, Fetty, Wilt, and George, and I find no evidence of any 

confusion on their part with respect to the areas they were to 

inspect while at the North Branch Mine. Although Inspector 

Dartos mentioned some confusion created by information supplied 

by an Island Creek employee as to whether or not the conveyor 

belt was on mine property, and Inspector Fetty mentioned a 

"controversy" generated by his inability to obtain any definitive 

information from Island Creek as to who was in charge of the 

refuse pile, all of the inspectors apparently knew that their 

inspections were to be confined to mine property and that they 

were not to venture beyond a certain property ''boundary line" 

delineated by a foot bridge which marked the dividing line 

between mine property and power plant property. Further, the 

depositions of Supervisory Inspector Barry Ryan and Inspector 

Wilt, the individual who initially inspected the refuse area, 

reflects that they were not confused as to the metes and bounds 

of their inspection and enforcement jurisdiction ~n mine 

property. There may have been some confusion as to where mine 

property may have begun and ended, who owned the equipment, or 

whether a piece of equipment was on or off mine property, but I 

find no confusion about the fact that MSHA's inspection 

jurisdiction terminated at the power plant property line and that 

this was clear to the inspectors, as well as to the respondent. 

The respondent's position seems to be that the entire belt 

conveyor system, as one self-contained piece of equipment, is 

part and parcel of the power plant and not subject to MSHA's 

inspection and enforcement jurisdiction. Such a notion is 

rejected. Although MSHA's inspectors have inspected the North 

Branch Mining operations, as well as that portion of the conveyor 

belt located on mine property, the inspections have stopped short 

of the point where the belt bisects the property line separating 

mine property and the power plant property. Furtheru the issue 

as I view itu is whether or not the respondent, as an independent 

contractor 11 operator" pursuant to the act, may be held 

accountable and liable or violations and penalty assessments for 

violations occurring in the course of its contractor work 

performed on mine property. I have concluded that the answer to 

this question is "Yes 11 • 

The respondent's assertion that MSHA has not established 

that it has preempted OSHA's jurisdiction is not well taken and 

it is rejected. It seems clear to me that MSHA has always 

exercised its inspection and enforcement jurisdiction over all 

mining activities taking place at the North Branch Mine, and has 

issued violations to Island Creek Coal Company as well as a 

previous contractor (Wiley Construction Co.) for violations on 

mine property. It also seems clear to me that MSHA exercised its 

inspection and enforcement jurisdiction in these proceedings when 

it issued the violations for conditions observed by the 

inspectors on mine property and that it is seeking civil penalty 

2059 
assessments for those violations, rather than any violative 

conditions observed and cited on power plant property. 

Insofar as the power plant property is concerned, 

particularly with respect to whether MSHA or OSHA will exercise 

jurisdiction, the record reflects that negotiations are still 

taking place pursuant to the OSHA-MSHA Interagency Agreement, and 

the petitioner asserts that it has specifically refrained from 

exercising jurisdiction over any power plant facilities on plant 

property until a decision is reached pursuant to the Agreement. 

Pending that determination, the petitioner concludes that the 

facts presented in these proceedings establish that the cited 

violative conditions were and are under MSHA's jurisdiction, and 

that the respondent should be held accountable and liable for the 

violations and the proposed civil penalty assessments for those 

violations. 

The petitioner asserts that in addition to being an 

independent contractor performing services at a mine, the 

respondent is also a mine operator in its own right pursuant to 

the Act because it operates, controls, and supervises the coal 

mine operations of the power plant at the North Branch Mine 

Property. The petitioner views that portion of the conveyor belt 

located on the North Branch Mine property, together with the 

remainder of the belt conveyor system transporting the gob to the 

power plant, and the associated equipment used to process the gob 

as it moves on its way to the power plant along the conveyor belt 

system, to be a coal mine operation that provided the 

jurisdictional basis for the issuance of the violations. 

It would appear from the facts in these proceedings that the 

processing and treatment of the gob material that is transported 

from the North Branch mining operation over the conveyor belt 

system to the power plant is subjected to the same type of preburning processes as were presented in the Westwood Energy 

Properties and Pennsylvania Electric Company cases, supra. 

However, unlike those cases, where the civil penalty proceedings 

were initiated against the power plant owners and operators for 

violations on plant property, MSHA, in the instant proceedings, 

issued the violations for conditions found off power plant 

propertyu and has instituted penalty proceedings against the 

respondent as an independent contractor and not against 

NB Partners Ltd., the power plant owner. Further, although the 

respondent suggests that it is an electric utility, I find no 

evidence that it has any ownership interest in the power plant or 

its equipment, and it would appear that the true ownership of the 

utility lies with NB Partner Ltd., or the bank that apparently 

holds the mortgage, none of whom are named as parties in these 

proceedings. Under these circumstances, I do not find it 

appropriate or necessary to expand my jurisdictional finding 

2060 
beyond my conclusion that the respondent is an independent 

contractor subject to the Act and to MSHA's enforcement 

jurisdiction. 

The Alleged Violations 

Docket No. WEVA 92-916 

This case concerns a section 104{d) (1) citation and three 

section 104(d) (1) orders issued on February 26, 1992, alleging 

violations of the e~1ipment guarding requirements found in 

mandatory safety standards 30 C.F.R. § 77.400(a), (c), and (d). 

In its answer of August 17, 1992, to the petitioner's civil 

penalty proposals, the respondent stated that it did not contest 

the violations but did contest MSHA's jurisdiction over its 

operations. The respondent made the same responses in its 

August 17, 1992, replies to the-petitioner's interrogatories. 

In its response of August 31, 1992, to the petitioner's 

request for an admission that the description of the conditions 

or practice upon which the citation and orders are based, as 

stated in sections 8 and 15 of the citation and orders 

("Condition or Practice" and "Area or Equipment"), are true and 

accurate, the respondent replied that it did not contest the 

citation or orders and only contested MSHA's enforcement 

jurisdiction (Admission No. 12). In response to several requests 

for admissions with respect to the inspectors gravity, 

negligence, "S&S", and unwarrantable failure findings (Admission 

Nos. 13 through 18), the respondent simply incorporated by 

reference its response to Admission No. 12, which states that 

"United Energy does not contest the citation andjor orders. 

United Energy contests MSHA 6 s assertion of jurisdiction." 

In a facsimile letter of September 1, 1992, to the 

petitioner's counsel regarding the consolidation of Docket 

Nos. WEVA 92-916, WEVA 92-961,, and WEVA 92-1045, respondent 1 s 

counsel stated part as follows: 

This is to memorialize our recent telephone 

conversations regarding consolidation of the abovereferenced petitions. You and I have agreed that it is 

logical to consolidate the three (3) petitions because 

United Energy is contesting jurisdiction rather than 

the underlying citations and/or orders. Therefore, I 

will file a motion to consolidate as soon as possible. 

Also, because the discovery responses in case 961 would 

be essentially identical to the responses already made 

in case 916, I do not plan to file responses to the 

Secretary's First Request for Admissions, Second 

Request. for Production or Secretary's Second Set of 

2061 
Interrogatories in case 961. If you have any 

objections to the foregoing, please notify me as soon 

as possible. (emphasis added). 

In its April 1, 1993, opposition to the petitioner's summary 

judgment motion, the respondent states as follows with respect to 

each of the violations: 

United Energy does not dispute that on February 26, 

1992, three employees of United Energy were shoveling 

at the number two gob conveyor belt tailpiece while the 

guarding was removed from the tailpiece along the 

roadside. Further, United Energy does not dispute MSHA 

Inspector Joseph W. Oarios' evaluations as set forth in 

blocks 10.A, 10.B and 10.0 and of said citation. 

(Citation No. 3120276). 

United Energy does not dispute that on February 26, 

1992, the rear tailpiece guard of the grizzly tail 

pulley operated by United Energy, was not in place and 

was exposing the roller or pulley at the rear, with the 

rear tailpiece guard lying on the ground behind the 

belt assembly. (Order No. 3120277). 

United Energy does not dispute that on February 26, 

1992, a side guard of the grizzly belt tail pulley 

operated by United Energy was not provided, and was 

exposing the roller or pulley at the side. (Order 

No. 3120277). 

United Energy does not dispute the evaluations of 

Inspector Joseph w. Oarios' contained in blocks 10.A, 

lO.B, and 10.0 of Order No. 3120277. 

United Energy does not dispute that the cover guard for 

the grizzly gob feeder chain drive operated by United 

Energy was not in place and was exposing the chain 

drive sprockets and chain drive located at the rear 

side of the grizzly belt assembly near the tailpiece 

with the rear tailpiece guard lying on the ground 

behind the belt and assembly as set forth in Order 

No. 3120278. 

United Energy does not dispute the evaluations of MSHA 

Inspector Joseph w. Oarios contained in blocks 10.A, 

lO.B and 10.0 of Order No. 3120278. 

United Energy does not dispute that on February 26, 

1992, guarding for Gob Movable 1 conveyor belt take-up 

pulley operated by United Energy did not extend a 

sufficient distance sufficient to prevent contact by 

and/or injury to persons, with the rear side of the 

2062 
tail pulley at the side being exposed approximately six 

(6) inches past the guarding provided and permitting 

contact at the pinch point of the roller and belt, as 

set forth in Order No. 3120279. 

United Energy does not dispute the evaluations of MSHA 

Inspector w. Darios contained in blocks 10.A, 10.B and 

10.0 of Order No. 3120279. 

Despite its statements that it does not dispute the 

inspector's gravity findings that there was a reasonable 

likelihood of permanently disabling injuries affecting one to 

three miners as a result of the cited conditions or practices, 

the respondent states that it still disputes the inspector's 

"S&S" determinations associated with each of the violations on 

the ground that its activities do not constitute "work of 

preparing the coal" as contemplated by the Act. The respondent 

also disputes the inspector's determinations that· each of the 

violations resulted from the respondent's unwarrantable failure 

to comply with the cited standards. 

Docket No. WEVA 93-97 

In this case the respondent is charged with a violation of 

MSHA's mandatory training regulation at 30 c.F.R. § 48.25(a), 

after MSHA Inspector Kerry L. George determined that material 

handler stanley Dragovich, "a new surface miner employed by the 

contractor since April 1991 11 , and who was maintaining the 

beltlines at the mine site, had not been given training. Citing 

section 104(g) (1) of the Act, the inspector ordered the removal 

of the cited employee from the mine. The inspector's gravity 

findings reflect that an injury was "reasonably likely", that the 

injury could reasonably be expected to be "permanently disabling" 

and that one (1} person was affected. The inspector concluded 

that the cited violation was "significant and substantial" (S&S), 

and that it was the result of "high negligence. 

In its answer of January 27, 1993, to the petitioner's 

proposal for assessment of civil penalty, the respondent admitted 

that the cited individual did not have MSHA training, and it 

admitted that the order was issued. However, the respondent 

specifically stated that it contested the order in its entirety, 

as well as the findings and determination of the inspectoro 

In a January 27, 1993, motion to consolidate this docket 

with Docket Nos. WEVA 92-916, WEVA 92-961, and WEVA 92-1045, the 

respondent stated that it did not contest the fact that the order 

in question was issued, but that it did contest jurisdiction as 

well as the determinations and findings of the inspector. 

2063 
On March a, 1993, the respondent filed its responses to 

certain discovery requests for admissions served by the 

petitioner. Requested admission No. a, stated as follows: 

The descriptions of the conditions or practices upon 

which each of the citation(s) andjor order(s) that are 

at issue in this case are based, as set forth in each 

of the citation(s) andjor order(s) under Section a, 

"Condition or Practice", and Section 15, "Area or 

Equipment", are true and accurate. 

In its response, the respondent stated as follows: 

United Energy admits that Stanley Dragovich was not 

given MSHA training. However, United Energy believes 

that Mr. Dragovich was adequately trained for his job 

at a power plant employee. Further, because United 

Energy does not believe that MSHA's assertion of 

jurisdiction over this f~~ility is proper, it does not 

believe Mr. Dragovitch needed MSHA training. Further, 

United Energy states that the facility was built and 

has been operated in compliance with OSHA requirements. 

Moreover, United Energy asked for an interagency 

determination of whether MSHA or OSHA has jurisdiction 

over this facility in a September 5, 1991, letter from 

its counsel, Ricklin Brown, to Stanley Elliot. (This 

letter has previously been provided to the Court an to 

counsel MSHA). No definitive response has ever been 

received. 

In response to certain requests for admissions concerning 

the inspector's gravity, "S&S11 , and "high" negligence findings, 

the respondent replied "Denied. See response to Request No. a". 

The respondent gave the same answer with respect to Admission 

Request No. 14, requesting the respondent to confirm that the 

order was the result of an unwarrantable failure. However, I 

take note of the fact that the order in question was issued as 

a section 104(g) {1) order rather than a section l04(d) 

unwarrantable failure order. 

In its April 1, 1993, opposition to the petitioner's summary 

judgment motion, the respondent does not dispute that the cited 

employee, Stanley Dragovich, a material handler in its employ 

since Aprilu 1991, was maintaining the belt lines at its 

operation without receiving the required MSHA training. However, 

the respondent does dispute the inspector's gravity and 

negligence findings on the ground that it has consistently 

maintained that it is not subject to MSHA's jurisdiction, and 

that the cited employee was adequately trained for his job and 

has not been injured or suffered any work-related illness. 

Further,;notwithstanding the fact that the orderwas not issued 

as a section 104(d) unwarrantable failure order, the respondent 

2064 
denies any unwarrantable failure violation and maintains that it 

is insulated from such a finding because of its consistent and 

good faith jurisdictional arguments. 

In a footnote at page two of it summary judgment motion, the 

petitioner asserts that it served its request for admissions on 

the respondent within 20 days of the filing of its penalty 

assessment proposal as provided for in Commission Rule 29 C.P.R. 

§ 2700.55(A), but that the respondent did not respond within the 

15 days provided for in Rule 57, 29 C.P.R. § 2700.57. Under the 

circumstances, the petitioner asserts that the admissions are 

admitted and conclusively established. In support of this 

position, the petitioner relies on the procedural regulations at 

29 C.P.R. § 18.20(b) and l8.20(e). 

The petitioner's reliance on the cited regulations found in 

29 C.P.R. § 18.20(b) and 18.20(e), are without merit. Those 

regulations apply to matters before that Department of Labor's 

Administrative Law Judges and,they are not binding on this 

Commission's Judges. Commission Rule 57, which has since been 

replaced by Rule 58, 29 C.P.R. § 2700.58(b), effective May 3, 

1993, did not provide for adoption of proposed admissions where 

the responses are untimely filed. The present Rule 58(b), 

authorizes the presiding Judge to order a longer or shorter time 

for responding to admissions, and any matter that is in fact 

admitted is conclusively established for the purpose of the 

pending case unless the Judge, on motion, permits a withdrawal or 

amendment of the admission. However, since I find no evidence of 

any prejudice to the petitioner because of the late responses by 

the respondent, the petitioner's arguments ARE REJECTED, and its 

suggestion that its proposed gravity and negligence admissions 

should be .deemed to be conclusively established are likewise 

REJECTED. 

WEVA 92-961 

In this case, the respondent was charged with a violation of 

MSHA's mandatory training regulation at 30 C.P.R. § 48.25(a), on 

February 27, 1992, after MSHA Inspector Phillip Wilt observed 

three of the respondent's employees the previous day working near 

moving conveyor belts on Island Creek Coal Company property 

without first receiving "no less than 24 hours of comprehensive 

training"o The inspector considered the cited employees to be "a 

hazard to themselves and others", and citing the training 

requirements of section 115 of the Act, and section 104(g) (1) of 

the Act, he ordered the withdrawal of the three employees (Craig 

W. Knotts, Randy Rohrbaugh, and Homer Fletcher). The inspector's 

gravity findings reflect that an injury was "reasonably likely", 

that the injury could reasonably be expected to be "permanently 

disabling", and that three (3) persons were affected. The 

inspector also concluded that the cited violation was 
"significant and substantial" (S&S), and that it was the result 

of "high" negligence. 

In its initial answer of August 21, 1992, to the 

petitioner's civil penalty proposal, the respondent took the 

position that it was an electric utility subject to OSHA, rather 

than MSHA, jurisdiction, and stated that "it does not contest the 

violation". 

In its responses of August 21, 1992, to the petitioner's 

initial interrogatories, the respondent stated it intended to 

contest MSHA's jurisdiction and did not intend to contest the 

citation or order. In response to certain questions concerning 

the special "significant and substantial" (S&S) finding 

associated with the citation, the respondent answered "N/A". In 

responding to the petitioner's discovery requests, the respondent 

made the following general statement that is included in all of 

its responses in these proceedings: 

By responding to the discovery requests, United Energy 

does not concede the relevance of any matter at issue 

in any of the Secretary's Interrogatories, does not 

agree to the admissibility in evidence of any 

information or document provided, and expressly 

reserves all evidentiary objections to the time of 

hearing in this proceeding. 

On September 14, 1992, the respondent filed a motion to 

consolidate Docket Nos. WEVA 92-916, WEVA 92-961, and 

WEVA 92-1045, and stated that although it contested MSHA's 

jurisdiction, it did not contest the violations which gave rise 

to the proposals for assessment of civil penalties. This 

statement was repeated again by the respondent when it filed a 

motion on January 8u 1993, to compel the petitioner to answer its 

discovery requests and to continue the scheduled hearings. 

In its April 1, 1993, opposition to the petitioner's motion 

for summary judgment, the respondent states that it does not 

dispute that three of its employees, Craig W. Knotts, Randy 

Rohrbaugh, and Homer Fletcher, were working near moving belts 

which were part of its opertation without receiving MSHA 

training. 

The respondent disputes the inspector's gravity findings, 

and it takes the position that the cited employees have always 

been adequately trained for their jobs with the respondent and 

have not suffered any job related accidents or injuries despite 

working in the cited area for some time before MSHA's inspection. 

For these same reasons, the respondent also disputes the 

inspector's "high negligence" finding. In addition to its claim 

that the employees were trained, the respondent asserts that 

since it'believed in good faith that MSHA lacked jurisdiction 

2066 
over its operations and that MSHA training was not required, it 

was not negligent in failing to provide MSHA training for the 

cited employees. 

The respondent also disputes "the Secretary's assertion that 

the violation cited in Order No. 3120293 issued under 

section 104(d) of the Mine Act was caused by the unwarrantable 

failure" of the respondent to comply with the cited standard. 

The Secretary's assertion is erroneous. The disputed order was 

not issued pursuant to section 104(d) of the Act, and it is not 

an "unwarrantable failure order". The order simply served as the 

statutory mechanism for removing the untrained personnel from the 

cited mine area, and the petitioner's civil penalty proposal is 

based on the alleged violation of the training requirements found 

in the cited mandatory regulation at 30 C.P.R. § 48.25(a). 

WEVA 92-1045 

In this case the respondent is charged with a violation of 

mandatory safety standard 30 C.P.R. § 77.502, for failing to 

conduct monthly electrical examination of the electrical 

components of the belt lines at the refuse pile located on mine 

property. The inspector's gravity finding reflects that an 

injury was "reasonably likely", that the injury could reasonably 

be expected to result in "lost workdays or restricted duty", and 

that one (1) person was affected. The inspector concluded that 

the violation was "significant and substantial" (S&S}, and that 

it was the result of "high" negligence,"unwarrantable failure" by 

the respondent. 

At page 33 of its Motion for Summary Judgment, the 

petitioner states as follows: 

As for the question of the validity of the citations 

and orders and the correct civil penalty to be applied, 

all facts relating to these questions, except for those 

arising from Docket No. WEVA 92-1045, were admitted by 

the respondent. As for the facts arising from Docket 

No. WEVA 92-1045 1 the Respondent's Answer acquiesces in 

the facts underlying the order contained therein, with 

the motion to consolidate and other documentation 

reiterating this agreement. No motion to Amend Answer 

having been filed, no facts have been disputed in 

Docket No. WEVA 92-1045 other than those regarding 

jurisdiction. 

In its answer of September 10, 1992, the respondent stated 

that it did not contest the violation. However, it challenged 

MSHA's jurisdiction, and claimed that it was an electric utility 

subject to OSHA jurisdiction. In its subsequently filed motions 

for consolidation and enforcement of its discovery requests, the 

2067 
respondent again stated that it did not dispute the violation 

which gave rise to the civil penalty proposal filed by the 

petitioner. 

In its opposition of April 1, 1993, to the petitioner's 

motion for summary judgment, the respondent stated that it does 

not dispute that it had not conducted the required MSHA monthly 

electrical examination of the electrical components of the belt 

lines at its operation. I take note of the fact that the 

respondent's statement does not specifically address that portion 

of the order which states that the cited belt lines "were on mine 

property and were the responsibility of the contractor". 

The respondent disputes the inspector's gravity findings. 

It also disputes the inspector's "high" negligence and 

unwarrantable failure finding on the ground that its consistent 

jurisdictional position and good faith belief that it was not 

subject to Mine Act jurisdiction insulates it from such findings. 

In support of summary judgment in its favor, the petitioner 

asserts that except for Docket No. WEVA 92-1045, the respondent 

has admitted to all of the facts relating to the validity of the 

citations and orders that are in issue in Docket Nos, 

WEVA 92-916; WEVA 92-961, and WEVA 93-97. With respect to 

WEVA 92-1045, the petitioner maintains that the respondent's 

answer and other documentation reflects the respondent's 

acquiescence in the facts underlying the order, and that the 

respondent has disputed no facts other than those regarding 

jurisdiction. The petitioner concludes that there are no genuine 

issues of any material facts in any of these cases, except for 

disputes regarding the application of the law to these facts, and 

that summary judgement is appropriate. 

I agree with the petitionerRs position that the respondent 

has opted not to contest the conditions or practices cited as 

violations of each of the cited mandatory safety standards. 

Indeed, it seems clear to me from the pleadings filed in these 

matters, including the answers and the discovery responses filed 

by the respondent, as well as its admissions filed as part of its 

arguments in opposition to the petitioner's summary judgment 

motion, that the respondent does to deny the existence of the 

conditions or practices cited by the inspectors as violations. 

Apart from the respondent's admissions concerning the cited 

conditions and practice, I have reviewed and considered the 

deposition testimony of the inspectors who issued the violations 

in these proceedings. In Docket No. WEVA 92-916, Inspector 

Darios testified as to the facts and circumstances that prompted 

him to issue the four guarding violations (No. 3120276, 

Tr. 56-57, 72-73, 86-87, 89-91; No. 3120277, Tr. 99-104; 

2068 
No. 3120278, Tr. 108-109; No. 3120279, Tr. 112-113). The cited 

mandatory guarding regulations, sections 75.400(a), (c), and (d), 

require that tail pulleys and similar exposed moving machine 

parts be guarded, that all guards be securely in place while the 

machinery is being operated, and that conveyor drive, head, and 

tail pulley guards extend a sufficient distance to prevent a 

person from reaching behind the guard and becoming caught between 

the belt and the pulley. 

In Docket No. WEVA 93-97, Inspector George testified that he 

observed Mr. Dragovich arrive at the gob area in a truck owned by 

"the power plant", and he determined that Mr. Dragovich came to 

the gob area to inspect the conveyor belt that was on mine 

property. Mr. Dragovich informed Mr. George that he worked for 

the respondent, and when asked about his training, Mr. Dragovich 

informed Mr. George that he last received training when he worked 

for Island Creek as an underground miner (Tr. 73-74). Since 

Mr. George found no evidence that Mr. Dragovich had received any 

MSHA surface mining training, he issued the order in question 

(Tr. 83-84) . 

Supervisory Inspector Ryan, who accompanied Mr. George 

during his inspection, testified that contractor personnel who 

work in surface areas of underground mines for any period in 

excess of five days are required to have MSHA comprehensive 

training. If such employees had worked underground, they would 

have to receive 40 hours of comprehensive training, or hazard 

training (Tr. 35, 86, 89). Mr. Ryan testified that he was with 

Inspector George when he issued the training violation concerning 

Mr. Dragovich. Mr. Ryan stated that Inspector George observed 

Mr. Dragovich at the gob area, and asked him if he had any 

training. Mr. Dragovich informed Mr. George that he had 

previously worked for Island Creek and had some training in that 

jobu but had not received any minersP training e~since 

approximately two years ago" (Tr. 107). Island Creek then 

summoned Mr. Bowman to the area, and he could produce no training 

records for Mr. Dragovich (Tr. 107). 

In Docket No. WEVA 92-1045, Inspector George testified that 

after conducting an inspection of Island Creek's preparation 

plant, its heavy equipment, the railroad, and the gob pile, he 

asked to see the electrical examination records, but that the 

respondent 1 s representative, Jim Bowman, and Island Creek's 

representative, Tom Lobb, could not produce them {Tr. 43). 

Mr. George stated that Mr. Bowman contended that MSHA had no 

jurisdiction over the respondent, and confirmed that the 

electrical examinations were not being conducted (Tr. 51). The 

cited mandatory regulation section 77.502, requires frequent 

examination of electric equipment, and record keeping of such 

examinations. 

2069 
In Docket No. WEVA 92-961, Inspector Wilt testified that in 

the course of an inspection at the mine site on February 27, 

1992, he issued citation No. 3120293 after determining that three 

of the respondent's employees working near the conveyor belt on 

mine property had not received the required MSHA training. 

Mr. Wilt confirmed that these were the same three employees cited 

by Inspector Darios the previous day, February 26, for shovelling 

at the belt tailpiece with the guarding removed {Tr. 33-34). 

Mr. Wilt stated that he issued the violation after the 

respondent's representative, Mr. Bowman, could not produce any 

training records for the employees in question (Tr. 36). 

Mr. Wilt also considered the fact MSHA training was required for 

any contractor employee doing work on Island Creek's mine 

property {Tr. 37). 

Inspector George testified that at the time of his May 12, 

1992, inspection, he asked Mr. Bowman about the training 

violation previously issued by Inspector Wilt, and inquired as to 

whether it had been abated. M.r. Bowman informed him that the 

respondent's management was of the view that it did not have to 

provide MSHA training, and that the prior order issued by Mr. 

Wilt had not been abated. (Tr. 54-55). Mr. George then informed 

Mr. Bowman that until the cited personnel were trained they could 

not work in the area, and Mr. Bowman made no comment other than 

to indicate that "he was not complying because there was a 

dispute over jurisdiction" (Tr. 56). 

In view of the foregoing, I conclude and find that the 

evidence and testimony of record in these proceedings establishes 

that the cited conditions or practices as described by the 

inspectors on the face of the citation and orders in question 

constitute violations of the cited MSHA mandatory safety and 

training regulations. Accordingly, the violations ARE AFFIRMED. 

With respect to the nsignificant and substantial" (S&S), and 91 unwarrantable failure" issues presented in these cases, I reject 

the petitioner's suggestions that the respondent has capitulated 

on all of these issues and that its admissions with respect to 

the citation and orders should be adopted as absolute proof that 

all of the violations were significant and substantial and 

resulted from an unwarrantable failure on the part of the 

respondent to comply with the cited mandatory standards. 

Having carefully reviewed all of the pleadings filed in these 

proceedings, I cannot conclude that the respondent intended to 

waive its right to litigate the special findings made by the 

inspectors with respect to the violations. 

2070 
The Unwarrantable Failure Issues 

The governing definition of unwarrantable failure was 

explained in Zeigler Coal Company, 7 IBMA 280 (1977), decided 

under the 1969 Act, and it held in pertinent part as follows at 

295-96: 

In light of the foregoing, we hold that an inspector 

should find that a violation of any mandatory standard 

was caused by an unwarrantable failure to comply with 

such standard if he determines that the operator 

involved has failed to abate the conditions or 

practices constituting such violation, conditions or 

practices the operator knew or should have known 

existed or which it failed to abate because of a lack 

of due diligence, or because of indifference or lack of 

reasonable care. 

In several recent decisions concerning the interpretation 

and application of the term ''unwarrantable failure," the 

Commission further refined and explained this term, and concluded 

that it means "aggravated conduct, constituting more than 

ordinary negligence, by a mine operator in relation to a 

violation of the Act." Energy Mining Corporation, 9 FMSHRC 1997 

(December 1987); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007 

(December 1987); Secretary of Labor v. Rushton Mining Company, 

10 FMSHRC 249 (March 1988). Referring to its prior holding in 

the Emery Mining case, the Commission stated as follows in 

Youghiogheny & Ohio, at 9 FMSHRC 2010: 

We stated that whereas negligence is conduct that 

is "inadvertent," "thoughtless" or "inattentive," 

unwarrantable conduct is conduct that is described as '

9not justifiable" or 11 inexcusable." Only by construing 

unwarrantable failure by a mine operator as aggravated 

conduct constituting more that ordinary negligence, do 

unwarrantable failure sanctions assume their intended 

distinct place in the Act's enforcement scheme. 

In Emery Mining, the Commission explained the meaning of the 

phrase 9'unwarrantable failuren as follows at 9 FMSHRC 2001: 

We first determine the ordinary meaning of the 

phrase "unwarrantable failure. 11 "Unwarrantable" is 

defined as "not justifiable" or "inexcusable." 11Failure 11 is defined as 11 neglect of an assigned, 

expected, or appropriate action." Webster's Third New 

International Dictionary !Unabridged) 2514, 814 (1971) 

("Webster's"). Comparatively, negligence is the 

failure to use such care as a reasonably prudent and 

careful person would use and is characterized by 

11 inadvertence, 11 "thoughtlessness," and "inattention. 11 

2071 
Black's Law Dictionary 930-31 (5th ed. 1979). Conduct 

that is not justifiable and inexcusable is the result 

of more than inadvertence, thoughtlessness, or 

inattention. * * * 

Docket Nos. WEVA 92-961 and WEVA 93-97 

As noted earlier, the orders issued in these cases are not 

unwarrantable failure orders pursuant to section 104(d) of the 

Act, and the arguments advanced by the parties on this issue are 

irrelevant and inapplicable. 

Docket No. WEVA 92-916 

Inspector Darios testified by deposition that in the course 

of his inspection on February 26, 1992, he spoke with fellow 

inspector Phillip Wilt who informed him that he had issued 

citations and orders for miners shoveling around the belt in 

different areas with the guards removed during prior inspections. 

Mr. Darios confirmed that the prior citations and orders were 

issued to Island Creek Coal Company and that Mr. Wilt had spoken 

to Island Creek's management about the matter (Tr. 73). 

Mr. Darios also confirmed that no representative of the 

respondent accompanied him during his inspection on February 26, 

and that the events of that day were "really vague" (Tr. 84-85). 

Mr. Darios confirmed that he observed the three cited 

employees (3120276) simply drive up and begin shoveling after 

removing the side belt guard, and that this activity lasted approximat~ly five minutes (Tr. 89). He concluded that this was 

a "common practice" because of "the way that it was performed" 

and the number of citations and orders previously issued by 

Mro Wilt (Tro 92). He explained his "high negligence" and 

unwarrantable failure findings as follows at (Tr. 93-96): 

A. When management is aware -- been made aware of 

hazardous conditions, they are to take action to 

correct, prevent, or eliminate those hazardous 

conditions or practices from their mining operation. 

From the apparent attitude, just perceived, of these 

miners just driving up and pulling off a guard and 

shoveling, it was like there was nothing wrong with it. 

That was part of management's accepted practice. 

* * * * * * 

A. Where serious hazards are involved, and it becomes, 

in my opinion, blatant disregard for the safety and 

health of miners, then there is a high degree of 

negligence. That is strictly my opinion. 

2072 

* 
Mr. Darios did not know whether or not the respondent in 

these proceedings had been previously cited by Inspector Wilt. 

Mr. Darios stated that it was his understanding that the 

management of the Wiley Construction Company and the respondent's 

management had changed in name only, but he could not recall who 

informed him of this (Tr~ 94}. He confirmed that a meeting was 

held with Island Creek's management when the citation was abated, 

and that the citation was subsequently changed to reflect that it 

was served on the respondent rather than Island Creek. 

Mr. Oarios also commented that the contractor management system 

was "a mess" and that "I can't understand the whole framework of 

this management system (Tr. 97). 

With regard to the cited unguarded grizzly tail pulley order 

(3120277), Mr. Darios stated that he based his order on the fact 

that Mr. Wilt had earlier informed him that people were removing 

guards and shovelling the belts and that "it was becoming more 

and more evident at that time that people were not having any 

regard to guarding belts on this particular belt line, or areas 

of the pulleys or drives" (Tr. 100). Mr. Darios did not know 

whether or not any management representative of the respondent 

was present after he issued his initial citation and continued 

his inspection (Tr. 100). Mr. Darios also confirmed that no one 

was working in the immediate cited area, and he could nor recall 

observing anyone working in that area earlier in the day 

(Tr. 102). 

Mr. Darios stated that he based his section 104(d) (1) order 

on the previously issued section 104(d)(1) citation and his 

belief that routine daily safety checks of the belt equipment 

were not being made so that conditions such as those he observed 

could be discovered and corrected (Tr. 105). When asked to 

explain the meaning of vtthe unwarrantable series"u Mr. Darios 

responded "Knew, or should-have-known of conditions by the 

operator" (Tr. 106). Mr. Darios confirmed that "management" 

assigned someone to replace the guards in order to.abate the 

order, but he could not recall whether an Island Creek employee 

or an employee of the respondent replaced the guards (Tr. 107)" 

With regard to the order citing the unguarded grizzly feeder 

chain drive sprockets (3120278), Mr. Darios stated that he did 

not clearly remember the conditions, but after referring to his 

notes, he confirmed that the guard was laying on the ground 

beside the chain drive area (Tr. 108). He based his "high 

negligence" finding on "repeated findings of guards being removed 

or missing, and not in position", and he stated that "this refers 

back to the 104(d) (1) citation" (Tr. 110). 

With regard to the order citing a conveyor belt pulley that 

was not sufficiently extended to prevent contact with persons 

(31202279), Mr. Darios stated that "based on the number of 

violations that I had already issued previously on guarding that 

2073 
day, I was almost to the point of frustration and ridiculousness, 

as far as I was concerned, to the extent that the guarding was 

being let go. And I felt that it was very unwarrantable on 

management's part to permit that" (Tr. 113). 

Inspector Edwin Fetty's deposition testimony reflects that 

he began an electrical inspection at Island Creek's mine site in 

August, 1991. Mr. Fetty stated that on August 5, 1991, he was at 

the mine with Inspector Wilt and they met with Jim Lemons, Island 

Creek's maintenance and electrical supervisor, and that Mr. Wilt 

and Mr. Lemons accomp'anied him during his inspection on that day 

(Tr. 13). Mr. Fetty stated that he issued a belt citation 

(3316749) that day to Island Creek, but that someone mentioned 

that Wiley Construction was the responsible party {Tr. 17-19). 

Mr. Fetty stated that the citation was issued for failing to 

replace a belt drive unit guard that had been removed (Tr. 23}. 

Supervisory Inspector Barry Ryan testified by deposition 

that Island creek Coal Company had received unwarrantable failure 

citations prior to Inspector 'Wilt's encounter with contractors at 

Island Creek's gob pile on July 30, 1991 (Tr. 49, 52). Mr. Ryan 

alluded to a conference held by Mr. Wilt with Island Creek 

concerning MSHA's Repeat Violation Reduction Program (RVRP) 

(Tr. 52). Mr. Ryan stated that he and Mr. Wilt met with Island 

Creek Coal personnel and "some contract people from Wiley 

Construction" at the refuse pile on July 30, 1991, and he 

confirmed that they discussed MSHA's jurisdiction of the conveyor 

belt line and an imminent danger order that Mr. Wilt had issued 

(Tr. 57-60). Mr. Ryan stated that he was informed that Wiley 

Construction operated the belt line at that time (Tr. 63). 

Mr. Ryan stated that he and Mr. Wilt returned to the site on 

August 5, 1991, for additional inspections, and Inspector Fetty 

was also there for an electrical inspection (Tr. 77). Mr. Ryan 

confirmed that Mro Wilt issued several citations to Island Creek 

Coal Company, and that several citations were subsequently 

modified to show Wiley Construction as the responsible party 

(Tr. 80). Mr. Ryan confirmed that discussions were held on 

August 5u 1991, with Wiley Construction's maintenance foreman 

concerning the guarding violations issued by Inspector Wilt 

(Tro 83-84). Mr. Ryan stated that Island creek repeatedly 

maintained that Wiley Construction was responsible for 

maintaining the conveyor belts, and that he observed Island creek 

and Wiley Construction personnel working together trying to 

locate a belt guard that had been removed (Tr. 90). 

Inspector Wilt testified that he initially inspected Island 

Creek's North Branch mining operations on July 30, 1991, and 

issued an imminent danger order and citation to Island Creek 

after observing a bulldozer operating too close to a backhoe 

while pushing material on the gob pile. Mr. Wilt observed "a 

contractor's employee" working in the area where the backhoe was 

2074 
loading material, but he didn't know the identity of the 

contractor. He could not recall any hazards associated with the 

work being performed by the contractor employee, and he issued no 

violations to the contractor that day. He also observed some 

missing conveyor drive and rotor guards but did nothing about 

that on July 30 (Tr. 5-12). 

Mr. Wilt stated that he continued his inspection on 

August 5, 1991, and issued two citations to Island Creek Coal 

company for lack of audible backup alarms on a front-end loader 

and a refuse truck (Tr. 13-15). He also issued a citation to 

Island Creek after determining that the backhoe operator Dale 

Miller, an Island Creek employee 1 had not received the 24-hour 

surface mining training after being transferred from his 

underground job (Tr. 15-17). He issued seven additional 

citations to Island Creek, but they were subsequently modified to 

show the Wiley Construction Company as the responsible party 

after he determined that Wiley Construction had a· contractor ID 

number on file in the MSHA Morgantown office (Tr. 17, 20). 

Mr. Wilt alluded to several missing conveyor guards, but he 

provided no further details concerning these citations, and his 

testimony is devoid of any further information concerning these 

prior citations, and copies of these violations were not provided 

as part of the record in these proceedings. 

Respondent's plant manager Robert Seavy testified by 

deposition that Wylie Construction Company was hired by Energy 

America, the plant developers, to design and install the plant 

conveyor belt system which .is the same system now maintained and 

serviced by the respondent United Energy Services, Inc. However, 

Mr. Seavy stated that there have been no relationships in the 

past two years between Wylie Services and the respondent, and he 

did not know who owned Wylie Construction (Tr" 15-16). He was 

not aware of any Wylie Construction directors serving as 

directors of the respondent 1 s company, and he indicated that only 

one or two of the respondent's employees previously worked for 

Wylie Construction (Tr. 17-18). 

RespondentPs material handling supervisor James Bowman 

testified by deposition that he was hired by the respondent on 

September 15, 1990, and that the Wylie Construction Company was 

already on-site constructing the conveyor system. He was 

responsible for overseeing the construction work at that time 

(Tr. 12). He confirmed that the respondent's employees are 

responsible for repairs and maintenance of the completed belt 

conveyor system, including "any repairs that need to be done - - =like the structure, the greasing of the rollers" (Tr. 62). He 

also confirmed that the respondent's employees are responsible 

for cleaning all main conveyor belt spills "from the refuse area 

down to the truck dump" as well as spills on the gob movable one 

conveyor belt (Tr. 64) • 

20 75 
Mr. Bowman testified that he was overseeing the belt 

construction work when Wylie Construction was cited by MSHA in 

July an August, 1991, and he was aware that the inspectors issued 

the violations and that Wylie construction was working on the 

belt that time (Tr. 101-102). 

After careful review and consideration of all of the 

aforementioned evidence and testimony of record in these 

proceedings, I conclude and find that it does not support the 

unwarrantable failure findings made by the inspector. The 

inspector's belief that an unwarrantable failure finding may be 

supported by a "Knew, or should-have-known" standard falls far 

short of the "aggravated conduct" standard enunciated by the 

Commission in its controlling decisions. Further, I find no 

credible, reliable, or probative evidence to support the 

inspector's unsupported opinions and conclusions that the 

respondent United Energy Services, Inc., intentionally engaged in 

or condoned a common practice of removing belt guards while the 

equipment was in operation. On the contrary, it would appear to 

me that any such practice was carried out by Island Creek Coal 

Company and Wylie Construction Company. In the absence of any 

evidence that Wylie Construction and United Energy Services had 

common ownership or management, I cannot conclude that the 

respondent here should be held accountable for any aggravated 

conduct by another contractor or mine operator who are themselves 

subject to the Act and to MSHA's enforcement jurisdiction. Under 

all of these circumstances, the section 104(d) (1) citation and 

section 104(d) (2) orders issued by Inspector Darios ARE VACATED, 

and they all modified to section 104(a) citations. 

WEVA 92-1045 

With respect to Inspector GeorgeRs unwarrantable failure 

finding in connection with the respondent's failure to conduct 

the required electrical inspections of the belt conveyor 

components that were on mine property, Mr. George stated that 

during every prior mine inspection that he conducted in early 

1991 or 1992Q he was accompanied by Island Creek personnel. He 

confirmed that he did not contact any representative of the 

respondent before starting his May 12, 1992, inspection. 

However, he did speak with respondent's representative, Jim 

Bowmane and Island Creek's representative, Tom Lobb, and they 

could not produce any records of any electrical examinations for 

his review (Tr. 42-43). Mr. George stated that he informed 

Mr. Bowman that Inspector Fetty had previously cited the same 

violation and that Island Creek had taken the position that the 

contractor was responsible for the belt line. Mr. Bowman 

informed Mr. George of his opinion that the respondent's 

operations were not under the jurisdiction of MSHA (Tr. 44). 

Mr. George confirmed that the violation was abated after Island 

Creek 6 s certified electrician performed the required electrical 

examination. 

2076 
Mr. George stated that Mr. Bowman indicated to him that he 

did not believe that MSHA should be inspecting the respondent's 

operation, and that he informed Mr. Bowman that he did have the 

authority to inspect the operation on mine property and issued 

the violation to the respondent and to Island Creek (Tr. 45). 

He confirmed that Mr. Bowman told him that the electrical 

inspections were not being conducted, and Mr. George proceeded to 

issue the order. It was terminated within a half-hour after an 

Island Creek Coal Company certified electrician conducted an 

electrical examination (Tr. 52) • Mr. George "conferenced" the 

order with Mr. Bowman and discussed the fact that other citations 

and orders had been issued for the lack of electrical inspections 

(Tr. 54). 

Mr. George made reference to a previously issued 

section 104(d) (2) Order No. 3720849 issued to Island Creek Coal 

Company for not conducting electrical examinations on certain 

trailers and portable generators (Tr. 49-50). Mr• George's 

inspection notes reflect that ,power was established to that 

equipment on May 7, 1992, and that the order was issued as a 

"non-"S&S" order. However, the order is not a matter of record 

in this case. I take note of the fact that Mr. George's order of 

May 12, 1992, cites the previously issued guarding Order 

No. 3120277, issued on February 26, 1992, by Inspector Darios, 

as the underpinning for his May 12 order. 

Mr. George stated that the failure to conduct the required 

electrical examinations was previously brought to the attention 

of the respondent's personnel and he believed that "it was a 

condition that was continuing" (Tr. 60). Under the 

circumstances, Mr. George concluded that the violation was the 

result of "high11 negligence by the respondent and warranted a 

section 104(d) order (Tr. 61). 

I have reviewed the deposition testimony of MSHA electrical 

inspector Edwin Fetty, and apart from the previous guarding 

citation that he issued on August 5, 1991, I find no testimony 

regarding any prior citations or orders that he may have issued 

regarding the failure to conduct electrical examinations, and the 

petitioner has not submitted any evidence of any such prior 

violations being served on the respondent in these proceedings. 

After careful review of all of the evidence and deposition 

testimony in these proceedings, I cannot conclude that it 

supports the inspector's unwarrantable failure finding. In 

short, I cannot conclude that the petitioner has proved that the 

violation in question was the result of any "aggravated conduct" 

on the part of the respondent in this case. Under the 

circumstances, the section 104(d) (2) order issued by Inspector 

George IS VACATED, and it is MODIFIED to a section 104(a) 

citation. 

2077 
Significant and Substantial Violations 

A "significant and substantial" violation is described in 

section 104(d) (1) of the Mine Act as a violation "of such nature 

as could significantly and substantially contribute to the cause 

and effect of a coal or other mine safety or health hazard." 

30 C.F.R. § 814(d) (1). A violation is properly designated 

significant and substantial "if, based upon the particular facts 

surrounding the violation there exists a reasonable likelihood 

that the hazard contributed to will result in an injury or 

illness of a reasonably serious nature." Cement Division, 

National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). 

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

Commission explained its interpretation of the term "significant 

and substantial" as follows: 

In order to establish that a violation of a 

mandatory safety standard is significant and 

substantial under National Gypsum the Secretary of 

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

mandatory safety standard; {2} a discrete safety 

hazard--that is, a measure of danger to safetycontributed to by the violation; (3) a reasonable 

likelihood that the hazard contributed to will result 

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

injury in question will be of a reasonably serious 

nature. 

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

1129, the Commission stated further as follows: 

We have explained further that the third element 

of the Mathies formula "requires that the Secretary 

establish a reasonable likelihood that the hazard 

contributed to will result in an event in which there 

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

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

accordance with the language of section 104(d) (1), it 

is the contribution of a violation to the cause and 

effect of a hazard that must be significant and 

substantial. u.s. Steel Mining Company, Inc., 6 FMSHRC 

1866, 1868 {August 1984); u.s. Steel Mining Company. 

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

The question of whether any particular violation is 

significant and substantial must be based on the particular facts 

surrounding t.he violation, including the nature of the mine 

involved, Secretary of Labor v. Texasgulf. Inc., 10 FMSHRC 498 

(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007 

(December 1987). 

2078 
WEVA 92-916 

With regard to guarding Violation No. 3120276, concerning 

the three cited employees shoveling at the No. 2 gob conveyor 

belt tailpiece with the guarding removed, Inspector Darios 

believed that if the unguarded pulley were to contact a shovel it 

would "cause the shovel to slip and strike somebody. It is a 

tight position, it can cause you to be drug under the belt by 

holding onto the shovel handle. If they slip, it could drag them 

into the belt and permanently diable, crush, or kill them" 

(Tr. 91). In response to a question as to why he believed that 

an injury was "reasonably likely". Mr. Darios responded as 

follows at (Tr. 91): 

A. If the condition is permitted to continue, and if people 

are permitted to continue to shovel the belts without 

guards, the probability increases that somebody is going to 

get caught into, slip into, or caught by, based upon history 

and nature of mining. 

In response to a question as to why he found that an injury 

could reasonable be expected to be permanently disabling. 

Mr. Darios stated as follows at (Tr. 92): 

A. Again, that is where the person who gets caught in 

it is not going to be able to get himself out. If the 

shovel handle flips back and hits him in the eye or 

some particular part of the body, it can dismember him. 

It can poke his eye out. I he gets caught in it, it 

could take his hand, his arm, or his entire body into 

it. 

In response to a question asking him to explain the basis 

for his sas&S 11 determination with respect to the violation, 

Mro Darios stated as follows at (Tr. 93)~ 

A. Any time that a condition exposes a miner to a 

degree of hazard that would possibly cause him 

permanently disabling injury, and is reasonably likely 

to occur then it would be significant and .substantially 

hazardous to him. 

Q. That is based upon your previous training, 

experience 1 and your knowledge of the MSHA 

requirements? 

A. Based on my experience in mining, period, ma'am. 

I agree with the inspector's "S&S" finding with respect to 

the three employees shovelling at the gob conveyor tailpiece with 

the guarding removed. The inspectors's notes, which are a part 

of the record in this case, include a sketch which places the 

20 79 
three employees in close proximity to the unguarded tailpiece, 

and they corroborate his testimony that the three employees 

simply drove up to the belt, removed the guard, and started 

shovelling while the belt was running. Given the fact that there 

were three people in what appears to be a relatively small area, 

I believe it would be reasonably likely that in the course of 

shovelling, and while attempting to stay out of each other's way, 

or through inattention, one or more of the shovels would contact 

the exposed piece of equipment in question. If this were to 

occur, I believe that it would reasonably likely result in an 

injury. Under the circumstances, the inspector's "S&S" finding 

IS AFFIRMED. 

With regard to the unguarded grizzly belt tail pulley, 

violation No. 3120277, Mr. Darios testified that his notes 

reflected that there was a ten-inch opening, 30 inches long, at 

the rear and one side of the grizzly that was not guarded. He 

described the area as "a tight area where a person can slip and 

get their feet in, or if they are cleaning, be caught in with a 

shovel. It is just a tight area where you can really get pinched 

or caught" (Tr. 101). He confirmed that he observed no one 

shovelling with the belt running, and he observed no one in the 

cited area when he observed the condition. However, he did 

observe someone cleaning, but could not recall whether it was 

earlier or later during the work shift (Tr. 102). Mr. Darios 

explained his gravity and "S&S" findings as follows at 

(Tr. 104-105}: 

A. Based upon what I had seen previously on this 

shift, people just removing guards and shovelling, I 

would presume that people would walk in there and start 

shoveling just like they would in any other belt pulley 

or drive in the mine. 

Q. So that is why you made the reasonably likely 

designation for illness or injury? 

A. Yes ma;am. 

Qo Is that also why you made designation B, that 

permanently disabling injury or illness was reasonably 

expected? 

A. Similar condition, similar expectancy of 

occurrence. 

Q. Tell me why you said that this was a significant 

and substantial situation? 

A. The same. Based on the degree and nature of the 

injury that occur. 

2080 
Q. You indicate under block 10-B that the number of person 

affected is one, but your notes indicate that no one was 

shoveling in this area at the time. How did you arrive at 

the indication for 10-B. 

A. One would be - without having anybody exposed, you 

would normally suppose that one person would be 

assigned to work kin this area because it is tight. 

For the reasons stated in my affirmance of the inspector's 

"S&S11 finding with respect to citation No. 3120276, I conclude 

and find that the inspector's "S&S" finding with respect to order 

No. 3120277, was warranted, and it IS AFFIRMED. 

With regard to the unguarded feeder chain drive sprockets 

and chain, Violation No. 3120278, Mr. Darios stated that if 

anyone working in the area were to slip or fall, the unguarded 

sprocket "will drag them in a hurry, and they can't get away from 

it" (Tr. 108). He stated that-a bulldozer operator and a backhoe 

operator were "in close proximity" to the area earlier, but they 

were not in the "immediate area" (Tr. 108). He believed that the 

cited condition posed a hazard to these two individuals, as well 

as "anybody that would be working in that area to clean the belt 

or to do work around the belt'' (Tr. 109). His inspection notes 

reflect that the cited area had bottom irregularities, "a close 

fit in tight area, approximately 2 feet wide by guard", and 

Mr. Darios noted his concern over other employees simply driving 

up and removing guards in order to cleanup while the belt was 

running. 

Although I am not totally convinced that the bulldozer 

operator or backhoe operator were close enough to the unguarded 

feeder sprocket to pose a hazard to them, Mr. Darios believed 

that they were used on several occasions to clean up around that 

area. Further, Mr. Bowman testified that the respondent's 

employees are responsible for cleaning and maintaining the belt 

in question, and it would appear that one or more of these 

employees would be in the area. Given the bottom irregularities in the areaq and the rather confined work area adjacent to the 

unguarded sprocket, I believe that it would be reasonably likely 

that someone would contact the exposed and unguarded sprockets 

and chain with a shovel, or with his hand or other body part if 

he were to slip. If this were to occur, I further believe that 

it would be reasonably likely that serious injuries would result. 

Under the circumstances, the inspector's "S&S" finding IS 

AFFIRMED. 

With regard to Violation No. 3120279, for an inadequately 

guarded gob belt take-up pulley, Mr. Darios explained his gravity 

findings.as follows at (Tr. 113, 117-118): 

2081 
A. The exposure of the pulley, again, without 

sufficient length guarding, and based on the number of 

violations that I had already issued previously on 

guarding that day, it was almost to the point of 

frustration and ridiculousness, as far as I was 

concerned, to the extent that the guarding was being 

let go. And I felt that it was very unwarrantable on 

management's part to permit that. 

Q. Would your testimony be the same regarding the 

gravity designations that you made as the explanations 

that you have given earlier? 

A. Yes, ma'am. 

I cannot conclude that the evidence in this instance 

supports the inspector's "S&S11 finding. I have reviewed the 

inspector's notes with respectto this violation, and I take note 

of a notation by the inspector that the unguarded pinch point 

that concerned him was six-and-one feet above ground level. In 

the absence of further evidence, I cannot conclude that it was 

reasonably likely that anyone could have contacted the exposed 

area that concerned the inspector. Further, the explanation 

offered by the inspector in support of his gravity finding speaks 

more to the respondent's negligence rather gravity. Under the 

circumstances, the inspector's "S&S" finding IS VACATED, and the 

violation IS MODIFIED to a non-"S&S" violation. 

WEVA 92-961 

Inspector Wilt's deposition is devoid of any relevant 

testimony concerning his special "S&S" finding associated with 

the three untrained employees who were cited on February 27, 

1992o Although Inspector George alluded to the violation, he 

simply indicated that three individuals whose names he could not 

remember, and who he identified as "maintenance personnel for the 

belt line"Q were not provided with training (Tr. 55). Under the 

circumstances, I conclude and find that the evidence presented it 

this case does not establish that the violation in question was 

Q

1S&S" u and the inspector's finding is this regard IS VACATED. 

The violation IS MODIFIED to a non-"S&S" violation. 

WEVA 92-1045 

Inspector George believed that the failure to conduct the 

electrical examinations was an "S&S" violation and would 

reasonably likely result in an injury because "any fault could be 

there without their realizing it, and an injury could occur" 

(Tr. 58). He confirmed that no one was working in the areas 

where the electrical belt components were located, and he did not 

know whether any examinations had been conducted pursuant to any 

2082 
OSHA regulations. He further confirmed that he found no problems 

with any of the electrical belt components, and he conceded that 

he observed no conditions that would result in a fatality or 

permanently disabling injury. However, he believed "that there 

could be a shock or a burn injury", and that one individual would 

normally be working in the cited area. He identified that 

individual as "cleanup, maintenance, or whatever" (Tr. 59-60). 

I cannot conclude that the inspector's "S&S" finding is 

supportable. Although I have found that a violation occurred, 

and would agree that it is possible that anyone contacting a 

faulty piece of electrical equipment could suffer injuries, there 

is no credible or probative evidence to support any reasonable 

conclusion that it was reasonably likely that someone would be 

injured as a result of the violation in this case. None of the 

electrical components are identified or explained, and there is 

no evidence that any of the cleanup or maintenance personnel 

would be in close proximity to any of the components that may not 

have been examined. Further, Mr. George found nothing wrong with 

those components, and althoughhe mentioned shock and burn 

injuries, I find no evidence to support the reasonable likelihood 

of such injuries. Under all of these circumstances, the 

inspector's "S&S" finding IS VACATED, and the violations IS 

MODIFIED to a non-"S&S" violation. 

WEVA 93-97 

Inspector George testified that after finishing his 

inspection of the Island Creek preparation plant on August 27, 

1992, he went to the gob area and observed Mr. Dragovich "working 

in that area". Mr. George stated that Mr. Dragovich had come to 

the area in a truck owned by "the power plant" to inspect the 

beltline at the gob area. Mr. Dragovich informed Mr. George that 

he worked for the respondent, and when asked about his training, 

Mr. Dragovich informed Mr. George that he last received training 

when he worked for Island Creek as an underground miner 

(Tr. 73-74) • 

Mr. George concluded that Mr. Dragovich's lack of 

surface training could reasonably likely result in an injury 

because 91 the man had not received any type of surface training. 

He could run into a situation that he was not familiar with, and 

an accident could occur 11 (Tr. 80). Mr. George confirmed that he 

made a gravity finding of "lost work days or restricted duty", 

and he observed nothing that would lead him to conclude that 

Mr. Dragovich's lack of surface training would result in a 

fatality or permanently disabling injury. He also stated that 

Mr. Dragovich's lack of knowledge of surface situations could 

result in a "minor accident", and he based this opinion on the 

fact that he found no other violations at the dozer hopper or 

belt area where he observed Mr. Dragovich. Mr. George confirmed 

that he was aware of the fact that Mr. Dragovich had previous 

2083 
underground mining experience, and had worked for the respondent 

since April 1991, with no problems, injuries, or accidents 

(Tr. 81-84). 

I cannot conclude that the evidence of record supports any 

conclusion that Mr. Dragovich's lack of MSHA training constituted 

a significant and substantial violation. I find no credible or 

probative facts to support any conclusion that the lack of 

training would reasonably likely result in injuries to 

Mr. Dragovich or others. At the time that the inspector observed 

Mr. Dragovich he had apparently driven by the conveyor in a truck 

visually observing the beltline and that he got out of his truck 

when he reached the gob pile area. Given the fact that 

Mr. Dragovich had worked for the respondent in surface areas for 

over a year, had previous mining experience, and had never 

encountered any safety difficulties on the job, I cannot conclude 

that his lack of MSHA training would place him or others at risk. 

Under the circumstances, the inspector's "S&S" finding IS 

VACATED, and the violation IS Z,:ODIFIED to a non-"S&S" violation. 

Size of Business and Effect of Civil Penalty Assessments on the 

Respondent's Ability to Continue in Business 

The petitioner asserts that during the last few months of 

1992, and after the citation and orders in these cases were 

issued, the North Branch refuse area was split from the North 

Branch Mine I.D. renamed North Branch Fuel Supply, and given I.D. 

No. 46-08253. However, it is still operated by the Laurel Run 

Mining Company. 

The petitioner states that the underground portion of 

the North Branch Mine has merged into Potomac Mine, I.D. 

No. 46-04190u a mine that it connects with underground, and that 

North Branch Mine is now called the North Portal of Potomac Mine, 

under the I.D. number of Potomac Mine, and is still operated 

by Laurel Run. Further, the petitioner states that the surface 

area of the North Branch Mine and the North Branch Preparation 

Plant have remained under the I.D. number of the North Branch 

Mineo I.D. No. 46-04190, and are being shut down, with the coal 

and refuse from the North Portal of Potomac Mine being sent 

elsewhere 9 and that Island Creek Coal Company is the operator for 

I.D. No. 46-04190 while the operations are being closed down. 

The petitioner concludes that these differences have no effect on 

the lssues in these proceedings since the citation and orders 

were issued while active operations were taking place at the 

North Branch Mine, North Branch Preparation Plant, and the North 

Branch Refuse area. 

The petitioner states 

at the plant site and that 

135,200 annual work hours. 

constitutes a medium-sized 

that the respondent has 65 employees 

its operations require approximately 

Petitioner concludes that this 

operation. I agree. 

2084 
The petitioner takes the position that payment of the 

proposed civil penalty assessments of $2,900, for all of the 

violations in these proceedings will not adversely affect the 

respondent's ability to continue in business. Although the 

respondent has conceded as part of its admissions in these cases 

that payment of the proposed penalties will not adversely affect 

its ability to continue in business, it takes the position that 

being subject to MSHA's enforcement jurisdiction could impact on 

its ability to continue in business. 

In a contested civil penalty case the presiding judge is not 

bound by the penalty assessment regulations and practices 

followed by MSHA's Office of Assessments in arriving at initial 

proposed penalty assessments. Rather, the amount of the penalty 

to be assessed is a de novo determination by the judge based on 

the six statutory criteria specified in section 110(i) of the 

Act, 30 u.s.c. § 820(i), and the information relevant thereto. 

Shamrock Coal Co., 1 FMSHRC 469 (June 1979); aff'd, 652 F.2d 59 

(6th Cir. 1981); Sellersburg Stone Company; 5 FMSHRC 287, 292 

(March 1983). As a general rule, and in the absence of evidence 

that the imposition of civil penalty assessments will adversely 

affect a mine operator's ability to continue in business, it is 

presumed that no such adverse affect would occur. Sellersburg 

Stone Company, 5 FMSHRC 287 (March 1983), aff'd 736 F.2d 1147 

(7th Cir., 1984). 

It seems obvious to me that the respondent would rather be 

regulated by OHSA rather than MSHA. However, the fact that an 

operator must spend money to bring its operations into compliance 

with MSHA's safety and health standards, or fails to budget 

money for paying penalties, is no basis for not imposing civil 

penalty assessments for proven violations. See: J & c Coal 

Corporation, 8 FMSHRC 799 (May 1986); Town of Canandaigua, 

2 FMSHRC 2154 (August 1980)o The respondent's suggestion that 

subjecting it to MSHA;s enforcement jurisdiction may adversely 

affect its ability to continue in business IS REJECTED. This 

argument could be raised by any mine operator or contractor who 

is not too enchanted with being regulated by MSHA, and who would 

prefer to be regulated by OSHA, as "the lesser of two evils"o 

The respondent is free to present evidence that payment of any 

particular proposed civil penalty assessment may adversely affect 

its business. However, in the instant proceedings, I cannot 

conclude that the payment of the penalties that I have assessed 

for the violations in question will adversely affect the 

respondent 8 s ability to continue in business. 

History of Previous Violations 

The petitioner has confirmed that the respondent has no 

history of previous violations. I adopt this as my finding and 

conclusion on this issue. 

2035 
Good Faith Abatement 

The petitioner asserts that the violations were abated in 

good faith within the times set for abatement. The abatement 

information reflects that the grizzly gob feeder chain guard was 

replaced in two hours (Order No. 3120278}; the rear tailpiece 

pulley guard was replaced and a new side guard was installed in 

two hours (Order No. 3120277) ; the conveyor belt take-up pulley 

was expanded a distance sufficient enough to prevent contact by 

and/or injury to persons within 1 1/2 hours (Order No. 3120279): 

and that the electrical inspection was completed and recorded by 

a certified person within 35 minutes. 

Gravity 

Based on my "S&S" findings and conclusions with respect to 

the violations in these proceedings, I conclude and find that the 

guarding violations 3120276, 3120277, and 31202778, issued by 

Inspector Darios were serious violations. I further conclude and 

find that all of the remaining· 'Violations were non-serious. 

Negligence 

Although I have no reason not to believe the respondent's 

assertions that it had a good faith belief that it was not 

subject to MSHA's enforcement jurisdiction, based on all of the 

evidence and testimony of record in these proceedings, I am not 

convinced that the respondent was totally oblivious to the fact 

that MSHA was asserting jurisdiction in those mine areas where 

contractor work was being performed. 

The testimony of the inspectors reflects that Mr. Bowman was 

informed prior to the issuance of the violations in these 

proceedings that any contractor performing work on mine property 

was subject to MSHAus regulatory and enforcement jurisdiction and 

would be held accountable for any violations by contractor 

employees while working on mine property. Mr. Bowman stated that 

the was "overseeing" some of the conveyor construction work as 

early as September 1990 (Tr. 94). He also stated that prior to 

working for the respondent, he worked for a coal company for ten 

yearsf including a job as plant manager. He also worked for 

eight years building and operating coal preparation plants 

(Tro 9-12). He confirmed that he was aware of the differences 

between the OSHA and MSHA conveyor and guarding standards 

{Tro 95). He also confirmed that in July and August, 1991, he 

was aware of the fact that MSHA was asserting jurisdiction over 

the conveyor belt on North Branch property, and that he was aware 

that Wylie construction had been cited with violations by MSHA 

for violations incident to that conveyor (Tr. 100-104). 

Although Mr. Seavey indicated that he had no knowledge of 

MSHA when he was first hired at the plant on October 1, 1991, he 

2086 
stated that "I knew of the interface at the refuse pile, where we 

accepted the refuse from Island Creek Coal (Tr. 44). 

In view of the foregoing, I conclude and find that all of 

the violations in these proceedings were the result of the 

respondent's failure to exercise reasonable care to prevent the 

violative conditions which it knew or should have known existed 

at the time they were observed by the inspectors, and that this 

amounts to ordinary or moderate negligence. 

Civil Penalty Assessments 

On the basis of the foregoing findings and conclusions, and 

taking into account the civil penalty assessment criteria found 

in section 110(i) of the Act, I conclude and find that the 

following civil penalty assessments are reasonable and 

appropriate for tne violations which have been affirmed: 

citation No. Date 30 C.F.R. Section Assessment 

3120276 2/26/92 77.400(d) $200 

3120277 2/26/92 77.400(a) $95 

3120278 2/26/92 77.400(d) $95 

3120279 2/26/92 77.400{c) $75 

3120293 2/27/92 48.24(a) $60 

3720850 5/12/92 77.502 $80 

3115366 8/27/92 48.25(a) $75 

ORDER 

The respondent IS ORDERED to pay the civil penalty 

assessments enumerated above within thirty (30) days of the date 

of these decisions and order. Payment is to be made to the 

petitioner (MSHA), and upon receipt of payment, these proceedings 

are dismissed. 

k«~ Administrative Law Judge 

2087 
Distribution: 

Charles M. Jackson, Esq., Office of the Solicitor, 

u.s. Department of Labor, 4015 Wilson Boulevard, Rm. 516, 

Arlington, VA 22203 (Certified Mail) 

Monica K. Schwartz, Esq., Ricklin Brown, Esq., Bowles, Rice, 

McDavid, Graff & Love, 16th Floor Commerce Square, Lee Street, 

P.O. Box 1386, Charleston, WV 25325-1386 (Certified Mail) 

ml 

2088