JULY 1987 

Commission Decisions 

07-01-87 Local Union 1889, Dist. 17, UMWA v. 

Westmoreland Coal Company 

Administrative Law Judge Decisions 

07-06-87 

07-07-87 

07-08:...37 

07-08-87 

07-09-87 

07-09-87 

07-10-87 

07-10-87 

07-14-87 

07-15-87 

07-15-87 

07-16-87 

07-17-87 

07-17-87 

07-17-87 

07-20-87 

07-22-87 

07-23-87 

07-23-87 

07-24-87 

07-28-87 

07-29-87 

07-31-87 

Secretary of Labor for Alvin Casey,v. 

Brent Coal Corporation 

County of Ouray, Colorado 

Jim Walter Resources, Inc. 

Perry Drilling Company 

Dover Elevator Company 

Consolidation Coal Company 

Energy Supply Inc./Donray Industries 

UMWA/Jeffrey Stennett v. Energy Supply 

Nacco Mining Company 

White County Coal Corporation 

Ernest R. Lafon, Jr. v. Virginia Lime Co. 

Helvetia Coal Company 

Sec.Labor for Mark R. Kraus v. Green 

Ridge Mining, Inc. 

Sec. Labor for Brian S. Ousley v. 

Metric Constructors, Inc. 

Mathies Coal Company 

Kaiser Sand & Gravel Company 

Arnold Sharp v. Elk Creek Coal Co. 

Rushton Mining Company 

Local 2274, Dist. 28, UMWA v. Clinchfield 

Coal Company 

William C. Fankhauser v. GEX Hardy, Inc. 

Phelps Dodge Corporation 

Texas Utilities Generating Co. 

Greenwich Collieries 

WEVA 81-256-C 

VA 86-45-D 

WEST 86-8-M 

SE 86-29-R 

PENN 86-273 

WEVA 86-391 

WEVA 87-222-R 

PENN 86-291 

PENN 86-228-C 

LAKE 87-48 

LAKE 87-35 

VA 87-1-DM 

PENN 87-92 

LAKE 87-67-D 

SE 87-85-DM 

PENN 87-111 

WEST 86-116-M 

KENT 86-149-D 

PENN 85-253-R 

VA 83-55-C 

LAKE 87-33-D 

CENT 87-2-M 

CENT 86-119 

PENN 86-17-R 

Page 1195 

Page 1199 

1205 

Page 1219 

Page 1220 

Page 1221 

Page 1223 

Page 1236 

1236 

Page 1241 

Page 1244 

Page 1246 

Page 1247 

Page 1250 

Page 1251 

Page 1255 

Page 1257 

Page 1262 

1270 

Page 1276 

Page 1285 

Page 1286 

Page 1291 

Page 1299 

JULY 1987 

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

Local Union 1889,·Dist. 17, UMWA v. Westmoreland Coal Company, Docket No. 

WEVA 81-256-C. (Interlocutory Review of May 20, 1987 Order by Judge Melick.) 

Jim Walter Resources, Inc. v. Secretary of Labor, MSHA, Docket Nos. SE 86-105-R, 

SE 87-8. (Judge Weisberger, May 29, 1987) 

Youghiogheny & Ohio Coal Company v. Secretary of Labor, MSHA, Docket Nos. 

LAKE 86-121-R, LAKE 87-9. (Judge Melick, June 5, 1987) 

Mettiki Coal Corporation v. Secretary of Labor, MSHA, Docket Nos. YORK 87-2-R, 

YORK 87-3-R, YORK 87-5. (Judge Melick, June 13, 1987) 

Helen Mining Company v. Secretary of Labor, MSHA, Docket Nos. PENN 86-94-R, 

PENN 86-181. (Judge Weisberger, June 12, 1987) 

Review was denied in the following cases during the month of July: 

Joel T. Arnoldi v. Asarco, Inc., Docket No. WEST 85-161-DM. (Judge Morris, 

June 3, 1987) 

Secretary of Labor, MSHA v. Rushton Mining Company, Docket No. PENN 87-74. 

(Judge Broderick, June 11, 1987) 

COMMISSION DECISIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 1, 1987 

LOCAL UNION 1889, DISTRICT 17, 

UNITED MINE WORKERS OF 

AMERICA (UMWA) 

v. 

WESTMORELAND COAL COMPANY 

and 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Docket No. WEVA 81-256-C 

BEFORE: Backley, Doyle, Lastowka and Nelson, Commissioners 

ORDER 

BY THE COMMISSION: 

This compensation proceeding under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seq. (1982), was commenced in 

1981 and, on cross-petitions for interlocutory review, is before the 

Commission for the third time. The petitions are granted and, because 

time is of the essence at this stage of this protracted litigation, 

briefing is suspended and we dispose of the petitions by summary order. 

On the following bases, this matter is remanded to presiding Judge Gary 

Melick. 

In September 1986, the Commission remanded this case for further 

proceedings to determine whether a nexus sufficient to support an award 

of compensation existed between certain violations of mandatory standards 

and the mine explosion and imminent danger order involved in this case. 

8 FMSHRC 1317, 1329-30 (September 1986). We additionally stated: "If 

such a relationship is determined, the judge shall take appropriate 

action to identify the affected miners and the amount of compensation 

due to each." 8 FMSHRC at 1330. On the remand proceedings before Judge 

Melick, the parties became engaged in disputes as to the scope_and the 

terms and conditions of discovery. Following certain rulings by the 

judge in a May 20, 1987 order, the parties filed these cross-petitions 

for interlocutory review seeking review of that order. Upon receipt of 

the petitions, the Commission stayed further proceedings before the 

judge. 

1195 
With respect to the petition filed by respondent Westmoreland Coal 

Company ("Westmoreland"), we hold that the judge erred in treating the 

individual miner claimants as mere witnesses to this proceeding entitled 

to payment of witness fees for participation in the depositions sought 

by Westmoreland. In our practice in compensation proceedings, the 

individual miner claimants are deemed to be parties (see generally 

UMWA Dist. No. 31 v. Clinchfield Coal Co., 1 IBMA 31, 47 (1971)), even 

if their miner's representative, as here, is actually prosecuting the 

compensation complaint as a party on their behalf. (30 U.S.C. § 821; 

29 C.F.R. § 2700.4(a).) The gen~ral rule in federal practice is that 

parties ordinarily are not entitled to the payment of witness fees, and 

we reverse the judge's authorization of such fees in the circumstances 

of this proceeding. See,~·· Barth v. Bayou Candy Co., Inc., 379 

F. Supp. 1201, 1205 (E.D. La. 1974). 

Concerning the UMWA's petition, for the reasons stated above, we 

reject the UMWA's contention that the individual miner parties are 

entitled to special witness protection under Commission Procedural Rule 

59, 29 G.F.R. § 2700.59 (protection from disclosure of the names of 

miner witnesses and informants). Further, we affirm the judge's ruling 

that Westmoreland may depose the miners on the subject of the circumstances of their idlement. This subject is clearly relevant in discovery 

by either party and is within the scope of our remand order. Cf. Loe. 

U. No. 781, Dist. 17, UMWA v •. Eastern Assoc. Coal Corp., 3 FMSHRC 1175, 

1176-79 (May 1981). However, we hold that the question of whether any 

of the miners received state unemployment compensation is irrelevant to 

this proceeding and may not be pursued in discovery. Cf.,~., Baich v. 

FMSHRC, 704 F.2d 275, 286-87 (6th Cir.), vacated in other part on other. 

grounds, 719 F.2d 194, 196 (6th Cir. 1983). 

Finally, all participants in this six-year litigation must be aware 

of the need to move with dispatch to resolve the issues remaining so 

that this proceeding may be concluded at the earliest possible date. 

1196 
On the foregoing grounds, our previously directed stay is dissolved 

and this matter is remanded to the judge for expeditious proceedings 

consistent with this order. '!:._/ 

Richard V. Backley, Commissioner 

James A. Lastowka, C mmissioner 

·y /; S1 . ~.u4....-~ I u.£¥-v'-i,/ 

L. Clair Nelson, Commissioner 

* Chairman Ford did not participate in the consideration or disposition of this matter. 

1197 
Distribution 

Earl R. Pfeffer, Esq. 

UMWA 

900 15th St., NW 

Washington, D.C. 20005 

Barry F. Wisor, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

John T. Scott, III, Esq. 

Crowell & Moring 

1001 Pennsylvania Ave., N.W. 

Washington, D.C. 20004 

Administrative Law Judge Gary Melick 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, VA 22041 

1198 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 6 1987 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. VA 86-45-D 

ON BEHALF OF ALVIN CASEY, 

Complainant 

v. 

BRENT COAL CORPORATION, 

Respondent 

DECISION 

Appearances: Mary K. Spencer, Esq., Office of the Solicitor, 

U.S. Department of Labor, Arlington, Virginia, 

for Complainant~ Robert J. Breimann, Esq., and 

Joseph W. Bowman, Esq., Street, Street, Street, 

Scott and Bowman, Grundy, Virginia, for Respondent. 

Before: Judge Broderick 

STATEMENT OF THE CASE 

Complainant Alvin Casey contends that he was laid off from 

his job as mine foreman with Respondent on August 15, 1985, 

because he refused to work under unsafe conditions. Pretrial 

discovery was initiated by both Complainant and Respondent. 

Pursuant to noticev the case was called for hearing on 

March lOu 1987, in Bluefield, West Virginia. It was continued on 

March 31, 1987~ in Bristol, Virginia. Respondent orally moved to 

dismiss the complaint at the commencement of the hearing. The 

motion was denied. 

vin Caseyv -James Church, Minnie Mae Church, 

Robert Nichols, Arnold Carico, and Dorsey Evans testified on 

behalf of Complainant. Paul Horn, Gary Lester, Terry Lee Taylor, 

Robert Dale, and Billy Horn testified on behalf of Respondent. 

Both parties have filed post hearing briefs. I have considered 

the entire record, and the contentions of the parties and make 

the following decision. 

1199 
FINDINGS OF FACT 

Complainant Alvin Casey worked for Respondent as a coal 

miner for approximately two years. He worked for other mines 

operated by Respondent's President, Billy Horn, for about 

10 or 11 years of the approximately 13 years he worked in the 

coal mining industry. He worked as a shot fireman, roof bolter 

operator, cutting machine operator and mine foreman. He was 

certified as a shot fireman, but was not certified as a mine 

foreman. He has a fifth grade education, and a very limited 

ability to read. During his last several months with Respondent, 

Casey worked as a foreman on the second shift. The second shift 

was supposed to be a maintenance shift, but coal was produced 

about 80 percent of the time. Casey was paid $8.75 per hour, 

and, because he acted as foreman, received pay for 9 hours 

although he worked only eight. 

Respondent was the owner and operator of the subject mine. 

The mine was developed through three old abandoned mines. 

Respondent was given permission by MSHA to go through the old 

workings and develop them into an active mine. Seals were 

constructed and ventilation provided. The mine was ventilated by 

an exhaust fan, pulling intake air across the working face, and 

down the return air course, exiting the mine at the fan. In 

August 1985, there were nine working headings, being mined on a 

left to right cycle. The intake air and return air were 

separated by permanent stoppings erected in crosscuts as the 

mining cycle progressed. The coal was removed by belt. 

The mine was 30 to 34 inches in height. It produced from 

30,000 to 50,000 tons of coal annually. The maximum number of 

employees was fourteeno During the two year period prior to 

August 14v 1985u forty seven violations were paid by Respondent, 

eighteen of which were denominated significant and substantial. 

On August 6, 1985, on the day shift, a scoop cut through in 

the Number 3 heading to an old abandoned mi.ne. The cut through 

occurred approximately 70 feet inby the last open crosscut. The 

day shift foreman, Gary Lester, called Respondent 1 s President, 

Billy Hornv who directed him to withdraw the miners from the area 

to the intake side. Horn went into the mine with a flame safety 

lamp and methane detector. He crawled down the Number 3 heading 

and into the abandoned mine. He did not detect any methane or 

oxygen deficiency at the mouth of the heading. After proceeding 

30 to 40 feet into the abandoned mine, the flame on the flame 

safety lamp diminished slightly, showing some oxygen deficiency. 

He returned to the mouth of the heading. After checking the 

ventilation, he instructed the men to stay on the intake air 

side, and began assembling material to construct a seal. Casey 

testified that when he arrived at the mine for the second shift, 

1200 
Horn told him that he was ill, because "he got a whiff of bad air 

from where he cut into that old abandoned mines." (Tr. I, 32.} 

Horn denied making the statement and denied having become ill. I 

accept Horn's testimony on this matter and reject Casey's. Casey 

hung a flame safety lamp at the mouth of the Number 3 Entry, and 

his crew worked in Entries 4 through 9. Casey testified that he 

went up Entry 3 about 20 feet and his flame safety went out. 

This testimony was not corroborated by James Church who was 

present at the time. 

A seal was constructed the next day (August 7} on the day 

shift by Gary Lester. The seal was built of cement block and 

mortar approximately 10 feet outby the cut through, which had 

been filled with rock and debris from the mine before the seal 

was commenced. The seal was airtight. After the seal was 

completed, the day shift began to fill the entry outby the seal 

with stone, rock and mine debris, to protect the seal, according 

to Horn, from being struck by mine equipment. This work (called 

"gobbing" the area) was not completed during the· day shift on 

August 7. Horn testified that he told Casey of the seal and 

instructed him to continue the gobbing outby the seal. Casey 

denies that he was told of the seal or that he knew of it. He 

testified that he could see through the heading into the old 

abandoned mine for "a couple or three days after" the cut through. 

(Tr. I, 41.) On this issue I accept the testimony of Horn and 

Lester that a seal was constructed on August 7. I find Casey's 

testimony not credible. I also find that Casey was told that the 

seal had been built. James Church, who worked under Casey, 

testified that he was told of the seal. CTr. I, 96.) Casey's 

crew did some gobbing of the area outby the seal on August 7. 

The gobbing was completed during the first shift on August 8, and 

a mud plaster seal was constructed at the mouth of the Noo 3 

headingo A flame safety lamp was maintained in the vicinity of 

the No. 3 heading. The construction of the seal did not conform 

to the approved sealing plan for the mine in that a test pipe was 

not constructed to test the mine atmosphere behind the seal. 

Further, because of the gobbed area outby the seal, it was not 

possible to inspect the integrity of the seal daily as MSHA 

regulations require. 

On or about August 5, 1985, Casey approached Horn and asked 

for a raise in pay. Casey said he had another job, and would 

quit if he did not get a raise. Horn told him that the companyis 

financial circumstances would not allow him to give Casey a raise. 

Casey renewed his request on August 12, and was told that nothing 

could be done at the time, but perhaps later on he could be given 

a raise. Casey stated he had another job as soon as the 

prospective employer obtained a continuous miner which was on 

order. On August 14, at the conclusion of the day shift, 

Gary Lester told Casey that a scoop was broken down and he would 

1201 
need to use the man trip to bring repair parts to the No. 2 

heading where the scoop was located. Casey's crew entered the 

mine and found that the cutting machine was between heading two 

and three. Casey found that the cable in the supply box had been 

shortened (apparently by Lester), and ordered his crew out of the 

mine. The shortening of the cable by Lester had occurred 

previously and upset Casey. I find as a fact that Casey did not 

indicate that he was withdrawing the crew because he was 

concerned about "bad air" in the mine, or that he was afraid to 

proceed to the No. 2 heading, but rather because he was upset on 

account of the cable. Horn was not at the mine that day. The 

following day, August 15, Casey came to the mine early in his 

street clothes. Horn asked him why he withdrew his crew, and 

Casey replied that he could not work with Gary Lester anymore and 

that he quit. I find that Casey did not complain to Horn about 

bad r. He asked Horn for a lay off slip in order to draw 

unemployment benefits until he was called to work on his new job. 

Casey did not return to Respondent's mine after that date. 

On about August 22, 1985, Respondent's pillaring plan was 

approved by MSHA, and the miners began to remove pillars. In 

about 3 or 4 weeks, the pillars were all removed, and the mine 

was abandoned. 

Casey received unemployment compensation after a hearing 

before the state employment security agency. He began working 

for H&H Coal Company about 9 weeks after leaving Respondent. He 

worked with H&H about 8 days before quitting because he "couldn't 

stand to work in the low coal." (Tr. I, 50.) The coal seam at 

H&H was about 24 inches high. He has not worked since leaving 

H&H. 

ISSUES 

l. was claimant subjected to adverse action by Respondent 

for activity protected under the Act? 

2. If he wasu to what remedies is he entitled? 

CONCLUSIONS OF LAW 

JURISDICTION 

Respondent was subject to the Act in the operation of the 

subject mine. Complainant Casey was a miner and protected by 

Section 105(c) of the Act. Respondent is a small operator and 

has an average history of prior violations. 

1202 
PASULA RULE 

Under the Act, a miner can establish a prima facie case of 

discrimination by showing that he engaged in protected activity 

and that the adverse action complained of was motivated in any 

part by that activity. Secretary/Fasula v. Consolidation Coal 

Co., 2 FMSHRC 2786 (1980); rev'd on other grounds sub nom. 

Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 

1981); Secretary/Robinette v. United Castle Coal Co., 3 FMSHRC 

803 (1981). The operator may rebut the prima facie case by 

showing either that no protected activity took place, or that the 

adverse action was not motivated in any part by the protected 

activity. A miner has the right to refuse to work if he has a 

good faith reasonable belief that the work is hazardous. Pasula, 

supra, Simpson v. Kenta Energy, Inc., 7 FMSHRC 1034 (1986). Such 

refusal is activity protected under the Act. 

PROTECTED.ACTIVITY 

The cut through to the old mine created a potentially 

hazardous condition on the return air side (headings 1, 2 and 3) 

in the subject mine. Claimant's refusal to work in headings 1, 

2, and 3 on August 6 and 7, 1985, before the seal was 

constructed, was therefore protected. I have found as a fact 

that Casey was informed that the seal was constructed. Although 

the seal did not conform to MSHA requirements, or the provisions 

of 30 C.F.R. § 75.303 (requiring a daily examination of seals), I 

have found as a fact that Casey and his crew worked in the first 

three headings between August 8 and August 14. Therefore, I 

conclude that he did not refuse to work because of a good faith, 

reasonable belief that the work was hazardous. 

ADVERSE ACTION 

I have found that Casey quit his employment and was not 

discharged. I also conclude that he was not constructively 

discharged because of intolerably unsafe working conditions. See 

Simpson Vo Kenta, suprao The evidence shows that he quit because 

he thought he deserved a raise, because of disputes with 

Gary Lester, and because he beliaved that he had a better job 

lined up. Therefore, I conclude that he was not subjected to 

adverse action under the Act. 

MOTIVATION-CREDIBILITY 

The critical issue in this case is why Casey left the 

Respondent's employ. Was it because he feared that his safety 

and the safety of his crew were jeopardized by the threat of bad 

air coming from the old works? Or was it because he was denied a 

raise, and did not get along with his fellow-foreman Gary Lester? 

1203 
The resolution of this issue depends almost·entirely on the 

credibility of Casey and of Horn. I have found Casey's denial 

that he knew of the seal not credible: Church who worked under 

Casey was told of it and worked in the return headings after the 

seal was const~ucted, as did others on Casey's crew. Casey's 

testimony that he could see from the mouth of the heading into 

the old mine (more than 70 feet away) for 2 or 3 days after the 

cut through is inherently incredible. I have found the testimony 

of Billy Horn, Respondent's President to be credible concerning 

Casey's statements when he left his job and prior thereto. For 

these reasons I find that Complainant Casey was not subjected to 

adverse action by Respondent because of activity protected under 

the Act. A violation of section 105(c) has not been established. 

ORDER 

Based on the above findings of fact and conclusions of law, 

the complaint and this proceeding are DISMISSED. 

7 , ~ J, ; , I --~1 • , -1 ' /,,f,, I , . 

)

'lilt J't;' (. ~ ·! ,,,7,:_;i:_,, 1. £ , ll#"' t..-1.1... ..... ~.7 ,. ._.. / . c~ 

James A. Broderick 

' / Administrative Law Judge 

Distribution: 

Mary K. Spencer, Esq., U.S. Department of Labor, Office of the 

Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified 

Mail) 

Robert Jo Breimann Esq. Street Streetv Streetv Scott & Bowmanu 

PoO. Box 2100 11 Grundy~ VA 24614 (Certified Mail) 

slk 

1204 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE AOC 

DENVER, COLORADO 80204 -JUL 7 1987 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

COUNTY OF OURAY, COLORADO, 

Respondent 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 86-8-M 

A.C. No. 05-04036-05501 

Docket No. WEST 86-9-M 

A.C. No. 05-04036-05502 

Docket Wo. WEST 86-66-M 

A.C. No. 05-04036-05503 

Ouray County Gravel Pit 

Appearances: James H. Barkley, Esq., Office ·of the Solicitor, 

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

for the Petitioner; 

Richard P. Tisdel, Esq., Tisdel, Mathis, Reed, 

Hockersmith & Bennett, Ouray, Colorado, 

for the Respondent. 

Before: Judge Morris 

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

Health Administration, in these consolidated cases charges 

respondent with violating safety regulations promulgated under 

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

(the Act). 

A hearing on the merits took place on September 4, 1986f 

in Grand Junctionu Coloradoo 

Stipulation 

At the hearing it was agreed that respondent, Ouray County, 

a County and as such a political subdivision of the State of 

Coloradoo Furtheru respondent operates the mine and it has 36 

employees, including one at the site in question. Respondent 

further admitted the violations and penalties with the exception 

of Citation 2376690 in docket number WEST 86-9-M. The parties 

further stipulated that the briefs in Jefferson County Road and 

Bridge Department, 9 FMSHRC 56 {1987), could be entered as posttrial briefs in these cases. 

1205 
Summary of the Evidence 

Collin R. Galloway, a duly authorized representative of 

the Secretary of Labor, inspected the Ouray County gravel pit 

on June 24, 1985 (Tr. 18, 19). As a result the inspector issued 

Citation 2376690 for the alleged failure of respondent to notify 

MSHA of the accident. l/ The accident, which caused a fatality, 

occurred when a highwall fell on a front-end loader (Tr. 19, 

Ex. Pl, P2). 

Galloway's investigation disclosed that the fatality was 

discovered at the quarry at 2:30 p.m. on June 24, 1985 (Tr. 21, 

22). 

MSHA's records indicate· that the agency was notified by 

telephone at 0945 hours on June 25, 1985 (Tr. 20, 33). Agency 

policy requires immediate notification. The primary purpose of 

the regulation is to insure that no further lives are endangered 

in any recovery operation. Further, the purpose of the regulation is to insure that the accident site is not substantially 

altered (Tr. 22). It is MSHA's policy to direct recovery operations (Tr. 30, 31). In the inspector's opinion there was no 

one present at the scene with the necessary expertise to conduct 

the recovery operations (Tr. 3lv 32) o However, the inspector 

admitted he was not knowledgeable as to the experience of those 

present (Tr. 32, 33). 

In this situation the recovery operation started at 3:15 p.m., 

when the victim was pronounced dead. During the recovery it was 

necessary to withdraw personnel twice because of additional 

sloughing of the highwall~ The victim was removed from under 

the highwall after five and one-half hours (Tro 23u 24u 28, 34)o 

l/ 30 C~FoR. § 50.10, the regulation allegedly violated, provides 

as follows: 

§ 50ol0 Immediate Notification 

If an accident occurs, an operator shall 

immediately contact the MSHA District or Subdistrict Office having jurisdiction over its 

mineo If an operator cannot contact the appropriate MSHA District or Subdistrict Office, it 

shall immediately contact the MSHA Headquarters 

Office in Washington, D.C., by telephone, toll 

free, at (202) 783-5582. 

1206 
No MSHA personnel were present during the recovery operations and the inspector believed this factor involved a hazard 

to the recovery team (Tr. 24, 34). 

During the recovery operations the loader was adjacent to 

the foot of the 45 to 50 foot highwall (Tr. 27, 28). The angle 

of repose of the highwall was 90 degrees (Tr. 28). 

Patrick O'Donnell and Ronald Phelps testified for respondent. 

Patrick O'Donnell, the Ouray County Administrator, is involved in all aspects of county government {Tr. 36). The County's 

gravel pit is operated as part of the County's Road and Bridge 

Department. 

The United States Government through its agency, BLM, 2/ 

owns the land. BLM has issued a Free Use Permit to Ouray County 

to extract gravel from the pit with county employees and equipment 

(Tr. 37, 66, Ex. Rl) The pit consists of 39.87 acres (Tr. 69). 

None of the materials that are removed are sold, bartered or 

traded (Tr. 38, 40, Ex. Rl). Ouray County does not engage in commerce with the products from the gravel pit. The material is 

screened and used only for road construction in Ouray County, 

Colorado (Tr. 39). 

BLM inspects the pit and their inspectors will point out 

any problems they observe (Tr. 40). 

The witness was present at the site at approximately 3:15 p.m. 

He attended to the removal of the deceased who had been buried by 

a 45-foot vertical highwall. O'Donnell also checked the top of 

the highwall for fractures (Tr. 41, 42, 62, 63)0 After his inspection ovDonnell directed that the recovery operations cease 

(Tro 43)o Thereaftery they attempted to remove the equipment by 

pulling it out with a cable. They were unsuccessful with this 

effort (Tr. 43). 

An attempt at removal by using a backhoe was also unsuccessful (Tro 43u 44)o The witness and the County Commissioner finally 

were able to remove the deceased (Tr. 44). Subsequently, after 

considerable gravel had been removed, they were able to start the 

trapped loader and remove it (Tr. 44). 

2/ Bureau of Land Management 

1207 
Dμring the rescue operations it had not occurred to O'Donnell 

to notify MSHA (Tr. 44, 45}. Mr. O'Donnell had previously met 

with MSHA's representative Phelps but he had never been told of 

the necessity of contacting MSHA in the event of an accident (Tr. 

45). O'Donnell was not aware of the 24-hour number in Washington, 

D.C. (Tr. 45). O'Donnell notified MSHA and BLM the following 

morning (Tr. 46). 

The recovery operations terminated about 10:30 p.m. (Tr. 46). 

Before the fatality, on May 20, 1985, MSHA Inspector Ron 

Phelps conducted a CAV inspection at the gravel pit (Tr. 46, 

47). This was the first MSHA inspection in the 20 years that 

the pit has been in operation (Tr. 47, 49). The purpose of 

the CAV inspection was to determine if there were any problems 

at the pit. No penalty assessments are issued as a result of 

a CAV inspection. The pit is operated on a seasonal basis and 

it was not in operation at the time of the CAV inspection (Tr. 

48). As a result of the inspection, non-penalty CAV notices 

were issued {Tr. 49, Ex. R2, R3). The notices dealt mainly with 

deficiencies in screening equipment and shielding {Tr. 51). 

As a result of the fatality, MSHA issued six citations to 

Ouray Countyo 

None of the citations in the instant cases deal with the 

matters that were discussed in the prior CAV report (Tr. 52). 

The County did everything required of them by the CAV notices. 

Further, if the County had been advised of any other deficiencies 

it would have abated any violative conditions (Tr. 53). 

Citation 2355137 deals with operations under a dangerous 

highwall" This highwall was not in existence on May 20 (Tro 53)o 

An illegal highwall is one that exceeds the height of the loader 

bucketQ or about 14 feet (Tro 54u 62). There was such a highwall 

in existence on May 20 but the County was not advised of any 

such deficiency (Tro 54u 79, 80)o 

Citation 2355138 deals with failure to establish standards 

for safe control of a pit highwallc The situation in regard 

to this regulation was the same on June 25 as it was on May 20 

(Tr. 54)o 

Citation 2355139 deals with the failure to provide a suitable 

communication system. There was no such system in existence on 

May 20 (Tro 56)o 

Citation 2376689 deals with an employee operating alone in 

the workplace. On May 20 this was the customary practice at 

the site (Tr. 56). 

1208 
After receiving the citations the County submitted a new 

mining plan to BLM (Tr. 57). 

With the exception of Citation 2376690 (failure to notify 

MSHA), all of the conditions for which the County was cited after 

the fatality, existed on May 20, 1985 {Tr. 80). 

O'Donnell had heard that a BLM official had told Ouray 

County that the highwall had to be sloped on an angle of one 

to three. But that was for reclamation (Tr. 63-65). 

The witness believed the people involved had sufficient expertise to conduct recovery operations but in failing to notify 

it, MSHA was denied the opportunity to make a similar judgment 

(Tr. 65) • 

Ronald Phelps, an MSHA inspector with 20 years of mining 

experience, conducted the CAV inspection at the county pit (Tr. 

82, 83). 

At the time of the inspection he inspected the highwall 

where the fatality subsequently occurred (Tr. 84). When the 

regulation uses the term highwall it does not distinguish between a highwall and a pit wall or pit face (Tr. 85). The highwall at the time of the CAV inspection was sloped to a safe angle 

of repose of one-and-one-half to one. The highwall did not constitute a hazard at that time (Tr. 86). 

During his first visit the inspector discussed the County's 

mining methods with Mr. O'Donnell. At that time the inspector 

advised him that the pit must meet minimum sloping requirements 

{Tro 87v 89)o Mro OiDonnell indicated they followed a safe angle 

of repose of approximately two to one (Tr. 88). During their 

conversation the inspector also indicated that they should be 

cautious about mining the toe of the highwall (Tr. 88). During 

the CAV inspection the highwall was discussed with Pat O'Donnell 

and Ken Williamsu a County Commissioner (Tr. 89) o Areas of the 

pit with vertical highwalls were discussed (Tr. 89u 90) ¢ At the 

base of the highw.all 9 there was considerable slough that would 

prevent a person from being exposed to the hazardous conditions 

(Tr. 9 O) • 

At the time of the CAV inspection the inspector did not think 

there was a hazard because the vertical wall area was blocked off 

from employees (Tr. 91). 

At the time of the CAV inspection the inspector was advised 

that the County was not mining the area at the vertical highwall. 

1209 
In additon, the area under the vertical highwall was blocked 

off so employees could not go into the area (Tr. 91). In areas 

where they planned to mine there was a safe angle of repose 

{Tr. 91) • 

Inspector Phelps' field notes made at the time indicated 

the highwall sloping was discussed [with Pat O'Donnell and Ken 

Williams] (Tr. 94; Ex. PS). 

The witness visited the site approximately 30 days after 

the fatality. Exhibits Pl and P2 depict the highwall. No condition as indicated in the photographs existed at the time of 

the CAV inspection. If he had observed the loader operating 

under the highwall he would have immediately issued a withdrawal order. He would also have caused the highwall to be 

sloped at a safe angle of repose and benches installed (Tr. 95, 

96) • 

Phelps prepared the CAV notices. Their purpose was to 

disclose hazardous conditions and give the operator a time to 

correct them (Tr. 96). Notices are only written on conditions 

as they exist at the time of an inspection. First-aid training 

and first-aid supplies are mentioned in R3 but not R2 (Tr. 98; 

Ex. R2, R3). These were not put in the CAV notices because the 

crew was not on site to see if anyone had a first-aid card; 

further, the inspector could not determine if first-aid supplies 

were kept on the pickup truck. The pickup truck was not on 

the site (Tr. 98). 

The witness inquired about the method of operations, the 

equipment used and the number of employees who normally worked 

at the p He also learned they had a radio on the pickup 

Tr" 98 99)o The inspector spent about two hours going over 

various subparts of 30 CoFoRo with Mro 0°Donnell (Tro 99)o The 

communication system working alone would not have helped Martinez 

since he was working alone. 

The witness agrees with OuDonnell 0 s testimony that a highwall a vertical surface in excess of 14 feet would be unsafeo 

When the inspector visited the site he saw vertical surfaces 

in excess of 14 feet {Tro lOO)o These areas had apparently been 

mined some time in the past (Tro lOl)o 

In rebuttal, witness 0 1 Donnell testified he did not remember 

any discussions with Phelps about the highwallo 

0 1 Donnell acted on the CAV notices he received from MSHA. 

He would have taken action on the highwall if he had received 

such a notice. 

1210 
Discussion 

Respondent generally asserts that the issues in the instant 

cases are identical to the issues involved in Jefferson County 

Road and Bridge Department, 9 FMSHRC 56 (1987) • 

The identity urged by respondent is limited to certain 

threshold issues of jurisdiction and defective filing procedures, 

hereinafter discussed. Respondent's additional arguments address 

estoppel and the substance of the violation of Citation 2376690 

(Tr. 8-14, 113-115). 

The County argues that the Secretary lacks authority to 

enforce the federal Mine Act against respondent for a number of 

reasons. 

Initially, it is asserted that Congress in passing the Act 

did not intend to regulate states or political subdivisions thereof. This is so because neither the statutory definition of 

"operator," or "person" speak to the regulation of state or local 

governments. Cognizant of federalism concerns, Congress explicitly brings state and local governments within the purview 

of the statutory scheme if it intends to regulate their activity. 

For example, Congress so acted in amending the Fair Labor Standards 

Act, 29 u.s.c. § 203(d), (x). See also Garcia v. San Antonio 

Metropolitan Transit Authority, U.S. , 105 S.Ct. 1005 

(1985). 

This issue is a matter of statutory construction and legislative intent. 

The federal Mine Act def an operator as "any owner, 

lesseeu or other person who operates, controls, or supervises a 

coal or other mineooo" (emphasis added) 30 U.S.C. § 8020 In 

the preamble of the Act Congress explicitly stated that it recognized "the existence of unsafe and unhealthful conditions and 

practices in the Nation's ooo mines (emphasis added). Accordinglyy 

the Act was promulgated to meet the "urgent need to provide more 

effective means and measures for improving the working conditions 

and practices in· the Nation's o•• mines in order to prevent death 

and serious bodily harm 000

11 (emphasis added). It is apparent here 

that a mine operated by a county is one of the Nation 1 s mines. 

The Act was designed and Congress declared that "the first priority 

of all in the coal or other mining industry must be the health and 

safety of its most precious resource - the miner", 30 u.s.c. § 801. 

A reading of the legislative history establishes the clear 

intent of Congress. s. Rep. No. 95-181, 95th Cong., shows the congressional views: 

1211 
The Conunittee believes that it is essential 

that there be a conunon regulatory program 

for all operators and equal protection under 

the law for all miners. Thus, a principal 

feature of the bill is the establishment of 

a single mine safety and health law applicable 

to the entire mining industry. 

Further, the Committee notes that there may 

be a need to resolve jurisdictional conflicts, 

but it is the Committee's intention that what 

is considered to be a mine and to be regulated 

under this Act be given the broadest possible 

interpretation, and it is the intent of this 

Conunittee that doubts be resolved in favor of 

inclusion of a facility within the coverage 

of the Act. (Emphasis added) 

S.Rep. No. 95-181, 95th Cong., 1st 'Sess. 

(1977), reprinted in 95th Cong., 2nd Sess. 

r:eglslative History of the Federal Mine Safety 

and Health Act of 1977, 601, 602. 

Sand, gravel and crushed stone operations, whether privately 

operated or operated by a local government unit have been covered 

by the federal mine safety law since 1966 when the Federal Metal 

and Nonmetallic Mine Safety Act (Metal Act) was enacted. Historically there has never been any serious question that sand 

and gravel are minerals and that their extraction is mining, 

Marshall v. Stoudt's Ferry Preparation Co., 602 F.2d 589 (3d Cir., 

1979); Marshall v. Nolichuckey Sand Co. Inc., 606 F~2d 693 (6th 

C •Q 1979}. Sand and gravel operations are classical mining 

operations. The methods and equipment used in sand and gravel 

mining are similarv if not identical to, the methods and equipment 

in the mining of many other minerals. The hazards faced by 

workers engaged in extracting sand, gravel, and crushed stone are 

similar and in many cases they are identical to the hazards faced 

in other mining operations. 

The Act was repealed in 1977 and all mining operations 

were placed under the present statute. HoweverF the safety and 

standards applicable to sand, gravel, and crushed stone 

operations sued under the Metal Act continue in effect under 

the 1977 Act. 

Because sand, gravel, and crushed stone operations are 

"mines", as defined in section 3(h) (1) of the Act, they are subject to the provisions of the Act and the regulations issued thereunder. The fact that a pit is operated by a governmental unit 

J-212 
rather than a private party is immaterial. When a state or 

local government engages in an activity subject to Congressional 

regulation, such as in operating a railway or a mine, the state 

or local government is subject to regulation in the same manner 

as a private citizen or corporation. Parden v. Terminal Ry. of 

Ala. State Docks Dept., 377 U.S. 184, 84 S.Ct. 1207 (1964). 

Respondent further argues that Congress explicitly brings 

state and local governments within the purview of the statutory 

scheme if it intends to regulate their activity citing such 

legislative action in amending the Fair Labor Standards Act, 

29 U.S.C. § 203(d) (1) and relying on Garcia Ve San Antonio Metropolitan Transit Authority, supra. 

I agree that Congress certainly may legislate by particularly naming those entities that are subject to the legislation. 

In fact, Congress did so in extending minimum-wage coverage over 

a period of time while gradually expanding the coverage. 

When FLSA was enacted in 1938, its wage and overtime provisions did not apply to local mass-transit employees, the subject of the Garcia case, §§ 3{d), 13(a) (9), 52 Stat. 1060, 1067. 

In 1961 Congress extended minimum-wage coverage to employees of 

any mass-transit carrier whose annual gross revenue was not less 

than one million. Fair Labor Standards Amendments of 1961, §§ 2 

(c), 9, 75 Stat. 65, 71. In 1966 Congress extended FLSA coverage 

to state and local government employees for the first time. 

Fair Labor Standards Amendments of 1966, §§ 102(a) and (b), 

•80 Stat. 831. In 1974 Congress provided for the progressive 

repeal of the surviving overtime exemption for mass transit employeesa Fair Labor Standards Amendments of 1974, § 2l(b), 

88 Stato 680 At the same time Congress simultaneously brought 

the States and their subdivisions further within the ambit of 

the FLSA extending FLSA coverage to virtually all state and 

local government employeesff §§ 6(a) (1) and (6) P 88 Stat. 58u 60u 

29 U.S.C. §§ 203(d) and (x). 

As noted aboveu Congress gradually expanded FLSA coverage and 

finally ically included ·states and local governments. Congress could have specifically named the states and counties in the 

Mine Act but is not obliged to legislate in that fashion. In 

addition, gradual extension of the FLSA coverage indicates a 

piece-meal approach to coverage under that Act. A similar legislative approach did not occur in the enactment of the federal Mine 

Act. The broad statutory definitions, supported by the legislative 

history, establish that Congress intended to include all mines and 

miners within the ambit of the federal Mine Act. 

1213 
Respondent further contends that its gravel pits are not 

subject to the Act's coverage because its products neither enter 

commerce nor affect it. 

The evidence is uncontroverted that the gravel from the 

mines is not sold. It is, in fact, used exclusively to surface 

the county roads. In addition, Ouray County's roads do not 

extend beyond the boundaries of the State of Colorado. 

The Act encompasses within its coverage the following: 

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 

shall be subject to the provisions of this 

chapter. 30 U.S.C.A. § 803. 

Further, commerce is defined as follows: 

(b) "commerce" means trade, traffic, 

commerce, transportation, or communication among the several States, or between 

a place in a State and any place outside 

thereof, or within the District of ·Columbia or a possession of the United States, 

or between points in the same State but 

through a point outside thereof. 

30 u.s.c.A. § so2(b). 

The issue to be addressed is whether the County's gravel 

operations "affect commerce. 11 As a threshold matter the term 

"affecting commerce" has been given a broad judicial interpretationo Garcia Vo San Antonio Metropolitan Transit Authority, 

supra1 Marshall Vo Kraynack, 604 F92d 231 (3d Cir. 1979); Godwin 

Vo OSHRC, 540 F.2d 1013 (1976) (9th Cir); United States v. Dye 

Construction Co., 510 F.2d 78 (1975) (10th Cir.); Brennan v. 

OSHRCu 492 F.2d 1027 (2d Cir. 1974); Wickard Vo Filburn, 317 

U.So 111, 63 SoCL 82. 

In this case the testimony of witness O'Donnell is uncontroverted that the gravel is used solely on county roads. The 

extracted materials are not sold, bartered or traded. However, 

it is apparent that if the County relinquished its lease it 

would be required to purchase the material from a commercial 

source. The lease and removal of the gravel accordingly "affects 

commerce" as that term is contemplated by the above-cited case 

law. 

1214 
Morton v. Bloom, 373 F. Supp. 797 {D.C. Pa. 1973), relied 

on by respondent, presents a unique factual situation of a mine 

operated by one mano In that circumstance, the Court ruled that 

the local nature of the mine did not affect commerce. The case 

has not been followed as precedent for later decisions. In short, 

it appears to have a very_ narrow application not applicable here. 

The Commission has yet to consider the jurisdictional issues 

raised here but decisions by judges of the Commission have held 

that a governmental gravel operation is subject to the federal 

Act. New York State Dept. of Transportation, 2 FMSHRC 1749 {1980), 

Laurenson, J.; Island County Highway Department, 2 FMSHRC 3227 

(1980), Morris, J.; Salt Lake County Road Dept., 2 FMSHRC 3409 

(1980), Vail, J. 

Respondent further contends that it was not properly sued. 

Specifically it relies on Section 30-11-105, C.R.S. 3/ Colorado 

appellate.courts have construed this statute and held that an 

action brought against a county under a designation that does not 

comply with the statute is a nullity and no valid judgment can be 

entered, Calahan v. county of Jefferson, 163 Colo. 212, 429 P.2d 

301 {1967) • 

I reject respondent 1 s argument. 

This is not a proceedings under the Colorado statutes but 

it is an adjudicatory proceedings provided for in 30 u.s.c. § 

113{a) and the applicable Rules of Procedures, 29 C.F.R. § 2700 

et seq. .To like effect on this issue see the case decided by 

the Interior Board of Mine Operations in Harlan No. 4 Coal Company, 

4 IBMA 241 {1975}. 

An additional issue centers on whether the Secretary can be 

estopped in the factual scenario involved here. Respondent asserts 

estoppel arises because MSHA conducted a CAV inspection before the 

Martinez fatality occurred. Briefly stated, the County complied 

lf The c statute provides~ 

30-11-1050 Ti of suits by or against county. 

In all suits or proceedings by or against 

a county, the name in which the county shall 

sue or be sued shall be, "The board of county 

commissioners of the county of •••• ; but this 

provision shall not prevent county officers, 

when authorized by law, from suing in their 

name of office for the benfit of the county. 

1215 
and corrected all of the deficiencies raised by the CAV inspection. Therefore, if the CAV inspector· had mentioned the 

defective highwall the County would have corrected the defect 

and thereby avoided the subsequent fatality. 

At the outset I agree that equitable estoppel is a rule of 

justice which, in its proper field, prevails over all other rules. 

City of Chetopa v. Board of County Com'rs, 156 Kan 290, 133 P.2d 

174, 177 {1943). Generally four elements must be present to 

establish the defense of estoppel. These are (1) the party to be 

estopped must know the facts; (2) he must intend that his conduct 

shall be acted on or must so act that the party asserting the 

estoppel has a right to believe it is so intended; {3) the latter 

must be ignorant of the true facts; and (4) he must rely on the 

former's conduct to his injury. United States v. Georgia Pacific 

Company, 421 F.2d 92, 96 {1970), (9th Cir.}. 

In this case it is clear that the CAV inspector did not learn 

that mining was ever taking place under the highwall. The authority for a CAV inspection arises from an MSHA memorandum. The thrust 

of the memorandum mandates such inspections may only be made when 

the mine is not operating. 

I credit the inspector's testimony and expertise in this 

respect. If he had observed a miner working under the highwall 

he would have issued an immediate withdrawal order. Further, the 

inspector's notes reflect that he discussed the sloping of the 

highwall with the County officials at the CAV inspection. For 

these reasons it is clear the party to be estopped had not been 

apprised of the operative facts. In sum, he had not been advised 

that the County was mining at the highwall (Ex. PS).' 

A factual setting might well arise that would invoke the 

doctrine of equitable estoppelo Howeveru the doctrine should 

only be applied in limited circumstances, otherwise, it would deprive miners of the protection of the Mine Safety Act because of 

a public official's erroneous act. Maxwei1 Company v. NLRB, 

414 Fo2d 477 (1969) 0 Udall Vo Oelschlaeger, 389 F.2d 974 (196B)o 

For a general discussion of the doctrine of collateral estoppel 

also see the Commission decision of King Knob Coal Company, Inc., 

3 FMSHRC 1417 (198l)o 

Respondentas final argument addresses the substance of the 

single contested citation for the violation of § 50.10. 

The uncontroverted evidence establishes that Mr. Martinez 

was killed at the quarry and his body discovered at 2:30 p.m. on 

June 24, 19850 MSHA was not notified until 0945 hours the following 

1216 
morning. The facts are that the County did not "immediately" 

contact MSHA. Accordingly, the citation should be affirmed. 

Based on the record and the stipulation of the parties I 

conclude that the Commission has jurisdiction to decide this 

case. Further, all citations and penalties herein should be 

affirmed. 

Based on the stipulation, the facts and the foregoing 

conclusions of law I enter the following: 

ORDER 

The following citations and proposed penalties are affirmed: 

Citation 

2376545 

2376546 

2376547 

2376548 

Citation 

2355137 

2355138 

2355139 

2376688 

2376689 

2376690 

Citation 

2633933 

2633934 

WEST 86-8-M 

WEST 86-9-M 

WEST 86-66-M 

1217 

Penalty 

$20 

20 

20 

20 

Penalty 

$200 

500 

50 

200 

100 

50 

Penalty 

$54 

20 

Law Judge 
Distribution: 

James H. Barkley, Esq., Office of the Solicitor, U.S. Department of Labor, 1585 Federal Building, 1961 Stout Street, Denver, 

CO 80294 (Certified Mail) 

Richard P. Tisdel, Esq., Tisdel, Mathis, Reed, Hockersmith & 

Bennett, P.O. Box 646, Ouray, CO 81427 (Certified Mail) 

/ot 

1218 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 8, 1987 

JIM WALTER RESOURCES, INC., 

Contestant 

v • 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

. 

, 

CONTEST PROCEEDING 

Docket No. SE 86-29-R 

Order No. 2605648; 12/2/85 

No. 3 Mine 

ORDER OF DISMISSAL 

Before: Judge Merlin 

In light of the Commission's decision in Jim Walter 

Resources, Inc. v. Secretary of Labor, 9 FMSHRC 903 (1987), the 

Solicitor advises MSHA is vacating Order No. 2605648 which is the 

subject of the above-captioned case. In addition, the operator 

states that it withdraws its request for hearing. 

Accordingly, this case is DISMISSED. 

------~-P~in Chief Administrative Law Judge 

Distribution: 

R. Stanley Morrow, Esq., Jim Walter Resources 9 Inc., P. 0. Box 

C-79" Birmingham~ Al 35283 (Certified Mail) 

Harold D. Rice, Esq., Jim Walter Resources 9 Inc., P. 0. Box C-79, 

Birmingham, AL 35283 (Certified Mail) 

H. Gerald Reynolds, Esq., Jim Walter Corporation, 1500 North Dale 

Mabry Highway, Tampa. FL 33607 (Certified Mail) 

George D. Palmer, Esq., Office of the Solicitor 9 U. S. Department 

of Labor, 2015 Second Avenue North, Suite 201, Birmingham 9 AL 

35203 (Certified Mail) 

Mr. Jim Casner, President, UMWA, Local 2245, District 20, 83 

Manor Estates 9 Tuscaloosa 9 AL 35405 (Certified Mail) 

Mr. Lawrence Beeman. Director, Office of Assessments, U. s. 

Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

(Certified Mail) 

I g l 1219 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

July 8, 1987 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

.v • 

PERRY DRILLING COMPANY, 

Respondent 

CIVI·L PENALTY PROCEEDING 

Docket No. PENN 86-273 

A. C. No. 36-06123-03502 BPO 

Smith Mine 

ORDER OF DISMISSAL 

Before: Judge Merlin 

The Commission has been informed by the operator, and the 

Secretary confirms, that the penalty assessed in this case has 

been paid. Accordingly, this case is DISMISSED. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Therese I, Salus, Esq., Office of the Solicitor, U.S. Department 

of Labor, Room 14480-Gateway Building, 3535 Market Street~ 

Philadelphia. PA 19104 (Certified Mail) 

Ann Rosenthal~ Esq.~ Office of the Solicitor~ U. S. Department of 

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

Mai 1 ) 

Mr, Richard C, Perry~ Perry Drilling Company. Box 26, Frostburg, 

PA 15740 (Certified Mail) 

I g l 

1220 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 9 1987 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

DOVER ELEVATOR COMPANY, 

Respondent 

Docket No. WEVA 86-391 

A.C. No. 46-06448-03501 GF7 

Rock Lick Preparation Plant 

DECISION APPROVING SETTLEMENT 

Before: ,Judge Koutras 

Statement of the Case 

This proceeding concerns a civil penalty proposal filed 

by the petitioner against the respondent pursuant to section 

llO(a) of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 820(a), seeking a civil penalty assessment of $58 

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

§ 77.400(a), as stated in a section 104(a) Citation No. 2584200, 

issued to the respondent on April 21, 1986. Petitioner has 

filed a motion pursuant to Conunission Rule 30, 29 C.F.R. 

§ 2700.30v seeking approval of a proposed settlement of the 

case. The respondent agreed to pay the full amount of the 

proposed civil penalty assessment. 

scussion 

The proposed settlement is for 100 percent of the initial 

proposed civil penalty assessment for the violation in question. 

In support of the proposed settlement disposition of this case, 

the petitioner has submitted information pertaining to the six 

statutory civil penalty er ia found in section llO(i) of the 

Act. In addition, the petitioner has submitted a full discussion 

and disclosure as to the facts and circumstances surrounding the 

issuance of the violation in question. 

1221 
Conclusion 

After careful review and consideration of the pleadings, 

arguments, and submissions in support of the motion to approve 

the proposed settlement of this case, I conclude and find that 

the proposed settlement disposition is reasonable and in the 

public interest. Accordingly, pursuant to 29 C.F.R. § 2700.30, 

the motion IS GRANTED, and the settlement IS APPROVED. 

ORDER 

Respondent IS ORDERED to pay a civil penalty in the amount 

of $58 in satisfaction of the violation in question within 

thirty (30) days of the date of this decision and order, and 

upon receipt of payment by the petitioner, this proceeding is 

dismissed. 

~K!~ Administrative ~aw Judge 

Distribution: 

Carol B. Feinberg, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Room 1237A, Arlington, VA 22203 

(Certified Mail) 

Thomas D. Miller, District Manager, Dover Elevator Company, 

1411 Virginia Avenue, S.E., Charleston, WV 25304 (Certified Mail) 

John Hoblitzell, Esq., Kay, Casto & Chaney, P.O. Box 2031, 

Charleston, WV 25327 (Certified Mail) 

L. W. Miller, Regional Safety Coordinator; c/o Dover Elevator, 

P.O. Box 145494, Cincinnati, OH 45250-5494 (Certified Mail) 

/fb 

1222 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 9 1987 

CONSOLIDATION COAL COMPANY, CONTEST PROCEEDINGS 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Respondent 

1223 

Docket No. WEVA 87-222-R 

Citation No. 2699139; 6/5/87 

Arkwright No. 1 Mine 

Docket No. WEVA 87-223-R 

Citation No. 2708499; 6/5/87 

Humphrey No. 7 Mine 

Docket No. WEVA 87-224-R 

Citation No. 2902641; 6/5/87 

Osage No. 3 Mine 

Docket No. WEVA 87-225-R 

Citation No. 2707824; 6/5/87 

Pursglove No. 15 Mine 

Docket No. WEVA 87-226-R 

Citation No. 2902614; 6/5/87 

Blacksville No. 1 Mine 

Docket No. WEVA 87-227-R 

Citation No. 2902888; 6/5/87 

Blacksville No. 2 Mine 

Docket No. WEVA 87-228-R 

Citation No. 2699155; 6/5/87 

Loveridge No. 22 Mine 

Docket No. WEVA 87-229-R 

Citation No. 2705133; 6/5/87 

Robinson Run No. 95 Mine 
Appearances: 

Before: 

DECISION 

Michael R. Peelish, Esq., Consolidation Coal Co., 

Pittsburgh, Pennsylvania, for Contestant; 

James H. Swain, Esq., Office of the Solicitor, 

U.S. Department of Labpr, Philadelphia, Pennsylvania, for Respondent. 

Judge Maurer 

These cases are before me upon a notice of contest and 

motion to expedite filed by the Consolidation Coal Company 

(Consol) under section lOS(d) of the Federal Mine Safety and 

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

Commission Rule 52, 29 C.F.R. § 2700:S2~hallenging the validity of eight§ 104(a) citations. One citation, as listed 

above, was issued to each of the eight Consol mines herein involved. A hearing was held in Morgantown, West Virginia, on 

June 16, 1987. 

The issue in this case is whether a violation of the 

mandatory standard at 30 C.F.R. § 75.1101-23(a) existed as 

alleged in the virtually identical eight citations. The model 

citation reads as follows: 

The program being used for instruction of all miners 

in the location and use of fire fighting equipment, 

location of escapeways, exits, and routes of travel 

to the surf ace and proper evacuation procedures to 

be followed in the event of an emergency has not been 

approved by the District Manager. 

The cited standard at 30 C.F.R. § 75.1101-23(a) provides 

as follows: 

Each operator of an underground coal mine shall 

adopt a program for the instruction of all miners 

in the location and use of fire fighting equipment, 

location of escapeways, exits, and routes of travel 

to the surface, and proper evacuation procedures to 

be followed in the event of an emergency. Such 

program shall be submitted for approval to the 

District Manager of the Coal Mine Health and Safety 

Di in which the mine is located no later than 

June 30, 1974, 

(1) The approved program of instruction shall 

include a specific fire fighting and evacuation plan 

designed to acquaint miners on all shifts with procedures for: 

(i) Evacuation of all miners not required for 

fire fighting activities; 

1224 
(ii} Rapid assembly and transportation of 

necessary men, fire suppression equipment, and 

rescue apparatus to the scene of the fire; and 

(iii) Operation of the fire suppression 

equipment available in the mine. 

(2) The approved program of instruction shall 

be given to all miners annually, and to newly employed miners within six months after the date of 

employment. 

FINDINGS-OF FACT 

1. Consol owns and operates the eight mines listed in 

the caption of this decision. 

2. On or before June 30, 1974, Consol submitted a program 

for the instruction of miners in the location and use of fire 

fighting equipment, location of escapeways, exits, and routes 

of travel to the surface and proper evacuation procedures to 

be followed in the event of an emergency to the appropriate 

MSHA District Manager for each of the eight mines herein involved. These programs were approved by the appropriate District Manager between the first of May and the end of July 

1974. . 

3. At the time of approval, it is generally agreed that 

each of these eight programs contained the current information 

with regard to the required emergency procedures including 

specific data concerning escape routes and locations of fire 

fighting equipment, as well as an evacuation and fire fighting 

plan. 

4" By memorandum dated May 6, 1987, directed to all 

underground coal mine operators, Ronald Keaton, the District 

Manager for the Third District of MSHA, informed Consol of 

the following: 

Our records indicate that your approved Program 

of Instruction, Fire F~ghting and Evacuation Plan, 

is outdated and needs to be undated. Please provide an updated program within seven days from 

receipt of this letter. Please include an updated 

map showing escapeways, exits, and routes of travel 

to the surface. In the future, this plan will be 

reviewed every s months. If you wish to include 

an updated escapeway system and any revisions to 

your program with your ventilation plan, please 

indicate so in your program submittal. Failure to 

respond could result in a violation of 75.1101-23. 

5. On May 26, 1987, Consol responded to Mr. Keaton's 

memorandum of the 6th. They furnished the requested information, but only as a "courtesy" and for "informational 

1225 
purposes only," specifically stating that "[I]t is not being 

submitted for approval." 

6. On May 27, 1987, Mr. Keaton informed Consol by letter 

that failure to submit the required update data for amendment 

and approval purposes could result in withdrawal of the approval for the programs and plans then currently on file with 

MSHA. He further informed Consol that failure to have an 

approved plan could result in a violation of 30 C.F.R 

§ 75.1101-23(a). 

7. Subsequently, Mr. Keaton ordered a review of the 

section 75.1101-23(a) programs for the eight mines herein involved. In general terms, he found them to be antiquated 

plans. 

8. More specifically, for each of the eight mines enumerated above: 

(a) The deficiencies noted in the approved § 75.1101-23 

(a) programs and plans for the Robinson Run No. 95 mine included: 

(1) Areas listed as active working sections which are currently abandoned and/or sealed. 

(2) All current active mining sections are 

not contained in the plan. 

(3) Designated escapeways have changed, 

several of those noted in the plan are inaccessible and those in use are not listed in the olan. 

(4) The location of electrical equipment is 

different and all current locations are not listed. 

(5) The location of firefighting equipment 

is different and all current locations are not 

listed. 

(b) The deficiencies noted in the approved § 75.1101-

23 (a) programs and plans for the Arkwright No. 1 mine included: 

(1) Outdated locations for 

equipment are listed. fightinq 

(2) Incorrect data regarding mine rescue 

teams is listed. 

(3) 

longer 

listed. 

Escape shafts are listed which no 

st and current escapeways are not 

1226 
(4) Working sections are listed which no 

longer exist. 

(5) Incorrect names and telephone numbers 

for mine officials to be contacted are listed. 

(6) Longwall mining is done at this mine 

and the plan contains no firefighting procedures 

for longwall mining. 

(c) The deficiencies noted in the approved § 75.1101-

23 (a) programs and plans for the Loveridge No. 22 mine included: 

(1) Several of the listed "fire areas" are 

in abandoned areas of the mine and/or sections 

which are no longer active. 

(2) Several designated escapeways are no 

longer used or usable. 

(3) Firefighting equipment locations are 

outdated. 

(d) The deficiencies noted in the approved § 75.1101-

23(a) programs and plans for the Blacksville No. 1 mine included: 

(1) The noted designation color key for intake escapeway on mine maps has changed. 

(2) Escapeways are designated in the evacuation plan which no longer exist. 

(3) Locations are noted for firefighting 

equipment which have changed. 

(4) Locations are noted for telephones 

which have changed. 

(5) Locations are noted for sealing (emergency) materials which have changed. 

(6) Several working sections listed no 

longer exist. 

(7) Longwall section firefighting programs 

are omitted despite the existence of longwall 

mining. 

(8) Ventilation fans are listed which may 

no longer exist. 

1227 
(e) The deficiencies noted in the approved § 75.1101-

23 (a) programs and plans for the Blacksville No. 2 mine included: 

(l} Areas designated as escapeways which 

are no longer used. 

(2) Locations of firefighting equipment 

which have changed. 

(3) Locations of sealing (emergency) 

materials which have changed. 

(4) Ventilation fans are listed which no 

longer exist. 

(5) Most working sections no longer exist 

as listed in the evacuation plan. 

(f) The deficiencies noted in the approved § 75.1101-

23 (a) programs and plans for the Osage No. 3 mine included: 

(1) Working sections are listed which no 

longer exist. 

(2) Ventilation fans are listed which no 

longer exist. 

(3) Escape shafts are listed which no 

longer exist. 

(4) The locations for fire outlets include 

areas which are no longer present and exclude 

areas which currently exist. 

(5) The two currently active sections for 

the mine are not included in the plans. 

(6) The names and telephone numbers of personnel to be contacted in emergencies are not 

accurate. 

(7) The mine contains longwall mining areas 

but no longwall section fire fighting procedures 

are listed. 

(g) The deficiencies noted in the approved § 75.1101-

23 (a) programs and plans for the Pursglove No. 15 mine included: 

(1) Working sections are listed which no 

longer exist. 

1228 
(2) Ventilation fans are listed which no 

longer exist. 

(3) Escape shafts are listed which no 

longer exist. 

(4) Locations for fire outlets are not 

accurate in that some listed outlets no longer 

exist and other existing outlets are not sted. 

(5) The current active sections of the mine 

are not listed. 

(6} There are no longwall section firefighting procedures listed. 

(7) The names and telephone numbers of personnel to be contacted in emergencies are not 

accurate. 

(h} The deficiencies noted in the approved § 75.1101-

23 (a) programs and plans for the Humphrey No. 7 mine included: 

(l} Outdated locations were listed for firefighting equipment. 

(2) Incorrect mine rescue team information 

was noted. 

(3} Outdated listings of ventilation fans. 

(4) Escape facilities and escape shafts are 

sted which no longer exist. 

(5) Working sections are listed which no 

longer exist. 

(6) The names and telephone numbers of personnel to be contacted in emergencies are not 

accurate. 

9. None of the plans contained provisions detailing the 

location and use of self-contained self-rescuers, which are 

now an indispensable piece of equipment used in emergency 

evacuations. 

10. Several of the programs included references to pracces and procedures which have since been modified and/or 

made illegal by subsequent changes in MSHA regulations, such 

as the 15 minute fan shutdown removal from area provisions, 

the use of gas masks, and equipment movement provisions. 

1229 
11. On June 4, 1987, Mr. Keaton notified Consol that 

the foregoing section 75.1101-23(a) programs were disapproved 

because they were out of date and inaccurate in the respects 

noted above and because the operator had not submitted relevant updated programs for approval. 

12. On June 12, 1987, each of the above eight mines was 

issued a section 104(a) citation for a violation of 30 C.F.R. 

§ 75.1101-23(a). 

13. In May of 1986, Mr. Keaton had written a similar 

memorandum to that in evidence as Exhibit No. JX-1 and dated 

May 6, 1987 (see Finding of Fact No. 4). There was a nonresponse to that earlier memo, but no follow-up enforcement 

was carried out. No citations were issued at that time or 

subsequently until June 12, 1987. 

14. Consol conducts training for miners at each of 

these eight mines on a regular basis, giving instruction in 

fire fighting and evacuation procedures utilizing current information concerning escapeways, exits, routes of travel to 

the surface, etc. In this regard, I specifically find that 

Consol utilizes the old 1974 plans and programs for this purpose only to the limited extent that the more general portions 

of those documents are still applicable in 1987. 

15. Consol also conducts fire drills and mock mine 

evacuations on a regular basis at these eight mines. 

16. However, none of the evacuation and fire fighting 

plans actually being used today, in 1987, by Consol for new 

miner training or newly employed miner training or f 

drills or evacuation drills have been approved by the District Manager under 30 C.F.R. § 75.1101-23(a). 

17. From MSHA's standpoint, the lack of up-to-date 

approved evacuation and fire fighting programs could conceivably in the event that that information was needed by 

MSHA personnel because of a mine fire or other evacuation 

emergency, hinder mine rescue or other emergency operations 

to the extent that those MSHA personnel were assisting with 

the emergency and needed current data. 

18. Insofar as specific mine information is or was 

included in those plans and programs of 1974, which were 

on file with MSHA, I find that as generally acknowledged 

most of it is inapplicable to the current situation at the 

mines and would be of little or no use to MSHA in the event 

of an emergency. 

19. These original section 75.1101-23(a) plans, which 

were submitted and approved by MSHA in May-July 1974 remained 

1230 
in effect as the approved program until June of 1987, even 

though the specific details of these plans were outdated for 

many years. Mr. Keaton explained that they had their attention focused in other areas. It was just a matter of 

priorities. 

DISCUSSION, FURTHER FINDINGS OF FACT, AND 

CONCLUSIONS OF LAW 

On it's face, the cited'regulation, 30 C.F.R. § 75.1101-

23(a), contains two requirements. The first requires the 

operator to adopt a program for the instruction of miners in 

the location and use of fire fighting equipment, location of 

escapeways, exits, and routes of travel to the surface and 

proper evacuation procedures to be followed in emergencies. 

The regulation also clearly requires that such a program, 

·once adopted, be submitted for approval to the District Manager of the Coal Mine Health and Safety District in which the 

mine is located no later than June 30, 1974. Consol complied 

with this requirement in a timely fashion back in 1974. I 

note here that there is no stated regulatory requirement for 

this program ever to be submitted for approval again. 

The second requirement contained in this subsection 

that contained in (a} (2) wherein it requires that the approved 

program of instruction be given to all miners annually, and 

to newly employed miners within six months after they are employed. This plainly has not been done by Consol for many 

years, at least not in the particular mine specific areas of 

these programs for the simple reason that the specifics have 

changed many times over in the intervening thirteen years. 

It would be ridiculous for example to instruct a miner to go 

to a long-closed escape facility in the event of an emergency 

just because that was part of the approved plan (circa 1974). 

MSHA 1 s position in this case is that their interpretation of the regulatory requirements should prevail albeit 

that those "requirements" are admittedly not directly stated 

in so many wordso That interpretation is, at least in the 

Third District of MSHA, and at least since May 6, 1987, that 

these plans and programs approved back in 1974 need to be 

reviewed and updated every six months, in order to retain 

their approved status. This has a lot of common sense 

appeal since there obviously are significant changes going 

on in an active, producing coal mine that would significantly 

affect fire-fighting and evacuation plans and procedures, at 

least insofar as specific particulars are concerned. However, 

one has to first wonder why MSHA doesn't require this review 

and updating by regulation rather than by District Manager 

memorandum, and secondly, why it took them thirteen years to 

get around to it. 

1231 
tt is a matter of hornbook law that courts must accord 

great deference to an agency's construction of regulations 

which it has drafted and continues to administer. See 

generally, Udall v. Tallman, 380 U.S. 1 (1965). To uphold 

the interpretation, a court need not find the agency's interpretation to be the only or the most reasonable one. City 

of Aurora v. Hunt, 749 F.2d 1457, 1462 (10th Cir. 1984-)-.-"A 

regulation must be interpreted so as to harmonize with and 

further and not conflict with the objective of the statute 

it implements." Emery Mining Corp. v. Secretary of Labor 

(MSHA), 744 F.2d 1411, 1414 (10th Cir. 1984); (quoting, 

Trustees of Indiana University v. United States, 223 Ct. Cl. 

88, 618 F.2d 736, 739 (1980)). In Emery, the issue before 

the Court was the proper interpretation of the words "annual 

refresher training" found in 30 C.F.R. § 48.8. While the 

Court found that it was possible to construe the words to 

permit training given up to 23 months apart on a calendar 

year basis, the Court emphatically rejected such construction 

as undermining the Act, concluding that it is "at odds" with 

the language and objective of the statute [to train each 12 

months] , "even if arguably consistent with the language of 

the regulation." 

However, contrary to MSHA's "interpretation," with regard to the first requirement of§ 75.1101-23(a); that pertaining to the submission of programs and plans for the approval of the District Manager, on or before June 30, 1974, 

I specifically find that this is clearly a one-time requirement. It is not subject to any other interpretation because 

the wording is quite clear a.nd incapable of being "interpreted" 

to mean something else. Further, the policy memorandum issued 

by the District Manager, which is in evidence as Exhibit JX-1 

is not enforceable and its contents conflict with the plain 

meaning of§ 75.1101-23(a). There is no language in this 

regulation that would inform an interested party that periodic 

reviews at six-month intervals are required. If that is what 

was intended, the drafter could very easily have included a 

comma and a follow-on phrase after "June :30, 1974" to the 

effect" ... June 30, 1974, and thereafter, at intervals of at 

least every s months." But he didn't. 

The Secretary is aware of similar regulatory language 

since two other regulations requiring the submission, review, 

and subsequent approval or disapproval of plans do include 

such language. The regulation at 30 C.F.R. § 75.200 provides 

that "[A] roof control plan and revisions thereof suitable to 

the roof conditions and mining system of each coal mine and 

approved by the Secretary shall be adopted and set out in 

printed form on or before May 29, 1970. . .• Such plan shall 

be reviewed periodicqlly, at least every 6 months by the Secretary, taking into consideration any falls of roof or ribs 

1232 
or inadequacy of support of roof or ribs. . " And, in 30 

C.F.R. § 75.316, it is provided that "[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. . .• 

Such plan shall be reviewed by the operator and the Secretary 

at least every 6 months." 

This type of language establishing automatic review of 

approved plans is conspicuously missing in 30 C.F.R. § 75.1101-

23, and I find that Mr. Keaton and his memorandum of May 6, 

1987., cannot now legally and belatedly supply the missing 

words. 

That said, it is still incumbent upon Consol to comply 

with all of § 75.1101-23(a), including subsection (a) (2), 

which----st'ates that the approved program of instruction be 

given to the miners in their employ. Therein lies the problem for Consol and that is the exact violation cited in the 

eight virtually identical citations. As I found in Finding 

of Fact No. 16, none of the eight mines involved herein are 

actually using the ~pproved program of instruction that was 

submitted and approved back in 1974. Not that they should 

be under the circumstances, but the fact is, they are not. 

I accept as credible evidence the contestant's proffered 

testimony that the operator is still using the more general 

portions of those plans, but the fact remains that large 

portions, the majority of the plans, are simply out of dnte 

and unusable for emergency training. Thus, the paradox~the 

operator need not by the stated terms of the cited regulation 

do anything to update or revise the once-approved program, 

however; since they must train their miners in accordance with 

§ 7 5. 1101-23 (a) ( 2) using an approved program, there is a .de 

facto requirement to have a current, approved program. Neither 

a current, unapproved program or an approved, outdated program 

will suffice as a practical matter. Therefore, it follows 

that "something" has to be submitted to MSHA in order to make 

the actual program of instruction also the approved program 

of instruction, even though the regulation per se is silent 

on the subject. 

At the hearing, and in their respective briefs, the parties argue the current status of the 1974 plans. The Secretary urges that those ans, once admittedly approved long 

ago are now disapproved by fiat of the District Manager. 

Consol, on the other hand, argues that the District Manager's 

actions were arbitrary and capricious and without the force 

and effect of law. After much reflecting I don't think that 

issue is particularly relevant to the alleged violation herein because regardless of whether or not Consol did or didn't 

1233 
have an "approved" program filed with MSHA at the time the 

citations were issued, the fact is they were not actually 

using it to instruct their miners as required by 30 C.F.R. 

§ 75.1101-23(a) (2). The fact that Consol might very well 

have been using an adequate "unapproved" program or a "selfapproved program" in some or all of their mines does not 

satisfy the regulatory requirement of subsection (a) (2):-

Therefore, I find a violation of 30 C.F.R. § 75.1101-23(a) (2), 

as alleged, in each of the eight citations at bar. 

A violation is properly designated significant and substantial "if, based on the particular facts surrounding that 

violation, there exists a reasonable likelihood that the 

hazard contributed to will result in an injury or illness 

of a reasonably serious nature." National Gypsum, 3 FMSHRC 

at 825. In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), 

the Commission explained: 

In order to establish that a violation of a mandatory safety standard is significant and substantial under National Gypsum the Secretary ••. 

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 re~sonable 

likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood 

that the injury in question will be of a reasonably serious nature. 

The Commission has explained further that the third element 

of the Mathies formula "requires that the Secretary establish 

a reasonable 1 lihood 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). (Emphasis deleted). They 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. 6 FMSHRC at 1836. 

In order to establish the significant and substantial 

nature of the violation, the Secretary need not prove that 

the hazard contributed to actually will result in an injury 

causing event. The Commission has consistently held that 

proof that the injury-causing event is reasonably likely to 

occur is what is required. See, e.g., U.S. Steel Mining Co., 

7 FMSHRC at 1125; U.S. Steel~ningCo., 7 FMSHRC 327, 329 

(March 1985). 

The violation I have already found. The discrete safety 

hazard here is that miners could be inadequately trained if 

1234 
the program of instruction under which they are actually 

trained in such important areas as fire fighting and evacuation procedures is inadequate. I do not make any finding 

that the program they actually use is inadequate, only that 

it is unapproved and might be inadequate. In this regard, I 

note that MSHA has not passed on the adequacy of the training 

program they actually use, primarily because Consol has not 

submitted it for approval, but has recently "disapproved" the 

1974 program which they haven't us~d for years. anyway. 

It is axiomatic that an inadequate, incomplete or deficient program of instruction covering these important subjects could reasonably lead to injury and/or loss of life in 

the event that an emergency should occur requiring immediate 

action. Again, I do not know if the programs Consol is 

actually using are inadequate, incomplete or deficient, but 

I do know they are unapproved, and therefore could or might 

be all three~ Also, as I set out in Findings of Fact Nos. 17 

and 18, since MSHA's official file copies of the operator's 

fire fighting and evacuation plans and programs are out-ofdate and generally inapplicable to the current situation at 

the mine, any assistance that MSHA personnel might provide 

in the mine rescue and/or fire fighting operations could 

conceivably be delayed while they sought current information 

to act on. 

Accordingly, I find the instant citations to be properly 

designated "significant and substantial." 

In light of the foregoing, it is ORDERED that Citation 

Nos. 2699139, 2708499, 2902641, 2707824, 2902614, 2902888, 

2699155, and 2705133 ARE AFFIRMED and that the operator's 

notices of contest of same be DISMISSED. 

Admin~ttative 

Rbtllfa~ Law Judge 

Distribution: 

Michael R. Peelish, Esq., Consolidation Coal Company, 1800 

Washington Rd., Pittsburgh, PA 15241 (Certified Mail) 

James H. Swain, Esq., Office of the Solicitor, U. S. Department of Labor, 3535 Market St., Philadelph , PA 19104 

(Certified Mail) 

1235 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 1O1987 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ENERGY SUPPLY, INCORPORATED/ 

DONRAY INDUSTRIES, 

INCORPORATED, 

Respondent 

UNITED MINE WORKERS OF 

AMERICA ON BEHALF OF 

JEFFREY STENNETT, 

Complainant 

v. 

ENERGY SUPPLY, INCORPORATED/ 

DONRAY INDUSTRIES, 

INCORPORATED, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 86-291 

A. C. No. 36-04007-03512 

Mack Mine 

COMPENSATION,PROCEEDING 

Docket No. PENN 86-228-C 

Mack Mine 

DECISION 

Appearances~ Susan Mo Jordan, Esq. 9 Office of the Solicitor, 

u. s. Department of Labor, Philadelphia, 

Pennsylvania, for the Secretary~ 

Vasilis Co Katsafanas, Esq., Pittsburgh, 

Pennsylvania, for Respondent. 

Before: Judge Weisberger 

STATEMENT OF THE CASE 

The above Civil Penalty Proceeding is before me based upon a 

Petition for Assessment of Civil Penalty filed by the Secretary 

(Petitioner) on November 5, 1986, alleging a violation by Energy 

Supply, Incorporated (Respondent) of 30 C.F.R. § 77.404(a). An 

Answer was filed by the Respondent on January 15, 1987. On 

February 6, 1987, I ordered the above Civil Penalty Proceeding to 

be consolidated with Docket No. PENN 86-228-C, as identical 

issues were involved in both cases i.e., the propriety of the 

issuance of Order No. 2695927. Pursuant to notice, these cases 

1236 
were scheduled for hearing on May 5, 1987, in Pittsburgh, 

Pennsylvania. On April 29, 1987, a communication was received 

from the United Mine Workers of America, the representative of 

the complainant in the above compensation case, indicating that 

it will not appear at the hearing on May 5, 1987, and would rely 

on evidence presented by the Secretary in the above Civil Penalty 

Proceeding regarding whether Order No. 2695927 was properly 

issued. The Civil Penalty Proceeding, Docket No. PENN 86-291, 

was heard on May 5, 1987, in Pittsburgh, Pennsylvania. Wendell 

Hill testified for the Petitioner and Raymond L. Hulings 

testified for the Respondent. At the hearing, Counsel for both 

Parties indicated that a settlement had been reached with regard 

to the following Citations: 2695932, 2695934, and 9945451 and 

Order No. 2695934. The Secretary, subsequently, on May 12, filed 

its Motion to Approve Settlement concerning these citations. For 

the reasons that follow, these Motions have been granted. 

Petitioner filed its brief on June 25, 1987 and Respondent 

filed its brief on June 15, 1987. 

Regulatory Provision 

30 C.F.R. § 77.404(a) provides as follows: "Mobile and 

stationary machinery and equipment shall be maintained in safe 

operating condition and machinery or equipment in unsafe condition shall be removed from service immediately." 

Issues 

1. Whether Respondent violated 30 C.F.R. § 77.404(a). 

2o If a violation of Section 77.404(a), supra, occurred, 

was it of such a nature as could have significantly and substantially contributed to the cause and feet of a safety hazard. 

3. If a violation of Section 77.404(a), supra, occurred, 

whether such violation was caused by Respondent's unwarrantable 

failure to comply with Section 77.404(a). 

Findings of Fact and Conclusions of Law 

I have jurisdiction to hear and decide this case. The 

Respondent owns and operates the Mack Mine which is subject to 

the provisions of the Federal Mine Safety and Health Act of 1977" 

On May 15, 1986, at approximately 9:30 a.m., Wendell Hill, a 

MSHA Inspector, in the course of an inspection at Respondent's 

Mack Mine, issued a 104(d)(2) Order in which he alleged that a 

Ford Truck, Model 800, that had a drill mounted on it, was not 

being maintained in good operating condition inasmuch as the 

1237 
drive engine "will not operate," and the differential gears were 

"damaged." The Respondent does not contest the existence of the 

above conditions. Its owner and operator, Raymond Hulings indicated, in essence, that the truck's engine and gears had been 

inoperable for approximately 2 month prior to May 15, 1986. 

Although the truck's brakes were fully operable, it is clear that 

because the engine and gears were not operable, the truck was not 

maintained in a safe operating condition. Also, although the 

truck was not being used in a fashion that required its engine 

and gears to function, it was not removed from service as it was 

being used as a platform for a drill rig that was mounted on it, 

and was pushed or pulled by a bulldozer, 3 to 4 times a shift, to 

transport the drill to various drilling sites. As such, I 

conclude that Section 77.404(a) has been violated. 

Upon the truck being pulled by a bulldozer from one drilling 

site to another the operator of the bulldozer, and the person 

sitting in the truck's cab to control it, would both be facing in 

the same direction. Accordingly, there would not be any possibility of visual communication between the two. Further, audio 

communication would be difficult. Thus, some degree of hazard 

would be created if the truck would be pulled down a grade. In 

this situation, the truck would not have the benefit of the 

braking power of its engine, and its rate of descent would be 

controlled solely by its brakes. Hence, there would be some 

degree of risk of a collision with the bulldozer. However, it 

was essentially the uncontradicted testimony of Hulings, that the 

truck is pulled at a speed of approximately one or two miles an 

hours, and that more than half the time when the truck is moved, 

it is moved along the bench which is level. 

When the Order in question was issued; there was no lighting 

system in the area of the highwallo Thusu when the truck was 

being pushed by a bulldozer during an afternoon shift after sunset the area behind the truck towards the highwall, would be 

illuminated only by the lights on the rear of the truck, as well 

as the headlights from the bulldozer. Also, were the person in 

the cab of the truck to apply the brakes to stop the truck, the 

operator of the bulldozer would notice a slight decrease in speed 

of the bulldozer and an increase in its RPMso However, the applica on of the truck 6 s brakes would not stop the bulldozer from 

pushing it. Accordingly, the failure to remove the trucK from 

service, did create some degree of risk of the bulldozer pushing 

the truck over the highwall or causing it to come in contact with 

and injure a spotter who might be working in the area behind the 

truck" 

I conclude that there is no evidence that the fashion in 

which the truck was used, when being pulled or pushed by the 

bulldozer, created any reasonable likelihood of a injury that 

1238 
would of a reasonably serious nature. (See, Mathies Coal Co., 6 

FMSHRC 1 (January 1984). In this connection, I note the uncontradicted testimony of Hulings, that the bulldozer pulling the truck 

was moving at about 1 or 2 miles an hour, and that more than half 

the time the truck was being pulled on a level grade. Also, when 

the truck was being pushed by the bulldozer, the blade of the 

bulldozer was not raised high enough to prevent the bulldozer 

operator from being able to see the operator of the truck who was 

facing him. In this regard, I rely more on the testimony of 

Hulings, whose testimony was ba9ed on his p'ersonal knowledge, 

rather than the upon testimony of Hill, whose knowledge in this 

regard was based upon what others told him. Taking into account 

the facts that the back of the drill had 12 volt flood lights, 

that the bulldozer travels at only 1 or 2 miles an hour, and that 

the operators of the truck and bulldozer were in visual contact, 

I find that the evidence does not establish that the failure to 

re~ove the 800 truck resulted in any reasonable likelihood of a 

reasonably serious injury. Therefore, based upon all of the 

above, I conclude that the violation by Respondent of 30 C.F.R. 

§ 77.404(a), was not significant and substantial (See Mathies 

Coal Co., supra). 

At the date the Order herein was issued, Hulings, Respondent's 

owner and operator, had known for 2 months that the engine and the 

gear of the 800 truck was inoperable. In spite of this, Respondent 

did not repair the truck nor did it remove it from service. Accordingly, I find that the violation of section 77.404(a), was due to 

Respondent "unwarrantable failure." CU. s. Steel Corp., 6 FMSH,RC 

1423 (June 1974). 

Based· upon the statutory criteria in Section 110 of the 

Federal Mine Safety and Health Act of 1977 1 I find that a penalty 

of $100 is appropriate for the violation of 30 C.F.R § 77.404(a). 

Subsequent to the hearing, on May 14, 1987, the Petitioner 

has filed a Motion to Approve a Settlement Agreement for Citation 

No. 2695932, Citation No. 9954451, and Order No. 2695934. A 

reduction in penalty from $123 to $80 was proposed. I have considered the representations and documentation submitted, and I 

conclude that the -proffered settlements are appropriate under the 

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

On May 22, 1987, the United Mine Workers of ~merica and 

Energy Supply Incorporated filed a Joint Stipulation wherein they 

agreed that if Order No. 26959527 is found to have been properly 

issued, then Jeffery Stennett will be entitled to compensation 

pursuant to Section 111 of the Federal Mine Safety and aealth Act 

of 1977. The Parties further stipulated that Energy Supply 

Incorporated will, within 15 days of the issuance of a final decision in PENN 86-291, pay Jeffery Stennett $526.05 plus interest 

1239 
at the rate of 10 percent per annum. Considering this Stipulation, 

and the fact that I have found that Order No. 2695972 was properly 

issued, I conclude that Jeffery Stennett is entitled to compensation pursuant to section 111 of the Act, in the amount oi $526.05 

plus interest at the rate of 10 percent per annum. 

ORDER 

It is ORDERED that: 

1. The operator pay the sum of $223, within 30 days of this 

decision, as a civil penalty for the violations found herein. 

2. The operator pay Jeffery Stennett, within 15 days of 

this decision, $526.05 plus interest at the rate of 10 percent 

per annum. 

~is~ Administrative Law Judge 

Distribution: 

Susan M. Jordan, Esq., Office of the Solicitor, u. S. Department 

of Labor, Room 14480-Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

Mr. Raymond L. Hulings, President, Energy Supply, Incorporated/ 

Donray Industries, Incorporated, Box 225, Armagh, PA 15920 

(Certified Mail) 

Joyce Ao Hanula, Legal Assistantv UMWAv 900 15th Streetv NW; 

Washington, DC. 20005 (Certified Mail) 

Vasilis c. Katsafanas, Esq., Berkman, Ruslander, Pohl, Leiber & 

Engel, 40th Floorv One Oxford Centre, Pittsburgh, PA 15219-6498 

(Certified Mail) 

dcp 

1240 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 14, 1987 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), · Petitioner 

v • 

NACCO MINING COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 87-48 

A. C. No. 33-01159-03725 

Powhatan No. 6 Mine 

DECISION APPROVING SETTLEMENTS 

ORDER TO PAY 

On June 22, 1987, the Solicitor submitted a motion for 

settlement of the four violations presented on the penalty 

petition. The originally assessed penalties totaled $9,000 

and the proposed settlements were for $7,000. On June 26, 

1987, I advised the parties by telephone that I would not 

approve the motion as submitted. Thereafter the parties 

again conferred. On June 30, 1987, the Solicitor submitted 

an amended motion for settlement and proposed settlements 

totaling $7,500. 

On July 16, 1986, MSHA conducted an investigation of a 

nonfatal mine accident that took place on the surface of 

NACC0 1 s Powhatan No. 6 Mine on July 15, 1986. The investigation reported that at approximately 2:55 p.m. a road 

grader 9 while ascending the roadway, drifted backwards gaining speed as it descended the roadway, The grader overturned 

and injured the man who was running it, The subject 

citations arise from this incident, 

Citation No. 2824598 was issued for a violation of 

30 C,F.R. §77,403a(c)(l) because the grader did not have a 

rollover protective structure ( 11 ROPS 11 ). The Solicitor advises that although the lack of a ROPS was a violation of the 

cited standard, it was not a cause of the accident. The 

absence of a ROPS did not cause the grader to roll backwards. 

The existence of the ROPS might possibly have reduced the 

gravity of the injury, but in and of itself, did not contribute to the occurrence of the incident. Moreover, the grader 

was equipped with a substantial enclosed metal cab. The cab, 

however, did not rise to the level of being a ROPS. Finally, 

the grader had existed in this condition on the mine property 

for fifteen years without prior incident and without being 

cited by MSHA. Based upon the foregoing, gravity and negligence are somewhat less than originally thought. The 

1241 
original assessment was $2,500 and the proposed settlement is 

$2,000. I approve the settlement which is a substantial 

amount. 

Citation No. 2824599 was issued for a violation of 

30 C.F.R. § 77.1605(k) because on the roadway where the accident occurred berms or guards were not provided. However, 

the MSHA inspector determined that the lack of berms or 

guards had no causal relationship to the accident. The 

grader rolled off on the right side of the road where berms 

were missing, not the left side. Furthermore, the 31 feet 

cited on the right was far removed from the accident site. 

The original assessment was $1,000 and the proposed settlement is $300. In light of the particular circumstances, set 

forth herein, I approve the recommended settlement. 

Citation No. 2824600 was issued for a violation of 

30 C.F.R. § 77.1710(i) because suitable seat belts had not 

been provided in the cab of the road grader. MSHA determined 

that the inadequacy of the seat belt did not cause the 

accident nor its severity. The Solicitor explained the 

method in which the grader is operated as follows: 

The use of the grader often requir~s that 

the operator stand up to view the area on 

either side of the grader and to observe 

the operation of the grader's blade beneath 

him. In this method of operation, the 

standard type of seat belt cannot be engaged. To compensate for the operational 

necessity of standing and to overcome the 

inadequacy of the standard seat belt in 

this situation, the operator is attempting 

to obtain and install seat harnesses that 

will allow attachment while standing. 

1t does not appear that MSHA ever has required the 

operator to have a seat harness other than the standard belt. 

The original assessment was $500 and the proposed settlement 

is $200. In light of the particular circumstances, set forth 

herein, I approve the recommended settlement. 

Citation No. 2827922 was issued for a violation of 

30 C.F.R. § 77.1605(b) because the grader had inadequate brakes. Repair work done on the braking system, the previous 

Saturday, resulted in the plugging of one of the hydraulic 

brakelines. Based on this, it was concluded that the brakes 

were inadequate and this inadequacy was the cause of the 

aforementioned accident. The original assessment was $5,000 

and this is the proposed settlement. The Solicitor puts forward several mitigating factors, none of which I find 

persuasive. The Solicitor also states why the operator 

1242 
believes that if the brakes had been applied properly under 

the stalled engine conditions, the grader would have held. 

also reject this proposition as based upon a series of 

unfounded assumptions. I approve the recommended settlement, 

however, which is a substantial amount because it accords 

with the high degree of gravity and negligence presented. 

The foregoing settlements also have taken into account 

and are based upon the Solicitor's representations regarding 

the other statutory criteria under section llO(i) of the Act. 

In light of the foregoing the recommended settlements 

are APPROVED and the operator is ORDERED TO PAY $7,500 within 

30 days from the date of this decision. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Patrick M. Zohn, Esq., Office of the Solicitor, U. S. Department of Labor, 881 Federal Office Building, 1240 East Ninth 

Street, Cleveland, OH 44199 (Certified Mail) 

Mr. Richard S. Rice, Director Safety & Training, Nacco Mining 

Company, P. 0. Box 231, Clarington, OH 43915 (Certified 

Mai l ) 

I g 1 

1243 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 JUL 151987 

SECRETARY OF ~ABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

WHITE COUNTY COAL CORPORATION 

Respondent 

WHITE COUNTY COAL CORPORATION 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 87-35 

A.C. No. 11-02662-03549 

No. 1 Mine 

CONTEST PROCEEDING 

Docket No. LAKE 87-18-R 

Citation No. 2816261; 

11/5/86 

Pattiki Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Fauver 

Docket No. LAKE 87-35 is a petition for assessment of a 

civil penalty under§ 105(d} of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801, et seq. Docket 'No. 

LAKE 87-18-R is a notice of contest seeking review of the 

citation involved in the penalty case" Petitioner has filed 

a motion to approve a settlement agreement and to dismiss 

both cases. I have considered the representations and 

documentation'submitted and I conclude that the proffered 

settlement is consistent with the criteria in section llO(i) 

of the Act. 

ORDER 

WHEREFORE IT IS ORDERED that the motion for approval of 

settlement is GRANTED and Respondent shall pay the approved 

penalty of $900 within 30 days of this Decision. Upon such 

payment both proceedings are DISMISSED" 

~~:-&-1 Administrative Law Judge 

Distribution: 

1244 
Barbara A. Myers, Esq., Crowell & Moring, 1001 Pennsylvania 

Avenue, N.W., Washington, DC 20004-2504 (Certified Mail) 

James B. Crawford, Esq., Office of the Solicitor, Department 

of Labor, Suite 400, 4015 Wilson Boulevard, Arlington, VA 

22203 (Certified Mail) 

kg 

1245 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

ERNEST R. LAFON, JR., 

Complainant 

v. 

VIRGINIA LIME COMPANY, 

Respondent 

JUL 151987 

DISCRIMINATION PROCEEDING 

Docket No. VA 87-1-DM 

MD 86-16 

Kimballton Mine 

ORDER OF DISMISSAL 

On July 10, 1987, Counsel for Respondent filed with the 

Commission an order endorsed by Counsel for Complainant which 

indicated that all matters in controversy between the Parties 

have been settled, and requested that the action be dismissed 

with prejudice. 

Accordingly, it is ORDERED that the above· case be DISMISSED 

with prejudice. 

g~ Administrative Law Judge 

Distribution~ 

Darrel Tillarv Esqov Long & Tillerv P. 0. Box 196u Blacksburg, VA 

24060 (Certified Mail) 

Co Richard Cranwell, Esq., Patrick Shield, Esq., Cranwell, Flora 

and Moore, P. Oo Box 91, Roanoke, VA 24002 (Certified Mail) 

dcp 

1246 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v • 

HELVETIA COAL COMPANY, 

Respondent 

HELVETIA COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

July 16, 1987 

1247 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 87-92 

A. C. No. 36-00917-03653 

Lucerne No. 6 Mine 

CONTEST PROCEEDINGS 

Docket No. PENN 87-51-R 

Citation No. 2693665; 11/10/86 

Docket No. PENN 87-52-R 

Citation No. 2693666; 11/10/86 

Docket No. PENN 87-53-R 

Citation No. 2693667; 11/10/86 

Docket No. PENN 87-54-R 

Citation No. 2693668; 11/10/86 

Docket No. PENN 87-55-R 

Citation No. 2693669; 11/10/86 

Docket No. PENN 87-56-R 

Citation No. 2693670; 11/10/86 

Docket No. PENN 87-57-R 

Citation No. 26936.71; 11/10/86 

Docket No. PENN 87-58-R 

Citation No. 2693672; 11/10/86 

Docket No. PENN 87-59-R 

Citation No. 2693673; 11/10/86 

Docket No. PENN 87-60-R 

Citation No. 2693674; 11/10/86 

Lucerne No. 6 Mine 
Before: 

DECISION APPROVING SETTLEMENT 

ORDER TO PAY 

ORDER OF DISMISSAL 

Judge Merlin 

The Solicitor has filed a motion to approve settlements of 

the ten violations involved in this case. The total of the 

originally assessed penalties was $1,000 and the total of the 

proposed settlements is $605. 

The motion discusses the violations in light of the statutory criteria set forth in section llO(i) of the Act. The subject citations were issued for violations of 30 C.F.R. 

§ 48.27(c), because the operator had assigned ten miners to participate in the moving of a piece of equipment under energized 

trolley wire who were not specifically trained 'Or instructed regarding this task. The Solicitor represents that a reduction 

from the original assessment is warranted for the following 

reasons: 

The reduction is proposed because of a 

genuine dispute or misunderstanding 

between the parties regarding the requirements of task training. The 

operator was of the opinion that the 

miners had to be task trained only if 

and when they became needed in the 

operation and only for the specific task 

they would perform. For example, a 

miner would be specifically task trained 

on how to jack up the piece of equipment 

when and if it was required during the 

move. MSHA required, however, that the 

miners be task trained and instructed in 

the general safety aspects of moving 

equipment under energized trolley wire 

once they were assigned the job and 

before they were actually placed. Therefore, if an emergency situation 

occurred, as one did, every miner involved would have been trained in the 

safety procedures of the task. Because 

of this honest difference in interpretation, the parties propose that the 

negligence of the violations be reduced 

to moderate. 

The subject citations were originally assessed at $100 each. 

The motion proposes that Citation Nos. 2693665, 2693666, 2693667, 

2693670, 2693671, 2693672, and 2693673 be reduced to $65 for the 

violation. With respect to Citation Nos. 2693668, 2693669, and 

2693674, the motion proposes an assessment of $50, because "the 

1248 
three miners cited in [those] citations .•• had been trained as 

motormen. [Thus], [t]heir training would have included some 

aspects of moving off-track equipment." 

I accept the Solicitor 1 s representations and approve the 

recommended settlements. The parties should be aware, however, 

that I assume from the proposed settlement that the operator now 

understands what is required of it. 

Accordingly, the motion to approve settlements is GRANTED 

and the operator is ORDERED TO PAY $605 within 30 days from the 

date Df this decision. 

It is further ORDERED that the corresponding review cases, 

Docket Nos. PENN 87-51-R, PENN 87-52-R, PENN 87-53-R, 

PENN 87-54-R, PENN 87-55-R, PENN 87-56-R, PENN 87-57-R, 

PENN 87-58-R, PENN 87-59-R and PENN 87-60-R, pending before me 

are hereby DISMISSED. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Susan M. Jordan, Esq., Office of the Solicitor, U. S. Department 

of Labor, Room 14480-Gateway Building, 3535 Market Street, ~hiladelphia, PA 19104 (Certified Mail) 

William M. Darr, Esq., Helvetia Coal Company, 655 Church Street, 

Indiana, PA 15701 (Certified Mail) 

Edward J. Onuscheck, Vice President; Safety and Training, 

Helvetia Coal Company, 655 Church Street, Indiana, PA 15701 

(Certified Mai1) 

Michael H. Holland Esq., UMWA, 900 15th Street, N.W., 

Washington, DC 20005 (Certified Mail) 

I g l 

1249 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 1 71987 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION ON BEHALF OF 

MARK R. KRAUS, 

Complainant 

v. 

GREEN RIDGE MINING, INC., 

Respondent 

DISCRIMINATION PROCEEDING 

Docket No. L~KE 87-67-D 

VINC CD 87-03 

Green Ridge Mine 

ORDER OF DISMISSAL 

On July 14, 1987, the Secretary filed a Motion to Dismiss 

predicated upon a Consent Agreement, executed on July 9, 1987, 

which sets forth the terms of the settlement of this case and 

which indicates that the Parties agree, that the Complaint and 

Application for Reinstatement be dismissed with prejudice. 

Accordingly, the Complaint and Application for Reinstatement 

is dismissed with prejudice, and it is ORDERED that this case be 

DISMISSED with prejudice. 

_, /(~-=-:-:: r'/) ~ ~ 

~~ 

( \ /:1 -· 

-·----- Avram Weisberger 

Administrative Law Judge 

Distribution: 

Frederick W. Moncrief, Esq., Office of the Solicitor, U. S. 

Department of Laborr Suite 400, 4015 Wilson Boulevard, Arlington, 

VA 22203 (Certified Mail) 

Mr. Dan Foertsch, President, Green Ridge Mining, Inc., P. O. 

Box 16, Lamar, IN 47550 (Certified Mail) 

dcp 

1250 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

July 17, 1987 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

ON BEHALF OF BRIAN S. OUSLEYr 

Complainant 

v. 

METRIC CONSTRUCTORS, INC., 

Respondent 

. . 

0 

. 

DISCRIMINATION PROCEEDING 

Docket No. SE 87-85-DM 

MD 86-18 

C.P.L. Plant 

ORDER DENYING RESPONDENT'S MOTION 

TO DISMISS OR FOR SUMMARY DECISION 

In its Answer, filed on June 16, 1987, Respondent moved to 

dismiss "or For Summary Decision." On June 23, 1987, the 

Secretary, on behalf of the Complainant, filed a motion to extend 

the time to reply to Respondent's motion. On June 24, 1987, an 

order was entered extending the time for the Secretary to reply 

to this motion until July 13, 1987. On July 14, 1987, the 

Secretary filed its response to the Respondent's motion. 

In essence, the basis for the Respondent's motion is that 

the complaint herein is time-barred. The alleged act of discrimination occurred on January 21, 1986, and a complaint was filed 

with MSHA on February 3Q 1986. MSHA conducted an investigation 

but did notv within 90 days after the filing of the claim with 

MSHA or at any timev issue any determination of a violation of 

the Federal Mine Safety and Health Act. On May 12v l987v a complaint of discrimination was filed with the Commission. 

Judge Broderick, in Secretary v. Jim Walter Resources, Inc., 

9 FMSHRC 263 (February 1987>v analyzed the relevant law with 

regard to the time obligations of the Acto I concur in his analysis as lows~ 

The Act further provides that upon receipt of a complaint by a miner, the Secretary shall con:unence an 

investigation within 15 daysv and if he determines that 

discrimination has occurred, shall immediately file a 

complaint with the Commission. It directs the 

Secretary to notify the miner within 90 days of the 

receipt of a complaint of his determination whether a 

violation has occurred. The Legislative History of the 

1251 
Act' makes it clear that this time limitation is not 

jurisdictional and that Complainant should not be prejudiced by the failure of the Government to meet its 

time obligations. S. Rep. No. 181, 95th Cong., 1st 

Sess. 36 ~1977), reprinted in Senate Subcommittee on 

Labor, Committee on Human Resources, 95th Cong., 2d 

Sess., Legislative History of the Federal Mine Safety 

and Health Act of 1977 at 624 (1978). However the 

Commission has held that a long delay coupled with a 

showing of prejudice to the operator may subject the 

complaint to dismissal. Secretary/Hale v. 4-A Coal 

Company, Inc., 8 FMSHRC 905 (1986). 

(Secretary v. Jim Walter Resources, Inc., supra, at 

266). 

In essence, it is Respondent's position that the complaint 

herein is frivolous and that there is no justification for the 

delay by the Secretary in filing the complaint more than a year 

after the period established in the Act. Without making any 

decision as to the merits of this action, I find that the allegations in the complaint do state a cause of action under the Act, 

and as such the complaint is not frivolous. Furthermore, 

according to the affidavit of July 9, 1987, of William H. Berger, 

<"Attach" 4 to the Secretary's response), the case was received 

in the Atlanta Regional Solicitor's Office on June 11, 1986, and 

in August 1986, when Berger contacted the Complainant about the 

case, he was informed that the latter had instituted a State 

Court Action arising out of the same transaction alleged in the 

MSHA complaint, except that "the State Law supposedly provided 

for punitive damages." Berger then informed the Complainant and 

his attorney, Ronald S. Webster, that the Department of Labor 

would not proceed with his case while the State Court proceeding 

was ongoingo Berger stated that he was told by both the 

Complainant and Websterv on several occasionsv that they desired 

to proceed in State Court because of the possibility of 

recovering punitive damages. Berger stated in his affidavit 

that in mid December 1986 he was informed, by the Complainant, 

that the State Court had denied any claim for punitive damages 

and that he, the Complainant, wished to proceed with the MSHA 

claim. The case was subsequently transferred to the National 

Solicitor 6 s Office on March 11 9 1987. Based upon the affidavit 

of Berger, I conclude that there was some justification for the 

Secretary 1 s delay in filing a complaint in this matter. 

In addition, the Respondent alleges that it has suffered 

substantial prejudice, by reason of Respondent's delay in bring 

this action, in that all material witnesses have been laid off, 

and that it has been denied an opportunity to conduct discovery 

and defend the claim while witnesses and documentary evidence 

were readily and inexp~nsively available. Respondent also argued 

1252 
that the residences of key witnesses, including Elmer Podratz and 

Michael o. Webb, are outside the State of Florida and unknown. 

However, it appears from the affidavit of John K. Day, Jr., that 

Podratz Cwho left the Respondent on or about July 10, 1986), and 

Webb <who left the Respondent on May 15, 1987) are, to the best 

of Day's knowledge, residing in Charlotte, North Carolina and 

Louisiana respectively. No facts are alleged to establish any 

reason why Podratz and Webb cannot be subpoened to testify in 

this matter. The same pertains to Duke Roberts and James 

Wilkerson who, accordingly to the affidavit of Day, left the 

Respondent on May 28, 1987 and January 9, 1986 respectively, and, 

to the best of Day's knowledge, are residing in Virginia and 

Washington State respectively. 

According to Day's affidavit, Fred K. Coogle and Robert 

Baker left the Respondent on July 9, 1986 and October 6, 1986, 

and as to each of them Day indicated "I do not know his current 

whereabouts." Respondent has not described in any detail the 

scope of any prospective testimony of Coogle a~d Baker. As such, 

it has not been established that their testimony is critical to 

Respondent's case. Further, Respondent has not set forth any 

facts which would establish that Coogle and Baker can not be 

served with a subpqena. The fact that Day does not know their 

current whereabouts does not establish that Respondent has no way 

of locating these individuals. 

According to the affidavit of Day, the other individual 

having knowledge as to the fact and circumstances surrounding the 

Complainant's termination is John Camball, who is currently 

employed by Respondent and certainly is available to testify. 

Therefore, accordingly, I find that Respondent has not shown 

material legal prejudice attributable to the Secretary's delay in 

filing the complaint with the Commission. (See Secretary/Hale v. 

4-A Coal Companye Inc.v 8 FMSHRC 905 (June 1986)Q 

Based upon all the above, and in the interest of justice, it 

is ORDERED that Respondent's Motion to Dismiss or for Summary 

Decision is DENIED. 

k_ 

Avram Weisberger 

Administrative Law Judge 

(703) 756-6210 

1253 
Distribution: 

Frederick W. Moncrief, Esq., Office of the Solicitor, U. s. 

Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

(Certified Mail) 

Mary A. Lau, Esq., Lau, Lane, Pieper & Asti, P.A., P. o. Box 838, 

Tampa, FL 33601 (Certified Mail) 

dcp 

1254 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

MATHIES COAL COMPANY, 

Respondent 

JUL 171987 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 87-111 

A.C. No. 36-00963-03633 

Mathies Mine 

DECISION APPROVING SETTLE~1ENT 

Before: Judge Broderick 

On July 10, 1987, the Secretary of Labor filed a motion for 

approval of a settlement reached by the parties in this case. 

The violations were originally assessed at $126 and the parties 

proposed to settle for $50. 

The motion states that there were several mitigating factors 

justifying a reduction in the penalty. The violation charged 

was failure to adequately ventilate a battery charger. The 

charger was not in service and was not energized. It was located 

in a steel fireproof enclosure and equipped with a fire extinguisher. The charge and its cable were protected with short 

circuit and overload protection. 

I have considered the motion in the light of the criteria 

in section llO(i) of the Act and conclude that it should be 

approved. 

Accordingly 1 the settlement is APPROVED and Respondent is 

ORDERED TO PAY the sum of $50 within 30 days of the date of this 

decision. 

I I · j;> i •.·,/ .. /'--/ .' !/·:::.,•·:. '~ /,·:<, ,·r /-~. ' ... 

/1 James A. Broderick 

Administrative Law Judge 

1255 
Distribution: 

William T. Salzer, Esq., Office of the Solicitor, U.S. Department 

of Labor, Room 14480 Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

Malcom Dunbar, Manager-Safety, Mathies Coal Company, Drawer D, 

Finleyville, PA 15232 (Certified Mail) 

/fb 

1256 
FEDERAL MINE SAFETY ANO HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

JUL 201987 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), · Petitioner 

v. 

KAISER SAND & GRAVEL COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 86-116-M 

A.C. No. 04-01616-05503 

Santa Margarita Mine 

DECISION 

Appearances: Marshall P. Salzman, Esq., Office of the Solicitor, 

U.S. Department of Labor, San Francisco, 

California, 

for Petitioner; 

Mr. Clair E. Hay, Safety Manager, Kaiser Sand and 

Gravel Company, Pleasanton, California, 

pro se. 

Before: Judge Cetti 

This civil penalty proceeding arises under the Federal Mine 

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

Act). The proceeding was initiated by the filing of a petition 

for assessment of a civil penalty by the Secretary of Labor 

pursuant to Section llO(a) of the Mine Act. After notice to the 

partiesu a hearing on the merits was held before me on May 2lu 

1987" The parties presented oral and documentary evidence and 

submitted the matter for decisionu without exercising their right 

to file post-trial briefs. 

On January 28, 1986u a MSHA inspector conducted an 

inspection of the Santa Margarita Quarry and Mill operated by 

Kaiser Sand & Gravel Company at Santa Margarita, San Luis Obispo 

Countyu California. As a result of the inspection the mine 

inspector issued a citation charging the operator with a signif icant and substantial violation of Title 30 C.F.R. § 56.14001 

which requires guarding of tail pulleys. 

The respondent filed a timely appeal contesting the 

existence of the alleged significant and substantial violation of 

the safety standard and the amount of the penalty. 

1257 
Stipulations 

The parties stipulated as follows: 

1. Kaiser Sand & Gravel is a large company and operates a 

moderate-sized facility. The company has close to a four million 

man hours' work per year as a company with about 23,000 man hours 

work per year at the facility. 

2. Respondent has an average history having had four 

violations in the previous two years. 

3. Imposition of the penalty will not affect the ability of 

respondent to continue in business. 

4. The violations were abated in good faith. 

Review of Evidence 

and Discussion 

Mr. Cowley made the January 28, 1986 inspection of the Santa 

Margarita Quarry. He testified that he has been a mine inspector 

with MSHA the past 11 years and altogether has had 32 years 

mining experience. In the course of his inspection of the quarry 

he observed the tail pulley for the 36 inch wide primary conveyor 

belt. In his opinion the tail pulley was not guarded. 

The tail pulley was located at ground level not more than a 

foot or two high. When the mine inspector first walked up to the 

tail pulley he observed a rectangular piece of plywood that 

obscured his view of the pulley. The plywood was leaning against 

the rectangular opening in the thick concrete structure that 

enclosed the tail pulley. He pushed the piece of plywood that 

obscured his view of the pulley and it fell over" He testified 

that he pushed it to see if it was secured and to get it out of 

the way so it no longer obscured his view of the pulley. He 

stated that the plywood was not secured in anyway and did not 

guard "anything". 

On cross examination the mine inspector admitted that he 

does not know anything about the plant's operating or lock out 

procedures. However if someone were to service a tail pulley of 

this type while it was operating he could come in contact with 

the tail pulley and if this occurred it could result in a very 

serious injury. 

The conveyor belt and pulley were operating at the time of 

this inspection. The mine inspector testified that he observed 

no one in the area of the tail pulley. The machinery is operated 

and serviced by one person, the operator, whose shack is located 

on a different level above the pulley and some 40 to 50 feet away. 

The operator services the machinery the first thing in the 

morning before he starts the conveyor belt. 

1258 
The respondent presented evidence that the tail pulley and 

conveyor belt were enclosed in the heavy concrete structure that 

formed the base of the crusher, except for the rectangular 

opening which exposed the end of the pulley. To eliminate this 

exposure a section of plywood was inserted in the frame of the 

opening. The plant manager stated that after the conveyor 

operated for a while there was a buildup of material that secured 

the plywood in place. 

It was respondent's position that the tail pulley was 

guarded by its concrete enclosure and the plywood until the 

inspector pushed or pulled the unsecured plywood from the frame 

of the opening in the concrete enclosure. 

The plant manager testified that safety is one of the top 

priorities at the quarry and it is the practice at that facility 

to lock out machinery before any maintenance, servicing or repair 

work is performed. The person who performs the work uses his own 

lock and keeps the key. They have regular monthly safety 

meetings that take care of any safety problems that arise. 

The operator presented evidence that the tail pulley had 

been guarded by the enclosing concrete structure and the plywood 

for the past eleven years. During that time they've had a number 

of inspections by various mine inspectors including Mr. Cowley 

and no one had complained before as to the manner in which the 

tail pulley was guarded, Mr. Cowley admitted that in his prior 

inspection of the plant he had not cited this primary conveyor 

tail pulley for not having a guard or for having an inadequate 

guard. 

Respondent near the end of the hearing stated for the record 

that he was not contesting the existence of the violation but 

vigorously denied that the violation was a significant and substantial violationo 

I'm satisfied from the testimony of the mine inspector that 

at the time he observed the tail pulley in operation the piece of 

plywood <which normally was in place in the frame of the opening 

of the concrete enclosure) was on this occasion just leaning up 

against the concrete enclosure. I am persuaded that there was a 

violation of the guarding requirement but I do not find from the 

evidence presented in this case that the violation was signif icant and substantialo 

The Review Commission has previously held that a violation 

is properly designated significant and substantial "if, based on 

the particular facts surrounding that violation, there exists a 

reasonable likelihood that the hazard contributed to will result 

in an injury or illness of a reasonably serious nature." 

National Gypsum, 3 FMSHRC at 825. In Mathies Coal Co., 6 FMSHRC 

1, 3-4 (January 1984), the Commission explained: 

1259 
In order to establish that a violation of a mandatory 

safety standard is significant and substantial under 

National Gypsum the Secretary .•. must prove: Cl) 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 reasqnable likelihood that the hazard contributed to 

will result in an injury; and (4) a reasonable likelihood that the injury in question will be of a reasonably 

serious nature. 

The Commission pointed out 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 at 1836 (August 1984). 

In this case the Secretary has established each of the four 

elements in the Mathies formula except No. 3. While it is 

possible that the hazard contributed to will result in an event 

in which there is an injury this possibility is relatively remote 

and under the facts of this case it is found not to be a reasonable likelihood. 

This finding is consistent with the fact that the tail 

pulley was guarded for 11 years by its concrete enclosure and a 

piece of plywood placed in the frame of the opening and there is 

no evidence that during this long period of time there was any 

problems or injury of any kind. The condition was never cited. 

Presumably some of the MSHA inspectors who inspected this 

operation over the past eleven years checked to see how the tail 

pulley of the primary conveyor was guarded and saw no citable 

hazard. While this observation has no weight or value as to the 

existence of the violation it is certainly consistent with the 

finding that the violation was not a significant and substantial 

violationo 

It was the Secretaryws position that the negligence was 

ordinary negligence and on the basis of the evidence presented I 

concur and so find. The gravity of the violation is high with 

respect to the seriousness of the injury which could result if 

one became caught in the pinch point of the conveyor belt and 

pulley but is evaluated as low with respect to the likelihood of 

such an accident. I accept the stipulations of the parties with 

respect to the remaining statutory criteria set forth in Section 

llO(i) of the Mine Act. 

Based upon my consideration of the six statutory penalty 

criteria in Section llO(i) of the Mine Act I conclude that the 

appropriate penalty for this violation is $70.00. 

Conclusions of Law 

Based upon the entire record and the findings made in the 

narrative portion of this decision, the following conclusions of 

law are entered: 

1260 
1. The Commission has jurisdiction to decide this case. 

2. The respondent violated safety standard 30 C.F.R. 

§ 56.14001. 

3. The violation was not significant and substantial and 

said allegation is stricken from the citation. 

4. The citation as amended is affirmed and a civil penalty 

of $70.-00 assessed. 

ORDER 

Accordingly, the citation, as amended, is affirmed and 

Kaiser Sand and Gravel Company is ordered to pay a civil penalty 

of $70.00 within 30 days of the date of this decision. 

Distribution: 

Aug t F. Cetti 

Administrative Law Judge 

Marshall P. Salzman, Esq., Office of the Solicitor, U.S. Department of Labor, 71 Stevenson Street, P.O. Box 3495, San Francisco, 

CA 94119-3495 (Certified Mail) 

Kaiser Sand & Gravel Company, Mr. Clair E. Hay, Safety Manager, 0 Po0o Box 580, Pleasanton, CA 94566 (Certified Mail) 

/bls 

1261 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 221987 

ARNOLD SHARP, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

. . Docket No. KENT 86~149-D 

BARB CD 86-49 

BIG ELK CREEK COAL CO., INC., 

Respondent No. 1 Surface Mine 

Appearances: 

DECISION 

Arnold Sharp, Bulan, KY, Pro Se; 

Stephen C. Cawood, Esq., Pineville, KY, 

Respondent. 

Before: Judge Fauver 

Complainant brought this proceeding under § 105(c)(3) of 

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

§ 801 et seq., contending that he was discharged because of 

safety complaints made to his supervisors. Respondent 

contends that he was discharged for reckless driving. 

Based upon the hearing evidence and the record as a 

wholev I find that a preponderance of the substantial, 

reliableu and probative evidence establishes the following~ 

FINDINGS OF FACT 

1. Respondent operates a surface coal mine, known as 

No. 1 Surface Mine, in Leslie County, Kentucky, which 

produces coal for sale in or affecting interstate commerce. 

2. Complainant had been employed by Respondent 0 s 

predecessorv Bledsoe Coal Company 1 at the same coal mine for 

about one and one-half years when the mine was taken over by 

Respondent, in April, 19850 Complainant began working for 

Respondent thenu and worked as a rock truck driver and at 

times as an auger helper or operator until he was discharged 

on May 2 8, 19 86. 

1262 
3. From April, 1985, until February, 1986, 

Complainant's immediate supervisor was M.C. Couch. From 

February, 1986, until his discharge in May, 1986, his 

immediate supervisor was M. Cornett. 

4. Around September, 1985, Respondent purchased an 

auger and assigned Complainant to be a helper on it. 

Complainant made many safety complaints to Couch and later to 

Cornett about the auger, including excessive oil leakage, 

accumulations of loose coal and a broken or damaged platform. 

Many times he asked Respondent to have the auger repaired and 

made safe, but Respondent did not have it repaired and 

continued assigning Complainant to work on the auger. 

Complainant also complained to his supervisors about 

inoperable front horns and inoperable backup alarms on 

trucks. 

5. For a period, Respondent shut down the 

auger. Complainant drove a rock truck when the auger was 

shut down. 

6. In February, 1986, M.C. Cornett became Complainant's 

immediate supervisor, and Couch became a mine supervisor 

above Cornett. 

7. Around March, 1986, Respondent started operating the 

auger again, and Cornett ordered Complainant to work on the 

auger. Complainant complained about the auger, telling 

Cornett that he would not work on the auger until it was 

repaired .and made safe to operate. However, Cornett 

ordered Complainant to work on the auger and Complainant did 

soo On one occasion, Cornett instructed Complainant to come 

in on Sunday, April 27f 1986 8 to work on the auger. When 

Complainant told him he did not want to work on the auger 

until it was repaired, Cornett told Complainant to work on 

the auger as instructed or he would be fired. Again, 

Complainant worked on the auger. 

80 On May 28, 1986, Complainant was driving rock truck 

No. 437 and Willard Miller was driving rock truck No. 438. 

Miller had just dumped a load of rocks, and was leaving the 

dumping area. Complainant's truck was loaded, and he drove 

up to a "switchback" area where loaded trucks would stop and 

then back up to the dumping site. As Miller was driving 

downhill from the dumping area and as Complainant was backing 

uphill onto the dumping area road, the trucks collided. 

Neither truck had an operable front horn or operable back-up 

alarm. The accident probably could have been prevented if 

the trucks had these safety devices. Complainant looked in 

both of his side view mirrors before he backed up, but did 

1263 
not see Miller's truck in either of them b~cause of the angle 

at which the trucks were approaching each other. If Miller 

had been able to blow his front horn, it is likely that the 

accident would have been prevented. 

9. Supervisor Cornett arrived on.the scene after the 

accident, on May 28, 1986. Supervisor Couch arrived later. 

They summarily blamed Complainant for the accident, and 

discharged him on that date. 

10. On June 17, 1986, after evaluating the representations made by Respondent and the Complainant, the Kentucky 

Division of Unemployment Insurance rejected Respondent's 

contention that Complainant had been discharged for cause. It 

found that: "There is a lack of evidence to show that the 

accident was intentional or that misconduct was involved. 

Therefore, the separation is non-disqualifying." (Exh. C-34.) 

11. On August 26, 1986, the Mine Safety and Health 

Administration, United States Department of Labor, informed 

complainant that its investigation of his complaint of a 

discriminatory discharge did not indicate a violation 

of § 105(c) of the Act. Complainant then filed the subject 

proceeding before this independent Commission, for a de novo 

hearing and adjudication of his claim of discrimination.~~ 

DISCUSSION WITH FURTHER FINDINGS 

A miner may establish a prima facie case of discrimination -under§ 105(c) of the Act 1/ by proving that Cl) he 

was engaged in a protected activity and ( 2) the adve'rse 

action complained of was motivated in any part by that 

activityo The operator may rebut the orima facie case by 

showing either that no protected activity occurred or that 

the adverse action was not motivated in any part by the 

protected activity. Smith v. Reco, Inc., 9 FMSHRC 992 

(June 30, 1987). 

ll Section 105(c)(l) of the Act provides in part: "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 ..• in any coal or other mine subject to this Act 

because such miner •.. has filed or made a complaint under or 

related to this Act, including a complaint notifying the 

operator or the operator's agent .•• of an alleged danger or 

safety or health violation in a coal or other mine ••• or 

because of the exercise by such miner ••• of any statutory 

right afforded by this Act." 

1264 
If the operator cannot rebut the prima facie case in 

this manner, it may nevertheless defend affirmatively by 

proving that (1) it also was motivated by the miner's 

unprotected activity, and (2) it would have taken the adverse 

action in any event for the unprotected activity alone. The 

operator bears the burden of proof with regard to the 

affirmative defense. Haro v. Magma Copper Co., 4 FMSHRC 1935 

(1982). The ultimate burden of persuasion does not shift 

from the complainant. Donovan v. Stafford Construction Co., 

732 F.2d 954 (D.C. Cir 1984)~ Boich v. FMSHRC, 719 F.2d 194 

(6th Cir. 1983). The Supreme Court has approved the National 

Labor Relations Board's virtually identical analysis for 

discrimination cases arising under the National Labor 

Rela.tions Act. NLRB v. Transportation Management Corp., 462 

U.S. 393 (1983). 

Complainant proved that he was engaged in protected 

activity, i.e., making safety complaints about the condition 

of the auger and the trucks. He complained to.Couch a number 

of times, and he complained to Cornett when Cornett replaced 

couch as his immediate supervisor. His safety complaints 

included excessive oil on the auger, accumulations of coal on 

the auger, a broken or damaged platform on the auger and 

inoperable front horns and inoperable backup alarms on trucks. 

He also voiced safety complaints to fellow workers. 

Respondent contends that Complainant had a number of 

prior accidents at the mine and that the accident on May 28, 

1986, was the final cause for discharging him, because of 

~reckless driving, and that this was the sole cause for his 

discharge. It denies any motivation to discharge him because 

of his safety complaints. 

The evidence is in conflict as to prior accidents 

involving Complainanto Complainant called the former 

superintendent of Bledsoe Coal Company, Vernon Muncy, as a 

witness. Muncy testified that he saw Complainant practically 

every day on the job and that his work record was good while 

employed at Bledsoeo 

Respondent 0 s supervisor Couch testified that Complainant 

had several prior accidents at the mine, as follows: 

(1) In the first month Complainant worked for Couch, 

Complainant backed a truck partly over a berm on the edge of 

the dumping area. One set of the rear wheels went over the 

berm, and that side of the truck rolled backward partly down 

the slope. Couch testified that backing over the berm was 

dangerous, because ·the truck could have turned over. 

1265 
(2) In a later incident, Complainant backed into a high 

wall, damaging a railing and side mirror on his truck. 

(3) In February, 1986, the last day that he worked 

directly under Couch, Complainant, at the end of the work 

day, jammed his truck into a narrow opening in an effort to 

get to the parking lot quickly and get away from the mine. 

Respondent's foreman Cornett testified that he had 

worked for Bledsoe Coal Company as a supervisor and that 

Complainant had worked for him there for about a year and a 

half, and beginning in February, 1986, Cornett was his 

supervisor at Respondent's mine until Complainant's discharge 

on May 28, 1986. 

Cornett testified that Complainant had a number of prior 

accidents at the Bledsoe Company: Once, nearly backing into 

a sweeping machine, and "various accidents backing into 

dozers" (Tr. 85). Cornett also described the accident at 

Respondent's mine that Couch described, contending that 

Complainant backed a truck partly over a berm in the dumping 

area. 

William Bolling testified, as Respondent's witness, that 

he was a blaster and an equipment operator, first for Bledsoe 

Coal Company and then for Respondent. He first met 

Complainant when Complainant started working for Bledsoe Coal 

Company in December, 1983, or early 1984. They worked 

togethe~ for Respondent until Complainant was discharged. He 

described two accidents that occurred when they had worked 

for Bledsoe Coal Company: (1) Complainant backed a rock truck 

into a bulldozer Bolling was operatingr causing some damage 

to the rock truck (cutting the tire and bending the rim of 

the truck) and (2) Complainantus truck bumped into a 

bulldozer Bolling was operatingr without causing any damageo 

Bolling also testified that he saw Complainant back up too 

close to a bulldozer and the buldozer operator had to drive 

out of his way to avoid being hito 

Couchf Cornettv and Bolling testified that Complainant 

had a reputation at the mine of being an unsa drivero 

Complainant testified that the accident with Bolling 

involving the cut truck tire was at night and was caused by 

Bolling not having his lights ono He denied the other 

accidents mentioned by Bolling. He testified that the "berm" 

accident was due to Respondent's failure to build adequate 

berms. I credit Complainant's testimony on the subject of 

prior accidents and the accident on May 28, 1986. 

The kinds of prior accidents attributed to Complainant 

by Respondent's witnesses were not unusual for this 

operator's employees. Respondent's trucks often operated 

without operable horns and back-up alarms and at times 

1266 
equipment operated without adequate brakes or safety lights; 

rock blasting at times was too close to personnel or 

equipment; at times personnel were permitted too near, or 

approached too near, a high wall that was dangerous and could 

fall and fatally injure employees; the auger was often 

kept in an unsafe condition. Various employees were involved 

in accidents for which they were not disciplined by 

Respondent or by its predecessor. Nor did Respondent or its 

predecessor discipline Complainant for any accidents before 

May 28, 1986. On that date~ Respondent decided to fire 

Complainant without conducting a reasonable investigation of 

the accident. When Cornett came upon the scene, he briefly 

talked to Miller and Complainant, looked at the damage to 

Miller's truck and hastily determined that Complainant was at 

fault. Soon after that, Couch arrived, and Couch and Cornett 

had a brief discussion and decided that Complainant should be 

dismissed. If they had viewed the accident without an animus 

toward Complainant, they would have considered the effect of 

the safety defects on the trucks as a major contributing 

cause of the accident, i.e., the failure to provide an 

operable front horn on Miller's truck and an operable back-up 

alarm on Complainant's truck. The same truck operated by 

Miller had been turned over and substantially damaged in an 

accident on May 9, 1986, involving a different driver, but 

there is no evidence that disciplinary action was taken 

against that driver, nor is there an explanation of that 

accident in relation to driver fault or safety equipment. 

Earlier, Couch had threatened to fire Complainant if he 

continued to complain to other employees about his 

objections concerning the condition of the auger. Cornett 

was also upset with Complainant because of Complainant's 

safety complaints about the auger (as late as April 27, 1986) 

and his resistance to working on the auger when ordered to do 

SOo 

Couch and Cornett had not heeded Complainant's safety 

complaints about safety defects on the trucks. Had they 

checked the horns and backup alarms on the trucks involved in 

the accident on May 28p 1986, they would have found tha~ to 

be inoperableo With such a finding, they could not 

reasonably attribute fault to either driver, but to their own 

failure to have the safety standard for horns and backup 

alarms complied withe Their summary action in blaming 

Complainant for the accident without checking the safety 

equipment on the trucks indicates a discriminatory motive 

toward Complaint. 

For all of the above reasons, I find that Couch and 

Cornett were motivated at least in part by Complainant's 

safety complaints in their decision to fire him. The 

1267 
evidence presented by Respondent does not·preponderate to 

show that in the absence of Complainant's safety complaints 

Respondent would have discharged Complainant for the accident 

on May 28, 1986. Complainant is therefore entitled to 

relief under· § 105 (c) of the Act. 

CONCLUSIONS OF LAW 

1. The Commission has jurisdiction in this proceeding. 

2. Respondent violated§ 105(c)(l) of the Act by its 

discriminatory discharge of Complainant on May 28, 1986. 

3. Complainant is entitled to an order requiring 

Respondent: Cl) to reinstate him in Respondent's employment 

in the same position, and with the same pay rate, status and 

all other benefits, as he would have attained therein had he 

not been discharged on May 28, 1986, (2) to pay him back pay 

and interest for all compensation he would have earned in 

Respondent's employment had he not been discharged on May 28, 

1986, and (3) to reimburse him for costs and expenses 

reasonably incurred by him in connection with the institution 

and prosecution of this proceeding, including a reasonable 

attorney's fee if an attorney is engaged for the remainder of 

this proceeding including a procedure for proposing a relief 

order and any review or appeal processes. 

ORDER 

WHEREFORE IT IS ORDERED that: 

lo The parties shall confer, within 15 days of this 

Decisionp in an effort to stipulate the amount of 

Complainant 1 s back pay and interestu costs and expenses, and 

the positionv pay ratev status and employee benefits to which 

Complainant is entitled to be reinstated in Respondent's 

employment. Interest shall be computed in accordance with 

the Commission's decision in Arkansas Carbona, 5 FMSHRC 2042 

(1984) (copy to be distributed to each party)" 

2o Within five days after their conference, the parties 

shall file a report with the Judge, submitting either a joint 

proposed order for relief or a statement of the issues 

between the parties respecting the relief to be granted. 

Respondent's stipulation of the terms of a relief order will 

not prejudice its rights to seek review of this Decision. 

1268 
3. This Decision shall not be made final until a 

Supplemental Decision on Relief is entered herein. 

Distribution: 

I .J · i I · ' ~tMAvY'\. ~mla~ver Administrative Law Judge 

Mr; Arnold Sharp, General Delivery, Bulan, KY 41722 

(Certified Mail) 

Stephen C. Cawood, Esq., Cawood and Fowles, P.O. Drawer 280, 

Pineville, KY 40977 (Certified Mail> 

kg 

1269 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

July 23, 1987 

RUSHTON MINING COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

RUSHTON MINING COMPANY, 

Respondent 

CONTEST PROCEEDING 

Docket No. PENN 85-253-R 

Order No. 2403926; 6/11/85 

Rushton Mine 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 86-1 

A. C. No. 36-00856-03548 

Rushton Mine 

DECISION ON REMAND 

Before: Judge Broderick 

STATEMENT OF THE PROCEEDING 

By order issued March 30, 1987, the Commission remanded 

this case to me to rule on an issue raised by Rushton Mining 

Company (Rushton) in a Petition for Discretionary Review, 

whic!-1 issue had not been presented .to me before my decision 

which was i~sued February 20, 1987. The issue is whether 

Rushton is entitled to reimbursement from the Secretarv for 

costs and attorney fees incurred in connection with the proceeding involving Order No. 2403926. The parties have stated 

in response to my order issued April 15, 1987, that they do 

not wish to submit further evidence on the issue presented. 

Each party has filed a legal brief addressing the issue. 

FACTUAL BACKGROUND 

Rushton filed a notice of contest on July 3, 1985, contesting Order 2403926 issued under section 104(d) (1) of the 

Act. The order alleged a violation of 30 C.F.R. § 75.326. 

At the request of contestant, the proceeding was continued 

by order issued December 23, 1985, pending the filing of the 

1270 
related civil penalty case. On November 21, 1985, the Secretary filed a Petition for the Assessment of Civil Penalties 

seeking penalties for 5 alleged safety violations including 

the violation charged in Order 2403926. A penalty of $1,100 

was sought for that violation. The penalty case was assigned 

to me on June 27, 1986. I consolidated the cases (and other 

contest cases) by order issued July 10, 1986, and issued a 

prehearing order the same.day. The Secretary responded on 

August 13, 1986, and Rushton on November 6, 1986. Rushton's 

response included copies of a settlement motion and order and 

a vacated citation in other cases involving alleged violations of 30 C.F.R. § 75.326. 

Pursuant to notice issued August 21, 1986, the proceeding was called for hearing in Pittsburgh, Pennsylvania, on 

November 6, 1986, at 9:00 a.m. The hearing was concluded the 

same day at 4:25 p.m. At the commencement of the hearing, 

one of the contested violations was settled, and the related 

contest proceeding was dismissed. Testimony was taken on the 

4 remaining violations. With respect to the violation charged 

in Order 2403926, Inspector Klemick testified for the Secretary (Tr. pages 126-167). Raymond Roeder testified for Rushton (Tr. pages 169-197). I directed that posthearing briefs 

limited to the issue of whether statements made by MSHA personnel at MSHA Manager's Conference should have been admitted. 

The briefs were to be filed on or before December 29, 1986. 

I later extended the briefing time to January 16, 1987. Rushton's brief was submitted January 29, 1987. On February 5, 

1987, the Secretary filed a motion to withdraw the petition 

for a civil penalty based on Order 2403926, "which should be 

vacated." Respondent did not object to the Secretary's 

motion. 

On February 20, 1987, I issued my decision, including my 

ruling granting the motion to withdraw the petition insofar 

as it was based on Order 2403926, vacating the order and dismissing the contest proceeding. Rushton filed a Petition for 

Discretionary Revi2w with the Commission limited to the issues 

whether it is entitled to reimbursement of costs and fees under Rule 11, and-whether the facts of this case support such 

reimbursement. The Commission remanded the case to me. 

ISSUES 

1. Whether a mine operator is entitled to reimbursement 

from the Secretary for costs and attorney's fees under Rule 

11 of the Federal rules of Civil Procedure (FRCP). 

2. If so, whether the facts in this case support such 

reimbursement. 

1271 
CONCLUSIONS OF LAW 

I. DOES RULE 11 APPLY 

The Commission's Procedural Rules provide in 29 C.F.R. 

§ 2700.l(b): 

On any procedural question not regulated by 

the Act, these procedural rules, or the 

Administrative Procedure Act (particularly 

5 u.s.c. 554 and 556), the Commission or any 

Judge shall be guided so far as practicable 

by any pertinent provisions of the Federal 

Rules of Civil Procedure as appropriate. 

The Mine Act does not deal with reimbursement of costs 

and attorney's fees in connection with contest or civil penalty proceedings. The Administrative Procedure .Act (APA) refers 

to litigation costs and attorney's fees only in connection 

with proceedings under the Freedom of Information Act (5 U.S.C. 

§ 552(a) (4) (E)), the Privacy Act {5 u.s.c. § 552a(g) (1) (3) (B), 

and the Government In the Sunshine Act (5 U.S.C. § 552b(i). 

There are no references to costs and attorney's fees in sections 554, 555, 556, 557, or 558 of the APA. 

Commission Procedural Rule 6 (29 C.F.R. § 2700.6) states: 

When a person who appears in a representative 

capacity signs a document, his signature 

shall constitute his certificate 

(a) that ... he is authorized 

and qualif •.. to represent 

the particular party in the 

matter; 

(b) that he has read the document; that to the best of his 

knowledge, information, and 

belief, there is good ground 

to support it; and that it is 

not interposed for delay. 

Commission Procedural Rule 80 (29 C.F.R. § 2700.80) 

deals with standards of conduct required of individuals 

practicing before the Commission (they "shall conform to the 

standards of ethical conduct required of practitioners in 

the courts of the United States"), and sanctions for unethical or unprofessional conduct {disciplinary proceedings and 

"an appropriate disciplinary order, which may include reprimand, suspension or disbarment from practice before the Commission"). The sanct~ons do not include an order assessing 

costs or attorney's fees. 

1272 
Rule 11 of the FRCP requires that pleadings and other 

paper of a party represented by counsel be signed by counsel. 

It further provides: 

The signature of an attorney or party constitutes 

a certificate by him that he has read the. . . 

paper; that to the best of his knowledge, information and belief formed after reasonable inquiry 

it is well grounded in fact and is warranted by 

existing law or a good faith argument for the extension, modification, or reversal of existing 

law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of 

litigation. 

The rule provides that the court shall impose "an appropriate sanction" upon the person who signed a document in 

violation of the or the represented party or bo~h, which 

sanction may include an order to pay the other party's expenses incurred because of the filing. 

Commission Rule 6 was obviously modeled after Rule 11 

of the FRCP except that it does not provide for a sanction 

when the rule is sregarded. A sanction is provided, however, in Rule 80. Therefore, I conclude that the "procedural question" raised here (sanctions for filing a document 

which to the best of the knowledge, information or belief of 

the signer does not have good grounds to support it) is 

"~egulated" by the Commission Procedural Rules: Rule 6 and 

Rule 80. The fact that the sanctions provided do not include 

the sanction sought here (whether because the Commission had 

questions about its authority to impose costs and attorney's 

fees or because it decided as a matter of policy not to impose such sanctions), it is clear that the regulations 

with the question. Therefore, under Commission Rule 1, it 

is unnecessctry to look to the Federal Rules of Civil Procedure for guidance. 

II. RULE 11 

Assuming the applicability of Rule 11 FRCP as a guide, 

do the facts of this case justify the imposition of costs 

and attorney 1 s against the Secretary? 

Rule 11, as I stated earlier, provides that a court 

may impose sanctions, including costs and attorney's fees, 

on a person who signs a pleading or other paper unless to 

the best of his knowledge and belief is well grounded in 

fact and warranted by existing law or a good faith argument 

for the extension, modification, or reversal of existing 

1273 
law. After the rule was amended in 1983, it became unnecessary to find subjective bad faith to impose sanctions under 

the Rule. Zaldivar v. City of Los Angeles, 780 F.2d 823 

(9th Cir. 1986); Rodgers v. Lincoln Towing Service, Inc., 

771 F.2d 194 (7th Cir. 1985); Westmoreland v. CBS, Inc., 770 

F.2d 1168 (D.C. Cir. 1985); Weisman v. Rivlin, 598 F. Supp. 

724 (D.D.C. 1984). Nevertheless, like all rules which permit 

or mandate the assessment of costs for abuse of process, the 

rationale "is punitive rather than promotional or enabling. 

[Its] purpose is to punish and deter certain specific and, as 

a rule, narrowly defined forms of procedural abuse." I 

DERFNER & WOLF, COURT AWARDED ATTORNEY FEES, § 5.03[11]. 

Rushton's brief assumes that it is self-evident, or at 

evident from the record made this case, that the 

Secretary's Answer in the contest case and his Petition in 

the penalty case did not meet the requirements of Rule 11 

that the papers filed were to the best of the knowledge, information and beli of the attorneys filing them well 

grounded in fact and warranted by existing law or a good 

faith argument for the extension, modification or reversal 

of existing law. But there was no adjudication on the merits 

of the issues raised. Indeed, there were no legal briefs 

filed addressed to the propriety of the order involved here. 

So far as I am aware, there is no Commission or Administrative Law Judge decision on the merits of the issue raised 

concerning this order. Therefore the record before me is 

limited to the testimony and exhibits addressed to the order 

and its propriety, and the fact that after hearing, the 

Secretary moved to withdraw the penalty petition as related 

to the order and to vacate the order. Rushton did not object to the motion and it was granted. It would be presumptuous in the extreme on the basis of such a record to conclude that the documents in question were led by o cers 

of the court without the belief that they were well grounded 

in fact and warranted by law. I don't know and the record 

does not show what inquiry was made prior to the ling of 

the documents and, absent an adjudication on the merits, 

there is no way I could determine whether they were well 

grounded in and warranted by law. Therefore, even if 

Rule 11 ied to Conunission proceedings, I would conclude 

that this record s not show that it was violated. 

ORDER 

Based upon the above findings of fact and conclusions 

of law, IT IS ORDERED that Rushton's request for an award of 

1274 
litigation expenses as a sanction under Rule 11, Federal 

Rules of Civil Procedure, IS DENIED. 

~i i'tu~s _M:-z.'c&'!:/l {_~L James A. Broderick 

.... Administrative Law Judge 

Distribution: 

Joseph T. Kosek, Jr., Esq., Rushton Mining Co., Box 367, 

Ebensburg, PA 15931 (Certified Mail) 

Linda M. Henry, Esq., Office of the Solicitor, U. S. Department of Labor, 3535 Market St., Philadelphia, PA 19104 

(certified Mail) 

1275 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

LOCAL UNION 

UNITED MINE 

(UMWA) 

v. 

CLINCHFIELD 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 2 31987 

2274, DISTRICT 28, COMPENSATION 

WORKERS OF AMERICA 

Complainant . . Docket No. VA 

McClure No. l 

COAL COMPANY, 

Respondent 

DECISION 

Before: Judge Gary Melick 

PROCEEDING 

83-55-C 

Mine 

This case is before me on remand from the Commission 

to determine whether certain allegations of violations cited in a 

section 104(d)(l) citation and three section 104Cd)(l) withdrawal 

orders provide the required nexus between the section 107(a) 

imminent danger withdrawal order at bar and an underlying 

violation of a mandatory standard.l/ The Commission further 

directed that if such a relationshTp is found to exist then 

appropriate action should be taken to identify affected miners 

and determine the amount of compensation due each min~r. 

!/Statutory references herein are to the Federal Mine Safety 

and Health .Act of 1977v 30 u.s.c. § 801 et.~, the "Act". The 

remand order was based upon the Commission 1 s decision in Local 

Union 1889v District 17, UMWA v. Westmoreland Coal Company, 8 

FMSHRC 1317 {1986)f that a section 107(a) orderf whether as 

issued or subsequently modified, need not itself allege a 

violation of a mandatory standard in order to trigger entitlement 

to the one-week compensation provisions under Section 111 of the 

Acto The Commission also concluded therein that allegations of 

violations subsequently cited may supply the required nexus under 

section 111 between the section 107(a) imminent danger order and 

an underlying violation of a mandatory standard. 

1276 
In this case the UMWA seeks one-week compensation pursuant 

to section 111 of the Act for certain miners employed by the 

Clinchfield Coal Company (Clinchfield) as of June 23, 1983.2/ In 

conjunction with the motion for summary decision now before-me 

the parties stipulated that "a causal nexus existed between the 

107(a) order issued to Clinchfield's McClure No. 1 Mine on June 

23, 1983, and a violation of a mandatory standard in the McClure 

No. 1 Mine." The parties also stipulated to a list of miners on 

whose behalf the UMWA was seeking compensation, their rates of 

pay as of June 23, 1983, and the amount of compensation sought on; 

behalf of each of those miners. 

As stated in the UMWA motion, the compensation claim at bar 

arose following an underground explosion at the McClure No. 1 

Mine on June 21, 1983. Subsequently at 4:00 a.m. on June 22, 

1983, the Federal Mine Safety and Health Administration CMSHA) 

issued a Section l07(a) "imminent danger" withdrawal order 

covering the entire mine. The motion further states that on 

March 26, 1984, MSHA issued one section 104Cd>Ci> citation and 

four section 104(d){l) withdrawal orders, of which three alleged 

that the cited violations had resulted in a methane ignition 

which caused the explosion. Clinchfield did not contest the 

citations or orders ~nd paid the civil penalties assessed by MHSA. 

On September 30, 1983, the UMWA filed this claim for one-week 

compensation under section 111 of the Act. 

In its opposition to the motion for summary decision 

Clinchfield argues that the prerequisites for awarding the 

one-week compensation under section 111 of the Act have not been 

met. Clinchf ield argues that the ininers were not "idled by" an 

order issued "for a failure for the operator to comply with any 

mandatory health or safety standards" as that section requires. 

Clinchfield observes that this argument has been rejected by the 

Commission in the September 26v 1986, decision (8 FMSHRC 1310) 

remanding this.case for the instant proceedings but submits the 

argument to preserve its appeal rights" 

. ~/Section Ill provides, as relevant hereto, as follows~ 

If a coal or other mine or area of such mine {s closed by an 

order issued under section 104 or section 107 of this title for a 

failure of the operator to comply with any mandatory health or 

safety standards, all miners who are idled due to such order 

shall be fully compensated after all interested parties are given 

an opportunity for a public hearing, which shall be expedited in 

such cases, and after such order is final, by the operator for 

lost time at their regular rates of pay for such time as the 

miners are idled by such closing, or for one week, whichever is 

the lesser. 

1277 
Indeed it is clear that Clinchfield's argument has been 

rejected by the Commission and within the framework of the 

stipulations presented herein it is established that the miners 

at issue were in fact "idled by" an order issued "for a failure 

of the operator to comply with any mandatory health or safety 

standard" as required by section 111. The UMWA Motion for 

Summary Decision is therefore granted. Commission Rule 64, 29 

C.F.R. § 2700.64. The miners are accordingly entitled to 

one-week compensation under that section 111 of the Act. 

The UMWA is also seeking interest on the compensation 

awarded in these proceedings dating from July 13, 1983. The 

award of interest is indeed consistent with the decisions of this 

Commission and the purposes of section 111 of the Act. It is 

accordingly awarded in this case. Mine Workers, Local 5869 v. 

Youngstown Mine Corporation, 1 FMSHRC 990 (1979): Peabody Coal 

Company v. Mine Workers, 1 FMSHRC 1785 (1979). Such interest 

shall be calculated in accordance with the formula set forth by 

the Commission in Bailey v. Arkansas-Carbona Company and Walker, 

5 FMSHRC 2042 (1983). While the UMWA points out that the 

National Labor Relations Board has recently adopted a revised 

procedure for computing interest on back pay awards in light of 

the Tax Reform Act of 1986 (see New Horizons for the Retarded, 

Inc., 283 NLRB No. 181, (May 28, 1987) this Commission has not 

adopted the revised formula. The UMWA request for costs and 

attorneys fees is denied. Aleyeska Pieline Service co. v. The 

Wilderness Society et al., 421 U.S. 240 (1975). 

ORDER 

Clinchf ield Coal Company is hereby directed to pay the 

following miners the noted compensation plus interest from 

July l3p 1983p in accordance with the formula set forth in 

v. Arkansas-Carbona Company and Walkerp 5 FMSHRC -:::-=-...,.-.,,--::--::.-... - ) g 

Miner 

Vi 1 Lee Fuller 

Garneth Duty 

Jerry Martin 

Homer Gouge 

Darr Jo Mccowan 

Jer Ao Hibbitts 

Billy J. Coffey 

Millard Harris 

Danny McConnell 

(8:00 a.m. - 4:00 p.m. Shift) 

Compensation 

$505.70 

505.70 

536.60 

536.60 

496.80 

505.70 

491.60 

505.70 

491.60 

.l278 
Edward M. Miller 

Roger D. Austin 

Kenneth Stacy 

Sherman Matney 

Sammy M. Smith 

Randy Beverly 

James R. Stevens 

Edgar B. Moore 

Bobby Murphy 

Ollie Stanley 

Junior Rainwater 

Richard H. Baker 

Joseph A. Counts 

Robert L. Seitz 

David R. Fuller 

Jimmy L. Honaker 

Harold B. Honaker 

Nancy E. Mullins 

H.D. Vencil 

Dewey E. Stanley 

Carrol Rasnick 

James W. Mullins 

Jerry W. Owens 

Ronald M. Mann 

Kemper Hill, Jr. 

Garnice Hill 

George P. Willis 

Gaye N. Little 

Demus A. Stanley 

Roger L. Bentley 

Kenneth L. Fleming 

Ronald L. Welch 

Randall L. Campell 

C.E. Edwards 

Fred Allen Mullins 

Bobby A. Wampler 

Billy B. Rose 

Willis D. Rasnake 

Larry G. Woods 

Forgy Ray Pennell 

Lowell Bise 

Randy Smith 

Billy G. Mullins 

Marquis R. Neece 

Michael w. Blackson 

Jerry Deel 

J.C. Vance 

James c. Stanley 

Michael D. Rose 

John B. Yates 

536.60 

536.60 

536.60 

499.90 

505.70 

491.60 

536.60 

493.90 

536.60 

536.60 

506.60 

506.60 

536.60 

505.70 

493.90 

536.60 

493.90 

505.70 

491.60 

499.45 

499.90 

493.90 

536.60 

493.90 

493.90 

536.60 

536.60 

499.90 

517.70 

499.90 

499.90 

505.70 

493.90 

493.90 

505.70 

476.90 

496.80 

536.60 

536.60 

493.90 

536.80 

505.70 

536.80 

493.90 

536.60 

505.70 

493.90 

536.60 

505.70 

505.70 

1279 
Danny Hughes 

Clint J. Owens 

Jim W. O'Quin 

Trinkle L. O'Quin 

Ron J. Baker 

Raymond K. Breeding 

Paul Owens 

Gary Souleyrette 

Wally V. Kennedy 

Olaf D. Kennedy 

Donald Duncan 

Michael R. Kennedy 

William c. Bolling 

Michael J. Rasnick 

Richard w. Hughes 

Rodney A. Shortt 

Steve L. Hale 

Lee Vern O'Quinn 

William Fletcher 

Samuel J. Clay 

Bobby L. Sykes 

James D. Meade 

Jack D. Yates 

Randall.C. Hamilton 

Clifford D. Boyd 

Don B. Hall 

Paris Collins 

Randy Wireman 

Bascome H. Taylor 

Claude Turner, Jr. 

Earl B. Willis 

Larry D. Boyd 

George H. Owens 

Mark Kennedy 

Hobert TaylorvJro 

John K. Brooks 

Raymond E. Sykes 

Barry M. Hall 

George Po Thomas 

Norman Lewis 

Miner 

493.90 

493.90 

487.70 

505.70 

536.60 

536.60 

493.90 

493.90 

536.60 

536.60 

536.60 

462.45 

505.70 

493.90 

536.60 

548.60 

496.80 

505.70 

505.70 

321.66 

505.70 

505.70 

491.60 

491.60 

505.70 

536.60 

536.60 

536.60 

496.80 

536.60 

493.90 

536.60 

548.60 

516.25 

552090 

493.90 

536.60 

536.60 

477.15 

542.60 

Compensation 

(4~00 Porn. Midnight Shift) 

Lois Bowman 

Joseph Brummett 

Gregory Austin 

Ardie E. Phillips 

Teddy Tiller 

$505.90 

505.90 

548.60 

548.60 

548.60 

1280 
Robert N. Phipps 

Freddie J. Fultz 

Lee O. Ratliff 

Danny C. Edwards 

Ricky L. Austin 

Avery Boyd 

Michael James 

Joe Kiser 

Danny R. Mullins 

Davids. Yates 

Walter A. Deel 

Paul v. Payne 

Donald Williams 

William C. Jackson 

Henry Larry Phipps 

David L. Stanley 

Gary Lee Moore 

Lonny F. Deel 

Earnest E. McCoy 

Darrell W. Thomas 

Thelma Deel 

Dennis Wagner 

Len vi Mullins 

Randy Breeding 

John Mullins 

Everette Miles 

Kemper Damron 

Earl Turner 

.James Stapleton 

Gallie Greene, Jr. 

Evelyn Delaney 

James A. Stanleyu Jr. 

Mi Lane 

James W. Hamilton 

Ao Paul Blevins 

Urban Bartley 

Ronnie Brown 

Kellis c. Barton 

Kile Spangler 

Robert M. Dixon 

Danny L. Chaff in 

Sarah w. Rose 

Curtis W. Franks 

Jim R. Mullins 

Tim Ruff 

Jason E. McKinney 

Jerry L. Jenkins 

Steve J. Hamilton 

Greg S. Flaming 

Jim R. Hearl 

517.70 

505.90 

548.60 

505.90 

517.70 

505.90 

517.70 

517.70 

517.70 

517.70 

548.60 

548.60 

517.70 

505.90 

548.60 

548.60 

548.60 

548.60 

548.60 

478.80 

517.70 

548.60 

517.70 

548.60 

548.60 

517.70 

548.60 

548.60 

505.90 

505.90 

517.70 

548.60 

548.60 

508.80 

517.70 

508.80 

505.90 

548.60 

548.60 

548.60 

508.80 

517.70 

548.60 

219.44 

517.70 

548.60 

508.80 

517.70 

517.70 

548.60 

1281 
Bob J. Martin 

James E. Holbrook 

James Wagner 

Abraham P. Stevens 

Victor Wallace 

Randy D. Lane 

Wade P. Mullins 

Herbert Johnson 

William R. Johnson 

Miner 

505.90 

548.60 

548.60 

548.60 

548.60 

548.60 

548.60 

517.70 

505.90 

Compensation 

(Midnight - 8:00 a.m. shift) 

Fred A. Counts 

William F. Hartsock 

Larry L. Fields 

Jerry L. Phillips 

Timothy Jennings 

Greg Phi ips 

Glen Meade 

Don C. Bush 

Joseph B. Stanley 

Margaret J. Mullins 

Charles Musick 

Dan Honaker 

Laurence Skidmore 

Bill v. Brooks 

Felix J. Boyd 

Earl Castle, Jr. 

Dan R. Musick 

Carter Harrison 

David lmer 

Lisa Dingus 

Charlene 1 

Sue Ellen Fleming 

Oliver B. Rasnake 

Harold D. Stevens 

Marvin E. Counts 

Gary L. Stallard 

Gary N. Mullins 

Leonard Taylor 1 Jr. 

Steve Viers 

Ron G. McReynolds 

Ron D. 

Maynard F. Heaton 

Walter L. Browning 

James Gray Puckett 

Thermon H. Powers 

Jim D. Sexton 

552.60 

509.90 

509.90 

509.90 

527.60 

509.90 

552.60 

512.80 

552.60 

509.90 

552.60 

552.60 

509.90 

552.60 

509.90 

249.21 

509.90 

552.60 

552.60 

552.60 

552.60 

520.00 

552.60 

520.00 

512.60 

552.60 

552.60 

509.90 

520.00 

552.60 

552.60 

552.60 

552.60 

512.80 

509.90 

512.80 

1282 
Ernie J. Meade 

Robert E. O'Quinn 

Robert c. Bailey 

Clyde Harris 

David L. Stanley 

Bob D. Wolfe 

H. Fayne Rasnick 

Bill R. Robinson 

James Turner 

Jeff H. Greear 

Ted R. Smith 

Tony P. Owens 

Joe F. Harrison 

Jiles R. Branham 

Lacy P. Couch 

Jerry D. Childress 

Irene J. Castle 

Anthony Lynch 

Darrell Perkins 

Lawrence Carico 

Charles R. Senter 

Ramey Presley 

Sam W. C. Hughes 

Harold R. Hall 

Gleason R. Austin 

Bill R. Jessee 

Bill G. Large 

William w. Carty 

Walter R. Owens 

James S. Johnson 

R.R. Trent, Jr. 

Ron Go Arney 

William Ao Patton 

Paul Vo Kennedy 

Dennis Steffey 

Dennis King · 

Harless Mullins 

George J. Hughes 

Jim Edwards 

Wiley R. Compton 

Charles L. Ventre 

Richard Neilson 

John Hobson 

Harry T. Mullins 

G.C. Rasnick 

Glen Fo Gillenwater 

Bobby Hawkins 

Benny Vance 

David W. Lee 

Joe Tate 

1283 

515.90 

552.60 

509.90 

509.90 

203.96 

509.90 

552.60 

552.60 

552.60 

552.60 

512.80 

552.60 

552.60 

552.60 

552.60 

527.60 

509.90 

509.90 

521.60 

552.60 

509.90 

506.70 

516.32 

516.32 

550.56 

534.56 

534.56 

524.80 

524.80 

524.80 

524.80 

524.80 

524.80 

534056 

550.56 

536.80 

534.56 

536.80 

536.80 

536.80 

536.80 

550.56 

536.80 

536.80 

536.80 

536.80 

536.80 

536.80 

550.56 

550.56 
' Ben Collins 

Hermon Brooks 

Jim Martin 

Bill West 

William E. Lester 

Harold A. Vanover 

Barbara A. Artrip 

Distribution: 

550.56 

550.56 

550.56 

524.80 

510.00 

534.56 

510.28 

L w Judge 

John T. Scott, Esq., and Timothy Biddle, Esq., Crowell & Moring, 

1001 Pennsylvania Ave., NW, Washington, DC 20004-2505 (Certified 

Mail) 

Earl R. Pfeffer, Esq., UMWA, 900 15th St. NW, Washington, DC 

20005 (Certified Mail) 

Edward H. Fitch, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Blvd., Arlington, VA 22203 (Cer,tified 

Mail) 

nt 

1284 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 2 4 1987 

WILLIAM C. FANKHAUSER, DISCRIMINATION PROCEEDING · Complainant 

v. Docket No. LAKE 87-33-D 

GEX HARDY, INC., 

Respondent 

MORG CD 87-04 

ORDER OF DISMISSAL 

Before: Judge Melick 

The Complainant William Fankhauser, requests. to withdraw his 

Complaint in the captioned case after conferring with an attorney 

and "due to the fact that there were no incidents involving any 

safety or health violations". Under the circumstances herein, 

permission to withdraw is granted. 29 C.F.R. § 270 .11. This 

case is therefore dismissed and the hearing previo · ly schedul 

is cancelled. } 

Distribution~ 

il-/ 

I 

dary Mel· ck 

Administ ative udge 

Mro William Co Fankhauserv Po Oo Box 6, undee, OH 44624 

(Certified Mail) ~ 

I 

I ,. I 

GEX Hardyv Inc.v Box 408v Flushing, OH 43977 (Certified Mail) 

nt 

1285 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 28, 1987 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PHELPS DODGE CORPORATIONTYRONE BRANCH, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 87-2-M 

A. C. No. 29-00159-05516 

Tyrone Mine & Mill 

DECISION APPROVING SETTLEMENT 

ORDER TO PAY 

Before: Judge Merlin 

This is a civil penalty proceeding arisirig under the Federal 

Mine Safety and Health Act of 1977 (Act). 30 U.S.C. § 801 ~ ~· 

The Secretary of Labor, charged the operator, Phelps Dodge Corporation, with a violation of 30 C.F.R. § 56.16001. The violation was issued as a result of an accident in which one man was 

killed and another seriously injured. 

On April 27, 1987, the parties submitted a motion to approve 

a settlement in the amount of $192 which was the originally 

assessed amount. 

On May 6~ 1987~ I issued an order disapproving the recommended settlement~ explaining.why the recommendations of the 

parties could not be accepted. 9 FMSHRC 920 (May 1986). 

On June 2, 1987, at the request of counsel, a telephone conference call was held. Counsel advised that they had attempted 

to address the concerns expressed in the disapproval of settlement and requested permission to submit a revised settlement 

motion. I granted the request. 

On June 19, 1987, the parties submitted the revised motion 

seeking approval of a settlement in the amount of $3,840. 

Thereafter, on June 25, 1987, pursuant to counsels' request, 

another telephone conference call was held to discuss the revised 

motion. I advised that most of the proposed findings and 

conclusions were acceptable, but stated that based upon MSHA 1 s 

Accident Investigation Report, and other materials of record, a 

finding of 11 low negligence 11 was not acceptable. Counsel 

1286 
requested permission to submit another settlement motion, which 

request was granted. 

On July 7, 1987, a third motion was submitted which proposed 

a settlement of $5,000. After a review of .this motion, I am 

satisfied that the recommended findings and conclusions set forth 

therein are in accordance with the record and that the settlement 

amount satisfies the requirements of the Act. 

The subject Citation, No. 26620005, dated January 8, 1986 

describes the condition as follows: 

Two employees of an independent contractor 

were seriously injured on November 25, 1985, ~nd one died on December 19, 1985, when a 

bundle of three, 12 inch by 45 feet long pipe 

that were banded together slid from a stack 

and pinned the victims between pipe on the 

ground they were attempting to put a choker 

on, and the falling bundle. The pipe had 

been stacked about one week prior to the accident by an employee of the production-operator in a manner that contributed to a fall of 

material hazard in that the south stack of 

five bundles of pipe had three pipe in the 

.bottom bundle, three pipe in the next bundle 

and four pipe in the top three bundles, 

resulting in a total height of approximately 

5-1/2 feet. The top bundle of four pipe in 

the south stack apparently slid to the north 

and pushed the three pipe off the north pile 

onto the victims. 

The mandatory standard, 30 C.F.R. § 56.16001, requires that: 

Supplies shall not be stacked or stored in a 

manner which creates tripping or fall-ofmaterial hazards. 

The MSHA Accident Investigation Report sets forth these 

facts: Phelps Dodge Corporation contracted with Hamilton Western 

Construction Company, Inc., to install a 6,000-foot-long 12-inch 

dewatering pipeline. This arrangement required that Hamilton 

Western lay the pipeline in accordance with a provided design 

while Phelps Dodge was to provide, among other items, the plastic 

pipe specified. Phelps Dodge purchased the required pipe which 

was delivered to the mine-site by common carrier. As in previous 

deliveries, the pipe was received by Phelps Dodge warehousing 

personnel who unloaded the pipe with a Phelps Dodge forklift. 

The pipe was unl~aded and stacked at a predetermined location 

ahead of the approaching pipeline construction. The pipe in 

question was delivered and unloaded on November 12, 1985, 

thirteen days before the accident. A total of 49 pipes was de1287 
livered packa~ed in seven 3-pipe and seven 4-pipe bundles. The 

pile nearest the pipeline contained three 4-pipe bundles overlain 

by two 3-pipe bundles (north stack). Abutting this pile on the 

south was a 22-pipe pile consisting of two 3-pipe bundles on top 

of which were stacked four 4-pipe bundles (south stack). This 

pile was inherently unstable since the base bundles were 12 3/4 

inches narrower than the width of 16 pipe lengths it supported. 

During preceding pipe-laying activity, pipe bundles were reportedly stacked only 2 or 3 units high (approximately 43.5 inches). 

On this occasion, however, the bundles were stacked 6-high (87 

inches). The crew, therefore, was faced with a significantly 

different set of physical conditions. The pipeline construction 

crew consisted of a crane operator and two laborers. They had 

previously received their work assignment and proceeded to the 

jobsite without their supervisor's presence. The crane operator 

moved a cherry picker into hoisting position as the first laborer 

readied the fusion equipment. The crane operator began cutting 

the steel-securing bands of the top 3-pipe bundle of the south 

stack nearest the crane. He cut 5 of the 6 bands and, positioning himself in the clear, cut the last band. This allowed the 

3-pipes to fall to the ground on the south side of the steel service pipeline. He then obtained hoisting slings while the second 

laborer positioned a dozer to drag fused lengths of pipe away 

from the fusion machine. As the crane operator was attaching the 

hoisting sling to the first pipe on the ground, the remaining 

3-pipe bundle of the north stack slid to the ground landing on 

top of him and pinning the second laborer's right leg, against the 

steel service pipeline. Apparently at the same time the top 

4-pipe bundle of the south stack also slid off to the north and 

across the pipe bundle lying atop the crane operator. Twentyfour days later the crane operator died of his injuries. The 

second laborer suffered a broken leg. 

The Accident Investigation Report described the cause of the 

accident in this manner: 

The direct cause of this accident was the 

failure to recognize the instability of the 

irregularly stacked pipe bundles. 

Possibly contributing to this accident 

was the fact that the crew members were not 

accustomed to working with pipe piled higher 

than 2 or 3 bundles. In this accident the 

bundles were stacked 6-high. The light rainfall of the past night may have created even 

greater pi re i n stab i 1 it y; vie t p 1 as ti c pi p e 

presents a very slippery surface. 

The most recent settlement motion analyzes the cause of the 

accident as follows~ 

1288 
Both the citation and the investigation 

report identify as a cause of the accident 

the manner in which the pipes were stacked. 

While these statements were made, the only 

apparent problem with the stacking of the 

pipe was that the south stack of pipes consisted of two 3-pipe bundles on top of which 

were stacked four 4-pipe bundles. The 

apparent problem was mitigated by the established and usual procedure of Hamilton in 

removing the top bundle of pipe from the 

stacks first. By removing the highest bundle 

first any problem with undercutting the support of bundles at a higher elevation would 

be eliminated. Hamilton 1 s employees failed 

to follow this procedure when they removed 

the fifth bundle from the north stack before 

they removed the sixth bundle from the .south 

stack. Had Hamilton's employees followed 

this procedure the hazardous condition would 

have been minimized and in all likelihood 

eliminated. The apparent problem with the 

stacking of the pipe was further mitigated by 

the fact that there was no shifting of the 

pipe between the second row (3-pipe bundle) 

and the third row (4-pipe bundle) of the 

south stack. Rather the movement of pipe 

occurred between the fifth and sixth stacked 

bundles and then the fourth and fifth stacked 

bundles of the south stack. The apparent problem with the stacking of the pipe was 

effected by considerable mitigating 

circumstances. 

During the first conference call I inquired about the liability, if any, of the independent contractor. The settlement 

motion advises in this respect: 

Hamilton, the independent contractor, was.not 

issued a citation even though the accident 

would not have occurred had its employees 

removed the top or sixth bundle from the 

south stack before removing the fifth bundle 

from the north stack in accordance with the 

usual procedure. However, the Mine Safety 

and Health Administration was unable to 

determine that the contractor Hamilton violated any mandatory standard applicable to 

the conditions. 

The fact that the independent contractor was not cited does 

not, of course, increase the operator's liability with respect to 

the acts for which it is responsible. Nor does it affect 

1289 
a determination as to what constitutes an appropriate penalty in 

this proceeding. However, in light of the inability to cite the 

independent contractor in this case, the Secretary may wish to 

re-examine the relevant mandatory standards. 

I find that the accident had multiple causes, one of which 

was the way the operator stacked the pipes. Another was, as the 

parties represent, the way in which the independent contractor 

removed the pipes. Based upon the record and in light of the 

representations of the parties, I conclude that the occurrence 

was extremely serious and the operator was negligent. In 

addition, the operator 1 s size is large; its history of violations 

is small; imposition of the recommended penalty will not affect 

ability to continue in business; and there was good faith 

abatement. 

In light of the foregoing, the recommended settlement is 

APPROVED and the operator is, if it has not done so already, 

ORDERED TO PAY $5,000 within 30 days of the date of this 

decision. 

Paul Merlin 

Chief Administrative law Judge 

Distribution: 

Eve Chesbro, Esq., Office of the Solicitor, U. S. Department of 

Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202 

(Certified Mail) 

Thomas A. Mascolino, Esq., Counsel. Trial Litigation, Office of 

the Solicitor, U. S. Department of Labor, Suite 400, 4015 Wilson 

Boulevard, Arlington, VA 22203 (Certified Mail) 

G, Starr Rounds, Esq., Robert L. Dysart, Esq., Evans, Kitchel & 

Jenckes, P. C., 2600 North Central Avenue, Phoenix, AZ 

85004-3099 (Certified Mail) 

Mr, Richard E. Rhoades, Manager, Phelps Dodge Corporation-Tyrone 

Branch, P. O. Drawer B, Tyrone, NM 88065 (Certified Mail) 

I g l 

·1290 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE. 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 2 91987 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

Docket No. CENT 86-119 

A. C. No. 41-00356-03538 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

TEXAS UTILITIES GENERATING 

COMPANY, 

Respondent 

. . 

DECISION 

Sandow Mine 

Appearance: Thomas F. Lillard, Esq., Christopher R. Miltenberger, 

Esq., Worsham, Forsythe, Sampels, and Wooldridge, 

Dallas, Texas, for the Respondent; 

Max A. Wernick, Esq., Jill D. Klamm, Esq., Office of 

the Solicitor, U. s. Department of Labor, Dallas, 

Texas, for the Secretary. 

Before: Judge Weisberger 

Statement of the Case 

On August llr 1986, the Secretary (Petitioner) filed a 

Petition for Assessment of Civil Penalty for alleged violations 

by the Respondent 30 C.F.R. § 77.501 and 30 C.F.R. § 77.509. 

Respondent filed Answer on September 2, 1986. Pursuant to 

notice, the case was heard in Austin, Texas on December 23, 1986. 

William J. C ielka testified for the Petitioner, and Garren 

Stroud, Thomas Nelson, and Robert Freyensee testified for the 

Respondent. After taking testimony from the above persons, the 

hearing was adjourned to allow the Parties to brief the issue as 

to whether Respondent would be allowed to cross-examine Inspector 

C ielka with regard to prior inconsistent statements and 

actions indicating bias. The Parties submitted Br fs and Reply 

Briefs. On February 4, 1987, an Order was issued allowing 

Respondent to further cross-examine Insoector Ciesielka. on 

February 19, 1987, Petitioner filed~a Motion for Continuance 

which was not opposed by the Respondent. The motion was granted, 

and the case was acheduled for April 7, 1987, in Austin, Texas. 

On March 16, 1987, Petitioner filed a Motion for Indefinite stay. 

This motion was denied in an Order of March 19, 1987. On 

1291 
April 11 , 1987, Petitioner filed with the Commission a Petition 

for Interlocutory Review of the Orders dated February 4, 1987 and 

March 19, 1987, and also made a Motion to Suspend the hearing 

scheduled for April 7, 1987. The Commission, in an Order dated 

April 6, 1987, denied the Secretary's Petition for Interrogatory 

Review and also denied to stay the hearing scheduled for April 7, 

1987. At the hearing, William J. Cieslelka testified for the 

Petitioner, and Paul Teinert, III, Garren Stroud, Robert 

Freyensee, Gary Lane, Sam Philip Jordan, and Jim Roach testified 

for the Respondent. 

Petitioner filed its Brief and proposed Findings of Fact on 

June 18, 1987, and Respondent filed its Brief and proposed 

Findings of Fact on June 19, 1987. Reply Briefs were filed by 

Petitioner and Respondent on June 28 and June 29, 1987, 

respectively. 

Stipulations 

The Parties have stipulated as follows: 

a. The undersigned has jurisdiction over the Parties and 

subject matter in this proceeding. 

b. The Sandow Mine No. 1, Mine I.D. No. 41-00356-03538, had 

an annual tonnage in 1985 of 6,252,848. At the time of the 

December 23, 1986 hearing, the projected tonnage of 1986 was 5.5 

million. 

c. The Respondent had 39 inspection days in 1983; 36 in 

1984; 44 in 1985; and 18 in 1986; and 77 over the previous 24 

months. 

d. Respondent had 5 assessed violations in 1983; 29 in 

1984? 60 in 1985; and 82 assessed violations over the previous 24 

months. 

e. The fine proposed by Petitioner will not adversely 

affect the Respondent's ability-to continue in business. 

f. William Ciesielka, the Mine Safety and Health 

Administration ( 11MSHA") Inspector, who issued the contested 

citations, was~ duly authorized representative of the Secretary. 

g. On February 26, 1986, an inspection was conducted by 

an authorized representative, William Ciesielka, which resulted 

in the issuance of the two orders which are in issue. 

h. The orders were issued with regard to two employees who 

were involved in the digging of a trench, in a substation area, 

that included a transformer that received 33,000 volts of power 

coming into the transformer. 

1292 
i. The two employees involved, in digging the ditch, were 

pick and shovel men, and were· not electrically qualified 

personnel within the meaning of the Act and the regulations. 

j. The two employees, in the substation area, did not work 

on electrical switches. All work on the electrical circuits or 

switches had been done prior to the entry of the two employees 

into the substation area. 

k. The switch coming out of the transformer had energized 

lines going into the top of the switch, and the switch was in the 

open position. The switch was not tagged at the time of the 

inspection. 

1. The trench, being dug by the two employees, was 10 feet 

long, and located approximately 2 to 4 feet from the bottom of 

the switch. 

m. The switch or circuit breaker was capable of being 

locked. 

n. The abatement of Order No. 2838513 occurred within 3 

minutes of notification of the alleged violation. The operator 

removed the two employees from the area and undertook efforts to 

activate the disconnect which prevented the 33,000 volts from 

flowing into the transformer. 

o. The abatement of Order No. 2838513 occurred within 10 

minutes of issuance. The operator pulled the power, which 

prevented electricity from going into the transformer station, 

and the pole used to pull the circuit breaker was tagged. 

p" The electrical work being performed was confined to the 

480 volt circuit breaker switch. 

Issues 

The issues are whether the Respondent violated 30 C.F.R. 

§ 77.501 and 30 C.FoR. § 77.509(C)u and, if so, whether the 

violations were of such a nature· as could significantly and 

substantially contribute to the cause and effect of a mine safety 

or health hazard, and whether the alleged violations were the 

result the Respondent's unwarrantable failure. If sections 

77.501, supra, and 77.509(c), supra, have been violated, it will 

be necessary to determine the appropriate civil penalty to 

assessed in accordance with Section llO(i) of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C §et. ~, (the Act). 

1293 
Regulations 

30 C.F.R § 77.501, as pertinent, provides as follows: 

No electrical work shall be performed 

on electric distribution circuits or 

equipment, except by a qualified person or by 

a person trained to perform electrical work 

and to maintain electrical equipment under 

the direct supervision of a qualified person. 

Disconnecting devices shall be locked out and 

suitably tagged by the persons who perform 

such work, except that in cases where locking 

out is not possible, such devices shall be 

opened and suitably tagged by such 

persons •••• 

30 C.F.R. § 77.509(c) provides as follows: 

xx x 

"(c) Transformer enclosures shall be kept locked 

against unauthorized entry." 

Findings of Fact and Conclusions of Law 

Order No. 2838513 

Order No. 2838513 which was issued by MSHA Inspector William 

Jo Ciesielka on February 26, 1986, provides as follows: 

The 33 KV 2480 Transformer located at the 

bucket repair shed was not kept locked 

against unauthorized entry in that two 

mechanics (not electrical qualified) were 

inside the enclosur~ digging a trench. A 

qualified electrician was not at the site to 

directly supervise the work. A maintenance 

supervisor was in the area where he could 

observe the situation. Therefore this is an 

unwarrantable violation. 

The substation in question, located at Respondent's Sandow 

Minev contained a transformer, disconnecting device, and other 

electrical equipment, and was enclosed by a chain-link fence. 

According to the uncontradicted testimony of Respondent's 

witnesses, on February 26, 1986, Respondent's Electrical Foreman 

Garren Stroud instructed Respondent's electrician, Royce Mundine, 

1294 
to cutoff the power at the main breaker in this substation, 

remove the power cable from the bottom of the breaker, and remove 

the cable from the substation area so that a trench could be dug 

running from underneath the breaker box to the edge of the fence. 

After the electrical cables were disconnected, Stroud explained 

to Respondent's supervisor, Thomas Nelson, that a trench or ditch 

had to be dug in the substation, and Mundine "laid it out" 

(Tr. 143). According to the testimony of Stroud, Mundine 

instructed Robert Yurk and John Bland, the two mechanics who were 

to dig the ditch, about the haeards that could exist within the 

substation fence. In contrast, it was the testimony of MSHA 

Inspector Ciesielka that when he subsequently arrived on the 

scene, on the date in question, Yurk told him that "I don't know 

what I am doing in here. This is an electrical job, and I know 

nothing about electric." (Tr. 23). In resolving the conflict 

between these versions, I note that Stroud's testimony was 

corroborated to some extent by Nelson who testified that he was 

present when Yurk was told, prior to time the ditch was dug, what 

he was to avoid making contact with. Also, Stroud was actually 

with Mundine on the date in question, and thus is competent to 

testify as to what Mundine said. On the other hand, Ciesielka 

was not privy to any conversations between Mundine and Yurk. 

Thus, based on the credible testimony of Stroud and Nelson, I 

find that Mundine told Yurk and Bland, in general, the hazards to 

avoid in digging the ditch. 

Further, according to the uncontradicted testimony of 

Nelson, Mundine was in the substation enclosure for about 15 

minutes while the trench was being dug by Yurk and Bland. Nelson 

testified that he had been told by Mundine that, in digging the 

trench, "back up at all time so you won't back into the breaker 

box" (Tr. 142). Nelson further testified that he was in the 

substation while the men dug the ditch and he stood inside 

between the gate and the breaker. Specifically, Nelson testified 

that he was standing at the gate when Ciesielka and the Union 

Representative Paul Tinert arrived at the scene on the date in 

question. In this regard, Nelson's testimony was, in essence, 

corroborated by Robert Freyensee, Respondent's superintendent, 

who arrived at the substation, on the date in question, along 

with Ciesielka. · On the other hand, Ciesielka testified that when 

he and Tinert approached the substation he observed two employees 

ins digging a trench, and that there was no other personnel 

inside. He also testified that when he arrived at the substation 

area, he observed Nelson coming up from the bucket shed area. In 

essence, Ciesielka's testimony was corroborated by Tinert. I 

carefully observed the demeanor of all the witnesses testifying 

on this issue, and find that Nelson and Freyensee were more 

credib 

1295 
Thus, inasmuch as the credible evidence establishes that 

Nelson, Yurk, and Bland were inside the substation, at the 

request of Stroud, and had been apprised by Mundine, in essence, 

to avoid contact with the electrical equipment, and inasmuch as 

Yurk and Bland.were being supervised by Nelson who was present in 

the substation, I find that the substation was unlocked to 

provide authorized entry. As such, I find that there has not 

been any violation by Respondent of 30 C.F.R § 77.509(c}. 

Order 02838514 

Order 02838514 provides as follows: 

Electrical work was being perform on an 

electrical distribution circuit without the 

disconnecting devices being locked out and 

suitably tagged by the persons doing such 

work. The circuit going from the 7200T0480V 

transformer at the bucket repair shed was 

being relocated and a trench dug in the 

substation area inside the fence. A 

maintenance supervisor was near by in the 

area during observance of this condition and 

the qualified electrician was away, returning 

later with the mechanical/electrical 

supervisor. Therefore, this is an 

unwarrantable violation. 

On the date in question, within the substation area in 

question, there was located a disconnecting device also referred 

to as switch box or circuit breaker. This item was located in a 

box that had a cover on ito It was stipulated that the box was 

not tagged~ but that the door was closedo There was no evidence 

that the door was lockedv but Ciesielka agreed that to open the 

box would necessitate undoing snapso A lever controlling power 

from the box w~s located outside the box, and was in a down 

position which would not allow electricity to flow out of the box. 

The lever was not lock or taggedo Cables at the top of the box 

were energizedv but they were insulatedo The box itself was not 

energized¢ Because the power cable had been removed from the 

boxp there was no power going from the box to buildings and there 

was also no power going to a number 6 cable coming out of a 

second transformer inside the fenced in areao 

In actuality there is no dispute that a disconnecting 

device, on the date in question, was not locked out and tagged. 

In essence, it is Respondent's position, that Section 77.501, 

supra, was not violated, inasmuch as all electrical work, in the 

substation, had already been completed when the disconnecting 

device was observed by Ciesielka to be untagged and unlocked. 

1296 
The second sentence of Section 77.501, supra, unequivocally 

prohibits having a disconnecting device that is not tagged or 

locked out. Although the first sentence of Section 77.501, 

supra, refers to persons performing "electrical work," there is 

no language in either of the two remaining sentences of Section 

77.501, supra, to limit their application only to instances where 

electrical work is actually being performed. The manifest intent 

behind the requirement of having disconnecting devices locked out 

is to prevent the hazard of a injury being caused by a person 

coming in contact with an energized object which has been 

energized by a person inadvertently activating the disconnecting 

device. Such a hazard is more likely when electrical work is 

being performed, but also exists if authorized persons are in the 

area performing other work. Accordingly, I find that Section 

77.501, supra, has been violated. 

The failure to tag or lock the disconnecting device can only 

be considered to be significant and substantial if, as a result 

of this violation, there is a measure of danger to safety 

contributed to, with a reasonable likelihood that the hazard 

contributed to will result in a injury of a reasonably serious 

nature (See Mathies Coal Company, 6 FMSHRC 1 (January 1984). 

Petitioner's argument that the violation herein of Section 

77.501, supra, is to be considered significant and substantial, 

appears to be predicated upon the testimony of Ciesielka, that, 

in essence, whenever a person is working in an area that has even 

low voltages there is a hazard of electrocution upon making 

contact with an energized part. However, the testimony of 

Ciesielka upon cross examination, and the uncontradicted 

t~stimony of Stroud, Respondent's supervisor of electricians, 

establishes that the circuit breaker (also referred to as 

disconnect boxf switch box or disconnecting device), itself was 

not energized" Furtherv their testimony establishes that the 

on way that one could come in contact with a energized part of 

the circuit breaker is to open it or shove something up the entry 

hole at the bottom of the device where the wire comes out. Also, 

although cables or conduits located on top of the breaker box 

were energized they were 6 and 1/2 feet off the ground and 

wrapped with insulation" Another breaker (Item 8 Respondent 1 s 

Exhibit 2)v was 8 feet off the ground. Also, although Ciesielka 

testified that there was a cable leading out of the breaker box, 

I find based upon the credible testimony of Stroud that it was 

not energized. Therefore, based upon all of the above, I 

conclude that, although the breaker box in question was not 

locked or tagged, it has not been established by Petitioner that 

this violation would have resulted in the likelihood of an injury. 

I thus conclude that the violation of Section 77.501, supra, was 

not significant and substantial. (See Secretary v. Mathies Coal 

Company, supra.) 

1297 
In its brief, Petitioner argues, in essence, that the fact 

that there was no lockout or tagging procedure on the 

disconnecting device constitutes "a serious lack of reasonable 

care." In this connection, Ciesielka testified that he 

considered the Respondent's negligence and rated it as "high" 

(Tr. 32). However, in discussing the Respondent's negligence, 

Ciesielka testified only to Respondent's alleged action in 

leaving unqualified people working without the direct supervision 

of a qualified person in an energized enclosure. He did not 

offer any analysis of Respondent's negligence with regard to the 

violation of Section 77.501, supra. Thus, I find that the 

Petitioner has failed to proffer sufficient evidence to support a 

finding that the violation by Respondent of Section 77.501, 

supra, resulted from its unwarrantable failure. 

I have considered all of the criteria in Section llO(i) of 

the Act. All criteria have been stipulated to except the 

Respondent's negligence and the gravity of the violation. I 

conclude that the gravity was extremely low due to the lack of 

likelihood of an injury as a consequence of the violation herein. 

Also, I find that Petitioner has failed to establish any degree 

of negligences on the Respondent's part. I therefore conclude 

that a fine of $20 is appropriate herein for the violation of 

Section 77.501, supra. 

ORDER 

It ORDERED that Order No. 2838513 be DISMISSED. It is 

further ORDERED that Order No. 2838514 be modified to a Section 

104(a) Citation. It is further ORDERED that Respondent pay the 

sum of $20, within 30 days of the date of this decision, as a 

c il penalty for the violation found hereino 

Distribution~ 

Avram Weisberger 

Administrative Law Judge 

Max Ao Wernick, Esq., Office of the Solicitor, U. s. Department 

of Labor, 525 Griffin Streetu Suite SOlf Dallas, TX 75202 

{Certified Mail) 

Christopher R. Miltenberger, Esq., Worsham, Forsythe, Sampels & 

Wooldridge, 2001 Bryan Tower, Suite 3200, Dallas, TX 75201 

Mr. Glen E. Hood, Texas Utilities Generating Company, 400 North 

Olive LB 81, Dallas, TX 75201 (Certified Mail) 

dcp 

1298 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

July 31, 1987 

GREENWICH COLLIERIES, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRA'fION (MSHA) 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEAL'rH 

ADM.INis·rR.l\TION (MSHA) 

Petitioner 

v. 

GREENWICH COLLIERIES, DIV/PA 

MINES CORP. I 

Respondent 

: 

: 

CONTEST PROCEEDING 

Docket No. PENN 86-17-R 

Order No. 2549665; 9/16/85 

Greenwich No. 2 Mine 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 86-56 

A.C. No. 36-02404-03610 

Greenwich No. 2 Mine 

DECISION 

Appearances: Joseph T. Kosek, Jr., Esq., Greenwich Collieries, 

Ebensburgy Pennsylvania; Joseph Yuhas, Esq., 

Greenwich Collieries, Ebensburg, Pennsylvania; 

B. Anne Gwynn, Esq.r Office of the Solicitor~ 

ArlingtonQ Virginia 

Before: Judge William Fauver 

These consolidated cases were brought under the Federal Mine 

Safety and Health Act of 1977Q 30 u.s.c. § 801 et seq. The 

Company seeks to vacate a withdrawal order charging a violation 

of a safety standard. The Secretary seeks to uphold the order 

and to have a civil penalty assessed for alleged violations. 

Having considered the hearing evidence and the record as a 

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

and probative evidence establishes the following: 

1299 
FINDINGS OF FACT 

1. Greenwich No. 2 Mine is an underground coal mine that 

produces coal for sale or use in or affecting interstate 

commerce. 

2. Around 8:45 a.m., on September 16, 1985, in the P-7 

section of the mine, Federal Inspector Samuel Brunatti observed 

certain deviations from Respondent's approved ventilation plan in 

that there was no check curtain across the last crosscut between 

entries R-1 and R-2 and the R-2 face canvas extended from the 

face to the inby corner of the belt entry in a manner that he 

believed closed off air to the faces of the belt and R-1 entries. 

He took an air reading at the face end of the canvas in R-2 entry 

and found no air movement. 

3. There was no power on the section at the time, except 

for a roofbolting machine, and there was no mining going on. 

4. When he began his inspection of this area Inspector 

Brunatti first went to the face in R-2 entry, where he found 

there was no air movement. He did this before he noticed any 

deviations from the ventilation plan. When he made the air test, 

he told a crew member, Ron Nagle, that they did not have enough 

air to mine coal. Someone told the section foreman, David 

Benamati, about the air problem and he came up to the face area. 

Inspector Brunatti told the foreman, "You don't have enough air 

in the mine, right here" pointing toward the R-2 face. The 

foreman told the inspector they had used the same ventilation 

syst~n on Friday, September 13, and had adequate air then. The 

inspector doubted this statementu and told the foreman that, if 

he had had adequate air on Friday he should have no problem 

getting adequate air then 1 and gave the foreman some time to 

bring the ventilation up to the standard, i.e.v 5,000 cfm at each 

face" The foreman checked the airv saw there was inadequate air, 

and then had his men tighten the air curtai~s. He testified that 

the curtains had been loosened or repositioned before the 

inspector arrivedu because they were going to install a 

run-through curtain in the crosscut between R-1 and R-2 entries 

before mining coal. After the curtains were tightened, the 

foreman took another air reading at R-2 face, and found 3,800 

cfm~ still not enough air. The foreman then went to the return 

r entry, several crosscuts away, to try to find the cause of 

the air problem. 

5. While the foreman was away trying to find the cause of 

the air problem, the inspector started investigating the problem 

near the R-2 face and crosscut between R-1 and R-2 entries. The 

inspector then discovered deviations from the approved 

1300 
ventilation plan which he assumed were the cause of the air 

problem. He found that there was no check curtain in the 

crosscut between R-1 and R-2 entries and that the canvas from the 

face in R-2 entry extended to the inby corner of the belt entry. 

He believed that the canvas was too near the rib to allow 

adequate air to reach the faces and that this condition prevented 

adequate ventilation of the R-2 face. 

6. Meanwhile, the foreman discovered a dislodged post 

blocking an air curtain in the belt entry which he believed to be 

the cause of the air problem. The foreman reset the post and 

rehung the curtain in the belt entry, and returned to the R-2 

face area. He rechecked the air there and found over 5,420 cfm. 

7. While the foreman had been over to the belt entry, the 

mine foreman, Paul Somagi, instructed miners to install the 

run-through curtain in a different place (from the place where 

the foreman was going to install it) and to reposition the 

curtains to comply with the ventilation plan. 

8. The inspector assumed that the new, adequate air 

reading taken by the foreman was due to the ventilation curtain 

changes made by Somagi; he did not know about the foreman's 

discovery of a dislodged post blocking a curtain in the belt 

entry or his repair of that problem. The foreman assumed the 

improved air reading was due to his resetting of the dislodged 

post and rehanging of the curtain in the belt entry. 

9. The inspector and the foreman never effectively 

aommunicated their views to each other with respect to the 

ventilation problem and how it was solved. 

10. 

2549665) 

therefore 

following 

The inspector issued a§ 104(d)(2) order (No. 

charging a violation of the ventilation plan and 

a violation of 75 C.F.R. § 75.316, based upon th~ 

allegations of fact: 

The approved ventilation and methane and dust control plan 

was not being complied with at P-7, active working section, 

in that mining was being conducted in the R-2 entry. 

However, no check or other device was erected across the 

crosscutv R-1 to R-2v thus allowing the air to short circuit 

back to the return and not properly ventilate the R-2 face 

while coal was being mined. Also the canvas extended from 

the face of the R-2 entry outby to the inby corner of the 

belt entry, closing off all the entries to the faces of the 

belt and R-1, thus providing little or no ventilation to 

these faces. This condition occurred on the 4:00 p.m. to 

12:00 p.m. shift on September 13, 1985, which was under the 

supervision of Dave Benamati. 

1301 
11. The inspector had not been at the mine on September 13, 

1985, and no witness for the Secretary had been in the P-7 

section on that date. The only eye-witness (of September 13 

conditions) who testified at the hearing was the foreman, who 

testified that there was no air problem in the P-7 section on 

September 13. He also testified that the check curtain between 

R-1 and R-2 entries was in place on September 13, and the canvas 

in R-2 entry was also in place, both as required by the 

ventilation plan. 

DISCUSSION WITH FURTHER FINDINGS 

The Secretary did not put the entire ventilation plan in 

evidence but presented a ventilation diagram from the plan and 

the testimony of the inspector, who testified that the plan 

required a minimum of 5,000 cfm at each working face while coal 

was being mined. 

There was no mining in section P-7 at the time of the 

inspection on September 16, 1985. The foreman testified that 

some of the air curtains were out of place because he was 

preparing to do construction work, i.e., installing a plank in 

the roof and hanging a run-through curtain on the plank. Since 

there was no mining at the time, I find that the Secretary did 

not prove a violation of the ventilation plan on September 16. 

Apart from this conclusion, I find that Order No. 2549665 does 

not adequately charge a violation on September 16 and therefore 

cannot support a finding of a violation on that date. The order 

states that the deviations from the ventilation plan occurred 

during mining in R-2 entry and that "This condition occurred on 

•.. September 13, 1985." 

The Act provides that each charge of a violation of a safety 

or health standard »shall be in writing and shall describe with 

particularity the nature of the violation .•• " (§ 104(a)). I 

conclude that Order No. 2549665 does not give sufficient notice 

of a violation on September 16, 1985, and therefore the 

Secretary's contention of a violation on that date is not 

cognizable in this proceeding. 

The order sufficiently charges a violation on September 13, 

1985, but the Secretary did not meet his burden of proof as to 

this charge. The only hearing witness who was an eye-witness to 

the conditions on September 13 was the foreman, and he testified 

that there was no ventilation problem on that date and there was 

sufficient air at the faces. The Secretary attempted to prove a 

violation by two elements of proof: (1) the foreman's statement 

to the inspector to the f ect that he had used the same 

ventilation system on September 13 as he used on September 16 and 

1302 
(2) the hearsay statement of of Ron Nagle to the inspector that 

they had nno air" on September 13. 

The foreman's statement about the ventilation system used on 

September 13 was not clear. The foreman testified that he meant 

that the same ventilation system used on September 13 was going 

to be used on September 16 after the construction work and before 

mining was to begin on September 16. The inspector and the 

foreman did not communicate clearly on this point. Their 

misunderstanding is not a sufficient basis for finding a 

management admission or acknowledgement of a violation or a 

statement of undisputed facts that would support a determination 

of a violation. 

The statement attributed to Ron Nagle is a hearsay opinion 

statement that does not purport to be based on actual air 

readings or an attempt to measure the velocity of air in the P-7 

section on September 13. Without that specificity and without 

the opportunity of Respondent to cross-examine Nagle as to the 

basis of his opinion, I find that the hearsay opinion' is not 

subtantial evidence and is not sufficient to substantiate the 

charge of a violation of the ventilation plan on September 13. 

CONCLUSIONS OF LAW 

1. The Commission has jurisdiction in these proceedings. 

2. The Secretary did not meet his burden of proving a violation 

of 75 C.F.R. § 316 on September 13, 1985, as charged in Order No. 

2549665. 

3. The Secretary's contention that Respondent violated 75 C.F.R. 

§ 316 on September 16, 1985 is not cognizable in this proceeding 

because such charge is not sufficiently alleged in Order No. 2549665. 

In additionu the Secretary failed to prove such a violation on the 

facts. 

1303 
ORDER 

WHEREFORE, IT IS ORDERED that: 

1. Order No. 2549665 is VACATED. 

2. The petition for a civil penalty is DENIED. 

Distribution Certified Mail: 

;. 11! # ::r~v'e;L J.lliam Fauver 

Administrative Law Judge 

Joseph T. Kosek, Jr., Esq., Joseph Yuhas, Esq., Greenwich Collieries, 

P. o. Box 367, Ebensburg, PA 15931 

Linda M. Henry, Esq., Office of the Solicitor, U.S. Department of 

Labor, Room 14480 Gateway Building, 3535 Market Street, Philadelphia, 

Pennsylvania 19104 

npt 

1304 

*U. S. GOVERNMENT PRINTING OFFICE 1987: 181-224/72926