DECEMBER 1987 

COMMISSION DECISIONS 

12-11-87 Emery Mining Corporation 

12-11-87 Youghiogheny & Ohio Coal Company 

12-21-87 Austin Power, Inc. 

12-23-87 Utah Power & Light Co., Mining Div.(Order) 

12-29-87 Harley M. Smith v. Bow Valley Coal Resources 

ADMINISTRATIVE LAW JUDGE DECISIONS 

12-01-87 

12-02-87 

12-03-87 

12-03-87 

12-03-87 

12-04-87 

12-07-87 

12-07-87 

12-08-87 

12-09-87 

12-09-87 

12-10-87 

12-15-87 

12-15-87 

12-16-87 

12-22-87 

12-28-87 

12-29-87 

12-29-87 

12-30-87 

TIC-The Industrial Company 

Otis Elevator Company 

UMWA on behalf of Robert L. Cox v. Peabody Coal 

UMWA on behalf of Jinnny Johnson v. Peabody Coal 

UMWA on behalf of Richard Jarvis v. Peabody Co. 

Ronald.Sizemore v. Whitaker Coal Corporation 

Greenwich Collieries 

Mid-Continent Resources, Inc. 

Secretary of Labor on behalf of John P. 

Grinder v. Karl's Drilling Co., Inc. 

Rochester & Pittsburgh Coal Copmany 

Randy Rothermel/Tracey Partners 

Quinland Coals, Inc. 

Consolidation Coal Company 

Bobby Sizemore v. Nally & Hamilton Ent. 

Consolidation Coal Company 

White County Coal Corporation 

M & M Construction Inc. 

Youghiogheny & Ohio Coal Company 

Birchfield Mining Incorporated 

Secretary of Labor on behalf of Richard W, 

Haviland v. Occidental Chemical Co. 

WEST 86-35-R 

LAKE 86-21-R 

CENT 86-59-R 

WEST 87-130-R 

KENT 86-23-D 

WEST 87-172 

PENN 87-25-R 

KENT 84-224-D 

KENT 86-65-D 

KENT 86-66-D 

KENT 87-223-D 

PENN 85-188-R 

WEST 87-74 

PENN 87-177-D 

PENN 87-50 

PENN 87-121-R 

WEVA 85-169 

WEVA 87-129-R 

KENT 87-196-D 

WEVA 87-69 

LAKE 86-58-R 

WEST 87-204-M 

LAKE 86-30-R 

WEVA 87-272 

SE 87-44-DM 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

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Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

1997 

2007 

2015 

2028 

2033 

2035 

2038 

2045 

2046 

2047 

2048 

2051 

2058 

2068 

' 

2069 

2127 

2159 

2161 

2167 

2174 

2200 

2204 

2207 

2209 

2215 

DECEMBER 1987 

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

Secretary of Labor, MSHA v. Otis Elevator Company, Docket No. PENN 86-262. 

(Judge Maurer, November 11, 1987). 

Secretary of Labor on behalf of Roger Lee Wayne, Sr. v. Consolidation Coal 

Company, Docket No. WEVA 87-89-D. (Judge Weisberger, November 20, 1987). 

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

Emerald Mines Company v. Secretary of Labor, MSHA, Docket No. PENN 85-298-R. 

(Judge Melick, November 2, 1987). 

Eddie Johnson v. Scotts Branch Company, Docket No. KENT 87-26-D. (Judge 

Koutras, November 2, 1987). 

Utah Power & Light Company, Mining Division v. Secretary of Labor, MSHA, and 

United Mine Workers of America, Docket Nos. WEST 87-130-R, etc. (Petition 

for Interlocutory Review of Judge Morris' October 14, 1987 Order). 

Secretary of Labor, MSHA v. NACCO Mining Company, Docket No. LAKE 85-87-R, 

LAKE 86-2. (Judge Merlin, November 19, 1987). 

I 

COMMISSION DECISIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

EMERY MINING CORPORATION 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) · 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

December 11, 1987 

I Docket No. WEST 86-35-R 

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

Commissioners 

DECISION 

BY THE COMMISSION: 

This proceeding arising under the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. § 801 et seq. (1982)("Mine Act"), requires the 

Commission to determine the meaning of the term "unwarrantable failure" 

as used in section 104(d) of the Mine Act. 30 U.S.C. § 814(d). For the 

reasons that follow, we conclude that unwarrantable failure means 

aggravated conduct, constituting more than ordinary negligence, by a 

mine operator in relation to a violation of the Act. 

I. 

This proceeding involves a violation by Emery Mining Corporation 

( 11Emery21 ) of 30 C.F.R. § 75.200, the mandatory underground coal mine 

roof control standard. Commission Administrative Law Judge John J. 

Morris found that the violation occurred and was the result of Emery 1 s 

unwarrantable failure to comply with the cited standard within the 

meaning of section 104(d)(l) of the Mine Act. 30 U.S.C. § 814(d)(l). l/ 

ll Section 104(d)(l) of the Act states in part: 

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

authorized representative of the Secretary finds 

that there has been a violation of any mandatory 

health or safety standard, and if he also finds 

that, while the conditions created by such violation 

1997 
8 FMSHRC 930 (June 1986)(ALJ). The sole issue on review is whether this 

finding of unwarrantable failure was proper. For the reasons that 

follow, we conclude that Emery did not exhibit the kind of aggravated 

conduct necessary to sustain a finding of unwarrantable failure. 

Accordingly, we reverse. 

Emery's Deer Creek mine is an underground coal mine located in 

Huntington, Utah. On October 22, 1985, Emery's safety department 

received reports that along the First South haulage track, between the 

No. 65 and No. 66 crosscuts, a section of chain link mesh was hanging 

from the roof. That same day Emery safety engineer, Gary Christensen, 

was instructed to investigate the problem. Christensen was accompanied 

underground by Dick Jones, an inspector of the Department of Labor's 

Mine Safety and Health Administration ( 11MSHA11 ), and by Max Tucker, a 

member of the union safety committee. 

Along the haulage track, between the No. 65 and No. 66 crosscuts, 

chain link mesh had been bolted to the roof. Christensen found three or 

four inches of loose coal resting on the mesh. The coal had broken from 

the roof, fallen onto the mesh, and caused the mesh to sag. While 

Christensen clipped the mesh to remove the coal, Jones and Tucker 

examined the surrounding area and found four roof bolts, each of which 

was missing its siX7-iiich-square bearing plate. The MSHA inspector 

believed that the pressure of the roof had "popped" the bearing plates 

off the bolts. Approximately 10 feet away from these bolts, fallen coal 

had caused the chain link mesh to sag and press across a trolley guard. 

Inspector Jones concluded that the roof conditions between the No. 

65 and No. 66 crosscuts indicated that the roof was not adequately 

do not cause imminent danger, such violation is of 

such nature as could significantly and substantially 

contribute to the cause and effect of a coal or 

other mine safety or health hazard, and if he finds 

such violation to be caused by an unwarrantable 

failure of such operator to comply with such 

mandatory health or safety standards, he shall 

include such finding in any citation given to the 

operator under this [Act]. If, during the same 

inspection or any subsequent inspection of such mine 

within 90 days after the issuance of such citation, 

an authorized representative of the Secretary finds 

another violation of any mandatory health or safety 

standard and finds such violation to be also caused 

by an unwarrantable failure of such operator to so 

comply, he shall forthwith issue an order requiring 

the operator to cause all persons in the area 

affected by such violation ... to be withdrawn from, 

and to be prohibited from entering, such area until 

an authorized representative of the Secretary 

determines that such violation has been abated. 

30 u.s.c. §&14(d)(l). 

1998 
supported in violation of section 75.200. ~/ Having made further 

findings that the violation was of a significant and substantial nature 

and was the result of the operator's unwarrantable failure to comply 

with the standard, the MSHA inspector issued to Emery a citation 

pursuant to section 104(d)(l) of the Mine Act (n. 1, supra). 

Emery contested the citation, asserting that it was not in 

violation of section 75.200 and that, in any event, the violation was 

not the result of its unwarrantable failure. Following an evidentiary 

hearing, the judge credited the inspector's testimony that a lack of 

adequate roof support was shown by virtue of the four roof bolts that 

had 11 popped11 their plates. 8 FMSHRC at 935. The judge held that the 

sagging in the chain link mesh itself did not violate the standard, but 

served to focus attention on the area of the entry where the violation 

occurred. Id. Noting that the First South haulage track was a 

regularly traveled entry in the mine, the judge concluded that the roof 

bolts had "popped" their plates at least a week before October 22, and 

that Emery's safety personnel, who were required to inspect the haulage 

track for safety hazards, "should have known of the condition." 

8 FMSHRC at 936. The judge therefore concluded that the violation was 

due to Emery's unwarrantable failure to comply with section 75.200. 

Id. 

On review Emery contends that if the judge's decision stands, any 

violation in an active area of a mine will be an unwarrantable failure 

violation because supervisors and preshift examiners travel through and 

inspect all such areas. Emery argues that the judge's decision 

construes unwarrantable failure as equivalent to ordinary negligence and 

that only a more stringent legal standard, one involving aggravated 

conduct, can be the basis for an unwarrantable failure finding. }/ We 

agree. 

~/ Section 75.200 provides in part: 

Each operator shall undertake to carry out on a 

continuing basis a program to improve the roof 

control system of each coal mine and the means and 

measures to accomplish such system. The roof and 

ribs of all active underground roadways, travelways 2 

and working places shall be supported or otherwise 

controlled adequately to protect persons from falls 

of the roof or ribs. 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 

~rinted form •.•. 

(Emphasis added.) 

}/ The American Mining Congress ( 11AMC11 ) has filed a brief amicus 

curiae that essentially presents the same arguments put forth by Emery. 

+999 
II. 

In the Mine Act the term "unwarrantable failure" appears only in 

section 104(d). Its presence and use is of vital importance in the 

enforcement of the Act. See Nacco Mining Co., 9 FMSHRC 1541, 1545-46 

(September 1987); UMWA v. FMSHRC and Kitt Energy Corp, 768 F.2d 1477, 

1479 (D.C. Cir. 1984). See also S. Rep. No. 181, 95th Cong., 1st Sess. 

31 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human 

Resources, 95th Cong., 2nd Sess., Le islative Histor of the Federal 

Mine Safety and Health Act of 1977, at 619 (1978 ("Mine Act Legis. 

Hist. 11 ). Section 104(d) is an integral part of the Act's enforcement 

scheme, a scheme which, as an incentive for operator compliance; 

provides for "increasingly severe sanctions for increasingly serious 

violations or operator behavior." Cement Division, National Gypsum 

Company, 3 FMSHRC 822, 828 (April 1981). Under this enforcement scheme, 

sections 104(a) and llO(a) provide that the violation of any mandatory 

safety or health standard requires the issuance of a citation and 

assessment of a monetary civil penalty. 30 U.S.C. §§ 814(a) & 820(a). 

Under sections 104(b) and llO(b), if the operator does not correct the 

violation within the prescribed period, the more severe sanction of a 

withdrawal order is required and a greater civil penalty is assessed. 

30 u.s.c. §§ 814(b) &~20(b). 

Under section 104(d) an unwarrantable failure finding serves to 

trigger the application of yet more rigorous sanctions. As the U.S. 

Court of Appeals for the District of Columbia Circuit has explained: 

An "unwarrantable failure" citation commences a 

probationary period: If a second violation 

resulting from an "unwarrantable failure" is found 

within 90 days, the Secretary must issue a "withdrawal order" requiring the mine operator to remove 

all persons from the area .•. until the violation 

has been abated .••. 

Once a withdrawal order has been issued, any 

subsequent unwarrantable failure results in another 

such order. This 11 chain11 of withdrawal order 

liability remains in effect until broken by an 

intervening "cleantt inspection. That is, "an 

inspection of such mine [which] discloses no similar 

violations. 11 

UMWA v. FMSHRC and Kitt Energy Corp., 768 F.2d at 1478-79 (emphasis in 

original). The court described this section 104(d) "chain" of citations 

and withdrawal orders, keyed to the operator's unwarrantable failure to 

comply, as "among the Secretary's most powerful instruments for 

enforcing mine safety." 768 F.2d. at 1479. The threat of the "chain" 

is a forceful incentive for the operator to exercise special vigilance 

in health and safety matters. Nacco Mining Co., supra, 9 FMSHRC at 6. 

Although section 104(d) is a key element of the overall attempt to 

improve health and safety practices in the mining industry (Mine Act 

2000 
Legis. Hist. at 618-620), the Act does not define the term "unwarrantable failure." Consequently, in determining its meaning, we must turn 

to intrinsic and extrinsic aids of statutory construction. We must 

examine the meaning of the term with reference to both its meaning in 

ordinary usage and its context in the statute, as well as any legislative history and judicial precedent relating to "unwarrantable 

failure." 

We first determine the ordinary meaning of the phrase 11unwarrantable failure." "Unwarrantable" is defined as "not justifiable" or 

"inexcusable." "Failure" is defined as "neglect of an assigned, 

expected, or appropriate action." Webster's Third New International 

Dictionary (Unabridged) 2514, 814 (1971) ( 11Webster 1 s 11 ). Comparatively, 

negligence is the failure to use such care as a reasonably prudent and 

careful person would use and is characterized by 11 inadvertence, 11 

"thoughtlessness," and "inattention." Black's Law Dictionary 930-31 

(5th ed. 1979). Conduct that is not justifiable and inexcusable is the 

result of more than inadvertence, thoughtlessness, or inattention. 

Thus, the ordinary meaning of the phrase "unwarrantable failure" 

suggests more than ordinary negligence. Indeed, we note the Secretary's 

position that this view of unwarrantable failure represents the intent 

of the phrase. The.Secretary insists that to equate ordinary negligence 

with unwarrantable failure is to "grossly mischaracteriz[e]" his 

position. S. Reply Br. 3, 5. 

In statutory interpretation, the ordinary meaning of words must 

prevail where that meaning does not thwart the purpose of the statute or 

lead to an absurd result. In re Trans Alaska Pipeline Rate Case, 436 

U.S. 631, 643 (1978). Far from leading to an absurd result, construing 

"unwarrantable failure" to mean aggravated conduct constituting more 

than ordinary negligence produces a result in harmony with the Mine 

Act's statutory enforcement scheme of providing increasingly severe 

sanctions for increasingly serious mine operator behavior. Within the 

Mine Act are found distinct descriptions of types of operator conduct 

that evoke particular sanctions. "Negligent" conduct is considered when 

proposing and assessing civil penalties. 30 U.S.C. §§ 815(b)(l)(B) & 

820(i). Conduct that is "knowing" and "willful" may result in civil or 

criminal sanctions against individual corporate agents. 30 U.S.C. 

§§ 820(c) & (d). Conduct determined to be characterized by an unwarrantable failure to comply with a mandatory regulation results in a section 

104(d) '

1

chain11 of citations and orders. The Mine Act 1 s use of different 

terms within the same statute demonstrates that Congress intended the 

different terms to censure different types of operator conduct within a 

graduated enforcement scheme. Cf. Persinger v. Islamic Republic of 

Iran, 729 F.2d 835, 843 (D.C. Cir. 1984); National Insulation Transp. 

Committee v. I.C.C., 683 F.2d 533, 537 (D.C. Cir. 1982). 

Construing unwarrantable failure to mean aggravated conduct 

constituting more than ordinary negligence is consistent with the manner 

in which the Secretary enforces the Mine Act. In civil penalty cases 

brought before the Commission, the Secretary often argues that an 

operator was negligent in allowing a violation to exist, yet the 

2001 
Secretary does not assert that the operator's conduct was marked by 

unwarrantable failure. Similarly, in settling civil penalty cases the 

Secretary often agrees to delete unwarrantable failure findings because, 

upon further consideration, the operator's negligence was less egregious 

than had been believed. Equally significant, the Secretary's civil 

penalty proposal regulations recognize degrees of negligence, 30 C~F.R. 

§ 100.3(d), but distinguish unwarrantable failure violations as distinct 

and subject to higher special penalty assessments. 30 C.F.R. 

§ 100.S(b). Further, the Secretary has represented before the Commission that unwarrantable failure findings constitute approximately three 

percent of the citations and orders issued by MSHA. 11 Amicus AMC 

attached to its brief official MSHA reports, which indicate that in 1986 

the Secretary issued 126,026 citations that were the result of 

operators' "low" or "moderate" negligence, and 3,462 violations that 

were the result of operators' "high negligence 11 or "reckless disregard." 

The latter number roughly corresponds with the 3,572 "unwarrantable 

failure" citations issued in 1986. AMC Br. 16-17 and attachments D & E. 

Thus, in enforcement practice as well as in theory, the Secretary views 

unwarrantable failure as aggravated conduct that is more than ordinary 

negligence. See S. Reply Br. 3, 5; S. Br. 9. 

Construing unwarrantable failure as aggravated conduct constituting more than ordinary negligence also is essentially in harmony with 

the legislative history bearing on the term. Unwarrantable failure 

sanctions first appeared in section 203(d) of the Federal Coal Mine 

Safety Amendments Act of 1965. 30 U.S.C. § 472 (1966). Section 203(d) 

was carried over with minor changes as section 104(c) of the Federal 

Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 814(c) (1976) 

(''Coal Act"), and section 104(c) was, in turn, carried over without 

substantive change as section 104(d) of the Mine Act. In summarizing 

the major provisions of the bill that became the Coal Act, the Conference Committee stated that unwarrantable failure to comply meant "the 

failure of an operator to abate a violation he knew or should have known 

existed." Senate Subcommittee on Labor) Committee on Labor and Public 

Welfare, 94th Cong., 1st Sess., Part I Legislative History of the 

Federal Coal Mine Health and Safety Act of 1969, at 1602 (1975) ("Coal 

Act Legis. Hist."). In addition, the House Managers stated that 

unwarrantable failure to comply meant "the failure of an operator to 

abate a violation he knew or should have known existed, or the failure 

to abate a violation because of a lack of due diligence, or because of 

indifference or lack of reasonable care on the operator 1 s part. 11 Coal 

Act Legis. Hist. 1512. Further, in Zeigler Coal Co., 7 IBMA 280, 295-96 

(March 1977), the Interior Board of Mine Operations· Appeals interpreted 

unwarrantable failure to mean the failure to abate conditions or 

practices the operator "knew or should have known existed or which it 

failed to abate because of due diligence, or because of indifference or 

lack of reasonable care." In drafting the 1977 Mine Act, the Senate 

Committee report cited Zeigler with approval. Mine Act Legis. Hist. 

~/ See the Secretary's brief on review in Helen Mining Co., 9 FMSHRC 

1095 (June 1987); S. Br. 11. See also statement of Solicitor of Labor, 

George Salem, Nacco Mining Co.~ FMSHRC 1541 (September 1987), Oral 

Arg. Tr. 20. 

2002 
620. 2./ 

Thus, the legislative histories of the Coal Act and the Mine Act 

and the Board's definition in Zeigler make reference to "unwarrantable 

failure" in terms of "indifference," "knew or should have known, 11 "lack 

of due diligence, 1

1 and "lack of reasonable care." Although neither the 

legislative histories nor the Board further explored the meaning of 

these terms in any detail, the ordinary meanings of these terms are largely 

congruent with the aggravated conduct meaning discussed above. Indeed, 

in discussing aggravated conduct that constitutes unwarrantable failure, 

the Commission has concurred previously with the Board's Zeigler 

decision to the extent that an unwarrantable failure may be proved by 

showing that a violative condition or practice was not corrected prior 

to the issuance of a citation or order because of "indifference, willful 

intent or serious lack of reasonable care." United States Steel Corp., 

6 FMSHRC 1423, 1437 (June 1984); Westmoreland Mining Co. 7 FMSHRC 1338, 

1342 (September 1985). 

The descriptions of unwarrantable conduct proffered in the 

legislative histories and Zeigler in large measure harmonize with and 

complement the conclusion that ~nwarrantable failure means more than 

ordinary negligence. The usual meaning of "indifference" is of "little 

consequence" or "total or nearly total lack of interest." Webster's 

1151. In common legal parlance "indifferent" conduct is conduct more 

aggravated than ordinary negligence. Prosser and Keaton on the Law of 

Torts 212 (1984). Likewise, under the Mine Act a corporate agent who 

"knowingly" authorizes a violation of a mandatory health or safety 

standard under the Act is subject to personal civil and criminal 

liability. 30 U.S.C. § 820(c). This heightened liability is clearly a 

Congressional response to more serious breaches of operator conduct, 

i.e., aggravated conduct. The term 11 knowingly 11 has been interpreted to 

mean "knew or had reason to know." Secretary v. Kenny Richardson, 

3 FMSHRC 8, 16 (January 1981), aff'd, 689 F.2d 632 (6th Cir. 1982), 

cert. denied, 461 U.S. 928 (1983); Secretary v. Roy Glenn, 6 FMSHRC 

1588, 1585-86 (July 1984). Therefore, the references in the legislative 

history and in Zeigler to 11 indifference" and "knew or should have known11 

'fl/ Zeigler was decided on a remand from the U.S. Court of Appeals for 

the District of Columbia Circuit. UMWA v. Kleppe, 532 F.2d 1403 (D.C. 

Cir. 1976). The issue before the D.C. Circuit was whether an 

"unwarrantable failure 11 closure order (and subsequent closure orders in 

the chain) had to be based beth on "unwarrantable failure 11 and· 

nsignificant and substantial findings." The court held that only a 

finding that the violation was the result of the operator's unwarrantable failure to comply was required. Before the court, the UMWA had 

also challenged the Board's definition of "unwarrantable failure," 

established in a prior, unappealed case. Eastern Associated Coal Co., 3 

IBMA 331 (September 1974). In Eastern, the Board had defined 11 unwarrantable f ailure 11 as intentional or knowing failure to comply or reckless 

disregard for the health and safety of miners. Id. at 356. The court 

in Kleppe explicitly declined to address the definition of "unwarrantable failure," but left the Board the option to revisit the issue. 532 

F.2d at 1407 n.7. 

2003 
describe aggravated forms of operator conduct. 

With regard to the phrases "lack of due diligence" and 11 lack of 

reasonable care" also appearing in these sources, we recognize that the 

phrases, if considered in isolation, can be viewed as referring to an 

ordinary negligence test. However, ascribing such a meaning to "unwarrantable failure" cannot be reconciled with either the purpose of 

unwarrantable failure sanctions or with the ordinary meaning of the term 

unwarrantable failure itself. Where the ordinary meaning of the phrase 

"unwarrantable failure 11 complements and effectuates the enforcement 

scheme of the Mine Act that meaning must prevail. As the U.S. Court of 

Appeals for the District of Columbia Circuit recently stated in a 

related context, "it is beyond cavil that the first step in any 

statutory analysis, and our primary interpretive tool, is the language 

of the statute itself." American Civil Liberties Union v. FCC, 823 F.2d 

1554, 1568 (D.C. Cir. 1987). Thus, to the extent that these limited 

references in the legislative history are at odds with the structure and 

purpose of the Act, as well as other parts of the legislative history, 

they are not controlling. Abourezk v. Reagan, 785 F.2d 1043, 1055 n.11 

(D.C. Cir. 1986), cert. granted, _U.S. _, 107 S.Ct. 666 (December 

15, 1986). See also United Air Linest Inc. v. CAB, 569 F.2d 640, 647 

(D.C. Cir. 1977). Therefore, we conclude that unwarrantable failure 

means aggravated conduct, constituting more than ordinary negligence, by 

a mine operator in relation to a violation of the Act. 

III. 

Turning now to the specific violation at issue, we conclude that 

substantial evidence does not support the judge's finding that the 

violation resulted from Emery's unwarrantable failure to comply with 

section 75.200. 

The judge premised his finding that the lack of adequate roof 

support was the result of an unwarrantable failure upon his conclusion 

that the four roof bolts were without their bearing plates for at least 

a week before their condition was detected and that Emery 1 s preshift and 

onshift inspectors should have detected and corrected the condition. 

8 FMSHRC at 936. Under the circumstances of this case, the fact that 

Emery's preshift or onshift examiners did not detect the four roof bolts 

with !tpopped0 plates is not an adequate basis for a finding of such 

aggravated conduct constituting unwarrantable failure. 

Emery was not indifferent to roof support in the entry between the 

No. 65 and No. 66 crosscuts. Indeed, the record shows that Emery knew 

for some time of the instability of the roof along the track haulage. 

including the area between the cited crosscuts. and took exceptional 

measures to provide adequate roof support. Emery placed cribs on one 

side of the track and timbers on the other as close together as 

possible. Emery placed steel mats on the roof, running crossways, and 

pinned the mats with roof bolts. In addition, Emery installed chain 

link mesh between the mats with another set of roof bolts. Emery 

exceeded the requirements of its approved roof control plan by placing 

some roof bolts as close together as one or two feet. The area between 

the crosscuts was approximately 55 feet long. The area 

2004 
contained hundreds of roof bolts. Given these efforts to support the 

roof adequately, we cannot conclude that simply because four of these 

roof bolts had missing plates Emery exhibited aggravated conduct 

exceeding ordinary negligence. Cf. Westmoreland Mining Co., 7 FMSHRC at 

1342. 

Accordingly, we hold that the violation of section 75.200 was not 

caused by Emery's unwarrantable failure. We reverse the judge's 

contrary finding and modify the section 104(d)(l) citation to a citation 

issued pursuant to section 104(a). 30 U.S.C. § 814(a). 

~~ FordB.~an 

~<.AA__£,<t/~(~ Richard V. Backley, Commissioner 

~It~ cyceA:riQyle, Comm~ 

L. Clair Nelson~ Commissioner 

2005 
Distribution 

Timothy M. Biddle, Esq. 

Crowell & Moring 

1001 Pennsylvania Ave., N.W. 

Washington, D.C. 20004 

Barry F. Wisor, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Henry Chajet, Esq. 

American Mining Congress 

1920 N Street, N.W. 

Suite 300 

Washington, D.C. 20036 

Administrative Law Judge John Morris 

Federal Mine Safety and Health Review Commission 

333 West Colfax Avenue, Suite 400 

Denver, Colorado 80204 

2006 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

Deceraber 11, 1987 

YOUGHIOGHENY & OHIO COAL COMPANY 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

YOUGHIOGHENY & OHIO 

COAL COMPANY 

Docket Nos. LAKE 86-21-R 

LAKE 86-30-R 

Docket No. LAKE 86-56 

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

Commissioners 

DECISION 

BY THE COMMISSION: 

In this proceeding ar1s1ng under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et~ (1982)("Mine Act 11 ). the 

issues are whether Commission Administrative Law Judge Gary Melick erred 

in concluding that two violations of a mandatory safety standard were 

the result of Youghiogheny and Ohio Coal Company 1 s ("Y&O") "unwarrantable failure 11 within the meaning of section 104(d)(l) of the Mine Act, 

30 U.S.C. § 814(d)(l); whether the two violations were of a "significant 

and substantial" nature; and whether the procedure followed by the judge 

in assessing civil penalties for the violations was proper. l/ For the 

l/ Section 104(d)(l) states: 

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

an authorized representative of the Secretary finds 

that there has been a violation of any mandatory 

health or safety standard, and if he also finds 

that, while the conditions created by such violation 

do not cause imminent danger, such violation is of 

2007 
reasons that follow, we affirm the judge's unwarrantable failure 

findings and one of the two significant and substantial findings, but 

reverse as to the other significant and substantial finding and remand 

that matter for reconsideration of the civil penalty. 

I. 

Y&0 1 s Nelms No. 2 Mine, an underground coal mine, is located in 

Harrison County, Ohio. On Friday, October 25, 1985, Inspector Franklin 

Homko of the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued to Y&O a citation for failure to comply with the mine's 

approved roof control plan in violation of 30 C.F.R. § 75.200. ~/ The 

citation charged non-compliance with the plan's requirements for 

temporary roof supports in the face areas of the A entry, D entry, and 

such nature as could significantly and substantially 

contribute to the cause and effect of a coal or 

other mine safety or health hazard, and if he finds 

such violation to be caused by an unwarrantable 

failure of such operator to comply with such 

mandatory·health or safety standards, he shall 

include such finding in any citation given to the 

operator under this [Act]. If, during the same 

inspection or any subsequent inspection of such mine 

within 90 days after the issuance of such citation, 

an authorized representative of the Secretary finds 

another violation of any mandatory health or safety 

standard and finds such violation to be also caused 

by an unwarrantable failure of such operator to so 

comply, he shall forthwith issue an order requiring 

the operator to cause all persons in the area 

affected by such violation, except those persons 

referred to in subsection (c) to be withdrawn from, 

and to be prohibited from entering. such area until 

an authorized representative of the Secretary 

determines that such violation has been abated. 

~/ 30 C.F.R. 75.200, which restates section 302(a) of the Mine Act, 

30 U.S.C. § 862(a), provides in part~ 

Each operator shall undertake to carry out on a 

continuing basis a program to improve the roof 

control system of each coal mine and the means and 

measures to accomplish such system. The roof and 

ribs of all active underground roadways, travelways, 

and working places shall be supported or otherwise 

controlled adequately to protect persons from falls 

of the roof or ribs. 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 ..•. The plan shall show the type of 

supported spacing approved by the Secretary. 

2008 
the D to E crosscut in the No. 3 section. This citation was not 

contested. The following Monday, October 28, 1985, the inspector 

returned to the mine and found that the conditions leading to the 

October 25 citation had been corrected and that mining had advanced in 

the A and D entries and in the D to E crosscut. However, the inspector 

again found that temporary roof supports in these areas did not comply 

with the roof control plan and therefore violated section 75.200. The 

inspector further found that the violation resulted from Y&O's 

unwarrantable failure to comply with the cited standard and that it 

constituted a significant and substantial violation. Therefore, the 

inspector issued a section 104(d)(l) order of withdrawal (Order No. 

2823806). 

Subsequently, on November 19, 1985, the inspector conducted an 

inspection of the No. 5 section. The entries in the No. 5 section had 

been advanced by a continuous mining machine ("continuous miner") and 

cuts had been made in the sides of the entries at an obtuse angle ("fan 

cuts 11 ). The inspector observed that a fan cut on the right side of one 

of the entries had cut into a corresponding fan cut on the left side of 

the adjacent entry. The roof in the area created by this 11 hole through" 

was unsupported. The inspector.found that in making the 11 hole through" 

into an area where the roof was not supported, Y&O vi9lated its approved 

roof control plan. Accordingly, the inspector cited Y&O for a violation 

of section 75.200, made unwarrantable failure and significant and 

substantial findings, and issued an order of withdrawal pursuant to 

section 104(d)(l) (Order No. 2823831). 

Following an evidentiary hearing, the judge found that the 

violations occurred, were 11 unwarrantable11 and "significant and 

substantial11 within the meaning of section 104(d)(l) of the Mine Act, 

and assessed civil penalties of $800 and $500 for the violations. 

8 FMSHRC 948 (June 1986)(ALJ). In determining that the temporary roof 

support violation (Order No. 2823806) was the result of Y&O's unwarrantable failure to comply with section 75.200, the judge concluded that 

nthe repetition of the same type of violation within such a short time 

shows indifference or lack of due diligence or reasonable care. 11 

8 FMSHRC at 954. The judge held that Y&O "should have known11 of the 

violation. Id. The judge found that the "hole through" violation 

(Order No. 2823831) was attributable to unwarrantable failure for the 

same reason. 8 FMSHRC at 954. 

On review Y&O does not challenge the findings of violation, but 

argues that the judge applied an incorrect legal standard in determining 

that the violations resulted from, unwarrantable failure on its part. 

Y&0 1 s arguments are virtually identical to those of the operator in 

Emery Mining Co., 9 FMSHRC --• slip op. at 3, WEST 86-35-R (December 

11, 1987), a case that we also decide today. Y&O argues, as did the 

operator in Emery, that the judge's decision construes unwarrantable 

failure as equivalent to ordinary negligence. It asserts that this 

result is erroneous because it conflicts with the carefully balanced 

enforcement scheme of the Act and distorts the proper focus of section 

104(d). We agree. 

2009 
II. 

In Emery. we concluded that unwarrantable failure means aggravated 

conduct, constituting more than ordinary negligence. by a mine operator 

in relation to a violation of the Act. Emery, slip op. at 1. 8. This 

conclusion was based on the ordinary meaning of the term "unwarrantable 

failure," the purpose of unwarrantable failure sanctions within the Mine 

Act, and the relevant legislative history and judicial precedent. We 

stated that whereas negligence is conduct that is "inadvertent," 

"thoughtless," or "inattentive," unwarrantable conduct is conduct that 

is described as "not justifiable" or "inexcusable". Only by construing 

unwarrantable failure by a mine operator as aggravated conduct 

constituting more than ordinary negligence, do unwarrantable failure 

sanctions assume their intended distinct place in the Act's enforcement 

scheme. Emery. slip op. at 5. 

We noted that section 104(d) is an integral part of the Mine Act's 

enforcement scheme. a scheme that, as an incentive for operator 

compliance, provides for "increasingly severe sanctions for increasingly 

serious violations or operator behavior." Emery, slip op. at 4 (quoting 

Cement Division, National Gypsum Company, 3 FMSHRC 822, 828 (April 

1981)). We further ob~erved that in the Mine Act unwarrantable failure 

is but one description of the type of operator conduct that evokes 

particular sanctions. We concluded that the Mine Act's use of different 

terms within the same statute demonstrates that Congress intended the 

different terms to censure different types of operator conduct within a 

graduated enforcement scheme. Emery slip op. at 5 We noted further the 

insistence of the Secretary that equating ordinary negligence with 

unwarrantable failure "grossly mischaracterize[s]" his position, and 

that our construction of unwarrantable failure to mean aggravated 

conduct constituting more than ordinary negligence is fully consistent 

with the manner in which the Secretary enforces the Mine Act. Emery, 

slip op. at 5, 6. 

Finally, we found that construing unwarrantable failure consonant 

with its ordinary meaning and based upon the purpose of the Act 1 s 

unwarrantable sanctions was in substantial harmony with the legislative 

history and judicial precedent bearing on the provision. Emery, slip 

op. at 7-8. Consequently, we held that unwarrantable failure means 

aggravated conduct, constituting more than ordinary negligence, by a 

mine operator in relation to a violation of the Act. 

III. 

Applying this conclusion to the case at hand, we hold that 

substantial evidence supports the judge 1 s findings that the violations 

at issue were the result of Y&O's unwarrantable failure to comply with 

section 75.200. 

The judge's finding that the temporary roof support violation 

(Order No. 2823806) was attributable to unwarrantable failure was 

premised upon the fact that the inspector had cited a similar violation 

of section 75.200 in the same area on October 25, only three days before 

the issuance of Order No. 2823806. In addition, the judge noted that 

2010 
preshift examinations of the affected area were conducted but that the 

violative conditions had not been reported. 8 FMSHRC at 950-51. Y&O 

argues that the temporary roof supports of the last row in the A entry 

were only 7, 10, and 2 inches in excess of the maximum distance to the 

faces. Y&O also argues that it had directed experienced miners to 

correct the previous violation but that for "unknown reasons they bolted 

and repositioned temporary supports incorrectly". Y&O Br. 2. 11 

The inspector testified that during 1985 there were 17 roof falls 

at the mine and that two occurred on the No. 3 section. This history of 

roof falls placed Y&O on notice that heightened scrutiny to assure 

compliance with its roof control plan was vital. Given the prior 

violation of section 75.200 in the same area of the mine only days 

before the violation at issue occurred and the extent of the violative 

condition, we find that Y&0 1 s conduct in relation to the violation was 

more than ordinary negligence and that substantial evidence supports the 

judge's conclusion that the violation resulted from Y&0 1 s unwarrantable 

failure. 

Regarding the "hole through" violation (Order No. 2823831), the 

judge based his unwarrantable failure finding upon the fact that the 

roof control plan, without exception, prohibits cutting through to areas 

in which the roof is not supported adequately. Yet in this case Y&O's 

section foreman, who was at the controls of the continuous miner, 

nonetheless cut through into an area of unsupported roof. 8 FMSHRC at 

954. Y&O argues that the "hole through" was not deliberate but 

accidental. Y&O Br. 7. This assertion is contradicted by the record. 

A member of Y&0 1 s safety department testified that the "hole through" 

was done deliberately for ventilation purposes. Tr. 266, 285-87. In 

any event, even if the "hole through11 were accidental, the roof control 

plan clearly prohibits cutting through into areas of unsupported roof 

and the section foreman is responsible for compliance with the plan. In 

discharging this important responsibility the section foreman is held to 

a "demanding standard of care in safety matters." Wilmot Mining Co., 9 

FMSHRC 684, 688 (April 1987) Here, the section foreman's conduct in 11 holing through" did not meet that standard and demonstrated a serious 

lack of reasonable care, exceeding ordinary negligence and constituting 

an unwarrantable failure to comply with section 75.200. 

Regarding the significant and substantial nature of the temporary 

roof support violation (Order No. 2823806), the judge was persuaded by 

the testimony of the inspector that there existed a reasonable 

likelihood that the hazard contributed to by the violation would result 

in a partial or complete roof fall resulting in serious or fatal 

1nJuries. 8 FMSHRC at 950. We have held that a violation is properly 

designated significant and substantial "if, based on the particular 

'1,/ The misplaced temporary supports in the A entry constituted only a 

part of the violation. There were other violative conditions. In the D 

entry there was one missing temporary support, and in the D to E 

crosscut there was one missing temporary support and one temporary 

support that was misplaced by 10 inches. On review Y&O does not address 

these conditions. 

2011 
' facts surrounding that violation, there exists ::' 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), we 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 reasonable 

likelihood that the hazard contributed to will 

result in an injury; and (4) a reasonable likelihood 

that the injury in question will be of a reasonably 

serious nature. 

The third element of the Mathies formula "requires that the Secretary 

establish a reasonable likelihooq that the hazard contributed to will 

result in an event in which there is an injury. 11 U.S. Steel Mining Co., 

6 FMSHRC 1834, 1836 (August 1984) (emphasis deleted). We have 

emphasized that, in accordance with the language of section 104(d)(l), 

it is the contribution of a violation to the cause and effect of a 

hazard that must be significant and substantial. Id. 

Y&O admits that it was not in compliance with its roof control 

plan. The evidence establishes that the discrete safety hazard 

contributed to by the violation was the danger of a roof fall. The 

issue is whether there was a reasonable likelihood that the hazard 

contributed to would result in an event in whjch there is an injury. 

The improperly supported roof was in the face areas of the No. 3 section 

and additional mining was planned in those areas. Continued normal 

mining operations would bring miners under the inadequately supported 

roof. Lawrence Wehr, a member of Y&0 1 s safety staff, conceded that 

miners in the cited area would be subject to danger, Tr. 135-37, 138-

41, Given the history of unstable roof at the Nelms No. 2 mine and the 

fact that continued normal mining operations would endanger miners, an 

injury causing roof fall was reasonably likely. Therefore, substantial 

evidence supports the administrative law judge 1 s finding that this 

violation was of a significant and substantial nature, 

In concluding that the "hole throughu violation (Order No. 

2823831) was of a significant and substantial nature, the judge relied 

upon the testimony of the inspector who stated that the "hole through11 

exposed a large area of unsupported roof and presented a significant 

roof fall hazard. 8 FMSHRC at 954. Although the Secretary established 

that the 11 hole through" constituted a violation of section 75.200 and 

that the violation contributed to the danger of a roof fall, we conclude 

that substantial evidence does not support a finding that there was a 

reasonable likelihood that a roof fall would result in an injury. 

It is undisputed that the section foreman operating the continuous 

2012 
mining machine was under supported roof at all times when he made the 

fan cuts and the "hole through." Tr. 230, 241, 246, 268, 273-74. It 

also is undisputed that Y&O was not going to mine further the rooms 

involved; these were the last cuts. Thus, had normal mining operations 

continued, no miners would have entered the rooms in which the "hole 

through11 occurred. In addition, Y&O posted danger signs at the entrance 

to the rooms leading to the "hole through. 11 In light of these facts, we 

hold that substantial evidence does not support the judge's conclusion 

that the violation significantly and substantially contributed to a mine 

safety hazard. 

Finally, we turn to the penalty aspects of the case. Y&O contends 

that in proposing civil penalties for the violations, the Secretary did 

not adhere to his penalty regulations. (30 C.F.R. Part 100) and that a 

remand to the Secretary is therefore necessary. Similar arguments by 

Y&O were addressed in detail by the Commission in another decision 

issued while the present case was pending on review. Youghiogheny & 

Ohio Coal Co., 9 FMSHRC 673, 679-80 (April 1987). As explained in this 

prior decision, the Commission possesses explicit statutory authority to 

assess an appropriate penalty based on the record evidence developed 

before it pertaining to the sta'tutory penalty criteria of section 

llO(i). 30 U.S.C. § 820(i). The Commission's penalty assessments are 

subject to judicial review. Because the record developed in an 

adversarial proceeding concerning the statutory penalty criteria will 

invariably be more complete and fairly balanced than the information 

normally available to the Secretary when he unilaterally proposes a 

civil penalty, no compelling legal or practical purpose would be served 

by requiring the Secretary to repropose a penalty after a hearing in a 

civil penalty proceeding has been concluded. Here, a full evidentiary 

hearing has been held and the judge has assessed civil penalties based 

on the evidence. Therefore, as in the prior case, the proper course is 

to review the judge 1 s penalty assessment to determine whether it is 

supported by the record. 

In assessing a civil penalty of $500 for the "hole through'' 

violation (Order No. 2823831) the judge considered his finding that the 

violation was significant and substantial but did not expressly refer to 

the gravity of the violation. 8 FMSHRC at 954. Although the penalty 

criterion of "gravity" (30 U.S.C. § 820(i)) and the significant and 

substantial nature of a violation (30 U.S.C. §814(d)) are not identical, 

they are based frequently upon the same or similar factual 

considerations. Quinland Coals, Inc., 9 FMSHRC 1614, 1622 n. 11 

(September 1987). Since we have determined that the "hole through" 

violation was not of a significant and substantial nature, we remand to 

the judge to examine the gravity of the violation in light of this 

determination and to assess an appropriate civil penalty. 

2013 
v. 

Accordingly, we affirm the judge's unwarrantable failure findings 

for both violations and the judge's significant and substantial finding 

with respect to the temporary roof support violation (Order No. , 

2823806). We vacate the judge's significant and substantial finding and 

civil penalty assessment for the "hole through" violation (Order No. 

2823831) and remand that matter for reconsideration of the civil 

penalty. 

Distribution 

Robert C. Kota, Esq. 

Youghiogheny & Ohio Coal Company 

P,O. Box 1000 

St" Clairsville 9 Ohio 43950 

Vicki Shteir-Dunn, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington? VA 22203 

Administrative Law Judge Gary Melick 

Federal Mine Safety & Health Review Connnission 

5203 Leesburg Pike, Suite 1000 

Falls Church, VA 22041 

2014 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

AUSTIN POWER, INC. 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

AUSTIN POWER, INC. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

December 21, 1987 

Docket Nos. CENT 86-59-R 

CENT 86-60-R 

CENT 86-61-R 

Docket No. CENT 86-40 

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

Commissioners 

DECISION 

BY~ Backley, Lastowka and Nelson, Commissioners 

In this consolidated contest and civil penalty proceeding arising 

under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et 

seq. (1982), the issues presented include whether Corrnnission Administrative 

Law Judge George A. Koutras erred in holding that Austin Power, Inc. 

("Austin Power 11 ), violated two surface coal mine safety standards: 30 

C.F.R. § 77.1607(g) requiring equipment operators to be certain that all 

persons are clear before starting or moving equipment l/ and 30-c.F.R. 

§ 77.1710(g) mandating that employees be required to wear safety belts and 

ll 30 C~F.R. § 77.1607(g) provides: 

Equipment operators shall be certain, by signal or 

other means, that all persons are clear before starting 

or moving equipment. 

2015 
lines where there is a danger of falling. II 8 FMSHRC 1671 (November 

1986)(ALJ). The Commission granted Austin Power's petition for 

discretionary review. For the reasons that follow, we reverse the judge's 

conclusion that Austin Power violated section 77.1607(g) and affirm his 

finding that Austin Power violated section 77.1710(g). 

This case arises out of a fatal accident that occurred on August 19, 

1985, at the Big Brown Strip Mine located in Freestone County, Texas. The 

mine is a surface coal mine owned and operated by Texas Utilities Company. 

Austin Power is an independent contractor and was engaged in erecting a 

cross-pit spreader at the mine. The spreader is an extremely large piece 

of tracked equipment that removes top soil from the area to be mined. Two 

separate conveyor belt booms extend horizontally from the spreader at 

different heights. The higher 70-meter conveyor belt boom and the lower 

20-meter conveyor belt boom are designed to receive and transport topsoil 

that has been removed from the ground by the spreader's digging apparatus. 

Opposite these conveyor belt booms, another conveyor belt boom for 

discharging the topsoil extends horizontally from the spreader. 

On the day of the events at issue, the electrical power to the 

spreader had not been connected and the booms were unable to be moved on 

their own. The 20-meter boom haclbeen released from its shorings underneath the 70-meter boom'and had been moved by a 518 Link-Belt crane 

laterally from west to east, so that five counterweights, each approximately 24,000 pounds in weight, could be installed. The counterweights 

balance th~ boom when in operation. In order to install the counterweights, two separate cranes were used. The 518 Link-Belt crane was 

connected to the receiving end of the 20-meter boom. The other crane, 

which was used to load the counterweights at the boom 1 s discharge end, was 

near the boom's fulcrum. 

After the loading of the counterweights was completed, the 20-meter 

boom was to be repositioned under the 70-meter boom. It was determined 

that the 518 Link-Belt crane's boom could not pass under the 70-meter boom 

and, as a result, could not complete the procedure of repositioning the 20-

meter boom underneath the 70-meter boom. Therefore, a cherry picker on the 

other side of the 70-meter boom was to swing the 20-meter boom from the 

point beyond which the crane could no longer proceed to the proper location 

under the 70-meter boom. Three employees of Austin Power were assigned to 

attach a wire-rope choker to the end of the 20-meter boom for the purpose 

of hooking it to the cherry picker. The three employees walked to the end 

of the 20-meter boom1 s covered walkway and stood on the walkway while the 

boom was being moved by the crane. The walkway was 36 feet above the 

ground and was equipped with guardrails and floor plates of metal grating. 

30 C.F.R. § 77.1710 provides in part: 

Each employee working in a surf ace coal mine 

shall be required to wear protective clothing and 

devices as indicated below: ••. 

(g) Safety belts and lines where there is danger of 

falling •.•. 

2016 
The three employees were wearing safety belts, but they did ;-10t "tie off, 11 

., attach their lines to the boom. 

One of Austin Power's employees, Steve Smith, was in the process of 

attaching the choker to the walkway frame near the end of the 20-meter boom 

while the other two employees were standing behind him. A rigging foreman 

for Austin Power, James Patterson, was on the ground, 35-40 feet from the 

end of the boom, observing the employees. While Smith was attaching the 

choker, an eyelet connecting a hydraulic device at the opposite end of the 

20-meter boom broke. The eyelet failure caused the end of the boom to jerk 

suddenly upwards in a 11whiplash11 motion. The three employees were 

propelled off the boom, and the metal floor grating separated from the 

walkway and fell to the ground. Smith fell to his death. The other two 

employees grabbed onto part of the boom as they fell and were not injured. 

The following day, an inspector of the Department of Labor's Mine 

Safety and Health Administration ( 11MSHA11 ), Donald Summers, arrived at the 

mine to investigate the accident. As a result, Summers issued,.citations 

alleging violations of sections 77.1607(g) and 77.1710(g). Summers charged 

that because Smith and the other two employees were on the 20-meter boom 

while it was being moved by the crane, the crane operator uwas not certain 

that all persons were in the clear before he put his machine into 

operation11 and, consequently, that Austin Power had violated section 

77.1607(g). Govt. Ex. P-1. Summers also charged that under 77.1710(g) the 

employees on the boom were required to have tied off their safety belts 

since they were exposed to a danger of falling. In addition, Summers found 

that both violations were 11 significant and substantial" and that Austin 

Power was negligent. The Secretary proposed civil penalty assessments in 

the amount of $3,000 for each violation. 

At the hearing before Judge Koutras, the Secretary contended that as 

applied to the facts of this case, section 77.1607(g) required the crane 

operator before starting or moving the crane to be certain that persons 

were not only clear of the crane, but also not on the crane 1 s load, here 

the 20-meter boom. As to section 77.1710(g), the Secretary and the MSHA 

inspector conceded at the hearing that the two other employees present on 

the boom, but not involved in the actual installation of the choker, were 

not required to wear safety belts and to tie off. However, the Secretary 

asserted that a reasonable employer would have required Smith to tie off 

when assigning him to a task that required him to place his body between 

guardrails on an elevated walkway thereby creating a danger of falling. 

Austin Power responded that section 77.1607(g) did not apply to the circumstances that existed at the time of the accident. Austin Power argued that 

the employees were not riding the "load11 of the crane and, in any event, 

were in the clear because the very design and purpose of the 20-meter boom 

was to permit employee access. Austin Power further argued that section 

77.1710(g) was not applicable, since working on the 20-meter boom did not 

involve a hazard of falling. Also, it argued that its employees were 

required to wear safety belts and lines where there was a danger of falling 

as evidenced by its safety rules. 

The judge rejected Austin Power's arguments. He determined that 

section 77.1607(g) applied to the three employees 11while on the moving boom 

which was being lifted and maneuvered about during the course of the 

2017 
workshift in question. 11 8 FMSHRC at l716. He accordingly found that the 

crane operator had a duty to be certain that the employees were clear of 

the boom before the crane was ready to move the boom, that this duty was 

not met, and that section 77.1607(g) was therefore violated. Id. In 

concluding that Austin Power also violated 30 C.F.R. § 77.1710fg), the 

judge found that Smith's position on the walkway while in the process of 

installing the choker placed him in danger of falling. 8 FMSHRC at 1719-

22. The judge found that 11 it should have been clear to a reasonably 

prudent person that a danger of falling existed and that Smith should have 

tied off." 8 FMSHRC at 1722. The judge rejected Austin Power's argument 

that its work rules regarding use of safety belts where a danger of falling 

is present were adequate to defeat the violation in this case. He found 

that an employee of Austin Power could reasonably have concluded that he 

was not required to tie off while performing work in an elevated walkway 

protected by handrails, 36 feet off the ground. 8 FMSHRC at 1724-25. 

Finally, the judge concluded that the violations were "significant 

and substantial," and were the result of Austin Power's negligence. The 

judge assessed civil penalties of $2,000 and $2,500, respectively, for the 

violations. Austin Power challenges the judge's findings and conclusions 

regarding both violations. 

We hold that section 77.1607(g) requires the operator of equipment 

subject to the standard to be certain that all persons within the potential 

zone of danger are clear from reasonably foreseeable hazards resulting from 

the starting or moving of the equipment. We agree with the judge that the 

standard applied to the crane operator, but hold that the Secretary did not 

establish that the crane operator failed to make certain that all persons, 

including the three employees on the boom1 s walkway, were clear before he 

started or moved the equipment. Accordingly, we find no violation of the 

standard. 

As contrasted with more detailed regulations, the requirement of 

section 77.1607(g) that "[e]quipment operators be certain ... that all 

persons are clear before starting or moving equipment" is the kind of 

regulation made "simple and brief in order to be broadly adaptable to 

myriad circumstances." Kerr-McGee Corp., 3 FMSHRC 2496, 2497 (November 

1981). Generally, the adequacy of an equipment operator 1 s efforts to 

comply with section 77.1607(g) is evaluated in each case with reference to 

an objective test of what actions would have been taken by a reasonably 

prudent person familiar with the mining industry, relevant facts, and the 

protective purpose of the standard. See,~·· United States Steel Corp., 

6 FMSHRC 1908, 1910 (August 1984); United States Steel Corp., 5 FMSHRC 3, 5 

(January 1983); Alabama By-Products, 4 FMSHRC 2128, 2129 (December 1982). 

In this instance, such a determination requires consideration of what a 

reasonably prudent operator of the Link-Belt crane would have done under 

the circumstances to make certain that all persons were clear before he 

started or moved the crane. 

Austin Power argues that the obvious purpose of the standard is to 

require an equipment operator to make certain that he does not hit 

bystanders with his equipment. According to Austin Power, the crane 

operator received proper signals and made certain that all bystanders were 

clear before starting or moving the crane and that the three employees were 

2018 
clear because the crane could not come into contact with them. 

A plain reading of section 77.1607(g) reveals that it does not limit 

the protection it affords to any particular class of persons, such as 

bystanders. It refers to 11 all persons 11 being clear. In addition, the 

language does not suggest that the hazard with which the standard is 

concerned is limited to situations in which people might be run over or hit 

by the equipment itself. Rather, the standard protects all persons within 

the potential zone of danger from all reasonably foreseeable hazards 

resulting from the starting or moving of the equipment. Under the 

standard, therefore, it was the duty of the crane operator to make certain 

that all persons within the potential zone of danger were clear of 

reasonably foreseeable hazards before he started or moved his equipment. 

In this case, the 518 Link-Belt crane was being used to reposition a 

boom on the cross-pit spreader. As an integral part of the repositioning 

operation, the three Austin Power employees were assigned to go to the 

walkway of the boom. The walkway was intended by its very design to permit 

the presence and passage of workers during the operation of the spreader. 

Although the crane was to apply force to the boom in order to effectuate a 

lateral movement, the three employees were clear of any reasonably 

foreseeable hazard posed by that movement. They were on a covered walkway 

that was protected by a fall protection system consisting of a top rail, 

mid-rail, and toe-board. Further, movement of the boom and its attached 

walkway was anticipated in the design and function of the spreader. The 

crane operator knew that the employees were on the walkway to transfer the 

20-meter boom from his crane to the cherry picker on the opposite side and 

the employees knew that the boom was to be moved. The crane operator 

testified that he moved the rig upon receiving a signal from ground 

personnel. Tr. 154. The crane operator also testified that throughout the 

day of the accident he received signals and instructions from supervisory 

personnel. Tr. 133. Before the crane actually began to reposition the 

boom, the project general superintendent was actively involved in issuing 

instructions to the employees on the boom and to ground personnel. Tr. 

249. James Patterson, the rigging foreman, was on the ground underneath 

the boom supervising the three employees and flagging the crane operator. 

Tr. 203. Thus, the crane operator was aware of the presence of the three 

employees on the protected walkway, was receiving signals, and made a 

determination that all persons were clear of any reasonably foreseeable 

danger resulting from the starting or moving of his equipment. Tr. 144. 

The record contains no proof that any of the employees on the walkway was 

in an unprotected position at the time the crane operator began to 

reposition the boom. Smith's attempt to attach the choker for hooking onto 

the cherry picker, placing him in a danger of falling as discussed below, 

appears to have occurred after the Link-Belt crane had begun to move the 

boom. Therefore, we find that the crane operator acted as a reasonably 

prudent person in similar circumstances would have and, therefore, met the 

duty imposed by the standard. Consequently, we conclude that there i~ 

insufficient evidence to support the judge's finding of violation of 

section 77.1607(g). 

In concluding that Austin Power violated section 77.1710(g), which 

provides that employees nshall be required to wear ••. safety belts and' 

lines where there is a danger of falling, 11 the judge determined that Smith 

2019 
was in danger of falling while attempting to attach the choker and he found 

the substance and enforcement of Austin Power's safety rules regarding the 

wearing of safety belts and lines to be lacking. 8 FMSHRC at 1722-25. In 

Great Western Electric Co., 5 FMSHRC 840, 842 (May 1983), the Commission, 

construing the corollary safety belt standard applicable to underground 

metal and nonmetal mines, concluded tha·t a danger of falling exists when 

"an informed reasonably prudent person would recognize a danger of falling 

warranting the wearing of safety belts and lines." Further, in Southwestern Illinois Coal Corp., 5 FMSHRC 1672, 1675 (October 1983), the 

Commission concluded that section 77.1710(g) mandates that an operator 

establish a program requiring the wearing of safety belts and lines where 

dangers of falling exist and enforce the requirement diligently. 

The administrative law judge concluded that in the circumstances of 

the present case a reasonably prudent person would have recognized that a 

danger of falling existed and that Smith should have tied off. Our task on 

review is to determine whether substantial evidence supports the judge's 

finding. 30 U.S.C. § 823(d)(2)(A)(ii)(I). Substantial evidence is 11 such 

evidence as a reasonable mind might accept as adequate to support [the 

judge 1 s] conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 

(1938). As recited by the judge, the evidence establishes that while 

attempting to attach tl)e choker~ Smith was on his knees near the end of the 

boom, reaching under· the middle railing of the guardrail with at least his 

head outside the railing. 8 FMSHRC at 1722. His hands were occupied with 

swinging the choker cable under the walkway from one side and catching it 

on the other. This was occurring in a location 36 feet above ground. 

Given the circumstances and the work Smith was performing, we conclude that 

a reasonably prudent person would have recognized a danger of falling and 

would have tied off. Consequently, we hold that substantial evidence 

supports the finding of a violation of section 77.1710(g). 

The judge also addressed Austin Power's safety rules concerning the 

use of safety belts and lines. The judge held that the safety rules were 

inadequate because under those rules an employee working 36 feet above 

ground on an elevated walkway protected by handrails could conclude that he 

was not required to tie off, In addition, the judge found the safety rules 

to be inadequate because under circumstances in which the employee reaches 

through the railings, the decision to tie off is left to the discretion of 

the employee. 8 FMSHRC at 1724-25. We agree with the Secretary that 

consideration of Austin Power's rules was unnecessary to a disposition of 

the case, In Southwestern, in response to the Secretary 1 s argument that an 

operator must guarantee the wearing of safety belts, the Commission stated 

that "when an operator requires its employees to wear belts when needed and 

enforces that requirement, it has discharged its obligation under the 

regulation." 5 FMSHRC at 1675. In the instant case, the controlling issue 

is whether safety belts and lines were "needed, 11 that is, whether there was 

a danger of falling, not whether Austin Power 1 s program requiring the use 

of safety belts and lines was adequate. Austin Power did not regard , 

Smith 1 s failure to tie off under the circumstances he faced as a violation 

of its rules and policies because, in its view, no danger of falling was 

presented. The rigging foreman testified that Smith was not required to 

tie off, Tr. 197, and this argument has been vigorously advanced on review. 

The issue of the adequacy of an operator's program and its enforcement is 

only relevant when an operator contends that an employee violated the 

2020 
requirements of its program due to the employee's disobedience or 

negligence. Southwestern, 5 FMSHRC at 1675 (quoting North American Coal 

Corp., 3 IBMA 93, 107 (April 1974)). Because Austin Power does not contend 

that Smitp violated its safety rules or that he was disobedient or negligent, but insists that Smith was not required to be tied off, Southwestern 

Illinois is inapposite. We conclude that substantial evidence supports the 

judge's finding that a danger of falling was present and we affirm his 

finding of a violation of section 77.1710(g). 

Finally, we affirm the judge's finding that the violation of section 

17.l710(g) was "significant and substantial" and was the result of Austin 

Powe:r 1 s negligence. A violation is properly designated significant and 

substantial "if, based on the particular facts surrounding the violation, 

there exists a rea.sonable likelihood that the hazard contributed to will 

result in an injury or illness of a reasonably serious nature." Cement 

Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 1981); Youghiogheny 

& Ohio Coal Co., 9 FMSHRC 673, 677 (April 1987); also, Consolidation 

C-0al Co. v. FMSHRC, 824 F.2d 1071, 1078-79 (D.C. Cir. 1987). In Mathies 

Coal Co., supra, 6 FMSHRC at 3-4 (January 1984), we explained: 

In order to establish that a violation of a mandatory 

safety standard is significant and substantial under 

National GyEsillil, the S~cretary must prove: (1) the 

underlying violation of a mandatory safety standard; 

(2) a discrete safety hazard -- that is, a measure of 

danger to safety contributed to by the violation; (3) a 

reasonable likelihood that the hazard contributed to 

will result in an injury; and (4) a reasonable 

likelihood that the injury in question will be of a 

reasonably serious nature. 

The third element requires the Secretary to establish a reasonable likelihood that the hazard contributed to will result in an injury producing 

event. Furthermore, it is the contribution of a violation to the cause and 

effect of a hazard that must be significant and substantial, U.S. Steel 

Mining Co., Inc., 6 FMSHRC 1834, 1836 (August 1984), and the violation 

itself "must be evaluated in terms of continued normal mining operations. 11 

Youghiogheny & Ohio, 9 FMSHRC at 677 78; U.S. Steel Mining Co., Inc .• 

6 FMSHRC 1575, 1574 (July 1984). 

The discrete safety hazard contributed to by the violation of section 

77.1710(g) was the danger of falling. Based on the evidence recited above 

describing Smith's position on his knees with at least his head beyond the 

guardrails while attempting to attach the choker while 36 feet above 

ground, we conclude that even if the work had proceeded normally, a fall 

under the circumstances was reasonably likely. Accordingly, we affirm the 

judge's finding that the violation was of a significant and substantial 

nature. 

Regarding the judge's finding of negligence in connection with this 

violation, the rigging foreman was directly supervising Smith's work from 

the ground and was able to observe Smith's body position and efforts to 

attach the choker. Tr. 195-97, 203. We agree with the judge that with the 

exercise of reasonable diligence, the foreman should have recognized the 

2021 
falling hazard to which Smith was exposed and should have instructed Smith 

to tie off. 8 FMSHRC 1730. The negligence of the foreman was properly 

imputed to the operator in determining the amount of civil penalty. Wilmot 

Mining Co., 9 FMSHRC 684, 687 (April 1987); Southern Ohio Coal Co., 

4 FMSHRC 1459, 1463-64 (August 1982). 

Accordingly, we reverse the judge's finding that Austin Power 

violated section 77.1607(g) and vacate the civil penalty assessed by the 

judge for the violation. In addition, we affirm the violation of section 

77.1710(g) and the civil penalty assessed. 

// 

~-~~£-Cz~~-kL1 ~ Richard V. Backley, Commissioner ~ 

A f/i_ ! "''~ r!). ~y/[_~ /James A. Lastowka, Commissioner 

Nelson, 

-7~ Commissioner 

2022 
Chairman Ford and Commissioner Doyle, concurring in part and dissenting 

in part: 

We join in the majority's decision to the extent that it reverses 

the administrative law judge's finding that Austin Power, Incorporated 

1,riolated section 77. 1607(g) and vacates the civil penalty assessed by 

the judge for that violation. We would, however, reverse the judge on 

a more basic ground, viz. that the standard does not apply to the facts 

presented in this case. We also respectfully dissent from the decision 

to the extent tnat it affinns the judge's finding of a violation of 

sect.ion 77 ~ l 710(g) and the civil penalty assessed for that alleged 

•;i ioL.a t ion. 

30 C.F.R. §77.1607(g) provides: 

Equipment operators shall be certain, by 

signal or other means, that all persons 

are clear before starting or moving 

equipment. 

The Secretary asserts that this standard prohibits any employees 

from being on the boom of the spreader at any time while it is being 

moved. Tr. 46, 69, 257. We believe that the plain meaning conveyed 

to a person of ordinary intelligence by the standard as drafted is 

far closer to that articulated by the crane operator at the hearing: 

"IIJt i.s your responsibility not to jump into a rig, crank it up and run 

over the :mechanic that is changing your oil." Tr. 154. The hazard 

addressed in the crane operator's statement is that posed by self-propelled mobile equipment that is capable of injuring pedestrians or 

operators of nearby equipment who are not adequately forewarned of a 

start up or movement. Thus, the 518 Link-Belt crane operator was 

responsible for seeing that the ground around the crane and the path 

it was to take were clear before starting or moving the crane. TUs 

testiii:raony indicates that he took those actions. 

Section 77.1607(g) has been placed in Subpart Q - Loading and Haulage 

and contains as its own heading: "Loading and haulage equipment; operation. n The record contains no evidence of the history or purpose of the 

section nor does i~ contain evidence of prior enforcement actions by 

the Secretary that would have put the operator on notice that this . 

regulation prohibited anyone from being on the cross-pit spreader's boom 

at any time while it was being moved by the Link-Belt crane. On the 

contrary, another section within Subpart Q, subsection 77.160l(c), 

specifically deals with "Transportation of persons; restrictions" and 

specifically limits and prohibits riding or being transported outside the 

cabs and beds of mobile equipment, with no mention being made of the type 

2023 
of equipment at issue in this case. Further, section 77.1607(f) requires 

persons to notify th~ equipment operator before they get on or off 

loading and haulage equipment. 

All of this leads us to the conclusion that, if it were the 

Secretary's intention to enjoin persons from riding on this spreader 

boom at any time that it was in motion, that intention was not adequately 

expressed in section 77.1607(g). See Phelps Dodge Corporation v. FMSHRC, 

United Steelworkers of America, AFL-CIO, Local Union 616, Intervenor. 

681 F.2d 1189 (9th Cir. 1982). "Laws [must] give the person of ordinary 

intelligence a reasonable opportunity to know what is prohibited, so that 

he may act accordingly." Alabama By-Products, 4 FMSHRC 2128, 2129 

(December 1982) (quoting Grayned v. City of Rockford, 408 U.S. 104, 

108-109 (1972)). 

The majority, in finding coverage by the standard, characterizes 

it as one that is made "simple and brief in order to be broadly adaptable 

to myriad circumstances." Kerr-McGee Corp., 3 FMSHRC 2496, 2497 (November 

1981). However, such broad standards must afford reasonable notice of 

what is required or proscribed. United States Steel Corp., 5 FMSHRC 3, 

4 (January 1983). We do not disagree that the adequacy of the operator's 

efforts to comply with those standards that are designed to cover myriad 

circumstances is to be evaluated in each such case with reference to those 

actions that would have been taken by a reasonably prudent person familiar 

with the mining industry, the relevant facts, and the protective purposes 

of the standard. However, in this case, the Secretary's position permits 

absolutely no latitude or discretion but, rather, asserts a very specific 

requirement: that no one be permitted on the boom of the cross-pit spreader 

while it is moving. If the Secretary's requirement is so specific, he could 

have, and should have, said so. See Diamond Roofing Co., Inc., 528 F.2d 645 

(5th Cir. 1976). As the Commission has held previously, broad standards 

"cannot be applied in a manner that fails to inform a reasonably prudent 

person that the condition or conduct at issue [is} prohibited by the 

standard. 11 Mathies Coal Co., 5 FMSHRC 300, 303 (March 1983). Safety 

standards, if they are to ensure safety to miners and prevent accidents, 

must put the operator on notice beforehand of what is required of him. 

We also dissent from the majority 1 s affirmance of a violation by 

Austin Power of 30 CFR §77.1710(g) because the record fails to provide 

substantial evidence to support the judge's finding that a danger of 

falling existed. 

30 CFR §77.1710(g) provides, in relevant part, as follows: 

Each employee working in a surf ace 

coal mine .•. shall be required to 

wear protective clothing and devices 

as indicated below: •.. 

(g) Safety belts and lines where there 

is danger of fallipg ••• 

2024 
Immediately prior to the accident, three employees were situated 

along a covered walkway that was attached to the 20-meter boom of the 

cross-pit spreader. The walkway was equipped with a guardrail that 

consisted of a top rail approximately 42 inches above the walkway 

surface, a mid rail and a toe board. The fatal accident occurred when 

an eyelet on the spreader broke and caused the 20-meter boom to jerk upwards, propelling the three employees upward from the walkway into the air. 

One of the employees, Steve Smith, fell to his death while the other two 

managed to regain a hold onto the structure. After inititally charging 

that all three employees were in danger of falling, the Secretary conceded at the hearing that only Steve Smith was in danger of falling prior 

to the accident and, therefore, required to wear a safety belt and be tied 

off. The basis for the Secretary's allegation of violation was that 

Smith's work activity of installing a choker placed him in danger of 

falling. Therefore, analysis of whether Smith's work activity placed 

him in danger of falling must be made without consideration of the fact 

that Smith was propelled from the walkway as a result of the eyelet 

failure, an event totally unrelated to his installation of the choker 

and, by all accounts, totally unforeseeable. 

Four witnesses testified on the issue of whether Smith's installation 

of the choker placed hi:gl in danger of falling. MSHA inspector Donald 

Summers, who participated in the investigation of the accident, testified 

that there was a need for Smith to have a safety belt and be tied off if 

he was performing work "outside" the handrail. Tr. 105. However, 

Summers, who was not an eyewitness to the event and began the investigation two days after it occurred, did not testify as to whether, by 

being "outside" the handrail, he meant one's entire body, a portion of 

the torso, or any body part extending beyond the handrail. The uncontradicted evidence was that Smith, who weighed 235 pounds, was on his 

knees installing the choker with only his hands and a portion of his 

head outside the railing, between the mid rail and the toe board. Tr. 

163, 170, 171. Inspector Summers did not testify that this constituted 

being outside the railing, nor did he offer his opinion as to how Smith's 

actions would have put him in danger of falling. As mentioned, the inspector did not believe it was necessary to be tied off at all times when 

one was on the walkway, Indeed, Inspector Summers had traveled the very 

walkway in issue without being tied off with a safety line. Tr. 103-105. 

The second witness was Russell Crowell, the operator of the 518 LinkBel t crane that was being used to move the spreader's 20-meter boom. 

Crowell was unable to observe Smith's position on the walkway at the 

time of the accident, but he testified that he and Smith had worked 

extensively on the spreader and he knew that Smith's practice was to 

tie off whenever there was a risk of falling. Tr. 143. 

Jeffrey Arent, the third witness, was an eyewitness to the event, 

and was located on the same walkway as Smith when the eyelet failed. He 

testified that Smith was kneeling on the walkway at the time of the 

accident with his head "just barely out" and his hands "out there" 

(i.e. outside the guardrail) Tr. 163. Mr. Arent believed there was no 

need, to tie off under those circumstances. Tr. 173. 

2025 
The last witness, James Patterson, rigging foreman at the site, was 

also an eyewitness. At the time of the accident he was on the ground 

some 35 to 40 feet from the end of the 20-meter boom. He observed Smith 

kneeling on the walkway, putting the choker around the framework. In 

his opinion Smith was not in danger at: falling while performing th'at 

work. Tr. 197. 

In order to establish substantial evidence that a danger of falling 

existed, the record must do more than create a suspicion of the existence 

of that fact. Rivas v. Weinberger, 475 F.2d 255, 257 (5th Cir. 1973). 

Anything in the record that "fairly detracts" from the weight of the 

evidence must also be considered and a finding should not be sustained 

"merely on the basis of evidence which in and of itself justified it, 

without taking into account contradictory evidence or evidence from which 

conflicting inferences could be drawn ••• " Universal Camera Corp. v. NLRB, 

340 u.s. 474, 487 (1951). --

In this case, the testimony of the two eyewitnesses to the event, 

Arent and Patterson, that they did not believe that Smith's extension 

of his hands and part of his head beyond the guardrail placed him in any 

danger of falling, when coupl~d with the testimony of the crane operator 

that Smith was a careful individual who used his safety belt and line 

"When exposed to a falling hazard, results in a record that provides 

formidable evidence that Smith was not exposed to such a hazard when he 

was installing the choker. This evidence must be considered along with 

the testimony of inspector Summers who was not at the scene at the time 

of accident, only 'understood' what Smith's position was while installing 

the choker, did not elaborate as to what he meant by being 'outside' the 

handrails and did not explain how Smith's actions would put him in danger 

of falling. Considering the entire record, we believe it fails to provide 

substantial evidence that a danger of falling existed prior to the totally 

unrelated, unforeseeable event of the eyelet failure. 

There being no evidence to support the finding, the judge's determination that nMr. Smith's position on the walkway while in the process of 

installing the choker in question placed him in danger of falling" is 

without foundation. 8 FMSHRC 1671, 1722 (November 1986). Similarly, 

the judge's statement that the railing afforded Smith "little protection 

and that he [Smith] could have lost his balance while attempting to swing 

the choker under the walkway and fallen to the ground" are conclusions 

unsupported by the record. Id. at 1722. Accordingly, we would vacate 

the finding of a violation of 30 CFR §77.1710(g). 

_,, . . // /" /i'/ ,/ : / / l,1 .• , I ' 

; /Cc;-r:__..:.__.- c/. " ·~Le<-.-!" I '--ZJ6ice A. Doyle, Commissid'ner 

2026 
Distribution 

Vicki Shteir-Dunn, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Jennifer A. Youpa, Esq, 

Steven R. McCown, Esq. 

Jenkens & Giichrist 

3200 Allied Bank Tower 

Dallas, Texas 75202 

Administrative Law Judge George Koutras 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, VA 22041 

2027 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

UTAH POWER & LIGHT CO., 

MINING DIVISION 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

and 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

December 23, 1987 

Docket Nos. WEST 87-130-R through 

WEST 87-163-R 

WEST 87-243-R through 

WEST 87-249-R 

UNITED MINE WORKERS OF AMERICA 

BEFORE: Ford, Chairman; _Backley, 'Doyle, Lastowka, and Nelson, Commissioners 

ORDER 

BY THE COMMISSION : 

Utah Power & Light Co., Mining Division ("UP&L") has petitioned the 

Commission for interlocutory review of an order issued in these proceedings 

by Commission Administrative Law Judge John J. Morris denying UP&L's motion 

for summary decision. Respondent Secretary of Labor and Intervenor United 

Mine Workers of America ("UMWA") oppose the petition. Upon consideration 

of the petition and oppositions, the petition is denied for the reasons 

set forth below. 

On March 24? 1987, as a result of an investigation by the Department 

of Labor;s Mine Safety and Health Administration ("MSHA") of a fire and 

loss of life at the Wilberg Mine in December 1984, the Secretary issued 

numerous citations and orders to "Emery Mining Corp., and its successorin-interest Utah Power & Light Co., ¥.ining Division." At the time of the 

fire, the Wilberg Mine was owned by UP&L but, pursuant to contract, was 

being operated for UP&L by Emery Mining Corporation ("Emery11 ). On 

April 16, 1986, UP&L purchased Emeryvs assets and assumed direct operation 

of the Wilberg Mine. 

UP&L contested the citations and orders issued to it by the Se~retary 

asserting that it was "not liable for the violation[s] as Emery's successorin-interest." The Secretary filed general answers to UP&L's notices of 

contest, denying all allegations contained in the contests. 

2028 
On May 22, 1987, during the course of pre-hearing proceedings, UP&L 

filed a motion for summary decision pursuant to Commission Procedural Rule 64, 

29 C.F.R. § 2700.64, arguing that, as a matter of law, it was not liable as a 

successor-in-interest for the violations alleged in the citations and orders. 

The Secretary filed a response and cross-motion for summary decision, asserting 

that "UP&L can be held liable as either 'successor-in-interest' to [Emery] or 

independently as a mine operator for violations cited by [MSHA] .••• " Sec. 

Response and Cross-Motion for Summary Judgment at 3. 

In an unpublished order issued on August 5, 1987, the judge denied both 

motions. The only explanation given in the order for his denial was that "a 

genuine issue of fact concerns whether UP&L was in control of the Wilberg 

Mine at the time of the alleged violations." Order at 3 (August 4, 1987). 

On September 18, 1987, UP&L moved the judge for reconsideration, contending 

that the question of whether UP&L was in control of the Wilberg Mine, 

although possibly relevant to whether UP&L may be held liable as an operator, 

was irrelevant to whether UP&L was liable as Emery's successor-in-interest 

as charged in the citations and orders -- the sole issue raised in UP&L's 

motion for summary decision. Judge Morris denied the motion for reconsideration without explanation. 

Commission Procedu:ral Rule 74, 29 C.F.R. § 2700.74, sets forth the 

standard of review governing consideration of such petitions: The Commission, 

in its discretion, may grant interlocutory review nupon a showing that the 

[challenged] ruling involves a controlling question of law and that 

immediate review of the ruling may materially advance the final disposition 

of the proceeding." Because the Secretary has failed to articulate clearly 

the theory underlying his charges against UP&L, and because the judge's 

order does not state clearly the basis for his rulings on UP&L's motions, 

we are unable to determine whether the issue of UP&L's liability as a 

successor-in-interest involves a controlling question of law and whether 

interlocutory review will advance the final disposition of this case. 

The record reveals that the contested citations and orders were issued 

to UP&L as Emery 7 s "successor-in-interest.n The record also reveals that 

the thrust of UP&L 1 s defense to date is that it is not liable as a successor. 

In response to UP&L 7 s motion for summary decision, the Secretary stated that 

UP&L also may be independently liable as an "owner-operator11 (Sec. Response 

at 7), but the major focus of the Secretary's argument was that UP&L is liable 

as a successor-in-interest. Sec. Response 8-21. Additionally, in response 

to UP&L 1 s motion for reconsideration the Secretary stated as follows: 

2029 
Although the Secretary determined that Emery was 

properly cited as the operator and UP&L was properly 

cited as a successor-in-interest, we fully agree 

that UP&L exercised operator-type health and safety 

responsibilities under the Mine Act. Therefore, if 

it is determined by the judge that, based upon th-efacts, UP&L was a co-operator of the Wilberg Mine at 

the time of the cited violation, then the Secretary , 

would accept that determination and would agree that 

such a determination would be a proper exercise of his 

authority •••• The facts at the time of issuance supported, in the Secretary's view, citing UP&L, at least, 

as a successor-in-interest. However, after review, 

further evidence might support charging UP&L as a cooperator as well as a successor-in-interest. 

Sec. Response at 3-4 (emphasis added). The Secretary further states in his 

opposition to UP&L's petition for interlocutory review that "[t]he fact that 

UP&L was cited as a successor does not mean that the judge may not hold it 

liable as an operator if the evidence supports such a finding." Sec. 

Opposition To Motion for Interlocutory Review 3 (emphasis added). The 

Secretary also argues that any defect in his pleadings may be corrected 

subsequently through Fed. -R. Civ. P. 15 (b)(amendments to conform to the 

evidence). 

We regard the existing state of the Secretary's pleadings as unfocused 

and confused, providing neither UP&L nor the Commission with a clear statement 

of his asserted basis for imposing liability upon UP&L. The Secretary as 

prosecutor is responsible for charging violations under the Mine Act, not the 

Commission. As UP&L notes, the Secretary's theory for imposing liability will 

determine the nature of UP&L's defense to the allegations contained in the 

citations and orders. UP&L Petition for Interlocutory Review 4-5. To avoid 

any possibility of prejudice to UP&L, a clear articulation of the liability 

theory or theories that the Secretary is alleging and intends to pursue in 

this important litigation is required. 

2030 
These proceedings are in a preliminary, prehearing stage. The Secretary 

must clarify the theory of liability upon which he intends to proceed. UP&L 

may, of course, renew or interpose whatever defenses or motions it deems 

appropriate. Finally, it is incumbent on the judge to fully explain the basis 

of his rulings on any such further motions. 

Accordingly, the petition for interlocutory review is denied. 

f7~d. yce ~e, CommiSSiO!le ~Le__ 

L. Clair Nelson, Commissioner 

2031 
Distribution 

Timothy M. Biddle, Esq. 

Thomas C. Means, Esq. 

Kevin J. Darken, Esq. 

Crowell & Moring 

1001 Pennsylvania Ave., N.W. 

Washington, D.C. 20004 

Paul H. Proctor, Esq. 

Utah Power & Light Company 

P.O. Box 899 

Salt Lake City, Utah 84110 

Colleen A. Geraghty, Esq. 

James B. Crawford, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Michael Dinnerstein, Esq. 

United Mine Workers of America 

900 15th St., N.W. 

Washington, D.C. 20005 

Administrative Law Judge John Morris 

Federal Mine Safety & Health Review Commission 

333 West Colfax Avenue, Suite 400 

Denver, Colorado 80204 

2032 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

HARLEY M. SMITH 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

December 29, 1987 

Docket Nos. KENT 86-23-D 

KENT 86-84-D 

BOW VALLEY COAL RESOURCES, INC. 

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

Commissioners 

ORDER 

BY THE COMMISSION: 

In this discrimination case arising under the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. §801 et seg. (1982), a Joint Motion to 

Dismiss has been filed based on settlement. For the reasons set forth 

below, the motion is granted. 

In decisions issued on April 14, 1987, and August 19, 1987, 

Commission Administrative Law Judge Avram Weisberger concluded that Bow 

Valley Coal Resources, Inc. ("Bow Valley 11 ). had unlawfully discharged 

Complainant Harley M. Smith in violation of section lOS(c)(l) of the 

Mine Act, 30 U.S.C. §815(c)(l), and ordered Bow Valley to reinstate Mr. 

Smith and to pay him approximately $52,880 in back pay plus interest, 

$2,500 in attorney1 s fees, and miscellaneous costs. 9 FMSHRC 735 (April 

1987) (ALJ); 9 FMSHRC 1468 (August 1987) (ALJ). Bow Valley filed a 

petition for discretionary review, which the Commission granted on 

September 25, 1987. 

On October 28, 1987, we issued an order granting the complainant 1 s 

motion to stay proceedings on review pending submission of a dismissal 

motion based on the parties 1 settlement of the case. On November 16, 

1987, the Commission received a brief Joint Motion to Dismiss, stahing 

that the parties "have.reached an agreement which disposes of all issues 

raised herein." The motion was signed on behalf of Great Western Coal 

Inc. ( 11Great Western"), which was described as the "successor 11 to Bow 

Valley. The Commission administratively directed the parties to 

supplement the record by submitting the actual settlement agreement. 

Cf. Secretary of Labor on behalf of John Koerner v. Arch Mineral Coal 

Co., 1 FMSHRC 471 (June 1979). The Commission has now received that 

2033 
agreement, which is signed by Smith, and certain additional information 

concerning the agreement. 

Upon consideration of the record as supplemented, we approve the 

settlement and grant the dismissal motion. Accordingly, our direction 

for review is vacated and the proceeding is dismissed. 

Commissioner 

L. Clair Nelson, Commissioner 

Distribution 

John C. Carter, Esq. 

Smith & Carter 

10.5 Central Street 

Harlan, Kentucky 40831 

Joshua E. Santana, Esq. 

Brown, Bucalos, Santana & Bratt 

201 West Short Street 

Lexington, Kentucky 40507 

Administrative Law Judge Avram Weisberger 

Federal Mine Safety & Health Review Connuission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

2034 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE '400 

DENVER, COLORADO 80W4 DEC 1 1987 

SECRETARY OF LABOR, CIVIL PENALTY PROCEED! NG 

MINE SAFETY AND HFALTH 

ADMINISTRATION CM SHA) 1 

Petitioner 

IX>cket No. WEST 8 7-172 

A.C. No. 48-01353-03503 K48 

v. Rochelle Mine 

TIC-THE INDUSTRIAL COMPANY' OF 

STEAMOOAT SPRINGS, IOC., 

Respondent 

. . 

DECISION 

Appearances: James H. Barkley, Esq., Off ice of the Solicitor, 

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

for Petitioner; 

JohnL.C. Black, ESq., TIC-The Industrial Company 

of Steamboat Springs, Inc., Steamboat Springs, 

Colorado, 

for Respondent. 

Before: Judge Cetti 

Statement of the Case 

This civil penalty proceeding arises under the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. § 801 et~., ("Mine 

Act"). The Secretary of Labor, on behalf of the Mine Safety and 

Health Administration, charges the operator of a coal mine with 

violating regulation 3 O c. F. R. § 77 .14 01 which req:ui res: 

"Hoists and elevators shall be equipped 

with overspeed, overwind, and automatic 

stop controls and with brakes capable 

of stopping the elevator when fully 

loaded. n 

This proceeding was initiated by the Secretary with the filing 

of a proposal. for assessment of a civil penalty. The operator 

filed a' timely appeal contesting the existence of the alleged 

violation and the amount of the proposed penalty. 

2035 
Discussion 

The Petitioner charges Respondent with using a "Grove crane 

RT 6205" (a mobile crane) as a manlift to hoist miners 60 feet up 

the side of the transfer building in a basket which was attached 

to the hoisting cable hook. The crane was not provided with overspeed, overwind, and automatic stop control. 

It was Respondent's position that the hoisting standard cited 

does not apply to mobile cranes unless they are positioned over a 

shaft and used to lower and raise men or materials in the shaft. 

Respondent contends that§ 77.1401 was intended to apply only to 

lifting devices used to raise or lower men or materials from or 

to an underground mine site and that the citation, therefore, was 

improperly issued. Respondent points out that the Dictionarx of 

Mining, published by the Bureau of Mines, makes no mention of 

mobile cranes in its definition of hoists. 

At the hearing the parties negotiated and stated on the record 

that they had reached a S,ettlement, subject to the approval of the 

Judge, under which the Petitioner moved that the proposed penalty 

be reduced from $240 to $140, and Respondent moved to withdraw its 

notice of contest. 

The proposed amendment to the penalty was based on information 

obtained by the Petitioner in its pretrial preparation of this 

matter. Primarily, Petitioner had found that Respondent had a 

written company policy setting out a number of safeguards pertaining to the use of a man-basket with a crane and that those 

safeguards, when used, were such that they showed that the gravity 

of the violation was not as severe as originally assessed by the 

Petitioner and further showed that the negligence of the Respondent 

was not as great as originally assessed by Petitioner o 

Conclusion 

After careful review and consideration of the pleadings, 

argumentsu and the information placed upon the record at the 

hearingu I am satisfied that the proposed settlement disposition 

is reasonable, appropriate and in the public interesto 

Accordingly, the motions made at trial are granted. 

2036 
ORDER 

Citation No. 2830003 is aff inned and respondent is ORDERED to 

pay a civil penalty of $140 within 30 days fran the date of this 

decision. 

- ;ft Cffi t F. Cetti ~ 

nistrative Law Judge 

Distribution: 

James H. Barkley, Esq., Office of the Solicitor, U.S. Department of 

Labor, 1585 Federal Building, 1961 Stout Street, Denver, Colorado 

80294 (Certified Mail) 

John Lo Co Blacku Esq. u TIC-The Industrial Company of Steamboat 

Springsu Inc.u 40185 Routt County Road 129v Steamboat Springs, 

Colorado 80477 (Certified Mail) 

/ot 

2037 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OTIS ELEVATOR COMPANY, 

Petitioner 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRE'rARY OF LABOR, 

MINE SAFETY AND HELATH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

OTIS ELEVATOR COMPANY, 

Respondent 

DEC2 1987 

CONTEs·r PROCEEDINGS 

Docket No. PENN 87-25-R 

Citation No. 2690792; 

10/27/86 

Docket No. PENN 87-26-R 

Citation No. 2690793; 

10/27/86 

CIVIL PENALTY PROCEEDINGS 

Docket No. PENN 87-69 

A.C. No. 36-00840-03501 B70 

Docket No. PENN 87-86 

A.C. No. 36-00840-03502 B70 

Cambria Slope Mine 33 

DECISION 

Appearances: Linda M. Henry, Esq., Philadelphia, PA, for 

Secretary of Labor; 

w. Scott Railton, Esq., Reed, Smith, Shaw & 

Mcclay, Washingtonv DC, for Otis Elevator 

Companyo 

Before~ Judge Fauver 

These consolidated actions were brought under the 

Federal Mine Safety and Health Act of 1977, 30 U.S.Co 

§ 801 et ~ Otis Elevator Company seeks to vacate two 

citations and the Secretary seeks civil penalties against 

Otis for the alleged violationso The key issue is whether 

Otis is subject to the provisions of the Act. 

Having considered the hearing evidence and the record as 

a wholev I find that a preponderance of the substantial, 

probative, and reliable evidence establishes the following: 

FINDINGS OF FACT 

1. Otis is an independent contractor that regularly 

inspects, services and repairs a deep shaft elevator at 

Cambria Slope Mine No. 33, which is operated by Beth Energy 

2038 
Mines, a subsidiary of Bethlehem Steel Corporation. Otis' 

contract with Bethlehem Steel Corporation calls for weekly 

inspection and maintenance of the elevator and repairs on an 

as-needed basis. The mine produces coal for use in or 

substantially affecting interstate commerce. 

2. Otis employs elevator mechanics in two capacities. 

Some mechanics are maintenance examiners, who perform weekly 

inspections and preventive maintenance· work on elevators. 

The other mechanics respond to service calls outside the 

scope of the routine inspections. Maintenance examiners, 

service mechanics, and helpers operating out of the 

Johnstown, Pennsylvania office of Otis service the elevator 

at the Cambria Slope Mine No. 33. The mine elevator is on a 

route that includes elevators in a Sears and Roebuck store, 

an office building, two banks and a hospital. The 

maintenance examiners, service mechanics, and helpers perform 

the majority of their work on elevators in above-ground 

facilities. 

3. Otis has an identification number assigned by MSHA 

for independent q~etractois who are subject to the Act. 

4. Otis' maintenance examiners spend between one and 

two hours a week inspecting and doing maintenance work on 

the mine elevator. If problems are discovered, the examiners 

may remain longer at the mine. Service mechanics and helpers 

average two to four "call back" trips to the mine each month. 

These range from one and a half to nine hours per visit 

depending on the repairs needed. On the average, Otis 

employees inspect or repair the mine elevator two times a 

week and spend up to 20 hours a month at the mine. In 

addition, Otis employees conduct a "no load" safety test of 

the elevator every 60 days. 

5o The elevator transports miners 800 feet underground, 

stopping at two coal searnso The elevator is the primary 

escapeway for 60 miners on each shift, and an alternative 

escapeway for 60 other miners. It was selected as the 

primary escapeway because it is the easiest and fastest way 

to exit the mine. Its other primary function is to transport 

all the production crews. Over 200 miners use the elevator 

each day to travel to and from their work underground. If 

the elevator were not available to transport the miners for 

their shift workv production of coal would be directly 

affected. The mine superintendent, Peter Merritts, estimated 

that production would decrease as much as 3,000 clean tons a 

day if the elevator were not available to transport the 

miners during a shift change. Also, the elevator is used to 

transport small tools used by the miners. 

6. Otis has control over, and responsibility for, the 

inspection, maintenance, and repair of the mine elevator. It 

has the responsibility for ensuring safe and reliable 

2039 
elevator transportation for all production miners as well as 

as personnel using the elevator as an escapeway. 

7. On October 27, 1986, MSHA Inspector Niehenke issued 

Citation 2690793 because Otis employees failed to tag an 

elevator electrical circuit while they were doing electrical 

work on the elevator. They had locked out the circuit, but 

they did not place a tag on the circuit. He issued Citation 

2690792 because the Otis ~nployees were doing electrical work 

on the elevator but they were not qualified as coal mine 

electricians or being supervised by a qualified coal mine 

electrician. 

In the 

amended the 

independent 

such mine." 

DISCUSSION WITH FURTHER FINDINGS 

1977 Amendments to the Mine Safety Act, Congress 

definition of a mine operator to include "any 

contractor performing services or construction at 

30 o.s.c. § 802(d). 

The Act defines "coal or other mine" as" •.. an area of 

land from which minerals are extracted ••• and •.• shafts, 

slopes, tunnels anq workings, structures, facilities on 

the surface or underground, used in ••• the work of 

extracting such minerals ••.• " 30 u.s.c. § 802(h). The 

Senate Committee reporting on the 1977 Amendments stated 

that, "it is the intent of this Committee that doubts be 

resolved in favor of inclusion of a facility within the 

coverage of the Act." s. Rep. No. 95-181, 95th Cong., 

reprinted in U.S. Code & Cong. Adm. News (1977) 3401, 3414. 

The Secretary's administrative "final rule" on 

independent contractors, found at Part 45, 30 C.F.R., defines 

independent contractor as a person or business that 

"contracts to perform services or construction at a mine." 

The preamble t~ the final rule reinforces the definition of 

independent contractor as one who performs service and repair 

work. The general discussion in the preamble states that the 

1977 Act clarified that "independent contractors performing 

services or construction at mines are subject to the Act." 

45 Fed. Reg" at 44494 (July 1, 1980). The commentary also 

states that independent contractors may perform "short-termn 

and "intermittent" work at the mines, and that they may be 

engaged in every type of work from a new mine construction to 

minor repairs" The Secretary particularly rejected litmus 

tests for identifying contractors and stated that 

"enforcement decisions should be made on the basis of the 

facts pertaining to each particular case." 45 Fed. Reg. 

444940 

Exposur~ of employees of an independent contractor 

to the same hazards as employees of the mine operator is an 

important consideration in determining application of the 

2040 
Act. Bituminous Coal Oper. Ass'n v. Secretary of the 

Interior, 547 F.2d, 240 (4th Cir. 1977). Another important 

consideration is the point that employees of independent 

contractors unschooled in mine health and safety may pose a 

threat to the safety of all persons working at the mine. 

National Industrial Sand Ass'n v. Marshall, 601 F.2d 689, 703 

C 3rd Cir. 1979). 

The Fourth Circuit has held that ~mployees of an 

electric utility company who read a meter monthly near a mine 

access road were not subject to the Act. Old Dominion Power 

Co. v. Donovan, 722 F.2d 92 (4th Cir. 1985).1/ The meter was 

isolated by a chain link fence. The Fourth-Circuit found 

that the meter en\ployees 11 rarely go upon mine property, and 

hardly, if ever, come into contact with the hazards of 

mining." 772 F.2d at 93. 

In contrast to that case, Otis employees perform 

frequent and substantial safety inspections and repairs of 

the mine elevator. Its employees have a continuing, regular 

presence at the Cambria Slope Mine No. 33. They visit the 

mine every week to inspect and service the elevator and in an 

average month ther also perf arm repairs at the mine four to 

six times. In January, 1986, for example the repair reports 

show six visits to the mine in addition to the four weekly 

maintenance visits, for a total of ten days at the mine. 

The mine elevator is a critical part of the mine. 

It is used as a "mantrip" for all of the production crews. 

If the elevator breaks down, production could be cut by as 

much as one third. The elevator is also an escapeway for 

part of the mine, and as such is subject to MSHA regulations. 

Thus, Otis employees have a substantial, recurring presence 

at the mine and they perform crucial safety repairs on a key 

lity of the mineo They are not "rare" visitors, 11 remoten 

from the dangers the mine as were the employees in Old 

Dominion" Otis more than meets the Act 1 s broad definition of 

independent contractor. If a point exists where a 

contractor's contacts with a mine are too minimal to bring it 

under the scope of the Act, that point is not met here. 

l/ The Fourth Circuit relied on the criteria in MSHA's 

~proposed rule," which initially identified an independent 

contractor as one involved in "major work" and having a 

"continuing presence" at the mine. 772 F.2d at 97, fn. 6. 

However, in promulgating the final rule MSHA specifically 

retreated from these two criteria. The Secretary is not 

bound by proposals published in the Federal Register that 

fail to survive in the final rule. 

2041 
Inspector Niehenke properly cited Otis for the 

violations in this case. Otis employees created both 

violative conditions. They did not tag the circuit they 

locked out and they performed electrical work on the elevator 

without the supervision of a qualified mine electrician. As 

its employees created the conditions, Otis was in the best 

position to remedy the violations. 

With regard to Citation 2690792, Otis violated the plain 

language of the regulation. Otis employees were performing 

electrical repair work and they were neither qualified by the 

Secretary as coal mine electricians nor being supervised by a 

qualified mine electrican. Performing elecrical work on the 

mine elevator without certified training and knowledge of 

mine safety and health rules and requirements presented a 

descrete safety hazard. This violation could reasonably be 

expected to result in an accident if persisted in over an 

indefinite period. The injuries likely in the event of an 

accident could reasonably be expected to be serious. The 

inspector's finding of a "significant and substantial" 

violation in Citation 26907~2 will therefore be affirmed. 

Otis also vi6lated the safety standard cited in Citation 

2690793. Otis had not tagged out the circuit its employees 

were working on. Thus there was a violation of 30 C.F.R. § 

77.501. Inasmuch as the Otis employees had locked out the 

circuit, the violation did not present a discrete hazard to 

the Otis employees or the operator's miners. The inspector 

therefore did not rate this violation "significant and 

substantial." 

Well before the inspection in these cases, Otis was 

expressly informed by.MSHA of its enforcement position that 

the Act applied to Otis' contract work at the subject mine. 

Otis disregarded this position and chose to work without 

complying with the Act and mine safety standards. The 

inspectorus allegation of an "unwarrantable" failure to 

comply with the standards cited in Citations 2690792 and 

2690793 will therefore be affirmed. 

Otisrr defense that its compliance with the Act and 

mine safety standards would create a "greater hazard" or a 

"diminution of safety" is raised in the wrong forum. The 

Commission has held that the "greater hazard" or "diminution 

of safety" defense is not permissible where the operator has 

not first filed a petition for modification with the 

Secretary of Labor. In Penn Allegheny Coal Co., 3 FMSHRC 

1392 (1981), the operator contended that application of the 

Secretary's regulation would endanger the safety of the 

miners. 'rhe Commission noted that § 10l(c) of the Act was 

specifically designed to resolve such questions, and held 

that the operator could not wait until it was cited for a 
violation of a safety regulation to raise such an issue in an 

enforcement proceeding: 

We cannot endorse this short circuiting of the 

Act's modification procedures. We believe it is 

important that questions of diminution of safety 

first be pursued and resolved in Ebe context of the 

special procedure provided for in the Act, i.e., a 

modification proceeding. ~~ 

The Commission has recognized one narrow exception 

to this requirement. In Sewell Coal Co., 5 FMSHRC 2029 

(1983), the Commission stated: 

We realize that emergency situations may arise 

where the gravity of circumstances and presence of 

danger may require an immediate response by the 

operator or its employees, necessitating a 

departure from the terms of a mandatory standard 

without first resorting to the Act's modification 

procedures. In such eonditions, an exception to 

the Act's modification and liability provisions may 

be necessary in order to further the Act's primary 

goal, the protection of miners. Penn Allegh did 

not present such a situation, nor does this case. 

Rather, these cases involve only the operator's 

ability to conduct safely routine mining operations 

on a continuing and regular basis. Therefore, we 

reserve for a case appropriately raising such an 

issue detailed consideration of any emergency 

exception to the general rules on modification and 

liability. 

Otis has done that which the Commission expressly 

forbidsg it has unilateral determined that it may conduct 

its operations at a mine site in a "safer" manner than would 

be achieved by compliance with mandatory safety standards. 

Absent the narrow circumstances of an emergency situation, 

Otis may not raise this defense in an enforcement proceeding. 

It may not sit back and wait until it is cited for a safety 

violation to all e that greater hazards would exist if it 

compli with the standards cited. Otis has not shown that 

an emergency threatening the safety or health of personnel 

justified its non-compliance with the cited safety standards. 

2043 
Considering all the criteria for a civil penalty in 

§ llO(i) of the Act, a civil penalty of $300 for Citation 

2690792 and $20 for Citation 2690793 are found appropriate. 

CONCLUSION OF LAW 

1. The Commission has jurisdiction in these 

proceedings. 

2. Otis Elevator Company violated the safety standard 

as charged in Citation 2690792. 

3. Otis Elevator Company violated the safety standard 

as charged in Citation 2690793. 

ORDER 

WHEREFORE IT IS ORDERED that: 

1. Citation 2690792 is AFFIRMED. 

2. Citation.2690793 is AFFIRMED. 

3. Otis Elevator Company shall pay the above civil 

penalties of $320 within 30 days of this Decision. 

Distributiong 

vJ;}L_f~ 

William Fauver 

Administrative Law Judge 

Wo Scott Railton, Esq. Reedu Smithv Shaw & McClayv 1150 

Connecticut Avenue, Suite 900v Washingtonv D.C. 20036 

(Certified Mail) 

Linda M. Henryu Esq., Office of the Solicitor, U.S. 

Department of Labor 1 Room 14480 Gateway Building, 3535 Market 

Street, Philadelphiar PA 19104 (Certified Mail> 

2044 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, l()th FLOOR 

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UNITED MINE WORKERS OF 

AMERICA (UMWA) I 

ON BEHALF OF 

ROBERT L. COX, 

DEC 3 

Complainant 

v. 

PEABODY COAL COMPANY, 

Respondent 

1987 

DISCRIMINATION PROCEEDING 

Docket No. KENT 84-224-D 

- Ken Underground Mine 

ORDER OF DISMISSAL 

Before: Judge Broderick 

On November 6,1,1987, r' issued an order to show cause 

on or before November 24, 1987, why this proceeding should 

not be dismissed. No response to the order has been filed. 

Therefore, this proceeding is DISMISSED. 

Distribution~ 

Mary Lu Jordan, Esqop United Mine Workers of America, 900 

15th Sto N.W", Washingtonr D.Co 20005 (Certified Mail) 

Michael A. Kafoury, Esq., Peabody Coal Co., P.O. Box 373, 

St. Louis, MO 63166 (Certified Mail) 

slk 

2045 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

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FALLS CHURCH, VIRGINIA 22041 

DEC 3 1987 

UNITED MINE WORKERS OF 

AMERICA ( UMWA) I 

ON BEHALF OF 

JIMMY JOHNSON, 

Complainant 

v. 

PEABODY COAL COMPANY, 

Respondent 

DISCRIMINATION PROCEEDING 

Docket No. KENT 86-65-D 

ORDER OF DISMISSAL 

Before: Judge Broderick 

On November 6, .1987, I issued an order to show cause 

on or before November 24, 1987, why this proceeding should 

not be dismissed. No response to the order has been filed. 

Therefore, this proceeding is DISMISSED. 

/} :/__ ! . . 7 r.7 1-c.1: "' ;<.L 1! /l{1,z dA'1c '- i. "":..~....t: .J //'r 1 _ -...___ 

James A. Broderick 

•, Administrative Law Judge 

Distribution: 

Mary Lu Jordan, Esq., United Mine Workers of America, 900 

15th St., N.W., Washington, D.C. 20005 (Certified Mail) 

Michael A. Kafoury, Esq., Peabody Coal Co., P.O. Box 373, 

St. Louis, MO 63166 (Certified Mail) 

slk 

2046 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

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FALLS CHURCH, VIRGINIA 22041 

DEC 3 1987 

UNITED MINE WORKERS OF DISCRIMINATION PROCEEDING 

AMERICA (UMWA) I 

ON BEHALF OF Docket No. KENT 86-66-D 

RICHARD E. JARVIS, 

Complainant 

v. 

PEABODY COAL COMPANY, 

Respondent 

ORDER OF DISMISSAL 

Before: Judge Broderick 

On November 6,-1987, I issued an order to show cause 

on or before November 24, 1987, why this proceeding should 

not be dismissed. No response to the order has been filed. 

Therefore, this proceeding is DISMISSED. 

/tti1ti: s ,~Ji--cct-1/lt./e ;;J James A. Broderick - Administrative Law Judge 

Distribution: 

Mary Lu Jordan, Esq., United Mine Workers of America, 900 

15th St., N.W., Washington, D.C. 20005 (Certified Mail) 

Michael A. Kafoury 1 Esq., Peabody Coal Co.r P.O. Box 373, 

St. Louis MO 63166 (Certified Mail) 

slk 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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DEC 4 1987 

RONALD SIZEMORE, DISCRIMINATION PROCEEDING 

Complainant 

v. Dockeb·No. KENT 87-223-D 

BARB CD 85-64 

WHITAKER COAL CORPORATION, 

Respondent 

DECISION 

Appearances: Mr. Ronald Sizemore, Hazard, Kentucky, pro ~; 

A. P. Gullet, Esq., Gullett, Combs & Holliday, 

Hazard, Kentucky for Respondent. 

Before: Judge Melick_ 

This case is before me upon the Complaint of Ronald Sizemore 

under section 105(c)(3) of the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. § 801 et. seq., the "Act", alleging that the 

Whitaker Coal Corporation discharged him on August 21, 1985, in 

violation of section 105(c)(l) of the Act. The preliminary issue 

before me is whether Mr. Sizemore filed his Complaint with this 

Commission in a timely manner. 

Mr. Sizemore initially filed his Complaint with the 

Secretary of Labor, on August 26, 1985. Thereafter by letter 

dated November 21, 1985, the Secretary of Laboru through his agent~ Willard Querryv District Managerv informed Mro Sizemore of 

his determination that a violation of section 105(c) had not 

occurredo This letter was received by Mr. Sizemore on November 

23v 1985. Sizemore did not however file his complaint of 

discrimination with this Commission until August 13, 1987, more 

than 19 months latero 

Section 105(c)(3) of the Act provides, in part, that 

"if the Secretary, upon investigation, determines that the 

provisions of this subsection have not been violated, the 

complainant shall have the right, within 30 days of notice of the 

Secretary 1 s determination, to file an action in his own behalf 

before the Commission charging discrimination or interference in 

violation of paragraph (l)." 

Clearly Mr. Sizemore did not file within the prescribed 30 

day time period. The relevant legislative history provides 

however that "this 30-day limitation may be waived by the court 

2048 
in appropriate circumstances for excusable failure to meet the 

requirements". Senate report 95-181, 95th Congress, 1st 

Session 37 (1977), reprinted for the Senate Subcommittee on 

Labor, Committee on Human Resources, 95th Congress, 2nd Session, 

Legislative History of the Federal Mine Safety and Health Act of 

1977, at 625 (1978). See also Herman v. Imco Services, 4 FMSHRC 

2135 (1982), and Hollis v. Consolidation Coal Co., 6 FMSHRC 21 

(1984). 

Mr. Sizemore testified in reference to filing his complaint 

that he thought he "could wait a while and pick it up later". He 

claims that this was the first opportunity he had to file for 

nearly 19 months. He maintained that "he had so much to deal 

with" including the hospitalization of his wife and child, 

divorce proceedings and a house fire, that he presumably did not 

have time to file. He concedes however that everyone was out of 

the hospital, his divorce proceedings were concluded, and that he 

had received an insurance settlement on his house fire by July 

1986, yet did not file for more than a year after that. 

Sizemore also acknowLedges that he talked to several 

attorneys about this case. In January 1986 one attorney declined 

to handle the case advising him that he had not filed timely. 

Thus as early as January 1986 Sizemore had legal advice that he 

had not filed within the statutory time limits. He nevertheless 

further delayed filing a complaint with this Commission until 

August 13, 1987, over a year-and-a-half later. 

Under all the circumstances I have little difficulty in 

finding that Mr. Sizemore has no legally sufficient excuse or 

justification for the untimely filing of his complaint with this 

Commission. Accordingly the Complaint must be dismissed. 

ORDER 

Discrimination Proceedings Docket Noo KE T 87-223-D are 

dismissedo 

) Ga 

Law Judge 

2049 
Distribution: 

Mr. Ronald Sizemore, RR#3, Box 225, Hazard, KY 41701 

(Certified Mail) 

A. P. Gullett, Combs & Holliday, 109 Broadway, P. o. Drawer 1039, 

Hazard, KY 41701-05039 (Certified Mail) 

npt 

2050 
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OFFICE OF ADMINISTRATIVE LAW JUDGES 

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DEC 7 1987 

GREENWICH COLLIERIES, 

DIVISION OF PENNSYLVANIA 

MINES CORPORATION, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

GREENWICH COLLIERIES, 

Respondent 

CONTEST PROCEEDINGS 

Docket No. PENN 85-188-R 

Order No. 2256015; 3/29/85 

Docket No. PENN 85-189-R 

Order No. 2256016; 3/29/85 

Docket No. PENN 85-190-R 

Order No. 2256017; 3/29/85 

Docket No. PENN 85-191-R 

Order No. 2256018; 3/29/85 

Docket No. PENN 85-192-.R 

Order No. 2256019; 3/29/85 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 86-33 

A. C. No. 36-02405-03614 

Greenwich No. 1 Mine 

PARTIAL SUMMARY DECISION 

Before: Judge Maurer 

These cases are before me on remand from the Commission 1/ 

with speci instructions from the majority to consider and -

rule on Greenwich's challenge to the validity of the five section 104(d) (1) orders at bar because they were not issued within 90 days of the underlying section 104(d) (1) citation upon 

which they were based and because they were not issued "forthwith." 

Subsequent to the Commission's decision in these cases, 

counsel for Greenwich Collieries, Division of Pennsylvania 

Mines Corporation (PMC) has moved for summary decision pursuant to Commission Rule 64, 29 C.F.R. § 2700.64, arguing that 

1/ Greenwich Collieries, 9 FMSHRC 1601 (September 30, 1987). 

2051 
the instant orders are invalid on the basis of the aforementioned two grounds. PMC had previously included these two 

bases for invalidity of the orders in their original motion 

for summary decision filed in April 1986, but I did not consider them at that time. Rather, I partially granted their 

first motion for summary decision, modifying the five orders 

to section 104(a) citations, because they were issued based 

upon an investigation as opposed to an-inspection and because 

the violations had long since ceased to exist at the time the 

orders were issued. On September 30, 1987, the Commission 

reversed me on that decision and remanded the cases to me 

for further proceedings. 

The essential facts of these cases ·are as set out by 

the Commission in its decision of September 30, 1987: ~/ 

On February 16, 1984, a methane ignition and 

explosion occurred at the Greenwich No. 1 mine, an 

underground coal mine operated by Greenwich Collieries, Division of Pennsylvania Mines Corporation 

("Greenwich .. }, and located in southwestern Pennsylvania. Three miners were killed and eleven others 

were injured- in the explosion. Representatives of 

the Department of Labor's Mine Safety and Health 

Administration ("MSHA") arrived at the mine, engaged in rescue and recovery forts, observed conditions at the site, and began an investigation of 

the cause of the explosion. As part of its investigation, MSHA examined the entire mine between February 25 and April 5, 1984, and between March 27 and 

April 27, 1984, took sworn statements from numerous 

individuals who participated in the recovery operations or who had information regarding the conditions 

in the mine prior to the explosion. The Secretary's 

investigators concluded that the operator's unwarrantable failure to comply with five mandatory safety 

standards contributed to the accident. Therefore, on 

March 29, 1985, MSHA Inspector Theodore w. Glusko 

issued to Greenwich the five section 104(d) (1) orders 

of withdrawal at sue in this case. The orders alleged that violations of various safety standards had 

occurred in December 1983 and January and February 

1984. Each of the section 104(d) (1) orders indicated 

that they were based on a section 104(d) (1) citation 

issued to Greenwich on February 24, 1984. The orders 

also indicated that they were terminated at the time 

that they were issued. No miners were withdrawn from 

the mine as a result of the orders. 

2/ Id. at 1602-1603. 

2052 
The Secretary, in his brief in opposition to the motion 

for summary decision goes into much more detail concerning 

the merits of the alleged violations and the special findings. 

However, the merits of these cases are not at issue at this 

point in the proceedings. PMC's motion for summary decision 

is based entirely on the invalidity of the Orders under the 

terms of § 104(d) (1) of the Federal Mine Safety and Health Act 

of 1977 (the "Act"). y 

3/ Section 104(d) (1) provides: 

If, upon an inspection of a coal or other 

mine, an authorized representative of the 

Secretary finds that there has been a violation any mandatory health or safety 

standard, and if he also finds that, while 

the conditions created by such violation do 

not cause imminent danger, such violation 

is of such nature as could significantly and 

substantially contribute to the cause and 

effect of a coal or other mine safety and 

health hazard, and if he finds such violation 

to be caused by an unwarrantable failure of 

such operator to comply with such mandatory 

health or safety standards, he shall include 

such finding in any citation given to the 

operator under this [Act}. If, during the 

same inspection or any subsequent inspection 

of such mine within 90 days after the issuance of such citation, an authorized representative of the Secretary nds another violation of any mandatory health or safety 

standard and finds such violation to be also 

caused by an unwarrantable failure of such 

operator to so comply, he shall forthwith 

issue an order requiring the operator to 

cause all persons the area affected by 

such violation, except those persons referred 

to in subsection (c) of this section to be 

withdrawn from, and to be prohibited from 

entering, such area until an authorized representative of the Secretary determines that 

such violation has been abated. 

30 u.s.c. § 814 (d) (1) Q 

20.53 
It is uncontroverted that the 104{d) (1) orders at issue 

here were not actually issued within 90 days of the underlying 

104(d) (1) citation. Each was issued on March 29, 1985, approximately thirteen months after the· February 24, 1984, § 104{d) (1) 

citation on which they were based. However, that fact is not 

particularly relevant to my reading of the statute's requirements. Section 104(d) (1) requires that if the Secretary, during the same inspection or any subsequent inspection within 90 

days after the issuance of the underlying (d) (1) citation, 

finds another violation caused by an unwarrantable failure, he 

shall forthwith issue an order. The 90-day period starts running with the issuance of the (d) (1) citation. In this case 

February 24, 1984. Any subsequent violation the Secretary 

turns up within the following 90-day period which he also finds 

to be caused by an unwarrantable failure shall be the subject 

of a (d) (1) order, issued forthwith. In this case, the Secretary alleges that physical evidence of each of the violations 

was observed during the course of the inspection of the mine 

immediately after the explosion and additional evidence relating to the nature and circumstances surrounding the violations 

was obtained during March and.April of 1984 during the course 

of formal testimony taken from those having knowledge pertaining to the accident, and conditions in the mine prior to the 

explosion. An inference can be drawn that at least by 

April 27, 1984, when the formal testimony was concluded, the 

existence of the violations and the factual basis for an unwarrantabili ty finding were known to the Secretary. The Secretary goes even further and avers that within a few days or 

even hours after the explosion most of the investigators had 

a "strong reason" to believe that these violations existed 

at the time of the explosion and that questions of management 

failures (i.e., unwarrantable failure special findings) were 

involved" The critical finding of fact which needs to be made 

on this point then is whether or not the Secretary had found 

the five alleged unwarrantable failure violations within the 

site 90-day period" 

For purposes of ruling on this motion for summary decision, 

I accept as true the Secretary's allegation that the violations 

alleged in these cases were found by the Secretary during the 

same spection within 90 days of the February 24, 1984; 

(d) (1) citation on which they are based; that is, they were 

ultimately issued for violations which were found within 90 

days of the underlying unwarrantable violation, as required 

by § 104(d) (1)" Therefore, I find PMC 1 s challenge to the 

validity of these five orders for the reason that they were 

not issued within 90 days of the original {d) (1) citation to 

be without merit" 

Turning now to the second ground for invalidity as alleged 

by PMC to be that the subject orders were not issued "forthwith" 

as required by§ 104(d) (1). 

2054 
Section 104(d) (1) states that once a 104(d) (1) citation 

has been.issued, if within 90 days the Secretary finds another 

violation a mandatory health or safety standard caused by 

an unwarrantable failure to comply, "he shall forthwith issue 

an order 11 (Emphasis added) . 

PMC maintains that the inclusion of the word "forthwith," 

which according to its dictionary definition or common usage 

means "immediately" creates a jurisdict:ional timeliness 

requirement for the issuance of orders under§ 104(d) {l). 

The orders at bar allege that violations of various 

safety standards occurred in December of 1983 and January and 

February of 1984. The explosion occurred on February 16, 

1984. MSHA examined the entire mine between February 25 and 

April 5, 1984, and took sworn testimony between March 27 and 

April 27, 1984, concerning the accident and conditions extant 

in the mine prior to the explosion. As I have previously 

noted, all of the data necessary to issue the orders had 

been found on or before April 27, 1984. Therefore, MSHA 

could have issued the instant orders on or about April 27, -

1984, should they haye~chosen to. They chose not to, however, 

finally issuing the orders on March 29, 1985, at least eleven 

months after it was feasible for them to have done so. 

Given that an eleven month delay hardly demonstrates 

immediacy, the question remains is the "forthwith" requirement 

for issuance jurisdictional. The Secretary argues that it is 

not and that in any event the delay experienced herein in issuing 

these orders was "reasonable and fully justified." That delay 

according to the Secretary being because the five orders at bar 

involve violations that the Secretary determined directly contributed to the deaths of three miners in a major mine explos ; and it is traditional in these circumstances that citations and orders which are deemed to be related to the major 

causes of major accidents are not issued until such time as the 

investigation team has formulated a major draft of the final 

investigative report. It is noteworthy that tie initial unwarrantable violation and over 100 section 104(d} (1) orders 

were issued in the aftermath of the explosion during the accident investigation. None of these violations were found to be, 

however, rectly related to the explosion. On the other hand, 

tte five orders at bar were purposefully not issued at that 

time because they did involve violations that had been identified as having contributed to the accident itself. These violations were purportedly subjected to greater scrutiny and 

research and ultimately issued as (d) (1) orders on March 29; 

1985. 

The Secretary's secondary or "fall-back" position on this 

point seems to be that even if the "forthwith" requirement is 

2055 
jurisdictional, deviations therefrom are not jurisdictionally 

defective unless the operator can demonstrate substantial 

prejudice or a lack of substantive due process. The Secretary 

then concludes that in this particular case no harm has accrued to the operator by virtue of the delayed issuance and 

absent a finding that such harm exists, the statutory requirement that such orders issue "forthwith" cannot be an absolute 

procedural bar to the delayed issuance of the (d) (1) orders, 

as here. 

Section 104(d) differs from~ 104(a) in that the statute 

expressly recites that delay in issuing a citation under 104(a) 

is not jurisdictional. There is no similar saving provision 

in 104(d), and I conclude that the Secretary's failure to issue 

the orders at bar "forthwith" is a jurisdictional defect which 

renders them invalid as (d) (1) orders. There clearly is Congressional interest in the timeliness of withdrawal orders, and 

I can find no indication in the Act or its legislative history 

that these timeliness requirements deliberately placed in the 

Act by Congress are not jurisdictional prerequisites to the 

issuance of valid withdrawal orders pursuant to§ 104(d) .• 

Furthermore, there is-rio evidence of Congressional intent to 

differentiate between the timeliness of withdrawal orders that 

relate to violations which cause mine accidents and those which 

do not. The Secretary's enforcement policy which caused the 

long delay in issuing the (d) (1) orders at bar, no matter how 

"reasonable" it may be, is clearly at odds with the express 

timeliness term of the statute itself. 

With regard to the Secretary's argument that PMC has not 

been prejudiced by the delay in issuance of the orders, I find 

that in the case of § 104 (d) ( 1) orders, as opposed to § 104 (a) 

citations, a showing of prejudice is not required" However, 

even if some showing was required, I agree with PMC that an 

11-13 month delay in noti ing the operator of what specifically is charged with doing or failing to do is inherently 

prejudicial in some degree to an operator's ability to defend 

itself against the allegations contained in the orders. 

PMC also contends that MSHA's delays in issuing these 

orders violates even§ 104(a) 's more liberal standard of "reasonable promptness." Perhaps, but since the statutory mandate 

that § 104(a) citations be issued with "reasonable promptness" 

is not a jurisdictional prerequisite to enforcement~ I am unwilling to dispose of these extremely serious allegations on 

that kind of procedural basis. Therefore, I am modifying the 

five (d) (1) orders at bar to§ 104(a) citations and a hearing 

on the merits of the violations, as well as the S&S special 

findings and penalties to be imposed, if any, will be necessary 

to finally dispose of these proceedings. 

2056 
ORDER 

In accordance with the foregoing, the motion of PMC for 

summary decision is granted in part and denied in part; and 

Order Nos. 2256015-2256019 are hereby modified to citations 

under section 104(a) of the Act. 

Rf:. 

i~ii~irative 4ul!fa Law 

~, Judge 

Distribution: 

Thomas C. Means, Esq., Crowell & Moring, 1001 Pennsylvania Ave., 

NW, Washington, DC 20004 (Certified Mail) 

Edward H. Fitch, Esq., Office of the Solicitor, u. s. Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail) 

Earl R. Pfeffer, Esq., United Mine Workers of America, 900 

th St., NW, Washington, DC 20005 (Certified Mail) 

yh 

2057 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 DEC 7 1907 

DENVER, COLORADO 80204 Q 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MID-CONTINENT RESOURCES, INC.,: 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 87-74 

A.C. No. 05-00469-03598 

Dutch Creek No. 2 Mine 

DECISION 

Appearances: James H. Barkley, F.sq., Office of the Solicitor, 

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

for Petitioner; 

Edward Mulhall, Jr., Esq., Delaney & Balcomb, 

Glenwoo9. Springs, Colorado, 

for Respondent. 

Before: Judge Morris 

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

Health Administration, (MSHA), charges respondent with violating 

30 C.F.R. § 90.100, a regulation promulgated under the Federal 

Mine Safety and Health Act, 30 U.S.C. § 801 et al., (the ~ct). 

After notice to the parties a hearing on the merits 

commenced in Glenwood Springs, Colorado, on April 14, 1987. The 

parties did not file post-trial briefs but they orally argued 

their ews. 

Issues 

The issues are whether respondent violated the regulation; 

if sou what penalty is appropriateo 

Summary of the Case 

Citation 9996024 alleges respondent violated 30 CoFoRo 

§ 900100 which provides as followsg 

§ 900100 Respirable dust standard 

After the twentieth calendar day following receipt of 

notification from MSHA that a Part 90 miner is employed 

at the mine, the operator shall continuously maintain 

the average concentration of respirable dust in the mine 

atmosphere during each shift to which the Part 90 miner 

2058 
in the active workings of the mine is exposed at or below 

1.0 milligrams per cubic meter of air. Concentrations 

shall be measured with an approved sampling device and 

expressed in terms of an equivalent concentration determined in accordance with § 90.206 [Approved sampling devices~ equivalent concentrations]. 

Stipulation 

At the commencement of the hearing the parties stipulated as 

follows: 

1. The case involves miner Verlin F. Windedahl (Tr. 4). 

2. After Windedahl received a work permit a chest x-ray 

disclosed that he was in the early stages of Black Lung Cpneumoconiosis) (Tr. 4). 

3. Under Part 90 regulations such a miner, at his request, 

may transfer to an atmosphere where there is less than one 

milligram of respirable dust per cubic meter of air {Tr. 5). 

4. The operator was notified of Windedahl's Part 90 

classification on March 24, 1986 CTr. 5). 

So On April 16r 1986 Windedahl was transferred to what was 

believed to be a less dusty atmosphere. 

6. After he was reassigned the operator took samples within 

the breathing zone of the miner. The samples were sent to MSHA 

for analysis. The results are set forth in Citation No. 9996024 

infra. The results, received by the operator on May 12, 1986, 

are true and accurate as ascertained by the laboratory {Tr. 5, 6, 

Ex" P 1 (a)) " 

7o Other samples were taken from May 16u 1986 through June 

30 986a 

Bo On June 30v 1986 a second group of samples indicated 

there was still an exposure to respirable dust that exceeded one 

milligram per cubic meter (Tro 6)" 

9o The samples taken June 30u 1986 resulted in a § 104(b) 

Order Noa 2213912 issued by MSHA Inspector Michael Horbatko (Tr. 

6) a 

10. The sampling results from the laboratory of miner 

Windedahl are true and correct (Tr. 6, 7). 

The file reflects that the operator contested Citation No. 

9996024 and the subsequent § 104(b) Order No. 2213912. 

Citation No. 9996024, issued May 7, 1986, provides in its 

relevant part as follows: 

2059 
Based on the results of 5 dust samples collected by the 

operator and reported on the attached teletype,message, 

dated May 6, 1986, the average concentration of 

respirable dust in designated area sampling point 850-0 

was 2.7 milligrams exceeding the applicable limit of 1.0 

milligrams. Management is hereby required to take corrective action to lower the concentration of respirable 

dust to within the permissible concentrations of 1.0 

milligrams per cubic meter of air and then sample each 

shift until five valid samples are taken and transmitted 

in accordance with Section 90.209. Approved respiratory 

equipment shall be made available to all persons working 

in the area. Based on the results of the company's 

sampling program, this Notice was issued in accordance 

with Section 104(A) of the Federal Mine Safety and 

Health Act of 1977. (Exhibit P-l(a)) 

Subsequently, three valid respirable dust samples were 

received for the Part 90 Miner within the required time. A 

citation, dated June 9, 1986 was issued for not submitting five 

valid samples within the required time. Time was granted to 

collect additional sa~ples. 

On July 1, 1986, Order No. 2213912 was issued under Section 

104(b) of the ~ct. In its pertinent portion it provided as 

follows: 

The respirable dust concentration of the Part 90 Miner 

identified in Citation No. 9996024, dated 05/07/86, is 

still in excess of the applicable standard. Due to the 

obvious lack of effort by the operator to control 

respirable dust, the period of reasonable time for the 

abatement of this violation is not further extended. 

(Exhibit P-2(a)) 

Subsequent the order was modified and later terminatedo 

At the hearing the Secretary rested on the stipulation of 

the parties and the testimony of MSHA safety and health 

specialist Grant McDonald. 

GRANT McDO~ALD is responsible for enforcing the respirable 

dust standards (Tr. 16, 17). 

Respirable dust is measured in microns. A micron, which is 

invisible to the naked eye 1 measures 1/25,000th of an inch. 

Studies indicate that pneumoconiosis is caused by dust measuring 

five microns or less. This size causes massive fibrosis in the 

lungs. Eventually it can cause death. A dust pump will pickup 

particles of respirable size. It will also pickup particles from 

five to ten microns in size (Tr. 19). 

An option under Part 90 permits the miner to transfer to 

a less dusty atmosphere. If he does transfer his new work 

position is designated. He is then subject to the special 

2060 
sampling provided in Part 90 (Tr. 22, 23). MSHA was advised that 

miner Windedahl exercised his option and transferred to a less 

dusty atmosphere (Tr. 23). At that point MSHA checked to see if 

they have' transferred the miner to a less dusty area. The new 

work area must contain less than one milligram of respirable dust 

(Tr. 24). 

Windedahl was reassigned as a "Stopping Man" (Tr. 25). This 

position is in the intake air, which is usually clean air, i.e., 

one milligram or below (Tr. 26). 

After transfer an operator has 15 calendar days to sample 

the transferee (Tr. 27). 

Most operators and MSHA use a MSA respirable dust pump (Tr. 

28). Each filter is weighed and sent to MSHA's Technical Support 

Office in Pittsburgh office for analysis (Tr. 29). 

In most cases the miner either wears the pump within four 

feet of his working place. It basically samples the air of the 

breathing zone of the worker_(Tr. 30). 

Particles larger than 5 microns void any sample. The larger 

size cannot cause lung disease (Tr. 34). 

If the sample shows an overexposure the sampling is 

continued (Tr. 35). When information comes to the Price, Utah 

office showing an overexposure a citation is issued. 

A Part 90 Miner needs only be sampled bi-monthly if he 

hasn't been previously exposed. If the sampling shows the 

allowable limit has been exceeded then five additional samples 

are requiredo The actual sampling is done by duly certified mine 

personnel (Tro 36-43)0 

Exhibit P(l)(a)u a citation for five samplesv shows an 

average concentration of 2o7 milligrams {Tro 46v 47u 56)o 

After Wi~dedahl exercised his option 

stopping man. As such he works along the 

dusty place in a coal mine (Tr. 57u 59). 

generated in the face area (Tro 86)0 

to transfer he became a 

main haulage, the least 

More dust is u~ually 

Inspector McDonald issued Citation 9996024 but MSHA 

Inspector Horbatko issued the 104(b) Order (Tr. 62, 63). Some 

operators take six samples but Mid-Contintent does not (Tr. 77). 

Michael s. Horbatko, Donald E. Ford and David A. Powell 

testified for the operator. 

MICHAEL S. HORBATKO, an MSHA mine safety and health 

specialist, issued the 104(b) order. He did not investigate at 

Mid-Continent but relied on the information of the dust samples 

relayed to him by Inspector McDonald (Tr. 87-91, Exhibit PlCb), 

P2(b). 
DONALD E. FORD, safety inspector, also serves as noise and 

dust technician for Mid-Continent Resources. He was originally 

certified by MSHA as a dust technician in 1977. 

The company uses a standard dust sampling device (Tr. 

102,103, Ex. R9, RlO, Rll). 

Detailed information relating to the subject miner is 

submitted with the sampling cassette (Tr. 108-111, Ex. Rl2). 

Verlin Windedahl started with Mid-Continent in November 1983. 

Notice that he was a Part 90 miner was received in March 1986 

(Tr. 112, 113). Windedahl had worked as a hardrock miner but not 

as an underground miner (Tr. 113). 

The witness prepared and color-coded Exhibit Rl3 (Tr. 113, 

114~ Ex. Rl3). After Windedahl was transferred none of his 

samples were in compliance. They all exceeded one milligram (Tr. 

122). A stopping man could be anywhere in the mine (Tr. 123). 

The operator offered various company records pertaining to 

dust sampling (Ex. Rl1, Rl5, Rl6). 

The witness observed Windedahl 300 feet or more back from 

the face. At that position he would not have been exposed to the 

same dust environment as the people in the mechanized mining unit 

section where they were developing the slopes (Tr. 138, 139, Ex. 

Rl6)o 

The company received a notice for non-compliance on May 23 

(dated May 19th) for an average concentration of 4.7 milligrams. 

This was caused by one sample cycle of 20.2 milligrams CTr. 142). 

The witness later learned that a bunch of workers were "horsing 

aroundn and throwing rock dust at the sampler that day (Tro 

l 45 0 Exo Rl6), Howeveru Windedahl worked in the slope 

section when he was first recognized as a Part 90 miner, 

Windedahl wa·s first reassigned as a stopping repairman in April 

1986 (Tro 148v Ex. Rl6)o 

The sampling results and the computer results (from 

Pittsburgh) concerning Windedahl cannot be reconciledo Windedahl 

was out-by the face and in the fresh in-take air. Except for one 

bad sample at the face the average would have averaged about one 

milligram (Tro 150v 151). In the opinion of the witnessu the 

worker out-by the face was inadvertently or advertently exposing 

himself to more dust" This could be an accident or on purpose 

(Tro 152)" Based on the witnessv experience the face area where 

the coal is being produced is the more dusty area (Tr. 153). 

Higher dust readings out-by the face than in-by the producing 

section indicates that something not truly accu·rate was transpiring (Tr. 153). 

2062 
The computer printouts of the samplings are mailed from 

Pittsburgh to the company's Carbondale office. The coal basin is 

35 miles to the south so any correspondence would not be 

delivered to the witness until a day or two later (Tr. 154). The 

computer printout predicating Mr. Horbatko's order was received 

at the Carbondale office on June 30, 1986 CTr. 155). The witness 

received it the same day Mr. Horbatko arrived on the property 

(Tr. 156). 

Ford never talked to Windedahl about his excessively high 

ratings. No comment was made because he wasn't being accusatory 

(Tr. 161). Further, Ford didn't know if anyone else at MidContinent had talked to the miner. Windedahl is no longer 

employed by Mid-Continent, nor did Ford know his present whereabouts (Tr. 162). The pump that Windedahl returned each day to 

Ford appeared to be working properly (Tr. 172). Ford did not 

particularly observe Windedahl during any particular time of each 

day (Tr. 17 3) • 

A timberman sets timber in different sections of the mine. 

He installs wooden and fiber ~ribs (Tr. 177). 

Windedahl's assignment in the slope section was anywhere 

from 300 to 1000 feet out-by where the coal was being mined (Tr. 

180). He was also working on the intake, or fresh air side, of 

the stoppingso There is less dust there than in the return air 

(Tro 186)0 

DAVID A. POWELL has been the safety director of MidContinent Resources for four years (Tr. 92). 

In the spring of 1986 the company was advised that Verlin F. 

Windedahl qualified as a Part 90 miner CTr. 93, Ex. R2). 

The operator transferred Windedahl and designated an 

occupation code for him (Tro 94u 95u Ex. R3u R4)o The operator 

subsequently received a citation for failing to furnish five 

valid respirable dust samples within 15 days after the transfer 

(Tro 96u Exo RS) The citation was subsequently vacated CTr. 97, 

EXo R6)o 

The operator received a computer printout on May 12, 1986 

{Tro 98 9 Exo R7)o On June 30, 1986 the company received a 

duplicate copy of sample results on Windedahl (Tr. 99, Ex. R8}o 

Discussion 

This case involves Citation Noa 9996024 and Order No. 

2213912. Howeveru a penalty is proposed only for the citation. 

2063 
The regulation requires that after being notified that a 

Part 90 miner has been exposed the operator must maintain the 

average concentrations of respirable dust at or below 1.0 such 

miner. 

In the instant case the stipulation and the evidence 

establishes that the operator was notified on March 24, 1986 of 

Windedahl's status. The twentieth calendar day following . 

notification is April 13, 1986 Ca Sunday). On April 16, 1986, 

Windedahl was reassigned. The first sampling cycle took place 

April 14-21, 1986. On May 12, 1986 the first sample results 

resulted in the issuance of Citation No. 9996024 on May 7, 1986. 

The second sampling cycle took place May 16 - June 17, 1986. The 

May 22, 1986 sample was voided due to oversized particles. 

Further, sampling was done and the results were available on June 

30, 1986. The samples exceeded 1.0 milligrams and the following 

day, July 1, 1986, a § 104(b) Order was issued. 

The foregoing facts establish that Mid-Continent violated 

§ 90.100 inasmuch as Windedahl was exposed to concentrations 

above 1.0 milligrams more than 20 days after Mid-Continent was 

notified of his status as a Part 90 miner. 

Mid-Continent does not contend otherwise. It admits that it 

violated § 90.100 and that a penalty should be assessed for 

Citation 9996024 (Tr. 9, 10, 203). The operator's principal 

attack is focused on the§ 104(b) Order. 

To proceed to Mid-Continent's arguments: As a threshold 

matter it asserts that § 90.100 conflicts with the Act. Specifically, Mid-Continent claims the Act provides an option that the 

regulation does not recognize. 

30 u.s.c. § 843{b){2) provides as follows: 

2) Effective three years after December 30u 1969u any 

miner whoq in the judgment of the Secretary of Health and 

Human Services based upon such reading or other medical 

examinations, shows evidence of the development of pneumoconiosis shall be afforded the option of transferring 

from his position to another position in any area of the 

minev for such period or periods as may be necessary to 

prevent further development of such disease, where the con-

, centration of respirable dust in the mine atmosphere is 

not more than 1.0 millograms [sic] of dust per cubic meter 

of airv or if such level is not attainable in such mine, 

to a position in such mine where the concentration of respirable dust is the lowest attainable below 2.0 milligrams 

per cubic meter of air. 

The option, referred to by Mid-Continent, and not 

incorporated in the regulation relates to the situation when the 

concentration of 1.0 milligrams is not attainable in the mine. 

2064 
The operator's argument is without merit. It is true that 

the regulation does not address a situation where a level of 1.0 

milligrams cannot be attained. However, in the instant situation 

the order was terminated when the atmosphere attained .06 

milligrams. In sum, the operator has not presented a factual 

situation within the terms of the statute. 

In addition, when one compares 30 C.F.R. § 90.100 with the 

broader respirable dust regulation, 30 C.F.R. § 70.lOO(a), 

(infra} it is apparent the Secretary insists on extra precautions 

when a Part 90 miner is involved. 

Mid-Continent further argues that Windedahl's dust samplings 

do not square with reality. Specifically, it is asserted that 

Windedahl was out-by the face. In that location an anomaly 

occurred: he generated a greater concentration of dust than 

miners at the face. 

I am not persuaded by the company's argument on the minimal 

record presented here. A timberman, who is moving about at his 

work stations, could generate more dust than miners at the 

working face. Further, no credible evidence supports the view 

that Windedahl "salted" his sampling cassette. 

Mid-Continent further states that the § 104(b) Order is 

invalid because Inspector Horbatko did not investigate the 

situation at the mine. 

The evidence is uncontroverted that Inspector Horbatko 

relied on hearsay from Inspector McDonald as well as the 

Pittsburgh computer generated information as to the results of 

the dust sampling. It is apparent that the inspector did ·not 

conduct 'his own investigation. 

The basic issues raised by Mid-Continent were considered by 

the Commission in a series of cases decided September 30, 19870 

Nacco Mining CompanyQ 9 FMSHRC 154lu White County Coal Companyu 9 

FMSHRC 1578, Emerald Mines Corporation, 9 FMSHRC 1590, Greenwich 

Collieries, 9 FMSHRC 1601. In view of the Commission's rulings, 

I overrule Mid-Continent's motion to dismiss. 

nallyq Mid-Continent states that the first set of dust 

samples were an obvious aberrationo Therefore, the company 

should have been entitled to a resamplingo 

I disagreeo The regulation is explicito It does not 

mandate any second sampling as is urged here. 

The Secretary contends the violation is S & S, that is, 

significant and substantial within the meaning of the Act. I 

2065 
agree. A violation of a similar dust standard l; for coal mines 

has been held to be S & s. Consolidation Coal Co., 5 FMSHRC 378 

(1983); 8 FMSHRC 890, 899 (1986). The Commission's view was 

upheld on appeal in Consolidation Coal Company v. Federal Mine 

Safety and Health Review Commission, et al, 824 F.2d 1071 (D.C. 

Cir. 1987). 

For the foregoing reasons, Citation 9996024 should be 

affirmed. 

Civil Penalty 

In the instant case the Secretary seeks to impose a civil 

penalty of $725 for the violation of Citation No. 9996024. The 

Secretary has not sought a penalty for the violation of the 

§ 104Cb) Order. Accordingly, in imposing a penalty I will only 

address the evidence concerning Citation No. 9996024. 

The statutory criteria to access such civil penalties is set 

forth in Section llO(i) of the Act, now codified at 30 U.S.C. 

§ 820(i). 

I find from the evidence that the operator's history of 

previous violations is numerically high. Specifically, the evidence shows the following citations and orders have been issued 

to Mid-Continent: 

Year 

1983 

1984 

1985 

1986 

s & s 

34 

185 

330 

473 

Non S & S 

211 

280 

181 

141 

Total 

245 

465 

511 

614 

Orders 

15 

14 

29 

59 

The company offers evidence to show that its citations are 

only average in the industry (Exhibits R30v R3lu R32u R33u R37, 

R38)o I agree the evidence does show Mid-Continentus proportional increase in S & S violations generally corresponds to 

the national increase in the years 1983 through 1986. It is, 

however, still disturbing that the operator's S & S violations 

continue to increase from year to year. The operator was negligent in view of the time interval that elapsed between when it 

received the notice concerning Windedahlis status and when it 

completed sampling dust at the new work locationo The record 

l/ 30 CoFoRo § 70ol00(a) which provides: 

Each operator shall continuously maintain the average concentration of respirable dust in the mine atmosphere during 

each shift to which each miner in the active workings of 

each mine is exposed at or below 2.0 milligrams of respirable dust per cubic meter of air as measured with an 

approved sampling device and in terms of an equivalent 

concentration determined in accordance with § 70.206 (Approved sampling devices; equivalent concentrations). 

2066 
does not present any evidence concerning the operator's financial 

condition. Therefore, in the absence of any facts to the 

contrary, I conclude that the payment of a civil penalty as 

provided hereafter is appropriate considering the size of the 

operator and such penalty will not cause the company to discontinue in business. Buffalo Mining Co., 2 IBMA 226 (1973); 

~ssociated Drilling, Inc., 3 IBMA 164 <1974); El Paso Rock 

Quarries, Inc., 5 FMSHRC 1056 (1983). The gravity of the 

violation is high since the violation is significant and 

substantial. I do not credit the operator with statutory good 

faith since the five samples were not taken within the prescribed 

period of time. 

On balance, and in view of the statutory criteria, I 

consider a penalty of $300 to be appropriate. 

Conclusions of Law 

Based on the entire record and the factual findings made in 

the narrative portion of this decision, the following conclusions 

of law are entered: 

1. The Commission has jurisdiction to decide this case. 

2. Respondent violated 30 C.F.R. § 90.100. 

3. Citation No. 9996024 should be affirmed and a civil 

penalty assessed therefor. 

ORDER 

Based on the foregoing findings of fact and conclusions of 

law I enter the following order: 

Citation Noo 9996024 is affirmed and a penalty of $300 is 

assessedo 

Law Judge 

Distribution~ 

James H. Barkleyv Esq.v Office of the Solicitoru U.S. Department 

of Laboru 1585 Federal Building~ 1961 Stout Street, Denver~ CO 

80294 (Certified Mail) 

Edward Mulhall 8 Jr., Esq., Delaney & Balcomb, P.O. Drawer 790, 

Glenwood Springs, CO 81602 (Certified Mail) 

/bls 

2067 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 8 1987 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING 

~INE SAFETY AND HEALTR 

ADMINISTRATION (MSHA), Docket No. PENN 87-177-D 

ON BEHALF OF 

JOHN P. GRINDER, PITT CD 87-06 

Complainant 

v. 

KARL'S DRILLING CO., INC., 

Respondent 

ORDER OF DISMISSAL 

Before: Judge Maurer 

The Complainant, Secretary of Labor, with the consent of 

the individual complainant, John P. Grinder, requests approval 

to withdraw his complaint in the captioned case on the grounds 

that the parties have reached a mutually agreeable settlement. 

Under the circumstances herein, permission to withdraw is 

granted. 29 C.F.R. § 2700.11. The case is therefore dismissed . 

Distribution: 

. AJ,,~ ituJCY" ~ lr:-ative Law Judge 

Covette Rooney, Esq., Office of the Solicitor, u. S. Department 

of Labor, 3535 Market St., Philadelphia, PA 19104 (Certified 

Mail) 

Ralph L. S. Montana, Esq., RD #3, Box 122, Clarion, PA 16214 

(Certified Mail) 

2068 

yh 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC9 1987 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEbING 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA), 

Petiticner 

Docket No. PENN 87-50 

~.c. No. 36-02405-03658 

v. 

Greenwich Collieries No. 1 

ROCHESTER & PITTSBURGH COAL 

COMPANY 1 

Appearances: 

Before: 

Respondent 

DECISION 

Linda M. Henry, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania, for the Petitioner; 

Joseph Yuhas and Joseph T. Kosek, Esqs., 

Greenwich Collieries, Ebensburg, Pennsylvania, 

for the Respondent. 

Judge Koutras 

Statement of the case 

This is a civil penalty proceeding initiated by the petitioner against the respondent pursuant to section llO(a) of 

the Federal Mine Safety and Health Act of 1977u 30 U.S.C. 

§ 820(a)v seeking a civil penalty assessment of $650, for an 

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

§ 75.316, as stated in a section 104(d)(2) Order No. 2690667, 

sued on August 5, 1986. The respondent filed a timely 

answer and contest and a hearing was held in Indiana 1 

Pennsylvania. The parties filed posthearing briefs, and I 

have considered the arguments made in the course of my adjudication of this case. 

Issues 

The issues presented in these proceedings are as follows: 

1. Whether the respondent violated the 

cited mandatory safety.standard, and if so, 

2069 
the appropriate civil penalty to be assessed 

for the violation based on the criteria found 

in section llO(i) of the Act. 

2. Whether the inspector's "significant 

and substantial" CS&S) findings concerning the 

violation are supportable. 

3. Additional issues raised by the parties in this proceeding are identified and 

disposed of in the course of this decision. 

Applicable Statutory and Regulatory Provisions 

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

Pub. L. 95-164v 30 U.S.C. § 801 et seq. 

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

3. Commission Rules, 20 C.F.R. § 2700.1 et seq. 

Stipulations 

The parties stipulated to the following (Tr. 6-7): 

1. The respondent is subject to the 

jurisdiction of the Commission and the presiding Administrative Law Judge. 

2. The section 104(a) citation in question, as modified to a section 104(d)(2) order, 

was duly served on the respondent by an authorized representative of the Secretary of Labor. 

3. The size of the respondent company is 

8v580,078 tons of coal producedv or man-hours 

worked and the size of the subject mine is 

565,108 production tons of coal. 

4. The respondent's history of prior 

violations consists of 168 violations for the 

8-month period preceding the issuance of the 

violation in issue. 

50 The proposed civil penalty assessment 

will not affect the respondent 1 s ability to 

continue in business. 

2070 
6. The violation was abated by the 

respondent in good faith within the time fixed 

by the inspectoro 

7. At the time of the issuance of the 

modified order respondent's Greenwich No. 1 

Mine was on "a (d) Chain, and there had been 

no intervening clean inspections to remove 

them from the Cd) chain." 

8. The applicable ventilation plan for 

the Greenwich No. 1 Mine, Review Number 28, 

was in effect at the time of the issuance of 

the violation in issue. 

Discussion 

The inspector initially issued a section 104(a) "S&S 

Citation No. 2690667, on August 41 1986, alleging a violation 

of 30 C.F.R. § 750316, and the violative condition or practice 

is stated as follows: 

The approved ventilation and methane and 

dust-control plan was not being complied with 

in the D-5 active working section in that the 

section is on full retreat mining and the operator does not have an approved ventilation 

plan showing the ventilation system for retreat 

mining in this area. 

The inspector modified the citation on August 8, 1986, 

to a section 104Cd)(2} order, to reflect the correct date of 

issue as August 5 1 1986, and the justification for tb"'! modification states as follows~ 

Noo 2690667 is being modified based on the 

fact that when the condition was observed and 

a discussion held with mine management, James 

Kukura, General Manager, stated pillaring had 

been done in the area for several months with 

on-going inspections by MSHA and no one questioned the need of a ventilation plan so therefore using this in the thought process for 

determining negligence it was determined to be 

moderate" However 1 after telephone conversations with Willia'' Onuscheck 1 company ventilation engineer, and review of the ventilation 

plan, it is appare1. t to this writer that the 

company did have an approved ventilation plan 

2071 
for pillar mining prior to the date of issuance for the D-5 area. However, the system of 

mining changed, thus necessitating a need for 

a new ventilation plan, and MSHA inspectors 

had not been in this area prior to this 

writer 1 s observations of the violation. 

Petitioner's Testimony and Evidence 

MSHA Inspector and Ventilation Specialist Samuel J. 

Brunatti, testified as to his experience, training, and 

duties, which include the review of underground mine ventilation plans to insure that the system of mining coincides with 

the approved plans. He confirmed that he issued the citation, 

as modified to an order, during the cou~se of a ventilation 

technical inspection of the mine, (exhibit G-1). He also confirmed that ventilation plan Review 28 was in effect at the 

time of his inspection, and he stated that he was "fairly 

familiar" with that plan at the time of the inspection <Tr. 

9-13). 

Mr. Brunatti stated that ,he issued the violation after 

observing retreat mi~ing in the D-5 working section where 

pillars had been extracted on the return side while driving 

the section in, and rooms were being driven to the left side 

off the intake side and pillars were being extracted "the 

whole way across, creating a solid gob." Mr. Brunatti 

observed that one row of pillars had been extracted, and "they 

were on the second row" (Tr. 21). He issued the violation 

because the respondent did not have an approved ventilation 

face print covering the type of mining which was taking place, 

and he confirmed this when he reviewed the ventilation plans 

and prints (Tr. 14). 

Mr. Brunatti confirmed that the inspection took place on 

August 5" 1986u and that his reference to August 4th was a 

mistake (Tro 13)0 He identified a copy of his inspection 

notes of August 5th, which reflect that "Gob air was coming 

into the section in return entryy" and he confirmed that he 

made this observation on August 5th. He stated that no ventilation plan was available to show this ventilation, and that 

the approved plans are required to show how the section is to 

be ventilated, with appropriate ventilation controls to 

assure a positive pressure on the gob to keep methane gas 

going away from, rather than back into, the active sectiono 

None of the plans which he had reviewed showed how the gob 

area was to be vantilated in the D-5 section (Tr. 19). 

2072 
Mr. Brunatti stated that while underground at the time 

he issued the citation, respondent's safety inspector escort 

Joseph Desalvo advised him that a plan was in effect for the 

mining which was taking place. When they arrived on the 

surface, mine superintendent Lowmaster and general mine 

manager James Cocora advised Mr. Brunatti that another MSHA 

inspector had previously been in the same D-5 section area 

which was cited and that the same type of mining was taking 

place. Based on this information, Mr:· Brunatti issued a 

section 104{a) citation with a "moderate" negligence finding 

because "I felt that if one of our inspectors didn't observe 

it to be a violation, I didn't feel maybe the company did" 

(Tr. 20) • 

Mr. Brunatti stated that after issuing the citation, he 

spoke with the inspector who had been in the area previously 

and learned that pillar mining was taking place at that time 

on the return side only, and that the left or intake side had 

not as yet been developed or pillared. Mr. Brunatti stated 

further that he also spoke with respondent's ventilation 

engineer William Onuscheck by telephone, and Mr. Onuscheck 

led him to believe that there was some miscommunication 

between his off ice an:a mine management in that the mine ventilation plans that had been submitted did not correspond to 

the type of mining taking place in the D-5 area on August 5. 

Mr" Brunatti stated that he was left with the impression that 

the respondent had submitted a ventilation plan for review 

without mine management at the mine level being aware of it, 

and he came to this conclusion because of statements made by 

Mr. Lowmaster and Mr. Cocora that they had never seen the 

plan even though it was the one in effect at that time, and 

they "were stunned" that it was the plan which was in effect. 

Mr. Onuscheck assured Mr. Brunatti that he would submit a 

plan to correspond with the mining taking place to MSHA's 

Pittsburgh Office for approval (Tr. 20-26). 

Mr" Brunatti stated that based on the aforesaid conversaons with mine management, including Mr. Onuscheck, he concluded that the respondent submitted face prints as part of 

the mine ventilation plan without management at the mine level 

ing aware of it, and that the plan submitted did not correspond with the type of mining that he observed going on. 

Mr. Brunatti also stated that when he first showed mine management the plan which was in effect, he felt that they realized 

that they needed a plan for the mine area other than the one 

which had been submitted as cart of Review No. 28. 

Mr" Brunatti did not believe~that Review No. 28 pertained to 

the area being mined (Tr. 28). Mr. Brunatti believed that 

the respondent knew that it was required to submit new face 

2073 
prints when it changed its system of mining, and as an 

example of this, he identified a copy of Review 27, which had 

previously been submitted to show how the return and intake 

pillars and gob would be ventilated (Tr. 29-30; exhibit G-3}. 

Mr. Brunatti identified exhibit G-4v as a copy of the 

ventilation plan addendum made a part of Review 28, as submitted by the respondent to MSHA to abate the violation, and 

he explained the map shown on page three of the plan (Tr. 

31-34). Mr. Brunatti confirmed that a mine operator may at 

times use the same ventilation face print to cover different 

mine entries or sections if every section and entry uses identical ventilation systems. However, this was not the case 

when the violation was issued, and any time changes occur in 

the ventilation system or direction of uirflow, an operator 

is required to submit an addendum to the ventilation plan to 

the district manager before making any changes <Tr. 38-39). 

Mr. Brunatti explained the meaning of "mirror image" ventilation plans, and confirmed that it did not apply in this case 

because "they took rooms and pillared off the return side and 

also drove rooms and pillars off the intake side," and th~ 

respondent had no app~oved plan for mining off both sides 

(Tr. 40 ) • 

In response to further questions, Mr. Brunatti confirmed 

that the essence of the violation lies in the fact that the 

respondent was in full retreat mining and had no ventilation 

plan to cover full retreat mining both left and right, left 

off the intake, right off the return, and pulling everything 

solid across (Tr. 41-42). He confirmed that the section was 

not being ventilated properly because the air going out of 

the gob was coming back on the return sid8 of the section 

(Tr" 45). He explained the change in the mining system which 

prompted him to issue the citation for not having submitted a 

new ventilation plan to cover that change as follows (Tr. 

49-50) ~ 

THE WITNESS~ Originally they had a plan 

approved, as they were driving the entries 

they drove rooms to the right off the return 

side and pillared those1 and they did that. 

When they advanced the section to its limit, 

then they started driving rooms left off the 

intake and pulling pillars and connecting that 

gob on the return side; that 1 s when it necessitated the change. Not a change so much as a 

new plan. 

2074 
JUDGE KOUTRAS: And since they had this prior 

plan, that led you to believe that they had 

prior knowledge that they were required to 

submit a new plan when they went to a different system of mining, is that correct? 

THE WITNESS: Yes. On previous ventilation 

reviews, they have submitted those plans. 

On cross-examination, Mr. Brunatti confirmed that he 

believed the violation was "significant and substantial" 

because the section was not being properly ventilated in that 

air was coming out of the gob back into the section in the 

number 3 entry which was a return, and he could feel the air 

(Tr. 59). He agreed that the gob air is supposed to go into 

a return, but that "the pressure ts tb be from the section 

through the gob to the return, not the pressure from the gob 

through the gob back into the return" (Tr. 57). He could not 

recall taking any smoke tests, but he did take methane readings at various locations in the section, but found no excessive levels. The highest methane reading on the section was 

.2 percent, and he _agreed that methane was not a problem on 

the day of his irr§pection (Tr. 57-58). 

Mr. Brunatti confirmed that the system of mining he 

observed taking place on August 5, 1986, in the D-5 section 

was retreat mining in which rooms were originally driven up 

and pillared on the return side, and he agreed that the 

respondent had a plan for this. However, after reaching the 

limits of the mined entries, rooms were driven to the left 

off the intake side, and pillars were being extracted, thus 

creating one gob from the intake side to the return side. 

Mr. Brunatti believed that retreat mining and pillar mining 

are interchangeable terms. He agreed that the respondent had 

an approved plan to pillar the right return side, but did not 

have a plan to drive the rooms off the left intake side to 

extract the pillars off the solid back to the other gob. In 

his view, when mining moved from the right side, which had 

been pillared, to the left side, the system of mining was 

changed from mining rooms off the return side to the system 

mining rooms off the intake side, and the system of ventilation was also changed. Since there was no plan drawing to 

cover these changes, Mr. Brunatti believed that a violation 

of section 75.316 occurred. He also alluded to the criteria 

for ventilation plan approval found in section 75.316-1, and 

confirmed that the essence of the violation lies in the fact 

that the respondent changed its mining system and failed to 

submit a ventilation plan to correspond with that change (Tr. 

59-66). 

2075 
Mr. Brunatti stated that when he discussed the citation 

with Mr. Lowrnaster and Mr. Cocora outside the mine, they went 

through the ventilation plans and tried to find a drawing for 

the D-5 section, and they admitted that they had no plan to 

cover the area in question (Tr. 73). Mr. Brunatti identified 

exhibit R-2 as a face ventilation plan, and confirmed that it 

was a part of ventilation plan Review 28 which was in effect 

at the time the citation was issued. 'He described what is 

depicted in that plan as "a working section completely separated and isolated from a gob on the right side by permanent 

stoppings and pillar mining being done on the left off the 

intake side, not connecting the gobs, but leaving a separation by the use of permanent stoppings and bradishes" (Tr. 

74) He elaborated further by stating -that "The area on the 

right side of that section had been pillared out at one time 

and now has been separated by permanent stoppings. In 

essence you 1 ve created, you have two gobs there" (Tr. 75). 

Mr. Brunatti totally disagreed that exhibit R-2 depicts 

the system of mining and ventilation in use at the time of his 

inspection, and confirmed that what he observed is what is 

depicted in exhibit G-4, p§. 3, the plan which was submitted 

to abate the violation (Tr. 77)" Mr. Brunatti stated that he 

could not specifically recall whether Mr. Lowmaster, 

Mr. Desalvo, or Mr. Cocora produced exhibit R-2 during their 

discussions, and he believed "they were just grabbing for 

straws for something that they thought would cover" what they 

were doing. Even if they had produced exhibit R-2, 

Mro Brunatti still believed it did not cover what was going 

on in the D-5 section (Tr. 79). Mr. Brunatti stated that no 

one can tell from exhibit R-2 when the pillars on the right 

and left side were pulled, and that is why it does not pertain to the system of mining taking place. He also indicated 

that the print shows two gobs being totally separated with 

permanent stoppings and with blocks of coal left in~ while the 

system of mining actual taking place on August 5, on the D-5 

section.was not leaving a row of coal blocks or stoppings (Tr. 

0) c 

Mr. Brunatti further explained the differences between 

the ventilation system he observed on t 5 and what is 

icted on exhibit R-2, and pointed out that one of the difrences was that no permanent separation was being maintained 

between the two gob areas as it is depicted on the print (Tr" 

85-89 . He also explained what he considered to be major difR-2 and G-4 (Tr. 95-101; 104-106). 

2076 
Mr. Brunatti confirmed that the respondent could continue 

to use the face print used to abate the violation, exhibit 

G-4, pg. 3, if they start mining elsewhere as long as the same 

system of mining is used. He explained the meaning of "same 

system" as follows (Tr. 103): 

THE WITNESS: If they're just going to drive 

entries up and room and pillar to the right 

side or the return side, that would be a 

one-face print for that, just showing that, 

how they'll ventilate that section plus assure 

positive pressure from the section to the gob. 

Now, if they want to go up and do that and 

then pull pillars coming back out~ then they 

need a print to show not only how they'll 

ventilate the section, but also how they'll 

assure ventilation to that gob to keep the air 

off the section from the gob air. 

Mr. Brunatti explained further that in order for plan 

print R-2 to be effective, once pillaring started on the left 

side, a row of permanent stoppings must be in place to prevent 

the air from the right side from coming into the left. There 

was no way this could have been done on August 5, because 

pillaring was taking place across the section without leaving 

any separation, and any variation in the prints would require 

prior MSHA approval because the system of ventilation was 

changed and the plan is supposed to reflect the system of mining as well as the system of ventilation being incorporated 

(Tr. 106-107). Mr. Brunatti confirmed that prints R-1 and 

R-2, both reflect the same system of mining, namely, retreat 

pillar miningo Howeverv the conditions which prevailed on 

August 5 were different from those reflected in R-2 (Tro 

109)0 

MSHA Inspector and Ventilation Specialist Richard Zilkaf 

testified as to his experience and duties, which include the 

review of all mine ventilation plans in MSHA District No. 2. 

He confirmed he holds a in mining engineering 

from the Un He stated that he reviews 

all addendums plans which are required to 

be submi every 6 months, including changes in ventilation, 

and he ined the procedures this review (Tro 118-122). 

Mr. Zi stated that his review of venti ion prints 

R-2 and R-1 indicates signif t differences in the manner 

in which two gobs are ing ventilatedv and that it would 

require a change or an addendum to be mining as the two 

2077 
prints indicate. Assuming that print R-1 accurately reflects 

what was taking place on August 5, print R-2 would not as a 

matter of policy in his district be an acceptable face print 

to cover that situation (Tr. 123). In explaining the respondent's plan "variations" provided for in R-3, Mr. Zilka 

stated as follows CTr9 124-126): 

A. The variations that they're talking about 

would be considering, if you have a five-entry 

system you submit one plan that shows yo~ 

mining say, Number 1 Entry, and the Number 2, 

3, 4 Entries, how the back checks are set up 

so it's ventilated while they're mining the 

Number 1 Entry. 

Variations is that we wouldn't require 

them to show how Number 2 Entry's being mined, 

Number 3 Entry and Number 4, repetitive. 

These are variations. we don't require that. 

One face print would suffice for that. 

Q. The diffe~ences that you have noted, and I 

think you stated it as mainly the permanent 

stopping between R-2, that is shown on R-2 and 

the abatement plan that is shown on Government 

Exhibit 4; are you following me? 

A. Yes. 

Q. Would that be the kind of variation that 

the company could do by themselves? 

A. Not according to District policyf it would 

not be acceptedo 

Q. Now, you talk about District policy. Do 

you have reason to believe that Greenwich 

Number 1 Mine or R & P Coal Company is 

familiar with District policy? 

Ao Yeso On numerous occasions? the situation 

of how face printsv what are to be on face 

prints and addendums to them to be submitted 

have been discussed with R & P personnel on 

numerous occasions. 

Q. Have you had such discussions with R & P 

personnel? 

2078 
A. Yes. 

Q. Have you had such discussions prior to the 

time that this citation order was issued in 

August of 1986? 

A. Yes. 

Mr. Zilka stated that based on h~s conversations with 

respondent's personnel, they should have been aware of the 

fact that print R-2 was unacceptable for what was going on in 

the section on August 5. He explained that the system for 

ventilating the gob should be marked down accurately to assure 

that there is no chance of gob air containing high methane or 

black damp coming back on the miners. He indicated that one 

of the primary differences between prints R-2 and R-1 is the 

differences between how one ventilates two gobs separately as 

opposed to ventilating one gob (Tr. 128). 

Mr. Zilka identified exhibit G-5 as 1983 cover letters 

concerning an ove.ra-11 packet of ventilation plans submitt~d to 

MSHA's District Office by the respondent covering all of its 

mines. Included in the packet were the specific plans for 

each mine which were submitted every 6 months. However, the 

respondent was still required to submit new plan addendums 

when changes in the system of mining and ventilation occurred, 

and this is reflected in the correspondence (Tr. 129-132). In 

response to further questions, Mr. Zilka stated (Tr. 132-134): 

Q. Let 1 s assume that a company is using 

pillar mining on one side and pillar mining on 

the other side of an entry. And let's assume 

that they are always pillar mining but that 

their system of ventilation changes from one 

side to the othero 

Does not the District Office, would they 

or would they not consider it a violation of 

750316 not to submit a face print for the 

other side of the entry? 

A. Absolutely; Just because youvre pillar 

mining does not mean that your face ventilation plan is exactly the same every time, 

especially if you're pillaring, if you're 

driving entries and you're mining on the right 

and pulling those pillars on the right side or 

pillaring on the left side; you could change 

the ventilation, you could be taking the air 

2079 
up on the right side and dumping it or when 

you're mining on the left you could still be 

doing the same thing but in--. It would be 

different, let me assure you. 

Q. When you say it would be different, what 

would be different? 

A. The face ventilation system,·how you're 

ventilating the gob area, either to the left 

or the right of you. 

Q. And under 75.316, would a company be 

required to submit a face print for that next 

section? 

A. Yes. 

Q. Even if they were using pillar mining in 

both sections? 

A. Even if they're using pillar mining. If 

they're using a different ventilation system, 

the way they're setting it up and ventilating 

the gobs, they would have to submit a new 

plan. 

Mr. Zilka confirmed that in an effort to reduce the 

amount of paperwork being submitted by the respondent with 

respect to its ventilation plans, the respondent was 

requested to eliminate those face prints which were not being 

used and to submit them at the time they intended to use them 

(Tr. 136). Mr. Zilka stated that he has "briefly looked at~ 

plan Review 28v and based on the conditions cited by 

Inspector Brunatti as a violation in this casev he could find 

no face print which would correspond to the ventilation which 

existed on August Su 1986 (Tro 138), Mro Zilka agreed that 

Mr. Brunatti 1 s order was in compliance with MSHA district 

policy, and he confirmed that as a matter of policy, the mine 

ventilation system is considered to be a part of the mining 

systemr and that the respondent is aware of this (Tr. 

139-142)0 

On cross-examinationr Mro Zilka confirmed that regardless of the same mining system being followed in a mine, 

ventilation systems vary even though the mining system may 

stay consistent. Prints R-2 and R-1 reflect plans for ventilating two separate gobs, and he believed that both have been 

approved by the district manager <Tr. 143-146). A "typical" 

2080 
face plan is one that shows how the face area is being ventilated, and if there is any deviation from that plan, another 

plan has to be submitted for approval (Tr. 154). 

Mr. Zilka was of the opinion that the respondent could 

not use face print R-2 as a typical print for the conditions 

observed by Mr. Brunatti, and as shown in print R-1, because 

the two prints contain different ventilation systems (Tr. 

161). Mr. Zilka confirmed that his understanding of the 

violation is that Mr. Brunatti found the respondent in full 

retreat pillar mining on August 5th with no ventilation plan 

to cover what was going on (Tr. 169). Face print R-2, would 

not apply because it shows a different system of ventilation 

with two gob areas separated by a stopping going all the way 

up to the face (Tr. 179). 

In response to further questions, Mr. Zilka confirmed 

that he did not discuss face print R-2 with the respondent, 

but has discussed similar prints and changes that may occur. 

He discussed the matter with Mr. Onuscheck after the violation was issued and advised him that face prints could not be 

mixed, and that print-R-2 was not acceptable in a situation 

where one is pillar mining on the right side and then goes 

over to the left side and starts pillaring and pulling back 

(Tr. 183-184). 

Respondent's Testimony and Evidence 

Joseph N. Desalvo, testified as to his background and 

experience, and confirmed that he is employed by the respondent as a safety inspector. He holds a B.S. degree in education from Indiana, Pennsylvania University. He confirmed 

that he accompanied Inspector Brunatti during his inspection 

on August 5p 19860 He identified print R-1, which is identical to G-4f as a diagram how the D-5 section looked on the 

the inspectionv and he described what he and 

Mro Brunatti did by reference to an enlarged copy of R-1 (Tr. 

186 91)0 

Mr" Desalvo confirmed that face print R-1 depicts the 

system of mining and the system of ventilation on the D-5 

section on the day of inspection, and he stated that the 

pr was submitted ter Mr. Brunatti issued the violation, 

and it was approved at that time as part of the ventilation 

plan (Tro 192)0 Mro DeSalvo stated that whi underground, 

he advised Mro Brunatti of his view that the manner in which 

the gob was being venti ted "was the best possible way that 

it could be ventilated," and that Mr. Brunatti agreed with 

him (Tr. 193)0 They then went to the surface and discussed 

2081 
the matter with superintendent Lowmaster and division manager 

Cocora. Upon review of the face prints contained in plan 

Review 28, management came to the conclusion that face print 

R-2 reflected what was taking place in the D-5 section, and 

this opinion was conveyed to Mr. Brunatti, but he disagreed 

(Tr. 194-195). 

On cross-examination, Mr. Desalvo confirmed that 

Mr. Brunatti reviewed the face prints~produced by mine management before issuing the citation, and that the "whole packet" 

of prints was reviewed. However, management concluded that 

R-2 "applied the best" (Tr. 197). When asked why management 

would not specifically know which face print applied, rather 

than going over the entire package to find one which may have 

applied, Mr. Desalvo responded "I don'~ really specialize in 

those plans, neither do people like Mr. Lowmaster. * * * that 

particular day we did try, to contact the ventilation engineer 

at the mine, and he was unavailable for certain reasons, but 

we were not the specialists in ventilationn (Tr. 197). 

Mr. Desalvo confirmed that prior to the group discussion concerning the prints, he had not. seen Review 28 (Tr. 198). ,When 

asked whether Mr. Lowmaster was surprised concerning the 

prints in Review 28 ,· Mr. Desalvo responded "in the past we had 

submitted more specific drawings, and I think that may have 

been a bit of surprise to Mr. Lowmaster, but I don't think the 

packet itself" (Tr. 199). When asked why the respondent 

stopped submitting more specific prints, Mr. Desalvo responded 

"I really don't get involved in that end of it" (Tr. 199). 

Mr. DeSalvo conceded that face print R-2 is less s~ecific 

than prints submitted in the past, and it does not specify 

that it is a drawing for the D-5 section. In response to 

further questions, Mr. Desalvo stated as follows (Tro 199-200}: 

Qo Isn"t it true that Mr" Lowmaster said when 

you came up above ground to Sam that the 

prints .didn 1 t match their mining syst~m that 

was going on at the time? 

A. I remember Mr" Lowmaster saying something 

similar to that, but I'm sure, the context 

that I took what Mro Lowmaster was saying in 

was I believe at that time the oacket contained somewhere around 20 or 2S prints, and 

we were operating five sections. So, many of 

the prints really didn't apply to the number 

of sections that we had. 

2082 
Q. Do you have any idea from the conversations 

that were going on between Sam and Mr. Lowmaster 

at the mine, whether Mr. Lowmaster had indicated 

that he had ever seen Review 28 before, the 

prints in Review 28? 

A. I don't honestly recall Mr. Lowmaster 

saying that, but then I wasn't in the room all 

the time. 

Mr. Desalvo confirmed that all of the blocks of coal 

shown across the top of the section on R-1 had been pillared 

and mined at the time of the inspection, and that the area to 

the right side of the print was a mined-out gob area, but 

there was no separation between the two- gob areas (Tr. 

202-203). Mr. Desalvo stated that there was "very little 

difference" between prints R-1 and R-2, and that R-2 "is 

close enough" to what was going on in the D-5 section (Tr. 

205-206). He then stated that there are definitely differences, and though he is not,a ventilation specialist, his 

understanding as a rrriner of the basic ventilation of a mine 

indicates to him that the ventilation shown in R-1 and R-2 is 

the same (Tr. 206). Mr. Desalvo confirmed that while the 

stoppings shown on R-2 are needed, he could not explain why 

because he did not participate in the drafting of that print 

(Tro 210). Although the prints look the same, he was not 

sure why the coal blocks shown in R-2 were left as shown, but 

agreed that if mining continued in the same area they would 

eventually be pulled (Tr. 211). 

Mro Desalvo confirmed that the respondent has previously 

been cited for ventilation plan violations under circumstances 

similar to those in the instant case, but he could not recall 

the details of those prior citations. He recalled one citation issued by Mro Brunatti subsequent to the one issued in 

this case for failing to change a plan or submit a print (Tr. 

212-213)0 

William Onuscheckv respondent 1 s Ventilation Engineerv 

testified as to his education 0 ventilation training 0 and 

experience" He confirmed that plan Review 28 contains typical rather than specific face plans, and confirmed that the 

respondent does not submit specific ventilation plans pertaining to the ventilation employed on any particular mine section o He stated that at one time, the respondent submitted 

specific plans to MSHA, but this became cumbersomeo He identified exhibit R-5, which was not offered and received as 

part of the record in this case, as a "binder" containing 

ventilation plans which was submitted to MSHA's district 

2083 
office on May 10, 1983. The exchange of correspondence concerning this binder is reflected in exhibit G-5. The binder 

contained an accumulation of all previously submitted and 

approved face prints (Tr. 214-221). 

Mr. Onuscheck explained that the prior procedure of submitting specific face plans to be added to the binder resulted 

in practical paperwork problems and delays in having plans 

approved. As a consequence, he met wlth MSHA's District 

Manager Huntley, and they worked out a different system for 

submitting ventilation plans, namely the submission of "typical plans." Subsequent meetings with Mr. Emil Piontek, 

Mr. Zilka's co-worker in MSHA's ventilation department, 

resulted in the formulation of a typical packet of face ventilation plans covering the driving of entries, rooms, stumping, 

driving rooms and entries with multiple splits, and advance 

and retreat stumping of rooms. All of these typical plans are 

incorporated as part of Review 28, and there are 20 such 

plans, one of which is R-2 {Tr. 221-222). Mr. Onuscheck identified a copy of a letter dated December 12, 1984, addressed 

to Mr. Huntley, submitting two packets of typical face ventilation plans used in th~ respondent's mines (Tr. 224). Plan R-2 

was among the packet·s submitted, and it was also submitted as 

part of Review 28 for the Greenwich No. l Mine in February, 

1986, and subsequently approved by MSHA on June 4, 1986 (Tr. 

225). 

MSHA's counsel disputed any assertion or inference that 

MSHA accepted the binder as the respondent's ventilation plan. 

Counsel asserted .that the binder was simply acknowledged as 

part of the effort to cut down on paperwork, but that MSHA 

made it clear to the respondent that specific face ventilation plans needed to be submitted and "it never was acceptable to the district office that you just submit a general 

plan and then go do whatever you want as a variation of that 

planun (Tro 227)0 Mr. Onuscheck further explained as follows 

(Tro 229-230)~ 

THE WITNESS: Yes, and I don't want to give 

you a false impression, even with the binder 

there were times when we would be mining, even ~ith all those plans, we still wouldnut have a 

plan incorporated into the binder for the type 

of mining we were doing. 

JUDGE KOUTRAS~ That's right, what would you 

do then? 

2084 
THE WITNESS: So we would have to keep on 

submitting. 

JUDGE KOUTRAS: Submitting? 

THE WITNESS: Yes, so if we kept on, at this 

point our binder would, we'd probably have 

four of those by now. Which, at which point, 

we went to the typical, 20 typicals instead of 

the binder. 

MSHA's counsel confirmed that while the binder was not 

acceptable to MSHA's District office, the "typical packets" 

were acceptable. However, if there is a change in the mining 

or ventilation systems, a new plan would still have to be 

submitted. Counsel explained the meaning of a "typical plan" 

as follows (Tr. 234-235): 

MS. HENRY~ Your Honor, I think it's been well 

established by Mr. Zilka's testimony, that he 

informed R & P representatives of this numerous times, of what MSHA 1 s 'def ini ti on of what 

typical was .. 

JUDGE KOU'rRAS: Which was? 

MS. HENRY: That typical means you can use a 

plan, and let's say you're driving up one 

entry, you use that plan. I want to make sure 

I'm getting this right. You start going up 

the second entry and it's the same thing, you 

may use that plan again. 

Or if you 1 re pillaring out one block, you 

have particular plansu and you go to pillar 

the next blockr you can use that plan. 

It doesn't mean that in situations were 

you create a gob where no gob was before you 

can use that plan. 

JUDGE KOUTRAS: Well let me ask you this: Is 

the bone of contention here that on the one 

hand Mr. Brunatti believes there were two separate1 distinct gob areas on August the 5th --

MS. HENRY: No, you have it reversed. There 

are two separate, distinct gob areas shown on 

the face print that they tried to pass off. 

2085 
JUDGE KOUTRAS: On the face print, but they 

didn't have two separate --

MS. HENRY: They didn't have two separate 

gob 

JUDGE KOUTRAS: They just had on~? 

MS. HENRY: Right. 

JUDGE KOUTRAS: They didn't have a sketch for 

that? 

MS. HENRY: Right. 

JUDGE KOUTRAS: And that's the violation? 

MS. HENRY: That's it in a nutshell. 

And, at (Tr. 238-241): 

* * * * * * 

JUDGE KOUTRAS: Couldn't the conditions change 

from day-to-day? 

MS. HENRY: These conditions had changed, 

obviously small conditions could change from 

day-to-day, but the act of creating one gob 

and going over to the intake section and mining the intake section is the kind of, as 

there was testimony, is a kind of major variationu a kind of major change that requires a 

new face print. 

* * 

MS. HENRY: A typical plan. We're saying that 

Greenwich has, and R & P has been informed, 

itus not like they 0 re left out there to dry in 

the wind --

JUDGE KOU'rRAS ~ Informed of what? 

MSo HENRY~ about what typical means. 

They 1 ve been told that. 

JUDGE KOUTRAS: Well, what does it mean? 

2086 
MS. HENRY: It means that if you, on certain 

limited circumstances such as mining 

entry-by-entry or block-by-block 

JUDGE KOUTRAS~ Right. 

MS. HENRY: you can use the same plan without submitting a new one. It do'es not mean 

that if you go from the return side of the 

entry to the intake side of the entry and 

start mining there that you can use the print 

that they were claiming applied. 

Mr. Onuscheck stated that sinpe the submission of the 

typical plans, and prior to the respondent's dealings with 

MSHA's Hastings field office, the respondent has mined 

approximately 15 million tons of coal, and no one has ever 

questioned the use of the typical face plans even though 

various mining methods were used. He indicated that in the 

year and a half prior to the issuance of the citation by ' 

Mr. Brunatti, the use of typical face plans was not an issue. 

He believed that the Hastings field off ice was unfamiliar 

with the use of th~typical face plans, but since the 

district manager accepted them, he further believed that the 

respondent has complied with the requirements of section 

75. 316 (Tr. 241-242) o 

Mr. Onuscheck confirmed that face print R-2 is the plan 

that was submitted by the respondent when it submitted its 

original typical plans, as well as later when it submitted 

Review 28 for the No. l Mine. He identified print R-1 as the 

plan submitted to abate the violation issued by Mr. Brunatti. 

He described the similarities and differences in the two 

plans, and while he conceded that there are differences in 

the manner in which the gob is being ventilated, he did not 

believe that they are significant (Tro 254-256). He confirmed 

that R-2 depicts what was going on on the D-5 section in terms 

of pillar mining and ventilation at the time the violation was 

issued (Tro 257)0 

On cross-examination, Mr. Onuscheck stated that once a 

typical plan is filed and approved by MSHA, the vehtilation 

direction could be changed without notifying MSHA or submitting another plan, because to do otherwise would require a 

new plan every day or every hour. He dij not believe that 

finishing one gob on one side of the entry and starting 

another gob on the other side is important enough to require 

the submission 'of a new plan (Tr. 259)" He confirmed that 
during his conversation with Mr. Brunatti, they discussed 

"typical" plans as compared to "specific" plans, and that 

when he asked Mr. Brunatti why he issued the citation, 

Mr. Brunatti responded that there was no plan explaining 

exactly what was going on in the D-5 section {Tr. 261). 

Mr. Onuscheck stated that he believed he was complying with a 

variation of plan R-2, but not the exact plan, and that 

Mr. Brunatti insisted that he was not complying with "an 

exact replica of what we were doing ... ·· In order to do this, 

up-to-date maps, rather than plans would have to be submitted, 

and this was done to abate the violation (Tr. 262). 

Mr. Onuscheck confirmed that R-2 11 is close to" what was going 

on in the D-5 section when the citation was issued (Tr. 263). 

Mr. Onuscheck confirmed that face·print R-2 was not submitted to abate the violation, even though it had previously 

been accepted by the district office, and represented what 

was going on in the D-5 section, because he believed an order 

may have been issued by Mr. Brunatti. Rather than argue 

about it, and to achieve abatement as fast as possible, "it 

was simple just to make up a plan and send it in to abate, the 

violation" (Tr. 279). -

Mr. Onuscheck confirmed that the plan binder previously 

referred to consisted of previously submitted and approved 

face plans, and that it was put together as a matter of convenience for the district office and "we just listed them and 

instead of sending down 40 face prints for whatever mine it 

was, we just listed the numbers" (Tr. 282). Mr. Onuscheck 

confirmed that prior to Mr. Brunatti's citation, pillars had 

been pulled and extracted utilizing print R-2. With regard 

to the prior submissions of the typical plans, he stated as 

follows (Tro 284-286)~ 

Q" So it's true, then, that those plans that 

you drew up were not specific for Greenwich 

Mine; in factv when you drew them up you 

didn 1 t even have Greenwich in Qind since 

Greenwich is not under R & P's direction? 

Ao Righto At the time we didnut have 

Greenwich in mindo When we took over, and we 

made studies of the Greenwich Mine prior to 

taking over, we spent, oh, I 1 d say a month up 

therev a good month going over their plans and 

how they mined and everythingo 

Their type of mining was very similar to 

ours. We tailored a typical plan and added 

2088 
two other face plans to our typical. In addition to the typical we added two other plans, 

because mine management said that, you know, 

these, we want to put them in with your 

typicals. 

Q. Were you mining D-5 at the time, Section 

D-5? 

A. When we started managing; no. 

Q. Mr. Onuscheck, do you understand that the 

use of a typical ce plan has been established by the testimony from Mr. Zilka, means 

only mining from entry-to-entry or from 

block-to-block, that it does not cover a situation where you go over from an intake side to 

a return side? 

A. No, ma'am. Without'hearing his testimony 

I don't agree that it's just, how did you say, 

adding an entry? 

Q. Yes, either adding an entry or going from 

block-to-block, those are the only cases in 

which you coald use a typical plan? 

A. No, we take the opinion that we, you can 

vary a lot more than just that. 

Q. But hasn't MSHA told you that you can't 

vary a lot more than that, that that's the 

only variance you can have under typical 

plans? 

A. We hear a lot of things from MSHA, ma 1 am, 

I don't know if they've ever said, specified 

how r you can go. 

Q. Has MSHA ever told you that youQre varying 

too much on the typical plans, that you can't 

va as much on your typical plans? 

Ao Prior to Samis violation, I don't think 

they did. Now, recently, they have been questioning the face plans, the typical face plans 

quite a bit in the last couple of months, or 

I'd say even the last half of year. But prior 

to Sam 1 s violation, I don't believe they had. 

2089 
Michael Ondecko, stated that he is employed by the 

respondent as a ventilation engineer, holds a B.S. degree in 

mining engineering from the Penn State University, and he 

testified as to his experience and duties. He confirmed that 

he and Mr. Onuscheck worked together in the preparation and 

submission of plan Review 28, and the face print packet that 

was part of that plan. Mr. Ondecko identified exhibit R-2 as 

a page from the packet submitted with .. plan Review 28 that was 

submitted and approved by MSHA. R-1 is the addendU.m which 

was sent in to abate the citation issued by Mr. Brunatti, and 

R-2 is a face print which had previously been submitted and 

approved, and it was in effect at the time the citation was 

issued (Tr. 303-307). 

Mr. Ondecko explained what he believed to be the similarities and differences in face prints R-1 and R-2, and he 

stated that had Mr. Brunatti been on the section a week or 

two prior to his inspection, he would not have observed as 

much gob being extracted, and at that time the two prints 

would have been very similar. He indicated that without the 

extraction of the five stumps which he identified between the 

No. 11 and No. 12 rooms on face print R-2, the two prints 

would look the same .. / In his opinion, there was no need to 

send in a new face print for the specific location because it 

was already covered in print R-2. He confirmed that the only 

difference in the two prints is the amount of mining which is 

taking place. Otherwise, they would perhaps be identical 

(Tr. 307-311). 

In response to a question as to the ventilation directional arrows shown on R-1, indicating that return air was 

going to the right, Mr. Ondecko stated as follows (Tr. 

311-313): 

Q. * * * And the question was if we show the 

air going to the right 9 why do we think we can 

move the r in another direction. Do you 

have an answer for that question? 

A. Possibly to clarify thatv it is when these 

face prints are sent in theyare to show 

general face ventilation patternso It's not 

uncommon for some of our sections to have twop 

three thousand feet of gob arear and itas not 

uncommon for air to come out of a crosscut in 

the opposite direction as shown on the map. 

2090 
But it does not, in any fact, say that 

we're ventilating the gob any differently, 

we're still pressurizing the gob and we're 

loosing, when MSHA is looking at this plan, 

they're looking at the general plan that may 

show the ventilation pattern is going in the 

same direction. 

And we've had instances at out mines 

where violations have been vacated because of 

an air directional arrow in, say, one crosscut 

out of eight was going in the wrong direction. 

And Pittsburgh has said that you show the 

basic ventilation pattern~ we can't hold you 

down to every crosscut that has ventilation 

coming out of that crosscut. 

But there are certain situations where 

gob will tighten up here, (indicating) and not 

be as tight here to where you can only control 

that gob with canvas checks and do the best 

you can to pressurize your gob. 

And in some cases you will have air flow 

coming out in the opposite direction, but it 

doesn't say that you're still not pressurizing 

the system. Okay, the system is still functioning properly. 

On cross-examination, Mr. Ondecko confirmed that he was 

not at the mine when the citation was issued. He agreed that 

the ventilation plan states that air flow must be maintained 

over the gobs so that it is course away from the active working sectiono He indicated that there are times when all of 

the air does not go away from the working section, and all 

that is required to be shown on a plan is a general ventilation pattern (Tr. 313)0 Mr. Ondecko stated that it was possible that Mr. Zilka may have advised him that a ventilation 

plan showing a double split of air could not be used as the 

same plan for a single split of air, but he could not recall 

such a conversation (Tro 314)0 

Rebuttal Testimony 

Inspector Brunatti testified that any "system of mining" 

necessarily includes a "system of ventilation," and that the 

two go hand-in-hand. In his view, the term "typical plan" 

means one that is approved for a particular mine, and that 

2091 
section 75.316-2 makes it clear that a typical mining method 

should correspond with a typical ventilation pattern on a 

mine-by-mine basis (Tr. 316). He reiterated his disagreement 

that face print R-2 could be used in mining across the stumps 

shown in print R-1, and no ventilation controls are shown on 

R-2 so as to control the air going to the gob being created 

by mining across the area and taking out the Rtumps (Tr. 

316-321). He confirmed that when he fapoke with Mr. Onuscheck 

by phone, face print R-2 was not mentioned, and when he 

advised Mr. Onuscheck that there was no print to correspond 

with the mining taking place "he left me with the understanding he'd get one in and get it submitted" (Tr. 322). 

Mr. Brunatti confirmed that even if Mr. Onuscheck had produced print R-2, he would have rejected it because it was 

totally unrelated to the mining which was taking place (Tr. 

323). 

Referring to an enlarged diagram of face print R-1, 

Mr. Brunatti stated that the ventilation controls are different from those on R-2, and he explained how he determined 

that some of the air from the gob was leaking into the active 

working section, and how the gob pressure was other than that 

shown on R-2. In hi.s 'view, had a proper face print been submitted, and the .ventilation controls shown therein been 

followed, the air leakage problem would not have existed (Tr. 

327-338). 

Mr. Brunatti stated that at the time he discussed the 

citation with mine management at the mine, he was shown several face prints, and while some of them may have closely 

resembled the approved ventilation plan, none of them resembled the mining which was actually taking place. He denied 

that he insisted on a face print depicting exactly what was 

going onu and stated that he would have accepted any plan 

that reasonably approximated what was going on, but he does 

not consider R-2 to be such a reasonable approximation (Tr. 

342-345). He confirmed that while district policy allows 

reasonable variations in the ventilation methods shown on 

face prints, if such variations affect the manner in which an 

area is being ventilated, or if changes ara made in the direction of the air or in the system of miningu they would not be 

permitted without another plan to cover these changes. In 

the instant caseu the system of mining had changed on the day 

of his inspection. Although a plan was approved to cover the 

time when the three room entries were initially driven anu 

pillared off the return side of the section, they had no plan 

when they started across and began driving and pillaring 

rooms on the intake side. Such a new face print was required 

2092 
to insure adequate ventilation over the intake gob area (Tr. 

346>~ 

Mr. Zilka testified that face print R-1 represents a 

ventilation system involving a double split of air, and he 

indicated that "Mr. Ondecko and Mr. Onuscheck and every ventilation engineer in the district has been told and informed 

since day one that a single split and a double split is 

totally different and there is no wai.that you can go from a 

single split to a double split without a ventilation change 

which requires an addendum" (Tr. 348). Inspector Brunatti 

agreed with Mr. Zilka (Tr. 369). 

Mr. Ondecko disagreed that face print R-1 reflects a 

double split of air, and indicated that it is possible to 

find at least five or six splits of air on the print (Tr. 

373-375). 

MSHA's Arguments 

MSHA asserts that a violation of section 75.316 occurred 

when Inspector Bruriatti observed retreat mining performed in 

the D-5 section and the respondent did not have a face print 

to show how to ventilate the mined-out right side while mining the left side. MSHA asserts that this is a change in the 

"conditions and mining system" of the mine which requires 

appropriate revisions in the ventilation plan, and such 

changes include changes in the pattern of mining. To claim 

otherwise, argues MSHA, would render section 75.316 almost 

meaningless, for it would mean that operators need only submit changes in ventilation plans if they changed, for example, 

from pillar mining to longwall mining. 

MSHA further asserts that the respondent cannot def end 

against the issuance of the citation by asserting collateral 

estoppelu because MSHA, in the issuance of a citation or 

order, is not bound by collateral estoppel. El Paso Rock 

Quarries, 2 MSHC 1133 (1981), King Knob Coal Co., 2 MSHC 

1371, 1375 Cl98l)u U.S. v. Browning, 630 F.2d 694 {10th Cir. 

1980)0 MSHAv therefore, concludes that even if the respondentis arguments that they could institute variations in mining without corresponding face prints approval were credible, 

it is not a defense to the issuance of Inspector Brunatti 1 s 

order. MSHA points out that Inspector Brunatti determined 

that the face prints submitted by the respondent, and shown 

to him on August 5, 1986, did not reflect the actual ventilation system in the mine, and further, did not show how such 

2093 
retreat mining was to be ventilated in the future. MSHA concludes that this is a violation of section 75.316, which provides that ventilation plans shall correspond with the pattern 

of mining in any one area, and that any alleged previous 

belief that the respondent could modify its plans without 

prior approval is irrelevant as to whether the order was 

properly issued. 

MSHA argues further that such a belief on the respondent's part exceeds credulity and that its negligence was 

properly rated as high. In support of this conclusion, MSHA 

points to the testimony of Richard Zilka, who reviews the 

ventilation plans for compliance at the District Off ice 

level, and who stated that he had explained the requirements 

of ventilation face prints to the respondent on several 

occasions. MSHA suggests that Mr. Zilka's testimony at trial 

was clear and consistent, and that his testimony that he was 

in almost daily contact with the respondent is uncontradicted. 

Mr. Zilka recalled the names of people to whom he had spoken 

as part of this daily contact, and clearly stated that the 

respondent expressed no confusion durin; these meetings7 · 

therefore, Zilka did not need to reduce such constant communication to writing. Mr. Zilka emphatically stated that his 

views represented those of the district, and that on the day 

the order was issued, respondent's engineer Onuscheck admitted 

that he knew he needed ~ace prints for this new pattern of 

mining, and Mr. Brunatti recorded this conversation in his 

contemporaneous notes. 

MSHA concludes that it has established a prima facie 

case of high negligence in that the respondent knew it was 

required to submit a new ventilation face print for this mining, and further knew and admitted that at the time of the 

order the prints in the ventilation plan did not cover the 

situation at the D-5 areao MSHA suggests that the respondent's current claims that it believed all the while that its 

prints were "close enough" to its mining system are contradicted by its employees' statements at the time of issuance 

of the citations and by Zilka's and Brunatti's explanation of 

MSHA policyo ~lthough respondent referred to alleged statements made by District Manager Huntley, neither a deposition 

nor any written material from Huntley supports these allegations, rather the consistent, emphatic statements of Zilka 

and Brunatti disprove them. 

MSHA maintains that the respondent's defense to negligence that it could vary plans on its own volition undercuts 

the very purpose of the Act. MSHA states that in addressing 

such arguments as the "diminution of safety" defense, the 

2094 
Commission has rejected the argument that "an operator can 

unilaterally determine that a mining operation can be conducted in a safer manner by foregoing compliance with the 

requirements of a mandatory standard. 11 Westmoreland Coal 

Co., 3 MSHC 1939, 1943 (1985). MSHA states that by arguing 

that the ventilation of one gob, the system in place the day 

Inspector Brunatti issued the inspection, may be regulated by 

a face print showing the ventilation of two gobs, the systeu 

revealed in Exhibit R-2, respondent suggests that it may 

determine what is and is not minor variation, and that it may 

determine if MSHA's safety standards are met. This argument, 

concludes MSHA, impermissibly contradicts the presumption 

that MSHA 1 s safety standards protect miners and the "strict 

liability" nature of the Act itself. Therefore, MSHA further 

concludes that the respondent's arguments strain credulity 

and do not refute the testimony of Engineer Zilka and Inspector Brunatti that it was well informed as to the requirements 

of the ventilation plan regulations. 

Citing Cement Division, National Gypsum Co., 3 FMSHRC 

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

(January 1984), and-consolidation Coal Company, 6 FMSHRC 34 

(January 1984>, MSHA asserts that Inspector Brunatti properly 

rated the violation as significant and substantial. 

MSHA points out that the Commission has recognized that 

the violation of a ventilation plan where "an insufficient 

quantity of air could lead to a build-up of methane" was a 

serious violation. Peabody Coal Co., l MSHC 1573 (1977), and 

has stated that " •.• the hazards associated with inadequate ventilation ••. are among the most serious in mining." 

Monterey Coal Co., 3 MSHC 1833, 1855 (1985). MSHA states 

that in Monterey the Commission reaffirmed that the proper 

focus of a hazard presented by a violation is not solely on 

the instant situation, but ~. a • on the hazards posed by 

continuing mining operations.R 3 MSHC at 1836. MSHA concludes that the violation in issue here meets those standards 

in that the face prints Mr. Brunatti reviewed did not show 

how to ventilate the area he inspected. As a result of the 

lack of an applicable face printp there was no plan to 

re-route the air leakage into the working section which endangered the minersil and Mr. Brunatti 1 s contemporaneous notes 

support his observation on the existence of this leakage. 

MSHA asserts that ventilation leakage causes methane and 

black damp, and therefore there was an underlying violation 

as a result of the lack of face prints and a discrete safety 

hazard from the leakage caused by such lack of a ventilation 

plan. The mere direction of air into the return entry is not 

209 5 
enough to overcome this safety hazard. The fact that the 

respondent would suggest that simply directing air into the 

entry, and not also directing it away from the working section complies with the Act, reveals a dangerous ignorance of 

the correct ventilation procedures. MSHA maintains that the 

air must be directed away from the working face as well as to 

the return airway. Otherwise, there is a reasonable likelihood that miners will be exposed to black damp and to accu.~ulations of methane. These exposures lead to explosions which 

produce serious health injuries. 

MSHA asserts that even if no leakage occurred that day, 

the order was still properly rated "S & S" in that a ventilation plan by its very nature is directed against future 

hazards. The mere fact that the air may happen to be flowing 

in the right direction without benefit of a ventilation plan 

does not assure that the air will continue to flow that way. 

In fact, the very presence of ventilation plan requirements 

in the MSHA regulations indicates that this system is too 

important to leave to the operator's good will, or to presume 

that air flowing in the "correct" direction will continue-to 

do so in the absence of a ventilation plan. Such a presumption, maintains MSHA,-undercuts the strict liability nature 

of the Act and the very existence of ventilation plan 

requirements. 

MSHA asserts that such a presumption also trivializes 

the serious hazards associated with ventilation violations. 

Without a face print showing how pressure would be kept on 

the gob to direct air away fro1n the face, respondent presented a discrete safety hazard to its miners. Without such 

a print to regulate ventilation, it is reasonably likely that 

dangerous gob air will travel to the face. In ventilation 

problems, the focus is on the effect of the violation on 

future mining, and not whether the air luckily travels in the 

right" direction at the time of the order. Without a face 

printv the respondent cannot assure that gob air will flow 

away from the working section. Such gob air travelling to 

the working section will carry 1nethane and black damp to the 

miners, raising a reasonable likelihood that miners will 

suffer serious injury. Thus, MSHA concludes that the order 

is properly rated significant and substantial. 

Respondent 1 s Arguments 

Respondent's first argument is that the citation and 

subsequent modification do not properly, and with any particularity, advise the respondenc as to the nature of the alleged 

violation. Respondent points out that although the citation 

2096 
alleged that it did not have an approved ventilation plan 

showing the ventilation system for retreat mining in the cited 

area, the modification to the citation stated that it did have 

an approved ventilation plan for pillar mining in the same 

area prior to the issuance of the citation. Respondent contends that the modification discounts any notion that it did 

not have an approved ventilation plan, and that the citation 

and modification are contradictory. 

In response to the inspector's statement in the modification that "the system of mining changed, thus necessitating a 

need for a new ventilation plan," the respondent contends 

that the inspector's attempt to substantiate a violation by 

stating that the system of mining had changed, thus necessitating the filing of a new ventilation-face print, is contradicted by his own testimony that the system of mining employed 

was pillar mining. Respondent asserts tha.t the terms "pillar 

mining" and "retreat mining" are interchangeable. It points 

out that while Inspector Brunatti attempted to distinguish 

pillar mining on the left and right sides of the cited area 

being mined, he nonetheless admitted that "pillar mining"' is a 

"system" of mining'·- and that the respondent did have a face 

print, drawing #lr 0£ the ventilation plan (Exhibit R-2), 

which did show pillar mining on the left side. 

In response to Inspector Brunatti's testimony that "the 

essence of the violation is that the operator didn't have a 

plan to show how the ventilation would be established while 

retreat mining" (Tr. 45}, respondent contends that this is 

contradicted by his written modification which states that it 

did have a plan for pillar mining in the cited area, and by 

his own testimony that the approved plan print showed gob 

ventilation in the section (Tr. 89). 

Respondent contends that the attem~ts by Inspector 

Brunatti and MSHA 1 s ventilation engineer Zilka to support a 

violation of section 75.316 because the face print submitted 

to abate the order (Exhibit R-1) shows one gob area and the 

face print in the ventilation plan (Exhibit R-2) shows two 

gobs, must be rejected. In support of this conclusion, 

respondent contends that this is not a violation of section 

75 316v and that even if it wereu respondent has never been 

informed in writing that the condition was a violation. 

Respondent points out that neither the citation nor the modification mentions gobs, and that it cannot even be inferred 

from the citation that gobs had anything to do with the violation. Since section 104(a) of the Act requires that the 

nature of the violation be described in writing with particularity, respondent concludes that the ck of any mention of 

2097 
gobs in the citation violates the specificity requirements of 

section 104(a) when the nature of the violation is alleged to 

be a distinction between one gob and two gobs. 

Citing a Commission decision in Jim Walter Resources, 

Inc., 1 FMSHRC 1827 (November 1979), respondent maintains 

that it was not sufficiently apprised of the nature of the 

violation to either litigate the alleged violation or cure 

any alleged deficiencies which might pose a hazard to miners. 

Respondent states that it became aware on the eve of the hearing that the violation involved a distinction between one and 

two gobs. Although Inspector Brunatti testified that he told 

the respondent that Drawing 11 (Exhibit R-2) of the ventilation plan did not apply, respondent asserts that there is no 

indication that he mentioned a distinction between gobs, and 

that no such distinction was ever related to the respondent 

in writing. Further, respondent states that although it 

requested more specific information with regard to the factual 

basis for the violation when it served prehearing interrogatories on the petitioner, the interrogatories were unanswered. 

Respondent conced~s that 'it was sufficiently apprised of 

the nature of the violation in order to abate the citation 

because all that was required to abate was a drawing of 

exactly what the se.ction looked liked on the day in question, 

but that until the eve of the hearing, it was not aware of 

the one gob versus two gob distinction asserted as the basis 

of the violation. Recognizing the fact that abatement 

suggests knowledge of the violation, respondent maintains 

that this is not enough to satisfy the specificity requirements of section 104(a). In support of this conclusion, 

respondent relies on a prior decision by me in Monterey Coal 

Company, 6 FMSHRC 424, 444 (February 1984), vacating citations for lack of specificity as required by section 104(a)u 

and points out that in the instant casev aside from the 

face that the citation did not specifically mention gobsu it 

did not even generally allude to any gobs. 

Respondent 1 s second argument is that Drawing No. 11 of 

the approved ventilation plan (Exhibit R-2) portrayed the 

ventilation system in the cited section in sufficient detail 

to preclude a finding of a violation of section 75.316. 

Respondent takes the position that the inspector 0 s allegation 

in the citation that a violation of section 75.316 occurred 

because the respondent did not have a ventilation plan showing the ventilation system for retreat mining is not true 

because in the modification the inspector admits that the 

respondent had an approved ventilation plan for pillar mining. 

2098 
Respondent also takes the position that the inspector's testimony ~hat a violation of section 75.316 occurred because of 

the lack of an approved face print to conduct that type of 

mining is also not true because the inspector admitted that 

the type of mining being conducted at all relevant times was 

pillar mining. Respondent further argues that the inspector's 

allegation that a violation existed because of the lack of a 

face print showing pillar mining on the left side is also not 

true because he admitted that there was a face print showing 

pillar mining on the left side. 

Respondent concedes that the face print in the approved 

ventilation plan (Exhibit R-2) shows two gobs while the print 

submitted for abatement (Exhibit R-1) shows only one gob. 

However, respondent maintains that the petitioner has not 

shown that its regulations or the respondent's approved ventilation plan requires it to show the number of gobs in a section, and that it has not even shown that the respondent is 

required to show gobs on a face print. With respect to the 

inspector's suggestion that section 75.316-1(13)(b)(3} may 

serve as a basis for a violation of section 75.316, respondent points out that the inspector admitted that no violation 

of section 75.316-1(13)(b)(3) existed. 

The respondent states that initially, the two gobs are 

only a temporary condition. It points out that responaent's 

ventilation engineer Onuscheck testified that the print in 

the approved plan had not shown any stumps extracted c·rr. 

273), but that stu..rnps would be extracted (Tr. 274), and that 

the inspector incorrectly assumed that the stumps would 

remain (Tr. 274-275). Respondent further points out that 

ventilation engineer Ondecko testified that once blocks have 

been extracted, one gob would result and the gobs would be 

identical (Tr" 308-309), and that Inspector Brunatti agreed 

that if the blocks are removed one b~g gob would result (Tr" 

319). In these circumstances, respondent suggests that the 

issue is then whether it was required to have in the approved 

plan a face print showing each stage of mining and the 

removal of each stump as the two gobs evolve into one gob. 

Respondent refers to the testi1nony of Mr. Onuscheck that 

MSHA's District Manager Huntley suggested to him that three 

plans would cover everything that was necessary; one print 

showing rooms being driven, one print showing entries being 

driven, and one print showing stwnping (Tr. 221). Respondent 

concludes that this does not indicate that the District 

Manager required a face print showing the ventilation for 

each step in the mining process, and it points out that 

2099 
Mr. Onuscheck, in conjunction with MSHA personnel, then formulated the packet of typical face prints that are presently 

submitted and approved as part of the ventilation plan (Tr. 

222). There are twenty face prints in mine ventilation plan 

Review No. 28 which was in effect at the time in question, 

far more that the number suggested by MSHA's District Manager 

to cover the system of mining and ventilation employed at the 

respondent's mines. Mr. Ondecko then went over each print 

individually and tailored the packet of prints to conform to 

mining practices at Greenwich No. 1 Mine (Tr. 305), and the 

intent of the District Manager, Mr. Onuscheck, and the MSHA 

personnel with whom Mr. Onuscheck worked, was obviously to 

have general face prints. Respondent points out that MSHA 

ventilation engineer Zilka agreed that the District Off ice 

requested only face prints that were r~presentative of the 

mining going on at the mine (Tr. 147), and that the prints 

submitted in Review No. 28 are a typical face ventilation 

plan for each systam (Tr. 150). 

Respondent maintains that a distinction must be made 

between general prints, as in4ended in this case, and universally applicable prints. Respondent recognizes the fact that 

the parties involved-in the formulation of typical face 

prints are aware that ventilation plans are mine specific, 

Jim Walter Resources, Inc., 9 FMSHRC 903, 909 (May 1987), and 

that section 75.316 requires that the plan is "suitable to 

the conditions and the mining system of the coal mine." 

Respondent points out however, that Mr. Onuscheck and MSHA 

personnel from the District Office in Pittsburgh formulated 

the typical prints to conform to the conditions and mining 

systems at the respondent's mines, and that Mr. Ondecko 

further tailored the prints to conform to the conditions and 

mining practices at the Greenwich No. 1 Mine. Respondent 

concludes that the testimony shows that it did not violate 

that portion of section 750316 which requires it to adopt a 

ventilation plan approved by the District Manager suitable to 

the conditions and the mining systems of the mine in question. 

Respondent quotes a pertinent portion of section 75.316, 

which provides as follows: "The plan shall show the type and 

location of mechanical ventilation equipment installed and 

operated in the mine, such additional or improved equipment 

as the Secretary may require, the quantity and velocity of 

air reaching each working face, and such other information as 

the Secretary may require." 

Respondent maintains that the petitioner has not shown 

or even alleged that a violation existed due to deficiencies 

in the ventilation equipment, and there are no allegations 

2100 
that the quantity and velocity of air reaching each working 

face was unsatisfactory. Respondent concludes that it must 

be presumed that the plan initially contained enough information because it was approved by the District Manager, and the 

information submitted apparently was in compliance with section 75.316-1 and he presumably used the criteria set forth 

in section 75.316-2 as a guideline in the approval process. 

Respondent observes that the pet~tioner is apparently 

alleging that it violated section 75.316 by not providing 

"such other information as the Secretary may require." Conceding the fact that MSHA may require additional information 

or ongoing information, the respondent nonetheless asserts 

that it must be informed as to the nature of the information 

required, and suggests that the petitioner alleges an act of 

"omission" rather than "commission." Respondent concludes 

that in order to be in violation due to omission it must 

first be required to do something and to have a duty to perform. In this case, respondent maintains that the petitioner 

has not shown that it had a duty to submit a new face print 

when the mining sequence showed two gobs rather than one,-and 

that any such requrrement cannot be found in the applicable 

MSHA regulations or in the specific ventilation plan for the 

mine in question. Respondent further assects that the applicable plan does not require it to show the number of gobs. 

In response to the petitioner's suggestion that it should 

have been aware that MSHA's District policy requires that a 

face print must be submitted when two gobs exist rather than 

one (Tr. 124-125, 134, 140-141>, respondent points to the testimony of Mr. Onuscheck that he had requested District policy 

in written form but that he never received it (Tr. 287). 

Further; citing Zeigler Coal Co. v. Kleppe, 536 ~.2d 398 

(DoCo Ciro 1976); and Carbon County Coal Company, 7 FMSHRC 

1367 1371 (September 1985); (cited as 6 FMSHRC 1123 (May 

1984), respondent maintains that since ventilation plans are 

mine specific, any MSHA District general policy regarding the 

requirements of a ventilation plan are improper. Respondent 

quotes from the Zeigler case, where the court stated: 

[T]he plan idea was conceived for a quite 

narrow and specific purpose. It was not to be 

used to impose general requirements of a 

variety well-suited to all or nearly all coal 

mines, but rather to assure that there is a 

comprehensive scheme for realization of the 

statutory goals in the particular instance at 

each mine. Zeigler Coal Co. v. Kleppe, 

536 F.2d 398 (1976). 

2101 
And, from the Carbon County case, where the Commission, 

quoting from the Zeigler court decision, stated: 11 Insofar as 

those plans are limited to conditions and requirements made 

necessary by peculiar circumstances of individual mines, they 

will not infringe on subject matter which could have been 

readily dealt with in mandatory standards of universal 

application." 

Respondent asserts that if MSHA believes that more specific face prints are required as a general policy, then the 

proper procedure is to promulgate a regulation to that effect 

rather than attempt to impose the requirement across the board 

in each mine specific ventilation plan. Furthermore, the 

respondent asserts that its mine plan does not contain a provision requiring it to submit such specific information, but 

in fact contains a provision which expressly negates such a 

requirement, namely, Part "E" (Exhibit R-3), which provides 

as follows: 

(2) TYPICAL FACE PRINTS 

The following face ventilation plans depict 

typical systems of face ventilation used in 

the mine. Variations of the following plans 

may be used provided that the systems of ventilation remain in accordance with Federal 

Regulations. 

Respondent points out that Inspector Brunatti, while 

stating that he was "fairly familiar with the ventilation 

plan" (Tr. 13), admitted that he was not familiar with Exhibit 

R-3 and that it was not a part of Review 28 because he could 

not find it in his copy of the ventilation plan (Tr. 81), and 

that District engineer Zilka testified that if the exhibit was 

not in Inspector Brunattius plan, it was not filed in the 

District Office in Pittsburgh (Tr" 151)" Contr~ry to this 

testimony, respondent states that Mro Onuscheck and Mr. Ondecko 

testified that Exhibit R-3 was in fact a part of Review 28 of 

the approved ventilation plan (Tr. 245, 305-306), and that in 

response to a bench order for an affidavit from the responsible 

person in the MSHA District Office concerning the filing of the 

exhibit, petitionerus counsel confirmed that it was in fact on 

file in the District Office. 

Respondent refutes the inspector 1 s inferences that the 

respondent was not aware of its own ventilation plan, and 

takes issue with his testimony that when mine management 

2102 
attempted to show him a print that showed the mining and ventilation system used on the cited section it was "grabbing at 

straws for something that they thought would cover 11 the situation. Conceding that this may be true, respondent asserts 

that the mine manager and safety director cannot be expected 

to be aware of all the technicalities of the face prints in 

the ventilation plan. If they were, there would be no need 

for ventilation oersonnel or for that matter any other management people. Th~ mine manager could do everything himself. 

Respondent suggests that the only plausible way to operate 

such a complicated operation is to delegate some authority to 

responsible people, and that if Mr. Ondecko was available 

when the inspector asked for the print, Mr. Ondecko would 

have shown the inspector, as did those present, Drawing 

Nao 11 {Exhibit R-2), without the alleged hesitancy. 

In response to the inspector's testimony that 

Mr. Onuscheck had submitted a ventilation plan for review 

without mine level management's knowledge (Tr. 23, 27), 

respondent states that this is pure speculation and totally 

inaccurate, and that mine ventilation engineer Ondecko testified that he and ML. Onuscheck formulated the packet of face 

prints, and that Mr. Ondecko went over each print individually 

to insure that it pertained to the mine in question (Tr. 305). 

Respondent maintains that on the facts of this case, the 

inspector was attempting to enforce a ventilation plan that 

he knew very little about, that his copy of the plan, for 

whatever reason, did not contain Exhibit R-3, and that he was 

unaware of the procedure followed by the respondent and 

MSHA's District Office used to formulate the plan, which was 

to reduce the nwnber of face prints that possibly could have 

been submitted from approximately 500 prints to the 20 prints 

that were submitted (Tr" 264)" Respondent points out that 

the inspector admitted that mine management had some face 

prints that closely resembled the mining activity in the 

cited sectionp and that the mine is permitted to vary from 

the specific print in the ventilation plan (Tr. 342, 345). 

Mro Onuscheck testified that the inspector wanted a plan that 

showed exactly what was going on in the mine (Tr. 261), but 

respondent takes the position that it was not the intent of 

MSHA or the respondentf the parties involved in the approval 

and adoption of the ventilation plan, that exact prints would 

be required" Respondent points out that Mr" Onuscheck testified that in the year and a half the typical prints were in 

use, respondent had mined approximately fifteen million tons 

of coal and had no problems with the face prints, and no 

other MSHA inspectors had ever questioned the manner in which 

2103 
the respondent was mining (Tr. 241, 294). Respondent concludes that it was not the intent of the parties that detailed 

face prints were required as part bf the ventilation plan. 

Respondent maintains that Part "E" of plan Review No. 28 

(exhibit R-3), as part if the approved ventilation plan, 

allows it leeway to vary from the drawings on the specific 

prints submitted as part of the plan, and that any such leeway 

is limited only by MSHA's ventilation regulations. Respondent 

asserts that the petitioner has not shown that there are other 

provisions in the mine ventilation plan which limits the 

respondent's right to vary from the print submitted, and it 

points out that Mr. Onuscheck testified that MSHA has never 

told the respondent that it was varying too much from the 

plans prior to the alleged violation in question (Tr. 286). 

Respondent further maintains that the petitioner has not shown 

that the variance has violated any other MSHA regulatory provisions, and has not shown that the respondent is required to 

submit more specific prints than the prints that were submitted in this case. 

In response to the inspector's allegation that gob air 

was going into the section return (Tr. 18), respondent states 

that the petitioner has not shown that this constitutes a 

violation of the ventilation plan. To the contrary, respondent asserts that the credible evidence suggests that the gob 

air was moving in the proper direction (Tr. 191-192), Exhibit 

G-1), and observes that if it was not, the inspector would 

have included that finding in the citation or modification. 

In fact, this allegation is not mentioned in either the 

notice or the modification. Respondent takes the position 

that if the inspector thought this to be a violation, he 

should have properly included it in the citation. Respondent 

maintains that it serves no purpose to put such a finding in 

the inspector's notes where conceivably, if the citation was 

not challenged, no one would ever see the finding and the 

respondent would not have an opportunity to contradict the 

allegationu or more importantly, could not cure any alleged 

existing hazard. 

Respondent concludes that the inspector's allegation that 

the gob air was improperly directed is nothing more than a 

balled assertion by the inspector, and that the respondent's 

mine safety inspector Desalvo, who accompanied the inspector 

on the day in question testified that while the inspector took 

a smoke test, it showed that the air was not going back to 

where people were working (Tr. 191-192). Although the inspector had an opportunity to rebut Mr. DeSalvo's testimony, he 

simply testified that he normally does a smoke test, but he 

2104 
could not recall if he did on the day in question (Tr. 370). 

Respondent<concludes that a violation cannot stand on unsupported allegations that air was moving improperlyf when the 

actions of the inspector and the testimony 0£ an eyewitness 

suggest otherwise. 

Respondent's final argument is the assertion that asswning a violation existed, it was not significant and substantial within the guidelines establishe·d by the Commission in 

Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 

(April 1981), and Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 

19 84). 

Respondent points out that in the instant case the 

inspector alleged that "if the section"isn't properly ventilated or the pressure isn kept on the gobu you could have 

accumulations of methane in the gob area or, which could in 

essence come back into the working area" (Tr. 14 1 emphasis 

added). Respondent does not disagree with this statement, 

but takes the position that the petitioner has not shown that 

the section was improperly ventilated. Respondent mainta~ns 

that the facts show that the entire testimony of inspector 

Brunatti and MSHA ventilation engineer Zilka, does not show 

that the ventilation system was improper, and neither witness 

even suggested that the section should have been ventilated 

differently than it was ventilated. The only testimony 

regarding the propriety of the ventilation system in use was 

that of Mr. Desalvo who testified that he told Mr. Brunatti 

that he felt the way Greenwich was ventilating the gob area 

was the best possible way to ventilate it (Tr. 193), and that 

Inspector Brunatti agreed with this statement (Tr. 193). The 

inspector testified that he took methane readings at various 

locations, including the return, and found no problems or 

excessive levels of methane (Tro 57-58)0 

Respondent suggests that it was not reasonably likely 

that an injury of a reasonably serious nature would result 

from a methane ignition when the section was ventilated in 

the best possible way and the particular facts show that 

there is no accumulation of methane. Even assuming that air 

was flowing improperly from the gob, the significant and Substantial finding is not supported because it would be necessary to assume that methane would accumulate to combustible 

concentrations and assume that these concentrations would go 

undetectedo It is also necessary to assume that the combustible concentrations would reach ignition sources. If a cable 

or electrical component is the asserted source of ignitionv 

it is necessary to assun1e that a violation exists regarding 

the cable or electrical component which would cause a spark 

2105 
_2cted by the 

inspector. 

Respondent further argues that if the source of ignition 

is claimed to be the mining machine~ it is necessary to 

assume that the methane monitor would fail to warn the 

machine operator, or the machine operator would not heed the 

warning, and assume that the methane monitor would fail to 

deenergize the equipment at the required time and assume that 

something produced a spark. 

Respondent concludes that while the foregoing scenarios 

are possible, the likelihood of that chain of events occurring 

is so remote as to preclude any finding that there was a "reasonable likelihood" of the occurrence. · Respondent believes 

that, even assuming gob air was moving improperly, and a possibility of an injury existed, that possibility would be so 

remote as to be unlikely, rather than reasonably likely to 

occur. Respondent points out that the inspector testified 

that if gob air was not going back into the section, the 

system of ventilation used was. adequate for the system of'·mining employed, and tha:t·the hazard posed by simply not having a 

print in the plan was minimal, if any hazard at all (Tr. 46, 

48). 

Findings and Conclusions 

Alleged Lack of Specificity of the Citation and Modification 

Thereto 

Respondent raised the specificity issue for the first 

time when it filed its posthearing brief. While it may be 

true that MSHA did not respond to the respondent's prehearing 

interrogatories, filed on February 4u 1987~ respondent had 

more than ample time prior to the hearing to file an objection or seek an order requiring MSHA to respond, but it did 

not do soo Respondent also failed to avail itself of a more 

than ample time to depose the inspector in advance of the 

hearing. 

While i~ is true that the citation and modification do 

not specifically refer to gobs, respondentus counsel conceded 

that he was made aware of the "gob theory" of MSHA's case on 

the eve of the hearing. If counsel believed that he was 

unduly prejudiced in the preparation of his case, he could 

have requested a continuance of the hearing, but he did not 

do so. Further, the record here establishes that the citation was terminated and the violation was abated after 

Mr. Onuscheck hand delivered to MSHA a ventilation face print 

2106 
covering the prevailing conditions at the time the citation 

was issued. This was done 2 days after the issuance of the 

citation. Mr. Onuscheck confirmed that he and Mr. Brunatti 

discussed the reasons for the issuance of the citation, and 

Mr. Desalvo confirmed that before issuing the citation, 

Mr. Brunatti discussed the matter with the mine and division 

managers, and that they collectively reviewed the ventilation 

plans and prints which were available at the mine. Given all 

of these circumstances, I find it hard to believe that the 

respondent was unaware of the theory of MSHA's case. 

Although the citation and modification issued by 

Mr. Brunatti appear to be contradictory, the modification 

makes it clear that while the respondent had an approved 

ventilation plan covering any retreat-pillar mining prior to 

the date of the inspection and issuance of the citation, 

Mr. Brunatti could find no evidence that any plan provision 

on file covering the particular conditions which prevailed on 

the day of his inspection. While it is true that Mr. Brunatti 

did not spell out the gob conditions that concerned him, he 

did state that "the system.of mining changed thus necessi~ 

tating a need for.a new ventilation plan." His notes of 

August 4, 1986, reflect that Mr. Desalvo admitted that the 

available face prints did not match the prevailing face ventilation system, and his notes of August 8, 1986, reflect that 

Mr. Onuscheck and mine management were aware of the need for 

new face prints. Mr. Brunatti's notes also reflect that the 

respondent had plans to pillar the return side of the cited 

area, that he observed the return side being pillared, and 

that mine superintendent Lowmaster acknowledged that he was 

not aware of any ventilation plan to cover that situation, as 

well as the lack of face prints to cover future mining, and 

that he would discuss the matter with Mr. Onuscheck. 

Mr. Brunatti testified in detail with respect to the 

'"changed mining system'1 referred to in his modified citation. 

In my view, while the use of the words "mining system1 " without further elaboration describing precisely what Mr. Brunatti 

had in mind, was a poor choice of language, Mr. Brunatti's 

testimony clarified the matter, and Mr. Brunatti was subjected 

to cross-examination by the respondent. Coupled with the 

detailed posthearing br f filed by the respondent, and the 

testimony adduced in this case, I find no basis for concluding 

that the respondent was oblivious to the theory of MSHA's 

case 1 or that it was prejudiced by Mr. Brunatti's failure to 

spell it all out on the face of the citation. ~ccordingly, 

respondent 1 s assertions to the contrary ARE REJECTED, and its 

request that the citation, as modified, be vacated on the 

ground of lack of specificity IS DENIED. 

2107 
Fact of Violation 

The respondent is charged with an alleged violation of 

the ventilation system and methane and dust-control plan 

requirements of mandatory safety standard 30 C.F.R. § 75.316, 

which provides as follows: 

A ventilation system and methane and dust 

control plan and revisions thereof suitable to 

the conditions and the mining system of the 

coal mine and approved by the Secretary shall 

be adopted by the operator and set out in 

printed form on or before June 28, 1970. The 

plan shall show the type and location of 

mechanical ventilation equipment installed and 

operated in the mine, such additional or 

improved equipment as the Secretary may 

require, the quantity and velocity of air 

reaching each working face, and such other 

information as the Secretary may require. 

Such plan shall be reviewed by the operator 

and the Secretary, at least every 6 months. 

It seems clear that the intent and purpose of section 

75.316, is to require a mine operator to adopt an MSHA 

approved ventilation plan which is tailored to and "suitable 

to the conditions and the mining system19 of the particular 

mine where it is to apply. It is also clear that once 

approved and adopted, the ventilation plan and any revisions 

thereof, are enforceable as though they are mandatory safety 

standards. Zeigler Coal Co. v. Kleppe, 536 F.2d 398 

(D.C. Cir. 1976); Carbon County Coal Company, 7 FMSHRC 1367 

(September 1985)~ Jim Walter Resources, Inc., 9 FMSHRC 903 

(May 1987)0 

Respondentis defense in this case is based on its assertion that ventilation face print R-2 is in fact the applicable ventilation plan face print which applied to the existing 

mining conditions at the time Mr. Brunatti inspected the D-5 

section and issued his citation" Respondent maintains that 

even if the prevailing mining and ventil~tion conditions on 

t were at variance from what is shown on the printf it 

is nonetheless permitted to vary from the print, on its own 

volition and that it can change or vary the ventilation 

system without MSHA approval, or without submitting another 

p~int. Respondent is of the view that since MSHA has approved 

the use 0£ "typical" printsv R-2 being one of them, such 

2108 
prints need not reflect the actual mining conditions or ventilation system in use at any particular time. As examples, 

respondent maintains that assuming an inspector found some 

air leakage due to an inadequately ventilated gob, or found 

that the gobs were not separated by stoppings as reflected on 

any "typical" print, it may be cited for a violation of any 

applicable mandatory ventilation standard, but it may not be 

cited for a violation of section 75.316 for failing to have a 

specific ventilation plan face print to cover the prevailing 

mining and ventilation conditions. 

The parties are in agreement that the terms "pillar mining11 and "retreat mining" are synonymous. The respondent 

takes the position that the inspector's allegation in the 

citation that no plan provision existed showing the ventilation system for retreat mining in the cited area is contradicted by the modification to the citation where the inspector 

states that the respondent did have an approved ventilation 

plan for pillar mining. While it is true that the two statements, on their face, appear contradictory, the inspector's 

statements must be taken in context. The inspector qualified 

the statement which appears' on the modification, and he 

clearly indicated tiiat while the respondent may have had 

approved ventilation plans covering pillar and retreat mining, 

which may have taken place prior to his inspection, he could 

find no evidence of the existence of any applicable plans for 

what was taking place at the time of his inspection. Thus, 

the focus of the alleged violative conditions is properly on 

the inspector's belief that, notwithstanding the pillar or 

retreat mining ventilation procedures being followed in those 

past instances when other inspectors may have inspected the 

mine, the system of mining being followed on the day of his 

inspection was not the same, and that since conditions had 

changed, which ther affected, or may reasonably be expected 

to affectff the ventilation in the section, an approved plan 

provision to cover the changed mining procedures and condi~ 

tions was necessaryo 

The term "mining" is defined by the Dictionary of Mining, 

Mineral, and Related Terms~ published by the Bureau of Minesv 

UoS. Department of the Interior, 1968 Edition, in part as 

"[T]he excavation made in undermining a coalface." The term 

"system" is defined Webster~s New Collegiate Dictionary, in 

part, as "an organized or established procedure or pattern." 

rhe term is also defined by the mining dictionary, in part as follows~ 

d. Regular method or order, a 

plan. * * * 

2109 
g. The term system or general system of 

work means simply that the work, as it is 

commenced * * * is such that, if continued, 

will lead to a * * developme·nt of the veins 

or ore bodies that are supposed to be in the 

claim, or, if these are known, that the work 

will facilitate the extraction of the ores and 

mineral. 

Mr. Brunatti confirmed that the "system" of mining being 

followed at the time of his inspection was retreat mining. 

He explained that after reaching the limits of the mined 

areas on the right return side of the entry, the mining cycle 

proceeded to the left intake side of the entry and pillars 

were being extracted, thereby creating one gob across the 

entire intake and return sides of the entry. Mr. Brunatti 

believed that with the completion of the pillaring work on 

the right return side of the entry, the change of direction 

towards the left intake side of the entry where coal was 

being extracted constituted a change in the mining "syste~." 

It seems rather apparent to me that while Mr. Brunatti characterized the general "system" of mining taking place on the 

day of his inspection~s retreat or pillar mining, he viewed 

the completed work which had taken place on the right return 

side of the entry, as well as the working being performed on 

the left intake side of the entry, as two distinct "systems 

of mining" within the overall "system" of retreat or pillar 

mining. 

Inspector Brunatti's unrebutted testimony establishes 

that when he conducted his inspection, retreat mining was in 

progress in the D-5 working section. The return side of the 

entry, located on the right side, had already been mined, and 

rooms were being driven to the left off the intake side, on 

the ft side of the entry. One row of pillars had already 

been extracted~ and work was in progress extracting a second 

row of pillars at the time the inspector arrived on the scene. 

The inspector observed that the area was in full retreat, and 

that the mined-out return side to the right of the entry, 

which constituted a gob area, was not separated by stoppings 

from the area being extracted on the left intake side of the 

entry. The inspector described both sides of the entry as a 

"solid gobq 11 and he did not believe that the section was 

being ventilated properly because he detected air leaking 

from the gob into the return side of the entry. 

I conclude and find that the "system of mining" alluded 

to by Mr. Brunatti was the pillar retreat extraction work 

2110 
taking place on the left intake side of the entry. I further 

conclude and find that the work being performed ~t that time 

consti·tuted a change in the mining system in that the work on 

the right side of the entry had been previously completed 

after the area had been driven to its planned limits, and at 

the time Mr. Brunatti arrived on the scene, a row of pillars 

had been extracted on the left intake side, and work was in 

progress extracting the second row of. pillars. 

Mr. Brunatti confirmed that the respondent had an 

approved ventilation plan to cover the driving and pillaring 

of the rooms to the right return side of the entry. The 

essence of the alleged violation in this case lies in 

Mr. Brunatti's belief that the respondent did not have an 

approved ventilation plan or face print to cover the pillar 

work being conducted on the left intake side of the entry. 

In support of this belief, Mr. Brunatti pointed out that during his discussions with mine management officials, including 

a review of certain ventilation plans and face prints on file 

at the mineu the respondent could not produce any plan or 

print covering the procedures for ventilating the gob area 

which was created by the extraction of pillars on the left 

side of the entry.- Mr. Brunatti also relied on what he 

believed to be ventilation engineer Onuscheck's admissions 

that the previously submitted mine ventilation plans did not 

correspond to the type of mining taking place in the D-5 

section on the day of the day of the inspection, and 

Mr. Onuscheck's assurance that such a plan would be submitted 

to correspond with the mining which was taking place in order 

to abate the citation. Mr. Brunatti further relied on certain statements made to him by mine superintendent Lowmaster's 

and division superintendent Cocora's admissions that they had 

no ventilation plan to cover the D-5 section. 

Respondent 1 s safety director Desalvo admitted that ~t 

the time Inspector Brunatti reviewed with management the 20 

to 25 ventilation face prints which were part of the approved 

mine ventilation plan, many of the prints did not match the 

five operating mine sections. Mr. DeSalvo also admitted that 

he had never seen the approved ventilation plan prior to the 

issuance of the citation, ~hat face print R-2 is less specific 

from the prints submitted to MSHA. in the pastu and that the 

print does not specify on its face that it is applicable to 

the D-5 sectiono He also corroborated that superintendent 

Lowmaster said something to the effect that none of the prints 

reviewed by Mro Brunatti matched the mining conditions which 

prevailed at the time the citation was issued. 

2111 
Mr. DeSalvo's testimony regarding face prints R-1 and 

R-2 is contradictory. On the one hand, he testified that 

print R-lQ which was filed to abate the violation, depicted 

the mining and ventilation system in place at the time the 

citation was issued. On the other hand, he testified that 

print R-2 depicted what was taking place at the tiine the 

citation was issued, and that it "applied the best," and was 

"close enough,n if not identical to the mining and ventilation system depicted in R-1. Further·, Mr. Desalvo conceded 

that he and Mr. Lowmaster were not ventilation specialists, 

and he confirmed that he was not involved in the formulation 

and submission of ventilation plans or face prints. 

I find little merit in the respondent's assertion that 

safety inspector Desalvo and mine manager Lowmaster cannot be 

expected to be aware 0£ "all the technicalities" of ventilation face prints. Aside from any "technicalities," one would 

expect the mine safety inspector and mine manager to at least 

have some basic knowledge as to the contents of ventilation 

plans and prints covering the prevailing mine conditions, and 

would at least know which plan_ was applicable at any given 

time. 

Respondent 1 s ventilation engineer Ondecko, who was not 

present when the citation was issued, believed that face 

print R-2 was the approved part of the plan in effect when 

the citation was issued. However, he conceded that there 

were differences in face prints R-1 and R-2, and he attributed 

these differences to the extent of the mining which had taken 

place at the time of the inspection. Since Mr. Ondecko did 

not view the prevailing conditions at the time the citations 

were issue<l, he could not rebut Inspector Brunatti's observations, as confirmed by Mr. DeSalvo, that the coal pillars on 

the left side of the entry were being mined in a manner which 

created one gob area which was not separated by stopp s from the pr ous ned out right side gob area. 

Mr. Ondecko contended that all that is required of the 

respondent is the submission of general ventilation plans and 

face prints showing the general mine ventilation patternu and 

that specific ventilation face prints covering any particular 

ning method er system which is ng llowed at any given 

time are not required. Although he agreed that the mine ventilation plan requires that the ventilation r flow over the 

gob areas be maintained in such a manner as to insure that 

such gob r is coursed away from the active working section, 

he conceded that at times all of the gob air is not coursed 

away from the working section. He also conceded that it was 

not uncommon for the air used to ventilate a gob area to 

2112 
course out of a crosscut in the opposite direction from that 

shown on a face print. 

Respondent's ventilation engineer Onuscheck initially 

contended that face print R-2 represented the prevailing 

pillar mining conditions and ventilation plan at the time the 

citation was issued. When asked to explain why that particular face print was not submitted to abate the violation, 

rather that face print R-1, Mr. Onuscheck suggested that 

since Inspector Brunatti disagreed that print R-2 covered the 

conditions which he observed he would probably have issued an 

order for non-compliance if he submitted R-2 to cover the 

abatement. Mr. Onuscheck further suggested that he submitted 

print R-1 to expedite the abatement of the violation. 

Notwithstanding his contention that face print R-2 

depicted the prevailing conditions at the time the citation 

issued, and that it was the approved plan print covering 

those conditions, Mr. Onuscheck conceded that the print was 

only "close to" what was required, rather than the "exact 

plan" as depicted in R-1, and that the respondent was following a "variation" ~f print R-2. Further, Mr. Onuscheck's 

claim that MSHA had not previously questioned the use of 

"typical" face prints such as R-2 in the past, is contradicted 

by safety inspector DeSalvo's testimony that the respondent 

had in fact been previously cited for ventilation plan violations under circumstances similar to those in this case. 

Respondent's counsel conceded that there are differences 

in face prints R-1 and R-2, but he considered them to be 

"insignificant." He also conceded that there were "small 

variations" between R-2 and the R-1 plan submitted to abate 

the violation (Tr. 77-78~ 324). As an example of what he 

considered to be a ~slight difference" in the two prints, 

counsel cited the ventilation directional arrows as shown on 

print R-1, which reflects a different directional flow of the 

a used to ventilate the gob than that shown on print R-2 

<Tr. 92). 

MSHA 0 s ventilation specialist Zilka testified that there 

are significant differences in face prints R-1 and R-2, particularly with respect to how the two gobs are being ventilated. He confirmed that the driving of entries, and the 

pulling of pillars on the right and t sides entails changes 

in ventilation, and the face ventilation system used to ventilate the resulting gob areas would be different. On the facts 

of this case, Mr.. Zilka was of the view that the respondent 

could not use face print R-2 as a "typical" face print for the 

conditions observed by Inspector Brunatti, as depicted in 

2113 
"typical" face print R-1, because the two prints contain different ventilation systems, and print R-2 shows a different 

system of ventilation with two gob areas separated by a stopping going all the way to the face. Mr. Zilka concluded that 

under these circumstances, the respondent would be required by 

section 75.316, to submit a face print other than R-2 to cover 

the changed mining and ventilation conditions, and that its 

failure to do so constitutes a violation of that section. 

I conclude and find that the preponderance of the credible evidence and testimony adduced in this case establishes 

that face print R-2, which the respondent maintains is applicable in this case as a "typical" print covering the conditions cited by Inspector Brunatti, clearly depicts two 

separate gob areas separated by stoppings, and I reject the 

respondent's assertion that it covers the cited conditions. 

I further conclude and find that the petitioner has established that face print R-1 accurately depicts the existing 

conditions as observed by Inspector Brunatti at the time he 

issued his citation, and it seems clear to me that his unrebutted testimony, and that of Mr. Zilka, which I find credible, clearly establishes that at the time of the inspection, 

the cited area was in- the process of being pillared on the 

left side of the entry, and that one unseparated gob area was 

created with no stoppings isolating the right return side of 

the entry from the left intake side. I further conclude that 

the respondent had no approved face print, "typical" or otherwise, to cover the prevailing changed mining conditions and 

system in place at the time of the inspection. 

Section 75.316 requires a mine operator to adopt a ventilation plan, including any revisions, suitable to the prevailing mine conditions and mining system, and to submit such plan 

to MSHA for approval. Furtheru the ventilation criteria found 

in section 75.316-l(b)(4)f requires an operator to include in 

its proposed plan face ventilation systems and drawings depicting the use and application of the system under all anticipated mining conditions. On the facts of this case, the 

evidence establishes that the respondent has done neither. 

The "typical" face plan, R-2, which respondent maintains 

applied to its system of mining, did not conform to the actual 

mining which was taking place, and there is no credible evidence that the respondent had ever submitted an applicable 

specific face print until after the citation was issued. 

The record in this case establishes that at the time the 

respondent 1 s ventilation plan "binder" system was initiated, 

the respondent was not managing the subject mine, and the D-5 

section was not being mined. A letter dated May 23, 1983, 

2114 
from MSHA's District Manager Donald W. Huntley, (exhibit G-5), 

acknowledges the receipt of the binder containing multiple 

face ventilation plans which were applicable to the Keystone 

and Helvetia Coal Mining Companies. The letter also advised 

the respondent that it should list all face ventilation plans 

which were to be used at those mines for each 6-month ventilation review period, and that any proposed plans not in the 

binder or which have previously been ~pproved by MSHA for use 

during any current plan review, should be submitted for 

approval prior to being implemented. In its May 10, 1983, 

letter submitting the binder, the respondent characterized the 

face prints which were included in the binder as illustrative 

ventilation systems to be utilized at the Keystone and 

Helvetia Mines which were being managed by the respondent at 

that time. The letter advised MSHA th~t: "In the event that 

a system of ventilation is to be used that is not contained in 

the folder, we will submit it as an addendum. After it is 

approved the new plan will be added to the folder." (Emphasis 

added). 

Mr. Onuscheck confirmed that even with the submission of 

the binder, with its face prints, there were times when the 

respondent had no plan incorporated in the binder to cover 

the type of mining that it may have been engaged in, and in 

those instances, it was required to submit a face print to 

cover that system of mining not previously covered. 

Mr. Onuscheck confirmed that at the time the respondent 

took over the management of the subject mine, the type of mining conducted was similar to that which had taken place at the 

others mines managed by the respondent. Although the D-5 section was not being mined at that time, additional "typical" 

face prints were tailored to the anticipated mining in the 

subject mine, and a group of 20 prints, including face print 

R-2 were submitted to MSHA as part of Ventilation Plan 

Review 28u (Exhibit R-3>v and they were approved by MSHA on 

June 4, 1986c Contrary to Mr" Onuscheck 1 s belief, I find no 

credible evidence that establishes that face print R-1 was 

included among the face print "packet" submitted to MSHA, and 

it seems clear to me from the testimony and evidence in this 

case that the face print was submitted by Mr. Onuscheck after 

the citation was issued in order to abate the violation. The 

record confirms that the face print was ap~roved by MSHA and 

incorporated as part of plan 28 on August 7, 1986, 3 days 

after the citation was issued (Exhibit G-4). 

After careful consideration of the arguments advanced by 

the parties with respect to the "typical face print" issue 

raised in this case, including the respondent's attempts to 

2115 
use this a defense to the violation, I reject the respondent's 

arguments and conclude and find that MSHA has a more compelling argument, and that its position in response to the respondent's asserted defense of the violation is correct. While it 

may be true that the respondent's Plan Review 28, exhibit R-3, 

which is included as part of its omnibus ventilation plans on 

file with MSHA, contains a se"1i.:.cnce seemingly authorizing 

variations from the "typical" face veptilation prints which 

were submitted and approved by MSHA, such authorization is 

qualified and conditional. This condition specifically mandates that any variations from the "typical" face prints, 

which I construe to mean "illustrative" or "representative 

examples," must insure that any future prints depicting mine 

systems of ventilation submitted by the respondent must comply 

with Federal Regulations. On the facts of this case, it seems 

clear to me that the lack of any applicable ventilation face 

print provision or plan to cover the changed mining conditions 

as found by Inspector Brunatti during his inspection was not 

in compliance with the clear language found in section 75.316, 

requiring the respondent to adopt a plan provision consistent 

with, and conforming to, the prevailing mining conditions~ 

at the time of the inspectiofr. 

I agree with MSHA's position that the acceptance of the 

respondent's "typical" face print argument would allow the 

respondent to deviate from its approved ventilation plan and 

face prints with no consideration given to the pattern of 

mining in existence at any given time, any changes in the 

ventilation system which necessarily are affected by such 

changes, the absence of ventilation stoppings clearly indicated in previously submitted face prints, the creation of 

additional gob areas not shown on previously submitted 

prints, and any clearly defined areas of anticipated mining 

and ventilation to insure tnat all 11entilation requirements 

are metv and to guard against possible air leakage from the 

anticipated gob areas into the active workings of the mine. 

The evidence in this case establishes that at the time the 

respondent submitted its omnibus ventilation plans covering 

other mines which it managed, the same plans which it apparently incorporated by reference as covering the subject mine, 

it cecognized its obligation to submit additional plans and 

face prints not previously filed for MSHA's approvalv and 

that it was required to submit ventilation face prints covering any system of minin:r not previously covered. 

In view of the foregoingv I conclude and find that MSHA 

has established a violation of section 75.316, by a preponderance of the credible evidence and testimony adduced in this 

case. Accordingly, the violation IS AFFIRMED. 

2116 
Significant and Substantial Violation 

A "significant and subst~ntial" violation is described 

in section 104(d)(lJ of the Mine Act as a violation "of such 

nature as could significantly and substantially contribute to 

the cause and effect of a coal or other mine safety or health 

hazard." 30 C.F.R. § 814(d)(l). A violation is properly 

designated significant and substantia"I "if, based upon the 

particular facts surrounding the violation there exists a 

reasonable likelihood that the hazard contributed to will 

result in an injury or illness of a reasonably serious 

nature. 11 Cement Division, National Gypsum Co., 3 FMSHRC 822, 

825 (April 1981). 

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

Commission explained its interpretation of the term "significant and substantial" as follows: 

In order to establish that a violation of 

a mandatory safety standard is significant and 

substantial under National Gypsum the Secretary 

of Labor must prove: ·cu the underlying violation of a mandatory safety standard; (2) a discrete safety hazard--that is, a measure of 

danger to safety-contributed to by the violation; (3) a reasonable likelihood that the 

hazard contributed to will result in an injury; 

and (4) a reasonable likelihood that the injury 

in question will be of a reasonably serious 

nature. 

In United States Steel Mining Company, Inc., 7 FMSHRC 

1125, 1129, the Commission stated further as follows: 

We have explained further tnat the third 

element of the Mathies formula ~requires tnat 

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.u 6 FMSHRC 1834, 1836 (August 

1984), We have emphasized that, in accordance 

with the language of section 104(d)(l)v it is 

the contribution of a violation to the causa 

and effect of a hazard that must be significant 

and substantial. U.S. Steel Mining Company, 

Inc.v 6 FMSHRC 1866, 1868 (August 1984); U.S. 

St.eel Mining Company, Inc., 6 FMSHRC 1573, 

1574-75 (July 1984). 

2117 
While it is true that Inspector Brunatti could not 

recall taking any smoke tests, and did not mention any air 

leakage in the citation and order, his testimony, which I 

find credible, and his contemporary notes of August 4, 1986, 

exhibit G-2, reflect that gob air was coming into the section. 

Mr. Brunatti testified that his belief that air was leaking 

off the gob was based on "sight and feel," and that he could 

"see it (air) on the canvas, the way ~he canvas, the pressure 

on the canvas, and you could fee the air" coming from the 

pillared gob area back into the section (Tr. 59, 370). 

Respondent's reliance on Inspector Brunatti's testimony 

that the lack of a face print posed only a minimal, if any 

hazard at all, is rejected. That testimony came in response 

to a hypothetical question which assumed no air leakage and a 

proper ventilation system in place suitable to the prevailing 

mining conditions. Even if there were no air leakage, I 

agree with MSHA's position that the lack of a ventilation 

face print presented a discrete safety hazard to miners. The 

purpose of a ventilation plan and ventilation prints is to 

lay out the ventilation system for ongoing and future mining, 

and the means for insuring that adequate ventilation is available to carry away methane and other noxious gases from the 

active working areas of the mine. Such plans usually include 

the required quantities of air and pressures, and the ventilation system and equipment used to control and distribute the 

air throughout the areas where miners may be working. In the 

absence of any definitive ventilation plans or prints corresponding with the actual mining which may be taking place, 

and given the fact that changes in the mining system and prevailing conditions occur as the mining cycle advances or 

retreats, there is a real potential that air leakage will go 

undetected, that necessary corrections or adjustments to ventilation curtainsv stoppingsu or other means of maintaining 

and controlling the ventilation may not be taken into accountv 

and that air pressures and air quancities will not be monitored to insure continued and uninnibited adequate ventilation 

in the working section. Should this occur, I believe it is 

reasonably likely that miners will be exposed to potentially 

dangerous and hazardous ventilation conditions of a reasonably 

serious nature likely to result in serious injuries" 

On the facts of this case, the absence of a ventilation 

face print is particularly critical in terms of maintaining a 

continuous safe working environment for the miners. In this 

caseu the respondent's own safety director admitted that at 

times all of the gob air is not coursed away from the working 

2118 
section, that it was not uncommon for the air used to ventilate a gob area to course out of a crosscut in the opposite 

direction from that shown in the ventilation plan, and that 

he, and possibly the mine manager, were unaware of the applicable ventilation plan or face prints covering the mining 

conditions in place at the time of the inspection. Given all 

of the aforementioned circumstances, I conclude and find that 

the inspector's special "significant fond substantial" finding 

was justified, and IT IS AFFIRMED. 

The Unwarrantable Failure Issue 

The governing definition of unwarrantable failure is 

still to be found in Zeigler Coal Company, 7 IBMA 280 (1977) 

decided under the 1969 Act which held in pertinent part as 

follows at 295-96: 

In light of the foregoing, we hold that an 

inspector should find that a violation of any 

mandatory standard was caused by an unwarrantable failure to comply with such standard if he 

determines that the operator involved has 

failed to abate the conditions or practices 

constituting such violation, conditions or practices the operator knew or should have known 

existed or which it failed to abate because of 

a lack of due diligence, or because of indifference or lack of reasonable care. 

Zeigler was specifically approved during consideration of 

the 1977 Act. S. Rep. 95-181, 95th Cong., l3t Sess., at 31-32 

(1977>, reprinted in Senate Subcommittee on Labor, Committee 

on Human Resources, 95th Cong., 2nd Sess., Legislative History 

of the Federal Mine Safety and Health Act of 1977, at 619-620 

(1978)0 

In United States Steel Corporation, 6 FMSHRC 1423, 1437 

(J'une 1984), the Commission concurred in the Zeigler definition of unwarrantable failure and held that an unwarrantable 

failure to comply may be proved by a showing that the violave condition or practice was not corrected or remediedu 

pcior to the issuance of a citation, because of indifference, 

willful intent, or a serious lack of reasonable care. 

During the course of the hearing in this case, I ruled 

from the bench that the question as to whether or not the 

2119 
alleged violation was the result of the respondent's unwarranted failure to comply with the cited mandatory safety standard was not an issue in this civil penalty proceeding, Black 

Diamond Coal Co., 7 FMSHRC 1117, 1122 (August 1985). However, 

in a recently issued decfsion, MSHA v. Quinland Coals, Inc., 

9 FMSHRC 1614, September 30, 198'7;-the Commission held that 

the merits of any special unwarrantable failure allegation may 

be addressed in a civil penalty proceeding, and it stated as 

follows at 9 FMSHRC 1621: .. 

Because under the Mine Act a special find~ 

ing is a critical consideration in evaluating 

the nature of the violation alleged and bears 

upon the appropriate penalty to be assessed, we 

conclude that the Act does not pr~clude the 

review of special findings in a civil penalty 

proceeding and that the purpose of the Act and 

the interests of those subject to it are best 

served by permitting review. 

Although the unwarrantable failure issue was not dis~ 

cussed in the initiaLposthearing briefs filed by the parties, 

they were afforded an opportunity to further supplement their 

arguments in light of the Quinland Coals, Inc. decision, and I 

have considered these arguments in the course of my decision. 

On the facts of the instant case, and with respect to the 

issue of negligence, MSHA takes the position that the respondent exhibited a "high" degree of negligence in that it knew 

that it was required to submit a new ventilation face print to 

cover the mining system and conditions which prevailed at the 

time of the issuance of the citation, and that it further knew 

that the then available prints did not cover that situation. 

MSHA 0 s definition of "high negligence," as reflected in its 

Part 100 civil penalty assessment criteria, 30 C.F.R. 

§ 10 0. 3 ( d), is as fallows~ 6'High Negligence. (The operator 

knew or should have known of the violative condition or practice, and there are no mitigating circumstances)." 

In further explanation of the term "mitigating circumstances," section 100.3(d) states "Mitigating circumstances 

may include, but are not limited to, actions which an operator 

has taken to prevent, correct, or limit exposure to mine 

hazardsn (e:mphasis supplied). 

Although Mr. Brunatti alluded to changing his negligence 

tinding from "moderate" to "high" when he modified the citation to an order (Tro 20v 90-9l)v and the copy of the citation 

2120 
reflects a faint circle around the appropriate "high" negligence and "order" blocks under items 11 and 12 of the citation 

form, I find no specific mention of any such modifications on 

the face of the order (Exhibit G-1). Mr. Brunatti explained 

that he initially issued the section 104(a) citation, with a 

moderate negligence finding, because he was led to believe by 

mine management that another M.SHA inspector had previously 

inspected the section under circumstapces similar to those 

which prevailed at the time of his inspection but issued no 

violation. Since the previous inspector did not believe that 

there was a violation, Mr. Brunatti concluded that the respondent also did not know or believe that a violation existed. 

Mr. Brunatti later changed his mind and modified the citation 

to an order, and he did so after a telephone conversation with 

Mr. Onuscheck, during which Mr. Onuscheck led him to believe 

that there was some miscommunication between his off ice and 

mine management, and after a telephone conversation with the 

inspector who had been on the section previously indicated 

that this was not so. 

Although Mr. Brunatti ,stated on the face of his order 

that MSHA inspectqrs had not been in the cited area prior to 

his own observations, his testimony, which I find contradictory, is that the prior inspector had been on the section, but 

only observed pillar mining taking place on the right return 

side only, and that the left or intake side had not as yet 

been developed or pillared. Further, the record in this case 

is devoid of any testimony by Mr. Brunatti that he considered 

the respondent's actions to be willful, or the result of indifference or a serious lack of reasonable care. 

Mr. Brunatti confirmed that his inspection was a "ventilation technical inspection" to insure that any mining taking 

place was in accordance with the respondent's approved plan. 

He also confirmed that before embarking on such an inspection, 

he reviews the mine file which contains all ventilation plans, 

and that he was ,.fairly familiarov with the applicable plans 

for the mine in question. Mro Brunatti confirmed that face 

print drawing 11, exhibit R-2, was included as part of the 

respondent 1 s ventilation plan Review #28, but he could not 

state whether Part E, which contained the typical face print 

and variation language, exhibit R-3, was a part of that Review 

(Tro 80)o Upon subsequent examination of Review 28, which 

Mro Brunatti had with him at the hearing, he stated that his 

copy contained a different Part E, from the one introduced by 

the respondent, and Mr. Brunatti concluded that it was not a 

part of Review 28 on file with MSHA (Tr. 8l)o 

2121 
MSHA's district engineer Zilka, testified that he last 

reviewed respondent's ventilation plan Review #28 in August, 

1985, a year before the citation was issued, and he could not 

recall whether Part E was in that file. Although Mr. Zilka 

did not have the plan in his possession when he testified, he 

confirmed that the plan in Mr. Brunatti's possession would be 

the same one on file with his office (Tr. 150). Mr. Zilka 

could not recall whether or not Part E was in the file that he 

reviewed, and stated that if it was n·ot in Mr. Brunat ti's file 

it would not be in the official file kept in his off ice at 

Pittsburgh (Tr. 151). 

In view of the obvious uncertainty as to whether or not 

Mr. Brunatti and Mr. Zilka were even aware of the existence of 

Part E, I issued a bench order instructing MSHA's counsel to 

either take the posthearing deposition of an appropriate MSHA 

official, or to otherwise confirm whether or not Part E was in 

fact on file with MSHA's official approved ventilation plan 

for the mine. By letter dated June 29, 1987, MSHA's counsel 

confirmed that it was in fact a part of the applicable ventilation plan on file in MSHA's district office. 

Based on the fqregoing, it seems obvious to me that 

Inspector Brunatti and Mr. Zilka were not aware of the fact 

that Part E of the respondent's ventilation plan, which contains some rather ambiguous language with respect to the use 

of the term "typical systems of face ventilation used in the 

mine," and seemingly permits some "variations" of the plans. 

Given this language, Mr. Zilka conceded that it was possible 

that the respondent may have misconstrued this language (Tr. 

180). Mr. Zilka also conceded that some variation is permitted, and he cited as an example a variation concerning 

"mining a certain block or mining the entries" (Tr. 155). 

Inspector Brunatti alluded to a variation which would be 

acceptable with respect to the "erection of the controls right 

in the workinq section'" (Tro 90)o He also alluded to another 

reasonable v~riation" or "reasonable approximations" from a 

=•typical plan" concerning the positioning a continuous-mining 

machine (Tr. 343). 

Mr. Zilka confirmed that in an effort to reduce ~he 

amount of paper work transmitted back and forth between ~SHA 

and the respondent, MSHA requested the respondent to eliminate 

those ventilation face prints which were not in active use, 

and to resubmit them when they were to be used (Tr. 136). 

Mr. Zilka also confirmed that he does not personally approve 

or reject any mine ventilation plans, and that he simply makes 

cecommendations. He indicated that his recommendations are 

2122 
reviewed by two additional supervisors before they are submitted to the district manager, who then makes the final 

decision as to approval or rejection of any particular plan 

provision (Tr. 153). Mr. Zilka further conceded that with 

respect to the submission of any ventilation plans, there are 

often differences of opinions among those people involved in 

the review process, and he confirmed that he did not discuss 

face print drawing No. 11, exhibit R-2, which respondent maintains applied in this case, with Mr. bnuscheck prior to the 

issuance of the violation, and that any such discussion came 

later (Tr. 184-185). Inspector Brunatti testified that had 

the respondent submitted a "reasonable approximation" of drawing No. 11, he would have accepted it. Since it was not, he 

rejected it as being applicable to the conditions which he 

observed (Tr. 343). 

In what I consider to be a rather feeble rebuttal attempt 

on the part of Mr. Zilka.to support his contention that his 

prior conversations with respondent's repres~ntatives over 

"many years" should have clearly put the respondent on notice 

as to what was required to .. be in compliance at the time the 

violation was iss1J.ed, Mr. Zilka explained certain differences 

in single and double air splits. He conceded that this was 

not relevant to the facts of this case, and that he only cited 

it to bolster his contention that the respondent has been 

informed that it cannot mix plans without submitting a plan 

addendum (Tro 359). When Inspector Brunatti was called in 

rebuttal after Mr. Zilka's testimony, he was asked whether he 

agreed or disagreed with Mr. Zilka's explanations of single 

and double splits of air. Mr. Brunatti admitted that while 

listening to Mr. Zilka's explanation, he was not aware of 

these distinctions, and was not aware of them at the time he 

cited the violation. However, Mr. Brunatti then stated that 

Mro Zilka was "totally rightQ" and made the comment "that's 

why he's in Pittsburgh and I 1m in the field office" (Tr. 371). 

Respondentis ventilation engineer Ondecko was called to rebut 

Mro Zilka's explanation of what constitutes single and double 

splits of air, and he expressed total disagreement with 

Mro ZilKa's analysis (Tr. 371-374). 

In a recently decided casev Jim Walters Resourcesf Inc.u 

9 FMSHRC 903v 909, the Commission made the following·observations with respect to mine ventilation plans: 

The Act and the mandatory standard requires the 

Secretary and the operator to agree upon a ventilation plan. It is of paramount importance 

under the st~tute that both the Secretary and 

the operator proceed diligently and in good 

2123 
faith to develop a conclusive and suitable plan 

containing provisions clearly understood by 

both. * * * It serves neither the safety of 

the miners nor the policy of the Mine Act when 

the Secretary and an operator are unable to 

reach firm agreement on the meaning of a mine 

plan provision even after several years of dealing with that provision. Given the importance 

Congress attached to mine speciflc plans, we 

emphasize that it is is incumbent upon the parties to adopt a more effective mechanism to 

ensure that mine plans are expeditiously, 

unambiguously and conclusively approved and 

adopted. (Emphasis Added). 

On the facts of this case, although I have affirmed the 

violation and have rejected the respondent's implied collateral estoppel defense theory that it could vary its ventilation face prints at its own discretion without prior approval 

by MSHA, and reject any notion that the absence of any citations by other inspectors during prior inspections absolves 

the respondent of any liability in this case, I nonetheless 

conclude and find that MSHA has failed to present any credible 

or probative evidence to establish that the violation resulted 

from the respondent's unwarrantable failure to comply with 

section 75.316. 

MSHA's reliance on the testimony of Mr. Zilka, including 

the asserted MSHA district policy since 1979, and certain 

policy statements attributed to District Manager Donald 

Huntley in support of said policy, in support of its conclusion that the respondent has had a long-standing clear understanding of the requirements of section 75.316, are rejected. 

There is no evidence that MSHA's policy has ever been clearly 

defined or reduced to writing, or that it was clearly incorporated by reference or otherwise ref erred to in any of the 

plans or plan correspondence, and Mro Huntley was not called 

by MSHA to testify in this case. As for Mr. Zilka 1 s prior 

contacts with the respondent, I find them to ~e rather general, undocumented as to any references to the specific issue 

concerning the use of the terms "typical face ventilation 

plans," and any "variations" from those plans. Further, based 

;n my prior findings concerning Mr. Zilka and Mr. Brunattiis 

testimony regarding their knowledge and understanding of these 

particular plan provisions, I am convinced that they, as well 

as the respondentv did not have a clear and unambiguous understanding as to how those particular provisions were to be 

interpreted and applied in this case, particularly during the 

period prior to the issuance of the violation, and that this 

2124 
mitigates the respondent's negligence. Under the ciccumstances, I find no reasonable or rational basis for concluding 

that the violation resulted from the respondent's lack of 

indifference, willful intent, or serious lack of reasonable 

care. Accordingly, MSHA's assertion that the violation 

resulted from an unwarrantable failure on the part of the 

respondent IS REJECTED. 

Modification of Order to Citations 

In light of my foregoing unwarrantable failure findings, 

the modified section 104(d)(2) order issued by Inspector 

cannot stand. It seems clear to me that under section 105(d) 

of the Act, I have the authority after a hearing to aff irrn, 

modify or vacate an order. See also Old Ben Coal Company, 

2 FMSHRC 1187 (June 1980)~ Consolidation Coal Company, 

3 FMSHRC 2207 (September 1981); Youngstown Mines Corporation, 

3 FMSHRC 1793 (July 1981). Accordingly, the order in question 

IS HEREBY MODIFIED to a section 104(a) citation. 

Size of Business and Effect of Civil Penalty on the 

Respondent's Ability to Continue in Business 

Based on the stipulations of the parties, I conclude and 

find that the respondent is a large mine operator and that 

payment of the civil penalty assessment for the violation in 

question will not adversely affect its ability to continue in 

business. 

History of Prior Violations 

On the basis of the stipulations by the parties, and 

given the size and scope of the respondent's mining operationsv I find no basis for concluding that the respondent's 

compliance record is such as to warrant any additional 

increase in the civil penalty assessment which I have made for 

the ~iolation in question. 

Negligence 

I conclude and find that the violation resulted from the 

respondent 6 s failure to exercise reasonable care, and that 

this constitutes ordinary negligence on its part. 

Gravity 

For the reasons stated in my significant and substantial 

finding, I conclude and find that the violation in question 

was serious. 

2125 
Good Faith Compliance 

The parties have stipulated that the violation was abated 

by the respondent in good faith within the time fixed by the 

inspector. I adopt this stipulation as my finding and conclusion on this issue. 

Civil Penalty Assessment 

On the basis of the foregoing findings and conclusions, 

and taking into account the requirements of section llO(i) of 

the Act, I conclude and find that a civil penalty assessment 

in the amount of $500 is reasonable and appropriate for the 

violation which I have affirmed. 

ORDER 

The respondent IS ORDERED to pay a civil penalty assessment in the amount of $500 for a violation of 30 C.F.R. 

§ 75.316, and payment is to be made to MSHA within thirty' (30) 

days of the date of this decision. Upon receipt of payment, 

this proceeding is dismissed. 

Distribution: 

Linda M. Henry, Esq., Office of the Solicitor, U.S. Department 

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

Philadelphia, PA 19104 (Certified Mail) 

Joseph Yuhas Joseph To Kosekv Esqs.p Greenwich Collieries, 

PoO, Box 367 Ebensburg, PA 15931 (Certified Mail) 

/fb 

2126 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 9 1987 

RANDY ROTHERMEL/TRACEY CONTEST PROCEEDINGS 

PARTNERS, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA}, 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

TRACEY & PARTNERS, 

Respondent 

Docket No. PENN 87-121-R 

Citation No. 2840770; 2/12/87 

Docket No. PENN 87-122-R 

Order No. 2840771; 2/12/87 

Docket No. PENN 87-124-R 

Citation No. 2840772; 2/19/87 

Tracey Slope 

CIVIL PENALTY PROCEEDINGS 

Docket No. PENN 87-176 

A.C. No. 36-01836-03524 

Docket No. PENN 87-235 

A.C. No. 36-01836-03523 

Tracey Slope 

DECISIONS 

Appearances~ James P. Diehlu Esq., Williamsonu Friedberg & 

Jones, Pottsville, Pennsylvania, for the 

Contestant/Respondent; 

Before~ 

Susan M" Jordanr Esq., Office of the Solicitor, 

U.S. Department of Labor 9 Philadelphiau 

Pennsylvaniau for the Respondent/Petitioner. 

Judge Koutras 

Statement of the Proceedings 

These consolidated proceedings concern Notices of 

Contests filed by the operator against MSHA pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 815Cd), challenging the legality of two section 

104(a} citations and one section 104(b) order issued to the 

2127 
operator in February, 1987. The operator is charged with 

alleged violations of section 103(a) of the Act, because of 

its refusal to permit an MSHA inspector to conduct spot inspections pursuant to section 103(i) of the Act. A hearing was 

held in Reading, Pennsylvania, and while the parties were 

afforded an opportunity to file posthearing briefs, they have 

not done so. However, I have considered the oral arguments 

made by counsel on the record during the hearing in these 

proceedings. 

Applicable Statutory and Regulatory Provisions 

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

30 u.s.c. § 301 et seq. 

2. Sections 103(a) and Ci) of the Act, 30 U.S.C. 

§ 813(a) and (i); and section llOCi), 30 U.S.C. § 820(i). 

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

Issues 

The issues presented in this matter include the 

following: 

1. Whether the operator violated section 

103(a) of the Act by denying entry to the 

inspector for the purpose of conducting a section 103(i) spot inspection, and if so, the 

appropriate civil penalties to be imposed for 

the violations. 

2. Whether the facts and evidence adduced 

in this matter support MSHA's contention that 

the operator has not been subjected to any 

illegal or discriminatory inspections pursuant 

to section 103(i) of the Acto 

3o Whether the facts and evidence adduced 

in this matter support the operator's contention that no valid or legal basis exists at 

this time for MSHA's continuing its mine on an 

indefinite section 103(i) spot 5-day inspection 

cycleo 

4o Whether the statutory language found 

in section 103(i) of the Act with respect to an 

occurrence of a methane ignition or explosion 

"during the previous five years," automatically 

2128 
terminates MSHA's authority to keep the mine on 

a 5-day spot inspection status at the expiration of 5 years, during which time no further 

methane ignitions or explosions within the meaning of section 103Ci) have occurred. 

5. Whether the aforesaid statutory language authorizes or requires MSHA to continue 

its 5-day spot inspections of tha mine 

ad _infinitum subsequent to the expiration of 

5 years from the date of the methane ignition 

and explosion which initially placed the mine 

in that status. 

6. Additional issues raised by the 

parties are identified and disposed of in the 

course of these decisions. 

Stipulations 

The parties stipulated to the following (Joint Exhib!t-2; 

Tr. 7): 

1. Randy Rothermel is the Managing 

Partner of Tracey Slope. 

2. The mine is subject to the Federal 

Mine Safety and Health Act of 1977. 

3. The presiding Administrative Law Judge 

has jurisdiction over the proceedings pursuant 

to section 105 of the Act. 

4o The citations, orders, and modificationsv involved herein were properly served by 

a duly authorized representative of the 

Secretary of Labor upon an agent of the operator at the dates, times, and places stated 

therein, and may be admitted into evidence for 

the purpose of establishing their issuance. 

5" The parties stipulate to the authenticity of their exhibits but not to the relevance 

or the truth of the matters asserted therein. 

6. The operator had a multiple nonfatal 

methane explosion accident at its Tracey Slope 

Mine on February lOr 1982, which resulted in 

serious injuries to three miners. 

2129 
7. Following this incident, the operator 

was put on a 5-day spot inspection series under 

section 103(i) of the Act by MSHA. The basis 

for this action was that a 11methane ignition or 

explosion had occurred which resulted in 

serious injury." 

8. This mine has been subject to 5-day 

spot inspections at irregular intervals since 

that time. 

9. There has been no methane ignitions or 

explosions at this mine resulting in serious 

injury since the accident on February 10, 1982. 

The mine has not liberated "excessive quantities of methane" as that term is defined in 

section 103(i). 

10. on February 12, 1987, MSHA Inspector 

Victor G. Mickatavage of the Shamokin Field 

Off ice arrived at the mine to conduct a section 

103(i) spot_ inspection. Mr. Randy Rothermel, 

an owner of the mine, stated that he was denying entry to the mine to conduct a section 

103Ci> spot inspection. Mr. Rothermel stated, 

however 6 that he would permit any inspection 

other than an inspection pursuant to section 

103(i). 

11. At 11:45 a.m., the MSHA inspector 

issued Citation No. 2840770 under section 

103(a) of the Act for the denial of entry, 

allowing 45 minutes to abate. 

120 At 12~30 Poffiog the MSHA inspector 

issued a section 104(b) withdrawal orderv Order 

Noo 2840771, under section 103(a) of the Act 

for failure to abate Citation No. 2840770, 

which order did not prohibit entry into the 

mineo 

13. On February 13, 1987, the MSHA 

inspector returned to the mine and issued a 

Modification to Citation Noo 2840770 and Order 

No" 2840771v and entry to perform a section 

103(i) inspection was again denied. 

2130 
14. On February 19, 1987, the MSHA inspector was again denied entry to the mine to conduct a section 103(i) spot inspection. The 

MSHA inspector issued Citation No. 28040772 for 

failure to comply with the section 104(b) Withdrawal Order No. 2840771 as modified 

Order 2840771-01. 

15. A letter dated September 15, 1986, 

Exhibit "C-1," is a true and correct copy of a 

letter sent by Randy Rothermel to the then 

acting District Manager, Joseph Garcia, the 

District Manager of Coal Mine Safety and 

Health, District No. 1. 

16. During the 24-months preceding the 

date of the contested citations and order, the 

operator received a total of 24 citations and 

was subject to a total of 142 inspection days. 

17. The operate~ is a small underground 

anthracite mine operator, employing three to 

five people underground, and two people on the 

surface, and has an annual coal production of 

approximately 4,000 tons (Tr. 33, 170). 

Discussion 

The citations and order issued in these proceedings, all 

of which allege violations of section 103Ca) of the Act, are 

as follows: 

Section 104(a) non-"S&S" Citation No. 2840770, 

February 12v 1987 (Docket Nos. PENN 87-121-R, and 

PENN 87-235)0 

On 2-12-87; Randy Rothermel, partner and 

mine foreman, refused to allow Victor G. 

Mickatavage, an authorized representative of 

the Secretaryu entry into the Tracey Slope Mine 

for the purpose of conducting an inspection of 

the mine pursuant to section 103(a) of the Act. 

Mr. Rothermel stated that the inspector 

(Federal) could not enter the mine to conduct 

the 103(i) inspection. 

Section 104(b) "S&S" Order No. 2840771, February 12, 1987 

(Docket No. PENN 87-122-R): 

2131 
Randy Rothermel, partner and mine foreman, 

continued to deny Victor Mickatavage, authorized representative of the Secretary, the 

right of entry into the Tracey Slope mine for 

the purpose of conducting an inspection of the 

mine in accordance with the requirements of 

section 103(a) of the Act on 2-12-87 after the 

expiration of a reasonable time allowed for 

Mr. Rothermel to comply. 

Section 104(a) "S&S" Citation No. 2840772, February 19, 

1987 (Docket Nos. PENN 87-124-R, and PENN 87-176). 

The operator failed to comply with 104Cb) 

order of withdrawal No. 2840771 dated 2-12-87 

and modified 2-17-87, issued for failure to 

abate a 104(a) Citation No. 2840770 dated 

2-12-87, issued to section 103(a) of the Act. 

One gunboat of coal was observed being hoisted 

from underground. 

' The essential fa~ts in these proceedings are not in dispute. On February 1~, 1982, at approximately 8:10 p.m., a 

methane gas explosion occurred at the mine, and three laborers 

working in the mine received burn injurieso As a result of 

this incident, which occurred over 5-years ago, the mine operator has been subjected to spot inspections by MSHA once 

during every 5 working days at regular intervals in accordance 

with section 103Ci). 

On February 12, 1987, the mine operator, believing that 

MSHA's rights of inspection pursuant to section 103(i) had 

expired and lapsed, denied entry to MSHA Inspector Victor 

Mickatavage for purposes of conducting a section 103Ci) inspection, At the time of the denial of entryv the operator 

advised the inspector that he would permit any form of inspection other than an inspection pursuant to section 103(i) of 

the Act. As a result of the operator's failure to allow the 

inspector entry to conduct a section 103Ci) inspection, the 

inspector issued the citations and order in question. 

During opening statements at the hearingu MSHA 1 s counsel 

stated that the citations and order resulted from the operator1 s denial of entry to its mine by MSHA inspectors on different occasions. The inspectors sought entry for the purpose 

of conducting section 103(i) inspections, and they did so in 

the exercise of their right of inspection pursuant to section 

103(a) of the Act. Recognizing the fact that MSHA's right of 

2132 
inspection may not be exercised illegally or in a discriminatory manner, counsel asserted that MSHA has an absolute right 

of warrantless entry, and that the inspectors were attempting 

to exercise that right pursuant to section 103(i). MSHA's 

view of the issue presented in these proceedings is whether or 

not the operator was being subjected to illegal or discriminatory inspections pursuant to section 103Ci> of the Act as 

alleged by the operator. 

MSHA's counsel pointed out that the operator contends 

that the attempted section 103(i) spot inspections were 

illegal because 5 years have passed since the operator was 

initially put on notice that its mine was on a section 103(i) 

spot inspection cycle because of a methane explosion which 

resulted in serious injuries. Contrary to the operator's 

contention, MSHA takes the position that there is no automatic 

termination of section 103(i) spot inspections after the 

passage of 5 years from the event which initially placed the 

mine in that inspection posture. MSHA's position is that it 

has discretion, based on the particular conditions present in 

a mine, to determine whethe.~ or not the mine should exit qr 

remain subject to ,continued section 103(i) 5-day spot inspections. MSHA asserted that its evidence establishes that the 

decision to maintain the mine on the spot inspection cycle was 

based on MSHA's continued fear of the presence of methane gas 

in the mine. Under the circumstances, MSHA concludes that it 

has acted well within its statutory authority to continue the 

section 103(i) spot inspections to the present time (Tr. 8-9). 

The operator's counsel stated that section 103Ci) sets 

forth certain criteria for the conduct of spot inspections 

every 5 days, namely; Cl) liberation of excessive quantities 

of methane gas as that term is defined by the Act, (2) a 

methane ignition or explosion resulting in death or serious 

injury within the previous 5 yearsp or (3) the existence of 

other hazardous mine conditionso Counsel contended that in 

the case at hand, the only mining activity tested during any 

of the section 103(i) inspections was a test for methanev and 

on one occasion, ventilation testing. Counsel asserted that 

the sole purpose advanced by MSHA to the operator for its 

desire to conduct the inspections was the opinion by MSHA 1 s 

district office that it could continue its inspections without 

any of the necessary criteria found in section 103(i) of the 

Act. 

Counsel pointed out that it is uncontroverted that the 

operator has allowed MSHA entry to its mine for the purpose of 

conducting any other type of inspections, including regular 

spot inspections, and has only resisted MSHA's attempts to 

2133 
continue with section 103(i) spot inspections every 5 days. 

Counsel contended that the mine has been subjected to 

142 inspection days in a period of less than 24 months, and 

that taking into account the number of days the mine has been 

closed, MSHA's inspections have amounted to a substantial 

interference with the operator's mining activity (Tr. 9-11). 

Counsel stated that by letter dated September 15, 1986, 

(Exhibit C-1), the operator wrote a letter to MSHA's Acting 

District Manager, Joseph Garcia, Wilkes-Barre, Pennsylvania, 

advising him of all of the facts incident to the prior methane 

ignition which triggered the 5-day spot inspection cycle, and 

requesting a ruling as to whether or not the mine could be 

removed from its spot inspection status, but that the letter 

remains unanswered. Counsel suggested that since MSHA did not 

respond to the operator's letter, it believed that the only 

way it could resolve the question was to create a circumstance 

under which a violation would be issued, thereby providing a 

forum in which to decide the propriety of the section 103(i) 

spot inspections (Tr. 11). 

Conceding that U1_e operator's letter was not answered, 

MSHA's counsel asserted that while no formal response was 

forthcoming, numerous meetings have been held between MSHA 

personnel and the operator to discuss the matter, and that 

these discussions would constitute a verbal response to the 

operator's letter (Tr. 11). MSHA's Shamokin Area Field Office 

Supervisor James Schoffstall confirmed that Acting District 

Manager Garcia has since returned to his regular duty station 

in the Pittsburgh area, and that the operator's letter may 

have been mislaid or misrouted. Mr. Schoffstall confirmed 

that he has not seen the letter, and the operator's counsel 

confirmed that there was some dialogue between Mr. Randy 

Rothermel, the operator, Mro Schoffstall, and the inspector, 

but that no responsive written reply has ever been received by 

Mr. Rothermel with regard to his letter (Tr. 14-15). 

Mr. Schoffstall also confirmed that he has consulted with his 

supervisor in the district office, Edward Connor, Acting 

District Manager, who in turn consulted with MSHA's headquarters in Arlington, Virginia, and that Arlington's answer "was 

that this five years is a minimum, and there is no time limit" 

(Tr. 16). -

MSHA 1 s counsel confirmed that MSHA still has under consideration the seeking of a court injunction to allow it to gain 

entry to the mine for the purpose of continuing its section 

103(i) spot mine inspections every 5 days, but that it has not 

done so as of the time of the hearingo Counsel pointed out 

that the violations in issue in these proceedings were abated 

2134 
after a period of time when the operator permitted entry to 

the inspectors for the purpose of conducting section 103(i) 

spot inspections, and that MSHA abandoned any recourse to 

injunctive action. Howeverv the operator has again started to 

turn away its inspectors; and injunctive relief is again being 

considered by MSHA. The operator's counsel confirmed that 

this was true, but stated that the operator is no longer 

permitting entry to the inspectors because of the instant 

litigationf and MSHA's counsel confirmed that another series 

of citations are likely to be issued because of the operator's 

renewed and continued refusal to permit section 103Ci) spot 

inspections (Tr. 12-14}. 

MSHA's counsel confirmed that the operator at the present 

time is not only refusing entry for spot inspections, but is 

also refusing any type of entry to MSHA inspectors, even for 

regular inspections. The operator's counsel asserted that "we 

are not working the mine" (Tr. 17). 

MSHA's Testimony and Evidence 

James E. Schoffstall, Supervisor, MSHA District No. 1 

Shamokin Field Office, confirmed that he has been in that position since November, 1980, and that his duties include the 

supervision of a staff of 13 MSHA inspectors. He testified as 

to his background and experience, including the management of 

two mines as a superintendent, and he confirmed that he holds 

mine foreman papers issued by the State of Pennsylvania (Tr. 

19-22). 

Mr. Schoffstall confirmed that the mine in question has 

been within his enforcement jurisdiction since February, 1985, 

when it was taken over from MSHA's Pottsville or SchuylkillHaven off iceo He confirmed that he has been in the mine 

numerous times, and that he was familiar with the citations 

and orders issued MSHA Inspector Victor Mickatavage (joint 

exhibit-l)o Mro Schoffstall confirmed that he discussed the 

circumstances surrounding the issuance of the violations with 

Inspector Mickatavagev who works under his supervision, and 

that Mro Mickatavage issued the violations because he was 

denied entry to the mine for the purpose of conducting section 

103(i) inspectionsv and was hindered in his attempts to conduct the inspections (Tro 22-24)0 

Mro Schoffstall confirmed that the mine is also subject 

to annual and quarterly inspections, including follow-up 

inspections in connection with the issuance of any citations 

or orders. He also confirmed that the mine became subject to 

the section 103(i) spot inspections after a multiple nonfatal 

2135 
methane explosion accident which occurred at the mine on 

February 10, 1982, and he identified exhibit G-1 as the 

official MSHA accident investigation report of that incident 

which"he obtained from MSHA's District No. 1 office in 

Wilkes-Barre (Tr. 25). 

Mr. Schoffstall was of the opinion that section 103(i) 

was enacted "for the sole reason of troubled mines. Mainly, 

Number 1, was excessive amount of gases; Number 2, if a mine 

experienced an explosion; and then also you have another category for special hazards" (Tr. 34). He also believed that 

section 103(i) mandates that inspections "be made under periodic time limit," namely once every 5-working days at irregular intervals in this case, "to see that they are complying 

with the law, and to see that the conditions are being 

controlled" (Tr. 36). 

With regard to the language of section 103(i) concerning 

methane or other gas explosions which have resulted in death 

or serious injury during the previous 5 years, Mr. Schoffstall 

was of the view that this stated time frame is a minimum , 

amount of time that the mine must be placed on the section 

103 ( i) spot inspectio-n- eye le, and that it is not a maximum 

time limitation. Mr. Schoffstall was of the further view that 

MSHA could continue its section 103(i) spot inspections if it 

"feels that the mine is on the borderline or it is subject to 

a condition happening again in that mine" (Tr. 36). 

Mr. Schoffstall confirmed that since the 1982 ignition, 

the mine experienced another methane ignition in 1985 in the 

Number 4 Level West Gangway Section where some methane was 

ignited as a cut of coal was fired from the base. That ignition did not result in any injuries or death, and the incident 

was investigated by MSHA's Pottsville office (Tro 40)0 He 

identified exhibit G-2 as a copy of the official MSHA investigation report of that incident (Tr. 43)0 

Mro Schoffstall confirmed that he considered 

Mr. Rothermel 1 s verbal requests made to Inspector Mickatavage 

2 or 3-weeks prior to the denial of entry to be removed from 

the section 103(i) spot inspection series because the 5-year 

period has expired. Mro Schoffstall stated that after discussing the request with his superiors, "we feel that the mine 

still should be considered within the 103Ci) category." 

Mr. Schoffstall stated that the reasons for this included "the 

condition that the mine is in with the unlimited amount of 

ventilation, and the irregularity of the ventilation--and 

also, the immediate area where they are now working has a condition of roof control along with a new area that they intend 

2136 
to development which is to the east which allows an additional 

taxation on the ventilation system" (Tr. 50-51). 

Mr. Schoffstall confirmed that the decision to deny 

Mr. Rothermel's request to be removed.from the section l03(i) 

spot inspection cycle was a "joint decision" made by himself, 

Acting District Manager Edward C. Connor, and Inspector 

Mickatavage, and that the decision was communicated verbally 

to Mr. Rothermel who was "basically" informed of the reasons 

for the decision (Tr. 51-53). MSHA's counsel confirmed that 

the decision in question was not formalized in writing, and 

Mr. Schoffstall confirmed that his office has never informed 

an operator in writing that he would be removed from any 

section 103(i) inspection cycle because MSHA has never been 

challenged in this regard (Tr. 51-54). 

Mr. Schoffstall stated that three other mines in his 

district are presently on a section 103(i) spot inspection 

cycle, for reasons other than a methane ignition, and that two 

mines are on that cycle because of impounding water (Tr. 55). 

In the instant case, Mr. Schoffstall could think of no reason 

why the operator has not been advised in writing as to the 

specific reasons why MSHA is keeping him on the section 103(i) 

spot inspection cycle (Tr. 56), and that "we've never done it 

any other way in the district except verbally" (Tr. 57). 

Mr. Schoffstall stated that immediately after the denial 

of entry in this case, a meeting was held in MSHA's office 

with the operator's counsel Diehl present, and the matter was 

discussed. At that time, Mr. Rothermel was advised of MSHA's 

decision to keep the mine on a section 103(i) cycle (Tr. 61). 

Mr. Schoffstall could not confirm whether Inspector 

Mickatavage informed Mr. Rothermel of these reasons during 

their discussions prior to the refusal of entry (Tro 61). 

Mro Schoffstall testified to the specific reasons previously alluded to as to why the decision was made to keep the 

mine on the section 103(i) cycle. Referring to a mine map 

(exhibit G-7), he alluded to certain air measurements made 

during past inspections, some purported roof problems necessitating retimbering, and an unplanned roof fall within the past 

4 months in an escape route. He believed that any roof fall 

in either the main intake or return presented the possibility 

of blocking the entrance and possibly restricting ventilationo 

Howeveru he confirmed that the unplanned roof fall was 

addressed by developing a new area to go around it, and that 

no injuries resulted from that fall (Tr. 61-65). 

2137 
Mr 0 Schoff stall furtht:r 2.lluded t.o a.1r measurements taken 

along the haulage slope indicating 8 to 10 thousand cubic feet 

of air in the main intake and return resulting from air 

short-circuiting through some old stoppings, and other areas 

of possible air leakage through an area which is planned for 

developrnc:"'::. u1 an easterly direction. He also alluded to citations which were issued for air leakage through some temporary 

stoppings, and indicated that the air at that location was 

"just a minimal amount" to meet the requirements of the law 

(Tr. 66). 

Mr. Schoffstall discussed the operator's intentions to 

install overcasts at the gangway level as it developed to the 

east, and he indicated that this may place an additional 

burden on the ventilation system caused by air leakage which 

may be created by crosscuts and openings which need to be 

stopped off (Tr. 67). In response to questions concerning the 

operator's intentions to mine to the east, Mr. Schoffstall 

confirmed that the operator is required to file ventilation 

plan changes as it develops or anticipates to develop new mine 

areas, and he confirmed that a new ventilation plan has b~_en 

filed. He also confir..med that in this case, MSHA has approved 

the operator's ventilation plan to meet the minimum standard 

of 3,000 cubic feet of air at the face, and 5,000 at the last 

open crosscut (Tr. 68). However, he indicated that MSHA is 

not certain whether the existing ventilation system is enough 

to cover the area being developed to the east, and that this 

is part of the reasons why it wants to keep the mine on a 

section 103(i) inspection cycle (Tr. 68). 

Mr. Schoffstall confirmed that MSHA wishes to keep the 

operator on the section 103(i) inspection cycle in the newly 

developed area because of its "pending development." He 

conceded, however, that MSHA will still have to review the 

adequacy of the ventilation in 3 or 6 months intervals? and he 

conceded that such an evaluation of the ventilation could be 

done independently of any section 103(i) inspection. He 

further conceded that if the mine had not experienced a prior 

methane ignition, any perceived ventilation problem would not 

necessarily be reason enough to place the mine on a section 

103(i) inspection cycle (Tr. 69)0 He confirmed that the mine 

is located in a gassy vein, and that coupled with the asserted 

bad roof, these conditions are inherent to the mine (Tro 70). 

Mr. Schoffstall confirmed that while he believed that the 

mine has a "borderline" ventilation system, MSHA nonetheless 

has approved the ventilation plan, and keeping the mine on a 

section 103(i) inspection status will facilitate MSHA's monitoring of the ventilation (Tr. 73). 

2138 
In further explanation of the decision to keep the mine 

on a section 103Ci) inspection cycle, Mr. Schoffstall stated 

as follows (Tr. 75-76): 

A. Okay. The basis was, Number 1, was the 

ventilation system, the irregularities of the 

ventilation system; the problems that they were 

having with the roof control, holding the 

return entries open; and the constant pressure 

on the main intake; 3, was the ventilation 

system to the east, will it be effective enough 

to be able to liberate the methane that they're 

going to encounter; and Number 4 is, that 

they're going towards an uncharted area that's 

filled with water, which we will require a bore 

hole plan. 

JUDGE KOUTRAS: A bore hole plan? 

THE WITNESS: Yes. In other words, when they 

get within two hundred feet of the uncharted 

workings that we have no mapping on, then they 

must start drilling in advance to locate this 

water. 

BY MS. JORDAN: 

Q. If it --

JUDGE KOUTRAS: But, that would be required, 

independent of any 103(i)? 

THE WITNESS: That's right. That will go under 

special inspectiono 

* * * * 

A. All right. What it is is the inconsistency 

of the ventilation puts a borderline on the 

amount of ventilation available at the working 

faces to sweep away the noxious gasses. 

Number 2v is the possible blockage, due to an 

unplanned roof fall in the returns could cause 

a restriction of ventilation, that would also 

cause a buildup of methane at the faces. And, 

then the area in which they 1 re going to tax 

additional efforts out of the ventilation 

system to the east, all in conjunction with it 

2139 
puts the mine at an area where we feel it's 

borderline as to the abilities of keeping the 

faces clean of methane. 

Mr. Schoffstall identified and reviewed copies of citations issued to the operator for violations of the roof 

control requirements of mandatory safety standard section 

75.200, the ventilation air requirements of section 75.301, 

and the ventilation plan requirements·-of section 75.316 

(exhibits G-3 through G-5, Tr. 87-94; 98-102; 117-118; 

119-122). 

Mr. Schoffstall confirmed that he did not issue any of the 

citations, and that he was not present when they were issued 

(Tr. 122-123). He also confirmed that he retrieved the copies 

from MSHA's files in response to the operator's prehearing 

interrogatories, and while he may have previously reviewed the 

citations after they were issued as part of his supervisory 

duties, he would only have reviewed those issued by Inspectors 

Donn Lorenz and Victor Mickatavage, from his Shamokin office, 

but not those issued by inspe~tors from MSHA's Pottsville,. 

office (Tr. 124-125>.~ He confirmed that the citations in question have all been abated (Tr. 155). 

Mr. Schoffstall further confirmed that when he assembled 

the copies of the prior citations, he did not include copies 

of any extensions which may have been issued, nor did he 

include copies of any abatement or termination notices unless 

the abatement was shown on the face of the citation itself 

(Tr. 144). MSHA's counsel stated that any terminations and 

extensions relevant to the citations were included with her 

responses to the operator's discovery requests, and that they 

are a matter of record (Tr. 146-147). 

On cross-examination, Mro Schoffstall reiterated that he 

d not conduct any of the prior inspections or issue any of 

the citations previously referred to. With regard to any 

methane tests conducted in the mine; Mr. Schoffstall confirmed 

that he has never personally conducted any such tests, but has 

accompanied an inspector when he did it. With regard to his 

prior testimony speculating to a 50 percent loss of air in the 

ventilation circuit, Mr. Schoffstall conceded that he performed no test to support any such statement (Tr. 154-155}. 

M.r" Schoffstall confirmed that he was present at a conference counsel Diehl during which he stated to counsel that 

the sole basis for the section 103Ci) inspections was the 

prior methane ignition which resulted in injury to two men. 

When asked whether that was still his position, Mr. Schoffstall 

2140 
responded "Because of the explosion, because of the conditions 

of the explosion, yes" (Tr. 154-155). With regard to the 1985 

ignition incident, Mr. Schoffstall confirmed that it was 

reported to MSHA by the operator (Tr. 158). 

Contestant's Testimony and Evidence 

Randy Rothermel, the operator of the mine, confirmed that 

MSHA Inspector Victor Mickatavage was -at the mine on 

February 12, 1987, and requested entry for the purpose of conducting a section 103Ci) inspection. Mr. Rothermel acknowledge that he informed the inspector that he could conduct any 

other kind of an inspection except for a section 103(i) inspection. As a res~lt of his refusal to permit the inspector to 

conduct a section 103(i) inspection, the inspector issued him 

a citation, but did not prohibit him from proceeding with his 

mining activities (Tr. 160-161). At the expiration of a half 

an hour, the inspector then served him with an order, and that 

too did not prohibit him from continuing with his mining activities. He received another order some 5 days later (Tr. 162). 

Mr. Rothermel confirmed that he had written a letter to MSHA's 

Acting District Manager Gardia approximately 4 to 6 months 

earlier, but has t~ceived no response from Mr. Garcia or anyone else (Tr. 163). 

On cross-examination, Mr. Rothermel acknowledged that he 

has often discussed with MSHA inspectors, including 

Mr. Mickatavage, the matter concerning section 103Ci) inspections, and that they never advised him that he could not at 

the present time be removed from the section 103{i) spot 

inspection cycle. When asked what the inspectors may have 

told him, Mr. Rothermel responded "They said, if you think 

that's the law, you have to fight it. So that's what we're 

doing here today~ (Tr. 164). 

In response to further questions, Mr. Rothermel stated 

that he was prompted to write h letter after first receiving 

a copy of the Act, and that prior to that time 11 1 didn't know 

what a 103Ci) was." In addition, he stated that he spoke with 

Mr. Garcia by telephone before writing the letter, and that 

Mr. Garcia told him to write to him. His refusal to permit 

the inspector to conduct a section 103(i) inspection was based 

on the fact that he received no response to his letter 

(Tr. 165-166). 

Mr. Rothermel stated that another mine operator who operates a mine adjacent to and behind his (Wolfgand Brothers), 

was in a section 103Ci> inspection status for 7 years for 

experiencing the same type of ignition as that which occurred 

2141 
in his mine, but was taken off by MSHA. Since that operator 

was taken off, Mr. Rothermel acknowledged that his curiosity 

was a(oused as to why his mine was still in a section 103Ci) 

status (Tr. 167). Mr. Rothermel indicated that the adjacent 

mine operator was taken off after he wrote his letter to 

Mr. Garcia (Tr. 168). After consulting with Mr. Schoffstall 

at counsel table, MSHA's counsel confirmed that the mine 

operator referred to by Mr. Rothermel was in fact in a section 

103(i) status, but was removed after~ years (Tr. 167). 

Mr. Rothermel stated that his mine has operated on an 

average 4-day weekly basis for the past 5 years, and that he 

spends approximately 4 hours a week with a Federal inspector 

during a section 103(i) inspection. He also stated that his 

mine has been subjected to four AAA.regular MSHA inspections, 

and that the time spent on those· inspections ranged "from four 

days straight, to some mix with the AAA or the 103(i)" (Tr. 

169). He estimated that during each work week, he has had one 

and a half-days of inspections (Tr. 169). 

Mr. Rothermel stated that the section 103(i) inspect~ons 

have interfered with~his operation of the mine, and he 

explained as follows at (Tr. 170-171): 

THE WITNESS: With only three to five guys 

there, one guy is with an inspector, well, 

there's only two working, and I'm usually the 

guy, and I'm the foreman to start with. It 

usually consists of going out of the mine, 

talking to an inspector, seeing what he wants 

to see, or whatever, then we go down. The 

inspection actually lasts maybe a half an hour. 

* * * * * 

THE WITNESS~ It's not only the inspections 

themselvesf there's so much other business to 

go with it" Roof control plans, ventilation 

plans, all kinds of other stuff, it's really 

getting to be time consuming" 

JUDGE KOUTRAS~ Are you also regulated by the 

state? 

THE WITNESS~ Yeso 

JUDGE KOUTRAS~ Are you on any kind of a spot 

inspection ~-

2142 
THE WITNESS: No. 

JUDGE KOUTRAS: cycle with the state? 

THE WITNESS: One inspection day every two 

months. 

JUDGE KOUTRAS: One inspection day every two 

months. 

THE WITNESS: Yes. 

Mr. Rothermel confirmed that although the mine works 

4 days a week, people may be at the site on the other 3 days 

running pumps, cutting timber, or doing repair work. In 1984, 

at the time some of the citations were extended, the mine 

worked 2 days a month, and an inspector was there on each day. 

During regular inspections when an inspector is there for four 

straight days, he usually spends 3 days underground and 1 day 

doing surface inspections or reviewing mine records. On some 

AAA inspections, an inspector may be at the mine for 6 days in 

a row, or less, in order to complete the inspection (Tr. 

172-176). -

Mr. Schoffstall was recalled by the Court to explain the 

circumstances under which the other mine operator ref erred to 

by Mr. Rothermel was taken off the section 103(i) cycle, and 

he testified as follows (Tr. 177-178): 

THE WITNESS: All right. The operator had a 

ventilation and gas liberating mine which was 

put on, initially, because of an explosion. 

The operator requested that he be taken off, 

you know, which is the same thing Mr. Rothermel 

had done" We reviewed We reviewed the 

circumstancesu and we recommended he be taken 

off because the conditions in the mine had 

changed. He had adequate air. He didn't have 

the methane liberations any more at the face 

areaso Sov we felt it secure. We were very 

comfortable in taking him off the 103(i)o 

JUDGE KOUTRAS~ What distinguishes that case 

from this one in your mind? 

THE WITNESS~ Well 0 actually, two things. The 

liberation content" They dropped their liberation content. They went into another section 

of the mine and lost their methane. They 

2143 
didn't have near the amount of methane being 

liberated out of that mine as to what they did 

prior. Number two was, they had established a 

better airway system and a better ventilation 

system. In other words they were on a retreat, 

a mining process which didn't involve as much 

face ventilation as what they had prior. And 

we seen no reason, the roof was good, their 

ventilation was good, and we seerr no reason to 

keep them on. 

JUDGE KOUTRAS: Do you know what the frequency 

of their citations has been since they were 

taken off? 

THE WITNESS: I would say a normal small mine, 

not that many. I couldn't count as number-wise, 

but I would say very few. 

JUDGE KOUTRAS: How do they compare in size to 

this operator, do yo~ have any idea? 

THE WITNESS! About the same size. 

JUDGE KOUTRAS: About the same size. 

THE WITNESS: This mine here is developed a 

little bigger. It's more to maintain than what 

they have. They're not down as deep or 

extended as far. But, size-wise, manpower 

about the saipe. 

Findings and Conclusions 

Section 103Ci) of the Act provides as follows~ 

Whenever the Secretary finds that a coal or 

other mine liberates excessive quantities of 

methane or other explosive gases during its 

operationv or that a methane or other gas ignition or explosion has occurred in such mine 

which resulted in death or serious injury at 

any time during the previous five years, or 

that there exists in such mine some other 

especially hazardous conditionr he shall provide a minimum of one spot inspection by his 

authorized representative of all or part of 

such mine during every five working days at 

irregular intervals. For purposes of this 

2144 
subsection, "liberation of excessive quantities 

of methane or other explosive gases" shall mean 

liberation of more than one million cubic feet 

of methane or other explosive gases during a 

24-hour period. When the Secretary finds that 

a coal or other mine liberates more than 

five hundred thousand cub\c feet of methane or 

other explosive gases during a 24-hour period, 

he shall provide a minimum of one spot inspection by his authorized representative of all or 

part of such mine every 10 working days at · 

irregular intervals. When the Secretary finds 

that a coal or other mine liberates more than 

two-hundred thousand cubic feet of methane or 

other explosive gases during a 24-hour period, 

he shall provide a minimum of one spot inspection by his authorized representative of all or 

part of such mine every 15 working days at 

irregular intervals. 

Although section 103(.;t) of the Act gives MSHA a righ~ of 

entry to the mine_ for inspection purposes, it seems clear to 

me that MSHA 1 s authority to conduct spot inspections every 

5 days pursuant to section 103(i) is subject to the following 

limitations: 

--- a mine which liberates excessive quantities 

of methane or other explosive gases during its 

operations, namely, more than one million cubic 

feet of methane or other explosive gases during 

a 24-hour period. 

--- a mine which has experienced a methane or 

other gas ignition or explosion resulting in 

death or serious injury at any time during the 

previous five years. 

--- a mine where there exists some other 

especially hazardous condition. 

Section 103(a) of the Act requires the Secretary to 

"develop guidelines for additional inspections of mines based 

on criteria including 1 but not limited to, the hazards found 

in mines subject to this Act, and his experience under this 

Act and other health and safety laws." The only relevant 

guidelines that I can find with respect to the interpretation 

and application of the spot inspection requirements of section 

103(i) of the Act, are those found in Volume 1, page 17, of 

2145 
the secretary's Coal Mine Inspection Manual, effective 

November 1, 1982, which states as follows: 

Spot inspections made relative to Section 

103(i) should be made with respect to the 

hazard(s) that caused the mine to be placed in 

this category. For example, if the mine is 

being inspected because there exists some 

"other especially hazardous condi-tions(s}, 11 

such as serious problems with the haulage 

system, then the inspection activities should 

be directed toward the haulage system. 

The operator wrote a detailed letter to MSHA's Acting 

District Manager Joseph Garcia, Wilkes-Barre, Pennsylvania, on 

September 15, 1986, some 6 months before its refusal of entry, 

requesting MSHA to consider removing the mine from the section 

103(i) spot inspection cycle. In support of its request, the 

operator asserted that during the past 4 years its ventilation 

system had greatly improved, greater quantities of air were 

being generated at working faces, and that recent testing,by 

MSHA inspectors indicated that at the maximum there was 

87, 000 cubic feet of .. methane liberated in a 24-hour period at 

the mine. The letter was not answeredo 

MSHA's Shamokin Field Office Supervisor Schoffstall 

testified that he did not see the letter and speculated that 

it was either mislaid or lost. I would venture a guess that 

Mro Schoffstall did not see the letter because he was in 

Shamokin and Mr. Garcia was in Wilkes-Barre. Mr. Schoffstall 

confirmed that he "basically11 verbally informed Mr. Rothermel 

of his decision not to remove the mine from the 5-day inspection cycler and that his office has never informed a mine operator in writing of such decisions because MSHA has never been 

challenged in this regard in the past" Mro Schoffstall also 

confirmed that he consulted with his supervisorv who in turn 

consulted with MSHAis headquartersv and apparently received a 

brief oral opinion by telephoneo While I find this advisory 

process to be rather loose, it is apparently in keeping with 

the theory that nothing is reduced to writing for fear of 

challenge" However 8 I believe that MSHA has a responsibility 

and obligation to respond in writing to an operatorus request 

of this kindv and its failure to do so prompted the operator 

here to take a stand and initiate the litigation in question, 

Mr" Rothermel indicated that he was prompted to write the 

letter in question when he learned that another mine operator 

near his operation who had been in a section 103(i) spot inspection status for 7 years after experiencing a gas explosion was 

2146 
taken off that status after writing to MSHA requesting that 

this be done. Mr. Schoffstall confirmed that this was true, 

and he explained that MSHA terminated the spot inspection 

status of that mine after reviewing the circumstances and finding that the mine conditions had changed. The changed conditions included a reduction in the amount of methane liberated 

at the face areas and the establishment of a better airway and 

ventilation system. Mr. Schoffstall was of the opinion that 

these two factors distinguishes Mr. Rothermel's mine from his 

neighbor's mine. 

I take note of the fact that MSHA's report of investigation concerning the February 10, 1982, methane ignition concluded that the accident occurred because of the operator's 

failure to follow proper blasting procedures, which contributed to the ignition source, and that it failed to follow 

proper ventilation practices which permitted an explosive 

mixture of methane to accumulate in the accident area. Other 

contributing factors noted by MSHA included the failure to 

install adequate ventilation controls, such as an overcast, 

regulators, and stoppings, to direct the intake air curreQt, 

and the failure to properly'check for methane before blasting 

(Exhibit G-1, pag~~6). 

Assuming the correctness of MSHA's position that the 

passage of 5 years without an ignition or explosion resulting 

in death or serious injury does not automatically terminate 

its discretionary right to continue to inspect the mine every 

5 days, MSHA nonetheless recognizes the fact that its continued inspections must be based on the particular conditions 

present in the mine. In this case, MSHA has taken the position that it must continue to exercise its perceived discretion to continue to conduct spot inspections every 5 days 

because of its continued fear of the presence of methane gas 

in the mine" 

The record in this case reflects that during MSHAus 

investigation of the ignition which occurred in 1982, the operator was cited for a violation of section 75.309(b), after 

SoO percent methane was detected in a return split of air, and 

was also cited for having an inoperative methane detectoro 

Howeverff there is no evidence that the operator has ever been 

cited for violations of any of the mandatory safety standards 

dealing with weekly examinations for hazardous conditions 

(75.305); weekly ventilation examinations (75.306); methane 

examinations (75.307); methane accumulations in face areas 

(75.308), and methane monitors (75.313). 

2147 
In the course of opening arguments, the operator's 

counsel asserted that subsequent to the February 10, 1982, 

incident which placed the mine on a 5 day section 103(i) spot 

inspection cycle, the only mining activity tested during any 

of the subsequent 103(i) inspections was one test for methane, 

and one occasion when the ventilation was tested. 

MSHA has stipulated that no methane ignitions or explosions resulting in serious injury have occurred in the mine 

since the ·accident of February 10, 1982, and that the mine has 

not liberated "excessive quantities of methane" as that term 

is defined by section 103(i). Further, in response to the 

operator's discovery requests with respect to any tests performed showing the presence of exces~ive quantities of methane 

or other explosive gases in the mine, MSHA responded as 

follows at page 2 of its May 7v 1987, responses: 

--- There is no record of methane liberations 

of more than 1,000,000 cubic feet in 24 hours. 

--- There is no record of methane liberations 

of more than 500,000 cubic feet in 24 hours. 

With respect to the answer to an identical question concerning the presence of methane liberation of more than 

200,000 cubic feet in 24 hours, MSHA made reference to an 

analysis of air samples collected on February 11, 1982, as 

part of its investigation of the methane ignition which 

occurred on February 10, 1982. That report reflects a methane 

liberation level of 237,000 cubic feet in 24 hours on that 

day, and 4.98 percent methane. Copies of the results of additional bottle samples apparently collected by MSHA during its 

investigation during February 11 through 19, 1982, reflect 

methane levels of 0.13, 0.04, 1.34, 0.35, 0.46, 0.15, 0.34, 

Oo38, 0.20, 0.37 0.33u 0.18c and 0.41 at the places tested. 

The only evidence of any face ignitions which have 

occurred at the mine subsequent to February lOu 1982, is an 

incident which occurred on July 23, 1985, and the details are 

discussed in an MSHA Memorandum of July 26, 1985 (exhibit G-2). 

The facts show that the ignition which was reported by the 

operatorv did not result in any death or serious injury, and 

MSHA concedes that this ignition incident is not within the 

statutory definition of 11 ignition or explosion" found in 

section 103(i), and that such an occurrence, standing along, 

would not trigger a section 103(i) spot inspection cycle. 

MSHA 0 s memorandum report of this incident reflects that a citation was issued pursuant to section 75.301 for inadequate face 

ventilation, and the record reflects that the operator took 

2148 
irrunediate action to abate the violation. The memorandum also 

reflects the presence of .6 percent methane at the face, and 

that all ventilation controls were in compliance with MSHA's 

regulations. The test results taken to support the citation 

reflected .23 percent methane in the immediate return off the 

face, and .10 percent methane in the main return. It also 

reflects 17,000 cubic feet of methane liberation in 24 hours 

at the first noted return location, and 43,000 feet at the 

second. 

Mr. Schoffstall confirmed that the mine does liberate 

methane. However, this is true of practically all underground 

coal mines. MSHA has concluded that the mine has an ongoing 

problem with methane liberation in the mine, yet the only 

witness it presented was Mr. Schoffstall. Except for two air 

measurements taken in October, 1986, and one air sample taken 

in March, 1987, there is no credible evidence in this case 

that MSHA has ever conducted a detailed methane or ventilation 

system survey at the mine to support its generalized and 

speculative conclusions that methane liberation is in fact a 

hazardous problem in the mine. Mr. Schoffstall admitted ~bat 

MSHA has not monitored- the min'e to find out how much methane 

has been liberated i~ the mine (Tr. 140). 

In view of the foregoing, and for the reasons discussed 

in my findings and conclusions which follow, I conclude and 

find that MSHA has failed to present any credible probative 

evidence to support a conclusion that the mine has any ongoing 

hazardous methane problems warranting mine inspections every 

5 days pursuant to section 103(i} of the Act. 

Although MSHA's counsel confirmed that MSHA's reason for 

keeping the mine on a 5 day section 103(i) inspection cycle is 

out of concern for the presence of methane in the mine, 

counsel indicated that the general mine problems as evidenced 

by the abated violations which have been introduced in this 

caseg generally constitute ''other especially hazardous conditions11 which impact on the presence of methane in the mine 

(Tr. 95}. A discussion of these alleged hazardous conditions 

followso 

The record in this case establishes that from February lOu 

1982r the date the mine was placed on a section 103{i) 5-day 

inspection statusu until Februaryu 1985F a period of 3 years, 

the mine was under the enforcement jurisdiction of MSHA's 

Pottsville or Schuylkill-Haven Field Office, and that for the 

past 2 yearsu it has been under the jurisdiction of 

Mr. Schoffstallis Shamokin Field Office. 

2149 
MSHA presented no testimony concerning the prevailing 

mine conditions during the 3-year period that the mine was 

inspected before Mr. Schoffstall's office assumed jurisdiction 

of the mine. The only "evidence" produced by MSHA covering 

that period of time was a copy of a section 104(a) citation 

issued on June 6, 1984, for a roof control violation, and a 

citation issued on June 7, 1984, for a violation of section 

75.1704, for failure to install ladders at an escapeway 

(Exhibits G-3 and G-6). MSHA produced none of the inspectors 

who issued these citations. 

With regard to MSHA's inspection and enforcement actions 

subsequent to February, 1985, MSHA produced copies of nine 

section 104Ca) citations issued during the period March 3, 

1985 through October 22, 1986, for violations of the roof control requirements of section 75.200 (exhibit G-3); six section 

104(a) citations issued during the period July 23, 1985 through 

August 14, 1986, for violations of 75.301, because of inadequate air ventilation in the last open crosscut (exhibit G-4); 

two section 104(a) citations issued on April 10 and August 14, 

1986, for violations of sectipn 75.316 because of missing,permanent stoppings (exhibit G-5); and four section 104Ca) citations issued during March 10, 1985 through October 16, 1985, 

for violations of section 75.1704, because of failures to provide ladders at certain escapeway locations, and failure to 

clean up debris from escapeways (exhibit G-6). One section 

104(b) order was issued on March 10, 1986, for failure to abate 

an escapeway violation which was issued on June 7, 1984 

(exhibit G-6). 

MSHA also failed to produce for testimony any of the 

inspectors who issued the post-February, 1985, citations. 

However, I note that in each instance, the inspectors made 

gravity findings of "reasonably likely," and negligence findings ranging from "moderate" to "low" on the face of the citation forms. Furtherv although Mro Schoffstall reviewed and 

identified the citations during the course of the hearing, he 

conceded that he did not issue any of the citations, and that 

he was not present during any of the inspections which 

resulted in the issuance of the citations~ Consequentlyv MSHA 

has presented no credible or reliable probative testimony concerning the prevailing mine conditions at the time these citations were issuedo 

I have reviewed the copies of the abatement and termination notices concerning all of the aforementioned citations 

which MSHA produced in response to the operator's pretrial 

discovery requests, and I find that with the exception of the 

one section 104Cb) order for failure to abate a violation of 

2150 
section 75.1704, which MSHA had extended for over a year and a 

half, all of the remaining violations were timely abated 

within the initial or extended time fixed by the inspectors 

for abatement. I also find that in the case of one of the 

violations issued on July 24, 1985, for a violation of section 

75.301, MSHA noted that the operator took immediate action to 

abate the violative ventilation conditions, and in another 

violation issued on June 11, 1986, for a violation of section 

75.301, MSHA vacated the violation after finding that sufficient ventilation was in fact provided. 

In response to the operator's pretrial discovery requests 

for an identification and description of any "especially 

hazard condition" which MSHA maintains exists at the mine, and 

the dates on which these conditions were discovered and communicated to the operator, MSHA's counsel provided a narrative 

summary suggesting that the mine has methane problems, roof 

control problems, an inconsistent ventilation system, and a 

need to monitor a projected development toward impounded water 

(See Addendum #6 Answer to Interrogatories). 

' The aforementiqned summary makes reference to certain air 

measurements made on the ventilation intake system on 

October 22 and 30, 1986, and March 23, 1987, and one sample 

taken in an immediate return on March 24, 1987. It also contains a number of undocumented conclusions concerning the mine 

ventilation and roof control, and there is no indication as to 

who may have prepared the summary. 

MSHA's response identifies October 22 and 30, 1986, and 

March 24, 1987, as the dates that the alleged "especially 

hazardous conditions" were discovered, and it refers to the 

previously issued citations concerning violations of sections 

75o316v 75o30lu 75.1704, and 75.200, in support of the alleged 

especially hazardous conditions." These particular citations 

have previous been discussedo However, MSHA has presented 

no testimony or evidence documenting the October, 1986, and 

Marchu 1987u air ventilation tests, and there is no evidence 

that any citations were issued as a result of the air measurements MSHA has characterized in the summary as "especially 

zardous conditions'0 existing in October, 1986, and March, 

19870 

. MSHA failed to produce any of the inspector's who may 

have conducted any methane or ventilation tests or surveys 

subsequent to the February 10, 1982, ignition incident. 

Mr. Schoffstall confirmed that he personally never conducted 

any such tests in the mine, and while he asserted that he has 

accompanied other inspectors when they took such tests, no 

2151 
details were forthcoming, and MSHA produced none of the inspectors. Although Mr. Schoffstall alluded to some nebulous loss 

of 50 percent of air in the mine ventilation circuit, his 

assertion in this regard remains unexplained, and he conceded 

that he performed no test to support any such statement. 

Mr. Schoffstall also conceded that absent the prior ignition 

of February 10, 1982, his perceptions that the mine may have 

some ventilation problems would not necessarily be reason 

enough to place the mine in a section·l03Ci) spot inspection 

status. 

Mr. Schoffstall confirmed that MSHA wishes to keep the 

operator on a section 103(i) spot 5 day inspection cycle 

because of alleged adverse roof conditions, ventilation problems, and excessive methane liberation in the mine. Although 

he is not identified as the source of MSHA's "especially 

hazardous conditions" discovery summary, since he was the only 

MSijA witness called to testify in this case, I assume that the 

information in the summary came from him. As indicated 

earlier, Mr. Schoffstall admitted that he has never conducted 

any air ventilation tests, d,id not issue any of the prior ,ci tations produced by M_SHA, and that he was not present when those 

citations were issued. I believe that Mr. Schoffstall's 

opinions, conclusions, and speculations concerning the roof, 

ventilation, and methane conditions which MSHA has identified 

as the "especially hazardous conditions" warranting continuous 

section 103(i) inspections every 5 days, are based on his 

review of the prior citations and the overall mine compliance 

record, rather than personal experience. Under the circumstances, I find his testimony to be of little credible or 

probative value. 

With regard to the alleged mine ventilation "problems," 

although Mr" Schoffstall was of the opinion that the mine ventilation system was "borderline,n he admitted that the ventilation system under which the mine has operated has MSHA's 

approval" Further, the record in this case reflects that in 

the most recent past 2-years, the operator has been cited only 

two times for violations of the ventilation plan requirements 

of section 750316, because of some missing stoppings, and the 

violations were timely abated" 

With regard to the air ventilation requirements of section 750301, Mr" Schoffstall confirmed that the last time he 

was in the mine to discuss some temporary stoppings, he found 

that the operator was meeting the minimum air ventilation 

requirements of the law (Tr" 66), and that during MSHA's 

recent review of the operator's ventilation plans covering 

developing and anticipated development areas, MSHA has 

2152 
approved the minimum requirements of 3,000 cubic feet of air a 

minute at the working face and 5,000 cubic feet of air a 

minute at the last open crosscut (Tr. 68). While it is true 

that the operator has received six citations in the pas,t 

2 years for violations of section 75.301, all of the cited 

conditions were timely abated, and in one instance, the operator immediately corrected the conditicns, and in another, 

MSHA vacated the citation. 

In view of all of the forgoing circumstances, and absent 

any other credible or probative testimony, I cannot conclude 

that MSHA has established that the mine ventilation system 

constitutes an "especially hazardous condition" warranting 

continuous MSHA inspections every 5 days pursuant to section 

103(i) of the Act. Mr. Schoffstall admitted that any such 

ventilation monitoring may be accomplished by MSHA through its 

regular and follow-up inspections independent of section 

103(i) (Tr. 69, 72). Although Mr. Schoffstall was of the 

opinion that the mine ventilation system is "borderline" and 

"inconsistent," there is no evidence that the operator has 

consistently violated its approved plan. If MSHA believes~ 

that this is the case, then it should seriously reflect on why 

it has continued to approve the operator's plans in the face 

of what it believes to be borderline and inconsistent conduct 

on the part of the operator. 

With regard to the alleged adverse roof conditions in the 

mine, apart from the abated citations which have been issued for 

violations of section 75.200, I find no evidence that the operator has otherwise consistently failed to adhere to the requirements of its approved roof-control plan. Mr. Schoffstall 

confirmed that the operator inherited some problems when he took 

over the mine, and that some of the roof problems in the development areas are inherent to the present natural roof conditions 

the mineo Howeveru Mro Schoffstall confirmed that the operator has constantly timbered and re-timbered mine areas where 

the roof is taking weight" He alluded to a recent unplanned 

roof fall which did not result in any injuries, and he confirmed 

that the operator addressed that problem by developing a new 

area to go around the fallu and establishing a new escapeway 

from that area (Tr" 64)0 

With regard to the operator's planned development in an 

area where there is impounded waterp Mr. Schoffstall confirmed 

that when the mining cycle approaches to within 200 feet of 

the uncharted workings, the operator must start drilling in 

advance to locate the water. However, there is no evidence 

that the operator will not perform the advance work required 

by MSHA's regulations, and Mr. Schoffstall admitted that any 

2153 
such requirements are independent of section 103(i), and that 

this situation would be addressed by MSHA by means of a 

speciql investigation to insure that proper procedures are 

followed (Tr. 75). 

With regard to the four prior escapeway citations for violations of section 75.1704, I take note of the fact that three 

of the citations were timely abated, one was a non-S&S citation, and the abatement time for the remaining citation was 

extended by MSHA for over a year and a half. Mr. Schoffstall 

expressed some concern that a roof fall could block an escapeway, and MSHA's pretrial discovery summary pointed out that a 

recent unplanned fall left the escapeway impassable. However, 

the fact is that the operator immediately addressed and abated 

the problem by mining around the fail and providing another 

escape route. Although one may agree that a roof fall at an 

escapeway may prevent a miner from exiting the mine by that 

particular route, unless it can be shown that an operator 

regularly is out of compliance with section 75.1704, or has 

consistently allowed such conditions to exist to the point 

where it becomes an ongoing hazard in the mine, I cannot Qonclude that isolated and sporadic escapeway citations which are 

timely abated constitutes an "especially hazardous condition" 

warranting inspections every 5 days. 

In view of the foregoing, I cannot conclude that MSHA has 

established that the escapeways, roof conditions, and the 

projected future development which may approach some impounded 

water constitute "especially hazardous conditions" warranting 

continuous MSHA inspections every 5 days pursuant to section 

103(i). 

As previously noted, MSHA's guideline published in the 

1982 Inspector's Manualp states that inspections conducted 

pursuant to section 103(i) of the Act should be made with 

respect to the hazard(s) that caused the mine to be placed in 

this categoryc Mro Schoffstall confirmed that two other mines 

in his district are on section 103(i) 5-day inspection cycles 

because of water impoundment problems, which he considered to 

be a readily identifiable ongoing hazard (Tr. 55)0 I assume 

that once the water problem is curedf those mines will be 

removed from their section 103(i) status. With regard to the 

other mine operator whose mine is in close proximity to 

Mro Rothermelisf and which was on a section 103(i) status for 

7 yearsv because of a methane ignition or explosionf 

Mr. Schoffstall confirmed that it has been removed because of 

improvements in the air ventilation system and a decrease in 

the amount of methane liberated at the face. 

2154 
On the facts of this case, MSHA has suggested that the 

"other especially hazardous conditions" which are present in 

the mine, and which authorizes it to continue to inspect the 

mine every 5 days pursuant to section 103(i}, include not only 

ventilation problems, but problems with roof control, escapeways, and a potential future water impoundment problem. However, the basis for placing the mine on the 5-day inspection 

cycle in the first place was the fact that a methane ignition 

or explosion occurred on February 10, ··1982. MSHA concluded 

that the ignition was the result of improper blasting procedures, and the failure to follow proper ventilation practices. 

The improper ventilation practices were identified as inadequate ventilation controls such as overcasts, regulators, and 

stoppings, and the failure to properly check for methane 

before blasting. I find nothing in MSHA's investigative 

report to suggest that any adverse roof conditions, or the 

lack of inadequate escapeways, played any role in the accident. 

As a matter of fact, item #26, at page 5 of the report 

reflects that after the ignition, all employees were out of 

the mine in 10 minutes. 

On the facts_.o-f this case, there is no question that the 

mine was inititally placed on a section 103Ci> 5-day inspection cycle because of the methane ignition which occurred on 

February 10, 1982. MSHA has tacitly admitted that were it not 

for that incident, the mine would not be on a section 103(i) 

inspection cycle. Mr. Schoffstall admitted that the mine was 

not placed in that category because of any other "especially 

hazardous conditions," and while he conceded that MSHA could 

place the mine in such a "spot inspection hazard" category, it 

has not done so in this case because "he was already in a section 103(i) situation" (Tr. 95). Mr. Schoffstall was of the 

opinion that MSHA "was locked into" that situation and stated 

that i

1

we can u t quit no more than the operator can quit for the 

five year period" (Tr. 107-108). Mr. Schoffstall was of the 

opinion that the 5 year reference in section 103Ci) is "automatic, 01 .and MSHA 1 s counsel was of the view that once an operator is placed in that position, the Act mandates that MSHA 

inspect the mine every 5 working days. When asked how long 

the operator would remain in that inspection cycle, MSHA's 

counsel responded "until it is taken off, 11 and Mr. Schoffstall 

responded "for five years" (Tr. 108). Although I consider 

these responses to be contradictory, MSHA's counsel took the 

position that 5 years is only a minimum time frame, and that 

MSHA could continue to inspect the mine every 5 days beyond 

5 years until it was satisfied that it no longer posed a 

potential hazard for a methane explosion. 

2155 
Mr. Schoffstall conceded that his concerns with the mine 

deal with potential hazards (Tr. 55). He expressed concern 

over oossible blockage of escapeways and restriction of ventilation due to roof falls (Tr. 64). He also expressed concern 

that given the present mine ventilation system, there may be 

insufficient quantities of air available at certain locations 

which are scheduled for development, and whether or not the 

ventilations system may be sufficient to carry away methane 

which may be encountered. Yet, the m±ne continues to operate 

under MSHA approved roof-control and ventilation plans. 

Mr. Schoffstall conceded that roof control or ventilation 

control problems could develop in a mine at any time due to 

unknown facts and uncertainties, particularly in this mine 

which he claims has a "borderline" ventilation system. In my 

view, Mr. Schoffstall's concerns are based on speculative 

possibilities of events which may or may not occur, rather 

than on any credible evidence establishing the existence of 

any definitive "especially hazardous conditions" in the mine. 

All mines pose a potential for hazards connected with 

restricted ventilation and escapeways due to roof falls, ~nd 

inadequate air ventilation due to some breakdown in the ventilation system. However, I find nothing in section 103Ci) 

which authorizes MSHA to keep a mine on a continuous 5-day 

inspection cycle because of potential problems, subsequent 

isolated abated violative conditions which were not directly 

related to the event which initially placed in the mine in a 

section 103(i) posture, or MSHA's subjective undocumented 

judgments that the mine poses a 11 problem. 11 

During closing arguments in this case, MSHA asserted that 

because of the multitude of hazards that are presented in the 

mining industry, especially in cases of small operators such 

as the one in this case, MSHA has discretion to maintain the 

operator here on a protracted 5-day inspection cycle and it 

need not wait until another methane explosion has occurred in 

the mine" Recognizing the fact that its perceived discretion 

may not be exercised in an unreasonable or illegal manner, and 

that it must establish good cause for keeping the operator on 

a continuous ongoing 5-day inspection cycle, MSHA concludes 

that it has established such good cause and has exercised its 

discretion in a reasonable manner. I disagree. I conclude 

and find that the only thing that MSHA has established is that 

the mine experienced a methane or gas explosion on February 10, 

1982 1 which resulted in serious injuries to miners, which in 

turn triggered the placement of the mine on a 5 day section 

103(i) inspection cycle. 

2156 
I further conclude and find that MSHA has produced no 

credible or probative evidence to establish that the mine liberates excessive quantities of methane or other explosive 

gases during its operations, or that there presently exists in 

the mine "other especially hazardous conditions" justifying or 

warranting the continuation of the mine on a section 103(i) 

5-day inspection cycle for as long as this particular operator 

stays in business. In short, I conclude and find that MSHA 

has failed to establish good cause or-reasons for maintaining 

the operator in such a position. I further conclude and find 

that on the facts of this case, MSHA's unreasonable insistence 

on inspecting the mine every 5 days supports the operator's 

contention that such inspections have interfered with its 

right to operate its mine without undue interference from MSHA. 

I believe that MSHA has other available enforcement means at 

its disposal to insure that the operator here stays in compliance with its safety standards short of what I believe to 

be a rather arbitrary application of the requirements of 

section l03(i) of the Act. 

In view of the foregoing findings and conclusions, I, conclude that the ope~ator's 'refusal to allow the MSHA inspectors 

entry to his mine for the purpose of conducting section 103CiJ 

inspections was justified and does not constitute a violation 

of section 103(a) of the Act. Accordingly, the contested citations and order served on the operator ARE VACATED. 

ORDER 

IT IS ORDERED THAT: 

1. Section 104(a) Citation Nos. 2840770 

and 2840772, and section 104(b) Order 

Nao 284077lv ARE VACATED. 

2o MSHAus proposals for assessment of 

civil penalties ARE DENIED AND DISMISSEDo 

~~K~~ Administrative Law Judge 

2157 
Distribution: 

James P. Diehl, Esq., Williamson, Friedberg & Jones, One 

Norwegian Plaza, Pottsville, PA 17901 (Certified Mail) 

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) 

/fb 

2158 
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. 

QUIN LAND COALS, INC. I 

Respondent 

DEC 101987 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 85-169 

A.C.No. 46-02493-03536 

Quinland No. 1 Mine 

DECISION ON REMAND 

Before: Judge Fau,ver 

On September 30, 1987, the Commission remanded this case for 

a decision whether the violation of 30 C.F.R. § 75.200 (charged 

in Order No. 2144040) was the result of an "unwarrantable failure 

to comply with that mandatory safety standard" and for such 

futher proceedings as are then appropriate. 

In Florence Mining Company, PENN 86-297-R and PENN 87-16 

(June 30, 1987), now pending review by the Commission, I held 

that the legislative history of § 104(d) of the Act shows that 

the phrase "unwarrantable failure to comply" means "the failure 

of an operator to abate a condition or practice constituting a 

violation of a mandatory standard it knew or should have known 

sted 1 or the failure to abate such a condition or practice 

because of indifference or lack of reasonable care." I also 

held that I do not interpret the Commission 1 s decision in United 

States Steel Corporation, 6 FMSHRC 1423 (1984), as requiring a 

departure from the legislative history definition of 

"unwarrantable failure to comply." As I stated in Florence 

Mining Company 1 the Commission 1 s statement in United States 

Steelv as follows~ 

but we concur with the Board to the extent that 

an unwarrantable failure to comply may be proved by 

a showing that the violative condition or practice 

was not corrected or remedied, prior to issuance of 

a citation or order, because of indifference, 

willful intent, or a serious lack of reasonable care 

does not purport to be a restrictive definition based upon 

reconsideration of the legislative history, but appears to me to 

2159 
be merely one kind of proof of an "unwarrantable failure to 

comply." 

Whether the legislative history definition, stated in my 

decision in Florence Mining Company, or the example added by the 

Commission in United States Steel Corporation is applied in this 

case, I find on remand that Respondent demonstrated an 

unwarrantable failure to comply with the cited standard. The 

roof conditions were highly dangerous, they were known by mine 

management or should have been known by mine management for at 

least one or two months before the order charging a violation of 

30 C.F.R. § 75.200. The conditions should have been corrected 

long before they were discovered by the inspector on October 11, 

1984. Even though Respondent's witness McClure stated an 

opinion that the roof was adequately supported (an opinion I have 

rejected in favor of Inspector Thompson's opinion of a dangerous 

roof condition), McClure was aware that the roof control plan 

required that broken timbers be replaced and that there were some 

broken timbers that had not been replaced. On balance, I find 

that a preponderance of the substantial, reliable, and probative 

evidence shows that the violative roof condition was kno~n by 

Respondent or should have been.known by Respondent bafore October 

11, 1984, and the fai).ure to correi:t this condition was due to an 

unwarrantable failure to comply with 30 C.J:o ... R. § 75 .200. 

In light of this finding, I find that my previous assessment 

of a civil penalty for $800 is appropriate for this violation. 

ORDER 

WHEREFORE IT IS ORDERED that Respondent shall pay the total 

civil penalties assessed in this case, in the amount of $1,300, 

within 30 days of this Decision on Remand. 

Distribution: 

d)~:r~ 

William Fauver 

Administrative Law Judge 

Sheila K. Cronan, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulev~rd, Arlington, VA 22203 (Certified 

Mail) 

William D. Stoverv Esq., Quinland Coals, Inc., 41 Eagles Road, 

Beckley, WV 25801 (Certified Mail) 

kg 

2160 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

CONSOLIDATION COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

DEC 151987 

CONTEST PROCEEDINGS 

Docket No. WEVA 87-129-R Ci~ation No. 2704568; 3/4/87 

Robinson Run No. 95 Mine 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEVA 87-193 

A. C. No. 46-01318-03752 

Robinson Run No. 95 Mine, 

DECISION 

Appearances: Michael R. Peelish, Esq., Pittsburgh, Pennsylvania 

for, Consolidation Coal Company; 

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

U. s. Department of Labor, Philadelphia, 

Pennsylvania, for the Secretary of Labor. 

Before~ Judge Melick 

These consolidated cases are before me under section 105(d) 

of the Federal Mine Safety and Health Act of 1977u 30 U.S.C. § 

801 et. seq., the 11Act, 11 to challenge a citation and order of 

withdrawal issued by the Secretary of Labor under section 

104(d)(l) of the Act and for review of civil penalties proposed 

by the Secretary for the violations alleged therein.~/ 

~I Section l04(d)(l) of the Act reads as follows: 

If 9 upon any inspection of a coal or other mine, an 

authorized representative of the Secretary finds that there 

has been a violation of any mandatory health or safety 

standard, and if he also finds that, while the conditions 

created by such violation do not cause imminent danger, such 

violation is of such nature as could significantly and 

2161 
At.hearing the Secretary moved for the approval of a 

settlement agreement with the respect to Withdrawal Order No. 

2704572 proposing a reduction in penalty from $750 to $500. I 

considered the representations in support of the motion and 

determined that the profferred settlement was appropriate under 

the criteria set forth in section llOCi> of the Act. That 

determination is now confirmed. Commission Rule 65, 

29 C.F.R. § 2700.65. -

The remaining citation at issue, No. 2704568, alleges a 

"significant and substantial" violation of the mine operator's 

ventilation plan under the regulatory standard at 30 C.F.R. § 

75.316 and charges as follows: 

The haulage doors located at No. 29 block that separated the 

6 left, 4 North intake escapeway from the trolley haulage 

entry were not being maintained reasonably air tight and in 

a workmanlike manner as required by the approved ventilation 

plan. The haulage door beside the track was damaged to the 

extent there was a 22 inch opening across the top of the 

door, and the inby door was leaking air across the top and 

bottom of the door. Th~ air being used to ventilate the 

trolley haulage entry was entering the intake escapeway 

through the doors. The haulage door beside the track was 

damaged on 02-28-87 and new doors were ordered 03-02-87 but 

there was no check curtain or stopping installed to stop the 

air from the trolley haulage entry from entering the intake 

escapeway. 

!/<continuation) Section 104(d)(l) of the Act: 

substantially contribute to the cause and effect of a coal 

or other mine safety or health hazard, and if he finds such 

violation to be caused by an unwarrantable failure of such 

operator to comply with such mandatory health or safety 

standardsu he shall include such finding in any citation 

given to the operator under this Acto If 9 during the same 

inspection or any subsequent inspection of such mine within 

90 days after the issuance of such citation, an authorized 

representative of the Secretacy finds another violation of 

any mandatory health or safety standard and finds such 

violation to be also caused by an unwarrantable fail!.ll'.'e of 

such operator to so complyQ he shall forthwith issue an 

order requiring the operator to cause all persons i3 the 

area affected by such violation, except those persons ~eferred to in subsection (c) to be withdrawn from. and to 

be prohibited .Erom entering, such area until an authorized 

representative of the Secretary determines that such 

violation has been abated. 

2162 
In relevant part, the mine operator's ventilation plan 

provides that "intake escapeway areas being isolated shall 

maintain a constant air pressure from the intake escapeway to the 

track." The plan also provides that "all [haulage] doors will be 

substantially built and maintained in a workmanlike manner." 

The Consolidation Coal Company (Consol) does not dispute the 

allegations set forth in the citation at bar nor does it dispute 

that such allegations constitute a violation of its ventilation 

plan. Consol maintains however that the violation was neither 

"significant and substantial" nor caused by its 11 unwarrantable 

failure" to comply with the ventilation plan. 

Ronald Tulanowski, an inspector for the Federal Mine Safety 

and Health Administration, (MSH~), entered the subject mine on 

March 4, 1987, at about 12:10 a.m. accompanied by company safety 

representative Sandy Eastham and union safety committeeman, Cecil 

Wilson. Proceeding to the 6 left, 4 North longwall section the 

group exited the personnel carrier in the No. 3 (track) entry at 

the No. 29 block. As he walked toward the haulage doors 

Tulanowski saw that the first door was bent out of shape and 

knocked off a hinge. This·left a large opening at the top some 

22 inches wide and-14 feet long through which ventilating air was 

passing from the No. 3 entry to the No. 2 entry (the intake 

escapeway). On the No. 3 entry side of the haulage door closest 

to the No. 3 entry the words "danger bad door" were written in 

chalk but no other markings or warnings were noted on either of 

the two haulage doors. The damaged door could not be rehung so 

it was therefore necessary to erect a temporary check curtain. 

Union safety committeemen Cecil Wilson corroborated Tulanowski in 

essential respects. 

Bastham reportedly told Tulanowski that that the haulage 

door had been damaged on February 28th and that a new door had 

been ordered. Safety Supervisor Richard Paugh also informed 

Tulanowski that while the door had been previously damaged, it 

had also been repaired and was not leaking air. Tulanowski 

concluded that the violation was serious and "significant and. 

substantial" because, in the event of a mine fire, smoke would 

contaminate the intake escapeway and working faces so that 

persons trying to escape thcough the smoke could stumble for lack 

of visibility or be overcome by smo!ce inhalation. It was about 

400 to 500 feet from the doors to the face. 

Tom Harrison was Consol's longwall ~oorjinatoc during this 

time. At hearing he reviewed the preshift and onshift 

examination books beginning with the February 28, 1987, midnight 

shift (12:00 a.m. to 8:00 a.m.). He noted that a ~reshift 

examiner who performed his exam between 5:00 a.m. and 7:15 a.m. 

2163 
on that date, had written the words "air lock door knocked out". 

That defect was noted a9ain on preshift examinations through 

March 1, 1987. The examination for the midnight shift on 

March 2, 1987, showed that the condition had been "corrected" 

(Joint Exhibit No. 2) 

Harrison himself learned of the defective haulage door upon 

reviewing the examination books on March 2nd and went into the 

mine to see the condition himself. Rarrison then made temporary 

repairs on the door and wired it shut creating a "temporary 

stopping". He confirmed that the air was moving in the right 

direction and then wrote the words "danger-bad door" on the No. 3 

entry side of the damaged door. He examined the door again on 

March 3rd at about 9:15 a.m. and it was in the same condition. 

According to Harrison the purpose of the doors was to permit the 

scoop to enter the track entry to pick-up crib blocks. The scoop 

was normally kept in a cross-cut off the No. 2 entry when not in 

use. 

Stanley Nicholas, the long wall foreman, testified that he 

performed the preshift examinations on March 3rd, between 9:00 

p.m. and 11:00 p.m. He visually inspected the airlock doors and 

confirmed that the trackside door was sealed. He recalled seeing 

the notation "danger-6ad door" chalked upon the door. 

Consol argues that the admitted violation was not 

"significant and substantial" because it existed only briefly. 

It maintains that the subject door had been wired shut and sealed 

by Tom Harrison on March 2, 1987. Harrison examined the door 

again on March 3, 1987, around 9:15 p.m. and found that air 

was not leaking into the intake escapeway. Finally it is 

undisputed that that Foreman Stanley Nicholas performed a 

examination between 9:00 p.m. and 11:00 p.m. on March 3, 1987 

and found the doors to be sealed with no air movemant into the 

intake escapewayo Consol therefore maintains that the damage 

to the door cited by Inspector Tulanowski must have been new 

damage that occurred sometime after that preshift examination on 

March 3, 1987, and before the time of the inspection at 

approximately 12:45 aom. on March 4th. 

The evidence in s11pport of Consol vs ar·::rument herein is 

indeed undisputed and it may therefore be inferred that the 

damaged condition observed by Inspector Talanowski leading to nis 

citation occurred sometime between 9:00 p.m. and 12:45 the naxt ~ornin3. However the fact that the inspector discover2d the 

violative condition as soon as he did, does not netJa te the 0 significant 3nd substantial" nature of it. The operative time 

Erame Eor determining the reasonable likelihood of an injury 

includes the expected continuance of normal mining operations. 

Secretary v. Halfway Incorporated, 8 FMSHRC8 (1986). The 

evidence is not suff icent to clearly establish when the new 

2164 
replacement door would have been erected to correct the violative 

condition in this case. Thus the serious hazard of smoka from a 

fire in the track entry which would reasonably be likely to pass 

into the intake escapeway and to the face areas, would be 

expected to exist for some time. Under the circumstances the 

violation was indeed serious and "significant and substantial." 

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

Consol also argues that the violation was not caused by its 

"unwarrantable failure" to co:nply with the cited standard. In 

Zeigler Coal Company, 7 IBMA 280 <1977) the Interioc "Boa.rd of 

Mine Operations Appeals stated as follows: 

[a]n Inspector should find that a violation of any mandatory 

standard was caused by an unwarrantable failure to comply 

with such standard if he determines that the operator 

involved has failed to abate the conditions or practices 

constituting such violation, conditions or practices the 

operator knew or should have known exi3ted or which it 

failed to abate because of a lack of due diligence, or 

because of indifference or lack of reasonable care. 

The Commission has concurred with this definition to the 

extent it has found that an unwarrantable failure to comply may 

be proved by showing that the violative condition or practice was 

not corrected or remedied, prior to the issuance of a citation or 

order, because of indifference, willful intent, or a serious lack 

of reasonable care. United States Steel Corn., v. Secretary of 

Labor, 6 FMSHRC 1423 (1984}. Upon the credible evidence in this 

case it is clear that the violative condition existed for such a 

brief period of time i.e. from sometime between the required 

pre-shift exam between 9:00 p.m. and 11:00 p.m. on March 3rd and 

12:45 a.m. on March 4th that I cannot find that the violation was 

the result of indifference, willful intent, or a serious lack of 

reasonable careo The violation was not therefore caused by the 

"unwarrantable failure" of the operator to co~nply with the cited 

standardo For the same reasons I find Consol to be chargeable 

with lesser negligence. 

In reaching this conclusion I have not disregarded the 

Secretary's argument that the violation had actually existed 

since February 28th when the damaged haulage door was first noted 

in the preshift book and that it remained uncorrected ~t least 

unt11 the second shift on March 2nd, when Mr. Harrison testified 

that he sealed the door. ~he condition noted in the preshi£t 

boo~ on February 28th has not been shown however to be the same 

conditio11 that was cited on March 4th. The operator cannot 

Eairly be charged with "unwarrantable failure" because of an 

earlier condition that has not been shown to have been the same 

or even similar to the condition cited five days later. It is 

2165 
apparent moreover that the haulage door suffered additional 

damage in the few hours before the subject inspection and this 

was the damaged condition cited by Tulanowski on March 4th. 

The Secretary also argues that since only the No. 3 entryside-door was dangered off with the chalk sign "danger-bad door" 

and not the No. 2 entry door through which the scoop would be 

expected to first travel, there was insgfficient warning to the 

scoop operator. In other words the Secretary argues that the No. 

3 entry was not restricted effectively from use even after its 

temporary repair on March 2nd. Again however the fail~re to 

effectively restrict travel through the damaged haulage door 

for periods before the preshift exam between 9:00 p.m. and 

11:00 p.m. on March 3rd cannot fairly be considered in relation 

to the citation at bar. The Secretary has not proven that a 

violation did in fact exist at any time before that preshift 

examination. Inasmuch as the evidence in this case shows that 

the specific violative condition cited herein did not occur until 

sometime after that preshift examination and before 12:45 a.m. on 

March 4th, the failure to have restricted travel during that 

relatively brief period of time was not therefore Jue to 

"indiffarence, willful intent· or a serious lack of reasonable 

care". 

Under the circumstances Citation No. 2704568 must be 

modified to a citation under section 104(a) of the Act. In 

assessing a civil penalty in this case I have also considered 

that the operator is l~rge in size and has a substantial history 

of violations. I have also considered that the cited condition 

was abated as prescribed by the Secretary. Under these 

circumstances I find that a civil penalty of $400 is appropriate. 

ORDER 

Citation No. 2704568 is ~edified to a significant and 

substantial citation under section 104Ca) of the ~c . Order 

2704572 is af fi.rmed. Consolidation Coal Company is hereby 

directed to pay civil penalties of $900 within 30 d ys of the 

date of this decision. 

Gary Mel ck 

Administ tive 

(703) 756 6261 

I 

\ 

\ 

2166 

La~ i 

\ 

\ 

dge 
FEDERAL MINfa ~AFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 15 l9S7 

BOBBY SIZEMORE, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

Docket No. KENT 87-196-D 

BARB-CD-87-24 

NALLY AND HAMILTON ENTERPRISES,~ 

INC. 1 

Respondent 

DECISION 

Appearances: Phyllis Robinson Smith, Esq., Hyden, Kentucky, for 

Complainantc; 

Lloyd~R. Eden's, Esq.u Cline & Edens, Middlesboro, 

Kentucky for Respondent. 

Before: Judge Melick 

This case is before me upon the Complaint of Bobby Sizemore 

under section 105(c)(3) of the Federal Mine Safety and Health Act 

of 1977, 30 u.s.c. § 801 et. seq., the "Act", alleging that.Nally 

and Hamilton Enterprises, Inc. (Nally) discharged him on 

February 13, 1987, in violation of section 105(c)(l) of the Act. 

In its Answer, Nally maintained that the Complaint was neither 

timely filed nor stated a claim for which relief could be granted. 

Following a preliminary hearing on these issues a bench decision 

was issuedo That decis with only non-substantive 

modifications 7 is as fellows 

Of course, the threshold sue in this case is whether 

the original complaint f ed with the Federal Mine 

Safety and Health Review Commission on July 7, 1987, 

was filed timely under the provisions of Section 

105{c)(3 of the Federal Mine Safety and Health Act of 

19770 

The statute provides in relevant part that if the 

Secretary, upon investigation, determines that the 

provisions of this subsection have not been violated, 

the complainant shall have the right within 30 days of 

notice of the Secretary us determinatio.n to file an 

action in his own behalf before the Commission charging 

discrimination or interference in violation of 

paragraph 1. 

2167 
Now the record shows that Mr. Sizemore, the complainant 

in this case, received the Secretary's notice of his 

determination that no discrimination occurred, on ~ay 

7, 1987. This is evidenced~ of course, by the return 

receipt, which is page 3 of Exhibit R-1. The record 

shows also that his complaint was not filed with the 

Commission until July 6, 1987. It appears that the 

Complainant concedes that his complaint was filed 

untimely, but he is arguing that the delay was 

excusable because the mine operator was not prejudiced 

by the delay (and indeed, there seems to be no dispute 

that there was no prejudice to the operator), because 

he was confused about the filing time purportedly 

believing he had 60 days and not 30 days to file, and 

because he called the Commissionn by telephone in 

reference to his complaint, which he maintains should 

be deemed to be a sufficient filing. 

The legislative history of these provisions of the Act 

indeed lend some support to the contentions raised by ~ 

the Complainant, and I will quote from that legislative 

history: "[f]urther, as mentioned above in connection 

with the time fo~ filing.complaints, this 30-day 

limitation may be waived by the Court in appropriate 

circumstances for excusable failure to meet the 

requirement." 

Thus, within the framework of the Act, Commission 

decisions and the legislative history I do have the 

authority to extand the filing deadline if there is an 

excusable ground. 

However, in this case, first of all, I do not find the 

excuse to be credible. First, Mr. Sizemore has shown 

that he can read and understand what he reads. He did 

this both at his deposition and at the hearing here 

today. He read from the Secretary 0 s letter; that is, 

the letter f roiu the Federal Mine Safety and Heal th 

Administration, the agent of the Secretary for purposes 

of thGse proceedings, and that lettar was dated May 6, 

1987, in which it is stated that Mr. Sizemore had 30 

days t::i file with the Commission, and indeed, the 

letter elf provides the address of the Commission. 

Let me quote from that letter~ in part, it says: 

If you should disagree with MSHA's 

determination, you have tha right to pursue 

your action and file a complaint on your own 

2168 
behalf with the Federal Mine Safety and 

Health Review Commission at the following 

address: 

Federal Mine Safety and Health Review 

Commission; 1730 K Street, N.W.; 

Washington, D.C. 20006. 

- Section 105(c) provides that you have the 

right within 30 days of this notice to file 

your own action with the Commission. 

Now Mr. Sizemore admits that he read that letter when 

he received it, and based on that, I find that he did, 

indeed, have actual notice of. the 30-day filing 

requirement. 

Mr. Sizemore nevertheless claims that he was confused 

about some 60-day filing requirement, and. therefore, 

thought that in spite of the actual notice he had, that 

somehow he had actually 60 days in which to file with ~ 

the Commission. Aside from the fact that I find that 

he had actual n6tice of the 30-day requirement and 

understood it, I reject this excuse of alleged 

confusion as not having any Qnderlying basis. In 

particular he has shown no document or source for this 

alleged confusion. There is no letter; there is no 

testimony; there is no document setting forth any 

60-day requirement that led to his alleged confusion. 

Of course, there is a 60-day filing requirement in 

Section 105(c)(2) of the ~ct but there is no allegation 

that he at any time had read that statutory language. 

I therefore reject the contention. 

Finally, Mr. Sizemore claims that he called the 

Commission about the filing requirements and that this 

should be considered or deemed to be an adequate filing. 

However, I find this claim to be also deficient 

because, first of all, he cannot say when he made these 

telephone calls. Indeed it appears most probable, and 

it may reasonably be inferred, that he made these 

telephone calls only in response to Chief Judge 

Merlin's letter dated July 8, 1987, advising him of the 

additional procedures that he must follow to perfect 

his complaint. That letter is a matter of record in 

the official file and concerns certain follow-up 

procedures--for example, to notify the mine operator of 

the filing of· the complaint--that Mr. Sizemore was 

required to follow before the perfection of his ~ctual 

complaint to the Commission. Thus it appears that the 

2169 
· e calla cafu~ :... .. -"--- ... ~ling of the 

complaint. 

Under all these circumstances I must find that the 

original complaint was filed untimely under Section 

105 ( c), 3} of the Act and that. 1...l!z;:•. c: a.ra no grounds for 

allowing a late filing. I therefore find also that the 

prof erred amendment is also untimely as it could only 

relate back to the filing of the original complaint. 

On this basis alone, the complaint and the amended 

complaint must be dismissed and there is no reason to 

proceed to the merits of the case. 

I should say, however, that even assuming that the 

complaint had been timely filed, and that the amendment 

was granted, I do not find that either states a claim 

for which relief may be granted under the provisions of 

Section 105(c)(l) of the Act. 

The original complaint reads as follows: 

On February 13, 1997, at 20 until 4 in the 

morning we were cleaning up the pit. It got 

too narrow for both loaders, so I went to the 

other end to clean up the corner. I loaded 

the last load, dropped the bucket iuto the 

bed of the truck, and got out on the running 

board to talk _to the truckdr i ver to let my 

knee loosen up a little bit. 

I had been out of the loader about 

one-and-a-half minutes. Les came by in his 

truck, pulled up and got up in the loader, 

and told me he didn't want to see this 

damn shit no moreo 6'I asked him what he was 

talking about, and he said, 0 You out on the 

running board talking to the truck drivers. 1 

I told him this was the first time I had been 

out of the loader since dinnertime at 12:30, 

and it was 20 until 4, and my knee stiffened 

:ip on ,ne. 

He said, "I 1 ve had about all I can take of 

you. Now get your ass back to work and clean 

this up. •u 

So I went back to work and worked until 

cleaning time at 4:30. I parked my loader, 

and he pulled up beside me, and I walked over 

2170 
to the truck and told him from now on when he 

wanted something done, he didn't have to cuss 

at me. He shoved his truck in park and told 

me he was the boss and would cuss anytime he 

wanted to. So he got out of his truck and I 

walked to the other side and told him he 

might cuss, but he wasn't going to cuss at me. 

He said he would cuss at me aIJ,ytime he wanted 

to, and took his left hand and put on my 

right shoulder, shoving me and hitting me in 

the ribs with his right hand. we then 

proceeded to fight, and I got fired. If 

found in my favor, I want my job back with 

full pay and 11 benefits, including medical 

benefits paid with no reduction in employment 

time" 

Now the proposed amended complaint charges as follows: 

Mr. Sizemore testified at his deposition on October 12, 

1987, that he had a problem with his knee when he 

operated equipment for a long time, and that the knee 

would stiffen-up on him. 

Mr. Sizemore had been advised that he was not allowed 

to take breaks from running the equipment, but could 

occasionally get out and stretch his legs, as long as 

it did not look like a break. 

On the occasion that caused the altercation, this was what 

he was doing. If Mr. Sizemore had been permitted to take 

the legally mandated breaks, this incident would not have 

occurred, and the failure to permit breakd is a violation of 

the Mine Safety and Health Act. 

As stated today at these proceedings, the motion to amend 

the original complaint has actually been further amended in that 

it is now not claimed that it was a violation of the Mine Safety 

and Health Act for the alleged failure of the operator to allow 

le;rally mandated work breaks, but it is a violation of a Kentucky 

wage and hour law that apparently requires an employer to grant 

ten minute breaks for each four hours of work. 

Let me read, first of allv from Section 105(c)(l) of the Act. 

It provides, in essence, that: 

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 

2171 
statutory rights of any miner because such 

miner has filed or made a complaint under or 

related to this Act, including a complaint 

notifying the operator or the operator's 

agent of an alleged danger or safety or 

health violation in a mine, or because such 

miner has institutued or caused to be 

instituted any oroceeding under or related to 

this Act, or be~ause of the exercise of such 

miner of any statutory right afforded by this 

Act. 

The original complaint asserts only that, in essence, Mr. 

Sizemore was fired because he was involved in a fight, which 

was started by an argument over his being "cussed" at by his 

supervisor. While it certainly may not have been pleasant 

or nice for his supervisor to "cuss" at him, this certainly 

has nothing to do with the purposes or the specific 

statutory protections afforded by Section 105(c)(l). 

In the amended complaint, Mr. Sizemore asserts, in essence, 

that the Respondent v_iolated'a Kentucky wage and hour law 

regarding ten-minute breaks, and that his was the basis for 

his cussing and fighting, and therefore, somehow the 

Complainant is thereby protected under the Mine Safety Act. 

Howeverv there is no allegation anywhere in the original or 

amended complaint that Mr. Sizemore had filed or made a 

complaint under or related to the Act which might be 

construed as even incorporating a complaint notifying the 

operator or the operator's agent of an alleged danger or 

safety or health violation in the mine. Nor certainly was 

there any allegation that Mr. Sizemore had instituted or 

caused any proceeding to be instituted under or related to 

the Act" For that matterq there is no allegation that Mro 

Sizemore exercised any statutory right afforded by the Acto 

F lyr there is no allegation that MrQ Sizemore at any 

time exercised any refusal to work or work refusal as that 

is construed within the terms of the Mine Safety Act. 

Thus: even assuming that the original complaint was filed 

time , and assuming that the motio11 to amend the complaint 

was grantede I would .nevertheless find that the Complainant 

would have in any event, failed to state ~ claiill for which 

relief may be granted under Section 105(c)(l) of the Act, 

and the complaints would in any event therefore be 

dismissed a 

Under the circumstances 1 this cF1.se is therefore dismissed. 

rhere is no reason then to reach the merits of the case, and 

2172 
I will prepare a final written decision incorporating this 

bench decision which will be prepared upon receipt of the 

transcript in these proceedings, and that will constitute 

the final disposition of this case. 

ORDER 

The bench decision rendered in this case is hereby confirmed 

and this case is dismissed. 

Distribution: 

Phyllis Robinson Smith, Esq., P.O. Box 

(Certified Mail) 

Law Judge 

Hyden, KY 41749 

Lloyd R. Edens, Esq., Cline & Edens, P.O. Drawer 2220, 

Middlesboro, Kentucky 40965 (Certified Mail) 

npt 

2173 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 161987 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEAL'rH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

CONSOLIDATION COAL COMPANY, 

Contest:ant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINIS'rRATION (MSHA), 

Respondent 

Docket No. WEVA 87-69 

A.C. No. 46-01453-03742 

Humphrey No. 7 Mine 

,: CONTEST PROCEEDINGS 

Docket No. WEVA 86-449-R 

Order No. 2713396; 7/21/86 

Docket No. WEVA 86-450-R 

Order No. 2713397; 7/21/86 

Humphrey No. 7 Mine 

DECISIONS 

Appearances: Therese I. Salus, Esq.u Office of the 

Solicitor 0 UoSo Department of Laboru 

Philadelphia 0 Pennsylv~niau for the 

Petitioner/Respondent, 

Beforei 

Michael Ro Peelish, Esq., Consolidation Coal 

Company, Pittsburgh, Pennsylvania, for the 

Respondent/Contestant. 

Judge Koutras 

Statement of the Case 

These consolidated proceedings concern a civil penalty 

proposal filed by MSHA against the Consolidation Coal Company 

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 assessmant in the amount of $900 for an alleged violation of mandatory safety training standard 30 C.F.R. § 48.7, 

as stated in a section 104(a) "S&S" Citation No. 2713397, 

issued by an MSHA inspector on July 21, 1986, (Docket No. 

2174 
WEVA 87-69). Docket No. WEVA 86-450-R is the contest filed by 

the Consolidation Coal Company challenging the legality of the 

citation and the inspector's special "S&S" findings. Docket 

No. WEVA 86-449-R is the contest challenging the legality of a 

section 104(g)(l) Withdrawal Order No. 2713396, issued by the 

inspector on July 21, 1986, in conjunction with the aforesaid 

contested citation. The order was issued to withdraw an 

alleged untrained miner from the mine until such time that his 

training has been completed. 

A consolidated hearing was held in Morgantown, 

West Virginia, and the parties were afforded an opportunity to 

file posthearing bri s, and they have done so. I have considered all of the arguments made by the parties in these proceedings in my adjudication of these matters. 

Issues 

The issues ented are Cl> whether the condition or 

practice cited by the inspector constituted a violation of the 

cited mandatory saf training standard, and if so, (2) the 

appropriate civil pftnalty to be assessed for the violation, 

taking into accourit the statutory civil penalty criteria found 

in section llO(i) of the Act. Also at issue is the question 

of whether or not the alleged violation was significant and 

substantial (S&S), and whether or not the withdrawal of the 

alleged untrained miner was justified. 

Additional issues raised by the parties are identified 

and disposed of in the course of these decisions. 

Applicable Statutory and Regulatory Provisions 

1. The Mine Safety and Health Act of 1977, 

Pub" L. 95-164, 30 U.SoCo § 801 et seq. 

2. Commission Rulesu 29 C.F.R. § 2700.l et~· 

3o 30 C.F.R. § 48.7. 

Procedural Ruling 

MSHA 1 s motion to amend Citation No. 2713397 to lect an 

alleged violation of 30 C.F.R. § 48.7 the training requirements appli to underground mines, rather than section 

47.27, the standards applicable to surface mines, was granted 

from the bench (Tr. 10-11). 

2175 
Stipulations 

Tae parties stipulated to the following: 

1. The subject mine is owned and operated 

by the respondent/contestant. 

2. The subject mine and the 

respondent/contestant are subject to the jurisdiction of the Act. 

3. The presiding judge has jurisdiction 

to hear and decide these cases. 

4. The citation and order ·issued in these 

proceedings were properly served on the 

respondent/contestant by an agent of the 

Secretary of Labor, and they may be admitted as 

part of the record in these proceedings for the 

purpose of establishing that they were properly 

issued and not for the purpose of establishing 

the truth of the conditions or practices stated 

therein. · 

5. The parties agree to the authenticity 

of their respective hearing exhibits. 

6. The cited conditions or practices were 

timely abated by the respondent/contestant. 

7. The 1986 annual coal production for 

the subject mine was 2,809,067 tons. The annual 

coal production for the respondent/contestant 

for all of its mines was 38u068u032 tons. 

8. The assessment of a civil penal for 

the violation in question will not adversely 

affect the respondent/contestantus ability to 

continue in businesso 

9o The respondent/contestant~s history of 

prior violations for the 2-year period prior to - the issuance of the citation in question 

consists of 778 violations issued during 946 

inspection days, or .82 assessed violations per 

inspection day" 

2176 
The parties also agreed that in the event the citation is 

affirmed, the subsequently issued section 104Cg)(l) order 

should be affirmed. 

Discussion 

The essential facts in this case are not in dispute. On 

July 19, 1986, an accident occurred in the mine when an 

employee was pinned against a coal rib by an S&S scoop operated by another employee, Brad Slaman. The accident victim 

was hospitalized and lost time from work. MSHA Inspector 

Leonidas w. Gibson conducted an accident investigation on 

July 21, 1986. In addition to interviewing mine personnel, 

Mr. Gibson reviewed Mr. Slaman's training records maintained 

by Consol pursuant to 30 C.F.R. § 48.9. Although those 

records revealed that Mr. Slaman had been properly trained in 

the safe operation of several pieces of equipment, including a 

personnel carrier, shuttle car, and loader, Mr. Gibson could 

find no training records indicating that Mr. Slaman was 

trained in the operation of a scoop, and Consol's safety 

department could not produce any such records. Further, 

although Mr. Slaman advised the inspector that he had received 

scoop training, he too was unable to produce copies of any 

scoop training certificates. Consequently, the inspector 

concluded that Mr. Slaman had not been trained in the operation of a scoop, and he issued a citation charging a violation 

of 30 C.F.R. § 48.7. 

The citations and order issued in these proceedings are 

as follows: 

Docket Nos. WEVA 87-69 and WEVA 86-450-R 

Section 104(a) Citation No. 2713397u July 21, 1986; 

states as follows~ 

'A scoop operator, Brad Slaman, did not 

receive task training in the safe procedures of 

operating a scoop, in LWG before transporting 

longwall equipment in the 7-Butt section. A 

104-G-a Order No. 2713396 and a 107(a) Order 

No. 2711441 have been issued in conjunction 

with this 104(a) citation. 

Walter D. Hunt, Section Foreman, was in 

charge of this section. 

2177 
Docket No. WEVA 86-448-R 

Section 104(g)(l) Order No. 2713396. July 21, 1986, 

states as follows: 

A scoop operator Brad Slaman did not 

receive task training in the safe procedures of 

operating a scoop before transporting longwall 

equipment in the 7-Butt section, .which resulted 

in a serious accident to another miner. 

This order is to remove Brad Slaman from 

the mine until training has been completed in 

the safe procedures of operating a scoop. 

A 104(a) citation has been issued in 

conjunction with this order. Walter D. Hunt, 

Section Foremanu was in charge of this section. 

MSHA 1 s Testimony and Evidence 

Leonidas w. Gibsqn, testified that he is a retired MSHA 

inspector, and he confirmed that he participated in an accident investigation at the mine on July 21, 1986, and as a 

result of that investigation he issued Citation No. 2713397, 

including the modifications attached thereto (Tr. 15-16, 

Exhibit G-1). 

Mr. Gibson stated that mandatory training section 48.7 

requires that a miner assigned to a particular piece of equipment such as a scoop be trained so that he is able to operate 

it in a safe manner. Mr. Gibson confirmed that the standards 

require that such training be recorded, and he confirmed that 

he issued the citation after determining that the operator's 

records d not reflect that Mr. Slaman was trained in the 

operation the scoop he was operating at the time of the 

accident. Mr. Gibson stated that Mr. Stan Brozik, the mine 

safety directoru produced training records which reflected 

that Mr. Slaman had operated several different pieces of equipmentF but not an S&S scoop. Mr. Gibson produced a copy of his 

notes made at the time of his inspection, and he confirmed 

that the company .records produced by Mr. Brozik indicated the 

types of equipment for which Mro Slaman was trained to operatep and that it did not include a scoop (Tro 18-14, Exhibit 

) 0 

Mr. Gibson stated that Mr. Slaman was operating an S&S 

scoop at the time of the accident. He confirmed that when he 

discussed the training records with Mr. Brozik, he stated that 

2178 
Mr. Slaman had been trained on the scoop. Mr. Gibson also 

confirmed that when he later spoke with Mr. Slaman, Mr. Slaman 

informed him that he had been trained on the scoop but could 

not find his training record to confirm this. Mr. Gibson subsequently asked Mr. Brozik again about the training records, 

and Mr. Brozik could not produce any record of Mr. Slaman's 

scoop training (Tr. 26). 

Mr. Gibson confirmed that he did· not issue a citation for 

a violation of 48.9, which requires the mine operator to keep 

training records, because Mr. Brozik did produce records 

reflecting Mr. Slaman's training. Mr. Gibson stated,that his 

conclusion that Mr. Slaman was not following normal operating 

procedures while operating the scoop was based on Mr. Slaman 1 s 

admission during his investigation that he did not know the 

location of his scoop helper and did not know that he had 

moved back to the corner of the machine when he placed the 

scoop in operation to move a piece of equipment (Tr. 31-32). 

Mr. Gibson stated that the purpose of section 48.7 is to 

prevent accidents, and that if a person is properly trained 

and knows how to operate a scoop in a safe manner, he can 

prevent himself arid someone else from being injured (Tr. 33). 

Mr. Gibson confirmed that the injury to the helper 

resulted from Mr. Slaman's failure to know his location when 

he started and moved the scoop. The injured man was 

hospitalized, but he subsequently returned to work (Tr. 34). 

Mr. Gibson stated that the operator was aware that 

Mr. Slaman was not trained in the operation of the scoop 

because it had no training record to confirm his training, and 

that this was the operator's responsibility. Mr. Gibson 

confirmed that the violation was abated after Mr. Slaman was 

re-trained, and he returned to work on July 23v 1986, and the 

citation was terminated at that time (Tro 35)o 

Mr. Gibson confirmed that he issued a section 104(g)(l) 

order in conjunction with the citation in order to prevent 

anyone else from being injured, to insure that Mr. Slaman was 

re-trained so that could do a better job in the £uture 1 and 

to remove Mro Slaman from operating the scoop until he 

received training in its operation (Tr. 35-38, exhibit G-2). 

Mro Gib5on believed that the gravity was highly likely to 

produce an injury or illness because one person was injured 

and others could have been injured if Mr. Slaman were not 

properly trained (Tr. 38-39)0 

2179 
On cross-examination, Mr. Gibson confirmed that he based 

his citation for a violation of section 48.7 on the fact that 

the comp~ny had no Form 5023 in Mr. Slaman's file (Tr. 46). 

Mr. Gibson stated that in his experience as an MSHA inspector 

and investigator, it is not uncmrunon for a trained employee to 

be involved in an accident (Tr. 47). He confirmed that a 

gravity finding of "high" or ~highly likely to happen" could 

be modified to "moderate" if an employee involved in an 

accident had received training (Tr. 48). 

Mr. Gibson stated that Mr. Brozik did not advise him why 

he could not find a record of Mr. Slaman's scoop training, and 

he could not recall Mr. Brozik telling him that Mr. Slaman had 

previously worked at another Consol operation in the 

Mannington/Fairmont area (Tr. 50). He also confirmed that 

Mr. Brozik did not tell him that Mr. Slaman had been 

"grandfathered" in terms of any training requirements, or that 

he had worked at another Consol operation (Tr. 51). 

Mr. Gibson confirmed that if a miner is trained at one 

mine or another company and there is a record of that training, he would not nec_essar ily be required to be trained again 

when he transferred-jobs to another company, but he would have 

to be trained on the particular type of machine that he is 

operating. He would also have to be re-trained if the machine 

is different from the one that he previously operated. If his 

machine controls are different or if the seating position is 

different, he would have to be re-trained (Tr. 51). 

Mr. Gibson described the similar characteristic's and 

parts of a hinged scoop which articulates at a hinge point 

normally located at the center of the machine (Tr. 52-53). He 

confirmed that a scoop is a versatile piece of equipment, and 

that it is used to carry and move longwall equipment and pan 

lines (Tro 53)o Mro Gibson stated that in his mining experience1 he has never considered a Unitrac to be synonymous with 

a scoopo He believed that a Unitrac was a different piece of 

equipment and "some type of longwall equipment" (Tr. 54). 

Mr. Gibson confirmed that he recently learned that a Unitrac 

may be a scoop when MSHA's attorney informed him of this (Tr. 

5 5) 0 

In response to further questions, Mr. Gibson stated that 

during his investigation, Mr. Slaman advised him that he 

observed his helper in front of him, and that when he put the 

scoop in motion, the helper was beside him and was pinned 

against the rib when the scooo swiveled as he maneuvered it to 

move the longwall pan line. ~r. Gibson believed that there 

was a lack of communication between Mr. Slaman and his helper, 

2180 
and that Mr. Slaman did not determine the helper's location 

before moving the machine. He assumed that this was the case 

because the helper was pinned against the rib by the swiveling 

action of the scoop when Mr. Slaman put it in motion. Proper 

training requires that a scoop operator makes sure that h.is 

helper is in the clear before he operates his machine. Since 

the machine is hinged and moves quickly, the scoop operator is 

not supposed to have a man standing near him when he is 

operating the machine (Tr. 57-60). 

Respondent's Testimony and Evidence 

Brad Slaman, belt motorman, testified that he has worked 

for Consol at the Humphrey No. 7 Mine for 8 or 9 years. Prior 

to that, he worked at the Consol No. 20 Mine from October, 

1977, for a little over a year. He was laid off from that 

mine and then went to work for Republic Steel. Five or 

6 months elapsed from the time he worked at the No. 20 Mine 

until he went to work at the Humphrey Mine. He worked at the 

No. 20 Mine as a general laborer shoveling belts, and 

delivering cribs and supplies. In performing these duties, he 

had occasion to operate a Upitrac. He described the Unitrac 

as a machine basic.ally the same as a scoop, and he indicated 

that it steers the same and pivots in the middle (Tr. 61-63). 

Mr. Slaman stated that he was trained in the operation of 

the Unitrac at the Consol No. 20 Mine by safety supervisor 

Rudy Banick sometime in 1978, and that the training consisted 

of Mr. Banick explaining to him how the machine operated and 

reading him the Safe Work Instructions (SWI) for the operation 

of the machine, including safety items such as watching out 

for his helper, checking the machine over, checking the oil, 

and ringing the bell before putting it in operation (Tr. 64). 

Mr. Slaman stated that after his itial training on the 

Unitrac scoop, he would operate the machine several times a 

in order to stay trained in its operation, and he 

believed that he on had to operate it at least once in 

12 months to meet MSHA 1 s training requirements. It was also 

his understanding that he had to be trained if the machine was 

modified. Mr. Slaman was not sure that the Unitrac on which 

he was trained Mr. Banick at the No. 20 Mine was a S&S 

model, but he believed that all of Consol's scoops were S&S 

ls (Tr o 65) • 

~r. Slarnan sta that when he went to work at the 

Humphrey Noo 7 Minef he operated equipment similar to that 

which he operated at the Noo 20 Mine, and that from 1978 when 

he was initial trained, until 1986 when the accident 
occurred, he estimated that he had operated a scoop "a couple 

hundred" times, and that since 1981 and 1982 he has operated a 

scoop "pretty continuously" (Tr. 66). 

Mr. Slarnan stated that while employed at the Humphrey 

Mine he was trained in the operation of a scoop by at least 10 

individuals, including Norman Cutright, and David Hunt. He 

confirmed that Mr. Hunt retrained him on the scoop after the 

accident, and that prior to that time·he observed him operating the scoop, and had retrained him several times. He also 

received scoop training from one Charlie Johnson. Mr. Hunt's 

training included a revie~ of scoop safety topics at least 

three times, and instructions in the operation of a scoop 

while working under Mr. Hunt's supervision. Prior to assign~ 

ing him a task, Mr. Hunt would inquire as to his scoop training, and Mr. Slarnan informed Mr. Hunt that he was trained in 

the operation of the scoop (Tr. 67-69). 

Mr. Slaman stated that after being trained by Mr. Hunt, 

he would give him a "blue retraining slip," and since they 

were dirty, Mr. Slaman would place them in his pocket or 

dinner bucket. His wife would either throw them away or 

launder them with his-shirts and he has not retained them. He 

has also moved several times, and he has not been able to find 

any of the training slips (Tr. 70). 

Mr. Slaman stated that Norman Cutright, the longwall boss 

at the Humphrey Mine has trained him in the operation of a 

scoop, and that Mr. Hunt had trained him in the operation of a 

Model 601 S&S scoop, the same type of scoop he was operating 

at the time of the accident (Tr. 71). 

Mr. Slaman stated that his duties as a longwall shieldman 

required him to operate a scoop, and that Mr. Cutright trained 

him on the scoop before two longwall moves in 1983 and 1984. 

Since longwall moves are dangerous, experienced scoop men are 

necessari assigned to this work. Mr. Slaman also operated 

scoops while doing work other than longwall moves, and he 

described this work (Tr. 72). During the 2 years that he 

worked under Mr. Cutright 1 s supervision from 1983 to 1984e 

Mr. Slaman estimated that he operated a scoop at least 60 or 

70 times (Tr. 73). 

Referring to exhibit G-4, the inspector 1 s notes and 

sketch of the accident scene, Mr. Slaman explained what 

happened on the day of the accident. He stated that he was in 

the process of moving a section of the pan line along the left 

rib and that the pan line was in front of the scoop. He and 

his helper were discussing how the pan line would be moved, 

2182 
and the helper was about 15 feet in front of the scoop and in 

his view. Mr. Slaman then started the machine and rang the 

bell and shoved the pan line against the rib with the scoop. 

The scoop pivoted toward the right rib and he heard a grunt 

and turned around and observed that he had pinned the helper 

against the rib. Mr. Slaman stated that his line-of-sight was 

toward the left-hand rib and that when he advanced the scoop 

to move the pan line, he could not recall where the helper was 

located because he was studying the pan line. He t 

recalled the helper being in front of him, and he believed 

that the helper was watching him move the pan line and was not 

paying attention to the scoop. Mr. Slaman stated that "I 

didn't watch him, so I really don't know what he did" {Tr. 

73-76). 

Mr. Slaman stated that the Unitrac 488 scoop on which he 

was trained at the No. 20 Mine had the same center pivot 

point, steered the same, and had the same bucket and battery 

as the 601 S&S scoop. The Unitrac was "a hair smal " than 

the S&S scoop (Tr. 76-77). 

On cross-examination~. Mr. Slaman reviewed his prior 

mining work and ~xperience, and the scoop training he received 

at the No. 20 Mine. He confirmed that he received initial 

training on the scoop at the Humphrey Mine sometime in 1980, 

and that the training consisted of a review of the safety 

aspects of the scoop, reading the SWI, and his boss observing 

him operating the machine and discussing specific 11 do 1 s and 

dent's" with him. Mr. Slaman stated that he operated the 

scoop 20 times in 1980, 30-40 times in 1981, 50-60 times in 

1982, 1983, and 1984, and 20-30 times in 1985 and 1986. 

During these periods he operated the 601 S&S scoop, and on 

occasion operated an Elkhorn scoop, and a 610 scoop which were 

larger than the 601 (Tr. 77-83). 

Mr. Slaman described his various jobs and duties at the 

mine requiring him to operate scoops, and he confirmed that 

there is no specific job classification of scoop operator at 

the Humphrey Mine (Tr. 84-86). 

Mr. Slaman confirmed that on each occasion when was 

trained, he received a nblue training slip,n but t no 

longer has them, and they were either washed in the laundry or 

thrown away. He stated that Mr. Hunt trained him on the 601 

S&S scoop sometime between the end of 1985 and the end of 

1986, and that Mr. Hunt observed him operating the machine to 

make sure that he was operating it s Mr. Slaman confirmed that Mr. Hunt gave him a "retraining slip" after he 

observed him operating the machine (Tr. 88-89). Mr. Slaman 

2183 
explained that he threw away his training slips because they 

were "dirty and grubby you end up sticking it in your pocket 

or forget about them." Mr. Slaman stated that the individuals 

who trained him retained a copy of the training slip, and they 

are required to turn it in to the company, and he assumed that 

this was done in his case (Tr. 90). 

Mr. Slaman stated that 2 or 3 weeks before the accident 

Charlie Johnson trained him on the scoop (Tr. 91), and that he 

was also trained by Norman Cutright. Mr. Cutright advised him 

that he turned his training slips into the safety department, 

and Mr. Slaman indicated that as far as he knew the safety 

department only had records of his training at the No. 20 Mine 

(Tr. 95). Mr. Slaman stated that the training he received 

from Mr. Johnson consisted of Mr. Johnson reading the "SWI 

Form" to him and reviewing the safety aspects of the scoop. 

Mr. Johnson wanted to insure that everyone had their training 

up to date in anticipation of the longwall, and he did not 

review the machine controls because "we were all familiar with 

the scoop anyway" (Tr. 96-97). Mr. Slaman confirmed that he 

received a scoop training certificate from Mr. Johnson, and 

stated that 4 or 5-days prior.to the hearing, Mr. Johnson 

informed him that he had turned a copy in to the safety department as was his usual practice (Tr. 98). 

Mr. Slaman 'confirmed that copies of all training slips 

are usually kept in his file with the safety department, and 

that those records do contain copies of training slips for 

other equipment for which he was trained (Tr. 98). He confirmed that he was trained in the operation of a 488 Unitrac 

at the No. 20 Mine in 1977 to the end of 1978, and that he has 

been in the Humphrey No. 7 Mine for approximately 8 or 9 years 

(Tr. 99). 

Mr. Slaman stated that the 601 and 610 S&S scoops are 

basically the same, except that the 610 is bigger and the 

operator's compartment is at the rear of the machine, and the 

operator sits at the front of the 601 model. The controls, 

throttle, braking mechanisms, hydraulics, and steering are the 

same for both machines, but the visibility is reduced in a 

610, and he did not consider it to be a good piece 0£ 

machinery because of its larger size, and the fact that one 

needed to have a lper with him because he cannot see the 

blade from the operator~s compartment. In his opinion, the 

two scoops operate the same way, and he does not have to be 

trained when going from one machine to the other (Tr" 

104-106) 0 

2184 
Mr. Slaman described the 488 Unitrac scoop which he 

operated in the No. 20 Mine, and confirmed that it is not used 

at the Humphrey No. 7 Mine. He stated that S&S scoops are 

used in this mine, and that he was operating a standard 601 

S&S scoop at the time of the accident, and that the 610 model 

is rarely used except for heavy work. He confirmed that the 

operator's compartment on the 601 model is at the front, the 

same as on the Unitrac, and that the controls, brakes, and 

tramming pedals are also the same as the Unitrac, and that 

Mr. Hunt, Mr. Johnson, and Mr. Cutright all trained him on the 

601. He also confirmed that he operated an Elkhorn Scoop, 

four or five times, but could not recall when, and tnat his 

training on that model was exactly like the training he 

received for the 601 (Tr. 109-111}. 

Mr. Slaman explained that the "retraining" he received to 

abate the violation consisted of someone re-reading the Safe 

Work Instructions CSWI) to him (Tr. 117). He was then 

required to sign a safety training form attesting to the fact 

that the SWI was read to him, and that the training form is 

maintained by the safety department. The SWI's are kept on 

the section where the scoo~s are operated, as well as in the 

safety department- (Tr. 124). 

Norman Cutright testified that he has worked at the 

Humphrey No. 7 Mine for over 17 years, and has served as a 

supervisor for 6 years. He has served as a longwall boss and 

section foreman, and confirmed that he was Mr. Slaman 1 s supervisor for approximately a year and a half until a realignment 

in December, 1984. He also confirmed that during this period, 

he trained Mr. Slaman in the operation of a scoop, using the 

applicable Safe Work Instructions CSWI) for scoop operators, 

and he identified a copy of the SWI used for this training, 

and explained the respondent 1 s MSHA approved training procedures he followed (Tr. 130-134; Exhibit R-1). 

Mr. Cutright stated that he trained Mr. Slaman in the 

operation of a scoop for the longwall move, and that during 

such moves "you need a real good man to run the scoop" (Tr. 

136). He confirmed that he trained Mr. Slaman for one longwall move in February, 1984, using the SWIR and he explained 

how he did the training. He confirmed that at that time, 

~r. Slaman was an experienced scoop operatorp and that he 

observed him operating the scoop as part of his training. At 

th~ completion of this training, Mr. Cutright stated that he 

filled out a "5023 Form" kept in his foreman°s book, gave 

Mr. Slaman his signed copy, and turned the remaining copies 

into the safety department. Mr. Cutright assumed they were 

placed in the company files (Tr. 136-138). 

2185 
Mr. Cutright stated that subsequent to the aforementioned 

training, he trained Mr. Slaman again when he worked for him 

as a shieldman for a second longwall move which occurred sometime in September, 1984, and that he regularly observed 

Mr. Slaman operating a scoop during the time he worked under 

his supervision. This latter training consisted of the same 

SWI review procedures, and Mr. Cutright confirmed that he 

followed the same routine in documenting Mr. Slaman's training 

(Tr. 139). He further confirmed that on both occasions, 

Mr. Slaman was trained in the operation of a 601 S&S Scoop, 

and he considered Mr. Slaman to be a very good scoop operator. 

He confirmed that Mr. Slaman was selected for the longwall 

work because of his experience, and that this is critical due 

to the hazardous nature of longwall face work and that "you 

just don't put anybody on to run a scoop" {Tr. 141). 

On cross-examination, Mr. Cutright stated that the SWI 

(exhibit R-1) pertaining to a battery-operated scoop, was the 

same one he used to train Mr. Slaman in 1984, and he confirmed 

that the scoops have not changed in the past 3 or 4 years (Tr. 

142). He also confirmed that he has trained Mr. Slaman on 

other equipment, and that there have been no changes in the 

601 S&S scoop (Tr. 1431. He stated that when he trained 

Mr. Slaman in 1984, he did not review or verify his prior 

training, and that the February training was over a period of 

2 days and probably not longer because Mr. Slaman was an 

experienced scoop operator, and the training included supervised personal scoop operational instructions and sessions, 

and practice sessions (Tr. 145). Mr. Slaman was again trained 

6 or 7 months later as a matter of routine to insure that 

everyone on the longwall knew what was going on, and this 

training session included supervised operational sessions 

similar to the February training (Tr. 146). Mr. Cutright 

confirmed that he has never reviewed Mr. Slaman's training 

records (Tr. 147). 

Mro Cutright confirmed that the September, 1984, training 

consisted of his observations of Mr. Slaman operating the 

scoop, and did not include practice sessions because 

Mr. Slaman had been trained in that phase in February and it 

was "just a retraining type thing" (Tr. 148). Mr. Cutright 

confirmed that he was aware of the fact that there is no 

record in the safety department of Mr. Slamanus training, and 

he agreed that was unusual not to have those records (Tr. 

149)0 He could not further explain the absence of the 

records? and he confirmed that he has trained other miners, 

but has no idea whether or not their records are on file in 

the safety department (Tr. 150)" 

2186 
Mr. Cutright stated that a Unitrac is a scoop of a different size, and confirmed that he had never seen one. He indicated that the term "Unitrac" is not one used in his mine, and 

that the term is sometimes mentioned by miners from different 

mines. When asked whether a 601 scoop is a Unitrac, he 

responded "I suppose it is, depending on what mine you're working in, I guess," and that "there are different names -- different mines use different names for some things" {Tr. 152). 

He confirmed that the scoop which Mr. Slaman was operating at 

the time of the accident was the same type of 601 scoop that 

he trained him on, and that since that training, he has not 

trained Mr. Slaman further because he was assigned to a different shift after the realignment (Tr. 153). 

David Hunt testified that he has been employed at the 

Humphrey No. 7 Mine for 16 years, serves as an assistant shift 

foreman, and that he has been a supervisor for 10 years. He 

confirmed that he has supervised Mr. Slaman since the realignment in 1985, until a few months ago when he bid on a belt job. 

Mr. Hunt confirmed that he was Mr. Slaman's supervisor on the 

evening of July 19, 1986 1 when the accident in question 

occurred. Mr. Hunt confirmed that he has trained Mr. Slaman 

in the operation of-a battery operated 601 S&S scoop, as well 

on other equipment. He stated that the first time he trained 

Mr. Slaman on the scoop was sometime in 1985 during the 6 Butt 

longwall move, and while he could not recall the specific 

1 it may have been during the Fall of 1985. He also 

observed Mr. Slaman operating the scoop numerous times throughout the while working under his supervision, and confirmed that he used the SWI, exhibit R-1, during his training 

of Mr. Slaman. He confirmed that the SWI is an MSHA approved 

means of task training, and that the training would have 

included his reviewing the SWI with Mr. Slaman, as well as his 

phys operation of the scoop. The review of the SWI would 

have taken a f-hourp and his observation of Mr. Slaman 

the scoop would have been over a period of separate 

c i follow-ups until he was satisfied that 

Mr. Slaman could operate the scoop (Tr. 153-159). 

Mr. Hunt stated that the mine uses 601 and 610 model 

, and that they are basically the same, except that the 

r. He may have also trained Mr. Slaman on the 

he d v he would follow the same training proce1 lowed when he trained him on the 601 model. 

He conf i that there are no separate training instructions 

two models. Since the realignment of late December, 

1984, he has observed Mro Slaman quite a few times using the 

scoop while unloading cribs, and setting up and tearing down 

2187 
longwalls (Tr. 160). If an employee informs him that he has 

been trained on the scoop, Mr. Hunt would allow him to operate 

it. Mr. Hunt stated that he would be in violation of company 

policy if he permitted an untrained miner to perform a task 

for which he is not trained, and that Jue to day-to-day shift 

changes and realignments underground, training records are not 

readily available. In the event an employee informs him it 

has been 6 months or a year since he had initially training, 

he will fill out a basic "5023 form" Qr a retraining slip to 

be on the "safe side" (Tr. 161-162). 

Mr. Hunt confirmed that Mr. Slaman was classified as a 

shuttle car operator when he worked under his supervision, but 

he was considered to be trained and experienced in operating 

a scoop, and the fact that he was a shuttle car operator did' 

not forbid him from operating a scoop~ Mr. Slaman was specifically assigned to the longwall because he was considered to be 

an experienced scoop operator, and at the time of the accident 

on July 19, 1986, they were in the process of another longwall 

move (Tr. 162). 

On cross-examination, Mr~ Hunt confirmed that he was on 

duty at the time of the accident, but was not present at the 

irrunediate scene (Tr. 164). He did not train Mr. Slaman prior 

to 1985, other than the one time on the 601 scoop, and his 

section foreman would have taken care of that. Mr. Hunt confirmed that prior to training Mr. Slaman, he asked him whether 

he had ever been trained in the use of the scoop, and he 

replied that he had. However, he did not review his training 

records at any time (Tr. 165). He confirmed that some of his 

follow-up supervision of Mr. Slaman in the operation of the 

scoop during longwall moves may have been on the 610 model, 

because it was used to unload cribs (Tr. 166). Although the 

610 may have been on the section at the time of the accident 9 

they were not being used that day 9 and he did not observe 

Mr. Slaman operating the 610 that day (Tr. 170). 

Mr. Hunt stated that Mr. Slaman had the initial training 

indicated in the SWI for battery scoops, and it would make no 

difference whether he operated the 601 or 610 models, because 

they are basically the same machinep except that the 610 is 

larger (Tr. 171). He confirmed that his training of 

Mr. Slaman on the 601 scoop would have been follow-up training 

because Mro Slaman informed him that he had previously been 

trainedp and he believed his follow-up training occurred sometime in the Fall of 19850 Mr" Slaman was trained at that time 

because in all longwall moves 1 Mr. Hunt wants to make sure 

that everyone involved in the move is trained. Since he had 

previously observed Mr. Slaman operating the scoop, there was 

2188 
no need for initial training, but he did review the SWI with 

him, and observed him going over his "check" procedures and 

operating the machine (Tr. 174). He did not fill out any 

training certificate at that time, because he was under the 

assumption that he had been initially trained, and he had 

observed him, and there was no need to fill out another 

certificate (Tr. 175-176). 

Mr. Hunt explained the procedures he normally follows 

with respect to the filing of training certificates with 

Consol's safety department at the end of the month after training his employees. He confirmed that he keeps them in his 

pocket as they are accumulated before the end of the month, 

and that his wife has on occasion laundered some of them (Tr. 

177). He confirmed that he was aware of the regulations con~ 

earning training record keeping and has followed them. He 

could not explain why Mr. Slaman 1 s training records could not 

be located, and indicated that once he turns them in, "it's 

out of my hands" (Tr. 178). Mr. Hunt reiterated that he did 

not prepare a training certificate for Mr. Slaman after he 

trained him in 1985 because he believed that he had previously 

been trained, and he confirilied that after this training, he 

observed Mr. Slaman operating the 601 scoop. He assumed that 

Mr. Slaman had operated it at least 2 weeks before the accident occurred, because he knew he was assigned to the longwall 

and Mr. Slaman had indicated to him that "he had been up there 

for quite a while" (Tr. 178}. Mr. Hunt did not observe him 

during this time because he was on vacation. 

Mr. Hunt could not specify how often he observed 

Mr. Slaman operating the scoop between the time he trained him 

in 1985 and the time he went on vacation, but that anytime he 

would observe him on a scoop in his working area he would 

always check to see what work was done during the shift (Tr. 

l79)" He specifically recalled one occasion when he sought 

out Mr" Slaman to advise him of a new state requirement that 

all scoop operators walk their roadways to check for debr 

but he could not remember when this was (Tr. 180). 

Mr" Hunt confirmed that he was not contacted or interviewed by any MSHA inspectors during the course of the accident investigationu and that Mr" Gibson did not to him 

before issuing the violationv and did not ask him about 

Mro Slamanijs training (Tr. 183). 

Inspector Gibson was recalled by the Court and he stated 

as follows~ 

2189 
BY JUDGE KOUTRAS: 

Q. Mr. Gibson, you've been sitting here 

listening to all this testimony brought forward 

by Consolidation Coal Company with regard to 

the training that Mr. Slaman has received. 

Okay? 

A. Yes. 

Q. Now, assuming I can believe all that testimony, from what you've heard today, do you feel 

this man has received adequate task training to 

comply with the regulations, based on what 

you've heard? 

A. From what I've heard, if it's true, I think 

he has had adequate training. But there was no 

record of it. 

Q. I understand that. And still, that hasn't 

been explained yet. Mr: Peelish opted not to 

call the record~eeper and let me grill him. 

But from what you've heard of the testimony, 

you feel the man was adequately trained. 

A. Yes. 

Q. Have you ever had any similar occurrences 

as this were a mine operator hasn't been able 

to produce training records? 

A. Vaguely, I remember one, I think, at Osage 

Number 3 Mine. 

Q. Another Consol 

MR. PEELISH~ Another Consol Mine. 

Findings and Conclusions 

Consol is charged with an alleged violation of mandatory 

training standard 30 C.F.R. § 48.7u which provides in relevant 

part as follows~ 

48.7 Training of miners assigned to a task in 

which they have had no previous exparience; 

minimum courses of instruction. 

2190 
(a) Miners assigned to new work tasks as 

mobile equipment operators, drilling machine 

operators, haulage and conveyor systems operators, roof and ground control machine operators 

• . • shall not perform new work tasks in these 

categories until training prescribed in this 

paragraph and paragraph (b) of this section 

have been completed. • •• The training program shall include the following: 

(1) Health & safety aspects and safe operating procedures for work tasks, equipment and 

machinery. The training shall include instruction in the health and safety aspects and the 

safe operating procedures related to the 

assigned tasks, and shall be given in an 

on-the-job environment, and 

(2)(1} Supervised practice during 

non-production. The training shall include 

supervised practice in the assigned tasks, and 

the performance of work duties at times or 

places where production is not the primary 

objective; or 

(ii) Supervised operation during production. The training shall include, while under 

brief and imrnediata supervision and production 

is in progress, operation of the machine or 

equipment and the performance of work duties. 

(3) New or modified machines and equipment. Equipment and machine oparators shall be 

instructed in safe operating procedures applicable to new or modified machines or equipment to 

be installed or put into operation in the mineQ 

which require new or different procedures. 

* * * * * * * 

(b) Miners under paragraph Ca) of this 

section shall not operate the equipment or 

machine or engage in blasting operations without direction and immediate supervision until 

such miners have demonstrated safe operating 

procedures for the equipment or machine or 

blasting operation to the operator or the operator's agent. 

2191 
(c) Miners assigned a new task not 

covered in paragraph (a) of this section shall 

be instructed in the safety and health aspects 

and sate work procedures of the task, prior to 

performing such task. 

* * * * * 

{e) All training and supervised practice 

and operation required by this section shall be 

given by a qualified trainer, or a supervisor 

experienced in the assigned tasks, or other 

person experienced in the assigned tasks. 

Paragraph (a) of section 48.7, contains two exceptions to 

the stated new task training requirements; and they are as 

follows~ 

This training shall not be required for 

miners who have been trained and who have demonstrated safe operating procedures for such new 

work tasks within 12 moeths preceding assignment. This trarning shall also not be required 

for miners who have performed the new work 

tasks and who have demonstrated safe operating 

procedures for such new work tasks within 

12 months preceding assignment. 

The term "task" for purposes of the training requirements 

of the cited standard is defined as follows at section 

48.2(a)(2)(f): "'Task' means a work assignment that includes 

duties of a job that occur on a regular basis and which 

requires physical abilities and job knowledge." 

MSHA cites two judges decisions in FMC Corporation v. 

~~~~--"-~~~~~ 

: 7 FMSHRC 1553 (October 1985), and 

v" WRW Corporationr 7 FMSHRC 245 (February 

, n suppor of its conclusions that an untrained mobile 

equipment operator poses a hazard to his fellow miners, and 

that new task training promotes mine safety by giving miners 

greater awareness of work hazards. Although I agree with 

MSHA=s conclusionsr upon review of those decisions, I £ind 

tnat are distinguishable from the facts in the instant 

case¢ 

In cne FMC Corporation case, Judge Lasher affirmed a violation of section 48.27 after finding that a foreman assigned 

a bulldozer operator to operate a front-end loader. The miner 

had never been required to operate a loader, had not been 

2192 
trained in its operation, and the foreman had not·previously 

observed him operate the loader, and did not believe that he 

had been trained in its operation. Further, once the miner 

proceeded to operate the loader, the foreman was displeased 

with his oerformance, but failed to remove him from the 

machine. ·The miner ultimately requested another miner to 

finish up his work with the loader because he was uncomfortable with the machine, and when the work was finished, the 

untrained miner drove the machine bacR to its original 

location. 

In affirming the citation in the FMC Corporation case, 

Judge Lasher relied on the fact that the loader was substantially different from a bulldozer because of substantial differences in weight, size, function, controls, brakes, speed, 

and the moving and steering mechanisms. Even so, Judge Lasher 

observed that new task training is not automatically or necessarily required every time a miner is assigned to a new piece 

of equipment, and that the assignment would not be deemed a 

new work task if the new piece of equipment was essentially 

the same as the one regularly operated by the miner in the 

past. · 

The WRW Corporation case involved a situation in which 

two miners with no training and less than a month of experience died of carbon monoxide poisoning while working in an 

underground mine. Judge Melick found that the deaths resulted 

from grossly inadequate ventilation resulting from unlawful 

blasting, and his affirmance of violations of section 48.5 and 

48.7, was based on the fact that the miners had absolutely no 

training at all, and that one of the miners began working in 

the mine on the night of his death. 

The record in this case reflects that the foreman who 

trained Mr. Slaman in the operation of the scoop did not 

review his training records to confirm that he had in fact 

received prior training. MSHA suggests that the reason Consol 

maintains training records is so that they may be reviewed. I 

would suggest that Consol keeps training records because it is 

required to do so pursuant tv MSHA's regulations, and that its 

failure to do so will subject it to a citation. Although from 

a safety standpointf one would expect a prudent mine operator 

and supervisor to maintaiu its training records in such a manner as to have them readily available to insure that its work 

force is properly trained, Consol in this case is not charged 

with sloppy or non-existent record keeping. It is charged 

with a failure to properly train a scoop operator. Further, I 

find nothing in MSHA 1 s record-keeping regulation, section 

2193 
48.9, that requires an operator to review an employee's training record to assure itself that he has adequate training. If 

MSHA geems this critical, then I suggest that it consider 

amending its regulation to make this a requirement. Although 

the facts in this case suggests that Consol has a serious 

problem with the record-keeping procedures of the mine safety 

department, and its counsel candidly admitted as much during 

the course of the hearing, this is a matter that MSHA may wish 

to consider in any future compliance inspections at the mine. 

While I agree that Consol's failure to produce copies of 

Mr. Slaman's scoop training records raises an inference that 

he was not trained, I find no basis for concluding that all of 

its witnesses who have testified in this case have lied or 

perjured themselves. To the contrary, having viewed the wit~ 

nesses during their testimony, they impressed me as credible 

individuals, and I find their testimony as to the training 

received by Mr. Slaman in the operation of a scoop to be 

believable and credible. Inspector Gibson himself candidly 

conceded that assuming the witnesses are believable, he would 

agree that Mr. Slaman received proper scoop training prior to 

the accident in compJiance with MSHA's requirements. Inspector Gibson also agreed that if he were a section foreman, and 

needed a job done, he would have to rely on a miner's assurance to him that he was trained on a piece of equipment needed 

to do the job (Tr. 49). He also agreed that if an employee 

worked for him a number of times and he initially trained him 

and then observed him operating a piece of equipment, he would 

not necessarily train him again prior to assigning him a task, 

provided these observations were recent and within a 12-month 

period (Tr. 50). 

MSHA's assertion that Consol may not avail itself of the 

first exception found in paragraph (a) of section 48.7, 

because its records do not reflect any task training for 

Mro Slaman within 12-months prior to his being assigned to 

operate the scoop in July, 1986, raises an inference that this 

was the first time Mr. Slaman was assigned to operate the 

scoop in a longwall work environment. This is not the case, 

and the record shows otherwiseo 

While it is true that·Consol and Mr. Slaman have not produced any copies of Mr. Slaman's scoop training certificates, 

Mr. Slamanv who has worked at the No. 7 Mine continuously 

since 1978, testified that since that time and up to the time 

of the accident on July 19, 1986, he had operated a scoop at 

least "a couple of hundred times," and since 1981 or 1982, he 

operated it "pretty continuously." He estimated that he operated the 601 S&S scoop, the type he was operating at the time 

2194 
of the accident, at least 20 or 30 times in 1985 and 1986, and 

that on occasion he has operated an Elkhorn model and a model 

610. Mr. Slaman also testified that during his employment in 

the mine he has received training and retraining in the operation of a scoop from at least 10 individuals, including one 

Charlie Johnson, and foremen Norman Cutright and David Hunt, 

both of whom testified in this case. 

Mr. Slaman confirmed that his prior duties as a longwall 

shieldman required him to operate a scoop, and that during two 

longwall moves in 1983 and 1984, he was given scoop training 

by Mr. Cutright. Mr. Slaman also described other non-longwall 

work which he has performed, during which he operated a scoop. 

Longwall section foreman Cutright confirmed that he trained _ 

Mr. Slaman in the operation of the 601 S&S scoop during two 

longwall moves which occurred in February and September 1984. 

Mr. Cutright considered Mr. Slaman to be an experienced and 

competent scoop operator, and he confirmed that Mr. Slaman was 

specifically assigned to the longwall moves because the hazardous nature of such work requires an experienced and trained 

scoop operator. 

Foreman David"Hunt testified that he was Mr. Slaman's 

supervisor from 1985 until a few months prior to the hearing 

of August 27, 1987, when Mr. Slaman bid on another job. 

Mr. Hunt testified that he first trained Mr. Slaman in the 

operation of the 601 S&S scoop sometime during the fall of 

1985 when the 6 Butt Longwall was being moved, and that subsequent to this training he observed Mr. Slaman operating the 

scoop on numerous occasions during the year while working 

under his supervision, including other longwall moves. 

Although Mr. Hunt stated that he was on vacation during the 

2-week period immediately prior to the accident, he confirmed 

that he knew Mr. Slaman was assigned to the longwall move that 

was taking place at the time of the accidentu that he had previously observed Mr. Slaman operating the scoop during his 

sits to the section to check on the progress of the work on 

section, and he had previously observed Mr. Slaman operating a scoop while moving cribs. 

Mr. Hunt testified that he considered Mr. Slaman to be an 

experienced trained scoop operator 0 and he confirmed that 

Mr. Slaman was assigned to do work on the longwall because of 

his experience and training. Mr. Hunt considered his training 

of Mr. Slaman on the scoop to be retraining or "follow-up" 

trainingu and that this is normally done when a longwall is to 

be moved in order to insure that miners involved in such moves 

are trained to do the work safely. Mr. Hunt confirmed that at 

the time he conducted his follow-up training of Mr. Slaman, 

2195 
since he had observed Mr. Slaman operating a scoop, and since 

Mr. Slaman advised him that he was an experienced scoop operator and had received prior training, Mr. Hunt saw no need to 

give him any initial training. 

With regard to MSHA's assertion that Consol may not avail 

itself of the section exception found in paragraph (a) of section 48.7, I take note of the fact that this exception contains two conditions. The first condition requires a showing 

that the miner has performed the work task in question within 

12-months preceding the work assignment, and the second condition requires a showing that the miner has demonstrated safe 

operating procedures for the task within this same time frame. 

With respect to the first condition, I conclude and find that 

the respondent's credible testimony establishes that -

Mr. Slaman operated a 601 S&S scoop on a fairly regular basis 

within the 12-month period prior to the accident, and that he 

was an experienced and trained scoop operator. 

Mr. Slaman confirmed that Mr. Hunt retrained him to abate 

the violation, and that prior to the accident Mr. Hunt routinely retrained him,_ worked with him a lot, and observed him 

operating the scoop: Although Mr. Slaman could not recall 

whether Mr. Hunt read him the Safe Work Instructions, he nonetheless confirmed that during Mr. Hunt's training, he would go 

over safety topics, "read me the retraining," instructed him 

in the operation of the scoop, and prior to assigning him any 

tasks, would ask about his scoop training. Mr. Slaman also 

confirmed that Mr. Hunt would retrain him from time-to-time, 

and he recalled one particular occasion when Mr. Hunt discussed the need to walk the roads looking for obstructions 

(Tr. 67-69; 88). Mr. Slaman also confirmed that he was 

retrained by Charlie Johnson on the scoop 2 or 3 weeks before 

the accident, and that Mr. Johnson read him the SWI and 

reviewed its "safety aspects." Mr. Slaman conceded that 

Mr. Johnson did not review the scoop controls with him, and he 

explained that this was because he was already familiar with 

the controls (Tr. 96). 

MSHA assert3 that Consol has failed to show that 

Mr. Slaman demonstrated safe operating procedures for the 

scoop within the 12-month period preceding the accident. MSHA 

suggests that the statement made by Consol 1 s counsel during 

the course of the hearing that no follow-up training is necessary if the miner in question operates the equipment at least 

once a year (Tr. 205)v seems to be a loose reading of the 

"demonstration" required by the standard. Conceding that the 

term "demonstration" has not yet been interpreted by case law, 

2196 
MSHA submits that the plain meaning of the phrase "demonstrating safe operating procedures" entails more than the mere operation of the equipment. MSHA suggests that Mr. Slaman was 

somehow required to demonstrate to his supervisors that he 

could safely operate the scoop, but does not elaborate on how 

it expects this to be done. I find MSHA's argument to be as 

nebulous as the phrase it has attempted to explain. 

Consol has established that the SWI used as part of 

Mr. Slaman's training has MSHA's approval, and that it was 

used in conjunction with his foreman's personal observations 

of his operation of a scoop on a number of occasions while in 

an underground work environment, particularly on the longwall. 

Further, there is no evidence in this case that Mr. Slarnan has 

ever been involved in any prior accidents, or has ever been 

disciplined or cited for operating his scoop in an unsafe 

manner, and his supervisors considered him to be a competent 

and well-trained scoop operator. 

MSHA's suggestion that the accident itself is ample evidence of Mr. Slaman's inabi~ity to safely operate a scoop is 

rejected. I cannot-conclude that the occurrence of the accident per ~ establishes that Mr. Slaman was not trained in the 

technical and safe operation of the scoop he was operating at 

the time of that incident. Accidents involving miners whose 

training records may reflect that they are trained may occur 

at any time in an underground mine environment given the circumstances of each such incident. Since MSHA did not introduce its report of investigation concerning the accident, I 

have no way of knowing the extent and scope of Inspector 

Gibson's investigation of that incident. I take note of foreman Hunt's unrebutted testimony that Mr. Gibson did not 

discuss Mr. Slaman's training with him, and there is no indication that he discussed it with foreman Cutright. 

Mro Slaman testified that immediately prior to the acciwas concentrating on moving the pan line with the 

scoop, and that when he last observed the accident victim, he 

observed him in front of the scoop watching him move the pan 

line. He had no idea how the victim came to position himself 

next to rib as it pivoted and pinned him against the rib. 

Inspector Gibson"s notes reflect that 11 a breakdown in communication between the operator of the scoop and his helper 

resu in this accident" (Exhibit G-4). Under the circumstances, it is altogether possible that the accident victim 

contributed to the accident though his inattention and lack of 

training. ~-

2197 
Inspector Gibson's abatement notice reflects that the 

citation and order were abated after Mr. Slaman was task 

trained "in the safe procedures of operating a scoop," and 

that all foremen and personnel "have been instructed that all 

persons will be in a safe position before equipment is moved 

or trammed." Mr. Slaman's unrebutted testimony is that this 

"training" simply consisted of someone reading the SWI to him, 

and his signing a safety form attesting to this fact, and that 

the form is on file with the company's safety department. 

Although the abatement action taken by Consol included cautionary instructions to individuals other than the equipment 

operator, Consol's counsel suggested that while there is no 

requirements that scoop helpers be included in the SWI training given equipment operators, all mine personnel are 

instructed to stay clear of tramming equipment as a general 

safety precaution (Tr. 197). In any event, the issue here is 

whether the scoop operator, not the helper, had received 

adequate training, and Consol has not been cited for any lack 

of training on the part of the helper who was injured. In the 

final analysis of this case, I am convinced that Inspector 

Gibson issued the violation because a serious accident had 

occurred and Consol cpuld produce no records attesting to the 

fact that Mr. Slaman was a trained scoop operator. However, I 

am not convinced that MSHA has presented any credible evidence 

to support any such conclusion, or to support a violation of 

30 C.F.R. § 48.7. Accordingly, the contested citation and 

order ARE VACATED. 

ORDER 

In view of the foregoing findings and conclusions, IT IS 

ORDERED THAT section 104(a) Citation No. 2713397, and section 

104{g)(l) Order No. 2713396, issued on July 21, 1986, BE 

VACATEDo MSHA's proposal for assessment of civil penalty for 

the alleged violation in question IS DENIED AND DISMISSEDo 

, ,!/p/11 I Ju~,:;z::,..,, v qe6r~e )A-:. ~~utras iVdministrative 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) 

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

1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

/fb 

2199 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 221987 

WHI'fE COUNTY COAL CORPORA'rION, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFE"rY AND HEALTH 

ADMINISTR..Z\TION (MSHA), 

Respondent 

Bef o~e: Judge Melick 

DECISION 

CONTEST PROCEEDINGS 

Docket No. LAKE 86-58-R 

Order No. 2817373; 2/6/86 

Docket No. LAKE 86-59-R 

Orde.c No. 2817375; 2/12/86 

Pattiki Mine 

These cases are, before me upon remand by a majority of the 

Commission for Eurther proceedings consistent with its decision 

dated September 30, 1987. On November 30, 1987, the following 

stipulations were filed with the undersigned: 

1. On February 6, 1986, MSHA Inspector Wolf~ang 

Kaak inspected White County Coal Corporation's ("White 

County") Pattiki Mine. During his inspection, 

Inspector Kaak discovered that a chalk centerline had 

been drawn across an area of unsupported roof in a face 

area. Despite the fact that the Inspector did not 

observe the violation, he issued a§ 104(d)(l) order of 

withdrawalu alleging an unwarrantable violation of 30 

CoFoRo § 750200 as follows~ 

A chalk centerline was observed on the roof 

of Room #6 running from the last row of 

permanent supports, roof bolts, inby to the 

faceo This area was and had not been 

supported when the coal drill operator, CD. 

Marshall), made the centerline on the roof. 

The distance from the last row of bolts to 

the face was 13 ft. Working section I.D. 

003-Qo 

Order No" 2817373. The order was terminated 25 minutes 

after it was issued, following crew reinstru~tion on 

the roof control plan. 

2200 
2. On February 12, 1986, Inspector Kaak visited the 

Pattiki Mine and saw some footprints in an area of 

unsupported roof. Despite the fact that he did not see 

anyone walk under unsupported roof, he immediately issued a 

§ 104(d)(2) order of withdrawal alleging an unwarrantable 

violation of 30 C.F.R. § 75.200: 

Physical evidence, footprints, were observed 

going through an area of unsupported roof in 

the X-cut between Entry No. 6 and Entry No. 7 

at Curve Y Spad No. 1773. The opening 

averaged about 10 ft. long by 10 ft. wide. 

The height average was 6 ft. The area was 

rockdusted and footprints were clearly 

visible. Working Section I.D. 002-0. 

Order No. 2817375. The order was terminated 

approximately one hour after it was issued, after the 

crew was r nstructed on the t'Oof control plan and the 

area had been permanently supported. 

3. On March 7~ 1986, ~bite County filed Notices of 

Contest challengin§ Order No. 2817373 and Order No. 2817375. 

The cases were consolidated by the Administrative Law Judge. 

4. On April 25, 1986, White County filed a Motion 

for Summary Decision alleging that Order Nos. 2817373 

and 2817375 were invalid because the violations had 

already been abated when the closure orders were issued 

and that Section l04(d) closure orders can only be 

issued for existing practices or conditions actually 

perceived by an MSHA inspector as required by the 

Federal Mine Safety and Health Act of 1977 ("the Act"). 

~he Secretary filed a response in opposition to White 

Countyus motion. 

5. On .June 9; 19 86, the Administrative Law Judge 

granted White County's Motion for Summary Decision and 

modified the orders to Section 104(a) citations. 

6, The Ad.ninistrative Law Judge issued an order 

dismissing the cases on June 30u 1986, noting that ~hite 

County did not "dispute either the existence of the 

violations alleged in these citations or the 1 significant 

and substantialu findings associated therewith". 

7o After briefing and or~l argument, the 

Commission issued a decision on September 30, 1987, 

reversing the Administrative Law Judge's decision as to 

~hite County's motion for Summary Decision and vacating 

2201 
his modification of the Section 104(d) orders to 

Section 104(a) citations. The Commission remanded the 

case [to] sic the Administrative Law Judge for further 

proceedings. 

8. Because White County wishes to obtain proffipt 

review of the Commission's Septa~ber 30, 1987, decision 

but is unable to do so until a final order is issued in 

this matter, it has entered into tfiese stipulations to 

eliminate the less important issues which remain in 

order to facilitate and expedite such review. 

9. White County hereby agrees to withdraw its Notices 

of Contest to the extent that White County no longer 

challenges the finding of unwarrantability. White County, 

despite the Commission's September 30, 1987, decision in 

this case, continues to contest the§ 104(d) orders on the 

grounds that they were based on an investigation of past, 

already abated, violations instead of an inspection of 

existing violations as White County contends § 104(d)(l) 

requires. 

. ,. 

10. With this limitation of the basis of White County's 

challenge to the orders, the Commission's resolution of the 

issues raised by White County's Motion for Surmnary Decision 

as to whether a Section 104(d) order can be based on an 

investigation of a past, already abated, violation instead 

of an inspection of an existing violation is dispositive of 

White County's Notices of Contest, and on that basis, it is 

stipulated that it would be appropriate; that the 

Administrative Law Judge enter a final order in these cases. 

11. No further heacings are necessary in this matter. 

The above stipulations are accepted for purposes of these 

oroceedingso The record is sufficient from which it can be 

inferred that the admitted v:iolations were caused by the 

"unwarrantable failure 11 of the mine operator to <tomply with the 

cited standards. The Contests herein are accord ngly denied and 

dismissed on the basis of the Commissionis decisi n in these 

cases rendered September 30, 1987. '/ ,

1 1

\ (,' 

II / j I 

,'f- I 'fl ., ') , . \ / ' (. 

2202 

G:ry M J~~kl '--- \\ ·-. L" ~(_/~,(.. ~\ 

~dmini. trative La~ Judge 

(703) 56-6261 ~J 
Distribution: 

Timothy M. Biddle, Esq., Barbara~. My~rs, Esq., Crowell & 

Moring, 1100 Connecticut Ave., N.W., Washington, DC 20036 

(Certified Mail) 

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

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

Mail) . 

npt 

2203 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

M & M CONSTRUCTION INC., 

Respondent 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 DEC 28 1987 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 87-204-M 

A.C. No. 26-01874-05504 

West Ann Road Pit 

DECISION 

Appearances: Marshall P. Salzman, Esq., Office of the Solicitor, 

U.S. Department of Labor, San Francisco, 

California, 

for Petitioner; 

Tommy F. Deaver, Esq., Deaver & Associates, Las 

Vegas, -Nevada, 

for Respondent. 

Before: Judge Cetti 

Statement of the case 

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 Secretary of Labor on behalf of the Mine Safety and 

Health Administration, charges the operator of the West Ann Road 

Pit with the violation of 9 Mine Safety and Health standards" 

This proceeding was initiated by the Secretary with the 

filing of a proposal for assessment of civil penalties" The 

operator filed a timely appeal contesting the existence of the 

alleged violations and the amount of the proposed civil penalties. 

The hearing was held on November 18 0 1987 0 at 10:00 a.m. 

Discussion 

, Vaughn Do Crowley 0 an MSHA mine inspectoru based upn his 

April 15v 1987v inspection of the West Ann Road Pit issued nine 

citations to respondent alleging eight violations of safety 

standard 30 CoF.R. § 56.14001 and one violation of safety 

standard 30 C.F.Ro § 56014006" 

2204 
Section 56.14001 requires guarding of exposed moving machine 

parts which may cause injury when contacted by persons. Section 

56.14006 requires machinery guards to be securely in place while 

machinery is being operated except when testing machinery. 

On May 13, 1987, MSHA issued proposed assessments totaling 

$1,728.00. The proposed assessments were duly contested. 

At the November 18, 1987 hearing the parties on the record 

stated that they had reached a settlement subject to the approval 

of the judge and filed a motion for an order approving the 

settlement. 

Counsel for the Secretary proposed that the penalty for each 

of the nine alleged violations be reduced from $192.00 to $111.00 

thus reducing the original proposed penalties totaling $1,728.00 

to a total of $999.00. 

The amended proposed penalties take into account those 

factors required to be considered by Section llOCi) of the Act. 

Stipulations 

The parties stipulated as follows: 

1. History - in the previous twenty-four months respondent 

has had eight assessed violations. 

2. Size - The size of the respondent operator at its one 

facility is approximately 5,000 man-hours per year. This is 

a small operation. 

3. Ability to Continue in Business - Payment of the 

proposed penalties will not impair the ability to continue 

businesso 

4o Good Faith - Respondent abated the violative conditions 

within the required time for abatement. 

So Negligence - Negligence is considered moderate. 

60 Gravity - Further analysis indicates that only one 

employeev rather than two employees, is reasonably likely to 

be exposed to these violations. Thus, while still 

significant and substantial violations, the gravity is less 

and the penalties should be reduced accordingly. 

Respondent withdrew its notice of contest and agreed to pay 

the proposed penalties as amended. 

2205 
Conclusions 

After careful review and consideration of the pleadings, 

arguments, and the information placed upon the record at.the 

hearing, I'm satisfied that the proposed settlement disposition 

is reasonable, appropriate and in the public interest. It is 

consistent with the criteria in Section llO(i) of the Act. 

Accordingly, the motions made at trial are granted. 

ORDER 

Good cause having been shown each of the nine citations is 

affirmed and respondent is ordered to pay a civil penalty of 

$999.00 within 30 days from the date of this decision. 

Distribution: 

Marshall P. Salzman, Esq., Office of the Solicitor, U.S. 

Department of Labor, 71 Stevenson Street, 10th Floor, P.O. Box 

3495u San Francisco, CA 94119-3495 (Certified Mail) 

Tommy F. Deaver, Esq., Deaver & Associates, 810 East Charleston 

Boulevard, Las Vegas, NV 89104 (Certified Mail) 

/bls 

2206 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG Pl KE 

FALLS CHURCH, VIRGINIA 22041 

YOUGHIOGHENY & OHIO COAL 

COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRE'rARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

PetJt.ioner 

v. 

YOUGHIOGHENY & OHIO COAL 

COMPANYu 

Respondent 

Before: Judge Melick 

DEC 291987 

CONTES'r PROCEEDING 

Docket No. LAKE 86-30-R 

Order No. 2823831: 11/19/85 

Nelms No. 2 Mine 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 86-56 

A. C. 33-00968-03629 

Nelms No. 2 Mine 

DECISION 

These cases are before me upon remand by the Commission on 

December llv 1987u to reconsider the civil penalty assessment for 

the violation charged in Order Noo 28238310 Youghiogheny & Ohio 

Coal Company v. Secretary of Labor etc.v 9 FMSHRC ~~ (Docket 

No. LAKE 86-21-R et. al.). In its decision the Commission held 

that the so called11 hole through" violation cited in the order 

was not "significant and substantial". Although the violation 

resulted in a large area of unsupported roof being exposed 

the Commission did not believe that there was a reasonable 

likelihood that a roof fall would result in an injury. It stated 

as follows~ 

It is undisputed that the section foreman operating the 

continuous mining machine was under supported roof at 

all times when he made the fan cuts and the "hole 

through." [citations omitted] It also is undisputed 

that Y&O was not going to mine further the rooms 

involved; these were the last cuts. Thus, had normal 

mining operations continued, no miners would have 

entered the rooms in which the "hole through" occurred. 

2207 
In addition, Y&O posted danger signs at the entrance to 

the rooms leading to the "hole through." In light of 

these facts, we hold that substantial evidence does not 

support the judge's conclusion that the violation 

significantly and substantially contributed to a mine 

safety hazard. 

If one accepts these findings, then the violation must be 

characterized as non-serious. The violation was, however, the 

result of a high degree of negligence and the operator has a 

substantial history of violations. In determining an appropriate 

civil penalty for the violation I am also considering the factors 

noted in my decision below that 11 the mine operator abated the 

cited conditions in a timely and good faith manner, [and it] was 

moderate in size." (8 FMSHRC at pages 954-955). Under the 

circumstances, and in consideration of the Commission's findings 

noted herein, a civil penalty of $300 is appropriate. 

ORDER 

The Youghiogheny & Ohio Coal Company is hereby ordered to 

pay a civil penalty of $300 for the violation charged in Order 

No. 2823831 and, if lt has not already done so, to pay civil 

penalties totalling $1,272 within 30 days of the,date of this 

decision for the violations charged in the capt· ned civil .! 

penalty proceeding. ~ 

1J ~l"' 1 1G1,J ''-..:.... 

Gaty Mel 1ck 

Administ ative 

(703) 75 -6261 

Distribution~ 

\ Robert c. 

1000, St. 

Kota, Esq.u Youghiogheny & Ohio' coal Company, 

Clairsville, OH 43950 (Certified Mail) 

P.O. Box 

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) 

npt 

2208 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 291987 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

Docket No. WEVA 87-272 

: A. C. No. 46-07273-03501 

No. 1 Mine 

BIRCHFIELD MINING INCORPORATED,: 

Respondent 

DECISION 

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

u. s. Department of Labor, Arlington, Virginia for 

Petitioner; 

William D. Stover, Esq., Beckley, West Virginia for 

Respondent. 

Before: Judge Melick 

This case is before me upon the petition for civil penalty 

filed by the Secretary of Labor pursuant to section 105Cd) of the 

Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et. 

seq., the "Act," charging Birchfield Mining Incorporated 

(Birchfield) with one violation of the mandatory regulatory 

standard at 30 C.F.R. § 75.303(a). The general issue before me 

is whether Birchfield violated the cited regulatory standard and, 

if so 1 whether the violation was the result of the "unwarrantable 

failure 1

" of Birchfield to comply with the standard and whether 

the violation was of such a nature as could significantly and 

substantially contribute to the cause and effect of a mine safety 

or health hazard, i.e., whether the violation was "significant 

and substantial." If a violation is found, it will also be 

necessary to determine the appropriate civil penalty to be 

assessed in accordance with section llO(i) of Acto 

The citation at bar, issued pursuant to section 104(d)(l) of 

the Act, charges as follows~ 

An inadequate preshif t examination was made in the 001-0 

graveyard main section in that the results of the 

examination was [sic] not reported to a person designated by 

the operator to receive such reports at a designated station 

on the surface of the mine before other persons enter the 

underground area of such mine to work in such shift. The 

2209 
results were not recorded in the approved record book and a 

[sic] examination of the cited MMU showed no dates, times or 

initials have been placed in conspicuous locationso 

The cited standard, C.F.R § 75.303(a) provides as follows: 

[w]ithin 3 hours immediately preceding the beginning of any 

shift, and before any miner in such shift enters the active 

workings of a coal mine, certified-persons designated by the 

operator of the mine shall examine such workings and any 

other underground area of the mine designated by the 

Secretary or his authorized representative. Each such 

examiner shall examine every working section in such 

workings and shall make tests in each such working section 

for accumulations of methane with means approved by the -

Secretary for detecting methane, and shall make test for 

oxygen deficiency with a permissible flame safety lamp or 

other means approved by the Secretary; examine seals and 

doors to determine whether they are functioning properly; 

examine and test the roof, face, and rib conditions in such 

working section; examine active roadways, travelways, and 

belt conveyors on whi£h men are carried, approaches to 

abandoned areas and~accessible falls in such section for 

hazards; test by means of an anemometer or other device 

approved by the Secretary to determine whether the air in 

each split is traveling in its proper course and in normal 

volume and velocity; and examine for such other hazards and 

violations of the mandatory health or safety standards, as 

an authorized representative of the Secretary may from time 

to time require. Belt conveyors on which coal is carried 

shall be examined after each coal-producing shift has begun. 

Such mine examiner shall place his initials and the date and 

time at all places he examines. If such mine examiner finds 

a condition which constitutes a violation of a mandatory 

health or safety standard or any condition which is 

hazardous to persons who may enter or be in such areau he 

shall indicate such hazardous place by posting a ttdanger" 

sign conspicuously at all points which persons entering such 

hazardous place would be required to pass, and shall notify 

the operator of the mineo No person other than an 

authorized representative 0£ the Secretary or a State mine 

inspector or persons authorized by the operator to enter 

such 9lace for the purpose of eliminating the hazardous 

condition therein, shall enter such place while such sign is 

so postedo Upon completing his examination, such mine 

examiner shall report the results of his examination to a 

personF designated by the operator to receive such reports 

at a designated station on the surface of the mine, before 

other persons enter the underground areas of such mine to 

work in such shift. Each such mine examiner shall also 

2210 
record the results of his examination with ink or indelible 

pencil in a book approved by the Secretary kept for such 

purpose in an area on the surf ace of the mine chosen by the 

operator to minimize the danger of destruction by fire or 

other hazard, and the record shall be open for inspection by 

interested persons. 

John Baugh, a Coal Mine Inspector for the Federal Mine 

Safety and Health Administration (MSHA) -arrived at the Birchfield 

No. 1 Mine at about 7:20 a.m. on April 2, 1987, in conjunction 

with his work as an ventilation specialist. At that time Baugh 

observed several miners, who had just changed into work clothes, 

proceed underground. It is not disputed that these miners were 

part of the 8:00 a.m. to 4:00 p.m. day-shift crew. Apparentl~ 

concerned that the day shift crew was entering the mine before 

the completion of the preshift examination, Baugh checked the 

mine examiner's books and found no entry for the corresponding 

preshift exam. Baugh then proceeded underground and found no 

initials, dates or times evidencing a preshift examination. A 

"fire boss board" outside the mine portal did show that the mine 

had been "cleared" but only.for the preceding midnight shift. 

Thus it appeared to-Inspector Baugh that the day shift employees 

had gone underground before the preshift examination had been 

reported out. 

Richard Henderson, the midnight shift section foreman, was 

told of the alleged violation and reportedly then agreed to 

perform a preshift exam and report it in the examination book. 

According to Baugh, Henderson later reported the results into the 

book at 8:45 that morning. Henderson disagreed however that 

there was any violation, maintaining that it was not a violation 

so long as the examination was reported by the beginning of the 

shift at 8:00 a.m. Accordingly he felt that the day shift miners 

could report into the mine before 8:00 a.m. and before the 

completion of the examination without violating the cited 

standardo 

Baugh deemed this violation to be "significant and 

substantial" and a serious hazard for several reasons. He first 

noted that the Birchfield No. 1 Mine was located as close as 20 

feet from a bleeder system in an adjacent mine having a high 

concentration of methane. Moreover Birchfield was not drilling 

the required test holes 20 feet in advance of mining to prevent 

an unexpected inundation of black damp (oxygen deficient air) or 

methane. Baugh also observed that the Birchfield mine itself 

liberated methane and that one of the fans ventilating the mine 

was not then functioning thereby causing excessive dust to be 

blown across the working miners. He opined that the excessive 

dust presented a health threat in the form of respirable dust as 

well as an explosive hazard. Under the circumstances Baugh 

concluded that there was a serious hazard to both the health and 
safety of the seven miners in the mine at the time of the 

issuance of the citation. 

Richard Henderson, Birchfield's midnight shift section 

foreman on April 2, 1987, was in charge of the five member 

production crew on that shift. He acknowledged that 3 or 4 day 

shift employees went underground as early as 7:30 that morning 

before he was able to make the preshift examination entries. He 

could not recall whether he had talked to Inspector Baugh before 

he had completed the report and could not recall whether Baugh 

observed him make the entry. In addition Henderson could not 

remember whether he had completed the preshift examination before 

the day shift miners entered the mine. He does remember, 

however, that when the day shift miners did enter the mine he had 

not yet completed the reports for either the on-shift exam for. 

the midnight shift or the preshif t exam for that day shift and 

that he was the person designated to perform that preshift 

exam. Henderson also believed that he completed his preshift 

mine examination report between 7:30 and 8:00 a.m. on the morning 

of the 2nd and more likely between 7:45 a.m. and 8:00 a.m. He 

recalled that he found no methane at the faces after checking 

with a methane detector at the last row of roof bolts. He claims 

he was not aware of the citation for inadequate preshift 

examination until later but he could not recall when. -~ 

Avery Bailey, Birchfield's General Mine Forman, also 

disagreed with Inspector Baugh. Bailey felt that it wao proper 

to allow the day shift miners to proceed underground before 

reporting the preshift exam results because the mine had already 

been preshif ted before the midnight shift and because all of the 

day shift miners were certified fire bosses. Bailey acknowledged 

however that only Henderson was the fire boss designated to 

perform the examination to be reported out. Bailey thought that 

the preshift book was completed prior to the 8:00 a.m. shift 

change because he recalled Henderson come out of mine and fill 

out the book. 

In summary, it is undisputed that 3 to 4 day shift miners 

went underground into the active workings of the Birchfield No. 1 

Mine around 7~30 on the morning of April 2, 1987, and that the 

day shift did not commence until 8:00 a.mo The credible evidence 

also shows that at the time these miners entered the mine, the 

designated preshift examiner had not reported the results of any 

preshi£t examination to the surface of the mine. I am also 

persu~ded by the affirmative testimony of Inspector Baugh that 

the preshif t examination had not been completed at the time these 

miners entered the mine. Preshift examiner Richard Henderson 

could not even remember whether he had completed the exam. It is 

also not disputed that when the day shift miners entered the 

2212 
mine, no dates, times or initials "had been placed in conspicuous 

locations" to evidence the completion of a preshift examination. 

Birchfield argues that the cited standard is ambiguous and 

maintains that so long as the preshift examination is completed 

and properly reported by the commencement of the shift at 

8:00 a.rn. it is in full compliance and it is therefore immaterial 

that miners in the shift had entered the mine before the 

completion of such examination. 

The regulation requires however that the preshift 

examination be completed "within three hours immediately 

preceding the beginning of any shift and before any miner in such 

shift enters the active workings of a coal mine" (emphasis added). 

The regulation also requires that the mine examiner report the 

results of his examination "to a person designated by the 

operator to receive such reports at a designated station on the 

surface of the mine, before other persons enter the underground 

areas of such mines to work in such shift" (emphasis added). 

There is no ambiguity in this language and the plain meaning must 

prevail. The preshift exam.must therefore be completed and 

reported to the sur£ace before any miner in the oncoming shift 

enters the active.workings or the underground areas to work in 

that shift, respectively. 

Under the circumstances I find that the violation is proven 

as charged. Since the requirement of the standard is set forth 

in plain and unambiguous language I also find that the operator's 

agents should have known of the violation. Accordingly I find 

that the violation was the result of inexcusable aggravated 

conduct, constituting more than ordinary negligence, and 

therefore the result of the "unwarrantable failure" of the 

operator to comply with the law. Emery Mining Corporation v. 

Secretaryv 9 FMSHRC v Docket No. WEST 86-35-R 

<December llv 1987)' Zeigler Coal Corp.v 7v IBMA 280 (1977)~ U.S. 

Steel Corp.v 6 FMSHRC 1423 (1984). For the same reasons I find 

that the violation was the result of significant operator 

negligence. 

Within the framework of the evidence herein I also find that 

the violation was "significant and substantial" and a serious 

hazard. Secretary v. Mathies Coal Company 6 FMSHRC 1 (1984). In 

reaching this conclusion I have not disregarded the evidence that 

no methane was found during the inspection at issue and that 

mining was not then progressing toward the adjacent bleeder. 

However the operative time frame for determining the reasonable 

likelihood of an injury includes the expected continuance of 

normal mining operations. Secretary v. Halfway Incorporated, 8 

FMSHRC 8 (19 86). 

2213 
In assessing a civil penalty in this case I have also 

considered that the operator is relatively small in size, 

promptly abated the violation, and had no history of violations. 

Accordingly I find that a civil penalty of $400 is appropriate. 

ORDER 

Citation No. 2909257 is affirmed as 

104(d)(l) of the Act. Birchfield Mining 

to pay civil penalties of $400 within 30 

decision. 

a citation under section 

Incorporated is directed 

d ys of the date of this 

'\ I l 

I '\'.,./ 

I . Gary elick 

Distribution: 

Admin:'strative 

( 703 >j 756-6261 

\ 

Mary K. Spencer, Esq., Office of the Solicitor, U. s. Department 

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

Mail) 

William D. Stover, Esq., 41 Eagles Road, Beckley, WV 25801 

(Certified Mail) 

npt 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 301987 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

ON BEHALF OF 

RICHARD W. HAVILAND, 

Complainant 

v. 

OCCIDENTAL CHEMICAL COMPANY, 

Respondent 

and 

INTERNATIONAL CHEMICAL 

WORKERS UNION, LOCAL NO. 

784, 

Intervenor 

DISCRIMINATION PROCEEDING 

Docket No. SE 87-44-DM 

Docket No. SE 87-89-DM 

Swift Creek Mine 

ORDER OF DISMISSAL 

Before: Judge Broderick 

On December 2, 1987, the Secretary filed a motion to 

withdraw its complaint in this case on the grounds that 

Complainant and Respondent reached a settlement in this 

matter according to which Richard Haviland is to receive 

a lump sum payment in compensation for the period June 30, 

1986 to March 9; 1987 1 to be restored to all fringe benefits 

of his employment, to be reinstated to the position of 

Combination Analyst Repairman, to be reimbursed for covered 

medical claims accruing during the period June 30, 1986 to 

March 9, 1987, and to have his personnel records expunged of 

the complained-of discharge. On December 9, 1987v the 

Intervenor replied to the motion and stated that under the 

collective bargaining contract, Mr. Haviland would not be 

entitled to be reinstated in the position of Combination 

Analyst Repairman. 

On December 14, 19871 the matter was discussed in a 

conference call with counsel for the Secretary and Respondent 

and Representatives of the Intervenor. The position of the 

Intervenor Union is that Haviland can claim the right to 

2215 
be reinstated to a position other than that of Analyst 

Repairman, approximately the same rate of pay. At my 

request Mr. Haviland submitted a statement, filed December 23, 

1987, in which he indicated that he was aware of the position 

of the Union, but nevertheless desired to withdraw his 

complaint in accordance with the settlement agreement. 

I have considered the motion and related filings 

and conclude that the settlement is in the best interest 

of the Complainant, and in furtherance of the purposes of 

the Act. Therefore, the motion to withdraw is GRANTED, 

and these proceedings are DISMISSED. 

Distribution: 

!

ttUtt.£-5 · Af:J':,-vckt-1 t;/L_ 

James A. Broderick 

Administrative Law Judge 

Glenn Embree, Esq., u.s. Department of Labor, Office of the 

Solicitor, 1371 Peachtree St., N.E., Rm. 339, Atlanta, GA 

30367 (Certified Mail) 

Thomas Means, Esq., Crowell & Moring, 1001 Pennsylvania Ave., 

N.W. 1 Washington, DC 20004 (Certified Mail) 

Ben Cox, President, Local 784, International Chemical Workers 

Union, Rt. 1, Box 114-A, White Springs, FL 32096 (Certified 

Mail) 

slk 

2216 * U.S. GOVERNMENT PRL~TING OFFICE 1988; 201-735/72931