FEBRUARY 1990 

COMMISSION DECISIONS 

02-09-90 Sec. Labor for Bobby Keene v. S & M Coal Co., 

T.o.lbert Mullins, etc. 

02-26-90 John Gilbert v. Sandy Fork Mining Co. 

02-16-90 Walker Stone Company, Inc. 

02-21-90 Rochester & Pittsburgh Coal Corp. 

ADMINISTRATIVE LAW JUDGE DECISIONS 

02-05-90 

02-05-90 

02-05-90 

02-05-90 

02-07-90 

02-07-90 

02-08-90 

02-09-90 

02-15-90 

02-16-90 

02-20-90 

02-23-90 

02-26-90 

02-27-90 

02-27-90 

02-27-90 

Lone Star Industries, Inc. 

Gerald Smith v. Pyramid Mining, Inc. 

Allen Ellsworth v. Freeman Coal Mining Co. 

Bernard J. Garnek v. Shannopin Mining Co. 

Brush Creek Coal Company, Inc. 

Tanks Unlimited, Inc. 

Harlan Cumberland Coal Co.(Correction) 

Mayland Stone Company, Inc. 

Goebel Swiney v. Sun Glow Coal Co., Inc. 

Rochester & Pittsburgh Coal Co. 

Texas Industries Inc. 

Eastern Associated Coal Corporation 

Day Branch Coal Company, Inc. 

Walker Stone Company, Inc. 

Lancashire Coal Company 

Hiope Mining Incorporated 

ADMINISTRATIVE LAW JUDGE ORDERS 

02-01..:.90 

02-14-90 

Emery Mining Corp./Utah Power & Light Co. 

Consolidation Coal Company 

VA 86-34-D 

KENT 86-49-D 

CENT 89-129-M 

PENN 88-194-R 

CENT 88-112-M 

KENT 89-218-D 

LAKE 89-33-D 

PENN 89-213-D 

KENT 89-117 

LAKE 89-79 

KENT 88-191 

SE 89-96-M 

KENT 90-26-D 

PENN 89-115-R 

CENT 89-119-M 

WEVA 89-198 

KENT 89-130 

CENT 89-37-M 

PENN 89-147-R 

VA 89-68 

WEST 87-130-R 

WEVA 89-234-R 

Pg. 175 

Pg. 177 

Pg. 186 

Pg. 189 

Pg. 195 

Pg. 203 

Pg. 207 

Pg. 213 

Pg. 214 

Pg. 215 

Pg. 217 

Pg. 218 

Pg. 219 

Pg. 220 

Pg. 235 

Pg. 239 

Pg. 247 

Pg. 256 

Pg. 272 

Pg. 318 

Pg. 353 

Pg. 359 
FEBRUARY 1990 

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

Joseph Delisio v. Mathies Coal Company, Docket No. PENN 89-8-D. (Judge 

Fauver, December 29, 1989) 

Secretary of Labor, MSHA v. Morgan Corporation, Docket No. SE 89-50-M. 

(Judge Koutras, February 7, 1990) 

Secretary of Labor, MSHA v. Walker Stone Company, Docket No. CENT 89-129-M. 

(De~ault decision of Chief Judge Merlin, January 17, 1990) 

Secreuary of Labor, MSHA v. Mettiki Coal Corporation, Docket No. YORK 89-6. 

(Judge Fauver, January 12, 1990) 

Secretary of Labor, MSHA v. Mettiki Coal Corporation, Docket No. YORK 89-10-R, 

YORK 89-26. (Judge Fauver, January 12, 1990) 

Moti..on for reconsideration was denied in the following case: 

Secretary of Labor, MSHA and UMWA v. Mid-Continent Resources, Inc., Docket 

No. WEST 87-88. (Commission Order of December 19, 1989) 
COMMISSION DECISIONS 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

on behalf of 

BOBBY G. KEENE 

v. 

S&M COAL COMPANY, INC. 

TOLBERT P. MULLINS, and 

PRESTIGE COAL COMPANY, INC. 

February 9, 1990 

Docket No. VA 86-34-D 

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

Conunissioners 

ORDER 

--- BY THE COMMISSION: 

This discrimination case ar1s1ng under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seg. (1982)("Mine Act" or "Act"), 

is before us on remand from an opinion of the United States Court of 

Appeals for the District of Columbia Circuit, affirming in part and 

reversing in part our prior decision in this matter. Secretary of Labor 

on behalf of Bobby G. Keene v. Tolbert P. Mullins, etc., 888 F.2d 1448 

(1989), aff'g in part & rev'g in part, 10 FMSHRC 1145 (September 1988). 

At issue before the Court were the liability of Prestige Coal Co., Inc. 

("Prestige") as a successor-in-interest to S&M Coal Co., Inc. ("S&M") 

for S&M's discriminatory discharge of Keene and the individual liability 

of Tolbert P. Mullins for offering to reemploy Keene under allegedly 

illegal and unsafe conditions. 

The Court affirmed the Commission's conclusion that Prestige was 

not a successor-in-interest to S&M (888 F.2d at 1453-54), but held that 

the Commission erred in ruling that Mullins' offer of rehire was not a 

separate act of unlawful discrimination for which Mullins was personally 

liable (888 F.2d at 1450-53). The Court's action leaves standing the 

Conunission 1 s vacation of that portion of the judge's remedial order 

regarding Prestige and reverses the Conunission's vacation of that 

portion of the order regarding Mullins. 

175 
Accordingly, the judge's conclusion that Mullins as an individual 

discriminated against Keene in violation of the Act in his refusal to 

reemploy Keene is reinstated. That portion of the judge's order 

requiring Mullins jointly and severally with S&M to pay Keene costs and 

back pay and to pay a civil penalty is reinstated. S&M and Mullins are 

ordered to pay Keene the costs, back pay and interest awarded by the 

judge and to pay the civil penalty assessed by the judge. Interest is 

to be,calculated according to the formula set forth by the Commission in 

Secretary on behalf of Bailey v. Arkansas-Carbona, 5 FMSHRC 2642 

(December 1983), and, as applicable, Loe. U. 2274, UMWA v. Clinchfield 

Coal Co., 10 FMSHRC 1493 (November 1988), pet. for review filed, No. 88-

1873 (D.C. Cir; December 16, 1988)(~ also 54 Fed. Reg. 2226 (January 

19' 1989)). 

Distribution 

Dennis D. Clark, Esq. 

Jerald S. Feingold, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Daniel R. Bieger, Esq. 

E. Gay Leonard, Esq. 

Copeland, Molinary & Bieger 

P.O. Box 1296 

Abingdon, Virginia 24210 

~------­

~ Richard V. Backley, Commissioner 

Jg~lf!~onw'b:# 

ames A. Lastowka, 

'ILi~ L. Clair Nelson, Commissioner 

176 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

February 16, 1990 

JOHN A. GILBERT 

v. 

SANDY FORK MINING COMPANY, INC. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

on behalf of JOHN A. GILBERT 

v. 

SANDY FORK MINING COMPANY, INC. 

,Docket No. KENT 86-:49-D 

Docket No. KENT 86-76-D 

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

Commissioners 

DECISION 

BY THE COMMISSION: 

This discrimination proceeding ar1s1ng under the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 801 et seg. (1982)("the Mine 

Act" or "Act"), is on remand to us pursuant to an opinion of the United 

States Court of Appeals for the District of Columbia Circuit reversing 

our prior decision in this matter. John A. Gilbert v. FMSHRC, 866 F.2d 

1433 (1989), rev'g, John A. Gilbert v. Sandy Fork Mining Co., 9 FMSHRC 

1327 (August 1987). This case involves discrimination complaints filed 

against Sandy Fork Mining Co., Inc. ("Sandy Fork") by complainant John 

A. Gilbert on his own behalf (Docket No. KENT 86-49-D) and by the 

Secretary of Labor on Mr. Gilbert's behalf (Docket No. KENT 86-76-D). 

Both complaints are based on the same set of circumstances and allege 

that Sandy Fork discharged Gilbert in violation of section lOS(c)(l) of 

the Mine Act, 30 U.S.C. § 815(c)(l), because of his refusal to perform 

work that he believed to be hazardous. In his decision below, 

Commission Administrative Law Judge Gary Melick denied the Secretary's 

motion to dismiss Gilbert's own discrimination complaint on 

177 
jurisdictional grounds and concluded that Sandy Fork had not 

discriminated against Gilbert in violation of the Act. 8 FMSHRC 1084 

(July 1986)(ALJ). 

The Commission subsequently granted petitions for discretionary 

review filed by both Gilbert and the Secretary. In our prior decision, 

we affirmed on substantial evidence grounds the judge's conclusion that 

Sandy Fork had not discriminated against Gilbert in violation of the 

Act, but we reversed the j4dge's denial of the Secretary's motion to 

dismiss Gilbert's own complaint. 9 FMSHRC 1327 (August 1987). Gilbert 

appealed to the Court, which reversed and remanded with instructions to 

the Commission to consider certain issues. In light of the Court's 

decision, we now decide those issues, sustain Gilbert's complaints, and 

remand this proceeding to the judge for resolution of remedial matters. 

I. 

In upholding the judge's conclusion that Gilbert had not been 

illegally discharged, we determined that, even assuming that Gilbert had 

engaged in a protected work refusal on August 6, 1985, Sandy Fork did 

not take any adverse action against him because of that work refusal. 9 

FMSHRC at 1334-35. We further found that substantial evidence supported 

the judge's determination that at the time of his August 7 work refusal, 

Gilbert did not entertain a reasonable, good faith belief that he would 

be required to work under hazardous conditions. 9 FMSHRC at 1335. In 

reaching that conclusion, we noted that "Sandy Fork's supervisors and 

managers did not react to Gilbert precipitately or manifest retaliatory 

intent." 9 FMSHRC at 1335. Accordingly, we unanimously affirmed on 

substantive grounds the judge's dismissal of Gilbert's complaints. . 

In addition, a majority of the Commission held that the judge had 

erred in denying the Secretary's motion to dismiss Gilbert's individual 

complaint on jurisdictional grounds. The majority concluded that the 

express language of section 105(c)(3) of the Mine Act provides that a 

complainant may file a private action only after the Secretary informs 

the complainant of her determination that a violation has not occurred. 

30 U.S.C. § 815(c)(3); 9 FMSHRC at 1337. The majority declared invalid 

the clause in former Commission Procedural Rule 40(b) permitting the 

filing of individual actions when the Secretary has not made a 

determination of violation within 90 days. !/ The Commission therefore 

!/ Former Commission Procedural Rule 40(b) provided: 

A complaint of discharge, discrimination or 

interference under section 105(c) of the Act, may be 

filed by the complaining miner, representative of 

miners, or applicant for employment if the Secretary 

determines that no violation has occurred, or if the 

Secretary fails to make a determination within 

90 days after the miner complained to the Secretary. 

29 C.F.R. § 2700.40(b)(1986). This rule was amended on November 23, 

1987, to delete the underlined phrase. 

178 
reversed the judge's denial of the Secretary's motion and dismissed 

Gilbert's private discrimination complaint. 9 FMSHRC at 1338-39. 

Commissioners Doyle and Nelson dissented from this aspect of the 

decision. They found the Mine Act to be silent as to the consequences 

of the Secretary's failure to make a determination of discrimination 

within the 90-day statutory period, that former Rule 40(b) was a 

reasonable construction of the Mine Act, and that it should not be 

invalidated. 9 FMSHRC at 1340-44. 

The Court reversed the Commission's decision with respect to the 

merits of Gilbert's discrimination complaints and also with respect to 

the retroactive application to Gilbert of the Commission majority's 

holding that individual complaints may be brought under section 

105(c)(3) only after the Secretary rejects a miner's initial complaint. 

The Court remanded to the Commission questions in both areas for further 

consideration. 866 F.2d at 1434-35. 

II. 

A. The merits of Gilbert's discrimination complaint 

We note initially that the Court endorsed several important 

principles of Commission discrimination law. Citing Secretary on behalf 

of Bush v. Union Carbide Corp., 5 FMSHRC 993, 997 (June 1983) and 

Secretary on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803 

(April 1981), the Court agreed with the Commission that section 105(c) 

of the Act "protects a miner's right to refuse work under conditions 

that he reasonably and in good faith believes to be hazardous." 866 

F.2d at 1439. The Court subscribed as well to the Commission's view 

that in analyzing whether a miner's fear is reasonable, the perception 

of a hazard must be viewed from the miner's perspective at the time of 

the work refusal. 866 F.2d at 1439, citing Secretary on behalf of Pratt 

v. River Hurricane Coal Co., 5 FMSHRC 1529, 1533-34 (September 1983) and 

Haro v. Magma Copper Co., 4 FMSHRC 1935, 1944 (November 1982). The 

Court also approved Commission holdings that to be accorded the 

protection of the Act in engaging in a work refusal, a miner need not 

objectively prove that an actual hazard existed and, further, that a 

good faith belief simply means an honest belief that a hazard exists. 

Id., citing Secretary on behalf of Hogan & Ventura v. Emerald Mines 

Corp., 8 FMSHRC 1066, 1072-73 (July 1986); Pratt, supra, 5 FMSHRC at 

1533-39; Haro, supra, 4 FMSHRC at 1943-44; and Robinette, supra, 

3 FMSHRC at 810. 

To determine whether substantial evidence supported the 

Commission's conclusion that Gilbert's August 7 work refusal lacked the 

required basis of a good faith, reasonable belief in a hazard, the Court 

adopted Commission guidelines for assessing a miner's "good faith." 866 

F.2d at 1440. First, the Court indicated that, where reasonably 

possible, a miner refusing work should ordinarily communicate or attempt 

to communicate to some representative of the operator his belief in the 

safety or health hazard at issue and, second, when a miner has expressed 

a reasonable, good faith fear in a hazard, the operator has a 

corresponding obligation to address the perceived danger. 866 F.2d at 

1440, citing Secretary on behalf of Dunmire & Estle v. Northern Coal 

179 
Co., 4 FMSHRC 126, 133 (February 1982); Bush, supra, 5 FMSHRC at 997-98; 

Secretary v. Metric Constructors, Inc., 6 FMSHRC 226 (February 1984), 

aff'd sub.nom. Brock ex rel. Parker v. Metric Constructors Inc., 776 

F.2d 469 (11th Cir. 1985); Hogan & Ventura, supra, 8 FMSHRC at 1074. 

Applying these principles, the Court found that the record did not 

support the Commission's determination that on August 7 Gilbert did not 

e~tertain a good faith, reasonable belief that he would be required to 

work in a hazardous area. 866 F.2d at 1140-41. 

The Court presented its view of the evidence. Among other things, 

the Court noted that Gilbert was working in an area of the mine in which 

it appeared to him that the prevailing roof conditions placed his safety 

in jeopardy; that he left work on August 6 with management's permission; 

that when he returned to work on the morning of August 7 he learned from 

other miners of a roof fall that had occurred overnight in the area 

where he had been working; and that when he inquired of management 

representatives what had been done to address the unsafe conditions, 

they "refused to address his concerns." 866 F.2d at 1440-41. The Court 

found that Gilbert's "initial fears" on August 6 were reasonable and 

that on August 7 "he made a good faith attempt to collllllunicate his 

reasonable fears to management." 866 F.2d at 1441. 

The Court, however, stopped short of outright reversal of the 

Commission's decision, stating that it was not "clear" whether 

"management addressed Gilbert's concerns [on the morning of August 7] in 

a way that his fears reasonably should have been quelled." 866 F.2d at 

1441. See also 866 F.2d at 1441 n.11. The Court explained: 

In other words, did management explain to Gilbert 

that the problems in his work area had been 

corrected? Or did management indicate to Gilbert 

that he would be assigned to another area in the 

mine that was free of safety problems? Or did 

management indicate to Gilbert that the situation 

was unsettled, and that he should wait five hours 

(until the start of his assigned shift) before 

inquiring further about safety conditions in his 

area? These questions must be answered by the 

Comniission in order for it to determine whether the 

management at Sandy Fork reasonably addressed 

Gilbert's fears on the morning of August 7. If 

management effectively "stone-walled" Gilbert in 

responding to his inquiries on the 7th, then his 

continued fears regarding work hazards were 

reasonable, and his refusal to return to work cannot 

be viewed as either unreasonable or in bad faith. 

866 F.2d at 1441. 

There is no question on this record that mine management was aware 

of the roof problems in the area where Gilbert was working and was 

taking steps to address the problems. As the judge found, and as we 

noted, when Gilbert brought the conditions that he perceived to be 

hazardous to the attention of his section foreman on August 6, the 

180 

\.. ,, 
foreman responded that he would add more cribs to support the roof and 

that he would. stand by and watch while coal was cut. 8 FMSHRC at 1089; 

9 FMSHRC at 1330. Gilbert then went outside the mine and repeated his 

concerns to the general mine foreman, who told Gilbert that he would not 

insist that he resume work and that Gilbert should go home and return 

the next day to meet with Phipps, the general manager, and Begley, the 

mine superintendent. 

When Gilbert returned on August 7, Phipps and Begley were 

underground conducting an examination of the roof, and Gilbert was told 

by another miner that a roof fall had occurred in the mine during the 

night. After Phipps and Begley emerged from the mine, Gilbert talked 

separately with each of them. 

Gilbert talked first with Phipps. Both Gilbert and Phipps 

testified that Gilbert told Phipps that he was afraid of the roof. 

Tr. I 39-40; III 89-92. Gilbert asked Phipps what management was going 

to do about the roof and how the roof would be supported. Tr. II 39-40. 

Gilbert testified that Phipps responded that "they [were] supporting 

what they could." Tr. I 39-40. Similarly, Phipps stated that 

"primarily" he told Gilbert that the mine roof was all the top that the 

mine had. Tr. II 127. Both Phipps and Gilbert testified that Phipps 

asked Gilbert if he had any ideas for dealing with the roof (Tr. I 40; 

III 91), and Gilbert testified that he offered a few suggestions (Tr. 

I 40). Phipps further stated that he did not try to "convince" Gilbert 

that the roof was safe and that, although management was pursuing 

several approaches for alleviating the roof problems, he did not discuss 

those initiatives with Gilbert at that time. Tr. III 127-28. 

Gilbert then engaged Begley in a similar brief conversation. 

Gilbert and Begley also agreed that Gilbert told Begley that he was 

afraid of the roof. Tr. I 40-41; II 109. Gilbert testified that Begley 

replied that "that's all they can do ... that's all the top they [had]." 

Tr. I 41. Begley stated that he did not recall telling Gilbert anything 

about the top on the morning of August 7. Tr. II 111-12. Begley's 

recollection was that he and Gilbert discussed Gilbert's possible job 

transfer rather than roof problems. Id. After these two conversations, 

Gilbert left the mine. 

The Court rejected the judge's and Commission's determinations 

that in leaving the mine at this point, some five hours before his shift 

was scheduled to begin and before he had been told the specific area of 

the mine to which he would be assigned, Gilbert acted precipitately and 

unreasonably. 866 F .21d at 1140. Instead, the Court has directed us to 

determine whether management explained to Gilbert that the problems in 

his general work area had been corrected, or had indicated that he would 

be assigned to another area of the mine free of safety problems, or had 

suggested that the situation was unsettled and that he should wait until 

the start of his assigned shift before inquiring further about safety 

conditions in his area. 866 F.2d at 1441. 

Based on the testimony summarized above, we conclude that 

Gilbert's safety concerns were not addressed in a manner sufficient to 

reasonably quell his fears. Given the Court's belief that Gilbert did 

181 
not act precipitately and its finding that he entertained a good faith, 

reasonable belief in a hazard, we are constrained to conclude that 

Gilbert's.departure from the mine on August 7 constituted a 

discriminatory discharge in violation of section 105(c)(l) of the Act. 

Accordingly, the judge's conclusion to the contrary is reversed. 

B. Retroactive application of changed Commission policy 

As noted, the Commission majority concluded that the judge erred 

in denying the Secretary's motion to dismiss Gilbert's private 

complaint. In essence, the majority held that the provision of former 

Commission Rule 40(b) permitting a miner to file a discrimination 

complaint prior to the Secretary's determination that no discrimination 

had occurred conflicted with what the majority viewed as the express 

enforcement schemes set forth in section 105(c) of the Act and, 

accordingly, was invalid. The Court took issue with the majority's 

retroactive application to Gilbert of this new Commission policy. The 

Court did not consider the prospective validity of the new policy but, 

rather, held that the majority had not explained the basis for 

retroactively applying the new policy to Gilbert. 866 F.2d at 1441-42. 

Citing Loe. 900, Int'l U. of Elec. Wkrs. v. NLRB, 727 F.2d 1184, 

1194-95 (D.C. Cir. 1985) and Retail, Wholesale & Dept. Store U. v. NLRB, 

466 F.2d 380, 390 (D.C. Cir. 1972), the Court identified five factors 

that are to be applied in determining whether a new rule developed in an 

adjudication should be given retroactive effect. Those factors are: 

(1) whether the particular case is one of first 

impression, (2) whether the new rule represents an 

abrupt departure from well established practice or 

merely attempts to fill a void in an unsettled area 

of law, (3) the extent to which the party against 

whom the new rule is applied relied on the former 

rule, (4) the degree of the burden which a 

retroactive order imposes on a party, and (5) the 

statutory interest in applying a new rule despite 

the reliance of a party on the old standard. 

866. F.2d at 1442. 

The Court discerned nothing in the record or the Commission's 

decision to overcome the first four factors, all of which, in the 

Court's opinion, militated strongly against application of the 

Commission's new policy to Gilbert. 866 F.2d at 1442-43. The Court 

indicated that the Commission had not examined whether the "statutory 

interest" in the application of the new policy to Gilbert, 

notwithstanding his reliance on the old policy, was of sufficient 

magnitude to overcome the other four factors, and it remanded the matter 

to the Commission for the purpose of carrying out such a statutory 

interest analysis. 866 F.2d at 1443. 

In discussing retroactive application of new agency policy in SEC 

v. Chenery, 332 U.S. 194, 203 (1974), the Supreme Court, in relevant 

part, stated: 

182 
[R]etroactivity must be balanced against the 

mischief of producing a result which is contrary to 

a statutory design •..• If that mischief is greater 

than the ill effect of the retroactive application 

of a new standard, it is not the type of 

retroactivity which is condemned by law. 

The "statutory interest" criterion referred to by the Court herein is 

drawn fro~ Chenery, supra, and is a flexible concept. In applying it in 

retroactivity contexts, courts have explained it in terms of statutory 

"purpose" and "d~sign" (~, Retail, Wholesale & Dept. Store U., supra, 

466 F.2d at 392), "overriding Congressional interest" (Clark-Cowlitz Jt. 

Operating Agency v. FERC, 826 F.2d 1074, 1085 (D.C. Cir. 1987)), 

"significant policy concern of ••• legislation" (NLRB v. Wayne Transp., 

~. 776 F.2d 745, 751 (7th Cir. 1985)), and "statutory intent" 

(Stewart Capital Corp. v. Andrus, 701 F.2d 846, 849-50 (10th Cir. 

1983)). 

With respect to prospective application of the Commission's new 

policy, all Commissioners adhere to their respective views as expressed 

in the prior Commission decision in this matter. With respect to 

retroactive application of that policy, all Commissioners conclude that, 

under all the circumstances presented, any practical or legal "mischief" 

in allowing Gilbert's private action to go forward would not be 

sufficient to overcome the Court's determinations with regard to the 

first four retroactivity criteria. We note that the Secretary first 

moved to dismiss Gilbert's action and it is the Secretary who, as the 

primary prosecutor under the section 105(c) enforcement schemes would be 

the primary victim of the "mischief" that she originally asserted 

resulted from a "two-tracked" proceeding such as this. Yet, as the 

Court noted, the Secretary "appeared to concede [during oral argument in 

this and a related case before the Court] that the government had no 

case that it wished to pursue in defense of the Commission's retroactive 

application of the new rule." 866 F.2d at 1443. 

Thus, in light of the Court's opinion, Gilbert's private complaint 

must be reinstated. 

183 
IV. 

On the foregoing bases, we reverse the judge's conclusion that 

Sandy Fork did not discriminate against Gilbert in violation of section 

105(c)(l) of the Act and we reinstate Gilbert's discrimination 

complaints. We remand the matter to the judge for determination of all 

outstanding remedial issues. 

Richard V. Backley, Commissioner 

ifC~ L. Clair Nelson, Commissioner 

184 
Distribution 

Tony Oppegard, Esq. 

Appalachian Research & Defense 

Fund of Kentucky, Inc. 

P.O. Box 360 

Hazard, Kentucky 41701 

Ronald E. Meisburg, Esq. 

Smith, Heenan & Althen 

1110 Vermont Avenue 

Washington, D.C. 20005 

William A. Hays, Esq. 

P.O. Box 817 

Middlesboro, Kentucky 40965 

Colleen A. Geraghty, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Administrative Law Judge Gary Melick 

Federal Mine Safety and Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

185 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

WALKER STONE COMPANY, INC. 

February 16, 1990 

Docket No. CENT 89-129-M 

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

Commissioners 

ORDER 

BY THE COMMISSION: 

In this civil penalty proceeding ar1s1ng under the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 801 et seg. (1982), 

Commission Chief Administrative Law Judge Paul Merlin issued an Order of 

Default on January 17, 1990, finding Walker Stone Company, Inc. ("Walker 

Stone") in default for failure to answer the Secretary of Labor's civil 

penalty proposal and the judge's order to show cause. The judge 

assessed civil penalties of $178 as proposed by the Secretary of Labor. 

For the reasons that follow, we vacate the default order and remand the 

case for further proceedings. 

On January 26, 1990, David S. Walker, Walker Stone's president, 

wrote a letter to Judge Merlin asserting that on October 20, 1989, Mr. 

Walker had contacted an attorney for the Department of Labor requesting 

an extension of time for filing an answer to the Secretary's penalty 

proposal until after a ruling from an administrative law judge in 

another pending case. 

Judge Merlin's jurisdiction over this case terminated when his 

decision was issued. 29 C.F.R. § 2700.65(c). Under the Mine Act and 

the Commission's procedural rules, once a judge's decision has issued, 

relief from the decision may be sought by filing with the Commission a 

petition for discretionary review within 30 days of the decision. 

30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70(a). Walker Stone's January 

26 letter was received by the Commission on January 29, 1990. We will 

treat Walker Stone's letter as a timely petition for discretionary 

186 
review. !k.&.:_, Blue Circle Atlantic, 11 FMSHRC 2144 (November 1989). 

The record discloses that on May 25 and 31, 1989, an inspector of 

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

issued seven citations to Walker Stone. Upon notification by MSHA of 

civil penalties proposed for the alleged violations totaling $178, 

Walker Stone filed a "Blue Card" request for a hearing before this 

independent Commission. On August 24, 1989, counsel for the Secretary 

filed the Secretary's penalty proposal with the Commission. When no 

answer to the penalty proposal was filed, the judge, on November 1, 

1989, issued a show cause order directing Walker Stone to file an answer 

within 30 days or show good reason for its failure to do so. As noted, 

Walker Stone's president claims to have asked the Secretary's attorney, 

on October 20, 1989, for a delay in filing the answer. 

The party against whom the Secretary seeks a penalty must file an 

answer with this Commission within 30 days after service of the 

Secretary's proposal for penalty. 29 C.F.R. § 2700.S(b) & .28. Thus, 

Walker Stone misdirected its request for an extension of time for filing 

its answer. The administrative law judge, not counsel for the 

Secretary, regulates the course of this review proceeding. We note, 

however, that Walker Stone is proceeding pro se and appears to confuse 

the roles of the Department of Labor and this independent adjudicatory 

Commission in this proceeding. For this reason and because Walker Stone 

claims that prior to issuance of the show cause order it sought an 

extension of time for filing its answer, we believe that the operator 

should have the opportunity to present its position to the judge. .!h.&..:..· 

Amber Coal Co., 11 FMSHRC 131, 132 (February 1989). 

187 
For the foregoing reasons, the judge's default order is vacated 

and the matter is remanded to the judge, who shall determine whether 

final relief from default is appropriate. See, ~, Kelley Trucking 

Co., 8 FMSHRC 1867, 1869 (December 1986). · 

Richard V. Backley, Commissioner 

Distribution 

David S. Walker, President 

Walker Stone Company, Inc. 

Box 563 

Chapman, Kansas 67431 

Dennis D. Clark, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Robert J. Murphy, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1585 Federal Bldg. 

1961 Stout St. 

Denver, Colorado 80294 

Chief Administrative Law Judge Paul Merlin 

Federal Mine Safety and Health Review Commission 

1730 K Street, N.W., Suite 600 

Washington, D.C. 20006 

188 

Commissioner 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

ROCHESTER AND PITTSBURGH 

COAL CORPORATION 

February 21, 1990 

Docket No. PENN 88-194-R 

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

Conunissioners 

DECISION 

BY THE COMMISSION: 

At issue in this contest proceeding arising under the Federal Mine 

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

Act"), is whether Rochester and Pittsburgh Coal Corporation ("R&P") 

violated 30 C.F.R. § 90.103(a) by failing to compensate a Part 90 miner 

at not less than the regular rate of pay received by that miner 

immediately before his exercise of the Part 90 option. !/ Conunission 

Administrative Law Judge William Fauver held that ~&P violated the 

standard and, based on the parties' stipulation that the Secretary's 

petition for civil penalty be adjudicated in the contest proceeding, the 

judge imposed a penalty of $78.00. 10 FMSHRC 1313 (September 

1988)(ALJ). For the reasons that follow, we affirm Judge Fauver's 

decision. 

!/ Section 90.103(a) essentially restates section 203(b)(3) of the 

Mine Act, 30 U.S.C. § 843(b)(3), and provides: 

The operator shall compensate each Part 90 miner 

at not less than the regular rate of pay received by 

that miner inunediately before exercising the option 

under § 90.3 (Part 90 option; notice of eligibility; 

exercise of option). 

.189 
At the time of the events at issue, Leonard Edwards had been 

employed at the Greenwich Colliery No. 2 South Mine, an underground coal 

mine operated by R&P, for over 15 years. In August 1979, while working 

as a longwall shear operator, Edwards was informed by the Department of 

Labor's Mine Safety and Health Administration ("MSHA") that a chest 

X-ray taken on January 23, 1979, indicated that he had "enough 

pneumoconiosis" to render him eligible under the Mine Act for transfer 

to a less dusty area of the mine. Exh. G-1. ~/ Edwards testified that 

he showed the letter to his section foreman, who requested a copy for 

R&P's files. Later in 1979, he began work on the cross-belt at the same 

rate of pay he had received as a longwall shear operator. He worked at 

this latter task until April 1985, when, as the result of a work force 

reduction and realignment, he was scheduled to be transferred to the 

North Mine as a shear operator. Not wishing to transfer, Edwards was 

allowed to remain at the No. 2 South Mine, and was reclassified as a 

general laborer with a reduction in rate of pay from $14.41 to $13.31 

per hour. He then gave a copy of the MSHA letter of August 1979 to John 

Bobenage, mine superintendent, who authorized that his rate of pay be 

restored to $14.41 per hour, effective April 15, 1985. Exh. OX-2, 

Tr. 12. 

About March 1, 1988, when possible further employee realignment 

was rumored, Edwards sent to MSHA his "Exercise of Option to Transfer" 

form. 11 The form bears Edwards' signature and a partly obliterated 

date of 4-12-85. Edwards testified that he had signed and dated the 

~/ Section 90.3(a), which essentially restates section 203(b)(2) of 

the Mine Act, 30 U.S.C. § 843(b)(2), states: 

Any miner employed at an underground coal mine or 

at a surf ace work area of an underground coal mine 

who, in the judgment of the Secretary of Health and 

Human Services, has evidence of of the development 

of pneumoconiosis based on a chest X-ray, read and 

classified in the manner prescribed by the Secretary 

of Health and Human Services, or based on other 

medical examinations shall be afforded the option to 

work in an area of a mine where the average 

concentration of respirable dust'in the mine 

atmosphere during each shift to which that miner is 

exposed is continuously maintained at or below 1.0 

milligrams per cubic meter of air. Each of these 

miners shall be notified in writing of eligibility 

to exercise the option. 

11 Section 90.3(d) states in relevant part: 

The option to work in a low dust area of the mine 

may be exercised for the first time by any 

[eligible] miner ..• by signing and dating the 

Exercise of Option Form and mailing the form to the 

Chief, Division of Health, Coal Mine Safety and 

Health .... 

190 
form in April 1985 but had decided not to send it to MSHA. He 

subsequently scratched over that date when he actually mailed the form 

in March 1988. He testified that on Monday, March 14, 1988, he informed 

Bill Garay, an R&P foreman, that he was invoking his Part 90 rights. On 

that same date, R&P also received MSHA's notification, dated March 10, 

1988, of Edwards' exercise of option. R&P informed MSHA by letter of 

March 18 that .Edwards, as a Part 90 miner, would be assigned "outby the 

face area" and would be sampled for respirable dust as required. Exh. 

OX-4, G-6. Edwards' regular rate of pay was reduced from $15.81 to 

$14.75 per hour effective March 16, 1988. Exh. OX-3. 

Acting on a complaint by Edwards, MSHA issued a section 104(a) 

citation to R&P on April 21, 1988, alleging a violation of 30 C.F.R. 

§ 90.103(a) for reducing the regular rate of pay received by Edwards 

immediately before exercise of his Part 90 option. Exh. G-4. R&P 

contested the citation, and a hearing was held before Judge Fauver on 

June 7, 1988. 

John Bobenage, superintendent of the No. 2 Mine during 1985, 

testified that his restoration of Edwards' higher rate of pay in April 

1985 was based on Edwards' assertion, confirmed by his supervisor, that 

he was a Part 90 miner. Tr. 46-52. Donald Marino, manager of labor 

relations for R&P, testified that he was not aware until early March 

1988 (but prior to receiving MSHA's notice of Edwards' Part 90 status) 

that Edwards was not a Part 90 miner. Marino further stated that 

Edwards had been mistakenly overpaid at a higher rate since April 1985, 

based on R&P's "false assumptions" as to Edwards' Part 90 status. Tr. 

56-74. 

Michael Kaschak, responsible for R&P's respirable dust sampling of 

Part 90 miners at the Greenwich mines, stated that he had been aware 

since 1985 that Edwards was not a Part 90 miner. He testified that he 

had not discussed the matter with R&P officials until March 6 and 7, 

1988, when he informed William Garay, mine foreman, and Richard Endler, 

mine superintendent since July 1987, that Edwards was not a Part 90 

miner. Tr. 92. Garay testified that he had questioned Edwards' rate of 

pay in January 1987. Tr. 109. Endler testified that, following 

discussions with R&P management officials, he concluded, on March 10 or 

11, 1988, that, since Edwards was not a Part 90 miner, his rate of pay 

for the preceding three years was a mistake and should be reduced. He 

signed the pay rate change authorization form on March 16, 1988. Tr. 

115-17, Exh. OX-3. 

In his decision, Judge Fauver found that in April 1985, when 

Edwards produced a copy of the 1979 MSHA letter, R&P restored his pay 

cut since "[b]oth Edwards and mine management apparently assumed that 

Edwards was a Part 90 miner in April 1985." 10 FMSHRC at 1314. He 

further determined that Edwards' pay-rate cut on March 15, 1988, 

occurred after he had exercised his Part 90 transfer option and after 

R&P had been notified by both Edwards and MSHA of that exercise of 

option. Id. Citing Matala v. Consolidation Coal Co., 647 F.2d 427, 430 

(4th Cir. 1981), and Mullins v. Andrus, 664 F.2d 297, 305, 310 (D.C. 

Cir. 1980), the judge held that the "regular rate of pay," as used in 

Part 90, is the rate that the miner was actually and regularly being 

191 
paid il1llllediately before the exercise of the Part 90 option, and not the 

rate to which he had a right, or "should have been" receiving. 

10 FMSHRC at 1316. Accordingly, he concluded that when a miner becomes 

a Part 90 miner, the operator may not go back several years from that 

date to change the miner's rate of pay to one the operator decides the 

miner "should have been" receiving il1llllediately before he became a Part 

90 miner. To permit such retroactive changes, the judge concluded, 

"would have a chilling effect on the exercise of Part 90 rights." 

10 FMSHRC at 1316. In the instant case, since R&P received MSHA's 

notice of Edwards' Part 90 status on March 14, 1988, the judge 

determined that. R&P violated section 90.103(a) by reducing his regular 

rate of pay on March 15, 1988. 10 FMSHRC at 1317. 

On review, R&P argues that by falsely claiming Part 90 status in 

April 1985, Edwards attempted to abuse the intent of the Mine Act and, 

under a "bad faith" exception recognized by the court in Mullins, supra, 

is not entitled to the regular rate of pay received by him il1Ullediately 

prior to transfer. Alternatively, lacking a showing of bad faith, R&P 

argues that it is entitled to correct Edwards' regular rate of pay 

because it resulted from a mistake. ~/ We disagree. 

The Secretary contends that the record fails to show bad faith on 

Edwards' part. The Secretary asserts that, absent such a showing, the 

miner is entitled, upon transfer, to the same rate of pay as he actually 

and regularly received prior to transfer. She further asserts that her 

interpretation is consistent with section 203(b)(3) of the Act, the 

underlying purpose of Part 90, and the interpretation of those 

provisions by the courts. See's br. at pp. 7, 8. 

The term "regular rate of pay," as used in section 203(b)(3) of 

the Mine Act and in section 90.103(a) (n.1 supra), has been clearly 

defined by the District of Columbia and Fourth Circuit Courts of 

Appeals. Mullins defines that term as "the rate at which the 

transferring miner was actually and regularly compensated when the 

transfer occurred, irrespective of job classification." 664 F.2d 297. 

See also, Matala, supra, 647 F.2d at 429. 

R&P first contends that these decisions do not control because 

Edwards abused the intent of the Act in falsely claiming Part 90 status. 

R&P notes that Mullins recognizes an exception to the Mine Act's payrate maintenance protection in cases of bad faith, "when a miner 

attempts to abuse the intent of the Act. ... " 664 F.2d at 310 n. 113. 

The express intent of the relevant sections of the Mine Act and 

the Part 90 regulations is to afford the option of transfer to a less 

dusty area of the mine, at no less than the regular rate of pay received 

immediately before the transfer, to any miner who shows evidence of the 

~/ R&P also argues that Edwards had subsequent X-rays in 1983 or 1984 

and in 1988, the results of which are unknown to the operator and which 

might indicate that the initial X-ray was misread or that his condition 

has improved. We agree with the Secretary that this argument is 

entirely speculative, lacking any evidence of record to support it. 

192 
development of pneumoconiosis. The record demonstrates that, in 

August 1979, _Edwards had been informed by MSHA that he had a sufficient 

degree of pneumoconiosis to be eligible for Part 90 rights and needed 

only to send in the exercise of option form to MSHA. Why, after signing 

and dating the form in 1985, Edwards did not send it to MSHA, or why the 

mine superintendent personally approved Edwards' status as a Part 90 

miner based solely on the MSHA letter of eligibility, is not explained 

in the record. We agree that had Edwards falsely claimed Part 90 

medical eligibility, the "bad faith" exception carved out in Mullins 

might well apply. However, the evidence of record indicates that, at 

most, this is a case of technical non-compliance with Part 90 procedures 

rather than abuse of the intent of the Act, or bad faith, on Edwards' 

part. We believe the record supports the judge's conclusion that 

Edwards' pay restoration in April 1985 resulted from a mistaken 

assumption by both parties that Edwards was a Part 90 miner. 

We. next address R&P's argument that it should be allowed to 

correct a Part 90 miner's rate of pay that was calculated erroneously. 

The Secretary contends that this case does not involve the correction of 

a clerical error but represents an attempt to decrease Edwards' pay rate 

only after he had exercised his option. In our view, this case is 

distinguished from that of a newly discovered, recently occurring 

inadvertent clerical error. Edwards had been compensated at the rate of 

pay, now questioned, for almost three years prior to March 1988. His 

restoration to that rate of pay had previously been questioned but then 

personally approved, in April 1985, by the mine superintendent. The 

person responsible for R&P's Part 90 sampling program had known since 

1985 that Edwards was not a Part 90 miner, and Edwards' supervisor had 

questioned his pay status as early as January 1987. R&P, therefore, was 

in the position to correct this situation at any time during the threeyear period prior to March 1988. 

Instead, by reducing Edwards' rate of pay only after he had 

exercised his part 90 option, R&P finds itself diametrically opposite 

the consistent judicial and Secretarial interpretation of the pay-rate 

protection provisions of the Mine Act and Part 90. Recently, the D.C. 

Circuit has reaffirmed a liberal view of the transfer and pay rate 

protections of the Mine Act and Part 90 in Secretary v. Cannelton 

Industries, Inc., 867 F.2d 1432 (D.C. Cir. 1989). In its decision, the 

court emphasized that the Secretary's interpretation of the Mine Act is 

entitled to deference, stating: 

Confronting diverse readings of the statutory text, 

we are obliged to defer to the Secretary's minerprotective construction of the Mine Act so long as 

it is reasonable. 

867 F.2d at 1437. 

In the instant case, we find the Secretary's interpretation of 

section 90.103(a) reasonable, and consistent with the judicial precedent 

set out in Mullins and Matala, supra. Accordingly, we hold that 

substantial evidence supports the conclusion that R&P violated 30 C.F.R. 

§ 90.103(a) when it reduced the regular rate of pay being received by 

193 
Edwards immediately prior to the exercise of his Part 90 option. 

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

Distribution 

Joseph A. Yuhas, Esq. 

Rochester & Pittsburgh Coal Co. 

P.O. Box 367 

Ebensburg, Pennsylvania 15931 

Jerald S. Feingold, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

~~ d(A,,c-e,A££--0u4-c...., 

Richard V. Backley, CommissiollE;~ 

Administrative Law Judge William Fauver 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

194 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

FEB 51990 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. CENT 88-112-M 

A.C. No. 14-00111-05511 

v. Lone Star Quarry and Mill 

LONE STAR INDUSTRIES, INC., 

Respondent 

DECISION 

Appearances: Charles A. Mangum, Office of the Solicitor, 

Before: 

U.S. Department of Labor, Kansas City, Missouri, 

for the Petitioner; 

Michael T. Heenan, Esq., Smith, Heenan & Althen, 

Washington, D.C., 

for the Respondent. 

Judge Morris 

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

Health Administration CMSHA), charges respondent with violating 

two safety regulations promulgated under the Federal Mine Safety 

and Health Act, 30 u.s.c. § 801 et seg., (the Act). 

After notice to the parties a hearing was held in Kansas 

City, Missouri. 

The parties filed post-trial briefs. 

summary of the Case 

Citation No. 2870909 charges respondent with violating 

30 C.F.R. § 56.11001, which provides as follows: 

§ 56.11001 Safe access. 

Safe means of access shall be provided and maintained to all working places. 

The citation reads as follows: 

A safe means of access was not provided into the 

#3 clinker cooler dust chamber. An employee was 

entering the shut down #3 clinker cooler dust 

chamber that was undergoing repairs to take some 

measurements. A permanently disabling injury 

occurred on ·12-4-87 at about 1440 hours, when an 

employee's right leg became entangled in the #2 

and #3 clinker cooler dust screw conveyor and was 

severed about mid-thigh. 

195 
Citation No. 2870908 charges respondent with violating 

30 C.F.R. § 56.12016, which provides as follows: 

§ 56.12016 Work on electrically-powered equipment. 

Electrically powered equipment shall be deenergized before mechanical work is done on 

such equipment. Power switches shall be locked 

out or other measures taken which shall prevent 

the equipment from being energized without the 

knowledge of the individuals working on it. 

Suitable warning notices shall be posted at the 

power switch and signed by the individuals who 

are to do the work. Such locks or preventive 

devices shall be removed only by the persons 

who installed them or by authorized personnel. 

The citation reads as follows: 

The electrical power for the #2 and #3 clinker 

cooler dust screw conveyor was not turned off, 

locked and tagged out. A permanently disabling 

injury occurred on 12-4-87 at about 1440 hours 

when an employee's right leg became entangled 

in the screw conveyor and was severed at about 

mid-thigh. 

Issues 

The issues are whether respondent violated the regulations. 

Stipulation 

At the commencement of the hearing the parties stipulated as 

follows: 

1. The quarry mill involved in these citations is a moderate to large operation. On an annual basis there are 200,000 to 

300,000 man hours at the mill. 

2. The operator's prior history is contained in a computer 

printout for the 24 months prior to the accident in question. 

The computer printout may be received in evidence as Exhibit P-1. 

3. The company abated the alleged violations within a 

reasonable time. 

4. The imposition of the proposed civil penalties will not 

affect the company's ability to continue in business. 

(Tr. 13, 14) 

l96 
The Evidence 

ELDON E. RAMAGE, an MSHA inspector for 11 years, has extensive training in mining. He has been a certified electrician 

and safety coordinator in the metal and nonmetal industry. He 

has experience in hazard recognition. In addition, he has conducted some 3000 MSHA inspections. 

The witness has inspected Lone Star many times at the Bonner 

Springs plant where the company operates an open pit quarryi 

cement is produced. 

In December 1987 he learned of an accident at the plant and 

he conducted a subsequent investigation. The investigation 

report was received in evidence as Exhibit P-2. 

During the inspection of the scene Mr. Ramage was accompanied by management representatives Green, Metzker and Krause. 

Lone Star's cement producing process is illustrated by 

Exhibit R-1. A limestone slurry initially enters a kiln. The 

chamber, which rotates, in turn discharges its clinkers into a 

cooler. The clinkers flow from the kiln to the cooler through 

a clinker dust chamber. Clinker dust accumulates in the dust 

chamber and a slide, or chute, permits the dust to fall into a 

screw conveyor located at ground level. 

This 16-inch screw conveyor, 49.83 feet in leng~h, is driven 

by a 25 hp electric motor. It rotates at 60 r.p.m. 

On the day of this accident temporary scaffolding had been 

erected to perform maintenance work in the clinker dust chamber. 

Exhibit P-3Ca) shows the position of the scaffolding in the dust 

chamber. Repair and maintenance occurs about once a year when 

the kiln is shut down. 

On this repair and maintenance day four workers were using 

impact tools to install grates in the dust chamber. These workmen had entered the dust chamber from the top via a ladder. 

At the bottom of the dust chamber there are four inspection 

doors located just above the auger (Exhibit P-3(a)). The above 

described doors are not posted with any directions that they 

should not be used for access to the chamber. 

In the above situation Lone Star's engineer Ronald E. 

Roebuck entered the dust chamber through the second inspection 

door from the left. Light and extension cords, as we~l as air 

lines, had been taken into the dust chamber through one of the 

197 
inspection doors. The repairmen working in the dust chamber 

had gained access through the top of the chamber. Due to the 

closeness of the shroud to the side of the dust chamber, Roebuck 

Cwho was a big man) apparently decided to enter through the inspection door of the dust chamber. 1/ By entering the chamber 

through the inspection door he could ascend to the temporary 

scaffolding where the repairmen were working. He could then go 

into the air duct area to obtain some measurements. 

When he entered Roebuck did not deenergize and lock out 

the screw conveyor. As he was attempting to climb up the metal 

slide or chute to the scaffolding something caught on the chute. 

He lost his footing and slid back down through the feed opening 

below the inspection door he had just entered. This permitted 

his right foot to pass through the opening into the rotating 

screw conveyor. His right foot became entangled in the rotating 

screw which pulled his foot and leg into the conveyor. His right 

leg was severed about mid-thigh. 

Fellow employees heard Roebuck's screams for help and they 

went to his assistance. To reach Roebuck they descended from the 

scaffold to the bottom of the dust chamber and exited via an 

inspection door. Roebuck was then sitting outside the chamber 

and a fellow employee immediately went to the burner floor and 

shut off the conveyor. 

Discussion 

In The Hanna Mining Company, 3 FMSHRC 2045 (1981) the 

Commission considered the "safe access" regulation and ruled 

that "the standard requires that each 'means of access' to a 

working place be safe." In addition, the Commission observed 

that "(t}his does not mean necessarily that an operator must 

assure that every conceivable route to a working place no matter 

how circuitous or improbable, be safe." 3 FMSHRC at 2046. 

The regulation in contest here is generally listed under the 

category of "Travelways." Accordingly, it is appropriate to 

consider whether a travelway was involved here. Section 56.l 

defines a travelway as "a passage, walk or way regularly used 

and designated for persons to go from one place to another." 

1/ Roebuck did not testify and the inspector indicated Roebuck 

did not give him any r~son as to why he entered through the 

in spec ti on door (Tr,..,.- "40 > • 

I 

,/ 

198 
As a threshold matter the record here fails to disclose that 

a route via the inspection door was regularly used by employees. 

I recognize that this incident occurred during a repair and 

maintenance mode. (In fact, due to excessive heat generated by 

the process, workers cannot enter the clinker cooler when it is 

operational.> 

After extensive testimony on the issue of whether employees 

regularly went through the inspection doors, respondent moved to 

strike portions of the testimony of the inspector (Tr. 81-82). 

The judge reserved his ruling until the conclusion of the case 

and at that point he ruled that no credible evidence supported 

the view that workmen used the inspection door to enter the dust 

chamber (Tr. 110-111). 

It is further apparent that the inspection door was not 

designated as an entry door. The ordinary definitions of "designate" are "to point out the location," or to "indicate." 2/ The 

testimony, scale drawings and photographs do not show that the 

inspection doors were designated as entry doors. (Exhibits P-4, 

P-5, P-6 and P-7 are photographs of the inspection doors.) 

With the Commission's mandate in Hanna it is necessary to 

further review the evidence to determine whether an inspection 

door presented a reasonable means of access. 

As a threshold matter it is apparent these four inspection 

doors were to be opened to inspect the flow of material entering 

the screw conveyor (Tr. 75). No evidence indicates they are 

access doors to be used by workers to enter the dust chamber. 

At the hearing there was no testimony as to the size of the 

opening. The only 

(Exhibit P-3Ca)). 

by 2 feet 8 inches 

would be, at best, 

evidence is contained in the scale drawing 

This exhibit indicates a door was 3 feet high 

wide. Entry from the bottom of the chamber 

difficult for any person. 

When Roebuck entered the dust chamber he had to physically 

pass over the enclosed screw conveyor. He would then be entering 

the chamber onto a sharply inclined dusty or gritty chute. The 

testimony does not disclose the angle of the chute. However, 

Exhibit P-3{a) shows the scaffolding and the chute. 

~/ Webster's New Collegiate Dictionary, 1979, at 305. 

199 
The point where Roebuck's leg slipped into the screw conveyor was normally guarded by a grizzly. It was apparently not 

guarded on this occasion. However, the failure to guard the 

conveyor does not convert this route to a travelway. It is uncontroverted that the grizzly was not a man guard nor was it 

designed to prevent a person from being caught in the screw auger 

(Tr. 94-95). 

It is true that air lines and hoses had been passed through 

the door opening to the workmen on the scaffolding but that fact, 

in and of itself, would not convert this inspection door and 

route into a passageway. 

It is further true that Roebuck's fellow workers came down 

from the scaffold and reached him through the inspection door. 

However, this was in response to his calls for help and after he 

had been injured. 

The Secretary argues that a violation of § 56.11001 was 

established by the very absence of a safe travelway into the dust 

chamber (Brief at 5). Indeed, she argues the accident would not 

have occurred if respondent had designated a safe passage for 

employees to regularly use. 

The evidence does not support the Secretary's argument. 

Entry through the top of the dust chamber was not shown to be 

unsafe. In fact, the four workmen entered through the top and 

performed their maintenance work from the scaffold (Tr. 74). 

The testimony is unclear but access through the top involved 

a three foot by four foot opening (Tr. 89). 

The regulation requires an operator to furnish safe access. 

It does not require an operator to assure that every conceivable 

route to a working place be safe. 

The Secretary further argues that the accident itself establishes that the means of access used by Roebuck was unsafe. 

The Secretary's arguments are rejected. It is well establisted that an accident, in and of itself, does not prove a 

violation of a regulation. Texas Industries, Incorporated, 

4 FMSHRC 352 (1982). 

In sum, on the evidence presented here I conclude the eQtry 

through the inspection door was not a means of access within the 

meaning of the standard. Further, there was no reasonable possibility that a miner would use this route as a means of reaching a 

work place. 

Citation No. 2870909 should be vacated. 

200 
Citation No. 2870908 

This citation charges respondent with violating 30 C.F.R. 

§ 56.12016, cited, supra. 

During the hearing the Secretary was granted leave to 

allege, in the alternative, that the operator violated 30 C.F.R. 

§ 56.14029. '!_I 

The uncontroverted facts indicate that Roebuck entered the 

dust chamber without turning off and locking out the screw auger. 

The uncontroverted facts further establish that no repairs or 

maintenance was being performed on the screw auger at the time. 

Both of the regulations cited here forbid repairs or maintenance on moving machinery except where motion is necessary to 

make adjustments. In the instant case the screw auger was moving 

but no repairs or maintenance were being performed on it. The 

cited regulations are not applicable in this factual situation. 

For a case illustrating this principle, see the wellreasoned decision of Judge James A. Broderick in United States 

Steel Corporation, 4 FMSHRC 906 (1982). 

The matter of taking measurements (as Roebuck intended to 

do) and the workmen installing grates cannot be stretched to 

include a repair or maintenance of the screw auger. 

various other cases demonstrate the proper application 

of the standards: Cf. Greenville Quarries, Inc., 9 FMSHRC 1390 

(1987) (Koutras, J); North American Sand & Gravel Co., 2 FMSHRC 

2017 (1980), (Moore, J); Brown Brothers Sand Co., 3 FMSHRC 734 

C 19 81 ) CC ook , J > • 

The Secretary argues that the cited standards are designed, 

in part, to prevent the hazard of human entanglement in moving 

ll The standard reads as follows: 

§ 56.14029 Machinery repairs and maintenance. 

Repairs or maintenance shall not be performed on 

machinery until the power is off and the machinery 

blocked against motion, except where machinery 

motion is necessary to make adjustments. 

201 
machine parts. In support of her view she relies on Adam Stone 

Corporation, 7 FMSHRC 692 (1985) and Price Construction, Inc., 

7 FMSHRC 66.1 ( 1985). 

I agree with the Secretary's statement concerning the 

purpose of regulations. However, such regulations are not 

applicable to the facts in this case. 

The Secretary states the standards should be broadly construed to include those situations where employees are required 

to crawl, step or jump over moving machine parts to reach a 

destination. I decline to construe the regulation as requested. 

If such a regulation is appropriate the Secretary can enact it 

through her rule-making authority. 

For the foregoing reasons Citation No. 2870908 should be 

vacated. 

ORDER 

Based on the foregoing findings of fact and conclusions of 

law I enter the following order: 

1. Citation 2870909 and all proposed penalties therefor are 

vacated. 

2. Citation 2870908 and all proposed penalties therefor are 

vacated. 

Law Judge 

Distribution: 

Charles W. Mangum, Esq., Office of the Solicitor, U.S. Department of Labor, Room 2106, 911 Walnut Street, Kansas City, MO 

64106 (Certified Mail) 

Michael T. Heenan, Esq., Smith, Heenan & Althen, Suite 400, 

1110 Vermont Avenue, N.W., Washington, D.C. 20005-3593 

(Certified Mail) 

/ot 

202 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

Off ice of Administrative Law Judges 

2 Skyline, 10th Floor 

5203 Leesburg Pike 

Falls Church, Virginia 22041 

fEB 5 \990 

GERALD SMITH, DISCRIMINATION PROCEEDING 

Complainant 

v. 

PYRAMID MINING, INC., 

Respondent 

DECISION 

Docket No. KENT 89-218-D 

MADI-CD-89-04 

Hall No. 2 Mine 

Appearances: Henry E. Hayden, Esq., Hayden & McKown, 

Hartford, Kentucky for Complainant; 

Patrick D. Pace, Esq., Rlli~mage, Kamuf, Yewell, 

Pace & Condon, OWensboro, Kentucky for 

Respondent. 

Before: Judge Melick 

This case is before me upon the Complaint of 

Gerald Smith under section 105(c)(3) of the Federal Mine 

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

"Act," alleging unlawful discharge by Pyramid Mining, Inc. 

(Pyramid) in violation of section 105(c)(l) of the Act.~/ 

~/Section lOSCc)(l) of the Act provides as follows: 

No person shall discharge or in any manner 

discriminate against or cause to be discharged or 

cause discrimination against or otherwise interfere 

with the exercise of the statutory rights of any 

miner, representative of miners or applicant for 

employment in any coal or other mine subject to 

this Act because such miner, representative of 

miners or applicant for employment, has filed or 

made a complaint under or related to this Act, 

including a complaint notifying the operator or the 

operator's agent, or the representative of the 

miners at the coal or other mine of an alleged 

danger or safety or health violation in a coal or 

other mine or because such miner, representative of 

ininers or applicant for employment is the subject 

of medical evaluations and potential transfer under 

a standard published pursuant to section 101 or 

because such representative of miners or applicant 

for ~nployment has instituted or caused to be 

instituted any proceedings under or related to this 

Act or has testified or is about to testify in any 

such proceeding, or because of the exercise by such 

miner, representative of miners or applicant for 

employment on behalf of himself or others of any 

statutory right afforded by this Act. 

203 
In his Amended Complaint Mr. Smith alleges that he was 

unlawfully discharged on May 5, 1989, for the following 

reasons: 

In 1989 at various ti{tlf,:~ prior::~o his dismissal in 

May 19 89, the Plaintiff had g·iven the Defendant 

notification of various safety problems that 

existed in regard to his employment. Specifically, 

the Plaintiff complained numerous times about the 

brakes and air-conditioner on his loader and about 

fuel spills on the loader, emergency brakes being 

inoperative, and rear tires on the loader being 

dangerously worn. In addition, the Plaintiff had 

complained to the Defendant regarding the fact that 

he was not allowed to take breaks and was required 

to work many shifts straight through, 16 hours. 

In order to establish a orima facie violation of 

section 105(c)(l) of the Act, the Complainant must prove by a 

preponderance of the evidence that he engaged in protected 

activity and the adverse action taken against him was 

motivated in any part by the protected activity. In order to 

rebut a prima facie case, the Respondent must show either 

that no protected activity occurred or that the adverse 

action was in no part motivated by the miners protected 

activity. Secretary of Labor on behalf of Pasula v. 

Consolidation Coal Company, Inc. 2 FMSHRC 2786 (1980), rev'd 

on other ground sub nom. Consolidation Coal Company v. 

Marshall 663 F.2d 1211 (3rd Circuit 1981). 

While the Complainant herein has clearly established 

that he engaged in activities protected by the Act by 

reporting potential safety and health hazards to Pyramid 

management he has failed to sustain his burden of proving 

that his discharge was motivated in any part by those 

protected activities. It is undisputed that pursuant to a 

written request by Pyrami<). to all of its employees on or 

about March 31, 1989, (Complainant's Exhiblt No. 2) 

for, among other things, "a report of any ftem not in proper 

operating condition such as brakes, horns, fire 

extinguishers, seat belts, back-up alarms, tire or track 

conditions and temperature and pressure gauge conditions on 

equipment", the Complainant submitted a typewritten list 

setting forth the following complaints or defects: 

"temperature gauge works part time, fuel pressure gauge 

doesn't work at all, air conditioner doesn't cool, brakes are 

no good, left ladder bent, back tires are slick, transmission 

is out" (Complainant's Exhibit No. 2). 

204 
Pyramid maintains on the other hand that Smith was 

discharged ·an May 5, 1989, for threatening its employees. In 

particular Mine Superintendent Harold Meredith, the official 

who actually discharged Smith, testified that he was told on 

May 3rd, by his Manage~ of Processing and Transportation, 

Randy Heintzman, that he had been told that the lives of both 

he and Safety Director Plummer had been threatened by Smith. 

Meredith specified in writing the reasons for Smith's 

discharge as follows: 

Gerald has from time to time made threats to fellow 

employees also supervision. ·rhis problei-n has been 

an on going thing for several weeks Gerald has been 

called in the company off ice to discuss this 

problem several times. I feel to insure the safety 

of employees who work with Gerald to discharge him 

at this time. {Respondent's Exhibit No. 1) 

Superintendent Meredith obtained his information 

indirectly from Heintzman who, in turn, had received his 

information from Smith's immediate foreman, James S. Williams. 

Williams testified that he had known Smith for about nine 

years while working at the Hall No. 1 Mine. According to 

Williams it was around May 1, 1989, that Smith came to his 

house bringing a doctor's excuse for an absence. Williams 

testified that Smith was at his house for about an hour or an 

hour and ten minutes and during the course of his visit 

threatened to "blow Heintzman's head off". 

During the conversation, according to Williams, Smith 

also admitted that he had "gone after" Safety Director 

Pluatmer at an area gas station but that Plummer had "pulled 

out" before he got to him. Smith was apparently angry that 

Plummer had called his doctor to verify a previous excuse and 

discovered that, in fact, Smith had not actualy seen the 

doctor. Williams testified that he believed the threats were 

serious because of Smith's "nature" and his prior experience. 

Williams also testified that Smith carried:weapons in his 

truck including a .44 Magnum handgun and a 3 1/2 foot long 

stick. Williams testified that he was also aware of orior 

threats by Smith to beat or shoot a co-worker, Roger 6unning, 

in 1985 or 1986. According to Williams, Smith had also shown 

him the 3 1/2 foot long stic~ on prior occasions while 

threatening to "put knots on the head" of focrner Assistant 

Superintendent Hatten. 

Smith denies making any such threats. According to 

Smith's theory at hearing Williams fabricated these threats 

as a means of getting rid of him and thereby of ingratiating 

himself with Pyramid management. S~itn continues to maintain 

205 
that the actual reason for his discharge was his protected 

safety complaints. 

I do not find however that Smith's testimony is credible. 

He has failed to discredit the testimony of Williams that he 

indeed made the threats attributed to him. In addition the 

motive he attributes to Williams for his allegations that 

Williams fabricated the threats is not credible. Clearly if 

Pyramid needed a pretext for discharging Smith after his 

safety complaints it had ample grounds to do so in early 

April 1989, when Smith was caught submitting a bogus medical 

excuse after taking several days off for personal business. 

·rhe fact that Smith was not discharged at that time when 

ample grounds existed to do so only serves to corroborate 

managements position that it did not entertain a retaliatory 

motive based in his safety complaints when it later 

discharged h iin for threatening its employees. 

Pyramid has, moreover, clearly established through 

credible testimony that Smith indeed threatened both 

management personnel and hourly workers immediately before 

his discharge and on prior occasions. It is also relevant 

and corroborative of Smith's ability to carry out such 

threats that Smith admitted owning five handguns, including 

the .44 Magnum apparently seen by Williams, and that he 

sometimes kept a handgun in his truck while at work. 

Under the circumstances I find that Smith has failed to 

sustain his burden of proving that his discharge was 

motivated in any part by his protected activities. 

ORDER 

Discrimination Proce~ding Docket No. 89-218-D 

DISMISSED. 

-

Ga y Mel ck 

A minist ative Law Judge 

Distribution: 

Henry E. Hayden, Esq., Hayden & Mckown, Courthouse Square, 

Hartford, ~Y 42347 (Certified Mail) 

Patrick D. Pace, Esq., Rummage, Kamuf, Yewell, Pace, & 

Condon, 322 Frederica Street, Owensboro, ~Y 42301 (Certified 

11ai 1) 

nt 

206 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

Off ice of Administrative Law Judges 

2 Skyline, 10th Floor 

5203 Leesburg Pike 

~alls Church, Virginia 22041 

FEB 5 1990 

ALLEN ELLSWORTH, 

Complainant 

v. 

FREEMAN COAL MINING COMPANY, 

Respondent 

DECISION 

DISCRIMINATION PROCEEDING 

Docket No. LAKE 89-33-D 

VINC CD 88-10 

Crown II Mine 

Appearances: H. Carl Runge, Esq., Runge & Gumbel, P.C., 

Collinsville, Illinois for Complainant; 

Harry M. Coven, Esq., Gould & Ratner, 

Chicago, Illinois for Respondent. 

Before: Judge Melick 

This case is before me upon the Complaint by 

Allen Ellsworth under section 105(c)(3) of the Federal Mine 

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

"Act, 11 alleging unlawful discharge by the Freeman United Coal 

Mining Company (Freeman) in violation of section 105(c)(l) of 

the Act~/. More particularly the Complainant alleges that 

his discharge on August 4, 1988, was the direct result of his 

refusal to perform work which he believed to have been unsafe. 

!I Section 105(c)(l) of the Act provides as follows: 

No person shall discharge or in any manner 

discriminate against or cause to be discharged or 

cause discrimination against or otherwise interfere 

with the exercise of the statutory rights of any 

miner, representative of miners or applicant for 

employment in any coal or other mine subject to 

this Act because such miner, representative of 

1niners or applicant for employment, has tiled or 

made a complaint under or related to this Act, 

including a complaint notifying the operator or the 

operator's agent, or the representative of the 

miners at the coal or other mine of an alleged 

danger or safety or health violation in a coal or 

other mine or because such miner, representative of 

ininers or applicant for ei.-nployment is the subject 

of medical evaluations and potential transfer under 

a standard published pursuant to section 101 or 

because such re~resentative of miners or applicant 

for employment has instituted or caused to be 

207 
The record shows that the Complainant had been employed 

by Freeman as a miner since 1976. At the time of his 

discharge on August 4, 1988, he was classified as a rock 

duster but had been more recently assigned to shovel coal 

spillage around the beltline for several shifts. The 

beltline ran down the center of the entry suspended from the 

mine roof. The mine height in this area was 6 to 8 feet and 

there was approximately 6 feet of clearance on each side 

between the belt and the ribs. There was also a space 

beneath the suspended belt of between 18 to 48 inches. 

On the midnight shift on August 4, 1988, the Complainant 

was initially assigned by his foreman, Roger Johnson, to 

shovel coal spillage on the east side of the belt with 

another miner. Two other miners were shoveling on the 

west side of the belt. According to Ellsworth, while 

shoveling the beltline during the previous night his shovel 

was momentarily caught in the belt. Ellsworth testified that 

although he was scared by this incident he never reported or 

complained of it to anyone nor did he refuse to work because 

of the incident. He further testified that he was aware at 

this time of a publication by the Federal Mine Safety and 

Health Administration (MSHA) warning as follows: 

SAFETY TIP 

Remember: Never put any part of your body in a 

position where it could be caught by a belt 

conveyor. Belt conveyors should be stopped when 

performing any type of cleaning or mechanical work. 

If any guards are removed, they must be replaced 

immediately. (Exhibit C-1) 

Ellsworth testified that he was also aware at that time 

of miners being. killed after being caught in moving belts. 

In spite of this knowledge Ellsworth did not complain that 

the practice of shoveling coal onto the beltline was in 

itself unsafe. 

It is within this framework that Ellsworth claims he 

subsequently refused to perform his assigned work on 

August 4, 1988. During his shift that night Foreman Johnson 

had to assign one of the four shovelers to another job. 

~oting that the west side was further behind the east side in 

the clean-up effort Johnson assigned two miners to clean the 

west side leaving Ellsworth alone on the east side. 

Cont'd Fn.l 

instituted any proceedings under or related to this 

Act or has testified or is about to testify in any 

such proceeding, or because of the exercise by such 

miner, reoresentative of miners or aoolicant for 

l'~inployment on behalf of himself or others of any 

statutory right afforded by this Act. 

208 
Ellsworth protested stating that it was unsafe to shovel 

alone on one side of the belt. He complained that if he fell 

into the belt, no one would be close by to help him. 

At hearing Ellsworth clarified his concerns that no one 

was working his side of the belt. He testified that if other 

miners had been working within 1 1/2 crosscuts on his side 

that would have been an acceptable distance away. The miners 

shoveling on the west side of the beltline at this time were 

within 1 1/2 crosscuts but in order to pull Ellsworth from 

the belt would have had to also pass beneath the belt. 'rhe 

cutoff switch to the belt was however also on the west side 

about 100 feet from where the miners were shoveling at the 

time of Ellsworth's work refusal. 

Foreman Johnson testified that when Ellsworth refused to 

shovel on the east side Ellsworth requested an evaluation by 

a union safety committeeman. Johnson then called Kenneth 

Miller, the shift mine manager, on the mine telephone and 

reported the problem. Miller instructed Johnson to assign 

Ellsworth to shovel with the others on the west side of the 

belt until he arrived. 

When Miller arrived at the area about a half hour later, 

Johnson explained that Ellsworth thought it was unsafe to 

shovel by himself. Miller and Johnson then inspected the 

east side of the belt where Ellsworth refused to work. They 

found nothing abnormal or unsafe about the entry or area. 

Miller then spoke to Ellsworth, who repeated his fears that 

"it was unsafe for him to shovel on the east side of the belt 

alone and that he was afraid if he got tangled into the belt, 

there wouldn't be anyone to help him". Miller explained to 

Ellsworth that the area did not violate any safety standards 

and that many other miners travel by themselves, examiners 

walk and examine the belts by themselves and classified belt 

shovelers shovel by themselves. Ellsworth still refused. 

Miller then left the area and later returned with the 

union safety comini tteeman, Oavid Owens. After ,inspecting the 

work area, OWens requested to talk privately wit~ Ellsworth. 

After 25 to 30 minutes of private discussion Owens reported 

that he found nothing hazardous or unsafe about the job. 

Miller then gave Ellsworth a direct work order to return to 

the east side of the belt and shovel. Ellsworth refused and 

continued to maintain that it was unsafe. Miller gave 

iUls·.·10rth 4 or 5 direct work orders to shovel on the east 

side of the belt each of which he refused, reading to Miller 

.E ro!n the collective ba rganing agreement and demandi niJ that a 

state or federal inspector decide if it was safe. 

David Webb, then mine superintendent, testified that he 

· .. 1as awakened by a tel-ephone call Er om Miller at approxiina tely 

3:5U on the morning of August 4th, and proceeded to the mine 

209 
to meet Miller. After reviewing the situation Webb proceeded 

underground to meet with Ellsworth. He recalled that there 

was a calm.and unexcited interchange between he and Ellsworth 

during which he asked Ellsworth to get onto the golf cart and 

exit the mine. Ellsworth declined and showed Webb a copy of 

Article 3 section I (n)(3) of the collective bargaining 

ag reeinent claiming that he was entitled to call a federal or 

state inspector to the scene. Webb explained that those 

provisions did not apply in circumstances where the union 

safety committeeman does not find a hazard. According to 

Webb, Ellsworth then offered to leave the mine but only on 

condition that he be paid for the complete shift. Finally 

union vice-president Fox arrived and convinced Ellsworth to 

leave the mine in exchange for a meeting with management at 

9:00 later that morning. Ellsworth then left the mine. 

The meeting convened around 9:00 or 9:30 that morning at 

which Ellsworth was advised by Webb that his refusal to leave 

the mine after a direct order constituted gross 

insubordination and that he was being suspended with-intentto-discharge. Webb testified that Ellsworth was discharged 

because of his gross insubordination in disobeying orders to 

leave the mine and because of Ellsworth's refusal to obey 

orders to shovel coal. 

Kenneth Fox the union committeeman and local union 

vice-president testified that he was called by Webb to meet 

with Ellsworth in the early morning of August 4. He 

discussed the provisions of the collective bargaining 

agreement with Ellsworth and Ellsworth continued to maintain 

that he had the right to call a state or federal inspector to 

examine the alleged hazardous condition. Fox testified that 

he told Ellsworth that the agreement did not grant him that 

right once the safety committeeman determined that the 

cnallenged procedure was not unsafe. Ellsworth finally 

agreed and acknowledged to Fox that "I might have messed up 

and I better get out of the mine". 

In order to establish a prima f acie vlolaGion of 

Section 105(c)(l) of the Act Mr. Ellsworth must prove by a 

preponderance of the evidence that he engaged in an activity 

protected by that section and that his discharge was 

;noth1 ated in any part by that protected activity. Secretarv 

on behalf of Fasula v. Consolidation Coal Co., 2 FMSHRC 2786 

(1~80) rev'd on other grounds sub nom Consolidation Coal Co., 

v. Marshall 6663 F.2d 1211 (3rd Cir. 1981); Secretary on 

behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803 

(1331). A miner's "work refusal" is protected under 

Section 105(c) of the Act if the miner has a good faith, 

reasonable belief in the existence of hazardous condition. 

~iller v. FMSHRC 687 F.2d 1984 (7th Cir. 1982); Robinette, 

supra. "Good faith b.elief" means an honest belief that a 

hazard exists. The purpose of the requirement is to remove 

210 
from protection under the Act, work refusals involving fraud 

or other forms of deception. In evaluating this requirement 

consideration may be given to evidence suggesting the 

likelihood of a pretext or ulterior motive for the employee's 

actions. See Secretary on behalf of Hogan and Ventura v. 

Emerald Mines Coro., 8 FMSHRC 1066 (1986). In the Hogan and 

Ventura case the Commission explained that the miner's belief 

in the hazard must also be reasonable and noted that 

irrational or completely unfounded work refusals are excluded 

from statutory protection. The miner's perception of a 

hazard must also be evaluated from the viewpoint of the 

refusing miner at the time of the refusal. Hogan and 

Ventura, supra. 

In this case I find that Mr. Ellsworth's work refusal 

was neither made in good faith nor reasonable. In this 

regard the evidence shows that Ellsworth was classified as a 

rock duster but that he had been working on at least one 

shift before the shift at issue shoveling loose coal onto a 

conveyor. Ellsworth acknowledged that none of the miners, 

including himself, like to shovel coal and that he was 

concerned because he had seen other miners not classified as 

rock dusters performing what he considered to be his work. 

Indeed at the beginning of his work shift on August 4 one of 

Ellsworth's co-workers had warned Foreman Johnson that 

Ellsworth was "upset" at having to shovel coal rather than 

perform his regular job rock dusting. Ellsworth had also 

recently asked his union committeeman whether Freeman's 

practice of allowing others to perform his job of rock 

dusting while he had to shovel violated the collective 

bargaining agreement. It may reasonably be inferred from 

this evidence that Ellsworth indeed had an ulterior motive 

for his refusal shortly thereafter to shovel coal for alleged 

"safety" reasons. 

I also note that Ellsworth had shoveled coal along the 

beltline for the entire previous shift and continued to do so 

during the shift at issue without any comment or complaints 

that the practice in itself was unsafe. The f~ct that 

Ellsworth continued in his work refusal after examination of 

conditions, at his request, by his union safety committeeman 

who found no hazard also supports the conclusion that 

Ellsworth was not acting in good fatih. 

In addition, evaluation of alternative rescue methods 

shows that closely equivnlent, if not preferable methods 

existed to aid Ells~orth. The stop switch for the belt was 

located on the west side and the miners working on the west 

side were within 1 1/2 crosscuts, a distance acceptable to 

Ellsworth. A.ssuming one miner would cut the power to the 

belt the other miner could legally pass beneath the belt to 

perform a rescue. Ar-guably it would be safer to have a miner 

on the west side with access to the cut-off switch than to 

211 
have only two miners on the east side. The apparent refusal 

of Ellsworth to consider alternative safety measures is also 

indicative of a lack of good faith. 

In any event even if Ellsworth's Complaint was made in 

good faith, section 105(c) of the Act does not enable miners 

to avoid difficult or distasteful tasks even when the 

avoidance is based on a good faith concern for safety alone. 

·rhe work refusal must also be reasonable and must involve a 

condition or practice which creates a safety hazard beyond 

the hazards inherent in the mining industry or occupation 

itself. UMWA/Simmons v. Southern Ohio Coal Co., 4 FMSHRC 

1584, 1589 (Judge Broderick, 1982). See also Bush v. Union 

Carbide Coro., 5 FMSHRC 9 9 3 C 19 8 3). Thus the mere act of 

proceeding underground and shoveling coal under the noted 

circumstances can result in a good faith concern for safety 

in many people. However for a person accepting employment as 

a miner, refusal to work because of such a concern may be 

unreasonable. In this case the evidence shows that it was 

customary practice for miners to shovel coal as Ellsworth was 

asKed to do, to inspect the beltline alone and to travel 

alone adjacent to the beltline. Indeed the Complainant 

himself had previously traveled the beltline as a mine 

examiner alone without complaint. In addition Ellsworth's 

own union safety conunitteeman found the job not to be 

hazardous. Under all the circumstances I cannot find that 

Ellsworth's work refusal was reasonable. Accordingly 

Ellsworth's work refusal was not protected by the Act and his 

subsequent discharge based upon his refusal to work was 

therefore not in violation of the Act. 

ORDER 

Discrimination Proceeding Docket No. LAKE 89-33-D is 

DISMISSED. 

~ 

' \ 

~ary Melick J 

· .. j 

'·"-

Administrative Law Judge 

Distribution: 

H. Carl Runge, Jr., Esq., Runge & Gumbel, P.C., 1711 Keebler, 

P.O. Box 533, Collinsville, IL 62234 (Certified Mail) 

Harry~- Coven, Esq., Gould & Ratner, Eigth Floor, 222 North 

LaSalle Street, Chicago, IL 60601 (Certified Mail) 

nt 

212 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

Off ice of Administrative Law Judges 

2 Skyline, 10th Floor 

5203 Leesburg Pike 

Falls Church, Virginia 22041 FEB 51990 

BERNARD J. GARNEK, DISCRIMINATION PROCEEDING 

Complainant 

v. . . Docket No. PENN 89-213-D 

. 

. SHANNO PIN MINING .COMPANY . . PITT CD 89-16 

Respondent Shannopin Mine 

ORDER OF DISMISSAL 

Before: Judge Melick 

Complainant in effect requests approval to withdraw his 

complaint in the captioned case for the reason that the 

parties have reached a mutually agreeable settlement. Under 

the circumstances herein, permission to ~ithdraw is granted. 

29 c.F.R. § 2700.11. This case is ther~fore dismissed. The 

hear in~s scheduled to commenI o~\Februa.r. y 13, 19 9 0 ,Ii are 

accordingly cancelled. / r / f 

i \ • ; ' ... ; . \ \ ,\ : ; 

/ . II J ' ·1' , . ·-· ~·v~-.,.\" I . . I·\ ' I \ ,..,-· \ / \ ' I ' 

Gary Melick .\ ,, '..'\ //.' ./'',., 

Administrativ~ Law Judge 

Distribution: : I t : ; 

:· I 

Bernard J. Garnek, P.O. Box 76, ~obtown,; Pennsylvania 15315 

(Certified M.ail) 

,Joseph Mack, III, Esq., Thorp, Reed & Armstrong, One 

Riverfront Center, Pittsburgh, PA 15222 (Certified Mail) 

nt 

213 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

Off ice of Administrative Law Judges 

2 Skyline, 10th Floor 

5203 Leesburg Pike 

Falls Church, Virginia 22041 

FEB 71990 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND H8ALTH 

ADMINISTRATION, (MSHA), 

Petitioner 

v. 

BRUSH CREEK COAL INC., 

Respondent 

DECISION 

Docket No. KENT ~9-117 

A.C. No. 15-11018-03530 

Mine No. 1 

Appearance: G. Elaine Smith, U.S. Department of Labor, 

Office of the Solicitor, Nashville, Tennessee, 

for Petitioner; 

No appearance on behalf of Brush Creek Coal, Inc. 

Before: Judge Melick 

At hearings scheduled to commence on January 17, 1990 at 

2:00 p.m., in Johnson City, Tennessee no representative of 

the Respondent appeared. 

Thereafter on Janaury 22, 1990 an Order to Show Cause 

was issued to provide Respondent an opportunity until 

February 1, 1990 to explain its failure to send a 

representative to appear at the scheduled hearings. To date 

no response to the show cause order has been filed. 

Accordingly the Respondent is in default. 

OI~.DER 

I I . 

Brush Creek pay civil 

penalties of $90 

Coal, Inc., is directed to 

within 30 rays tf ~he ~te o~ this decision. 

.\_, \ . ,' 

\ i ·,_. 

I 

!Gary Mflick 

.} Administrative 

(703) 756-6261 

214 

I 

' 

; . \ 

Law ,Judge 

~-
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

Off ice 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. 

FEB 

TANKS UNLIMITED, INCORPORATED, 

Respondent . . 

71990 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 89-79 

A.C. No. 12-00332-03501 

Minnehaha Mine 

DECISION 

Appearances: Miguel J. Carmona, Esq., U.S. Department of Labor, 

Office of the Solicitor, Chicago, Illinois, for the 

Petitioner; 

Henry Y. Dein, Esq., Indianapolis, Indiana, for the 

Respondent. 

Before: Judge Maurer 

This case is before me upon a petition for assessment of 

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

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

Pursuant to notice, a hearing was convened in Indianapolis, 

Indiana on January 3, 1990. At that hearing, the respondent, by 

counsel, admitt~d all the allegations contained in the petition 

with regard to Citation Nos. 3038257 and 3038259, including the 

fact of violation and all the special findings that the inspector 

included in the two citations. 

The remainder of the hearing concerned bl)e financial status 

of the corporation as it exists at this time. Mr. Leroy Dunkin, 

the President of the corporation, was called and testified to the 

ef Eect that because of the two accidental deaths involving the 

crnnpany since 1987, including the one herein involved, the 

corporation is out of business and broke. 

As a result of the earlier fatal accident, criminal 

proceedings were instituted against both the corporation and 

Mr. Dunkin, personally. As a result of those proceedings, the 

corporation, through its officers, entered a plea of guilty and a 

215 
$13,500 fine was paid. The legal expenses of that proceeding 

approached $80,000, for both the corporation and its officers, 

exhausting the corporate treasury. Approximately $500 is left at 

the present time. 

The settlement of this case that the parties proposed was 

that respondent would pay the $500 civil penalty that has been 

assessed for Citation No. 3038257 in its entirety out of the 

remainder of the corporate assets and that an additional $500 of 

the $3000 assessed for Citation No. 3038259 would be paid by 

Mr. Dunkin, personally. 

I approved that motion at the hearing and pursuant to the 

Rule of Practice before this Commission, this written decision 

confirms the bench decision I rendered at the hearing, approving 

the settlement. 

WHEREFORE IT IS ORDERED that the respondent, and by 

agreement, Mr. Leroy Dunkin, personally, are responsible for 

and shall pay the approved civil penalty of $1000 within 30 days 

of this decision. Upon receipt of payment in full by the 

Secretary, this case is dismissed. 

Distribution: 

Miguel J. Carmona, Esq., U.S. Department of Labor, Office of the 

Solicitor, 230 Dearborn St., 8th Floor, Chicago, IL 60604 

(Certified Mail) 

Henry Y. Dein, Esq., 748 East Bates St., Suite 202, Indianapolis, 

IN 46202 (Certified Mail) 

/ml 

216 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

Off ice of Administrative Law Judges 

2 Skyline, 10th Floor 

5203 Leesburg Pike 

Falls Church, Virginia 22041 

FEB 81990 

SECRE'rARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFE;ry AND HEALTH 

ADMINISTRATION (MSHA}, 

Petitioner 

v. 

HARLAN CUMBERLAND COAL 

COMPANY, 

Respondent . . 

. . 

Docket No. KENT 88-191 

A.C. No. 15-11964-03541 

H-2 Mine 

Docket No. KENT 88-192 

A.C. No. 15-07201-03559 

C-2 Mine 

AMENDMENT TO CORRECT CLERICAL ERROR IN DECISION 

The Decision dated January 30, 1990, is AMENDED to change 

the amount of penalties in the Order to read 11 $475 11 instead of 

"$525." 

~7AAAv~ William Fauver 

Adminstrative Law Judge 

Distribution: 

Anne T. Knauff, Esq., Office of the Solicitor, U.S. Department of 

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

(Certified Mail> 

Mr. Wallace Harris, Jr., Safety Director, Harlan Cumberland Coal 

Company, General Delivery, Grays Knob, Kentucky 40829 (Certified 

Mail} 

iz 

217 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

Off ice of Administrative Law Judges 

2 Skyline, 10th Floor 

5203 Leesburg Pike 

Falls Church, Virginia 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINIS'l'RATION (MSH.l~) , 

Petitioner 

v. 

FEB 

MAYLAND STONE COMPANY, INC., 

Respondent 

91990 

CIVIL PENALTY PROCEEDING 

Docket No. SE 89-96-M 

A.C. No. 31-01568-05507 

Daybook Mine 

DECISION APPROVING SETTLEMENT 

Appearances: Ken Welsch, Esq., Office of the Solicitor, 

U.S. Department of Labor, Atlanta, Georgia, 

for the Secretary of Labor; Lloyd Hise, Jr., Esq., 

Spruce Pine, North Carolina, for Mayland Stone 

Company, Inc. 

Before: Judge Broderick 

The above case was called for hearing on February 6, 1990, 

in Asheville, North Carolina. The Secretary made a motion 

on the record that a settlement agreement between the parties, 

whereby Respondent would pay the amount originally assessed, $600, 

be approved by the Cormnission. 

Respondent operates a crushed stone facility. It employs 

10 persons on one shift. During 1988, 80,550 man hours were 

worked at the mine~ During· the two years prior to the violation 

involved in this proceeding, Respondent had 7 paid violations 

of mandatory standards, including one violation of the berm 

standard, 30 C.F.R. § 56.9300, which is involved herein. The 

violation in this case was serious and was caused by Respondent's 

negligence. I have considered the motion in the light of the 

criteria in section llO(i) of the Act and conclude that it should 

be approved. 

Accordingly, the settlement is APPROVED and Respondent 

is ORDERED TO PAY the sum of $600 within 30 days of the date 

of this order. 

~s A!Jvod~~t.._ James A. Broderick 

Administrative Law Judge 

218 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

Off ice of Administrative Law Judges 

2 Skyline, 10th Floor 

5203 Leesburg Pike 

Falls Church, Virginia 22041 

FEB 151990 

GOEBEL SWINEY, DISCRIMINATION PROCEEDING 

Complainant 

v. Docket No. KENT 90-26-D 

SUN GLOW COAL COMPANY, INC. PIKE CD 89-14 

Respondent 

No. 1 Mine 

ORDER OF DISMISSAL 

Before: Judge Maurer 

The Complainant, Goebel Swiney, requests appl'.'oval to 

withdraw his complaint in the captioned case. He no longer 

desires a hearing concerning this matter. Under the 

circumstances herein, permission to withdraw is granted. 

29 C.F.R. § 2700.11. 

The hearing presently scheduled on February 13, 1990, in 

Abingdon, Virginia is cancelled and the case is dismissed. 

Distribution: 

Goebel Swiney, Box 102, Elkhorn City, KY 41522 (Certified Mail) 

Louis Dene, Esq., Dene & Associates, 138 Court Street, NE, P.O. 

Box 1135, Abingdon, VA 24210 (Certified Mail) 

/ml 

219 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 16 1990 

ROCHESTER & PITTSaURGH 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. 

ROCHESTER & PITTSBURGH COAL 

COMPANY, 

Respondent 

. . 

: 

CONTEST PROCEEDINGS 

Docket No. PENN 89-115-R 

Order No. 2891302; 2/23/89 

Docket No. PENN 89-116-R 

Citation No. 2891303; 2/23/89 

Docket No. PENN 89-117-R 

Citation No. 2891304; 3/2/89 

Docket No. PENN 89-118-R 

Order No. 2889678; 3/1/89 

Docket No. PENN 89-119-R 

Order No. 2889679; 3/1/89 

Greenwich Collieries No. 2 

Mine ID 36-02404 

CIVIL PENALTY PROCEEDINGS 

Docket No. PENN 89-127 

A.C. No. 36-05031-03553 

Main Complex Mine 

Docket No. PENN 89-236 

A.C. No. 36-02404-03761 

Greenwich Collieries No. 2 

DECISION 

Appearances: Joseph A. Yuhas, Esq., Greenwich Collieries, 

Ebensburg, Pennsylvania, for the Contestant/ 

Respondent; 

Mark v. Swirsky, Esq., U.S. Department of Labor, 

Office of the Solicitor, Philadelphia, 

Pennsylvania, for the Respondent/Petitioner. 

Before: Judge Maurer 

220 
Statement of the Case 

These consolidated cases are before me under section 105Cd) 

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

§ 801 et seq., the 11 Act 11 , to challenge five citations, two 

section 104(d)(2) orders and one imminent danger withdrawal order 

issued by the Secretary of Labor (Secretary) against the 

Rochester and Pittsburgh Coal Company (R&P) and for review of the 

civil penalties proposed by the Secretary for the related 

violations. 

Pursuant to notice, these cases were heard in Indiana, 

Pennsylvania on July 18 and 19, 1989. Both parties have filed 

post-hearing briefs which I have considered along with the entire 

record in making this decision. 

STIPULATIONS 

The parties have agreed to the following stipulations, which 

I accepted on the record: 

1. Greenwich Collieries No. 2 Mine and the Main 

Complex preparation plant are owned by Pennsylvania Mines 

Corporation and managed by Respondent Rochester and Pittsburgh 

Coal Company. 

2. Rochester and Pittsburgh Coal Co. is subject to the 

jurisdiction of the Federal Mine Safety and Health Act of 1977. 

3. The Administrative Law Judge has jurisdiction over these 

proceedings. 

4. The subject citations and orders were properly served by 

duly authorized representatives of the Secretary of Labor upon an 

agent of Rochester and Pittsburgh Coal Company at the dates, 

times and places stated therein and may be admitted into evidence 

for the purpose of establishing their issuance and not for the 

truthfulness or relevancy of any statements asserted therein. 

5. The assessment of a civil penalty for those dockets that 

have civil penalty consequences will not affect Rochester and 

Pittsburgh Coal Company's ability to continue in business. 

6. The parties stipulate to the authenticity of each other's 

exhibits, but not to the exhibits' relevance nor to the truth of 

the matters asserted within the exhibits. 

7. The subject citations and orders were abated in good 

faith by Rochester and Pittsburgh Coal Company. 

221 
8. The annual production of Respondent is approximately 10, 

554, 743 production tons. 

Docket Nos. PENN 89-115-R, -116-R and -117-R 

Inspector Samuel J. Brunatti issued an imminent danger order 

under§ 107(a) of the Act, and two citations under§ 104(a) of 

the Act. The order and both citations contained in the above 

referenced three dockets are all related to the same factual 

situation. 

On February 23, 1989 he issued Order No. 2891302 at the 

Greenwich No. 2 Mine ("Greenwich"). 

The 107(a) order stated: 

The current of air ventilating the face of the No. 3 

room M-16 active working section was not sufficient to 

dilute and render harmless and carry away flammable, 

explosive, noxious or harmful gases in that when 

checked with a MX 240 calibrated methane detector 1 

foot from the roof, face and rib on the right side 1.7% 

to 2.2% of methane was detected a violation of 

30 C.F.R. 75.301. The Joy continuous miner which was 

energized was in the immediate area. This condition 

occurred due to surveyors removing part of the back 

check between the intake and return, thus allowing the 

air to short circuit before ventilating the face 

effectively. Two air sample bottles were collected in 

the affected area 1 foot from the roof, face and rib. 

The order was subsequently modified. The modification 

stated: 

Order No. 2·891302 is being modified under Section 1 

No. a to include the statement "This is a violation of 

30 C.F.R. 75.302-lb2" after the sentence. This 

condition occurred due to sur~eyors removing part of a 

back check between the intake and return. 

This order has been previously terminated. 

On the same date, the inspector issued Citation No. 2891303. 

The citation stated: 

The current of air ventilating the face of the No. 3 

room M-16 active working section was not sufficient to 

dilute and render harmless and carry away flammable, 

explosive, noxious or harmful gases in that when 

checked with a MS-240 calibrated methane detector 

222 
1 foot from the roof, face, and rib on the right side 

1.7% to 2.2% of methane. The Joy continuous miner 

which was energized was in the immediate area. This 

condition occurred due to surveyors removing part of a 

back check between the intake and.return, thus al+owing 

the air to short circuit before ventilating the face 

effectively5 This citation was a factor that 

contributed to the issuance of imminent danger Order 

No. 2891302 dated 2-23-89; therefore no abatement time 

was set. 

A subsequent modification to the citation: stated: 

Based on additional information provided by the 

operator at a close-out conference Citation No. 2891303 

is being modified under Section II, 10 B to permanently 

disabling 10 D to 2 and No. 11 to B low. 

This citation has been previously terminated. 

On March 2, 1989, seven days after the initial order and 

citation were issued, the inspector issued Citation No. 2891304. 

The citation stated: 

The check curtain installed between the No. 3 room 

intake and the No. 4 room return in the M-16 active 

working section was not installed to minimize air 

leakage and permit traffic to pass thru without 

adversely affecting face ventilation. in that the 

surveyors had removed a portion of the check to pass 

thru and shoot sights which resulted in a accumulation 

of methane at the face of the No. 3 room. This 

citation was a factor that contributed to the issuance 

of an imminent danger Order No. 2891302 dated 2-23-89 f 

therefore, .. no abatement time is set. This condition 

was observed on 2-23-89 by this writer. 

A subsequent modification to the citation stated: 

Citation No. 2891304 is being modified under 

section III No. 17 action to ·terminate to include the 

statement: This action to abate the condition was done 

on 2-23-89 at 10:15 a.m. 

No. 18A is modified to show the date as 3-2-89 and 18B is 

modified to show the time as 0740. 

223 
Section 107(a) of the Act provides in part as follows: 

If, upon any inspection or investigation of a coal or 

other mine which is subject to this Act, an authorized 

representative of the Secretary finds that an imminent 

danger exists, such representative shall determine the 

extent of the area of such mine throughout which the 

danger exists and issue an order requiring the operator 

of such mine to cause all persons, except those 

referred to in section 104(c), to be withdrawn from, 

and to be prohibited from entering, such area until an 

authorized representative of the Secretary determines 

that such imminent danger and the conditions or 

practices which caused such imi~inent danger no longer 

exist. 

Section 3Cj) of the Act defines "imminent danger" as: 

"Imminent danger" means the existence of any condition 

or practice in a coal or other mine which could 

reasonably be expected to cause death or serious 

physical harm before such condition or practice can be 

abated. 

The Greenwich No. 2 mine liberates in excess of 1,000,000 

cubic feet of methane in a 24 hour period. Accordingly, by 

section 103(i) of the Act is therefore required to be inspected 

by MSHA every five days. Inspector Brunatti, an MSHA ventilation 

specialist, was making such a section 103(i) spot inspection on 

February 23, 1989, and again on March 2, 1989, when he wrote the 

order and citations at bar. 

At approximately 9:00 a.m., on the morning of February 23, 

1989, Inspector Brunatti arrived at Room 3 on the M-16 section 

and immediately noticed methane readings of .4% to .5% on the 

methane monitor of the continuous mining machine which was parked 

about 25 feet from the mining face in that room. The mining 

machine was not being used to mine coal at that time, but it was 

energized. He felt that these were unusually high readings for a 

machine sitting there parked. He proceeded to take methane 

readings with his hand-held methane detector from that point up 

to the face. The closer he got to the face, the higher the 

readings got. He obtained readings in excess of 4 percent at one 

point, with the readings stabilizing at about 2.2% to 2.3%. At 

this point he determined he had to issue an imminent danger 

order. 

Bottle samples for methane were also taken, which were later 

analyzed by the MSHA laboratory at Mount Hope, West Virginia, and 

indicated methane levels of 1.56% and .53%. 

224 
Earlier that morning, at approximately 8:30 a.m., 

Mr. William LaBelle, the section foreman, had made a methane 

check at the face of the No. 3 room, in the same area where the 

inspector subsequently checked and from which the inspector 

collected the bottle samples. His examination revealed methane 

levels of .3% to .4% at that time. 

Apparently, the underlying reason for these fluctuations in 

methane readings was that surveyors were working on the M-16 

section that morning advancing sights. As an allegedly 

necessary part of performing this task, the surveyors had 

temporarily lowered the back check curtain between Rooms 2 and 3 

in the fourth crosscut from the face, between locations X3260 and 

X3261 on Joint Exhibit No. 1 for approximately two minutes. It 

was also purportedly necessary to raise and lower the line 

curtain stretching from near location X3326 on Joint Exhibit No. 

1 to the second crosscut in Room 3 three times for durations of 5 

to 30 seconds each time. 

The parties agree and the record certainly substantiates 

that the direct cause of the excessive methane accumulation at 

the Room 3 face was the disruption of ventilation caused by this 

activity of the surveyors. 

R&P argues that the inspector's determination that an 

imminent danger order should be issued was based almost entirely 

on the fact that the methane had accumulated in an amount greater 

than 1.5%. Inspector Brunatti admitted that was MSHA policy. 

The Secretary argues that a concentration of 1.5 volume per 

centum or more of methane per se warrants a finding of "imminent 

danger", and points to section 303(h)(2) and (i)(2) of the Act 

which provide that any time the air at any working place or the 

air returning from any working section contains 1.5 volume per 

centum or more of methane "all persons, except those referred to 

in section 104(d) of [the] Act, shall be withdrawn from the area 

of the mine endangered thereby to a safe area, and all electric 

power shall be cut off from the endangered area of the mine, 

until the air in such working place [or split] shall contain less 

than 1.0 volume per centum of methane." 

The Secretary also cites the former Department of Interior 

Board of Mine Operations Appeals decision that the issuance of 

an imminent danger withdrawal order under section 104(a) of the 

Federal Coal Mine Health and Safety Act of 1969 (the Coal Act), 

which was a virtually identical predecessor to section 107(a) of 

the Mine Act, was mandated by the presence of the factors 

set forth in section 303(h)(2), i.e., the detection of 1.5% 

methane. Pittsburgh Coal Company, 2 IBMA 277 (1973). 

225 
In that decision, the Board adopted the rationale of the 

administrative law judge that: 

If Congress has determined by statute that a 1.5 

volume per centu~ reading is sufficient to require the 

drastic action of withdrawal, then it must be because 

the situation was viewed as one of imminent danger. 

Congress in 303(h}(2} has intentionally left no room 

for doubt or discretion in what it viewed as an 

imminent danger. Considering the nature of the gas, 

the perilous conditions created by it, and insignificant quantum of energy necessary to cause an ignition 

- there is a sufficient basis to characterize a 1.5 per 

centum concentration as one of imminent danger. It 

can reasonably be inferred that the withdrawal 

requirement of 303(h}(2} presumes the existence of a 

condition of imminent danger. Pittsburgh Coal Company, 

2 IBMA 281, 282 (1973}. 

While I am mindful that the Commission has previously stated 

in Pittsburg & Midway Coal Mining Co., 2 FMSHRC 787, 788 (1980}, 

that it will examine anew the question of what constitutes an 

"imminent danger" under the Act; until it does, the legal 

analysis of the former Board concerning the issuance of imminent 

danger withdrawal orders under the conditions set forth in 

section 303(h}(2} is persuasive to me and I will accordingly 

follow the precedent of that case. Two other Commission judges 

have previously reached the same conclusion. See Consolidation 

Coal Co., 4 FMSHRC 1960 (1982} and Jim Walter Re'Sources, Inc., 

9 FMSHRC 538 (1987}. 

Furthermore, as the Commission recently stated in upholding 

the issuance of another imminent danger withdrawal order in 

Rochester & Pittsburgh Coal Co. v. Secretary of Labor, 11 FMSHRC 

2159, 2164 (1989.}; "[s]ince he must act immediately, an inspector 

must have considerable discretion in determining whether an 

imminent danger exists". The Commissioners quoted the United 

States Court of Appeals for the Seventh Circuit concerning the 

importance of the inspector's judgment: 

Clearly, the inspector is in a precarious position. He 

is entrusted with the safety of miners' lives, and he 

must ensure that the statute is enforced for the 

protection of these lives. His total concern is the 

safety of life and limb •••• We must support the 

findings and the decisions of the inspector unless 

there is evidence that he has abused his discretion or 

authority. (emphasis added}. 

Old Ben Coal Corp. v. Interior Bd. of Mine Op. App., 523 

F.2d 25, 31 (7th Cir. 1975}. 

226 
Inspector Brunatti was faced with a situation where methane 

readings obtained from his hand-held detector were fluctuating 

between a peak reading in excess of 4% right at the face to .4% 

25 feet outby. According to his testimony, which I credit fully, 

the readings became stable near the face at 2.2% to 2.3%. Based 

on this evidence and the fact that methane's explosive range 

begins at a 5% concentration, I cannot find that the inspector 

abused his discretion or authority in this instance. 

In any event, it is undisputed that there was in excess of 

1.5 volwne per centum of methane accumulated at the face area of 

Room 3, Section M.:...16, the mining machine in proximity to this 

face was energized and the miners had not been withdrawn from the 

area. Therefore, I find that an "imminent danger" existed at 

that time and the withdrawal order was properly issued. 

Turning now to the two related section 104(a) citations and 

their associated civil penalties, I will consider them separately. 

At the hearing, I raised the possibility of whether they should 

be merged. Upon re-reading the record, I am now convinced that 

is inappropriate, as they do in fact charge separate violations. 

Citation No. 2891303 alleges a "significant and substantial" 

violation of the regulatory standard at 30 C.F.R. § 75.301 which 

provides in pertinent part as follows: 

All active workings shall be ventilated by a current of 

air containing not less than 19.5 volume per centum of 

oxygen, not more than 0.5 volume per centum of carbon 

dioxide, and no harmful quantities of other noxious or 

poisonous gases; and the volume and velocity of the 

current of air shall be sufficient to dilute, render 

harmless, and to carry away, flammable, explosive, 

noxious, and harmful gases and dust, and smoke and 

explosive fumes. 

R&P answers first that a methane level of 1.56% or even 2.2% 

is not harmful, but only potentially harmful. The inspector also 

testified that a 1.56% methane level would not be a problem if it 

was a constant 1.56% in a controlled area. However, here the 

methane levels were fluctuating widely and clearly were not under 

control. At one point, the inspector noted a peak methane 

reading of 4%, dangerously close to the lower end of the 

explosive range of methane, which is defined as 5% to 15%. I 

find these fluctuating levels of methane above 1.5% to be a 

harmful quantity of a harmful gas. 

Secondly, R&P cites Secretary of Labor v. Freeman United 

Coal Mining Co., 11 FMSHRC 161 (1989) for the proposition that 

227 
"disruptions in mine ventilation inevitably occur and that the 

key to effective compliance lies in expeditiously taking those 

steps necessary to restore air quantity or velocity to the 

required level." Freeman at 165. 

It is not disputed that the activity of the surveyors in 

lowering ventilation curtains was the cause of the fluctuating 

methane levels at the face. More particularly, with regard to 

the instant citation, the lowering of the line curtain in Room 3 

going outby from the face and from location X3326 towards the 

second crosscut contributed along with the lowering of the back 

check between locations X3260 and X3261 to the methane 

accumulation found at the face by the inspector. But here, 

unlike the situation in Freeman, the section foreman knew the 

surveyors were on the section, a known gassy section, and 

presumably knew that there was a likelihood that their activities 

would disrupt his ventilation. Despite this, he took no action 

to monitor the methane levels at the face while the surveying was 

being done and took no action to abate the methane accumulation 

until after the inspector detected the condition. 

I concur with the Secretary that first, this situation was 

not the type of disruption in mine ventilation contemplated by 

the Commission in Freeman; and second, that the regulations 

governing permissible methane levels do not tolerate occasional 

excursions of that methane level above 1.5 volume per centum for 

the operational convenience of the mine operator. 

For the foregoing reasons, I find a violation of 30 C.F.R. 

§ 75.301 to be proven as charged. Since I have previously found 

an imminent danger existed as a result of this disruption of 

ventilation, a condition "which could reasonably be expected to 

cause death or serious physical harm", it follows that this is a 

"significant and substantial" violation as well under the test 

announced by the. Commission in Mathies, 6 FMSHRC 1 C 19 84). 

Considering the criteria in section llOCi) of the Act, I 

conclude that an appropriate penalty for the violation is $1000, 

as proposed by the Secretary. 

Citation No. 2891304 alleges a "significant and substantial" 

violation of the regulatory standard at 30 C.F.R. § 75.302-l(b)(2) 

which provides in pertinent part as follows: 

Cb> When line brattice is used: 

* * * * * * * 

(2) Check curtains required in conjunction with the 

line brattice shall be so installed to minimize air 

leakage and permit traffic to pass through without 

adversely affecting face ventilation. 

228 
On the morning in question, the surveyors, Messrs. Luther 

and Cymbor, had proceeded into the section and were advised that 

mining had not yet commenced that morning •. Mr. Luther then 

notified the shuttle car operator that they would advance the 

sights in the No. 3 entry since no production was taking place. 

They then proceeded to a crosscut between the No. 2 and 3 rooms 

and prepared to take a back sight with the transit. Mr. Cymbor 

lowered the back check about one foot for approximately two 

minutes while Mr. Luther got the sights. This was enough to 

interfere with the ventilation of the face in Room 3 and cause or 

contribute to cause an excessive level of methane (a peak value 

of 4%) to accummulate. 

As previously noted herein, at the same time that these high 

levels of methane were detected by the inspector, an energized 

continuous mining machine was in close proximity (approximately 

25 feet) to the high methane area. I therefore conclude that 

this was a "significant and substantial" violation of the cited 

standard. See Mathies, supra. Furthermore, I find, in 

accordance with section llO(i) of the Act, the civil penalty of 

$1000 proposed by the Secretary is appropriate to the violation. 

R&P's allegations that there was no violation of 30 C.F.R. 

§ 75.302-l(b)(2) because: (1) The regulation applies only when 

coal is being cut, mined or loaded from the working face and; 

(2) the temporary disruption in ventilation precludes under the 

circumstances, a finding of violation, are rejected. 

The phrase "cut, mined or loaded" does not appear in the 

cited standard. It speaks to "when line brattice is used". Line 

brattice use is required for all working faces, whether or not 

coal is being cut, mined or loaded. 30 C.F.R. § 75.302 

contemplates that the line brattice will provide adequate 

ventilation to the working face for the miners and remove or 

dilute noxious and explosive gases and the regulation 

contemplates this ventilation of the working face whether the 

miners are actually engaged in coal production or not at any 

particular minute. 

The second allegation in defense is again based on the 

reliance by the oper~tor on the Freeman case and again, as in the 

previous citation, I find the Commission's reasoning in Freeman 

to be inapplicable here. This is a totally different fact 

situation. Most importantly, what was done here to disrupt the 

ventilation was done intentionally with no provision to lessen or 

even monitor what effect their activity would have on the methane 

hazard on the section. 

229 
Docket Nos. PENN 89-118-R and -119-R 

On March 1, 1989, MSHA Inspector Kenneth J. Fetsko issued 

Section 104Cd)(2) Order Nos. 2889678 and 2889679 at R&P's 

Greenwich No. 2 Mine. Subsequently, the Secretary filed a 

petition seeking civil penalties in the amount of $850 each for 

the two violations. 

Inspector Fetsko testified at length at the hearing of this 

case and at the conclusion of his testimony, the parties proposed 

a settlement of the case which I approved on the record. 

Concerning Order No. 2889678, the Secretary moved to 

downgrade the classification of the paper from a section 

104(d)(2) order to a section 104(a) "S&S" citation and lower the 

proposed civil penalty from $850 to $350. With regard to Order 

No. 2889679, the Secretary moved to amend it to a section 104(a) 

"non-S&S" citation and lower the proposed penalty to $150 from 

$850. 

I approved the settlement and its terms will be incorporated 

into my final order herein. 

Docket No. PENN 89-127 

On November 30, 1988, MSHA Inspector Charles S. Lauver 

issued Citation No. 2889402 at R&P's Main Complex, alleging a 

violation of 30 C.F.R. § 77.405(b). The condition or practice 

alleged to be a violation of that standard is stated as: 

The 555 Ford tractor/backhoe/loader being repaired in 

the truck garage has not been blocked securely in 

position. The left front wheel and spindle has been 

removed and the left front of the machine is being held 

up by the hydraulic bucket. 

30 C.F.R. § 77.405(b) provides: 

Cb> No work shall be performed under machinery or 

equipment that has been raised until such machinery or 

equipment has been securely blocked in position. 

Respondent argues in the first instance that no work was 

performed under the cited equipment, and therefore no violation 

of the mandatory standard was committed. The Secretary counters 

this by arguing that although no one saw him do it, the mechanic 

who removed the wheel, brake drum and spindle must have at some 

point placed a portion of his body underneath a portion of the 

axle. At least this is the opinion of the inspector. He 

230 
testified that at a minimum, the mechanic would have his arm, 

possibly his shoulder under a part of the machine when he was 

reaching in to take the ball joints out of the spindle. 

Mr. Froum, the mechanic who actually performed the work, 

testified that he did not remove ball joints. The removal of the 

aforementioned parts simply required knocking out a kingpin with 

a hammer and punch as well as removal of a few bolts. The axle 

on which Mr. Frown was working was only eight inches to a foot 

above the floor and he simply leaned over the equipment and 

knocked out the kingpin. He testified that he did not go under 

the axle nor was any part of his body under the equipment at any 

time during the entire process. I find his testimony to be 

generally credible and the inspector to be generally unfamiliar 

with the equipment and the process of removing the wheel and 

spindle assembly. 

I therefore find the Secretary has failed to prove a 

necessary element of the violation and the subject citation must 

be vacated. As an aside, _I am also satisfied by Mr. Froum's 

testimony that the equipment in the configuration the inspector 

found it in could not have fallen in any event. 

Citation No. 2889405 alleges an "S&S" violation of 

30 C.F.R § 77.202 and states: 

There is a fine layer of dry float coal dust on 

electrical boxes and all other surfaces in the 

energized motor control center in the old plant. 

30 C.F.R. § 77.202 states: 

Coal dust in the air of, or in, or on the surfaces of, 

structures, enclosures, or other facilities shall not 

be allowed to exist or accumulate in dangerous amounts. 

The float coal dust was being drawn into the motor control 

center from an outside coal stockpile through the intake for the 

pressurizing fan. The fan was used to pressurize the room to 

keep dust from coming in when the door was opened, but it was 

also apparently drawing in dust from outside. 

The primary issue, which the Secretary of course has the 

burden of proof on, is whether the accumulation of coal dust was 

present in dangerous amounts. 

231 
It is not enough to prove merely that there was some coal 

dust on some electrical boxes inside a control room. Several 

Commission judges have previously held that whether an 

accumulation is "dangerous" depends on the amount of the 

accumulation and the existence and location of sources of 

ignition. The greater the concentration, the more likely it is 

to be out into suspension or propogate an explosion. See, for 

exampl~, Pittsburg & Midway Coal Mining Co., 6 FMSHRC 1347, 1349 

(1984) and Mettiki Coal Corporation, 11 FMSHRC 331, 343 (1989). 

I also agree with and adopt that rationale. 

The inspector testified that there was a "very fine layer of 

dust" in the room, "too thin a layer to measure". The dust was 

located on the outside covers of electrical boxes and other 

surf aces in the room. There is no evidence in the record that 

any dust was inside any of the energized electrical boxes, as the 

inspector testified he didn't look in any of the boxes. The 

inspector also did not observe any dust in suspension even though 

he and another man walked around the room inspecting it. The 

dust has to be in suspension before an electrical spark will 

cause an explosion. 

Mr. Wilkins, an electrician and electrical foreman at the 

facility testified that even if the electrical equipment 

malfunctioned and created an arc, sparks could not escape from 

the energized electrical boxes, as they were NEMA approved and 

protect the outside environment from the arcs resulting from the 

equipment starting and stopping. 

Therefore, I find that the minimal amount of coal dust 

herein cited as present on the outside of the electrical box 

covers does not pose a hazard and I conclude that the Secretary 

has failed to establish that the coal dust present in the room 

existed in "dangerous amounts". According, the citation must be 

vacated. 

Citation No. 2889408, issued on December 6, 1988, alleges a 

violation of 30 C.F.R. § 77.130l(c)(2) in that: 

Dry brush and ieaves have accumulated against the 

detonator magazine creating a source of fire. 

30 C.F.R. § 77.130l(c)(2) provides: 

Cc) Magazines other than box type shall be: 

* * * * * * * 

Cb) Detached structures located away from powerlines, 

fuel storage areas, and other possible sources of fire. 

232 
R&P does not dispute the fact that the dry brush and leaves 

were accumulated against the back of the detonator magazine, but 

does dispute that they were a source of fire within the meaning 

of section 77.130l(c)(2). 

The inspector testified that he found a pile of dry leaves, 

approximately two feet high, piled half-way up the back of the 

magazine. He felt it was a fire hazard. More particularly, he 

felt this pile of dry leaves and brush was as much a source of 

fire as a fuel storage area. Neither one being in and of 

themselves a source of fire, however, they would both fuel a 

fire. 

The magazine in question is a steel box, approximately four 

feet high, four feet wide and four feet deep. It is raised off 

the ground on either eight inch concrete blocks or steel skids. 

The floor of the box is steel and the interior of the box is 

lined with four inches of hardwood. Inside were several hundred 

blasting caps. 

I am unconvinced that the leaves and brush posed any hazard 

to the blasting caps inside the magazine. I believe that even in 

the unlikely event the leaves were set on fire by some outside 

source of ignition such as lightning, the blasting caps inside 

the hardwood-lined steel magazine would not be affected. R&P's 

safety inspector at the Main Complex opined that the summer sun 

beating down on the magazine day after day has more of an adverse 

affect on the contents than would a leaf fire. 

In any event, it is clear that the leaves and brush are not 

themselves a source of fire. It is also clear to me that leaves 

and brush do not pose comparable hazards to the contents of a 

magazine as do powerlines and fuel storage areas. The leaves and 

brush are not an ignition source in themselves nor a source of 

fire as contemplated by Section 77.130l(c)(2). Therefore, the 

accumulation near the magazine did not constitute a violation of 

the cited standard and the citation must therefore be vacated. 

ORDER 

1. Section 107(a) Order No. 2891302 and Citation 

Nos. 2891303 and 2891304 are hereby affirmed. The contests of 

that order and those citations are accordingly denied. 

2. Section 104(d)(2) Order No. 2889678 is hereby modified 

to an "S&S" section 104(a) citation and affirmed. 

3. Section 104(d)(2) Order No. 2889679 is hereby modified 

to a "non-S&S" section 104(a) citation and affirmed. 

233 
4. Section 104(a) Citation Nos. 2889402, 2889405 and 

2889408 are vacated and Civil Penalty Proceeding Docket 

No. 89-127 is therefore dismissed. 

5. Rochester & Pittsburgh Coal Company is ordered to pay 

the sum of $2500 within 30 days of the date of this decision as a 

civil penalty for the violations found herein. 

Law Judge 

Distribution: 

Joseph A. Yuhas, Esq., Greenwich Collieries, P.O. Box 367, 

Ebensburg, PA 15931 (Certified Mail) 

Mark v. Swirsky, Esq., U.S. Department of Labor, Office of the 

Solicitor, Room 14480-Gateway Building, 3535 Market St., 

Philadelphia, PA 19104 (Certified Mail) 

/ml 

234 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 201990 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

TEXAS INDUSTRIES INC., 

Respondent 

. . 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 89-119-M 

A.C. No. 41-00071-0551~ 

Midlothian Quarry 

Appearances: E. Jeffery Story, Esq., Office of the 

Solicitor, U.S. Department of Labor, 

Dallas, Texas for Petitioner; 

Bobby M. Williams, Texas Industries, Inc., 

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 105(d) of the Federal Mine Safety and Health Act of 

1977, 30 u.s.c. § 801 et seq., the "Act, 11 charging 

Texas Industries, Inc., (Texas Industries) with two 

violations of regulatory standards and proposing a civil 

penalty of $1,100 for the violations. The general issue 

before me is whether Texas Industries violated the cited 

regulatory standards and, if so, the appropriate civil 

penalty to be assessed in accordance with section llOCi) of 

the Act. 

Citation No. 3281061 alleges two separate violations of 

regulatory standards (30 C.F.R §§ 56.14101.Ca) and 56.14100Cb) > 

and charges as follows: 

The service brake system on the electrical powered 

scooter was inoperable. This scooter belonged to 

the lab department and was traveling through an 

area where all the over-the-road type equipment 

entered and left the plant area. There was also 

foot travel through this area. (56.14100(b)) The 

fast petal [sic] speed selector would not return to 

neutral it had to be pulled up to stop the scooter. 

235 
The regulatory standard at 30 C.F.R. § 56.14101Ca) 

provides in relevant part as follows: 

(1) Self-propelled mobile-equipment shall be 

equipped with a service brake system capable of 

stopping and holding the equipment with its typical 

load on the maximum grade it travels. 

The regulatory standard at 30 C.F.R. § 56.14100(b) 

provides that: "[d]efects on any mobile equipment, machinery 

and tools that affect safety shall be corrected in a timely 

manner to prevent the creation of a hazard to persons." 

Respondent Texas Industries admits the violations as 

charged but denies that the violations were "significant and 

substantial" and maintains that the proposed penalties are 

excessive. 

Melvin H. Robertson an electrical inspector for the 

Federal Mine Safety and Health Administration CMSHA) was 

performing a regular inspection on March 14, 1989, at the 

Texas Industries Midlothian Plant. According to Robertson 

the operation includes both a limestone mine and a cement 

production facility. During the course of his inspection he 

observed an electric scooter similar to a 3-wheel battery 

powered golf cart driving at "high speed" estimated to be 

about 10 to 15 miles an hour. 

Robertson waived for the vehicle to stop but the driver 

waived back and kept on driving. Rudy Hall the Texas 

Industries Safety Director was also present and yelled for 

the operator to stop. The vehicle then turned back to where 

the men were standing. Robertson then asked the vehicle 

operator if he had any brakes and the operator responded 

"well they're not too good". Robertson then asked the 

operator to apply the foot pedal and he observed that it went 

down to the floor. Robertson again asked the operator 

whether he had any brakes and the operator responded "no". 

Robertson also noticed that the driver leaned over inside of 

the vehicle and asked why he had done so. The driver 

responded "well, the foot pedal hangs down on it so I had to 

pull it up by hand". Upon determining that the vehicle had a 

functioning parking brake Robertson directed the operator to 

drive the vehicle to the shop and take it out of service. 

Robertson further testified that in his opinion it was 

highly likely for injuries to occur and it was reasonably 

likely that those injuries would be fatal. He observed that 

the cited cart was traveling to the shop and warehouse area 

passing through an area of other vehicular traffic including 

236 
"18 wheelers", a street sweeper, and 1 1/2 ton pick-up trucks. 

Robertson a·lso observed pedestrian traffic in the same area. 

According to Robertson no tests were performed on the brakes 

since the operator agreed to remove the vehicle from service 

for repairs. See 30 C.F.R. § 56.1410l(b). 

Robertson found the operator chargeable with moderate 

negligence in regard to these violations. In talking to the 

supervisor of the lab department Robertson learned that the 

brakes had recently been installed and adjusted on the cited 

cart. According to Robertson the mine operator was also 

unaware that it was required to perform preshift inspe·ctions 

on the cart. 

Rudy Hall, testifying on behalf of Texas Industries, 

acknowledged that he was present with Inspector Robertson at 

the time the cited cart passed by. Hall observed that after 

shouting at the driver the vehicle came to a full stop before 

returning. Hall testified that it was he who first observed 

that the speed selector was depressed down to the floor and 

initiated the inquiry into its problem when the driver stated 

that "it sticks sometimes". Hall maintains that it was he 

who directed the vehicle to the stop. 

Hall further testified that the area in which the 

scooter was operating was not "highly dangerous". He 

observed that the speed limit in the area was enforced at 15 

miles per hour. While there were admittedly other vehicles 

in the area including "18 wheelers," Hall observed that the 

vehicles were usually lined up and only "inching" forward. 

Hall also testified that after the scooter was repaired 

he performed a test without using the brakes and found that 

by using only the speed selector the vehicle came to a stop 

from maximum speed in 95 feet. Hall also noted that he had 

run into a wall with a similar scooter and with the spare 

tire acting as a bumper the vehicle merely bounced off. He 

also noted that the vehicle even when operating at its 

maximum speed of 15 miles per hour can be turned 180u to 

avoid hazards. While conceding that there was a potential 

for a scooter with defective brakes to run into a moving 

vehicle Hall nevertheless thought this was unlikely. Hall 

also conceded that if a pedestrian would be struck by a 

scooter traveling at 15 miles per hour that person could be 

killed. He nevertheless thought that the chance of hitting a 

pedestrian was "unlikely". Hall observed that no additional 

parts were needed to repair the scooter and that only 

adjustments were made. 

237 
I find in this case that the necessary elements of a 

"significant and substantial" and serious violation exist 

based upon the credible testimony o~ Inspector Robertson 

alone. See Mathies Coal Co., 6 FMSHRC 1 (1984). In reaching 

this conclusion I have not disregarded the opinions of 

Mr. Hall. However on the facts of this case the greater 

weight is to be given that of the disinterested and expert 

testimony of the MSHA inspector. In addition while I do not 

accept Inspector's Robertson rationale, I accept his finding 

of only moderate negligence. In evaluating all of the 

criteria under section llO(i) I find that civil penalties of 

$200 and $100 respectively for Citation No. 3281061 Part A 

and Citation No. 3281061 Part B are appropriate. 

ORDER 

·' Texas Industries, Inc., is directed toi pay civil 

penalties of $300 within 30 days of the date of this 

decision. I 

(\ /\ 

l// \\ .'~~·1 ; ·jL I ; -· 

!;//I ; 

A . 

/I / 

I \ / / .. Gary M~·lick 

Administrative 

'-..; vl/ .. L,.\ 

I 

aw Judge \, 

Distribution: i: 

E. Jeffery Story, Esq., Office of\ the Solicitor, U.S. 

Department of Labor, 525 Griffin/Street, Suite 501, Dallas, 

TX 75202 C Certified Mail) !/ 

" 

Bobby M. Williams, Esq., Texas Industries, Inc., 8100 

Carpenter Freeway, Dallas, TX 75247 (Certified Mail) 

nt 

238 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 2-3 1990 

SECRETARY OF LABOR, . 

. CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

EASTERN ASSOCIATED COAL 

CORPORATION, 

Respondent 

. . 

. . 

DECISION 

Docket No. WEVA 89-198 

A. C. No. 46-01456-03826 

Docket No. WEVA 89-199 

A. C. No. 46-01456-03824 

Appearances: Glenn Loos, Esq., Office of the Solicitor, u. s. 

Department of Labor, Arlington, Virginia, for the 

Secretary; 

Eugene P. Schmittgens, Jr., Esq., Eastern 

Associated Coal Corporation, St. Louis, Missouri, 

for the Respondent. 

Before: Judge Weisberger 

Statement of the Case 

In these consolidated cases, the Secretary (Petitioner) 

seeks civil penalties for alleged violations by the Operator 

(Respondent> of 30 C.F.R. § 75.400. Pursuant to notice, the 

cases were heard in Clarksburg, West Virginia, on December 12, 

1989. Thomas David Doll, John Edward Palmer, Rick Milliron, 

Linda Byers, and James Merchant testified for Petitioner. Gary 

Marvin McHenry, William Salesky, Roger Boggess, David A. Tennant, 

and John Kucish testified for Respondent. Proposed Findings of 

Fact and Briefs were filed by Respondent and Petitioner on 

January 31 and February 1, 1990, respectively. A Reply Brief was 

filed by Respondent on February 12, 1990. Petitioner did not 

file a Reply Brief. 

A. Docket No. WEVA 89-198 

Findings of Fact and Discussion 

I. 

On February 8, 1989, Doll inspected the Three North Tipple 

at Respondent's Federal No. 2 Mine, and observed an accumulation 

of hydraulic oil under the hydraulic tub, and car spotter 

239 
(Tipple). He also observed a trench with up to 4 inches of oil 

in it. He indicated that the puddles of oil in front of the tub 

were approximately 3 feet bri~~~ ~.ee_t,. ~~d measu7ed to be 4 inche~ 

deep. He estimated that 20 ·to' 2-5 ··gallons of oil had accumulated. 

He issued a section 104Cd)(2) Order alleging a violation of 

30 C.F.R. § 75.400. At the hearing, Respondent conceded the fact 

of the violation. I find, based on the testimony of Doll, that 

Respondent herein did violate section 75.400, supra, as alleged 

in the Order. 

II. 

Doll listed ignition sources for the accumulation of oil, 

such as motors, wires, and cables. He indicated that the oil was 

flammable and that some ignition sources were "real close" 

(Tr. 153), and that the cables for the motor on the tub and the 

motor on the car spotter were "within inches" of the oil (Tr. 153). 

He indicated that the cables could have arced or sparked, and 

started a fire. Essentially he indicated that ignition of the oil 

was "highly likely" if the "situation was not taken care of" (Tr. 

153). He indicated that in the event of a fire, a serious injury 

was quite likely in the nature of a possible burn or smoke inhalation. Essentially, based upon these factors, Doll concluded that 

the violation herein was significant and substantial. 

Although, based on Doll's testimony, it can be concluded 

that ignition of the oil could have resulted, I find that it has 

not been established that such an event was reasonably likely to 

occur. Although Doll listed various ignition sources, such as a 

motor, wires, and cables, there is nothing in the record to 

indicate that this equipment was in such a condition as to make 

sparking or arcing an event reasonably likely to occur. Further, 

due to Roger Boggess' experience as a maintenance foreman, I 

place some weight on his opinion that a spark would not ignite 

the oil, and that a sustained fire would be needed. Further, 

John Kucish, who was the production foreman in charge of the 

section on February 8, indicated that the area in question was 

adequately rock-dusted. Also, he and Boggess indicated that 

there was a fire suppression system over the top of the power 

unit of the car spotter, and that there were various items to 

extinguish fires in the area. Taking all these factors into 

account, I conclude that it has not been established that the 

violation herein was significant and substantial, as that term 

was defined in Mathies Coal Company, 6 FMSHRC 1 (1984). 

III. 

James Merchant, a tipple man who has worked for Respondent 

for 21 years, testified that on and off for the last 2 to 3 years 

there have been problems keeping oil in the tipple. He indicated 

that he usually puts in 20 to 25 gallons of oil a shift. He 

testified that approximately 6 months prior to Doll's inspection 

on February 8, 1989, he attached belting to drain the oil that 

240 
was leaking from the electrical motors. He also dug a sump hole 

to muck the oil. He indicated that more than a year ago, and "a 

number of times" (Tr. 202), he had told Boggess that he was out_ 

of oil in the middle of the shift. He also indicated that he had 

shown the leaking to Kucish. He indicated that when he told 

Kucish of the oil coming out of the tipple, on "a number of 

times" (Tr. 202), he was told by Kucish that it would be worked 

on over a week end. Merchant indicated that about a week before 

February 8, he reported the condition to Kucish. According to 

Kucish, in November 1988, Merchant had reported leaks to him, and 

he in turn called the evening and day shift people who informed 

him that the tipple "was being maintained in a workman-like 

manner" (Tr 245). Kucish testified that the afternoon and day 

shift men were taken off their jobs 2 weeks later, and when he 

observed the boom hole (tipple site) in December, it was in such 

an "unworkman like" condition that he shut it down. Kucish 

testified that when he was informed by Merchant of the leak on 

January 31, or February 1, 1989, he called Boggess. Boggess in 

turn informed a mechanic who subsequently told him that he did 

not find any substantial leaks (Tr. 251). David A. Tennant, the 

maintenance superintendent, indicated that on January 31, "some 

maintenance" was performed (Tr. 262). When Kucish was informed 

of a leak the week prior to February 8, he informed Boggess and 

subsequently, on a Saturday, February 4, cylinders or jacks were 

cleaned and repacked, an operation which Boggess termed to be 

"routine maintenance" CTr. 251) He indicated that he had been 

told there had been a leak, and some oil was on the ground. No 

leak was found. The following day Kucish went to the areas in 

question, to make a visual examination, and indicated that were 

no "visual leaks" (Tr. 232). 

According to Merchant, on February 6 and February 7, the 

tipple was not leaking any less, and he had to put in three to 

five gallon cans of oil each shift. Boggess indicated that he 

was not notified of any leaks on those days, and there is no 

evidence that Merchant notified Kucish of any leaks or oil 

accumulations on those days. Neither was such reported in any 

preshift examination on those dates. 

On February 8, the accumulation of oil, observed by Doll, 

was estimated by i1im to be 20 to 25 gallons, and was measured by 

him in areas to be 4 inches deep. After the condition was cited 

by Doll, the area and equipment ware cleaned, and "drips" were 

found (Tr. 242, 250). Kucish and Boggess opined that the drips 

were not sufficient to cause the spillage that was observed on 

February 8.~/ The tipple was cleaned and looked at by Boggess, 

but he could not find any reason for the oil accumulation. Some 

plumbing was eliminated to correct the dripping. 

t; Tennant indicated that no cracks were found leaking oil, but 

there was a leak Qn one of the fittings that was part of the 

plumbing of the hydraulic system. He indicated that the leak was 

not sufficient to account for the oil accumulation. 

241 
At the conclusion of Petitioner's case, Respondent made a 

Motion for a Directed Verdict with regard to tha issue of 

unwarrantable failure, and the Motion was denied. In order for 

it to be found that the violation herein was the result of 

Respondent's unwarrantable failure, it must be established that 

Respondent's conduct herein reached a level as to be considered 

to be "aggravated conduct." (Emery Mining Corp., 9 FMSHRC 1997 

(1987)). Although, as established by Merchant, the equipment in 

question had been leaking off and on for 2 to 3 years, and had 

been reported to Kucish on "a number of times," I accept the 

testimony of Respondent's witnesses that twice within 8 days 

prior to February 8, maintenance work had been performed on the 

equipment in question. I accept the testimony of Kucish that 

when he observed the area on the day after the work had been 

performed on February 4, there were no "visual leaks". (sic). 

Although Merchant indicated that on February 6-7, 1989, the 

equipment was not leaking less, there is no evidence that the 

condition was reported to management on these days. I thus 

conclude, taking the above into account, that Respondent herein 

did not exhibit any aggravated conduct, and hence the violation 

herein did not result from its unwarrantable failure. 

Inasmuch as Petitioner has not established that the condition 

of any equipment in the area was such as to have made it likely for 

the accumulation to have been ignited, I conclude that the gravity 

of the violation herein is to be considered moderate. Further, 

taking into account Merchant's testimony, that I accept, that the 

leak had existed on and off for 2 to 3 years, and was reported by 

him to Kucish on numerous times, and taking into account the large 

quantity of oil that was observed on February 8, I conclude that 

Respondent was highly negligent in not having taken steps to ensure 

that an accumulation would no longer occur. Although maintenance 

work was performed on February 4, and examined one day later by 

Kucish, and observed not to have any visible leaks, there is no 

evidence that Respondent examined the area on February 6-7, to 

ensure that its work on February 4 was successful, and there was 

no longer any accumulation of oil. For these reasons, I conclude 

that Respondent was highly negligent herein. I conclude that a 

penalty of $900 is proper for the violation found herein. 

B. Docket No. WEVA 89-199 

Findings of Fact and Discussion 

I. 

Thomas David Doll, an MSHA Inspector, inspected Respondent's 

Federal No. 2 Mine on February 1, 1989. He indicated that he 

observed oil running down the side of a shuttle car on the 

17 Right 3 South Section, and that oil was leaking behind the 

242 
wheel unit of the shuttle car. He indicated that the grease from 

the wheel unit was "in spots" up to a-half inch thick (Tr. 24), 

and that there was a grease build-up in the cable reel which was 

probably a quarter to a-half inch in thickness. Doll indicated 

that the oil and grease was mixed with some coal dust, and that 

the oil is combustible when the water in it separates. He indicated that the wheel was saturated, and throwing grease against 

the shuttle car. He indicated that grease is combustible, and 

opined that the material that had accumulated was combustible. 

John Edward Palmer, who was the representative of the Mine 

Worker's Union, and accompanied Doll on the inspection, corroborated the latter's testimony by indicating that there was a "lot" 

of coal, grease, and oil around the cable reel components. Rick 

Milliron, who was the shuttle car operator on February 1, 1989, 

indicated that in general he does not clean behind the wheels of 

the unit. He indicated that, when Doll inspected the unit, there 

was grease and oil on the whole unit. 

Gary Marvin McHenry, Respondent's safety supervisor, wh.o 

accompanied Doll on the inspection, indicated that the only 

"accumulations" he found were behind the wheel unit {Tr. 85). He 

said there were "small amounts" of oil mixed with rock dust and 

dirt {Tr. 86). William Salesky, who was the section foreman on 

February 1, indicated that when he observed the shuttle car after 

the Order was issued, the only accumulations were behind the 

wheel. He described the condition as being 11 A small amount of 

grease, and mostly mud from the shuttle car road" (Tr. 110). 

Roger Boggess, Respondent's maintenance foreman, opined that the 

oil in question does not burn easily, and that a spark hitting it 

would not cause it to ignite. He termed the event of a fire 

occurring as being very unlikely, and indicated that to get the 

oil to burn, a person would have to hold a flame to it. However, 

he indicated on cross-examination that gear box oil is not fire 

resistant. David A. Tennant, Respondent's maintenance superintendent, indicated that the oil in question is flammable in a pure 

state, but that if it is mixed with water, mud or coal dust, its 

flash point is higher. He indicated that the oil in question had 

rock dust in it, and thus was not easy to ignite. 

I reject Respondent's argument that an impermissible accumulation is limited to those accumulations that are extensive and 

significant, and that the latter term includes only accumulations 

that can lead to fires or explosions. I find that Respondent has 

not rebutted or contradicted Doll's testimony that, in essence, 

in some areas the grease was 1/2 inch thick. Accordingly, I conclude, based upon the above testimony of witnesses who observed 

the shuttle car on February 1, that there was an accumulation of 

oil and grease as set forth in the section 104{d){2) Order issued 

by Doll on February 1. This Order alleges Respondent violated 

30 C.F.R. § 75.400. In essence, as pertinent, section 75.400, 

243 
supra, prohibits the accumulation inter alia of "combustible 

materials." The word "combustible," is defined in Webster's 

Third New·International Dictionary, 1986 edition (Webster's), as 11 1. capable of undergoing combustion or of burning - used esp. of 

materials that catcn'fire and burn when subjected to fire ••• " 

I accept the opinion of. Doll that oil and grease are materials that are capable of burning. The testimony of Boggess that 

the oil in question does not burn easily, does not contradict 

Doll's opinion. Further, the balance of Respondent's witnesses, 

in essence, testified that the accumulations of oil and grease 

herein contained mud and rock dust, which raise its flash point, 

and makes it difficult to ignite. Hence, the testimony of 

Respondent's witnesses is not sufficient to predicate a finding 

that the materials in question were not capable of burning at 

some point. Inasmuch as the materials were nontheless capable of 

burning or catching fire when subjected to fire, I conclude that 

the accumulations of the materials in question were combustible 

as that term is defined in Webster's. Accordingly, I find that 

Respondent herein did violate section 75.400, supra. 

II. 

According to Doll, in essence, he concluded that the violation herein was significant and substantial due to the presence 

of friction or cables as ignition sources, which led him to 

conclude that it was highly likely that a fire would occur if the 

violative condition was not corrected. He indicated that in the 

event of a fire, an injury would be highly likely due to smoke 

inhalation occasioned by the burning of grease, coal, and other 

toxic smokes from the burning of cable covers. He indicated that 

anyone in the face area, including the shuttle car operator, 

loader operator, miner operator, and bolters would be subject to 

the path of smoke from the resulting fire. In this connection, I 

note that Salesky conced~d on cross-examination that grease and 

oil in the wheel compartment could become a fire hazard "at some 

point." (Tr. 113). 

Although there certainly were potential ignition sources iri 

the areas as testified to by Doll, there is insufficient evidence 

that the condition and location of these sources was such as to 

indicate that there was a reasonable likelihood of an ignition 

occurring. Further, I accept the reasoning of Respondent's 

witnesses that mud and coal dust present in the accumulation of 

grease and oil would decrease the combustibility of the accurnula~ 

tions. Thus I find that although the accumulations herein did 

contribute to a hazard of a fire, it has not been established 

that ther~ was a reasonable likelihood of a fire occurring. I 

thus conclude that it has not been established that the violation 

herein was significant and substantial (See, Mathies Coal Company, 

supra). 

244 
III. 

Doll indicated that he considered the violation herein to .be 

the result of Respondent's unwarrantable failure, as it either 

knew or should have known that the violation existed. He indicated that the area in question is fire bossed daily on each of 

the three shifts, and in addition, persons are constantly in the 

area. He thus opined that inasmuch as the accumulated material 

was visible, it should have been observed and cleaned up. In 

addition, he indicated that on January 18, he issued two citations 

alleging violations of section 75.400, supra, concerning equipment 

on the section. He indicated that when he issued the citations, he 

discussed with Bill Lenley, the assistant foreman, that something 

had to be done to keep the section equipment cleaner. Thus, he 

concluded that Respondent was aware that it had a problem with 

cleaning various equipment. 

Palmer corroborated Doll's testimony by indicating that 

the accumulation of grease and oil could have been seen "plain as 

day." (Tr. 64). Milliron indicated that on February 1, he sprayed 

the shuttle car in question with a cleaning substance, and washed 

it off. He indicated that he did not clean behind the wheels, and 

did not use any wedge, which he usually would use to scrape orf 

material that is visible. 

I find that Doll did not use the correct standard in concluding that the violation herein was the result of Respondent's 

unwarrantable failure. The proper standard has been set forth by 

the Commission in Emery Mining Corp., supra at 2004, as requiring 

the establishment of the existence of "aggravated conduct." 

Applying this test to the facts as set forth above, I conclude 

that it has not been established that there was any aggravated 

conduct on the part of Respondent. The fact that Doll had, 

2 weeks prior to the date in question, issued a violation of 

section 75.400, supra, for equipment on the section, and told the 

foreman that something had to be done to keep the section cleaner, 

does not per se establish that there was aggravated conduct with 

regard to the specific violative condition herein. I find that 

Milliron's failure to.clean behind the wheel was negligence, but 

not aggravated conduct. Accordingly, I conclude that the violation 

herein was not the result of Respondent's unwarrantable failure. 

Accordingly, Respondent's Motion for Directed Verdict, with regard 

to the issue of unwarrantable failure, which was made at the 

conclusion of Petitioner's case, is hereby GRANTED. 

Taking into account the fact that it has not been established 

that there wer~ ignition sources present in such a condition as to 

make it likely that the oil and grease would have been ignited, I 

conclude that the gravity herein of the violation was moderate. I 

accept the testimony of Petitioner's witnesses that the accumulations herein of oil and grease wer9 readily visible. I conclude 

that Respondent should hav~ known of the accumulations, and as such 

245 
was negligent herein to a 0

significant degree. Considering the 

criteria of section llO(i) of the Act, I conclude that a penalty of 

$750 is appropriate for the violation found herein. 

ORDER 

It is ORDERED that Order Nos. 3100463 and 31004677 be AMENDED 

to section 104Ca> Citations, and to reflect the fact that the violations therein were not significant and substantial, and were not 

the result of Respondent's unwarrantable failure. It is further 

ORDERED that Respondent herein shall pay $1,650, within 30 days of 

this Decision, as a civil penalty for the violations found herein. 

~~ 

-~, I .. 

Avram Weisberger 

Administrative Law Judge 

Distribution: 

Glenn M. Loos, Esq., Office of the Solicitor, U. s. Department of 

Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203 

(Certified Mail) 

Eugene P. Schmittgens, Jr., Esq., Michael A. Kafoury, Esq., 

Eastern Associated Coal Corporation, P. o. Box 373, St. Louis, MO 

63166 (Certified Mail) 

dcp 

246 
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 CMSHA), 

Petitioner 

v. 

DAY BRANCH COAL COMPANY 

INC., 

Respondent 

FEB 2 61990 

. . 

DECISION 

CIVIL PENALTY PROCEEDINGS 

Docket No. KENT 89-130 

A. C. No. 15-15348-03544 

Docket No. KENT 89-132 

A. C. No. 15-15348-03546 

Docket No. KENT 89-144 

A. C. No. 15-15348-03547 

Day Branch Coal Co., No. 4 

Appearances: Anne T. Knauff, Esq., Office of the Solicitor, U.S. 

Department of Labor, Nashville, Tennessee, for the 

Petitioner, 

Mr. James Trosper, Safety Director, Day Branch Coal 

Company, for the Respondent. 

Before: Judge Fauver 

The Secretary of Labor seeks civil penalties for alleged 

violations of safety standards under § llO(a) of the Federal Mine 

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

At the hearing, the parties moved to settle the following 

citations for the penalty amounts shown: 

Citation 

3172960 

3166462 

3167520 

3166465 

3166466 

3180305 

998707 

Civil Penalty 

$213 

$195 

$136 

$136 

$136 

$ 20 

$ 20 

The motion was approved, and those amounts will be included 

in the order below. 

247 
Having considered the hearing evidence and the record as a 

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

and probative evidence establishes the following Findings of 

Fact and further findings in the Discussion below: 

FINDINGS OF FACT 

1. Respondent operates an underground coal mine, known as 

Mine No. 4, which produces coal for sale or use in or 

substantially affecting interstate commerce. 

Order No. 3166381 

2. On January 10, 1989, MSHA Mine Inspector Robert W. Rhea 

found that miners had worked or traveled under unsupported roof 

in the face of the Number 2 room of the 003 section. Loose coal 

had been scooped up and stored across the 20-f oot-wide face of 

the Number 2 room. The last row of permanent roof support was 

installed 50 feet outby the face. 

3. Inspector Rhea discussed this condition with the mine 

foreman in the Number 2 room of the 003 section on January 10, 

1989. The inspector and the foreman could not determine the 

miner or miners who had traveled under the unsupported roof, how 

the loose coal had come to be scooped to the face and ribs, and 

who had rock-dusted the ribs and floo~. The loose coal seen by 

Inspector Rhea and the foreman would not have occurred naturally. 

Because scoop tracks were clearly visible on the mine floor under 

the unsupported roof, Inspector Rhea and the mine foreman agreed 

that the loose coal had probably been scooped toward the face and 

ribs by the battery-powered scoop. 

4. Inspector Rhea issued 

§ 104(d)(2) of the Act, citing 

violation of 30 C.F.R. 75.202. 

operator with high negligence. 

Order No. 3166381 under 

a significant and substantial 

The inspector also charged the 

Citation No. 3166382 

5. During the inspection on January 10, 1989, Inspector 

Rhea observed that caution boards or other warning devices were 

not in place in the Number 3 room on the 003 section to warn 

miners that they had reached the end of permanent roof support. 

The coal seam in this area was too low for the miners to walk 

upright. Since the miners had to work on their hands and knees, 

their ability to see where the unsupported roof began was 

particularly impaired. Inspector Rhea issued Citation No. 

3166382, citing a significant and substantial violation of 30 

C.F.R. § 75.208. 

248 
Citation No. 3166383 

6. Inspector Rhea observed, in the Number 1 room on the 003 

section, that the last row of permanent roof supports was 

installed 15 feet from the face. He believed the roof control 

plan required roof supports up to four feet of the face, and 

therefore issued Citation No. 3166383, citing a significant and 

substantial violation of 30 C.F.R. § 75.220. 

Citation No. 3166384 

7. In the Number 2 and Number 5 rooms of the 003 section, 

Inspector Rhea found that 30-inch support timbers were used to 

support a 36- to 38-inch roof. The. undersized timbers were 

balanced on half-round split posts. Someone had tried to hide 

the unsteady footing of the timbers by packing mud around the 

split post bases. The remaining gap between the timber and the 

roof was stuffed with three or four wooden wedges. The inspector 

issued Citation No. 3166384, citing a significant and substantial 

violation of 30 C.F.R. § 75.206(e). 

Citation No. 2843066 

8. On December 21, 1988, MSHA Inspector Russell and two 

miners rode a scoop to leave the mine; the scoop traveled at 

about four miles per hour. The coal seam was between 36 and 38 

inches high along the roadway the scoop traveled, which was the 

primary escapeway from the mine. Because of the height of the 

coal, Inspector Russell had to ride on the scoop lying on his 

back, facing the roof. In that position, he observed that the 

heads of 20 or 25 roof bolts had been cut off by the scoop at 

some prior time, and the roof plates had fallen from the roof. 

Inspector Russell was able to count the number of breaks to the 

outside. Once outside, he calculated the number of sheared-off 

roof bolts and missing roof plates, based on the number of breaks 

he had passed, the number of feet between breaks, and the 

placement of roof bolts and plates required by the approved roof 

control plan. 

9. Inspector Russell issued Citation No. 2843066, citing a 

significant and substantial violation of 30 C.F.R. § 75.202. 

Citation No. 3166461 

10. On January 19, 1989, during an electrical inspsection, 

MSHA Inspector Elija Myers found that the water deluge system 

installed on the Number 2 underground conveyor belt drive was 

inoperative when tested. 

249 
11. Inspector Myers issued Citation No. 3166461, citing a 

significant and substantial violation of 30 C.F.R. § 75.1100-3. 

DISCUSSION WITH FURTHER FINDINGS 

Section llO(i) of the Act provides six criteria to consider 

in assessing a civil penalty. One of these is the operator's 

compliance history. I have previously ruled that the operator's 

history of payments of civil penalties which have become final is 

part of its compliance history. This operator has a very poor 

history of payments of final civil penalty assessments. An 

updated copy of Government Exhibit 1 shows that, in the 24 months 

preceding the order and citations in these cases, Respondent was 

assessed civil penalties of $14,457.00, but paid only $6,700.05. 

This record of significant noncompliance with final assessments 

will be considered in assessing civil penalties for the 

violations found in these cases. 

Order No. 3166381 

The only eyewitness who testified as to facts concerning 

this order was the MSHA Inspector. The inspector found physical 

evidence that a miner or miners had worked or traveled 50 feet 

under unsupported roof. Loose coal was pushed against the face 

and ribs; the area was rockdusted; there were tire tracks of the 

coal scoop; there was no roof support and no evidence that 

timbers had been installed or dislodged. No timbers were 

present in an area of 20 x 50 feet. 

Inspector Rhea discussed this situtation with the mine 

foreman, at the site where the condition was found. They agreed 

that the loose coal must have been scooped by the battery-powered 

scoop. 

The inspector found high negligence because of the high duty 

everyone in a coal mine has not to work or travel under 

unprotected roof. ~s Inspector Rhea testified, "Unsupported 

roof, to me, is the most dangerous environment in a coal mine 

" Tr. 63. 

The men and materials needed to abate this condition were 

immediately available; after the order was issued, the roof 

supports were in place within 30 minutes. 

The evidence sustains the inspector's finding of high 

negligence and an "unwarrantable" violatio:i (which the commission 

has ruled to be "aggraved" conduct beyond ordinary negligence). 

Because of the plain danger of going under 50 feet of 

unsupported roof, the inspector also found a "significant and 

250 
substantial" violation (which the Commission has interpreted as 

involving a.reasonable likelihood of a serious injury). The 

operator offered opinion evidence that this was not a 

significant and substantial violation because the roof in the 

mine was generally stable and the inspector did not find abnormal 

roof conditions at the site. The inspector testified that going 

under unsupported roof in an underground coal mine is highly 

dangerous, and if done in his presence he would issue an imminent 

danger order. The evidence sustains the inspector's finding 

that the violation was significant and substantial. 

Considering all the criteria for a civil penalty in § llOCi) 

of the Act, I find that a penalty of $1,500 is appropriate for 

this violation. 

Citation No. 3166382 

The inspector observed that caution boards or other warning 

devices were not in place to warn miners of unsupported roof. 

The need for the warning devices was especially great because the 

miners were working in coal so low they had to crawl to do their 

work. Respondent acknowledged that there should have been a 

caution board at the edge of unsupported roof to warn mine 

personnel of the unsupported area (Tr. 50), but sought to excuse 

the absence of the caution boards on the basis of assumed roof 

stability. This position is inconsistent with the statement of 

Day Branch's safety director that he had seen or heard of roof 

falls in areas that previously had been considered "stable" (Tr. 

5 5) • 

Roof stability is not recognized in the regulation as an 

exemption from compliance. The regulation acknowledges only one 

exception to the posting of warning devices to mark the beginning 

of unsupported roof i.e. when roof supports are being installed. 

This exception does not apply to the situation found by the 

inspector because mining of the area had been completed and the 

roof-bolting machine had already been moved outby the last open 

crosscut. 

The inspector found this violation to be "significant and 

substantial" because of the high degree of risk in going under 

unsupported roof. The evidence sustains the inspector's finding. 

The manpower and materials required to abate this violation 

were immediately available. Once the violation was cited, it 

took only five minutes to hang the caution board to mark the 

beginning of unsupported roof. 

251 
Considering all the criteria for a civil penalty in § llO(i) 

of the Act, I find that a penalty of $300 is appropriate for this 

violation. 

Citation No. 3166383 

The inspector found noncompliance with Day Branch's roof 

control plan. The last row of permanent roof supports had been 

placed 15 feet from the face of the Number 1 Room. The roof 

control plan required supports four feet from the face. 

Timbers were the sole method of roof support in this room. 

The plan called for installation of two rows of timbers at the 

face of the Number 1 Room as the continuous miner retreated. At 

the time the condition was cited, the continuous miner had 

already been backed outby the last open crosscut in the Number 3 

Room; there was no equipment in the Number 1 Room. 

There was evidence that miners had been working in the room, 

in that the face had been cut some time prior to the inspection, 

probably on the previous shift. The inspector found, from the 

condition of the coal face and the absence of any equipment in 

the room, that work in the room had been completed and that the 

mining cycle would be complete when the crosscut had been cut 

through. There was no evidence that efforts were under way to 

install the missing timbers. 

At the hearing, the parties agreed to amend this citation to 

delete the last phrase of the condition or practice cited, i.e. 

"immediately after the continuous miner had been withdrawn from 

the face" (Tr. 8), because it "is inapplicable in view of the 

roof control plan that was in effect at the time this was issued" 

(Id. ) • 

Considering all the criteria for a civil penalty in § ·110(i) 

of the Act, I find that a penalty of $300 is appropriate for this 

violation. 

Citation No. 3166384 

The inspector observed support timbers installed on unstable 

footing in Rooms 2 and 5 of the 003 section. These presented 

dangerous and inadequate roof support. Day Branch miners had 

used 30-inch timbers to support a roof 36-33 inches high. If the 

undersized timbers had to be used, solid footing could have been 

created for them by setting them on flat materials such as heacler 

boards, which are six inches wide, three inches thick, and 24 

inches long (Tr. 41). Instead, split cylindrical posts were 

placed on the mine floor, and the timbers were installed on top 

of them (Tr. 39). The cylindrical surface of the split posts 

252 
was used for the footing of 15 to 20 timbers. In addition, the 

15 to 20 timbers were installed with three to four cap wedges 

stuck between the top of a timber and the roof (Tr. 39, 45). Mud 

from the wet floors in the rooms had been piled up against the 

timbers, hiding the split posts on which the timbers rested CTr. 

46). The inspector discovered this violation when he brushed up 

against timbers, dislodging serveral (Tr. 40, 42). Had the 

operator's preshift examiner felt a few of the timbers to check 

their stability, he would have readily discovered that they had 

been set improperly. It is important to note that these timbers 

were the sole means of roof support in these rooms. 

The effect of the insecure and improperly installed roof 

timbers was that the roof was virtu~lly unsupported. This 

created a significant and substantial violation. 

The 003 section of the mine was an active section. There 

was evidence that miners had been working in the area. The 

improperly installed timbers were just inby the last open 

crosscut. 

The manpower and materials necessary to correct the 

violation were immediately available. Longer timbers were stored 

in a break about 150 to 200 feet away. Once cited, the violation 

was corrected within 15 minutes. 

Considering all the criteria for a civil penalty in § llO(i) 

of the Act, I find that a penalty of $300 is appropriate for this 

violation. 

Citation No. 2843066 

The route traveled by the inspector as he left the mine on 

Decemoer 21, 1988, was the primary travelway and escapeway. 

Miners traveled this entry regularly. Its safe condition should 

have been of particular concern to Day Branch. The regulations 

require that the area be examined every eight hours. 

The cited defects in the roof bolt supports were easily 

detectable. The bolt shafts where the 20 or 25 bolt heads had 

been sheared off were shiny and readily visible. Where the bolt 

heads had been sheared off, the large square head plates had 

fallen from the roof. 

The roof bolt defects compromised the roof support system. 

The compromised protection made a roof fall reasonably likely. 

In the event of a roof fall, serious injury to miners could 

reasonably be expected. 

253 
The evidence sustained the inspector's finding of a 

significant and substantial violation. 

Considering all the criteria for a ci~il penalty in § llO(i) 

of the Act, I find that a penalty of $325 is appropriate for this 

violation. 

Citation No. 3166461 

The regulation cited in this citation requires that fire 

fighting equipment be maintained in a usable and operative 

condition. The deluge system which Inspector Myers found to be 

inoperative is an automatic fire-suppression system consisting of 

thermally-controlled water sprays installed near the belt drive. 

If the temperature near the belt drive reaches 212 degrees, the 

water sprays should activate to cool overheated parts or to put 

out fires. The heat sensors are located at the belt power 

rollers which drive the belt. 

The deluge system was equipped with a test switch. When 

operative, the test switch will override the thermal controls and 

turn the water sprays on. When Inspector Myers pressed the test 

switch, he found that the deluge system was not connected to a 

power source. Without power, the entire system was inoperativ·e. 

Inspector Myers determined that the violation was reasonably 

likely to contribute to a fire accident and smoke or fire 

injuries. There was a definite danger of fire near the conveyor 

belt drive because of accumulations of grease, oil and loose coal. 

The belt was fire-resistant, but not fireproof. If it 

overheated, it would burn. 

The deluge system was required to be checked once a week, 

with a record of the weekly examinations. Inspector Myers found 

no record that the system had been checked. 

There was no other automatic fire supp~ession system in 

place near the belt drive. Nor was there conventional fire 

fighting equipment at hand. Because miners were not stationed to 

work at the belt drive at all times and because established air 

currents would have carried smoke out of the mine, a fire at the 

belt drive could have burned undetected for a substantial period, 

long enough to become out of control. 

The evidence sustained the inspector's finding of a 

significant and substantial violation. 

Considering all the criteria for a civil penalty in § llOCi> 

of the Act, I find that a penalty of $325 is appropriate for this 

violation. 

254 
CONCLUSIONS OF LAW 

1. The judge has jurisdiction over these proceedings. 

2. Respondent violated the cited safety standards as 

alledged in the order and citations involved herein. 

ORDER 

WHEREFORE IT IS ORDERED that: 

1. The order and citations involved in these proceedings 

are AFFIRMED. 

2. Respondent shall pay the above assessed penalties of 

$3,906 within 30 days of this Decision. 

ul_·11tf~ ~~v~ ~liam Fauver 

Administrative Law Judge 

7\nne T. Knauff, Esq., Office of the Solicitor, u. s. Department 

of Labor, 2002 Richard Jones Road, Nashville, TN 37215 {Certified 

Mail) 

Mr. James Trosper, Safety Director, Day Branch Coal Co., Inc., 

P.O. Box 204, Cawood, KY 40815 {Certified Mail) l 

iz 

255 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 271990 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. CENT 89-37-M 

A. C. No. 14-00164-05506 

v. 

Kansas Falls Quarry and Mill 

WALKER STONE COMPANY, INC., 

Respondent 

Appearances: 

DECISION 

C. William Mangum, Esq., Office of the Solicitor, 

U.S. Department of Labor, Kansas City, Missouri, 

for the Petitioner; 

Keith R. Henry, Esq., Weary, Davis, Henry, 

Struebing and Troup, Junction City, Kansas, for 

the Respondent. 

Before: Judge Fauver 

The Secretary of Labor seeks civil penalties for 11 alleged 

violations of safety standards under § llO(a) of the Federal Mine 

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

Having considered the hearing evidence and the record as a 

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

and probative evidence establishes the following Findings of Fact 

and additional findings of.fact in the Discussion below: 

FINDINGS OF FACT 

1. Respondent owns and operates the Kansas Quarry and Mill, 

which is a surface limestone mine engaged in mining and selling 

limestone with a regular and substantial effect on interstate 

commerce. 

2. Respondent is a medium size mine operator. 

3. After receiving each citation involved in this case, 

Respondent made a good faith effort to abate the cited condition 

promptly either by correcting the condition or by removing the 

cited equipment from service. 

256 
Citation 2651713 

4. On October 13, 1988, a guard was not in place over the 

four V-belt drive pulleys of the 353 natural~gas drive engine for 

the first set of rolls. The pulleys project from the sides of 

the motor. The moving parts may be contacted by persons using 

the elevated walkway around the engine. The pulleys are located 

about two feet from the floor. If an individual contacted the 

unguarded moving parts, the accident could result in a fatal or 

permanently disabling injury. 

5. On October 13, 

#14 AWG conductor cable 

room was not grounded. 

Serious injuries could 

Citation 2651714 

1988, a 110 volt metal fan serviced by a 

and located in the #1 crusher control 

Grounding provides fault protection. 

result from shock or fire. 

Citation 2651715 

6. On October 13, 1988, a 110 volt electrical metal heater 

with a fan motor mounted on metal was not grounded. The heater 

was located in the #1 crusher control room. Grounding provides 

fault protection. Serious injuries could result from shock or 

fire. 

Citation 2651716 

7. On October 13, 1988, part of a conveyor belt was not 

visible from the #1 crusher control room, where the belt controls 

were, and there was no warning system to warn people when the 

belt would start. If a person became entangled in the conveyor, 

the accident could result in a fatal or permanently disabling 

injury. 

Citation 2651717 

8. On October 13, 1988, exposed moving parts on the tunnel 

conveyor tail pulley adjacent to a walkway were not guarded. The 

tail pulley was in a poorly lighted area about 2 1/2 feet from 

the floor. If a person became entangled in the unguarded pulley, 

the accident could result in a fatal or permanently disabling 

injury. 

Citation 2651718 

9. On October 14, 1988, signs prohibiting smoking and open 

flames were not posted on two diesel fuel tanks near the shop 

257 
and on a diesel fuel tank near the electrical control building. 

There was some dry vegetation and diesel fuel spillage around the 

tanks which created a fire or explosion hazard. In the event of 

fire or explosion, serious injuries could occur. 

Citation 2651719 

10. On October 14, 1988, a 440 volt square D fuse switch 

and a starter switch which controlled the #1 crusher conveyor 

belt were not grounded. There was a grounding conductor leaving 

the starter switch to the motor, but it was not connected at the 

switch. If ~ wire connection, fuse clip, or other switch gear 

part faulted, the incident could result in a fatal shock or 

serious injuries. 

Citation 2651720 

11. On October 18, 1988, a principal 110 volt switch 

mounted on the outside of the electrical building was not labeled 

to show that it controlled the 110 volt starter switch for the #1 

crusher motors. The unit controlled by the switch could not be 

readily identified by its location. In an emergency, delay 

caused by confusion in trying to locate the right switch to 

de-energize the #1 crusher motors could contribute to serious 

injuries. 

Citation 2652721 

12. On October la, 1988, the 440 volt 3 phase, 10 H.P. 

conveyor drive motor was not grounded. The flex metal conduit, 

which had been used as a grounding conductor, was pulled off the 

motor junction box. Injury from shock could be fatal. 

Citation 2651722 

13. On October 19, 1988, 440 volt insulated cable wires 

entering a metal motor junction box were not bushed. The outer 

jacket on the cable was pushed back. The motor had been in this 

condition for at least several months. Injury from shock could 

be fatal. 

Citation 2651724 

14. On October 19, 1988, the diesel fuel delivery truck 

used to haul fuel to equipment in the four quarries did not have 

a door on the driver's side and had no seat belts. The truck 

travels about 10 to 12 miles per shift from the shop to the four 

quarries. Injury from falling out the door could be fatal. 

258 
DISCUSSION WITH FURTHER FINDINGS 

Citation 2651713 

On October 13, 1988, Inspector Larry J. Day observed that 

there was no guard over the V-belt drive pulleys of the 

alternator part of the 353 natural gas engine for a set of rolls. 

The engine was operating at the time and the pulleys were moving 

"at a very rapid pace." Tr. 43. Inspector Day also observed 

that the unguarded V-belt pulleys were within arm's reach of a 

walkway next to the engine and the fast-moving machine parts were 

exposed and would.be accessible to persons on the walkway. 

Although Inspector Day originally checked the "Gravity" section 

of the citation as non-S & s, he testified that it should have 

been classified as an s & S violation. He explained that 

Respondent's plant foreman, Clifford Manning, pressured him not 

to issue any citations, and because he did not want to increase 

the foreman's anger, he marked a number of the citations 

non-S & S instead of S & S. Tr. 227-228. His testimony on this 

point includes the following: 

THE WITNESS: I would like to make a statement as to 

the inspection was quite intense, I did 

have a lot of pressure on me. 

It was very difficult to issue citations to 

the operator, and I went lenient on the S and 

S part because of the difficulty that I had of 

issuing any citations to the operator. 

I was trying not to be ~mbitious or aggravate 

the operator any further than what he was, and 

still try to do my job. 

* * * 

The difficulty was every time* I wrote a 

citation, the operator would say, well you 

can't cite me for that because I'll have it 

fixed before you leave today. 

For some reason, he had the interpretation 

that if he could f i~ this violation, that I 

shouldn't cite him for it. 

So this made it difficult to give him -- to 

issue citations. [Tr. 227-228] 

* At page 228 of the transcript the reporter transcribed the 

word "everything," but the words used were "every time." 

259 
After reviewing each of his 11 citations at the hearing, the 

inspector testified that he would have changed four of them to 

allege gravity as s & s instead of non-S & S ~/, 

In her brief, the Secretary requests that these four 

citations be affirmed as alleging S & S violations. However, 

inasmuch as the Secretary did not move to amend the citations at 

the hearing, her request is denied as being untimely. 

Accordingly, the above four citations will be considered 

under "gravity" as used in § llO(i) of the Act, but .not on the 

question whether they are S & S violations within the meaning of 

§ 104(d)(l) of the Act. The citations that allege S & S 

violations will be considered under both "gravity" in § llOCi) 

and the question whether the violations were "significant and 

substantial" within the meaning of Section 104Cd)(l) of the Act. 

The Commission's test for finding an S & S violation is 

discussed in connection with other citations, below. 

Civil penalty proceedings before the Commission and its 

judges are de nova, and the penalties assessed in such 

proceedings-are to be based upon the six statutory criteria in 

§ llOCi) of the Act rather than MSHA's classification/points 

system. Sellersburg, 5 FMSHRC 287 (1983), aff'd, 736 F2d 1147 

(7th Cir. 1984); Black Diamond Coal Co., 7 FMSHRC 1117 (1985). 

The reliable evidence shows that Inspector Day observed a 

serious violation. He testified that the unguarded V-belt 

pulleys were accessible from the nearby walkway and that 

accidental contact with them could cause serious injuries. The 

violation is serious within the meaning of "gravity" in § llO(i) 

of the Act, even though it is not alleged to be a "significant 

and substantial" violation·within the meaning of § 104(d)(l) of 

the Act. It is a serious violation because the safety standard 

is an important protection for the miners, and because 

Respondent's conduct created a substantial possibility of serious 

injury. It is also serious because Respondent's conduct should 

be deterred. 

Citation 2651714 

On October 13, 1988, Inspector Day observed an ungrounded 

110 volt metal fan serviced by a conductor cable in the number 1 

crusher control room. The parties have stipulated that the fan 

2/ Citations 2651713, 2651714, 2651715 and 2651719. Tr. 

221-225, 404. 

260 
was not grounded and Inspector Day stated that there was no 

equivalent protection provided. The control room is small, about 

8 X 10 feet, and the fan would be close to an operator inside the 

room. Inspector Day ran a continuity test on the fan from the 

motor to the frame and found no resistance. He explained that if 

the fan motor faulted, the frame of the fan would become 

energized. 

In defense of this citation, Respondent states that the fan 

was approved for use by Underwriter's Laboratory, that it was not 

in use at the time of inspection, and that it was private 

property owned by the crusher operator and was used without 

knowledge or permission of the company. 

Inspector Day, a certified electrician, testified that the 

Underwriter's Laboratory approval had no bearing upon whether the 

fan was properly grounded (Tr. 50) and the fan was not grounded. 

The fact that the fan was not in use at the time of inspection 

does not rebut the proof of a violation, so long as the fan was 

available for use. Citation 2651714 is one of the four citations 

discussed above which the inspector stated should have been 

classified as S & S instead of non S & S. The s~.,;ne ruling 

applies, denying the Secretary's request to amend the citation. 

The fact that the fan was owned by an employee of Respondent 

and that Respondent did not expressly approve of its use does not 

rebut the proof of a violation. Respondent has not shown that it 

prohibited the use of the fan in its control room or that it 

instructed employees against the use of personal equipment. The 

fan was present at Respondent's mine site, its presence created a 

hazard, and until a citation was issued Respondent permitted at 

least one employee to have access to the fan while working. 

I find that this is a serious violation within the meaning 

of the "gravity" factor in § llO(i) of the Act. It is serious 

because the safety standard (30 C.F.R. § 56.12025) is an 

important protection for miners, Respondent's conduct created a 

substantial possibility of serious injury, and such conduct 

should be deterred. 

Citation 2651715 

On October 13, 1988, Inspector Day observed an ungrounded 

110 volt metal heater located in the number 1 er-usher control 

room. The parties have stipulated that the heater was not 

grounded. Inspector Day ran a continuity test on the heater and 

found that it was a good electrical conductor. The metal heater 

was the property of Respondent. The heater was on the floor of 

the crusher control .room within arm's reach of any oper-ator who 

would be in the room. 

261 
This citation is one of the four citations discussed above, 

which the inspector stated should have been classified as S & S 

instead of non-S & s. The same ruling applies denying the 

Secretary's request to amend the citation. 

I find that this is a serious violation within the meaning 

of the "gravity" factor in § llOCi) of the Act. It is serious 

because the safety standard (30 C.F.R. § 56.12025) is an 

important protection for miners, Respondent's conduct created a 

substantial possibility of serious injury, and such conduct 

should be deterred. 

Citation 2651716 

On October 13, 1988, Inspector Day issued Citation 2651716, 

alleging a violation of 30 C.F.R. § 56.9006, which provides: 

When the entire length of a conveyor is visible 

from the the starting switch, the operator shall 

visually check to make certain that all persons are in 

the clear before starting the conveyor. When the 

entire length of the conveyor is not visible from the 

starting switch, a positive audible or visual warning 

system shall be installed and operated to warn persons 

that the conveyor will be started. 

Inspector Day testified that ten to twelve feet of a 

conveyor belt which was started from crusher control room number 

1 was not visible from the crusher control room. Tr. 64, 403. 

Cliff Manning, the plant foreman, stated that approximately ten 

to fifteen feet of the conveyor was not visible from the control 

room. There was no audible or visual warning system to warn 

persons when the conveyor would be started. Employees performed 

greasing around the portion of the conveyor that was invisible 

from the control room. The conveyor was started once or twice a 

day. 

The inspector marked this violation non-S & S on the 

citation. The Secretary's post-hearing request to amend the 

citation to allege an S & s violation is denied as being 

untimely. 

I find that this is a serious violation within the meaning 

of "gravity" in § llOCi) of the Act. It is serious because the 

safety standard (30 C.F.R. § 56.9006) is an important protection 

for miners, Respondent's conduct created a substantial 

possibility of serious injury, and such conduct should be 

deterred. 

Citation 2651717 

On October 13, 1988, Inspector Day issued Citation 2651717, 

alleging a violation of 30 C.F.R. § 56.14001, which provides: 

262 
Gears; sprockets; chains, drive, head, tail, and 

takeup pulleys; flywheels; couplings; shafts; saw 

blades; fan inlets; and similar exposed moving machine 

parts which may be contacted by persons, and which may 

cause injury to persons, shall be guarded. 

Inspector Day testified that the tail pulley for a conveyor 

belt located in a tunnel did not have a guard in place. Although 

a stop cord was located over the unguarded portion of the tail 

pulley, the presence of a stop cord does not replace the need for 

a guard. The safety standard makes no provision for the use of a 

stop cord in lieu of guarding. 

The inspector marked this violation as non-s & S on the 

citation, because of infrequent exposure of personnel to the 

cited condition. 

I find this violation to have a low degree of gravity. 

Citation 2651718 

On October 14, 1988, Inspector Day issued Citation 2651718, 

alleging a violation of 30 C.F.R. § 56.4101, which provides: 

Readily visible signs prohibiting smoking and open 

flames shall be posted where a fire or explosion hazard 

exists. 

Inspector Day observed two large diesel fuel tanks side by 

side that did not have signs prohibiting smoking posted on them 

or near them. A gasoline tank was located about 45 feet away 

from the diesel tanks. The gasoline tank did have a single "no 

smoking" sign posted on it, however the sign was not readily 

visible from all areas around the diesel tanks. Respondent's 

president, David Wall{er, stated that the diesel tanks were 

accessible from all directions to the plant and that the "no 

smoking" sign on the gasoline tank could not be seen from all 

approaches to the diesel tanks. Mr. Walker confirmed that 

readily visible "no smoking" signs were posted only after the 

citation had been issued and new signs were painted on the diesel 

tanks. 

Inspector Day testified that a third diesel tank was located 

near an electrical control building. Tr. 82. The third diesel 

tank did not have any signs prohibiting smo~ing posted on it and 

although there was an old wooden building with a "no smoking" 

sign located near the third diesel tank, the sign could not be 

seen from the tank. 

The evidence establishes that readily visible signs 

prohibiting smoking and open flames were not posted on or around 

three of Respondent's diesel Euel storage tanks. 1nspector Day 

marked this violation non-S & S on the citation. 

263 
I find that this violation presented a low level of gravity. 

Citation 2651719 

On October 14, 1988, Inspector Day observed a 440 volt fuse 

disconnect switch in an electrical control building about four or 

five feet above a dirt floor. The switch was not properly 

grounded and no equivalent protection was provided. Respondent's 

plant foreman, Cliff Manning, confirmed that there was no 

grounding between the fuse box and starter switch. This 

condition was a violation of 30 C.F.R. § 56.12025 and presented a 

risk of electric shock. 

The inspector marked this violation non-S & S on the 

citation. The Secretary's post-hearing request to amend the 

citation to allege an S & S violation is denied as being 

untimely. 

I find that this is a serious violation within the meaning 

of "gravity" in § llO(i) of the Act. It is serious because the 

safety standard (30 C.F.R. § 56.12025) is an important protection 

for miners, Respondent's conduct created a substantial 

possibility of serious injury, and such conduct should be 

deterred. 

Citation 2651720 

On October 18, 1988, Inspector Day issued Citation 2651720, 

alleging a violation of 30 C.F.R. § 56.12018, which provides: 

Principal power switches shall be labeled to show 

which units they control, unless identification can be 

made readily by location. 

Inspector Day observed a large principal power switch 

mounted on the outside of an electrical control building. He saw 

three conductors running into the switch and a conduit running 

out of the switch into the earth. He could not readily identify 

which unit or units were controlled by the switch and there was 

no label on the switch to identify the unit it controlled. Plant 

foreman Clifford Manning confirmed that the unlabeled power 

switch might be confusing to some employees. Inspector Day 

eventually determined that the unlabeled power switch controlled 

the conveyo.c motors for the crusher. 

The evidence establishes that a principal power switch was 

not labeled to show which units it controlled and that 

identification could not be made readily by its location. 

Inspector Day marked this violation non s & s on the 

citation. I find that it presented a low level of gravity. 

264 
"Gravity" of a violation under § llOCi> and a "Significant 

and Subst~ntial" violation under§ 104(d)(l) of the Act 

The term a "significant and substantial violation" derives 

from§ 104Cd)Cl) and (2) of the Act, 3/ and not its civil penalty 

provision C§ llOCi)). The civil penalty provision simply uses 

the term "gravity of the violation," as one of six statutory 

criteria to consider in assessing a penalty. 

Sections 104Cd)(l) and (2) grant an administrative 

injunctive power to the Secretary of Labor quite different from 

the civil penalty authority in§ llOCi). Sections 104Cd)(l) and 

(2) authorize the Secretary to withdraw miners from a mine if a 

certain chain of violations occurs. The chain must begin with a 

ll Sections 104(d)(l) and (2) provide: 

"Cd)(l) If, upon any inspection of a coal or other mine, an 

authorized representative of the Secretary finds that there has ' 

been a violation of any mandatory health or safety standard, and 

if he also finds that, while the conditions created by such 

violation do not cause imminent danger, such violation is of such 

nature as could significantly and substantially contribute to the 

cause and effect of a coal or other mine safety or health hazard, 

and if he finds health hazard, and if he finds such violations to 

be caused by an unwarrantable failure of such operator to comply 

with such mandatory health and 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 person referred to in subsection 

Cc) to be withdrawn from, and to be prohibited from entering, 

such are until an authorized representative of the Secretary 

determines that such violation has been abated. 

"(2) If a withdrawal order with respect to any area in a 

coal and other mine has been issued pursuant to paragraph {i), a 

withdrawal order shall promptly be issued by an authorized 

representative of the Secretary who finds upon any subsequent 

inspection the e&istence in such mine of violations similar to 

those that resulted in the issuance of the withdrawal order under 

paragraph Cl) until such time as an inspection of such mine which 

discloses no similar violation. Following ~n inspection of such 

mine which discloses no similar violations, the provisions of 

paragraph Cl) shall again be applicable to that mine." 

265 
finding of a violation which, though not an imminent danger, !/ 

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 is also "caused by an unwarrantable 

failure ••• to comply with ..• mandatory health or safety 

standards • • " If a mine inspector finds such a violation, 

§ 104Cd){l) requires that the inspector "include such finding in 

any citation given to the operator •.•• " It is this finding 

that begins a§ 104Cd)(l) chain that may lead to a§ 104{d)(2) 

order withdrawing miners from the mine or a part of it. 

This administrative injunctive power is strictly construed 

by the commission, which has ruled that, to prove a "significant 

and substantial" violation, the Secretary must prove "a 

reasonable likelihood that the hazard contributed to will result 

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

Division, National Gypsum Co., 3 FMSHRC 822, 825 {1981)). 

The Commission has not stated how its definition of a 

"significant and substantial" violation differs from the Act's 

definition of an "imminent danger" {seen. 4, infra). However, 

inasmuch as§ 104{d)(l) does not apply to an "imminent danger," 

the Commission's definition of an S & s violation must mean a 

level of gravity below an imminent danger. 

"Gravity of the violation," as used in§ llO{i), i.e. for 

civil penalty purposes, is not tied to the question whether a 

violation is or is not "significant and substantial" within the 

meaning of§ llO{d)(l). "Gravity," for civil penalty purposes, 

is the seriousness of a violation. This includes the importance 

of the safety or health standard, and the seriousness of the 

operator's conduct, in relation to the Act's purpose of deterring 

violations and encouraging compliance with safety and health 

standards. Many types of safety or health violations are serious 

even though a single violation might not show a "reasonable 

likelihood" of causing injury or illness, or even fit into a 

probability-of-injury-or-illness mold. For example, some 

violations are serious because they demonstrate recidivism or an 

attitude of defiance by the operator. Others are serious because 

the safety and health standard involved is an important 

protection for the miners. Important safety or health standards 

are such that, if they are routinely violated or trivialized 

substantial harm would be likely at some time, even if the 

likelihood that a single violation will cause harm may be remote 

4/ Section 3(j) of the Mine act defines "imminent danger" as 

~the existence of any condition or practice in a coal or other 

mine which could reasonably be expected to cause death or serious 

physical harm before such condition or practice can be abated." 

30 u.s.c. § 802(j). 

266 
or even slight. 5/ Other mine safety and health violations are 

serious because they may combine with other violations or 

conditions to set the stage for a mine accident or disaster, even 

though individually, or in isolation, they do not appear to 

forecast injury or illness. Still others are serious because 

they involve a substantial possibility of causing injury or 

illness, if not a probability. 

The term a "significant and substantial" violation within 

the meaning of§ 104Cd){l) of the Act has been interpreted by the 

Commission in a number of cases. 

In Mathies Coal Co., 6 FMSHRC 1, 3-4 {1984), the Commission 

stated: 

In order to establish that a violation of a mandatory 

safety standard is significant and substantial under 

National Gypsum the Secretary •.• must prove: Cl) the 

underlying violation of a mandatory safety standard; (2} a 

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

safety - - contributed to by the violation; (3) a 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 Commission has explained further that the third element of 

the Mathies formulation "requires that the Secretary establish a 

reasonable likelihood that the hazard contributed to will result 

in an event in which there is an injury." U.S. Steel Mining, 

Co., 6 FMSHRC 1834, 1986 (1984) {emphasis deleted). It has also 

stated that, in accordance with§ 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. In addition, the 

evaluation of reasonable likelihood shouldJ:>e made in terms of 

"continued normal mining operations." U.S. Steel Mining Co., 

Inc., 6 FMSHRC 1573, 1574 {1984). 

The Commission's definition of an S & S violation will be 

applied in considering the following three citations: 

5/ For example, a stop-look-and-listen safety law for public 

iervice vehicles at railroad crossings may be considered an 

important safety standard even though a particular instance of 

violation may not show a "reasonable likelihood" of collision 

with a train. 

267 
Citation 2651721 

On October 18, 1988, Inspector Day observed a conveyor and 

conveyor motor mounted on a river bridge~ He saw three 

conductors running into the motor and a broken conduit next to 

the junction box on the motor. The unit was not properly 

grounded. A metal framed walkway ran parallel to the conveyor. 

Inspector Day explained that two types of faults would probably 

result in the motor shutting off. Tr. 110. However, in the 

event of a "ground-to-face" fault the entire steel conveyor could 

become energized creating a hazard of electrocution. Tr. 110-113. 

Inspector Day further observed that the walkway adjacent to the 

conveyor was used regularly and he observed people on it often 

during the week he was there. 

Failure to ground the metal framed motor constituted a 

violation of 30 C.F.R. § 56.12025. A discrete safety hazard of 

electrocution was contributed to by the violation. The location 

of the improperly grounded motor and the frequent use of the 

adjacent metal walkway by employees resulted in a reasonable 

likelihood that the violation would cause a serious injury. 

Inspector Day classified this violation as "significant and 

substantial." The violation meets the criteria set forth in 

Mathies Coal Co., supra. 

Citation 2651722 

On October 19, 1988, Inspector Day issued Citation 2651722, 

alleging a violation of 30 C.F.R. § 56.12008, which provides: 

Power wires and cables shall be insulated adequately 

where they pass into or out of electrical compartments. 

Cables shall enter metal frames of motors splice boxes, 

and electrical compartments only through proper fittings. 

When insulated wires, other than cables, pass through metal 

frames, the holes shall be substantially bushed with 

insulated bushings. 

Inspector Day observed that the wires from a 440 volt cable 

entered a metal motor junction box. The cable itself did not 

enter the box, but the cable jacket had been torn back so that 

only the wires entered the junction box. Inspector Day observed 

that there was no bushing inside the junction box or anywhere on 

the cable wires. Lack of adequate bushings could result in 

electric shock or fire with serious injuries. 

Inspector Day's testimony regarding the condition of the 

wires is not contradicted. He classified this violation as 

significant and substantial. The violation meets the criteria 

set forth in Mathies Coal Co., supra. A violation of 30 C.F.R. 

268 
§ 56.12008 is established by the fact that insulated wires 

passing through the metal frame of junction box were not bushed. 

The violation contributed to a discrete safety hazard of 

electrocution, and created a reasonable likelihood of serious 

injuries. 

Citation 2651724 

On October 19, 1988, Inspector Day issued Citation 2651724, 

alleging a violation of 30 C.F.R. § 56.9002, which provides: 

Equipment defects affecting safety shall be 

corrected before the equipment is used. 

The inspector observed an old dump truck that had been 

converted into a fuel delivery truck by mounting a large fuel 

tank on it. The door on the driver's side of the truck had been 

removed and no seat belt had been installed in the cab. The 

truck operated on rough gravel roads. The combined· equipment 

defects of no door and no seat belt created a reasonable 

likelihood of a driver falling out of the truck and being run 

over by the truck or receiving other serious injuries from the 

fall. 

Inspector Day classified this violation as significant and 

substantial. This violation meets the criteria set forth in 

Mathies Coal Co., supra. The lack of a seat belt and a missing 

door on the fuel delivery truck are equipment defects affecting 

safety in violation of 30 C.F.R. § 56.9002. The violation 

created a discrete safety hazard which was reasonably likely to 

cause a serious injury. 

The Effect of Prior Inspections 

With respect to five of the eleven the citations, Respondent 

contends that Inspector Day should not have issued a citation 

because earlier inspections by other MSHA inspectors (of the same 

conditions at this mine) did not result in citations. 

Specifically, in its post-hearing brief Respondent contends that 

Citations 2651716, 2651717, 2651720, 2651721, and 2651724 were 

for conditions that had previously been observed by other 

inspectors without issuing a citation. 

The doctrine of collateral estoppel may not be invoked to 

prevent a mine inspector from issuing a citation for a condition 

he or she believes to be a violation of a safety or health 

standard. The fact that other MSHA inspectors may not have cited 

Respondent for the same conditions later cited by Inspector Day 

does not affect the validity of his citations. However, 

269 
Respondent's reliance on prior inspectors' lack of citations may 

have a bea~ing upon the question whether Respondent was negligent 

and, if so, to-what degree. After careful consideration-of the 

evidence concerning each violation found herein, I find that the 

degree of negligence should be changed from "moderate" to "low" 

for the following citations: Nos. 2651717, 2651720, 2651721, and 

2651724. The inspector's finding of low negligence in Citation 

2651716 is sustained by the reliable evidence. As to each of the 

remaining violations (Citations 2651713, 2651714, 2651715, 

2651718, 2651719 and 1651722), I find that the violation could 

have been prevented by the exercise of reasonable care and was 

due to moderat~ negligence. 

Considering all of the criteria for a civil penalty in 

§ llOCi>, I find that the following penalties are appropriate for 

the violations found herein: 

Citation 

2651713 

2651714 

2651715 

2651716 

2651717 

2651718 

2651719 

2651720 

2651721 

2651722 

2651724 

Civil Penalty 

$ 50.00 

$ 50.00 

$ 50.00 

$ 20.00 

$ 20.00 

$ 20.00 

$ 50.00 

$ 20.00 

$ 75.00 

$100.00 

$ 75.00 

CONCLUSIONS OF LAW 

1. The judge has jurisdiction over this proceeding. 

2. Respondent violated the cited safety standard alleged in 

each of the above citations. 

ORDER 

WHERE~ORE IT IS ORDERED that: 

1. Citations 2651717, 2651720, 2651721, and 2651724 are 

modified to change the degree of negligence from "moderate" to 

"low." The above modified citations and the other citations 

herein are AFFIRMED. 

270 
2. Respondent shall pay the above-assessed civil penalties 

of $530 within 30 days of this Decision. 

Distribution: 

~:rtlMVeA_ William Fauver 

Administrative Law Judge 

c. William Magnum, Esq., Office of the Solicitor, U.S. Department 

of Labor, 911 Walnut Street, Kansas City, Missouri 64108 

(Certified Mail) 

Keith R. Henry, Esq., Weary, Davis, Henry, Struebing and Troup, 

818 North Washington Street, Junction City, Kansas 66441 

(Certified Mail) 

iz 

271 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 271990 

LANCASHIRE 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. 

LANCASHIRE COAL COMPANY, 

Respondent 

CONTEST PROCEEDINGS 

Docket No. PENN 89-147-R 

Order No. 2888399; 3/21/89 

Docket No. PENN 89-148-R 

Order No. 2888400; 3/21/89 

Docket No. PENN 89-149-R 

Citation No. 2891501; 3/21/89 

Docket No. PENN 89-192-R 

Citation No. 2891508j 4/17/89 

Docket No. PENN 89~193-R 

Citation No. 2891509; 4/17/89 

Prep Plant 

Mine ID 36-00838 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 90-10 

A.C. No. 36-00838-03537 

Prep Plant 

DECISIONS 

Appearances: Steven P. Fulton, James R. Haggerty, Esqs., Reed, 

Smith, Shaw & Mcclay, Pittsburgh, Pennsylvania, 

for the Contestant/Respondent; 

Before: 

Mark V. Swirsky, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania, for the Respondent/Petitioner. 

Judge Koutras 

Statement of the Proceedings 

These consolidated proceedings concern Notices of Contests 

filed by the contestant (Lancashire) pursuant to section 105(d) 

272 
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 815(d), challenging the legality of the captioned orders and 

citations issued by MSHA mine inspectors. The civil penalty 

proceeding concerns proposals for assessment of civil penalties 

filed by MSHA seeking civil penalty assessments against 

Lancashire for the alleged violations of the mandatory safety and 

reporting standards which are the subject of the contested 

citations. Hearings were held in Pittsburgh, Pennsylvania, and 

the parties filed posthearing briefs which I have considered in 

the course of my adjudication of these matters. 

Issues 

An initial issue in these proceedings is one of jurisdiction. Lancashire contends that the mine in question does not 

fall within the statutory definition of a "mine" subject to 

MSHA's jurisdiction, that the mine was placed in a "permanently 

abandoned" status by MSHA in September, 1988, and was not 

"reopened" or "reactivated" for purposes of coal extraction 

processing or production, and that MSHA's alleged failure to 

inspect or regulate other mines similarly situated constitutes 

illegal "selective enforcement" against Lancashire. 

Assuming that jurisdiction attaches, the next issues presented include the following: (1) whether Lancashire violated 

the cited mandatory standards; (2) whether the alleged violations 

were significant and substantial (S&S); (3) whether the conditions or practices cited in the contested section 107(a) imminent 

danger order constituted an imminent danger; and (4) whether the 

section 103(k) order was properly issued. 

Assuming the alleged violations are established, the question next presented is the appropriate civil penalties to be 

assessed pursuant to the civil penalty assessment criteria found 

in section llO(i) of the Act. Additional issues raised by the 

parties are identified and disposed of in the course of the 

adjudication of these cases. 

Applicable statutory and Regulatory Provisions 

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

30 u.s.c. § 301, et seq. 

2. 30 C.F.R. § 77.200, 77.1712, and 45.4(b). 

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

Stipulations 

The parties stipulated to the following (Tr. 16; exhibit 

ALJ-1) : 

273 
1. The subject work site, Lancashire Coal Company Preparation Plant ("the work site") is located in Elmora, Cambria 

County, Pennsylvania and is owned by the Inland steel Company 

("Inland"}, which has an office in East Chicago, Indiana. 

2. Inland has referred to the work site as the #15 Preparation Plant. 

3. The work site is adjacent to a sealed mine facility 

which is owned by Inland and which is known as the Lancashire 

Coal Company No. 25 Mine ("Lancashire Mine #25 11 ). 

4. No coal has been mined at Lancashire Mine #25 since 

June 3, 1983. 

5. Until June 3, 1983, the Lancashire Mine #25 was an 

active, producing underground coal mine with surface coal preparation facilities located adjacent to it on the site ("the 

Lancashire Coal Company Preparation Plant"). 

6. On April 17, 1986, the underground mine shafts were 

sealed by the operator. At that time, the mine operator was 

Inland Steel Coal Company. 

I 

7. Since the mine shafts were sealed, the surface, facilities have been inactive with the exception of a small water 

treatment facility. 

8. On September 30, 1986, the MSHA classification of the 

mine was changed to a surface facility as a result of the underground openings being sealed. 

9. During fiscal years 1987 and 1988, the work site was 

inspected by MSHA as a surface facility. Prior to March 20, 

1989, the last MSHA safety and health inspection was April 1, 

1988. 

10. On September 6, 1988, the Hastings Field Office of MSHA 

declared the work site permanently abandoned (Joint Exhibit 1). 

11. MSHA's internal classification for the work site as of 

September 6, 1988 was CG status -- one of several MSHA classifications which are set forth and explained in the Department of 

Labor Mine Safety and Health Administration Coal Mine Safety and 

Health ("CMS & H") User's Guide for Coal's Management Information 

System, October 1, 1986 (Exhibit R-1). 

12. As a result of the action it took on September 6, 1988, 

MSHA ceased inspection activity at the work site. 

274 
13. After September 6, 1988, Lancashire took no action to 

indicate that it intended to resume the extraction, production, 

milling or processing of coal. 

14. In late 1988, Lancashire sought bids from contractors 

to perform work dismantling and removing facilities and structural materials from the work site and reclaiming the area. 

15. K & L Equipment Co., Inc. ("K & L"), owned by Kenneth 

Morchesky, was selected as the contractor and commenced work the 

week of February 20, 1989. 

16. Purchase orders relating to the contract between 

Lancashire and K & L are set forth at Joint Exhibits 2 and 3. 

17. On March 20, 1989, a fatal accident occurred at the 

work site. One of K & L's employees was killed during operations 

to raze a silo at the site. 

18. On March 21, 1989, MSHA Inspector William D. Sparvieri, 

Jr. arrived at the work site to conduct an inspection. As part 

of his activities at the work site on March 21, 1989, 

Mr. Sparvieri issued the following citations and orders (exhibits 

R-2 through R-4): 

a. Section 103(k) Order No. 2888399, 3:00 p.m. 

b. Section 107(a) Order No. 2888400, 3:15 p.m. 

c. Section 104(a) Citation No. 2891501, 3:30 p.m. 

19. Order No. 2888399 was modified on March 27, 1989 at 

7:45 a.m., and it was terminated on June 29, 1989, at 9:20 a.m. 

20. Order No. 2888400 was terminated on June 29, 1989, at 

9:30 a.m. Citation No. 2891501 was terminated on June 29, 1989, 

at 9:35 a.m. 

21. Order Nos. 2888399 and 2888400, and Citation 

No. 2891501 were timely contested by Contestant. 

22. On April 17, 1989, Inspector Sparvieri returned to the 

work site and served citation Nos. 2891508 (1:55 p.m.) and 

2891509 (2:00 p.m.) (exhibits R-5 and R-6). 

23. Citation No. 2891508 was modified on May 1, 1989, at 

9:50 a.m., and it was terminated on May 8, 1989 at 1:10 p.m. 

24. Citation No. 2891509 was terminated on May 8, 1989 at 

1:15 p.m. 

25. Citation Nos. 2891508 and 2991509 were timely contested 

by Contestant. 

275 
26. The above-described orders and citations were served by 

a representative of the Secretary of Labor upon an agent of 

Lancashire at the dates, times, and places stated therein. 

27. Lancashire stipulates that at the time Citation 

No. 2891508 was issued, it did not maintain in writing at the 

work site the information described in 30 C.F.R. § 45.4(a). 

Lancashire denies that it had any obligation to maintain such 

information. 

28. Lancashire stipulates that it did not notify the Coal 

Mine Health and Safety District Manager prior to commencing the 

work which is at issue in this case. Lancashire denies that it 

had any obligation to give such notification. 

29. MSHA admits that apart from the regulations codified in 

30 C.F.R. Part 77, no agent from MSHA provided any notification 

to Lancashire that it must notify the Coal Mine Health and Safety 

Health and Safety District Manager prior to commencing the work 

which is at issue in this case. 

30. Assuming the accuracy of the proposed civil penalty 

assessments filed by MSHA, the parties adduce the following 

information concerning the six statutory civil penalty criteria 

found in Section llO(i) of the Act: 

a. During the two-year period preceding the 

issuance. of the subject citations, Lancashire had no 

violations. 

b. Payment of the proposed penalties would not 

affect the operator's ability to continue in business. 

c. The operator demonstrated good faith in 

attempting to abate the alleged violations after notification of them. 

31. The parties stipulate to the authenticity and admissibility of each other's exhibits (with the exception of MSHA's 

Exhibits 7, 8, 9, 16, 25, 36, 37, and 38), but not necessarily to 

the exhibits' relevance nor to the truth of the matters asserted 

therein. 

32. The Administrative Law Judge has jurisdiction over 

these proceedings. However, Lancashire denies that its activities at the subject work site are subject to the jurisdiction of 

the Federal Mine Safety and Health Act of 1977. 

Bench Rulings 

The presiding Judge made the following bench rulings during 

the course of the hearing in these proceedings: 

276 
1. MSHA's objection to the admissibility of an 

affidavit executed by retired MSHA Inspector Thomas J. 

Simmers "(exhibit C-3), was overruled and denied, and 

the affidavit was received as part of the record (Tr. 

19) • 

2. MSHA's objection to the receipt of any testimony regarding MSHA's enforcement actions concerning 

the Barnes & Tucker No. 20 Mine was overruled and 

denied (Tr. 9). 

3. MSHA's motion to quash the subpoenas issued by 

Lancashire for the appearance and testimony of MSHA 

Inspector Niehenke and Brunatti (who appeared at the 

hearing) was overruled and denied (Tr. 9). 

4. Lancashire's objections to the admissibility 

of several hearing exhibits offered by MSHA (see stipulation #31) were overruled and denied and the documents 

were received as part of the record (Tr. 24-41). 

Discussion 

The facts in these proceedings show that at approximately 

2:15 p.m., on March 20, 1989, a fatal accident occurred at 

Lancashire's preparation plant when an employee of an independent 

contractor (K & L Equipment, Inc.) suffered fatal injuries while 

in the process of helping to dismantle a concrete coal storage 

silo. The victim, Robert Bell, had performed work cutting certain 5/8 inch steel reinforcing bands from the silo in question 

with a cutting torch. After completing this work, Mr. Bell left 

the area for a short time and returned to the silo area where he 

was next observed with the cutting torch kneeling at the base of 

the silo, where two or three of the steel reinforcing bands had 

been left intact. A section of the silo approximately 15 feet 

high and 30 feet wide collapsed, burying Mr. Bell in the debris 

which was in the silo. According to MSHA's accident investigation report, the debris included approximately 40 tons of coal 

which was in the silo. 

As a result of the accident, MSHA Inspector William D. 

Sparvieri, Jr., who conducted the accident investigation, issued 

several citations to the contractor K & L Equipment, Inc., (which 

were not contested), and he also issued the contested citations 

and orders to Lancashire and served them at the mine off ice on 

Mr. Frank Falger, a supervisor who maintained an office at the 

mine site. The citations and orders in question are as follows: 

Docket No. PENN 89-147-R. Section 103(k) Order No. 2888399, 

March 21, 1989, states as follows (exhibit R-2): 

277 
A fatal accident occurred on March 20, 1989, at 

the surface area of the mine site. This 103(k) order 

is issued to assure the safety of persons at the mine 

site. This area is closed to all persons except those 

needed to conduct an investigation. No persons are to 

enter this area and no work shall be performed in this 

area until the investigation is completed. 

Docket No. PENN 89-148-R. Section 107(a) Imminent Danger 

Order No. 2888400, March 21, 1989, states as follows (exhibit 

R-3) : ~ 

Structural damage has occurred in the raw coal 

silo and the screen house located next to the raw coal 

silo •. Both structures at the present time are in an 

unstable condition and are a threat to persons in the 

immediate area. This condition was observed during a 

fatal accident investigation. To terminate this condition both structures need to be demolished. The operator shall submit in writing to MSHA a method describing 

procedures to be used to assure the safety of persons 

involved in the demolition of the two structures. 

Docket No. PENN 89-149-R. Section 104(a) "S&S" Citation 

No. 2891501, March 21, 1988, cites an alleged violation of 

30 C.F.R. § 77.200, and the condition or practice cited states as 

follows (exhibit R-4): 

The raw coal silo and the screen house were not 

maintained in good repair to prevent accident or 

injuries to employees. At the raw coal silo several 

steel re-enforcing bands were removed causing an 

unstable condition which resulted in a fatal accident 

on 3-20-89. Loose materials, metal sheeting, was 

hanging from the screen house. 

The condition was a contributing factor in the 

issuance of an imminent danger Order No. 2888400, 

issued 3-21-89, therefore no abatement time was set. 

Docket No. PENN 89-192-R. Section 104(a) Non-"S&S" Citation 

No. 2891508, April 17, 1989, and modified on May 1, 1989, cites 

an alleged violation of 30 C.F.R. § 45.4(b), and the condition or 

practice is stated as follows (exhibits R-5 and R-5(a): 

The operator did not maintain in writing at the 

mine off ice information required by section 45a (sic) 

of 30 C.F.R. for the independent contractor K & L 

Equipment Inc. at this mine. This violation was 

revealed during a fatal accident investigation. The 

accident occurred on 3-20-89. 

278 
Docket No. PENN 89-193-R. Section 104(a) "S&S" Citation 

No. 2891509, April 17, 1989, cites an alleged violation of 

30 C.F.R. § 77.1712, and the cited condition or practice states 

as follows (exhibit R-6): 

The operator did not notify the MSHA District 

Manager prior to re-opening. An independent contractor, K & L Equipment Inc., was contracted for demolition work at the Lancashire Coal Company Preparation 

Plant. This violation was revealed during an investigation of a fatal accident that occurred on 3-20-89. 

MSHA's Testimony and Evidence 

MSHA Inspector William D. Sparvieri, Jr., testified as to 

his experience and training, and he· confirmed that he conducted a 

fatal accident investigation on March 21, 1989. He explained 

what he found at the raw coal storage silo where the incident 

occurred, and the adjacent building which he identified as the 

screen hous.e, and confirmed that some demolition work had been 

done at that structure (Tr. 41-48). He stated that the smaller 

of the two structures, which was the coal silo where the accident 

occurred, appeared to be unstable due to the fact that a large 

portion of its base was missing and the steel reinforcing bands 

which were around it had been cut and were hanging down, and the 

silo base did not appear to have any adequate support and was not 

in a safe condition. The screen house had pieces of tin and 

steel metal hanging from its sides, and since he did not know 

exactly how much work had been done on that structure to weaken 

its support legs, he was concerned about its safety (Tr. 50). 

Mr. Sparvieri stated that after spending an hour at the 

site, he and fellow Inspector John Kuzar returned to their office 

so that Mr. Kuzar could make a phone call to their sub-district 

manager concerning the jurisdictional question raised by the mine 

supervisor who was at the site (Mr. Falger), and the contractor 

owner (Mr. Morchesky-K & L), who had raised the jurisdiction 

question during the investigation. Mr. Sparvieri and Mr. Kuzar 

then decided to issue a 103(k) order to insure the safety of the 

K & L personnel doing the demolition work around the structures 

in question, and they also decided to issue a section 107(a) 

imminent danger order because of the unstable condition of the 

silo and the screen house and to insure the safety of the personnel as well as other persons (Tr. 51). After receiving word from 

their sub-district manager Tim Thompson, they returned to the 

site and Mr. Sparvieri issued the two contested orders and a 

section 104(a) citation citing a violation of section 77.200, 

because he believed that the silo and screen house were no longer 

maintained in such a condition as to prevent an accident or 

injury to persons required to work around them. Even though the 

structures were being demolished, he nonetheless believed that 

they were required to be maintained in a safe condition pursuant 

279 
to section 77.200, "so that those people performing this work 

have less risk of injury" (Tr. 54). He believed that the loose 

materials hanging from the screen house should have been taken 

down, and that the bands which had been cut from the silo presented a question as to whether both areas were a safe location 

(Tr. 55). Since there were loose and overhanging materials above 

the people that were working on the structures, he did not 

believe they were being maintained in good repair to prevent 

these materials from falling on the people working below (Tr. 

59) . 

Mr. Sparvieri confirmed that he based his "S&S" findings on 

the fact that the cited conditions could reasonably be expected 

to injure or kill someone if work were allowed to continue on 

both structures, and that the screen house overhanging materials, 

and the unstable silo, presented such hazards, particularly the 

silo, which had already collapsed, further weakening the 

structure (Tr. 60). 

Mr. Sparvieri confirmed that he based his moderate negligence finding on the fact that the respondent knew that the 

conditions existed and should have known of the conditions by 

observation (Tr. 61). He identified a series of photographs of 

the structures and explained the conditions which he observed 

(Tr. 61-65; exhibits R-16 through R-26). 

Mr. Sparvieri confirmed that after issuing the orders and 

citation on March 21, 1989, he returned to the site on March 29, 

1989, after receiving a call from Mr. Falger on Sunday, March 26, 

1989, informing him that the remainder of the silo had collapsed 

on its own, but that no one was injured and that he had posted a 

guard at the site. Mr. Sparvieri took additional photographs of 

the screen house, and parts of the silo had been cleaned up and 

removed from the area (Tr. 67, exhibits R-27 through R-30). He 

confirmed that during his intervening visits, the orders were 

modified to allow the operator and contractor to complete the 

demolition work (Tr. 69). He confirmed that Mr. Falger informed 

him that K & L had a contract with Inland Steel to remove the 

silo, the screen house, some smaller shed-type buildings, and 

some belts that led to the screen house and silo, and generally 

clean up the whole area (Tr. 70). Neither Mr. Falger or 

Mr. Morchesky ever told him that K & L had purchased the structures which were to be removed (Tr. 71). Mr. Sparvieri confirmed 

that he visited the site again on April 17, 1989, and after 

informing Mr. Falger that MSHA had decided that it had jurisdiction at the site, he issued two additional section 104(a) 

citations (Tr. 65-66). 

Mr. Sparvieri stated that when he was initially assigned to 

conduct the accident investigation (exhibit R-7), Mr. Kuzar 

informed him that "there could be a jurisdictional question" (Tr. 

71). Mr. Sparvieri then referred to MSHA's policy manual 

280 
(exhibit R-8) dated July 1, 1988, pgs. 6, and 9-10, which make 

reference to _independent contractors, and he relied on item 3 

dealing with the demolition of mine facilities, and he discussed 

the policy with Mr. Kuzar on March 21, 1989, when he issued the 

orders and citation (Tr. 72). 

On cross-examination, Mr. Sparvieri confirmed that he had 

previously inspected demolition work performed by independent 

contractors, and that he referred to the policy because a jurisdictional question had been raised when he conducted the investigation of the accident. He conceded that the policy does not 

make reference to permanently abandoned mine sites, and he did 

not know when the facilities at the mine site were last inspected 

by MSHA. He assumed that the silo and screen house were in the 

same condition as they were at the ~ime of his investigation, 

except for the silo bands which had been cut, and the support 

legs which were notched on the screen house. The materials which 

were hanging from the screen house appeared to have fallen off 

due to the conditions of the structure, and it did not appear 

that they were torn off (Tr. 75). However, he did not know if 

this were in fact the case (Tr. 76). 

Mr. Sparvieri did not believe that one could simply look at 

the structures and come to the conclusion that they are in good 

repair while demolition work is taking place. He confirmed that 

the demolition work was stopped "midstream" because of the accident, and that this work would not necessarily leave the structures in bad repair. He conceded that the stripped pieces of 

steel could have occurred during demolition, and that when he 

returned on March 29, portions of the silo and other materials, 

such as the steel bands, were still there (Tr. 77). 

Mr. Sparvieri confirmed that he estimated the height of the 

silo as approximately 65 feet, and that he did not measure the 

amount of the coal in the silo before or after the accident, and 

did not sample any of the debris which was in the silo (Tr. 80). 

Someone else estimated that the silo would hold 500 tons of coal, 

and he had no idea how much of the material in the silo was clay 

(Tr. 83). He confirmed that he noticed a brown tint in the 

material in the photographs, and he was told that the silo had a 

steel liner and that clay was used to backfill the area between 

the liner and silo block. When he returned and viewed the 

collapsed silo, he observed no steel liner in the silo, but did 

observe a color different from coal in some of the coal that had 

rolled out of the silo (Tr. 84). 

Mr. Sparvieri confirmed that during his interviews, he was 

told that coal had to be removed with a front-end loader bucket 

to reach the accident victim, who was covered with coal, but he 

did not know how much coal had to be removed (Tr. 85). He also 

confirmed that he was told by people doing the demolition work 

that there was coal in the silo, and that they could see it 

281 
through an open window (Tr. 86). He estimated that the silo was 

one-third full of coal through observations through the silo 

opening, and the materials which were outside of the silo (Tr. 

88). Lancashire's counsel agreed that the materials in the silo 

were enough to inundate the accident victim and suffocate him, 

and he conceded that there is a nexus between the materials in 

the silo and the death of the victim (Tr. 89). 

Mr. Sparvieri confirmed that his accident report reflects 

that the mine operator did not notify MSHA that the mine was to 

be reactivated (Tr. 90). He also confirmed that K & L had done 

some demolition work at the Barnes and Tucker No. 20 preparation 

plant, and that Mr. Falger told him that this work had been done 

but that MSHA did not inspect that site (Tr. 92). He confirmed 

that he would inspect such a site if he were assigned to inspect 

it (Tr. 92). He also confirmed that once a mine site has been 

declared permanently abandoned, MSHA's duty to inspect it ceases, 

and he was not familiar with Lancashire's site prior to the 

accident (Tr. 94, 96). 

Mr. Sparvieri confirmed that the silo and screen house were 

used in coal preparation, but he did not know any of the details. 

He confirmed that the actual mine opening which had been sealed 

was approximately a "few hundred" feet from the accident site, 

but that he did not know for certain (Tr. 98). He confirmed that 

during his conversations with Mr. Falger and Mr. Morchesky, they 

referred to the silo as a "coal storage silo," and that he was 

under the impression from the persons he talked to during his 

investigation that the silo was used at one time to store coal, 

and that no one ever told him that materials other than coal were 

added to the silo (Tr. 100). Lancashire's counsel stated that 

"there's no dispute that there was coal stored in there at some 

point" (Tr. 102). 

Mr. Sparvieri confirmed that Mr. Falger informed him that 

K & L had the salvage rights to the materials from the structures 

which it was under contract to demolish, but did not state that 

K & L had purchased the property where the structures were 

located from Inland Steel (Tr. 104). He further confirmed that 

he was informed of the procedures followed by K & L in doing the 

demolition work by Mr. Morchesky and the people doing the work at 

the site, and that the silo bands were removed to weaken the 

structure as part of the plan to demolish it (Tr. 108). He was 

aware of no MSHA standard requiring MSHA's approval of a demolition plan, and he confirmed that the modified order permitting 

K & L to continue its work under "controlled conditions" was 

issued by another inspector (Tr. 110). 

Mr. Sparvieri expressed his views on how the silo structure 

should have been demolished, and he confirmed that he could 

observe from a safe distance that some work had been done on the 

legs of the screen house with a cutting torch, and several K & L 

282 
employees informed him that they had notched the legs sometime 

during the day of the accident to weaken them so that the structure could be pulled down (Tr. 113-114). 

Lancashire's Testimony and Evidence 

Francis Falger, testified that he is employed by Inland 

Steel Company, Lancashire Coal Company, and has been so employed 

for 30 years. He explained that he was employed by Barnes & 

Tucker since 1960, and that when the property changed ownership 

from Barnes & Tucker to Inland Steel, he stayed on as an employee 

of Inland Steel. He stated that Barnes & Tucker operated several 

mines and cleaning plants, and the property was sold to Inland 

Steel in 1970, and Barnes & Tucker continued to manage it for 

Inland Steel for a fee. Inland Steel then closed the mine on 

November 13, 1981, and took the management from Barnes & Tucker. 

Inland reopened the mine in February, 1982, and started coal 

production, but then ceased production on June 3, 1983. He is 

the only employee at the site, and coal was last extracted on 

June 3, 1983, when the shafts were sealed sometime in 1984 (Tr. 

137). He confirmed that his title is "supervisor" and that no 

coal milling or preparation takes place at the site, and that 

prior to the sealing of the shafts, MSHA conducted inspections at 

the site. The mine was placed in a permanently abandoned status 

in September of 1988, by Mr. Kuzar, and he explained how this was 

done (Tr. 138-140). 

Mr. Falger confirmed that MSHA did not inspect the site from 

the time it was permanently abandoned until the time of the 

accident, and that Inland Steel and Lancashire took no actions to 

resume milling or coal preparation since the time it was abandoned other than providing security for the site, and treating 

the water pursuant to the requirements of the Pennsylvania 

Department of Environmental Resources (Tr. 141). He confirmed 

that he negotiated the demolition contract with K & L, and that 

the remaining new silo and preparation plant which were not torn 

down will eventually be torn down after the mortgage which is due 

in 1991 is paid (Tr. 143). He confirmed that Inland Steel 

intended to reclaim the property, and that demolition of the 

existing structures is one step in that direction (Tr. 143). 

Mr. Falger confirmed that Mr. Morchesky represented K & L 

during the demolition contract negotiations, and he explained the 

scope of some of the work covered by some of the purchase contracts (Tr. 143-145). Mr. Falger confirmed that he did not 

notify MSHA when he entered into the contract with K & L "because 

we're permanently abandoned, and there was no coal production" 

(Tr. 149). He informed Mr. Morchesky that K & L's demolition 

work "does not come under MSHA" because the mine was permanently 

abandoned and that K & L's prior demolition work at the Barnes & 

Tucker No. 20 Mine was "the same thing" and was "not under MSHA" 

283 
(Tr. 150). Mr. Falger confirmed that the demolition work performed by K & L at the time of the accident was not for the 

purpose of reopening the mine or producing coal (Tr. 150). 

Mr. Falger stated that prior to the accident, nothing was 

stored in the silo which was being razed, that it was constructed 

in the late 1950's or early 1960's, and when the new preparation 

plant was built in 1971, the silo was not in use. Mr. Falger 

denied ever telling Mr. Morchesky or any of his employees that 

coal was stored in the silo. He stated that MSHA had not 

inspected the silo or screen house for 3-years prior to last 

September, and when the site was inspected no one physically 

examined the structures which were located about a 5 to 10 minute 

walk from the new preparation plant (Tr. 152). 

Mr. Falger stated that Mr. Spa:i::vieri and Mr. Kuzar came to 

the site after the accident on the morning of March 21, 1989, and 

when he informed them that he did not believe that MSHA had 

jurisdiction because the mine had been permanently abandoned by 

MSHA, Mr. Kuzar responded "I don't know whether we do or not, but 

we're going to start our investigation anyway until we find out 

what's going on" (Tr. 154). Mr. Falger confirmed that he cooperated with the inspectors and explained the work that was being 

performed. 

Mr. Falger stated that he observed the debris which was in 

the silo which collapsed, and he described it as having a 

"yellow, brownish cast to it," and that this did not surprise him 

because the bottom of the silo was lined with clay. He confirmed 

that Lancashire never intended to sell anything that was in the 

silo, that it had no commercial value, and he described it as 

"junk." He stated that if the material were run through a cleaning plant, "all that was there you can't come up with much" (Tr. 

155) . He could not recall whether any of the inspectors asked 

him about the contents of the silo (Tr. 155). 

Mr. Falger stated that the closed Barnes & Tucker No. 20 

Mine was located a "ten minute drive" from the accident site, and 

he confirmed that demolition work had been performed by K & L at 

that site within the last 3 years, and that "they had the same 

set up as we did." He explained that it was an underground slope 

mine and that the shafts and slope were sealed, but that he was 

not there when the work was being performed, and did not know if 

MSHA inspected the demolition work. However, he stated that MSHA 

Inspector Leroy Niehenke told him that he was at that site when 

the demolition work was taking place but did not inspect that 

work, and that he was there only to "check the electrical part of 

it" and was told by his boss not to go to the area where K & L 

was doing the actual demolition, and that he did what he was told 

(Tr. 157). 

284 
On cross-examination, Mr. Falger confirmed that he agreed to 

sell Mr. Morchesky all of the scrap material removed from the 

site after the structures were torn down for $55 a ton (Tr. 161). 

He confirmed that there was coal in the razed silo, but denied 

that the coal was stored there and that "all the coal that was in 

was just stuck on the bottom in clay," and that it was "whatever 

was left in the silo whenever they cleaned it out" (Tr. 165). He 

stated that the coal was left in the silo 20 years ago, that it 

was coal which was processed at the new preparation plant which 

was built in 1971, and that it was extracted and processed prior 

to 1983 (Tr. 165). 

Mr. Falger confirmed that at the time Mr. Kuzar called him 

to inform him that the mine would be placed in a permanently 

abandoned status, he did not know that the demolition work would 

be done and no contract negotiations were ongoing with K & L at 

that time. He did know that the entire area would have to be 

reclaimed and the structures torn down, but that Inland steel 

intended to hold the property until the leasing arrangement 

expired in 1991 (Tr. 176-177). Absent any buyers, he assumes 

that the new preparation plant will be torn down at that time 

(Tr. 179) . 

John Emerick, President, Coal Utilities Corporation, testified that he is a graduate of the Penn State University, and that 

he is a professional engineer in the State of Pennsylvania, and 

has been since 1961. He stated that he has been involved in the 

coal industry for 33 years, and has done surface mining reclamation work, including work for Inland Steel. He was familiar with 

the site in question, and was involved in the design of the silo 

when he worked as chief engineer for Barnes and Tucker from 1957 

to 1969. He stated that the silo was constructed in approximately 1959, and he explained its construction. He stated that 

the silo could hold 1,100 tons of coal at full capacity, and 

confirmed that he visited the site as a consultant for Inland 

Steel shortly after the accident. He observed the debris which 

came out of the silo, and he described it as "a mixture of clay 

and coal," and he was not surprised with this mixture because all 

of the coal cannot be removed because of compaction inside the 

silo (Tr. 186). 

In response to further questions, Mr. Emerick stated that 

the silo was used to store raw coal when the cleaning plan was 

not operating, or when the cleaning plant was processing more 

coal from the mine than it could handle (Tr. 186). 

Supervisory MSHA Inspector John Kuzar confirmed that the 

Barnes & Tucker No. 20 Mine was located in his enforcement 

district, and that he was aware of the demolition work there in 

1986 and 1987. He knew that Mr. Morchesky was doing the reclamation work at that site, but was not aware that he owned the K & L 

285 
Company. He explained that during part of the time the demolition work was being performed, his off ice was responsible for the 

mine, but that another supervisor from the Ebensburg office was 

responsible for it for part of the time. He stated that he had 

occasion to visit the site with another inspector who was checking the sealing of the shafts (Tr. 190-193). He confirmed that 

inspectors from his office were at the site to insure that the 

slope shafts were being sealed according to the sealing plan, and 

that during this same time, demolition work was taking place at 

the site (Tr. 194). When asked why the inspectors would not 

inspect the demolition work, Mr. Kuzar responded "probably 

because they weren't assigned to inspect the demolition work" 

(Tr. 195) . 

Mr. Kuzar further explained that he knew that some inspectors had looked at some of the Barnes & Tucker demolition work, 

but were under the impression that Mr. Morchesky had purchased 

the area where the demolition work was taking place for $1. 

Under the circumstances, they were of the opinion that MSHA did 

not have jurisdiction over that particular area (Tr. 197). He 

further explained that until the day before the hearing in these 

proceedings, he believed that MSHA lacked jurisdiction if the 

site were being reclaimed through state grants, or if the mine 

operator went out of business and sold the land (Tr. 198). His 

present understanding is that ownership of the property does not 

matter (Tr. 211). He now believes that MSHA was in error for not 

inspecting Mr. Morchesky's demolition work at the Barnes and 

Tucker No. 20 Mine (Tr. 212). 

Mr. Kuzar explained the circumstances under which the orders 

in question were modified to allow the demolition work to proceed 

·safely, and he confirmed that he was at the site to observe the 

screen house when it was taken down. He further confirmed that 

the silo came down "on its own accord" and that the screen house 

had to be pulled down with front-end loaders (Tr. 217, 222). 

On cross-examination, Mr. Kuzar confirmed that the method 

used to tear down the screen house once the orders were issued 

did not differ significantly from the method which K & L intended 

to use prior to the accident (Tr. 227). He also confirmed that 

the screen house structure was difficult to tear down and that it 

"was pulled in every direction you could possibly pull it. They 

couldn't get it to come down. And when it came down, it didn't 

come the way they were planning on it coming down" (Tr. 227). 

Even though the structure could not be readily pulled down, the 

hazard presented concerned the workers who were exposed to materials hanging above them while they were engaged in the work of 

cutting the legs of the structure (Tr. 227). 

MSHA Inspector Leroy Niehenke, testified that he is an 

electrical inspector, but also conducts regular mine inspections, 

286 
and he confirmed that Mr. Kuzar and Mr. Biesinger are his supervisors (Tr. 232). He confirmed that once a mine has been 

declared permanently abandoned, MSHA's duty to inspect it ceases. 

It was his understanding that the mine operator has a duty to 

reclaim and tear down the structures left at an abandoned mine. 

He confirmed that he was aware that a contractor was performing 

demolition work at the Barnes & Tucker No. 20 Mine during 1986 

and 1987, but did not know at that time that it was Mr. Morchesky 

or K & L. The contractor was tearing down the preparation plant, 

and it took a year to complete the work. Although he performed 

at least one inspection at that site, he did not inspect the 

demolition work of the contractor because Mr. Biesinger told him 

not to. Mr. Niehenke denied that Mr. Biesinger told him that 

MSHA had no jurisdiction over the demolition work, and stated 

that Mr. Biesinger gave him "no reason whatsoever" for not 

inspecting the work (Tr. 235). 

Mr. Niehenke confirmed that once a mine has been declared 

permanently abandoned, MSHA would not inspect the facility unless 

the operator took some action that indicated that he intended to 

resume coal production and processing (Tr. 235). He confirmed 

that he had issued citations at the No. 24-D Mine portal while 

shaft sealing was in progress, and that the mine at that .time was 

"apparently" not permanently abandoned and the operator was in 

the process of sealing the shafts (Tr. 236). In his experience, 

he was not aware of any time that MSHA has asserted jurisdiction 

at an abandoned mine solely because of demolition work taking 

place at such a mine (Tr. 237). He confirmed that after the 

accident in question, he went to the site and spoke with 

Mr. Falger and agreed with his assertion that he had previously 

not inspected the demolition work at the Barnes & Tucker No. 20 

Mine. He confirmed that he told Mr. Falger that he had not done 

so "because I received instructions from my supervisor not to 

inspect it" (Tr. 2 3 7) . 

On cross-examination, Mr. Niehenke confirmed that his prior 

inspection at the No. 20 Mine was limited to an electrical 

inspection, and although electrical work may have taken place 

"around" the demolition area, it was not taking place "in the 

immediate area" (Tr. 238). He stated that it was his understanding that pursuant to MSHA's policy manual, if demolition work is 

being done at a mine which has been permanently abandoned, and 

MSHA was aware of it, the mine would be removed from its permanently abandoned status and placed in an active status. He 

confirmed that this policy was in effect even before the accident 

in question (Tr. 240). 

Kenneth Morchesky, confirmed that he is the owner of K & L 

Construction, and that he also owns Laurel Land Development, 

which is a surface mining operation, and Cambria Metals Processing, which is a trucking business. He confirmed that he purchased the Barnes & Tucker site to "make my money from the 

287 
salvaging of the good items and to scrap the rest" (Tr. 247). He 

confirmed that he contracted to do the work at issue in this 

case, and that he was "to raze the silo in conjunction with 

removing certain pieces of junk at Inland Steel," and that this 

work was covered by purchase orders (joint exhibits 2 and 3). He 

confirmed that he knew about MSHA and the need for an MSHA ID 

number, but did not believe that he needed an ID number for the 

demolition work because he had done similar work at the No. 20 

Mine without a number, and Inland Steel advised him that his work 

would not be covered by MSHA. Mr. Morchesky assumed that this 

was the case, and that he would be covered by OSHA (Tr. 249). 

Mr. Morchesky believed that MSHA was aware of his work at the 

No. 20 Mine because an inspector whose name he did not recall 

came to the site, and after a short discussion, he left. 

Mr. Morchesky confirmed that he was served with citations in 

connection with his demolition work in question, and although he 

initially contested them, he paid the proposed civil penalty 

assessments because "it was cheaper to pay them rather than fight 

them" (Tr. 254, exhibit C-2). When asked about his prior statement in his contest letter of May 31, 1989, exhibit C-2, that an 

MSHA inspector at the No. 20 Mine site in 1986 informed him that 

a "scrap" job was not covered by his inspection duties, ne conceded that the inspector made no such statement, and that he 

simply assumed that MSHA would not inspect his work because the 

inspector left and did not inform him that he would conduct an 

inspection (Tr. 257). He confirmed that the inspector did not 

specifically inform him that the "scrap" job was not covered by 

MSHA (Tr. 259). Mr. Morchesky denied that he told Mr. Falger 

about his conversation with the inspector, but that he "probably" 

did so when he was negotiating the demolition contract, and 

"probably told him that I wasn't covered by an MSHA inspector out 

there" (Tr. 260) . 

Mr. Morchesky confirmed that citations were issued to his 

Laurel Land Development Company in 1986, but denied that any of 

these citations were for demolition work that he was doing at the 

No. 20 Mine (Tr. 262-268). He confirmed that he purchased "certain pieces" from Barnes & Tucker, including an "old portal" and 

the ground where his office was located (Tr. 268). He also 

confirmed that MSHA inspected the mining work he was performing 

with his Laurel Land Development Company in the area of the 

No. 20 Mine, but that MSHA was "never around the stuff that was 

not affiliated with mining" (Tr. 270). He stated that he told 

Mr. Falger that the No. 20 Mine was not inspected and that his 

work for Lancashire "should be under the same rules and regulations." When Mr. Falger showed him the letter confirming that 

the site had been permanently abandoned, Mr. Morchesky said he 

stated to Mr. Falger "I wasn't inspected over there, I shouldn't 

be inspected by MSHA over here" (Tr. 271). He also stated that 

if he knew he would be regulated by MSHA, he would not have taken 

288 
the demolition job because "I just don't want to be under MSHA's 

guidelines and what have you" (Tr. 271). 

Mr. Morchesky confirmed that there was coal in the area of 

the silo, as well as in the silo, but he did not know how much. 

He stated that he could see some coal through a crack in the 

window, and that it appeared to be up to that level. He anticipated that once the silo was weakened and started to topple, the 

weight of the screen house would crush the rest of it (Tr. 

275-276). 

Retired MSHA Inspector Thomas J. Simmers, who was unavailable for the hearing because of health reasons, executed a sworn 

affidavit, and it was received in evidence (exhibit C-3). It 

states as follows: 

1. I worked for the Mine Safety and Health 

Administration (MSHA) for approximately 18 years. I 

retired from MSHA in April 1987. 

2. I worked as an MSHA inspector for the last 

15 years of my employment with MSHA. During that 

15 year span I worked out of numerous field offices 

including the field offices in Hastings, PA; Johnstown, 

PA; Indiana, PA; Clearfield, PA; and Ebensburg, PA. 

Thus, I am familiar with MSHA inspection procedures. 

3. Based on my experience, once a mine has been 

declared permanently abandoned, MSHA inspections of the 

facility cease. Inspections would not occur again at a 

facility that had been declared permanently abandoned 

unless the operator took action that indicated that it 

intended to resume production or processing of coal. I 

am unaware of any instances during my employment with 

MSHA when a mine that had declared (sic) permanently 

abandoned was inspected by MSHA when the operator did 

not take such action. 

4. I recently had stomach surgery and am unable 

to attend a hearing in Pittsburgh, Pennsylvania, on 

October 24, 1989, due to my health. 

In response to certain interrogatories, MSHA confirmed that 

retired Inspector Simmers and a State mine inspector had 

inspected the Barnes & Tucker No. 20 Mine in 1986-1987, and knew 

that Mr. Morchesky was performing work at that site, but did not 

know that he was doing business as the K & L Equipment Company. 

MSHA further confirmed that Mr. Simmers and the State inspector 

were under the impression that Mr. Morchesky had purchased the 

No. 20 preparation plant structure for $1 and was planning to 

reclaim the area, and that under these circumstances, they concluded that neither MSHA or the state had jurisdiction to inspect 

289 
Mr. Morchesky's operation. MSHA further confirmed that Inspector 

Davis also.had knowledge of Mr. Morchesky's work at the No. 20 

Mine, but did not believe that an MSHA inspection of his operations was appropriate because Mr. Morchesky had purchased the 

entire plant facility. 

In response to my question as to whether or not the purchase 

of the old structures which were being demolished by 

Mr. Morchesky at the time of the accident made any difference 

with respect to MSHA's enforcement authority, MSHA's counsel 

stated that "it apparently doesn't make any difference" (Tr. 

162) • 

Findings and Conclusions 

The Jurisdictional Question 

Section 3(h) (1) of the Mine Act, 30 u.s.c. § 802(h) (1), 

defines "coal or other mine" as follows: 

(h) (1) "[Co)al or other mine" means (A) an area of 

land from which minerals are extracted in nonliquid 

form or, if in liquid form, are extracted with workers 

underground, (B) private ways and roads appurtenant to 

such area, and (C) lands, excavations, underground 

passageways, shafts, slopes, tunnels and workings, 

structures, facilities, equipment, machines, tools, or 

other property including impoundments, retention dams, 

and tailings ponds, on the surface or underground, used 

in, or to be used in, or resulting from the work of 

extracting such minerals from their natural deposits in 

nonliquid form, or if in liquid form, with workers 

underground, or used in, or to be used in, the milling 

of such minerals, or the work of preparing coal or 

other minerals, and includes custom coal preparation 

facilities .... (Emphasis added). 

Section 3(h) (2) of the Act, 30 u.s.c. § 802(h) (2), provides 

the following definition of a "coal mine:" 

(2) For purposes of titles II, III, and IV, "coal 

mine" means an area of land and all structures, facilities,. machinery, tools, equipment, shafts, slopes, 

tunnels, excavations, and other property, real or 

personal, placed upon, under, or above the surface of 

such land by any person, used in, or to be used in, or 

resulting from, the work of extracting in such area 

bituminous coal, lignite, or anthracite from its 

natural deposits in the earth by any means or method, 

and the work of preparing the coal so extracted, and 

includes custom coal preparation facilities. (Emphasis 

added). 

290 
The definition of "coal or other mine" is further clarified 

by the Legislative History of the Act. The Senate Report 

No. 95-181 (May 16, 1977) provides that: 

Finally, the structures on the surface to be used in or 

resulting from the preparation of the extracted 

minerals are included in the definition of "mine." 

•.• [B]ut it is the Committee's intention that what 

is considered to be a mine and to be regulated under 

the Act be given the broadest possibly (sic) interpretation, and 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. 181, 95th Cong., 1st Sess. 602, reprinted in [1977] 

U.S. CODE CONG. & ADMIN. NEWS 3401, 3414. 

Lancashire argues that once MSHA determines that a facility 

is a "coal or other mine," it is required to periodically inspect 

it, and has no discretion to discontinue these inspections. 

Since MSHA placed the mine in a permanently abandoned status in 

September 1988, Lancashire concludes that it correctly determined 

that it was no longer a mine subject to MSHA jurisdiction. By 

permanently abandoning the mine, Lancashire concludes further 

that MSHA made a determination that it was no longer a "coal or 

other mine" which would be required to be inspected periodically 

under the Mine Act. 

Lancashire's argument seems to suggest that once MSHA places 

a "coal or other mine" in a permanently abandoned status, it has 

also permanently abandoned its enforcement authority or jurisdiction to resume inspections at the mine at anytime. I reject any 

such notion. MSHA's abandonment of the mine was based on its 

determination that all active coal mining activities had terminated, the mine shafts had been sealed, and there was no indication that active mining would resume in the near future. In my 

view, by placing the mine in a permanently abandoned status, 

MSHA, in its discretion, simply made a determination that the 

mine was no longer required to be inspected periodically. 

MSHA's determination not to continue with its inspections at 

the mine site did not in my view, remove the mine from the statutory definition of "coal or other mine" found in the Mine Act. 

At the time that the inspections in question were conducted, and 

the violations were issued, the mine structures and equipment 

which remained from previous mining activities, including the new 

preparation plant, and the old plant silo and screen house, were 

still at the site and were clearly structures, facilities, equipment, or other property, used in, or resulting from, the work of 

coal extraction and preparation. Further, the land where the 

291 
mine is located was used in or resulted from the work of coal 

extraction .and preparation. 

During oral arguments at the hearing, Lancashire's counsel 

agreed that the silo and screen house structures were at one time 

part of the preparation plant facilities, and he did not dispute 

the fact "that the building resulted from preparation of coal" 

(Tr. 129, 181). Lancashire's contention is that once the mine 

operator ceased using these structures for coal preparation, MSHA 

could not resume its inspection of the mine site unless active 

coal production or preparation activities resumed. While it 

seems clear to me that at the time of the disputed inspections, 

the mine site fell clearly within the statutory definitional 

language of "coal or other mine," the question of whether or not 

the work activities which were taking place fell within the 

framework of the cited mandatory standards and can support the 

contested violations are matter to be determined by the facts on 

their individual merits. 

In view of the statutory definitions of "coal or other mine" 

and "coal mine," 1,,.g., "lands, structures, facilities, equipment, 

and other property used in, or resulting from mineral extraction 

. and/or the work of preparing the coal so extracted," it 

would logically follow that a preparation plant, or other 

supporting structures such as the silo and screen house in question, may reasonably be considered an important part of the coal 

extraction and processing scheme. When such structures are being 

constructed for the purpose of actively mining coal, MSHA has the 

authority to regulate such activities. Conversely, when such 

structures are being demolished for the purpose of removing them 

from an abandoned mine site, and there is no intent to replace 

them with new structures, or to resume the active mining of coal, 

one may logically conclude that these structures will no longer 

be used for coal extraction or coal preparation. However, these 

structures are nonetheless structures which are the result of the 

prior active mining of coal, including extraction and processing, 

and fall within the statutory definition of coal or other mine. 

Lancashire's posthearing arguments at page 15 through 20, 

that the mine structures in question did not fall within the 

statutory definition of "coal or other mine" are rejected. 

Lancashire's reliance on former Judge Jon D. Boltz's April 21, 

1981, decision in Kaiser Steel Corp., 3 FMSHRC 1052 (April 1981), 

in support of its statutory definitional analysis and conclusion 

that the mine structures in this case bear no rational relationship to "coal preparation'' is likewise rejected. The Kaiser 

Steel Case, which was not appealed to the Commission, and does 

not reflect a binding Commission decision on me, concerned an 

impoundment dam located near a mine site, and whether or not the 

water from the dam "is used or to be used" in the "work of preparing the coal." 

292 
Although it is true that the old Lancashire silo and screen 

house preparation plant facilities which were being demolished at 

the time of the inspections in question were not currently being 

used in connection with any coal preparation work, and had not 

been used for years, the fact is that the silo was at one time 

used to store coal processed by the plant, and the screen house 

was used as well as part of coal preparation and processing. 

Under the circumstances, it seems clear to me that these old 

structures were in fact the result of coal preparation and processing, as those terms are normally understood. Indeed, since 

the coal from the previously active underground mine was processed through the old plant facilities, one may reasonably 

assume that a nexus existed between the coal being extracted from 

the underground mine, and the coal being prepared and processed 

through the surface preparation facilities and structures. The 

fact that the old silo and screen house had not been used since 

1971, as testified to by Mr. Falger (Tr. 168-170), is immaterial. 

The applicable statutory definition of "coal or other mine" under 

which jurisdiction attaches in this case is not related to any 

time factor, and its application has consistently been given its 

broadest possible interpretation by the courts as well as the 

Commission. 

In a case under the 1969 Coal Act, Jones and Laughlin Steel 

Corporation v. MESA, Docket No. PITT 76X198, former Chief 

Administrative Law Judge Luoma of the Department of the Interior 

decided on February 22, 1977, that a refuse pile on the mine 

operator's land was part of a coal mine and subject to the Act. 

The refuse pile consisted of material taken directly from the 

mine, such as waste from roof falls, construction material, etc. 

It apparently was largely slate but contained some coal. The 

refuse pile was approximately 50 years old and had not been used 

since 1967. Judge Luoma concluded that the refuse pile was a 

surface area of the mine, since it was "composed of material 

which resulted from, the work of extracting coal." (Emphasis 

added) . 

Alexander Brothers, Inc., 4 FMSHRC 541 (1982), another case 

arising under the 1969 Coal Act, involved the reclamation of coal 

from a refuse pile created during the operation of a mine which 

was closed in 1967 after being operated from the 1930's. The 

pile contained coal, rock dust, garbage, timber, wood, steel, 

dirt, tin cans, bottles, metal and general debris. Alexander 

Brothers removed and screened the materials to market approximately 20 to 25 percent of the coal which was in the pile and 

sold it to various brokers. The Commission determined that 

Alexander Brothers was engaged in the work of preparing coal and 

that the fact that it had nothing to do with the extraction of 

coal, and that the work in removing the debris from the coal 

differed from the ordinary preparation plant did not remove it 

from the jurisdiction of the Act. 

293 
Westwood Energy Properties, PENN 88-42-R, etc., decided in 

part by the Commission on December 20, 1989, involved a culm bank 

or refuse pile created as the refuse product of an underground 

coal mine and its preparation plant which operated from 1913 to 

1947, and the preparation plant was destroyed and its remains 

became part of the refuse pile which was located on land owned by 

Westwood. After the underground mine was closed, another company 

operated a "fine" coal plant, separating fine coal from the waste 

material and selling it, and this operation was inspected by MSHA 

or its predecessor agency. Westwood constructed an electrical 

generating facility on the land in 1986, and it became operational in 1988. Westwood engaged a contractor to remove wood, 

metal, and other waste materials from the bank, and the coal 

materials from the bank were further processed and burned to 

produce steam which generated electricity by steam driven 

turbines, and the electric power which was produced was sold by 

Westwood to a power company. 

Commission Judge James Broderick rejected Westwood's argument that its facility is outside the coverage of the Mine Act 

because it is a power plant burning fuel rather than an operation 

engaged in the production of a marketable mineral, Westwood 

Energy Properties, 11 FMSHRC 105 (January 1989). Judge Broderick 

found that "the culm bank clearly resulted from the working of 

extracting coal • • . and that a literal construction of the 

statutory language" defining a "mine" under section 3{h) (1) of 

the Act covered Westwood's culm bank. 11 FMSHRC 110. Judge 

Broderick stated in part as follows at 11 FMSHRC 115: 

I am persuaded that the sweeping definition of a 

coal or other mine in the Act, and the admonition in 

the Legislative History that the term be given the 

broadest possible interpretation brings Westwood's 

facility within its terms. Any doubt that the culm 

bank is or includes "lands ••. , structures, facilities, • . • or other property including impoundments, 

. • • on the surface or underground, used in, • • • or 

resulting from the work of extracting such minerals 

from their natural deposits . 11 must be resolved in 

favor of coverage. 

The Commission concluded that Westwood's activities fell 

within the appropriate Mine Act definitions and were therefore 

within the Secretary of Labor's statutory authority, and it 

stated as follows at page 6 of its slip opinion: 

The parties agree that Westwood's culm bank is 

comprised of materials resulting from Westwood 

Colliery's extraction of anthracite coal from its 

underground coal mine. Accordingly, the culm bank 

literally falls within the statutory definition of 

294 
"mine" since "it result[s] from the work of extracting 

... minerals from their natural deposits .•.• " 

30 u.s.c. § 802(h) (1). See Consolidation Coal Co. v. 

FMSHRC, 3 BNA MSHC 2135 (4th Cir. 1986) (coal refuse 

pile is a "mine"). 

In view of the foregoing findings and conclusions, and after 

careful consideration of all of the arguments advanced by the 

parties, I conclude and find that the mine site where the 

reclamation or demolition work in question was taking place in 

this case is a "mine" within the definitional languagefound in 

sections 3(h) (1) and 3(h) (2) of the Act, and that at th' time of 

the inspections in question MSHA had enforcement juri~dict"io.n and 

authority over that mine facility. Lancashire '·s arguments·· to the 

contrary ARE REJECTED. 

Section 104Ca) "S&S" Citation No. 2891509, April 17, 1989, 

(Docket No. PENN 89-193-R 

Fact of Violation, 30 C.F.R. § 77.1712 

Lancashire is charged with an alleged violation of mandatory 

standard 30 C.F.R. § 77.1712, for failing to notify MSHA's :'> 

district Off ice prior to reopening the mine. Section 77 .1712.,·:, : 

provides as follows: 

Prior to reopening any surface coal mine after it has 

been abandoned or declared inactive by the operator, 

the operator shall notify the Coal Mine Health and 

Safety District Manager for the district in which the 

mine is located, and an inspection of the entire mine 

shall be completed by an authorized representative of 

the Secretary before any mining operations in such mine 

are instituted. (Emphasis added). 

Lancashire takes the position that section 77.1712, is 

inapplicable to its decision to hire a contractor to demolish the 

surface structures in question. In support of its position, 

Lancashire argues that the language of the standard is intended 

to apply to situations where a mine is "reopened" for the purpose 

of resuming "mining operations." Lancashire's interpretation of 

the language "reopened for mining operations" is that the mine is 

being reopened for active extraction or preparation of coal, and 

it cites the Dictionary definition of "reopen" as follows: "To 

open or take up again. To start over; resume," Lancashire 

asserts that the reclamation work at issue in this case had 

nothing whatsoever to do with the reopening of the mine for 

active coal extraction or coal preparation, and that the work 

being performed by the contractor simply entailed the removal of 

surface structures, and confirmed the appropriateness of MSHA's 

decision to permanently abandon the mine. Lancashire concludes 

that MSHA has failed to prove by any competent evidence that the 

295 
mine was being "reopened" or that Lancashire intended to resume 

active "mining operations." Under these circumstances, 

Lancashire further concludes that it had no duty to notify MSHA 

prior to the performance of the reclamation work in question, and 

that a violation has not been established. 

During the course of the hearing in response to my bench 

question concerning any MSHA policy guidelines which may be 

applicable to the facts concerning this issue, MSHA's counsel 

stated that the facts in this case are unique, and while MSHA's 

program policy manual discusses jurisdiction, counsel stated that 

"it's probably correct" that the precise factual situation in 

question is not specifically addressed in MSHA's policy manual 

(Tr. 132). 

In its posthearing brief, MSHA argues that through its 

Part 45 Independent Contractor Program Policy Manual (exhibit 

R-8), it has explicitly stated its policy of inspecting demolition activities by independent contractors, and that the citation 

issued by the inspector is consistent with this policy. MSHA 

asserts that its policy manual interprets the word "reopening" in 

section 77.1712, "quite differently" than Lancashire. MSHA 

asserts that Part 45.3 of the manual lists the types of activities by independent contractors which require contractors to 

obtain MSHA identification numbers, and that certain of these 

activities, i.g., demolition of mine facilities, reconstruction 

of mine facilities, and earthmoving activities would typically be 

done after active coal production or processing has ceased. 

Further, MSHA cites a policy manual provision which states that 

"mine operators have compliance responsibility for all activities 

at the mine, regardless of whether or not the independent contractor in question has an MSHA identification number," and it 

concludes that the phrase "all activities" included the demolition work performed by K & L at the Lancashire site. 

MSHA's reliance on its Part 45 manual policy in support of 

its conclusion that the phrases "reopening" and "any mining 

operations" clearly include, or are intended to include, demolition work in connection with a previously abandoned mine site 

within the meaning of section 77.1712, is rejected. The issue 

with respect to the application of section 77.1712, in this case 

lies not in whether or not an independent contractor has an MSHA 

identification number, but rather, whether the standard may be 

reasonably interpreted to apply in a factual situation where it 

seems clear to me that a previously permanently abandoned mine 

site is not being reopened for the purpose of resuming the active 

mining or preparation of coal. 

MSHA's 

intended to 

contractors 

employees. 

Part 45 independent contractor regulations are 

facilitate MSHA's enforcement policy of holding 

responsible for violations committed by them or their 

Contractors performing "services or construction" at 

296 
a mine are not required to obtain an identification number by the 

regulations, ·but if they are engaged in the kinds of activities 

listed in MSHA's policy manual, they are required to obtain a 

number. However, pursuant to MSHA's policy found at page 10, of 

the manual in question, independent contractors are still responsible for compliance with MSHA's mandatory health and safety 

standards, regardless of whether or not they have an MSHA number. 

In my view, the policy list in question simply refers to examples 

of the kinds of "services or construction" activities which 

require a contractor to obtain an MSHA identification number. 

The list is obviously intended to assist MSHA and its inspectors 

to track the activities of a contractor at a mine site to insure 

compliance with any mandatory standards. If MSHA is concerned 

about a contractor performing such services at a previously 

abandoned mine site without its knowledge, I see no reason why it 

cannot include its policy guidelines as part of its Part 45 

regulations, or otherwise require a contractor to obtain an 

identification number or to inform MSHA of these activities 

before beginning any work. 

In my view, the fact that MSHA's Part 45 policy requires a 

contractor performing demolition work to obtain an MSHA identification number, and the fact that such work in connection with 

the mine structures which are the result of past coal extraction 

and preparation, support a conclusion that the situs of the work 

fits the statutory definition of "coal or other mine" for purposes of Mine Act and MSHA jurisdiction, does not ipso facto 

establish that the demolition work falls within the ambit of 

section 77.1712. 

Neither party in these proceedings has made reference to 

MSHA's policy statements regarding section 77.1712. MSHA's 

current policy regarding this section is found in Volume V, 

Part 77 of its Program Policy Manual, pgs. 204-205, July 1, 1988, 

and it states as follows: 

77.1712 Reopening Mines; Notification; Inspection 

Prior to Mining 

Failure of the operator to notify MSHA of the reopening 

of the mine before operations begin is a violation of 

this Section. Failure to have all the plans, programs 

and systems submitted during this inspection is not 

necessarily a violation. During a reopening inspection 

required by Section 77.1712, the inspector should 

ascertain that the operator is fully informed and aware 

of the applicable plans, programs, and systems required 

by Part 77. 

MSHA's prior policy manual, chapter III, pgs. III-352-353, 

March 9, 1978, with respect to section 77.1712, included a listing of the "plans, programs, and systems" required by Part 77, 

297 
and they include the mandatory regulatory requirements for training programs, refuse piles, impoundment structures, ground control plans, mine maps, emergency communications, emergency 

medical assistance and transportation arrangements, and slope and 

shaft sinking plans. The past and present policy statements 

contain absolutely no references with respect to the meaning of 

the terms "reopening" and "mining operations," and they do not 

mention demolition or construction work. 

MSHA's definition of a "permanently abandoned mine," which 

is found in its computerized coding system for tracking the 

status of a mine, category GC, defines such a mine as follows: 

"The work of all miners has been terminated and production 

activity has ceased and it is not anticipated that activity will 

resume in the near future" (emphasis added). In the course of 

pre-trial discovery, MSHA produced a list of 12 mine sites in 

District No. 2, which had at one time been placed in a permanently abandoned status after active coal mining ceased (Exhibit 

R-9). The information furnished by MSHA reflects that these 

mines were subsequently reactivated, but there is no information 

as to the nature of the activities which took place after the 

reactivations. During the course of the hearing, and in response 

to my inquiries as to the nature of the activities which were 

taking place at the time the mines were reactivated, MSHA's 

counsel stated he had not provided this information because "I 

wasn't asked that in discovery" {Tr. 21, 29). counsel indicated 

that a witness was available to supply this information and that 

testimony would be adduced to further explain the activities 

which took place at these previously abandoned and reactivated 

mines {Tr. 21). 

Inspector Niehenke testified that a mine operator has a duty 

to reclaim and tear down structures that are left at an abandoned 

mine, but that once a mine has been declared permanently abandoned, MSHA's duty to inspect it ceases. He further stated that 

pursuant to MSHA's policy manual, if demolition work is being 

done at a mine which had been permanently abandoned, and MSHA is 

aware of it, the mine would be removed from its permanently 

abandoned status and placed in an active status. In the case of 

the Barnes & Tucker No. 20 Mine, where demolition work was performed by Mr. Morchesky in 1986 and 1987, Mr. Niehenke confirmed 

that he conducted an electrical inspection at the site, but did 

not inspect the demolition work because his supervisor instructed 

him not to and offered no explanation as to why he should not 

inspect the demolition work. 

Mr. Niehenke also alluded to an inspection and citations 

which he issued at the No. 24-D Mine Portal, and confirmed that 

shaft sealing work was being conducted at that time and that he 

was instructed to go to that site to inspect it. He further 

confirmed that the shaft sealing work was still in progress and 

had not been completed, at the time of his inspection, and that 

298 
the mine had not "apparently" been placed in an abandoned status 

at the time of his inspection. 

Mr. Niehenke confirmed that once a mine has been placed in a 

permanently abandoned status, MSHA would not inspect the facility 

unless the mine operator took some action that indicated that he 

intended to resume coal production and processing. He further 

confirmed that in all of his experience as a mine inspector he 

was not aware of any time that MSHA has asserted enforcement 

jurisdiction at an abandoned mine site solely because of any 

demolition work taking place at such a mine. The affidavit of 

retired MSHA Inspector Thomas J. Simmers also reflects his understanding that inspections would not resume at mine sites which 

had been permanently abandoned unless there some indication that 

the mine operator intended to resume the production and processing of coal. Inspector Sparvieri confirmed that MSHA's Part 45 

policy manual does not address demolition work performed at a 

previously abandoned mine (Tr. 74-75). 

No further testimony, evidence, or other information was 

forthcoming from MSHA with respect to the activities which were 

taking place at the previously abandoned and reactivated mines in 

question, and counsel does not address the matter in his posthearing brief. Lancashire's counsel concludes that the obvious 

inference from this lack of testimony and evidence is that none 

of the listed facilities involved an attempt by MSHA to exercise 

enforcement jurisdiction over any activity even remotely similar 

to demolition work being performed at a permanently abandoned 

facility as part of the reclamation of that facility and merely 

enforces the conclusion that MSHA's position in this case is 

novel. 

In connection with the jurisdictional question raised by 

Lancashire, the record includes an exchange of memorandums 

between MSHA's District No. 2 and MSHA's Arlington, Virginia 

headquarters and Associate Solicitor for Mine Safety and Health, 

Edward P. Clair (Tr. 31-40; exhibits R-36 through R-38). The 

jurisdictional inquiry was initiated by the district manager 

after the fatal accident and the jurisdictional question raised 

by Lancashire at the time of MSHA's accident investigation and 

inspections which followed (Tr. 33-35). 

In his memorandum of May 2, 1989, (exhibit R-37), Mr. Clair 

states in part as follows: 

It has been asserted by Lancashire Coal and K & L 

that since the mine site was placed in CG status by 

MSHA on September 6, 1988, the Agency no longer has 

jurisdiction over the site. However, in our view, the 

cessation or abandonment of mining activity at a site 

does not necessarily preclude MSHA from reasserting 

jurisdiction in the future. Should new work begin or 

299 
similar activity recommence at the site at a later 

time, MSHA would need to evaluate the activity being 

performed. If that work came within the definition of 

a "mine," MSHA's responsibility would be to inspect and 

regulate the site under the Mine Act. (Emphasis 

added). 

Relying on the definitional language of "mine" found in 

section 3(h) (1) of the Mine Act, and MSHA's Part 45 Program 

Policy Manual, Mr. Clair concluded as follows: 

Applying this language to the facts outlined 

above, it is our view that the activities being conducted by K & L at the Lancashire Coal Company site are 

mining activities within the meaning of the 1977 Act. 

The demolition and dismantling.being performed involves 

structures, facilities and equipment which were "used 

in" and, hence, are now "resulting from" the work of 

extracting and preparing coal at the site. Just as the 

wording "to be used in" reflects Congress's intent that 

construction of structures and facilities involved in 

extraction and preparation of coal is subject to MSHA 

jurisdiction, the language "resulting from" similarl.y 

reflects coverage of activities involving the demolition or dismantling of those same facilities and structures. This view is consistent with longstanding MSHA 

policy requiring independent contractors performing 

demolition of mine facilities to obtain an MSHA identification number. 

The record also includes an additional memorandum issued by 

Mr. Clair on May 24, 1989, in connection with a question concerning MSHA's jurisdiction over a reclamation project identified as 

the "Huntsville Gob" (Tr. 201-205; copy furnished by MSHA's 

counsel and submitted by Lancashire's counsel by letter of 

November 2, 1989, Tr. 277). 

Based on the facts presented in the memorandum, it would 

appear that the Huntsville Gob reclamation project concerned a 

contractor who hauled gob materials from the site to a power 

plant in order to reduce the amount of gob which was to be 

reclaimed at the site. The contractor was required to "dry 

screen" the gob prior to loading and hauling it from the site in 

order to eliminate the waste materials from the coal fines which 

were apparently hauled away and used by the power plant which 

paid a percentage of the haulage costs. This money went directly 

to the State's abandoned mine land fund. In concluding that MSHA 

did not have jurisdiction over the gob project in question, 

Mr. Clair's memorandum states in relevant part as follows: 

Under Section 3(h) (1) of the Federal Mine Safety and 

Health Act of 1977 (Mine Act), the term "mine" includes 

300 
not only land from which minerals are currently 

extracted, but also land "resulting from" the work of 

extracting minerals. On the basis of this language, 

MSHA has jurisdiction over certain reclamation activities, such as surface work performed by the mine operator immediately following mining to restore mined land 

to its original contour. However, other activities 

more remote from mining, such as reclamation work 

occurring on previously mined abandoned lands are not 

subject to the Mine Act. 

The factors considered when determining MSHA's authority in such cases include (1) the nature of the activities, particularly in relation to activities normally 

associated with mining; (2) the relationship in time 

and the geographic proximity of the activities in 

question to active mining operations; (3) the nature of 

the land at the time of the activities; and (4) the 

operational relationship of the activities to active 

mining operations, including the control and direction 

of the workforce and the degree to which equipment or 

facilities are shared with active mining operations. 

Applying these criteria to the Huntsville Gob, it is 

our conclusion that MSHA does not have jurisdiction 

over the reclamation activities in question primarily 

because of the nature of the activities, and the amount 

of time which has elapsed since mining took place on 

the site. These activities involve coal handling which 

is incidental to the reclamation process. The Federal 

Mine Safety and Health Review Commission (Commission) 

has held that "inherent in determining whether a preparation operation is a mine is an inquiry not only into 

whether the operator performs one or more of the listed 

work activities, but also into the nature of the operation." Secretary v. Elam, 4 FMSHRC 5 (1982). In the 

case at hand, coal screening and coal removal from the 

reclamation site is incidental to the reclamation 

process. There is no exchange of money for the coal 

fines, and the screening and transportation serve 

primarily to remove and dispose of the product from the 

reclamation site. (Emphasis Added) . 

I have difficulty finding any meaningful factual or legal 

distinctions which formed the basis for Mr. Clair's advisory 

memorandums concerning Lancashire's demolition or reclamation 

work and the reclamation work of the Huntsville Gob contractor 

who was engaged in activities normally associated with active 

coal mining. The contractor screened, loaded, and transported 

from the site coal fines which I assume resulted from coal 

extraction activities which had at some time in the past taken 

place at the site. Mr. Clair concluded that these activities 

301 
were primarily for the purpose of removing and disposing of the 

product from the site. In the instant proceedings, Lancashire 

was simply removing some old structures from the site as an 

initial step to the ultimate reclamation of the site, and its 

activities in this regard were primarily for the purpose of 

removing and disposing of these "products" from the site. In my 

view, these activities were no less ~·incidental" to the reclamation process, and indeed were further removed from any "coal 

handling" than the work performed by the Huntsville Gob 

contractor. 

Although I am not bound by inconsistent and contradictory 

MSHA memorandums, I do find the rationale and criteria advanced 

by Mr. Clair in making his determinations to be relevant with 

respect to the kinds of activities ~ncompassed by section 

77.1712. For example, the Lancashire memorandum suggests the 

need to evaluate any "new work" or "similar activity" which may 

recommence after a site has been abandoned. The Huntsville Gob 

memorandum enumerates certain criteria to be followed with 

respect to any activities at a previously abandoned mine site, 

and they include (1) the nature of the activities in relation to 

activities normally associated with mining; (2) the relationship 

in time of the activities to active mining operations; (3.) the 

nature of the land at the time of the activities; and (4) the 

operational relationship of the activities to active mining 

operations, including the control and direction of the workforce 

and the degree to which the equipment or facilities are shared 

with active mining operations. 

on the basis of the facts and evidence adduced in these 

proceedings, I cannot conclude that the demolition and removal of 

the structures in question from the abandoned mine site in question were closely associated with activities normally associated 

with active coal mining. It is undisputed that active coal 

mining had not taken place at the site for at least 6-years prior 

to the demolition activities in question, and the underground 

shafts were permanently sealed in 1986, and MSHA declared the 

mine permanently abandoned in 1988. Mr. Falger's unrebutted 

credible testimony suggests that the structures which were being 

demolished and removed from the site had not been used in any 

mining activity for at least 18-years prior to their demolition. 

There is no evidence that Lancashire ever intended to resume any 

active coal mining activities at the time the demolition work was 

taking place. The site was dormant, and there is no evidence 

that Lancashire had taken any action to resume the extraction or 

processing of any coal after the site was declared permanently 

abandoned. Further, the demolition work was being done by K & L, 

and there is no evidence that any Lancashire employees were 

performing any of this work. 

The regulatory language found in section 77.1712, requires a 

mine operator to inform MSHA before reopening an abandoned mine 

302 
and MSHA is required to inspect the mine before any mining operations are instituted. No reference is made to any activities 

such as demolition work. As noted earlier, MSHA's policy statements concerning the application of section 77.1712, do not 

mention demolition work, and there is no MSHA regulatory standard 

requiring the filing of any demolition plan with MSHA prior to 

that kind of work. The "plans, programs, and systems" alluded to 

in the policy statements concerning section 77.1712, are matters 

normally associated with active coal extraction and production. 

MSHA's reliance on its Part 45 policy statements in connection 

with its "longstanding policy" requiring independent contractors 

performing demolition work to obtain mine identification numbers, 

does not bear any rational or reasonable relationship to the 

obligations and duties which may be imposed on a mine operator 

pursuant to section 77.1712. Further, the testimony of the 

MSHA's inspectors in this case indicates to me that they were 

either confused or ignorant of any clearly defined policies 

concerning the inspections of demolition work at a previously 

abandoned mine site, and that such inspections have not been 

routinely or otherwise made. MSHA's failure to produce any 

further information concerning the 12 previously abandoned mine 

sites which were subsequently reactivated, raises a strong 

inference that the activities which resumed at those sites were 

activities normally associated with active coal production rather 

than demolition or reclamation activities. 

Although I have concluded that the abandoned mine site in 

question constitutes a "mine" as that term is defined in the Mine 

Act, and that MSHA has enforcement jurisdiction, I cannot conclude that MSHA has established a violation of section 77.1712 by 

a preponderance of the evidence. I conclude and find that in 

order to establish a violation of section 77.1712, there must be 

some indicia of active coal mining operations, or at least some 

evidence that a mine operator intended to resume the active 

mining of coal. On the facts and evidence adduced in this case, 

I cannot conclude that Lancashire reopened the previously abandoned mine for the purpose or intent of resuming any active coal 

extraction, production, processing, or preparation, activities 

which I believe are usually and normally associated with active 

mining operations. To the contrary, I conclude and find that the 

demolition activities by K & L were activities normally associated with the dismantling of a mine and removing the salvaged 

structures from the site in order to reclaim it, rather than 

activities incident to the resumption of any active coal mining. 

Under the circumstances, I further conclude and find that the 

demolition work performed by K & L was not within the scope or 

intent of section 77.1712. 

In view of the foregoing findings and conclusions, I conclude and find that MSHA has failed to establish a violation of 

section 77.1712. Accordingly, the contested citation IS VACATED. 

303 
Section 103(k) Order No. 2888399, March 21, 1989, (Docket No. 

PENN 89-147-R) 

Section 103(k) of the Act authorizes a mine inspector, in 

the event of an accident which occurs in a coal or other mine to 

"issue such orders as he deems appropriate to insure the safety 

of any persons in the coal or other mine, .... 11 In this case, 

Mr. Sparvieri confirmed that he issued the order to insure the 

safety of all mine personnel around the silo and screen house 

structures. The order, on its face, further states that it was 

issued to close the area to all persons except those needed to 

conduct and complete the accident investigation. Orders of this 

kind are typically issued by MSHA to secure the scenes of accidents, to insure the continued safety of mine personnel, to 

preserve evidence, and to facilitate MSHA's statutory authority 

to investigate accidents. See: Miller Mining Company, Inc. v. 

FMSHRC and Secretary of Labor, 3 MSHC 1017 (9th Cir. 1983). I 

find nothing unusual or unreasonable in the inspector's action in 

issuing the order in this case, and IT IS AFFIRMED. 

Section 107Ca) Imminent Danger Order No. 2888400, March 21, 1989, 

(Docket No. PENN 89-148-R 

Section 3(j) of the Mine Act, 30 u.s.c. § 802(j), defines an 

"imminent danger" as "the existence of any condition or practice 

in a coal or other mine which could reasonable be expected to 

cause death or serious physical harm before such condition or 

practice can be abated." 

In Rochester & Pittsburgh Coal Company v. Secretary of 

Labor, 11 FMSHRC 2159, 2163 (November 1989), the Commission 

adopted the position of the Fourth and Seventh Circuits in 

Eastern Associated Coal Corporation v. Interior Board of Mine 

Operation Appeals, 491 F.2d 277, 278 (4th Cir. 1974), and Old Ben 

Coal Corp. v. Interior Board of Mine Operation Appeals, 523 F.2d 

25, 33 (7th Cir. 1975), holding that "an imminent danger exists 

when the condition or practice observed could reasonably be 

expected to cause death or serious physical harm if normal mining 

operations were permitted to proceed in the area before the 

dangerous condition is eliminated." In the Old Ben Corp. case, 

the court stated as follows at 523 F.2d at 31: 

Clearly, the inspector is in a precarious position. He is entrusted with the safety of miners' 

lives, and he must ensure that the statute is enforced 

for the protection of these lives. His total concern 

is the safety of life and limb . . . • We must support 

the findings and the decisions of the inspector unless 

there is evidence that he has abused his discretion or 

authority. (Emphasis added). 

304 
The evidence in this case establishes that at the time of 

the issuance of the order, Inspectors Sparvieri and Kuzar had 

both personally observed the condition of the silo and the screen 

house. Mr. Sparvieri's credible testimony establishes that a 

large portion of the silo base was missing, and that several of 

the steel reinforcing bands which had been around the structure 

had been cut and were hanging down. The employee who was killed 

had returned to the base of the silo where he had previously 

performed work cutting some of the bands to resume the cutting of 

additional bands with a torch, and as he prepared to do so the 

base of the structure collapsed and inundated him with the materials which came out of the silo. Having viewed the silo structure after the accident, Mr. Sparvieri concluded that it was in a 

weakened and unsafe condition, inadequately supported, and posed 

a hazard and danger to employees or others on the property who 

might venture near it. Indeed, the-structure collapsed on its 

own several days later after the order was issued. 

Mr. Sparvieri's conclusions regarding the condition of the silo, 

as he viewed it, were based on his observations of the missing 

portion of the base of the structure, and the supporting bands 

which had been cut and hanging down. While it is true that the 

bands were deliberately cut in order to weaken the structure to 

facilitate its collapse and ultimate removal from the mine site, 

the fact remains that after the accident, the silo was in fact in 

a weakened and dangerous condition, subject to collapse at any 

time, particularly if work were allowed to continue. 

With regard to the screen house structure, Mr. Sparvieri 

believed that it too was in a weakened and hazardous condition. 

Although he did not know how much work had been done on the 

support legs to weaken them, he nonetheless expressed his concern 

about the safety of the structure. His principal concern focused 

on the pieces of steel and tin siding materials which he observed 

hanging from the top and sides of the structure as shown in the 

photographs which he took of the structure while it was still 

erect. Mr. Sparvieri believed that these overhanging materials 

resulted from the condition of the structure, and that they were 

not deliberately torn of or stripped away while the structure was 

being dismantled. However, he conceded that he did not know that 

this was in fact the case, and agreed that if the steel siding 

were being stripped away, the partially stripped materials would 

remain in place if the job were interrupted (Tr. 77). 

None of the employees who were working at the site at the 

time of the accident were called for testimony in this case. 

There is no testimony of record from either Mr. Falger or 

Mr. Morchesky with respect to the overhanging siding materials 

which concerned Mr. Sparvieri. Nor is there any testimony as to 

when these materials may have been stripped away from the structure and left in the condition noted by the inspector. Since 

they were in place shortly after the accident, one may reasonable 

conclude that they were in this condition when employees were 

305 
working at the base of the structure notching the legs and performing other work. Mr. Sparvieri believed that the materials 

posed a hazard to these employees working beneath them, and 

several employees informed him that they had notched the legs 

sometime during the day of the accident. 

In describing the work performed by his employees on the 

morning of the accident, Mr. Morchesky confirmed that both the 

silo and the screen house were being weakened so that they could 

ultimately be collapsed. The notches were cut in the screen 

house to facilitate the installation of cables which would have 

been used to collapse the structure. He conceded that the work 

was dangerous, and that his crew worked in "two man" teams while 

one man worked and the other man stood by "with his hand on 

somebody's shoulder to pull him free and clear of anything, if 

something was going to happen" (Tr. 251). He conceded that the 

silo "was not weakened exactly as it was supposed to" (Tr. 251), 

and Inspector Kuzar, who was present when the screen house was 

finally taken down, confirmed that while it took some effort to 

take it down, "it didn't come the way they were planning on it 

coming down" (Tr. 227). Mr. Kuzar also expressed his concern 

about the presence of workers under the overhanging siding materials while they were engaged in the notching of the screen house 

legs (Tr. 227). 

After careful review of all of the testimony and evidence 

with respect to the conditions of the silo and screen house 

structures at the time the contested order was issued, I conclude 

and find that the conditions, as described by Inspector 

Sparvieri, and as corroborated by Inspector Kuzar, could reasonably be expected to cause death and serious physical harm to the 

employees who were working under and around these structures if 

the normal work operations were permitted to proceed in those 

areas before the dangerous conditions were eliminated. Under the 

circumstances, I conclude and find that Inspector Sparvieri acted 

reasonably and that his decision to issue the order was justified. Accordingly, the contested imminent danger order IS 

AFFIRMED. 

Section 104(a) non-"S&S" Citation No. 2891508, April 17, 1989, 

(Docket No. PENN 89-192-R 

Fact of Violation, 30 C.F.R. § 45.4(b) 

Lancashire is charged with a violation of 30 C.F.R. 

§ 45.4(b), which provides as follows: 

(b) Each production-operator shall maintain in 

writing at the mine the information required by paragraph (a) of this section for each independent contractor at the mine. The production-operator shall make 

306 
this information available to any authorized representative of the Secretary upon request. 

Lancashire does not dispute the fact that it failed to 

maintain the information required by section 45.4(b), and indeed 

stipulated that the information was not maintained in writing at 

the work site. Under the circumstances, I conclude and find that 

a violation has been established, and the citation IS AFFIRMED. 

Section 104 (a) "S&S" Citation No. 2891501. March 21, 1988, 

(Docket No. PENN 89-149-R) 

Fact of Violation, 30 C.F.R. § 77.200 

Lancashire is charged with a violation of 30 C.F.R. 

§ 77.200, which provides as follows: "All mine structures, 

enclosures, or other facilities (including custom coal preparation) shall be maintained in good repair to prevent accidents and 

injuries to employees." 

The inspector issued the citation after observing that 

several reinforcing bands had been cut from around the base of 

the silo, weakening the structure (Photographic Exhibits R-16, 

R-17, R-18). He believed that the removal of the bands affected 

the stability of the structure, and that part of it had collapsed, further weakening it. Under these circumstances, the 

inspector concluded that the silo was not maintained in good 

repair to prevent accidents or injuries to employees as required 

by the cited standard. He also believed that the standard 

applied to demolition work, and the fact that the structure was 

being torn down still required it to be maintained in a safe 

condition so that the employees working to dismantle it were not 

exposed to a risk of injury. 

With regard to the screen house structure, the inspector did 

not believe that it was maintained in good repair because he 

observed loose sheet metal siding materials hanging from the 

sides of the structure (photographic exhibits R-15, R-20, R-21, 

R-25). He believed that these materials posed a hazard and risk 

of injury to the employees who were working on the ground in and 

around the structure and under the materials. Under these circumstances, the inspector concluded that the structure was not 

maintained in good repair as required by the standard. 

The inspector determined the condition of the screen house 

through observation only, and he did not know to what extent the 

siding materials were secured to the structure (Tr. 64). He did 

not know for a fact that the materials had been stripped away 

from the structure during the demolition work, and stated that 

''its possible that stuff had fallen off and not been stripped 

off," and that due to the condition of the structure as he viewed 

it, it appeared that the loose overhanging materials had fallen 

307 
off (Tr. 63, 75). He did not know when the site was last 

inspected by MSHA, and except for the bands which had been cut 

away from the silo, and the notches which had been made in the 

support legs of the screen house, he assumed that both structures 

were in the same condition as he found them at the time the 

demolition work began (Tr. 75). The inspector believed that a 

structure which is being taken down could still be maintained in 

good repair, and he agreed that one cannot conclude by simply 

looking at a structure while it is being demolished that it is 

not in good repair pursuant to section 77.200 (Tr. 76). 

Lancashire argues that the "disrepair" associated with the 

silo was the result of the demolition work, and that with respect 

to the screen house, the inspector had no evidentiary support for 

his belief that the materials which were hanging from the side of 

the structure may have been in that condition prior to the 

beginning of the demolition work. Since there is no evidence 

that any of the MSHA inspectors who had performed periodic 

inspections at the work site prior to 1988, had cited Lancashire 

for permitting loose metal to hang from its screen house, 

Lancashire concludes that it was maintained in good repair prior 

to the beginning of the demolition work in 1989. 

Lancashire asserts that at the time of the accident, all 

demolition work stopped "mid-course" after the contractor purposely weakened the two structures in accordance with its demolition plan, and that when the inspector initially viewed the 

structures during his accident investigation, the structures were 

viewed in their partial state of demolition. Lancashire argues 

that it is obvious that any time demolition work is being performed and is stopped mid-course, a structure could be found not 

to be in "good repair." Lancashire points out that after MSHA 

took control of the demolition work, the screen house was demolished using the same plan devised by the contractor. Assuming 

that Inspector Sparvieri had stopped this MSHA-supervised demolition work at any given point after it had begun, but before it 

had been completed, Lancashire suggests that the inspector would 

have found the screen house to not be maintained in a state of 

"good repair." Under the circumstances, Lancashire concludes 

that regardless of who it is supervising or performing the demolition work, it could virtually always be cited for not maintaining a structure in "good repair" if the demolition work is 

stopped mid-course. Lancashire concludes that the evidence of 

record establishes that this is not a case where it failed to 

maintain the cited structures in good repair. Rather, Lancashire 

maintains that it simply hired a contractor who intentionally 

placed the structures in "bad repair" as part of its plan to 

demolish them, and that it makes no sense to cite Lancashire for 

not keeping them in good repair. 

MSHA agrees that once a structure is demolished, it is 

clearly no longer in good repair and that it would be ludicrous 

308 
to require it to be maintained in good repair per se at all 

times. However, MSHA takes the position that the structures must 

be maintained in a condition to prevent injury to employees, and 

that throughout any demolition process the structures must be 

maintained in such a condition as to prevent injuries or hazard 

exposure to employees doing the work. MSHA concludes that the 

condition of the silo and the screen house were not maintained in 

a safe condition, and posed an injury risk to the employees 

working in those areas. 

After careful consideration of all of the evidence in this 

case, I agree with MSHA's position with respect to the application of section 77.200, to the work which was being performed at 

the time of the accident. In my view, the fact that demolition 

work was taking place did not absolve Lancashire from its duty to 

insure that the structures were maintained in "good repair" to 

prevent accidents and injuries to those employees who were doing 

the work. Although the work was under the supervision of the 

contractor, Lancashire had a supervisory employee (Falger) at the 

work site after the shafts were sealed and the mine was abandoned. Part of Mr. Falger's duties involved security at the 

site, and he acknowledged that during his demolition negotiations 

with Mr. Morchesky, they visited the work area where Mr. Falger 

pointed out the structures to Mr. Morchesky and explained the 

work that was to be done (Tr. 144). At that point in time, I 

believe it is reasonable to conclude that Mr. Falger and 

Mr. Morchesky knew or should have known about the conditions of 

the two structures, and in particular the loose and overhanging 

materials at the top and side of the screen house. 

Lancashire's arguments and suggestions that the silo and 

screen house were rendered in "disrepair" as a result of the 

demolition work which was interrupted mid-course by the accident 

and the MSHA orders which followed are rejected. While it is 

true that demolition work may result in the further deterioration 

of the structures being razed, the issue here is whether or not 

the conditions of the structures, as reflected in the unrebutted 

testimony of the inspectors, support a reasonable conclusion that 

they existed at the time the work was taking place, and whether 

they posed a hazard to the employees performing the work. 

Lancashire has advanced no credible testimony or evidence to 

support any conclusion that the loose overhanging materials at 

the top and sides of the screen house were conditions which 

resulted from any demolition work which may have been interrupted 

mid-course, and posed no hazard to those performing the work. 

There is no testimony from Mr. Falger or Mr. Morchesky with 

respect to whether or not the siding materials in question were 

stripped away from the structure during the demolition work. 

Even if they were, I believe that Lancashire nonetheless had a 

duty to insure that these materials did not pose a hazard to the 

employees working in the areas below the materials. 

309 
Mr. Morchesky confirmed that on the day of the accident, his 

workers were working at the screen house notching the inside 

support beams and legs so that cables could be attached to pull 

the structure down (Tr. 251-252). The work orders for the screen 

house and silo (Joint Exhibits 1 and 2), simply reflect that 

K & L was to raze the structures and "dismantle and reclaim the 

scrap," and the documents include no details as to how this work 

was to be performed. Since the removal of each and every piece 

of sheet metal siding is costly and labor intensive, I believe 

that one may reasonably conclude that K & L intended to reclaim 

the scrap materials and haul it away after the structure was 

pulled down, rather than dismantling the structure piece-bypiece. 

Although Inspector Sparvieri was uncertain as to whether or 

not the screen house conditions which he observed resulted from 

the demolition work taking place, he believed that the conditions 

were the result of the general condition of the structure and 

that the loose and overhanging materials should have been taken 

down in order to remove the potential for an accident or injury 

to the employees working below them. Given the fact that the 

structure had not been in use for many years, I believe that one 

may reasonably conclude that as a surface structure, it would be 

subjected to deterioration and corrosion through exposure to the 

elements over a long period of time, and that it is just as 

likely as not that the structure was simply left unattended over 

a period of time prior to the onset of the demolition work. 

With regard to the silo structure, the accident report 

reflects that the employee who suffered fatal injuries had completed his work of cutting some of the steel support bands around 

the base of the silo approximately 15 minutes prior to the accident, and that he had returned to the base area with a cutting 

torch in his hand, and was observed in a kneeling position by 

another employee when the base gave way freeing the coal materials inside the silo and inundating him. Mr. Morchesky confirmed that while it was known that the silo was constructed of 

cement block, the work being performed by the victim was accomplished in order to weaken the structure so that once it started 

to topple, the weight of the topped screen house falling on it 

would crush the rest of the silo (Tr. 276). When asked whether 

anyone made any determination as to what was in the silo before 

this work began, and why any work to weaken it would be performed 

before anyone knew what was in it, Mr. Morchesky explained that 

one could observe the coal in the silo, at least up to the window 

level, but he could offer no explanation as to why so many of the 

bands had been cut, or why the accident victim returned with the 

base of the silo with his cutting torch. It seems reasonably 

obvious to me that no hazard assessment was made by Lancashire or 

K & L with respect to the stability of the structure in its 

weakened state after the initial cutting away of the support 

310 
bands, which one may also reasonably conclude caused it to give 

way. 

In view of the foregoing findings and conclusions, I con-, 

elude and find that MSHA has established by a preponderance of 

the evidence that the silo and screen house structures were not 

maintained in good repair to prevent accidents or injuries to the 

employees performing work as required by section 77.200, and the 

citation IS AFFIRMED. 

Significant and Substantial Violations 

A "significant and substantial" violation is described in 

section 104(d) (1) of the Mine Act as a violation "of such nature 

as could significantly and substantially contribute to the cause 

and effect of a coal or other mine safety or health hazard." 

30 c.F.R. § 814(d) (1). A violation is properly designated significant and substantial "if, based upon the particular facts 

surrounding the violation there exists a reasonable likelihood 

that the hazard contributed to will result in an injury or illness of a reasonably serious nature." Cement Division, National 

Gypsum Co., 3 FMSHRC 822, 825 (April 1981). 

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

Commission explained its interpretation of the term "significant 

and substantial" as follows: 

In order to establish that a violation of a mandatory safety standard is significant and substantial \

under National Gypsum the Secretary of Labor must 1 

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. 

In United States Steel Mining Company, Inc., 7 FMSHRC 1125, 

1129, the Commission stated further as follows: 

We have explained further that the third element 

of the Mathies formula "requires that the Secretary 

establish a reasonable likelihood that the hazard 

contributed to will result in an event in which there 

is an injury." U.S. Steel Mining Co., 6 FMSHRC 1834, 

1836 (August 1984). We have emphasized that, in accordance with the language of section 104(d) (1), it is the 

311 
/ 

contribution of a violation to the cause and effect of 

a hazard that must be significant and substantial. 

U.S. Steel Mining Company, Inc., 6 FMSHRC 1866, 1868 

(August 1984); U.S. Steel Mining Company, Inc., 

6 FMSHRC 1573, 1574-75 (July 1984). 

The question of whether any particular violation is significant and substantial must be based on the particular facts 

surrounding the violation, including the nature of the mine 

involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498 

(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007 

(December 1987). 

I conclude and find that the condition of the silo and 

screen house structures, as observed and described by the inspector, including the failure by Lancashire to insure that these 

structures were maintained in good repair, exposed the workers 

who had performed work in those areas both before and at the time 

of the accident to hazardous conditions. The worker exposed to 

the weakened condition of the silo suffered fatal injuries. The 

workers doing the work in and around the ground areas of the 

screen house were exposed to a falling materials hazard, and in 

the event they were struck by any of these materials, I believe 

that it was reasonably likely that they would sustain injuries of 

a reasonably serious nature. Accordingly, the inspector's significant and substantial (S&S) finding IS AFFIRMED. 

Estoppel and Selective Enforcement Issues 

As part of its pre-trial pleadings, and during the course of 

oral argument during the hearing in connection with its jurisdictional arguments, Lancashire contended that since MSHA failed to 

inspect similar prior demolition work performed by the same 

contractor at another mine site (Barnes & Tucker No. 20 Mine), 

MSHA was estopped from inspecting Lancashire's mine site, and 

that its attempts to do so in these proceedings constitutes 

arbitrary and capricious selective enforcement. Lancashire's 

posthearing brief does not address these issues. 

citing the applicable case law with respect to the doctrine 

of estoppel, MSHA argues that Lancashire has not met its burden 

of establishing any misrepresentations or misconduct on the part 

of MSHA with respect to its actions or inactions at the Barnes 

and Tucker mine site, and has not established that it has been 

prejudiced, or has suffered any detriment, by virtue of MSHA's 

refraining from inspecting its mine site until March 21, 1989. 

MSHA cites the testimony of the contractor (Morchesky) that his 

employees welcomed the presence of MSHA's inspectors at the site 

after the accident because "the more people around with opinions, 

everybody just felt better" (Tr. 253). · MSHA concludes that the 

inspectors sought to regulate the mine site to protect the 

affected employees and others who may have been there. 

312 
With regard to the selective enforcement issue, MSHA cites 

the applicable case law, and concludes that Lancashire cannot 

meet its burden of proof establishing that it "was singled out 

for prosecution among others similarly situated and that the 

decision to prosecute was improperly motivated." MSHA points out 

that it has produced evidence that other mines in MSHA's 

Johnstown Subdistrict off ice which were placed in an abandoned 

status and then subsequently reactivated were inspected. During 

the course of the hearing, MSHA's counsel pointed out that 

immediately following the accident, the inspectors sought further 

advice with respect to the jurisdictional question raised by 

Lancashire, and subsequently returned to continue with their 

inspections after they were informed they were authorized to do 

so (Tr. 33). MSHA concludes that there is not a shred of evidence to suggest that MSHA was "improperly motivated" in seeking 

to regulate Lancashire's mine site, and that it did so to protect 

the safety of the employees who were working there. 

In Secretary of Labor v. Superior Sand and Gravel, Inc., and 

Patrick K. Thornton, 2 FMSHRC 1308 (June 1980), Judge Broderick 

rejected a mine operator's defense that it was singled out for 

enforcement by MSHA because other operators were not being 

inspected and fined, and he cited Thompson v. Spear, 91 F.2d 430, 

433-34 (5th Cir. 1937), cert. denied, 302 U.S. 762 (1938), where 

the court held as follows: 

[The agency's) mere inability does not render such 

enforcement as it accomplished wrongful. The fact that 

others violated the law with impunity is no defense. 

It is only when the enforcement agency is vested with a 

discretionary power and exercises its discretion 

arbitrarily or unjustly that enforcement of a valid 

regulation [violates the law). 

In Secretary of Labor v. King Knob Coal Company, Inc., 

3 FMSHRC 1417 (June 1980), the Commission rejected the doctrine 

of equitable estoppel with respect to a mine operator's liability 

for a violation. However, the Commission viewed the erroneous 

action of the Secretary (mistaken interpretation of the law 

leading to prior non-enforcement) as a factor which may be considered in mitigation of the civil penalty. Further, Commission 

Judges have consistently rejected an operator's reliance on prior 

inspections and the lack of citations, and have held that the 

lack of prior inspections and the lack of prior citations does 

not estop an inspector from issuing citations during subsequent 

inspections. See: Midwest Minerals Coal Company, Inc., 3 FMSHRC 

1417 (January 1981); Missouri Gravel Co., 3 FMSHRC 1465 (June 

1981); Servtex Materials Company, 5 FMSHRC 1359 (July 1983). In 

Emery Mining Corporation v. Secretary of Labor, 3 MSHC 1585, the 

Court of Appeals for the Tenth Circuit, in affirming the 

313 
Commission's decision at 5 FMSHRC 1400 (August 1983), stated as 

follows at 3. MSHC 1588: 

As this court has observed, "courts invoke the 

doctrine of estoppel against the government with great 

reluctance" • . • . Application of the doctrine is 

justified only where "it does not interfere with underlying government policies or unduly undermine the 

correct enforcement of a particular law or regulation" 

. . . . Equitable estoppel "may not be used to contradict a clear Congressional mandate," ••• as 

undoubtedly would be the case were we to apply it 

here • . . . 

Although the record reflects some confusion surrounding MSHA's approval of Emery's training plan, as a 

general rule "those who deal with the Government are 

expected to know the law and may not rely on the conduct of government agents contrary to law" . • . . 

After careful review of the record in these proceedings, and 

the arguments advanced by the parties, I agree with the position 

taken by MSHA, and I conclude and find that Lancashire has not 

established by a preponderance of any credible evidence that MSHA 

has acted arbitrarily or capriciously by exercising its enforcement and inspection authority at the mine site in question. I 

also reject Lancashire's selective enforcement argument, and I 

cannot conclude that MSHA was improperly motivated in initiating 

the enforcement actions in question against Lancashire. In my 

view, any inconsistencies or contradictions with respect to 

MSHA's enforcement policies and practices concerning demolition 

work at previously abandoned mine sites does not rise to the 

level of prejudicial arbitrary action against Lancashire. 

History of Prior Violations 

The parties have stipulated that for the 2-year period 

preceding the issuance of the contested violations, Lancashire 

had no assessed violations. I adopt this stipulation as my 

finding, and have taken this into consideration with respect to 

the civil penalties which I have assessed for the violations 

which have been affirmed. 

Good Faith Compliance 

The parties have stipulated that Lancashire demonstrated 

good faith in attempting to abate the alleged violations, and I 

adopt this as my finding and have taken it into consideration. 

314 
Gravity 

In view of my "S&S" findings with respect to section 104(a) 

Citation No. 2891501, concerning a violation of 30 C.F.R. 

§ 77.200, I conclude and find that it was a serious violation. 

With regard to Citation No. 2891508, concerning Lancashire's 

failure to maintain the information required by section 45.4(b), 

I conclude and find that the violation was non-serious. 

Negligence 

I agree with the inspector's moderate negligence findings 

with respect to the two citations which have been affirmed, and I 

conclude and find that the violations resulted from Lancashire's 

failure to exercise reasonable care. 

Size of Business and Effect of Civil Penalty Assessments on the 

Respondent's Ability to Continue in Business 

The record reflects that at the time the citations were 

issued, Lancashire had one employee at the mine. The. parties 

stipulated that payment of the assessed civil penalties will not 

adversely affect the respondent's ability to continue in 

business. I adopt this stipulation as my finding on this issue, 

and have considered these matters in the civil penalty assessments which have been assessed by me for the violations which 

have been affirmed. 

Civil Penalty Assessments 

With respect to Citation No. 2891501, for the violation of 

section 77.200, Lancashire takes issue with the basis for the 

"special assessment" of $3,000, as articulated by the "Narrative 

Findings" of MSHA's Office of Assessments. Specifically, 

Lancashire takes issue with the statement that "the cause of the 

accident was management's failure to provide an adequate plan for 

the safe demolition of the coal site." Lancashire asserts that 

it had no reason to believe that K & L's demolition plan was 

inadequate, and that it is inappropriate and highly unfair to 

charge it with not maintaining the structures in good repair 

while they were in the process of being demolished. 

Inspector Sparvieri conceded that there are no MSHA mandatory regulations requiring a contractor or mine operator to 

file a demolition plan with MSHA prior to commencing the work 

(Tr. 109). Although the imminent danger order required K & L to 

submit a written demolition plan before continuing with its work, 

no written plan was submitted. However, Inspector Kuzar 

obviously accepted the verbal description of the demolition 

procedures as communicated to him by K & L while he was present 

when this work was taking place as adequate to insure the safety 

of the personnel doing the work. If this were not the case, I 

315 
would assume that Mr. Kuzar would not have allowed the work to 

continue in the absence of a written plan. Although the silo had 

already fallen down when Mr. Kuzar returned to the site, he 

confirmed that the procedures used by K & L to take down the 

screen house after the orders were issued and modified were 

essentially the same procedures followed by K & L prior to the 

accident. Under the circumstances, one may reasonably concluded 

from this that the lack of a demolition plan per se may not 

necessarily establish that the procedures followed by K & L were 

inadequate, or that the lack of a plan caused the accident. 

It is clear that I am not bound by MSHA's "special assessment" for the violation in question, and that I may consider any 

appropriate mitigating circumstances, particularly with respect 

to Lancashire's negligence, in the ~ssessment of a civil penalty 

for the violation in question. See: Allied Products Company v. 

FMSHRC, 666 F.2d 890, 896 (5th Cir. 1982); Nacco Mining Co., 

3 FMSHRC 848, 850 (April 1981); Marshfield Sand & Gravel, Inc., 

2 FMSHRC 1391 (June 1980); Old Dominion Power Co., 6 FMSHRC 1886 

(August 1981); Secretary of Labor v. Marion County Limestone 

Company, LTD., 10 FMSHRC 1683 (December 1982). 

Although I have considered Lancashire's argument with 

respect to the asserted lack of a safe written demolition plan, 

and have considered the fact that it may have reasonably believed 

that it was not required to maintain the structures in good 

repair after MSHA permanently abandoned the mine and advised it 

that it would no longer inspect the facility, the fact is that 

the silo which collapsed and resulted in the death of the 

employee in question was not maintained in a safe condition as 

the work progressed and it was in a weakened condition at the 

time that the employee was working on it. In my view, closer 

supervision of the employee, inspection of the work which he had 

already performed, and at least some hazard assessment by K & L 

and Lancashire before the work began may have prevented the 

accident. Under these circumstances, although I have taken into 

consideration Lancashire's arguments in mitigation of the special 

assessment proposed by MSHA for the violation, and have affirmed 

the inspector's moderate negligence finding, I find no reasonable 

basis for any substantial decrease or increase in the civil 

penalty assessment proposed by MSHA. 

In view of the foregoing findings and conclusions made by me 

in these proceedings, and taking into account the requirements of 

section llO(i) of the Act, I conclude and find that the civil 

penalty assessments which I have made for the two violations 

which have been affirmed in these proceedings are reasonable and 

appropriate in the circumstances. 

316 
ORDER 

On the basis of the foregoing findings and conclusions, IT 

IS ORDERED AS FOLLOWS: 

1. Docket No. PENN 89-147-R. Section 103(k) Order No. 

2888399, IS AFFIRMED, and Lancashire's contest IS DENIED. 

2. Docket No. PENN 89-148-R. Section 107(a) Imminent 

Danger Order No. 2888400, March 21, 1989, IS AFFIRMED, and 

Lancashire's contest IS DENIED. 

3. Docket No. PENN 89-149-R. Section 104(a) 11 S&S 11 Citation. 

No. 2891501, March 21, 1989, IS AFFIRMED, and Lancashire's contest IS DENIED. 

4. Docket No. PENN 89-192-R. Section 104(a) non-"S&S" 

Citation No. 2891508, april 17, 1989, IS AFFIRMED, and 

Lancashire's contest IS DENIED. 

5. Docket No. PENN 89-193-R. Section 104(a) 11 S&S 11 Citation 

No. 2891509, April 17, 1989, IS VACATED, and Lancashire's contest 

IS GRANTED. 

6. Civil Penalty Docket No. PENN 90-10. Lancashire is 

assessed a civil penalty assessment in the amount of $2,800, for 

a violation of 30 C.F.R. § 77.200, as noted in the section 104(a) 

"S&S" Citation No. 2891501, issued on March 21, 1989. Lancashire 

is also assessed a civil penalty assessment in the amount of $20, 

for a violation of 30 C.F.R. § 45.4(b), as noted in the section 

104(a) non-"S&S" Citation No. 2891508, issued on April 17, 1989. 

Payment of the civil penalty assessments shall be made by 

Lancashire to MSHA within thirty (30) days of the date of these 

decisions and Order, and upon receipt by MSHA, the civil penalty 

proceeding is dismissed. 

Distribution: 

/~o{~ Administrative 

#. 

Koutras 

d~ 

Law Judge 

James R. Haggerty and Steven P. Fulton, Esqs., Reed, Smith, Shaw 

& Mcclay, Mellon Square, 435 sixth Avenue, Pittsburgh, PA 

15219-2009 (Certified Mail) 

Mark A. Swirsky, Esq., Office of the Solicitor, U.S. Department 

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

Philadelphia, PA 19104 (Certified Mail) 

/fb 

317 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 271990 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

HIOPE MINING INCORPORATED, 

Respondent 

HIOPE MINING, INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

CIVIL PENALTY PROCEEDINGS 

Docket No. VA 89-68 

A.C. No. 44-05748-03554 

Docket No. VA 89-69 

A.c. No. 44-05748-03555 

Mine No. 1 

CONTEST PROCEEDINGS 

Docket No. VA 89-35-R 

citation No. 2969642; 1/23/89 

Docket No. VA 89-36-R 

Order No. 2969654; 3/6/89 

Mine No. 1 

Mine ID 44-05748 

DECISIONS 

Appearances: Roberts. Wilson, Esq., Office of the Solicitor, 

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

the Petitioner/Respondent; 

Before: 

Daniel R. Bieger, Esq., Copeland, Molinary & 

Bieger, Abingdon, Virginia, for the 

Respondent/Contestant. 

Judge Koutras 

Statement of the Proceedings 

These consolidated proceedings concerns Notices of Contest 

filed by the contestant (Hiope) pursuant to section 105(d) of the 

Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 815(d), 

challenging the captioned citation and order issued by MSHA mine 

inspector Steven May. The civil penalty proceedings concern 

proposals for assessment of civil penalties filed by MSHA seeking 

318 
civil penalty assessments against Hiope for the alleged violations stated in the citation and order. Hearings were held in 

Kingsport, Tennessee, and the parties waived the filing of 

posthearing briefs. However, I have considered their oral 

arguments made on the record during the hearings in-my adjudication of these matters. 

Issues 

The issues presented in these proceedings include the 

following: (1) Whether Hiope violated the cited mandatory 

safety standards; (2) whether the alleged violations were significant and substantial (S&S); and (3) whether the alleged violations cited in the contested section 104(d) (1) citation and order 

resulted from an unwarrantable failure by Hiope to comply with 

the cited standards. 

Assuming the violations are established, the question next 

presented is the appropriate civil penalties to be assessed 

pursuant to the civil penalty assessment found in section llO(i) 

of the Act. Additional issues raised by the parties are identified and disposed of in the course of these decisions. 

Applicable Statutory and Regulatory Provisions 

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

30 u.s.c. § 301, et seq. 

2. Sections llO(a), llO(i), 104(d), and 105(d) of the Act. 

3. Mandatory safety standards 30 C.F.R. §§ 75.400 and 

75.220. 

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

stipulations 

The parties stipulated to the following (Tr. 10; Joint 

Stipulation): 

1. Hiope is the owner and operator of the No. 1 

Mine. 

2. The operations of the mine are subject to the 

jurisdiction of the Act. 

3. The Commission and its presiding Administrative Law Judge have jurisdiction in these matters. 

4. MSHA Inspector Steven May was acting in his 

official capacity as an authorized representative of 

319 
the Secretary of Labor, when he issued the contested 

citation and order. 

5. True copies of the citation and order were 

served on Hiope or its agent as required by the Act. 

Copies of the citation and order, exhibits G-1 and G-2, 

are authentic and may be admitted into evidence for the 

purpose of establishing their issuance and not for the 

purpose of establishing the accuracy of any statements 

asserted therein. 

6. The imposition of civil penalty assessments 

for the alleged violations in question will not 

adversely affect Hiope's ability to continue in 

business. 

7. The alleged violation stated in the section 

104(d) (1) citation was timely abated. 

8. MSHA's Proposed Assessment Data Sheet, exhibit 

G-4, accurately sets forth (a) the number of assessed 

non-single penalty violations charged to Hiope for the 

years 1986 through April, 1989, and (b) the number of 

inspection days per month during this time period. 

9. MSHA's Assessed Violations History Report, 

exhibit G-3, may be used in determining the appropriate 

civil penalty assessments for the alleged violations. 

The parties agreed that Hiope's annual coal mining production was approximately 130,000 tons, that it employed approximately 30 miners, and may be considered a small mine operator 

(Tr. 5). 

The parties further stipulated that the technical procedural 

requirements concerning the section 104(d) (1) citation and order 

issued by Inspector May (the section 104(d) "chain") have been 

met in these proceedings, and that there were no intervening 

"clean inspections" during the intervening time period when the 

supporting citation and subsequently issued order were issued by 

Inspector May (Tr. 8). 

Discussion 

Docket Nos. VA 89-36-R and VA 89-69 

The section 104(d) (1) "S&S" Order No. 2969654, issued on 

March 6, 1989, by MSHA Inspector Steven May, citing an alleged 

violation of 30 C.F.R. § 75.220, states as follows (exhibit G-2): 

Approximately 12 feet of coal was mined from the 

pillar split of the No. 1 pillar block on the 001-0 

320 
section and a breaker line had not been established 

across the 001-0 pillar section. The approved roof 

control plan requires that all breakers (timbers) be 

installed prior to any mining along the pillar line. 

The record reflects that the citation was issued at 

11:06 a.m., and that Inspector May terminated it at 1:15 p.m., 

the same day. 

MSHA's Testimony and Evidence 

MSHA Inspector Steven May testified as to his background and 

experience, and he confirmed that he has served as an inspector 

for 7 years, previously worked for two coal mining companies, and 

holds certificates as a mine foreman, electrician, and a state 

mining inspector. He also confirmed that he conducted two complete inspections of the Hiope No. 1 Mine in November, 1988, and 

January, 1989. He stated that he was at the mine on March 6, 

1989, for the purpose of giving a safety talk, and after completing this talk he decided to conduct an inspection. Referring 

to a sketch of the area which he made, exhibit G-15, he explained 

that he proceeded inby the belt conveyor area for two breaks 

where he gave his safety talk, and then went to the point marked 

"C" on the sketch where he found a continuous-mining machine 

"sumped up" in .the block of coal (Tr. 18-23). 

Inspector May testified that he issued the violation because 

mining had proceeded in the No. 1 pillar split without first 

setting eight timber breaker posts in each entrance, and that the 

failure by Hiope to first set these posts before commencing 

mining violated its approved roof-control plan and constituted a 

violation of section 75.200. He found the continuous-mining 

machine advanced approximately 12 feet into the No. 1 pillar 

block of coal, and no breaker posts were installed in this area. 

He observed no supply of timbers on the section. He identified 

the applicable roof-control plan, at page 9, exhibit G-16, and 

explained the plan requirements for installing posts before the 

No. 1 coal block is cut and taken. He also explained the mining 

and roof bolting cycles which follow the taking of the number 1 

coal block (Tr. 24, 29-35). He confirmed that he issued the 

section 104(d) (1) order because "its something that the operator 

known (sic) or should have known" (Tr. 24). 

Mr. May stated that the failure to follow the roof-control 

plan presented a roof fall hazard, ~nd by taking a cut of coal 

without installing any roof support timbers, there was a danger 

of a roof fall. In the event mining had continued and the entire 

coal pillar were mined without any' roof support timbers in place, 

a roof fall was reasonably likely. He also believed that it was 

highly likely that an injury would have occurred as a result of a 

roof fall and that the continuous-mining operator would be 

321 
exposed to disabling or fatal crushing injuries from such a fall 

(Tr. 36-38). 

Mr. May confirmed that no mining was taking place, and no 

coal was being cut at the time he observed the mining machine. 

He also confirmed that the machine was not equipped with a 

canopy. Since there was nothing supporting the roof where the 

machine cut into the block of coal, he believed that the machine 

operator would be exposed to a roof fall hazard in that the roof 

could have broken out and fallen back beyond the end of the 

unsupported coal block. 

Mr. May stated that he based his "high negligence" finding 

on the fact that mine management had knowledge of its 

roof-control plan and that it knew or should have known that 

cutting coal from the pillar block in question without installing 

the required roof support timbers was contrary to the plan. An 

additional factor which prompted him to issue the order was the 

fact that the continuous-miner operator Aaron Feeser was 

instructed to go to the area and to take the first cut of coal 

out of the coal block in question. 

Mr. May stated that he spoke with section foreman curt 

Armstrong when he issued the order but he could not recall 

specifically asking him why the cut of coal had been made without 

any roof support timbers. Mr. May confirmed that he observed no 

roof support timbers stored on the section, and that the lack of 

timbering presented a risk of a roof fall (Tr. 38-42). 

On cross-examination, Mr. May confirmed that his inspection 

notes include a notation that if it were not for the fact that he 

found the mining machine "sumped up" in the coal block, he would 

not have issued the violation. He explained that regardless of 

the presence of the continuous-miner machine, he would have still 

issued the violation because of the fact that a cut was taken 

from the block without first setting timbers. If that cut had 

not been made, and no coal taken, he would not have issued it 

(Tr. 44). He confirmed that the "dots" shown at the top of 

exhibit G-15, reflect that roof support timbers had been 

installed at the locations shown. He also stated that in the 

event a continuous-mining machine "accidentally" cuts into a coal 

block the proper procedure is to stop mining and install roof 

support timbers. He agreed that in this case, no further mining 

took place after the machine cut into the coal block, and that 

management proceeded to install the required timbers. 

Mr. May stated that 48 additional roof support timbers 

should have been installed before the first coal cut was taken, 

and confirmed that the coal block in question was the proper 

block to begin the mining cycle, but that no mining was taking 

place when he viewed the violative conditions. 

322 
Mr. May stated that Mr. Armstrong told him that the miner 

had accidentally cut into the coal block while Mr. Feeser was 

picking up gob, but that his notes reflect that Mr. Feeser told 

him he was told to cut into the coal block. Mr. May stated that 

he did not believe the coal cut was taken accidentally because 

there were two cuts of coal taken, and the mining machine had 

penetrated the coal block for a distance of 12 feet. 

In response to further questions, Mr. May stated that given 

the size of the cut made into the block, it would have taken 

1-0 minutes to make that cut, and if Mr. Feeser were only cleaning 

up gob, he would not have turned the machine into the block of 

coal. Mr. May also confirmed that he did not measure the size of 

the coal cuts made by Mr. Feeser, and that he estimated it by the 

location of the machine head lights which were 12 feet into the 

block. He also stated that Mr. Feeser told him that he had been 

instructed to clean up the gob and to cut the block of coal (Tr. 

42-76). 

Aaron Feeser testified that he was previously employed by 

Hiope in early August, 1989, and had worked there for 4 years as 

a roof bolter, scoop operator, and continuous-miner operator and 

helper. He was also a member of the union mine safety committee 

(Tr. 77-79) . 

Mr. Feeser confirmed that on March 6, 1989, he was working 

on the No. 1 section as a continuous-miner operator "getting 

ready to start the pillar section," and that prior to the inspector's safety talk "we had cleaned up a section and moved the 

miner across the section and started mining" coal from the first 

pillar block (Tr. 81). He stated that none of the pillars had 

been mined at that time and that he had just started one block 

and took approximately one-half of a cut of coal. He described 

the "cut" as 12 feet deep and "maybe" 18 feet wide. He observed 

no timbers set between the blocks. He confirmed that the miner 

machine is 10 feet wide, and that in order to take an 18-foot 

wide cut, "we'd cut into the block of coal on one side and back 

up and set it over and cut into the block again" (Tr. 82). 

Mr. Feeser stated that he operated the miner for approximately 30 minutes cutting the pillar, and that mine foreman Curt 

Armstrong instructed him "to take the miner across the section 

and start the first block" (Tr. 82). He denied that 

Mr. Armstrong told him to go and clean up gob at that location. 

Mr. Feeser stated that there were "buggy men running buggies" in 

the area, and he believed there were three men other than himself 

in the area, and that Mr. Armstrong was on the section all 

morning (Tr. 83). 

On cross-examination, Mr. Feeser stated that he was familiar 

with the mine roof-control plan and knew the requirements for 

setting timbers. He confirmed that during a meeting with Hiope's 

323 
counsel (Daniel Bieger) at the mine office sometime in March, 

1989, he told Mr. Bieger that he was cleaning up the gob and had 

accidentally cut into the coal block (Tr. 86). He also confirmed 

that he attended an informal conference at MSHA's Richlands, 

Virginia office, and when asked whether he had stated at that 

time that he had accidentally cut into the block while picking up 

gob, Mr. Feeser stated as follows at (Tr. 86-87): 

Q. Okay. and you said the same thing to the informal 

conference man, that you accidentally cut into the 

block while you were picking up gob, didn't you? 

A. No. 

Q. You didn't tell them that when we were all sitting 

around the table, the same thing? 

A. No, not those words, I did not. 

Q. Okay. You told them that you were picking up gob, 

didn't you? 

A. I did. 

Q. And that you cut into the -- that you accidentally 

cut into the block? 

A. No. 

JUDGE KOUTRAS: What specifically do you remember 

telling them at the conference? 

THE WITNESS: I didn't tell them I accidentally cut 

into the block. 

JUDGE KOUTRAS: What did you tell them? 

THE WITNESS: They asked did I pick up gob? 

did. Did I accidentally cut into the block? 

not. 

BY MR. BIEGER: 

Yes, I 

No, I did 

Q. You didn't say -- you didn't tell them at the 

informal conference that you intentionally cut into the 

block? 

A. I wasn't asked. 

Q. Okay. And you didn't volunteer that? 

A. I wasn't asked. 

324 
Mr. Feeser confirmed that subsequent to the informal conference in question, he was laid off by Hiope and filed a grievance which went to an arbitration hearing. However, during the 

grievance process, he quit and went to work for his current 

employer. He denied that he changed his testimony because of any 

disagreement with Hiope in connection with this grievance (Tr. 

93-94). 

Mr. Feeser confirmed that he stopped the miner into the cut 

in the coal block when someone told him to "stop the miner" (Tr. 

95). He stated that he was told to stop by "Curt (Armstrong) or 

Danny (McGlothlin) or it might have been a buggy man" (Tr. 95). 

Mr. Feeser stated that he "sometimes" takes his safety 

committeeman's position seriously and that he feels some responsibility not to engage in unsafe practices (Tr. 96). He confirmed that he had picked up gob with his miner machine, but 

denied that he cut into the block while using the machine to push 

the gob against the block (Tr. 97). 

Mr. Feeser stated that he spoke with Mr. May when the citation was issued and that he informed Mr. May that he was told to 

cut into the block by Mr. Armstrong (Tr. 98). When asked how far 

he would have to go into the coal block if he were cleaning up 

gob, he replied "maybe a foot" (Tr. 99). He stated that there 

was no need to cut into the block for 10 or 12 feet in order to 

pick up the gob, and when asked why he was told to stop mining, 

he replied "they told me we had an inspector . . • to stop mining, that we was going to set timbers" (Tr. 99). After stopping 

mining, Mr. May came to the section to give his safety talk and 

all operations stopped (Tr. 99). 

Mr. Feeser stated that he made no complaint to anyone that 

he was "about to engage in an unsafe mining practice" and conceded that it should have been his duty as a safety committeeman 

to do so. He confirmed that at the time he spoke with counsel 

Bieger in the mine office, Mr. Bieger did not "bully or scare 

him" in any way (Tr. 100). 

Mr. Feeser stated that he did not know in advance that 

Mr. May was coming to the mine to give a safety talk, and found 

out about it "when he come" (Tr. 102). When he was told to stop 

mining, he was not told that he was to stop because Mr. May was 

going to make a safety talk, and was simply told "stop mining, we 

had an inspector" (Tr. 102). He construed this to mean that the 

inspector "was coming inside and everything better be right." He 

confirmed that he knew the timbers were not set, and when asked 

why he did not refuse to work without the timbers being 

installed, he replied "I don't know. I was told to take the 

miner across the section and start mining," and that he said 

nothing to Mr. Armstrong (Tr. 103). 

325 
Mr. Feeser stated that a "complete cut of coal" would have 

been an area 20 feet by 20 feet, and that he took "half of one 

cut." He ·explained that his machine initially penetrated the 

coal block on one side for a distance of 6 feet deep, backed out, 

and then made another "pass" back into the coal block for approximately a 10 to 12 foot distance, and that the ultimate cut was 

approximately 18 feet wide (Tr. 105-107). 

Mr. Feeser stated that if the roof had fallen while he was 

making the cuts he would have been in danger "if it would have 

run through an intersection," and if the fall did not go through 

the intersection, he would not have been in danger (Tr. 107). He 

stated that no timbers were set before Mr. May came to the cited 

location, and that Mr. May came to the area after completing his 

safety talk. He stated that he simply left the mine machine 

parked into the block of coal, that no one informed Mr. May that 

it was there, and that he came to the face area as part of his 

normal inspection routine (Tr. 109). Mr. Feeser confirmed that 

he was laid off, and not discharged by Hiope, and that his lay 

off had nothing to do with this case (Tr. 110). 

Inspector May was recalled by the Court, and he confirmed 

that although he had previously visited the mine with other 

inspectors, he had been assigned to the mine for regular inspections 4-months prior to the time he issued the contested citation 

in question. He confirmed that there were no prior roof control 

violations at the face areas, and that the mine "didn't usually 

get too many roof control violations," and that he had not previously encountered a situation where coal was cut before the 

timbers were installed. He stated that he did not accept the 

assertion by Hiope that the block of coal had been cut accidentally, and he decided to issue the unwarrantable failure citation 

because he believed that Mr. Feeser was told to cut the coal 

block. When asked why anyone would tell Mr. Feeser to cut the 

coal in violation of the roof-control plan, Mr. May stated 

"obviously, he didn't think I was coming to the mine," and that 

it takes time to set all of the timbers, and "they'd go ahead and 

run and mine that coal and be setting the timbers in the process" 

(Tr. 113). 

Mr. May stated that his inspection notes reflect that 

Mr. Armstrong told him that "by the time we get this row of 

pillars pulled we'll have the timbers installed." Mr. May 

believed that the timbers would have been installed eventually, 

but that the roof-control plan requires them to be installed 

before any coal is mined. He confirmed that he did not attend 

the MSHA violation conference (Tr. 114). He confirmed that he 

has never had any problems with Mr. Armstrong and considered him 

to be a fair person (Tr. 119). 

326 
Mr. May stated that after the citation was issued it took ~n hour to obtain the timbers, and another hour or so to install 

them. Mr. May stated that "anytime you pull a pillar there's a 

danger," and that if part of a coal pillar is pulled without 

first installing timbers there would be a danger because there is 

no way to get in to install timbers because one would have to be 

working in an unsupported roof area, and once the pillar block is 

split through, it is too late to install timbers (Tr. 120). 

Hiope's Testimony and Evidence 

Curtis A. Armstrong stated that he has been employed by 

Hiope as a section foreman for 4 years, has served as a section 

foreman for 16 years, and has worked in underground mines for 

21 years. He stated that on the day in question the pillar 

section was just starting and he planned to begin the cycle of 

pulling the pillars. He stated that he instructed Mr. Feeser to 

take the miner machine to the pillar block of coal which was 

cited and told him that "that was the block that we were supposed 

to start." The gob, or loose debris, had been pushed up to the 

pillar block and needed to be cleaned up (Tr. 124). He believed 

that Mr. Feeser cut into the coal block when he was picking up 

the gob, and turned the machine into the block "and it started 

cutting." He denied that he told Mr. Feeser to start cutting the 

block, and stated that when this occurred he was installing 

curtains or checking the ventilation, and when he returned he 

found that the block had been cut and he stopped Mr. Feeser from 

further cutting (Tr. 126). 

Mr. Armstrong denied that he knew that Mr. May was at the 

mine, and that he learned about his presence while in the process 

of installing timbers. He stated that approximately 50 timbers 

had already been installed that morning by the rest of the section crew, and that after instructing Mr. Feeser to stop cutting, 

he was to help set all of the required timbers before any mining 

was started. Referring to Mr. May's diagram, Mr. Armstrong 

explained where the timbers had already been installed, and where 

he intended to continue installing additional timbers. He denied 

that he intended to mine any blocks of coal without installing 

the timbers (Tr. 128). 

Mr. Armstrong stated that the block of coal was cut at an 

angle, and he estimated that a cut of approximately 10 feet was 

taken, and since the miner was at an angle, the cut could end up 

15 to 18 feet wide. He did not see the miner cutting into the 

block, was not present when it was cutting, and he did not know 

whether it went into the block of coal one or two times (Tr. 

129). It was possible to have a wide cut with one pass of the 

miner because it went in at an angle (Tr. 129). 

Mr. Armstrong stated that since the section was new and just 

starting up, he has to know exactly where to begin starting to 

327 
cut a block of coal once mining began, and that he instructed 

Mr. Feeser to take the miner to the block of coal in question and 

told him "This right here is the block that we will start" 

according to the mining plan (Tr. 130). With regard to the 

statement attributed to him by Inspector May, as reflected in his 

notes, Mr. Armstrong recalled some conversation with Mr. May but 

could not recall exactly what was said. He stated that he told 

Mr. May that "he knew that these timbers would be set there 

before this block was mined" (Tr. 131). He could not recall how 

much time passed from the time he told Mr. Feeser to stop cutting 

and Mr. May's a~rival at the scene (Tr. 131). Everyone on the 

section was installing timbers at the time and no coal was being 

mined. No coal was mined after he told Mr. Feeser to stop 

cutting, and by the time Mr. May arrived, no coal had been mined 

(Tr. 132) . 

Mr. Armstrong stated that timbers were stored underground 

and that 60 timbers had been installed before Mr. May came to the 

area. Approximately 48 additional timbers were subsequently 

installed, and that a sufficient supply of timbers were readily 

available for the entire timbering job (Tr. 134). Mr. Armstrong 

confirmed that he was present in the mine office when Mr. Feeser 

met with counsel Bieger, but he could not recall what was said, 

and did not remember Mr. Feeser stating that he accidentally or 

intentionally cut into the block of coal (Tr. 135). 

On cross-examination, Mr. Armstrong confirmed that he helped 

install some of the timbers while Mr. Feeser was moving the miner 

machine across the section, and that five or six men were on the 

section installing timbers and hanging curtains, and one m~chanic 

was working on a shuttle car (Tr. 137). He estimated that it 

would have taken an hour and a half to 2 hours to install all of 

the timbers on the pillar line (Tr. 141). Given the fact that 

the miner machine has cables and water lines, it would have taken 

Mr. Feeser approximately 40 minutes to move the miner machine 

across the section to the block, a distance of about 280 feet 

(Tr. 144-145). He confirmed that he saw the cut made by the 

machine into the block of coal in question, and that it was 

approximately 10 feet in at the deepest penetration (Tr. 146). 

Mr. Armstrong stated that a "buggy" was parked near the coal 

block in question and a mechanic was working on it when Mr. May 

came to the area, and that the entire block of coal would not 

have been mined out with the buggy parked in that location (Tr. 

148). Mr. Armstrong did not dispute the fact that the 

roof-control plan required that timbers be installed along the 

area cited by Mr. May, and he did not believe that Mr. Feeser had 

to penetrate the coal block as far as he did to pick up gob which 

had been left over and pushed up against the coal block (Tr. 

154) . 

328 
Danny W. McGlothlin, President, Hiope Mining, stated that he 

works underground at the mine everyday overseeing the operation, 

and that he·was working at the mine when the citation was issued. 

He stated that he did not tell anyone to cut into the block of 

coal in question, and he explained that while he was underground 

working "somebody hollered and said there was a mine inspector 

outside." Mr. McGlothlin stated that he proceeded to the outside 

to meet the inspector, and that it took him a half-hour to get to 

the outside, and a half-hour to get back underground. Mr. May 

wanted to give a safety talk, and all of the men were gathered up 

for the talk (Tr. 156). Mr. May then informed him he wanted to 

visit the faces, and after crawling to the area he saw the miner 

machine and informed him that it was a violation of the 

roof-control plan and that he was going to issue "a order over 

it" (Tr. 157). Mr. McGlothlin confirmed that the buggy parked by 

the block of coal in question had broken down on the previous 

night shift, and he believed that Mr. May "had to prq.wl around 

it" (Tr. 158) . 

Mr. McGlothlin confirmed that he was present during the 

meeting in the mine office1with Mr. Feeser and Hiope's counsel 

Bieger, and that Mr. Feeser stated that "he loaded up the loose 

coal and proceeded into the block" (Tr. 160). Mr. McGlothlin 

stated that "I can't recall for sure whether he said it was 

accidental" (Tr. 160). He further stated that he attended the 

MSHA informal conference, which he had requested, and that 

Mr. Feeser was present at this conference and stated that he had 

accidentally cut into the coal block. The statement was made to 

Larry Werrell, the MSHA supervisor conducting the conference, in 

response to a question from Mr. Werrell as to whether he had 

accidentally cut into the coal (Tr. 162). Mr. McGlothlin further 

explained Mr. Feeser's statement as follows at (Tr. 162-163): 

Q. And did he ask Mr. Feeser if he accidentally cut 

into it? 

A. Yes. 

Q. And he replied yes to that? 

A. He replied that he was cleaning up coal and cut 

into the block of coal. And we had done, you know, 

said accidentally, and Mr. Werrell or Mr. Bieger one 

said, "Is that accidentally?" and he said, "Yes." 

Q. But he never actually said, "I accidentally cut 

into the block," did he, or at least you don't remember 

him saying that? 

A. At one time he did say he accidentally cut into the 

block, I do remember that. 

229 
------

Q. Okay. Replying to a question by somebody else? 

A. Yes. 

Mr. McGlothlin agreed that Inspector May could come to the 

conclusion that the roof-control plan was violated when he saw 

that the ~rea where the coal was cut was not completely timbered. 

He confirmed that the citation was served on him and that he 

explained to Mr. May that they were in the process of installing 

the bleeder timbers, that other timbers were brought in, and that 

when they saw that the block of coal had been cut, "we ceased to 

mine" (Tr. 164)~ He also stated that he told Mr. May that it 

"made no sense" to bring him into the mine if he thought that a 

(d) order violation had occurred, and that if they thought this 

would occur, the timbers could have been brought in and set 

before the inspector got there because "I had enough time, if I 

felt like this was going to be a (d) order, to set the timbers" 

(Tr. 164)-.- Mr. McGlothlin confirmed that he did not speak to 

Mr. Feeser that day because he was busy installing timbers. He 

confirmed th~t he explained to Mr. May that Mr. Feeser "was told 

\ to go up and clean up the loose coal and I figured he just cut 

into it cleaning up the loose coal," and that Mr. May replied "I 

have to write a (d) order" (Tr. 165). 

In response to further questions, Mr. McGlothlin stated that 

the coal cut made by Mr. Feeser was made before he left the mine 

to get Mr. May, and that the miner was in the same position when 

he returned with Mr. May. He conceded that he knew at that time 

that there was a roof control violation, but did not think about 

it being a (d) order because timbers were being installed and he 

did not real.i.ze that the miner machine "was in as much as it was" 

(Tr. 167). He also conceded that even though he knew that the 

cut taken was a potential violation, he said nothing to Mr. May 

about it (Tr. 169). 

James C. McGlothlin, mine superintendent, confirmed that he 

was not present when the block of coal was cut, but that he was 

present during the meeting in the mine off ice to discuss the 

matter, and he stated as follows in this regard (Tr. 173-175): 

Q. All right. Do you recall what Aaron Feeser said 

about how the block came to be cut into? 

A. Yes, sir, I do. 

Q. What did he say? 

A. Aaron said they'd cleaned up a section that morning 

and dumped a gob out against the block of coal. And 

they told him to take the miner over and clean up the 

loose coal. And said, "They done told me that the 

block actual we was going to start." Said, "I didn't 

330 
try just to clean the block of coal or the gob up." 

Said, "Whenever the miner started in the coal," said "I 

didn't think it was going to matter because that was 

the block that was going to come out. 11 · 

Q. Did he say whether he intended to cut in there or 

whether it was an accident? 

A. He told us that it was an accident that he cut that 

much. Said he just it went further than he thought. 

Q. All right. Were you also present at the informal 

conference? 

A. Yes, sir. 

Q. Did he testify similarly or differently at the 

informal conference? 

A. He said it was an accident. And I asked Mr. Feeser 

before we even had the meeting what happened because it 

aggravated me that it happened. And he said, "Well," 

said, "Curt didn't tell me to do it. 11 Said, "He come 

down and stopped me." Said, "I just cut a little more 

out of there than I did." 

Q. And after you had that conversation with him that's 

why we had the meeting, right? 

A. That's right. 

Inspector May was recalled, and he questioned 

Mr. Armstrong's assertion that all of his crew, except for a 

mechanic, were installing timbers, because someone had to haul 

the coal cut by Mr. Feeser away from the face area in question. 

He also did not believe that Mr. Danny McGlothlin would have 

known how much coal Mr. Feeser cut because he was outby the 

section when he came to bring him into the mine, and he may not 

have known that the cut had been taken. Mr. May could not recall 

whether the buggy which was parked near the coal block was down 

for maintenance, but this would have made no difference since 

there were other buggies available on the section (Tr. 181). 

Mr. May reiterated that he based his unwarrantable failure 

finding on the fact that Hiope "knew or should have known" that 

coal could not be cut before installing timbers, and that 

Mr. Armstrong was required to check the section every 20 minutes 

and should have stopped Mr. Feeser from cutting "prior to getting 

in there as much as he did" (Tr. 182). Mr. May also considered 

Mr. Feeser's statement that he was told by Mr. Armstrong to take 

the cut, and Mr. Armstrong's statement which he recorded in his 

notes that "By the time we get this block or these blocks mined, 

331 
then we'll have our timbers set" (Tr. 183-184). Mr. May also 

believed th,at "they were going to mine coal to the point they got 

caught up with the timbers" (Tr. 187). 

Docket Nos. VA 89-35-R and VA 89-68 

The section 104(d) (1) "S&S" Citation No. 2969642, issued on 

January 23, 1989, by MSHA Inspector Steven May, citing an alleged 

violation of 30 C.F.R. § 75.400, states as follows (exhibit G-2): 

Float coal dust has been allowed to accumulate on 

previously rock dusted surfaces at the belt conveyor 

entry and connecting crosscuts beginning at the mine 

portal and extending to the 1st return overcast a 

distance of approximately 2,000 1 (feet). This dust is 

very dry and is from o" to 13" · (inches) in depth. 

Citations were issued for the same condition on the 

last AAA inspection. This conveyor entry serves the 

001-0 section. 

The record reflects that Inspector May fixed the abatement 

time as 7:00 a.m., January 24, 1989, but that on January 25, 

1989, he extended the time for abatement to January 26, 1989, 

because "float coal dust was cleaned from around the conveyor. 

However, sufficient inert material was not applied to the 6rosscuts to render float coal dust present inert. More time is 

granted." 

On January 26, 1989, Inspector May extended the abatement 

time. further to January 30, 1989, after verifying that the mine 

ran out of rock dust before the crosscuts were completely rock 

dusted and Hiope experienced a problem in obtaining more rock 

dust from the supplying quarry. He also noted that the mine was 

down because a conveyor belt was being moved, and he granted 

Hiope more time to completely abate the cited conditions. He 

subsequently terminated the citation on January 30, 1989, at 

3:00 p.m., after finding that the cited areas had been cleaned 

and the float coal dust rendered inert by the application of rock 

dust. 

MSHA's Testimony and Evidence 

MSHA Inspector Steven May confirmed that he conducted a 

regular inspection of the mine on January 23, 1989, and issued 

the citation after finding accumulations of float coal dust 

ranging in depth from zero to 13 inches on previously rock dusted 

surfaces along the mine belt conveyor entry and connecting crosscuts from the mine portal to the first return overcast (exhibit 

G-2). He explained that the belt travels through two stoppings 

as it comes to the outside, and that the belt air travels from 

the outside along the belt toward the face. He stated that the 

accumulations were "worse" along the first 400 feet of the number 

332 
one belt, and that he used a mine map to estimate the belt conveyor distance. 

Mr. May stated that in order to reach the 001 section, 

miners had to pass by the cited conveyor belt areas and that the 

belt was required to be examined at least once each day during 

the working shift, and if the mine works two shifts, it must be 

examined twice a day. He stated that the accumulations were 

deeper at the two stopping doors where the air would pick up the 

dust from the belt and deposit it on the floor. He stated that 

the float coal dust was black in color, and that he used a rule 

to measure the 13-inch accumulations at three locations along the 

belt conveyor. The belt and the accumulations were dry, and he 

described the float coal as "black, fine, coal dust." He did not 

consider the accumulated float coal dust to be spillage because 

spillage would be "heavier and granular," and would be deposited 

"straight down" from the belt conveyor. 

Mr. May stated that the float coal dust accumulations constituted a fire and explosion hazard because they could be placed 

in suspension and heat and ignition sources were present. He 

described the ignition sources as the belt conveyor drive motors, 

the conveyor belts and rollers, and electrical cables which would 

be present along the conveyor belt system. He considered the 

float coal dust to be combustible and that the possibility of a 

fire is always present with float coal dust and sources of 

ignition. 

Mr. May stated that the presence of the float coal dust 

increased the likelihood of a fire, and that in the event of a 

fire the hazard would be more severe because of the extent of the 

accumulations. He believed that an accident was highly likely if 

the conditions were allowed to continue without being corrected. 

He did not consider the accumulations to be an imminent danger 

because he saw no visible or readily available heat sources. He 

observed one man inby at the No. 3 belt drive, and eight men were 

on the section. He did not believe that mining was taking place, 

and that in the event of a fire on the section it would travel 

"up the belt" and towards the face area. He also believed that 

the miners would be unable to escape a fire and would suffer 

permanently disabling injuries. 

Mr. May stated that he based his high negligence finding on 

the fact that the violation was repetitious, and that he had 

issued prior coal and float coal accumulation violations of 

section 75.400 during prior inspections of the same belt conveyor 

area. He also confirmed that other inspectors had also issued 

prior violations for the same conditions (exhibits G-6 through 

G-14). Mr. May also considered the fact that management could 

have discovered the accumulations by making the proper daily 

shift examinations. 

333 
Mr. May stated that the accumulations along the first 

400 feet on the No. 1 belt conveyor "possibly" accumulated over a 

period of 1 week, and that the area inby the No. 1 belt where the 

accumulations were 2 inches deep took a month or so to accumulate. In view of the amount of accumulated coal dust he 

observed, he believed that they should have been detected and 

reported by the preshift mine examiner. 

Mr. May drew a sketch of the belt conveyor system which 

extended from the mine portal to the working face, and he 

explained that the distances noted between the four belt sections 

were approximations which he arrived at by reference to the scale 

shown on the mine map which he reviewed. He estimated the distance of the No. 1 belt as 400 feet, and the No. 2 belt as 

1,600 feet (Tr. 13-46). 

Mr. May confirmed that he extended the abatement times after 

returning to the mine and finding that the conditions were 

partially abated and he verified the fact that Hiope was having a 

problem with obtaining rock dust to complete the abatement work 

and were making an effort to complete the job (Tr. 46-53). He 

confirmed that he based his "S&S" finding on his belief that 

there was a reasonable likelihood that an injury, with lost work 

days or restricted duty, would occur (Tr. 53). 

On cross-examination, Mr. May stated that the individual he 

observed at the No. 3 belt drive was there to maintain the belt. 

Mr. May confirmed that he took no float coal dust samples, took 

no pictures, and did not test the "combustibility" of the float 

coal dust. He explained that he cannot test float coal dust, but 

that he did feel it with his hand and kicked it around. He 

observed no dust in the air and did not believe that coal was 

being mined when he observed the conditions. He confirmed that 

he did not tell management not to run any coal, and did not tell 

them that "everything was so dangerous and so hazardous" that he 

did not want any coal run. If he had thought this was the case, 

he would have issued an imminent danger order. He confirmed that 

the float coal dust was deposited on the previously rock dusted 

areas in question (Tr. 53-58). 

Mr. May confirmed that dust is present wherever coal is 

mined, and that during a previous inspection he required Hiope to 

plaster some ventilation brattices to abate a citation which he 

issued. He denied that this action on his part increased the air 

flow over the belt and made any dust problem worse. He believed 

that Hiope had installed some additional curtains on their own 

inside the belt line to help slow down the air, and that he did 

not object to this (Tr. 59). 

In response to further questions, Mr. May confirmed that he 

spoke with Mr. McGlothlin over the phone about the citation and 

that Mr. McGlothlin gave him no explanation with respect to the 

334 
existence of the float coal dust and told him that he "would get 

somebody to work on it" (Tr. 61). Mr. May confirmed that he 

checked the shift book, and it reflected that the belts had been 

"walked" and that the belts "had been made" the day before his 

inspection (Tr. 62). He could not recall any notations in the 

book confirming the existence of the float coal dust, and he 

recalled looking at the book "for several days ahead." He confirmed that all of the cited dust was float coal dust, black in 

color, and that the areas were previously rock dusted to abate a 

prior citation which he had issued. He further confirmed that he 

is not required to take float coal dust samples, did not use a 

sieve, and based his determination that it was float coal dust by 

kicking it and observing it and that "it'll go out in front of 

you when you step on it" (Tr. 65). He confirmed that the float 

coal was dry and that none of it was wet, and he determined that 

it was combustible by its black color (Tr. 65). 

Mr. May confirmed that the No. 2 and No. 4 belt drives were 

equipped with water sprays, and that the No. 3 belt had a chemical type spray (Tr. 66). He also confirmed that he found no 

stuck belt rollers, or the belt out of line, and he considered 

the ignition sources which were present to be potential sources 

of ignition (Tr. 67). He believed that the eight people working 

in the mine would be exposed to a hazard in the event of a belt 

fire because it was the belt closest to the outside (Tr. 68). He 

confirmed that the prior citations issued for float coal and 

loose coal accumulations indicated to him that dust accumulations 

were a problem in the mine (Tr. 69). 

Hiope's Testimony and Evidence 

Mine Superintendent James c. McGlothlin, confirmed that he 

is underground on a daily basis, and that he was present when 

Inspector May conducted his inspection. He disputed Mr. May's 

assertion that there was 2 to 13 inches of coal dust at the belt 

line, but conceded that "right behind the brattices there might 

have been 10 to 11 inches of coal dust" which he attributed to 

the wind which pulling the dust through the brattices where the 

belt travels through (Tr. 71). He described the coal as 

"grains . . • big as your finger and it settles right beside the 

brattice just like a snowstorm, just like a drift, whenever it 

gets to where the air ain't hitting it, it lays down there" (Tr. 

72). He contended that the coal dust was 20 feet behind the 

brattice where it was "probably from 8 to 12 inches," and indicated that "it was coal" rather than float coal dust (Tr. 72). 

Mr. McGlothlin explained the steps taken by management to 

control float coal dust, and stated that the belts are equipped 

with sprays and fire hoses. He contended that the mine had never 

been cited for a violation of its dust-control plan, but conceded 

that there have been problems because of the air velocity going 

through the restricted overcast which "throws a lot of air on the 

335 
belt line" (Tr. 73). He contended that Mr. May and another 

inspector required him to replaster the brattice line, and that 

this holds all of the air on the belt, and that this occurred 

before Mr. May became the "regular inspector" at the mine (Tr. 

74). He further explained his efforts at dealing with the 

problem. He confirmed that Mr. May told him that he was going to 

issue an order because of the dust from the overcast area back 

towards the outside of the mine, and that he assigned men to take 

care of the problem immediately and stopped mining. He contended 

that coal was being run on the belt at the time Mr. May observed 

the conditions, .and that Mr. May told him that he did not need to 

stop running coal and that he would give him time to clean up the 

belt. He stated that after the belt was cleaned, Mr. May refused 

to go back into the mine to check it, and advised him that he 

would return the next day (Tr. 78). 

In response to further questions, Mr. McGlothlin disputed 

the inspector's contention that the float coal dust extended 

2,000 feet along the belt line up to the overcast. He contended 

that his mine maps reflect that the belt line is 1,100 feet up to 

the overcast, and that the coal dust was "backed up about 20 feet 

behind the • • • brattices where it was piled up from 8 to 13 

inches. From the rest on back, it wasn't even enough to shovel. 

All we could do to that was just put dust over it and make it 

white" (Tr. 81). He conceded that the coal dust was black in 

color, that at least 1,000 feet of the belt cited by Mr. May was 

black, and it needed some rock dust (Tr. 82). He confirmed that 

prior ventilation changes were made "to suit three different 

inspectors," and that some of the changes were made "to try and 

help us solve the problem" on a "tough belt line to control" 

because of the amount of air (Tr. 83-84). 

Inspector May was recalled, and he confirmed that he discussed the violation with Mr. McGlothlin, and that he 

(McGlothlin) thought that a (d) order rather than a (d) citation 

would be issued. Mr. May denied that he told Mr. McGlothlin that 

he need not clean up the float coal dust immediately, and he 

stated that no one told him that it had been cleaned up before he 

left the mine (Tr. 94). Mr. May confirmed that he estimated the 

2,000 feet belt line distance from the scale on the mine map, and 

that "it looked like 2,000 feet," but "it may have been 1,00011 

(Tr. 96). He confirmed that the depth of the material "ranged 

from zero to 13 inches" along the entire length of the belt line 

"and tapered out by the time you got to the overcast return" (Tr. 

96) . 

Danny McGlothlin, explained the efforts made to keep the 

coal dust from accumulating on the belt line, the "continuous 

problems" with ventilation on the belt, beginning in June, 1985, 

and the efforts made by state and federal inspectors who have 

suggested ways to control the ventilation (Tr. 103-106). 

336 
Mr. McGlothlin stated that during a state mine inspection 

conducted January 11-13, 1989, the No. 1 and No. 2 belt lines 

were cited for loose coal and float coal dust accumulations, and 

the lack of rock dusting, and that he was with the inspector when 

the citations were issued. He confirmed that no float dust tests 

were made at that time, and that all of the conditions were 

corrected on January 13, 1989, 10 days before Mr. Mays issued the 

contested citation in this case. Mr. McGlothlin did not believe 

that the float coal dust cited by Inspector existed for a month 

along portions of the cited belt because the state inspector "is 

a strict inspector" (Tr. 107). 

Mr. McGlothlin stated that he has always tried to keep two 

men assigned to the belt to keep it clean, and that the certified 

man who has been assigned to the belt for 3 years "knows the 

trouble spots, will not sign the books if the belt is not kept 

up, and each day he cleans the belt." He explained further that 

its impossible to keep the belt clean while coal is being run, 

and that Hiope has done everything possible to try and correct 

the problem, and that its recent efforts at cutting down on the 

ventilation air velocity on the belt had helped. He believed 

that management makes an attempt to keep the belt clean and did 

not believe that its "entirely negligence and we don't try" (Tr. 

109) • 

When asked whether he and the state inspector went into and 

looked at the crosscuts during the state inspection, 

Mr. McGlothlin stated that "me and him crawled up No. 2 belt line 

on the opposite side of the belt and came out the return side" 

(Tr. 110). When asked why the No. 2, No. 3, and No. 4 belts were 

cited by the state inspector if there were problems on the No. 1 

belt, Mr. McGlothlin responded "when you spend a lot of time on 

one, you kind of let the other one just get behind too" (Tr. 

111) . 

Findings and Conclusions 

Docket Nos. VA 89-35-R and VA 89-68 

Fact of Violation - 30 C.F.R. § 75.400 

Hiope is charged with a violation of mandatory safety standard 75.400, for allowing float coal dust to accumulate on previously rock dusted surfaces along the belt conveyor entry and 

connecting crosscuts described by Inspector May. Section 75.400 

provides as follows: 

Coal dust, including float coal dust deposited on 

rock-dusted surfaces, loose coal, and other combustible 

materials, shall be cleaned up and not be permitted to 

accumulate in active workings, or on electric equipment 

therein. 

337 
In Old Ben Coal Company, 1 FMSHRC 1954, 1 BNA MSHC 2241, 

1979 CCH OSHD 24,084 (1979), the Commission held that "the language of the standard, its legislative history, and the general 

purpose of the Act all point to a holding that the standard is 

violated when an accumulation of combustible materials exist," 

1 FMSHRC at 1956. At page 1957 of that decision, the Commission 

also stated that section 75.400 is "directed at preventing accum· 

ulations in the first instance, not at cleaning up the materials 

within a reasonable period of time after they have accumulated." 

See also: MSHA v. c.c.c. Pompey Coal Company, Inc., 2 FMSHRC 

1195 (1980), and 2 FMSHRC 2512 (1980). 

In Back Diamond Coal Company, 7 FMSHRC 1117, 1120 (August 

1985), the Commission stated as follows: 

We have previously noted Congress' recognition that 

ignitions and explosions are major causes of death and 

injury to miners: "Congress included in the Act mandatory standards aimed at eliminating ignition and fuel 

sources for explosions and fires. [Section 75.400] is 

one of those standards." Old Ben Coal Co., 1 FMSHRC 

1954, 1957 (December 1979). We have further stated 

"[i]t is clear that those masses of combustible materials which could cause or propagate a fire or explosion are what Congress intended to proscribe." Old Ben 

Coal Co., 2 FMSHRC 2806, 2808 (October 1980). The goal 

of reducing the hazard of fire or explosions in a mine 

by eliminating fuel sources is effected by prohibiting 

the accumulation of materials that could be the originating sources of explosions or fires and by also 

prohibiting the accumulation of those materials that 

could feed explosions or fires originating elsewhere in 

a mine. 

I conclude and find that Inspector May's credible testimony 

establishes the existence of float coal dust accumulations 

deposited on previously rock dusted surfaces along a rather 

extensive area of the cited belt conveyor in question. Mr. May's 

confirmed that he measured the depth of the accumulations with a 

rule at three locations and estimated the depth of the rest of 

coal dust by observation. He visually observed the accumulations, which he described as dry "black, fine, coal dust," and 

while he did not test it with a sieve, he felt it with his hand 

and kicked it around to confirm his visual observations that the 

black coal dust was in fact float coal dust which he believed is 

combustible. 

Although superintendent James McGlothlin disputed the 

accuracy of Inspector May's estimate of the length of the conveyor belt, the depths of some of the accumulations, and believed 

that some of the accumulations were loose coal rather than float 

338 
coal dust, Mr. McGlothlin nonetheless confirmed that coal dust 

was present behind the brattices where it was backed up for some 

20 feet at depths ranging from 8 to 13 inches, and that the coal 

dust which had accumulated along at least 1,000 feet of the belt 

cited by Mr. May was black in color, needed rock dust, and had 

not been cleaned. 

Danny McGlothlin took issue with Inspector May's estimate as 

to how long the accumulations had existed prior to his inspection, and I find nothing in his testimony to rebut the inspector's testimony that the float coal accumulations did in fact 

exist at the time Mr. Mays observed them. 

On the facts of this case, the fact that the inspector did 

not sample the float coal dust is irrelevant to any determination 

of a violation of section 75.400. The inspector's credible and 

unrebutted testimony establishes the existence of a significant 

amount of accumulated dry float coal dust which was black in 

color over a rather extensive area, and I conclude.and find that 

the inspector's observations, coupled with his feeling and kicking the float coal dust around is sufficient enough to establish 

a violation. See: Kaiser Steel Corp., 3 IBMA 489 (1974); Pyro 

Mining Company, 7 FMSHRC 1415 (September 1985) ; Helvetia Coal 

Company, 7 FMSHRC 1613 (October 1985). 

In view of the foregoing, I conclude and find that MSHA has 

established by a preponderance of the evidence that the accumulations of float coal dust as described by Inspector May were 

allowed to accumulate and were not cleaned up as required by 

section 75.400. Accordingly, the violation IS AFFIRMED. 

Docket Nos. VA 89-36-R and VA 89-69 

Fact of Violation - 30 C.F.R. § 75.220 

Hiope is charged with a violation of mandatory safety standard 30 C.F.R. § 75.220, for failing to install roof support 

timbers at the cited pillar block which had been cut by the 

continuous-miner operator. Hiope's approved roof-control plan 

required the installation of timbers at the cited pillar location 

before any mining commenced, and Hiope does not dispute the fact 

that the required roof support timbers were not installed as 

required. Section 75.220 requires a mine operator to follow its 

roof-control plan. 

The credible and unrebutted testimony of Inspector May 

clearly supports a violation of section 75.220. Accordingly, the 

violation IS AFFIRMED. 

339 
significant and Substantial Violations 

A "significant and substantial" violation is described in 

section 104(d) (1) of the Mine Act as a violation "of such nature 

as could significantly and substantially contribute to the cause 

and effect of a coal or other mine safety or health hazard." 

30 C.F.R. § 814(d) (1). A violation is properly designated significant and substantial "if, based upon the particular facts 

surrounding the violation there exists a reasonable likelihood 

that the hazard contributed to will result in an injury or illness of a reasonably serious nature." Cement Division, National 

Gypsum Co., 3 FMSHRC 822, 825 (April 1981). 

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

commission explained its interpretation of the term "significant 

and substantial" as follows: · 

In order to establish that a violation of a mandatory safety standard is significant and substantial 

under National Gypsum the Secretary of Labor must 

prove: (1) the underlying violation of a mandatory 

safety standard; (2) a discrete safety hazard--that is, 

a measure of danger to safety-contributed to by the 

violation; (3) a reasonable likelihood that the hazard 

contributed to will result in an injury; and (4) a 

reasonable likelihood that the injury in question will 

be of a reasonably serious nature. 

In United States Steel Mining Company, Inc., 7 FMSHRC 1125, 

1129, the Commission stated further as follows: 

We have explained further that the third element 

of the Mathies formula "requires that the Secretary 

establish a reasonable likelihood that the hazard 

contributed to will result in an event in which there 

is an injury." U.S. Steel Mining Co., 6 FMSHRC 1834, 

1836 (August 1984). We have emphasized that, in accordance with the language of section 104(d) (1), it is the 

contribution of a violation to the cause and effect of 

a hazard that must be significant and substantial. 

U.S. Steel Mining Company, Inc., 6 FMSHRC 1866, 1868 

(August 1984); U.S. Steel Mining Company, Inc., 

6 FMSHRC 1573, 1574-75 (July 1984). 

The question of whether any particular violation is significant and substantial must be based on the particular facts 

surrounding the violation, including the nature of the mine 

involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498 

(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007 

(December 1987). 

340 
Violation of 30 C.F.R. § 75.400 

The credible evidence adduced by MSHA establishes the existence of the dry and black coal dust which was deposited on top 

of previously rock dusted surfaces along the belt conveyor system 

locations described by the inspector. These accumulations ranged 

in depths of o to 13 inches, and they were located in belt conveyor areas which included potential sources of ignition. The 

inspector described these ignition sources as a belt conveyor 

drive motor, the belts and rollers, and electrical cables. Since 

miners travelled through the cited conveyor belt location and 

worked on the section on a daily basis, and the belt was on an 

intake air course, the inspector believed that in the event of a 

belt fire, smoke would course through the area towards the working face areas where miners would be working, and they would be 

exposed to fire and smoke hazards, and possible entrapment. If a 

fire were to occur, it would be reasonably likely that the miners 

would be exposed to these hazards and suffer permanently disabling injuries of a reasonably serious nature. 

I conclude and find that the inspector's credible testimony 

establishes that the float coal dust accumulations in question, 

which I believe one may assume were combustible, located in areas 

where potential ignition sources were present, presented a discrete fire and smoke hazard, and possibly an explosion hazard. 

The inspector's belief that no coal was being mined or transported on the belt at the time of his observations of the float 

coal dust conditions was disputed by superintendent James 

McGlothlin who believed that the belt conveyor was in operation. 

If this were true, and the belt was running with coal, I believe 

that the hazard presented by the existence of float coal dust 

along a rather extended area of the belt conveyor, with potential 

ignition sources present would be increased. Any frozen or stuck 

belt roller, or malfunctions of the electrical cables or belt 

drive motors would provide a ready source of heat or friction to 

ignite the float coal dust and propagate a fire. 

The fact that the conveyor belt may not have been in operation at the precise moment the inspector made his inspection and 

observed the conditions does not affect the hazards which one may 

reasonably conclude existed. In the normal course of mining with 

the belt running, the miners working on the section would be 

exposed to fire, smoke, and explosion hazards of a reasonably 

serious nature. Under all of these circumstances, I conclude and 

find that the violation was significant and substantial, and the 

inspector's finding in this regard IS AFFIRMED. 

Violation of 30 C.F.R. § 75.220 

Hiope does not dispute the fact that the pillar coal block 

was in fact cut, and that coal was removed from the block, without first installing the roof support timbers required by the 

341 
roof-control plan. I agree with the inspector's credible testimony that there is always a danger of a roof fall where coal 

pillars are mined without adequate roof support, and that the 

increased stress placed on the roof by the lack of timbering 

increases the likelihood of a roof fall. 

The inspector's unrebutted credible testimony establishes 

that the taking of a cut of coal without first installing roof 

support timbers exposed the continuous-miner operator to the 

danger of a roof fall, and that in the event the miner operator 

continued to cut the coal block without timbers being installed, 

a roof fall was reasonably likely. If a roof fall had occurred, 

I believe it was reasonably likely that the miner operator would 

have sustained injuries of a reasonably serious nature. 

The fact that the continuous-miner operator may not have 

been under unsupported roof while at the controls of his machine 

does not less€n the hazard exposure. The inspector reasonably 

concluded that the unsupported roof area in question could have 

broken out and fallen back beyond the end of the unsupported coal 

block while it was being cut, and exposed the miner operator to a 

roof fall hazard. Indeed, in this case, the miner operator 

believed that he would be exposed to a danger if the roof had 

fallen and extended out through the pillar intersection. 

The Commission has taken note of the fact that mine roofs 

are inherently dangerous and that even good roof can fall without 

warning. Consolidation Coal Company, 6 FMSHRC 34, 37 (January 

1984). It has also stressed the fact that roof falls remain the 

leading cause of death in underground mines, Eastover Mining Co., 

4 FMSHRC 1207, 1211 & n. 8 (July 1982); Halfway Incorporated, 

8 FMSHRC 8, 13 (January 1986); Consolidation Coal Company, supra. 

In the Consolidation Coal Company case, supra, the 

Commission affirmed my "S&S" finding concerning an over-wide roof 

bolting pattern which had existed along a supply track for a 

period of 6-months, and stated that "[T]he fact that no one was 

injured during that period does not ipso facto establish that 

there was not a reasonable likelihood of a roof fall." 

In U.S. Steel Mining Company, Inc., 6 FMSHRC 1369, 1376 (May 

1984), Judge Melick found that a hazardous roof condition was 

significant and substantial notwithstanding testimony from a mine 

foreman that it was unlikely that the roof would fall "right 

away," and his belief that the condition was not unsafe because 

he and the inspector were under the roof while taking certain 

measurements. In RB J Coal Company, Inc., 8 FMSHRC 819, 820 

(May 1986) , Judge Melick cited Mathies Coal Company, 6 FMSHRC 1 

(1984), in support of his finding that a hazardous roof condition 

constituted a significant and substantial violation even in the 

absence of an "immediate hazard." 

342 
In Halfway Incorporated, supra, the Commission upheld a 

significant and substantial finding concerning a roof area which 

had not been supported with supplemental support, and ruled that 

a reasonable likelihood of injury existed despite the fact that 

miners were not directly exposed to the hazard at the precise 

moment of the inspection. In that case, the Commission stated as 

follows at 8 FMSHRC 12: 

[T]he fact that a miner may not be directly exposed to 

a safety hazard at the precise moment that an inspector 

issues a citation is not determinative of whether a 

reasonable likelihood for injury existed. The operative time frame for making that determination must take 

into account not only the pendency of the violative 

condition prior to the citation, but also continued 

normal mining operations. National Gypsum, supra, 

3 FMSHRC at 825; U.S. Steel Mining Co., Inc., 6 FMSHRC 

1573, 1574 (July 1984). 

In view of the foregoing findings and conclusion, I conclude 

and find that the violation was significant and substantial, and 

the inspector's finding in this regard IS AFFIRMED. 

The Unwarrantable Failure Issues 

The governing definition of unwarrantable failure was 

explained in Zeigler Coal Company, 7 IBMA 280 (1977), decided 

under the 1969 Act, and it held in pertinent part as follows at 

295-96: 

In light of the foregoing, we hold that an inspector should find that a violation of any mandatory 

standard was caused by an unwarrantable failure to 

comply with such standard if he determines that the 

operator involved has failed to abate the conditions or 

practices constituting such violation, conditions or 

practices the operator knew or should have known 

existed or which it failed to abate because of a lack 

of due diligence, or because of indifference or lack of 

reasonable care. 

In several recent decisions concerning the interpretation 

and application of the term "unwarrantable failure," the 

Commission further refined and explained this term, and concluded 

that it means "aggravated conduct, constituting more than ordinary negligence, by a mine operator in relation to a violation of 

the Act." Energy Mining Corporation, 9 FMSHRC 1997 (December 

1987); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007 (December 

1987); Secretary of Labor v. Rushton Mining Company, 10 FMSHRC 

249 (March 1988). Referring to its prior holding in the Emery 

343 
Mining case, the Commission stated as follows in Youghiogheny & 

Ohio, at 9 FMSHRC 2010: 

We stated that whereas negligence is conduct that 

is "inadvertent," "thoughtless" or "inattentive," 

unwarrantable conduct is conduct that is described as 

"not justifiable" or "inexcusable." Only by construing 

unwarrantable failure by a mine operator as aggravated 

conduct constituting more that ordinary negligence, do 

unwarrantable failure sanctions assume their intended 

distinct place in the Act's enforcement scheme. 

In Emery Mining, the Commission explained the meaning of the 

phrase "unwarrantable failure" as follows at 9 FMSHRC 2001: 

We first determine the ordinary meaning of the 

phrase "unwarrantable 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) 

("Webster's"). Comparatively, negligence is the 

failure to use such care as a reasonably prudent and 

careful person would use and is characterized by 

"inadvertence," "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. * * * 

Violation of 30 C.F.R. § 75.400 

MSHA argues that the violation resulted from a high degree 

of negligence on the part of Hiope, and that due to the egregious 

nature of the violation, MSHA concludes that it has established 

that the violation resulted from Hiope's unwarrantable failure to 

comply with the requirements of section 75.400. In support of 

its conclusion, MSHA relies on the testimony of the inspector 

which reflects his opinion that in some areas where the float 

coal dust was up to 13 inches in depth, it could have accumulated 

over a period of at least a week, and that in other areas where 

there was less air, and where it had accumulated to depths of 

2 inches, it would have taken over a month for the float coal 

dust to accumulate. 

MSHA asserts that since the belt line in question is subject 

to at least one inspection a day, Hiope should have observed the 

float coal dust conditions and cleaned them up. MSHA points out 

that the mine had a history of coal dust accumulation problems 

and similar prior violations were issued at the same belt area 

for the same conditions as those cited by Inspector May, and that 

Hiope's management acknowledged its awareness of the problem. 

344 
waited until its rock dust supplies were exhausted before ordering more (Tr •. 120-122). 

Hiope denies that it has exhibited a high degree of negligence with respect to the violation. It takes the position that 

it cannot be held accountable "for every bit of float dust," and 

that it has attempted to control float coal dust and has done 

everything that it has been asked to do to control it. Hiope 

disputes the accuracy of the inspector's belief that the accumulations had existed for a month, and it points to the fact that a 

state mine inspection report reflects that as late as 10 days 

before the inspection, the state inspector found the cited area 

to be "all clear" (Tr. 129-130). 

Hiope's witness, Danny McGlothlin disputed the inspector's 

estimates that the float coal accumulations along the first 

400 feet of the No. 1 belt had possibly accumulated over a period 

of 1 week, and that the area inby that location took possibly a 

month for the float coal dust to accumulate. Mr. McGlothlin 

stated that during a prior state inspection, the No. 1 belt was 

cited for loose coal and float coal dust accumulations, and lack 

of rock dust, during an inspection on January 11-13, 1989, and 

that the accumulations were cleaned up on January 13, 1989, 

10-days prior to the inspection by Mr. May. With regard to the 

areas where Mr. May believed the accumulations existed for 

possibly a month, Mr. McGlothlin's basis for disputing Mr. May's 

belief was that the state inspector was "strict." 

Hiope did not offer the state mine inspection report that it 

alluded to, and in my view, Mr. McGlothlin's testimony at best 

reflects that the last time the conveyor belt was cleaned was 

10-days prior to the inspection conducted by Inspector May on 

January 23, 1989. I cannot conclude that this rebuts the inspector's belief that the accumulations had probably existed for at 

least a week. Indeed, Mr. McGlothlin's testimony corroborates 

the inspector's testimony. Mr. McGlothlin•s characterization of 

the State inspector as "strict" falls short of credible testimony 

rebutting the MSHA inspector's testimony that the remaining float 

coal conditions accumulated over a period of a month. Hiope does 

not dispute the fact that the cited belt conveyor belt was not 

cleaned, and it presented no evidence to establish when the belt 

was last cleaned up and rock dusted. 

With regard to Hiope's contention that it had difficulty 

obtaining an adequate supply of rock dust, I reject this as a 

defense. Although I do not dispute the difficulty which was 

verified by the inspector, it is incumbent on Hiope to insure 

that it maintains an adequate supply of rock dust to stay in 

compliance with the requirements of the regulations. Further, 

Hiope has not established that it could not obtain adequate 

345 
supplies of rock dust from sources other than the quarry which 

was experiencing a production problem. 

Hiope did not dispute the fact that prior violations were 

issued by MSHA inspectors for violations of section 75.400 

because of float coal dust and loose coal accumulations along the 

same belt conveyor location. Copies of the previous violations 

reflects that Inspector May issued two prior citations for violations of section 75.400, because of float coal dust accumulations 

on the No. 1 belt conveyor on March 14 and November 14, 1988 

(exhibits G-6 and G-13). He also issued seven additional citations for accumulations of dry loose coal and float coal dust on 

the Nos. 2, 3, and 4 belts during March, May, and November, 1988 

(exhibits G-7 through G-12, and G-14). 

After careful review of all of the testimony and evidence 

adduced with respect to this violation, I conclude and find that 

MSHA has established by a preponderance of the evidence that the 

violation was indeed the result of Hiope's unwarrantabl~ failure 

to comply with the requirements of section 75.400. I take note 

of Danny McGlothlin's tacit admission that he sometimes "got 

behind" in insuring that the belts were cleaned up of accumulated 

float coal dust accumulations. I conclude and find that the 

evidence establishes that the float coal accumulations had 

existed for some time prior to the inspection without any effort 

by Hiope to clean them up. Coupled with the prior citations, 

which were issued relatively close in time to the violation 

issued by Inspector May on January 23, 1989, for identical float 

coal dust conditions, I conclude and find that Hiope's failure to 

clean up the accumulations constituted a serious lack of reasonable care in failing to take any action to clean up the accumulations. I further conclude and find that Hiope demonstrated 

indifference and a lack of due diligence in failing to correct 

the cited conditions, and that its failure to act demonstrated 

aggravated conduct which clearly supports the inspector's unwarrantable failure finding in this case. Accordingly, the inspector's finding is affirmed, and the contested section 104(d) (1) 

citation IS AFFIRMED. 

Violation of 30 C.F.R. § 75.220 

MSHA argues that the violation was the result of an unwarrantable failure by Hiope because the continuous-miner operator, 

Mr. Feeser, was instructed by his section foreman, Mr. Armstrong, 

to begin cutting the coal pillar in question before roof pillars 

were installed at that location. 

With regard to Mr. Feeser's testimony, and the question of 

whether he changed his alleged prior statements that he cut into 

the block of coal accidentally, MSHA asserts that at the time of 

the inspection, Mr. Feeser told Inspector May that he was 

instructed to take the continuous-mining machine across the 

346 
section and start cutting, and that this prior statement by 

Mr. Feeser is consistent with his testimony during the hearing 

(Tr. 123-125). 

Hiope argues that MSHA's conclusion that the violation 

constituted an unwarrantable failure rests on continuous-miner 

operator Feeser's testimony that he was instructed by foreman 

Armstrong to take the continuous miner to the coal block in 

question and to begin cutting the coal. However, Hiope contends 

that Mr. Feeser's testimony has been discredited in that he has 

given inconsistent testimony and did not completely admit or deny 

that he had made previous statements that he had cut into the 

block of coal accidentally, and Hiope's witnesses have attested 

to the fact that Mr. Feeser has given inconsistent testimony. 

Hiope suggests that since Mr. Feeser was laid off by Hiope 

and filed a grievance in the matter he is a biased witness whose 

testimony is not credible. Further, Hiope asserts that it would 

be "insane" for Hiope to mine the pillars without supporting the 

roof, that it never intended to do so, and that the shuttle car 

which was broken down would have been in the way of any mining. 

Hiope concludes that MSHA's position is simply flawed (Tr. 

127-129). 

Continuous-miner operator Feeser testified that section 

foreman Armstrong instructed him to take the mining machine to 

the cited pillar location and to "start the first block" of coal. 

Mr. Armstrong confirmed that he instructed Mr. Feeser to take the 

machine to that location, but he stated that he simply pointed 

out to Mr. Feeser that the block of coal in question would .be the 

initial starting point to begin cutting once the mining cycle was 

begun. 

Mr. Armstrong stated further that some coal gob or debris 

left over from previous mining had been pushed up and against the 

coal block in question and that it needed to be cleaned up. He 

believed that Mr. Feeser cut into the coal block while cleaning 

up the gob and turned his machine into the block and it started 

cutting. He denied that he instructed Mr. Feeser to start 

cutting and mining the block of coal in question, and his 

unrebutted testimony establishes that when he observed that 

Mr. Feeser had cut into the block, he instructed him to stop any 

further cutting, and to help install all timbers before starting 

any mining. 

Mr. Feeser, who was a safety committeeman, and who acknowledged that he was familiar with the roof-control plan, admitted 

that when he attended a meeting at the mine office, he told 

Hiope's counsel that he had accidentally cut into the coal block. 

Although he denied that Mr. Armstrong instructed him to clean up 

the gob which was against the block, Mr. Feeser admitted that 

during an informal violation conference with MSHA, he confirmed 

347 
that he was in fact cleaning up the gob with his machine, and he 

also confirmed that this was the case during his hearing 

testimony. 

Mr. Feeser denied that he made any statement during the MSHA 

conference that he had accidentally cut into the coal block while 

cleaning up the gob. When pressed further on this question, he 

stated that he was never asked a direct question as to whether or 

not he accidentally cut into the coal block, and did not volunteer any such information. 

During his direct testimony, Inspector May testified that 

when he spoke with Mr. Armstrong at the time the order was 

issued, he could not recall specifically asking Mr. Armstrong for 

an explanation as to why the cut was made before any roof support 

was installed. However, on cross-examination, Mr. May acknowledged that Mr. Armstrong told him that Mr. Feeser had accidentally cut into the coal block while cleaning the gob. 

Mr. Armstrong could not recall what was said during his conversation with Inspector May, and he acknowledged telling Mr. May that 

he knew that the timbers would be set before the.block of coal 

was mined. 

Hiope's witness Danny McGlothlin, testified that he was 

present during the meeting in the mine off ice after the order was 

issued, and he confirmed that while he was not certain that 

Mr. Feeser stated that the coal cut was accidental, Mr. Feeser 

admitted that he loaded up the loose coal gob and "proceeded into 

the block." Mr. McGlothlin further confirmed that he was present 

during the informal MSHA conference, and that Mr. Feeser acknowledged that he had accidentally cut into the coal block. 

Mr. McGlothlin also confirmed that when it was discovered that 

Mr. Feeser had cut into the coal block, all further mining 

ceased. 

Mine Superintendent James McGlothlin confirmed that he was 

also present at the meeting in the mine off ice after the order 

was issued, and that Mr. Feeser admitted that he had accidentally 

cut too much out of the block of coal while cleaning up the gob, 

but that he did not think it would matter because the block of 

coal was going to be mined out. Mr. McGlothlin stated further 

that prior to the meeting, Mr. Feeser acknowledged to him that 

Mr. Armstrong did not i~str:c~ him to begin the cut into the coal 

block in question, and that Mr. Feeser stated "I just cut a 

little more out of the2'.:'e than I did." 

Inspector May confirmed that Hiope had no prior roof control 

violations at the :ace a~~as, and that he had not previously 

encountered a s~tu~ti0n where coal was cut before roof timbers 

were installed. Mr. May further confirmed that he never had any 

problems with section foreman Armstrong and considered him to be 

a fair person. 

348 
Inspector May confirmed that he based his unwarrantable 

failure finding on Mr. Feeser's statement that Mr. Armstrong 

instructed him to take the miner and proceed to cut the coal 

block, and on Mr. Armstrong's statement, as reflected in his 

notes, that "by the time we get this block or these blocks mined, 

then we'll have our timbers set. 11 Mr. May also believed that 

Hiope "knew or should have known" that coal could not be cut 

before first installing timbers, and that Mr. Armstrong should 

have stopped Mr. Feeser from cutting as much as he did earlier 

because he was required to check the section every 20 minutes. 

After careful review of all of the evidence and testimony in 

this case, I cannot conclude that MSHA has established an unwarrantable failure violation by a preponderance of the credible 

evidence. I find that Hiope's testimony is more credible than 

Mr. Feeser's with respect to the accidental cutting of the block, 

and I believe and accept as credible Mr. Armstrong's assertion 

that he did not instruct Mr. Feeser to cut the coal block before 

the timbers were installed, and that he only informed him where 

he was to start his cut once the timbers were installed and the 

mining cycle has begun. 

I find Mr. Feeser's testimony and denials that he accidentally cut into the coal block to be contradictory and lacking in 

credibility. Mr. Feeser's initial admission and acknowledgement 

that he had previously stated that he accidentally cut into the 

block of coal was corroborated by Danny and James McGlothlin, and 

I find them to be credible witnesses. 

I take note of the fact that Mr. Feeser was a member of the 

safety committee and was aware of the roof-control plan requirement for timbering before cutting any coal. Although he denied 

that his lay off and grievance colored his testimony against 

Hiope, I believe that Hiope's assertion that Mr. Feeser was a 

biased witness has a ring of truth about it. I believe that 

Mr. Feeser cut into the coal block while in the process of cleaning up the gob, and that he cut more coal than he had initially 

intended to take while cleaning up the gob, and stopped cutting 

and left the machine sumped up into the coal block after 

Mr. Armstrong observed what he had done and stopped him. 

After careful review of all of the testimony and evidence in 

this case, I cannot conclude that MSHA has established by a 

preponderance of the evidence that the cutting of the coal block 

in question before adequate roof supports were installed resulted 

from a lack of diligence, or from indifference amounting to 

aggravated conduct. To the contrary, I find Mr. Armstrong's 

testimony and explanation with respect to his instructions to the 

continuous-miner operator to be believable and credible. Accordingly, the inspector's unwarrantable failure finding IS VACATED, 

349 
and the contested section 104(d) (1) order IS MODIFIED to a section 104(a) citation, with special significant and substantial 

(S&S) findings, and the citation is AFFIRMED AS MODIFIED. 

Size of Business and Effect of Civil Penalty Assessments on the 

Respondent's Ability to Remain in Business 

The parties stipulated that Hiope is a small mine operator 

and that the imposition of civil penalty assessments for the 

violations in question will not adversely affect its ability to 

continue in business. I adopt these stipulations as my findings 

and conclusions on these issues. 

History of Prior Violations 

MSHA's computer print-out reflects that during the period 

January 23, 1987 through January 22, 1989, Hiope paid civil 

penalty assessments in the amount of $8,177, for 105 violations, 

17 of which are for violations of section 75.400. Although 

Inspector May testified that he was unaware of any prior roof 

control violations concerning facts similar to those in this 

case, the print-out reflects three prior violations of section 

75.220 (exhibit G-3). A computerized MSHA "Proposed Data Sheet" 

reflects that for a 4-year period encompassing 1986 through 

May 12, 1989, Hiope's mine was inspected a total of 185 days, and 

that it received 152 assessed violations during these inspections. Although Hiope's compliance record may not be particularly good for an operation of its size, I cannot conclude that 

it is such as to warrant any additional increases in the civil 

penalties which I have assessed for the violations which have 

been affirmed. 

Gravity 

For the reasons stated in my S&S findings with respect to 

the violations which I have affirmed, I conclude and find that 

both violations were serious. 

Negligence 

In view of my unwarrantable failure findings with respect to 

the violation of section 75.400, I conclude and find that it 

resulted from a high degree of negligence on the part of Hiope. 

With respect to the violation of section 75.220, I conclude and 

find that it resulted from Hiope's failure to exercise reasonable 

care, and that this amounts to ordinary negligence. 

Good Faith Compliance 

I conclude and find that Hiope exercised good faith compliance in timely abating the conditions cited with respect to 

both violations. 

350 
Civil Penalty Assessments 

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 the following civil penalty assessments for the violations which I have affirmed are reasonable and 

appropriate: 

citation No. 30 C.F.R. Section Assessment 

2969654 

2969642 

03/06/89 

01/23/89 

ORDER 

75.220 

75.400 

$ 400 

$1,000 

Hiope Mining, Inc., IS ORDERED to pay civil penalty assessments in the amounts shown above within thirty (30) days of the 

date of these decisions, and upon receipt of payment by the 

petitioner, these proceedings are dismissed. 

/cte'-frge'A ~~~~d~-;_, ~ Koutras 

Administrative Law Judge 

Distribution: 

Roberts. Wilson, Esq., Office of the Solicitor, U.S. Department 

of Labor, Ballston Towers #3, 4015 Wilson Boulevard, Suite 516, 

Arlington, VA 22203 (Certified Mail) 

Daniel R. Bieger, Esq., Copeland, Molinary & Bieger, P.O. 

Box 1296, Abingdon, VA 24210 (Certified Mail) 

/fb 

351 
352 
ADMINISTRATIVE LAW JUDGE ORDERS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280. 1244 SPEER BOULEVARD 

DENVER, CO 80204 

February 1, 1990 

EMERY MINING CORPORATION 

AND/OR UTAH POWER & LIGHT 

COMPANY, 

Contestants 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

and 

UNITED MINE WORKERS OF 

AMERICA, ( UMWA) , 

Intervenor 

CONTEST PROCEEDINGS 

Docket No. WEST 87-130-R 

Citation No. 2844485; 3/24/87 

Docket No. WEST 87-131-R 

Order No. 2844486; 3/24/87 

Docket No. WEST 87-132-R 

Order No. 2844488; 3/24/87 

Docket No. WEST 87-133-R 

Order No. 2844489; 3/24/87 

Docket No. WEST 87-144~R 

: Order No. 2844795; 3/24/87 . . Docket No. WEST 87-145-R 

Order No. 2844796; 3/24/87 

Docket No. WEST 87-146-R 

Order No. 2844798; 3/24/87 

Docket No. WEST 87-147-R 

Order No. 2844800; 3/24/87 

Docket No. WEST 87-150-R 

Order No. 2844805; 3/24/87 

Docket No. WEST 87-152-R 

: Order No. 2844807; 3/24/87 

Docket No. WEST 87-153-R 

Order No. 2844808; 3/24/87 

Docket No. WEST 87-156-R 

Order No. 2844813; 3/24/87 

Docket No. WEST 87-157-R 

Order No. 2844815: 3/24/87 

: Docket No. WEST 87-160-R 

Order No. 2844822; 3/24/87 . . 

353 

Docket No. WEST 87-161-R 

Order No. 2844823; 3/24/87 

Docket No. WEST 87-248-R 

Citation No. 2844835; 8/13/87 

Wilberg Mine 

Mine I.D. No. 42-00080 
SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATr°01'1 (MSHA), 

Petitioner 

v. 

EMERY MINING CORPORATION, and 

ITS SUCCESSOR-IN-INTEREST 

UTAH POWER & LIGHT COMPANY, 

MINING DIV., 

Respondent 

and 

UNITED MINE WORKERS OF 

AMERICA ( UMWA) , 

Intervenor 

. . CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 87-208 

: A.C. No~ 42-00080-03578 

Docket No. WEST 87-209 

: A.C. No. 42-00080-03579 

. . 

. . 

. . 

. . 

Docket No. WEST 88-25 

A.C. No. 42-00080-03584 

Wilberg Mine 

Consolidated 

ORDER 

The issue presented here is whether the hearing in the above 

cases, now scheduled to commence on March 13, 1990, in Price, Utah 

should be rescheduled until after May 31, 1990. 

Emery Mining Corporation (Emery) has filed a motion seeking 

the continuance. Secretary opposes and Intervenor did not state 

a position. 

In support of its motion Emery states as follows: 

That after the Wilberg Mine fire wrongful death claims were 

made against Utah Power & Light Company CUP&L). Some of UP&L's insurance carriers refused to contribute and UP&L sought reimbursement 

from certain carriers. After the fire UP&L also brought a product 

liability action against manufacturers of equipment involved in 

the fire. The equipment manufacturers impleaded Emery as a third 

party defendant. 

The case involving UP&L, UP&L's property insurance carriers, 

the equipment manufacturers and Emery, the "products case", is 

scheduled to begin trial on April 23, 1990, in the Fourth Judicial 

District Court of Utah County in Provo. 

With the addition of accrued interest, the total amount at 

issue in the products case exceeds $100,000,000. 

The cases pending before the Presiding Judge involve allegations resulting from MSHA's investigation of the Wilberg fire. 

Since the focus of the products case will be directed at the events 

of the fire, it is likely.the media will attend the trial and fully 

report the proceedings. In short, the penalty cases if tried in 

March will be a "warm-up" for publicity on the products case. 

354 
The expected media coverage of the Commission cases may 

prejudice the parties in the products case (where hearsay is inadmissible)" and it could be difficult to impanel an impartial 

jury in the products case. 

Further, media representatives are expected to seek interviews with counsel, government and company officials. In 

addition, television and still photography may be requested in 

the courtroom during the trial. 

The trial of the MSHA cases after the completion of the 

products case remove the problems connected with pre-trial publicity and should ameliorate possible media disruption and will 

remove any barrier to rapid efficient disposition of the pending 

cases or to their settlement. 

The Secretary opposes Emery's motion. 

The Secretary states as follows: she believes it was appropriate to stay the hearing during the period of the criminal 

referral. However, the Secretary urges it is time to resolve 

this matter without further delay. 

The Secretary believes it is unfair to the families of the 

victims, as well as those in management, labor and government who 

participated in the investigation and recovery effort and to the 

general public to continue the hearing. 

Potential harm in a third party law suit should not be a 

factor in determining a continuance here. It is urged that ample 

procedural and evidentiary rules exist in state courts and state 

tort laws to protect the interest of the parties in that case. 

The Secretary further urges that prompt resolution of the 

pending Commission cases will serve as a deterrent to former 

employees of Emery, now working for UP&L, other nearby mines and 

to the general mining community. It is contended this will 

encourage safe mining operations -- the underlying purpose of 

the Act. 

Since Commission proceedings are public hearings the 

potential presence of the press should not be a basis for a 

continuance. 

Finally, these proceedings before the Commission were filed 

long before the third party suit involving Emery. 

In short, the Secretary urges that judicial efficiency 

supports going forward rather than adding to further delay and 

fading memories. 

355 
Discussion 

Whether a continuance should be granted or denied is 

within the discretion of the Presiding Judge. Commission 

Rule 54, 29 C.F.R. § 2700.54. 

We have reached the point where the Commission cases and 

the State of Utah products case are essentially scheduled to be 

heard back to back. This no doubt occurred because all parties 

involved were sensitive to the constitutional issues presented 

by parallel civil and criminal prosecutions. Further, the United 

States Attorney for the State of Utah requested that the civil 

administrative cases be stayed until the Secretary of Labor's 

criminal referral was resolved. 

On August 25, 1989, the United States Attorney declined 

to initiate prosecutions against Emery, or any of its agents, 

for violations of the Mine Act arising from the fire. Further, 

in December, 1989, the related statute of limitations expired 

and the statute bars any criminal prosecutions. 

These proceedings were originally brought against Emery 

to collect civil penalties for conditions that MSHA inspectors 

believed existed at the Wilberg Mine fire. At one time 44 cases 

were pending before the Presiding Judge. Some of the cases have 

been settled and others are on appeal. Only 19 cases remain 

pending before the Presiding Judge. 

While the Act makes civil penalties mandatory for proven 

violations of mandatory safety standards, penalties are for the 

purpose of deterrence, not punishment. National Independent Coal 

Operators' Ass'n. v. Kleppe, 423 U.S. 388 (1976). 

Normally a public interest exists in prompt penalty deterrence if it were proved that Emery violated a standard. But that 

interest is considerably reduced in this situation. 

Due to no fault of the parties five years have expired. 

Emery has no employees but it continues to be a corporation in 

good standing and with assets to pay any civil penalty imposed 

in these proceedings (documented by papers filed in these cases 

with respect to successorship issues). Since prompt deterrence 

is no longer a predominant factor here, I conclude the public 

interest is best served by the fair and orderly adjudication of 

these cases. 

The parties have not been dilatory in these proceedings 

before the Commission. The sheer volume-of the files and the 

reduction in the number of cases from 44 to 19 cases attest to 

this fact. 

356 
The Judge believes Emery and the Secretary may well be able 

to settle many of the violations at issue in the pending cases 

after completion of the products case leaving only a few, if any, 

for trial. 

Such a result would serve judicial economy. The threemonth continuance sought here requires only a small investment 

of time for a potentially large savings in Commission resources. 

For the foregoing reasons the following order is appropriate: 

ORDER 

1. Emery's motion for a continuance of the scheduled hearing 

is granted. 

2. The hearing scheduled to commence on March 13, 1990, is 

cancelled. 

3. The hearing will now commence at the following time and 

place: 

9:00 a.m., Tuesday, June 5, 1990 

The hearing will contiue on the 

following dates: 

June 5, 1990 through June 8, 1990 

June 11, 1990 through June 16, 1990 

June 18, 1990 through June 23, 1990 

Carbon County Court Complex 

(Check with District Court Clerk 

for directions to courtroom) 

149 East 100 South 

Price, Utah 

Any person intending to attend this hearing who requires 

special accessibility features and/or any auxiliary aids, such as 

sign language interpreters, must inform the Commission in advance 

of those needs. Thus, the Commission may, subject to the limitations of 29 C.F.R. 2706 § 150(a)(3) and§ 160(e), ensure access 

for any handicapped person who gives reasonable advance notice. 

Law Judge 

357 
Distribution: 

Thomas M. Biddle, Esq., Thomas c. Means, Esq., Ann R. Klee, Esq., 

Crowell & Moring, 1001 Pennsylvania Ave., N.W., Washington, D.C. 

20004 (Certified Mail) 

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

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

Mail) 

Mary Lu Jordan, Esq., United Mine Workers of America, 900 15th 

Street, N.W., Washington, D.C. 20005 (Certified Mail) 

/ot 

358 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

February 14, 1990 

CONSOLIDATION COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

. . 

. . 

CONTEST PROCEEDINGS 

Docket No. WEVA 89-234-R 

Citation No. 3114001; 5/31/89 

: Docket No. WEVA 89-235-R 

Citation No. 3114002; 5/31/89 . . 

. . 

. . 

. . 

. . 

. . 

Docket No. WEVA 89-236-R 

Citation No. 3114003; 5/31/89 

Docket No. WEVA 89-237-R 

Citation No. 3114004; 5/31/89 

Docket No. WEVA 89-238-R 

Citation No. 3103921; 6/1/89 

Docket No. WEVA 89-239-R 

Citation No. 3103922; 6/1/89 

Docket No. WEVA 89-240-R 

Citation No. 3103923; 6/1/89 

Docket No. WEVA 89-241-R 

Citation No. 3103924; 6/1/89 

Docket No. WEVA 89-242-R 

Citation No. 3103925; 6/1/89 

Docket No. WEVA 89-243-R 

Citation No. 3103926; 6/1/89 

Docket No. WEVA 89-244-R 

Citation No. 3103927; 6/1/89 

Docket No. WEVA 89-245-R 

Citation No. 3103928; 6/1/89 

Blacksville No. 1 Mine 

: Mine ID 46-01867 

359 
SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

. . 

. . 

. . 

. . 

. . 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEVA 90-3 

A. C. No. 46-01867-03815 

Blacksville No. 1 Mine 

Docket No. WEVA 90-8 

A. C. No. 46-01318-03901 

Robinson Run No. 95 

ORDER DENYING CERTIFICATION 

The operator now has filed a motion to certify for 

interlocutory appeal the questions decided in my order dated 

January 24, 1990, denying its motion to dismiss. 

Interlocutory review, including certification of interlocutory rulings by an Administrative Law Judge, is governed 

by section 2700.74 of Commission regulations. 29 C.F.R. 

§ 2700.74. The regulations follow much of 29 u.s.c. § 1292(b) 

which concerns interlocutory appeals in the Federal Courts. At 

the outset, it must be noted that both under the Commission 

regulations and the Federal statute interlocutory appeals are a 

matter of discretion and not of right. Only in exceptional cases 

are such appeals to be allowed. Kraus v. Board of County Road 

Commissioners, 364 F.2d 919 (6th Cir. 1966). 

After a careful review of this matter, I conclude that 

certification of my prior rulings would.not be appropriate. One 

of the standards by which allowance of interlocutory appeals is 

measured is the material advancement of final disposition. If 

this case proceeds along its normal course without an appeal, a 

lengthy and expensive hearing will not be required. On the 

contrary, the operator's reply brief filed on January 11, 1990, 

represents that the factual issues are relatively simple and 

perhaps not in dispute at all. (Operator's reply brief p. 15). 

Likewise, the Solicitor's opposition to the operator's present 

motion advises that limited discovery is possible and that 

thereafter the Secretary is amenable to factual stipulations. 

Accordingly, leaving this case on its present track should, with 

the cooperation of the parties, result in an expeditious final 

decision at the trial level. Cf. U.S. v. Bear Marine Services, 

696 F.2d 1117 (5th Cir. 1983). 

Conversely, ultimate disposition would not be accelerated by 

allowing an interlocutory appeal at this time. The commission 

would have to familiarize itself with the many pleadings and 

briefs already filed and passed upon by this Judge. Oral argument before the Commission would consume further time. And if 

360 
the Commission agreed with my order denying the operator's motion 

to dismiss, the case would then be returned to me after a substantial delay. In other words, all the evils of piecemeal 

litigation would be realized. 

Finally, many cases that come before this Commission and its 

Judges involve challenges to the validity of the Secretary of 

Labor's regulations. If the questions presented here were 

certified and accepted for interlocutory appeal, there would be 

no reason why a myriad of other such cases should not be similarly appealed. In no time the Commission would become bogged down 

in a vast array of non-final cases, resulting in a prolonged and 

attenuated adjudicatory process. The Commission should not be so 

burdened. 

In light of the foregoing, the motion to certify is DENIED. 

The directives in my order of January 24, 1990 remain in 

effect and I look forward to seeing counsel on March 13, 1990. 

- \~~ Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Henry Chajet, Esq., G. Lindsay Simmons, Esq., Pamela s. 

Bacharach, Esq., Consolidation Coal Company, 919 Eighteenth 

Street, N.W., Suite 1000, Washington, D.C. 20006 (Certified 

Mail) 

Walter J. Scheller, Esq., Consolidation Coal Company, Consol 

Plaza, 1800 Washington Road, Pittsburgh, PA 15241 (Certified 

Mail) 

Page H. Jackson, Esq., Office of the Solicitor, u. s. Department 

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

(Certified Mail) 

Mr. Steven Solomon, UMWA, Box 370, Cassville, WV 26527 

(Certified Mail) 

Robert Strapp, Esq., UMWA, 900 15th Street, N.W., Washington, DC 

20005 (Certified Mail) 

361 
362