OCTOBER 1990 

co~~IISSION DECISIONS 

10-19-90 

10-30-90 

Emery Mining Corp. & Utah Power & Light Co. 

Medusa Cement Company/Medusa Corporation 

ADMINISTRATIVE LAW JUDGE DECISIONS 

10-04-90 

10-04-90 

10-10-90 

10-10-90 

10-11-90 

10-11-90 

10-17-90 

10-17-90 

10-18-90 

10-22-90 

10-22-90 

10-24-90 

10-24-90 

10-25-90 

10-25-90 

10-25-90 

10-26-90 

10-26-90 

10-29-90 

10-29-90 

10-29-90 

10-29-90 

10-31-90 

10-31-90 

Robert A. Cook v. Collier Stone 

Kathleen I. Tarmann v. International Salt Co. 

Keystone Coal Mining Corporation 

Keystone Coal Mining Corporation 

Puerto Rican Cement Company 

Sec. Labor for Ernest E. White v. Peabody Coal 

Shamrock Coal Company, Inc. 

Moline Consumers Company 

Peters Trucking Company 

Sec. Labor for Don B. Coleman v. Rambling Coal 

Wyoming Fuel Company 

Local 1609, Dist. 2, UMWA v. Greenwich Collieres 

Jim Walter Resources, Inc. 

Randy Cunningham v. Consolidation Coal 

Asarco, Inc. 

Warren Rose v. Cunningham Sand & Gravel 

Shamrock Coal Company, Inc. 

Cyprus Emerald Resources Corporation 

Aloe Coal Company 

Drummond Company Inc. 

Drummond Company Inc. 

Sec. Labor for Randy Sherbrook v. T.I.C. 

of Wyoming 

Charles T. Smith v. KEM Coal Company 

Duininck Companies 

ADMINISTRATIVE LAW JUDGE ORDERS 

04-21-89 

09-28-90 

Chantilly Crushed Stone, Inc. 

Sec. Labor for Alonzo Walker v. Dravo 

Basic Mat-erials & R & S Materials 

WEST 87-130-R 

SE 89-109-M 

PENN 89-46-DM 

LAKE 89-56-DM 

PENN 90-40 

PENN 90-42 

SE 90-26-M 

WEVA 90-13-D 

KENT 90-75 

LAKE 90-11-M 

WEST 90-36-M 

KENT 90-72-D 

WEST 90-112-R 

PENN 84-158-C 

SE 90-19-R 

PENN 90-46-D 

SE 89-24-RM 

WEST 90-142-DM 

KENT 90-137 

PENN 90-67 

PENN 90-242-R 

SE 90-82 

SE 90-83 

WEST 90-314-D 

KENT 90-30-D 

LAKE 90-126-R 

VA 

SE 

89-20-M 

90-86-DM 

Pg. 1911 

Pg. 1913 

Pg. 1915 

Pg. 1918 

Pg. 1930 

Pg. 1932 

Pg. 1934 

Pg. 1938 

Pg. 1944 

Pg. 1953 

Pg. 1974 

Pg. 1996 

Pg. 2003 

Pg. 2060 

Pg. 2061 

Pg. 2067 

Pg. 2073 

Pg. 2096 

Pg. 2098 

Pg. 2107 

Pg. 2113 

Pg. 2124 

Pg. 2126 

Pg. 2128 

Pg. 2130 

Pg. 2139 

Pg. 2141 

Pg. 2148 
OCTOBER 1990 

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

Utah Power & Light Company v. Secretary of Labor, MSHA, Docket No. 

WEST 90-285-R. (Judge Lasher, August 27, 1990) 

Secretary of Labor, MSHA v. Westmoreland Coal Company, Docket No. 

VA 90-28. (Judge Weisberger, September 18, 1990) 

There were no cases filed in which review was denied. 
COMMISSION DECISIONS 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

October 19, 1990 

EMERY MINING CORPORATION 

and UTAH POWER AND LIGHT CO., 

MINING DIVISION 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

and 

UNITED MINE WORKERS OF 

AMERICA (UMWA) 

Docket Nos. WEST 87-130-R, etc. 

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

BY THE COMMISSION: 

On March 8, 1989, the Commission directed for review crosspetitions for discretionary review filed by the Secretary of Labor and 

Utah Power and Light Company ( 11UP&L11 ) in these consolidated contest and 

civil penalty proceedings arising under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seg. (1988). On March 24, 1989, 

the Commission granted the joint motion of the cross-petitioners to stay 

this matter pending resolution of related proceedings before Commission 

Administrative Law Judge John J. Morris involving Emery Mining 

Corporation ("Emery") because resolution of those related proceedings 

could render review in this matter unnecessary. The parties were 

directed to keep the Commission informed of the status of the related 

cases on a periodic b?sis, and they have done so since the stay was 

granted. 

In September 1990, the Secretary and UP&L each filed a separate 

Motion to Voluntarily Dismiss Petition for Discretionary Review. The 

cross-petitioners state that on September 17, 1990, Judge Morris 

approved in the related cases a settlement between the Secretary and 

Emery that resolved all issues in those proceedings. The Secretary and 

1911 
UP&L state that as a result of the settlement in the Emery cases, they 

are no longer interested in pursuing this matter before the Commission. 

Each cross-petitioner also supports the dismissal of the other's 

petition. The United Mine Workers of America has not filed a response 

to the dismissal motions. Upon consideration of the Secretary's and 

UP&L's motions, we conclude that adequate reasons have been presented 

for dismissal of this proceeding and we grant both motions. See 

generally,~· Youghiogheny & Ohio Coal Co., 7 FMSHRC 200, 203 

(February 1985). 

Accordingly, the previous stay is dissolved, the Commission's 

direction for review is vacated, and this proceeding is dismissed. l/ 

Distribution 

Timothy Biddle, Esq. 

Thomas Means, Esq. 

Crowell & Haring 

1001 Pennsylvania 

Washington, D.C. 

Ave. 

20004 

Dennis D. Clark, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Nary Lu Jordan, Esq. 

ill!WA 

900 15th St., N.W. 

Washington, D.C. 20005 

~d~- Richard V. Backley, Acting Chairman 

·7 .1 

./ /} ,{ / ~/L<---ze -<-- l{__., / v--~ ( C 

Jyce K'. Doyle, Commissioner/ ,, 

"---? If \_,1 

I /i . /1 ( I) I ' / 

. '-'~'-" \....{_.,./'-- i....-&..--i-1_.; 

L. Clair Nelson, Commissioner 

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

have designated ourselves as a panel of three Commissioners to exercise 

the powers of the Commission in this matter. 

1912 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION ·(MSHA) 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

October 30, 1990 

Docket No. SE 89-109-M 

MEDUSA CEMENT COMPANY-DIVISION 

MEDUSA CORPORATION 

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

ORDER 

BY THE COMMISSION: 

In this civil penalty proceeding arising under the Federal Mine 

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

Act"), counsels for the Secretary of Labor and Medusa Cement Company 

("Medusa") have filed with the Commission a Joint Motion to Approve 

Settlement. For the following reasons, the parties' settlement approval 

motion is granted, and this matter is dismissed. 

On January 23, 1990, we granted Medusa's petition for 

discretionary review of a decision of Commission Administrative Law 

Judge Roy J. Maurer, concluding that Medusa violated 30 C.F.R. 

§ 56.142ll(d). 11 FMSHRC 2531, 2533 (December 1989). On October 25, 

1990, the Secretary and Medusa filed the Joint Motion to Approve 

Settlement. 

In their motion, the parties explain that Citation No. 2857907, 

which is the subject of this action, was issued to Medusa because a work 

platform used by Medusa to hoist personnel was attached to a load line 

rather than to the crane boom itself. Medusa has raised a question 

concerning the proper interpretation of section 56.1421l(d) and whether 

its cited conduct violated the standard. The parties note that on 

September 5, 1990, the Department of Labor's Mine Safety and Health 

Administration ("MSHA") issued a Program Policy Letter superseding its 

prior policy pertaining to section 56.14211(d). The Policy Letter 

provides that operators are permitted to hoist personnel with cranes 

using a load line to support a work platform and comply with section 

56.142ll(d) if four safety features detailed in the policy letter are 

1913 
implemented. The citation involved here was not issued because of a 

failure to implement the four safety features and the parties state that 

the record does not reflect whether these safety features were present 

on Medusa's crane at the time of the inspection. In their joint motion, 

the Secretary and Medusa request approval of their settlement, including 

vacation of the citation and assessed penalty, vacation of the 

Commission's direction for review, and dismissal of the proceeding. 

Oversight of proposed settlements of contested cases is an 

important aspect of the Commission's adjudicative responsibilities under 

the Mine Act (30 U.S.C. § 820(k)) and is, in general, committed to the 

Commission's sound discretion. See,~· Pontiki Coal Corp., 8 FMSHRC 

668, 674-675 (May 1986). The Commission has granted motions to vacate 

citations and orders and to dismiss review proceedings if "adequate 

reasons" to do so are present. ~. Southern Ohio Coal Co., 10 FMSHRC 

1669, 1670 (December 1988), and authorities cited ("SOCCO"). 

We conclude that adequate reasons exist to grant the parties' 

motion in this case. As the prosecutor charged with enforcement of the 

Act, the Secretary has determined that she should seek dismissal of this 

proceeding. The operator joins in the motion. No reason appears on 

this record to warrant denial of the motion before us. See, ~· 

Morgan Corp., 12 FMSHRC 394, 395 (March 1990). 

Therefore, upon full consideration of the motion, it is granted. 

Medusa's petition for review is' dismissed. The underlying citation and 

the assessed civil penalty are vacated. Our direction for review is 

also vacated and this proceeding is dismissed. 

L. Clair Nelson, Commissioner 

1914 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 4 1990 

ROBERT A. COOK, DISCRIMINATION PROCEEDING 

Complainant 

v. Docket No. PENN 89-46-DM 

MSHA Case No. MD 88-62 

COLLIER STONE, 

Appearances: 

Before: 

Respondent 

DECISION 

Mr. Robert A. Cook, McDonald, Pennsylvania, 

pro se, for the Complainant; 

Timothy P. O'Reilly, Esq., Pittsburgh, 

Pennsylvania, for the Respondent. 

Judge Fauver 

Complainant brought this action under section 105(c) of the 

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

et seq., alleging he was discharged in violation of that section. 

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 open pit mine in Pennsylvania 

where it produces crushed stone and aggregate used in or 

substantially affecting interstate commerce. 

2. Complainant was employed by Respondent from March 2, 

1987, to May 6, 1988. 

3. The mine was inspected by the Mine Safety and Health 

Administration (MSHA), United States of Labor, on May 6, 1988. 

Around noon on that date, the MSHA inspector interviewed 

Complainant near the machine he was operating. Complainant 

talked to the inspector about 5 minutes, and told him about 

certain safety defects on the equipment. 

1915 
4. Respondent's manager (and part-owner), William F. 

Duchess, knew that Complainant.talked to·tl.le MSHA inspector. 

5. At the end. of Compla;i..nant is shift, arou.nd 3: 00 p. m , on 

May 6, 1988, Mr. Duchess handed Complainant two paychecks, 1 

instead of his normal paycheck, and told him he was fired. The 

parties are in sharp dispute as to Mr. Duchess• statement to 

Complainant as to the reason for his discharge. 

DISCUSSION WITH FURTHER FINDINGS 

Complainant shortly found another job and is satisfied where 

he is presently employed. He does not seek backpay or 

reinstatement in this action. He seeks a finding that Respondent 

·fired him because he reported safety defects to the MSHA 

inspector on May 6, 1988. 

·- He testifieq that Mr. Duchess stated, when.he fired him, 

that the company did not want any ''stool pigeons" in its 

employment. Mr. Duchess denies this, and testified that he 

stated to Complainant that he was fired because he was not 

performing his job satisfactorily despite a prior warning. He 

also testified as to a prior warning he gave to Complainant about 

his job performance. 

Mr. Duchess• testimony is consistent with the testimony of 

the payroll clerk, who stated that. on May 4, 1988, Mr. Duchess 

had told her to prepare two checks for Complainant and two checks 

for another employee, named Adler, because they were both being 

fired for unsatisfactory job performance. 

Generally, in order to establish a prima facie case of 

disciimination under section 105{c) of the Mine Act, a 

complaining miner bears the burden of proving that ( 1) .·.he or she 

engaged in protected activity and (2) the adverse action 

complained of .was motivated in any part by that activity. 

Consolidation Coal Company, 2 FMSHRC 2768 (1980), rev'd on other 

grounds sub nom. Consolidation Coal Company v. Marshall, 663 F.2d 

1211 (3d Cir. 1981);- Hecla-Day Mines Corporation, 6 FMSHRC 1842 

(1984); Phelps Dodge Corp., 3 FMSHRC 2508, 2510-2511 (1981), 

rev'd on other grounds sub nom. Donovan v. Phelps Dodge Corp., 

709 F.2d 86 (D.C. Cir. 1983). The operator may rebut the 

prima facie case by showing either that no protected activity 

occurred or that the adverse action was in no way motivated by 

protected activity. If an operator cannot rebut the prima facie 

case in this manner it may nevertheless affirmatively defend by 

proving that it was also motivated by the miner's unprotected 

1one check was a normal paycheck; the second check was a 

termination check. 

1916 
activities and would have taken the adverse action on those 

grounds alone. The operator bears the burden of proof with 

regard to the affirmative defense. Haro v. Marona Copper Company, 

supra. The ultimate burden of persuasion does not shift from the 

complainant. United castle Coal Company, supra. See also Boich 

v. FMSHRC, 719 F.2d 194 (6th Cir. 1983). . 

The reliable evidence does not preponderate to sustain, by 

greater weight, Complainant's account of the facts. Inasmuch as 

Complainant has the burden of proof, I find that he has not 

proven a discriminatory discharge within the meaning of section 

105(c) of the Act. 

CONCLUSION OF LAW 

1. The judge has jurisdiction over this proceeding. 

2. Complainant has not met his burden of proving a 

violation of section 105(c) of the Act. 

ORDER 

WHEREFORE IT IS ORDERED that this proceeding is DISMISSED. 

Distribution: 

tJ,JL William CV:-

Fauver 

1-wuv ~ Administrative Law Judge 

Mr. Robert A. Cook, RD #4, Box 154A, McDonald, PA 15057 

(Certified Mail) 

Timothy P. O'Reilly, Esq., 1805 Law & Finance Building, 

Pittsburgh, PA 15119 (Certified Mail) 

/fb 

1917 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 4 1990 

KATHLEEN I. TARMANN, DISCRIMINATION PROCEEDING 

Complainant 

v. Docket No. LAKE 89-56-DM 

INTERNATIONAL SALT COMPANY, MD 89-10 

Respondent 

Cleveland Mine 

DECISION 

Appearances: Daniel Kalk, Esq., Valore, Moss & Kalk, Cleveland, 

Ohio for Complainant; 

Keith A. Ashmus, Esq., Thompson, Hine and Flory, 

Cleveland, Ohio for Respondent. 

Before: Judge Melick 

This case is before me upon the complaint by Kathleen I. 

Tarmann under section 105(c)(3) of the Federal Mine Safety and 

Health Act of 1977, 30 u.s.c.- § 801 et seq., the "Act, 11 alleging 

discriminatory suspension by the International Salt Company 

(International Salt) in violation of section 105(c)(l) of the 

Act.~/ 

!/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 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 miners or applicant for employment is 

the subject of medical evaluations and potential 

transfer under a standard published pursuant to section 

101 or because such representative of miners or 

1918 
More particularly Ms. Tarmann alleges in her complaint as 

follows: 

On October 19, 1988, I was discharged for 

allegedly being insubordinate to a reasonable order 

from my foreman Robert Hatfield.~/ The order was not 

only unreasonable, but discriminatory as well. 

Mr. Hatfield ordered me to abstain from a normal 

biological function. Mr. Hatfield refused to allowed 

me to go to the surf ace to use the ladies room, as the 

one in the mine was dirty. Mr. Hatfield told me that 

he would allow me a half hour to clean the bathroom. 

When I told Mr. Hatfield I couldn't wait that long he 

still refused to allow me to go. Mr. Hatfield and 

other foreman [sic] had allowed the men to go to the 

surf ace to use the bathroom when the ones in the m~ne 

are dirty. Mr. Hatfield had made several statements to 

get me prior to this incident and make me pay for 

causing him trouble with his boss. Mr. Hatfield made 

these statement on the skip and many people heard him. 

I belive [sic] Mr. Hatfield deliberately did not clean 

, the womens [sic] bathroom to get back at me and forced 

me into the situation. 

In order to establish a prima facie case of discrimination 

under section 105(c) of the Act, a complaining miner bears the 

burden of proving that (1) he engaged in protected activity and 

(2) the adverse action complained of was motivated in any part by 

the protected activity. Secretary on behalf of Fasula v. 

Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 (October 1980), 

rev'd on other grounds, sub nom. Consolidation Coal Co. v. 

Marshall, 663 F.2d 1211 (3d Cir. 1981); Secretary on behalf of 

Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (April 

1981). 

The mine operator may rebut a prima facie case by showing 

either that no protected activity occurred or that the adverse 

action was in no part motivated by protected activity. If the 

cont'd fn.l 

applicant for employment 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." 

~ The Complainant was subsequently reinstated with 

suspension following arbitration. 

1919 
operator cannot rebut the prima facie case in this manner, it 

nevertheless ·may defend affirmatively by proving that it also was 

motivated by the miner's unprotected activity and would have 

taken the adverse action in any event for the unprotected 

activity. Fasula supra., Robinette supra; see also Eastern 

Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987); 

Donovan v. Stafford Construction Co., 732 F.2d 954, 958-59 (C.C. 

Cir. 1984); Boich v. FMSHRC, 719 F.2d 194, 195-6 (6th Cir. 1983) 

(specifically approving -the C~mmi·ssion' s Fasula-Robinette test). 

Cf. NLRB v. Transportation Management Corp., 462 U.S. 393, 

397-413 (1983) (approving a nearly identical test under the 

National Labor Relations Act). 

As clarified at hearings in this case the Complainant is 

maintaining that her suspension by International Salt on 

October 19, 1988, was a discriminatory response to the following 

protected health and safety complaints: ( 1) on or about--

October 8, 1988, to her foreman Robert Hatfield and to Hatfield's 

supervisor, Mine Superintendent Bruce Higgins, that Hatfield was 

sleeping at his desk in the shop office during their workshift 

and that he had also taken the phones off the hook in his off ice, 

and (2) during the midnight shift on October 18-19, 1988, she 

complained to Hatfield that the ladies toilet in the shop area 

was not in a sanitary and safe condition. The fact that 

complaints of this general nature were made is not disputed. The 

first element of a prima facie case has therefore been 

established. 

The second element of a prima facie case is a showing that 

the adverse action was motivated in any part by the protected 

activity. Direct evidence of motivation is rarely encountered. 

More typically, the only available evidence is indirect. 

Secretary on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 

2508 (1981). In the instant case it is clear that management had 

knowledge of the cited protected activities. The Complainant 

further maintains that foreman Hatfield displayed hostility 

toward her complaints about his sleeping on the job by statements 

purportedly made on a crowded "skip" or elevator as the midnight 

shift crew was being-transported to work one evening. 

Complainant described the alleged threats in the follwing 

colloquy at trial: 

Q. [By Counsel for Complainant] Now, how do you know 

that the actions taken against you were as a result of 

1920 
your health and safety complaint to Higgins and your 

health and safety complaints to Hatfield? 

A. [Complainant Tarmann] Because Bob told me on the 

skip. 

Q. Bob who? 

A. Bob Hatfield. 

Q. Okay. 

A. On the skip told me that the person responsible for 

him having to take an extra vacation, an unscheduled 

vacation, was going to pay. He said that. 

THE COURT: When was this stated? 

THE WITNESS: Pardon Me. 

THE COURT: When was this statement made? 

THE WITNESS: It was on the skip coming up out of the mine 

the next day. 

THE COURT: After the incident discussing the toilet 

conditions? 

THE WITNESS: No, the next day after I talked to his boss 

about him sleeping. 

Q. And that would have been approximately what date? 

A. Probably the 12th or 13th. 

THE COURT: Of October 1988? 

A. Right. 

Q. Okay, and what did he tell you? 

A. He said that I was going to pay. 

Q. For what? 

A. For gping over his head, for causing him trouble with 

his boss and causing him to have to take an extra vacation 

and 

1921 
Q. Did you explain to him that you were simply doing your 

job as health· and safety representative? 

A. At that time? 

Q. Yes. 

A. On the skip or talking to him? 

Q. Talking to Hatf iled. 

A. Yeah. 

Q. And what did he say about that? 

A. He didn't say much of anything. He didn't say anything. 

Q. Now, from the date that you caught him sleeping, which 

was approximately the 10th of October, to the date that you 

were suspended, approximately the 19th of October, how many 

discussions did you have with Hatfield when he either warned 

you or told you about his plans as they related to you 

because of your activity? 

A. I'd say it went on for three days on the skip, two or 

three days. 

Q. Were there other people on the skip at the time that you 

heard this? 

A. Oh. yeah. 

Q. And who were they? 

A. John Budziak, Richard Fisher, Brad Diven, Bob Damron, 

and there were other people too. 

Q. And they heard everything you heard? 

A. I guess they did, yeah. They did, yeah. 

Q. And tell the judge the rest of what they said to you 

regarding your health and safety complaints and the action 

he was going to take against you? 

A. Well, he said that I was definitely going to pay. he 

looked straight at me, and I mean there was no love in his 

eyes either, and he told me I guarantee you, she will pay. 
Several of the Complainant's witnesses claim to have heard 

different variations of the these alleged statements. In any 

event Hatfield explained in the following colloquy at trial the 

most credible explanation for what ocurred on the elevator: 

Q. [By Counsel for Res.pondent] Do you recollect making some 

kind of comment on a skip about vacation? 

A. [Hatfield] Yes I do. 

Q. Can you describe to the judge exactly what you recall 

about that? 

A. Well, what it was, on the vacation, I had a vacation 

scheduled for later that year. And Bob Foster, he was a 

relief foreman underground at the time, and he was getting 

ready to go upstairs. And so Baker, Mr. Baker adked me if I 

could take a vacation a couple weeks early. ·-

THE COURT: Who's Baker now? 

THE WITNESS: He's a superintendent of maintenance 

underground. 

THE COURT: All right. He's your boss? 

A. Right. He asked me if I could take my vacation early so 

Bob could fill in for me, and I said sure, I could. So we 

scheduled it up early. And I've got a foreman that always 

sort of riled up a little bit, and I told him to give me an 

extra vacation because he knew when my vacatioh'was. 

Q. Who was that foreman? 

A. Jim Bannerman. 

* * * * 

A. And so he must have got the word around that I was 

getting an extra vacation, because I told him I was working 

so hard that he was going to give me an extra vacation, and 

so Gene Sharpe on the skip, he said 

THE COURT: Who's Gene Sharpe now? 

THE WITNESS: One of the employees that used to work for me 

in '88. 

Q. Hourly employee? 

1923 
A. Hourly employee, yes, he said, Bob said, 11 I hear tell 

you're ~etting an extra vacation". I said "yeah". I said 

"people's complained that I've been working too hard and 

they're giving me an extra week's vacation. I sure 

appreciate that. I'd like to thank whoever got this 

started'i, just more or less joking around. And that was 

about all that was said. 

Q. And did you actually ever take an extra vacation or this 

changed vacation? 

A. No, I didn't. Bob Foster got sick and so I couldn't 

take my vacation when we re-arranged it, so I ended up 

taking it the same week that I had it -- already had it 

scheduled. 

Q. Now, in that skip when you said that, you were -talking 

to Gene Sharpe at the time? 

A. Yes. 

(Tr. 287-289) 

Hatfield accordingly maintains that the statement 

attributed to him on the skip was certainly not retaliatory. 

Inasmuch as the persuasive credible evidence clearly shows that 

Hatfield was never in fact required to change his vacation and 

was not in fact subject to discipline, and that management knew 

he was then being treated for narcolepsy, I conclude that 

Hatfield did not demonstrate any retaliatory motivation towards 

Ms. Tarmann in this regard.3/ 

Tarmann also cites her subsequent complaints to Hatfield on 

the October 18-19, midnight shift about the conditions of the 

ladies shop area toilet as a basis for her suspension. Hatfield 

made notes of events shortly after they occurred that evening. 

(See Appendix I) I give these contemporaneous notes, which were 

corroborated in essential respects at hearing, significant 

weight and indeed I ~ind this version of events to be the most 

credible. I find then that Ms. Tarmann's suspension was the 

result of her refusal to clean the toilet as she had been 

directed to do earlier on the shift before her alleged 

"emergency" need to use the toilet and for her use of an apparent 

duplicitous subterfuge to use the outside toilet facilities in 

violation of the direct order of her foreman. These activities 

are clearly not protected activities and reliance on these (in 

addition to her previous disciplinary record) by management in 

suspending the Complainant was not in contravention of Section 

105(c) of the Act. There is moreover insufficient credible 

evidence to show that management was motivated in any part by her 

protected activities. Under the circumstances I find that there 

was no violation of Section 105(c) and that this case must be 

dismissed. 

3 I I note that the Arbitrator. below also :r;gjec.ted the testimony of Ms. Tarmann and her witnesses on this issue. 

1924 
ORDER 

The complaint of 

i/\./~ aryi elick 

AdmiT strative _aw 

Distribution: \ 

Daniel Kalk, Esq., Valore, Moss & K~ k, 75 Public 

Suite 300, Cleveland, OH 44113 (Certified Mail) 

Judge 

Square, 

Keith A. Ashmus, Esq., Thompson, Hine and Flory, 1100 Ncrt.ional 

City Bank Building, 629 Euclid Avenue, Cleveland, OH 44114-0370 

(Certified Mail) 

nb 

1925 
APPENDIX I 

On October 19, 1988, I, Bob Hatfield, was 

approached by Kathy Tarmann at 12:05 AM and she was 

upset about her bathroom. She said her bathroom looked 

like a pig's eye [sic] or something like that and she 

couldn't use it. Mike Miller and both utility men, 

Jose Sanchez and Mark Miller were present and this 

incident happened in front of the electrician's pad. I ~ 

asked her if they didn't change her bathroom today and· 

yes but they didn't clean it good enough for her to use. 

I told her she would have to make do, clean it enough 

to use and I'd talk with Mike in the morning. Then she 

said this place never learns and she was going to take 

this damn company to court and sue them. She kept 

talking like this until she was out of ear shot. 

The next time I went by her bathroom, I was going 

to check it but it was locked and I didn't have the key 

on me so I just glanced at the other two and they 

seemed very clean to me. Then about 1:50 AM I was 

going toward the substation and Kathy came raging out 

of the substation cursing, not really at me, but at the 

company in general, saying things like she was taking 

this G.D. company to court and she has complained about 

the bathrooms for years now and no damn body tries to 

help her. Then when she got to where I was she told me 

that she wasn't about to use the bathroom and she was 

going to go upstairs where they had a decent damn 

bathroom. This conversation took place in front of 3 

air door and present-were Kathy, myself, Mike Miller 

and Mark Miller. Jose Sanchez, Ken Mate and Jim Swann 

had stopped as they were going to the shop. I told 

Kathy in a calm but to the point voice that she could 

not go upstairs because if I let her go I'd have to let 

everyone go and I'd never get anything done with my men 

yo-yoing up and down the skip. I also explained to her 

that if she needed time to clean her bathroom to go 

ahead and clean it so she could use it, but no way was 

she going upstairs. At this she really started raging 

and told me that she would have my M.F. ass into court 

along with the G.D. company and sue us, that we'll 

never learn until she sues our damn asses. She said 

other things until I told her if she didn't calm down 

1926 
and quit cursing and raving, I'd have to ask her to 

leave the mine until we could meet with higher people 

than me. ·she quit cursing and was just raging under 

her breath and started walking toward the storeroom. I 

told Mike Miller to jump on my cushman and I started to 

take him down into the mill. That's when I decided to 

go to the off ice to get Kathy some rags to clean the 

bathroom. When I was getting her rags she was yelling 

at me saying it was a shame that a big company couldn't 

provide her with a clean bathroom and that she needed 

to clean her bathroom and that she wasn't supposed to 

have to clean her bathroom and she needed rubber 

gloves, etc. etc. I told her the gloves were next door 

in the storeroom. I was getting back on my cushman 

when she came out of the storeroom and she was ragging 

[sic] again, cursing and saying she was going to teach 

this G.D. company a lesson, she was going to sue this 

G.D. place and all she wanted was a clean bathroom an-d 

it wasn't her job to clean it. Swann, Mate, Mark and 

Jose were in front of the storeroom at this point and 

she came to my cushman, jumped on it and threw the rags 

and gloves on the seat, pushed them back behind us and 

said I'm going home, take me out. I don't have 30 

minutes to clean my damn bathroom so I'm going home. I 

told her fine and I took her to the serving skip. 

Kathy had mentioned calling Bruce Higgins when she 

was in my off ice to get her rags and I told her she 

wasn't going to wake up anybody over such a petty thing 

as this, but when I went down to the mill with Mike 

Miller, Jose Sanchez and Mark Miller, Mark said she was 

probably up there calling Bruce and I 'd be in big 

trouble tomorrow. I didn't comment and then Mark said 

Kathy gets mad and goes home and we have to do her work. 

I told Mark, no, he's to do the work I assigned him. 

this was about 2:10 AM. After Mark and Jose and Mike 

got the cable through the conduit, I went down to where 

Gene Sharp was working to check on his job when Joe the 

mill man yelled at me saying the phone was for me. It 

was Kathy and I thought that she was calling telling me 

she was up and ready to go home so I asked Joe to find 

out what she wa'nted and she told Joe she wanted to talk 

with me. I went back to the phone and she said, "I'm 

back from using the bathroom and I'm in the shop." I 

said that she said she was going home and I told her to 

stay there that I'd be up at the shop. I went to the 

shop and Kathy was in front of my off ice by herself so 

I drove up and she got on my cushman and just sat there. 

I went in my off ice to make sure that my desk was 

locked then I told you you couldn't go upstairs to use 

bathroom and you said you were going home so you'd 

1927 
better go! She asked "Where do you want me to work?" 

This was about 2:18 AM. I started taking her down the 

shop toward the lunchroom telling her that I wasn't 

going to assign her any work and she said wait a 

minute, do I get paid for the rest of the night? Do I 

need my Steward and a meeting? At this I turned around 

and immediately started back to the off ice where I 

started to call Bill Baker or Bruce Higging. Then I 

stopped and told Kathy that I wasn't going to call in 

anyone but I'd work her under protest until in the 

morning when Bill comes in and we can have a meeting. 

I also read her Plant Rule #5 -- Failure or refusal to 

obey reasonable instructions of a supervisor. She 

broke this rule when she didn't clean the bathroom and 

when she went upstairs (as if she was going home) just 

to use the bathroom when I told her she couldn't. She 

also came back underground without asking permission. 

I read her Plant Rule# 34 -- As a condition of-~ 

employment hourly employees shall not leave the plant 

(which means underground if you are assigned there), 

nor visit the parking lot without supervisor's 

permission. She did not have my permission to leave 

the mine to use the bathroom; she left on her own 

supposedly to go home. 

Kathy said, "I need my Steward." I told her I'd 

call one in and she should go and help Mike. She asked 

where he was and I told her in the mill at 21 MCC. 

During lunch I called Len Davis and told him to 

get hold of John Shumney and let him call me. John 

called about 3:05 AM and I explained what happened and 

that I was working Kathy under protest until Bill comes 

in for a meeting. Shumney said he'd be better talk to 

Kathy and said he'd call about 4:30 AM to see when Bill 

was coming in. Bill was going to come in early anyway, 

which I mentioned to John. 

I made the rounds in my work area to make sure 

everyone was busy and I started thinking that at this 

plant, no one was ever worked under protest so I'd 

better get my boss in. At about 4:00 or 4:15 AM I 

called Bill Baker after I wrote down everything that 

had happened. When I went out I bumped into Kathy and 

Karl on Dave Green's cushman. I asked Dave why Kathy 

was on his cushman and he said she took it. At the 

first part of the shift she tried to take my mechanic's 

cushman and I told my mechanic to go get it back. the 

electrician's cushman was down. Anyway, Kathy and Karl 

asked me if they could have a meeting and I told them 

it would have to be later. I checked on a couple of 

1928 
jobs while waiting for Bill to show up. I got hold of 

Bruce who said they would be down since Bill should be 

in anytime·. I bumped into Kathy and Karl again and 

said they would be down since Bill should be in anytime. 

I checked on a couple of jobs while waiting for Bill to 

show up. I got hold of Bruce who said they would be 

down since Bill should be in anytime. I bumped into 

Kathy and Karl again and said I was waiting for Bill so 

they drove off. they had been in front of the 

bathrooms earlier so I assumed Karl was investigating. 

I got a call from John Good wanting to know if I was 

through with Karl and I told John that I didn't send 

for Ka.rl but I was going to have a meeting with him, 

Kathy and Baker when Bill came in. Not long after, 

Bill and Bruce came in and we had the meeting, and 

Kathy was suspended after this meeting. 

Nothing else happened until I went up with my 

people to the United Way meeting.· After I got back 

from that meeting and went out to get the hourly 

timecards, someone from the waiting room yelled and 

said, "Kathy says you're not going to make it home!" 

When I got back underground and was doing my paperwork, 

someone went by the office and said, "you've had it 

when you go home!" Then Frank Smutko came into the 

off ice and asked if I had a magic marker and when I 

gave it to him he marked an X over my heart and said 

that was where I was going to get it on the way home or 

in the near future and laughed. Nothing happened on 

the way home or at home on the 19th. 

Under protest due to the early hours and not 

wanting to wake someone up, I worked Kathy until my 

boss showed up for the meeting. My recommendation is 

to suspend Kathy until further investigation into this 

matter. 

1929 
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), 

Petitioner 

v. 

KEYSTONE COAL MINING 

CORPORATION, 

Respondent 

October 10, 1990 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 90-40 

A. C. No. 36-04852-03698 

Urling No. 1 Mine 

DECISION APPROVING SETTLEMENT 

ORDER TO PAY 

Before: Judge Merlin 

The Solicitor has filed a motion to approve settlement of 

the three violations involved in this case. The originally 

assessed penalty was $3,700 and the proposed settlement is 

$2,250. The Solicitor discusses the violations in light of the 

six statutory criteria set forth in section llO(i) of the Federal 

Mine Safety and Health Act of 1977. 

Order No. 3300139 was issued as a 104(d) (2) order for a 

violation of 30 C.F.R. § 75.400 because coal was being dumped 

along with gobbed rock in the No. 2 entry. The originally 

assessed penalty was $1,200 and the proposed settlement is $750. 

Order No. 3088570 was issued as a 104(d) (2) order for a violation 

of 30 C.F.R. § 75.400 because combustible materials were permitted to accumulate in the 10 east working section. The 

originally assessed penalty was $1,300 and the proposed settlement is $750. Order No. 3088575 was issued as a 104(d) (2) order 

for a violation of 30 C.F.R. § 75.400 because loose coal and coal 

dust, combined with gobbed materials, were permitted to accumulate or be stored in-the crosscuts left and right off the No. 2 

entry of the 5 east section. The originally assessed penalty was 

$1,200 and the proposed settlement is $750. 

The Solicitor represents that the reductions are warranted 

because negligence and gravity were less than originally thought. 

According to the Solicitor, the operator has encountered mining 

conditions which have caused difficulty in the removal of gobbed 

materials, such as rock and slate, from the coal being produced. 

The operator sought assistance from MSHA in determining an 

appropriate method to handle the gobbed materials which could 

contain some coal, and MSHA provided information concerning 

control of this material. The operator believed that MSHA had 

accepted the rock dusting method it used to render gob materials 

inert. However, the Solicitor advises that the subject violations involved coal accumulations combined with the gobbed 

1930 
materials and that MSHA has consistently distinguished coal 

accumulations from gobbed materials and that accumulations must 

be removed from the mine.· The parties agree that the subject 

orders do indeed properly cite violations of the named standard. 

In addition, the finding of unwarrantable failure remains 

unchanged so that the recommended settlement amounts remain 

substantial. 

In addition, the Solicitor avers that although negligence 

remains high it was somewhat mitigated because the operator 

misunderstood what was required. I have difficulty in understanding the Solicitor's negligence argument. However, since the 

parties are in agreement, I will let the unwarrantable finding 

stand. I do accept the Solicitor's statement that although 

gravity is high, the degree of gravity was mitigated because the 

gobbed materials were rock dusted. Finally, I note the 

Solicitor's representations that the reductions are justified 

because the operator demonstrated a high degree of good-faith in 

resolving these violations. Thus, the operator immediately 

removed the accumulations and is in the process of renovating its 

cleaning plant so that the excessive rock and slate problems 

which led to the issuance of orders will not recur. Both actions 

have required great expense. 

Based upon the foregoing, I find that the proposed settlements are appropriate and approve them. 

Accordingly, it is ORDERED that the proposed settlements be 

APPROVED and the operator PAY $2,250 within 30 days of the date 

of this decision. 

'"=--\~,~~ Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Catherine Oliver Murphy, Esq., Office of the Solicitor, U. s. 

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

Street, Philadelphia, PA 19104 (Certified Mai1) 

William M. Darr, Esq., Keystone Coal Mining Corporation, 655 

Church Street, Indiana, PA 15701 (Certified Mail) 

Robert H. Stropp, Jr., Esq., General Counsel, UMWA, 900 15th 

Street, N.W., Washington, DC 20005 (Certified Mail) 

/gl 

1931 
?EOERAL .\UNE S~l=!:TY ANO HEAL 'i'H ~EV!EW CCMMtSStON 

1730 K STREET ~W. 6TH FLOOR 

WASHINGTON, :J.C. 20J06 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION . (MSHA) , 

Petitioner 

v. 

KEYSTO:.rn COAL MINING 

CORPORATION, 

Respondent 

October 10, 1990 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 90-42 

A. C. No. 36-00823-03725 

Jane Mine 

DECISION APPROVING SETTLEMENT 

ORDER TO PAY 

Before: Judge Merlin 

The Solicitor has filed a motion to approve a settlement for 

the one violation involved in this case. The originally assessed 

penalty was $1,200 and the proposed settlement is $800. The 

Solicitor discusses the violation in light of the six statutory 

criteria set forth in section llO(i) of the Federal Mine Safety 

and Health Act of 1977. 

Citation No. 3300116 was issued as a 104(d) (1) citation for 

a violation of 30 C.F.R. § 75.400 because float coal dust was 

permitted to accumulate on rock dusted surfaces in the immediate 

return. The Solicitor represents that the reduction is warranted 

because negligence is not as high as originally thought. Based 

upon the Solicitor's .. representations, I believe that gravity also 

is somewhat less than had been thought. The Solicitor states 

that the operator properly conducted onshift examinations of the 

areas and believed that it was not necessary to rockdust the area 

again. Further, the operator believed that the area was slightly 

gray in color and noted that several parts of the area were damp 

or wet. So too, the inspector conceded that parts of the area 

were wet. According to the Solicitor, it is uncertain how long 

the condition.existid. Finally, no accumulations were noted in 

the preshift books nor were any citations issued for failure to 

record the condition. 

The Solicitor states that because of the foregoing circumstances, the citation has been modified to a 104(a) citation. 

This action is clearly correct since the operator's conduct did 

not rise to the level of unwarrantable failure as that term has 

been defined by the Commission. In my opinion, the dampness 

1932 
which contributed to a lessening of the negligence factor also 

mitigates gravity. Nevertheless, I agree with the Solicitor that 

the violation was serious because there remained a risk of 

explosion or fire. 

Based upon the foregoing, I find that the recommended 

settlement is appropriate. 

Accordingly, it is ORDERED that the proposed settlement be 

APPROVED and the operator PAY $800 within 30 days of the date of 

this decision. 

- Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Catherine Oliver Murphy, Esq., Office of the Solicitor, U. s. 

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

Street, Philadelphia, PA 19104 (Certified Mail) 

William M. Darr, Esq., Keystone Coal Mining Corporation, 655 

Church street, Indiana, PA 15701 (Certified Mail) 

Robert Strapp, Esq., General Counsel, UMWA, 900 15th Street, 

N.W., Washington, DC 20005 (Certified Mail) 

/gl 

1933 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 111990 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION . (MSHA), 

Petitioner 

v. 

PUERTO RICAN CEMENT COMPANY, 

Respondent 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. SE 90-26-M 

A.C. No. 54-00240-05511 

Cantera Cana 

Appearances: James A. Magenheimer, Esq., Office of the 

Solicitor, U.S. Department of Labor, New York, 

for Petitioner; 

Daniel R. Dominguez, Esq., Dominguez & Totti, 

Hato Rey, Puerto Rico, 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," charging Puerto Rican 

Cement Company, Inc., (Puerto Rican Cement) with one 

violation of the regulatory standard at 30 C.F.R. § 56.14200 

and proposing a civil penalty of $1,500 for the alleged 

violation. The general issue before me is whether Puerto 

Rican Cement violated the cited regulatory standard and, if 

so, the appropriate civil penalty to be assessed in 

accordance with section llO(i) of the Act. 

-

Citation No. 3250616 issued August 10, 1989, pursuant to 

section 104(a} of the Act alleges a "significant and 

substantial" violation of the noted mandatory standard and 

charges as follows: 

A fatal accident occurred at this operation on 

08-08-89 when the Euclid No. 245 hauling truck 

rolled over a person who was in [sic] foot. The 

truck did- not sound the horn before start [sic] 

moving the truck. 

The evidence is not disputed tnat Francis Gonzalez a 

19 year old independent truck driver was fatally injured at 

about 7:40 a.m. on August 8, 1989, when he was run over by a 

truck at the Puerto Rican Cement Cantera Cana Mine in Ponce, 

Puerto Rico. Eyewitness Angel Torres, a truck driver for 

1934 
Puerto Rican Cement, testified at hearing that he was in the 

control room completing a report when he saw Gonzalez 

crossing as the haul truck began moving out from the crusher. 

He saw the victim walk oyer to a faucet then turn back as the 

truck began moving from the crusher. The truck had moved 

about 40 feet when it struck Gonzalez. Torres acknowledged 

that he told the MSHA investigator that he did not hear the 

truck driver blow his horn as he exited from the crusher and 

that he was standing within 5 to 6 feet of the truck while he 

was in the control room. 

Torres e~timated that the truck was travelling at about 

5 to 7 miles an hour and was not in an area where it could 

pick up speed. He also testified that the type of truck that 

struck the victim has a blind spot directly in front and to 

the right side so that you cannot see people up to about 43 

feet. This was because of the 7 to 8-foot-high truck 

structure. Torres also testified that he signed a paper 

following a February 23, 1989, safety meeting indicating that 

he was aware of a requirement to blow the horn before moving 

the truck. Torres admitted however that he in fact did not 

make it a practice to blow his truck horn or use any other 

signal before pulling away from the crushers if there were no 

persons present. He acknowledged that he had never been 

disciplined for failing to blow his horn before pulling out. 

Alejandro Batista, a supervisory MSHA Inspector 

conducted an investigation at the accident scene on August 

10, 1989. Batista observed that there was indeed a blind 

spot in the front area of the subject trucks. He also 

concluded that the truck driver did not blow his horn before 

moving from the crusher area and that this constituted a 

"serious and sbustantial" violation of the cited standard. 

In reading his conclusion Batista was aware that the 

employees, including the subject truck driver, had signed a 

statement acknowledging the requirement of blowing their horn 

before moving their vehicles, but Batista found that this 

procedure was not enforced at the plant. 

MSHA Inspector Roberto Torres testified that he met with 

Puerto Rican Cement officials in February 1989, to discuss 

new MSHA regulations including the requirement for truck 

drivers to blow their horns before moving their trucks. 

Julio Salugo, an engineer for Puerto Rican Cement 

acknowledged that although they have a disciplinary procedure 

for safety violations none of the truck drivers had been 

disciplined before the accident at issue for failure to blow 

their horns before moving their trucks. He testified that 

subsequent to the accident there has been some disciplinary 

action taken. 

1935 
Former Puerto Rican Cement employee, Freddie·Irizarry, 

testified that while he was employed with the company there 

was indeed a disciplinary procedure in effect. He explained 

that on the first notice of a violation the employees was 

told how to correct the violative act. The second time a 

warning was issued and the employee could be suspended or 

"other appropriate action" could be taken by management. 

Within this framework of evidence it is clear that the 

violition is proven as charged. The testimony of eyewitness 

Angel Torres is not disputed that as the subject truck left 

the crusher its horn was not blown nor was "other effective 

means [used] to warn all persons who could be exposed to a 

hazard from the equipment". Clearly the violation was also 

"significant and substantial". A violation is "significant 

and substantial" if there is an underlying violation of a 

1nandatory standard, the existence of a discrete hazard 

contributed to by the violation, a reasonable likelihooa--that 

the hazard contributed to will result in an injury, and a 

reasonable likelihood that the injury in question will be of 

a reasonably serious nature. Mathies Coal Company, 6 FMSHRC 

1 (1984). The failure to give an audible or other effective 

warning upon leaving the crusher area in the vicinity of 

pedestrian traffic clearly meets this criteria. The 

violation was particularly serious because of the blind area 

from the cabs of the subject trucks. 

Puerto Rican Cement argues that it should not be 

chargeable with significant negligence because it had trained 

and disciplined its employees in the requirements of the 

cited standard. Indeed the evidence does show that at a 

training class held in February 1989 the specific subject 

matter of an audible warning prior to trucks moving was 

covered. Moreover following that class the truck drivers 

signed a statement acknowledging that requirement. The 

evidence shows however that the truck drivers thereafter 

regularly ignored that requirement without discipline before 

the accident here at issue. 

According to truck driver Angel Torres he did not in 

fact issue any audible or other alarm before moving his truck 

so long as he did not see anyone in front. He has 

acknowledged moreover that he had never been disciplined for 

this practice. In light of the evidence that there is an 

obstructed view from these trucks of approxiamtely 43 feet to 

the front and to the right of the driver's position it is 

clear that the procedure followed by Mr. Torres was 

particularly dangerous. The evidence also shows that no 

driver had been disciplined prior to this accident for 

failing to issue an audible or other warning prior to moving 

their trucks. Indeed the persuasive evidence is that there 

was not in effect at this mine an effective means of 

enforcing the alleged rule for an audible warning prior to 

1936 
moving the trucks. Accordingly the operator is chargeable 

with negligence. 

In assessing a civil penalty in this case I have also 

considered the operator's size, history of violations and 

good faith abatement of the violation. Under the 

circumstances I find that a civil penalty of $1,500 is indeed 

appropriate. 

ORDER 

The Puerto Rican Cement Company, Inc rporated, is 

directed to pay a civil $1,500 wi in 30 days of the 

date of this decision. 

Distribution: 

G ry 

Adm in 

James A. Magenheimer, Esq., Offic 

Department of Labor, 201 Varick S 

NY 10014 (Certified Mail) 

of the Solicitor, U.S. 

reet, Room 707, New York, 

Daniel R. Dominguez, Esq., Dominguez & Totti, Puerto Rican 

Cement Company, Inc., P.O. Box 1732, Hato Rey, PR 00919 

(Certified J.lllai 1) 

nb 

1937 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lath FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 111990 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

ERNEST EUGENE WHITE, 

Complainant 

v. 

PEABODY COAL COMPANY, 

Respondent 

PEABODY 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. 

PEABODY COAL COMPANY, 

Respondent 

DISCRIMINATION PROCEEDING 

Docket No. WEVA 90-13-D 

OTC&I-CD-89-14 

Sundial No. 10-B Mine 

CONTEST PROCEEDING 

Docket No. WEVA 90-31-R 

Citation No. 2723186; 11/8/89 

Sundial No. 10-B Mine 

Mine I.D. No. 46-04210 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 90-137 

A.C. No. 46-04210-03678 

sundial No. 10-B Mine 

DECISION 

Appearances: Edward H. Fitch, Esq., Office of the Solicitor, 

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

Before: 

the Secretary of Labor; ' 

Thomas L. Clarke, Esq., Charleston, West Virginia, 

for Peabody Coal Company. 

Judge Fauver 

These three actions, under the Federal Mine Safety and 

Health Act of 1977, 30 u.s.c. § 801 et seq., turn on the issue 

1938 
whether section 103(f) of the Act was violated when the operator 

refused to pay a walkaround representative designated to accompany a federal mine inspector. The inspection party included a 

federal inspector and a West Virginia mine inspector, and concerned a roof fall at Peabody's No. 10-B Mine. The·operator paid 

the miner designated by the miners' representative as the walkaround to accompany the West Virginia mine inspector, but refused 

to pay the walkaround designated to accompany the federal mine 

inspector, contending that one paid walkaround was all that was 

required under section 103(f). 

The parties have filed cross-motions for summary decision 

based upon a stipulated record. 

DISCUSSION 

It is stipulated that on May 16, 1989, the Mine Safety and 

Health Administration (MSHA) and the West Virginia Department of 

Energy (WVDOE) jointly conducted an investigation of a roof fall 

at Peabody Coal Company's No. 10-B Mine. 

Ernest Eugene White, in his capacity as the Union Mine 

Safety Committee Chairman,· designated Bob Holstine, President of 

UMWA, Local Union 2271, as the walkaround representative of 

miners to accompany the state inspector; he designated himself as 

the walkaround to accompany the federal inspector. The inspection party consisted of Jim Cline, an MSHA inspector, Danny 

Graham, A WVDOE mine inspector, Bob Holstine and Ernest Eugene 

White, representatives of the miners, and representatives of 

management. 

After the investigation, the federal and state inspectors 

issued separate citations under their respective mine laws and 

regulations. 

Peabody paid Bob Holstine for the time he spent on the 

inspection, but took the position that its payment of 

Mr. Holstine satisfied its obligation under federal law to 

provide walkaround pay to only one miners' representative per 

inspection. It therefore refused to pay Ernest Eugene White 

walkaround pay. The Secretary of Labor contends that Mr. White 

was entitled to participate in the investigation and to be paid 

as a walkaround in a federal inspection. 

Section 103(f) of the Act provides in part: 

[A] representative authorized by [the] miners shall be 

given an opportunity to accompany the Secretary or his 

authorized representative during the physical inspection of any coal or other mine . • . for the purpose of 

aiding such inspection and to participate in pre- and 

1939 
post-inspection conferences held at the mine. . . . 

Such representative of the miners who is also an 

employee of the operator shall suffer no loss of pay 

during the period of his participation in the inspection . • . . To the extent that the Secretary or the 

authorized representative of the Secretary determines 

that more than one representative from each party would 

further aid the inspection, he can permit each party to 

have an equal number of such additional representatives. However, only one representative of the miners 

who is an employee of the operator shall be entitled to 

suffer no loss of pay during the period of 

participation . . . . 

Under this section, the miners are entitled to have at least 

one walkaround representative on each federal inspection of a 

coal mine. The section also gives the MSHA inspector the authority to determine the number of additional walkarounds that would 

aid in his inspection and the discretion to limit the number of 

walkarounds. Secretary of Labor on behalf of Wayne v. 

Consolidation Coal Company, 11 FMSHRC 483 (1989). An operator is 

required to give at least one miners' representative, and as many 

more as an inspector has determined would aid in his inspection, 

the opportunity to accompany the inspector. The miners have the 

right to determine who shall be given the opportunity to serve as 

their walkaround representatives. Secretary of Labor on behalf 

of Truex v. Consolidation Coal Company, 8 FMSHRC 1293, 4 MSHC 

1130 (1986). However, section 103(f) requires that only one 

walkaround representative suffer no loss of pay for his or her 

time spent on an inspection. If an MSHA inspector chooses to 

permit more than one miners' representative to accompany an 

inspection party, as provided in section 103(f) of the Act, there 

is no federal law or regulation to guide an operator as to which 

of the miner's representatives must suffer no loss of pay. 

In this case, the MSHA inspector permitted two representatives of the miners to take part in the May 16, 1989, inspection, 

even though he found that only one was necessary. Ernest Eugene 

White, as the Union Safety Committee Chairman, designated Bob 

Holstine, President -of UMWA, Local Union 2271, as the miners' 

representative to accompany Mr. Graham, the West Virginia mine 

inspector; he then designated himself as the miners' representative to accompany the federal inspector. Peabody paid 

Mr. Holstine for the time he spent on the inspection, but refused 

to pay Ernest Eugene White, contending that it had complied with 

its obligation under section 103(f) to ensure that one of the 

walkarounds s~ffered no loss of pay. 

The law of West Virginia gives an authorized representative 

of miners walkaround rights similar to the federal rights of 

walkarounds (West Virginia Code§ 22A-1A-12). The Supreme Court 

of West Virginia has held that withholding compensation from a 

1940 
designated walkaround representative is prohibited by the state's 

anti-discrim,ination statute. UMWA v. Miller, 291 S.E. 2d 673 

(1982). Similarly, it is a violation of the federal 

anti-discrimination law, section 105(c) (1) of the Act, 1 to 

refuse to pay an authorized walkaround for his or her time spent 

in accompanying a federal mine inspector. Truex v. Consolidation 

Coal Co., 8 FMSHRC 1293, 1298, 1300 (198 ) ; and Stillian v. 

Quarto Mining Co., 12 FMSHRC 932, 936 (1990). 

The Secretary contends that as Chairman of the Mine Safety 

Committee, Ernest Eugene White properly exercised his responsibility when, after being told by the MSHA inspector that only one 

miners' representative was necessary, he proceeded to go on 

"union business" in order to participate in the federal inspection. He later filed a section 105(c) complaint of discrimination under the Act. The Secretary contends that both sections 

103(f) and 105(c) were violated by Peabody's failure to compensate White as a walkaround to accompany the federal inspector. 

Peabody contends that since both the federal and state 

inspectors were investigating the same roof fall, it complied 

with the federal law by compensating only one miners' representative as a walkaround. 

If Peabody had paid Mr. White, rather than Mr. Holstine, 

there would have been compliance with section 103(f) and no 

1section 105(c) (1) of the Act provides: 

"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 miners or applicant for employment is the subject of medical evaluations and 

potential transfer under a standard published pursuant to section 

101 or because such miner, representative of miners or applicant 

for employment has instituted or caused to be instituted any 

proceeding under or related to this Act or has testified or is 

about to testify in any such proceeding, or because of the 

exercise by such miner, representative of miners or applicant for 

employment on behalf of himself or others of any statutory right 

afforded by this Act." 

1941 
violation of section 105(c), since Mr. White was the designated 

walkaround to accompany the federal inspector. In that situation, the miners would have had to pursue their claim for 

Mr. Holstine under state law. 

If the state and federal inspectors had separately investigated the roof fall on different dates, there is no question that 

Peabody would be required to compensate a walkaround for each 

inspection under the respective federal and state laws. I hold 

that the fact that the inspectors appeared on the same day does 

not alter this responsibility. 

Under federal and West Virginia laws, the miners are 

entitled to have their representatives participate in mine safety 

and health inspections conducted by the respective government 

agencies, whether or not a mine inspection is separately or 

"jointly" conducted. In any inspection, and particularly in an 

accident investigation, the miners are entitled to be confident 

that both federal and state agencies are fulfilling their obligations in determining what actually occurred and in reaching 

proper conclusions as to measures necessary to prevent future 

risks to miners. In the case of a roof fall, for instance, each 

agency's inspector will observe and analyze the facts through his 

own eyes and in his own way. While federal and state inspectors 

may discuss their observations with each other and with the other 

members of the inspection party, they must reach their own independent conclusions. A miners' walkaround should not have to try 

to monitor both a federal and a state inspector at the same time. 

Each inspector has a separate statute and set of regulations to 

enforce, and each has separate factual findings to make and 

separate laws, orders, citations, etc., to consider. 

The federal and state rights of miners to participate in 

inspections should be read in harmony with each other, and not 

interpreted so as to favor one benefit to the exclusion of the 

other. Miners' representatives participating in a "jointly" 

conducted inspection should be able to concentrate on participating effectively in the separate federal and state inspections 

that are actually taking place. 

Accordingly, I hold that Peabody violated sections 103(f) 

and 105(c) (1) by refusing to compens2te Mr. White as a walkaround 

to accompany the federal inspector. 

2 After Citation No. 2723186 was issued, Peabody abated the 

cited violation of section 103(f) by paying White compensation as 

a walkaround in a federal inspection. However, this was not an 

admission of a violation, and Peabody preserved its right to 

challenge the citation before the Commission. 

1942 
Considering the criteria for a civil penalty in section 

llO{i) of the Act, I find that a penalty of $20 is appropriate 

for Peabody's violation of sections 103{f) and 105{c) {l) of the 

Act. 

ORDER 

WHEREFORE IT IS ORDERED that: 

1. Citation No. 2723186 is AFFIRMED. 

2. Peabody Coal Company shall pay a civil penalty of $20 

for its violation of sections 103{f) and 105(c) {l) of the Act. 

Distribution: 

tf)_.;(.t,.,;.,. ~ ~ ~tl\...- W1ll1am Fauver 

Administrative Law Judge 

Edward H. Fitch, Esq., Office of the Solicitor, U.S. Department 

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

{Certified Mail) 

Thomas L. Clarke, Esq., Peabody Coal Company, P.O. Box 1233, 

Charleston, WV 25324 (Certified Mail) 

/fb 

1943 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DCT 1 71990 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

SHAMROCK COAL COMPANY, INC., 

Respondent 

DECISIOl.'l 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 90-75 

A. C. No. 15-11417-03514 

No. 2 Prep Plant 

Docket No. KENT 90-60--

A. C. No. 15-02502-03558 

Shamrock No. 18 Series 

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

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

for the Secretary; 

Neville Smith, Esq., Smith & Smith, Manchester, 

Kentucky, for the Respondent. 

Before: Judge Weisberger 

Statement of the Case 

These cases are before me based upon Petitions for Civil 

Penalty filed by the Secretary (Petitioner) for alleged violations by the Operator (Respondent) of various mandatory safety 

standards set forth in Volume 30 of Code of Federal Regulations. 

Pursuant to notice, Docket No. KENT 90-60 was heard in Richmond, 

Kentucky, on June 7, 1990. John H. Linder testified for 

Petitioner, and Gordon Couch testified for Respondent. In a 

telephone conference call on August 8, 1990, counsel for both 

Parties waived their right to submit a Brief and Proposed 

Findings of Fact. 

On September 4, 1990, Petitioner filed a Joint Motion to 

Approve Settlement concerning the Citations that are the subject 

matter of Docket No. KENT 90-75. 

1944 
Stipulations 

At the hearing, the Parties stipulated as follows: "That 

the proposed penalty will not affect the ooerations of the 

business as would be appropriate, the size~of the business, and 

that th~ Operator has indicated he will comply to nullify the 

violations." (sic) (Tr 6). It was also stipulated that that the 

mine in question produced 768,543 tons of coal in the 24 month 

period preceding the citations at issue, and that Respondent's 

total operations produced approximately 22 millions tons or coal 

in that period. 

Findings of Fact and Discussion 

Docket No. Kent 90-75 

Citation Numbers 2999139 and 3005741 

Petitioner has filed a Joint Motion to approve a settlement 

agreement in this case. A reduction in penalty from $121 to $40 

is proposed. I have considered the representations and documentation submitted in this case, and I conclude that the proffered 

settlement is appropriate under the criteria set forth in Section 

llO(i) of the Act. The Motion for Approval of Settlement is 

GRANTED. 

Docket No. KENT 90-60 

Citation No. 3205519 

On September 20, 1989, MSHA Inspector John H. Linder, while 

performing an inspection of Respondent's No. 18 Mine, observed 

four miners cleaning belts and inquired of them whether they had 

self-contained self-rescue devices. According to Linder, ·che 

miners indicated that these items were located at the head-drive. 

Linder then went to the area of the head-drive along with 

Respondent's Inspector Hurchal Asher, and was able to locate only 

one such device. Linder issued a citation, Number 3205519, 

alleging a violatiorr of 30 C.F.R. § 75.1101-23 which requires 

operators, in essence, to adopt an evacuation plan. The plan 

provides for maximum distances between underground miners and the 

location of self-contained self-rescue devices. Linder's testimony established that there were no self-contained self-rescue 

devices tor each of the £our miners, who were cleaning belts, 

within the maximum distance specified by the plan. (Gx 3, 

Pages 6-3). Respondent did not contest Linder's testimony, and 

indicated that it did not contest the violation. I thus find 

that Respondent herein did violate Section 75.1101-23, sucra, as 

alleged. 

1945 
In the citation, Linder indicated that the.violation herein 

was signif ica.nt and substantial. As set forth by the Commission 

in Mathies Coal Company, 6 FMSHRC 1 (January 1984), the Commission 

set forth the elements of a "significant and substantial" violation 

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: Cl) the underlying violation of a mandatory 

safety standard; (2) a discrete safety hazard--that 

is, a measure of danger to safety--contributed co by 

the violation; (3) a reasonable likelihood that the 

hazard contributed to will result in an injury; and, 

(4) a reasonable likelihood that the injury in question 

will be of a reasonably serious nature. (6 FMSHRC, 

supra, at 3-4.) 

Further, as explained by the Commission in u. s. Steel Mining 

Comoany, 6 FMSHRC 1834, 1836 (August 1984), the third element of 

the above formula set out in Mathies, supra, "requires that the 

Secretary establish a reasonable likelihood that the hazard contributed to will result in an event in which there is injury." Linder, 

in his testimony, did not specifically explain his conclusion in the 

citation that the violation herein was significant and substantial. 

Linder indicated that the self-contained self-rescue device supplies 

oxygen for an hour, and thus would allow a miner using it to 

breathe, should there be an explosion or liberation of methane gas. 

He indicated that in contrast, the miners on the date in question 

had filter type rescuers that did not provide oxygen, and which 

could not be used for some poisonous gases. He indicated that belt 

lines, which were present in the area in question, are a source of a 

fire hazard as their rollers can lock at any time. In this connection, he indicated that coal spilling off a belt can pile up over 

the rollers causing them to heat, which would then cause a fire. 

He indicated that there were additional ignition sources such as 

the existence of electrical power lines along the sides of the 

belt and electrical switches at different locations. With regard 

to the liberation of -methane, he indicated that in the seam in 

which the mine in question is located, "usually" methane is 

potentially present in small amounts (Tr. 21). He also indicated 

that in the subject mine, he was not aware of any methane releases 

in the explosive range. I find that although there were possible 

ignition sources present, there is no evidence as to the specific 

conditions of the sources, upon which to base a conclusion that any 

ignition was reasonably likely to occur. Thus, although Chere was 

~hazard to-the miners in the section in question, as a result 

of not having been provided with rescuers that could supply oxygen 

in the event of a £ire or an explosion, the evidence fails to 

1946 
establish that there was any "rea~onable likelihood" that the 

hazard contributed to would result in an injury-producing event. 

CU. S. Steel Mining Co., supra.) Accordingly, I conclude that it 

has not been established that the violation herein was significant 

and substantial. Gordon Couch, Respondent's safety director, indicated that exposure to carbon monoxide at a level of a half percent 

is immediately fatal. He indicated that the self-rescuer device 

worn by the miners in question is designed to protect, for up to an 

hour, exposure to one percent of carbon monoxide. Essentially, 

according to Couch, if as a consequence of a fire or explosion, 

there remained sufficient oxygen to support life, then the device 

worn by the miners would allow them to breathe, and thus be able to 

travel out of the mine. Essentially, he indicated that the 

self-contained self-rescue units, which did provide oxygen, were 

not more effective. He indicated that if a fire or explosion would 

reduce the oxygen below the level needed to sustain life, then 

neither the device worn by the miners nor the self-contajn 

self-rescue units would help, as any miner present would not 

survive such an event. In contrast, he indicated that should a 

fire or explosion leave sufficient oxygen to sustain life, then 

either device would be adequate to allow the miners present to 

escape. 

I find that Respondent has not contradicted or rebutted the 

testimony of Linder that the device worn by the miners can not be 

used to filter out some poisonous gases. Further, I find 

persuasive the testimony of Linder that in a "big" fire the 

self-contained self-rescue device, which allows one wearing it to 

breathe oxygen, is "real important," and in an explosion one 

would not have a chance without such a unit (Tr. 23). Accordingly, I reject the testimony of Couch, and conclude that the 

violation herein was moderately serious. There is no evidence 

before me to base a conclusion that Respondent herein either knew 

or should have reasonably known that there were not sufficient 

rescue devices, at the appropriate sites, as mandated by its fire 

evacuation plan. Accordingly, I conclude that it has not been 

established that Respondent herein acted with more than a low 

degree of negligence with regard to the violation herein. Taking 

into account the remaining factors of Section llO(i) of the Act, 

as set forth in the Parties' stipulations, I conclude that a 

penalty of $100 is appropriate for the violation found herein. 

Citation 3206149 

On October 3, 1989, Linder cited Respondent for a violation, 

of 30 C.F.R. § 75.1100-2(i)(l), alleging that certain required 

fire fighting-equipment was not provided for the 005 working 

section, which had exceeded a depth of 2 miles from the surface. 

1947 
At the hearing, Respondent conceded the violation and that 

the mine did -produce more than 300 tons per shift and that the 

area in question was at a depth of more than 2 miles. Inasmuch 

as Respondent does not contest the violation cited by Linder, I 

find Respondent violated Section 75.ll00-2(i)(l), supra, as 

alleged. 

Linder indicated, in the citation, that the violation was 

significant and substantial. He indicated, in his testimony, 

that the purpose of the requirement for the provision of certain 

emergency materials was to enclose an area to keep gas out in the 

event of an explosion, or to conserve oxygen in the event of a 

roof fall. In this connection, he described the roof conditions 

as average. Also, he indicated that the belt conveyor was a 

source for a fire along with equipment in the area, such as 

continuous miners, scoops, motors, bolters, and high voltage 

cables, all of which he termed as po~ential sources of fire. He 

indicated that an illness or injury could result in the event of 

an explosion if the necessary materials were not present. However, he indicated that in the absence of an explosion, the lack 

of such required materials in and of itself would not reasonably 

likely cause an illness or injury. 

Inasmuch as Linder did not off er any facts to substantiate 

his conclusion, as set forth in the Citation, that the violation 

was significant and substantial, and inasmuch as the record fails 

to establish that the hazards contributed to by the. lack of the 

emergency equipment, were not reasonably likely to occur, I conclude that the violation herein has not been established to be 

significant and substantial. (Mathies, supra.) Although some of 

the required materials were available at the section, they were 

being used at the face. Further, according to Couch, certain 

materials were not present in the quantities mandated by 

Section 75.1100(a)(2)(i)(l), supra. Thus, he indicated that 

there was lacking 1000 feet of lumber and five full tons of rock 

dust. He indicated that he doubted that the quantity of nails 

required were present, and whether there were two complete unused 

rolls of brattice cl.0th. 

Inasmuch as the emergency materials, which were not on the 

section, were to be used, as testified to by Linder and not 

contradicted by Respondent, to conserve oxygen in case of a roof 

fall and to keep gas away in the event of an explosion, I conclude that the violation herein was moderately serious. 

According to the testimony of Linder, and not contradicted 

by Respondent,-around May or June i990, he had spoKen to Steven 

Shell, Respondent's safety inspector, with regard to emergency 

materials, and the latter told him that " ••. he was going to 

continue to work on it trying to get the materials." (sic) 

(Tr. 44). Shell also told Linder that another MSHA Inspector, 

1948 
Denver Rich, also spoke to him about having emergency materials 

at the 2 mile depth. Thus, I find that Respondent was aware of 

the necessity of having emergency material once the work section 

had reached 2 miles from the surface. Accordingly, I find 

Respondent was negligent to a moderately high degree in not 

having the required materials present. I conclude that a penalty 

of $150 is appropriate for the violation found herein. 

Citation 3206154 

On October 5, 1989, Linder, while walking in a crosscut, 

at the No. 9 Section, between Entries 3 and 4, observed dust in 

the air, and "there wasn't nothing moving." (sic) (Tr. 65). 

Linder timed the movement of the air, by using a smoke club, at 

4604 cubic feet per minute, between Entries 3 and 4 in the crosscut, which was the last crosscut in ~n inby direction before the 

working face. According to Linder, a roof bolter was lQcated at 

the end of Entry No. 1, a continuous miner was located at the end 

of Entry No. 5, and that these two areas were the working faces 

or working places. The crosscut in which Linder measured the 

movement of air, ran between Entries 1 and 6, and was the last 

crosscut in an inby direction prior to the working faces. At the 

time of Linder's inspection, intake air entered the crosscut in 

question from Entries 5 and 6, and then coursed in the direction 

of Entry No. 1 where it turned outby and became return air. Air 

also returned outby and down Entries 2 and 3 as curtains were 

down in those entries. At the time of Linder's inspection, a 

line curtain was nanging in the crosscut in question between 

Entries 4 and 5. At the date in question, as explained by Couch, 

the Entries 5 and 6 were development entries. However, he also 

indicated that as part of the normal mining cycle, the continuous 

miner takes 30 foot cuts and moves from Entries 5 to 4 to 3 to 2 

to 1, respectively. 

Linder issued a citation alleging a violation of 30 C.F.R. 

§ 75.301 in that only 4604 cubic feet per minute was reaching the 

last open crosscut between the No. 3 and 4 Entries. Section 

75.301, supra, as pertinent, provides that the minimum quality of 

air reaching the last open crosscut " ••• in any pair or set of 

developing entries" shall be 9000 cubic feet per minute. 

Essentially, it is Respondent's position that it did not 

violate Section 75.301, supra, as the movement of air was not 

tested at the proper place. In this connection, Respondent 

refers to the testimony of Couch that the air should have been 

tested in the crosscut between Entries 4 and 5, as these were the 

development entries. Couch also referred to the fact that the 

crosscut, between Entries 4 and 5, was closed with a curtain. 

Essentially, Couch also referred to Section 75.301, which set 

forth its purpose in requiring a flow of 9000 cubic feet a minute. 

1949 
The stated purpose of this requirement is to render harmless 

methane when.coal is being cut, mined or loaded. Accordingly, 

Couch indicated that it would not be desirable to have air 

flowing at 9000 cubic feet a minute to the left of Entry No. 5, 

and going in the direction of Entry No. 1, as air leaving the 

continuous miner in Entry No.5 would contain dust and fumes. For 

the reasons that follow, I do not agree with Respondent's arguments, and find that the areas, in which Linder tested the volume 

of air, was in the last open crosscut, and the volume of air 

tested was below the maximum required by Section 75.301, supra. 

In Jim Walter Resources, Inc., 11 FMSHRC 21 (January 1989) 

the Commission, in analyzing the term "last open crosscut," for 

purposes of deciding whether a violation of 30 C.F.R. § 75.SOO(d) 

occurred, took cognizance of the fact that a "crosscut" " .•• is 

recognized to be a passageway or opening driven between entries 

for ventilation and haulage purposes." (Jim Walter, suo_ra, 

at 26). Further, in Jim Walter, supra, at 26, the Commission 

found that a "last open crosscut" is that open passageway connecting entries closest to the working face. The Commission also 

noted the following definition of "working face" as set forth in 

Section 318(g)Cl) of the Federal Mine Safety and Health Act of 

1977, and 30 C.F.R. § 75.2(g)(l) as follows: "any place in a 

coal mine in which work of extracting coal from its natural 

deposit in the earth during the mining cycle is performed ••.• " 

The Commission in Jim Walter, supra, was presented with the 

issue, for purposes of applying 30 C.F.R. § 75.1710-1, of whether 

certain equipment was "permissible." The Commission referred to 

Section 318(i)(8) of the Act as defining "permissible electric 

face equipment" as those electrically operated equipment taken 

into or used inby the last open crosscut. With regard to the 

term "last open crosscut" the Commission in Peabody Coal Con,.pany, 

11 FMSHRC 4, 8 (January 1989), found as follows: "In general, 

the last open crosscut thus refers to the last (most inby) open 

passageway between entries in a working section of a coal mine. 

The last open crosscut 'is an area rather than a point of 

line ..• ' Henry Clay Mining Comoany, 3 IBMA 360, 361 (1974>." 

The Commission, in Peabody, supra, at pages 8-9, found that a 

determination by the-Trial Judge of the boundaries of the area of 

the last open crosscut to be demarcated by, inter alia "air flow 

across the developing entries of a working section ...• ," to 

comport with commonly accepted mining terminology. 

Applying the rationale of Peabody, supra, and Jim Walters, 

suora, to the case at bar, I conclude that, inasmuch as during 

the course of the normal mining cycle, coal will be extracted 

from the face of No. 4 and No. 3 Entries, it follows that the 

last crosscut before the face, between these two entries, is to 

be considered the last open crosscut (See also, Consolidation 

Coal Company, 3 FMSHRC 678, 685-686 (1981)) (Judge Cook). As 

1950 
such, I find that Linder took air measurement readings at the 

proper location. Respondent has not refuted the testimony of 

Linder that, in the last open crosscut between the 3rd and 4th 

Entries on the date in question, there were only 4604 cubic feet 

per minute of air. Inasmuch as 9000 cubic feet per minute is 

required by Section 75.301, suora, I conclude that Respondent 

herein did violate that section. 

The Citation issued by Linder denotes the violation as being 

significant and substantial. Linder did not testify at all with 

regard to the facts upon which he based this conclusion. Nor did 

his testimony at all refer to the characterization of the violation as significant and substantial. I thus conclude that it has 

not been established by Petitioner that the violation herein was 

significant and substantial. (See Mathies, supra.) 

According the the uncontradicted testimony of Lind~r, when 

he observed that there was notning moving in the air in the last 

open crosscut between the 3rd and 4th Entries, he told this to 

the foreman Terry Couch. The latter indicated that a curtain had 

been torn down by a scoop, and that he would replace those 

curtains that have been denoted on Gx 9 with a red circle as 

having been torn. The record does not indicate when the tearing 

of the various curtains had occurred. I conclude that it has not 

been established that Respondent acted with more than moderate 

negligence in connection with the violation. 

As set forth in Section 75.301, supra, the purpose of sufficient ventilation is to " ••• dilute, render harmless and to 

carry away, flammable, explosive, noxious, harmful gases, dust, 

smoke, and explosive fumes." Thus, inasmuch as the measured air 

of 4604 cubic feet per minute was significantly below the requirement in Section 75.301, supra, of 9000 cubic cubic feet per 

minute, I conclude that the violation herein was of a moderately 

high level of gravity. I conclude that Respondent shall pay a 

penalty of $175 for the violation found herein. 

Citation 3206155 

On October 12, 1989, Linder issued a citation alleging a 

violation of 30 C.F.R. § 75.1101-10 in that the water sprinkler 

system at the 005 working section head-drive did not stop the 

belt conveyor or give an audible or visible alarm when tested. 

In his testimony he explained that it was not hooked up to the 

power source, and as such could not either stop the belt in the 

event of a fire, or provide an audible or visible alarm. 

Respondent di-d not contradict Linder' s testimony, and indicated 

that it conceded the violation. Accordingly, based upon this 

concession as well as the evidence before me, I conclude that 

Respondent herein did violate Section 75.110-10, suora, as 

alleged. 

1951 
In the Citation issued by Linder, it was indicated that the 

violation was significant and substantial. Linder did not make 

any reference in his testimony to his conclusion that the violation was significant and substantial. clor did Linder adduce any 

facts in his testimony which would tend to support such a 

conclusion. 

Linder indicated that at the time the violation was cited, 

the belt was in operation, and in the event of a fire, the 

sprinkler system, being unplugged, would not have been able to 

stop the belt and prevent the fire from spreading. He agreed 

that coal dust is a hazard, and that belt rollers tend to stick 

and heat up, and that if coal dust piles up around the rollers, 

a fire could result. He indicated that in such an event, fire 

could spread to the belt drive, and "it could be carried around" 

(Tr. 103). I find this evidence insufficient to establish that 

there was a reasonable likelihood of ·a fire occurring. 

I thus conclude that it has not been established by Petitioner 

that the violation herein was significant and substantial. (See, 

Mathies, supra: u. s. Steel Mining co.). 

There is no evidence before me to indicate how long, prior 

to Linder's inspection, the water sprinkler system was unhooked. 

Nor is there any evidence to establish that Respondent either 

knew, or should have been aware, of this condition. Hence, I 

conclude that Respondent's negligence, in connection with this 

violation, was only low. The sprinkler system extended only 

SU feet along the head of the belt. However, in addition, there 

was a fire sensor line all along the belt which would give a 

warning siren in the event of a fire. Although this device would 

not shut off the belt, it could be shut off at the head-drive by 

a switch, or could be shut off from the outside. I thus find 

that the gravity of the violation was only moderate. I conclude 

that a penalty of $100 is appropriate for this violation. 

ORDER 

It is ORDERED that Respondent shall, within 30 days of this 

Decision, pay $883~/ as a Civil Penalty for the violations found 

herein. 

~~ Avram weisberger 

Administrative Law Judge 

I/ Included in this figure is a penalty of $318 for the 

violations alleged in Citation Nos. 3206153 and 3206157 which 

were not contested by Respondent in its Answer. 

1952 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 1 7 \990 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA)~ 

Petitioner 

Docket No. LAKE 90-11-M 

A.C. No. 11-00136-05505 

v. 

Valley Plant No. 7 

MOLINE CONSUMERS COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION 

Rafael Alvarez, Esq., Office of the Solicitor, 

U.S. Department of Labor, Chicago, Illinois, for 

the Petitioner; 

James R. Papenhausen, Safety Director, Moline 

Consumers Company, Moline, Illinois, for the 

Respondent. 

Judge Koutras 

Statement of the Case 

This is a civil penalty proceeding initiated by the petitioner against the respondent pursuant to section llO(a) of the 

Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 820(a). 

Petitioner seeks a civil penalty assessment in the amount of $160 

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

§ 56.14107. The respondent filed a timely answer contesting the 

alleged violation, and a hearing was held in Moline, Illinois. 

The parties were given an opportunity to file posthearing briefs. 

The Petitioner opted not to file a briefr but the respondent 

filed a letter stating its position. I have considered this 

argument, as well as the arguments made by the parties during the 

hearing in my adjudication of this matter. 

Issues 

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

respondent violated the cited mandatory safety standard, and if 

so, (2) the appropriate civil penalty 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 this decision. 

1953 
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) and llO(i) of the Act. 

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

stipulations 

The parties stipulated to the following (Exhibit ALJ-1): 

1. The Federal Mine Safety and Health Review Commission has 

jurisdiction over these proceedings. 

2. Respondent's operation affects interstate comme£ce. 

3. The Valley Quarry does not ship out of Illinois. 

4. Respondent owns and operates the Valley Plant No. 7. 

5. The Valley Plant No. 7 extracts limestone which is 

crushed and broken. 

6. Respondent worked 16,097 manhours from October 16, 1988 

through October 16, 1989 at the Valley Plant No. 7. 

7. Respondent worked 430,086 manhours from October 16, 1988 

through October 16, 1989 at all of its mines. 

8. Moline Consumers Company is a corporation. 

9. Respondent had four violations in the preceding 

24-months ending on October 16, 1989. 

10. On June 21, 1989 an Inspector from the Federal Mine 

Safety and Health Administration conducted an inspection on the 

Valley Plant No. 7. 

11. On June 21, 1989, Citation No. 3258150 was issued to 

respondent. (ALJ Exhibit 1-(A). 

12. On August 14, 1989, a section 104-b Order No. 3259254 

was issued to respondent. (ALJ Exhibit 1-(B). 

13. A pr-0posed assessment was issued to respondent on 

October 16, 1989. (ALJ Exhibit 1-(C). 

14. A proposed assessment of $160 would not affect respondent's ability to continue in business. 

1954 
Discussion 

Section 104(a) non-S&S Citation No. 3258150, June 21, 1989, 

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

§ 56.14107, and the cited condition or practice states as 

follows: "The 'V' belt drive that powers the primary crusher 

motor was not provided with a guard. The crusher was operating 

at the time of this observation." 

The inspector fixed the abatement time as 8:00 a.m., 

June 26, 1989. 

On August 14, 1989, section 104(b) withdrawal Order 

No. 3259254, was issued because of the alleged failure by the 

respondent to provide a guard for the cited belt drive in question within the time fixed for abatement. The order was terminated within 40 minutes after it was issued after the respondent 

provided a guard for the cited piece of equipment. --

Petitioner's Testimony and Evidence 

MSHA Inspector Jimmie L. Davis confirmed that he conducted 

an inspection at the respondent's mine on June 21, 1989, and 

after observing that the primary crusher V-belt drive was not 

guarded, he issued the contested citation. He explained that 

there was a gate at the crusher location, but it was partially 

opened and unlocked. He identified photographic exhibits P-1 

through P-6 as the cited crusher in question. The lock was a key 

padlock, and the crusher was running and operating at the time of 

the inspection, and the crusher operator was in the crusher booth 

approximately 10 to 12 feet above the crusher location, as shown 

in exhibit P-3 (Tr. 9-11). 

Mr. Davis stated that the citation was non-S&S, but that the 

unlocked gate presented a hazard in that "somebody could get in 

through the pinch point of the V-belt drive" (Tr. 11). He cited 

a violation of section 56.14107, because the guard was not in 

place and a person could come in contact with the pinch point. 

He confirmed that if-he had found the gate locked with a padlock, 

rather than bolted shut, he would have still issued a citation 

because MSHA's policy, as explained to him, is that padlocks are 

not acceptable as guards. If the gate had been bolted, he would 

not issue a citation. If the guard were in place around the 

V-belt drive, and the gate were padlocked, he would not issue a 

violation (Tr. 13). 

Mr. Davis explained that a bolted gate would be acceptable 

in lieu of a guard around the individual crusher components 

because a bolted gate provides a barrier or barricade preventing 

anyone from entering the crusher area. A bolt with a nut 

inserted into the gate to hold it together so that a wrench would 

be needed to remove it would be acceptable as a guard (Tr. 14). 

1955 
Mr. Davis stated that plant superintendent Jeff McGee, who 

accompanied him during the inspection, advised him that the 

crusher operator had the key to the padlock, but Mr. McGee could 

not explain why the gate was unlocked, and he surmis~d that the 

crusher operator had done some work greasing, oiling, or checking 

the crusher and failed to lock the gate (Tr. 15). 

Mr. Davis stated that he based his gravity finding of 

"unlikely" on the fact that no one was in the crusher area at the 

time he observed the cited condition, but he believed that an 

injury would be "permanently disabling" if someone had come in 

contact with the pinch point. If this had occurred, "an arm 

could have been cut off or a leg. They would have been mangled 

up" (Tr. 16). One person would be exposed to the hazard while 

cleaning up or greasing in the crusher area (Tr. 16). 

Mr. Davis stated that he based his "moderate" negligence 

finding on the fact that the crusher gate was the only gate on 

the property being used as a guard. All other moving machine 

parts at the site were properly guarded with guards in place at 

the individual pinch points, and in view of this, he believed 

that the respondent should have known that the crusher V-belt 

drive should have been guarded (Tr. 17). 

On cross-examination, and in response to a hypothetical 

question, Mr. Davis confirmed that if he had a storage shed on 

his property, he would prefer to secure it with a padlock rather 

than a bolt because he would be the only person with a key, he 

could control access to the shed, and he would probably be the 

only person there (Tr. 19). He confirmed that in the normal 

course of business, no one other than the crusher operator would 

be expected to be close to crusher. He confirmed that he did not 

see the key and did not ask the crusher operator about it (Tr. 

21) • 

Mr. Davis explained that the use of a bolt provides a 

barrier to the crusher area, and he conceded that any guarding 

device which is easier to remove and replace would more likely be 

replaced once it has-been removed (Tr. 24). According to his 

training, one bolt would constitute a permanent barrier, as long 

as it is the proper size and length so that it can be used with a 

nut (Tr. 24). 

Mr. Davis stated that even though the crusher operator was 

in his booth, it was possible for someone else to gain access to 

the crusher, and this would pose a hazard. Although he made no 

determination -in this case that a supervisor would walk into the 

area to visit the crusher operator, he believed that a supervisor 

who is responsible for the safe operation of the crusher is 

supposed to check it, and he could visit the crusher area with 

the gate unlocked. If he were to travel inside the gate area, 

1956 
near the unguarded pinch point, he would be exposed to a hazard 

(Tr. 27). Mr. Davis confirmed that he interviewed the supervisor, but did not ask him if he ever walked into the crusher 

area while it was operating (Tr. 27). When asked whether he made 

any determination that anyone else would likely walk -through the 

unlocked gate while the crusher operator was in his booth, 

Mr. Davis stated that the only person present was the loader 

operator, and if he had observed someone cleaning in the crusher 

area, he would have issued an "S&S" citation (Tr. 28). 

Mr. Davis identified a ladder shown in some of the photographs, and he explained that it is used by the crusher operator 

to reach his booth. He stated that the ladder "goes by the place 

in question" (Tr. 28). He stated that a supervisor has a duty to 

conduct a walkaround inspection of the crusher area while it is 

operating, but that he would not have to walk inside the gate 

area to do this, and would not have to use the walkway into the 

crusher area if he were simply there to.speak to the crusher 

operator (Tr. 29). 

MSHA Inspector Robert Flowers, confirmed that he visited the 

site on August 14, 1989, to conduct a follow-up inspection with 

respect to the citation previously issued by Inspector Davis and 

that he was accompanied by Mr. McGee. Mr. Flowers stated that he 

found the crusher V-belt drive unguarded, but could not recall 

whether the gate in question was locked or open. He confirmed 

that he issued a section 104(b) order because the crusher V-belt 

drive had not been provided with a guard. Assuming the gate were 

locked with a pad lock, he would still have issued the order 

"because in our training and everything, we do not accept locked 

gates with a padlock as a guard" (Tr. 35) • He would have 

accepted a bolted gate as a suitable guard because "the guide is 

that locked gates with a bolt become a permanent fixture" (Tr. 

36). If there were no gate, and there was a proper guard over 

the belt drive, this would have been acceptable. The order was 

terminated after the superintendent installed a guard over the 

belt drive (Tr. 36). 

Mr. Flowers stated that he informed Mr. McGee that MSHA does 

not accept padlocked gates as a guard and that the belt drive 

pinch point needed to.be guarded with a guard. Mr. McGee then 

informed him that he had been instructed not to guard it and to 

simply post warning signs on the gate. Mr. Flowers confirmed 

that the signs were on the gate. Mr. McGee then called his 

supervisor, Mr. Marshall Guth, vice-president for operations, and 

Mr. Flowers spoke with him and explained MSHA's policy, and 

Mr. Guth instructed Mr. McGee to guard the pinch point. The 

guard was fabricated with two pieces of expanded metal and it was 

installed within 40 minutes. Mr. Flowers found it acceptable 

(Tr. 38) . 

1957 
Mr. Flowers confirmed that in the event he returned to the 

site, and found a bolt through the gate, rather than a guard over 

the belt drive, he would find this acceptable as long as it was a 

proper bolt which required the use of wrenches to remove it (Tr. 

39). Mr. Flowers confirmed that the crusher operator-was in his 

booth at the time of his inspection (Tr. 40). 

Mr. Flowers stated that in his experience as an inspector, 

employees who work on a crusher would generally inspect it to see 

that it is operating properly, and would perform maintenance work 

on it to replace missing belts or to check for leaks (Tr. 40). 

He confirmed that he has observed a primary crusher in operation, 

and that people will inspect it from time to time during the day 

while it is running. If an employee were to walk into the area 

of an unguarded belt drive he would be exposed to a hazard while 

inspecting the crusher during any daily work shift (Tr. 41). 

On cross-examination, Mr. Flowers stated that he was standing on the walkway next to ·the gate, but did not consider himself 

to be in any danger because he did not enter the crusher area. 

Assuming that the gate were locked, he could not have accidentally contacted any of the crusher pinch points, and he would 

have to go to a great deal of effort, or climb over the gate, to 

reach any pinch points (Tr. 43). A superintendent or anyone else 

walking around the plant would also experience the same difficulty in reaching the pinch point area. However, if the gate 

were bolted, rather than padlocked, the amount of effort to reach 

the pinch point area would be different because the individual 

would have to obtain a wrench to remove the bolt, or he would 

have to obtain a key if it were padlocked. Mr. Flowers agreed 

that a guard would more likely be replaced if it can be replaced 

easily instead of with difficulty. He also agreed that there was 

no remote way anyone could accidentally contact the drive in 

question with the gate locked (Tr. 44). 

When asked about the practical difference between the use of 

a bolt and a padlock, Mr. Flowers responded "it's that you have a 

quicker access to the area with a padlock and a key than you do 

with a bolt and nut on it. You can get in and out faster and 

quicker" (Tr. 46). In response to further questions, he stated 

as follows (Tr. 46-47): · 

JUDGE KOUTRAS: There is only one key and the operator 

has specific policies and safety rules and controls, 

limited access. Would that make any difference. 

THE WITNESS: We still have accidents from this type of 

incident. 

1958 
JUDGE KOUTRAS: If there is only one key and only one 

man has.access to it, he's up in his. tower and the 

thing is padlocked, there is no way anybody can get in 

there. Is that right? 

THE WITNESS: Should be. 

JUDGE KOUTRAS: If a guy is up in the control tower and 

there is one bolt in it and somebody wanted to get in 

it, all they would have to do is take a wrench and open 

it up, and the fellow with the wrench can get into the 

area. 

THE WITNESS: Yes. 

JUDGE KOUTRAS: This theory about one bolt as opposed 

to a padlock, does that come from the notion that 

exposed pinch points and drives of this kind have t~ be 

permanently guarded? In other words, instead of guarding the particular "V" belt drive here, you take a 

larger guard, which is the size of a gate, and you put 

it out by that. You put a bolt in it, and that's 

sufficient. That provides a barrier from somebody 

getting in there. Is that the theory? 

THE WITNESS: Yes. 

JUDGE KOUTRAS: And a padlock is not that kind of a 

barrier then. 

THE WITNESS: No. 

JUDGE KOUTRAS: Is that policy written anywhere, this 

padlock versus 

THE WITNESS: No. 

MSHA Suoervisorv Inspector Ralph D. Christensen, Peru field 

office, confirmed th9t he supervises Mr. Davis and Mr. Flowers, 

and is aware of the citation and order issued in this case. He 

stated that MSHA's policy is not to accept padlocks on gates as 

equipment guards. However, if the gate were bolted, it would be 

acceptable because "it becomes a barrier" (Tr. 51). He explained 

that a padlock is not acceptable because an operator can readily 

use a key and enter the area while a crusher is running, and that 

in his personal experience he has found numerous occasions where 

the locks are_not locked. He stated that when he was hired as an 

inspector in 1978, he was informed by his supervisor during his 

orientation that a padlock is not an acceptable way of providing 

a guard for a pinch point. He confirmed that he has consulted 

with his district manager and with MSHA's chief of safety in 

1959 
Arlington, Virginia, and they confirmed that padlocks are absolutely not acceptable as a guarding device (Tr. 53). 

Mr. Christensen stated that if the gate were locked and the belt 

was not guarded "we would have issued a violation because our 

history shows that they leave the lock unlocked and people can 

enter into the area at any time" (Tr. 53). 

Mr. Christensen explained the purpose of a bolt as follows 

(Tr. 54) : 

A. The bolt on a gate turns the gate and that fence 

area into a wall, a barrier that's not readily accessible for employees to walk in there while it's 

running. They have to work on it to get in there, 

perhaps like a mechanic going in to service equipment. 

They unbolt guards to get in that equipment, and we 

would view this then as unbolting to get into the 

equipment to maintain it. 

Q. Are you assuming that the equipment would be shut 

down? 

A. They're required to lock out before they go into 

the area to do maintenance work. 

Q. In other words, by "lock out," the crusher would 

not be operating, right? 

A. Right. 

Mr. Christensen confirmed that in the event a bolted gate is 

used to guard equipment such as a V-belt drive, if the gate is 

unbolted, this would constitute a violation of the standard cited 

in this case (Tr. 55). 

On cross-examination, Mr. Christensen confirmed that bolted 

guards are left off "all the time" and that people do leave them 

off notwithstanding any MSHA or operator policies requiring them 

to be replaced (Tr. _55). In his opinion, access to a particular 

area can be better controlled by the use of a bolt rather than a 

padlock because an employee with a key can gain access into the 

area any time while the drive is running, but a crusher operator 

would not have a wrench because his duty is to see to it that the 

crusher does not become plugged and that the material is flowing. 

Maintenance men would normally carry wrenches. He estimated that 

it would take 5 seconds to unlock a padlock with a key, and 10 to 

15 seconds to_ remove a bolt with a wrench (Tr. 56). The use of a 

bolt would restrict access to a crusher operator who normally has 

no business in the area because a maintenance man would generally 

take care of the drive unit (Tr. 57). 

1960 
In the case of electrical lockout devices, Mr. Christensen 

stated that padlocks are used instead of bolts because the electrical boxes are designed for that purpose. If a box were 

designed for the use of a bolt, the use of the bolt would be 

illegal because anyone could remove the bolt at anytime and the 

person locking out the box with a bolt would not have control 

over anyone else removing it. By providing a lock, the person 

locking out the box has the only key and he is the only person in 

control (Tr. 58). A crusher operator with a key can unlock the 

gate and enter the area where the drive is running, and with a 

wrench, he could also enter the area, but it might take 

10 seconds longer to do so (Tr. 58). 

Oscar W. Ellis, respondent's president, testified that he 

has a degree in mining and engineering from the University of 

Arizona, and that he designed the primary crusher operation in 

1980. He stated that the crusher platform is approximately 

6 feet long and 16 feet wide, and he.described the equip1nent 

located in that area (Tr. 62). He stated that the area was 

designed to provide adequate walking clearances and that it has a 

2-foot wide walkway around the equipment to provide ready access 

to the equipment. He stated that "it would be stupid" for anyone 

to walk around that area with the crusher in operation because 

the pinch point would be dangerous, and he agreed that if someone 

were to circumvent the gate he could come in contact with a pinch 

point similar to a situation where an attached guard is removed 

from a particular pinch point (Tr. 64). 

Mr. Ellis confirmed that he would expect the crusher operator to have a key to the padlocked gate in question, but he did 

not know who else would have one. He confirmed that a superintendent or maintenance personnel would not have a master key to 

all of the plant locks because many of the locks are not associated with master keys. He did not know whether extra keys to the 

gate in question would be available to anyone other than the 

crusher operator (Tr. 65). Mr. Ellis believed that the chances 

of someone being accidentally injured with the use of a padlocked 

gate or properly-designed guard over the pinch point "is virtually zero" (Tr. 65)._ He further believed that the possibility of 

any injury is greater by using a guard over the belt drive 

because such a gua~d would probably weigh 50 pounds and someone 

could twist their back lifting it if they were bent over and 

picked it up the wrong way (Tr. 66). He also believed that 

someone would more likely replace a guard which has been removed 

if its easier to do so (Tr. 67). 

Mr. Ellis agreed that a bolt would be adequate, but he did 

not believe that it was as safe as using a lock. He alluded to 

equipment guards used in quarries which are provided with hinges 

and twist locks by the manufacturer to prevent access to the 

equipment. He agreed that if a bolt were taken off the gate, it 

would be the same as leaving a guard off, and that it would need 

1961 
to be replaced. He confirmed that the only time anyone would be 

in the area which was cited in this case would be for the purpose 

of performing maintenance work, but the crusher would not be 

running and it would be locked out. He confirmed that his company policy is to have the gate locked and there is very little 

need for maintenance in that area. The gates were part of the 

initial design of the crusher plant and they were installed 

before the plant went into operation (Tr. 69). He pointed out 

that he tries to interpret MSHA's regulations "as best we can" 

and that he tries to provide a solution which is both practical 

and safe to prevent accidents (Tr. 70). 

Mr. Ellis stated that at the time Mr. Davis conducted his 

inspection he (Ellis) was unhappy that the gate was unlocked and 

that Mr. McGee was specifically instructed to make sure the gate 

was always locked in accordance with company policy (Tr. 71). At 

the time Mr. Flowers visited the site, the gate was locked and 

warning signs were posted to emphasize the point to anyone who 

might go into that area (Tr. 71). He was not certain when any 

discussion with Mr. Davis over the use of padlocks may have taken 

place, and he believed that he had complied with the law and 

should not have been cited by Mr. Flowers in August. He also did 

not believe that the use of a bolt rather than a lock made much 

sense because he would have better control over who would go in 

and out of the cited area by using a lock rather than a bolt (Tr. 

72). He confirmed that he now understands MSHA's theory with 

respect to the use of a bolt, but believes that it is incorrect 

(Tr. 73). He pointed out that there are many hinged equipment 

guards in use in quarries which are held in place by twist locks 

and they are not bolted (Tr. 73). 

Mr. Ellis stated that a supervisor or foreman is instructed 

to make a complete inspection of the mine every day, and that he 

would walk around the crusher area and talk to the crusher operator. He could walk up to the booth by using the ladder, but he 

would not step off onto the platform, but would go directly to 

the booth. He confirmed that Mr. McGee is also a mining engineer 

and is a good and knowledgeable superintendent and would not 

tolerate any unsafe_conditions. Mr. Ellis did not dispute the 

fact that the gate was unlocked when Mr. Davis conducted his 

inspection, and he guessed 'that someone had gone into the area 

but was careless after leaving the area and did not lock the gate 

when he left (Tr. 75). 

Respondent's Testimony and Evidence 

James Papenhausen, respondent's safety director, testified 

that company policy requires that a particular piece of equipment 

be deenergized or locked out at its power source before any guard 

is removed so as to eliminate the chance of an accidental 

startup. He confirmed that the respondent has disciplinary 

measures, including discharge, in place which are used in the 

1962 
case of any employee violating company or federal policies 

regarding th_e removal of guards in areas where they may be working. He cited an example of an employee who was discharged for 

refusing to wear safety glasses (Tr. 78). 

Mr. Papenhausen stated that prior to Mr. Flowers' inspection, the superintendent was instructed to lock the gate and the 

signs were put in place before that inspection. He confirmed 

that after that inspection, makeshift guards were installed to 

abate the citation, and approximately 3 days later after telephone conversations and an exchange of correspondence with 

Mr. Christensen, the guard was removed from the crusher belt 

drive after the respondent was advised that a gate would be 

acceptable to MSHA if the lock was removed and replaced with a 

bolt. He confirmed that this was done. He also confirmed that 

the respondent also installed bolts on similar gates which are 

used at all of its mine sites to avoid being continually cited 

for using padlocks. However, in addition to the bolts, ·-the 

respondent also uses padlocks in keeping with its policy (Tr. 

80). He confirmed that the signs are merely to remind employees 

that they are not allowed in the crusher areas in question (Tr. 

81). Mr. Papenhausen pointed out, however, that the respondent 

operates mines in st. Louis, which are under the enforcement 

jurisdiction of another MSHA district, and in "exactly the same 

situation" as this case, and it uses padlocks rather than bolts • 

. One mine has been in operation for 2 years, has had five or six 

MSHA inspections, and it has never been cited for using padlocks 

and the issue has never come up (Tr. 87-88). 

Mr. Papenhausen stated that in no instance has the respondent ever guarded large plant areas with gates. The guards are 

always in close proximity to the crusher equipment and enclose a 

natural area immediately around the drive (Tr. 82). He made 

reference to MSHA's "guide for guarding" and pointed out that the 

respondent tries to take into consideration all of the guarding 

criteria in order to provide adequate guards (Tr. 82). 

Findings and Conclusions 

Fact of Violation 

The respondent is charged with a violation of mandatory 

safety standard 56.14107, which provides as follows: 

§ 56.14107 Moving machine parts. 

(a)_ Moving machine parts shall be guarded to 

protect persons from contacting gears, sprockets, 

chains, drive, head, tail, and takeup pulleys, flywheels, couplings, shafts, fan blades, and similar 

moving parts that can cause injury. 

1963 
(b) Guards shall not be required where the 

exposed moving parts are at least seven feet away from 

walking or working surfaces. 

The facts in this case reflect that Inspector Davis cited 

the respondent with a violation of section 56.14107, on June 21, 

1989, after observing that the belt drive which powered the 

primary crusher was not guarded while the crusher was in operation. Although the drive was not physically guarded at the drive 

location, the respondent had a well constructed gate in place at 

the entranceway of the platform area where the drive was located. 

The respondent's policy required that the gate be kept locked 

with a padlock at all times while the crusher and drive were in 

operation, but at the time of the inspection, the gate was 

unlocked and opened, allowing anyone to freely enter the 

unguarded crusher drive area. 

Inspector Davis established June 26, 1989, as the abatement 

date for the violation. Inspector Flowers went to the mine on 

August 14, 1989, for a follow-up inspection, and after finding 

that the previously cited drive was not guarded, and that "no 

action was taken to correct the violation," he issued a section 

104(b) order for non-compliance. The respondent's credible and 

unrebutted testimony establishes that the gate was locked with a 

padlock, and that the key was in the possession of the crusher 

operator who was in his control booth which was elevated above 

the crusher platform and physically separated from the platform 

by the locked gate. The violation was abated and terminated 

after the respondent promptly fabricated and installed a guard 

over the crusher drive. Several days later, and after further 

contacts with an MSHA supervisory inspector, the respondent was 

advised that it could continue to use the gate as a guarding 

device for the drive as long as the gate was secured by a bolt, 

rather than a padlock, and that this would suffice as a means of 

compliance with the standard. The respondent installed a bolt on 

the gate, but removed the guard which had been installed over the 

drive, and also posted signs. The respondent also continued to 

use a padlock on the gate, in addition to the bolt. 

-· 

The respondent takes the position that the use of substantial gates with padlocks, coupled with a lockout procedure to 

guard and prevent injuries at its crusher drives, the posting of 

warning signs forbidding access to these areas, and severe disciplinary action against employees who violate its policy in this 

regard, is the most efficient and effective means for preventing 

accidents. Respondent suggests that in these circumstances, the 

use of padloc~ed gates as a means of guarding its crusher drives 

complies with the requirements of section 56.14107. The respondent also asserted that the drive areas are in no-ones work area 

or even in the path of anyone who would be travelling to the area 

to work, and that the equipment is locked out for inspections and 

maintenance. 

1964 
MSHA takes the position the cited crusher belt drive was not 

guarded at the time Inspector Davis conducted his inspection and 

issued the citation. Although the evidence in this case reflects 

that MSHA would accept a gate as compliance with the-guarding 

requirements of section 56.14107, even though the particular 

equipment pinch point is not physically and individually guarded 

at its immediate location, MSHA's position is that the gate must 

be secured with a bolt and nut rather than a padlock. 

In Yaple Creek Sand & Gravel, 11 FMSHRC 1471 (August 1989), 

Judge Morris found that a gate 4 to 5 feet from an unguarded 

chain drive assembly on a hopper feeder conveyor belt did not 

satisfy the guarding requirements of section 56.14001 (redesignated 56.14107). In Walker Stone Company, 12 FMSHRC 256 

(February 1990) , Judge Fauver found that a stop cord located over 

the unguarded portion of a conveyor belt tail pulley did not 

satisfy the guarding requirements of section 56.141001, and he 

observed that the standard does not provide for the use-~f a stop 

cord in lieu of guarding. 

The evidence in this case establishes that the cited belt 

drive was not individually physically guarded at the time of the 

inspection, and the gate which served as guard was unlocked and 

opened, thereby allowing free access to the crusher belt drive 

area immediately inside the gate. The respondent has conceded 

that the cited belt drive was not guarded as required, and that 

the cited condition constituted a violation of section 56.141107. 

Under all of these circumstances, I conclude and find that a 

violation has been established, and the citation IS AFFIRMED. 

In its pleadings (answer), filed in this case, the respondent asserted that the use of a guard large enough to cover the 

particular drive in question would create a hazard every time it 

were removed and replaced because it would weigh several hundred 

pounds and was extremely bulky, and would subject employees to 

pushing and pulling injuries. The respondent also maintained 

that requiring such a guard would make repairs extremely time 

consuming in requiring additional people and equipment to simply 

remove the guard, therefore greatly increasing their exposure to 

any number of adpitional hazards associated with lifting heavy 

bulky objects. Mr. Ellis, who designed the crusher operation, 

confirmed that someone could twist their back while lifting the 

guard, but he estimated that a good substantial guard would weigh 

fifty (50) pounds. 

In justifying the use of a padlock, the respondent relied on 

MSHA's Guide to Equipment Guarding, and it included selected and 

highlighted portions of this publication as part of its answer, 

and made reference to it in the course of the hearing. The 

highlighted publication language reads as follows: 

1965 
The installation and maintenance of machinery and 

machine guards are governing factors in controlling and 

preventing accidents and injuries. In devising protection against moving machinery and machine parts, the 

goal should be to make it as effective as -- possible. . . . · 

An effective machine guard should have certain characteristics in design and construction. Such a guard 

should: 

1. Be considered a permanent part of the 

machine or equipment. 

2. Afford maximum positive protection. 

3. Prevent access to the danger zone during 

operation. 

4. Be convenient; it must not interfere 

with efficient operation. 

5. Be designed for the specific job and 

specific machine, with provisions made 

for oiling, inspecting, adjusting, and 

repairing machine parts. 

6. Be durable and constructed strongly 

enough to resist normal wear. 

7. Not present a hazard in itself. 

(Page 3}. 

It is recognized that a given situation--a hazardcreating motion or action--may frequently be guarded in 

a number of ways, several of which may be satisfactory. 

The selection of a guarding method to be used may 

depend upon a number of things--space limitations, 

production methods, size of stock, frequency of use, 

and still other factors may be important in making the 

final decision. Moving machine parts, nip points and 

pinch points must be guarded individually rather than 

restricting access to the areas by installing railings. 

It is not the intent of this guide to suggest which 

method of guarding is the best for a given situation, 

but rather to show that there are a number of ways to 

guard each different condition. This will be done by 

illustrating typical situations which may be guarded by 

a variety of methods. (Page 4}. 

1966 
Remote areas protected by location need not be guarded. 

However, if work is performed at such location as shown 

in figure 5, the equipment must be deenergized and 

locked out and a temporary safe means of acces~_ 

(ladder) provided before any work is started. 

(Page 8). 

MSHA's Program Policy Manual, Volume IV, pg. 55, July 1, 

1988, contains no reference to the use of padlocked or bolted 

gates as a means of complying with the guarding requirements of 

former section 56.14001. However, the policy does state the 

following: "The use of chains to rail off walkways and travelways near moving machine parts, with or without the posting of 

warning signs in lieu of guards, is not in compliance with this 

standard." 

Although the respondent's reliance on the information found 

in the aforementioned guarding guide may be considered in weighing the respondent's negligence and good faith compliance, I 

reject its reliance on this guide as an absolute defense to the 

violation. I have reviewed a complete copy of this publication, 

and I find absolutely no reference to the use of gates, padlocked 

or bolted, as an acceptable means of guarding or complying with 

the guarding standard in question. Indeed, some of the language 

found in this publication seemingly makes it clear that equipment 

and components thereof which present a hazard must be individually guarded by guards affixed to the particular piece of equipment rather than to the general area where the equipment may be 

located. See the last paragraph at page 3, which states 

"· .• it must be kept in mind that protective guards placed 

around the moving machinery should completely enclose the moving 

part and should be positioned so that the moving equipment or 

pinch point which presents a hazard cannot be reached." See also 

the fifth paragraph at page 4, which states "Moving machine 

parts, nip points and pinch points must be guarded individually 

rather than restricting access to the areas by installing 

railings." (Emphasis supplied). 

I have some difficulty comprehending MSHA's theory that the 

use of a bolt and nut to secure a gate, as opposed to a padlock 

with a key, would make it more difficult for someone to gain 

access to a crusher area where an unguarded belt drive was 

located. It seems to me that the use of a padlock in a situation 

where there is only one available key which is in the possession 

of the crusher operator at all times, would limit access to the 

hazardous area to that one individual, and would preclude any 

unauthorized entry by anyone else. However, the use of a bolt 

and nut inserted through a hole drilled in the frame of the gate, 

would allow any number of people with an ordinary or household 

wrench, which I assume are readily available at rock quarries, to 

readily access the area if they are so inclined. 

1967 
In commenting on the permissible use of padlocks to secure 

or lock out electrical boxes, Inspector Christensen distinguished 

the use of those locks from a padlock used to secure a gate on 

the ground that an electrical box is specifically designed to 

accommodate the use of a lock, and the individual locking out the 

box always has control of the key, thereby excluding anyone else 

from opening the box. Mr. Christensen stated that it would be 

illegal to use a bolt to secure an electrical box, even if the 

box were specifically manufactured to accommodate a bolt. He 

reasoned that anyone could remove the bolt at anytime, and the 

person who initially locked out the box with a bolt would have no 

control over anyone who may remove it. Quite frankly, I fail to 

see the logic in the rather contradictory distinctions made by 

Mr. Christensen in the two scenarios presented. 

The introductory statement found on the first page of MSHA's 

guide to guarding reflects that the information found therein is 

intended to assist industry, labor, and MSHA inspectors-'i_n 

obtaining uniformity throughout the mining industry. On the 

facts of this case, and notwithstanding the total lack of any 

references to the use of bolted gates as an acceptable means of 

guarding equipment, MSHA has apparently, in one district, 

accepted the use of gates, as long as they are secured by a bolt 

and nut, rather than a padlock. In order to achieve clear and 

unambiguous uniformity, I would respectfully suggest that there 

is need for MSHA to clarify and amend its policy and guide so as 

to insure even-handed enforcement among its various enforcement 

districts. Further, if MSHA believes that the use of a bolted 

gate is a recognized and acceptable means of guarding an equipment area, it should consider adopting and incorporating compliance criteria as part of its Part 56 regulations so that mine 

operators who are subject to civil penalty sanctions are fairly 

and uniformly put on notice of what is required of them for 

compliance. The disclosure of information clarifying the regulation will serve the goal of enforcement by encouraging knowledgeable and voluntary compliance with the law. See my comments in 

Massey Sand and Rock Company, 1 FMSHRC 545, 554-555 (June 18, 

1979), Commission review denied, 1 FMSHRC (July 1979). 

Although the respondent has not specifically raised an 

estoppel defense in this case, Mr. Papenhausen alluded to the 

fact that another MSHA enforcement district has not cited the 

respondent for securing gates used to guard equipment with padlocks rather than bolts. Although I believe that MSHA should be 

consistent in the interpretation and application of any mandatory 

standard, the fact that one district has opted not to cite the 

respondent under circumstances similar or identical to those 

presented in this case, may not serve as a defense to the violation issued in this case. See: Ferndale Ready Mix & Gravel, 

6 FMSHRC 2154 (September 1984), and the cases cited at 6 FMSHRC 

2159; J & R Coal Company, 3 FMSHRC 591 (1981); Burgess Mining and 

1968 
Construction Corporation, 3 FMSHRC 296 {1981); Price River Coal 

Company, 5 FMSHRC 1734 (1983). 

The respondent's suggestion that the cited crusher drive was 

guarded by location is likewise rejected. I find no--credible 

evidence to support any such conclusion. Although the location 

of the drive may be relevant to the question of gravity or negligence, it may not serve as a defense to the violation. The cited 

standard requires the guarding of moving machine parts that can 

cause injury. The evidence in this case clearly establishes that 

contact with a moving crusher drive would result in serious 

injuries. Although MSHA has not rebutted the respondent's credible testimony that the crusher is locked out before any maintenance work is performed in the area, and no one is usually in 

the area when the crusher is in operation, Mr. Ellis did not 

dispute the fact that the gate was open and unlocked when 

Inspector Davis conducted his inspection, and Mr. Ellis surmised 

that someone had entered the area but.was careless after leaving 

and failed to lock the gate when he left. Inspector Davis testified that Mr. McGee told him that someone had probably done some 

work in the area greasing, oiling, or checking the crusher, but 

failed to lock the gate (Tr. 15). 

Inspector Flowers, an inspector with 12 years of experience, 

including the inspection and observation of operating crushers, 

testified credibly that a supervisor generally will observe an 

operating crusher on a daily basis during each shift to ascertain 

that it is operating properly, and that if he were to walk into 

the area he would be exposed to a hazard if a belt drive were not 

guarded. Mr. Ellis conceded that if anyone opened the gate and 

walked into the area, he could get hurt if he contacted the 

unguarded drive (Tr. 64). 

Although Inspector Davis failed to develop any evidence as 

to who may have been in the crusher area when he found the gate 

unlocked, and failed to ascertain whether any maintenance men or 

other personnel were in the area immediately prior to his inspection, Mr. Ellis confirmed that a supervisor or foreman is 

expected to make complete inspections of the plant each day, 

including a walkaround of the crusher area. Mr. Ellis also 

confirmed that the prusher platform area was specifically 

designed to provide walking clearances around the crusher equipment, and was provided with a designated walkway to provide ready 

access to the equipment. He conceded that anyone walking around 

in that area while the crusher was in operation would be exposed 

to the dangerous pinch points. Although Mr. Ellis believed that 

it would be stupid for anyone to be in the area with the crusher 

running, I believe that it could very well be that this "stupid" 

individual was the same "careless" individual who went into the 

area and left without locking the gate. Mr. Ellis conceded that 

Inspector Davis acted properly in citing a violation, and that 

1969 
the respondent violated the cited standard by leaving the gate 

unlocked (Tr. 31, 42). 

Although the respondent has achieved compliance __ in this case 

by installing a bolt in the gate used to guard its crusher belt 

drive, it has gone one step further and continues to use a padlock as an additional means of securing the gate, and has posted 

warning signs on the gate. The belt drive itself continues to 

remain individually unguarded. It seems obvious to me from the 

record in this case that the respondent is not too enchanted with 

MSHA's view that a gate may be used, as long as it is bolted, but 

that padlocks are unacceptable. Under the circumstances, the 

respondent may wish to consider initiating a modification proceeding pursuant to section lOl(c) of the Act, seeking a variance 

to continue its use of padlocks as a means of achieving compliance with section 56.14107. 

History of Prior Violations 

The parties stipulated that the respondent was issued four 

violations during the preceding 24-month period ending on 

October 16, 1989. The petitioner offered no further evidence 

with respect to the respondent's compliance record, and there is 

no evidence of any prior guarding citations. Under the circumstances, I conclude and find that the respondent has a good 

compliance record, and I have taken this into consideration in 

this case. 

Size of Business and Effect of Civil Penalty Assessment on the 

Respondent's Ability to Continue in Business 

The record reflects that the respondent operates a limestone 

mining and crushing operation, and that it has nine employees at 

its Valley Plant No. 7, including a superintendent and a scale 

person (Tr. 76). I conclude and find that the respondent is a 

small operator. The parties stipulated that the payment of the 

proposed civil penalty assessment will not adversely affect the 

respondent's ability to continue in business. 

Gravity 

Inspector Davis' non-S&S finding was based on his conclusion 

that it was unlikely that anyone could have been injured at the 

time of the inspection because he observed no one in the crusher 

area other than the crusher operator who was in his control 

booth. Although it is true that anyone contacting the belt drive 

could be injured, the respondent's unrebutted evidence establishes that the crusher is deenergized and locked out when any 

work is performed in the area, that the gate leading to the 

crusher drive area is normally locked in accordance with company 

policy, and the key is normally kept in the operator's 

possession. 

1970 
Although the petitioner suggested that a supervisor or 

foreman may venture into the platform drive area where the 

crusher was located, Inspector Davis made no inquiries in this 

regard and developed no evidence to establish the liKelihood of 

anyone being inside the gate area while the crusher was in operation. Further, I find no credible evidence to establish that 

anyone going and coming from the operator's crusher control booth 

by means of a ladder shown in the photographic exhibits would 

likely be inside the platform area where the crusher drive was 

located. Under all of these circumstances, I conclude and find 

that the violation was non-serious. 

Negligence 

Inspector Davis confirmed that he based his moderate negligence finding on the fact that with the exception of the gate 

which was used as a means of guarding the crusher belt drive, the 

respondent had guards installed over all of its remaining moving 

equipment at the pinch points. Although the respondent relied on 

MSHA's guarding guidelines in concluding that it could use a 

padlocked gate as a guarding device, as noted earlier, the guidelines made no mention of the use of padlocks, and they indicate 

that exposed moving equipment pinch points should be physically 

guarded individually. However, I believe that the respondent's 

negligence is mitigated by the fact that MSHA has accepted a 

bolted gate as a suitable guard, and I conclude and find that it 

was not totally unreasonable for the respondent to believe that 

padlocking the gate with a key which is normally kept in the 

possession of the crusher operation was sufficient compliance 

with the cited standard. However, since the gate was unlocked 

and open at the time of the inspection, I conclude and find that 

the respondent knew or should have known that the belt drive was 

unguarded. Under all of these circumstances, I conclude and find 

that the respondent's failure to exercise reasonable care to 

insure that the belt drive was guarded while the crusher was in 

operation constitutes ordinary negligence. 

Good Faith Compliance 

Inspector Davis confirmed that he fixed the abatement time 

of June 26, 1989. However, no testimony was forthcoming from the 

inspector with respect to whether he specifically made it clear 

to Mr. McGee that the use of a padlocked gate was unacceptable. 

Inspector Flowers testified that at the time he issued the order 

the pending off ice file contained no inspection field notes 

incident to Mr. Davis' prior inspection, and he simply relied on 

a copy of the-citation which reflected that the drive motor was 

not guarded. Mr. Flowers confirmed that Mr. McGee told him that 

he was instructed not to guard the belt drive and to simply post 

warning signs on the gate, and Mr. Flowers confirmed that the 

signs were in fact posted •. 

1971 
Mr. Ellis testified that after the citation was issued, 

Mr. McGee was instructed to insure that the gate was kept locked 

at all times in accordance with company policy. Mr. Ellis was 

unsure as to when Inspector Davis may have informed management 

that a lock on the gate would not suffice as compliance with the 

cited standard. Mr. Ellis explained that in his view, the 

failure to lock the gate at the time Mr. Davis conducted his 

inspection was "just like leaving the guard off" and he believed 

that compliance was achieved at the time Mr. Flowers inspected 

the site and issued the order because the gate was locked and 

signs were added to emphasize the point to anybody who might go 

into the area (Tr. 71). He also explained that when the respondent was told that a bolt would be better than a lock, it made no 

sense to him because he believed that better control could be 

achieved by the use of a lock rather than a bolt (Tr. 72). 

Mr. Ellis also considered the fact that various types of equipment are guarded by devices which are hinged and secured by twist 

locks provided by the manufacturers (Tr. 73) . -

The section 104(b) order issued by Inspector Flowers is not 

directly in issue in this case and there is no evidence or inf ormation of record as to whether or not the respondent filed any 

separate contest of that order within the required time period. 

However, the order is relevant to the proposed civil penalty 

assessment made by MSHA in -this case since it seems obvious that 

MSHA took the order into consideration as part of its proposed 

civil penalty assessment, particularly with respect to the question of negligence and good faith compliance. 

The evidence in this case establishes that the respondent 

abated the order within 40 minutes of its issuance and promptly 

installed a guard at the cited belt device. Within a few days, 

the respondent was allowed to remove the guard, and in lieu of an 

individual guard, was permitted to continue to use the then 

bolted gate as a means of guarding the belt drive. In addition 

to the bolted gate, the respondent continued to keep the gate 

padlocked and posted with warning signs. 

Having viewed Mr. Ellis during the course of the hearing, he 

impressed me as a credible and responsible safety-conscious 

individual. On the facts of this case, and taking into account 

the aforementioned mitigating circumstances under which the 

respondent continued to use a padlocked gate as a means of guarding the cited belt drive, I conclude and find that the respondent 

ultimately achieved good faith compliance in correcting the cited 

condition. 

Civil Penalty Assessment 

on the basis of the foregoing findings and conclusions, and 

taking into account the civil penalty assessment criteria found 

1972 
in section llO(i) of the Act, I conclude and find that a civil 

penalty assessment of $50 is reasonable and appropriate for the 

contested section 104(a) citation which I have affirmed in this 

case. 

ORDER 

The respondent IS ORDERED to pay a civil penalty assessment 

of $50 for section 104(a) citation No. 3258150, June 21, 1989, 

30 C.F.R. § 56.14107. Payment is to be made to MSHA within 

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

receipt of payment, this matter is dismissed. 

~-~~- Adm1n1strat1ve Law Judge 

Distribution: 

Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department of 

Labor, 230 South Dearborn Street, 8th Floor, Chicago, IL 60604 

(Certified Mail) 

Oscar W. Ellis, President, James R. Papenhausen, Safety Director, 

Moline Consumers Company, 1701 Fifth Avenue, Moline, IL 61265 

(Certified Mail) 

/fb 

1973 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 181990 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. WEST 90-36-M 

A.C. No. 04-04684-05505 

v. 

Peters Trucking Plant 

PETERS TRUCKING COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION 

George B. O'Haver, Esq., Office of the Solicitor, 

U.S. Department of Labor, San Francisco, 

California, for the Petitioner; 

Leo M. Cook, Esq., Ukiah, California, for the 

Respondent. 

Judge Koutras 

Statement of the Case 

This proceeding concerns proposals for assessment of civil 

penalties filed by the petitioner against the respondent pursuant 

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

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

the amount of $1,834 for ten (10) alleged violations of certain 

mandatory safety standards found in Part 56, Title 30, Code of 

Federal Regulations. The respondent filed a timely answer and a 

hearing was held in Ukiah, California. The parties waived the 

filing of posthearing briefs, but I have considered their oral 

arguments made on the record during the course of the hearing in 

my adjudication of this matter. 

Issues 

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

conditions or practices cited by the inspector in the contested 

citations constitute violations of the cited mandatory safety 

standards, and (2) the appropriate civil penalties to be assessed 

1974 
for the violations, taking into account the statutory civil 

penalty assessment criteria found in section llO(i) of the Act, 

and any mitigating circumstances connected with the violations. 

Additional issues raised by the parties are disposed of in the 

course of this decision. 

Applicable Statutory and Regulatory Provisions 

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

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

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

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

Petitioner's Testimony and Evidence 

MSHA Inspector Michael E. Turner testified that he--conducted 

his initial inspection of the respondent's mine site on 

September 13; 1988, and he confirmed that the crusher plant was 

shutdown at this time and that "several employees were in the 

process of building guards" (Tr. 8). He confirmed that he 

considered the citations to be "non-S&S" because he observed no 

exposures to any hazards because the plant was down and he 

observed no employees walking about the plant while it was in 

operation. 

With regard to Citation No. 3285843, concerning the lack of 

guarding for the jaw crusher tail pulley and mechanical belt, 

Mr. Turner stated that he fixed the abatement time of 

September 20, 1988, after discussing it with Mr. Peters, and that 

Mr. Peters gave him that date as the time within which he could 

make the changes and corrections required. Mr. Turner further 

stated that when he returned for a follow-up compliance inspection on May 31, 1989, he found that "no apparent effort had been 

made to correct the condition that was previously cited" on 

September 13, 1988, and the crusher appeared to be in the same 

condition. When asked whether he spoke to Mr. Peters on May 31, 

Mr. Turner replied as follows: 

A. I am sure I did. The thing of it is, Mr. Peters 

quite often is not there and I spoke with Mr. Bagley so 

I can't really say that I talked to Mr. Peters that 

day. If I issued a 104-B order I would think that I 

talked to Mr. Peters. I would assume that I did. 

Q. All -right. 

THE COURT: Did you take any notes or anything that day 

that would refresh your recollection? 

1975 
THE WITNESS: I did. But the conference sheet that we 

fill out states that I did talk to Mr. Peters about all 

the changes to orders, 104-B orders. 

Mr. Turner stated that he next returned to the site on 

June 9, 1989, when he terminated the citation and order, and he 

indicated that the original citation abatement date had been 

extended and that he would have discussed the abatement dates 

with Mr. Peters during his subsequent two visits (Tr. 11). 

Notwithstanding his belief that "no apparent effort had been 

made" to secure the guard for the crusher tail pulley and belt on 

May 31, 1989, he agreed that a guard had been provided for the 

crusher flywheel on that day, but it simply lacked a bottom piece 

which was missing, and that some work had been performed to abate 

this condition (Tr. 15). 

with regard to Citation No. 3285844, concerning the-jaw 

crusher drive motor, Mr. Turner stated that although three violative conditions are noted on the citation form, he only issued 

one violation in accordance with MSHA's policy. He believed that 

there was a problem with the motor feed box because it was an old 

motor and a box had to be fabricated (Tr. 13). 

With regard to Citation No. 3285845, concerning the lack of 

a protective railing or barrier to "prevent the fall of person" 

at the walkway adjacent to the jaw crusher control station, he 

believed that no barriers were present when he returned on 

May 31. With regard to the notation on his order issued that day 

that "no apparent effort had been made to correct the condition 

of a chain used to prevent contact with moving machine parts at 

the jaw crusher control station," Mr. Turner stated that the 

chain was at a different location than the missing barrier or 

railing and that the chain was simply hanging down from a support 

post. The missing barriers concerned the other side of the 

control station (Tr. 18). 

With respect to Citation No. 3285846, concerning the lack of 

guards on the tail pulley pinch points on a conveyor under and 

below the crusher, and his notation on May 31, that "no apparent 

effort had been made to secure" the guards, Mr. Turner believed 

that there may have been a change in the condition as it was 

initially cited on September 13, but that he could not specifically recall this condition and had no independent memory of the 

cited guard condition (Tr. 21). 

With regard to Citation Nos. 3285848, 3285849, and 3285850, 

Mr. Turner stated that he recalled these cited guarding conditions, and that no changes had been made during the intervening 

1976 
period of September 13, 1988, and May 31, 1989, when he issued 

the orders, and that the conditions were the same (Tr. 21-24). 

He confirmed that the upper conveyor tail pulley (Citation 

No. 3285850) was guarded, but that the guard was inadequate, and 

abatement was achieved by pulling the guard screen together and 

either bolting it or wiring it to eliminate the possibility of 

someone reaching in and contacting the pinch point (Tr. 24). 

On cross-examination, Mr. Turner confirmed that when he 

initially visited the site on September 13, there were two 

crushers at the site, and that all of the citations were issued 

on the new crusher that Mr. Peters was working on in order to 

make it operational. Mr. Turner stated that the crusher had been 

operating when he arrived at the site, but that it was shutdown 

during the inspection. The other crusher was not wired up and 

was down (Tr. 25-26). He confirmed that Mr. Peters informed him 

that the crusher which was cited was newly purchased and that he 

was attempting to set it up (Tr. 27). When asked to cori'firm 

whether he informed Mr. Peters that the cited conditions had to 

be corrected before the crusher was placed in production, 

Mr. Turner responded as follows (Tr. 28-29): 

A. If we have a problem with semantics, I believe what 

I told Mr. Peters, which I tell many of the operators, 

almost all of the operators, is if there is a violation 

present that the plant should not be operating until 

that violation is taken care of. 

Q. Right, Now did you also tell him that as long as he 

had these items covered by your citations repaired or 

installed that he could then place the plant into 

operation? 

A. If they are non s and s citations he can repair 

them and go from there. 

Q. Would it be fair to state that Mr. Peters could 

very well have understood that there was no particular 

time limit on making these repairs or installations, 

provided that he wasn't using the plant? 

A. I find it difficult after all of the conversation 

that we have had, discussions that he could not be 

aware of the termination dates. 

Q. Okay. Now your second visit was on February 23, 

1989, and from looking at the various documents it 

appears that you arrived there at 12 minutes after 

12:00 -- 14:07. That would be 2:07 in the afternoon? 

1977 
Q. (BY MR. COOK) Now as I read from your citation of 

that date, it is the second page under 3285841. You 

state in the last paragraph, "the plant has been down 

for some time and Mr. Peters had assured the inspector 

that the violations shall be remedied prior to start up 

in the future." That is exactly what he said? 

A. Yes, sir. 

Mr. Turner stated that all of the cited conditions were 

ultimately corrected to achieve compliance, and although he had 

no evidence to establish that the plant was operated without the 

corrections being made, he confirmed that when he first drove up 

to the site on September 13, he observed that the plant was 

running. However, he took "a break" waiting for Mr. Peters to 

arrive to accompany him on his inspection, and when he returned 

the plant was shutdown. Mr. Turner described the equipment which 

comprised the crushing "plant," and he confirmed that all of the 

guarding citations involved the Eagle jaw crusher operation. He 

stated that material was being processed through the crusher when 

he initially observed it in operation, and he confirmed that he 

did not inspect the second crusher which was not wired up (Tr. 

31-33). 

With regard to his subsequent visit to the site on 

February 23, 1989, Mr. Turner confirmed that it was a follow-up 

visit to abate the citations which he issued on September 13, 

1988. Although the extension notice issued that day for Citation 

Nos. 3285841 and 3285855, were the only ones included with the 

pleadings filed by MSHA, and were the only ones of record at this 

point in the hearing, Mr. Turner believed that he issued other 

extensions that day. When asked if he had any independent recollection that he in fact extended the other citations, he replied 

"the procedure would be to extend them. • • . I would have to 

look it up and try to find records in regard to that" (Tr. 38). 

When asked for an explanation as to why he would issue a section 

104(b) order 5 months after he extended the abatement time for a 

citation, Mr. Turner responded as follows (Tr. 38-39): 

THE WITNESS: Well, first of all, I would like to talk 

to the operator to find out whatever mitigating circumstances he may have had for not operating the plant. 

THE COURT: Do you recall any in this case? What may 

have happened? 

THE WITNESS: I remember going out there, but I cannot 

remember-the conversation on February 23rd, and I 

cannot remember whether I spoke to Mr. Bagley or 

Mr. Peters or both of them. 

1978 
THE COURT: You don't recall whether you issued any 

extension on all of these other citations that we just 

went through regarding this? 

THE WITNESS: I can't. recall. The correct procedure 

would be for me to do that, but I can't recall whether 

I did or not. 

MR. O'HAVER: I think had he done that they would have 

been part of the record. They are not. 

THE COURT: Doesn't it strike you kind of strange that 

he would go out there and issue them on the 13th and go 

back on the 23rd and only address two and not the 

others? 

MR. O'HAVER: It could very well be that time of the 

year everything was down and he may have only met with 

Mr. -- Mr. Peters may not have been there, maybe only 

one person there, and 'they only talked about the record 

keeping portions. That time of the year the plant 

wouldn't ordinarily be operating. 

THE COURT: So then he goes back on the 31st? 

MR. O'HAVER: Yes, because the weather's getting better 

and they are going to start operation. That's just 

speculation on my part. 

With regard to Citation No. 3461132, which he issued on 

June 1, 1989, Mr. Turner testified that he observed a truck 

driver driving a "cat" front-end loader without a hard hat on. 

He confirmed that the loader was equipped with rollover protection (ROPS), but that the canopy was not completely enclosed and 

was open at the top, and had no windshield or side protection. 

Except for the rollover bars, the loader operator was completely 

exposed. Mr. Turner stated that the driver was an employee of 

the respondent, and he identified him as "Mr. Morgan." He stated 

that the driver was_loading the truck with rocks from the side 

with the bucket of the loader in a raised position, and that he 

was exposed to a hazard of a "spill of rocks coming back and 

hitting him in the head." 'He further believed that the failure 

by the driver to wear a hard hat could have resulted in a serious 

injury if he were struck by a rock and he would have incurred 

"lost days or restricted duty." Mr. Turner confirmed that he 

observed that rocks were spilling off the raised bucket, and he 

found that an injury was reasonably likely to occur (Tr. 42). 

Mr. Turner described the loader as "pretty small," and he stated 

that the loading bucket would be approximately 8 to 10 feet ahead 

of the operator's compartment, and if the load were lifted and 

tilted into the bed of the truck which was being loaded, the load 

1979 
would be 8 to 10 feet high and over the position of the operator 

at the controls of the loader (Tr. 45). 

Mr. Turner stated that he based his "high negligence" finding on the fact that he and Mr. Peters had discussed the matter 

of wearing hard hats on the property, and although he believed 

that the respondent's employees had hard hats available, he did 

not know whether Mr. Peters furnished them. He could not recall 

where the hard hat used to.abate the citation came from, or 

whether it was in the loader, in the truck, or obtained from the 

shop (Tr. 43). He confirmed that he has previously observed 

loader operators loading materials on a truck and that they wore 

their hard hats while in the loader (Tr. 44). He further confirmed that the violation was abated in 3 minutes by providing a 

hard hat, but he could not recall where Mr. Peters obtained it 

(Tr. 45) • 

Respondent's Testimony and Evidence 

Mr. Robert Peters, a partner in the operation, testified on 

behalf of the respondent. Mr. Peters testified that the loader 

which was being operated, as well as his other loaders, are 

equipped with ROPS protection, and although the front and sides 

of the machine were open, the top was enclosed with a quarterinch steel plate. He stated that the driver was furnished with a 

hard hat but that he had it in the truck and he had not bothered 

to put it on. He confirmed that drivers may load the trucks 

themselves, or a loader operator will load them (Tr. 46-47; 53). 

Mr. Peters testified that he purchased the Eagle crusher in 

question at an auction in Oregon, and brought it to his operation 

in Willits, California. since he had not previously observed it 

in operation, the crusher was in a "set-up mode" at the time of 

the initial inspection by the inspector on September 13, 1988. 

He confirmed that the crusher was not in production at that time, 

and that "we were trying to see if it worked and what needed to 

be done to put it into production" (Tr. 48). He further confirmed that a second crusher unit, which had previously been in 

operation at another-location, had been moved "from the North 

plant in town" and was located next to the Eagle crusher in the 

vicinity of the power source. 

Mr. Peters testified that on September 13, 1988, he and the 

inspector went to the Eagle crusher plant, and he advised the 

inspector that he had just purchased the crusher. Although the 

inspector understood this, he inspected the crusher and issued 

several citations and explained what needed to be done to bring 

it into compliance. At the completion of the inspection, the 

inspector "stated to me that, you now, as long as we didn't run 

the plant until we had all these corrections made there was no 

problem" (Tr. 48). Mr. Peters explained that the crushers are 

not used during the winter because no crushing is done, and it 

1980 
was his understanding that the inspector was giving him "all 

winter to get everything put on it and get it up to par" 

{Tr. 49) • 

Mr. Peters stated that the inspector next returned -on 

February 23, 1989, to follow up on a citation issued on 

September 13, 1988, for failing to conduct an annual test for 

continuity and resistance of the grounding system. Mr. Peters 

stated that during this visit several equipment guards which he 

had made were laying by the machine, and that the inspector 

informed him tha:t "there was no problem with the guards," and 

that as long as all of the guarding citations were corrected 

before he went into production, "that there was no problem" (Tr. 

49) . 

Mr. Peters confirmed that the inspector next returned to the 

site on May 31, 1989. Mr. Peters stated that he informed the 

inspector that he could not accompany him on his inspection 

because he was occupied with a mechanical problem on one of his 

trucks and asked him to come back in an hour. The inspector 

replied "no" and proceeded to write up the section 104{b) orders. 

Mr. Peters stated that although he was unhappy with the inspector 

issuing these orders because he previously told him that there 

would be no problem as long as he had made the repairs before the 

crusher was put in operation, he nevertheless continued to complete the repairs and install the guards. He indicated that most 

of the guards had been constructed and some were installed. He 

alluded to one particular guard to cover the crusher flywheel, 

and confirmed that when the inspector returned a week or 9 days 

later, "we had everything completed and he signed them off" (Tr. 

51). 

Mr. Peters further stated that if he had not been occupied 

repairing the truck on May 31, 1989, and had been able to accompany the inspector on his inspection, he would have tried to 

convince him that he did in fact make an effort to comply and 

would have reminded him of his understanding in February that the 

violations had to be abated before he placed the crusher into 

production. Mr. Peters stated further that he had made "lots of 

effort to correct the problem," that most of the guards were 

there, but not on the crusher, and that the inspector saw them 

{Tr. 51). Mr. Peters stated that he had no opportunity to 

explain to the inspector because "I was busy repairing my truck 

while he was writing the 104-b's" {Tr. 52). 

On cross-examination, Mr. Peters stated that he often talks 

to his employees about safety hazards, emphasizes hard hats, and 

that he has a good insurance company safety record rating. He 

explained that in connection with the crusher "set up" on 

September 13, 1988, it had been run two or three times prior to 

that day with "a little material" in order to check the system to 

1981 
determine if any repairs were needed (Tr. 55). When the inspector returned.on February 23, they discussed the fact that the 

crusher could not be operated until all of the needed corrections 

previously cited on September 13, were made, and the inspector 

did not speak to him about any specific dates. Mr. Peters stated 

that he did not look at the "paperwork" or the extension dates 

left with him on February 23, and did not discuss this with the 

inspector, but did assure the inspector that before he put the 

crusher into production, the corrections would be made (Tr. 56). 

Mr. Peters stated that he usually reopens his operation in 

June after the winter season because he cannot have access to any 

streams to obtain his materials until after May 15, when his 

state fish and game permit is issued. The state usually permits 

him access to the streams in June. He confirmed that when the 

inspector returned on May 31, the crusher plant was still dormant 

and not in production and had not been running (Tr. 56)._ 

With regard to the initial inspection citations issued on 

September 13, Mr. Peters testified that he did not discuss the 

September 20, abatement dates recorded on the citations with the 

inspector, and that these dates do not mean anything to him. He 

explained that he "glanced over" the citations and read what the 

inspector wrote and knew that he was writing because "we went 

over each item specifically and he told me what needed to be done 

to comply" (Tr. 57). 

Inspector Turner was called in rebuttal by the petitioner, 

and he produced and reviewed copies of several extension notices 

he issued on February 23, 1989, extending the abatement times of 

the citations he issued on ·September 13, 1988, to February 77, 

1989 (exhibit P-2, Tr. 58). Mr. Turner stated that he had 1:10 

independent recollection of discussing the termination dates with 

Mr. Peters, but that his extensions would indicate to him that 

they were discussed (Tr. 59). 

As noted earlier, the violation extension notices issued by 

Inspector Turner on February 23, 1989, were not included as part 

of the initial civil_ penalty assessment proposal pleadings filed 

by the petitioner in this case, and petitioner's counsel could 

offer no explanatiop as to why they were not previously filed 

with the pleadings (Tr. 59). The inspector retrieved his file 

copies during a break in the hearing prior to being called in 

rebuttal, and the respondent's counsel confirmed that he had not 

previously seen them. Although the copies reflect that they were 

served on him, Mr. Peters stated that he had not previously seen 

them (Tr. 60). 

I take note of the fact that copies of the extension notices 

produced by Inspector Turner at the hearing are stapled to an 

Inspection Information Sheet filled out by Mr. Turner. In the 

1982 
"Remarks" portion of that document, Mr. Turner notes that "Copies 

of terminations and extensions given to office personnel" 

(Exhibit P-2, pg. 1). Mr. Peters testified that they may have 

been left with a Mr. Dan Bagley (Tr. 60). Inspector Turner 

confirmed that he has been instructed not to leave m1rie property 

"until we issue the paperwork to someone, or that a copy stays on 

the property" (Tr. 61). Although the extensions reflect that 

they were served on Mr. Peters, Mr. Turner could not recall 

giving them to him, and he testified that "I may have addressed 

that to Mr. Peters and gave the copies to Mr. Bagley, the weigh 

master" or left them in the office. Mr. Turner could not recall 

any conversations with Mr. Peters on February 23, and stated that 

he made no inspection note~ that day and could not find any (Tr. 

62) • 

In response to further questions, Mr. Turner confirmed that 

Mr. Peters was having a problem with one of his trucks while he 

was at the site on May 31, 1989, and could not accompany him on 

his inspection that day. Mr. Turner stated that when he found 

that the original citations had not been abated or terminated, he 

made some notes and advised Mr. Peters that he would have to 

reissue them pursuant to section 104(b). He then wrote them up 

and discussed them with Mr. Peters. When asked about the nature 

of the conversation, Mr. Turner stated "we discussed them (sic) 

about the plant will not operate until all the violations are 

secured or remedied, and I left the property" (Tr. 64). 

Mr. Turner confirmed that he was not sure at that time whether or 

not the crusher had been in operation (Tr. 64). 

Mr. Turner assumed that the plant was not in operation from 

September 13, 1988, through February 23, 1989, and he had no 

reason to dispute Mr. Peters' testimony that the plant is not 

normally put into production until after May 31 or early June. 

He also had no reason to dispute Mr. Peters' testimony that the 

cited crusher was being "set-up" and tested prior to any production, and that when he conducted the inspection the plant was not 

running and he did see anyone there (Tr. 65). 

Although Mr. T~rner claimed that he asked Mr. Peters on 

September 13, if a week was sufficient time to correct the violations, he agreed that it was possible that Mr. Peters was under 

the impression that he may have had a week to fabricate the 

equipment guards, but could wait until the plant was in production before installing them, notwithstanding the termination 

dates shown on the face of the citations (Tr. 67). Mr. Turner 

confirmed that the September 13, 1988, inspection was his first 

inspection of the crusher plant in question (Tr. 68). However, 

he believed that the plant has had other crushers which had been 

previously operated, and that other MSHA regular and follow-up 

inspections have been conducted at the site (Tr. 72). Since 

Mr. Peters advised him on September 13, that some material had 

been run through the crusher during the set-up, Mr. Turner 

1983 
believed that it should have been in compliance with the guarding 

requirements.because accidents may occur when the equipment is 

running and he found no excuse for not guarding it (Tr. 71). 

Mr. Peters testified that during the initial set~up period, 

the crusher was not operated continuously for 3 days, and that it 

was operated for 10 minutes while adjusting a belt or changing a 

bearing, and the guard is off because it covers the tail pulley 

adjustment device and the guard must be off to make any adjustment. He stated that "we were not continually running for 3 days 

straight. We would fire up, run it, see a problem and then we 

would shutdown and work on that," and he reconfirmed that the 

crusher was not in a production mode from September 13, 1988, 

until the time the citations were ultimately abated (Tr. 76). 

Findings and Conclusions 

Jurisdiction 

Although the respondent has not raised any jurisdictional 

question, the evidence establishes that the cited crusher was 

purchased out of state, and that the respondent has an MSHA ID 

number, and its crushed stone operation has been inspected and 

regulated by MSHA. I conclude and find that the respondent is a 

mine operator within the meaning of the Act, and is subject to 

MSHA's enforcement jurisdiction. See: Tide Creek Rock Products, 

4 FMSHRC 2241 (December 1982); Southway Construction Co., 

6 FMSHRC 174 (January 1984); Rockite Gravel Co., 2 FMSHRC 2543 

(December 1980), Commission Review Denied, January 13, 1981; 

Mellott Trucking Company, 10 FMSHRC 409 (March 1988). 

Fact of Violations 

The respondent was cited for 10 violations of several mandatory safety standard found ·in Part 56, Title 30, Code of Federal 

Regulations. One violation was issued because of the failure to 

conduct a grounding system continuity and resistance test as 

required by section 56.12028; three were issued for failure to 

comply with the equipment guarding requirements of section 

56.14001; two were issued for failure to guard a conveyor pursuant to section 56.14003; one was issued for the lack of equipment bushings or fittings as required by section 56.12008; one 

was issued for failure to provide a railing or barrier at the 

crusher travelway location pursuant to section 56.11012; one was 

issued for failing to conduct monthly inspections of fire extinguishers or to have the inspection records available at the work 

site as required by section 56.4201(b); and one was issued for a 

violation of section 56.115002, because of the failure of a truck 

driver to wear a hard hat while loading a truck with a front-end 

loader. 

1984 
The respondent agreed and stipulated that the cited conditions and practices which are described by the inspector on the 

face of each of the contested section 104(a) citation notices 

which were issued on September 13, 1988, arid June 1, 1989, were 

true, and that these cited conditions constituted violations of 

the cited mandatory safety standards (Tr. 5). Respondent further 

stipulated and agreed that it does not contest the two "single 

penalty" citations which resulted in proposed penalty assessments 

of $20 (Citation Nos. 3285841 and 3285855) (Tr. 39-40). 

The respondent further stipulated and agreed that its dispute in this case lies in its disagreement with the inspector's 

assertion that it made "no apparent effort" to remedy some of the 

cited conditions and abate the violations. These findings by the 

inspector formed the basis for his issuance of seven section 

104(b) orders which resulted in proposed civil penalty assessments which the respondent believes are "high" and unwarranted 

for the conditions which w~re initially cited by the inspector on 

September 13, 1988. 

In view of the foregoing, I conclude and find that all of 

the conditions and practices cited by the inspector in support of 

the citations which he issued on September 13, 1988, and June 1, 

1989, constitute violations of each of the cited mandatory safety 

standards relied on by the inspector, and the violations ARE 

AFFIRMED. 

History of Prior Violations 

The respondent's history of prior violations is reflected in 

a "Proposed Assessment Data Sheet" submitted by the petitioner 

(exhibit P-1). The information presented reflects that with the 

exception of timely paid "single penalty" assessments, the 

respondent was assessed for six violations issued during the 

years 1986-1989. I cannot conclude that the respondent's compliance record is such as to warrant any additional increases in 

the civil penalty assessments which I have made for the violations in question in this case. 

Size of Business and Effect of Civil Penalty Assessments on the 

Respondent's Ability to Continue in Business 

The record reflects that the respondent operates a portable 

stone aggregate crushing operation employing approximately six 

individuals at any given time. Its annual production is approximately 30,000 tons of crushed stone materials (Tr. 5). 

Mr. Peters testified that two of his employees operate the 

crusher, and four employees serve as truck drivers or mechanics 

(Tr. 51). He also indicated that he is in production approximately 6 months out of the year (Tr. 80). Except for periodic 

equipment set-ups and testing periods, the record reflects that 

the crushing operation is essentially a seasonal business which 

1985 
is not in production during the "winter season" from approximately mid-September through May or early June. I conclude and 

find that the respondent is a small operator and I have taken 

this into consideration in making the civil penalty assessments 

for the violations in question. 

Mr. Peters testified that although payment of the full 

amount of MSHA's proposed civil penalty assessments for the 

violations may "hurt a lot. Particularly this year," he confirmed that payment of those penalties, in the amounts proposed 

by MSHA, will not put him out of business (Tr. 79). Under the 

circumstances, and in the absence of any evidence to the contrary, I conclude and find that payment of the civil penalty 

assessments which I have made for the violations which have been 

affirmed will not adversely affect the respondent's ability to 

continue in business. 

Gravity 

With the exception of the "hard hat" citation issued on 

June 1, 1989, all of the citations issued by the inspector on 

September 13, 1988, were issued as section 104(a) non-S&S citations. I take note of the fact that in each instance, the 

inspector noted "zero" as the number of persons affected by the 

cited violative conditions (Gravity Item 10-D). He also found 

that there was either "no likelihood" of any injury, or that an 

injury was "unlikely," but nonetheless found that the injury 

would be "fatal," "permanently disabling," or would result in 

"lost workdays or restricted duty." In connection with the six 

guarding citations, he noted on the face of the citation that the 

hazard "exposure could not be determined." Mr. Peters testified 

that if a hazard were presented, the only person exposed would be 

the crusher operator (Tr. 51). 

When asked to reconcile his apparent inconsistent gravity 

findings, Mr. Turner explained that his findings of "unlikely" 

were based on the fact that the crusher plant was not in operation at the time of the inspection. However, if someone were to 

contact an unguarded_pinch~oint, particularly a tail pulley, "it 

would be fatal" and "a person could get his hand in there or 

something and it could tear his hand or arm off and he could 

bleed to death" (Tr: 35). His findings of "fatal" would be 

relevant if the crusher were to be put into production (Tr. 36). 

With regard to his findings that "zero" persons would be exposed 

to any injury, Mr. Turner stated that "I believe this is the way 

OSHA" would consider any hazard exposure. He conceded that he 

may have been in error in making these findings, and that MSHA's 

current policy is to consider the total number of people working 

at the plant. He also conceded that any determination as to the 

actual number of persons exposed to any hazard "would have to be 

determined by asking Mr. Peters some questions. Who lubricated 

the plant and cleaned it out," and that these determinations 

1986 
would have to be made before he checked the appropriate item 

boxes on the.citation form (Tr. 36). In the instant case, 

Mr. Turner confirmed that all of the cited equipment which lacked 

guards was guarded before the crusher plant was placed in 

production (Tr. 37). 

I conclude and find that Citation Nos. 3285841 and 3285855, 

for the failure to conduct the annual continuity and resistance 

grounding system tests, and the failure to inspect the fire 

extinguishers on a monthly basis were not non-serious violations. 

I find no evidence to support any conclusions to the contrary. 

Likewise, in the absence of any evidence or testimony to the 

contrary, I also find that Citation No. 3285844, for a lack of 

fittings and bushings on the cited components of the crusher was 

a non-serious violation. Under the circumstances, the inspector's non-S&S findings regarding these violations are affirmed. 

With regard to Citation No. 3285845, for failing to-provide 

a railing or a barrier at the travelway location adjacent to the 

jaw crusher operator's control station, I conclude and find that 

this was a serious violation. Although the crusher was not in 

operation at the time of the inspection, and the respondent had a 

chain available at one of the locations near the crusher, it was 

not hooked up to prevent anyone from walking through and into the 

crusher. Further, the inspector's unrebutted testimony establishes that the lack of a barrier or a railing at the cited 

travelway location presented a falling hazard and that a barrier 

or railing would prevent someone from falling off the control 

station area. The inspector also testified that when he and 

Mr. Peters walked up a stairway in the proximity of this unprotected area, the crusher jaw was open "where a person could step 

off into the jaw" (Tr. 17-19). 

With regard to the five guarding citations (Nos. 3285843, 

3285846, 3285848, 3285849, and 3285850), I conclude and find that 

they were all serious violations. Although the crusher was not 

in operation at the time of the inspection, the inspector's 

unrebutted testimony reflects that it was running when he initially drove up to tne site, and Mr. Peters admitted that it had 

been in operation while it was being setup and tested. Further, 

the guards were not in place, and there is no evidence that they 

may have been installed while the crusher was being setup and 

tested. Under the circumstances, I conclude and find that there 

was some degree of hazard presented, and that a potential for an 

accident was present while materials were being run through the 

crusher while it was in a setup mode and being tested. The fact 

that the inspector found the violative conditions to be non-S&S 

is immaterial to any gravity finding or the seriousness of the 

potential hazards presented. 

1987 
Neither the inspector or the petitioner suggested that the 

inspector's non-S&S findings with respect to the guarding citations should be modified. Although I am troubled somewhat by the 

inspector's inconsistent and contradictory findings with respect 

to the likelihood of any injuries, and his admission -that he "may 

have been in error," I find no evidentiary basis for disturbing 

his non-S&S findings. In my view, a serious violation is not 

ipso facto a significant and substantial violation. The 

commission's standards and criteria for determining a significant 

and substantial violation have been addressed in Cement Division, 

National Gypsum Co., 3 FMSHRC 822, 825 (April 1981); Mathies Coal 

company, 6 FMSHRC 1, 3-4 (January 1984); United States steel 

Mining Company. Inc., 7 FMSHRC 1125, 1129 (August 1985), and the 

cases cited therein. 

The inspector's rationale for his non-S&S findings was based 

on the fact that an injury was unlikely because the plant was not 

operating at the time of the inspection, and there is no evidence 

that it was in production when the guards were not in place. 

More to the point, however, is the inspector's candid admission 

that the degree of hazard exposure can only be determined by 

asking relevant questions during an inspection with respect to 

the actual work which may have been performed in the proximity of 

the unguarded locations while the crusher was being operated. 

Although the inspector conceded that the actual hazard exposure 

could not be determined because the crusher was not in operation 

at the time he observed the violative conditions, it seems 

obvious to me from the lack of any evidence or testimony on his 

part to the contrary, that he made no inquiries so as to establish any factual basis in support of any conclusion that the 

guarding violations were in fact significant and substantial, and 

no evidence or testimony was advanced by the petitioner to establish that this was in fact the case. 

Significant and Substantial Violation (Citation No. 3461132, 

30 C.F.R. § 56.15002) 

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: 

1988 
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, (August 1985), 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 inspector's unrebutted testimony, which I find credible 

and probative, establishes that when he observed the truck driver 

operating the loader and loading the truck without wearing a hard 

hat, the loader bucket was raised 8 to 10 feet above the loader, 

and the inspector observed rocks spilling out of the bucket. He 

concluded that it was reasonably likely that the driver operating 

the loader would incur serious injuries if he were struck by a 

falling rock. Although Mr. Peters claimed that the loader had a 

steel plate covering over the canopy, the evidence establishes 

that it had no windshield and that it was open on both sides of 

the operator's compartment. The fact that the loader had a steel 

plate over the canopy, would not in my view, preclude any falling 

rocks from the raised bucket from entering the otherwise unprotected operator's compartment and striking the driver in the 

head. Under the circumstances, I agree with the inspector's S&S 

finding, and it is affirmed. 

Negligence 

Inspector Turner made .findings of "high negligence" for five 

of the citations he issued on September 13, 1988, (Nos. 3285841, 

3285843, 3285845, 3285846, 3285849), and "moderate negligence" 

for four citations (Nos. 3285844, 3285848, 3285850, 3285855). He 

made a finding of "high negligence" for the citation he issued on 

June 1, 1989 (No. 3461132). 

1989 
Mr. Turner stated that his negligence findings were based on 

whether or not the cited conditions were readily observable to 

the respondent, and if the violations occurred in any "hidden" 

area where the respondent could not see them, he would consider 

this to be a lesser degree of negligence. As an example, he 

explained that his "high negligence" finding with respect to 

Citation No. 3285843, for failing to guard the crusher tail 

pulley, mechanical belt, and V-belt drive pulley located at the 

approach ramp to the crusher would be readily observable because 

mobile equipment used to feed the crusher used the ramp (Tr. 35). 

No further testimony was forthcoming from the inspector with 

regard to his negligence findings made on September 13, 1988, 

other than the fact that Mr. Peters acknowledged that he knew 

that the cited equipment needed to be guarded (Tr. 35). 

I conclude and find that the respondent knew or should have 

known about the conditions which prompted the inspector_~o issue 

the citations on September 13, 1988, and that its failure to 

exercise reasonable care to insure compliance with the cited 

mandatory standards constitutes ordinary negligence. 

With regard to the citation issued on June 1, 1989, for the 

failure of a truck driver to wear a hard hat, the inspector 

stated that he based his "high negligence" finding on the fact 

that he and Mr. Peters had previously discussed the need for 

employees to wear hard hats while on the property. Although the 

inspector confirmed that he spoke with the employee in question, 

he could not recall whether the employee gave him any explanation 

for not wearing a hard hat, nor could he recall where the hard 

hat was located or from where the one supplied to abate the 

citation was obtained. 

Mr. Peters testified that he often spoke with his employees 

about wearing their hard hats, and he confirmed that he furnished 

a hard hat to the cited employee, but that he had it in his truck 

and had not bothered to put it on. This testimony is unrebutted, 

and I find it credible. Although the respondent is liable for 

the violation without regard to fault, I find that the negligence 

of the employee in failing to wear the hard hat furnished to him 

by the respondent mitigates the respondent's negligence and any 

civil penalty which may be assessed for the violation. Under the 

circumstances, I conclude and find that the violation resulted 

from a low degree of negligence by the respondent. 

Good Faith Compliance 

I conclude and find that citation Nos. 3285841, 3285855 

(continuity and resistance tests and fire extinguishers) were 

abated in good faith by the respondent within the extended 

abatement time. The hard hat citation (3461132) was abated 

within 3 minutes. 

1990 
With regard to the remaining citations, the record reflects 

that when the. inspector returned to the site on May 31, 1989, 

after previously extending the abatement time, he found that the 

respondent had made "no apparent effort" to secure the guards at 

some locations, install guards at other locations, or to remedy 

or correct the other cited conditions. As a result of these 

findings, he issued seven section 104(b) orders. MSHA's proposed 

civil penalty assessment amounts for the violations obviously 

reflect the fact that orders were issued, and I believe that it 

is reasonable to conclude that the inspector's belief that no 

effort had been made to correct the cited conditions resulted in 

the maximum number of penalty points for a lack of good faith 

compliance by the respondent. 

As noted earlier, although the respondent does not dispute 

the fact that the cited conditions constitute violations of the 

cited standards, the crux of its contest lies in its dispute with 

the inspector's belief that it made no apparent effort to correct 

the cited conditions. Mr. Peters maintained that at the completion of the inspection on September 13, 1988, the inspector 

informed him that as long as the crusher plant was not in production and was not running, there would be no problem. Mr. Peters 

testified that he paid no particularly attention to the 1-week 

abatement period fixed by the inspector, and that it was his 

understanding that he could make the necessary corrections during 

the winter season when the crusher was not in production. 

Mr. Peters further testified that the crusher was not in production from September 13, 1988, until the violations were ultimately abated. The inspector confirmed that all of the cited 

conditions were ultimately corrected, and he had no reason to 

dispute Mr. Peters' testimony that the plant was not operated 

before the corrections were corrected and abated. 

The inspector testified that his normal procedure is to 

inform an operator that if there is a violation, the plant should 

not be operated until the violation is corrected, and he believed 

that this is what he told Mr. Peters during his initial inspection on September 13, 1988. The inspector also agreed that it 

was possible that Mr .. Peters was under the impression that he may 

have had a week to fabricate the guards, but could wait until the 

crusher was placed in production before installing them. 

Mr. Peters testified credibly that when the inspector next 

returned to the site on February 23, 1989, for a follow-up 

inspection, several guards which he had constructed were available and were laying by the machine, and the inspector again 

informed him that there was no problem as long as the citations 

were corrected before he went into production. Mr. Peters stated 

that he and the inspector again discussed the fact that the 

crusher could not be operated until the cited conditions were 

corrected, but that the inspector said nothing about any specific 

1991 
dates for abatement, and that he (Peters) did not look at the 

extension "paperwork" left by the inspector. Mr. Peters confirmed that he told the inspector the violations would be remedied prior to any future start-up of the crusher plant, and the 

inspector confirmed that this is what Mr. Peters told- -him and 

that he wrote this on one of the extension forms which he issued 

on February 23. 

The inspector testified on direct-examination that he could 

not recall whether he spoke with Mr. Peters, Mr. Bagley, or both 

of them on February 23, when he extended the abatement times. 

His inspection report, with the attached copies of the extension 

notices, reflects that they were given to "office personnel," and 

the inspector could not recall giving them to Mr. Peters. He 

confirmed that he made no inspection note~ on February 23, and 

acknowledged that he may have given the extensions to Mr. Bagley 

or left them in the office. The inspector's asserted lack of any 

recollection of speaking with Mr. Peters contradicts his earlier 

testimony that Mr. Peters assured him on February 23, that the 

violations would be remedied prior to any start-up of the 

crusher. Further, his notation that he left the extensions with 

office personnel, and may have given them to Mr. Bagley, or left 

them in the office, corroborates Mr. Peters' assertion that they 

were not given to him and he did not see them. Although the 

inspector indicated that the fact that the extensions were issued 

suggests that he discussed the termination dates with Mr. Peters, 

he made no notes to confirm this, and he acknowledged that he had 

no independent recollection of discussing the extended termination dates with Mr. Peters. Under the circumstances, and in 

light of the inspector's lack of recollection and contradictory 

testimony, I give greater weight to Mr. Peters' testimony which I 

find credible. 

With regard to the inspector's return visit on May 31, 1989, 

when he issued the section 104(b) orders, after concluding that 

"no apparent effort had been made" to correct the cited conditions, the inspector testified that "I can't really say that I 

talked to Mr. Peters that day" (Tr. 10). His "assumption" that 

he spoke with Mr. Peters was based on the fact that he issued the 

orders. Although the inspector confirmed that he took notes 

which would refresh his recollection, and that a "conference 

sheet" which he filled out reflected that he did speak with 

Mr. Peters about "all the changes to orders, 104-B orders," the 

notes and conference sheet were not produced and they are not a 

matter of record. 

Mr. Peters testified that he was occupied with certain truck 

repairs on May 31, and did not accompany the inspector during his 

inspection. He relied on the inspector's prior statements that 

there would be "no problem" as long as the crusher was not operated before the abatement of the violations. Mr. Peters maintained that he had in fact made efforts to comply by fabricating 

1992 
most of the required guards which were there and which the 

inspector saw. Mr. Peters maintained that he had no opportunity 

to explain his abatement efforts to the inspector because he was 

busy repairing the truck while the inspector was writing up the 

orders. 

The inspector confirmed that Mr. Peters did not accompany 

him on his inspection because he was busy repairing a truck and 

told him "go on, do what you have to do" {Tr. 63). He testified 

that he made some notes dur:ing his inspection, and when he finished, he told Mr. Peters that he would have to issue the orders, 

and gave them to him. He stated that he discussed the orders 

with Mr. Peters, and when asked about what was discussed, the 

inspector stated that he told Mr. Peters that the plant will not 

operate until the violations were remedied, and he then left the 

property. 

Although the section 104{b) orders are not directly in issue 

in these proceedings and there is no indication that the respondent filed any separate contests within the required time period 

challenging the propriety of the orders, they are relevant to the 

civil penalty assessments proposed by the petitioner, and the 

mitigating arguments advanced by the respondent in support of its 

assertion that it had made some effort at compliance. In this 

regard, I take note of the fact that one of the orders makes 

reference to a lack of a guard bottom on the crusher flywheel. 

The underlying citation noted that the flywheel had not been 

guarded at all. The inspector agreed that in this instance, the 

flywheel was guarded on the top and sides on May 31, and that 

some work had been performed and an effort was made to at least 

guard the flywheel (Tr. 15). That same order makes reference to 

the fact that no effort wa~ made to secure a tail pulley guard 

which was not on the equipment when it was initially cited. This 

leads me to conclude that prior to May 31, an effort had been 

made to fabricate the guard, and it was simply not secured at 

that time. I also take note of the inspector's testimony that 

the respondent was constructing guards when he inspected the site 

on September 13. 

With regard to another order issued for failing to guard a 

conveyor tail pulley under the crusher, although the order states 

that no effort was made to secure the guard, the inspector 

believed that there may have been a change in the condition as 

originally cited, and I believe it is reasonable to conclude that 

a guard had been fabricated but was not in place or secured to 

the tail pulley pinch point on May 31. These instances of what I 

construe to be partial abatement efforts, corroborate Mr. Peter's 

assertions that he had made an effort to fabricate the guards, 

and had in fact done so, but had not secured or installed them. 

On the facts of this case, while it is true that the respondent had not completely abated the most of the violations during 

1993 
the extended abatement periods, I conclude and find that it had 

made some effort at compliance by fabricating the guards which 

were available when the inspector returned on May 31, 1989. 

Having viewed Mr. Peters during the course of the hearing, I find 

him to be a credible witness, and I conclude that notwithstanding 

the abatement extension dates which were on the citations and 

extension notices, that it was not unreasonable for Mr. Peters to 

believe that complete abatement was not required until such time 

as the crusher plant went into full production after the winter 

season. I further conclude that it was not unreasonable for 

Mr. Peters to believe that he could wait until after he had 

completed the installation of the crusher and placed it into full 

production before completely abating the cited conditions. 

Accordingly, I have taken this into consideration in mitigation 

of the civil penalty assessments which I have made for the 

violations. 

Civil Penalty Assessments 

Although MSHA has in the past routinely assessed "single 

penalty" non-S&S violations at $20, its procedures for making 

such assessments (Part 100, Title 30, Code of Federal 

Regulations) have been revised on an interim basis pending a 

permanent revision of its assessment regulations. These interim 

revisions are the result of a November 21, 1989, court decision 

in Coal Employment Project, et al. v. Secretary of Labor, (Court 

of Appeals for the D.C. Cir. No. 88-1708). However, it is clear 

that I am not bound by MSHA's proposed civil penalty assessments, 

and that once a penalty is contested and Commission jurisdiction 

attaches, a judge's determination of the amount of the penalty is 

de novo, based upon the statutory penalty criteria and the record 

developed in the adjudication of the case. See: Sellersburg 

Stone Company, 5 FMSHRC 287 (March 1983), aff'd, 736 F.2d 1147 

(7th Cir. 1984); United States Steel Mining Co •. Inc., 6 FMSHRC 

1148 (May 1984). 

On the basis of the foregoing findings and conclusions, and 

taking into account the six statutory civil penalty assessment 

criteria found in section llO(i) of the Act, I conclude and find 

that the following civil penalty assessments are reasonable and 

appropriate in th~ circumstances of this case. 

Citation No. Date 30 C.F.R. Section Assessment 

3285841 09/13/88 56.12028 $ 20 

3285843 09/13/88 56.14001 $125 

3285844 09/13/88 56.12008 $ 95 

3285845 09/13/88 56.11012 $125 

3284846 09/13/88 56.14001 $ 95 

3285848 09/13/88 56.14003 $ 90 

1994 
3285849 

3285850 

3285855 

3461132 

09/13/88 

09/13/88 

09/13/88 

06/01/89 

56.14001 

56.14003 

56.4201(b) 

56.15002 

ORDER 

$125 

$ 85 

$ 20 

~ 

$830 

The respondent IS ORDERED to pay civil penalty assessments 

in the amounts shown above within thirty (30) days of the date of 

this decision and order. Payment is to be made to MSHA, and upon 

receipt of payment, this matter is dismissed. 

~jf~ Administrative Law Judge -

Distribution: 

George B. O'Haver, Esq., Office of the Solicitor, U.S. Department 

of Labor, 71 Stevenson Street, Suite 1020, San Francisco, CA 

94105 (Certified Mail) 

Leo M. Cook, Esq., P.O. Box 418, Ukiah, CA 95482 (Certified Mail) 

Mr. Robert Peters, Peters Trucking Company 266 Shell Lane, 

Willits, CA 95490 (Certified Mail) 

/fb 

1995 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 2 21990 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF DON B. COLEMAN, 

Complainant 

v. 

RAMBLING COAL COMPANY, INC., 

Respondent 

DECISION 

DISCRIMINATION PROCEEDING 

Docket No. KENT 90-72-D 

PIKE-CD-89-15 

No. 5 Mine 

Appearances: G. Elaine Smith, Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, Tennessee, for 

Complainant; Billy R. Shelton, Esq., Baird & 

Baird, Pikeville, Kentucky, for Respondent. 

Before: Judge Maurer 

This proceeding concerns a discrimination complaint filed by 

the Secretary of Labor (Secretary) on behalf of the affected 

miner, Don B. Coleman, pursuant to section 105(c) of the Federal 

Mine Safety and Health Act of 1977, 30 u.s.c. § 815(c), 

hereinafter referred to as the "Act". 

On January 22, 1990, a Discrimination Complaint was filed 

with the Commission alleging that Mr. Coleman was unlawfully 

discriminated against and discharged by Respondent on 

August 3, 1989, for engaging in an activity protected by section 

105(c) (1) of the Act. More particularly, the Complaint alleges 

that Coleman's discharge on August 3, 1989, was the direct result 

of his stated refusal to perform work (operate a machine) which 

he believed to be unsafe. 

Pursuant to notice, a hearing on the merits was held in this 

matter on May 17, 1990, in Prestonsburg, Kentucky. Post~hearing 

proposed findings and conclusions were filed by the secretary on 

July 10, 1990, and by the Respondent on July 5, 1990. I have 

considered these submissions along with the entire record in 

making this decision. 

STIPULATIONS 

The parties stipulated to the following which I accept: 

1996 
1. Rambling coal Company, Inc., is the owner-operator of 

the No. 5 mine in Pikeville, Pike County, Kentucky. 

2. The mine is subject to the Federal Mine Safety and 

Health Act of 1977. 

3. The Federal Mine Safety and Health Review Commission and 

the presiding Administrative Law Judge have jurisdiction to hear 

and decide this matter. 

4. Mr. John South is a designated and authorized 

representative of the Secretary of Labor. 

5. The Complainant, Mr. Don B. Coleman, was discharged by 

Rambling Coal Company, Inc. on August 3, 1989. 

6. At the time of his discharge on August 3, 1989, 

Don B. Coleman's wage rate was $60.00 per day. 

7. According to Respondent's history of previous violations 

in the 24 months preceding the violation charged in this action, 

the Respondent had 177 inspection days, 104 assessed violations, 

.58 violations per inspection day and no previous violations 

prior to that time. 

8. The Respondent is a small operator producing 172,625 

tons per year. The No. 5 Mine produces 172,625 tons per year. 

FINDINGS OF FACT 

Having considered the record evidence in its entirety, I 

find that a preponderance of the reliable, substantial and 

probative evidence establishes the following findings of fact: 

1. Complainant (Coleman) was employed by Respondent 

(Rambling) as an outside man. He began his employment with 

Rambling in March of 1989. He was employed at the No. 5 mine 

from that date until his discharge on August 3, 1989. His duties 

as an outside man were servicing batteries, greasing equipment 

and checking fluid levels on the equipment and adding fluid, if 

required. As part and parcel of performing his job duties, he 

was required to operate the small front end loader that is the 

subject of this case. 

2. Danny Skeens, a coal hauler employed by Moody Trucking 

Company, used this front end loader on the afternoon of August 2, 

1989. He noticed that the brakes on the equipment were getting 

weak and he notified Coleman and another man of that fact. 

3. Skeens returned to the site early on the morning of 

August 3, 1989. He attempted to use this front end loader, but 

found that it had no brakes. Skeens reported this to 

1997 
Sammy Williams and Roy Alley, the superintendent. 

4. On August 3, 1989, Coleman arrived at the mine site for 

work at approximately 6:00 a.m. for his first day on the day 

shift. By 7:00 a.m., he was discharged. This is also the 

approximate time period when Skeens discovered and reported that 

the front end loader had no brakes. 

5. Coleman did not check the end loader's brakes that 

morning. He already knew the equipment did not have any brakes 

as of the previous evening, which was his last turn on the second 

shift. Coleman had reported this fact to Sam Williams, the 

company mechanic and only other person working with him on the 

previous night's shift. Shortly after his arrival at work on the 

morning of August 3, 1989, Coleman also informed Roy Alley that 

the front end loader had no brakes. 

6. Coleman credibly testified concerning that conversation 

with Roy Alley as follows (Tr. 64): 

Q. What was the nature of your conversation 

with Mr. Alley? 

A. Well, I went up to him, and I told him, I 

said, 'Roy, that end loader doesn't have any 

brakes,' and I said, 'And I know I'm going to 

have to be running it a lot,' and I said, 'I 

would like to have them fixed,' I said, 'I 

fear for myself as much as the other people, 

to run that piece of equipment, •cause it's 

not safe and I don't want to run it with it 

not safe like that, with no brakes on it.' 

Q. And what was Mr. Alley's response? 

A. He said, 'Okay, I'll take care of it, 

I'll talk to Steve [Horton),' and then he 

talked to Steve, and 20 minutes later he come 

back over -and said him and Steve decided that 

I've got an attitude problem. 

Complainant Coleman was then discharged. Roy Alley was not 

available at the hearing, but it is clear from the record, both 

from the testimony of Coleman and Steve Horton, the owner of the 

business, that Coleman was fired by Alley at the direction of 

Mr. Horton, after registering the above safety complaint. 

7. Immediately after his discharge, Coleman reported the 

firing and his complaint concerning the brakes to both the 

Kentucky Department of Mines and Minerals and the Mine Safety and 

Health Administration (MSHA). Both agencies responded by sending 

an inspector to investigate. 

1998 
8. Walter Coleman (no relation to the Complainant) is a 

mine inspector for the state of Kentucky. He was the first 

inspector to.arrive on the mine site. He arrived at the mine 

site at approximately 7:15 a.m., on August 3, 1989. -He inspected 

the front end loader and confirmed it had no brakes. He notified 

Mr. Horton, who along with Sammy Williams put brake fluid in the 

end loader and bled the brakes. 

9. Parenthetically, I find as a fact that bleeding the 

brakes is a two man job. Coleman could not have bled the brakes 

by himself, even if he knew how, which he claims he does not. 

10. Horton and Williams were able to restore working brakes 

to the front end loader in a matter of minutes utilizing the 

procedure noted in Finding of Fact No. 8. 

11. Mr. Horton had experienced an unrelated servicing 

problem with the end loader a few days prior to the inciaent at 

bar. On that occasion, the end loader could not be used because 

the transmission was out of fluid. At that time, Steve Horton 

warned both Sammy Williams, Jr. and Don Coleman to make sure the 

equipment was serviced and in condition to operate at all times. 

Both men were warned because both were considered to be 

responsible for the condition of the equipment. 

12. Horton's stated policy was to give only one 

disciplinary warning before firing a worker and in this case 

Respondent's assertion is that as of August 3, 1989, Coleman 

already had his prior warning. Therefore, when he allegedly did 

not put brake fluid in the end loader on August 2, 1989, or let 

somebody know that the end loader did not have brakes prior to 

that morning of August 3, he was fired for this reason, i.e., not 

doing his job, not for complaining about the lack of brakes on 

the equipment. 

13. However, I find as a fact that Coleman did put brake 

fluid into the end loader on August 2, 1989, but without bleeding 

the brake lines, this was ineffective. I also find as a fact 

that Coleman notified the company mechanic that the brakes were 

defective before leaving the premises on August 2, 1989. 

DISCUSSION WITH FURTHER FINDINGS 

Generally, in order to establish a prima facie case of 

discrimination under section 105(c) of the Mine Act a complaining 

miner bears the burden of production and proof to establish (1) 

that he engaged in protected activity and (2) that the adverse 

action complained of was motivated in any part by that activity. 

Secretary on behalf of Pasula v. Consolidation Coal Company, 2 

FMSHRC 2768 (1980), rev'd on other grounds sub nom. Consolidation 

Coal Company v. Marshall, 663 F.2d 1211 (3d Cir. 1981); Secretary 

1999 
on behalf of Robinette v. United Castle Coal Company, 3 FMSHRC 

803 (1981); Secretary on behalf of Jenkins v. Hecla-Day Mines 

corporation, 6 FMSHRC 1842 (1984); Secretary on behalf of Chacon 

v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510-2511, (November 1981), 

rev'd on other grounds sub nom. Donovan v. Phelps Dodge Corp., 

709 F.2d 86 (D.C. Cir. 19.83). The operator may rebut the prima 

facie case by showing either that no protected activity occurred 

or that the adverse action was in no way motivated by protected 

activity. If an operator cannot rebut the prima facie case in 

this manner it may nevertheless affirmatively defend by proving 

that it was also motivated by the miner's unprotected activity 

and would have taken the adverse action in any event for the 

unprotected activity alone. The operator bears the burden of 

proof with regard to the affirmative defense. Haro v. Magma 

Copper Company, 4 FMSHRC 1935 (1982). The ultimate burden of 

persuasion does not shift from the Complainant. Robinette, 

supra. See also Baich v. FMSHRC, 719 F.2d 194 (6th Cir. 1983); 

and Donovan v. Stafford Construction Company, No. 83-156~ D.C. 

Cir. (April 20, 1984) (specifically approving the Commission's 

Fasula-Robinette test). See also NLRB v. Transportation 

Management Corporation, 462 U.S. 393, 76 L.Ed.2d 667 (1983), 

where the Supreme Court approved the NLRB's virtually identical 

analysis for discrimination cases arising under the National 

Labor Relations Act. 

Additionally, where reasonably possible, a miner refusing 

work ordinarily must communicate or attempt to communicate to 

some representative of the .operator his belief that a hazardous 

condition exists. Secretary on behalf of Dunmire & Estle v. 

Northern Coal co., 4 FMSHRC 126, 133-135 (February 1982); Dillard 

Smith v. Reco, Inc., 9 FMSHRC 992 (June 1987); Miller v. 

Consolidation Coal Company, 687 F.2d 194, 195-97 (7th Cir. 1982) 

(approving Dunmire & Estle communication requirement). 

In the instant case, I find that Mr. Coleman's safety 

complaint to Superintendent Alley on August 3, 1989, concerning 

the brakes or lack thereof on the front end loader was protected 

activity. Without question, the end loader had no operable 

brakes on it and also without question it would be hazardous to 

mine site personnel to operate it in that condition. 

Rambling's position is that this protected activity had 

nothing to do with Coleman's discharge. Rather, Mr. Horton 

states that it was Coleman's failure to perform his job, i.e., 

service Rambling's equipment on the second shift, that led to his 

discharge. It is Horton's testimony that the equipment should 

have had brakes on it on the morning of August 3, 1989, and if it 

did not it was Coleman's fault. According to Mr. Horton "(t]he 

problem was he (Coleman] did not put the brake fluid in the end 

loader or let somebody know that the end loader did not have 

brakes on it prior to that morning (August 3, 1989]." Tr. 131. 

2000 
However, Mr. Coleman testified and I find it to be credible 

testimony, that on the evening of August 2, 1989, he attempted to 

service the equipment by adding brake fluid. This simple 

addition of brake fluid, however, without bleeding the brakes was 

ineffectual. He also testified and I find it credibl• that he 

then informed the company's mechanic that the equipment had no 

operable brakes. He himself had no mechanical expertise and this 

was all he could do prior to leaving the shift for the evening. 

He personally did not know what was wrong with the brakes and did 

not know how to fix them. Shortly after his arrival the next 

morning he made the same report or complaint to Roy Alley that 

swiftly led to his discharge. 

Turning now to the issue of whether the discharge was 

motivated by the protected activity, I first note the close 

proximity in time and space between the safety complaint 

concerning the brakes and the resultant discharge. This alone is 

strong circumstantial evidence that the two events are related. 

Additionally, there was one earlier incident where Coleman 

had failed to service a piece of equipment for which he was 

responsible along with another employee, Sammy Williams, and both 

had been warned by Horton. In this case, the same division of 

responsibility would seem appropriate also. Both Sam Williams, 

Sr., the mechanic, and his son, Sammy Williams, were also 

responsible for servicing and maintaining this equipment, along 

with Coleman. So, even if Coleman was somewhat responsible in 

this instance for there being no brakes on the end loader it 

would seem that Sam and Sammy Williams were at least equally 

responsible. 

Importantly, only Coleman complained or made an issue of it 

and only Coleman was fired. I therefore find that he was 

discharged as a direct result of engaging in protected activity. 

Since the operator has been unable to rebut this prima facie 

case, I also find that a violation of section 105(c) of the Act 

stands proven. The complaint of discrimination is therefore 

SUSTAINED. 

REMEDIES 

Turning now to Complainant's remedies, I find that he was 

unemployed between August 3 and August 29, 1989, for a total of 

18 working days at a rate of pay of $60 per day. This amounts to 

$1080. However, Complainant collected $414 in unemployment 

compensation during this time period and that must be subtracted. 

This leaves a total loss of pay of $666. The payment of interest 

will also be ordered on this award until the date of payment. 

Respondent will also be ordered to reimburse Complainant for 

his reasonable costs. He claims $275.52 for expenses incident to 

locating a new job and I find this to be very reasonable. 

2001 
Finally, the Secretary seeks a civil penalty in this case. 

Considering the criteria under section llO(i) of the Act, I find 

that a civil penalty of $500 is appropriate, and will be ordered. 

ORDER 

Based on the stipulations and the foregoing findings of fact 

and conclusions of law, Respondent IS ORDERED: 

1. To pay Don B. Coleman back pay through August 29, 1989, 

in the amount of $666, within 30 days of the date of this order. 

2. To pay Don B. Coleman interest on that amount from the 

date he would have been entitled to those monies until the date 

of payment, at the short-term federal rate used by the Internal 

Revenue Service for the underpayment and overpayment of taxes, 

plus 3 percentage points, as announced by the Commission in Loe. 

U. 2274, UMWA v. Clinchfield Coal Co., 10 FMSHRC 1493 

(November 28, 1988). 

3. To pay Don B. Coleman $275.52 as reimbursement for 

costs. 

4. To pay the Secretary of Labor a civil penalty in the 

amount of $500 for the violation found herein within 30 days of 

the date of this order. 

urer 

ative Law Judge 

Distribution: 

G. Elaine Smith, Esq., Office of the Solicitor, U.S. Department 

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

37215 (Certified Mail) 

Billy R. Shelton, Esq., Baird & Baird, P.S.C., 415 Second Street, 

Pikeville, KY 41501 (Certified Mail) 

slk 

2002 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

OCT 2 21990 

WYOMING FUEL COMPANY, 

Contestant 

. . CONTEST PROCEEDINGS 

v. 

. . Docket No. WEST 90-112-R 

Order No. 2930784; 2/13/90 

SECRETARY OF LABOR, Docket No. WEST 90-113-R 

MINE SAFETY AND HEALTH Citation No. 2930785; 2/13/90 

ADMINISTRATION (MSHA), 

Respondent . . 

. . 

Docket No. WEST 90-114~R 

Order No. 3241331; 2/16/90 

Docket No. WEST 90-115-R 

Citation No. 3241332; 2/16/90 

Docket No. WEST 90-116-R 

: Citation No. 3241333; 2/16/90 

Golden Eagle Mine 

MSHA Mine ID No. 05-02820 

Consolidated 

DECISION 

Appearances: Timothy E. Biddle, Esq., Susan E. Chetlin, Esq. 

Crowell & Moring, Washington, D.C., 

for the Contestant; 

Margaret A. Miller, Esq., Office of the Solicitor, 

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

for the Respondent. 

Before: Judge Morris 

These consolidated cases are before me pursuant to 

section 105(d) of the Federal Mine Safety and Health Act of 

1977, 30 u.s.c. § 801 et seg., (the "Act") to challenge 

orders and citations issued to Wyoming Fuel Company C"WFC"). 

After notice to the parties an expedited hearing on the 

merits was held in Denver, Colorado. 

The parties filed post-trial briefs. 

Summary of the Cases 

These consolidated cases involve two imminent danger orders 

and three citations. 

2003 
WEST 90-112-R: In this case, WFC contests Order No. 2930784 

issued under § 107Ca) of the Act by MSHA Inspector D.L. Jordan on 

February 13, 1990. 

The order alleged an imminent danger existed. The order 

further closed the Golden Eagle Mine and ordered all personnel 

withdrawn from underground. The order reads as follows: 

Methane in excess of 9.9% as approved by a handheld detector at a point at least 12" from the roof 

face and ribs was present behind a line of 6 Kennedy 

stoppings that have been constructed across the second south entry at the intersection of the number 14 

west main return. This encompass area behind the 

stoppings six (6) entries wide and 25 crosscuts deep. 

Bottle samples were collected to substantiate the 

the order. Citation No. 2930785 for a violation of 

30 C.F.R. § 75.329Ca)(l) accompanies this order at 

section 8, "Condition or Practice". 

A subsequent mod'if ication of the order was issued February 13, 1990, to allow construction of seals in 2d South. The 

modification reads: 

••• allow construction of seals in second 

south as per attached sealing plan as submitted 

and approved 2/13/90. No other work will be 

done until the order is terminated ••• CMSHA 

Order No. 2930784-01, "Subsequent Action" at 

section II, "Justification for Action"). 

Subsequently, on February 17, 1990, the order was again 

modified as follows: 

The affected area in 2 South, West Main has 

now been sealed, Order No. 2930784 is further 

modified to allow the operator to resume mining operations. The Order will remain in effect 

to moni~or the seals [sic. for methane] in 2 

South every two (2) hrs. for a 72 hrs. period ••• 

107(a) CMSHA Order No. 2930784-03, "Subsequent 

Action" at section II, "Justification for Action"). 

Only those persons necessary to monitor the 

gases and to safeguard the mine are to be gl,-

lowed underground. • •• 107Ca) CMSHA Order No. 

2930784-02, "Subsequent Action" at section II, 

"Justification for Action"). 

2004 
WEST 90-113-R: In this case, WFC contests Citation No. 

2930785 issu.ed by Inspector Jordan. 

The citation, issued under § 104(a) of the Act, alleges a 

violation of 30 C.F.R. § 75.329-1. 

The citation reads as follows: 

Methane ranging from .6 to 9.9% was present in 

front of and behind a line of Kennedy stoppings 

that were constructed across the second South 

Entries at the intersection with No. 14 West Main 

return entry, encompassing an area of 6 entries, 

25 cross-cuts deep. This creates a situation of 

neither being sealed or ventilated, a violation 

of 30 C.F.R. § 75.329-l(a). 

This was the main contributing factor to the 

issuance of imminent danger Order No. 2930784. 

Therefore no abatement time was set. 

The regulation allegedly violated in its full text provides 

as follows: 

§ 75.329 Bleeder systems. 

[Statutory Provision] 

On or before December 30, 1970, all areas from 

which pillars have been wholly or partially extracted and abandoned areas, as determined by the 

Secretary or his authorized representative, shall 

be ventilated by bleeder entries or by bleeder 

systems or equivalent means, or be sealed, as determined by the Secretary or his authorized representative. When ventilation of such areas is required, such ventilation shall be maintained so as 

to continuously dilute, render harmless, and carry away methane and other explosive gases within 

such areas and to protect the active workings of 

the mine from the hazards of such methane and other 

explosive gases. Air coursed through underground 

areas from which pillars have been wholly or partially extracted which enters another split of air 

shall not contain more than 2.0 volume per centum 

of methane, when tested at the point it enters such 

other split. When sealing is required, such seals 

shall be made in an approved manner so as to isolate 

with explosion-proof bulkheads such areas from the 

active workings of the mine. 

2005 
area. 

§ 75.329-1. Sealing or ventilation of pillared of abandoned 

(a) All areas of a coal mine from which 

the pillars have been wholly or partially 

extracted and abandoned areas shall be ventilated or sealed by December 30, 1970. For 

those coal mines in which ventilation can be 

maintained so as to continuously dilute, render harmless and carry away methane and other 

explosive gases within such areas and to protect the active workings of the mine from hazards of such methane and other explosive gases, 

the operator shall request permission from the 

Coal Mine Safety District Manager in whose district the mine is located to ventilate such areas. 

(b) The request for permission to ventilate such areas must be submitted in time to 

allow consideration of the request, to obtain 

approval, and to permit the operator to install the ventilation system, or to install 

seals in the event the request to ventilate 

is denied, on or before December 30, 1970. 

(c) The determination of whether ventilation will be permitted will be made after taking into consideration the history of methane 

and other explosive gases in the mine, the 

size of the gob or abandoned areas, and if 

the areas can be ventilated adequately. 

(d) To be considered for approval the request shall contain the following information 

provided by the mine operator: 

(1) Name of mine and company. 

(2) Location of mine (town, county, 

state). 

(3) Operator's name and address. 

(4) Date of application. 

(5) A detailed history of the 

methane content determined 

throughout the mine and when 

available, the volume of air 

in which such methane determinations were made, to support 

the operator's application to 

ventilate. 

2006 
(e) A description of the method by which 

the areas from which the pillars have been 

wholly or partially extracted and abandoned 

areas shall be ventilated and such maps and 

drawings as may be required to illustrate 

such method and to indicate existing, or 

proposed air volumes used to ventilate such 

areas. 

Cf) The signature and title of the person 

who submits the application for the operator. 

WEST 90-114-R: In this case WFC contests Order No. 3241331 

issued by MSHA Inspector A. Duran on February 16, 1990. 

The order alleged a condition of imminent danger existed. 

The order was accomplished by Citation No. 3241332 and subsequently by Citation No. 3241333. The order required that all 

personnel be withdrawn from the underground areao 

Order No. 3241331 reads as follows: 

An unknown mixture of methane/air could 

not be determined at the Kennedy stopping 

constructed at #1, #2, and #3 entries of 1 

- Right due to [sic. the condition] that 

there was no means of testing or detecting 

what mixture was behind the stoppings. #1, 

#2, and #3 were being ventilated with the 

use of a line curtain from #7 right return 

entry of 3d North. When No. 2 entry stopping was not ventilated methane of 10% plus 

volume percentum was detected 12 inches 

from the roof and face of the stopping with 

the use of a permissible hand held methane 

detector. Bottle samples were collected 

at leakage areas of the stopping to substantiate~ the order. 

WEST 90-115-R: In this case WFC contests Citation 

No. 3241332. This citation, issued under § 104(a) of the 

Act, accompanied Order No. 3241331. 

The citation alleges a violation of 30 C.F.R. 

§ 75.329(l)(a), cited supra. 

2007 
The citation reads as follows: 

Methane/air mixture ranging from 0 to 10% 

plus volume percentum was detected with the 

use of a hand held methane detector when 

check 12 inches from the roof and face of #2 

Kennedy stopping erected in the No. 2 entry 

of 1 Right. This was detected when the line 

curtain was removed that was ventilating the 

stopping. Other means of testing or detecting 

what mixture was behind the stopping was not 

provided at #1, #2, and #3 Kennedy stopping. 

This creates a situation of neither being 

sealed or ventilated, a violation of CFR 30 

75.329-l(a). This was a contributing factor 

to issuance of an imminent.danger 107Ca) 

#3241331, therefore no abatement time was set~ 

WEST 90-116-R: In this case WFC contests Citation No. 

3041333 which was issued after Order No. 3241331. 

The citation alleges as follows: 

This citation is issued for working in the 

face of a 107(a) Imminent Danger withdrawal 

Order No. 2930784 dated 02/13/90. The Company 

was observed in the process of constructing 

permanent seals in an entirely different area 

of the mine. 1 Right panel off 32d North 

without prior authorization or notification 

to MSHA. In addition the employees were exposed to an Imminent Danger due to an explosive 

gas mixture behind and in front of Kennedy 

stopping erected in #1, #2 and #3 entries of 

1 Right Panel. Six employees and a Foreman 

was observed working in the immediate area. 

Employees stated the work had started on 

02/14/90 to present 02/16/90 on the day shift. 

Procedural Issues 

WFC moved for an expedited hearing in these cases. The 

Secretary opposed and an expedited hearing was held. 

The issue is again raised in this decision and the Commission is invited to consider the issue anew. 

In support of its motion for expedition, WFC relies on the 

statutory requirements set forth at section 107(a) of the Act. 

The cited section provides as follows: 

2008 
Ce) Relief from orders; hearing; order; 

expedited proceeding. 

Cl) Any operator notified of an order 

under this section or any representative 

of miners notified of issuance, modif ication, or termination of such an order 

may apply to the Commission within 30 days 

of such notification for reinstatement, 

modification or vacation of such order. 

The Commission shall forthwith afford an 

opportunity for a hearing ••• and thereafter 

shall issue an order, based on findings of 

fact, vacating, affirming, modifying, or 

terminating the Secretary's order. The 

Commission and the courts may not grant 

temporary relief from the issuance of any 

order under subsection Ca). 

(2) The Commission shall take whatever action 

is necessary to expedite proceedings under this 

subsection. C§ 107(e), Cl) and (2), Emphasis 

added). 

In opposition to the motion the Secretary states the 107Ca) 

orders have been modified to permit mining activity. Further, 

the modified order simply requires that methane samples be taken 

each day to determine the stability of the methane since the construction of the permanent seals. The Secretary also contends 

that if all orders issued under § 107 were expedited on request, 

there would no longer be any capability for expeditious hearings. 

The Secretary further asserts the Congressional intent of 

Section 107(a) is to assist operators where an emergency situation exists. In short, the Secretary argues Congress intended 

to allow an expedited hearing only in the case of an active 

closure order, where the mine is not being allowed to produce 

and is suffering a great hardship as a result of an MSHA order. 

It is also urged that the matter of whether a hearing should 

be expedited rests with the sound discretion of the presiding 

judge. 

The Secretary also contends the Commission Rules are so 

structured that expedited hearings are allowed only in emergency 

situations. 

2009 
Discussion 

It is a basic rule of construction that where the language 

is clear the statute must be enforced as it is written unless it 

can be established that Congress clearly intended the words to 

have a different meaning. Chevron, USA v. NRDC, 467 U.S. 837, 

842-43, 104 S.Ct. 2778 (1984); United States Lines v. Baldridge, 

677 F.2d 940, 944 CD.C. Cir. 1982); Phelps Dodge Corp. v. Federal 

Mine Safety and Health Review Commission, 681 F.2d 1189, 9th Cir. 

(1982); Freeman United Coal Mining Co., 6 FMSHRC 1577, 1578 

(1984). 

The statutory requirement, stripped of surplus language, is 

that "any operator ••• notified of an order, etc., may apply 

within 30 days ••• for a vacation of such order, etc." In such 

a situation, "the Commission shall expedite proceedings." 

It is uncontroverted here that these cases involve orders 

issued under the authority of Section 107(a) of the Act. The 

contests were filed within 30 days. 

The foregoing uncontroverted facts require that these cases 

be expedited. I agree with the Secretary that Congress may have 

intended an expedited hearing only in the event of an active 

closure order. However, the wording of § 107 does not show such 

an intent. 

Further, the structure of the Commission's Rules do not 

support the Secretary. Commission Rule 52, 29 C.F.R. § 2700.52, 

provides as follows: 

§ 2700.52 Expedition of proceedings 

(a) Motions. A motion of a party to expedite 

proceedings may be made orally, with concurrent 

notice to all parties, or served and filed by 

telegram. Oral motions shall be confirmed in 

writing within 24 hours. 

(b) Timing of hearing. If the motion is granted, 

a hearing on the merits of the case shall not be 

scheduled with less than four days notice, unless 

all parties consent to an earlier hearing. 

A fair reading of the statute and the Commission rules 

indicate that expeditious hearings involving § 107Ca) orders are 

generally not left to the discretion of the presiding judge; 

further, expedited hearings are not necessarily restricted to 

"emergency" situations. 

2010 
I agree the failure to read "emergency situation" into the 

Act and Rule.52 could render the expedited hearing process meaningless. However, the writer has never found the expedited hearing process to be burdensome, nor have any litigants attempted to 

"overload" the Commission with requests for expeditious proceedings. If this were to become a problem interfering with the Commission's duties of adjudicating disputes under the Mine Act, the 

Commission would no doubt amend Rule 52. In such circumstances 

the appellate courts would accord great deference to the Commission's interpretation of its own rules. Lucas Coal Company v. 

Interior Board of Mine Operations Appeal, 522 F.2d 

581 Cl975). 

In sum, under the Mine Act, contestant is entitled to an 

expedited hearing when a § 107Ca) order is involved. 

If the orders here had been issued under § 104Cd) of the 

Act, a totally different result would have occurred. 1/-under 

section 105CB)C2>, [30 USC§ 815Cb)CB)C2)], the Commission may 

grant temporary relief from a 104Cd) order only under very 

restrictive conditions. These are: 

CA) a hearing [before MSHA] has been held 

in which all parties were given an opportunity 

to be heard; 

CB) the applicant shows that there is substantial likelihood that the findings of the 

Commission will be favorable to the applicant; 

and 

CC) such relief will not adversely affect 

the health and safety of miners. 

No temporary relief shall be granted in the case of a 

citation issued under subsection Ca) of Cf} of section 

104. The Commission shall provide a procedure for expedited consideration of applications for temporary 

relief under this paragraph. 

In sum, I reaffirm the previous ruling granting WFC an expedited hearing. 

1/ See Order in Medicine Bow Coal Co., WEST 90-117-R, March 13, 

1990. 

2011 
Amendment 

The original citations and orders herein were issued in 

February 1990. On March 6, 1990, the Secretary sought to change 

the allegations from a violation of 30 C.F.R. § 75.329 to a 

violation of 30 C.F.R. § 75.316. 

The operator's objection to the amendment was sustained for 

the reason that MSHA may not amend a citation that has already 

been terminated. See Clinchfield Coal Company v. Federal Mine 

Safety and Health Review Commission, 895 F.2d 773, 776 (D.C. 

Cir. 1990); Emery Mining Corporation/Utah Power & Light Co., 

10 FMSHRC 1337, 1346-47 (Morris, J) (Order), review granted 

(March 9, 1989). 

Stipulation 

- At the commencement of the hearing the parties stipulated as 

follows: 

1. The Golden Eagle Mine is owned by WFC and the mine is 

subject to the Act. 

2. The annual production is 900,000 tons. 

3. The Commission and Administrative Law Judge have jurisdiction over this matter. 

4. The papers involved in these cases were properly served 

on the company and can be admitted in evidence. 

5. Prior to the orders and citations herein the company 

received 10 citations for rock dust violations. 

Summary of the Evidence 

DONALD L. JORDAN has been a coal mine inspector for 19 

years; he is a person experienced in mining. He has inspected 

the Golden Eagle dnderground mine on numerous occasions and does 

so for about eight weeks each year. 

On February 13, 1990, he inspected the mine accompanied by 

Mark Bayes, an assistant mine foreman. 

On that day he issued a 107(a) imminent danger order in the 

2d South area of the mine (Order No. 2930784). Exhibit C-4, a 

mine map, shows 2d South, 1st Right and other areas discussed in 

the case. 

2012 
The 2d South entry, an abandoned area, is 6 entries wide. 

Its width exceeds 2000 feet. 

Inspector Jordan initially saw the Kennedy stoppings (hereafter called Kennedys or stoppings) when he examined the six entries. (The stoppings are shown in Exhibit S-5.) Foam had been 

applied around the roof and ribs of the stoppings. Stoppings are 

intended to deflect the air current and seal the area behind them. 

This was not an adequate procedure because there were numerous 

ignition sources behind the stoppings and there was an excessive 

liberation of methane. Therefore, the stoppings would be inadequate as a safety device. 

The inspector was alarmed because the area was not sealed. 

In a couple of the entries the methane concentration went to 

1.5 percent. The methane readings were as follows: 

No. 1 Entry .8 percent 

No. 2 Entry .6 percent 

No. 3 Entry 1.5 percent 

No. 4 Entry .7 percent 

No. 5 Entry .6 percent 

No. 6 Entry .8 percent 

The methane was measured with a methane detector. 

In view of the amount of methane present on the ventilated 

side of the stoppings, the inspector was concerned about the 

methane concentrations behind the stoppings. 

Inspector Jordan then withdrew 1000 to 1200 feet to a telephone and contacted his District Manager, Joe Pavlovich. He 

indicated to his supervisor that he needed sampling equipment to 

determine the concentrations behind the Kennedy stoppings. In 

his opinion there was an explosive mixture of methane behind the 

seals. Inspector Jordan also directed that the power inby be 

shut off in order to eliminate some ignition sources. He then 

examined the stoppings. He detected 2.2 percent methane in one 

of the entries. This indicated to him that the methane was 

changing back and forth between the stoppings. He then went to 

the No. 1 entry and withdrew a sample from behind the Kennedy 

stopping by using as aspirator pump. The air was trapped in a 

50 mm bottle and the sample was sent to Mt. Hope, West Virginia 

for analysis. 

In at least three-fourths of the readings with the methane 

detectors Inspector Jordan found that the methane exceeded 

9 percent. He concluded this was a serious matter and withdrew 

the men from the mine issuing an imminent danger order for the 

2d South area. 

2013 
He based his order on the fact that the company has had a 

history of roof falls. Also, he was aware of ignition sources in 

the area. He considered this to be an imminent danger situation 

in view of the methane levels immediately behind the stoppings. 

These factors combined with the size of the area, namely 6 crosscuts wide by 25 crosscuts deep, an area in excess of 2000 square 

feet. 

Inspector Jordan was aware of several sources of ignition 

such as roof bolts, track and trolley equipment, man doors and 

such. Also an ignition source could be from a roof fall striking 

against steel. If given these conditions, he had a reasonable 

belief that an explosion would occur. In fact, the conditions 

he found "scared the pants off of" him. 

Explosions almost always cause a loss of life and they would 

propagate beyond the stoppings. 

Mr. Jordan and his District Manager 

take immediate action by withdrawing the 

the surface. He was afraid for himself. 

certain there would be an explosion. 

agreed that they should 

miners and retreating to 

However, he couldn't be 

They went to the surface and the mine superintendent was 

notified. A conference was held in the main company off ice. 

The area behind the stoppings was not ventilated. In such a 

situation he would expect there would either be seals or the area 

ventilated. One would also expect that explosion-proof bulkheads 

would have been installed. In addition to the imminent danger 

order he issued a 104(a) citation. Inspector Jordan did not see 

any ventilation in the area and he considered the violation to be 

significant and substantial. The purpose of the seals was to 

create an atmosphere behind them. Seals have value outby an area 

as protection if an explosion occurs. A discussion took place 

with management about possible removal of the stoppings but no 

one wanted to volunteer to remove the Kennedys. 

MSHA officials also discussed with company representatives 

that travel in 2d South would be restricted. The 107(a) order 

covered the entire mine but it was modified by Inspector Jordan 

to allow the company to construct seals but no other work. The 

operator's activities were limited to the 2d South area. 

The inspector agreed that Kennedy stoppings are a recent 

innovation. In his opinion the condition is imminently dangerous 

if there is an explosive mixture of methane behind the stoppings 

and the area is inaccessible. 

2014 
He indicated a methane detector is accurate to within 

.1 percent; when the methane concentration is in excess of 

9 percent the detector loses its accuracy. Methane is in an 

explosive range when its concentration to oxygen is between 

5 to 15 percent. 

If the methane concentration is in excess of 20 percent, the 

inspector will remove the detector because it is no longer calibrated. Methane concentrations from 16 to 80 percent of oxygen 

are not explosive mixtures. 

Prior to the day of this inspection Mr. Jordan had not seen 

the Kennedy stoppings in the 2d South area nor in 1st Right. The 

locations of the stoppings were not shown on the company mine map. 

Kennedy stoppings are not explosion-proof bulkheads. This 

2500-foot long area could not be ventilated; therefore,_it should 

have been sealed. The purpose of the inspection was not to 

locate or find Kennedy stoppings. Any abandoned area must be 

sealed or ventilated. In the ventilation plan Kennedy stoppings 

could be used but not in lieu of a seal. 

In fact, there was no room to build seals outby some of the 

stoppings. If. seals had been constructed the inspector would not 

have issued his imminent danger order. With Kennedy stoppings in 

place he would expect to find some methane in the outby side. 

Forty feet of tube was used on the aspirator to sample 

behind the stopping. A span of six entries is 600 feet. 

The series of bottle samples that were taken (as shown on 

Exhibit S-6) justify the imminent danger order. Further, the 

hand held detectors had shown methane as high as 9 percent. 

In 2d South there have been as many as six roof falls. When 

Inspector Jordan issued his imminent danger order, miners were 

working only two entries away. Only in one location did Inspector Jordan see any permanent sealing material. 

Several hours elapsed from a verbal order of imminent danger at 11 a.m. until the company received the written order. 

Verbal orders are frequently issued. On the day it issued the 

imminent danger order, MSHA also wanted to know the company's 

plans to remedy the conditions. A Kennedy stopping is not the 

same as a seal. Methane will migrate from area to area. The air 

outby at the stopping was 37,632 CFM. 

2015 
ANTHONY DURAN, an MSHA coal mine inspector, carries certificates as an assistant mine foreman in New Mexico. He works at 

the Golden Eagle Mine two quarters a year •. 

He inspected the mine on February 13, 1990, and went to the 

longwall section with Supervisor Joe Pavlovich and the mine foreman. On that date he was called to 2d South but did not take any 

methane readings. He agreed with Mr. Jordan as to the imminent 

danger in the area. 

Inspector Duran issued an imminent danger order on February 16, 1990, when they were continuing with their inspection. 

He had learned the company was putting seals in 1st Right. The 

previous Jordan order had affected the entire mine. Inspector 

Duran was accompanied by Frank Burka of the company safety department. Six miners and a foreman were putting up seals in 

1st Right. Inspector Duran went to the No. 1 and No. 2 ~toppings and checked for methane. By using his hand-held methane 

monitor he found a concentration of methane. It was 1.9 percent 

to 2 percent at the wall. A methane detector may burn out if the 

concentration is above 10 percent. 

The Kennedy stoppings were in place at 1st Right. He 

measured the methane at 2 to 5 percent. One of the stoppings 

had a hole in it and the concentration at that point was 8 

percent. 

In Inspector Duran's opinion, the concentration of methane 

is unpredictable in this gassy mine. If an explosion occurred 

behind the Kennedy stopping, it could propagate into the working 

area. The inspector also tried to take an air bottle measurement in the No. 3 crosscut but he could not determine if the 

tubing had gone through the Kennedy stopping. He took a methane 

reading of 1.9 to 2 percent when the tubing had been put through. 

Inspector Duran also sampled 3.3 to 2.4 percent on the right hand 

side and 8 percent at the Kennedy stopping. 

He went back to No. 3 entry with two large air bottles and 

two smaller ones.· He then issued a 107(a) order because of the 

possibility of an imminent danger. He could not see behind the 

Kennedy stopping. Methane requires an ignition source such as 

a roof fall. In a roof fall, if the roof bolts popped, they 

could cause a spark, or steel striking steel could cause a spark. 

The hazard is a resulting explosion. The inspector felt it was 

an imminent danger situation because he did not know what was 

behind the Kennedy stopping. He was also fearful of his own 

safety. 

2016 
Inspector Duran issued a citation because WFC was working 

"on an order." The previous order did not allow working in 1st 

Right. 

The area behind the Kennedy was not being ventilated. There 

were no seals completed in the 1st Right area. If an explosion 

occurred it could cause death, but the inspector did not know for 

certain that an explosion would occur. Inspector Duran did not 

know the concentration of the methane mixture behind the stopping. 

He issued the order because, in his opinion, the return entry 

could be shut off. He then went to the surface and called his 

supervisor. 

Inspector Duran terminated the 107(a) order when the seals 

were completed. In addition, the methane tests indicated that 

the concentration was above 80 percent, which was clearly beyond 

the explosion range. 

The inspector had seen Kennedy stoppings when the Golden 

Eagle mine was developing the headgate and tailgate. The methane 

detector used by the inspector was Model MX 240, as shown by 

Exhibit C-1. 

In connection with Order No. 3241331 the inspector detected 

one reading at 5 percent and one at 8 percent. . He recalibrated 

his instrument every morning and when he returned to the surface. 

There were no surveillance tubes in the No. 2 or No. 3 

entries. He couldn't tell whether or not the areas behind the 

Kennedy stoppings were ventilated. Inspector Duran took a sample 

in 1st Right. The samples taken from 1st Right are noted on 

Exhibit S-7, an analysis by the Denver Tech support lab. 

RONALD L. PHELPS of Trinidad, Colorado, has been an MSHA 

supervisory inspector since October 22, 1989. He is a person 

experienced in mining; he has been in the Golden Eagle Mine six 

times. 

Mr. Phelps was ·contacted by the inspector as to whether or 

not it was appropriate to issue the imminent danger order. In 

his supervisory position he has reviewed the records of the 

Golden Eagle Mine concerning rock dust surveys. In the past, the 

company has received 26 citations for inadequate rock dust. 

Inspector Duran called Mr. Phelps concerning 1st Right. 

Inspector Duran said work was being done on the 1st Right on 

seals but the miners were working in methane concentrations. 

materials and tools being used could cause sparks; there was 

an unknown methane mixture behind the stoppings. 

2017 

two 

The 

also 
Based on this information, Mr. Phelps concluded that it was 

reasonably likely than an explosion could occur. He felt he had 

no choice but to issue an imminent danger order. He also concluded that MSHA should issue a 104Ca) order. He directed that 

the workers be withdrawn from the mine. 

Mr. Phelps traveled to the mine and met with company representatives to establish a plan to complete the seals in 1st Right. 

He inspected the area and concluded the Kennedy stoppings did not 

meet the criteria of explosion-proof seals. He returned to the 

mine the following day and was informed that the seals only 

lacked a couple of blocks to be completed. Inspector Duran confirmed the completion of the 1st Right seals and MSHA terminated 

the order on 1st Right. The seals were completed at 12:55 p.m.; 

upon completion, the order was terminated as to 1st Right. MSHA 

authorized the resumption of mining but methane samples were 

required to be taken to verify the integrity of the 2d S.Outh 

seals. 

After 72 hours, a favorable positive trend was established 

but MSHA left the modification in effect. The order was terminated on February 28 when it was indicated the seals were 

effective. 

On the day the order was issued, the inspector met with several company officials, as well as with MSHA representatives 

Pavlovich and Jordan. At this meeting they discussed the conditions and requested that the company propose how it intended to 

correct the situation. After the company plan was approved the 

2d South order was modified so that miners could safeguard the 

mine, but no other work was authorized. Also maintenance would 

be allowed in certain areas to address the problem of water 

accumulations, etc. The modification, in effect, states that no 

other work was to be done. 

The inspector agreed he was only aware of one safety complaint in connection with 1st Right, a 103Cg) complaint. Inspector Melvin Shively concluded after an investigation that the 

103 Cg) complaint was -invalid since he found initials in the necessary area. Shively did not tell the inspector about the Kennedy stoppings which were recessed 20 to 30 feet from the return. 

On March 13, Mr. Phelps was involved in the dispatch of the 

inspectors. He assigned each inspector to a section of the mine. 

The previous evening, Inspector Duran told him that Kennedy stoppings existed across the 2d South entry. In Mr. Duran's opinion 

this blocked the ventilation; such a condition was a problem. 

2018 
Mr. Phelps assigned.Jordan to the west side and asked him to 

check the conditions. He did not want an area to be unventilated, nor did he want Kennedy stoppings serving as seals. 

From Mr. Duran's statements, the witness believed miners 

were working in an explosive gas area. Mr. Duran told him the 

company had dropped the ventilation curtains. 

After the order was issued on 2d South, MSHA allowed the 

company to build permanent seals. In 1st Right the seals were 

built; after the seals were completed in 1st Right, the methane 

was no longer ii the explosive range. 

Stoppings in 2d South were constructed in a poor position 

since they were close to the entries. The ribs themselves were 

crushed and rolled and there was concern about the integrity of 

the seals. Logically, there wasn't a perfect solution. The 

order of withdrawal issued on February 13 is the same order terminated February 28. 

The imminent danger order was modified and left in effect 

as a control measure. When the order was issued on 2d South, the 

mine was closed. No one was allowed to return until the order 

was modified. 

On acceptance of the company plan, the order was modified 

and the company was allowed to enter 2d South and build the seals. 

The company was also permitted to check the water accumulations 

and methane concentrations in the area. 

The plan to construct the seals indicated an ongoing effort 

to provide a safe working environment. The ten-point plan that 

was approved by MSHA provided that certified people would monitor 

the area; also, non-sparking tools would be used. 

The chain of command, from MSHA's viewpoint, was the office 

of District Manager John DeMichiei to Sub-District Manager 

Joe Pavlovich to the MSHA field off ice and then to the three 

regular MSHA inspectors. 

WILLIAM REITZE, an MSHA mining engineer, has been with MSHA 

for three years. He is familiar with the Golden Eagle Mine and 

has been in the mine on three occasions. Mr. Reitze identified 

the ventilation plan for the mine; he has reviewed the plan in 

its present form (Exhibit S-8). 

2019 
He indicated that Kennedy stoppings were a form of ventilation control but do not constitute a seal. All areas of a mine 

must be ventilated or sealed. 

In this mine, Kennedy stoppings were across the entries in 

both areas. This would indicate the areas were not being ventilated. There was no way for air to make a loop through the 

area. 

Permanent seals are constructed of 8-inch by 8-inch by 

16-inch concrete blocks. The blocks for the seal must be 16 

inches thick with a surveillance tube and water tap. If the 

seals are in place, methane can build up beyond the explosive 

range. The C02 will also increase in the atmosphere. It is 

impossible to build a perfect seal. seals normally leak. 

One method is to put in a temporary seal and then construct a permanent seal. The permanent seals are cut into the 

rib floor. The concrete blocks are then sealed with mortar. 

The mine requires explosion~proof seals. A Kennedy stopping is not explosion-proof. A Kennedy stopping is eight inches 

thick but stoppings are not built to hold an explosion. In one 

of the entries here, it took four hours to install an explosionproof seal. It is a good mining practice to monitor an atmosphere behind the seals as it is necessary to know the extent of 

methane build-up, depletion of oxygen, etc. 

There can be variations of methane concentrations behind the 

Kennedy seal, as well as behind a permanent seal. 

The mine maintained two areas which were not ventilated and 

permanent seals were not installed. 

A map is part of the ventilation plan. It is shown in 

Exhibit S-8. 

Exhibit S-9 shows the 2d South area where the seals are 

constructed Cleft of center of map shown in Exhibit S-9>. on 

Exhibit S-9 the triple lines indicate a seal. The initials "SM" 

mean "Steve Madson." He indicated where the seals were to be 

constructed. Madson drew the seals on the company map and 

initialed the map. The map is part of the approved plan. 

The ventilation plan requires methods to be used for the 

concrete explosion-proof seals. Exhibit S-10 is part of the 

ventilation plan. It contains estimated construction dates. 

2020 
Seals are to be constructed and seals should go up to the 

ventilation stop. 

WFC's Evidence 

DAVID HUEY, Wyoming Fuel's Manager of Operations, is a person experienced in mining. The company employs 132 hourly miners 

and has 26 underground management personnel. The mine is 450 

feet deep and a strata of shale overhangs the workings. 

Exhibit C-2 is the roof control plan; a page of the plan is 

a lithologic survey prepared by the company's chief engineer. 

The mine liberates in excess of five million cubic feet of 

methane in a 24-hour period; as a result, the company has a 

weekly inspection as mandated by § 103Ci) of the Act. 

-- A 14-foot diameter intake shaft in the return shaft pulls 

500,000 CFM. Exhibits C-3 and C-4 show the abandoned area. 

The Kennedy stoppings are marked with three vertical slash 

marks on the exhibits. 

The company increases ventilation to handle the methane 

liberated by the mine. Certain areas are sealed because of the 

amount of methane liberated. The Kennedy stopping is used to 

shut off air; it is not a seal. 

There has been no mining in the 2d South area since 1985 

because of floor heave and maintenance problems. The concret~ 

block stoppings were broken. 

If a stopping is crushed out, the air will short-circuit and 

not go back to the end of the panel. 

Heaving problems in 2d South were present since Mr. Huey 

began his employment with the company. The company has also 

encountered black damp CC02>· The section is 2500 feet long. 

Black damp was encountered at 2,000 feet. Brattice was installed 

where the Kennedy stoppings had crushed out. This did not solve 

the problem, which has been ongoing since August 18, 1989. The 

company also blocked off entries with Kennedys. The Kennedys 

prevent access to an area. The company decided to seal 2d South 

when they installed Kennedy stoppings in January 1990. The company did not continue to work in 2d South after the Kennedy stoppings were installed. However, foremen walked the area in pairs 

in the event brattice needed to be moved. 

2021 
Kennedys were installed in the latter part of January 1990 

to keep the miners out. There was positive pressure maintained 

on the Kennedy stoppings. The purpose was to keep miners out of 

the areas where there was positive pressure on the stoppings. 

The 37,000 plus CFM airflow against the Kennedy stoppings would 

dilute any methane. The loop of air was drawn on Exhibit C-4; 

the arrows show the airflow before the Kennedy stoppings were 

installed. 

The heave of the floor will break a Kennedy stopping. 

Kennedy stoppings were installed before an area was sealed. 

The ventilation plans permit Kennedy stoppings. 

Afte·r put ting in the stoppings the company would next, in 

sequence, install seals at the mouth of 2d South. 

The material for installing the seals had been loaded and 

moved into position by the track. This was an ongoing process. 

The material would be transported by locomotive. The route is by 

a rope slope and then by cable car. On one trip the company 

could put in material for a seal but the material itself goes on 

a locomotive to the track end. The supplies are then hand-carried to the six sites. One man could carry one block from the 

track. It is about 600 feet. If the seals are on the outside 

then there is a possible travel. distance of 900 feet from the 

track end to the seals. The mortar was contained in 90-pound 

bags. 

Mr. Huey had a conversation with MSHA about the sealing 

of 2d South. The company planned to seal 2d South. MSHA's 

Archie Vigil was supportive of the idea. 

Witness Huey was informed at home of the imminent danger 

order in 2d South. At that time he was advised that Inspector 

Jordan had ordered the miners withdrawn. The subsequent discussion with MSHA representatives took place at the mine office. 

The outcome was.to.erect permanent seals which the company 

had already been set out to do. Mr. Huey did not agree with the 

imminent danger order because there was no imminent danger. 

There was a lot of black damp but there were no ignition sources 

in the area. The inspector said there was a possibility of a 

roof fall. However, the company uses resin-grounded roof bolts. 

There wouldn't be a roof fall behind the Kennedy stoppings. 

Belt structures could not be ignition sources. MSHA also 

claimed that a roof fall could strike a rail and cause an ignition. They also claimed that the methane behind the Kennedy 

stoppings was in the explosive range. Mr. Huey would expect to 

find methane behind the Kennedy stoppings. 

2022 
He was aware of two roof falls in 2d South in an area behind 

the Kennedy stoppings. This had occurred at some previous time. 

The 1st Right area involved the imminent danger order. 

1st Right and 2d Right were developed by longwall panel. The 

company encountered a fault in 2d Right. The fault resulted in 

excessive water (600 gallons per minute and excessive methane). 

The company pumped out the water reducing the methane and 

also put up a seal. Mr. Huey was assisted by MSHA on arranging 

the temporary seals. Positive air pressure was used on the seals. 

They had a difficult time keeping the methane concentration below 2 percent. The company installed Kennedy stoppings across 

three entries but applied positive pressure to them. (The airflow is shown in blue on Exhibits C-5). When the company reached 

1st Right at the junction of 3d North, it could not get the methane concentration below 3 percent, so they took in fresh air and 

decided to seal 1st Right. 

They also erected three Kennedy stoppings and started putting in explosion-proof seals. This started the last part of 

1988. An MSHA inspector assisted them in this effort. The readings were taken at the face of the shields and no imminent danger 

orders were issued during the monitoring of the seals. 

Methane to be explosive must be in the 5- to 15-percent 

range. The. inspector knew Kennedy stoppings were located in 2d 

Right. 

Permanent seals in 1st Right were put up in the latter part 

of 1988 and there were tubes to monitor behind the seals at the 

mouth of 2d Right. 

In 1st Right the excessive water was permitted to flood. 

Then there was a low place from crosscut 7 through crosscut 9 

(marked dip on Exhibit C-5.) Methane was also bubbling through 

the water. As a result of the water and methane, the company 

had to retreat to crosscut 11. Water was flowing at 20 gallons 

per minute. 

In December 1988, the company decided to seal 1st Right and 

erect Kennedy stoppings. MSHA was supportive of this plan. The 

Kennedy stoppings were to seal off the methane. Without the 

stoppings it would not be necessary to keep miners in the area. 

They did not use oxygen apparatus to assist the miners in erecting the stoppings. It would have been unsafe to expose anyone to 

this type of atmosphere. 

2023 
It was decided to put Kennedy stoppings and room curtains at 

1st Right and start erecting the seals. 

Also a bore hole from the surface was drilled. The purpose 

of the bore hole was to vent off any pressures in the area. The 

bore hole was installed in the summer of 1988. The bore hole 

took care of the methane but it would not enter 1st Right because 

of the fault line. 

In February 1989, the company did not intend to install 

Kennedy stoppings as permanent seals. There was positive pressure on the seal~ as a result of 89,000 CFM. In 1st Right air 

was directed into the Kennedy stopping with line brattice. If 

there was no positive pressure .. methane would go in the main 

return. Kennedy stoppings remained until February 16, 1990. 

MSHA makes quarterly AAA inspections. The 1st Right area is 

one of the areas in the inspection book. In addition, ~ 103(g) 

complaint was made by a miners' representative. He claimed the 

company was not f irebossing the 1st Right area. The company 

examiner would have to check the methane. It was not above 2 

percent. An examiner would also examine Kennedy stoppings for 

methane. On February 16, MSHA said the company could not use the 

Kennedy stoppings as a seal. Mr. Huey said that they were not 

being used as a seal. MSHA did not advise them of any methane 

readings by the Kennedy stoppings. 

Mr. Huey met Inspector Jordan on February 17. Inspector 

Jordan said that there was 10 percent methane concentration 

behind the No. 3 permanent seal in 1st Right. 

In order to terminate the order, the company was required to 

build seals (as shown on Exhibit C-6). The seals had to be built 

by the 17th. 

Mr. Huey was told this would be dangerous because of a possible roof fall at 1st Right; he did not agree there was any imminent danger. 

The inspector said Kennedy stoppings could cause an ignition 

due to a spark, but this wasn't possible since most of this area 

was flooded. Any roof fall would drop into the flooded area. 

Concerning the termination order in 1st Right, Mr. Huey 

took readings and knew that the methane concentration there was 

substantial. Inspector Jordan said it was a 10 percent concentration. Mr. Huey got a detector and obtained a reading of 80 

percent methane. He had shut down the bore hole to increase the 

methane concentration. 

2024 
"Imminent danger" means immediate danger to miners in a coal 

mine. Imminent danger can be bad roof, bad air, methane concentrations, black damp, and other conditions. 

Concerning 1st Right, Mr. Huey did not believe there was 

imminent danger. The area was flooded and in 1st Right he had 

seen flooding for over a year. However, part of it was not 

flooded. Roof falls are not a source of spark because the company uses resin bolts. Also, at 1st Right more than ten feet 

of sandstone would have to fall before it could be a source of 

ignition. 

There was no condition of imminent danger because there were 

no ignition sources or trolley wires. 

It is not a safe mining practice to use Kennedy stoppings as 

permanent seals. Kennedy stoppings are in 1st Right to direct 

ventilation. It takes three hours to install Kennedy s~oppings, 

while a permanent seal can be built in about 24 hours. There 

were no permanent seals in the 1st Right area. 

The company decided to put up seals in the latter part of 

February 1989. This was a year before the inspection. 

The seals were installed after the MSHA order was issued. 

The MSHA manager discussed seals in 1st Right on February 13 and 

14. The company decided to put in seals because operations were 

shut down in 2d South. The company maintains three shifts at 

Golden Eagle. All of these are production shifts. 

On February 14, six miners and the foreman built the seals. 

They started on Tuesday and finished three seals by Saturday 

afternoon. 

The Kennedy stoppings directed the course of the air. An 

excessive amount of time did not elapse between the time the 

Kennedys were installed and the time the permanent seals were 

constructed. The Kennedy stoppings cut off access and ventilation to a given area. 

The stoppings are printed on the mine map as two lines; 

the seals are printed on the map as three lines. 

If an area is not ventilated it could be sealed with explosion proof seals because of possible explosions inby the 

seals. 

2025 
Kennedy stoppings are not explosion proof. There was heaving in the 2d South area and Kennedy stoppings can be damaged by 

heave as can any kind of other stopping or seal. 

The company planned to put in permanent seals when they got 

to it. There was some material in the area on February 13 but 

Mr. Huey did not know how much. There was not enough material in 

the area to build one seal. He didn't tell MSHA when the area 

would be sealed. The Kennedy stoppings were initially in 2d 

Right. 

They worked on the permanent seals in 2d Right when they 

could get to it. At crosscut 13 the seals were done a lot 

quicker. Mr. Huey considered crosscut 13 to be an emergency 

situation. 

In 2d South, on February 13, there was a carload ot concrete 

blocks and mortar on the tract to be used to build permanent 

seals. 

The witness did not believe an imminent danger condition 

existed at 2d South since there was no ignition source. There 

were roof mats in the area. 

The witness knew of two roof falls by crosscut 20 and six 

roof falls in 2d South. 

There is still disconnected track and trolley wire in the 

area. It took three shifts working five days to construct the 

seals. The material for the permanent seals was in the section 

before the Kennedy stoppings were installed. It was a management decision to install the Kennedy stoppings. If the company 

reconnected the track from the area marked "track end," it would 

be necessary to knock out two stoppings. (Ex. C-4). The track 

had been disconnected for a year. 

As Manager of Operations, the witness reports to the company 

Vice President Charles McGlothlin; the mine foreman reports to 

the witness. 

The witness did not discuss Kennedy stoppings in 2d South 

with Mr. McGlothlin. Kennedy stoppings cannot be used as a seal. 

The Kennedy stoppings were two to three feet from the seals. 

The Company did not have a definite date to install seals. 

The first step was to install the Kennedy stoppings. The start 

date was when the Kennedy stoppings were erected; but the company 

had not begun to install the seals. 

2026 
After the 107(a) order was issued on 2d South, the company 

discussed removing the Kennedy stoppings and installing seals in 

their place. However, the witness did not want to do that 

because you could only take down orie stopping. It was unsafe 

to remove the Kennedy stoppings because of the methane mixture 

behind the Kennedy seals. The gas migrating from where the 

stoppings would be removed could be harmful. 

Before the order was issued, the witness understood that 

MSHA accepted Kennedy stoppings as seals. This understanding 

was based on what MSHA had observed in the past. 

Kennedy stoppings are designated on the map in the mine 

office; the area was also shown as "not ventilated." 

The company has received a citation for curtains used as 

ventilation controls and it has also been cited for lack of rock 

dust. In the witness's previous job in West Virginia, the company did not use seals. Abandoned areas were not sealed. 

The order was issued on 2d South because of a miner's complaint. The miner was John Garcia. He identified himself to 

the witness as the person who filed the complaint. He filed the 

complaint because the company was not letting him serve as a 

fireboss. 

Once the Kennedy stoppings were erected, ·the company made 

weekly examinations at the stoppings; some of these were recorded 

in the book. 

Certified f irebosses could danger off any area. Firebosses 

are a mix of hourly and salaried people. 

When the 107Ca) order was issued at 2d South, the witness 

understood the company could work on 1st Right notwithstanding 

the order. MSHA's representative Mel Shively supported this 

idea and concurred with the company's view. 

There was a cave-in to the sandstone at the east end of the 

mine in 1987. 

It was ventilated at 1st Right after the Kennedy stoppings 

were installed because the company had a bore hole drilled into 

the area. 

The diagram (Exhibit C-2) showing the lithology was made 

as a result of the bore hole samples. Some portions contained 

sandstone but others did not. The circled area line shows the 

return aircourse. 

2027 
An explosion in 2d South would probably propagate into the 

mine. The witness was not aware when any sandstone had fallen 

onto the min~ floor. 

JACK FELTAGER is a construction foreman for Golden Eagle. 

He indicated the track and the trolley wire had been cut at the 

point marked "track end." The track was also cut outby the 

Kennedy stoppings for a distance of about 15 feet. The trolley 

wires were also cut at approximately the same location. By "cut" 

Feltager means separated and de-energized. Sections of the track 

were also removed. The cut was made in order to install 

stoppings. 

The witness has built permanent seals with material that was 

present at the site. One seal could have been constructed with 

the material present but additional mo·rtar mix would have been 

needed. The witness was partly involved in the building of the 

seals and it was necessary to hand-carry mortar blocks to the 

point of construction. One or two overcasts along the way were 

difficult to enter; it was also necessary to pass the 30-pound 

blocks through some mandoors which are 2t x 2! feet wide. They 

also used a wheelbarrow because the area was too restricted to 

use larger equipment. Forty miners were involved on 

Mr. Feltager's shift to ·install the seals. It took five days to 

construct them. 

On February 13, in 1st Right, there were materials at the 

No. 2 entry to install seals. There were about 80 blocks and 30 

to 40 bags of mortar. With this amount of material you could 

install two rows of a permanent seal. 

When installing seals in 2d South the men were two to three 

feet from the Kennedy stoppings. The company had three foremen 

monitoring the Kennedy stoppings. MSHA representatives were also 

monitoring the work in the area. 

No work was started with the permanent seals in 1st Right on 

February 13, 1980. 

The witness receives his orders from the general plant foreman. No definite time had been set to begin the installation of 

the permanent seals. They were going to put Kennedy stoppings 

in, then do the seals "when we can." The witness has two crews 

who construct seals. Mr. Giacomo, of the company safety department, told the witness that the seals were to be built in 1st 

Right. On the 14th, Mel Shively asked the witness if they were 

working on the 1st Right seals. He replied affirmatively. They 

were starting the seal in the No. 3 entry and they had been at 

the work for seven hours. 

2028 
The witness was familiar with the installation of seals. 

The Kennedy stoppings were used for ventilation control. When 

construction began at 1st ·Right the witness was aware of the 

107(a) order and he understood the company could only work in the 

2d South seam. 

When he entered 2d South on February 13 with Mr. Duran and 

Mr. Pavlovich, the witness learned the inspector would issue the 

107(a) order. When he realized MSHA was going to issue such an 

order he contacted other people in the mine. The witness was not 

aware of any imminent danger situation. 

He remained in the mine ten minutes after he was told of 

the imminent danger. 

DONALD L. GIACOMO, a member of the company's safety department, renders .assistance to all departments. He has been in the 

mining business 18 years. He was familiar with the MX Z40 (see 

Exhibit C-1), which is the instruction manual. 

On February 13, 1990, MSHA issued the imminent danger order. 

The inspectors arrived at the mine about 6:30 a.m. and the withdrawal began between 10:30 and 11 a.m. The company did not 

receive a written copy of the order until after 5 p.m. 

On February 14, it was decided seals should be built on 1st 

Right and he knew that they should take corrective action. 

He was aware MSHA knew about the Kennedy seals in the area. 

At the close-out conference MSHA inspector Al Shively asked when 

the work would be done on the seals. About 2 to to 2:30 p.m. on 

February 14, Mr. Giacomo was approached by Mr. Shively who asked 

what they were doing in 1st Right. When they replied they were 

building seals, he said, "Good." That was what he wanted to hear. 

The imminent danger order was issued on 1st Right on February 16. 

Under the 107(a) order the mine could be checked for hazardous conditions, but he did not discuss the possibility of going 

to 1st Right to construct the seals. The witness thought that if 

there was imminent danger he would construct the seals. When he 

arrived on 2d South on February 14, he did not consider that 

there was an imminent danger situation. 

In the main return outby the Kennedy stoppings the air was 

moving in excess of 39,000 CFM and the witness could not detect 

methane in excess of 2 percent. A Kennedy stopping is not explosion proof. 

2029 
The witness was not 

stoppings in 1st Right. 

the stoppings, there was 

seals. 

involved in the decision to put Kennedy 

If there was no explosive mixture outby 

no urgency in erecting the permanent 

Nothing in the standards tells the company that the seals 

should be put in place whenever "practical." 

There were no dangerous levels of methane outby the Kennedy 

stoppings. Hence, it was not necessary to construct permanent 

seals. The Kennedy stoppings blocked the access of miners in the 

area. 

The witness was not involved in the decision as to when 2d 

South and 1st Right could be permanently sealed. Such a decision 

is made by Mr. Salazar, the general mine foreman. 

The witness decided to install seals on February l~. 

Mr. Feltager was aware of the decision and by that time they had 

been advised of MSHA's order. At the Golden Eagle mine, MSHA 

inspectors write their orders after they come out of the mine. 

The time on the imminent danger order was 11 a.m. The witness 

physically received the order at about 5 to 5:30 p.m. 

Before February 14, MSHA's Mr. Shively was aware of the 

Kennedy stoppings in 1st Right and before that date he asked when 

they would start building the seals. On February 14, Mr. Shively 

asked the witness what they were doing in 1st Right. The witness 

took that to mean "Are you building the seals in 1st Right 

today?" His response was that we were building the seals; 

Mr. Shively replied he was glad to hear that. 

FRANK W. BURKO, a safety supervisor at the Golden Eagle 

Mine, accompanied Inspector Duran on February 16, 1990. 

The purpose of the line brattice is to ventilate the stoppings. The inspector took readings right by the seal. Mr. Burke 

went to the No. 3 and No. 2 entries where the brattice had been 

drawn back to the ribline. Mr. Duran made several checks in the 

area of the No. 2 entry. 

Mr. Burko said brattice should be brought in to help with 

the ventilation. Mr. Duran said he wanted to check. The inspector was checking two to four inches away from the stopping. 

He should have been a further distance back from the stopping. 

In the No. 1 entry the parties were accompanied by a mine 

representative. The ventilation was disrupted by pulling the 

curtain back. Mr. Duran said he would have to issue a 107Ca) 

order. 

2030 
On the night of the February 16, the witness traveled with 

Mr. Phelps to 1st Right. The construction of the seals was 

continuing. He and Mr. Phelps looked at the seals in 2d right. 

Mr. Shively said that there was a continuing accumulation of 

water. 

Mr. Burke did not remember his methane readings but they were 

not taken a foot from the roof or ribs. When in the No. 2 entry, 

he didn't hear Mr. Duran tell anyone to move the curtain. It 

took five minutes to take his readings. Mr. Duran did not explain his reasons and he wanted to keep the ventilation 

functioning. 

The Kennedy stopping in the No. 2 entry was 10 to 12 feet 

back into the rib line. Mr. Burke did not travel to 2d South on 

the day the imminent danger order was issued. 

-· Concerning the seals under construction: only two rows of 

30 inches were needed to complete one of the seals. One or two 

rows had been started on the No. 2 seal. 

In the No. 1 entry the curtain was pulled back but that 

would slow ventilation. 

Apparently Mr. Burko got the same reading as Mr. Duran. The 

men took readings in the main return and there may have been a 

difference between the Burke and Duran measurements of methane. 

CHARLES W. MCGLOTHLIN, JR., Vice President and General 

Manager of the Golden Eagle Mine, reports to Chuck Batty, CEO. 

Mr. McGlothlin has had 28 years in the mining industry and is 

experienced in that field. 

Mr. McGlothlin was aware of the order of withdrawal issued 

February 13, 1990. He discussed the situation with subordinates 

in the mine and investigated the facts. The company further 

tried to develop a plan to satisfy MSHA. He met with MSHA representatives on February 13 to discuss ventilation in general and 

to develop a plan to· abate the condition. Messrs. Huey, Phelps, 

Paplovich, Duran, and Jordan were present at the meeting. 

Mr. McGlothlin challenged MSHA's conclusion that this was a 

condition of imminent danger. MSHA believed that it was an imminent danger situation due to the methane behind the Kennedy stoppings. Mr. McGlothlin disagreed because there was no ignition 

source behind the Kennedy stoppings. 

2031 
The company's plan was to build permanent seals at 2d South 

but he was not sure when the construction would be completed. 

On Thursday, February 15, about 5 p.m., he had a telephone 

conversation with MSHA's Mr. Phelps, of which he made notes. In 

the conversation, Mr. Phelps indicated that the new District 9 

(MSHA) policy was that a 107(a) order would not be terminated. 

Mr. Phelps had been made aware of that policy. He believed that 

the company would know about it sooner or later. MSHA intended 

to modify the order to allow sampling. Mr. Phelps learned that 

the saturation inspection occurred because of an explosion at 

Pyro, Kentucky. · There was no discussion about the Kennedy seals 

over the telephone. 

On February 16 about 8:30 a.m., Mr. McGlothlin contacted 

Jerry Taylor at MSHA's office. He un~erstood that Mr. Taylor was 

the No. 2 ranking official. On the telephone Mr. Taylor confirmed Mr. DeMichiei's policy; namely, no one could be underground while an atmosphere behind the seals was in an explosive 

range. 

At his request Mr. DeMichiei returned Mr. McGlothlin's 

call about 9:30 a.m. He was aware the atmosphere behind the 

Kennedy stoppings was in the explosive range. Therefore, this 

constituted a situation of "imminent danger". Mr. McGlothlin 

told Mr. DeMichiei that the roof at the mine did not contain an 

ignition source. Mr. DeM1chiei replied that they had attended a meeting and the subject had been discussed at a District 

Managers' conference. The managers .were unanimous in their view. 

Imminent danger existed because of the possibility of a roof fall. 

Mr. McGlothlin was distressed because he felt MSHA regulations 

should not be made in this fashion; i.e., by a meeting of MSHA's 

managers. 

Mr. DeMichiei said that he would forward a report from the 

Bureau of Mines to confirm his position. This report had not 

been received as of the date of the hearing. 

After the talk -with Mr. DeMichiei there was further conversation with him about the history of the roof falls at the 

mine. Mr. DeMichiei suggested a meeting on Tuesday (Monday was 

a Federal holiday). Mr. McGlothlin passed the information along 

to the Safety Department. Mr. McGlothlin made notes of the 

statements by Mr. DeMichiei. 

Mr. McGlothlin has been a mine foreman, shift foreman, and 

an hourly worker. He was familiar with methane and with the 

sealing of abandoned areas. In his opinion, there was no ignition source in 2d South but he would agree that would be a situation of imminent danger if an ignition source existed. 

2032 
At the time of the violation, Mr. McGlothlin had not read 

the order but he understood they could build seals in 2d Right. 

Inspector Shively recommended the time be used to build such 

seals. This information came from one of the company representatives, but Mr. McGlothlin did not remember who had told him about 

this facet of the case. The person who told him had first-hand 

information. 

Mr. McGlothlin had seen the language in the order about the 

maintenance, inspecting, and pumping. He did not know who authorized the work. He was aware that Kennedy stoppings were 

being used to cut off circulation in the mine. They discussed 

the plan for sealing the areas in the mine. 

Kennedy stoppings are an effective method to block off areas 

while permanent seals are being constructed. When seals are to 

be installed, it is a matter that is site specific. The seals 

had not been installed in over a year but the company had good 

positive pressure. The area was stable and under control. Seals 

are worked in with the regular construction schedule. 

If the company experiences heaving, unstable roof, or methane over 2 percent in the return air, permanent seals should be 

installed. 

On 2d South, no date had been established to put in seals. 

The Golden Eagle Mine can cut off ventilation and install permanent seals when they get around to it. This has been an 

accepted work practice. Mr. McGlothlin could not say for sure 

there was no ignition source behind the Kennedy stoppings. The 

company's concern was black damp migrating out into the return. 

A roof fall is not a possible source of ignition in an abandoned 

area. 

There could have been an explosive methane mixture behind 

the seal. The company was concerned about the type of readings 

being done here by MSHA and there are many indications of improper measurements. Also, wrong instruments were used, while 

some instruments were used beyond their limits. Mr. McGlothlin 

could not imagine any ignition source in 2d South or 1st Right. 

DONALD W. MITCHELL, an expert witness and a person experienced in mining, testified at length. The witness's expertise is 

developed in his testimony and also set forth in Exhibit C-8. 

The Mitchell-Barrett seal was developed as a result of a memorandum he wrote. 

Methane can be ignited either by a thermal factor of approximately 1800 degrees Fahrenheit or by incendivity. The latter are 

2033 
sources other than heat such as sparks, arcing, and electrical 

current. Some sparks are not incendive; that is, they are not 

capable of igniting a methane/air mixture. 

The witness had been asked to review the facts known in the 

instant case and render his opinion. He was contacted after February 13, 1990. In connection with the rendering of his opinion, 

he reviewed maps, the roof control plan, ventilation plan, pressure differentials across the seals, and a ventilation study by 

Boyd and Company for the Golden Eagle Mine. He also visited the 

mine the week before he testified. 

Methane is controlled by ventilation and a survey in September 1989 by Boyd and Company was very useful. (John T. Boyd is a 

consulting firm for the coal mine industry.) 

Mr. Mitchell used a computer program which is the same 

program used by MSHA concerning the effect of gas, black damp, 

and methane. 

Using the Boyd data and the flow of air, he added 1st and 2d 

Right to the network of computer data. The Boyd data did not 

include 1st and 2d Right as points in the network. He also added 

the bore holes from the mine to the surf ace which were shown in 

1st Right and 2d Right. In addition, the Kennedy stoppings were 

calculated into the network but no other modifications were made 

to the Boyd data. 

Seals are notorious leakers. They do not prevent an interchange of gas between areas and even the best seal leaks 100 to 

150 cubic feet per minute per one inch of water gauge differential. However, a typical leakage is 100 to 1000 on the same 

scale. 

The witness had been present during the proceedings in the 

case. 

When Kennedy stoppings are in place, the area is being ventilated in certain respects. Ventilation requires a loop and 

there were three such air loops. They were as follows: Cl) the 

No. 1 entry of 1st Right to the bore hole; C2) the No. 1 Right 

entry through the Kennedy stopping to the No. 3 entry before and 

after the seal construction began; and (3) the No. 1 entry to 

No. 2 entry. The bore hole constituted part of the loop. 

The witness's study, without the Kennedy stoppings in place, 

indicate a concentration of methane at 1st Right of 5 percent. 

In the No. 7 entry the methane was 4.5 percent. Methane was 

originating at the face of 1st Right. 

2034 
There is a problem of 4.5 percent methane concentration in 

the No. 7 return. Methane should not exceed a concentration of 

1.5 percent. 

With Kennedy stoppings in place and with a fly curtain, 

the methane concentration at the face of 1st Right would be 

4 percent. 

In the return air in the No. 7 entry there would be 1.5 percent concentration of methane. With a Kennedy stopping and fly 

curtain in place, the bore hole would become a major part of the 

ventilation loop. A fly curtain will increase the leaking rate 

from No. 7 entry into 1st Right. 

Any methane behind the Kennedy stopping would move primarily 

to the bore hole, but some would leak through the right side of 

the Kennedy stopping into 3 North. 

Methane was being liberated by 1st Right and there was methane behind the Kennedy stoppings. There was also an explosive 

mixture of such methane behind the Kennedy stoppings and a mixture could be as high as 100 percent. However, if there was a 25 

percent concentration, then this was an explosive mixture. The 

witness would expect an explosive mixture of methane behind the 

Kennedy stoppings at some point in time. When the inspector 

measured, there would have been different levels of methane 

behind the stopping itself. 

The test methods used by the MSHA inspectors were inadequate. The resulting samples tend to be on the low side as to 

combustibility. The inspector took samples at one of the Kennedy 

stoppings. There was a major leakage, which would be a point of 

greatest leakage. 

If Mitchell used the inspector's procedure, he wouldn't have 

been able to determine the air and gas mixture on the inby side 

of the stoppings. 

The inspector was monitoring the atmosphere, but it may not 

have all been behind the Kennedy stoppings. 

You could end up with 1000 different analyses. If a person 

wanted to learn an air-gas mixture by the Kennedy stoppings he 

should take samples at the bore hole. A sample taken at any 

other place would not be accurate. 

If a reading at the bore hole was between 5- to 15-percent, 

the first reaction of the witness would be to prevent anyone from 

entering the area. 

2035 
If methane concentration is above 15 percent (above 20 percent asphyxiation can be expected), then no one should enter the 

area. 

Mr. Mitchell made an in-depth study and concluded there were 

no ignition sources in 1st Right. In connection with this, he 

examined four conductors and questioned people at the mine. CA 

conductor is something that could spark an ignition.) A con-· 

ductor could be a pipe (including plastic), telephone lines, 

track, and trolley wires, or any wires in the explosive atmosphere. 

The company followed standard procedures and made certain 

that all conductors had been disrupted. usually one joint of 

track is removed for a distance of 30 feet. In addition, electrical wiring is cut, folded back, and taped. 

Mr. Mitchell was concerned about friction ignition1 that is, 

sandstone or quartz crystal in sandstone which have a potential 

for sparking. There is no such rock in the mine and, if there 

was, it wasn't at the place of the breakage. The area of concern 

in the roof fall would not exceed 30 feet divided by 4 or 7.5 

feet. In that area you could develop strain, which would cause a 

spark. 

There were no steel bolts in the area. Steel bolts are a 

sparking hazard. If, due to a roof fall a bolt is torn apart, 

it will generate sufficient sparking energy. 

If a bolt bearing plate is made of silicone steel, or coated 

with aluminum paint, a spark could result if it struck sandstone 

on the floor. 

A piece of aluminum rusty steel also creates energy sufficient to spark, if it is falling at 30 feet per second. Sandstone rock falling 30 feet is capable of creating a spark. 

In this mine,. the plates have no aluminum paint. However, 

an area of concern was aluminum pop cans. If a roof falls and 

strikes an aluminum can across a dry rusty area a spark can 

result. However, in this mine no such spark could occur because 

there is no probability that there was a dry aluminum can in the 

area. 

Track is also a potential for sparking but there was no 

track or trolley wires behind the Kennedy stoppings. In addition, there was no belt structure in 1st Right. Mr. Mitchell 

did not inquire about the presence of trolley hangers. 

2036 
There were mandoors in 1st Right but the area was flooded 

up to crosscut No. 7. Mandoors would not constitute an ignition 

source. Even though such .doors are made of steel there is insufficient energy for sparking. 

Based on his analysis of the area, Mr. Mitchell was satisfied that there was no ignition source in 1st Right behind the 

Kennedy stoppings. Based on his experience, it was not reasonable for an inspector to conclude that it was reasonably likely 

that death or serious injury could occur. Further, there was no 

basis to conclud~ that there was an imminent danger to the miners. 

If imminent danger existed, MSHA could have required inert gas to 

be pumped into the bore hole. 

Given the manner in which the Kennedy stoppings were installed, it is not unusual for the company to have used such 

stoppings as it did. 

Seals could not have been built by miners wearing self-contained apparatus. Working with such apparatus destroys a miner's 

peripheral vision. Miners should never be permitted to wear such 

equipment for longer than an hour. If the miners were building 

seals and the Kennedy stoppings had not been erected, the men 

would be exposed to an explosive concentration of methane, or 

they were in an area where they could be asphyxiated. (Exhibit 

C-9 illustrates testimony of the witness; the figures of Exhibit 

C-9 came from a computer model.) 

Mr. Mitchell was familiar with 30 C.F.R. § 75.729. The 

regulation is statutory and it was written by Congress. Based on 

his knowledge of the Congressional intent and the related matters, the witness concluded that Section 75.329 does not apply to 

the Golden Eagle Mine. Basically, the regulation is related to 

75.305Cg)C2) which applied to mines in existence at the time it 

was enacted. The regulation applicable to the Golden Eagle Mine 

is contained in § 75.30 which Congress discussed. 

When Mr. Mitchell was at the Golden Eagle Mine, he visited 

2d South; he also heard the testimony of the witnesses regarding 

the section. He did not do a computer analysis in 2d South 

because he believed the area was non-ventilatable. 

Black damp is an oxygen-deficient atmosphere. Pure black 

damp was officially called "choke damp." 

In 2d South, Mr. Mitchell marked "Dip" on the map. It is 

shown with a green arrow. The dip is from the face to the open 

2037 
area of the mine. One would anticipate that black damp would 

flow into West Main. The coal absorbs oxygen and also exhales 

carbon dioxide. Black damp can develop in ventilated areas of 

the mine. 

Based on the information Mr. Mitchell received, 2d South 

could not be ventilated because the stopping had been crushed and 

the flow of air could not be regulated. Airflow would, to some· 

degree, depend upon the elevation and temperature differentials. 

One would expect black damp in an area where the ventilation was 

disrupted. If an area cannot be examined due to black damp, then 

the company's action in placing Kennedy stoppings was a reasonable procedure. Further, a proper procedure was to examine the 

Kennedy stoppings weekly to see if they were not leaking excessively. Some leaking is all right. If the Kennedy stoppings 

were put in too deep, then the examiner would be entering a place 

where there is no ventilation. He could be asphyxiatedL The 

best test against black damp is a plain safety lamp RMX 240 which 

would give a warning of black damp. 

On February 13, 1990, MSHA inspectors took a reading and 

concluded there was an explosive mixture behind the Kennedy stoppings. This was not a valid conclusion because use of an aspirator is not likely to give a valid representation of an area 

which extends some 2000 feet behind the tube. In addition, the 

surveillance tube in this case was too short. It should have 

been 60- to 70-feet inby the seal or Kennedy stoppings. Kennedy 

stoppings are leaky and would have a constant flow of air back 

and forth Cinby and outby the seals). 

Mr. Mitchell recommended the operator extend the surveillance tubes at least to the third crosscut. Such a tube must be 

away from the area affected by the leakage in order to obtain a 

correct reading. 

If Mr. Mitchell had taken samples as the inspector had done, 

he would be unable to render any judgment. The inspector did not 

wait for bottle sample results. (Exhibit S-6 was analyzed by the 

Mt. Hope Laboratory.) Mr. Mitchell gave no significance to the 

sample number A 2109 on Exhibit S-6 since it was inconsistent 

with the other samples. All samples must be tested for reliability created in this situation. The beeswax used to seal the bottles could have been contaminated. 

There was probably an explosive as well as a non-explosive 

mixture behind the Kennedy stoppings on February 13. One would 

expect that there would be different air mixtures of methane 

behind the stoppings. The mere existence of a mixture is not 

2038 
dangerous as the primary potential is asphyxiation. In 

Mr. Mitchell's opinion on February 13, 1990, there were no ignition sources in 2d South. In connection with this, he considered 

the thermal paint and conductional ignition. 

In Mr. Mitchell's view, there were no means to conduct any 

energy into the 2d South section. In arriving at this conclusion, he examined the track, trolley wire, and belt structures. 

He arrived at the same analysis as previously in connection with 

soda pop cans. 

He also considered thermal leakage and studied the lithology. The lithology (rock formation) was free of strata. It is 

normally associated with frictional ignition potential. In this 

situation there were wet surfaces. Portions of the bottom had 

heaved but other portions had not. 

-- The kitchen was located at about Nos. 18 and 22 crosscut. 

It contained lots of black damp but no ignition source. 

For methane to be ignited with oxygen, there must be at 

least a 12 percent concentration. Mr. Mitchell also concluded 

there were no ignition sources from the mandoors, roof mats, roof 

bolts, or metal bolt plates. Accordingly, there was no basis for 

the inspector to consider an imminent danger. Mr. Mitchell would 

also have advised against constructing the seals. 

MSHA would not terminate the order until the methane behind 

the seals reached a non-explosive range. MSHA representatives 

said that there were arguments against this view. Even if the 

area was below the explosive range, there still could have been 

explosive concentrations in the area. 

The Kennedy stoppings were made of metal, but these stoppings were free of silicone and light alloys which could cause a 

spark. The seals that would be eventually constructed should be 

hitched into the roof. If this is done, the worst thing that can 

happen is that the roof will break away and become ineffective. 

MSHA requires that seals be constructed with an angle iron on 

both sides of the seal. 

After he visited the mine, Mr. Mitchell concluded that no 

imminent danger existed on the date the orders were issued. In 

arriving at his conclusion, he assumed the information he had was 

credible. 

Bore hole flows can be ascertained with a reasonable degree 

of certainty. A Kennedy stopping and a seal are two different 

2039 
things. The witness was familiar with the instrument used by the 

Boyd company.and he understood that the Boyd company borrowed 

instruments from MSHA to do its survey. He expected the results 

he found. 

Mr. Mitchell did not know if the Boyd survey measured 

methane concentrations. 

The bore holes were closed by the operator on the 17th to 

assure MSHA that there would be methane concentrations above the 

explosive range •. 

If an atmosphere is unsafe, seals can be constructed after 

the atmosphere is stabilized. 

Witness Mitchell conceded there w~s an explosive mixture 

behind the Kennedy stoppings. 

2d South is an area of the mine that should have been sealed 

or ventilated. It was not ventilated on February 13. 

Additional Evidence Presented by the Secretary 

WILLIAM A. BRUCE (called by the Secretary), is the Chief of 

the Ventilation Division for MSHA. He has been so employed since 

June 1981. He is a graduate of the Colorado School of Mines and 

specialized in mine safety and health. He has also co-authored 

over 100 papers. At least half of them have dealt with ventilation and fragmentation of rock. 

He has reviewed papers concerning fractional ignition and 

explosion-proof stoppings. Mr. Bruce identified Exhibit S-11 

which outlines the explosive mixtures at which oxygen can 

explode. From Exhibit S-6 the sample taken by the inspector, 

A-2109, falls within the flammable area of methane. The methane 

concentration there was 6.19 percent. 

Ignition sources can be caused by roof falls. An incendive 

spark is the same as--an ignition source. Mr. Bruce has not 

visited the Golden Eagle Mine but he was present when the inspectors testified concerning the mine. He also reviewed the lithology as indicated in Exhibit c-2. He had not reviewed related 

lithology exhibits shown by Exhibit C-10 and C-11. 

He also studied Golden Eagle rock samples. The samples had 

been obtained by Inspector Mel Shively and he secured them outby 

the seals in 2d South in entries 1 through 6. Samples were taken 

from the roof of the six entries. An analysis indicated that the 

rock samples were 19 percent quartz. 

2040 
It was Mr. Bruce's opinion that the Kolanski and Neggi 

report was correct. It states ignition by sandstone on sandstone with a pressur~·~f 50 pounds could easily produce an 

incendive spark. Kolanski and Neggi made their tests in an 

explosive chamber of methane. 

A drop of 2.3 feet would produce a velocity of 3 feet per 

second. 

In the Mr. Bruce's opinion on February 13 there could have 

been an ignition source from sandstone rubbing on sandstone. 

Also, a roof bolt seal falling at 32 feet a second would produce 

sparking. 

Other ignition sources could be a roof fall of shale at a 

greater velocity or with a direct impact on aluminum or rusty 

steel. 

At this particular mine the sandstone was above the shale 

but there are numerous sandstone channels in the area. 

Mr. Bruce pointed out that each of the three lithological 

surveys appear quite different. They are now noted on Exhibits 

C-2, C-10, and C-11. 

The map of 2d South does not show any sandstone but it could 

occur in 2d South and 1st Right. 

Roof bolts in the 2d South were also a secondary source of 

ignition. 

Mr. Bruce believed there was a potential source for explosion in 2d South on February 16. Accordingly, imminent danger 

existed in 2d South as well as in 1st Right on February 15, 1990. 

Mr. Bruce had not heard that piezoelectric quartz had to be 

at least 30 percent of a rock fall in order to create an incen- · 

dive spark. The ignition frequency in the Kolenski and Neggi 

report was 19 ignitions out of 119 efforts. The witness did not 

know what type of sandstone was used. 

On Exhibit C-10, the sandstone was 42 feet above the Maxwell 

coal seam and on Exhibit C-11 the distance was 26! feet to 33 

feet. 

Mr. Bruce agreed that the issue was a possibility rather 

than a probability. When MSHA Representative Mel Shively was in 

Denver, Mr. Bruce directly verified with him as to where he had 

obtained his samples at the Golden Eagle Mine. 

2041 
JOSEPH W. PAVLOVICH, MSHA's Sub-district Manager in 

McAlister, Oklahoma, is responsible for enforcing the Mine Act 

over the mines in his jurisdiction. He has been so employed 

since August of 1989 and has worked for MSHA for 15 years. He is 

a person experienced in mining. 

As part of his duty he has inspected the Golden Eagle Mine. 

An MSHA inspection began February 13, 1990. He arrived at the 

2d South area the same date. Exhibit C-4 shows where the witness 

left the mantrap and walked into the 2d South area. 

Inspector Jordan told Mr. Pavlovich that he had examined all 

six entries in the area and found Kennedy stoppings erected 

across each entry. He also stated that he found methane with a 

hand-held detector of about 1.5 to 1.7 percent outby the 

stoppings. 

Mr. Pavlovich's first reaction was that an unventilated area 

of the mine had not been sealed. The mine liberates five to six 

million cubic feet of methane in a 24-hour period. 

Mr. Pavlovich was involved in a decision to issue the imminent danger order in 2d South. The men walk the belt entry and 

there was a lot of the belt structure leading to the first stopping which had been cut. That is why Inspector Jordan took a 

methane reading near the face; he detected a 2.2 percent concentration. This indicated the methane had increased in the last 

hour or two. He had found 1.5 or 1.7 percent on his initial 

examination. If there was 2.2 percent, there would be more 

methane behind the stopping. 

A further factor leading to the issuance of the imminent 

danger order occurred when they walked over to the far righthand entry which the company calls No. 1. A vent pipe for the 

sample tube had been put through. The inspectors began to aspirate the line. The methane climbed 0 to 9 percent and he immediately removed the equipment to keep it from burning the sensing 

cell. This was tried on numerous occasions and continued to do 

the same thing. This·indicated to Mr. Pavlovich that a concentration of at least 9 percent of methane existed behind the stopping. This would be a very dangerous concentration. 

Mr. Feltager stated the tube projected about 40 feet into the 

area~· Mr. Pavlovich felt that they were getting a good representative sample. Bottle samples were also taken. Mr. Feltager 

stated that he thought that there was about 1600 feet of track 

left in the area. He wasn't sure about whether there was trolley 

wire. There was a load of belt structure and belt ropes and 

there may have been a rock dust pipe in the area. Also, roof 

2042 
bolts, pans, and assorted metal objects could have been left behind during mining. This indicated to Mr. Pavlovich that there 

was a very good possibility of an ignition source. The occurrence of metal or the sparking of metal on metal or rock on metal 

could have ignited the methane. 

Mr. Pavlovich also considered the possibility of a roof fall 

in 2d South. The area of the mine that they were dealing with 

was twenty-five crosscuts deep and six entries wide. If an ignition occurred, it would definitely propagate into the active 

areas of the mine, or disrupt enough of ventilation to harm the 

miners, or create conditions that would endanger the miners. 

Mr. Pavlovich agrees that he was not exactly certain what he 

was dealing with behind 2d South. He determined there was a condition of imminent danger because of the large quantity of methane and the possibility of an ignition source. 

Inspector Jordan had a CSE-102 methanometer. Inspector 

Duran normally carries a MX-240. The witness had given his 

MX-240 to another inspector because his equipment had failed. 

It is unusual that explosive mixtures of methane are found. 

Mr. Pavlovich did not consider that it was a choice to send an 

inspector back for a Riken methanometer. Mr. Pavlovich knew 

there was a quantity of methane behind the stoppings. He also 

knew there would be an explosive mixture. Methane that came out 

of the sampling tube indicated there was large quantities of 

methane. Accordingly, he was not going to send for the 100 

percent (accurate) instrument with people working in the mine. 

After finding these conditions, Messrs. Duran, Jordan, and 

Feltager discussed the issue of the amount of methane. 

Mr. Feltager told him of the metal objects he thought were back 

there. In Mr. Pavlovich's opinion, an explosion would endanger 

the lives of every man in the mine. Accordingly, a decision was 

made to remove everyone from the mine. 

Mr. Pavlovich identified Exhibits C-2, C-10, and C-11 as being drawings as submitted by WFC and its approved roof control 

plan. After reviewing the lithology, no one could determine the 

rock composition precisely from the four pinpoint bore hole 

locations. 

After the conversation with the superintendent, Mr. Pavlovich informed Mr. Feltager that it was necessary to systemically 

withdraw everyone from the mine. Mr. Feltager called every panel 

where miners were working and told them to proceed to the surf ace 

and to withdraw power. They were to travel as quickly as possible. The men also left the area quickly and evacuated the 

mine. 

2043 
At the bathhouse there was a meeting with management representatives •. At the company's request, the group traveled to the 

main office. At the meeting were Roland Phelps, Donalee Boatright, Don Jordan and the witness. On the company's side were 

Dave Huey, Rick Callor, and Donald Giacomo. Mr. McGlothlin did 

not participate in the full meeting. 

Mr. Huey asked what his options were to get the mine back in 

operation. Mr. Pavlovich informed him that the area would either 

have to be ventilated adequately or sealed. Adequately means 

that all gases must be reduced to acceptable levels. 

The Kennedy stoppings were not sealing anything. Such stoppings allow air to pass freely and they are not structurally as 

sound as a seal, nor are seals explosion proof. A large roof 

fall could blow them out. Mr. McGlothlin suggested that they 

ventilate the area. Mr. Huey said he could not ventilat~ the 

area because there were too many roof falls there. He also 

stated he was afraid to send anyone in there, nor would anyone 

volunteer to clip the Kennedy panels or the wires holding them 

together because of the fear of an explosion. The company's 

other option was to seal the area with explosion-proof bulkheads; that is, permanent seals. 

Mr. Huey and Mr. Callar decided they would seal the area. 

MSHA requested the company prepare written safety precautions~ 

Mr. Pavlovich was informed by telephone on the morning of 

the 17th that the seals had been completed. Production was 

allowed to resume. From the day the order was issued the inspectors worked around the clock at the mine and continued to 

monitor the area. Mr. Pavlovich wanted to be sure the seals 

were functioning properly. After production was resumed MSHA 

continued to monitor the seals based on the operator's samples. 

The sampling was done on a two-hour basis at each of the sampling 

tubes. In the 1st Right section, ventilation had been cut off 

for the use of temporary stoppings for a period of more than a 

year. 

Mr. Pavlovich indicated that there was a lot of methane being liberated. If there was any ventilation, it was not sufficient to dilute or render harmless the dangerous gases. In the 

view of Mr. Pavlovich it is not good practice to put stoppings in 

an area and not be working on the seals. To block off an area 

for a year ignores explosive mixtures of methane. This is not a 

good mining pradtice. 

If Mr. Pavlovich was the operator he would have delivered 

materials to the site before the track was removed. 

2044 
In each of the kitchen locations you would expect to find 

pop cans and. aluminum foil. There are a succession of kitchens 

as the mining progresses •. 

Inspector Shively told Mr. Pavlovich that he was concerned 

over the fact that he did not recognize a condition of imminent 

danger. Most of Mr. Shively's inspections deal with electrical 

equipment in the face area. Mr. Shively did indicate to Jack 

Feltheger some inquiry about when they were going to start building the seals. No particular date was given. 

Prior to beginning construction of the permanent seals, the 

company submitted a copy of the plan to the MSHA's district man~ 

ager. The plan set forth the precautions the operator would take 

and it also contained a series of drawings. 

Mr. Pavlovich was informed when the 107Ca) order was issued 

at the 1st Right section on February 16. Mr. Phelps told 

Mr. Pavlovich the circumstances under which the imminent danger 

order was issued. 

Mr. Pavlovich felt a similar situation was present as they 

had found in 2d South. He had heard from Mr. Phelps the percentages of methane that Mr. Duran found outby the temporary stoppings and this was sufficient to justify an imminent danger particularly in view of the huge body of methane behind the stoppings. The fact that there was water in one of the areas did not 

change anything. In Mr. Pavlovich's experience the most common 

source of mine disasters in underground coal mines is the accumulation of methane in explosive quantities. 

Additional Evidence Presented by Operator 

DONALD W. MITCHELL (recalled): Mr. Mitchell does not agree 

with Mr. Bruce's testimony that the Mitchell Barrett seal could 

withstand a force of 20 PSI. It will withstand more than that. 

Extensive tests show that it will withstand forces up to 50 PSI. 

Mr. Mitchell al-so disagrees with Mr. Bruce's testimony concerning the effect of water in an abandoned area preventing an 

ignition. In sum, water is the most effective quenching agent 

for incendive sparks. 

Witness Mitchell identified Exhibit C-12 as a report of the 

U.S. Bureau of Mines entitled "Frictional Ignition Of Gas During 

A Roof Fall". The document was written by John Nagy and 

Edward Kawenski. The work in the report was done at the direction of the witness. The rock or sandstone tested was a light 

2045 
gray quartzitic subjected to. secondary recementation. This rock 

contained in _excess of 90 percent quartz. Mr. Bruce testified 

that the Golden Eagle rock samples contained 19 percent piezo 

electric quartz. The samples on S-12 range from 16 to 19 percent quartz. 

The potential for ignition in Golden Eagle Mine in 2d South 

and 1st Right sections is possible. The possibility is negligible. 

A report prepared in the case shows that rock containing 

less than 30 percent quartz has a neglible incendive temperature 

potential CITP). (See Exhibit C-13.) These studies indicate 

that the persons experimenting have never been able to obtain an 

incendive ignition of methane when the rock contained less than 

30 percent quartz. The authors, instead of saying "no potential," merely state that the potential is "negligible." 

Mr. Mitchell discussed at length the Belle Isle explosion 

involving a salt mine in Louisiana and the part he played in that 

investigation. He concluded that it was not valid to compare the 

Belle Isle explosion conditions at the Golden Eagle Mine. In the 

Golden Eagle Mine there was no shot firing nor any open electrical circuits in 2d South or 1st Right. 

Mr. Mitchell does not agree with Mr. Bruce's testimony that 

any form of sandstone could create an incendive spark. This is 

because the potential for incendivity is a direct function of the 

quartz content. There is a high potential that the sandstone 

contains sufficient piezoelectric quartz and is subject to a 

sufficiently high strain as might be encountered in a longwall 

or in a pillaring operation. 

The inspector thought from Mr. Duran's statements that 

miners were working in an explosive gas area. He didn't say 

check curtains had been taken down. Mr. Duran told him he didn't 

have ventilation curtains taken down. 

Mr. Mitchell also disagreed with Mr. Bruce's statement that, 

any time a coal mine contains an explosive mixture of methane, 

there is a situation of imminent danger. His view was that, if 

this position was upheld, they would have to shut down almost 

every coal mine in the United States. There are explosive concentrations in almost every longwall operation. 

The witness indicated that Exhibit C-14 is used throughout 

MSHA for evaluating the explosibility of an area. Exhibit C-14, 

a nose curve, can be used to determine the explosibility of any 

and all atmospheres in coal mines. 

2046 
Witness Mitchell further explained why the two mine explosions (NEBO and Jim Walters No. 3) were not comparable to the 

Golden Eagle.Mine. The MSHA representatives and the witness 

agreed that the probable ignition source for the methane behind 

the seals in the NEBO and Quilan Mines was a lightning strike. 

In the Jim Walter No. 3 Mine there was a fire behind the seals. 

Mr. Mitchell indicated with a blue magic marker the proper 

place, in his opinion, to take methane checks outby the Kennedy 

stoppings. Mr. Mitchell used the letters "GP" and marked the 

gas points. Mr. Mitchell indicated that there was a difference 

between gob fire~ and the situation at the Golden Eagle Mine in 

2d South and 1st Right sections. 

He treated the area behind the Kennedys as gob because it 

was not travelable. He would treat the area behind the seals as 

gob because it is not an area where a miner could travel safely. 

The immediate roof in the 2d South area is basically shale. 

The industry's goal is to attempt to control the immediate roof 

when a seam is being mined. 

Mr. Mitchell initiated the work involved in what became the 

Nagy and Kawenski report (Exhibit C-12.) He does not agree with 

the conclusions contained in the report. 

Shale contains quartz but it is not necessarily piezoelectric quartz. One does not expect to find piezoelectric quartz in 

shale. One would anticipate it would be well below the 30 percent level in shale. In the 2 South and 1st Right sections any 

roof fall would consist of a soft wet and unconsolidated shale 

material. It generally crumbles, breaks, and falls out around 

the roof bolts. You would seldom have pieces larger than a head. 

Discussion and Further Findings 

The initial issue presented here is whether a condition of 

imminent danger existed. The evidence presents a credibility 

determination on such issue. 

The withdrawal orders herein were issued under the authority 

of Section 107Ca> of the Act, 30 u.s.c. § 817Ca), which provides 

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, 

2047 
such representative shall determine the extent 

of the area of such mine throughout which the 

dan.ger 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 of practices which 

caused such imminent danger no longer exist. 

The issuance of an order under this subsection 

shall not preclude the issuance of a citation 

under section 104 or the proposing of a penalty 

under section 110. 

The term "imminent danger" is found in the Federal Coal Mine 

Health and Safety Act of 1969 and amendments to the 1977 Act. 

The term means: 

[T]he 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). 

Historically, the first tests for determining whether an 

imminent danger exists were set forth in Freeman Coal Mining 

Corp., 2 IBMA 197, 212 (1973), and Eastern Associated Coal 

Corp., 3 IBMA 128, 80. I.D. 400 (1973), aff'd, Eastern Associated coal corp. v. Interior Board of Mine Operations Appeals 

et al., 491 F.2d 277 (4th Cir. 1974). In Eastern the Board of 

Mine Operations Appeals, formerly a division of the Interior 

Department's Office of Hearings and Appeals, herein "BMOA," held 

that: 

••• an imminent danger exists when the condition 

or practice observed could reasonably be expected 

to cause death or serious physical harm to a miner 

if normal· mining operations were permitted to proceed in the affected area before the dangerous condition is eliminated~ thus, the dangerous condition 

cannot be divorced from the normal work activity. 

2 IBMA at 129. 

In Freeman, the BMOA elaborated on its decision in Eastern 

and held that the word "reasonably" as used in the definition of 

imminent danger necessarily means that the test of imminence is 

objective and that the inspector's subjective opinion is not 

necessarily to be taken at face value. The Board also gave this 

test of "imminent danger": 

2048 
••• would a reasonable man, given a qualified 

inspector's education and experience, conclude 

that the facts .indicate an impending accident 

or disaster, threatening to kill or to cause 

serious physical harm, likely to occur at any 

moment, but not necessarily immediately? The 

uncertainty must be of a nature that would induce a reasonable man to estimate that, if normal operations designed to extract coal in the 

disputed area proceeded, it is at least just as 

probable as not that the feared accident or disaster would occur before elimination of the 

danger. (Emphasis added). 2 IBMA at 212. 

The United States Court of Appeals for the Seventh Circuit 

in Freeman Coal Mining Company v. Interior Board of Mine Operations Appeals, et al., 504 F.2d 741 (1974), while quoti~g BMOA's 

definition of· "imminent danger," went on to add its own: 

An imminent threat is one which does not necessarily come to fruition but the reasonable likelihood that it may, particularly when the result 

could well be disastrous, is sufficient to make 

the impending threat virtually an immediate one. 

(Emphasis added). 504 F.2d at 745. 

The Commission, in Pittsburg & Midway Coal Mining Company 

v. Secretary of Labor, 2 FMSHRC 787 (1980), also set a course for 

approaching imminent danger questions: 

••• we note that whether the question of imminent danger is decided with the "as probably as 

not" gloss upon the language of section 3(j), or 

with the language of section 3(j) alone, the outcome here would be the same. We therefore need 

not, and do not, adopt or in any way approve the 

"as probable as not" standard that the judge applied. With respect to cases that arise under 

the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 801, et seg., we will examine anew 

the guestion of what conditions or practices constitute an imminent danger. (Emphasis added) • ., FMSHRC at 788. 

In the enactment of the 1977 Act, the Senate Committee on 

Human Resources stated as follows: 

2049 
The Committee disavows any notion that imminent 

danger can be defined in terms of a percentage 

of probability that an accident will happen; 

rather the concept of imminent danger requires 

an examination of the potential of the risk to 

cause serious physical harm at any time. 

It is the Committee's view that the authority 

under this setion is essential to the protection 

of miners and should be construed expansively by 

inspec~ors and the Commission. s. Rep. No. 95-181, 

95th Cong., 1st Sess. ~~ (1977), reprinted in 

.senate Subcommittee on Labor, Committee on Human 

Resources, 95th Cong., Federal Mine Safety and 

Health Act of 1977 at 626 (1978). 

The situation at the Golden Eagle Mine: MSHA inspe~tors 

asserted that an explosive mixture of methane concentrations 

existed in a large abandoned area behind the Kennedy stoppings. 

They further asserted that ignition sources also existed in the 

unventilated area. No permanent seals had been erected and any 

explosion would most likely migrate into the entire mine. 

Given the foregoing scenario, it was claimed that a condition of imminent danger existed and an order was issued under 

Section 107(a). The inspectors further ordered the work force 

withdrawn. 

The inspector's belief of the existence of "an impending 

accident or disaster must be measured in light of their actions. 

Freeman coal Mining, supra, 2 IMBA at 212. 

Before MSHA would take any action in terminating the order, 

it approved the operator's abatement plan. Specifically, on the 

same day the order was written, it was modified to permit 113 

miners to construct permanent seals in close proximity (two to 

three feet) from the Kennedy stoppings. The construction took 

five days with the crew working 24 hours a day. MSHA inspectors 

were also present dur·ing the construction. (Tr. 221, 404, 462 >. 

In addition, MSHA had not required that the atmosphere be 

stabilized with inert gas before miners were permitted to enter 

the First Right section. (Tr. 628). 

MSHA's undisputed actions, as above, necessarily cause me to 

conclude that MSHA did not believe "an impending accident ••• 

[was] likely to occur at any moment." Freeman, supra, 2 IBMA at 

212. To like effect, see H.D. Enteprises, Ltd., 9 FMSHRC 1923 

Cl987) (Melick, J); Climax Molybdenum Co., 2 FMSHRC 2873 (1980) 

(Koutras, J). 

2050 
I appreciate that MSHA directed the operator to monitor the 

area and to ~se non-sparking tools in the construction. But even 

such precautions would not protect the miners from the hazard 

perceived by MSHA, that is, an imminent explosion caused by an 

ignition source in an abandoned area. 

WEST 90-112-R 

In this case, I conclude that no condition of imminent danger, as defined in statutory and case law, existed in the mine. 

Accordingly, the contest of Order No. 2930784 should be sustained 

and the order should be vacated. 

WEST 90-113-R 

In this case, WFC contests Citation No. 2930785 issued by 

Inspector Jorda~ under Section 104(a) of the Act. The citation 

and the full text of the regulation, 30 C.F.R. § 329, afe set 

forth on pages 3-5, supra. 

The Secretary contends that the regulation, § 75,329-1 

should be applied to mines that were opened after 1970. 2/ 

WFC argues that Section 75,329-1 does not apply to the 

Golden Eagle Mine. 

In Ziegler Coal Company, LAKE 90-102-R (Sept. 21, 1990), 

Commission Judge George Koutras considered the identical 

arguments advanced in this case. 

Section 75.329, which mirrors the statutory provision 

promulgated in§ 303(z)(2) of the Coal Mine Health and Safety Act 

of 1969 ("1969 Act"), requires that 

[o]n or before December 30, 1970, all areas 

from which pillars have been wholly or partially extracted and abandoned areas, as 

determined by the Secretary or his authorized 

representative, shall be ventilated ••• or be 

sealed, as determined by the Secretary or his 

authorized representative. 

2/ Brief at 20 

2051 
Section 75.329-1 is a supplementary regulation promulgated to 

effect § 75.329's general directive. 3/ Section 75.329-1 

provides, in part, as follows: -

[a]ll areas of a coal mine which pillars have 

been wholly or partially extracted and abandoned areas shall be ventilated or sealed by 

December 30, 1970. 

In determining whether § 75.329-1 applies to the Golden 

Eagle Mine, the regulation must be analyzed in light of its plain 

meaning and congressional intent. '"[I]n statutory construction, 

the primary dispositive source of information is the wording of 

the statute itself.'" International Union, United Mine Workers 

of America v. Federal Mine Safety and Health Review Commission, 

840 F.2d 77, 81 CD.C. Cir. 1988) [quoting Association of Bituminous Contractors v. Andrus, 581 F.2d 85, 861 CD.C. Cir. l978)]. 4; The plain meaning of the statutory language is conclusive 

unless a clear legislative intent to the contrary can be demonstrated. Chevron U.S.A., Inc. v. Natural Resources Defense 

Council, Inc., 467 U.S. 837, 842-43 (1984); United States Lines, 

Inc. v. Baldridge, 677 F.2d 940, 944 CD.C. Cir. 1982); Freeman 

United Coal Mining Co., 6 FMSHRC 1577, 1578 (1984). 

3/ When the Secretary of the Interior promulgated the first set 

of regulations to implement the interim mandatory standards in 

Title III of the 1969 Act, he added "interpretations and supplementary regulations," 35 Fed. Reg. 5237 (Mar. 28, 1970), to particularize those statutory provisions. See, ~' Jim Walter 

Resources, 7 FMSHRC 493, 495 (1985); Florence Mining Co., 5 

FMSHRC 189, 190, 195 (1983) C"in order to clarify Congressional 

intent and to narrow the overly inclusive language of the statutory standard [§ 75.1405] the Secretary promulgated § 75.1405-1 

•••• ") Among those interpretive and supplementary regulations 

was § 75.329-1. · · 

ii See also Asarco, Inc. - Northwestern Mining Department v. 

Federal Mine Safet and Health Review Commission, 868 F.2d 1195 

(10th Cir. 1989); Emery Mining Corp. Utah Power and Light Co., 

10 FMSHRC at 1349. See Rubin v. United States, 449 U.S. 424, 430 

(1981) (plain meaning governs statutory construction); Phelps 

Dodge Corp. v. Federal Mine Safety and Health Review Commission, 

681 F.2d 1189, 1192-93 C9th Cir. 1982) (plain meaning governs 

construction of mine safety regulations). 

2052 
According to its plain language, § 75.329-l's application is 

limited to areas which were pillared or abandoned prior to December 30, 1970, as evidenced by Cl) the use of past tense ("have 

been ••• extracted" and "abandoned") in conjunction with ·the time 

limitation of "by December 30, 1970" and (2) the directive of 

§ 75.329-l{b). Congress's use of the past tense in§ 303Cz)C2) 

of the 1969 Act and the Secretary's use of the past tense of it 

in the supplementary § 75.329-1 demonstrate an intent to extend 

those requirements only to areas pillared or abandoned prior to 

December 30, 1970, and to require that only those areas be ventilated or sealed "by" that time. s; "Congress could have phrased 

its requirement in language that-looks to the [future] ••• , but 

it did not choose this readily available option." Gwaltney of 

Smithfield, 484 U.S. at 57. "Moreover, Congress has demonstrated 

in yet other statutory provisions that it knows how to avoid this 

[retro]spective implication by using language that targets wholly 

[prospective ~vents]." Id.; see,~' 30 C.F.R. § 75.3_26 C"[i]n 

any coal mine opened after March 30, 1970); 30 C.F.R. § 75.330 

C"[i]n the case of mines opened on or after March 30, 1970); 30 

C.F.R. § 75.500 C"[o]n or after March 30, 1971"); 30 C.F.R. 

§ 75.501 C"[o]n or after March 30, 1974"). 6; 

Further, the directive 

intent of § 75.329-l(a) was 

existence when the 1969 Act 

prior to December 30, 1970. 

of § 75.329-l(b) indicates that the 

to require that areas of mines in 

was passed by ventilated or sealed 

Section 75.329-lCa) provided that if 

5/ "By" means "[b]efore a certain time; ••• not later than a 

certain time; or or before a certain time •••• " Black's Law 

Dictionary 182 (5th ed. 1979). The dictionary is evidence of 

common usage, Puerto Rican Cement Co., 4 FMSHRC 997, 998 n.l 

(1982) [citing 2A Sutherland, Statutes & Statutory Construction 

§ 46.02 at 52 (4th ed. 1973)], to which adjudicatory bodies often 

refer to deciding matter of statuory construction. See Phelps 

Dodge Corp., 681 F.2d at 1192; Jim Walter Resources, Inc., 

7 FMSHRC at 496. 

6/ There are apparently no cases construing "on or before 

December 30, 1970, in § 75.329 or "by December 30, 1970" in § 

75.329-1. Cf. C.F. & I. Steel Corp., 3 FMSHRC 99, 104 (1981) 

(Boltz, J) (the first sentence of § 75.326, which begins "[i]n 

any coal mine opened after March 30, 1970," does not apply to 

mines opened before March 30, 1970); Rushton Mining Co., Docket 

No. PITT 73-371-P, slip. op. at 22 (Jan. 31, 1975) (Cook, J) 

C same). 

2053 
an area of a mine existing in 1969 could be ventilated, MSHA had 

to be notified and approve. Section 75.329-l(b) then required: 

The request for permission to ventilate 

such areas must be submitted in time to·allow 

consideration of the request, to obtain approval, and to permit the operator to install the 

ventilation system, or to install seals in the 

event the request to ventilate is denied, or 

or before December 30, 1970. 

30 C.F.R. § 75.329-l(b) (emphasis added). 

Indeed, the only interpretation of §§ 75.329 and 75.329-1 

consistent with the statutory scheme is that those regulations 

require only areas already pillared or abandoned prior to December 30, 1970, to be ventilated or sealed. See Gwaltney_of Smithfield, 484 U.S. at 59. Any other reading would make § 75.329-1 

incomprehensible, violating the rule of construction that regulations must be interpreted "as a whole, in light of the overall 

statutory and regulatory scheme," Campesinos Unidos v. United 

States Department of Labor, 803 F.2d 1063, 1069 (9th Cir. 1986), 

"to give them a harmonious, comprehensive meaning, giving effect 

••• to all provisions." Mccuin v. Secretary of Health and Human 

Services, 817 F.2d 161, 168 (1st Cir. 1987) (citing Weinberger v. 

Hynson, 412 U.S. 609, 632-32 (1973). 

In 1969 Congress was concerned with methane accumulations in 

areas of mines that (1) were being pillared, (2) had been pillared or abandoned, or (3) would be pillared and abandoned. H.R. 

Rep. No. 91-563, 9lst Cong., 1st Sess. 20-21, reprinted in House 

Committee on Education and Labor, 9lst Cong., 2d Sess., Legislative History of the Coal Mine Health and Safety Act, 578-79 

(Comm. Print 1970) ("Legislative History"). Congress enacted 

§ 303(z) of the Act to deal with methane accumulations in the 

three situations described above: 

1. Section 303(z)(l) requires operators to ventilate 

an area "[w]hil~ pillars are being extracted" from it. 

That section of the Act was recodified without amendment in 30 C.F.R. § 75.328. 

2. Section 303(z)(2) required operators "within nine 

months after the operative date of this subchapter" 

(by December 30, 1970) to ventilate or seal all areas 

in existing mines which had been pillared or abandoned. 

That section was recodified without amendment in § 75.329, 

which was supplemented by § 75.329-1. 

2054 
3. Section 303(z)(3) requires mines and sections of 

mines opened after the Act's effective date (March 30, 

1970) to be designed so that abandoned sections can 

be sealed in accordance with an approved plan. That 

section became § 75.330 of the regulations. 

Even assuming that the plain language in light of the statutory scheme, "Admit[ted] a smidgen of ambiguity sufficient to allow a look at the legislative history, here such history provides 

no basis for overturning ••• the clear meaning of [the regulation]. International Union, United Mine Workers of America v. 

Mine S~fety and Health Administration, No. 89-1563,. slip op. at 

4-6 (D.C. Cir. Apr. 13, 1990). The House Report and the Confe~­

ence 'Report bolster the interpretation that§ 75.329 (and the 

supplementary § 75.329-1) were intended to apply to mines and 

sections of mines already in existence when the 1969 Act became 

effective (giving those mines nine months to ventilate or seal), 

leaving § 75.330 to deal with methane in mines and sections of 

mines opened after the 1969 Act's effective date. 7; 

The H- se RP.port distinguishes the requirements for existing 

mines from those for new mines as follows: 

Seals and bulkheads shall be used to isolate 

in an explosion-proof manner all abandoned areas 

in existing mines. [§ 303(z)(2) of the Act, 

§§ 75.329, 75.329-1]. In addition, wherever 

possible, new areas of existing mines will be 

"sectionalized" with explosive-proof sealing 

when abandoned, that is isolated from active 

sections. [§ 303(z)((3) of the Act,§ 75.330]. 

In new mines, opened after the operative date 

of the Act, it is intended that the mining system be such as to permit isolation by explosionproof bulkheads of each section of a mine as it 

is abandoned. [§ 303(z)(3) of the Act, § 75.330]. 

7/ This construction of §§ 75.329 and 75.329-1 is also supported by witness Mitchell's testimony. (Tr. 643-645). 

Mr. Mitchell was Assistant Chairman of the Bureau of Mines Task 

Force responsible for drafting the regulations to implement the 

1969 Act. (Tr. 64li Ex. C-8). He was given specific responsibility for drafting the regulations to be promulgated under 

§ 303Cz) of the Act. (Tr. 641). He confirmed that§§ 75.329 and 

75.329-1 apply only to areas opened prior to December 30, 1970. 

(Tr. 643-645). 

2055 
H.R •• Rep. No. 91-563, 9lst Cong., 1st Sess. 21, reprinted in 

Legislative History at 579 (emphasis added). 

The same tripartite statutory scheme for regulating active 

pillar sections, areas already pillared or abandoned and, finally, areas to be pillared or abandoned is evident in the Conference Committee's explanation of how the three subparts of 303(z) 

of the Act work in tandem to regulate present, past, and future 

conditions: 

The House amendment provided for the ventilation of areas of the mine while actively being 

pillared in a manner approved by the Secretary or 

his inspector. It also provided that, within 9 

months after enactment, all min~s which are or 

which have been abandoned must be sealed or ventilated, as determined by the Secretary or his 

inspector. The Secretary could permit a further 

time extension of 6 months. It described how adequate the ventilation should be and the method of 

sealing. In new mines and new working sections, 

a plan requiring sealing would be required. 

* * * * * 

The conference substitute was adopted after 

the House amendment. 

Under this substitute, paragraph Cl) of section 303Cz) [§ 75.328] requires that areas which 

are actively being pillared must be ventilated 

in the manner otherwise prescribed under section 

303. 

Under the conference substitute, paragraph (2) 

of section 303Cz) [§ 75.329] provides that, within. 12 months after enactment, all areas from which 

pillars have been wholly or partially extracted, 

and aban<'loned·areas shall be ventilated by bleeder 

entries or by bleeder systems or by equivalent 

means or be sealed. 

* * * * * 

Under the conference substitute, paragraph (3) 

of section 303(z) provides that, in the case of 

mines opened on or after the operative date of this 

title, or in the case of areas developed on or after 

2056 
such date in mines opened prior to such date, the 

mining system shall be designed, in accordance 

with a plan and revisions thereof approved by the 

Secretary and adopted by the operator, so that, as 

each set of cross entries, room entries, or panel 

entries of the mine are abandoned, they can be isolated from the active workings of the mine with 

explosive-proof bulkheads approved by the Secretary or his inspector. 

H.R. Rep. No. 91-761, 9lst Cong., 1st Sess. 81-82, reprinted in 

Legislative History at 1043-1044 (emphasis added). 

The statutory and regulatory language, the statutory scheme, 

and the legislative history lead to the conclusion that §§ 75.329 

and 75.329-1 apply only to sections which were pillared or abandoned before December 30, 1970. The regulations do not apply to 

the Golden Eagle Mine, since the Secretary cannot show lhe mine 

was in existence before 1970. 

The Secretary believes § 75.329-lCa) applies to he Golden 

Eagle Mine. In this respect, she relies on cases where the 

standard was successfully applied since 1970. See Christopher 

Coal Company, March 1979 CFMSHRC); Itmann Coal company, 2 FMSHRC 

1986 (1980); Mettini Coal Corp., 6 FMSHRC 1507 (1984). 

The difficulty in the Secretary's position is that the above 

cases do not involve the issues presented here. As a result, 

such cases are of no precedental .value. 

The Secretary further contends that the legislative history 

supports her view. Such history has been previously discussed 

and it supports WFC, and not the Secretary. 

As noted herein, I generally agree with the well-reasoned 

decision of Judge Koutras in Ziegler, supra. 

Accordingly, in WEST 90-113-R, the contest of Citation No. 

2930785 should be sustained and the citation should be vacated. 

WEST 90-114-R 

In this case, MSHA Inspector Anthony Duran issued imminent 

danger Order No. 3241331. 

The text of the order is set forth on page 5, supra. 

2057 
The evidence in support of this order contains the same 

defect as existed in Order No. 2930784 in WEST 90-112-R. 

For.the same reasons, the contest of this order should be 

sustained and the order vacated. 

WEST 90-115-R 

In this case, WFC contests Citation No. 3241332 issued by 

Inspector Duran under Section 104Ca) of the Act. This text of 

the citation, which alleges a violation of 30 C.F.R. 

§ 75.329-l(a) is set forth on page 3, supra. 

As previously discussed, the cited standard, § 75.329-l(a) 

does not apply to the Golden Eagle Mine. Accordingly, the 

contest of Citation No. 3241332 is sustained and the citation 

vacated. 

WEST 90-116-R 

In this case, WFC contests Citation No. 3241333 issued by 

Inspector Duran. 

The text of the citation is set forth on page 6, supra. 

WFC contends this citation should be vacated because WFC was 

not apprised of the specific violation1 further, the operator 

claims it was denied administrative due process as required by 5 

u.s.c. § 534{b). 

The credible evidence establishes the operator was "working 

on an order," but since the underlying order was invalid, this 

citation must necessarily be vacated. 

For the foregoing reasons, I enter the following: 

ORDER 

All contests pending herein are SUSTAINED and all related 

orders and citations are VACATED. 

Law Judge 

/ek 

2058 

.. 
Distribution: 

Timothy Biddle, Esq., CROWELL & MORING, 1001 Pennsylvania 

Avenue, N.W., Washington, D.C. 20004-2505 · (Certified Mail) 

Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1585 Federal Office Building, 1961 Stout Street, 

Denver, CO 80294 (Certified Mail) 

2059 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

·OCT 2 41990 

LOCAL UNION 1609, DISTRICT 2, 

UNITED MINE WORKERS OF 

AMERICA (UMWA) I 

complainant 

v. 

GREENWICH COLLIERIES, 

DIVISION OF PENNSYLVANIA 

MINES CORPORATION, 

Respondent 

COMPENSATION PROCEEDING 

Docket No. PENN 84-158-C 

Order No. 2254681; 2/16/84 

Greenwich Collieries No. 1 

ORDER OF DISMISSAL 

Before: Judge Koutras 

The complainant's unopposed motion to dismiss this 

proceeding on the ground that the complaining miners have been 

compensated and paid IS GRANTED, and this matter IS DISMISSED. 

4kA.4~ Administrative Law Judge 

Distribution: 

Mary Lu Jordan, Esq., United Mine Workers of America, (UMWA), 

900 15th Street, N.W., Washington, DC 20005 (Certified Mail) 

John T. Scott and Timothy Biddle, Esqs., Crowell & Moring, 

1001 Pennsylvania Avenue, N.W., Washington, DC 20004 

(Certified Mail) 

/fb 

2060 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 2204i 

OCT 2 41990 

JIM WALTER RESOURCES, INC., 

.Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

JIM WALTER RESOURCES, INC., 

Respondent 

. . 

. . 

2061 

CONTEST PROCEEDINGS 

Docket No. SE 90-19-R 

Citation No. 3010382; 11/1/89 

No. 5 Mine 

Mine ID # 01-01322 

Docket No. SE 90-20-R 

Citation No. 3009494; 11/1/89 

No. 7 Mine 

Mine ID #01-01401 

Docket No. SE 90-21-R 

Citation No. 3009294; 11/1/89 

No. 4 Mine 

Mine ID # 01-01247 

Docket No. SE 90-23-R 

Citation No. 3008996; 11/1/89 

No. 3 Mine 

Mine ID 01-00758 

CIVIL PENALTY PROCEEDINGS 

Docket No. SE 90-33 

A.C. No. 01-01322-03752 

No. 5 Mine 

Docket No. SE-90-36 

A. C. No. 01-00758-03756-

No. 3 Mine 

Docket No. SE 90-37 

A. C. No. 01-01247-03860 

No. 4 Mine 

Docket No. SE 90-38 

A. C. No. 01-01401-03771 

No. 7 Mine 
DECISION 

Appearances: William Lawson, Esq~, ·Office of the Solicitor, 

U.S. Department of Labor, Birmingham, Alabama 

for the Secretary of Labor; 

Alfred F. Smith, Jr., Esq., and David M. Smith, Esq., 

Maynard, Cooper, Frierson, and Gale, P.C., 

Birmingham, Alabama for Jim Walter Resources, Inc. 

Before: Judge Melick 

These consolidated cases are before me under section 

105(d} of the Federal Mine Safety and Health Act of 1977, 30 

u.s.c. § 801 et seq., the "Act," to contest four citations 

issued by the Secretary of ·Labor pursuant to Section 104Ca> 

of the Act against Jim Walter Resources, Inc., (Jim Walter} 

and for review of civil penalties proposed by the Secretary 

for the violations alleged therein. More particularly J1:m 

Walter seeks review in this case of citations issued for its 

refusal to acquiesce in the Secretary's demand that its Fan 

Stoppage Plans (Plans} contain a provision stating in 

relevant part as follows: 

in the event of a fan stoppage and the miners 

have been withdrawn from the mine to the surface, 

the following procedures shall be implemented: 

1. Every area of the mine where miners 

are required to travel or work shall be 

examined by a certified mine examiner 

prior to miners entering any portion of 

the mine. 

2. The miners will be prohibited from 

following the mine examiner while the 

examinations are being made. 

The Commission discussed the underlying legal authority 

for the litigation of disputed ventilation plans in Secretary 

v. Carbon County Coal Co., 7 FMSHRC 1367 (1985}. It stated 

in this regard as follows: 

The requirement that the Secretary approve an 

operator's mine ventilation plan does not mean that 

an operator has no option but to acquiesce to the 

Secretary's desires regarding the contents of the 

plan. Legitimate disagreements as to the proper 

course of action are bound to occur. In attempting 

to resolve such differences, the Secretary and an 

operator must negotiate in good faith and for a 

reasonable period concerning a disputed provision. 

Where such good faith negotiation has taken place, 

and the operator and the Secretary remain at odds 

over a plan, review of the dispute may be obtained 

2062 
by the operator's refusal to adopt the disputed 

provision, thus triggering litigation before the 

Commission. Penn Allegh Coal Co., 3 FMSHRC 2767, 

2773 (December 1981) •. Carbon County proceeded -

accordingly in this case. The company negotiated 

in good faith and for a reasonable period 

concerning the volume of air to be supplied the 

auxiliary fans. Carbon County's refusal to 

acquiesce in the Secretary's demand that the plan 

contain a free discharge capacity provision led to 

this civil penalty proceeding.!/ 

It is not disputed in this case that Jim Walter 

negotiated in good faith and for a reasonable period 

concerning the disputed provisions of the Plans at issue and 

it was Jim Walter's refusal to acquiesce in the Secretary's 

demand that the Plans contain the cited provisions that led 

to these contest and civil penalty proceedings. In a ~imilar 

case I have held that the Secretary, as the moving party 

attempting to include the disputed provision in ventilation 

plans has the burden of proof. See 5 U.S.C. § 556 (d). 

Secretary v. Jim Walter Resources, Inc., 12 FMSHRC 1384 

(1990). I also determined in that case that the Secretary 

must prove by a preponderance of the evidence that, without 

her proposed change, the mine operator's Plan does not 

provide an adequate measure of protection to the miners in 

the subject mine.~/ I find these legal standards applicable 

as well to the cases at bar. 

Citation No. 3009294 alleges a violation of the standard 

at 30 C.F.R. § 75.321 and charges as follows: "a citation 

is hereby issued in that the operator is presently ~perating 

I/ While the dispute in these cases involves provisions of 

fan stoppage plans and not ventilation plans, the resolution 

of disputes over such plans should analogously be resolved 

through the procedures discussed by the Commission in Carbon 

County. 

~I The Secretary argues that whatever decision is made by the 

MSHA District Manager, whether to impose a new plan provision 

over the operator's objection or whether to refuse to include 

a provision the operator desires, is to be reviewed under an 

"arbitrary and capricious" standard. The "arbitrary and 

capricious" standard is however only applicable under the 

Administrative Procedure Act to judicial review of final 

administrative action following an administrative hearing. 

See 5 U.S.C. § 706(2)(A). 

2063 
the No. 4 Mine without having adapted [sic] an ap~roved Fan 

Stoppage plan as required by 3 0 C. F .R. § 7 5. 3 21. "_/ · 

It is undisputed that the Fan Stoppage Plan adopted by 

Jim Walter in 1976 had been consistently interpreted by both 

the former MSHA District Manager and the mine operator for 12 

years to permit miners to reenter the mine after a fan 

stoppage and evacuation sequentially after resumption of fan 

operations and as each section of the mine was inspected.4/ 

It is undisputed that when a new district manager for theMSHA district governing the subject mine assumed his position 

in 1989, he determined that the foregoing interpretation was 

erroneous and notified Jim Walter that as of October 11, 1989 

MSHA would enforce the "national policy" allowing miners to 

return underground after a fan stoppage·only after the entire 

mine has passed inspection. (Exhibit No. G-1> 

A formal revision of the existing fan stoppage plaIL_was 

thereafter attempted by letter dated October 17, 1989, 

(Exhibit G-2). Jim Walter refused to acquiesce in the 

attempted modification of the Plan and was cited for the 

instant violation on November 1, 1989, apparently under an 

MSHA policy providing for litigation of disputed fan stoppage 

plans consistent with the Commission decision in Carbon County. 

~/30 C.F.R. § 75.321 reads as follows: 

Each operator shall adopt a plan on or before 

May 29, 1970, which shall provide that when any 

mine fan stops, immediate action shall be taken by 

the operator or his agent (a) to withdraw all 

persons from the working sections, Cb) to cut off 

the power in the mine in a timely manner, Cc> to 

provide for restoration of power and resumption of 

work if ventilation is restored within a reasonable 

period as set forth in the plan after the working 

places and other active workings where methane is 

likely to accumulate are reexamined by a certified 

person to determine if methane in amounts of 1.0 

volume per centum or more exists therein, and Cd) 

to provide for withdrawal of all persons from the 

mine if ventilation cannot be restored within such 

reasonable time. The plan and revisions thereof 

approved by the Secretary shall be set out in 

printed form and a copy shal.l be furnished to the 

Secretary or his authorized representative. 

4/ This interpretation appears to be contrary to the 

plain-language of the 1976 Plan and to MSHA's national policy 

according to the new MSHA District Manager. The relevant 

Plan provisions read as follows: 

2064 
MSHA Ventilation Specialist Kenneth Ely, is in charge of 

reviewing ventilation and fan stoppage plans for the 

corresponding MSHA district and makes recommendations ·for the 

approval or disapproval of such plans within the framework of 

district and national policy and regulations. According to 

Ely, the procedures formerly followed in his MSHA district 

were not as safe as the uniform national MSHA procedures i.e. 

requiring the entire mine to be reexamined before any miners 

are permitted underground following a fan stoppage. 

According to Ely, the former procedures could expose miners 

reentering the mine to hazards such as methane. It may 

reasonably be inferred from Ely's testimony that the concern 

is that explosive levels of methane may have built-up in yet 

uninspected sections of the mine adjacent to areas that had 

been inspected and to which miners had been returned to work 

after a fan stoppage. An explosion or fire triggered by such 

methane in an adjacent section could propagate fires and/or 

explosions in adjacent sections where miners were working. 

Within this framework I am convinced that the Secretary has 

met her burden of proving in this case that operation of the 

subject mine without the disputed provisions in its Fan 

Stoppage Plan would indeed not provide an adequate measure of 

protection to the miners. Accordingly the violation in the 

citation is proven as charged. 

In reaching this conclusion I have not disregarded the 

testimony of Mine Manager Jesse Cooley, an experienced 

graduate mining engineer, that the safety of miners is 

"insured" under the old plan in the same fashion as their 

safety would be secured under the provisions of 30 C.F.R. §§ 

308 and 309. According to Cooley the cited regulatory 

provisons permit miners to continue working in adjacent 

sections while another section may be closed because of 

violative conditions. Cooley's argument fails however to 

take into consideration that imminently dangerous conditions 

such as highly explosive levels of methane may exist in 

adjacent sections -- conditions much more severe than are 

contemplated by sections 308 and 309. Cooley's argument is 

therefore inapposite to the case at bar. 

The citation at bar was apparently issued pursuant to a 

secretarial policy providing for the challenge of disputed fan 

cont'd fn.4 

Upon restoration of the ventilation and after the fan 

has been in operation with a normal water guage, a 

reexamination shall be made of the entire mine, as 

required by the regular preshift examination, before 

the men are permitted to reenter the mine and before 

any power lines leading underground are energized. 

(Exhibit No. G-4) 

2065 
stoppage plan provisions and did not involve any hazard or 

negligence under the precise circumstances herein. The parties 

hereto have agreed that disposition of Citation No. 3009294 

(Dockets SE 90-37, SE 90-21-R) will control all of the cases 

herein. Accordingly, considering the criteria under section 

llOCi) of the Act I find the proposed penalties of $20 in each of 

the civil penalty proceedings to be appropriate. 

ORDER 

Citations No. 3010382, 3009494, 3009294, and 3008996 are 

affirmed and Jim· Walter Resources, Inc. , is dir~cted to pay 

civil penalties of $20 for each of the violatiqns charged 

therein within 30 days of the date of this dee sion. 

~ \ I 

~I aw Judge 

Distribution: 

William Lawson, Esq., Office of Solicitor, U.S. 

Department of Labor, Suite 201, 5 Second Avenue North, 

Birmingham, AL 35203 (Certified Mail) 

Alfred F. Smith, Jr., Esq., David M. Smith, Esq., Maynard, 

Cooper, Frierson and Gale, P.C., 1901 6th Avenue North, Suite 

2400, Birmingham, Alabama 35203 (Certified Mail) 

nb 

2066 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 2 51990 

RANDY CUNNINGHAM, 

Complainant 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

DECISION 

DISCRIMINATION PROCEEDING 

Docket No. PENN 90-46-D 

PITT-CD 90-3 

Dilworth Mine 

Appearances: Paul H. Girdany, Esq., Healey Whitehill, 

Pittsburgh, Pennsylvania, for the Complainant; 

David J. Laurent, Esq., Polito & Smock, P.C., 

Pittsburgh, Pennsylvania, for the Respondent. 

Before: Judge Weisberger 

Statement of the Case 

Subsequent to a hearing on the merits in this case, a Decision 

was issued on July 12, 1990, finding that Respondent discriminated 

against Complainant in violation of Section 105(c)(l) of the Federal 

Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c)(l) ("the 

Act"). The Decision further ordered as follows: "Complainants 

shall file a statement, within 20 days of this Decision, indicating 

the specific relief requested. The statement shall be served on 

respondent, who shall have 20 days from the date service is 

attempted, to reply thereto." 

Pursuant to this order, on August 1, 1990, Complainant's 

Counsel filed a Request for Relief. Respondent filed a Response 

to Complainant's Request for Relief on August 20, 1990. On 

August 30, 1990, a telephone conference call was initiated by the 

undersigned with Counsel for Complainant and Respondent, to set 

deadlines to allow Counsel to submit additional Briefs and 

evidence with regard to the issues raised by Complainant's 

Request tor Relief and Respondent's Reply thereto. Pursuant to 

the telephone conference call, Complainant filed a Memorandum of 

Law and Additional Facts in Support of Complainant's Request for 

Relief. On September 24, 1990, Respondent filed a Reply to 

Complainant's Memorandum of Law and Additional Facts in Support 

of Complainant's Request for Relief. In a telephone conference 

call initiated by the undersigned with Counsel for both Parties, 

2067 
Counsel were advised that the record still contained insufficient 

facts with regard to a reasonable hourly rate for attorney's 

fees, and the Parties were granted until October 5, 1990, to 

suomit a stipulation or evidence on this issue. On October 4, 

1990, Complainant's Counsel filed a statement containing the 

Parties' stipulation in this regard. 

Discussion 

I. 

The Request for Relief requests, inter alia, lost wages of 

$3,628.29 plus interest, $4.00 for sending a registered notice of 

his Appeal to the Commission, $4.50 spent on parking to consult 

with his attorney on March 6, 1990, and $35.40 for mileage {to 

file his Complaint, to give an affidavit at the MSHA Office, to 

meet with MSHA Officials, to travel to his attorney's office, and 

to travel to the hearing), and attorney's costs of $524.70. 

These i terns were agreed to by Respondent and hence the· request 

for these items of relief is granted. 

II. 

Complainant further seeks reimbursement for travel to the 

Office of Employment Security on five occasions, traveling a 

total distance of 175 miles. In essence, it is Respondent's 

position that these expenses should not be allowed, as Section 105 

of the Act limits relief to only those costs incurred in connection 

with the institution or prosecution of a discrimination claim 

before the Commission. In this connection, Respondent asserts that 

the claim for unemployment compensation was an alternate remedy. I 

reject Respondent's argument inasmuch as the legislative history of 

the Act reveals an intent to require that the scope of relief provided shall encompass " ••• all relief that is necessary to make 

the complaining Party whole •••• " {Senate Report on the Act, 

s. Rep. No. 181, 95th Cong., 1st sess., at 37, (1977), reprinted in 

Legislative History of the Federal Mine Safety and Health Act of 

1977 {"Legislative History") at 625 (1978)). It is manifest that 

the expense incurred in pursuing unemployment benefits are the 

direct consequence of having been terminated by Respondent in violation of Section 105{c) of the Act. As such, Respondent has the 

obligation to make Complainant whole and reimburse him for these 

expenses. {See, Christian v. South Hopkins Coal Company, 

Incorporated, 1 FMSHRC 126 (1979) CALJ Stewart) (A discharged miner 

was allowed to recover the cost of his medical expenses, when he 

lost medical insurance coverage as a consequence of being terminated in violation of the Act); See also, Secretary on behalf oi E. 

Bruce Noland v. Luck Quarries, 2 FMSHRC 954 (1980) (ALJ Merlin) CA 

miner who was discharged from his employment in violation of 

Section 105{c) of the Act, could not keep up payments on his truck, 

2068 
and was forced to sell it, losing equity in the truck. It was held 

that the amount of the lost equity was recoverable). Hence, 

Complainant ·is allowed to be .reimbursed for this travel at the rate 

of 20 cents a mile. 

III. 

Complainant also seeks relief for travel, on November 2, 

1989, to-"Masontown District 4 Office." In the itemization of 

this travel the following is noted: "Conference call with Consol 

Re: return to work." Respondent did not spacifically present 

any argument why this amount should not be allowed. It would 

appear that a conference call with Respondent with regard to 

returning to work, was made as a direct consequence of Complainant 

having been terminated. As such, Complainant should be made whole 

by reimbursing him for this travel amount, at the rate of 20 cents 

a mile for a distance of 70 miles. 

IV. 

Complainant seek reimbursement for travel, on October 4, 

1989, to the Waynesburg MSHA Office, Masontown District 4 Office, 

and travel on October 5, 1989, to the Masontown District 4 

Office, and Dilworth Mine 27. No explanation is provided as to 

the reasons for this travel. Accordingly, I find Complainant has 

not established that this travel is in any way related to his 

having been discharged, and that reimbursement to him for these 

travel costs would make him whole. Accordingly, relief for 

travel on these dates is denied. 

v. 

Complainant seeks reimbursement for travel on October 9, 

1989, to the Dilworth Mine, and then "to Masontown District 4 

Office." In the itemization of his request for relief, 

Complainant indicates that this travel was " ••• in connection 

with the 24-48 hour meeting." However, Complainant did not specifically set forth the subject matter of the 24-48-hour meeting. 

Thus, there is no basis to conclude that this meeting was held as 

a consequence of Complainant's termination. As such, relief for 

reimbursement for travel to this meeting is denied. 

VI. 

Complainant further seeks reimbursement for travel on 

October 13 and October 30, 1989. In the itemization of the 

relief request for travel on these dates, the following is the 

only wording set forth after a listing of the destination and 

miles traveled: "Arbitration." It is Complainant's position 

that this travel should be allowed as being provided for in 

2069 
Section 105(c) of the Act, which requires reimbursement for 

expenses "in connection with" proceeciings before the Commission. 

Complainant further argues that if it were not for h_is being 

terminated in violation of the Act, he would not have incurred 

expenses pursuing arbitration. There is no evidence that the 

issues 9resented for arbitration were in any degree similar to 

those presented for resolution by Complainant in his Complaint 

before the Commission.l/ I thus conclude that Complainant has 

not established that any arbitration proceedings were not 

distinct and separate from the instant proceedings, and instead 

were related or were in connection thereto. (See, Secretary of 

Labor on behalf O·f Robert A. Ribel v. Eastern Associated Coal 

Corporation, 7 FMSHRC 2015 (1985), rev'd on other grounds, 

sub nom., Eastern Associated Coal Corp. v. Federal Mine Safety 

and Health Review Commission, 813 F.2d 639 (4th Cir. 1987) (An 

award of attorney's fees was sought in connection with proceedings initiated by a discharged miner before the State Bureau of 

Unemployment Compensation. 'l'he Commission agreed with th.e Trial 

Judge that there was no basis for the fee award as " ••• those 

State proceedings are separate and distinct from any remedy 

available to a miner under the Act." (Ribel, suora, at 2028)). 

VII. 

Complainant also seeks reimbursement for Local Union 1980, 

United Mine Workers of America, for lost wages of local committeemen in connection with meeting with management over Complainant's 

discharge, and preparing, assisting, and testifying in an "arbitration case" and the "MSHA 105(c) hearing." Complainant further 

seeks to reimburse District 4, United Mine Workers of America for 

costs expended in traveling "to District 4 Office." Also sought 

is reimbursement for "arbitrator's compensation," "Ramada Inn 

(Meeting Room for the Case)," and for miscellaneous costs. 

Essentially, Complainant argues that a broad construction is 

to be used in interpreting Section 105(c)(3) of the Act which 

provides that, in essence, costs incurred by "representative of 

miners" shall be assessed against a discriminating operator. A 

plain reading of the language of Section 105(c)(3), supra, 

indicates that the c6~ts incurred by a miner or a representative 

!I Inasmuch as the travel for "Arbitration," was subsequent to 

the filing of the 105(c) Complaint, it can not be concluded that 

the arbitration proceeding was related to the development of 

evidence necessary for the instant case. (c.f., Price v. 

Monterey Coal Company, 11 FMSHRC 1099 (1989) TALJ Melick), rev'd 

on other grounds, 12 FMSHRC 1505 (1990)). 

2070 
of miners, which are to be recovered, are those " ••• for, or in 

connection with, the institution and prosecution of such 

proceedings. • • " Complainant has not set forth in any detail 

the issues that were presented for arbitration. As such, I 

conclude that it has not been established that any costs incurred 

in connection with arbitration were for, or in connection with, 

the instant proceeding. In the same fashion, I conclude that 

inasmuch as there is no description of the purpose of the travel 

on October 9, 13, and 30, it has not been established that these 

costs were incurred for, or in connection with, the instant 

proceeding. For the same reason, I make the similar finding with 

regard to the miscellaneous items of cost, as well as the cost of 

the meeting room at the Ramada Inn. 

VIII. 

Complainant also submitted costs for Larry Swift, Safety 

Committee Chairman Local 1980, for preparation for the instant 

hearing, and for "witness MSHA 105(c) hearing." There is no 

evidence that Complainant incurred these cost. Further, although 

these costs were incurred in connection with the instant hearing, 

the Union did not intervene, and Larry Swift did not appear as 

representative of Complainant, but merely testified on his behalf. 

There is no provision in the Act which would require a 

discriminating operator to pay Complainant's witness for his 

pre~aration and appearance as a witness. Accordingly, these 

costs are denied. 

IX. 

The law is well settled with regard to the method of computing attorney's fees. As set forth in Glenn Munsey v. Smitty 

Baker Coal Company Incorporated (5 FMSHRC 2085 (1983) (ALJ Melick) 

"the recognized method of computing reasonable attorney's fees 

begins by multiplying a reasonable hourly rate by the number of 

hours reasonably expended. Hensley v. Eckerhart, 461 U.S. 424, 

76 L. Ed. 2d 40, (1983); Copeland v. Marshall, 641 F. 2d 880 (D.C. 

Cir. 1980). The resulting figure has been termed the "lodestar". 

The lodestar fee may then be adjusted to reflect a variety of other 

factors. Copeland, supra." In this connection, Complainant's 

Counsel initially sought a fee of $6,130 predicated upon an itemization oi 61.30 hours at $100 an hour. On October 4, 1990, 

Complainant's Counsel filed a statement indicating that he and 

Respondent's Counsel agreed to stipulate" .•• that the appropriate hourly rate for attorney's fees should be eighty dollars 

($80.00) per hour." I conclude that the lodestar figure herein for 

attorney's fees is based on an hourly rate of $80.00 multiplied by 

61.30 hours. I find no basis in the record to either increase or 

decrease this lodestar figure. 

2071 
ORDER 

It is ORDERED that: 

1. The Decision in this case issued July 12, 1990, is now 

FINAL. 

2. Respondent shall, within 30 days of this Decision, pay 

Complainant $9,135.89 with interest computed according to the 

Commission's decision in Local Union 2274, UMWA v. Clinchfield 

Coal Co., 10 FMSHRC 1493 (1988), aff'd sub nom:- Clinchfield Coal 

co. v. FMSHRC 895 F.2d 773 CD.C. Cir., 1990), and calculated in 

accordance with the formula in Secretary/Bailey v. Arkansas 

Carbona, 5 FMSHRC 2042 (1984). 

Distribution: 

.Avram Weisberger 

Administrative Law Judge 

Paul H. Girdany, Esq., Healey Whitehill, Law & Finance Building, 

5th Floor, Pittsburgh, PA 15219 {Certified Mail) 

David J. Laurent, Esq., Polito & Smock, P.C., Four Gateway Center, 

Suite 400, Pittsburgh, PA 15222 {Certified Mail) 

Walter J. Scheller, III, Esq., Consolidation Coal Company, Consol 

Plaza, 1800 Washington Road, Pittsburgh, PA 15241 {Certified 

Mail) 

dcp 

2072 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 2 51990. 

ASARCO I INC. I 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ASARCO I INC. I 

Respondent 

CONTEST PROCEEDINGS 

Docket No. SE 89-24-RM 

: Citation No. 3253415; 10/25/88 

: Docket No. SE 89-25-RM 

Citation No. 3253416~ 10/25/88 

Docket No. SE 89-26-RM 

Citation No. 3253417; 10/25/88 

Docket No. SE 89-27-RM 

Citation No. 3253418; 10/25/88 

Docket No. SE 89-37-RM 

Citation No. 3253702; 12/8/88 

Docket No. SE 89-38-RM 

Citation No. 3253703; 12/8/88 

Immel Mine 

Mine ID 40-00170 

CIVIL PENALTY PROCEEDINGS 

Docket No. SE 89-60-M 

A.C. No. 40-00170-05521 

Docket No. SE 89-75-M 

A.C. No. 40-00170-05522 

Docket No. SE 89-105-M 

A.C. No. 40-00170-05524 

Docket No. SE 89-108-M 

A.C. No. 40-00170-05525 

Immel Mine 

DECISION 

2073 
Appearances: 

Before: 

Henry Chajet, Esq., Laura E. Beverage, Esq., and 

Thad s. Huffman, Esq., Jackson and Kelly, 

Washington, D.C., for Contestant/Respondent; 

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

U.S. Department of Labor, Nashville, Tennessee, 

for Respondent/Petitioner. 

Judge Fauver 

These consolidated proceedings involve ASARCO's contests of 

six citations and the Secretary's corresponding petitions for 

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

Health Act of 1977, 30 u.s.c. § 801 et seq. The citations, which 

were issued following a fatal mine accident, allege violations of 

30 c.F.R. §§ 57.3401, 57.3200 and 56.3202 at ASARCO's Immel Mine. 

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. ASARCO operates a number of mines, including zinc mines 

and associated mill operations in Knox County, Tennessee. In 

October, 1988, its Tennessee Mines Division employed about 450 

miners. The citations in contest were issued at its Immel Mine 

in Tennessee, an underground zinc mine employing about 90 miners 

on three shifts. These Findings pertain to the Immel Mine unless 

stated otherwise. 

2. The zinc ore is removed by the selective open stope 

method using conventional mining techniques. This includes 

drilling into the ore body, blasting the drilled area, removing 

the ore, then loading, hauling and crushing the ore preliminary 

to the milling operations. 

3. On October 24, 1988, at about 7:25 a.m., George W. 

Norton, a jumbo drilLoperator, traveled to the 2C3 stope to 

drill blast holes in the heading. He was transported by his 

foreman, Carlyle Bales, on Mr. Bales' tractor. 

4. As a drill operator, Mr. Norton generally worked alone. 

On October 24, 1988, he was visited by Mr. Bales on three 

occasions after their initial entry into the heading at 7:25 a.m. 

About 7:50 a.m., Mr. Bales made a brief visit to see if 

Mr. Norton needed anything. About 10:50 a.m., Mr. Bales spent 

20-25 minutes with Mr. Norton while the drill operator ate his 

lunch, and about 12:25 p.m., Mr. Bales returned to the heading to 

bring "water washers" that Mr. Norton needed for drilling. 

2074 
5. About 12:10 p.m., Richard Abdella, a haul man, went to 

the 2C3 heading to service Mr. Norton's jumbo drill. He also 

supplied Mr. Norton with a piece of drill steel that the drill 

operator requested. 

6. About 1:25 p.m., John Ellis, Jr., General Mine Foreman, 

discovered Mr. Norton in the 2C3 heading. Mr. Norton was crushed 

under a slab, which had fallen from the mine roof. He had been 

standing about 7 feet to the right and rear of the jumbo drill, 

outside the protective canopy on the drill, when the slab fell. 

He died of the injuries sustained. 

7. The 2C3 heading, where Mr. Norton was working when he 

was struck by falling rock, was 47 feet wide, at its widest 

point, and 17 to 19 feet high. Remnants of three blast holes 

from a prior shift remained at the intersection of the roof and 

right rib. 

a. The fatal ground 1 failure extended from the right rib 

to the drill, a distance of 22.5 feet. Beginning at the right 

rib, the rock that fell increased in thickness from a feather 

edge to about 2 feet. Near the left side of the fall, drill 

holes had been started in the roof. Drill operators often used 

the jumbo drill to try to scale the back. In this process, they 

would drill in above loose roof material and then lower the drill 

boom in an effort to force the loose material down. 

9. At the time of the accident, the face had been drilled 

from the left to the right. The left pillar contained a vertical 

row of holes that were to be used to blast off part of the 

pillar. The drill steel was in the last or next to last row of 

holes to be drilled in the face. The right drill steel was 

broken by the falling rock. The drill steel was 4 feet into the 

third hole from the top. The jumbo drill had been shut down and 

was not in operation when the fall was discovered. The drill had 

a protective canopy over the operator's controls. The canopy was 

struck by falling rock. Some of the structural support members 

were bent or broken; however, the operator's area was still 

protected. If the operator had been under the canopy, it is very 

likely that he would have survived the roof fall. 

10. Mr. Norton's work area had not been roof-bolted. 

Approximately 174 feet outby the drill, the roof had been bolted 

with 5-foot long, Swellex bolts on 5-foot centers (normal bolting 

pattern). About 50 feet to the left of the left pillars, there 

was more bolting. The outby edge of the pillar that was drilled 

1 As used by the parties, and in this decision, the terms 

"roof," "ground" and "back" are synonymous, except where the 

context dictates otherwise. 

2075 
had loose vertical slabs that needed to be scaled. Other loose 

material in the roof needed to be scaled. The pillars showed no 

effects of overburden weight nor were the pillars punching the 

back or floor. The method of blasting used tended to leave 

fractured rock at the top of the pillar and to create dangerous 

slabs in the roof. In light of ASARCO's blasting methods, the 

roof and ribs required special attention for examination and 

testing. 

11. The rock that fell on the drill operator had been 

exposed to two blasting cycles. The drill operator was in the 

process of drilling the face for the third blast. He was not 

"back stoping" (i.e. drilling the roof for blasting out the 

roof) • 

12. A partial list of ground fall accidents 2 from January, 

1982, through September, 1988, revealed 10 falls of back, face, 

and ribs. Of these, nine were falls ot scaleable material. 

These nine accidents occurred as follows: four while scaling, 

two while bolting, two during the process of loading the face 

holes, and one when a piece of loose material fell from between 

bolts. The tenth ground f~ll accident was in a haulageway, in an 

area that had been rehabilitated, and extended above the 

anchorage zone of the roof bolts. 

13. The ground fall that killed Mr. Norton was a slab 

failure. The slab was cantilevered from the left to the right 

until the weight of the slab overcame the strength of the rock. 

The slab broke loose on the right rib side and the fall extended 

to his machine. The slab was probably formed as a result of 

fractures caused ~y the blast rounds near the back. 

14. The dolomite formation in the Immel Mine was stable and 

the mine was not experiencing massive ground failures. The mine 

was, however, experiencing a problem with slab formation and 

loose back and rib material because of the mining methods used by 

ASARCO. The dolomite formation's rock strength probably 

contributed to this in that it requires a heavy explosive load to 

blast a face round. Shock waves and vibrations from the blasting 

and drilling contributed to formation of the fatal slab and its 

ultimate failure. 

15. Over 90 percent of the reported ground fall accidents 

at this mine were the result of inadequate scaling or occurred 

during scalipg operations. · 

2 The list is limited to "reportable" ground fall 

accidents. These do not include a roof fall accident if (a) the 

roof was not supported, (b) no one was injured and (c) mining was 

not delayed beyond a certain period. 

2076 
16. Mr. Vernon Denton, MSHA Supervisory Mine Inspector, and 

Mr. William Erickson, Mine Inspector, of MSHA's Lexington Field 

Office for the Southeastern District, Metal and Non-Metal 

Division, were assigned to investigate the fatality. -They began 

their investigation on October 25, 1988. The report of the 

results of their investigation was issued on December 9, 1988. 

17. Supervisor Denton and Inspector Erickson collaborated 

in the investigation, and issued six citations to ASARCO. These 

related not only to alleged violations that caused or contributed 

to the death of Mr. Norton, but also to other conditions in areas 

outside of the 2C3 heading, where the death occurred. 

18. The six citations are: 

Number 

3253415 

3253417 

3253702 

3253416 

3253703 

3253418 

October 25, 1988 

October 25, 1988 

December 8, 1988 

October 25, 1988 

December 8, 1988 

October ·25, 1988 

30 C.F.R. Section 

57.3401 

57.3401 

57.3200 

57.3200 

57.3202 

57.3202 

Citation Nos. 3253415 and 3253417 

19. Citation No. 3253415 charges a violation of § 57.3401, 

based on the following allegations: 

A fatal accident occurred on October 24, 1988, in the 

2C3 stope at.this operation as loose rock fell from the 

back striking the driller as he stood near the drill. 

The work area had not been examined and tested for 

loose ground in that an investigation of the site on 

October 25, 1988, revealed multiple rock falls or a 

single large fall occurred and additional loose 

material remained in the back and on the ribs. 

Reportedly, the driller did not bring a scaling bar to 

the site with him. 

20. Citation No. 3253417 charges a violation of § 57.3401, 

based on the following allegations: 

Two miners were observed arising from being seated 

directly below and in .close proximity to high rib loose 

ground in the 3C4 stope. They had been sitting on 

flattened cardboard boxes at the junction of the floor 

and rib. The loose was about fifteen feet above them 

and consisted of various sizes over about a ten-foot 

wide area. There had been a fatal accident from fall 

2077 
of loose ground in a similar type stope in this mine 

the day·prior to this. 

21. The standard cited in these two citations is found at 

30 C.F.R. § 57.3401, which it provides in pertinent part: 

Persons experienced in examining and testing for loose 

ground shall be designated by the mine operator. 

Appropriate supervisors or other designated persons 

shall examine and, where applicable, test ground 

conditions in areas where work is to be performed, 

prior to work commencing, after blasting, and as ground 

conditions warrant during the work shift. * * * 

22. There was no scaling bar at the accident scene; 

Mr. Norton did not use a scaling bar to test or scale the roof or 

ribs on the date of the accident. 

23. Mr. Bales, who was Mr. Norton's supervisor, did not 

test or scale the roof or ribs on the date of the accident. 

Citation Nos. 3253702 and 3253416 

24. Citation No. 3253702 charges a violation of § 57.3200, 

based on the following allegations: "A fatal accident occurred 

on October 24, 1988, in the 2C3 stope at this operation when 

loose rock fell from the back striking the driller. Loose 

material had not been taken down or adequately supported before 

work was done." 

25. Citation No. 3253416 charges a violation of § 57~3200, 

based on the following allegations: 

Loose ground had not been removed from the ribs and 

back in places along the driller's travelway drifts 

between 2C3 stope and 2C3 back stope. Reportedly, the 

driller travelled this area to obtain his drill rig and 

returned through this area to the 2C3 stope prior to 

the fatal accident, which happened there on October 24, 

1988. Reportedly, the victim did not bring a scaling 

bar with him. 

26. The standard cited in these two citations, 30 C.F.R. 

§ 57.3200, provides, in pertinent part: "Ground conditions that 

create a hazard to persons shall be taken down or supported 

before other work or travel is permitted in the affected area." 

27. The inspectors observed loose rock on the roof and ribs 

as they traveled through the 2C3 stope to reach the heading where 

Mr. Norton had been killed. Inspector Erickson, who issued 

Citation No. 3253416, observed 40 to 50 pieces of loose material 

in the roof and ribs along the travelway, each weighing, in his 

2078 
estimation, from 10 to 100 pounds. These pieces, if they fell, 

could cause serious injury or death to miners who traveled along 

this route. Inspector Erickson observed a greater quantity of 

loose roof material in this travelway than he had observed in any 

other underground mine for a long time. He attributed this 

condition to "poor ground control practices" at the Immel Mine 

(Tr. 416-41). 

28. MSHA Supervisor Denton and Inspector Erickson observed 

the same "poor ground control practices" at the heading where 

Mr. Norton was killed. Using a series of photographs, which were 

taken by the operator shortly after the fatality, Supervisor 

Denton identified areas on the roof and rib where loose material 

had not been taken down or supported. This material was 

detectable and should have been taken down or supported before 

the accident. 

29. Billy Owens, Chief of MSHA's Ground Control Dlvision, 

went to the Immel Mine on November 2, 1988, at the request of 

MSHA's Subdistrict Manager in Knoxville, Tennessee. Mr. Owens 

made a thorough study of the ground conditions at the Immel Mine, 

particularly at the 2C3 heading where Mr. Norton was killed. 

During his examination of the 2C3 heading, he observed loose 

slabs on the left and right of the heading. He found that the 

slab that killed Mr. Norton should have been detected and taken 

down or supported before the accident. 

30. In issuing Citation No. 3253702 for a violation of 

§ 57.3200, Supervisor Denton also found that the rock that killed 

Mr. Norton should have been taken down or supported. Based on 

the investigation he and Inspector Erickson conducted, Supervisor 

Denton found that the fatal rock could have been detected by 

proper examination and testing and he found this was not done. 

31. The loose slab that killed Mr. Norton would have been 

detectable by using proper examination and testing methods. It 

should have been detected and taken down or supported before the 

accident. 

Citation Nos. 3253703 and 3253418 

32. Citation No. 3253703 charges a violation of § 57.3202, 

based on the following allegations: "A fatal accident occurred 

on October 24, 1988, in the 2C3 stope at this operation when 

loose rock fell from the back striking the driller. A scaling 

bar of sufficient length to place the user out of danger of 

falling material was not provided." 

33. citation No. 3253418 charges a violation of § 57.3202, 

based on the following allegations: 

2079 
The common ten-foot long scaling bar provided in many 

stope areas of the mine is not of sufficient length to 

manually scale loose ground from the fifteen to 

eighteen-foot high back and ribs. These bars should be 

about fifteen foot or longer to allow removal of high 

loose material without exposing the person performing 

the work to injury. 

34. The standard cited in these two citations is 30 C.F.R. 

§ 57.3202, which provides: "Where manual scaling is performed, a 

scaling bar shall. be provided. This bar shall be of a length and 

design that will allow the removal of loose material without 

exposing the person performing the work to injury." 

35. At the time of the issuance of these two citations the 

maximum length of the scaling bar provided to ASARCO's miners was 

10 feet. 

36. In the 2C3 heading where ~r. Norton was killed the 

height of the back was from 17 to 19 feet and could not be 

adequately and safely reached by a miner standing on the mine 

floor and holding a 10 foot scaling bar. This would also be the 

case in other areas of the Immel Mine where the mine height 

exceeded the ability of a miner standing on the mine floor with a 

10 foot bar to adequately and safely reach the roof. 

37. Miners on foot in the 2C3 heading or in any other part 

of the Immel Mine where the mining height was above 17 feet had 

no adequate means of scaling at their immediate disposal. This 

included the foreman, Mr. Bales, who had to travel to a number of 

different areas of the mine. 

38. The jumbo drill is not adequate as a total means of 

scaling in an underground metal and non-metal mine such as 

ASARCO's. It can be used to scale certain kinds of loose 

material, but a mechanical scaler or a scaling bar used on foot 

or from elevated equipment can reach, angle into, and scale down 

loose materials that cannot be scaled by a jumbo drill. It is 

not a safe practice to rely solely upon a jumbo drill as a means 

of scaling loose materials from the roof or ribs. 

39. The jumbo drill is not an adequate device for testing a 

mine roof. 

DISCUSSION WITH FURTHER FINDINGS 

Citations Nos. 3253415 and 3253417 

These citations allege a violation of 30 C.F.R. § 57.3401, 

which provides: 

2080 
§ 57.3401 Examination of ground conditions. 

Persons experienced in examining and testing for 

loose ground shall be designated by the mine operator. 

Appropriate supervisors or other designated persons 

shall examine and, where applicable, test ground 

conditions in areas where work is to be performed, 

prior to work commencing, after blasting, and as ground 

conditions warrant during the work shift. Underground 

haulageways and travelways and surface area highwalls 

and banks adjoining travelways shall be examined weekly 

or more often if changing ground conditions warrant. · 

One of the key issues is the meaning of "where applicable" 

as used in this standard. The Secretary contends that it means 

"where relevant" in the sense of "in the following cases," 

referring to the four situations specified in the standard. 

Under this interpretation, the operator would be required to test 

the ground "where work is to ~ .. e p_erfonned, prior to work 

commencing, after blasting, arid as ground conditions warrant 

during the work shift." 

ASARCO contends that uwhere applicable" means "where 

appropriate," in the sense that testing is required "only where 

visual examination reveals a ground condition requiring clo.ser 

scrutiny" (ASARCO Br. 18) • 

If the Secretary's interpretation is correct, there would be 

no reason for the phrase "where applicable," since the rule would 

simply mean "shall examine and test •••• " Indeed, the prior 

rule did state "e~amine and test" but the qualifier ·"where 

applicable" was inserted in the current rule. 

The plain meaning of the regulation is that designated 

personnel shall examine ground conditions in four situations and, 

in those situations, shall also test the ground as necessary or 

as ground conditions warrant. The legislative history of the 3 rule does not indicate that a different meaning was intended. 

3 The prior rule provided: 

"Miners shall examine and test the back, face, and rib of 

their working places at the beginning of reach shift and 

frequently thereafter. Supervisors shall examine the ground 

conditions during daily visits to insure that prior testing and 

ground control practices are being followed. Loose ground shall 

be taken down or adequately supported before any other work is 

done. Ground conditions along haulageways and travelways shall 

be examined periodically and scaled or supported as necessary." 

30 C.F.R. § 57.3-22 (1984). 

2081 
The fact that testing is required "where applicable," that 

is, as necessary or as ground conditions warrant, does not mean 

that it lies within the unlimited discretion of the operator or a 

miner to decide when to test. Testing applies when conditions 

warrant, and this is a matter of sound practice to protect miners 

from roof falls. I credit the following testimony, of MSHA 

Supervisor Denton, as a reasonable and enforceable standard for 

applying the testing requirement: 

[T]he old standard required the testing without any 

thought, without any exception. So the exception was 

put in to allow these rate instances when it's not 

needed. 

But in an active area, in an area where you're 

continually blasting, developing, driving, or stoping, 

you're always changing the -- all of the transient 

pressures in the roof, all of the pressures that 

resettle every time you take a blast, resettle every 

time a bed sags, that move every time you scale off 

some rock or advance another shot, that's never the 

same. I think testing there is basic and fundamental. 

It should be done every time. 

[Tr. 97-98.] 

fn. 3 (continued) 

On March 8, 1984, the Secretary proposed a new rule, to 

change the "examine and test" standard to read: 

"A person designated by the operator, shall examine, and 

test where applicable, ground conditions in active workings prior 

to work or travel in these areas and as ground conditions warrant 

during the work day. After blasting, a designated person shall 

examine ground conditions in areas affected by the blast before 

any other work is performed. Designated person shall be 

experienced in examining and testing the ground and understand 

the nature of the hazards involved." 49 Fed. Reg. 8374. 

The current rule was published on October 8, 1986 (51 Fed. 

Reg. 36192), with the following explanation in part: "The final 

rule requires examination for loose ground in areas where work is 

to be performed prior to commencing work, after blasting, and as 

ground conditions warrant." Id. at 36195. 

The explanations for both the proposed rule and the final 

rule do not state or imply that testing is always required 

whenever examinations are required. 

2082 
Under this standard, testing is required after the roof is 

disturbed by .blasting, scaling, or mining or when examination of 

the roof shows loose material, cracks, or other conditions that 

would cause a reasonably prudent operator to check the stability 

of the roof by sounding it, in order to discharge his high duty 

of care to protect miners from roof falls. 

Citation No. 3253415 alleges: 

Accident work area had not been examined and 

tested for loose ground in that an investigation of the 

site on October 25, 1988, revealed multiple rock falls 

or a single large fall occurred and additional loose 

material remained in the back and on the ribs. · Reportedly, the driller did not bring a scaling bar to 

the site with him. 

I credit the testimony and expert opinions of the 

Secretary's witnesses concerning the roof and rib conditions at 

the accident site, the failure of the operator to properly 

examine and test the roof before the accident, and its failure to 

take down or support loose material before the accident. 

The roof slab that fell was approximately 22-1/2 feet wide, 

35 to 40 feet long, and tapered from a thickness of 2 feet (near 

the drill) down to a feathered end less than an inch thick (near 

the right rib). It was cantilevered from over the drill and 

extended to the right rib. Mr. Norton was killed about 7 feet to 

the right and rear of the drill. Had the roof to the right of 

the drill been tested with a scaling (or sounding) bar, the 

reliable evidence shows that it would have sounded drununy 

(hollow), showing the need to take down the drununy area or 

support it. There was no scaling bar at the accident scene 

because Mr. Norton and Mr. Bales did not test the roof with a 

scaling or sounding bar on the day of the accident. 

The "belly" in the roof that miners had tried to take down 

about a week before the accident was part of the slab that fell 

in the fatal accident. The belly was a sign of trouble with the 

roof, and ample reason for testing the roof before Mr. Norton 

worked under it. Also, attempts to take down roof material can 

further weaken the roof, so that if the material cannot be taken 

down it should be supported or dangered off. This was not done. 

Had Mr. Norton or Mr. Bales properly examined the roof 

before the accident, they would have seen the belly; they also 

would have seen the loose materials later observed by Mr. Denton, 

Mr. Owens and other witnesses who testified for the Secretary. 

The requirement in § 57.3401, to "examine" the roof "in 

areas where work is to be performed, prior to work commencing, 

2083 
after blasting, and as ground conditions warrant" is not an empty 

provision that can be satisfied simply by looking up at the roof. 

The provision requires that "Persons experienced in examining and 

testing for loose ground shall be designated by the miner 

operator" for examining and testing. This means a careful 

examination by an experienced person. While "examination" may be 

visual only, it means careful, informed observations with 

appropriate accountability. Where loose materials in a roof are 

present and left uncorrected Ci·~· not taken down, supported or 

dangered off), where miners work or travel, there is a 

prima facie indication that the roof was not properly examined 

within the meaning of § 57.3401. I find that on Mr. Norton's 

shift the roof was not properly examined before the accident. 

This constituted a violation of § 57.3401. 

I also find that the roof was not tested as required by 

§ 57.3401. The loose material in the roof and ribs obse:cYed by 

the Secretary's witnesses as well,as the blasting-muckingdrilling cycle created a duty to test the roof before the 

accident. But the roof was not tested. Mr. Bales was at the 

site several times before the accident, and he did not test the 

roof. Mr. Norton did not have a scaling or sounding bar with him 

and therefore could not have tested the roof. 

I reject ASARCO's contention that using the jumbo drill to 

"rattle the back" is a competent alternative method of testing a 

mine roof within the meaning of § 75.3401. I fully credit the 

testimony of the Secretary's expert witnesses, including 

Mr. Owens, Mr. Goff, and Mr. Denton, on this point, and hold that 

the jumbo drill is not an adequate device for testing a mine 

roof. 

Billy D. Owens, Chief of MSHA's Ground Support Division, 

testified that the jumbo drill is not an adequate device for 

testing or sounding the roof. Tr. 675. His testimony is most 

instructive in pointing out that miners can mislead themselves 

(or be misled) into believing that by using the jumbo drill to 

test the roof they can tell good roof from bad roof (Tr. 

675-677): 

Q. Mr. Owens, you heard the testimony of the 

miners who • • • who testified previously in relation 

to using the jumbo drill to test with. Can you use the 

jumbo drill to test the ground or the back? 

A. No, the jumbo drill is not an adequate devise 

for testing or sounding the back. In my experience 

with drillers -- rock drillers, roof drillers -- these 

are very proud people. They have a lot of confidence 

in their abilities, and they think they can do -- that -- that they can do almost anything with their drill. 

They know their equipment real well. Like I say, 

2084 
they're extremely proud. I've been told that they can 

tell -- they can sound the roof with the drills. They 

can drill the roof, determine voids in the roof. They 

can tell when the roof is hitting partings or weak 

material in the roof -~ going through different beds. 

Q. When you say you've been told, have you talked 

to other drillers in the past 

A. Yes. Yes, I have. 

Q. -- during the course of your investigations or 

evaluations? 

A. Numerous times in -- in a lot of the 

investigations, we use a fiber optic fluoroscope which 

is a devise -- we have a nine foot and fifteen foot -- fluoroscope which runs a light through a fiber optic 

cable so that we can actually look up into a drill hole 

in the roof. 

Q. Have you had occasion to try to verify whether 

or not the drill operator was accurate in his --

A. Yes. 

Q. -- of the drill to test? 

A. We've had places where people have told us 

that the roof is sound, no problems; it's in excellent 

shape. Then we've fluoroscoped the hole, and, about 

18 inches up in the roof, we've found half-inch 

separations. The drillers have gone through small clay 

partings which they didn't pick up which could be of 

potential danger. It's -- once a clay parting gets wet 

or is -- it becomes lubricated, and it's usually a 

place where roof separation will occur. However, these 

drillers who have numerous years of experience have 

told us ••• with the utmost confidence that there's 

no problems with the roof -- no separations. It's 

solid and it's sound. 

* * * * * * 

Q. [U]nder current technology, what do you 

consider . . • the most efficient means of testing the 

the back of the roof? 

* 

A. It's still using a -- the best method is still 

to use a steel rod to .test the roof. The -- what is 

called a sound in the roof. Infrared has been tried to 

be used with the theory that a slab would be colder 

2085 
than the rest of the area because air gets in behind 

the slab, but that technology hasn't proven out yet. 

so far, it's still the physical touch of the man 

striking the roof with a steel object. 

Q. [W]hat's the difference in the -- in the 

result of test -- striking the roof with the -- with 

the ground bar or the metal bar? ••. [H]ow do you 

compare the two results? [Using a jumbo drill or a 

sounding bar.] 

A. The striking it, you get a different sound, 

plus the guy has the actual feel. 

It's been mentioned here that the people can tell 

that -- they can tell a roof by striking the -- the 

sound -- there's a different sound between hitting a--

dry wall with a two by four behind it and a dry wall 

with the two by four not behind it. All they're going 

by is sound. 

When a person is going with a -- holding a -- a 

piece of metal rod hitting the back with it, not only 

do you get the sound, but there's a vibration 

difference. The same way when you hit a dry wall with 

the two by four behind it, it feels solid. When you 

hit the dry wall without the two by four behind it, 

there's a different feel to that dry wall and the same 

way with the rock in the back. The loose rock will -- will be drummy. It will have a little give. The --

you have a sound and a feel that is different than 

hitting solid rock. 

Q. And you heard the testimony of these miners 

• and the testimony of Mr. Denton in relation to 

• the sound levels of the jumbo drill . • . and its 

use or non use for sounding the roof. What's your 

opinion about whether or not there is a sound or noise 

level -- difficulty with the drill? 

A. The sounding with a jumbo drill, if two sound 

level[s] -- if two sources are emitting sound, the 

higher decibel level of sound will mask the second 

sound. It's called masking. In masking when the 

second sound is masked, • . • not only is it hard to 

tell exactly what the sound is, it is also difficult to 

tell direction and orientation of the sound or • . • 

the source of the lower decibel sound. The drill rigs 

put out a higher decibel level than striking the back; 

therefore, the decibel levels put out by the drill 

would mask the sound coming from • • • striking the 

back which would make it difficult to tell whether it 

2086 
was solid back, [or] bad back. It would also make it 

difficult to get the orientation of the signal. 

Similarly, Mr. Goff, a noise expert with extensive 

experience, testified that the noise of the jumbo drill 

overshadows the information miners would need to test the roof 

and therefore the jumbo drill is not an adequate device to test 

the roof. 

I hold that, before the accident, ASARCO violated § 57.3401 

by failing to test the roof at the accident site on October 24, 

1988. 

I find that it was highly negligent of ASARCO to permit and 

encourage its drillers to try use the jumbo drill instead of a 

sounding bar to test the roof. Mr. Norton was an experienced 

miner who lost his life because he and his supervisor did not 

detect a loose overhead slab that could have been detected by 

proper testing. Following ASARCO's faulty practice, they took 

that risk without using the best known, safest, and commonly 

accepted tool for detecting a loose roof -- a sounding bar. 

The gravity of ASARCO's violation of§ 57.3401, i.g., its 

failure to properly examine and test the ground above Mr. Norton, 

was very high and plainly contributed to his death. The gravity 

is even higher in light of the fact that there was a "lag" in 

ASARCO's roof bolting and it had not roof bolted the area where 

Mr. Norton was killed. It ·is not being considered or decided 

here whether the failure to roof bolt was itself a violation of a 

separate regulation, because ASARCO is not charged with such a 

violation. However, the "lag" in the progress of roof bolting, 

which was known to the operator, is a factor in considering the 

gravity of ASARCO's failure to properly examine and test the 

ground at the accident site, because the failure to roof bo14 

Mr. Norton's work area increased the danger of a roof fall. 

4 Thus, in addition to finding that the rock that killed 

Mr. Norton was a detectable slab that should have been taken down 

or supported, Mr. Owens also testified in relation to the 47 foot 

width of this heading: 

"[I]n dolomite and limestone, we have found that the best 

mining widths appear to be 35 to 40 feet. That -- for selfsupporting -- for supporting without bolts. Then in the greater 

widths than 35 to 40 feet, there's no way it can be supported and 

typically no way it can be supported without bolts, so mining 

widths in these types of formation of greater than 40 feet tend 

to develop ground stability problems." 

[Tr. 661-662]. 

2087 
fn. 4 (continued) 

Based upon his observations of the accident site·and the 

testimony of many witnesses who testified at the hearing in 

regard to the adverse ground conditions in the Immel Mine in 

general and in the 2C3 stope in particular, Mr. Owens testified 

that he believed that the heading where Mr. Norton was killed 

should have been bolted. He stated that: "There's been quite a 

bit of testimony about people trying to pull loose down in that 

area, trying to bring down bellies, concern about the ground. In 

those kind of situations, that area should have been bolted." 

Tr. 703-704. 

I credit Mr. Owens' expert opinion that, if the 2C3 heading 

had been roof bolted to within 14 feet of the face, according to 

the general recommendation in his report, the roof would have 

held and Mr. Norton would not have been killed. 

Mr. Owens also testified that one of ASARCO's officials told 

him, at the time of his visit to the mine on November 2, 1988, 

that there had been a lag' time in the bolting in the 2C3 stope, 

"that the area was intended to be bolted, however, there was a 

lag in their bolting -- getting the bolting up there." Tr. 664 

and 725. 

MSHA Inspector Charles McDaniel, who was the first MSHA 

Inspector to visit the Immel Mine after the fatal ground fall in 

the 2C3 heading, gave his opinion that this heading was too wide 

and should have been bolted and that bolting would have held the 

slab that fell and killed Mr. Norton. Tr. 1355-1356 and 

136g. 

Inspector McDaniel also testified that the Immel Mine had a 

history of ground stability problems. 

Mr. Richard Hubbard, a roof bolter, testified that the 

ground conditions in the 2C3 stope were bad and required that the 

stope be roof bolted as it advanced. Tr. 259-260, 275. 

Mr. Hubbard stated that in July or August, 1988, he had been 

sent into the 2C3 stope to roof bolt by Mr. Guy Bales, his 

foreman. The area where he was working at the time was about 

90-100 feet from the point in the stope where Mr. Norton was 

killed. He stated that after he had completed drilling five 

holes, Jim Jacques, the Mine Superintendent, directed him to stop 

because, according to Mr. Jacques, the area was going to be back 

stoped. Mr. Hubbard told Mr. Jacques that in order to make the 

area secure roof bolts were needed, then Mr. Jacques allowed him 

to continue. He was not able to complete his bolting, however, 

because the equipment he needed to do the bolting was taken away, 

2088 
fn. 4 (continued) 

and he went on vacation shortly thereafter~ He stated that the 

next time he was in the 2C3 stope was when Mr. Norton's body was 

removed, and he saw the five, still unfilled, holes for roof 

bolts that he had drilled in July or August. Tr. 266 and 

268-273. 

Mr. William Ellis is a machine man at the Immel Mine. At 

the time of Mr. Norton's death, he was in training with 

Mr. Richard "Tominy" Frazier, drilling with the jumbo drill. They 

worked in the 2C3 stope about 1 week before the accident, in an 

area 10 to 20 feet from where the fatal ground fall occurred. He 

described the ground at the Immel Mine as "· •• bad about 

falling out. You have to bolt it a lot. 11 Mr. Ellis stated that 

he and Mr. Frazier thought that this area needed bolting, but 

that they worked in it anyway. Tr. 315-320. --

Mr. Ellis testified that the heading in the 2C3 stope where 

he had worked approximately 1 week before the fatal ground fall 

was too wide and needed to be bolted. Tr. 329. 

Mr. Ellis stated that he and Mr. Frazier had attempted to 

drill down a "belly" in the ground a week before but were unable 

to get it down. He stated that he believed that this may have 

been the rock that killed Mr. Norton. Tr. 318 and 333-334. 

Mr. Richard "Tommy" Frazier worked for ASARCO and its 

predecessor for 26 years until September, 1989. He worked at the 

Immel Mine from 1972 until his resignation. In October, 1988, 

Mr. Frazier was the jumbo drill operator on the second shift, 

using the same jumbo drill that Mr. Norton was using on the first 

shift when he was killed. Tr. 539-541. 

Mr. Frazier testified that the ground conditions in the 2C3 

stope were bad, and that roof bolts were needed. Tr. 550-551. 

It was Mr. Frazier's opinion that the 2C3 heading was too wide. 

Tr. 544. 

Mr. Frazier stated that the "belly" which he and Mr. Ellis 

tried to pull down about 1 week before Mr. Norton's death was 

within 10 to 15 feet of the spot where Mr. Norton was killed. He 

stated that he had tried unsuccessfully to drill the belly down, 

spending about 45 minutes to 1 hour in the attempt. Mr. Frazier 

thought that this belly may have been the rock, or at least part 

2089 
Citation No. 3253417 

This citation alleges: 

Two miners were observed arising from being seated 

directly below and in close proximity to high rib loose 

ground in the 3C4 stope. They had been sitting on 

flattened cardboard boxes at the junction of the floor 

and rib. The loose was about fifteen feet above them 

and consisted of various sizes over abut a ten-foot 

wide area. 

There had been a fatal accident from fall of loose 

ground from similar type stope in this mine the day 

prior to this. 

fn. 4 (continued) 

of the rock, that fell from the roof and struck Mr. Norton. Tr. 

543-545, 552, 585, 593-594 and R-16 (Erickson's Sketch Enlarged). 

Inspector McDaniel testified that, based on his observation 

of the heading, he believed that the rock that fell was a 

"belly." Tr. 1341. 

Hobart Tucker is a loader operator at the Immel Mine and had 

worked removing muck from the 2C3 heading on the 11:00 p.m. to 

7:00 a.m. shift (Friday night-Saturday morning) prior to Monday, 

October 24, 1988, the date of Mr. Norton's death. He had been in 

the 2C3 stope about 50 times before the fatality. He stated that 

the 2C3 stope needed to be bolted: 

"I feel that the ground needs to be bolted in that 

particular area. I mean as a general rule, because anywhere's 

trouble, you know, with some ground you need to keep it bolted. 

Of course, I think the ground ought to be bolted for the simple 

fact of support. I think it helps the ground a lot to stay safe, 

as a general rule, over periods of time." 

(Tr. 377-380]. 

James Jacques, Immel Mine's Superintendent, testified in his 

deposition that 75 percent of the 2C3 stope had been bolted 

before Mr. Norton's death (G-40 [Jacques' Deposition] at 56-58). 

John Ellis, Jr., Immel General Mine Foreman, testified in 

his deposition that it was Immel's practice to bolt all of the 

headings (G-42 at 11-12). 

2090 
The undisputed evidence sustains this citation. The 

inspectors gave their expert opinions that the loose material 

they observed above the two sitting miners was hazardous and 

obvious. ASARCO did not produce either of the miners to dispute 

this, although their names were known to management. --

The fact that the miners were sitting beneath loose, 

hazardous materials is a prima facie indication that the rib had 

not been properly examined under § 57.3401. Had it been properly 

examined, it would have been taken down, supported, or dangered 

off. 

Considering that this violation occurred the day after a 

fatal ground fall accident, the facts indicate high negligence in 

ASARCO's failure to examine the ground before this violation and 

to properly train miners not to sit under a roof or rib without 

properly examining overhead conditions. 

citation Nos. 3253702 and 3253416 

These citations alleg~ violations of 30 C.F.R. § 57.3200, 

which provides: 

Ground conditions that create a hazard to persons 

shall be taken down or supported before other work or 

travel is permitted in the affected area. Until 

corrective work is completed, the area shall be posted 

with a warning against entry and, when left unattended, 

a barrier shall be installed to impede unauthorized 

entry. 

Citation No. 3253702 alleges that: "A fatal accident 

occurred on October 24, 1988, in the 2C3 stope at this operation 

when loose rock fell from the back striking the driller. Loose 

material had not been taken down or adequately supported before 

work was done." 

I credit the testimony and expert opinions of the 

Secretary's witnesses that the slab that killed Mr. Norton was 

hazardous, detectable, and should have been taken down, supported, 

or dangered off before the accident. Discussion of this evidence 

is included under Citation No. 3253415, above, and is 

incorporated here. 

I find that ASARCO was highly negligent in failing to take 

the necessary precautions to protect Mr. Norton from the danger 

of a roof fall in his work area. ASARCO's negligence includes 

the negligence of Mr. Norton and his supervisor, Mr. Bales. 

Citation No. 3253416 is based upon the inspector's 

observations of loose material in the roof and ribs of the 

travelway between the 2C3 stope and the 2C3 back stope. 

2091 
Inspector Erickson observed 40 to 50 pieces of loose material in 

the roof and ribs along the travelway, each weighing, in his 

estimation, from 10 to 100 pounds. These pieces, if they fell, 

could cause serious injury or death to miners who traveled along 

this route. Inspector Erickson observed a greater quantity of 

loose material in this travelway than he had observed at any 

other underground mining operation for a long time. He 

attributed the poor conditions of roof and ribs to "poor ground 

control practices" at the Immel Mine. 

The inspectors observed the same "poor ground control 

practices" in or near the heading where Mr. Norton was killed. 

The evidence fully supports this citation. The roof 

conditions were hazardous and obvious. I find that ASARCO was 

highly negligent in failing to correct them. 

ASARCO contends that the citation fails to give adequate 

notice of the locations of the loose material in the roof and 

ribs. However, the inspectors pointed out these locations to the 

management representatives who were with them at the time the 

inspectors observed the loose material. This fact and the 

wording of the citation constitute adequate notice and 

specificity of the charge. 

Citations Nos. 3253703 and 3253418 

These citations allege a violation of 30 C.F.R. § 57.3202, 

which provides: "Where manual scaling is performed, a scaling 

bar shall be provided. This bar shall be of a length and design 

that will allow the removal of loose material without exposing 

the person performing the work to injury." 

Citation No. 3253703 alleges that a "scaling bar of 

sufficient length to place the user out of danger of falling 

material was not provided" ·at the accident site where Mr. Norton 

was killed. ASARCO contends that § 57.3202 does not apply 

because "Norton was not manually scaling, but rather was scaling 

with a jumbo drill." .. ASARCO Br. 29. 

It is clear that Mr. Norton was not engaged in manual 

scaling, because he did not take a scaling bar to his work site. 

If he d~d any scaling at all, he probably tried to use the jumbo 

drill. Although the jumbo drill can be used to scale certain 

5 Some witnesses for ASARCO testified that the jumbo drill 

had been used for a long time to scale ground at the Immel Mine. 

However, the operator's Safety Rules Booklet makes no mention of 

the use of the jumbo drill to scale. It refers only to the use 

of a scaling bar. In pertinent part, it provides: 

2092 
kinds of loose material, it is not designed as a scaler; a 

mechanical scaler or a scaling bar used on foot or on elevated 

equipment can reach, angle into, and take down loose material 

that cannot be taken down by a jumbo drill. Thus, it is not a 

safe practice for an operator to rely solely on the jumbo drill 

for scaling -- because loose material could be missed. 

Nonetheless, since Mr. Norton was not engaged in manual scaling 

on the day of the accident, § 57.3202 did not apply. Citation 

No. 3253703 will be vacated. 

Citation No. 3253418 alleges that: 

The common ten-foot long scaling bar provided in 

many stope areas of the mine is not of sufficient 

length to manually scale loose ground from the fifteen 

to eighteen-foot high back and ribs. These bars should 

be about fifteen foot or longer to allow removal of 

high loose material without exposing the person 

performing the work to injury. 

The cited standard does not require that scaling bars be of 

any particular length. Indeed, standard practice shows that if a 

bar is too short to reach the roof or ribs safely and 

effectively, the bar may be used in conjunction with lift 

equipment. Accordingly, this citation will be vacated. 

Multiple Violations 

ASARCO contends that certain citations are duplicative, 

resting on the same factual allegations. However, discrete 

violations are alleged which are not duplicative. Citation 

fn. 5 (continued) 

MINING DEPARTMENT 

* * * * * * 

6. It is the responsibility of every worker to scale 

down all loose ground that he finds. If for any 

reason this is not possible, he must notify his 

foreman. 

* 

7. Be sure you use a proper length bar which is sharp 

and has bit (sic) on only one end. Bars when not 

in use must be stored in a safe location out of 

vehicle traffic. 

8. Barring down must be done from a safe location. 

Footing shall be secure. 

2093 
No. 3253415 rests upon a failure to properly examine and to test 

the ground before Mr. Norton was killed, a violation of 

§ 57.3401• Citation No. 3253702 rests upon a failure to take 

down. support. or danger off hazardous, loose material before 

Mr. Norton was killed, a separate violation of § 57.3200. 

Citation Nos. 3253703 and 3253418, which involve the length of 

scaling bars, are being vacated, and need not be considered under 

the issue of duplicative charges. 

CONCLUSIONS OF LAW 

1. The judge has jurisdiction in these proceedings. 

2. ASARCO violated the safety standards as alleged in the 

following citations: 

Citation 

3253415 

3243417 

3253702 

3253416 

30 C.F.R. Section 

57.3401 

57.3401 

57.3200 

57.3200 

3. The Secretary failed to prove a violation of 30 C.F.R. 

§ 57.3202 as alleged in Citation Nos. 3253418 and 3253703. 

Civil Penalties 

Considering each of the criteria for a civil penalty in 

§ llO(i) of the Act, I find that the following civil penalties 

are appropriate for the violations found herein: 

Citation Civil Penalty 

3253415 $6,000 

3243417 $ -200 

3253702 $6,000 

3253416 $ 200 

ORDER 

WHEREFORE, IT IS ORDERED THAT: 

1. Citation No. 3253415 is AFFIRMED. 

2. Citation No. 3253417 is AFFIRMED. 

3. Citation No. 3253702 is AFFIRMED. 

4. Citation No. 3253"\16 is AFFIRMED. 

5. Citation No. 3253703 is VACATED. 

2094 
6. Citation No. 3253.418 is VACATED. 

7. The motions for partial summary judgment and dismissal 

are DENIED in light of the above disposition of all citations. 

Material issues of fact warranted a consideration of the evidence 

from both parties before deciding the issues raised. 

8. ASARCO shall pay the above assessed civil penalties of 

$12,400 within 30 days of the date of this decision. 

~~VeA- William ~J~er Administrative Law Judge 

Distribution: 

Henry Chajet, Esq., Laura E. Beverage, Esq., and Thad s. Huffman, 

Esq., Jackson and Kelly, 1701 Pennsylvania Avenue, N.W., 

Suite 650, Washington, DC 20006 (Certified Mail) 

Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department 

of Labor, 2002 Richard Jones Road, suite B-201, Nashville, TN 

37215 (Certified Mail) 

/fb 

2095 
WARREN ROSE, 

v. 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

OCT 2 51990 

Complainant 

DISCRIMINATION PROCEEDING 

Docket No. WEST 90-142-DM 

WE-MD 90-04 

CUNNINGHAM SAND & GRAVEL, 

Respondent 

Crestline Pit 

DECISION 

Appearances: Michael D. Kinkley, Esq., Spokane, Washington, 

for Complainant; 

Thomas W. McLane, Esq., PAINE, HAMBLEN, COFFIN, 

BROOKE & MILLER, Spokane, Washington, 

for Respondent. 

Before: Judge Lasher 

This matter was initiated by the filing of a complaint by 

Warren Rose on March 16, 1990, pursuant to Section 105(c)(3) of 

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

et ~ (herein "the Act"). 

Following completion of formal hearing in this matter in 

August 1990, the parties reached an amicable resolution of the 

matter reflected in a "Release in Full" duly executed by the 

individual Complainant and his wife and respondent. A copy of 

this agreement is contained in the Commission's case file, 

clearly showing the parties' intent to terminate the litigation 

of this matter, and calling for dismissal of this proceeding with 

prejudice, without cos-ts or attorneys' fees to either party. 

Accordingly, this matter, having been voluntarily resolved 

by the parties in a reasonable and proper manner, their agreement 

is APPROVED and this proceeding is DISMISSED WITH PREJUDICE. 

" .A 0;t'~~/ ~ ~Afi-- /''fchae1 A. Lasher, Jr. 

Administrative Law Judge 

2096 
Distribution: 

Mr. Warren Rose, 2420 Heine Road, Chewelah, WA 99109 

(Certified Mail) 

Mr. Kevin Bredesen, Personnel Manager, ACME MATERIALS & CONSTRUCTION COMPANy, P.O. Box 2530, Spokane, WA 99220 (Certified 

Mail) 

Michael D. Kinkley, Esq., Northtown Office Building, Suite 701, 

N. 4407 Division, Spokane, WA 99207 (Certified Mail) 

/ek 

2097 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 2 61990 

SECRETARY OF LABOR, 

MINE SAFETY ~ND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SHAMROCK COAL COMPANY, INC., 

Res i?Ondent 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 90-137 

A. C. No. 15-02502-03565 

Docket No. KENT 90-142 

A. C. No. 15-02502-03566 

Shamrock No. 18 Series 

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

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

for the Secretary; 

Neville Smith, Esq., Smith & Smith, Manchester, 

Kentucky, for the Respondent. 

Before: Judge Weisberger 

Statement of the Case 

These consolidated Civil Penalty Proceedings are before me 

based upon Petitions for Assessment of Civil Penalty filed by the 

Secretary (Petitioner), alleging violations of various mandatory 

safety standards set forth in Volume 30 of the Code of Federal 

Regulations. The Operator (Respondent) filed Answers in these 

proceedings, and pursuant to notice, the cases were heard in 

Richmond, Kentucky, on August 16, 1990. (Docket No. KENT 90-136, 

which had previously consolidated with the cases involved in this 

proceeding, was severed based upon an oral Motion made by 

Petitioner and not opposed by Respondent.) At the hearing, 

James A. Delp testified for Petitioner and Gordon Couch testified 

for Respondent. 

Stipulations 

The following stipulations were agreed to by both Parties: 

1. That the proposed penalty would not affect the Operator's 

ability to continue in business and would be appropriate to the 

size of the business. 

2098 
2. That, where appropriate to the nature of the citation, 

the Operator. demonstrated good faith in attempting to achieve 

rapid compliance after being .. n.ottf ied of the alleged_ violations. 

3. The Operator's history of prior violations is shown in 

Government's Exhibit 1 (Gx 1). 

Docket No. KENT 90-137 

Citation No. 3206452 

On January 10, 1990, James Delp, an inspector employed by 

the Mine Safety and Health Administration, issued Citation 

No. 3206452 alleging a violation of 30 C.F.R. § 75.403, in that 

sampling, taken at the various locations of the No. 1 Return 

Entry of the 006 Section of Respondent's Shamrock No. 18 Mine, 

revealed that rock dust samples had incombustible contents less 

than 80 percent. Respondent did not adduce any evidence-to rebut 

or impeach the figures set forth in the Dust Sampling Lab Report, 

which revealed that in 31 of the the 38 samples taken in the 

No. 1 Return Entry, the incombustible content of the roc1c dust 

was less than 80 percent. 30 C.F.R. § 75.403, in essence, 

mandates that the rock dust in the area in question have an 

incombustible content of not less than 80 percent. Accordingly, 

I find that the Respondent herein did violate Section 75.403, 

supra. 

According to the uncontradicted testimony of Delp, the purpose of rock coal dust is to hold down combustible materials, 

such as coal dust, which he indicated to be highly flammable and 

explosive. He indicated that if the rock dust does not have the 

appropriate level of incombustible material, there could be an 

ignition. ~ccording to Delp, if there would be a methane ignition 

at the face with enough pressure to raise the coal dust and place 

it in suspension, there would be an explosion. However, he indicated, on cross-examination, that the area in question does not 

produce a great amount of methane. He also indicated that there 

were various items of equipment at the face, such as a continuous 

miner, two shuttle cars~ a roof bolting machine, and a scoop, all 

of which are potential sources of an electrical spark. The record 

do:s not contain evidence of any deficiency of any of the equipment 

present at the face, which would have rendered it reasonably likely 

for a spark to have occurred. Also Delp indicated that the mine in 

question does not liberate a great amount of methane. Thus, 

although the violation herein could have contributed to the hazard 

of the propagation of an explosion, I find that the evidence fails 

to establish that there was any reasonable likelihood of a ignition. 

~ccordingly, I find that the violation herein was not significant 

and substantial. (See, Mathies Coal Co., (FMSHRC 1, 3-4 (1984)). 

2099 
Inasmuch as the lack of the appropriate incombustible content 

of the rock dust can lead to the propagation of an explosion, I 

find that the· violation herein was of a moderately high level of 

gravity. Petitioner has not adduced any evidence to base a 

decision that Respondent either knew or reasonably should have 

known that the rock dust in question did not have the appropriate 

level of incombustible material. Accordingly, I find that the 

Respondent did not act with more than low negligence in connection 

with the violation herein. Taking into account the remaining 

statutory factors of 110(1) of the Act, as stipulated to by the 

Parties, I conclude that a penalty herein of $300 is appropriate. 

Citation No. 3206454 

On January 10, 1990, Delp found that the deluge water spray 

system for the 009 Section head drive was inoperative, as the 

water line was not connected. Respondent did not contradict or 

otherwise impeach this testimony. I therefore find thatRespondent herein violated 30 C.F.R. § 75.1101-l(a) as alleged. 

Delp indicated that if the deluge water system, designed to 

dump large qualities of water on the head drive, is not operative 

due to the fact that it was not connected to the water source, 

there is a hazard of a fire at the belt not being suppressed 

resulting in smoke and noxious gasses. He indicated that there 

were various materials which could potentially burn, such as 

several gallons of oil in metal containers, and various timbers 

and wooden cribs. However, he did not indicate the distance of 

these materials to the head drive, and it is noted that the oil 

was contained in metal containers. Also, although he indicated 

that the area is known as one that accumulates float coal dust, 

and that the belt was in operation and carrying coal, he was 

unable to say whether he observed coal dust on the belt, and did 

not specifically indicate that there was any coal dust around the 

head drive. Further, although he noted that there was a potential of fire due to friction of rollers and various components, 

as well as sparks from various electrical equipment at the head 

drive, there was no evidence adduced as to a specific condition 

of the various equipme.nt which would make the hazard of an 

ignition reasonably likely to have occurred. I thus conclude 

that it has not been established that the violation herein was 

significant and substantial. {See, Mathies, supra). 

Inasmuch as the violation herein could have resulted in the 

propagation of a fire, producing intense smoke and noxious 

gasses, and the same could have been carried by the belt to other 

areas, I conclude that the violation herein was of a moderate 

high level of gravity. 

2100 
Delp was asked as to whether it was obvious that the water 

supply had not been hooked up to the system. He indicated that 

it was obvious to him. Further, he said that Respondent's 

foreman, Heatch Begley Jr., who was with him at the time did not 

explain why the water was not hooked up, and in general did not 

make any comment. I find that Petitioner has not adduced 

sufficient facts as to the degree of Respondent's negligence. 

There is no evidence as to how long the condition had existed 

prior to Delp's inspection. Further, although Delp indicated 

that the condition was obvious to him, there were no specific 

facts adduced as to either a description of the site where the 

water had been disconnected or its specific location. Nor was 

any evidence presented as to a specific description of its 

visibility. Hence, I conclude that it has not been established 

that the Respondent herein operated with more than a low degree 

of negligence in connection with the violation herein. I 

conclude that a penalty of $100 is appropriate. 

Citation No. 3206457 

On January 23, 1990, Delp indicated that while in the intake 

entry, he observed a hole approximately 3 by 3 feet in an overcast that ran through and perpendicular to the intake entry. The 

overcast had been constructed of concrete blocKs. The hole that 

Delp observed still contained parts of concrete blocks, but had 

been covered by a plastic lined brattice Cbrattice cloth). Delp 

issued Citation No. 3206457 essentially alleging that Respondent 

had not followed its ventilation plan, " ••. which requires 

overcast to be constructed oi 4" x 8 11 x 16" concrete block and 

pilaster .•.• " (sic). 

According to Delp the overcast was constructed, essentially, 

to prevent the air in the belt from mixing with intaKe air. He 

indicated that the belt line in the overcast goes to the face and 

contains various gasses and dust. He indicated that in the event 

of a fire, the brattice cloth could have melted, allowing the 

contaminants in the belt line to enter the intake entry, which 

serves as the escapeway. Essentially it was Delp's testimony 

that as the intake air passes under the overcast, it would create 

suction which would result in the intake air being the path of 

least resistance. Accordingly, air from the belt drive 

containing various gasses would enter the intake air. 

I do not place much weight on this theory as Delp did not 

explain how such suction is created. Further, he indicated that 

as a general proposition air takes a path from high pressure to 

low pressure. In this connection he noted that the intaKe entry 

is under more pressure than the air in the belt line in the 

ovarcast. Accordingly it does not appear likely that air from 

the overcast would enter the intake return. 

2101 
Further, the sole basis for the violation cited in the 

Citation is the assertion that the use of brattice cloth to cover 

a hole in an overcast violates the ventilation plan. As pertinent, Respondent's violation plan, with regard to materials and 

methods used to construct overcasts, provides as follows: 

"4" x 8" x 16" concrete block and pilaster, a noncomoustible 

material may be used in some conditions." (Emphasis added). 

(Government Exhibit 5, -page 3). "Combustible" is defined in 

Webster's Third New International Dictionary (1986 ed.) 

("Webster's") as follows: "l: capable of undergoing combustion 

or burning - used esp. of materials that catch fire and burn when 

subjected to fir~~" "Combustion" is defined in "Webster's" as "l: 

a process or instance of burning: .••• " "Burning" is defined 

in "Webster's" as "l a: a consuming or being consumed by a fire 

or heat." 

Thus, Petitioner, in order to prevail, must establish that 

the bra~tice cloth in question was not incapable of burning. For 

the reasons that follow, I find that Petitioner has failed to 

meet this burden. Delp, who has been with MSHA only since 

January 1989, but has 15 years experience as a miner, including 

ap9roximately 12 years as a section foreman, testified on direct 

examination that "I believe it will burn" (Tr. 70). However, on 

cross-examination he was asked whether the material in question 

was not combustible and he answered as follows: "I don't know if 

it was combustible, but I do know that it would melt" (Tr. 102). 

In addition, he agreed it was "· .. approved flame-resistant 

material" (Tr. 102). Gordon Couch, who has been Respondent's 

safety director for 15 years, and previously involved as a mine 

inspector for the Department of Interior for 8 years, and served 

as coal mine inspection supervisor for 2 years, testified with 

regard to the nature of the material in question as follows: 

" ••• it is not combustible. It is deemed flame-resistant by 

the tests conducted by the Bureau of Mines" (Tr. 112). Further, 

Couch indicated that it is routine to remove blocks and 

temporarily cover the resulting openings with the material 

identified by Delp's testimony. Couch's testimony, in these 

regards, was not impeached or rebutted by Petitioner. 

Accordingly, I find tb_at the record fails to establish that the 

brattice cloth in question is not "non-combustible." Thus, it 

has not been proven.that the usage of the brattice cloth herein 

violated the ventilation plan. However, Citation No. 3206457 is 

to be dismissed. 

2102 
Docket No. KENT 90-142 

Citation No. 3206323 

Delp indicated that on January 23, 1990, Respondent's foreman, a Mr. Asher, opened the water valve on Respondent's sprinkler 

system. Delp indicated that this is the manner that he usually 

tests the sprinkler system, at Respondent's mine. He indicated 

that the belt did not stop and neither a visual nor an auditory 

alarm was emitted. He issued a Citation alleging a violation of 

30 C.F.R. § 75.1101-10, which provides, as pertinent, that each 

water sprinkler system shall be equipped with a device to stop the 

belt in the event of a rise in temperature, and the device 11 ••• shall be capable of giving both an audible and visual 

warning when a fire occurs." 

Respondent did not rebut the testimony of Delp that when the 

system was tested it did not stop the belt drive, nor d1d it emit 

an audible or visual warning. Nor did Respondent adduce 

testimony from any witness which tend to establish that the 

method of testing used by Delp was not the proper or usual one. 

Accordingly, I find Respondent herein did violate 

Section 75.1101-10, supra, as alleged. 

Delp indicated that the hazards of a fire are the same as 

those he described in his testimony with regard to Citation 

No. 3206454, which involved the deluge system. Also, on the same 

date, concerning the same belt, he issued Citation No. 3206321 

alleging that there were no fire hose outlets for a distance of 

approximately 900 feet along the belt. In addition, he issued 

Citation No. 3206322 alleging that there was coal dust a quarter 

inch to 20 inches in depth, along the side and under the belt 

conveyor for a distance of approximately 900 feet. However, Delp 

did not describe the presence of any specific condition which 

NOUld make the event of ignition reasonably likely to occur. 

Accordingly, I find that it has not been established that the 

violation herein was significant and substantial. 

The violation herein could lead to the propagation of a 

fire, which could travel along a belt. Further, persons would 

not be warned of the fire by either an auditory or visual alarm. 

I conclude that the violation was of a moderately high level of 

gravity. There has been no evidence adduced as to the length of 

tima the violation existed prior to Delp's inspection. Nor has 

there been any evidence adduced to predicate a conclusion that 

Respondent knew or should reasonably nave been expected to know 

that the violation had occurred. ~ccordingly, I conclude that 

Respondent herein operated with only a low degree of negligence. 

I find that the penalty herein of $75 is appropriate. 

2103 
Citation No. 3206325 

On February 1, 199-0, Delp issued Citation No. 3206325. 

According to Delp, Respondent violated the approved Ventilation 

Plan, ("the Plan") by: (1) removing two concrete stoppings that 

had been in the No. 5 intake entry, and replacing them with 

"loosely hanging" line brattice cloth (Tr. 141), and (2) 

installing a brattice cloth over an opening in an overcast.l/ 

The Plan, with regard to permanent stoppings, provides that-they 

are "constructed of 4" x 8" x 16" concrete block and pilaster." 

(sic) (Government 5, Attachment BJ. The Plan further provides 

that "Temporary stoppings are constructed o:t mining timbers, 

l" x 2" x 2" boards, and approved brattice material." 

(Government 5, Attachment CJ. 

Respondent did not rebut or impeach Delp's testimony that 

brattice cloth, that did not have any boards, were instaLled at 

locations that previously contained permanent stoppings. Brattice 

material is clearly not permitted by the Plan to be used as a 

permanent stopping, as by its terms, only concrete blocks and 

"pilaster" (sic) are allowed. In essence, according to Couch, the 

line brattices were installed for use only as temporary stoppings. 

There is no evidence Respondent applied for approval to change its 

Plan and replace permanent stoppings with temporary ones. Further, 

according to the Plan, temporary stoppings are to be constructed of 

boards and approved brattice material.2/ In contrast, although the 

brattices herein were approved flame-resistant, they were hung 

without boards. Thus, I find that Respondent did violate its 

Ventilation Plan. 

The Citation issued by Delp indicates the violation to be 

significant and substantial. No evidence was adduced specifically with regard to the likelihood of a hazard contributed to by 

the violation, resulting in an injury. (See, Mathies, supra). 

In general, Delp indicated that the hazards with regard to the 

violation herein are the same as was discussed by him in connection with Citation No.3206457. In this previous testimony Delp 

set forth the hazards of belt and intake air mixing. However, 

!I For the reason set forth in the disposition of Citation 

No. 3206457, infra, I find that it nas not been established that 

the installation of a line brattice to cover an opening in an 

overcast violates the ventilation Plan. 

~/ I interpret Government Exhibit 5, Attachment C, as indicating 

that the Plan requires brattices to be used in conjunction with 

boards. 

2104 
these hazards were created because the brattice cloth did not 

provide a perfect seal where it replaced permanent stoppings. In 

contrast, the record is lacking sufficient evidence as to the 

hazards contributed to by the violation herein, i.e., the 

utilization, oer se of a material that is not permitted by the Plan 

for use as a Stopping. Accordingly, I conclude that it has not 

been established that the violation herein was significant and 

substantial. 

According to Couch, the permanent stoppings were removed to 

allow equipment .to be taken in and out the entry in question to 

rebuild supports necessitated by a bad roof condition. Further, 

he indicated that permanent stoppings, called £or by the Plan, 

were not rebuilt, as an overcast was placed where the temporary 

stopping was located. Couch also indicated that curtains, of the 

same material as the brattices in issue, are used at the face to 

deflect air. I find that Respondent in utilizing the cloth in 

question, acted pursuant to a good faith belief that the material 

was allowed by the Plan. I conclude that Respondent was 

negligent to a low degree. I find that the gravity of the violation to be moderate. I find that a penalty of $75 is appropriate 

for this violation. 

Citation No. 3206326 

Delp issued Citation No. 3206326 alleging a violation of 

30 C.F.R. § 75.507-l(a) in that a power center was located in the 

No. 2 Entry approximately 60 feet outby Survey Spad No. 148. 

Delp in his testimony indicated that the power center was not 

permissible and was in a return entry ventilated by return air. 

Section 75.507-l(a) prohibits nonpermissible equipment in return 

air. 

Essentially, according to Delp, return air from the 

008 Section, where coal was being mined, coursed through Return 

Entry No. 2 where the power center was located. According to 

Delp, the air in Entry No. 2 is considered return air as it comes 

off the 008 Section where coal was being mined. Respondent did 

not rebut or otherwise impeach the credibly of this te~timony. 

Further, Delp's definition of return air is consistent with that 

contained in A Dictionary of Mining, Mineral, and Related Terms 

(Department of Interior, 1968) ("DMMRT"), which defines "return 

air" as " •.. 2.b. Air which has circulated the workings and is 

flowing towards the main mine £an." Accordingly, I find that 

Respondent herein did violate Section 75.507-l(a), supra, as 

alleged. 

According to Delp, there would be a "probable" ignition 

source if dust or gad is carried from the working section and 

3ets into the the nonpermissible power center which has various 

electrical components operating at 12,470 volts (Tr. 183). He 

indicated that the cable supplying electricity to the power 

2105 
center does experience shorting, and he knows of situations where 

high voltage cables have blown up causing sparks and heat. 

However, no evidence was adduced with regard to the ~ondition of 

the specific cable that was connected to the power center. 

Delp s~ated that with an accumulation of methane and float 

dust from the face, there would be "more potential" for ignition 

and explosion CTr. 184). He indicated that testing by him within 

60 feet of the cited area, revealed methane at concentrations of 

.01 percent or 3180 cubic feet per 24 hour period in the 

No. 2 Entry, and 2400 cubic feet per 24 hour period in the 

No. 1 Entry. However, he indicated on cross-examination that 

"what counts" is the percentage of methane and the percentages 

present were not combustible (Tr. 194). I find this evidence 

fails to establish that the violation was significant and 

substantial. 

According to Delp, the location of the power center ~as 

obvious. Respondent did not rebut or impeach this conclusion. I 

find the neg£igence herein be moderate. I conclude the gravity 

was moderate. I find that a penalty of $100 is proper for the 

violation found herein. 

ORDER 

It is ORDERED that Citation No. 3206457 be DISMISSED. It is 

further ORDERED that Citation Nos. 3206452, 3206454, 3206323, 

3206325, and 3206326 be AMENDED to reflect the fact that the 

violations therein are not significant and substantial. It is 

further ORDERED that Respondent pay $650, within 30 days of this 

Decision, as a Civil Penalty for the violations found herein. 

bwe~ Administrative Law Judge 

Distribution: 

Thomas A. Grooms, Esq., Office of the Solicitor, u. s. Department 

of Labor, 2002 Richard Jones Road, ·suite B-201, Nashville, TN 

37215 (Certified Mail) 

Neville Smith, Esq., Smith & Smith, 110 Lawyer Street, Manchester, 

KY 40962 CCertif ied Mail) 

dcp 

2106 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 2 61990 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

CYPRUS EMERALD RESOURCES 

CORPORATION, 

Respondent 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 90-67 

A. C. No. 36-05466-03721 

Emerald No. 1 Mine 

Appearances: Anita D. Eve, Esq., Office of the Solicitor, U. s. 

Department of Labor, Philadelphia, Pennsylvania, 

for the Secretary; · 

Michael R. Peelish, Esq., Cyprus Minerals Company, 

Englewood, Colorado, for the Respondent. 

Before: Judge Weisberger 

Statement of the Case 

In this proceeding the Secretary (Petitioner) filed a 

petition for an assessment of civil penalty alleging a violation 

by the Operator (Respondent) of 30 C.F.R § 75.316. Subsequently, 

the Respondent filed a timely Answer, and pursuant to notice, the 

case was heard in Washington, Pennsylvania, on July 31, 1990. At 

the hearing, Walter Daniel and Robert Newhouse testified for 

Petitioner. Dennis Dobosh and Edmund Francis Mcintire testified 

for Respondent. Respondent filed a Posthearing Brief on 

October 11, 1990. On October 18, 1990, Petitioner's Findings of 

Fact, Conclusions of Law, and Brief were received. 

Stioulations 

At the hearing, the Parties entered into the following 

stipulations: 

1. Cy?rus Emerald Resources Corporation is the owner 

and operator of tha Ewerald No. L Mine locaced in 

Greene County, Pennsylvania. 

2. Cyprus Emerald Resources Corporation and its 

Emerald No. 1 Mine are subject to the jurisdiction of 

the Federal Mine Safety and Health Act of 1977. 

2107 
3. The Administrative Law Judge of the Federal Mine 

Safety and Health Review Commission has jurisdiction 

over this case oursuant to Section 105 of the Act. ~ . . . 

4. A ·copy of Section 104 and Citation No. 3098272 was 

properly served by Walter Daniel, a duly authorized 

representative of the Secretary of Labor, U. S. 

Department of Labor, upon an agent of Respondent, 

Cyprus Emerald Resources Corporation, on July 26, 1989, 

at the time and place stated therein and may be 

admitted into evidence for the purpose of establishing 

its issuance, not necessarily for the truthfulness or 

relevancy of any statements asserted therein. 

5. Cyprus Emerald Resources Corporation is a large 

operator and the subject mine is a large mine. 

6. Cyprus Emerald Resources Corporation's operation·s 

affect interstate commerce. 

7. In the 24 months preceding the issuance of Citation 

No. 3098272 there were 700 violations cited in the 

subject mine. 

8. The assessment of a Civil Penalty in this 

proceeding will not affect the coal mine operator's 

ability to continue with business. (sic). 

9. Emerald Mine No. 1 is a gassy mine in that it 

lib·arates more than 2, 000, 000 cubic feet of metnane or 

other explosive gasses during the 24-hour period during 

mining operations and is under the five day spot 

inspection cycle mandated by Section 103(i) of the Mine 

Act, 30 u.s.c. Section 813, Section Ci). 

Findings of Fact and Discussion 

I. 

On July 26, 1989, at the 4 Gate Section of Respondent's 

Emerald Mine No. 1, intake air coursing inby Entry No. 2 

ventilated the face, and then was returned from the face through 

a 16 inch diameter slider tube that had been placed inside a 

20 inch diameter tube, and which extended from the 20 inch main 

tube inby towards the face. Walter Daniel, an MSHA Inspector, 

inspected this area on July 26, 1989, and issued a Section 104(a) 

Citation alleging a violation of 30 C.F.R. § 75.316. 

Essentially, he testified that the equipment used by the 

Respondent was in violation of its ventilation plan, wh-ich 

provides, under the page heading AUXILIARY F~N INFORMATION, inter 

alia, the following language under the paragraph heading •rype and 

Diameter Tubing "Tubing is made of rigid plastic. They are 18" 

diameter tubes, with 16" diameter slider tubes." (Government 

2108 
page 19). Essentially, it is Respondent's position that the 

language in the ventilation plan sets forth only minimum 

standards, and accordingly, it was not in violation of the plan 

by supstituting a 20 inch diameter tube in lieu of a 18 inch 

tube • .::/ · 

Dennis Dobosh, Respondent's safety supervisor, testified 

that although he was not responsible for dratting the language 

contained in the Ventilation Plan, ("the Plan"), he was nontheless responsible for its content. He testified that the Plan 

sets forth language indicating that the tubing is of 18 inch in 

diameter with 16 inch diameter slider tubes, as these were the 

diameter of the tubes that were being used, and thus the use of 

the larger tubes was not precluded. 

I find that the clear language of the ventilation plan, in 

setting forth the type and diameter of tuning, refers to 18 inch 

diameter tubes with 16 inch slider tubes. Thus, inasmuch as 

Respondent herein was using a 20 inch diameter tube, which was 

not in conformity with the ventilation plan, Respondent violated 

Section 75.316, supra, as alleged in the issued Citation. 

I/ Essentially, it is also Respondent's position that it was in 

7ull compliance with the ventilation plan. The plan requires 

6000 cubic feet a minute of air to ventilate the working face 

wnere a continuous mining machine is being operated, and only 

"perceptible movement" (Respondent Exhibit No. 2, page 2) in a 

worging place where a continuous miner is not in operation. In 

this connection, Respondent's Mine Examiner's Report of Daily 

Insoections indicates that on July 26, ·1989, at S:UO a.m., the 

face was ventilated with 9630 cubic feet per minute. At the time 

the Citation was issued the continuous miner was being repaired 

in the fourth crosscut outby the face. There is no direct 

evidence of the actual air flow at the face. However, Daniel 

indicated that the readings he took at the 20 inch· and 16 inch 

tubes reveled air movements of less than 6000 and less than 

5000 cubic feet a minute respectively. Thus, it could easily be 

inf erred that there was at least perceptible movement of air at 

the face at the time of the Citation, and accordingly Respondent 

was in compliance with the portion of its plan requiring minimum 

ventilation of air. This fact is taken into account in evaluating the gravity of the violation, and the degree of 

Respondent's negligence. (III., infra). However, it is not a 

successiul defense, as it does not reout the fact of the violation itself. In this connection, the violation is predicateci 

upon the usage of a 20 inch diameter tube with a 16 inch diameter 

slider tube, whereas the Ventilation Plan unequivocally states 

that the type of tubes are 18 inches in diameter with 16 iach 

diameter sliders. 

2109 
II. 

According to Daniel the violation herein is to be characterized as significant and substantial. Robert w. Newhouse, a 

supervisory coal mine inspector, essentially concurred in this 

characterization. The subject mine has a history of ignitions, 

and is a gassy mine. Daniel indicated that on July 26, prior to 

the issuance of the citation in question, testing performed by 

him at a point approximately 20 feet outby the face, revealed 

methane in a concentration of .9 percent, which he termed "borderline" CTr. 39). Both Daniel and Newhouse opined that there were 

would be more methane found at the face as that is where it is 

generated. As explained by Daniel and Newhouse, some of the 

intake air coursing inby Entry No. 2 towards the face would be 

diverted from the face and would enter the 20 inch diameter tube, 

as a consequence of a significant gap in its opening created by 

tne placement therein of a tube whose diameter was only 16 inches. 

rhe gap created is clearly double that which would have resulted 

had a 16 inch f lexiole tube neen placed inside an 18 inch diameter 

tube as provided by the ventilation plan.2/ In this connact1on, an 

inspection report indicated that at 5:00 a.m., on July 26, Entry 

No. 2 face was found to have .7 percent methane, even though it was 

being ventilated with an air flow of 9630 cubic feet per minute. 

Dobosh in his cross-examination conceded that if this air flow 

would be decreased it could result in a methane problem. Thus, it 

is clear that the placement herein of a 16 inch diameter slider 

tube within a 20 inch tube contributed to the hazard of a methane 

build up, which could have led to a build up in an explosive range 

of between 5 and 15 percent. 

~/ I do not place much weight on the testimony of Newhouse that 

placing a 16 inch diameter tube within a 20 inch diameter tube 

resulted in a 40 percent loss of air to the face. This conclusion 

is predicated upon the testimony of Daniel with regard to a comparison of the air flow through the 16 inch and 20 inch diameter tubes. 

However, the testimony of Daniel can not be relied on on this point 

as he did not testify to the exact specific air flow, but merely 

indicated that at the 20 inch tube it was less than 6000 and at the 

16 inch tube less than 5000. Similarly, I do not place much weight 

on the testimony of Dobosh that the air lost in using a 20 inch 

tube to contain a 16 inch slider tube is only 16 percent, as this 

was based solely upon a calculation of the difference in the area 

of the opening to each tuoe, and dia not take into account any 

difference in air resistance. Nor did it taxe into account the 

impact oi the difference in distance between the opening of each 

tube and the ventilation fan. It is noted, in this connection, 

that the slider or innertube protruded from the outer tube inby 

towards the face, but the evidence is lacking as to this distance. 

2i10 
In order for the violation herein to be considered to be 

significant and substantial, Petitioner must establish that there 

was " ••• a reasonable likelihood that the hazard contributed to 

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

Steel Mining Incorporated 6 FMSHRC 1834 at 1836 (1984)). In this 

connection Daniel testified that, considering the gassy nature of 

the mine, and the reading of .9 percent found on the date of the 

citation, there "could have been" an ignition upon a resumption 

and continuation of mining (Tr. 41). Newhouse opined that inasmuch as air was not properly getting to the face, a methane 

ignition was "very likely" (Tr. 106). He also indicated that an 

ignition could "~ery easily" burn someone <Tr. 106). According 

to Daniel, two to four miners could have been injured. However, 

at the time of the violation, the continuous miner was being 

repaired, and Daniel indicated that there were no ignition sources 

in-No. 2 Entry face. Further, the evidence has not convincingly 

established that, once mining would have resumed, it would have 

been reasonably likely, for the violative condition to have bled 

sufficient air flow, to the extent that the amount of air going to 

the face, would not have been sufficient to render harmless methane 

ther~in. In this connection, I note that the evidence is not 

aoequate to predicate a specific finding as to the precise loss of 

volume of air to the face occasioned by the gap between the 20 inch 

outer tube and the 16 inch slider tube. I tnus conclude that it 

has not been established that it was reasonably likely that any 

hazard of methane accumulation, contributed to by the violation, 

would have resulted in an injury producing event. I thus conclude 

that it has not been established that the violation herein was 

significant and substantial. ( c. f., U.S. Steel Mining Corporation, 

supra) • 

III. 

I accept the testimony of Dobish that, in essence, Respondent 

believed that having a lo inch slider tube within a 20 inch tube 

was not a violation of its Ventilation Plan. There is no evidence 

that this belief was not in good faith. I thus conclude that there 

was only a low degree of negligence on the part of the Respondent 

with regard to the v~olation herein. Taking into account the facts 

that there were no ~gnition sources at the face at the time of the 

violative condition, and that the air flow at the face met the 

5tandard set forth in the ventilation plan, but that the violation 

could have led to a build up of methane at the face, I conclude 

that the violation herein was of a moderate level of gravity. I 

conclude that a penalty of $150 is appropriate for the violation 

found herein. 

2111 
ORDER 

It is hereby ORDERED that the Respondent shall, within 

30 days of this Decision, _pay $150 as a ci~il penaliy for the 

violation found herein. It is further ORDERED that Citation 

No. 3098272 be AMENDED to reflect the fact that it is not 

significant and substantial. 

~We~ Administrative Law Judge 

Distribution: 

Anita D. Eve, Esq., Office of the Solicitor, u. S. Department of 

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

Philadelphia, ·PA 19104 (Certified Mail) 

Michael R. Peelish, Esq., Cyprus Minerals Company, 9100 East 

Mineral Circle, Englewood, CO 80112 (Certified Mail) 

dcp 

2112 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

ALOE COAL COMPANY, 

Complainant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA) 

Respondent 

and 

UNITED MINE WORKERS OF 

AMERICA, 

Intervenor 

OCT 2 91990 

DECISION 

DISCRIMINATION PROCEEDING 

Docket No. PENN 90-242-R 

Citation No. 3092481; 8/24/90 

Docket No. PENN 90-243-R 

Citation No. 3092482; 8/24/90 

Aloe Strips 

Mine ID 36-00799 

Appearances: David J. Laurent, Esq., Polito & Smock, P.C., 

Pittsburgh, Pennsylvania, for the Contestant; 

Edward Fitch, Esq., Office of the Solicitor, U. S. 

Department of Labor, Arlington, Virginia for the 

Respondent; 

Paul Girdany, Esq., Healey and Whitehill, 

Pittsburgh, Pennsylvania for the Intervenor. 

Before: Judge Weisberger 

Statement of the Case 

These cases are before me based on a Motion for an Expedited 

hearing filed on August 29, 1990, contesting the issuance of 

Citation No. 3092481 and Order No. 3092482. On August 29, 1990, 

pursuant to a telephone conference call on that date between the 

undersigned, Counsel for both Parties, and Counsel for the 

International Union, United Mine Workers of America (UMWA), the 

casas were set for hearing in Pittsburgh, Pennsylvania, on 

September 6, 1990. On September 4, 1990, the International 

Union, UMWA, filed a Notice of Intervention. On September 4, 

1990, Intervenor initiated a conference call between the undersigned and Counsel for the other Parties, and requested an 

adjournment of tne hearing scheduled for September 6, 1990, on 

the grounds that a possible witness would not be available on 

that date. N~ither Counsel fer Contescant nor Counsel for 

Respondent objected to this request and it was granted. These 

cases were rescheduled and were heard in Pittsburgh, Pennsylvania, 

2113 
on September 28, 1990. At the hearing, Charles P. Swingle and 

Grant MacSwain testified for Contestant. Frederick A. Miller, 

Thomas Rabbitt, Greg Shuba, and _Thomas Semak testified for 

Intervenor. 

On September 26, 1990, Respondent filed a Prehearing Brier. 

At the hearing on September 28, 1990, Intervenor filed a 

Memorandum of Law in opposition to the Notice of Contest. At the 

hearing, Contestant requested and was granted 10 days to file a 

Posthearing Memorandum of Law, which was filed on October 9, 1990. 

At the hearing, Contestant did not object to the request by 

Respondent to be allowed 10 days to respond to Contestant's 

Posthearing Memorandum of Law, and accordingly, Intervenor and 

Respondent were granted the right to file a Reply within 20 days 

from the date of the hearing. On October 12, 1990, Intervenor 

filed a Memorandum of Law in response to Aloe Coal Company's 

Posthearing Brief. Respondent did not file any Reply. 

Stipulations and Findings of Fact 

The Parties have stipulated to the following relevant facts: 

1. Aloe operates a bituminous coal strip mine in 

Allegheny and ~ashington Counties, Pennsylvania.l/ 

2. On July 10, 1989, Aloe's employees, who were 

represented by the UMwA for purposes of collective 

bargaining, commenced a strike at the Aloe 

Mine.2/ Shortly thereafter, Aloe resumed mining 

operations with thirteen (13) replacement workers and 

six (6) Striking employees who had crossed the picket 

line and returned to work.~/ 

I/ At the hearing, it was stipulated that Aloe Holding Company 

Ts owned by six members of the Aloe family, and the Aloe Holding 

Company owned 100 percent of the stock of Aloe Coal Company and 

Boich Mining Company, _both of which are operating companies that 

mine bituminous coal. It was further stipulated that the six 

members of the Aloe family that own Aloe Holding Company individually own Robinson Coal Company which is engaged in the mining of 

coal. It also was stipulated that the Aloe family members and/or 

the Aloe Holding Company have other interests that are not 

pertinent to these proceedings. 

2/ I find that as of the date of the hearing, these employees 

were still on strike, and that the last negotiating session was 

March 13, 1990. 

3/ I find that Aloe presently has a full complement of 

active workers and is not planning to expand its work force. 

2114 
3. Aloe converted the thirte8n (13) replacement 

workers to permanent status and by letter dated 

March 23, 1990, the Regional Director for Region Six of 

the National Labor Relations Board ("B6ard") stated 

that Aloe had lawfully converted these individuals to 

permanent status and had lawfully notified the UMwA of 

this fact subsequent to December 8, 1989. 

4. Both Aloe and the UMWA have been enjoined by the 

Courts of Common Pleas of both Wasnington and Allegheny 

Counties, Pennsylvania, from engaging in certain acts 

of picket line misconduct, including mass picketing at 

Aloe's operations in those Counties. Additionally, the 

Court of Common Pleas of Washington County, 

Pennsylvania has found the UMWA in contempt of its 

permanent injunction.~/ The Parties, however, agree 

that the aforesaid injunctions do not bar access to 

mine property by UMWA representatives to accompany a 

federal ins~ector on an inspection if it is determined 

in these proceedings that Section 103(f) of the Mine 

Safety and Health Act of 1977 <"Act"), 30 u.s.c. 

Section 813(f) provides the UMWA with such participation rights. 

5. On July 5, 1988, while the UMWA members at Aloe 

were continuing to work without a contract and the UMWA 

and Aloe were engaged in negotiations, a settlement 

agreement was entered into with the National Labor 

Relations Board as a result of charges which tne UMWA 

filed against Aloe alleging unfair labor practices at_ 

5-CA-20892. This case was closed on October 6, 1989.~/ 

6. On September 25, 1989, another settlement agreement 

was entered into with the National Labor Relations 

Board at 6-CA-21989 as the result of charges which the 

UMWA had filed against Aloe alleging unfair laoor 

practices. Said September 25, 1989 settlement agreement provided that "the ongoing economic strike at the 

Aloe Mine was converted to an unfair labor practice 

strike effective July 30, 1989 and will continue to be 

~1 It was stipulated that true and correct copies of the 

Injunction and Contempt Orders were attached to the Stipulations 

as Joint Exhibit 2-4. These documents were admitted in evidence 

as Joint Exhibits 5 and 6. 

5/ It was further stioulated that a true and correct copy of the 

~losing compliance let~er and the Settlement Agreement (with 

change attached) was attached to the Parties' Stipulations as 

Exhibits 5 and 6. These documents were admitted in evidence as 

Joint Exhibits 5 and 6. 

2115 
an unfair labor practice strike until the Employer 

complies with all the terms of the instant settlement 

agreement." This case was closed on December 11, 1989.~/ . 

7. On March 22, 1989, a third settlement agreement was 

entered into with the National Labor Relations Board at 

6-CA-22304 as the result of charges which the UMWA had 

filed against Aloe alleging unfair labor practices.~/ 

8. There a~e currently pending before the National 

Labor Relations Board six (6) charges filed by tne UMWA 

against Aloe alleging unfair labor practices committed 

by Aloe. These Charges are numbered 6-CA-22871, 22898, 

22960, 22971(1-2), and 23006.~/ 

9. On June 8, 1990, Aloe filed a certification petition with the Board seeking to have an election ~o 

ascertain the UMWA's continued status as the bargaining 

representative for its employees. The petition is 

still pending, but an election has not yet been 

scheduled.~/ 

10. By letter dated ~ugust 15, 1990, the Regional 

Director for Region Six of the Board dismissed charges 

filed by the UMWA which alleged that Aloe had, on 

June 6, 1990, unlawfully withdrawn recognition from the 

UMWA as the collective bargaining representative of 

Aloe's employers. This decision is presently being 

appealed by the UMWA 

b/ It was further stipulated that true and correct copies of the 

Settlement Agreement (with change attached) and the closing 

compliance letter was attached to the Parties' Stipulations as 

Exhibits 7 and 8. These have been admitted in evidence as Joint 

Exhibits 7 and 8. 

7/ It was further s~ipulated that a true and correct copy of the 

Settlement Agreemen~ (with change attached) was attached to the 

Stipulations as Exhibit 9. This was admitted in evidence as 

Joint Exhibit 9. 

~/ It was stipulated that a true and correct copies of these 

changes are attached to the Stipulations as Exhibit 10. This was 

admitted in evidence as Joint Exhibit 10. 

9/ It was stipulated that a copy of the Petition was attached to 

the Stipulation as Exhibit 11. This was admitted in evidence as 

Joint Exhibit 11. 

2116 
11. All but one of Aloe's twelve (12) UMWA strikers 

have applied for and are receiving unemployment compensation benefits under the Pennsylvania's Unemployment 

Compensation Act, 43 P.S. Section 751 et seq., on the 

basis that since they have been per;,nanently replaced, 

the employer/employee relationsnip has been permanently 

severed.~/ 

12. Prior to July 10, 1989, the UMWA and Local 

Union 9636's health and safety committee was, pursuant 

to 30 C.F.R. Section 40.3, the designated representative of the miners at the Aloe Mine. 

13. On or about August 17, 1990, the UMWA advised the 

District Manager of the Mine Safety and Health 

Administration ("MSHA") District No. 2 that two of 

Aloe's UMWA strikers (Gary Metz and Frederick Al 

Miller) had designated Greg Suba,11/ a UMWA employe~, 

as their μwalkaround" representative within the meaning 

of Section 103(f) of the Act, and the regulations published at 30 C.F.R. Section 40.3. The UMWA also 

advised the District Manager that two other 

International UMWA officials, Tom Rabbitt and Larry 

P3squale, would serve as alternate representatives in 

the event that Mr. Suba was unable to fulfill his 

duties.12/ 

14. •rhe UMWA members who designated Messrs. Suba, 

Rabbitt, and Pasquale as their representatives are 

among those who have been on strike at the Aloe mine 

since July 10, 1989. 

15. By letter dated August 22, 1990, counsel for Aloe 

notified the District Manager for MSHA's District No. 2 that 

it would refuse to allow the UMWA representatives to 

accompany an MSHA Inspector during an inspection of the Aloe 

Mine.~/ 

10/ It was stipulated that true and correct copies of these 

benefits were attached to the Stipulations as Exhibits 13-23. 

These were admitted in evidence as Joint Exhibit 13-23. 

11/ The correct spelling is Shuba 

12/ It was stipulated that a true and correct copy of the 

Authorization Form was attached to the Stipulations as Exhibit 24. 

This has been admitted in evidence as Joint Exhibit 24. 

~/ It was stipulated that a true and correct copy of the letter 

was attached to the Stipulations as Exhibit 25. This was admitt2d 

in evidence as Joint Exhibit 25. 

2117 
16. By letter dated August 23, 1990, Aloe notified the 

District Manager for MSHA's District No. 2 that all of 

Aloe's non-striking employees had selected Charles P. 

Swingle (an engineer for Aloe) as their representative 

in accordance with 30 C.F.R. Section 40.3.~/ 

17. On Friday, August 24, 1990, Federal Mine Inspector 

John Mull arrived at the Aloe Mine for purposes of 

conducting an inspection pursuant to Section 103(g) of 

the Act, 30 U.S.C. Section 813(g). At the time, 

Inspector Mull indicated that Mr. Suba wished to 

accompany him as a "walkaround" pursuant to 30 C.F.R. 

Section 40.3. 

18. Aloe refused to permit Mr. Suba or any other UMWA 

official or representative to enter the Mine and 

accompany Inspector Mull during the inspection. 

19. Thereafter, Inspector Mull issued Citation 

No. 3092481. The Citation stated in pertinent part as 

follows: 

During the course of a 103Cg) inspection 

conducted on August 24, 1990, by the writer, 

Grant P. MacSwain, Vice President, refused to 

permit Greg Shuba (sic), a recognized representative of the miners in accordance with Part 40.3 

Title 30 C.F.R., access to mine property to 

accompany this Inspector on a (sic) inspection. 

Aloe Coal Company also indicated in a letter 

dated August 22, 1990, from its attorney, 

J. Michael Klutch, to Jennings D. Breedon, MSHA 

District Manager, stating, "Aloe will refuse 

access to its facilities to members, officers, and 

other representatives of the UMWA for the purpose 

of accompanying inspectors from the Federal Mine 

Safety and Health Administration as a 'walkaround' 

on health and safety inspections." 

20. After a reasonable time to allow abatement of the 

Citation, Inspector Mull issued Order No. 3092482. The 

Order stated in pertinent part as follows: 

14/ It was stipulated that a true and correct ~opy of the letter 

was attached to the Stipulations as Exhibit 26. This letter was 

admitted in evidence as Joint Exhibit 26. At the hearing, it was 

further stipulatea that on August 23, 1990, representatives of 

MSHA were aware of the substance of Exhibit 26, and that the 

inspector saw a copy oi that document prior to issuing the 

Citation on August 24. 

2118 
No apparent effort was made by the operator to ?ermit Greg Shuba Csic), a recognized 

representative of the miners, from traveling 

to mine property to accompany this inspector 

on this inspection. Grant MacSwain informed 

this inspector that Aloe would not permit 

Greg Shuba (sic) on mine property. 

21. By letter dated Tuesday, August 28, 1990, Roger 

w. Uhazie, Acting District Manager for MSHA's District 

No. 2, advised Aloe's President, David Aloe, that 

unless Aloe filed a Notice of Contest with the Federal 

Mine Safety and Health Review Commission ("Commission") 

on or before August 31, 1990, and unless Aloe requested 

an expedited resolution of this matter, MSHA would 

implement Section llO(b) of the Act and propose a civil 

penalty of up to One Thousand Dollars ($1,000.00) for 

each day that a failure to correct the cited violat1on 

continued. Mr. Uhazie also advised Mr. Aloe that if 

Aloe filed a Notice of Contest seeking an expedited 

resolution of this matter, MSHA would hold the 

Section llOCb> sanctions in abeyance pending a decision 

from the Commission on its Notice of Contest.15/ 

Summary of the Facts 

On July 10, 1989, the employees of Aloe Coal Company 

("Aloe"), who were represented by the United Mine Workers of 

~~erica CUMWA) for purposes of collective bargaining, commenced a 

strike at the Aloe Mine. As of the date of the hearing the 

striKe had not settled, and there have not been any negotiations 

since March 1990. Aloe has continued operations with 13 replacement workers, who have been converted to permanent status, and 

6 striking employees who returned to work. 

On or about August 17, 1990, the UMWA advised the District 

Manager of the Mine Safety and Health Administration CMSHA), 

District No. 2, that two of the UMWA strikers had designated Greg 

Shuba, an UMWA employee; as their walkaround representative for 

purposes of Section 103(f) of the Federal Mine Safety and Health 

Act of 1977 (the Act). 

15/ It was stipulated that a true and correct copy of 

Mr. Uhazie's letter was attached to the Stipulations as 

Exhibit 29. This letter was admitted in evidence as Joint 

Exhibit 29. 

2119 
By letter dated August 23, 1990, Aloe notified the District 

Manager for ~SHA District No. 2 that all of Aloe's nonstriking 

employees had selected Charles Swingle as their walkaround 

representative. On August 24, 1990, MSHA Inspector John Mull 

arrived at the Aloe Mine to conduct an inspection, pursuant to a 

request filed by UMWA. Mull indicated that Shuoa wished to 

accompany him as a "walkaround." Aloe refused to allow Shuba to 

enter the mine as a walkaround. Mull issued a Citation, and 

thereafter a Section 104(0) Order alleging that Aloe improperly 

denied Shuba access to the mine to accompany him on an inspection, 

and that, accordingly, Aloe was in violation of Section 103(f) of 

the Act. 

Discussion 

As pertinent Section 103(f) of the Act provides " ••• a 

reoresentative authorized by his miners • • • . " shall be given 

an-opportunity to accompany a representative of the Secretary 

during an ins9ection of a mine. Thus, the clear language of 

Section 103(f), supra, indicates that only those representatives 

who are authorized by "miners," have a right to accompany an 

inspector. Section 3(g) of the Act defines "miner," as " .•• any 

individual working in a coal or other mine;." Thus the issue 

presented for resolution is whether the striking employees of Aloe 

wno selected Shuba to represent them as a walkaround, are considered 

to be "miners" as defined in the Act. 

Intervenor asserts that the Act is remedial in nature, and 

thus must be interpreted broadly. In 8Ssence, Intervenor and 

Respondent argue that the striking miners have an expectation of 

returning to work, and they and their representative have a vital 

interest in maintaining safety of the work place. For the reasons 

that follow, I reject these arguments. 

In deciding this case, I conclude that the statutory definition of a "miner," as set forth in Section 3(g) of the Act, is 

controlling. There is an absence of binding legal authority that 

would permit an expansion of the statutory def in1tion of a 

"miner" beyond its plain meaning.16/ In contrast, the 10th and 

D.C. Circuit Court~ of Appeal haverefused to extena tne term 

"miner" beyond the clear wording of the statutory definition. 

16/ In Clinchfield Coal Company, Docket No. VA 89-687-R, which 

is relied on by Respondent and Intervenor, Judge Broderick at a 

hearing, in a contest of a Closure Order, sustained a Motion by 

UMWA to intervene on behalf of striking employees. I am not 

bound by a ruling of a fellow Commission Judge. Further, 

Clinchfield is inapplicable to the instant case (n.17, infra). 

2120 
In Emery Mining Corporation v. Secretary of Labor, 

783 F.2d. 155 (10th Cir. 1986), the operator had refused to 

compensate its miner employees for training they received prior 

to their having been hired. In holding that the operator's 

policy did not violate the Act, the Court held that although the 

Act requires training for "new miners," none of the complainants 

therein were miners or employed by the operator at the time that 

they took their training. Thus, the Court refused to extend the 

plain meaning of the statutory definition of the term "miner," 

reasoning as follows: "When, as here, a statue is clear on its 

face, we can not expand the Act beyond its plain meaning." 

(Emery, supra, at 159). I find that this reasoning applies with 

equal force to the case at bar. Inasmuch as the Act on its face 

clearly limits the use of the term "miner" to those individuals 

"working" in a mine, it can not be expanded beyond its plain 

meaning to encompass individuals on strike as they are clearly 

not working in the mine. (See, also, National Industrial Sand 

Association v. Marshall, 601 F.2d 689 (3rd Cir. 1979), wherein 

the Court upheld regulations requiring, inter alia, the training 

of none.mployees working in a mine, and hela, at 704, that, with 

regard to the definition of a ''miner" as contained in the Act, 

"As its standard, the statue looks to whether one works in a 

mine, not whether one is an employee or nonemployee or whether 

one is involved in extraction or nonextraction operations.") 

In Brock on behalf of Williams v. Peabody Coal Company, 

822 F.2d 1134 (D.C. Cir., 1987), an operator of a mine, in 

rehiring laid-off employees, passed over some individuals at the 

top of the list because they had not received safety training. 

The Court indicated that the issue for resolution was whether the 

laid-off individuals who had been passed over, qualified as miners 

while they were laid-off. The Court rejected the argument of the 

Secretary that a miner is one who is contractually entitled to 

employment. The Court took cognizance of the definition of a 

"miner" as contained in the Act, and noted the " ••• obvious fact 

that, at the moment when the operators decided not to recall them, 

they were not •working in a coal ••• mine,' but were instead on 

layoff." (Peabody, supra, at 1140). (See, Westmoreland Coal 

Company, 11 FMSHRC 960(1989) wherein the Commission, in finding 

that individuals who obtained training at their own expense during a 

layoff were not entitled to reimbursement, held that individuals on 

a layoff status are not miners. See also, Emery, supra, wherein the 

Court, in reversing the Order of the Commission requiring an 

operator to compensate laid-off miners for prehire training that 

occurred while they were laid-off, found that it was uncontested 

that the laid-off individuals were not miners or employees and 

refused to extend the statutory definition oi a miner to encompass 

individuals who were in a laid-off status). 

2121 
I conclude that a plain reading of the statutory definition 

of "miner" excludes laid-off employees as well as those on strike 

as both are not working in a mine.~/ Indeed, following the case 

law established by Peabody, supra, Emery, suora, and Westmoreland, 

supra, it might be concluded that if an individual not working in a 

mine due to being to laid-off solely by virtue of an act of the 

Operator, is not to be considered a "miner," then, a fortiori, an 

individual who takes action in removing himself from working in a 

mine by striking, is certainly not to be considered within the 

definition of a "miner." 

Inasmuch as the employees who appointed Shuba to represent 

them were on strike they were not miners within the Act. 

Accordingly Shuba was not a representative of miners and thus did 

not have any right to serve as a walkaround.18; As such the 

Contest is sustained. ~ 

II/ I do not find Clinchfield Coal Company, supra, relied on by 

both Respondent and Intervenor to be applicable to the £acts of 

the instant case. In Clinchf ield, supra, the operator sought to 

challenge a Closure Order issued by an MSHA Inspector, and the 

UMWA so~ght to intervene on behalf of striking employees. The 

opetator contended that the striking employees should not be 

considered "miners" under the Act. Judge Broderick in allowing 

UMWA to intervene reasoned that a decision on the contest of a 

Closure Order may affect the interests of miners who are on 

strike and are represented by the UMWA, and concluded that the 

striking miners were "miners" under Section 3(g} of the ~ct. 

However, as noted correctly by Contestant, Judge Broderick 

indicated that his conclusion was not "open-ended," and relied on 

evidence that the employees therein were only on scrike for 

4 months, and the employer and the Union were presently engaged 

in negotiations. In contrast, in the case at bar, the strikers 

have been permanently replaced, the strike has lasted for over 

14 months, and the Parties are not negotiating. 

18/ It is significant to note that the safety interests of those 

miners who were working at the mine on a day-to-day oasis are 

being protected, inasmuch as all the nonstriking employees 

selected a walkaround to represent tneir interests during MSHA 

Inspections. 

2122 
ORDER 

It is ORDERED that the Notice of Contest is SUSTAINED, and 

it is further ORDERED that Citation No. 3092481 and Order 

No. 3092482 be DISMISSED. 

Distribution: 

Avra,n 

Administrative 

J< 

Weisberger ~ Law Judge 

David J. Laurent, Esq., Polito & Smock, P.C., Four Gateway Center, 

Suite 400, Pittsburgh, PA 15222 (Certified Mail} 

Edward Fitch, Esq., Office of the Solicitor, u. s. Depar~ment of 

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

Mail} 

Paul Girdany, Esq., Healey and Whitehill, Law and Finance Building, 

5th Floor, Pittsburgh, PA 15219 (Certified Mail} 

dcp 

2123 
FEl)ERAL MINE SAFETY AND HEALTH ltEVIEW, COMMISS·10N 

1730 K STREET NW. 6TH FLOOR 

WASHINGTON, D.C. 20006 

October 29, 1990 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner· 

v. 

DRUMMOND COMPANY 

INCORPORATED, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. SE 90-82 

A. C. No. 01-00323-03633 

Chetopa Mine 

DECISION APPROVING SETTLEMENT 

ORDER TO PAY 

Before: Judge Merlin 

The parties have filed a joint motion to approve settlement 

of the one violation involved in this case. The originally 

assessed penalty was $1,000 and the proposed settlement is $600. 

The parties have discussed the violation in light of the six 

statutory criteria set forth in section llO(i) of the Federal 

Mine Safety and Health Act of 1977. 

Citation No. 3020731 was issued for a violation of 30 C.F.R. 

§ 75.316 because a travelway was not maintained around a partial 

mining area due to roof falls near the survey station. The 

approved ventilation plan requires that travel be maintained 

until the area is sealed. The parties represent that the 

proposed reduction is justified because negligence and gravity 

were less than originally estimated. According to the parties, 

the operator was travelling and examining the return air course 

up to the back portion of the roof fall and the air course beyond 

the roof fall. However, the partial area of the air course where 

the roof fall was located, was not being traveled because the 

operator erroneously believed that it did not have to provide a 

travelway throughout the entire return air course. The operator 

thought that in order to comply with the plan, it only was 

required to examine behind the gob area. The parties advise that 

the operator is now aware of its responsibilities under the plan 

and that it immediately engaged in a good faith effort to correct 

the situation. They also aver that gravity is reduced because 

the number of miners affected by the violation was three or four 

instead of the eleven originally identified. I accept the 

foregoing representations and find that gravity and negligence 

were less than originally thought and approve the recommended 

settlement which remains a substantial amount. 

2124 
Accordingly, it is ORDERED that the proposed settlement be 

APPROVED and the operator PAY $600 within 30 days of the date of 

this decision. 

- \ ~ . 

\~ ... 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

William Lawson, Esq., Office of the Solicitor, u. s. Department 

of Labor, suite 201, 2015 Second Avenue North, Birmingham, AL 

35203 (Certified Mail) 

J. Fred McDuff, Esq., Drummond Company Inc., P. o. Box 10246, 

Birmingham, AL 35202 (Certified Mail) 

Ms. Joyce Hanula, Legal Assistant, UMWA, 900 15th Street, N.W., 

Washington, DC 20005 (Certified Mail) 

/gl 

2125 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

October 29, 1990 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

DRUMMOND COMPANY 

INCORPORATED, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. SE 90-83 

A. C. No. 01-02776-03510 

Bibby Mine 

DECISION APPROVING SETTLEMENT 

ORDER TO PAY 

Before: Judge Merlin 

The parties have filed a joint motion to approve settlement 

of the one violation involved in this case. The originally 

assessed penalty was $800 and the proposed settlement is $400. 

The parties have discussed the violation in light of the six 

statutory criteria set forth in section llO(i) of the Federal 

Mine Safety and Health Act of 1977. 

Citation No. 3018301 was issued for a violation of 30 C.F.R. 

§ 75.220 because roof bolt spacing in the entry and adjacent 

crosscuts ranged from 5-~ to 10 feet. However, the roof control 

plan required that installed roof bolts be no further than 5 feet 

apart. The parties represent that the reduction is justified 

because the negligence and gravity were not as high as originally 

estimated. According to the parties, this is a small mine which 

had been examined by the same inspector for approximately four 

months. During that entire period, this was the only instance 

where the inspector found the roof bolts to be in excess of 5 

feet apart. In addition, the parties advise that the number of 

miners affected was three or four instead of the six originally 

noted. Finally, the parties aver that the two roof bolters 

responsible for the violation were given disciplinary warnings in 

accordance with the operator's progressive disciplinary program. 

I accept the foregoing representations and approve the 

recommended settlement which remains a substantial amount. 

2126 
Accordingly, it is ORDERED that the proposed settlement be 

APPROVED and_ the operator PAY $400 within 30 days of the date of 

this decision. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

William Lawson, Esq., Office of the Solicitor, u. s. Department 

of Labor, suite 201, 2015 Second Avenue North, Birmingham, AL 

35203 (Certified Mail) 

J. Fred McDuff, Esq., Drummond Coal Inc., P. o. Box 10246, 

Birmingham, AL 35202 (Certified Mail) 

Ms. Joyce Hanula, Legal Assistant, UMWA, 900 15th Street, N.W., 

Washington, DC 20005 (Certified Mail) 

/gl 

2127 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

October 29, 1990 

DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

Docket No. WEST 90-314-D 

RANDY SHERBROOK, 

Complainant 

v. 

T.I.C. WYOMING, 

Respondent 

Dry Fork Mine 

DECISION APPROVING SETTLEMENT 

ORDER TO PAY 

ORDER OF DISMISSAL 

Before: Judge Merlin 

On October 15, 1990, the parties filed a joint motion to 

approve settlement in the above-captioned discrimination case. 

The motion sets forth the proposed agreement as follows: 

The parties having conferred and agreed and the 

Secretary having been authorized by respondent to 

represent such agreement to the Commission, hereby move 

as follows: 

1. Respondent was charged in the Complaint of 

Discrimination filed on or about August 4, 1990, with a 

violation of section 105(c) of the Mine Safety and 

Health Act, for terminating the employment of Randy 

Sherbrook. 

2. Respondent has agreed, prior to the filing of the 

answer in this matter, to settle the existing dispute 

which is the subject of this action. Respondent will 

pay to Randy Sherbrook $1,240.00 in full settlement of 

all matters in issue in this case. ' 

3. Respondent has agreed to completely expunge from 

the personnel file of Randy Sherbrook, all comments and 

references to the circumstances involved in the May 24, 

1990 incident at the Dry Fork Mine which led to the 

discharge of Mr. Sherbrook. 

4. Accordingly, petitioner hereby agrees to withdraw 

her request for any further relief on behalf of Randy 

Sherbrook, withdraws her request for the assessment of 

2128 
a civil penalty and reinstatement of Randy Sherbrook, 

and requests that this matter be dismissed. Such 

request is to be effective upon the approval of this 

settlement agreement by the Federal Mine Safety and 

Health Review Commission. 

5. Petitioner and Respondent agree that Randy 

Sherbrook will sign a release of all claims arising out 

of this action, prior to submission of this Motion to 

the Commission, and in the event that he fails to sign 

such release, the settlement will not be effective, and 

the above amount will not be paid. Submission of this 

agreement to the Commission is a certification by 

Petitioner that such release has been signed. 

6. Each party hereby agrees to bear its own fees and 

other expenses incurred by such party in connection 

with any stage of this proceeding. 

WHEREFORE, the parties move the Commission to 

approve the above settlement agreement pursuant to 29 

C.F.R. § 2700.30, Rules of Procedure, FMSHRC, and to 

order payment of $1240.00 to Randy Sherbrook within ten 

days of the filing of an order approving settlement, 

and to dismiss the complaint filed in this action. 

I find the settlement appropriate under the circumstances 

and note that the motion has been signed by all the parties 

including the complainant. 

Accordingly, it is ORDERED that the proposed settlement be 

APPROVED and the operator PAY $1,240 to Randy Sherbrook within 10 

days of the date of this order. 

It is further ORDERED that this case be DISMISSED. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Margaret A. Miller, Esq., Office of the Solicitor, u. s. Department of Labor, 1585 Federal Office Building, 1961 stout Street, 

Denver, CO 80294 (Certified Mail) 

Richard T. Casson, Esq., P. o. Box 774608, 401 Lincoln Ave., 

Steamboat Springs, CO 80477 (Certified Mail) 

2129 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 311990 

CHARLES T. SMITH, 

Complainant 

DISCRIMINATION PROCEEDING 

v. Docket No. KENT 90-30-D 

MSHA Case No. BARB CD 89-27 

KEM COAL COMPANY, 

Respondent No. 25 Prep Plant 

Appearances: 

Before: 

DECISION 

Michaels. Endicott, Esq., Ed Spencer's Law--

Offices, Paintsville, Kentucky, for the 

Complainant; 

Timothy Joe Walker, Esq., Reese, Lang & Breeding, 

P.S.C., London, Kentucky, for the Respondent. 

Judge Fauver 

Complainant brought this action under § 105(c) of the 

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

et seq., alleging a discriminatory discharge. 

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 a coal washing facility, known as 

No. 25 Preparation Plant, where it processes coal for sale or use 

in or substantially affecting interstate commerce. 

2. Complainant was employed at the plant as a bulldozer 

operator from October, 1988, until July 17, 1989, when he was 

discharged. 

3. His principal duty was to push piles of coal into 

feeders at the bottom of tall stacking tubes. Coal was carried 

by conveyor belts into the stackers, 20 to 25 feet high, each 

having windows at various levels. The coal would fall through 

the stacker to the lowest window and from there out onto a cone 

shape pile that would' form on the ground. Feeders at the base of 

the stacker vibrated the material through a hopper and onto a 

conveyor belt leading to the washing plant. 

2130 
6. Ordinarily, a cone of coal would form at the base of a 

stacker and above the feeder, so that the system would mechanically feed the coal through the hopper onto the conveyor belt to 

the washer. The bulldozer operator was there to push coal into 

the feeders as needed, g.g., when there was spillage or when the 

cone of coal on the ground had not accumulated enough for the 

system to feed itself. 

7. At times the lower windows or the chutes inside the 

stacker would become clogged by wet coal or mud. Instead of 

falling from the. lower windows and directly onto the coal pile, 

the coal would then fall from the higher windows, creating a 

potentially dangerous situation for the bulldozer operator. 

Because the bulldozer operated at irregular and steep angles, 

falling coal could strike its windows, headlights, and other 

equipment. Depending upon the angle of exposure of the bulldozer, the height and quantity of falling coal, the bulldozer 

operator could be severely injured by falling coal, g.g:~ if coal 

broke a window and either entered the cab or sent flying glass 

into the cab. 

8. When a stacker became clogged, it was necessary to 

unclog the material. This was accomplished by shooting high 

pressure water into the stacker from the top, or if this did not 

work, by suspending a worker down into the stacker on ropes, to 

dig out the obstruction manually. 

9. In mid-June, 1989, Complainant was operating a bulldozer, when the stacker became clogged. Coal was falling from 

the top windows striking the bulldozer, beating against its 

windows. Complainant was concerned for his safety, and used his 

CB to call the control room operator in the plant. He reached 

Tim Miller and told him about the safety problem and asked him to 

ask Complainant's foreman, Henry Halcomb, what he should do. 

Miller did so, and told Complainant that Halcomb said, "Go ahead 

and run it." Tr. 14. Then falling coal broke a window next to 

Complainant. He became more frightened and told Miller, "Tell 

him [Halcomb] that this dozer is getting the windows knocked out 

of it and we don't have enough coal to push." Miller spoke to 

Halcomb again, and told Complainant that Halcomb said, "Go ahead 

and run it." Complainant continued to run the bulldozer. Then 

its lights went out, because falling coal broke the lighting 

wires. He called Miller again, to tell him the wires were 

broken, and asked him what Halcomb wanted him to do. Miller told 

Complainant that Halcomb said if he did not want to run it, park 

it, go home, and he would have a mechanic fit it. This would 

have meant a loss of pay. Complainant pulled the bulldozer out 

of the coal, fixed the lights, drove back, and continued pushing 

coal. When asked at the hearing why he repaired the lights and 

resumed pushing coal, Complainant testified, "Henry [Halcomb] was 

in a hurry to push coal. He wanted me pushing coal." Tr. 14. 

2131 
10. Later in June, 1989, Complainant complained to the 

foreman, Halcomb, face to face, stating that he was putting his 

life in danger by having him push coal when coal was striking the 

bulldozer. The foreman replied that Complainant's job was to 

push coal. 

11. During the time that Halcomb was Complainant's foreman 

on the second shift, about 2 months, Halcomb harassed Complainant 

in many ways. He made him the butt of joking and teasing over a 

married woman who worked in a nearby grocery store, he ordered 

him to make coffee, which was not his job, he denied him a lunch 

break a number of times, and once when Complainant was accompanied in his truck by a boy who got fishing bait for him, 

Halcomb, mistaking the boy for a girl, asked Complainant who was 

the girl in his truck, implying he was seeing a girlfriend 

although he was married. Complainant complained to the mine 

superintendent about Halcomb's harassment. 

12. On July 14, 1989, the incline belt broke, shutting down 

plant operations. The plant superintendent supervised the job of 

installing a new belt section. Everyone on the crew was allowed 

a lunch break except Complainant. The superintendent told 

Complainant that Halcomb would have someone relieve him for 

lunch, but when Complainant called Halcomb, about 1-1/2 hours 1 before the end of the shift, for relief so he could have lunch, 

Halcomb told him, "It's too close to quitting time now, you don't 

get to eat." Tr. 184-185. 

13. The July 14 incident the latest of many -- took 

Complainant to a turning point in his relationship with his 

foreman. The next day, Saturday, June 15, Complainant arrived 

early and went to the superintendent's office, hoping to lay out 

his complaints about Halcomb's mistreatment of him, including 

endangering him in the operation of the bulldozer, harassing him, 

embarrassing him, and discriminatorily denying him lunch breaks. 

The superintendent was not there. 

14. Complainant then went to the training room, where the 

employees usually gathBred before beginning their workshift. 

This was shortly before 3:00 p.m., the starting time of Complainant's shift. Complainant met Halcomb there and told him 

that his harassing of him would have to stop, and that he was 

going to see the superintendent about Halcomb's mistreatment of 

him. He told him about being denied a lunch break the night 

before. Halcomb said the superintendent had supervised the crew 

that night, and any complaint about lunch should be made to the 

1 A bulldozer was needed whenever the stackers were in 

operation. Complainant could not take a lunch break unless 

Halcomb sent a bulldozer operator to relieve him. 

2132 
superintendent, not Halcomb. After the crew members left the 

room, Complainant told Halcomb: "· •• [t]hat this putting me in 

a unsafe condition was going to stop, and he said it wasn't 

unsafe. That's when I told him that I was going to have •.. to 

let the Mine Safety and aealth Administration find out what he 

was doing." Tr. 35. Halcomb told him not to threaten him. 

Complainant told Halcomb about the coal striking his dozer and 

that Halcomb had told him to keep pushing coal. Halcomb said 

that was "hearsay," and he had not said that. Complainant said, 

"What do you mean you didn't say that?" and added, "I told that 

control room operator what was going on and he told you, then he 

come back and told me what you said." Halcomb repeated, "That's 

hearsay." Complainant said, "That can't be hearsay, it's his 

job." Halcomb said, "No, it didn't happen that way," and Complainant called him a "lying son of bitch." Tr. 24. Complainant 

immediately apologized: "· •• [J]ust when the words left my 

mouth, I said, 'I apologize,' I said, 'I shouldn't have said 

that. ' He said, 'It's already been said now • • . "' -Tr. 24. 

Halcomb then told Complainant, "You can go to the house" 

(Tr. 27), meaning that he was suspended without pay, and that he 

would have to see the superintendent the following Monday. 

15. Halcomb then contacted the plant superintendent, Roger 

Cox, concerning the incident. 

16. Roger Cox is an ordained minister who held two positions, i.g., mine superintendent and pastor of a local church. 

17. Halcomb was aware of, or could reasonably expect, the 

superintendent/minister's sensitivity to profane language and his 

philosophy of supporting his supervisors. Halcomb shaped his 

factual account to Cox concerning the argument with Complainant, 

to injure Complainant in Cox's eyes. The account that Halcomb 

gave Cox was that (A) Complainant cursed him in front of the 

crew, and (B) Complainant called Halcomb a "God dam son of a 

bitching liar." Halcomb's account was inaccurate as to points 

(A) and (B) in that: he and Complainant were alone when Complainant swore at him and in that Complainant called Halcomb "a 

lying son of bitch," not "a God dam son of a bitching liar." 

Halcomb omitted the fact that Complainant had immediately apologized to Halcomb. Halcomb told Cox that, in the argument Complainant complained about losing a dinner break on Friday, and 

complained about danger in being required by Halcomb to run the 

bulldozer under falling coal. Halcomb did not tell Cox that 

Complainant had said he was going to complain to MSHA concerning 

his safety complaints about Halcomb. 

18. On Monday morning, July 17, 1989, Complainant saw Cox, 

who "asked him what the problem was and why the incident took 

place'' (Tr. 46). Cox testified that Complainant told him that 

Halcomb was endangering his life by forcing him to push coal 

2133 
under falling coal, that he was harassing him, denying him lunch 

breaks, and tbat Complainant "couldn't take it anymore." Tr. 

45-46. Cox asked Complainant whether he had sworn at Halcomb and 

Complainant said he had. Cox fired him at that meeting. 

19. To Cox, cursing a foreman in front of his crew was a 

dischargeable offense. He testified that, if Halcomb and Complainant had been alone, "just between him and Henry, it could 

have probably been resolved," that is, without discharging 

Complainant. Tr. 65. 

20. Cox did not question any of the crew members about the 

incident before he fired Complainant. He did not know that 

Complainant and Halcomb were alone when Complainant swore at him. 

21. Cox had known Complaint for 8 or 9 years, had hired him 

in another plant where Cox worked, and hired him to work_for 

Respondent. He regarded him as a good employee, and had no 

reason to discipline him before the incident on July 15, 1989. 

DISCUSSION WITH FURTHER FINDINGS 

Section 105(c) of the Act 2 was enacted to ensure that 

miners will play an active role in the enforcement of the Act by 

protecting them against discrimination for exercising any of 

. their rights under the Act. A key protection for this purpose is 

the prevention of retaliation against a miner who brings to an 

2 Section 105(c) (1) provides: 

" 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 miners or applicant for employment is the subject of medical evaluations and 

potential transfer under a standard published pursuant to section 

101 or because such miner, representative of miners or applicant 

for employment has instituted or caused to be instituted any 

proceeding under or related to this Act or has testified or is 

about to testify in any such proceeding, or because of the 

exercise by such miner, representative of miners or applicant for 

employment on behalf of himself or others of any statutory right 

afforded by this Act." 

2134 
operator's attention or ~he attention of MSHA hazardous conditions in the.workplace. . · 

Generally, in order to establish a prima facie case of 

discrimination under § 105(c) of the Mine Act, a miner must prove 

that (1) he or she engaged in protected activity and (2) the 

adverse action complained of was motivated in any part by that 

activity. Consolidation Coal Company, 2 FMSHRC 2768 (1980), 

rev'd on other grounds sub nom. Consolidation Coal Company v. 

Marshall, 663 F.2d 1211 (3d Cir. 1981); Hecla-Day Mines 

Corporation, 6 FMSHRC 1842 (1984); Phelps Dodge Corp., 3 FMSHRC 

2508, 2510-2511 (1981), rev'd on other grounds sub nom. Donovan 

v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983). The operator may rebut the prima facie case by showing either that no 

protected activity occurred or that the adverse action was in no 

way motivated by protected activity. If an operator cannot rebut 

the prima facie case in this manner it may nevertheless affirmatively defend by proving that it was also motivated by €he 

miner's unprotected activities and would have taken the adverse 

action on those grounds alone. The operator bears the burden of 

proof with regard to the affirmative defense. Haro v. Magma 

Copper Company, supra. The ultimate burden of persuasion does 

not shift from the complainant. United Castle Coal Company, 

supra. See also Boich v. FMSHRC, 719 F.2d 194 (6th Cir. 1983); 

and NLRB v. Transportation Management Corporation, 462 U.S. 393 

(1983) (where the Supreme Court approved the NLRB's virtually 

identical analysis for discrimination cases arising under the 

National Labor Relations Act). 

Applying these principles, I find that Respondent violated 

§ 105(c) of the Act by discriminatory adverse action, i.g., 

suspending Complainant without pay on July 15, 1989, and discharging him on July 17, 1989. 

Complainant's safety complaints to his foreman, about beirig 

required to operate a bulldozer under falling coal, were protected activities. These included his safety complaints through 

the control room operator to his foreman in mid-June, 1989, his 

face-to-face complaint to his foreman after that, in June, 1989, 

and, on July 15, 1989, his reiteration of these complaints to his 

foreman and his statement that he would complain to MSHA about 

the foreman's endangering him by having him run the bulldozer 

under falling coal. 

3 S. Rep. No. 95-181, 95th Cong., 1st Sess., at 35-36 

(1977), U.S. Code Cong. & Admin. News 1977, pp. 3401, 3435-3436, 

reprinted as Senate Subcommittee on Labor, Committee on Human 

Resources, 95th Cong., 2d Sess. Legislative History of the 

Federal Mine Safety and Health Act of 1977 (1978). 

2135 
The foreman's suspension of Complainant without pay on 

July 15, 1989., was adverse action by management and led to 

further adverse action. I find that the foreman was motivated in 

part to retaliate against Complainant because of his safety 

complaints and his statement that he intended to complain to MSHA 

about his safety complaints against the foreman. The foreman's 

discriminatory conduct against Complainant included: 

(1) suspending him without pay; and 

(2) giving a distorted factual account of the incident 

to the mine superintendent with the intention or 

expectation of influencing the superintendent to 

discharge complainant. 

Halcomb's distorted version to the superintendent was that 

Complainant had called Halcomb a "God damn son of a bitching 

liar" in front of his crew. Complainant did not use a religious 

epithet, or the language attributed by Halcomb, and he swore at 

Halcomb (calling him "a lying son of a bitch") when they were 

alone, and immediately apologized. Halcomb's account to the 

superintendent omitted the fact that Complainant immediately 

apologized to Halcomb and the fact that Complainant said he would 

report Halcomb's unsafe practices to MSHA. 

Halcomb knew, or could reasonably expect, that the superintendent, who is a practicing pastor, would be offended by the 

religious epithet he substituted for Complainant's actual 

language, and that the superintendent would consider cursing a 

foreman in front of his crew a dischargeable offense. 

The impact of the foreman's distorted account to the mine 

superintendent is clear from the superintendent's testimony: 

(1) The superintendent fired Complainant "for 

insubordination and for cussing Mr. Halcomb out" 

(Tr. 63). 

(2) The superintendent believed that Complainant 

"called Henry these names in front of Henry's 

people he.had to manage, and .•• it placed him 

in a very bad position" (Tr. 63); "I think, you 

know, you can't get any lower as far as wording is 

concerned and the names he called him. It was 

just very degrading to Henry as a foreman, or as a 

man, and I don't think it left me any choice" (Tr. 

44) • 

(3) Had the superintendent known that Complainant 

swore at Mr. Halcomb when they were alone -- "just 

between him and Henry, it could have probably been 

2136 
resolved," that is, without discharging 

Complainant (Tr. 65) • · · 

(4) The superintendent did not know•that Complainant 

had immediately.apologized to Mr. Halcomb. 

The fact that the superintendent was deceived by the foreman 

does not alter the fact that management, through its foreman, 

took discriminatory action agairist Complainant that resulted in 

his discharge. 

I therefore hold that Respondent violated § 105(c) (1) of the 

Act by suspending and discharging Complainant. 

CONCLUSIONS OF LAW 

1. The judge has jurisdiction over this proceeding_. 

2. Respondent violated § 105(c) (1) of the Act by·suspending 

Complainant without pay on July 15, 1989, and by dis.charging him · 

on July 17, 1989. 

3. Complainant is entitled to reinstatement with back pay, 

interest, and his litigation costs, including a reasonable 

attorney fee. 

ORDER 

WHEREFORE IT IS ORDERED that: 

1. Respondent shall, within 30 days of this decision, 

reinstate Complainant in its employment, at the same position, 

pay, assignment, and with all other conditions and benefits of 

employment that he would have received had he not been suspended 

on July 15, 1989, and discharged on July 17, 1989, with no break 

in service concerning any employment benefit or purpose. 

2. Within 15 days of this decision, counsel for the parties 

shall confer in an effort to stipulate the amount of Complainant's back pay, interest, and litigation costs, including a 

reasonable attorney fee. Such stiptilaticin shall not prejudice 

Respondent's right to seek review of this decision. If the 

parties agree on the amount of monetary relief, counsel for 

Complainant shall file a stipulated proposed order for monetary 

relief within 30 days of this decision. If they do not agree on 

such matters, counsel for the Complainant shall file a proposed 

order of monetary relief within 30 days of this decision, and 

Respondent shall have 10 days to reply to it. If appropriate, a 

further hearing shall be held on issues of fact concerning monetary relief. 

2137 
3. This decision shall not be a final disposition of this 

proceeding until a supplemental decision is entered on monetary 

relief. 

Distribution: 

(,;/dJ_~ :=r~vvv William Fauver 

Administrative Law Judge 

Michaels. Endicott, Esq., Ed Spencer's Law Offices, P.O. 

Box 1176, Paintsville, KY 41240 (Certified Mail) 

Timothy Joe Walker, Esq., Reece, Lang and Breeding, P.S.C., P.O. 

Drawer 5087, London, KY 40745-5087 {Certified Mail) 

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2138 
1=EDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

October 31, 1990 

DUININCK COMPANIES, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

CONTEST PROCEEDING 

Docket No. LAKE 90-126-R 

Citation No. 3445314: 5/9/90 

KK003 Crushing Unit 

Mine ID 21-02845 

ORDER OF DISMISSAL 

Before: Judge Merlin 

This case is a notice of contest filed by the operator 

seeking to challenge the issuance of a citation by an inspector 

of the Mine Safety and Health Administration under section 104(a) 

of the Federal Mine Safety and Health Act of 1977. 

The citation was issued on May 9, 1990. The contest was not 

received by the Commission until September 4, 1990. However, as 

set forth in the order dated September 24, 1990, previously 

entered herein, the contest was treated as filed on August 20, 

1990, because that was the date of receipt indicated by the MSHA 

stamp on the letter from operator's counsel. In its most recent 

response the operator advises that its notice of contest was 

received by the Solicitor on August 10, 1990. The photocopy of 

the return receipt attached by the operator supports the date 

given in its motion. ~-Acicordingly, the date of filing now is 

accepted as August 10. 

There still remains for determination the question whether 

the contest was timely filed. In his answer the Solicitor moves 

to dismiss on the ground that the contest was untimely. Unfortunately, the Solicitor cites neither applicable statutory 

provisions nor relevant case law. This experienced Solicitor 

knows better. However, timeliness clearly is in issue, and 

therefore, the order of September 24 required the operator to 

explain its position on the matter. In its response the operator alleges that because it had been given an extension to abate 

to August 15, it believed it had until then to file its notice of 

contest. 

2139 
Section 105(d) of the Mine Act, 30 u.s.c. § 815(d), provides 

in relevant part: 

If, within 30 days of receipt thereof, an operator 

of a coal or other mine notifies the Secretary that he 

intends to contest the issuance or modification of an 

order issued under section 104, or citation or a notification of proposed assessment of a penalty issued 

under subsection (a) or (b) of this section, or the 

reasonableness of the length of abatement time fixed in 

a citation or modification thereof issued under section 

104 * * * the Secretary shall immediately advise the 

Commission of such notification and the Commission 

shall afford an opportunity for a hearing * * * * 

A long line of cases going back to the Interior Board of 

Mine Operation Appeals has held that cases contesting the_ 

issuance of a citation must be brought within the statutorily 

prescribed 30 days or be dismissed. Freeman Coal Mining Corporation, 1 MSHC 1001 (1970); Consolidation Coal Co., 1 MSHC 1029 

(1972); Island Creek Coal Co. v. Mine Workers, 1 MSHC 1029 

(1979); aff'd by the Commission, 1 FMSHRC 989 (August 1979); Amax 

Chemical Corp., 4 FMSHRC 1161 (June 1982); Rivco Dredging Corp., 

10 FMSHRC 889 (July 1988); See Also, Peabody Coal Co., 11 

FMSHRC, 2068 (October 1989); Big Horn Calcium Company, 12 FMSHRC 

463 (March 1990) ; Energy Fuels Mining Company, 12 FMSHRC 1484 

(July 1990). The time limitation for contesting issuance of 

citations must therefore, be viewed as jurisdictional. 

The notice of contest in this case was filed three months 

after the citation was issued which was two months late. The 

Mine Act and applicable regulations afford no basis to excuse 

tardiness because the operator and its counsel mistakenly believe that the time for abatement extends the time to challenge 

the citation. Nor does relevant case law suggest support for 

any such approach. Accordingly, the operator's argument cannot 

be accepted. 

The operator shou-ld be aware, however, that the issues it 

seeks to raise here may be litigated in the penalty suit when 

MSHA proposes a monetary assessment. 

In light of the foregoing, it is ORDERED that this case be, 

and is hereby, DISMISSED. 

Paul Merlin 

Chief Administrative Law Judge 

2140 
ADMINISTRATIVE LAW JUDGE ORDER 

FEDERAL MINE SAFETY AND HEALTH RWJEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

April 21, 1989 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

Docket No. VA 89-20-M 

A. C. No. 44-00071-05511 

v. Loudoun Quarries 

CHANTILLY CRUSHED STONE, 

INC. I 

Before: 

Respondent 

DECISION ~.PPROVING SETTLEMENT"·' 

ORDER TO PAY 

Judge Merlin 

This case is a petition for the assessment of civil 

penalties filed by the Secretary of Labor against Chantilly 

Crushed Stone, Inc., pursuant to the Federal Mine Safety and 

Health Act of 1977. The Solicitor has submitted a motion to 

approve settlement of the two violations involved in this case. 

The penalties were originally assessed at $20,000 and the 

proposed settlement is for $20,000. 

The two subject citations were issued for violations of the 

Act after an investigation of a double fatality. The fatalities 

occurred when two miners who were trying to free a blockage of 

materials in a crusher-run bin became engulfed by the materials 

and were suffocated. 

Citation No. 2852778 dated July 7, 1988, and modified on 

July 28, 1988, was 1siued for a violation of 30 C.F.R. 

§ 56.16002(c} recites as follows: 

"A double fatal accident occurred on 

7-5-88 at 10:55 AM when the primary crusher 

operator and a Euclid haul truck driver was 

engulfed in crushed material in a bin. These 

two employees and a thiro employee was [sic] 

working to dislodge bridged mat2rial insioe 

the bin without using safety belts and lines 

and the lines attended by another person. 

Safety belts and lines were provided by the 

c 011~p any. " 

30 C.F.~. § 5G.1G002(c) p~oviJ2s: 

2141 
(c) Where persons are required to enter 

any facility listed in this standard for 

maintenance or inspection purposes, ladders, 

platforms, or staging shall be provided. No 

person shall enter the facility until the 

supply and discharge of materials have ceased 

and the supply and discharge equipment is 

locked out. Persons entering the facility 

shall wear a safety belt or harness equipped 

with a lifeline suitably fastened. A second 

person, similarly equipped, shall be 

stationed near where the lifeline is fastened 

and shall constantly adjust it or keep it 

tight as needed, with minimum slack. 

Citation No. 2852779 dated July 7, 1988, and modified on 

July 28, 1988, was issued for a violation of 30 C.F.R. 

§ 56.16002(a)(l) recites as follows: 

"A double fatal accident occurred on 

7-5-88 at 10:55 AM when the primary crusher 

operator and a Euclid haul truck driver was 

engulfed in crushed material in a bin. A 

safe access was not provided to this bin 

where the hang ups that occurs frequently in 

this bin could safely be disloged [sic]." 

30 C.F.R. § 56.16002(a)(l) provides: 

(a) Bins, hoppers, silos, tanks, and 

surge piles, where loose unconsolidated 

materials are stored, handled or transferred 

shall be 

Cl) Equipped with mechanical devices or 

other effective means of handling materials 

so that during normal operations persons are 

not required to enter or work where they are 

exposed to entrapment by the caving or 

sliding of materials; and 

* * * * * The MSHA Accident Investigation Report describes the 

accident in pertinent part as follows: 

Duane Brady, primary crusher operator, 

and Lester Cross, Euclid operator, reported 

for work on July 5, 1988, at 6:00 am, their 

regular star ting time. 1'he daily routine 

proceeded without i~cident until approximately 10:30 am, when Duane Brady * * * discover2d a blockage in the crusher-run bin 

2142 
where the material had completely filled the 

bin to its capacity of approximately 50 tons. 

A blockage in this bin was not unusual, 

especially when the material being processed 

contained an abundant amount of clay as was 

the case the morning of the accident. This 

bin was known to plug as many as two or three 

times a day. * * * 

* * * The three men [including 

Michael Smith, another Euclid driver, who had 

joined Brady and Cross] evaluated the situation and agreed to shovel off the top of the 

mounded material so they would have room to 

work inside the bin on the blockage. They 

assumed the blockage was close to the discharge port of the bin and never suspected a 

bridged-over void in the material. As the 

three men stood on the material, Mr. Brady 

suggested they get their safety belts and 

lines before starting. One of the other two 

men suggested they dig awhile before descending to the storage shed to get the belts and 

lines. About th~ this time, Kenneth 

McSheffery, Euclid operator, arrived on the 

scene to assist the other three in clearing 

the blockage. The four men commenced to work 

as two teams--one team shoveled while the 

other team rested. After successfully 

leveling off the top, they dug a hole approximately 2 feet deep and 2 feet in diameter in 

what they determined to be the center of the 

bin. On completion of the hole, Duane Brady 

and Lester Cross began pushing a 3/4-inch 

diameter by 10-foot long section of pipe down 

through the material toward the blockage. 

They had difficulty forcing the pipe through 

the materi~l so they struck it with a shovel~ 

thus, loosening the material near the bin 

draw point. 

_ At this time, Bill Breitschwerdt, foreman, arrived at the scene. He had been in 

t~e off ice working on time cards and did not 

kn-ow the extent of the blockage. He traveled 

up the walkway and stood beside the shaker 

directly above the bin. He could not see 

inside the bin from this location, but he 

talked to the men. * * ·k 

* * * Messrs. Brady and Cross b.~go.n 

moving the pipe in a ci:ccular motion. ~ir. 

2143 
Smith stated he and Mr. McSheffery were 

resting on the side. Mr. Smith was standing 

in the corner and Mr. McSheffery was sitting 

on an I-beam. Mr. Breitschwerdt remained on 

the platform at the bottom of the bin to see 

if the blockage was caused by something 

protruding through the opening. 

The blockage suddenly broke free and 

engulfed the two men as they were pulled down 

into the bin by the flowing material. * * * 

* * * Messrs. Brady and Cross 

(victims) were completely covered by approximately 35 tons of material which remained in 

the bin. 

* * * * * 

This bin was not provided with any type 

of vibrator or mechanical device to eliminate 

these plug-ups. Safety belts and lines were 

provided and located in a nearby storage shed. 

The crusher operator who controlled the 

operation of the plant had a safety belt and 

line in his control room. The employees 

stated the crusher operator always utilized 

his belt and line anytime he went into the 

bin or worked around the crusher. 

The established company policy stated 

that employees working in a bin or hopper or 

in danger of falling shall wear a safety belt 

with a line and be tied off. This property 

was exempt from MSHA enforcement of Part 48 

training requirements~ however, each of the 

victims received more than the required 24 

hours of "New Miner" training in 1987. Mr. 

Brady received 27 hours of training, and 

Mr. Cross received 26-t hours of "New Miner" 

training. 

The ~ccident Investigation Report offered the following 

conclusions: 

The accident occurred as a result of the 

employees entering the bin, without wearing 

safety belts and lines and being tied off, in 

an attempt to dislodge plugged-up material. 

A combination of e~rors made by mine 

management and employees resultert in the 

death oE two employec~s and the entr2p;r,2nt of 

2144 
a third employee. Three of the four 

employees involved had performed the task of 

unclogging this particular bin many times in 

the past. Statements revealed normal procedure called for employees to get their 

safety belts and lines before entering the 

bin. However, the bin was filled above 

normal capacity and instead of climbing down 

into the bin, the employees climbed up on the 

piled material to shovel off the excess 

material so it was level with the top of the 

bin. The employees discussed how to go about 

unplugging it and decided to shovel the 

excess material level with the top of the bin 

before getting the necessary safety equipment. All involved failed to recognize the 

possibility of the existing void in the lower 

portion of the bin. The mine foreman had 

verbal contact with the employees, but failed 

to ask if they were tied off with safety 

belts and lines as was their normal 

procedure. 

Management was aware of the problems 

with plug-ups in this bin requiring employees 

to enter it on a regular basis to dislodge 

the material. Management did not equip this 

bin with any type of mechanical device or 

engineering controls to eliminate the need 

for employees to enter this bin to clear 

plug-ups as a new facility was under 

construction. 

In light of the foregoing, I conclude that the violations 

resulting from the failure to wear safety belts and from inadequate bin design represent the ultimate in gravity since there 

was a double fatality. 

With respect to negligence in the safety belt violation, the 

Solic:i tor in his sett-lement motion advises that the decedents' 

failure to wear safety belts resulted in their fatalities. 

According to the Solicitor, the operator and its agents were 

responsible for the enforcement of this and all other MSHA 

standards. · Hourly employees- who were interviewed during the investig~tion; knew that the operator insisted on safety belts with 

tie off lanyards being used when they went into the bin. The 

decedent crusher operator knew that safety belts and lanyards 

were required and spoke to that effect while in the bin. The 

decedent Buclid driver also apparently knew of the rule. Howev~r, th9 miners made a conscious decision not to wear safety 

bel~s and lanyards. The Solicitor further states that the foreman had no actual ~nowledg8 that safety b~lts and lanyar<ls were 

not ~~in3 used. He was in the min~ office when th2 rni~2rs 

2145 
entered the bin area and when he subsequently arrived on the 

scene, he climbed the nearest walkway to the double deck screens 

above the bin to inquire on their progress. It was not possible 

to observe the activities in the bin. from that location. It is 

also clear that the operator's employees had a very good working 

relationship i.e., helping each other out to get the job done. 

In the Solicitor's view, the positive attitude between the 

employees and the foreman may have provided the foreman with a 

false sense that there was no need to ask the miners if they were 

using safety belts believing that, of course, they would be. 

I accept the Solicitor's representation that the decedent 

miners were negligent in not wearing safety belts before they 

began to dig out the bin. It is clear from the record that the 

operator had trained these individuals and had a policy known to 

them which required the wearing of safety belts under these circumstances. Therefore, I do not believe the negligence of the 

decedents who were rank and file miners can be imputed tQ the 

operator. Southern Ohio Coal Company, 4 FMSHRC 1459 (1982). 

However, the record also indicates that the foreman was negligent. 

The Solicitor may well be correct in stating that the mutual 

respect between the miners and the foreman gave the foreman a 

false sense of security so that he did not ask the miners if they 

were using safety belts. But this does not exculpate either the 

foreman or the operator. Confronted with a situation where the 

men under his supervision were working in a very dangerous 

situation, the foreman should have made sure that safety belts 

were being used and he was negligent for not doing so. Also the 

foreman should have located himself in a place where he could 

have seen what was going on. Indeed, it does not appear that the 

foreman had input into the decisions about how to proceed to 

alleviate the blockage. It was left to the miners. In short, 

the foreman did not adequately supervise. Under such circumstances the foreman's negligence which left his workmen exposed 

to the existence of harm which was foreseeable, is attributable 

to the operator who placed the foreman in his position of 

responsibility. Wilmot Mining Company, 9 FMSHRC 684 (1987) 

affirmed in part, reversed in part, Case No. 87-3480 (6 Cir. 

5/17/88 unpublished); Naaco Mining Company, 3 FMSHRC 848 (1981). 

With respect to the bin, the Solicitor states that the 

operator's failure to act upon its knowledge that the bin was 

plugging frequently, also was a cause of the accident. According 

to the Solicitor, if the operator's engineering efforts had been 

focused upon an improved bin design, rather than upon construction of a ne~ plant, the events which culminated in the 

fatalities might not have occurred. I find persuasive the Solicitor's representations and analysis with respect to the bin. 

Plugging was not novel or unexpected. On the contrary, it was a 

recurring problem known to the operator who should have attended 

to it by creation and installatiori of a device which would have 

eliminated such plu3-ups. The operator must, th2refore, b~ found 

negligent with respect to this violation. 

2146 
Finally, the Solicitor advises that the operator is medium 

sized with a small history of prior violations and that the payment of the recommended penalties will not adversely affect its 

ability to iemain in business. 

Upon review of this matter I have determined that the 

recommended settlements are appropriate under the criteria of 

section llO(i) of the Act. In particular, imposition of the 

statutory maximum for each violation is warranted in view of the 

extreme gravity and the existence of fault. In this connection, 

it is also noted that the $10,000 penalty maximum ·has not been 

changed in the twenty years since adoption of the Federal Mine 

Health and Safety Act of 1969, Pub. L. No. 91-173, 83 Stat. 742, 

30 u. s. C. § 801 et seq. 

In light of the foregoing, the recommended settlements are 

APPROVED and the operator is ORDERED TO PAY $20,000 within 30 

days from the date of this decision. 

Chief Administrative Law Judge 

Distribution: 

Bdward H. Fitch, Esq., Office of the Solicitor, U. s. Department 

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

Mail) 

Ms. Rita G. Regino, Division of Chantilly Crushed Stone, Inc., · Box S, Chantilly, VA 22021 (Certified Mail) 

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2147 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 28 1990 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

ALONZO WALKER, 

Complainant 

v. 

DRAVO BASIC MATERIALS COMPANY, 

INC., 

AND 

R & S MATERIALS, INC., 

Respondents 

Before: Judge Fauver 

DISCRIMINATION PROCEEDING 

Docket No. SE 90-86-DM 

MSHA Case No. MD 90-03 

Selma Mine 

ORDER 

On August 10, 1990, I issued a decision finding that Alonzo 

Walker was discharged by R & S Materials, Inc., on January 10, 

1990, in violation of section 105(c) of the Federal Mine Safety 

and Health Act of 1977, 30 u.s.c. § 801 et seq. The parties were 

given additional time to submit proposed findings and conclusions 

on the issues of liability of Dravo Basic Materials Company, 

Inc., as a successor in interest, the civil penalty to be 

assessed, and the relief to be granted to Mr. Walker. 

The parties have filed a proposed settlement of these 

remaining issues. I find the settlement to be consistent with 

the record and the purposes of the Act. 

WHFREFORE IT IS ORDERED that: 

1. The joint motion to approve settlement is GRANTED. 

2. Within 30 days of this order, Alonzo Walker will be paid 

backpay from January 10, 1990, through April 22, 1990, in the 

amount of $5,890.63, plus $75.00 in interest. Such payment will 

be a full and complete accord and satisfaction of all monetary 

claims by Mr. Walker against Dravo and R & s arising out of his 

discharge on January 10, 1990. Dravo and R & s may allocate 

between themselves the responsibility for paying such backpay and 

interest. 

2148 
3. Alonzo Walker will be reinstated by Dravo to the 

position of dragline operator at the Selma Mine at the same rate 

of pay as he earned on January 10, 1990, i.g., $6.50 an hour. 

Reinstatement will occur at a date to be agreed upon by Dravo and 

Mr. Walker, but no later than October 29, 1990. Until such 

reinstatement, economic reinstatement of Mr. Walker as provided 

by the previous order of temporary reinstatement will continue. 

4. Dravo acknowledges that it will consider, and is ordered 

to consider, the discharge of Mr. Walker on January 10, 1990, as 

null and void and of no effect. The record of such discharge 

will not be considered in any way in any future employment 

decisions, including but not limited to promotions, pay 

increases, and layoff, nor in any disciplinary proceedings 

concerning Mr. Walker. 

5. Within 30 days of this order, Dravo and R & S shall pay 

a civil penalty of $200 for the violative discharge of --

Mr. Walker. Dravo and R & s may allocate between themselves the 

responsibility for paying such civil penalty. 

6. Upon compliance with this order, the Secretary shall 

file a satisfaction of order, signed by counsel for the Secretary 

and by Alonzo Walker. 

7. The decision of August 10, 1990, and this order shall 

not become a final disposition of this proceeding until a 

supplemental decision is issued. 

Distribution: 

u);JJ._:. 3-'IW VeAwi11iam Fauver 

Administrative Law Judge 

William Lawson, Esq., Office of the Solicitor, U.S. Department of 

Labor, 2015 Second Avenue North, Suite 201, Birmingham, AL 35203 

(Certified Mail) 

R. Henry Moore, Esq., Buchanan Ingersoll, P.C., USX Tower, 57th 

Floor, 600 Grant street, Pittsburgh, PA 15219 (Certified Mail) 

Harold A. Bowron, Jr., Esq., Balch and Bingham, 1710 North Sixth 

Avenue, P.O. Box 306, Birmingham, AL 35201 (Certified Mail) 

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2149 
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