JULY 1990 

COMMISSION DECISIONS 

07-24-90 

07-26-90 

07-27-90 

D.Thomas & G. Isaacs v. Ampak Mining, Inc. 

Beech Fork Processing, Inc. 

Midwest Minerals, Inc. 

ADMINISTRATIVE LAW JUDGE DECISIONS 

07-05-90 

07-06-90 

07-06-90 

07-06-90 

07-06-90 

07-06-90 

07-06-90 

07-06-90 

07-06-90 

07-09-90 

07-11-90 

07-12-90 

07-13-90 

07-17-90 

07-20:--90 

07-20-90 

07-24-90 

01-27-90 

07-27-90 

07-31-90 

John Etheridge v. Valley Coal Company 

Homestake Mining Company 

Jim Walter Resources, Inc. 

U.S. Steel Mining Company, Inc. 

Consolidation Coal Company 

Energy Fuels Coal Inc. 

Energy Fuels Coal Inc. 

Sec. Labor for David Hollis v. Consolidation 

Coal Company 

Sec. Labor for David Hollis v. Consolidation 

Rick Stevenson v. Beaver Creek Coal Company 

Sec. Labor for Gilbert Wisdom v. F&W Mines, Inc. 

Randy Cunningham v. Consolidation Coal Co. 

Bentley Coal Company 

Jim Walter Resources(Supplemental Decision) 

B.eaver Creek Coal Company 

Energy Fuels Mining Company 

Joseph Wietholter v. Quality Ready Mix, Inc. 

Southern Ohio Coal Company 

FMC Wyoming Corporation 

Energy Fuels Mining Company 

ADMINISTRATIVE LAW JUDGE ORDERS 

07-06-90 UMWA on behalf of Gilbert Roybal v. 

Wyoming Fuel Company 

07-23-90 Canyon Country Enterprises d/b/a Curtis 

and & Gravel 

KENT 89-13-D 

KENT 90-87 

CENT 89-67-M 

Pg. 1367 

Pg. 1371 

Pg. 1375 

PENN 90-21-D 

CENT 90-39-M 

SE 89-17-R 

SE 89-113 

PENN 90-47-R 

WEST 90-25 

WEST 90-52 

WEVA 90-78-D 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

WEVA 90-110-D Pg. 

WEST 89-130-D Pg. 

SE 90-102-DM . Pg. 

PENN 90-46-D Pg. 

WEVA 90-36 Pg. 

SE 89-42 Pg. 

WEST 89-23-R Pg. 

WEST 89-440 Pg. 

LAKE 90-17-DM Pg. 

LAKE 90-37-R Pg. 

WEST 86-43-RM Pg. 

WEST 90-211-R Pg. 

1381 

1382 

1384 

1390 

1423 

1429 

1431 

1433 

1435 

1436 

1438 

1440 

1450 

1451 

1452 

1468 

1470 

1474 

1478 

1484 

WEST 90-118-D Pg. 1488 

WEST 90-165-DM Pg. 1490 
JULY 1990 

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

Consolidation Coal Company v. Secretary of Labor, MSHA, Docket Nos. WEVA 90-3, 

WEVA 89-234-R, etc. (Chief JudgeMerlin, May 24, 1990) 

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

Secretary of Labor, MSHA v. Mountain Parkway Stone, Inc., Docket No. KENT 

89-27-M. (Judge Weisberger, May 30, 1990) 

Arnold Sharp v. Big Elk Creek Coal Company, Docket No. KENT 89-147-D. 

(Reconsideration of Commission order dated June 13, 1990) 

Kathleen I. Tarmann v. International Salt Company, Docket No. LAKE 89-56-DM. 

(Interlocutory Review of Judge Melick's Order) 
CO!v'T..MISSION DECISIONS 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

DAVID THOMAS AND 

GEORGE ISAACS 

v. 

AMPAK MINING, INC. 

1730 K STREET NW, &TH FLOOR 

WASH1NGTON, D.C. 20006 

July 24, 1990 

Docket Nos. KENT 89-13-D 

KENT 89-14-D 

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

Commissioners 

DECISION 

BY THE COMMISSION: 

In this discrimination proceeding ar1s1ng under the Federal Mine 

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

Act" or "Act"), complainants David Thomas and George Isaacs have sought 

discretionary review of that portion of the supplemental remedial 

decision of Commission Administrative Law Judge Gary Melick in which the 

judge denied their post-trial motion to proceed individually, on the 

basis of an alter ego theory, against Geary Burns and Peggy A. Kretzer, 

the alleged owners of respondent Ampak Mining, Inc. ("Ampak"). 

12 FMSHRC 428 (March 1990)(ALJ). In addition, the complainants have 

moved the Commission, in light of its decision in Ronald Tolbert v. 

Chaney Creek Coal Co., 12 FMSHRC 615 (April 1990) ("Tolbert II"), to 

remand this matter to the judge for reconsideration of his denial of 

their post-trial motion. By previous orders, we granted the 

complainants' petition for review and suspended briefing. Ampak has not 

responded to the complainants' motion to remand. For the reasons that 

follow, we grant the complainants' motion, vacate that portion of the 

judge's decision denying the complainants' post-trial motion, and remand 

this matter to the judge for further appropriate proceedings. 

The relevant procedural history may be summarized briefly. Thomas 

and Isaacs filed with the Commission, pursuant to section 105(c)(3) of 

the Mine Act, 30 U.S.C. § 815(c)(3), discrimination complaints against 

Ampak, and the proceedings were consolidated for hearing and disposition 

before Judge Melick. In his decision on the merits, the judge concluded 

that Ampak had discriminated against the complainants in violation of 

section 105(c)(l) of the Act by laying off the complainants as a result 

of their protected activities. 11 FMSHRC 2552 (December 1989)(ALJ). At 

1367 
the direction of the judge, the parties stipulated to the amount of back 

pay, attorney's fees and expenses to be awarded the complainants. 

Subsequently, the complainants moved the judge for leave to proceed 

individually against Ampak's asserted owners, Geary Burns and Peggy A. 

Kretzer, on an alter ego theory. The complainants have asserted that 

Ampak will be unable to provide them the stipulated relief because the 

company is no longer in.business, has no assets, and is burdened with 

substantial debt. The complainants have argued that the owners and the 

corporation share a unity of interest and are not, in fact, separate 

legal personalities. 

In his remedial decision, the judge awarded complainants the 

stipulated damages but denied their motion to proceed individually 

against the owners. 12 FMSHRC at 430. The judge relied upon the 

Commission's decision in Ronald Tolbert v. Chaney Creek Coal Corp., 

9 FMSHRC 1847 (November 1987)("Tolbert I"). There, the Commission 

denied a discrimination complainant's motion, proffered after the 

decisions in question had become final, to proceed against an individual 

owner on an alter ego theory. The Commission held that the course of 

action was for the complainant to seek the Secretary of Labor's 

enforcement of the final Commission decisions. 

After issuance of the judge's remedial decision in this matter, 

the Commission issued its decision in Tolbert II. Tolbert II arose 

after the complainant had heeded the Commission's directions in Tolbert 

!, and had invoked the Secretary's representation to secure summary 

enforcement of the Commission's final orders in the United States Court 

of Appeals for the Sixth Circuit. See 12 FMSHRC at 617. Nevertheless, 

th~ respondent had still failed to comply with the enforced orders. 

Among other things, the Commission concluded in Tolbert II that "[i]n 

light of the remedial purposes of section 105(c) [of the Mine Act], ... 

the Commission, in appropriate cases and on such terms as are just, may 

reopen a discrimination case for reasonable supplemental [Commission] 

proceedings in aid of compliance." 12 FMSHRC at 618. Pursuant to that 

principle, the Commission reopened Tolbert to consider the complainant's 

request for a determination as to the individual corporate owner's 

possible alter ego status. 12 FMSHRC at 619. 

The Commission noted that the individual corporate owner had never 

been a party to the proceeding. 12 FMSHRC at 619. Accordingly, in 

remanding the matter to the judge, the Commission directed him to decide 

whether the complainant should have determined the alleged alter ego's 

status at a more timely juncture of the litigation and to rule on the 

precise legal theory and authority upon which any joinder might now be 

justified. 12 FMSHRC at 619. The Commission further required that the 

alleged alter ego be afforded the opportunity to be specially heard on 

the issues affecting his status and, if made a party, be heard on any 

and all liability or remedial issues affecting him. 12 FMSHRC at 619-

20. 

Here, the motion to join the alleged individual owners was made 

before Judge Melick's final decision in this matter. As in Tolbert II, 

the complainants hav~ raised an alter ego issue that may bear on their 

ability to recover the stipulated damages. In light of Tolbert II, we 

1368 
conclude that the complainants• claims of liabil~ty on the part of 

Ampak 1 s owners, based on an alter ego theory, should be considered by 

the judge. As in Tolbert II, we remand this proceeding to the judge for 

needed factual findings and legal analysis as to whether Burns and 

Kretzer may be brought into this proceeding at this stage, whether the 

complainants should have determined the owners' alleged alter ego status 

at a more timely juncture, and to determine the precise legal theory and 

authority upon which such joinder may now be justified. See Tolbert II, 

12 FMSHRC at 619. Ampak's owners shall be specially heard on these 

issues. If the judge concludes that they may properly be made parties 

to these supplemental compliance proceedings, they shall 11 continue to be 

afforded full opportunity to participate on any and all liability or 

remedial issues affecting them. 11 Tolbert II, 12 FMSHRC at 619-20. 

For the foregoing reasons, we vacate that portion of the judge's 

remedial order denying complainants' motion to proceed against Burns and 

Kretzer, and we remand this matter to the judge for proceedings 

consistent with this opinion. 

~ c~: / 

/ '·-· ,/ ._. .-/ {._ •. / ·(·., ~ . c:. (_.. / .' / . .-"' •' /<'. /"' '....(.~ .. ;: ~ -"'.' .,;:~ L·. ) • 

· Richard V. Backley, Commissioner V 

./"l 

,.~~ d'. 

A. Doyle, 

1369 
Distribution 

Tony Oppegard, Esq. 

Appalachian Research & Defense 

Fund of Kentucky, Inc. 

P.O. Box 360 

Hazard, Kentucky 41701 

Geary Burns 

P. 0. Box 1183 

Paintsville, Kentucky 41240 

Peggy A. Kretzer 

HC 83, Box 173 

River, Kentucky 41254 

C. Graham Martin, Esq. 

P.O. Box 1375 

Prestonsburg, Kentucky 41653 

Administrative Law Judge Gary Melick 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

1370 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

BEECH FORK PROCESSING, INC. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 26, 1990 

Docket Nos. KENT 90-87 

KENT 90-88 

KENT 90-89 

BEFORE: Backley, Doyle and Nelson, Commissioners 

ORDER 

BY Backley, Doyle and Nelson, Commissioners 

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"), Commission Chief Administrative Law Judge Paul Merlin issued an 

Order of Default on June 18, 1990, finding Beech Fork Processing, Inc. 

("Beech Fork") in default for failure to answer the Secretary of Labor's 

civil penalty petitions and the judge's show cause orders in the subject 

cases. The judge assessed for all three cases the Secretary's proposed 

civil penalties of $10,123. By letter dated July 12, 1990, addressed to 

Judge Merlin, Beech Fork petitioned the Commission for an opportunity to 

continue its contest of MSHA's proposed penalties in the subject cases. 

Attached to Beech Fork's July 12 letter is a letter dated June 11, 1990, 

from Beech Fork to the Department of Labor's Mine Safety and Health 

Administration ("MSHA") that appears to be Beech Fork's answer to the 

Secretary of Labor's civil penalty proposal filed in Docket No. KENT 90-

89. We deem Beech Fork's July 12 letter and attached letter to 

constitute a timely petition for discretionary review of the judge's 

default order. For the reasons that follow, we grant the petition, 

vacate the default order, and remand for further proceedings. 

The judge's jurisdiction over this case terminated when his 

default order was issued on June 18, 1990. 29 C.F.R. § 2700.65(c). 

Under the Mine Act and the Commission's procedural rules, once a judge's 

decision has issued, relief from the decision may be sought by filing 

with the Commission a petition for discretionary review within 30 days 

of the decision. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70(a). In its 

July 12 letter, Beech Fork seeks relief from the default order and 

explains that it did not timely respond to the show cause orders due to 

certain changes in its personnel. Beech Fork's letter was received by 

1371 
the Commission on July 17, 1990. 

Beech Fork'.s July 12 letter as a 

review. ~, Patriot Coal Co., 

Under the circumstance'", we will treat 

timely filed petition for discretionary 

9 FMSHRC 382, 383 (March 1987). 

Beech Fork alleges that because of personnel changes, it was 

unable to timely respond to the judge's show cause orders. The 

Commission has generally afforded relief from default upon a showing of 

inadvertence, mistake, or excusable neglect. ~, Blue Circle 

Atlantic, Inc., 11 FMSHRC 2144, 2145 (November 1989). We are unable, on 

the basis of the present record, to evaluate the merits of Beech Fork's 

assertions, but. in the interest of justice we will permit Beech Fork to 

present its position to the judge, who shall determine whether 

appropriate grounds exist for excusing its failure to timely respond. 

See, ~, A.H. Smith Stone Company, 11 FMSHRC 2146, 2147 (November 

1989). 

1372 
For the foregoing reasons, we grant Beech Fork's petition for 

discretionary review, vacate the judge's default order, and remand this 

matter to the judge for appropriate proceedings. Beech Fork is reminded 

to file documents connected with this proceeding with the judge and to 

serve counsel for the Secretary with copies of any of its filings. 

29 C.F.R. §§ 2700.S(b), 2700.7. 2/ 

f![;LLL .Z ;!' //,~ .,£ ~ "-, 

Richard V. Backley, Commissioner ;--

0(~ t!,~Lc, J6yce A. Doyle, )[Commissioner £tg ., ~~I UJ&--n_/ 

L. Clair Nelson, Commissioner 

~/ Pursuant to 30 U.S.C. § 823(c), we have constituted ourselves as a 

panel of three members to exercise the powers of the Commission in this 

matter. 

1373 
Distribution 

James H. ~ooth, President 

Beech Fork Processing, Inc. 

P.O. Box 190 

Lovely, Kentucky 41231 

Joseph B. Luckett, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

2002 Richard Jones Rd. 

Suite B-201 

Nashville, Tennessee 37215 

Chief Administrative Law Judge Paul Merlin 

Federal Mine Safety & Health Review Commission 

1730 K Street, N.W., Suite 600 

Washington, D.C. 20006 

1374 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY ANO HEALTH 

ADMINISTRATION (MSHA) 

v. 

MIDWEST MINERALS, INC. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 27, 1990 

Docket No. CENT 89-67-M 

Before: Ford, Chairman, Backley, Doyle, Lastowka and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

At issue in this civil penalty proceeding arising under the Federal 

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

Act" or "Act"), is whether there is support for certain findings of the 

trial judge. This case arose in the wake of four citations issued to 

:Midwest Minerals Inc. (Midwest) on August 11, 1988, pursuant to section 

104(a) of the 11ine Act. 30 U.S.C. §814(a). Each citation charges a violation of 30 C.F.R. §56.9002 which stated that: "Equipment defects affecting 

safety shall be corrected before the equipment is used." 1/ The equipment 

defect cited was an inoperative grade retarder on each of-four haul trucks. 

A hearing in this matter was held on September 28, 1989, before 

Administrative Law Judge Gary Melick. Midwest appeared pro se through its 

safety director, who was also Midwest's sole witness. The Secretary also 

presented only one witness, Robert Earl, the MSHA inspector who issued the 

subject citations. 

In his decision, Judge Melick upheld the violations and found that they 

were significant and substantial, that Midwest had consciously avoided abating 

the violations and that Midwest was highly negligent. The judge assessed a 

$300.00 penalty for each of the four violations. (The Secretary had proposed 

a $20.00 penalty for each violation). Midwest's petition for discretionary 

review of the judge's decision was filed pro~ through the company's 

l../ Shortly after these citations were issued, 30 C.F.R. 56.9002 was 

replaced by a new standard, 30 C.F.R. 56.14100(b), which provides: 

"Defects on any equipment, machinery, and tools that affect safety 

shall be corrected in a timely manner to prevent the creation of a 

hazard to persons." 

1375 
president, Richard Atkinson. After the Commission granted Midwest's petition 

for review. Midwest retained legal counsel who filed a brief in support of the 

petition for discretionary review and a motion to have the matter remanded to 

the administrative law judge and reopened for the taking of additional evidence. 

In seeking a remand and a reopening of the record, Midwest relies on Fed. 

R. Civ. P. 60(b)(l) and (6)("Rule 60(b)"). 2/ The essence of Midwest's claim 

for relief is that its p~o se representative at the hearing before the judge 

failed to introduce materiar-evidence relevant to Midwest's defense against 

the Secretary's allegation of violation, failed to interpose objections 

during the presentation of the Secretary's case, and failed to cross-examine 

the Secretary's witness or file a post-hearing brief. 

Thus, Midwest asserts that its representative failed to properly present 

its position at the hearing. Further, Midwes"t links this failure to emotional 

and medical problems allegedly suffered by its representative, and purportedly 

manifesting themselves and coming to Midwest's attention subsequent to the 

hearing. 

The Secretary opposes Midwest's motion to remand and reopen. The Secretary essentially argues that Midwest consciously chose a non-lawyer as its 

representative at the hearing and cannot now belatedly invoke Rule 60(b) to 

avoid the consequences of the adverse decision Midwest received from the 

administrative law judge. The Secretary asserts that to grant Midwest's 

request to reopen this proceeding for the taking of additional evidence would 

be tantamount to giving Midwest a "second turn at bat." Sec. Br. at 5. 

We agree with the Secretary that, under the circumstances presented, a reopening of the record pursuant to Fed. R. Civ. P 60(b) is not warranted. Under 

the Mine Act, proceedings before this independent adjudicatory agency are adversarial proceedings conducted in conformity with the procedural dictates of 

the Act, applicable provisions of the Administrative Procedure Act, and the 

Commission's Rules of Procedure, 29 C.F.R. Part 2700. Although these proceedings are legal in nature, the Commission's rules permit parties appearing 

before the Commission to be represented by non-attorney representatives. 

29 C.F.R. § 2700.3. In fact, it is not uncommon for parties to choose to 

appear before the Commission without the assistance of an attorney, to 

diligently present their evidence and arguments, and to prevail on the merits. 

2/ Rule 60(b) provides in pertinent part: 

On motion and upon such terms as are just, the court may 

relieve a party or his legal representative from a final 

judgment, order, or proceeding for the following reasons: 

(1) mistake, inadvertence, surprise, or excusable neglect; 

***** 

(6) any other reason justifying relief from the operation 

of the judgment. 

1376 
On the other hand, it is also not uncommon for a party choosing to appear 

without l•;,,al counsel to fail to present its case in a manner which best preserves all available legal rights that could contribute to the successful 

advancement of the party's cause. This consequence, which should not be 

entirely unexpected, directly flows from the party's choice of its 

representative. 

Because the adequacy of a party's representation at a hearing is linked 

to the party's choice of its representative, we must look askance at any 

request that Rule 60(b) relief be granted because the party's chosen 

representative is claimed to have performed ineffectually at the hearing 

before the judge resulting in an adverse decision. Routinely granting such 

relief would, as the Secretary has suggested, unfairly provide a losing party 

"a second turn at bat". Here Midwest is pursuing a claim that a medical 

condition manifesting itself subsequent to a representative's appearance at 

a hearing should excuse his "poor" performance at the hearing. Such a claim 

would necessitate a collateral inquiry into such person's medical fitness at 

the time of the hearing, a diversion we find unnecessary in this case. 

Instead, we find more pertinent a review of the proceedings as conducted 

before the administrative law judge. Our review of the transcript in this 

proceeding does indeed reveal, from a trained legal point of view, a rather 

passive participation by Midwest's lay representative. We cannot say, however, 

that his representation was totally ineffectual or markedly different from the 

caliber of pro se representation frequently demonstrated in proceedings before 

the Commission.~More importantly, we find nothing suggestive of the type of 

mistake or excusable neglect that is contemplated by Rule 60(b) as grounds for 

obtaining relief from a judgment. It is also important to note that even 

after the judge's adverse decision was rendered, Midwest nevertheless chose 

to file its appeal of the judge's decision through a different lay 

representative, whose pro se petition might also be viewed as failing to 

preserve all legal arguments that otherwise may have been available to Midwest 

in this appeal 

For these reasons, in the exercise of our discretion, we conclude that a 

reopening of this proceeding on the theory advanced here is unwarranted and 

would set an unwise precedent for proceedings conducted before this Commission. 

Accordingly, Midwest's motion to reopen and remand this proceeding for the 

taking of additional evidence is denied. 2,./ 

In its petition for discretionary review Midwest makes several challenges 

which can be addressed summarily. Midwest challenges the judge's finding that, 

3/ The Secretary's motion to strike an attachment to Midwest's petition for 

discretionary review, and attachments to its brief and portions of the brief 

itself, has been considered, as has Midwest's opposition thereto. Upon consideration we grant the motion to strike the attachment to the petition for 

discretionary review. We deny the motion to strike the attachments to the 

brief insofar as they were submitted in connection with Midwest's motion to 

reopen. We grant the motion to strike those portions of the brief addressing 

the merits of the case which refer to the attachments and other evidence not 

entered into the record before the judge. 

1377 
during a compliance assistance visit (C.A.V.), it did not dispute MSHA's 

position that inoperative grade retarders affect safety. Mid.,""?st also 

asserts that: the inspector who issued the citations did so out of animus 

towards it; the cited trucks were all purchased as used vehicles; the 

trucks came with disconnected grade retarders; Midwest employees misuse 

the retarders; grade retarders can be a hazard in themselves; and that it 

is common mining practice to have the devices disconnected. 

There is no evidentiary support in the record for any of these 

contentions. 4/ Furthermore, all of these matters were raised for the first 

time in Midwest's petition for review and therefore cannot be considered by 

the Commission. Ozark-Mahoning Co., 12 FMSHRC 376, 379 (March 1990); Union 

Oil Co. 11 FMSHRC 289, 301 (March 1989). 

Midwest also challenges the judge's finding that the cited trucks were 

moved out of the MSHA district in which they were cited in order to avoid 

repairing the retarders. In his decision the judge states: "Moreover 

apparently to avoid making the repairs the cited trucks were moved out of 

the MSHA district in which they had been cited." 11 FMSHRC at 2172. Midwest 

asserts that the judge's finding that the operator moved its trucks in order 

to avoid abatement is not supported by substantial evidence. We agree. The 

record contains no evidence that Midwest's movement of its equipment subsequent 

to the issuance of the citations at issue was an attempt to avoid compliance 

with the Mine Act. At the hearing the Secretary did not assert that Midwest 

was engaging in intentional avoidance of abatement. Rather, Inspector Earl 

testified that the period between the C.A.V. and the date the citations were 

issued was insufficient time for Midwest to repair the retarders. Tr. 27-28. 

Also, Earl extended the time for abatement of the citations because Midwest 

informed him that they intended to cont~st the citations. Tr. 28. Further, 

Earl explained that while the trucks had been moved to another MSHA District, 

they were moved because Midwest's operation was a portable one that moved 

among various locations. Tr. 30. In short, the record establishes that 

Midwest's movement of its equipment was not an attempt to avoid compliance, 

but was consistent with the very nature of the operation. ~/ 

In her brief on review, the Secretary asserts that the judge's finding 

that Midwest was attempting to avoid repair of the retarders was a permissible 

inference. Although inferences may be relied on where appropriate, "any such 

inference ••• must be inherently reasonable and there must be a rational 

connection between the evidentiary facts and the ultimate fact inferred." 

Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2153 (November 1989). Measured 

!!_/. Midwest's safety director did testify that it had been Midwest's practice 

over a fifteen year period to disconnect the devices and that in so doing the 

operator had not been previously cited. Such testimony, however, cannot be 

extrapolated to indicate a widespread industry practice. 

5/ Midwest's assertion at the hearing that a different MSHA district did not 

subsequently cite the trucks for the disconnected retarders was intended to 

show inconsistent MSHA enforcement, not that the trucks had been moved for 

the purpose of obtaining a different enforcement result. 

1378 
against this standard, we find that the facts of record regarding the reasons 

for nonabatement militate against utilization of the infE.:ence sought by the 

Secretary. 

On review Midwest vigorously argues that the judge's erroneous conclusion 

as to intentional avoidance of compliance had a serious impact upon the judge's 

evaluation of the negligence criterion relevant to assessment of the civil 

penalty. 30 U.S.C. § 820(i). We agree. 

In arriving at his conclusion with respect to negligence the judge states, 

"In any event the failure of Midwest to have repaired the defective grade retarders before the inspection at bar and the continued use of the trucks without grade retarders therefore constitutes high negligence." 11 FMSHRC at 2172. 

That conclusion ignores, however, the testimony by Inspector Earl (noted earlier) 

that there was insufficient time between the C.A.V. and the enforcement inspection for Midwest to have completed the repairs, Tr. 28, and that he had granted 

a 39 day extension of the time for abatement because Midwest intended to request 

a conference with the agency to discuss the matter of the grade retarders and 

the citations. Id. 

Also, Midwest's safety director testified that Midwest had not been cited 

previously for a lack of grade retarders and that, in the week before the 

hearing, he was informed by MSHA Inspector Ramirez that the trucks had not 

been cited by MSHA for lack of grade retarders during their operation in Kansas. 

Tr. 34. Inspector Earl stated that he considered Midwest's negligence "moderate" 

since, while in the Kansas area, the trucks "apparently have been allowed to go 

ahead with the retarders unhooked." Tr. 27. 6/ As we have recently observed 

in a similar context, "[t]he fact that seemingly conflicting MSHA policies 

left [the operator] in doubt as to what was required for compliance with [a 

standard] is a factor which militates against finding that [the operator's] 

conduct" was of an aggravated nature. Utah Power & Light Co., 12 FMSHRC 972, 

(May 1990). 

In the circumstances presented, we conclude that substantial evidence 

does not support the judge's finding of high negligence and that the inspector's finding of moderate negligence was appropriate. 

6/ The judge also recognized the inconsistency in enforcement, as reflected 

by his statement that "[rn]aybe MSHA ought to get together and decide what they 

ought to do." Tr. 36. 

1379 
Therefore we vacate the judge's finding ,of high negl~gence. We find 

the penalty amount proposed by the Secretary to be appropriate and we 

accordingly assess a penalty of $20.00 for each violation. See Southern 

Ohio Coal Company, 4 FMSHRC 1459 (August 1982). 

Distribution 

Jerald Feingold, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

David J. Hardy, Esq. 

Henry Chajet, Esq. 

Jackson and Kelly 

1701 Pennsylvania Ave., N .W. 

Suite 650 

Washington, D.C. 20006 

Richard V. Backley, Commissioner 

Commissioner 

tlr~k 7:J 

/"") 

~l.~~/~ Joyce A.' Doyle, 

~7f:i::_~ L. Clair Nelson, Commissioner 

Administrative Law Judge Gary Melick 

Federal Nine Safety and Health 

Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

1380 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

~JUL 5 1990 

JOHN ETHERIDGE, DISCRIMINATION PROCEEDING 

Complainant 

v. 

VALLEY COAL COMPANY, 

Respondent 

Docket No. PENN 90-21-D 

PITT-CD-89-26 

Valley No. 11 Mine 

ORDER OF DISMISSAL 

Before: Judge Merlin 

On November 13, 1989, you filed with this Commission a 

complaint of discrimination under section 105(c) of the 

Federal Mine Safety and Health Act 1977. On March 22, 1990, 

a show cause order was issued directing you to provide information 

regarding your complaint or show good reason for your failure 

to do so. The show cause was mailed to you certified mail, 

return receipt requested. You have however, not responded 

and complied with the show cause order. 

Accordingly, this case is DISMISSED. 

- Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

John Etheridge, P.O. Box 241, Twin Rocks, PA 15960 (Certified Mail) 

Valley Coal Company, Valley No. 11 Mine, P.O. Box 86, Alverda, PA 

15710 (Certified Mail) 

/ss 

1381 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

JUL 6 1990 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

HOMESTAKE MINING COMPANY, 

Respondent 

. . 

. . 

Docket No. CENT 90-39-M 

A.C. No. 29-00775-05506 

Docket No. CENT 90-58-M 

A.C. No. 29-00775-05507 

Homestake Mill 

DECISION 

Appearances: Janice L. Holmes, Esq., Office of the Solicitor 

U.S. Department of Labor, Dallas, Texas, 

for Petitioner; 

Wayne E. Bingham, Esq., Crider, Calvert & Bingham, 

Albuquerque, New Mexico, 

for Respondent. 

Before: Judge Lasher 

This proceeding was initiated by the filing of Complaints 

Proposing Penalty in the captioned dockets pursuant to Section 

llO(a) of the Federal Mine Safety and Health Act of 1977, 30 

u.s.c. § 801 et seq. 

At the outset of the hearing on June 5, 1990, the parties 

consummated negotiations resulting in the amicable resolution 

of the issues arising out of the three Citations involved in 

the above two dockets. Their settlement agreement was proposed 

and considered on the record of the hearing and my bench decision 

approving such is here affirmed. 

ORDER 

In Docket No. CENT 90-39-M, Citation No. 3277887 is 

MODIFIED to delete the "Significant and Substantial" designation thereon, is otherwise affirmed, and the penalty of $20 

agreed to by the parties and assessed at hearing CT. 9), shall 

be paid by Respondent to the Secretary of Labor within 30 days 

from the date of the issuance of this decision. 

In Docket No. CENT 90-58-M, Citations numbered 3277890 

and 3277990, the prosecution of which having been withdrawn 

by Petitioner, are VACATED. 

,/};, , /,, / /'/'" . ~-k.,, "'" /2'tif_.-μ.c~·c C.A . P"l!Cc·;.-v..._ ·<· A , Michael A. Lasher, Jr. 

Administrative Law Judge 

1382 
Distribution: 

Janice L. Holmes, Esq., Office of the Solicitor, U.S. Department 

of Labor, 525 S. Griffin Street, Suite 501, Dallas, TX 75202 

(Certified Mail) 

Wayne E. Bingham, Esq., Crider, Calvert & Bingham, 3908 Carlisle, 

N.E., Albuquerque, NM 87107 (Certified Mail) 

/ek 

1383 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 6 1990 

JIM WALTER RESOURCES, INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

JIM WALTER RESOURCES, INC., 

Respondent 

. . 

. . 

. . 

. . 

. . 

. . 

DECISION 

CONTEST PROCEEDING 

Docket No. SE 89-17-R 

Citation No. 3012076; 10/25/88 

No. 5 Mine 

Mine I.D. # 01-01322 

CIVIL PENALTY PROCEEDING 

Docket No. SE 89-47 

A.C. No. 01-01322-03727 

No. 5 Mine 

Appearances: William Lawson, Esq., Office of the Solicitor, 

U.S. Department of Labor, Birmingham, Alabama 

for the Secretary of Labor; 

H. Thomas Wells, Jr., 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 seg., the "Act," to contest Citation No. 

3012076 issued by the Secretary of Labor pursuant to Section 

104(a) of the Act against Jim Walter Resources, Inc., (Jim 

Walter) and for review of civil penalties proposed by the 

Secretary of the violation alleged therein. More 

particularly Jim Walter seeks review in this case of a 

citation issued for its refusal to acquiesce in the 

Secretary's demand that its Ventilation and Methane and Dust 

Control Plan (Plan) contain a provision stating as follows: 

When methane content in any bleeder entry or any 

return except a section return exceeds 1.0 volume 

percentum, mine management shall submit a plan and 

obtain approval by the district manager. This plan 

1384 
shall detail additional procedures and safeguards 

which will be utilized to insure safety. 

The citation as amended alleges a violation of· the 

standard at 30 C.F.R. § 75.316 and charges as follows: 

A citation is hereby issued in that the mine 

operator adopted proposed changes in their approved 

Ventilation System and Methane and Dust Control 

plan dated Sept. 27, 1988, which has not been 

approved by the District Manager. Refer to cover 

Letter 9-lV-52 dated September 28, 1988, and 

response cover letter dated October 25, 1988. 

The September 28, 1988, letter from Jim Walter Mine 

Manager James Beasley and referenced in the above citation 

reads as follows: 

I request that the cover letter for the No. 5 

Mine Ventilation System and Methane and dust 

Control Plan signed by me on September 27, 1988, be 

revoked and that the last paragraph of that letter 

that reads as follows be deleted. 

"When methane content in any bleeder entry 

or any return except a section return 

exceeds 1.0 volume percentum, mine 

management shall submit a plan and obtain 

approval by the District Manager. This 

plan shall detail additional procedures and 

safeguards which will be utilized to insure 

safety." 

We shall comply with part 75.305. 

The response from Acting MSHA District Manager Boone to 

Mine Manager Beasley dated October 25, 1988, referenced in 

the citation, reads as follows: 

The request dated September 28, 1988, which deletes 

a statement on the approved Ventilation System and 

Methane and dust Control Plan dated September 27, 

1988, has been received, and cannot be approved. 

Additional procedures and safeguards are required 

to insure safety in the return areas of the above 

mine because of the potential of the methane 

content in the return to change very rapidly. A 

daily inspection of the return entries will assure 

that a continuing evaluation will be conducted and 

immediate corrective measures can be undertaken. 

1385 
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 ta~en place, 

and the operator and the Secretary remain at odds 

over a plan, review of the dispute may be obtained 

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 provision and it was Jim Walter's 

refusal to acquiesce in the Secretary's demand that the plan 

contain the cited provision that led to this contest and 

civil penalty proceeding. While the Commission did not 

designate in the Carbon County decision the party having the 

burden of proof nor did it set forth the standard of proof to 

be applied, the parties hereto have agreed that the 

Secretary, as the moving party attempting to include the 

disputed provision in the Ventilation Plan has the burden of 

proof. See 5 u.s.c. § 556 Cd}. I have determined that the 

Secretary must prove by a preponderance of the evidence that, 

without the Secretary's proposed change, the mine operator's 

Ventilation Plan does not provide an adequate measure of 

protection to the miners in the subject mine.~/ 

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 the 

administrative hearing. See 5 u.s.c. § 706{2}(A}. 

1386 
On the merits, Wi lli: ... ms Meadows, a supervisory mining 

engineer for·MSHA and a graduate mining engineer with 

extensive engineering and supervisory experience in the 

mining industry, testified that all mine ventilation plans in 

his sub-district i.e. the Birmingham Sub-District of MSHA 

District 7, are examined by him for approval or disapproval. 

It was Meadows' recommendation that Jim Walter's proposed 

Ventilation Plan not be approved without the disputed 

provisions and, in addition, that the following provisions be 

included: 

A plan shall be submitted by the operator, in 

detail, showing the proposed procedures and 

safeguards which will be utilized to insure the 

safety of all persons underground. This plan shall 

include, but is not necessarily limited to, the 

following information: 

1. The entire area shall be examined by 

a certified person, at intervals not to 

exceed 24 hours. During this examination 

this main return and bleeder splits shall 

be examined, including the area 

immediately before the air enters the 

return shaft. Just prior to entering a 

return shaft, the methane content of this 

air shall be less than 1.0 volume per 

centum. Records must be made of all 

these examinations. 

Electrical equipment shall not be 

operated in an area where the methane 

content in the air is 1.0 volume per 

centum or more. 

It was Meadow's expert opinion that since the Mary Lee 

Coal Bed in which the subject mine was operating is the 

highest methane liberating coal bed in the United States and 

because of the fluctuation of methane levels in this mine, 

additional precautions were necessary for safe mining 

operations. According to Meadows, fluctuations in methane 

levels are caused by, among other things, the rate of mining 

advancement, the mine design and differences in 

degassification efforts. 

1387 
Robert Keykendall, an experienced MSHA Coal Mine 

inspector, testified· that he issued a section 107(a) imminent 

danger withdrawal Order on March 8, 1990, for methane in the 

return air. course in excess of 2 percent. Bottles samples 

taken at that time showed methane levels of 2.64 and 2.26 

percent. It is not disputed that the cited area was subject 

to "fire boss" examinations and that according to the 

examination books the area had been "fire bossed" and no 

methane found only three days before the withdrawal order was 

issued. It may reasonably be inferred from this evidence 

that indeed in this coal seam of high methane, examinations 

more frequently than once weekly, are warranted. 

In support of its position Jim Walter called as its 

witness Charles Stewart, General Manager for safety and 

training. According to Jim Walter records, during calendar 

years 1987, 1988, and 1989, there were only two citations 

issued for violations of the standards at 30 C.F.R. § 75.308, 

309, 310, 316 and 329. While this evidence of course tends 

to rebut the testimony of Meadows that MSHA had relied upon 

the issuance of prior citations in determining that the 

levels of methane fluctuated within the subject mine, it 

nevertheless does not negate the Secretary's case. 

The credible expert evidence in this case clearly 

supports the position of the Secretary that in this 

admittedly highly gassy mine more specific precautions are 

warranted in the Ventilation Plan than are required by the 

general provisions of law. The Secretary has met her burden 

of proving that operation of the subject mine without. the 

disputed provisions would indeed be unsafe. 

Accordingly I find that Jim Walter violated 30 C.F'.R. § 

75.316 in at least technically operating its No. 5 Mine 

without the disputed provisions in its Ventilation Plan. 

Inasmuch as the citation was issued pursuant to a Secretarial 

policy providing for the challenge for disputed ventilation 

plan provisions and the violation was of limited duration and 

not hazardous I find the proposed civil penalty of $20 to be 

appropriate. 

ORDER 

Jim Walter Resources, Inc., is directed o pay a civil 

penalty of $20 within 30 days of t~ date of t\\is decision. 

1

7 \_ 

•. . 

\

( ', \ 

"b' \: l ,. I 

Gary Me~ k \ 

Administrative L w Judge 

~ \I 

1388 
~istribution: 

William Lawson, Esq., Office of the Solicitor, U.S. 

Department of Labor, 2015 Second Avenue, North, Birmingham, 

AL 35203 (Certified Mail) 

H. Thomas Wells, Esq., Maynard, Cooper, Frierson, & Gale, 

P.C., 12th Floor, Watts Building, Birmingham, AL 35203 

(Certified Mail) 

nt 

1389 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 6 1990 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. SE 89-113 

A.C. No. 01-00851-03718 

v. 

Oak Grove Mine 

U.S. STEEL MINING COMPANY, 

INC., 

Appearances: 

Before: 

Respondent 

DECISION 

William Lawson, Esq., Office of the Solicitor, 

U.S. Department of Labor, Birmingham, Alabama, 

for the Petitioner; 

Billy M. Tennant, Esq., U.S. Steel Mining Company, 

Inc., Pittsburgh, Pennsylvania, for the 

Respondent. 

Judge Koutras 

Statement of the Case 

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

Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 820(a). 

Petitioner seeks a civil penalty assessment in the amount of 

$1,000 for an alleged violation of mandatory safety standard 

30 C.F.R. § 75.316. The respondent filed a timely answer contesting the alleged violation, and a hearing was held in 

Birmingham, Alabama. The parties filed posthearing arguments, 

and I have considered them in my adjudication of this matter. 

Issues 

The issues presented in this proceeding include the 

following: (1) Whether the respondent violated the cited 

mandatory safety standard; (2) whether the alleged violation was 

significant and substantial (S&S); and (3) whether the alleged 

1390 
violation cited in the contested section 104(d) (2) order resulted 

from an unwarrantable failure by the respondent to comply with 

the cited standard. 

Assuming the violation is established, the question next 

presented is 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. 

Applicable Statutory and Regulatory Provisions 

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

30 u.s.c. § 301, et seq. 

2. Sections llO(a), llO(i), 104(d), and 105(d) of the Act. 

3. Mandatory safety standard 30 C.F.R. § 75.316. 

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

Stipulations 

The parties stipulated to the following (Tr. 8-9): 

1. The respondent is a large mine operator subject to the jurisdiction of the Act. 

2. Payment of the civil penalty assessed for the 

alleged violation in question will not adversely affect 

the respondent's ability to continue in business. 

3. The respondent timely abated the alleged 

violative condition in good faith. 

Discussion 

The contested section 104(d) (2) S&S Order No. 3188462, 

issued by MSHA Inspector Judy A. McCormick on February 1, 1989, 

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

§ 75.316, and the condition or practice cited is described as 

follows: 

The current approved ventilation Methane and Dust 

Control Plan was not being complied with in the face of 

the No. 2 entry. The roof bolting machine was in the 

face and the blowing curtain was not being used. It 

was laying on the machine. The extendable line curtain 

(Bo Strip) had been taken down back to the permanent 

curtain which was 24 feet from the deepest point of 

1391 
penetration of the face. This is the third such violation in·3 inspection shifts. The crosscut to the right 

was being turned in on the third cut. 

Petitioner's Testimony and Evidence 

MSHA Inspector Judy A. McCormick confirmed that she 

inspected the number two entry of the number 10 section on 

February 1, 1989. She stated that she found two roof bolters 

standing by an energized roof-bolting machine, and the ventilation extending exhausting line curtain was 24 feet from the face 

of the number two crosscut. This condition was a violation of 

the respondent's ventilation plan because the plan required the 

curtain to be maintained to within 10 feet of the deepest point 

of penetration of all working places except during the extraction 

of pillars (Tr. 13-15). 

Ms. McCormick identified exhibit P-3 as the respondent's 

approved ventilation plan, and she stated that the provision 

which was violated appears at page 10, item H-1. She stated that 

this provision has been in effect for several years. She confirmed that the number two entry was a working face, and that 

pillars were not being mined because it was an advancing section 

(Tr. 16). 

Ms. McCormick stated that the curtain must be maintained to 

within 10 feet of the face in order to provide ventilation to the 

face and to control methane and carry away dust, and if this is 

not done, there is a potential for methane build-up. The mine is 

a gassy mine and it is subject to weekly spot inspections. The 

average annual methane liberation through the five mine fans was 

in excess of 11 million cubic feet every 24 hours, and in the 

event the curtain is not maintained to within 10 feet of the face 

it is very likely that methane will accumulate at the face (Tr. 

17-18). 

Ms. McCormick believed that methane accumulations presented 

an ignition, fire, and explosion hazard, and that "bad burn" 

injuries would be highly likely in the event of a fire, explosion, or ignition. She confirmed that prior to her inspection 

MSHA conducted an investigation of a methane face ignition which 

occurred when a line curtain was not maintained within 10 feet of 

the face, and this resulted in burns to two people (Tr. 19-21, 

exhibit P-4) . 

Ms. McCormick identified exhibit P-5, as copies of two prior 

citations which she issued on the number 10 section during the 

day shift for failure to maintain the line curtain to within 

10 feet of the face (Tr. 23-24). She also confirmed the issuance 

of a prior section 104(d) (2) order on the number 9 section where 

another order was still outstanding, and another occasion on that 

section when 1.4 percent methane accumulated at the face when a 

1392 
curtain was taken down and the respondent was not aware of it 

because there was no methane detector available and the foreman 

had not tested for methane. She confirmed that she issued an 

imminent danger order in that instance (Tr. 26, Exhibits P-6 

through P-8). 

Ms. McCormick explained that she issued the unwarrantable 

failure order in this case for the following reasons (Tr. 27): 

A. I felt that it could have been a particularly 

hazardous situation and since this was true, the operator had a heightened duty to be aware of what electrical equipment was doing in the face. Also it was 

repetitious of previous violations on this section as 

well as in the mine. 

Ms. McCormick further explained that the roof-bolting 

machine was an ignition source because it generates heat capable 

of igniting methane. Machine permissibility violations and 

friction from the drill bits would also be sources of ignition, 

and she considered these factors in the context of continued roof 

bolting work. She also considered -the prior unwarrantable failure and imminent danger orders (Tr. 28-29). 

Ms. McCormick confirmed that she determined the distance the 

extendable curtain was back from the face by measuring it with a 

tape, and she confirmed that she took a methane reading of 

0.2 percent approximately 20 to 22 ,feet from the face. She would 

expect the methane reading to be higher at the face because of 

poor ventilation due to the distance of the curtain from the face 

(Tr. 30-33). 

On cross-examination, Ms. McCormick confirmed that when she 

arrived at the area in question the roof bolters were not bolting 

and were performing no work. She stated that they told her that 

they had pulled the extendable curtain back and were preparing to 

start roof bolting after installing the blowing curtain. 

Ms. McCormick confirmed that the installation of the blowing 

curtain is a normal practice during roof bolting (Tr. 37). 

However, she stated that the extendable curtain should not have 

been pulled back prior to the installation of the blowing curtain, and that the roof bolters admitted that they were aware of 

this, but offered no explanation as to why they had done it out 

of sequence (Tr. 38). She stated that the roof-bolting machine 

was positioned to begin roof bolting (Tr. 42). 

Ms. McCormick stated that the area in question was a working 

place, that coal had previously been extracted, and the place was 

being prepared to be roof bolted (Tr. 45-46). She reiterated 

that she· based her unwarrantable failure finding on the fact that 

1393 
the respondent had a heightened duty to insure that the cited 

practice was not occurring in the face area, particularly in 

light of the hazardous situation caused by the failure to maintain the curtain to within 10 feet of the face (Tr. 48). 

Ms. McCormick stated that the section foreman-was not with 

the roof bolters when she arrived on the section and she met him 

while leaving the section, but could not recall speaking with him 

(Tr. 50). She agreed that the owl shift and day shift were 

changing places, _that a miner had just finished cutting coal and 

was going to another entry, and that the two roof bolters had 

just entered the area to begin bolting, but had not actually 

commenced bolting (Tr. 52-53). 

Ms. McCormick agreed that the two roof bolters had been 

present in the area for a very short time, and that they would 

normally install the blowing curtain, withdraw the extendable 

curtain, and begin bolting. She confirmed that when she arrived 

in the area, the roof bolters had moved the extendable curtain 

back and had not put up the blowing curtain (Tr. 54). All that 

was required to abate and terminate the order was the installation of the blowing curtain. She confirmed that the blowing 

curtain was laying on the roof-bolting machine (Tr. 56). 

Ms. McCormick stated that a ventilation curtain was up at 

the last row of permanent roof supports where she took the 

methane reading, and that the roof-bolting machine was being 

ventilated. She confirmed that she did not check the machine for 

any permissibility violations, assumed that it was permissible, 

and that no machine tramming or roof bolting was taking place 

(Tr. 59). She stated that any "S&S" finding would be based on 

continuing normal mining operations, and that she would have 

expected the roof bolters to start bolting (Tr. 59). She 

believed they would have installed the blowing curtain if they 

had intended to do so before commencing bolting, but conceded 

that she did not ask the bolters what they intended to do next or 

whether they intended to install the blowing curtain before they 

began bolting (Tr. 60). 

Ms. McCormick did not know if the two roof bolters were 

involved in any of the previous citations, but she confirmed that 

Foreman Rollins was involved in the two prior citations on the 

number 10 section. There was no equipment in place in those 

instances, and the curtain had simply not been kept up after the 

bolting and servicing of the equipment had been completed, and no 

mining activity was taking place (Tr. 61-62). 

Ms. McCormick agreed that the narrative statements supporting the "special" civil penalty assessment for the contested 

1394 
order which .indicate that roof bolting was taking place without 

the blowing curtain up, and that the blowing system of ventilation was not being used during roof bolting are incorrect (Tr. 

67-69) . 

Ms. McCormick agreed that the roof bolters were present for 

5 to 10 minutes at most ·before she arrived at the place in question, and she would not have expected the fire boss to see the 

condition and take corrective action. With regard to the section 

foreman, she believed that in light of the prior history of 

citations, the foreman "should check when equipment operators go 

into a place to make sure that they are legal before they start" 

(Tr. 73) . 

Ms. McCormick stated that even if the roof bolters had 

pulled back the extended curtain with the intention of putting up 

the blowing curtain they would still be in violation because one 

type of ventilation may not be removed in preparation of installing another type and the face ventilation must be maintained 

10 feet from the face at all times (Tr. 77-78). In view of the 

fact that the blowing curtain was on the machine, Ms. McCormick 

concluded that no attempt was made to install the blowing ventilation system prior to moving back the exhaust system. The 

proper sequence would have been to put up the blowing curtain 

first before pulling the extendable curtain back. It may not be 

done in reverse order because the face would be left unventilated. In this case, the blowing curtain was simply laying on 

the machine. She explained that the curtain normally is stored 

on the machine, but that in this case it was there because it had 

not been installed to within 10 feet of the face (Tr. 79-81). 

Ms. McCormick confirmed that the roof bolters told her that 

they had pulled back the blowing curtain, and even if they had 

told her they were going to install it, it would not have made 

any difference because there was no ventilation at the face (Tr. 

85). She confirmed that the two roof bolters were from the "owl 

shift" and had not been replaced by the day shift, and that the 

shifts were just changing. She confirmed that the machines are 

not usually shutdown between shifts and they are usually in use 

between shifts. The midnight shift foreman, Mr. Rollins, was 

still in charge of the bolters (Tr. 87). 

Ms. McCormick confirmed that the blowing curtain should have 

been installed on the last row of permanent roof supports and 

that this would have placed the curtain 22 to 24 feet from the 

face until the last two rows of bolts are installed and miners 

are pulling out (Tr. 88). She confirmed that the face area was 

not being ventilated by either the blowing ventilation system or 

the exhaust system. However, there would still be some air at 

part of the face, but not the amount which would normally be 

distributed if the line curtain were closer to the face. She 

1395 
agreed that there was no activity within 24 feet of the face at 

the time the order w~s issued (Tr. 92). 

Ms. McCormick confirmed that ventilation plan item 2 on 

page 10 was partially complied with in that the regular line 

brattice was installed to within 30 feet of the face, but the 

extended line curtain was not within 10 feet of the face as 

required by the plan provision at the top of page 11 which states 

"an extended line curtain to within 10 feet of the face as left 

by the continuous mining crew" (Tr. 93). 

Respondent's Testimony and Evidence 

Joseph Nogosky, Safety Manager, U.S. Steel, Southern 

Division, testified that he was aware of the circumstances 

surrounding the issuance of the contested order because he conducted an investigation immediately after the midnight shift came 

out of the mine. He spoke with the shift foreman Glen Rollins, 

and Mr. Rollins informed him that the inspector issued the order 

for not having the blowing curtain up while the roof bolter was 

operating. Mr. Rollins told him that he did not know what 

occurred because he spent most of the shift 500 feet from the 

face working on a problem at the feeder and was not aware that 

the inspector was on the section until she told him that she had 

issued the order (Tr. 107). 

Mr. Nogosky stated that the two roof bolters in question 

were experienced, and he confirmed that during the course of his 

investigation regarding the contested order, the roof bolters 

informed him that while the roof-bolting machine was being 

trammed into the face area, it was turned toward the right corner 

of the entry at an angle and the ATRS at the front of the machine 

became entangled in the extendable line curtain. The machine was 

stopped, and the extendable curtain was retracted so that it 

could be disentangled from the machine. The roof bolter operator 

got out of the machine and was preparing to hang up the blowing 

curtain when Ms. McCormick appeared on the scene. The bolters 

tried to explain that the machine had hooked up on the curtain, 

but the inspector said it did not matter, left to make a methane 

check, and told the bolters to put the curtain up (Tr. 108-111). 

Mr. Nogosky stated that the use of the blowing curtain is a 

ventilation plan provision imposed by MSHA as part of the 

approved mine ventilation plan, and he explained that the roof 

bolters would first position the roof-bolting machine where they 

were going to put up their first row of bolts. They would then 

extend the extendable curtain to within 10 feet of the face and 

then put up the blowing curtain and slide the extendable curtain 

back. In this case, in view of the fact that the extendable 

curtain got caught in the machine, they retracted it before 

putting up the blowing curtain. He stated that he would probably 

have done the same thing under the circumstances (Tr. 116). He 

1396 
also stated that the roof bolters told him that they had just 

pulled the machine in "no more than a couple of minutes" before 

Ms. McCormick arrived, and that they intended to put up the 

blowing curtain and start bolting (Tr. 117-118). 

In response to bench questions as to why the roof bolters in 

question were not called to testify in this case, Mr. Nogosky 

explained that they expressed a willingness to testify at the 

time the order was issued because they were upset that it was 

issued and they were afraid that they would be disciplined by the 

company. In view of their work records, and his belief that they 

were telling the truth about the curtain being entangled in the 

machine, Mr. Nogosky decided not to discipline the roof bolters. 

However, when he contacted them to testify in this case, they 

stated that they had changed their minds and did not wish to 

testify. Respondent's counsel indicated that it was then too 

late to subpoena the bolters for testimony (Tr. 120-123). 

Mr. Nogosky did not believe that the violation was an unwarrantable failure because the foreman was not present, and the two 

roof bolters were trying to do the right thing when the curtain 

became entangled in the machine when it was operating in a narrow 

space. He stated that it is not unusual for ventilation to be 

interrupted by a rock fall, or a piece of equipment running into 

a curtain, and as long as such a situation is recognized and 

steps are taken to correct it, he did not believe that such an 

occurrence would constitute a violation of the ventilation 

standard (Tr. 126). 

On cross-examination, Mr. Nogosky confirmed that he did not 

accompany Ms. McCormick during the inspection, and that section 

foreman Rollins was not aware that she was on the section. He 

confirmed that he conducted his investigation of the order the 

same day it was issued, and he confirmed that the chairman of the 

safety committee, the general mine foreman, and the acting mine 

superintendent were present during his inquiry. He confirmed 

that Ms. McCormick did not participate in his inquiry, and that 

he made no effort to contact her because on prior occasions when 

he has asked her to participate in such investigations she has 

declined (Tr. 129-133). Mr. Nogosky confirmed that he simply 

made notes of the investigation, which lasted "maybe a couple of 

hours," but that he prepared no formal report, and had nothing in 

writing to support his testimony concerning what the roof bolters 

told him (Tr. 134). 

Mr. Nogosky conceded that the approved ventilation plan 

required the blowing curtain to be put up first before the 

extendable curtain was put up, and that in this case the blowing 

curtain was not up when the inspector was there. He disagreed 

1397 
that this situation warranted an order, but that "if you go 

strictly by ·the letter of the plan without taking in any mitigating circumstances," he agreed that a section 104(a) citation 

would have been in order (Tr. 141). 

Mr. Nogosky stated that one of the roof bolters told him 

that he had a hook which is used for hanging the blowing curtain 

in his hand when Ms. McCormick appeared, and Mr. Nogosky believed 

that one could assume that the roof bolter was going to put up 

the curtain (Tr. 143). Mr. Nogosky stated if the blowing curtain 

was not long enough to reach, it was possible that this prevented 

the roof bolters from putting it up. However, he conceded that 

this would depend on the prevailing situation, and that he was 

not present when the conditions were observed and cited by the 

inspector (Tr. 144-145). 

Mr. Nogosky stated that he was not aware whether the two 

roof bolters in question were ever disciplined in the past by the 

respondent, and according to his review of their records, they 

were not. He conceded that they may have received verbal warnings which may not appear in their records. He confirmed that 

Milton Presley was the day shift foreman on the day the order was 

issued, but that he was not responsible for the two roof bolters. 

Since the violation did not occur on his shift, he did not interview him during his investigation. He stated that Mr. Presley 

normally would not have been at the location of the violation 

because his shift starts at 7:00 a.m., and it takes 35 to 

45 minutes to get to the number 10 section (Tr. 145-148). 

Mr. Nogosky confirmed that U.S. Steel has disciplined foreman Paul Boyd within the past 6 months for failing to have the 

line curtains within 10 feet of the face, and that this was in 

connection with the violation issued in October, 1988 (Tr. 149). 

Mr. Nogosky explained that a "hot seat change out" is when 

the owl shift and day shift are exchanging places, and the owl 

shift does not leave until the day shift arrives and immediately 

takes over the work. He explained that the two roof bolters in 

question had not as yet ended their work, and at the time the 

order was issued, they would have been in the process of bolting 

since the day crew had not as yet arrived to change out with them 

(Tr. 151). 

Mr. Nogosky stated that he prepared no formal written report 

of his investigation because everyone who would receive a copy 

was in the room during his inquiry, and no disciplinary action 

was ever taken against the roof bolters. He also confirmed that 

he did not participate in any MSHA civil penalty conference in 

this case because he has never prevailed and believes that it is 

a waste of time (Tr. 154). Mr. Nogosky conceded that even though 

the extendable curtain may have been torn down by the machine, 

the blowing curtain was not installed, and the roof bolters moved 

1398 
the extendable curtain back just before the inspector arrived. 

He conceded that if they had installed the blowing curtain before 

withdrawing the damaged extendable curtain, there would have been 

no problem. He explained that the bolters did not put up the 

blowing curtain because they were concerned about positioning the 

machine so that they could put up the blowing curtain first and 

getting it untangled from the other curtain (Tr. 157). 

Inspector McCormick was called in rebuttal by the petitioner, and she confirmed that she arrived on the section before 

day shift foreman Milton Presley, but that she met him when she 

was leaving the section after she issued the order. She could 

not recall seeing any other management personnel at that time, 

and did not recall speaking with Mr. Rollins. She confirmed that 

the two roof bolters in question gave her n~ explanation as to 

why the curtain was not up, and she saw no visible evidence that 

the curtain had been caught or ripped up in the machine. She 

further confirmed that after observing the violative condition, 

she did not leave the area immediately, and stayed for some 

minutes to allow the bolters sufficient time to install the 

blowing curtain. She stated that she observed them install the 

curtain and that it took approximately 5 minutes (Tr. 161). 

Ms. McCormick stated that if the roof bolters had mentioned 

tearing down the curtain she would have taken this into consideration, but she did not know that it would have made any difference because any entangled curtain would not prevent them from 

installing the blowing curtain prior to pulling back any entangled extendable curtain (Tr. 166). 

On cross-examination, Ms. McCormick stated that union safety 

committeeman Jerry Jones was with her during her inspection. She 

stated that on the morning of the hearing in this case, Mr. Jones 

told her that one of the roof bolters had "recently changed his 

story" and agreed with Mr. Nogosky's testimony regarding the torn 

curtain, but that the other roof bolter disagreed with this 

contention. She also stated that "originally they both disagreed 

with Mr. Nogosky" (Tr. 173). In response to further questions, 

Ms. McCormick stated that she personally observed the two roof 

bolters putting up the blowing curtain, but she could not recall 

seeing any hooks in their hands (Tr. 174). 

Jerry Jones, electrician, and chairman of the UMWA mine 

safety committee, testified that he participated on "the tail 

end" of the investigation conducted by Mr. Nogosky. He stated 

that he met roof bolter Harvell after he had been interviewed, 

and that when he arrived at the meeting roof bolter Smith was at 

the end of his interview, and he could not recall what he said. 

Mr. Jones stated that he did not speak with the roof bolters 

until after the investigation was over. He stated that 

Mr. Harvell told him that they had not knocked the curtain down 

and "just actually got caught with the curtain down" (Tr. 177). 

1399 
Mr. Jones did not speak with Mr. Smith at that time, but did 

speak with both roof bolters recently, and he talked to them 

separately. Mr. Harvell again told him that "they just got 

caught. They didn't knock the curtain down," and Mr. Smith told 

him that he knocked the curtain down and "was in the curtain" 

(Tr. 178). 

Mr. Jones stated that he attempted to speak with Mr. Harvell 

and Mr. Smith together in order to reconcile their stories, but 

could not do so. He confirmed that he did not conduct his own 

investigation because he found out about the matter late, and 

that he did not tell Mr. Nogosky or management about the conflicting stories of Mr. Harvell and Mr. Smith because he was 

unaware of any investigation until it was nearly completed. 

Since the two men were not disciplined, he believed the matter 

was over (Tr. 181). 

Mr. Jones stated that Mr. Harvell and Mr. Smith told him 

that they would appear at the hearing in this matter, and that he 

told them "if you get subpoenaed come and tell it like it 

happened" (Tr. 183). He confirmed that he suggested to them that 

if they were not subpoenaed they did not have to appear at the 

hearing (Tr. 183). 

Findings and Conclusions 

The Section 104(d) "Chain" Issue 

The respondent would not stipulate that the contested order 

issued in this case was procedurally correct and met all of the 

statutory requirements for the section 104(d) sequence or 

"chain." The respondent takes the position that the petitioner 

made no showing that there was no intervening clean inspection of 

the entire mine since the issuance of the most recent order under 

section 104(d). In support of its argument, the respondent 

asserts that the contested order was based on an order issued on 

April 4, 1983, but that the most recent order of record was 

issued on October 11, 1988, and the inspector did not know of an 

unwarrantable failure order being issued between October 11, 

1988, and February 1, 1989, and did not know whether the entire 

mine had been inspected during that same period. 

Inspector McCormick explained the procedure that she follows 

in determining whether there has been any intervening clean 

inspection for purposes of the section 104(d) (1) and (d) (2) order 

"chain." She confirmed that each mine has a uniform file which 

contains information concerning the "d tracking system," includ~ 

ing information as to when the initial citations and orders are 

issued. She stated that she reviewed the file for the mine in 

question, and found no intervening clean inspections prior to the 

issuance of the contested order in this case. Since her supervisors maintain the current inspection status of the mine, the 

1400 
tracking system would not have been in the file if there were a 

clean mine inspection during the intervening period of time. She 

could not specifically recall whether she had issued any section 

104(d) (2) orders between October 11, 1988, and February 1, 1989, 

but stated that "there were lost of D-2s issued during that 

quarter" (Tr. 98-100). 

Respondent's counsel agreed that the mine would have been 

completely inspector from April 4, 1983, until the date of the 

issuance of the order by Ms. McCormick. Ms. McCormick confirmed 

that according to the mine file there were no intervening "clean" 

mine inspections during this time frame, and that to her knowledge the mine has been "on a d sequence" since April, 1983 (Tr. 

101-102). 

In view of the unrebutted testimony by the inspector, which 

I find probative and credible, and absent any credible evidence 

to the contrary, I conclude and find that the contested order 

issued by Inspector McCormick was procedurally correct and met 

all of the prerequisite statutory requirements for the existence 

of the "section 104(d) chain" of citations and orders. 

Fact of Violation 

The respondent is charged with a violation of mandatory 

safety standard 30 C.F.R. § 75.316, because of its failure to 

follow its MSHA approved ventilation and methane and dust-control 

plan, in the number 2 entry of the number 10 section. The 

inspector found that an extendable ventilation line curtain was 

not being maintained to within 10 feet of the face as required by 

the plan, and that an available blowing ventilation curtain was 

not being used. Section 75.316, requires a mine operator to 

follow its approved plan, and it is well settled that the failure 

to do so constitutes a violation of this section. See: Co-op 

Mining Co., 3 MSHC 1206 (1984); Zeigler Coal Company, 3 MSHC 1661 

(1984); Jim Walter Resources, Inc., 3 MSHC 1983 (1985); Monterey 

Coal Co., 3 MSHC 1315 (1984). 

The inspector confirmed that the applicable face ventilation 

plan provision which was violated appears at page 10, paragraph 

H.1, and it states as follows: "The extendable line curtain or 

sliding tube will be maintained to within 10 feet of the face in 

all working places except when pillars are being mined" (exhibit 

P-3). Paragraph H.2 of the plan, pgs. 10-11, explains the plan 

provisions for the required installation and use of the extendable line curtain and blowing curtain during normal roof bolting 

operations. 

The credible and unrebutted testimony of the inspector 

establishes that the cited location at the number 2 entry was a 

working face, and that pillars were not being mined because the 

section was an advancing section. The inspector's testimony also 

1401 
establishes that the extendable ventilation line curtain was 

24 feet from the face of the number 2 entry and that the blowing 

curtain was not installed and was laying on the roof-bolting 

machine. The respondent does not dispute the fact that the 

bolters took down the extendable line curtain before installing 

the blowing curtain, and that the plan required that the blowing 

curtain be installed before the extendable line curtain is 

retracted during normal roof bolting operations (page 4, posthearing brief). Respondent's safety manager Nogosky conceded 

that the ventilation plan required the blowing curtain to be put 

up first before the extendable curtain was put up, and that in 

this case the blowing curtain was not up when the inspector 

observed the cited conditions. Mr. Nogosky's testimony does not 

rebut the inspector's credible testimony that she determined the 

distance of the extendable line curtain from the face by means of 

a tape measure. 

The respondent takes the position that the facts presented 

in this case do not establish that it has violated its ventilation plan or section 75.316. In support of this conclusion, the 

respondent argues that its approved ventilation plan contains a 

provision that allows it to handle "abnormal conditions or situations" on a case-by-case basis, and that in the instant case the 

situation found by the inspector was abnormal, and that in the 

circumstances, it was handled properly by the bolters without 

violating the purpose or intent of the plan. 

The respondent points out that the plan requirement for 

maintaining the extendable line curtain to within 10 feet of the 

face during roof bolting operations is for the purpose of providing adequate ventilation in the face area. The respondent maintains that the plan provision which requires the blowing curtain 

to be installed before the extendable curtain is retracted could 

not be followed in this case because the bolting machine became 

entangled in the extendable line curtain. The respondent concludes that the roof bolters acted wisely by electing to disentangle the extendable curtain and retract it rather than tearing 

it down while positioning the machine to begin bolting, and that 

the extendable curtain no longer served any ventilation purpose 

in its tangled state. Under these circumstances, the respondent 

further concludes and argues that the bolters logically were 

proceeding to install the blowing curtain when they were interrupted by the inspector. The respondent further points out that 

the roof bolting operation had not commenced when the inspector 

arrived at the scene, and that but for the inspector's interference, the blowing curtain would have been installed in a 

minimum amount of time, and there is no evidence that the bolters 

would not have installed the blowing curtain before commencing 

bolting. 

The respondent asserts that the Commission has recognized 

that temporary interruptions in ventilation can occur without a 

1402 
violation resulting. Citing Freeman United Coal Mining Co., 

11 FMSHRC 161 (February 1989), the respondent argues that in that 

case the Commission considered a similar situation where an 

inspector directed a miner not to rehang a curtain which had been 

torn down by a shuttle car until the inspector could take an air 

reading, and found no violation. In Freeman, the Commission 

stated in relevant part as follows at 11 FMSHRC 165: 

[I]t is clear that in certain circumstances, including 

the unique factual circumstances presented here, a 

temporary interruption in the minimum air velocity 

delivered can occur without a violation of the Act 

resulting. 

While minimum air quantity or velocity requirements of ventilation plans and mandatory safety standards provide an objective test by which the adequacy 

of a mine ventilation system can be evaluated, other 

mandatory ventilation standards recognize that the 

dynamics of the underground mining environment occasionally interfere with attainment of constant minimum 

quantity or velocity levels. The other standards 

recognize that disruptions in mine ventilation inevitably occur and that the key to effective compliance lies 

in expeditiously taking those steps necessary to 

restore air quantity or velocity to the required level. 

For example, it is obvious that an unplanned power 

outage and the temporary shutdown of the main fan will 

reduce the quantity and velocity of air delivered to 

the face areas. Such a contingency is anticipated in 

the mandatory standards, however, and procedures for 

the restoration of air and the steps to be taken if 

ventilation cannot be restored within a reasonable time 

are outlined accordingly. See 30 C.F.R. 

§§ 75.300-3(a) (2), 75.321, and 75.321-1. 

Similarly, and directly on point with the situation presented in this case, there are mandatory safety 

standards that anticipate the possible diminution in 

ventilation caused by damaged or downed line brattice. 

30 C.F.R. § 75.302, a standard drawn verbatim from the 

statute, 30 u.s.c. § 863(c), requires that "[p]roperly 

installed and adequately maintained line brattice . . . 

shall be continuously used from the last open crosscut 

of an entry or room of each working section to provide 

adequate ventilation . . . . When damaged by falls or 

otherwise, such brattice ... shall be repaired immediately." (Emphasis added.) Furthermore, 30 C.F.R. 

§ 75.302-2 provides that, "[w]hen the line brattice 

. . . is damaged to an extent that ventilation of the 

working face is inadequate, production activities in 

1403 
the working place shall cease until necessary repairs 

are made and adequate ventilation restored." These 

standards recognize that line curtains may be damaged 

or torn down and that ventilation at the working face 

may, as a result, be diminished. They also make clear, 

however, that absent any unusual circumstances, it is 

the operator's failure to take immediate steps to 

repair or replace the downed line brattice that constitutes a violation. 

And, at 11 FMSHRC 166: 

(C]ompliance with section 75.302-2 would have been 

achieved but for the inspector's order, mistaken as it 

may have been, to cease rehanging the line brattice. 

Had not the inspector intervened, the minimum air 

velocity would have been restored almost immediately. 

At the very least, the inspector's unwitting interference with Freeman's abatement skewed the results of 

the air measurement so as to render it invalid for 

purposes of establishing a violation insofar as the 

three-foot gap initially observed by the inspector is 

concerned. Under these circumstances we conclude that 

Freeman did not violate its ventilation plan. 

Relying on the Freeman case decision, the respondent concludes that if the inspector had not interrupted the roof 

bolters, there is no reason to believe that they would not have 

installed the blowing curtains before they began to install the 

bolts, and that under these circumstances, there was no violation 

and the contested·order should be vacated. 

The petitioner takes the position that the evidence clearly 

establishes that the respondent violated the clear and explicit 

ventilation plan provision which required that the extendable 

line curtain be within 10 feet of the face, and that the plan, in 

clear and unambiguous terms, sets forth the sequence of 

installing/retracting line curtains during bolting operations. 

The petitioner argues that it is undisputed that the extendable 

line curtain was 24 feet from the face and not in compliance with 

the applicable plan provision, and that the No. 2 entry was a 

working place and pillars were not being mined. Under the circumstances, the petitioner concludes that the conditions 

described and cited by the inspector on the face of the order 

constitutes a violation of the respondent's ventilation plan. 

With regard to the respondent's reliance on the Freeman 

decision as a defense to the violation, the petitioner concludes 

that it is misplaced, and points out that in the instant case 

there is no direct evidence of a curtain being torn or any 

"unwitting interference" by the inspector. On the contrary, the 

petitioner points out that the inspector asked the bolters if 

1404 
they knew the. proper curtain sequence and "why they didn't do it 

that way," and that the bolters offered no defense. The petitioner concludes that the respondent simply "got caught" with the 

curtain behind just as it had on six previous occasions. 

In Consolidation Coal Company, 3 FMSHRC 2207 (September 

1981), Judge Melick affirmed a violation of section 75.316, for 

the failure by the operator to ventilate an entry with a line 

curtain. Although the evidence established that the curtain had 

been in place 2-1/2-hours prior to the issuance of the citation, 

but had been taken down for some unexplained reason, the judge 

found that the absence of the curtain at the time the citation 

was issued was still a violation. 

In Windsor Power House Coal Company, 2 FMSHRC 671 (March 

1980), Commission review denied April 21, 1980, Judge Melick 

affirmed a violation of section 75.316 because of the operator's 

failure to maintain adequate ventilation at a working face as 

required by its ventilation plan. Even though the evidence 

showed that mining was temporarily halted in the cited area 

because of a mechanical breakdown, the judge found that the 

absence of the required ventilation constituted a violation. 

In Co-Op Mining Company, 5 FMSHRC 2004 (November 1983), 

former Commission Judge Virgil Vail affirmed a violation of 

section 75.316, because of an operator's failure to install a 

line curtain as required by its ventilation plan. Although the 

judge considered the fact that the curtain may have been down for 

only a short time due to possible rib sloughage, he found that 

such an unusual occurrence was no defense. Citing Zeigler Coal 

Co., 4 IBMA 30 (1975), aff'd 536 F.2d 398 (D.C. Cir. 1976), and 

Consolidation Coal Co., supra, the judge found that when an 

operator departs from his ventilation plan, a violation of section 75.316, is established. 

In Consolidation Coal Co., 8 FMSHRC 612 (April 1986), Judge 

Morris affirmed a violation of section 75.316, because of the 

operator's failure to maintain the proper air velocity at a face 

as required by its ventilation plan, even though the air reaching 

the face may have been interrupted for no more than 30 seconds 

because of a ventilation curtain being pushed against a rib by a 

shuttle car trailing cable. 

In the Freeman case, the mine operator was cited for a 

violation of section 75.316, for failing to maintain the proper 

air velocity at the end of a the line curtain as required by its 

approved ventilation plan. The facts show that the inspector 

observed that the curtain which was installed across the intake 

entry directing intake air to the face was down in the corner of 

the room, causing a gap of approximately 3 feet in the curtain. 

When the inspector proceeded to the face to take an air reading, 

a trailing cable of a shuttle car became entangled in the line 

1405 
curtain, te_aring an 18 to 20 foot gap in it. A shuttle car 

operator heard the curtain tear, and after seeing the large gap, 

immediately prepared to rehang the curtain as he had been 

trained. At the same time, while the inspector was preparing to 

take his air reading at the end of the curtain at the face, he 

was informed that he would not get an accurate reading because 

outby in the entry, the line curtain was being rehung. The 

inspector then walked back from the face, into the room, and 

directed the shuttle car operator not to hang the curtain because 

he had to take an air reading at the face before the curtain 

could be rehung. The shuttle car operator testified that had he 

not been interrupted by the inspector, it would have taken him 

about 3 to 4 minutes to rehang the curtain. The inspector proceeded to take an air reading, found an insufficient velocity of 

air at the face, and issued the violation. 

I find that the facts presented in the Freeman case are 

distinguishable from those presented in the instant proceeding. 

In Freeman, the evidence established as a fact that the ventilation had been temporarily interrupted by a torn curtain which 

occurred while the inspector was on the scene, and the operator 

was in the process of restoring the ventilation and abating the 

violation shortly before the citation was issued. Since the 

inspector had knowledge of these facts, but nonetheless intervened and ordered the operator not to rehang the curtain, which 

would have restored the ventilation and cured the problem, the 

Commission concluded that the inspector's interference with the 

operator's efforts to immediately abate the condition by rehanging the torn curtain could not support a violation. 

In the instant case, the evidence establishes that the 

inspector had no personal knowledge that the extendable curtain 

had been purportedly snagged by the machine and that this may 

have caused a temporary interruption in the ventilation or somehow prevented the roof bolters from installing the curtain and 

having it in place at the time of her arrival on the scene. The 

inspector's unrebutted testimony reflects that when she arrived 

at the scene, the roof-bolting machine was positioned to begin 

bolting, the exten~able curtain had been moved back and positioned 24 feet from the face, and the blowing curtain was lying 

on top of the machine. 

Although the inspector conceded that if the bolters were to 

follow normal procedures, they would first install the blowing 

curtain, withdraw the extendable curtain, and then begin bolting, 

she found that the bolters had moved the extendable curtain back 

and had not put up the blowing curtain as required by the plan. 

Although she also believed that the bolters would have installed 

the blowing curtain if they had intended to do so before commencing bolting, she concluded that the bolters had not installed the 

blowing curtain before retracting the extendable curtain because 

the blowing curtain was lying across the machine and had not been 

1406 
installed to .within 10 feet of the face as required, and that the 

resulting reverse procedure followed by the bolters resulted in 

an unventilated face area. Further, while it is true that the 

inspector did not ask the bolters about their intentions, or 

whether they intended to install the blowing curtain before they 

began bolting, she confirmed that it would have made no difference since the removal of one type of ventilation in preparation 

for the installation of another type of ventilation would still 

constitute a violation because face ventilation was not being 

maintained at all times 10 feet from the face. 

The inspector confirmed that she saw no evidence of any work 

being performed by the bolters, and that they were simply standing by the machine and offered no explanation as to why they had 

removed the ventilation curtains out of sequence, or why the 

curtains were not installed. She saw no evidence that the 

extendable curtain had been caught or ripped by the machine, and 

after remaining at the scene to allow the bolters sufficient time 

to install the blowing curtain, she observed this being done 

within 5 minutes. She confirmed that had the bolters told her 

that the curtain was torn down by the machine, she would have 

taken this into consideration, but that it would have made no 

difference since any entanglement of the extendable curtain would 

not have prevented the bolters from installing the blowing curtain before retracting the extendable curtain. The inspector 

further confirmed that union safety committeeman Jerry Jones was 

with her during the inspection, and that on the morning of the 

hearing, he told her that both roof bolters disagreed with 

Mr. Nogosky's contention that the curtain had been caught in the 

machine, but that one of the bolters had "changed his story". and 

confirmed that the curtain had been caught in the machine, but 

the other bolter told him that this was not the case. 

The respondent's assertion that the extendable curtain had 

been caught in the roof-bolting machine is based on the hearsay 

testimony of its safety manager Joseph Nogosky. He testified 

that in the course of his investigation concerning the issuance 

of the order the roof bolters informed him that the extendable 

curtain became entangled in the roof-bolting machine while it was 

being trammed in the entry and that the curtain was retracted so 

that it could be disentangled from the machine. Mr. Nogosky 

stated further that the bolters told him that they retracted the 

curtain before putting up the blowing curtain, that they intended 

to install the blowing curtain before starting bolting, and were 

in the process of doing so when the inspector arrived on the 

scene, and that they tried to explain the circumstances to the 

inspector, but that she stated that it did not matter and 

instructed them to hang the curtain up before leaving. He also 

stated that one of the bolters told him that he had a hook in his 

hand preparing to hang up the blowing curtain, and that one could 

assume from this that the bolter was going to install the 

curtain. 

1407 
Mr. Nogosky was not with the inspector during the inspection 

and issuance of the citation, and he confirmed that he made no 

formal report of his investigation and had nothing in writing to 

support his testimony concerning what the bolters purportedly 

told him. Although he indicated that he had made notes, they 

were not produced or offered during the hearing. The two roof 

bolters in question did not testify, and their pretrial depositions were not taken. Mr. Nogosky stated that the roof bolters 

initially expressed their willingness to testify, but later 

changed their minds, and it was then too late to subpoena them. 

Although Mr. Nogosky indicated that other individuals may have 

been present when he interviewed the roof bolters, the respondent 

failed to call any other witnesses for testimony. Mr. Nogosky 

confirmed that he made no effort to contact the inspector when 

the order issued to explain what the roof bolters purportedly 

told him, and that he did not seek a conference with MSHA with 

respect to the order. 

Safety committeeman Jerry Jones testified that he was present at "the tail end" of the investigation conducted by 

Mr. Nogosky, and he confirmed that the two roof bolters gave him 

conflicting accounts with respect to whether or not the extendable curtain had been caught in the roof-bolting machine. 

Mr. Jones stated that one of the bolters told him that the curtain had not been caught in the machine, and the other bolter 

told him that he had knocked the curtain down with the machine. 

Although relevant and material hearsay testimony is admissible in Mine Act proceedings, Secretary of Labor v. Kenny 

Richardson, 3 FMSHRC 8, 12 n. 7 (January 1981), aff'd 689 F.2d 

632 (6th Cir. 1982), cert. denied, 77 L.Ed.2d 299 (1983), and 

Mid-Continent Resources, Inc., 6 FMSHRC 1132, 1135-1137 (May 

1984), Mr. Jones' testimony, which I find credible, concerning 

the conflicting accounts given to him by the two roof bolters, 

cast serious doubts in my mind with respect to the reliability 

and probativeness of the purported statements made by these 

bolters to Mr. Nogosky during his investigation, and I have given 

little weight to Mr. Nogosky's uncorroborated and undocumented 

testimony. 

Having viewed the inspector during her testimony, I find her 

to be a credible witness and believe her testimony that she saw 

no evidence of the curtain being caught in the machine, and that 

the roof bolters offered no explanation as to why they had not 

installed the ventilation curtains in question. Further, even if 

I were to believe that the curtain had been torn, the evidence 

nonetheless establishes a violation because the blowing curtain 

was not installed and laying on the machine, and Mr. Nogosky 

conceded this was the case. Under all of these circumstances, I 

conclude and find that a preponderance of all of the credible and 

1408 
probative evidence in this case establishes a violation of section 75.316, and the violation issued by the inspector IS 

AFFIRMED. The respondent's asserted defense and reliance on the 

Freeman case, supra, IS REJECTED. I cannot conclude that the 

circumstances presented were so abnormal as to absolve the 

respondent from its responsibility to insure that its ventilation 

plan was followed. 

Significant and Substantial Violation 

A "significant and substantial" violation is described in 

section 104(d) (1) of the Mine Act as a violation "of such nature 

as could significantly and substantially contribute to the cause 

and effect of a coal or other mine safety or health hazard." 

30 C.F.R. § 814(d) (1). A violation is properly designated significant and substantial "if, based upon the particular facts 

surrounding the violation there exists a reasonable likelihood 

that the hazard contributed to will result in an injury or illness of a reasonably serious nature." Cement Division, National 

Gypsum Co., 3 FMSHRC 822, 825 (April 1981). 

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

Commission explained its interpretation of the term "significant 

and substantial" as follows: 

In order to establish that a violation of a mandatory safety standard is significant and substantial 

under National Gypsum the Secretary of Labor must 

prove: (1) the underlying violation of a mandatory 

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

a measure of danger to safety-contributed to by the 

violation; (3) a reasonable likelihood that the hazard 

contributed to will result in an injury; and (4) a 

reasonable likelihood that the injury in question will 

be of a reasonably serious nature. 

In United States Steel Mining Company, Inc., 7 FMSHRC 1125, 

1129, the Commission stated further as follows: 

We have explained further that the third element 

of the Mathies formula "requires that the Secretary 

establish a reasonable likelihood that the hazard 

contributed to will result in an event in which there 

is an injury." U.S. Steel Mining Co., 6 FMSHRC 1834, 

1836 (August 1984). We have emphasized that, in 

accordance with the language of section 104(d) (1), it 

is the contribution of a violation to the cause and 

effect of a hazard that must be significant and substantial. U.S. Steel Mining Company, Inc., 6 FMSHRC 

1866, 1868 (August 1984); U.S. Steel Mining Company, 

Inc., 6 FMSHRC 1573, 1574-75 (July 1984). 

1409 
The question of whether any particular violation is significant and substantial must be based on the particular facts 

surrounding the violation, including the nature of the mine 

involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498 

(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007 

(December 1987). 

The inspector's unrebutted credible testimony reflects that 

the respondent's mine is a gassy mine which freely liberates 

methane, and because of this, it is subject to weekly spot 

inspections by MSHA. She believed that the failure to maintain 

the ventilation curtain to within 10 feet of the face to control 

methane and carry away hazardous dust presented a potential for a 

methane buildup at the face, and that such methane accumulations 

presented an ignition, fire, and explosion hazard, and that in 

the event of such incidents, it would be highly likely that 

miners working in the affected area would likely suffer burn 

injuries. 

At the time of the inspection, the inspector was aware of 

the fact that a methane ignition and fire had previously occurred 

on another section of the mine on September 19, 1988, and that 

two miners suffered burns as a result of that incident. MSHA's 

report of investigation of that incident reflects that the ignition occurred when a flammable methane/air mixture was ignited by 

heat and/or sparks generated from the cutting head of a continuous-mining machine while cutting top rock down (exhibit P-4). 

The report also reflects that at the time of the ignition, the 

ventilation line curtain was approximately 25 feet of the face, 

in violation of section 75.316, that the cutting sequence mandated by the approved ventilation system and methane dust-control 

plan was not being followed, and that the continuous-mining 

machine methane monitor was not properly calibrated. 

The inspector also confirmed that she previously issued two 

citations on January 18, 1989, for violations of section 75.316, 

and the approved ventilation plan, because of the failure by the 

respondent to maintain the ventilation curtains to within 10 feet 

of the face, and that she also issued a citation and section 

104(d) (2) order and imminent danger order on December 6, 1988, 

and October 11, 1988, citing violations of section 75.302-l(a), 

because of the failure by the respondent to maintain the ventilation curtains to within the required distances from the face 

(exhibits P-5 through P-8). 

In the instant case, the inspectors testified credibly that 

at the time she observed the cited conditions, the roof-bolting 

machine was positioned to begin roof bolting, and that the 

machine was a source of ignition because it generates heat capable of igniting methane. She also believed that any permissibility violations with respect to the roof bolter, and friction 

from the drill bits, would also be potential sources of ignition. 

1410 
Although she conceded that the two roof bolters had not actually 

commenced bolting when she observed the condition, and that no 

roof bolting was taking place, and she found no permissibility 

violations, since the mining machine had just finished cutting 

coal and would be moved to another entry, the two roof bolters 

were there to begin bolting, and she considered all of these 

factors in the context of continued mining operations, including 

her expectation that the roof bolters would normally have started 

bolting operations. Given her prior experience with previous 

citations which she had issued for not maintaining the ventilation curtains, I.cannot conclude that the inspector's belief that 

the bolters would commence bolting operations without the 

required ventilation curtains in place was unreasonable. 

The respondent asserts that while there was a momentary 

interruption to ventilation, little if any hazard resulted, and 

that the regular line brattice was in place within 24 feet of the 

face, no mining was taking place, and that 0.2 percent methane 

was present at the last permanent support 20-22 feet from the 

face. The respondent acknowledges that the roof-bolting machine 

was energized, and that the bolters told the inspector that they 

had pulled the extendable curtain back to prepare for bolting 

before installing the blowing curtain, and that they knew that 

the respondent's ventilation and dust-control plan required the 

blowing curtain to be installed before pulling back the extendable curtain. 

The section foreman did not testify in this case. The 

respondent's safety manager Joseph Nogosky, who did not accompany 

the inspector and did not observe the cited conditions, conceded 

that the roof bolters had not as yet completed their work shift 

at the time the order was issued by the inspector, and that they 

would have been in the process of bolting since the day crew had 

not as yet arrived to "change out" with them. Mr. Nogosky also 

conceded that the ventilation plan required the blowing curtain 

to be installed first before the extendable curtain was 

installed, and that the blowing curtain was not up when the 

inspector observed the cited condition. 

After careful review of all of the evidence and testimony, I 

conclude and find that the credible testimony of the inspector 

establishes that the violation was significant and substantial. 

The respondent's assertion that the "momentary lapse" of ventilation did not present a hazard is rejected. The respondent's 

assertions that no hazard existed because the roof bolter was not 

in operation and that only .2 percent methane was detected 

20-22 feet the face is likewise rejected. In my view, it is 

highly likely that methane can rapidly accumulate at the face 

during "momentary lapses" of ventilation, and the inspector 

explained that higher methane readings may be expected in the 

face, particularly when a line curtain is not in place. 

1411 
In United States Steel Mining Co., 3 MSHC 1282 (1984), the 

judge upheld a violation of section 75.316, and found that it was 

a significant and substantial violation because the reduced 

amount of ventilation air reaching the face as a result of a 

reversal in the air course made concentrations of methane more 

likely. In the instant case, the mine liberates methane freely 

and is on a weekly spot inspection cycle. A methane ignition and 

fire had previously occurred less than 5-months prior to the 

inspection in question, with resulting burn injuries to two 

miners. The prior failure by the respondent to maintain the 

ventilation curtains as required by its plan is evidenced by the 

prior violations issued by this same inspector. In view of all 

of this information which was available to the inspector, I 

conclude and find that her belief that roof bolting would have 

proceeded in the normal course of mining operations, and that it 

was reasonably likely that another methane ignition would have 

occurred because of the failure to properly maintain the ventilation curtains cited in this case, was reasonable in the circumstances. Accordingly, I agree with the inspector's significant 

and substantial finding, and IT IS AFFIRMED. 

The Unwarrantable Failure Issue 

The governing definition of unwarrantable failure was 

explained in Zeigler Coal Company, 7 IBMA 280 (1977), decided 

under the 1969 Act, and it held in pertinent part as follows at 

295-96: 

In light of the foregoing, we hold that an inspector should find that a violation of any mandatory 

standard was caused by an unwarrantable failure to 

comply with such standard if he determines that the 

operator involved has failed to abate the conditions or 

practices constituting such violation, conditions or 

practices the operator knew or should have known 

existed or which it failed to abate because of a lack 

of due diligence, or because of indifference or lack of 

reasonable care. 

In several recent decisions concerning the interpretation 

and application of the term "unwarrantable failure," the 

Commission further refined and explained this term, and concluded 

that it means "aggravated conduct, constituting more than ordinary negligence, by a mine operator in relation to a violation of 

the Act." Energy Mining Corporation, 9 FMSHRC 1997 (December 

1987); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007 (December 

1987); Secretary of Labor v. Rushton Mining Company, 10 FMSHRC 

249 (March 1988). Referring to its prior holding in the Emery 

Mining case, the Commission stated as follows in Youghiogheny & 

Ohio, at 9 FMSHRC 2010: 

1412 
we·stated that whereas negligence is conduct that 

is "inadvertent," "thoughtless" or "inattentive," 

unwarrantable conduct is conduct that is described as 

"not justifiable" or "inexcusable." Only by construing 

unwarrantable failure by a mine operator as aggravated 

conduct constituting more that ordinary negligence, do 

unwarrantable failure sanctions assume their intended 

distinct place in the Act's enforcement scheme. 

In Emerv Mining, the Commission explained the meaning of the 

phrase "unwarrantable failure" as follows at 9 FMSHRC 2001: 

We first determine the ordinary meaning of the 

phrase "unwarrantable failure." "Unwarrantable" is 

defined as "not justifiable" or "inexcusable." "Failure" is defined as "neglect of an assigned, expected, 

or appropriate action." Webster's Third New International Dictionary (Unabridged) 2514, 814 (1971) 

("Webster's"). Comparatively, negligence is the failure to use such care as a reasonably prudent and careful person would use and is characterized by 

"inadvertence," "thoughtlessness," and "inattention." 

Black's Law Dictionary 930-31 (5th ed. 1979). Conduct 

that is not justifiable and inexcusable is the result 

of more than inadvertence, thoughtlessness, or 

inattention. * * * 

The Petitioner's Arguments 

In support of the inspector's unwarrantable failure finding 

in this case, the petitioner does not contend that violations are 

unwarrantable per se, when there exists prior violations of the 

same standard. The petitioner takes the position that "the 

unique factual history in this case, especially management's 

involvement," compels the conclusion that the respondent demonstrated "indifference" or "total lack of interest" regarding 

ventilation curtain violations, and that such indifference is 

demonstrated by management's condoning of the curtain violation 

in question. 

In support of its argument, the petitioner asserts that 

Inspector McCormick was assigned to the subject mine in 

September, 1988, and that her initial involvement with curtain 

violations occurred when she terminated two section 104(d) (2) 

orders which had been issued on September 20, 1988, on the No. 9 

section for violations of section 75.316, and the same ventilation plan at issue in the instant case (exhibit P-4). The petitioner points out that one of the orders was issued for a 

violation of the identical plan provision which was violated in 

this case (failure to maintain an extendable line curtain to 

within 10 feet of the face), that the violation contributed to a 

1413 
methane ignition, that burned two miners, and that the respondent's section coordinator, Paul Boyd, was present during MSHA's 

investigation of that incident. · 

The petitioner asserts that 3 weeks after the aforesaid 

methane ignition, Inspector McCormick issued a section 104(d) (2) 

order on October 1, 1988, on the No. 9 section, for a violation 

of section 75.302-l(a), for failure to maintain a line curtain to 

within 10 feet of a face where a continuous-mining machine was in 

operation (exhibit P-6). Petitioner points out that the respondent's section coordinator Paul Boyd was in the working place at 

the time of the violation, and since Mr. Boyd had been involved 

in the previous MSHA investigation of the September, 1988, 

methane ignition, it concludes that Mr. Boyd condoned the violation issued by Inspector McCormick. 

The petitioner asserts that the next experience Inspector 

McCormick had with line curtain violations was on December 6, 

1988, when she issued a section 104(a) citation for a violation 

of section 75.302(a), after finding that a line curtain on the 

No. 9 section had bene partially removed by a scoop crew, and 

that this condition contributed to an imminent danger which she 

issued in connection with the citation in that 1.4 percent 

methane was detected at the face (exhibits P-7, P-8). 

The petitioner states that the final line curtain violation 

detected by Inspector McCormick prior to the issuance of the 

contested order in this case occurred on January 18, 1989, when 

she issued two section 104(a) citations for violations of section 

75.316, for the failure to install line curtains to within 

10 feet of the face in the No. 3 and No. 4 entries of the No. 10 

section. The petitioner asserts that these violations were not 

particularly hazardous because no equipment was in either place 

at the time. However, the petitioner views these citations as 

significant because Glenn Rollins, the owl shift foreman 

responsible for the two roof bolters in the instant case, was 

also "involved" with the two prior citations. Under the circumstances, the petitioner believes that the issuance of these 

citations had no deterrent effect because the order issued by the 

inspector in the instant case came 2 weeks later for a violation 

of the same regulation on the same mine secti~n. 

The petitioner believes that after the September ignition in 

which two miners were burned, "one would think that line curtain 

violations would be non-existent at the Oak Grove Mine." Yet 

3 weeks after the ignition, the section coordinator condoned the 

same violative practice on the same section, and notwithstanding 

these two events, line curtain violations continued, and the 

inspector found three identical violations on the same section 

within three inspection shifts. The petitioner concludes that 

the serious nature of these violations and their recurring frequency demonstrates an "indifferent" attitude and a "total or 

1414 
nearly total. lack of interest" by the respondent and that it 

appears that the respondent considered the violations of "little 

consequence" as evidenced by their recurring frequency. 

The Respondent's Arguments 

The respondent argues that only a mine operator can commit 

an unwarrantable failure violation, and that under section 3(d) 

of the Act, an operator includes a person who operates, controls 

or supervises a mine but does not include a rank-and-file miner. 

Citing Rochester & Pittsburgh Coal Co., ·11 FMSHRC 1978, 1983 

(October 1989), the respondent takes the position that the conduct of a rank-and-file miner cannot be imputed to a mine operator for purposes of an unwarrantable failure finding and that 

the action of the two roof bolters in this case are immaterial in 

determining whether an unwarrantable failure occurred since the 

actions of the respondent's management personnel alone are 

relevant. 

The respondent asserts that the inspector's belief that an 

unwarrantable failure occurred because "a particularly hazardous 

situation" existed that imposed a "heightened duty" upon the 

respondent "to be aware of what electrical equipment was doing in 

the face," and that she considered the fact that the line curtain 

was further than 10 feet from the face to be a particularly 

hazardous condition is impossible to reconcile with the ventilation plan which requires the extendable line curtain to be 

retracted before the first row of bolts is installed. Respondent 

asserts that as bolting progresses, the curtain is advanced to 

the first row of bolts outby the row being set, and that the 

curtain is not extended to within 10 feet of the face until 

bolting is completed. Under these circumstances, the respondent 

concludes that the "particularly hazardous situation" is an 

approved practice under its ventilation plan. 

The respondent argues that the inspector's perception that 

the respondent had a "heightened duty" to be aware of what the 

equipment was doing in the face is based on an erroneous assertion that the day shift section foreman Milton Presley should 

have checked on the roof bolter operators (Tr. 48-51). Respondent points out that the cited incident occurred at 7:14 a.m., 

before the "hot seat" crew change took place and that the roof 

bolters were owl shift crew members who were supervised by that 

shift's section foreman Glen Rollins, and that Mr. Presley and 

his day shift crew had not yet arrived on the section (Tr. 51, 

164-165). 

With regard to the inspector's reliance on the respondent's 

history of prior violations, the respondent asserts that the fact 

that a similar violation occurred in the past does not establish 

inexcusable neglect if such a violation reoccurs. The respondent 

points out that the previously cited conditions in the No. 10 

1415 
section were not similar to the conditions cited in the instant 

case and there was no equipment in the place where the curtain 

had not been maintained within 10 feet of the face. Further, 

there is no evidence that the two bolters in this case were 

involved in the prior incident. Under the circumstances, the 

respondent concludes that foreman Rollins had no reason to 

closely supervise two experienced bolters in the performance of 

routine work when they had exhibited no carelessness or neglect 

in the past, and he had no obligation to be present while they 

moved the roof-bolting machine into place to commence bolting, 

and that his failure to supervise their every move is not aggravated conduct amounting to an unwarrantable failure. 

The evidence establishes that during a "hot seat" change 

between working shifts there is little or no interruption in the 

production cycle and the equipment is not shutdown and is 

generally in use between shifts. The inspector conceded that 

when she arrived at the scene, the shifts were in the process of 

changing, and that the two roof bolters were from the "owl shift" 

and were only present for 5 or 10 minutes prior to her arrival. 

Although the inspector also conceded that she would not have 

expected the fire boss to observe that the ventilation curtains 

were not in place and take appropriate action, she believed that 

in light of the prior history of citations, the section foreman 

should have checked on the roof bolters when they were in the 

cited area to insure that they complied with the ventilation 

plan. 

The evidence further establishes that Inspector McCormick 

was on the section during the day shift. She testified that the 

section foreman was not on the section when she arrived and that 

he was "outby." She stated that she met him as she was leaving 

the working place, but she could not recall speaking with him, 

and she conceded that she made no inquiries to determine when the 

foreman had last been with the roof bolters. She identified the 

foreman as the day shift foreman Milton Presley, but she admitted 

that the owl shift section foreman who was responsible for the 

supervision of the roof bolters in question was Glen Rollins and 

that he was leaving the section as she was coming in (Tr. 48-52). 

Although the inspector testified on direct that she spoke with 

Mr. Rollins (Tr. 51), she later testified that she could not 

recall speaking with him (Tr. 160). She also confirmed that she 

encountered Mr. Presley after she had issued the violation (Tr. 

159) . 

I find the inspector's expectation that day shift foreman 

Presley should have been present to observe the roof bolters to 

insure the proper placement of the ventilation curtains to be 

unreasonable. As the day shift foreman, Mr. Presley had no 

supervisory responsibility for the roof bolters who were under 

the supervision of Mr. Rollins, and at the time the inspector met 

Mr. Presley she had already issued the violation. With regard to 

1416 
Mr. Rollins, .al though the inspector indicated that she was leaving the scene to find him (Tr. 61), her testimony that she may 

have spoken with him is contradictory, and there is no evidence 

that she ever discussed the matter with him or that she had any 

evidence that he was never present when the roof bolters may have 

been working on the section, or that he was aware of the fact 

that the ventilation curtains were not in place. 

I find no support for the inspector's belief or suggestion 

that foreman Rollins should have been present when the roof 

bolters were performing their work to insure that the ventilation 

curtains were properly in place. There is no evidence that the 

roof bolters were other than experienced miners, nor is there any 

evidence that they were ever involved in any of the other previously issued citations relied on by the inspector as part of 

her unwarrantable failure finding. The inspector testified that 

the roof bolters would normally go about their business and 

install the ventilation curtains before beginning their roof 

bolting duties. In the absence of any evidence that the roof 

bolters were not properly trained, were ignorant of the requirements of the ventilation plan, or had engaged in previous acts of 

carelessness or neglect, I find no basis for concluding that 

Mr. Rollins should have been expected to be present when they 

were preparing to roof bolt in order to insure that the ventilation curtains were properly in place. Notwithstanding the issuance of the prior citations, and the fact that Mr. Rollins may 

have been aware of these citations, I find no reason why he 

should be required or expected to be present in each and every 

working place on the section to personally supervise his crew 

while they go about their work. If the petitioner believes that 

such a requirement may be necessary as part of the respondent's 

ventilation plan, it may wish to explore this further as part of 

the regulatory ventilation plan approval process. 

With regard to Mr. Rollins' "involvement" with the previous 

citations issued by the inspector on January 18, 1989, no further 

testimony or explanation was forthcoming from the inspector as to 

the extent of Mr. Rollins' involvement other than that the citations were issued on the number 10 section. I take note of the 

fact that the citations were served on J. c. Simms, and that they 

were issued during the day shift at 9:30 and 9:35 a.m. (exhibit 

P-5). The inspector confirmed that these previously issued 

citations did not involve any roof-bolting machine in place in 

the face area, and in fact, the inspector conceded that no mining 

activity was taking place, and no equipment was in place in the 

cited areas, and the petitioner conceded that the violations were 

not particularly hazardous. 

With regard to the petitioner's arguments concerning the 

respondent's section coordinator Paul Boyd, and his "involvement" 

with the prior citations in September, 1988, and October, 1988, 

the record reflects that Mr. Boyd's "involvement" with the 

1417 
September, 1988 citations which resulted from the methane ignition, was limited to his participation in the MSHA investigation 

of that incident (exhibit P-4). Mr. Boyd's "involvement" in the 

October, 1988, was more direct in that Inspector McCormick served 

the violation on him, indicated in the face of the order that 

"the section coordinator" was.in the place at the time the violative conditions were observed, and she testified that this was in 

fact the case (Exhibit P-6, Tr. 25, 33). 

I take note of the fact that the prior citations concerning 

Mr. Boyd were issued on the No. 9 section, and not the No. 10 

section where the violation in the instant case occurred. The 

October, 1988, citation concerned a violation of section 

75.302-l(a), and a continuous-mining machine, rather than a roof 

bolter, was operating in the section. MSHA's report of investigation reflects that the September, 1988, citations concerned a 

methane ignition which occurred when a continuous-mining machine 

was cutting down top rock. 

Although Inspector McCormick testified that a section 

coordinator, such as Mr. Boyd, had supervisory authority over all 

of the section foremen, she confirmed that his supervisory 

authority was limited to the foremen on the No. 9 section, and 

not to foremen on the No. 10 section, or foremen in general (Tr. 

33). There is no evidence that Mr. Boyd exercised any supervisory authority over section foremen Rollins or Presley, the 

foremen on the No. 10 section at the time the violation in the 

instant case was issued. 

I find no evidence to support the petitioner's conclusion 

that the respondent's section coordinator Paul Boyd condoned 

violations of the respondent's ventilation plan or violations of 

the previously cited safety standards. Such a conclusion concerns possible criminal conduct and should not be made or taken 

lightly. If the Secretary truly believes that a culpable section 

foreman or other member of mine management has engaged in any 

such egregious conduct with respect to violations of the law she 

should seriously consider instituting a section llO(c) proceeding 

against the offending party rather than "bootstrapping" such an 

unsupported conclusion as part of an unwarrantable failure argument. Further, if the Secretary also believes that a mine operator's mine management has exhibited "indifference" or a "total 

lack of interest" regarding repetitious violations, she should 

seriously consider the timely implementation of the "pattern of 

violations" provisions found in section 104(e) (1) of the Act. In 

my view, the use of these available statutory sanctions would 

provide a more direct and effective means of insuring compliance 

in an appropriate situation. 

In the instant case, the unrebutted testimony of safety 

manager Joseph Nogosky reflects that the respondent took disciplinary action against Mr. Boyd as a result of the October, 

1418 
1988, citation issued by the inspector (Tr. 149). The record 

also reflects that Mr. Nogosky conducted an investigation of the 

contested order in this case, and that the mine safety committee, 

the general mine foreman, and the mine superintendent were present during the inquiry. Mr. Nogosky confirmed that he spoke with 

foreman Rollins and the roof bolters in an effort to ascertain 

why the order had issued, and he stated that it is a common 

practice at the mine for management to investigate all unwarrantable failure orders (Tr. 109). Mr. Nogosky further confirmed 

that the roof bolters were not disciplined because he believed 

they reacted properly to an "abnormal situation" (Tr. 121). 

In view of the foregoing, I cannot conclude that mine 

management was indifferent or "lacked interest" in the order 

issued by the inspector in this case. The record establishes 

that management disciplined section coordinator Boyd, and following its customary procedure, investigated the circumstances 

surrounding the issuance of the contested order by the inspector 

in this case. Further, the UMWA chairman of the mine safety 

committee Jerry Jones testified that he conducted no investigation of the incident, failed to tell mine management about the 

conflicting "stories" related to him by the two roof bolters, and 

no testimony was forthcoming from Mr. Jones about any of the 

prior citations or the asserted general neglect of ventilation 

curtain requirements on the part of mine management. I also take 

note of the fact that the cited conditions in this case were 

abated within 6 minutes, that the two prior citations issued by 

the inspector in January, 1989, were terminated within 10 and 

20 minutes, and that the citation of December, 1988, was terminated within 13 minutes. 

The petitioner in this case does not contend that repetitious violations of a mandatory standard may per se serve as the 

basis for an unwarrantable failure finding. Inspector McCormick 

testified that part of her unwarrantable failure finding was 

based on the respondent's prior violations (Tr. 27, 29, 61), but 

that this was but one factor that she considered (Tr. 29). The 

other factor which she considered was her belief that the respondent had a "heightened duty to be aware of what the electrical 

equipment was doing in the face" because in her view, the violative conditions presented a "particularly hazardous situation'' 

which the respondent should have been aware of (Tr. 27, 47-48). 

In my view, the inspector's concern about any hazards associated 

with the cited conditions is relevant in the context of a gravity 

or "S&S" finding, rather than the unwarrantable nature of the 

violation. 

The thrust of the petitioner's unwarrantable failure argument is its belief that mine management has engaged in a course 

of conduct which establishes that it condones violations of its 

ventilation plan and has clearly demonstrated an "indifferent" 

attitude and "lack of interest" in insuring compliance with the 

1419 
mine ventil.ation plan. However, in view of the above findings 

and conclusions, and. after careful consideration of the entire 

record in this case, I find no evidentiary support for the petitioner's arguments and conclusions concerning the conduct of mine 

management in this case. I cannot conclude that the petitioner 

has established any aggravated conduct on the part.of the respondent with respect to the contested order issued by the inspector 

in this case. Under the circumstances, the inspector's finding 

in this regard IS VACATED, and the order IS MODIFIED to a section 

104(a) citation, with "S&S" findings. 

Size of Business and Effect of Civil Penalty Assessment on the 

Respondent's Ability to Continue in Business 

The parties stipulated that the respondent is a large mine 

operator and that the payment of the civil penalty assessment for 

the violation will not adversely affect its ability to continue 

in business. I adopt these stipulations as my findings and 

conclusions on these issues. 

Good Faith Abatement 

The parties stipulated that the violation in question was 

timely abated by the respondent. The record establishes that 

abatement was completed within 5 or 6 minutes when the roof 

bolters installed the required ventilation curtains. I conclude 

and find that the cited conditions were timely abated in good 

faith by the respondent. 

Gravity 

In view of my "S&S" findings, I conclude and find that the 

violation was serious. 

Negligence 

I conclude and find that the violation resulted from the 

respondent's failure to exercise reasonable care to insure that 

the required ventilation curtains were installed and in place at 

the time the inspector observed the cited conditions, and that 

this failure on the respondent's part was the result of ordinary 

negligence. 

History of Prior Violations 

The petitioner did not produce or offer a computer print-out 

listing the respondent's prior compliance record. The pleadings 

include an MSHA Form 1000-179, which is a part of the proposed 

assessment "papers" served on the respondent, and the information 

contained therein reflects that the respondent was cited for 518 

assessed violations during the 24-month period preceding the 

issuance of the contested order. However, in the absence of any 

1420 
computer print-out or further information concerning the total 

number of section 75.316 violations, I am unable to make any 

specific conclusions or findings other than to take note of the 

total number of prior assessed violations attributable to the 

respondent. However, I have taken this information into consideration, including copies of the prior citations which are of 

record in this case; which reflect four prior violations of 

section 75.316. 

Civil Penalty Assessment 

The respondent took issue with the narrative findings of 

MSHA's "Special Assessment" office which indicates that the roof 

bolters were actually installing roof bolts at the time the 

inspector observed the cited conditions. The inspector agreed 

that these "assumptions" are incorrect and that the bolters were 

not installing roof bolts when she observed the violative conditions. The respondent also took issue with several other 

"assumptions" and "conclusions" which appear in the narrative 

findings, and he inspector agreed that some of these are 

incorrect (Tr. 67-73). It is clear that I am not bound by any 

"special assessment" made in this case, nor am I bound by the 

narrative statements made in support of the proposed civil penalty assessment made in this case. In any event, I find merit in 

the respondent's objections to the accuracy of these statements 

and have considered its arguments in connection with the civil 

penalty assessment which I have made in this case. 

On the basis of the foregoing findings and conclusions, and 

taking into account the civil penalty assessment criteria found 

in section llO(i) of the Act, I conclude and find that a civil 

penalty assessment in the amount of $500 is reasonable and appropriate in this case. 

ORDER 

The respondent IS ORDERED to pay a civil penalty assessment 

in the amount of $500 for the violation which has been affirmed 

in this case. Payment is to be made to the petitioner within 

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

receipt of payment, this matter is dismissed. 

1421 
Distribution: 

William Lawson, Esq., Office of the Solicitor, U.S. Department of 

Labor, 2015 Second Avenue North, Suite 201, Birmingham, AL 35203 

(Certified Mail) 

Billy M. Tennant, Esq., Employee Relations, U.S. Steel Mining 

Co., Inc., 600 Grant street, Room 1580, Pittsburgh, PA 15219-4776 

(Certified Mail) 

/fb 

1422 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 6 1990 

CONSOLIDATION COAL COMPANY, 

Contestant 

. . 

. . CONTEST PROCEEDINGS 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

DECISION 

Docket No. PENN 90-47-R 

Order No. 3098641: 12/14/89 

Dilworth Mine 

Docket No. WEVA 90-50-R 

Order No. 3311391: 12/6/89 

Blacksville No. 2 Mine 

Appearances: Walter J. Scheller, Esq., Consolidation Coal 

Company, Pittsburgh, Pennsylvania, for the 

Contestant: 

Page H. Jackson, Esq., U.S. Department of Labor, 

Office of the Solicitor, Arlington, Virginia, for 

the Respondent. 

Before: Judge Maurer 

These cases are before me under section 105(d) of the 

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

~., hereinafter the "Act". 

Pursuant to notice, these cases were called for hearing in 

Morgantown, West Virginia on March 21, 1990, and were heard at 

that time. On June 1, 1990, the parties filed post-hearing briefs 

which I have considered along with the entire record in making 

this decision. 

At the hearing, the contestant moved to withdraw the 

application for review in Docket No. PENN 90-47-R based on the 

fact that section 107(a) Order No. 3098641 had been vacated. The 

Secretary had no objection and I granted that motion on the 

record and therefore dismissed the contest proceeding. 

Docket No. WEVA 90-50-R; Order No. 3311391 

Order No. 3311391, issued pursuant to section 107(a) of the 

Act, was issued on December 6, 1989, by MHSA Inspector Lynn 

1423 
Workley at the Blacksville No. 2 Mine operated by the contestant. 

That order charges as follows: 

Information gathered from miners and site inspection 

indicates that it is a practice at this mine for 

wiremen to install wire above rail placed on unsecured 

ties over low and irregular areas. Dan Meyers and Pete 

Yost both stated that they have slipped and fallen 

while attempting to install wire in such areas. 

On December 6, 1989, Inspector Workley was told by a 

Mr. Michael Ayers, who is the President of the union local and a 

safety committeeman, that a hazardous condition existed in that 

wiremen were working off unsafe platforms while hanging wire in 

the Six South grade job area. He reported that there had been 

several instances where the wiremen had nearly fallen. 

Inspector Workley went into the mine to have a look for 

himself. He was accompanied by Jay Simes, the miners' 

representative and Todd Moore, the Company safety representative. 

When he arrived in the Six South area, he also met Mr. Daniel 

Myers, one of the wiremen. 

They proceeded to the Six South supply track. The bottom in 

this area had been graded, but was irregular with bumps and dips 

which had loose unconsolidated lumps and small pieces of rock 

strewn along it. The wooden ties had been laid down, but the 

rails were not spiked to these cross-ties. Since the bottom was 

irregular, the rails laid along the entry were six inches to a 

foot and a half above the cross-ties in places. The wooden 

cross-ties on the mine floor were on loose, unconsolidated 

material and were tipped in various directions. The rails 

themselves had been joined together at 10 to 12 foot intervals 

with steel ties. The mine roof in this area varied from six and 

one-half to nine feet above the mine floor. The trolley wire was 

already installed approximately 72 inches above where the top of 

the rails would eventually be when the rails were installed and 

ballasted with crushed limestone. The wire would also be 

approximately six inches outside the gauge of the rail. 

Inspector Workley stepped up on a rail in an area where it 

did not rest on the wooden cross-ties and found that the rail 

bounced up and down under his weight. Mr. Moore stated to the 

inspector that the company didn't want the wiremen to install 

wire that way. They wanted them to lay down boards on the 

cross-ties for a platform to work on. However, in the considered 

opinion of the inspector, that would not have provided a stable 

work platform either. The inspector testified that he told 

Mr. Moore that he (the inspector) didn't think that you could lay 

boards on ties which tip from one side to the other and roll 

1424 
forward and back as well and make a stable work platform out of 

it. 

Mr. Daniel Myers has been employed by Consolidation Coal 

Company at the Blacksville No. 2 Mina since 1971 and has been a 

wireman for the past five years. As such, he installs trolley 

wire in construction and development areas of the mine. 

Installation of the trolley wire involves drilling holes in 

the roof, making up wire hangers, installing them, including 

lining them up and tightening them, placing the trolley wire 

on the hangers and pulling it tight with come-alongs and placing 

the trolley wire into the trolley clamp of each hanger and 

tightening up that clamp. 

The established practice at the Blacksville No. 2 Mine was 

to install the trolley wire prior to spiking the rails to the 

cross-ties at least in those areas of the mine where the bottom 

was low and irregular. Mr. Myers testified that to tighten the 

wire hangers, a wireman stood on a five-gallon bucket resting on 

the loose and unsecured cross-ties. When he tightened the 

trolley wire in the trolley clamp, he stood on the rail suspended 

between high areas of the mine floor. Mr. Myers further 

testified that when tightening the hangers and trolley clamps 

"[y]ou put your whole body into it because you [sic] got to get 

that thing tight because you got motors and stuff." If the 

wrench slips during this tightening process '[y]ou're going off 

of whatever your standing on."(Tr. 74j_ Myers also testified 

that he has fallen a number of times while tightening wire 

hangers and trolley clamps where the cross-ties were loose and 

unsecured and believed that he could be seriously injured from 

such a fall. He opined that when the rails are spiked to the 

cross-ties, a wireman has a more secure footing since the 

cross-ties don't wobble. 

On December 6, 1989, Myers related to Inspector Workley that 

the wiremen were installing trolley wire in the above fashion, 

i.e., standing on five-gallon buckets or on top of the steel 

rails. 

Inspector Workley considered what he had been told by Moore, 

Ayers, and Myers and his own direct observation in the Six South 

supply track and determined that an imminent danger existed and 

so issued the order at bar. He believed that the practice of 

installing trolley wire over unsecured cross-ties in low and 

irregular areas of the mine posed several hazards to miners. One 

was that a cross-tie would tip or roll under a wireman causing 

him to be thrown to the mine floor or to strike parts of his body 

against the rail, cross-ties, or the mine floor. Another was 

that a wireman standing on the rail could easily slip off and 

1425 
fall onto the steel rail. Inspector Workley characterized these 

hazards as "[s]lip or trip and fall, stumble and fall." (Tr. 33). 

He further testified that such an accident could result in 

strains, sprains, broken bones, dislocations of bones, or if a 

wireman struck his head on the steel .·rail, even fatal injuries. 

There was much testimony from the operator's management 

personnel to the effect that the wiremen had been instructed to 

build platforms to make their job function safe. More 

specifically, Myers in particular, was told not to stand on a 

five-gallon bucket to reach over his head to install trolley wire. 

I find credible that testimony that the wiremen had been 

instructed to build the necessary platforms to make their work 

area safe prior to the issuance of the imminent danger order at 

bar. Furthermore, Myers admits that on at least one occasion he 

was told to build a platform or to spike the rails to the ties 

before hanging the trolley wire. He also admits to having stood 

on a five-gallon bucket to perform his work both before and after 

he was specifically instructed by mine management not to do so. 

Nevertheless, the practice existed whereby wiremen stood on 

five-gallon buckets placed on the top of teetering wooden ties 

that were loose and unsecured while they worked off-balance over 

their heads. They also stood on the unsecured moving rails to 

work over their head on the trolley wire. The major point here 

is that these practices in fact existed whether Consolidation 

Coal Company management wanted them to or not. 

Section 3(j) of the Act defines an imminent danger as: 

The existence of any condition or practice in a coal or 

other mine which could reasonably be expected to cause 

death or serious physical harm before such condition or 

practice can be abated. 

The test of validity of an imminent danger order is whether 

a reasonable person given a qualified inspector's education and 

experience would conclude that the facts indicated an imminent 

danger. Freeman Coal Mining Co. v. Interior Board of Mine 

Operations Appeals, 804 F.2d 741 (7th Cir. 1974). See also C.D. 

Livingston, 8 FMSHRC 1006 (1986); and United States Steel, 4 

FMSHRC 163 (1982). 

In Roche.ster & Pittsburgh Coal Company v. Secretary of 

Labor, 11 FMSHRC 2159, 2163 (November 1989), the Commission 

adopted the position of the Fourth and Seventh Circuits in 

Eastern Associated Coal Corporation v. Interior Board of Mine 

Operation Appeals, 491 F.2d 277, 278 (4th Cir. 1974), and Old Ben 

Coal Corp. v. Interior Board of Mine Operation Appeals, 523 F.2d 

25, 33 (7th Cir. 1975), holding that "an imminent danger exists 

1426 
when the condition or practice observed could reasonably be 

expected to cause death or serious physical harm if normal mining 

operations were permitted to proceed in the area before the 

dangerous condition is eliminated." In the Old Ben Corp. case, 

the court stated as follows at 523 F.2d at 31: 

Clearly, the inspector is in a precarious position. He 

is entrusted with the safety of miners' lives, and he 

must ensure that the statute is enforced for the 

protection of these lives. His total concern is the 

safety of life and limb •••• We must support the 

findings and the decisions of the inspector unless 

there is evidence that he has abused his discretion or 

authority. (Emphasis added). 

The Commission stated as follows at 11 FMSHRC 2164: 

In addition, R&P's focus on the relative likelihood of Coy 

being injured while under the moving belt ignores the admonition 

in the Senate Committee Report for the Mine Act that an imminent 

danger is not to be defined "in terms of a percentage of 

probability that an accident will happen." s. Rep. No. 181, 95th 

Cong., 1st Sess. 38 (1977), reprinted in Senate Subcommittee on 

Labor of the Committee on Human Resources, 95th Cong., 2nd Sess, 

Legislative History of the Federal Mine Safety and Health Act of 

1977 at 626 (1978). Instead, the focus is on the "potential of 

the risk to cause serious physical harm at any time." Id. The 

Committee stated its intention to give inspectors "the necessary 

authority for the taking of action to remove miners from risk." 

Id. 

According to MSHA Inspector Workley, the imminent danger 

order was issued because of a "practice" which existed in this 

mine as set out above. Inspector Workley maintained that this 

"practice" constituted an "imminent danger" because of the 

injuries which might reasonably result from an unabated 

continuation of this practice. I concur with the inspector that 

the cited practice could reasonably be expected to cause serious 

physical harm" if not discontinued. 

I further find that the operator had at least permitted a 

dangerous practice to exist by allowing these wiremen to install 

trolley wire in the manner described earlier in this decision. 

The fact that company management instructed the miners to install 

the wire in some other safer fashion is not persuasive because it 

is obvious to me that they have not taken adequate measures to 

assure compliance with their directives in this regard. One 

miner testified at the hearing that he is still standing on five 

gallon buckets to install this wire. 

1427 
I conclude from .the entire record herein that the inspector 

could not have been reasonably assured thai this practice would 

be abated before a serious injury accident occurred. Under these 

circumstances, I further conclude that the inspector as well as 

the record herein provides a cogent ahd compelling- rationale for 

issuing the order at bar and the facts presented in this record 

fully support and meet the legal standard for the aff irmance of 

this order. Accordingly, I find that there was an imminent 

danger and affirm Order No. 3311391. 

ORDER 

Order No. 3311391 is affirmed and Contest Proceeding Docket 

No. WEVA 90-50-R is dismissed. 

Order No. 3098641 has been vacated by the Secretary and 

therefore the contestant's motion to withdraw the application for 

review docketed at PENN 90-47-R is granted and the proceeding 

dismissed. 

urer 

ative Law Judge 

Distribution: 

Walter J. Scheller, III, Esq., Consolidation Coal Company, 1800 

Washington Road, Pittsburgh, PA 15241 

Page H. Jackson, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Blvd., Rm. 516, Arlington, VA 22303 

(Certified Mail) 

/ml 

1428 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

JUL 6 1990 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

ENERGY FUELS COAL 

INCORPORATED, 

Respondent 

. . Docket No. WEST 90-25 

A.C. No. 05-03455-03576 

Southfield Mine 

DECISION 

Appearances: Margaret A. Miller, Esq., Robert J. Murphy, Esq. 

Office of the Solicitor, U.S. Department of Labor, 

Denver, Colorado, 

for Petitioner; 

Phillip D. Barber, Esq., Welborn, Dufford, Brown & 

Tooley, Denver, Colorado, 

for Respondent. 

Before: Judge Lasher 

This proceeding was initiated by the filing of a petition 

for assessment of penalties by the Secretary of Labor pursuant to 

Section 110 of the Federal Mine Safety and Health Act of 1977, 30 

u.s.c. § 820 (1977) (herein the "Act"). 

This matter was consolidated and scheduled for hearing with 

two other penalty dockets, WEST 89-440 and WEST 90-52. At the 

commencement of the hearing on June 12, 1990, an overall settlement had been concluded and was announced covering all three 

citations involved in this docket. Such settlement agreement was 

considered and approved from the bench and is here affirmed. The 

prosecution of Citation No. 3077006 is to be dropped on the basis 

of insufficient evidence. As to Citations numbered 3077007 and 

3077008, the "Significant and Substantial" designations thereon 

are to be deleted and penalties of $50 each are to be paid by the 

Respondent. 

1429 
ORDER 

1. Citation numbered 3077006 is VACATED. 

2. Citations numbered 3077007 and 3077008 are MODIFIED to 

delete the "Significant and Substantial" designations thereon and 

are otherwise AFFIRMED. 

3. Respondent, if it has not previously done so, shall pay 

to the Secretary of Labor, the total sum of $100 as and for the 

civil penalties above specified and here assessed. 

/2- .- . _,.·· - -"/ ~ y"~ "._,..,. .. /-~ _.«-7 , ' J . .• , ,,.,, .,,,. • ., ,,/-e· ~ . ~ r ~-c.. £.., / / 

Michael A. Lasher, Jr. 

Adminstrative Law Judge 

Distribution: 

Margaret A. Miller, Esq., Robert J. Murphy, Esq., Office of the 

Solicitor, U.S Department of Labor, 1585 Federal Building, 1961 

Stout Street, Denver, CO 80294 (Certified Mail) 

Phillip D. Barber, Esq., Welborn, Dufford, Brown & Tooley, 1700 

Broadway, Suite 1700, Denver, CO 80290-1199 (Certified Mail) 

/ek 

1430 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 . 

JUL 6 1990 

SECRETARY OF LABOR, . CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

ENERGY FUELS COAL 

INCORPORATED, 

Respondent 

. . 

Docket No. WEST 90-52 

A.C. No. 05-03455-03577 

Southfield Mine 

DECISION 

Appearances: Margaret A. Miller, Esq., Robert J. Murphy, Esq. 

Office of the Solicitor, U.S. Department of Labor, 

Denver, Colorado, 

for Petitioner; 

Phillip D. Barber, Esq., Welborn, Dufford, Brown & 

Tooley, Denver, Colorado, 

for Respondent. 

Before: Judge Lasher 

This proceeding was initiated by the filing of a petition 

for assessment of penalties by the Secretary of Labor pursuant to 

Section 110 of the Federal Mine Safety and Health Act of 1977, 30 

u.s.c. § 820 (1977) (herein the "Act"). 

This matter was consolidated and scheduled for hearing with 

two other penalty dockets, West 89-440 and WEST 90-25. At the 

commencement of the hearing on June 12, 1990, a settlement had 

been concluded and was announced covering all five citations 

involved. Such settlement agreement was considered and approved 

from the bench and is here affirmed. 

Petitioner's original administrative penalty assessments for 

the five citations was $79 each. Pursuant to the settlement, 

Respondent agrees to pay in full the $79 assessments for Citations numbered 3077014, 3077065, and 3240478. As to Citations 

numbered 3077061 and 3077067, Petitioner agrees that the "Significant and Substantial" designations thereon should be deleted 

and the parties concur as to assessment of $50 penalty for each. 

1431 
ORDER 

1. Citations numbered 3077014, 3077065, and 3240478 are 

AFFIRMED. 

2. Citations numbered 3077061 and 3077067 are MODIFIED to 

delete the "Significant and Substantial" designations thereon and 

are otherwise AFFIRMED. 

3. Respondent, if it has not previously done so, shall pay 

to the Secretary of Labor, the total sum of $337 as and for the 

civil penalties above specified and here assessed for the five 

subject citations. 

Distribution: 

'2li-;~L(-;q~. ~Jd1 /J 

Michael A. Lasher, Jr.' 

Adminstrative Law Judge 

Margaret A. Miller, Esq., Robert J. Murphy, Esq., Office of the 

Solicitor, u.s Department of Labor, 1585 Federal Building, 1961 

Stout Street, Denver, CO 80294 (Certified Mail) 

Phillip D. Barber, Esq., Welborn, Dufford, Brown & Tooley, 1700 

Broadway, Suite 1700, Denver, CO 80290-1199 (Certified Mail) 

/ek 

1432 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 6 1990 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. WEVA 90-78-D 

ON BEHALF OF DAVID HOLLIS, 

Complainant MORG CD 89-07 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

Osage No. 3 Mine 

DECISION APPROVING SETTLEMENT 

On June 28, 1990, the Secretary filed a Motion to Approve 

Settlement. Counsel for David Hollis and Counsel for Consolidation 

Coal Company signed the Motion indicating they agreed and consented 

to it. I approve the settlement as set forth in paragraph 8 of the 

Motion, as it constitutes a fair disposition of the issues raised 

by the Complaint. Accordingly, the Motion is GRANTED, and pursuant 

to the settlement, I her3by make all the specific findings as set 

forth in paragraph 8.Ca>Cb) and (cf. 

It is ORDERED that the findings and the terms of the Settlement, as set forth in paragraph 8 of the Secretary's Motion and 

incorporated herein, are approved. 

It is further ORDERED that Respondent shall: 

a. Execute and mail an original copy of the notice attached 

as Exhibit 1 to this Motion to David Hollis and to post a copy of 

the notice at the Osage No. 3 Mine for a period of not less than 

30 days: 

b. Expunge any reference to the events of the morning of 

August 28, 1989, from all records maintained by Consolidation 

Coal·Company which are searchable by the Complainant's name, 

including but not limited to, the personnel records of Consolidation 

Coal Company: 

c. Give the training program, attached as Exhibit 2 to the 

Motion, to the superintendent, the mine foreman, all mine safety 

department personnel at the Osage No. 3 Mine, and to the Regional 

Safety Manager of Consolidation Coal Company's Northern West 

Virginia Division within 90 days of the date of this Decision: 

1433 
d. Provide at least 48 hour written notification of the 

time and location of all sessions of the training program to 

MSHA's Morgantown, West Virginia Field Office and that representatives of MSHA have the right to be present at all such training 

sessions; 

e. Pay a civil penalty of $100; 

f. Post a copy of the Motion to Approve Settlement and the 

Decision ~pproving Settlament at the Osage No. 3 Mine for a 

period of not less than 30 days. 

Avram ~~ Weisberger 

Administrative Law Judge 

Distribution: 

Page H. Jackson, Esq., Office of the Solicitor, U. s. Department 

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

CCertif ied Mail) 

Walter J. Scheller, Esq., Consolidation Coal Company, Consol 

Plaza, 1800 Washington Road, Pittsburgh, PA 15241 (Certified 

~ail) 

Steven P. McGowan, Esq., Steptoe & Johnson, 715 Charleston 

National Plaza, P. O. Box 1588, Charleston, WV 25326 (Certified 

Mail) 

Allan N. Karlin, Esq., 174 Chancery Row, Morgantown, WV 26505 

(Certified Mail) 

dcp 

1434 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 6 1990 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. WEVA 90-110-D 

ON BEHALF OF DAVID HOLLIS, 

Complainant MORG CD 90-03 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

Osage No. 3 Mine 

ORDER OF DISMISSAL 

The Secretary filed a Motion to Withdraw Amended Complaint 

and to Dismiss based on a statement by David Hollis, on whose 

behalf the original Complaint of Discrimination had been filed, 

that he is withdrawing his complaint in this matter. Complainant 

filed a Response on which he indicated that he joins in the 

Motion. Accordingly, pursuant to 29 C.F.R. § 2700.11, the Motion 

is GRANTED. 

It is ORDERED that this case be DISMISSED. 

A~ Avram Weisberger 

Administrative Law Judge 

Distribution: 

Page H. Jackson, Esq., Office of the Solicitor, U. S. Department 

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

(Certified Mail) 

Walter J. Scheller, Esq., Consolidation Coal Company, Consol 

Plaza, 1800 Washington Road, Pittsburgh, PA 15241 (Certified 

Mail) 

Steven P. McGowan, Esq., Steptoe & Johnson, 715 Charleston 

National Plaza, P. O. Box 1588, Charleston, w-V 25326 (Certified 

Mail) 

Allan N. Karlin, Esq., 174 Chancery Row, Morgantown, WV 26505 

(Certified Mail) 

dcp 

1435 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

JUL 9 1990 

RICK STEVENSON, DISCRIMINATION PROCEEDING 

Complainant 

v. 

BEAVER CREEK COAL COMPANY, 

Respondent 

Docket No. WEST 89-130-D 

DENV CD 89-02 

Trail Mountain No. 9 Mine 

DECISION 

Appearances: Jonathan Wilderman, Esq., Wilderman & Linnet, 

Denver, Colorado, 

for Complainant; 

Thomas F. Linn, Esq., David M. Arnolds, Esq. 

Denver, Colorado, 

for Respondent. 

Before: Judge Morris 

This discrimination case,brought by complainant on his own 

behalf, arises under Section 105(c) of the Federal Mine Safety 

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

After notice to the parties, a trial on the merits commenced 

in Price, Utah, on April 4, 1990. 

On the second day of the hearing, the parties reached an 

amicable settlement. The consent of all parties to the agreement 

was expressed on the record and the parties have filed confirming 

documents. 

The Judge, having heard the testimony for a full day, 

believes the proposed settlement is reasonable. 

At the hearing, the parties further requested that the Judge 

place the terms of the settlement agreement, as well as the 

transcript of the April 5, 1990, under the seal of the 

Commission. 

The joint motion to seal said documents is proper and was 

granted and formalized by an order dated July 5, 1990. 

For the foregoing reasons, I enter the following: 

1436 
ORDER 

1. The settlement agreement of the parties herein is 

APPROVED. 

2. The case is DISMISSED. 

Law Judge 

Distribution: 

Jonathan Wilderman, Esq., Wilderman & Linnet, 4155 East Jewell 

Avenue #500, Denver, CO 80222 (Certified Mail) 

Thomas F. Linn, Esq., David M. Arnolds, Esq., ARCO, 555 - 17th 

Street, 20th Floor, Denver, Co 80222 (Certified Mail) 

/ek 

1437 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 111990 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

ON BEHALF OF 

GILBERT WISDOM, 

Complainant 

v. 

F & W MINES, INC., 

Respondent 

. . 

Docket No. SE 89-102-DM 

MD 88-60 

State Road 520 Plant 

SUPPLEMENTAL DECISION 

Appearances: 

Before: 

Glenn M. Embree, Esq., U.S. Department of Labor, 

Office of the Solicitor, Atlanta, Georgia, for the 

Complainant; 

James E. Foster, Esq., Foster & Kelly, Orlando, 

Florida, for the Respondent. 

Judge Maurer 

Subsequent to a hearing on the merits in this case, a 

Decision was issued on April 30, 1990, finding that the 

respondent discriminated against the named complainant in 

violation of section 105(c) of the Federal Mine Safety and Health 

Act of 1977. The Decision further ordered as follows: 

Complainant shall file a detailed statement within 

fifteen Cl5) days of this Decision, indicating the 

specific relief requested. The statement shall be 

served on the respondent who shall have fifteen Cl5) 

days from the date service is attempted to reply 

thereto. 

On May 22, 1990, the Secretary filed a statement pursuant to 

this order. On May 31, 1990, in a telephone conference call, 

both parties indicated that a settlement had been arrived at, and 

that a signed stipulation and joint motion for approval of their 

settlement would be submitted anon. 

1438 
The attorney for the Secretary filed the stipulation and 

joint motion on July 5, 1990, and it provides as follows: 

1. Respondent will pay to Mr. Gilbert Wisdom, as the full 

and complete relief hereunder, back wages in the gross amount of 

$5,000, less deductions required by law within 60 days of the 

date of this stipulation. 

2. Mr. Gilbert Wisdom and complainant hereby withdraw the 

statement of relief, including any and all claims for 

reinstatement, filed with the Commission on or about May 19, 

1990. 

3. The Secretary agrees to withdraw her prayer for 

assessment of a civil money penalty. 

I find the above settlement provides a fair resolution of 

the case and I note that Mr. Gilbert Wisdom, personally, has 

signed the stipulation and motion. 

Therefore, IT IS ORDERED that: 

1. The findings and conclusions of my decision issued on 

April 30, 1990, are REAFFIRMED. 

2. Respondent shall on or before the 3rd day of September, 

1990, pay to Complainant, Gilbert Wisdom, the sum of $5000, less 

applicable deductions as back wages. 

3. The rights and obligations of all the parties to this 

proceeding are set forth in the stipulation and joint motion for 

relief filed on July 5, 1990, and all the parties shall abide by 

all its terms. 

4. This decision is Final. 

Law Judge 

Distribution: 

Glenn M. Embree, Esq., Office of the Solicitor, U.S. Department 

of Labor, 1371 Peachtree Street, N.E., Room 339, Atlanta, GA 

30367 (Certified Mail) 

James E. Foster, Esq., Foster & Kelly, 20 North Orange Avenue, 

Suite 600, Orlando, Florida 32801 (Certified Mail) 

/ml 

1439 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 12 1990 

RANDY CUNNINGHAM, DISCRIMINATION PROCEEDING 

· Complainant 

v. Docket No. PENN 90-46-D 

MSHA Case No. PITT-CD-90-3 

CONSOLIDATION COAL COMPANY, 

Respondent Dilworth Mine 

Appearances: 

Before: 

DECISION 

Paul H. Girdany, Esq., Healey Whitehill, 

Pittsburgh, Pennsylvania, for the Complainant; 

David J. Laurent, Esq., Polito & Smock, P.C., 

Pittsburgh, Pennsylvania, for the Respondent. 

Judge Weisberger 

Statement of the Case 

This case is before me based on a complaint filed by Randy 

Cunningham, alleging a violation of Section 105(c) (1) of the 

Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 815(c) (1) 

(the Act). Respondent filed an answer, and pursuant to notice, 

the case was heard in Pittsburgh, Pennsylvania, on March 7, 1990. 

At the hearing, Larry E. swift, and Randy Cunningham, testified 

for.Complainant, and Louis Barletta, Dan Jones and Richard J. 

Werth, testified for the Respondent. The parties filed briefs 

containing proposed findings of fact on April 30, 1990. On 

May 10, Respondent filed a reply brief; none was filed by 

Complainant. 

Findings of Fact 

1. At all relevant times Complainant, Randy Cunningham, a 

miner, worked as a roof bolter at Respondent's Dilworth Mine. 

2. Complainant at all relevant times was an elected safety 

committeeman for Local Union 1980 of the United Mine Workers of 

America (hereinafter "UMWA") at Respondent's Dilworth Mine, 

having been elected to that position in May 1987. 

3. Cunningham was the only safety committeeman at Respondent's Dilworth Mine who was working inside the mine. 

1440 
4. Prior to August 3, 1989, safety committeemen were 

allowed to leave their work stations early before their scheduled 

quitting times to investigate safety problems, without seeking 

approval from Respondent's management. 

5. Cunningham's production crew was again assigned to 

change at the· face beginning in July, 1989, and within the first 

2 weeks he left early four times on union business. 

6. On August 3, 1989, Louis Barletta, Respondent's Superintendent, counselled Cunningham with regard to leaving work early 

on union business and told him that henceforth he would not be 

permitted to leave his work station before his scheduled quitting 

time on a safety issue unless someone else invoked their safety 

right. 

7. On or about August 31, 1989 at a communications committee meeting between officials of the local union and the company, 

Barletta announced that henceforth no one was allowed to leave 

work before their scheduled quitting time for any reason except 

to exercise their individual safety rights. Barletta at that 

meeting stated that it would be his sole decision as to whether 

an employee/safety representative could leave work to pursue a 

safety problem. Complainant and Barletta argued at this meeting 

about the rights of safety committeemen to pursue safety issues 

on company time and Complainant again informed Barletta that, if 

necessary, he would pursue safety issues on company time. 

Barletta warned Complainant and others that failure to comply 

with this newly announced policy could lead to disciplinary 

action. 

8. Around the beginning of the midnight shift, October 3, 

Russell Camilli asked Cunningham if pushing wagons along the 

haulage with one motor (locomotive) was allowed. Camilli told 

Cunningham that another employee, Russ Goodwin, was supposed to 

be working with him, and that foreman Greg Alexander had told 

them both to use only one motor. At approximately 1:10 a.m., 

Cunningham asked Jones if he had made such an assignment, and 

informed him that it is contrary to a safeguard to push wagons 

with a locomotive. According to Cunningham, Jones indicated that 

his supervisor had told him that such an activity is allowed. 

Jones explained that it was his understanding that it was permitted to push with a locomotive from switch to switch. (I 

accept Jones' version as it is not inconsistent with Cunningham's 

version. Also, Complainant did not offer any rebuttal by 

Cunningham to contradict Jones' version). Cunningham then 

indicated that he would seek the MSHA inspector, as a safeguard 

would be violated if the assignment were to be effectuated. 

9. If a locomotive pushes a wagon, the vision of the miner 

operating the locomotive can be obstructed, causing hazards such 

as difficulty seeing trailing wires or persons on the tracks. 

1441 
10. On October 3, 1989, at approximately 8:00 a.m., MSHA 

Inspector Koscho was present at Respondent's mine to perform a 

spot inspection. He generally handled safety hazards at Respondent's mine by gathering oral information, investigating, and 

writing citations or orders if appropriate, without basing his 

actions on written 103(g) complaints. 

11. At approximately 8:00 a.m., on October 3, Cunningham 

approached Koscho and asked him whether he had written a safeguard concerning pushing a wagon with a locomotive. Koscho 

indicated that he thought he had. Cunningham then told Koscho 

that he thought an incident occurred during the midnight shift. 

Cunningham asked Koscho if he wanted him to file a 103(g) complaint, but the latter indicated he'd rather have Cunningham find 

out if the incident occurred. Cunningham said that Robert 

Camilli was assigned to push a wagon with a locomotive. However, 

when Camilli was asked by Cunningham in the presence of Koscho, 

the former indicated he did not perform the task. Cunningham 

also indicated at that time that Russell Goodwin was also 

involved in the incident. However, Cunningham told Koscho that 

Goodwin does not shower in the mine but takes his coveralls and 

goes home. Koscho asked Cunningham to find out if Goodwin pushed 

the wagon with a locomotive. He also asked Richard Werth, 

Respondent's safety director, to talk to Jones and see if the 

incident occurred. Koscho indicated he would probably be back 

the next day. 

12. Cunningham did not attempt to contact Goodwin at any 

time subsequent to 8:00 a.m. October 3, until he spoke to him 

shortly after the start of the midnight shift on October 4. At 

that time, Goodwin informed Cunningham that he had performed the 

task of pushing a wagon with a locomotive. 

1 I reject the argument set forth by Respondent in its 

brief (pg. 6-8), that it was unlikely that Koscho planned to 

return the next day. In evaluating whether Cunningham's activities are protected, the key issue is not Koscho's subjective 

intention, but rather what he told Cunningham. I accept the 

testimony of Cunningham that Koscho told him he probably would 

return the next day, as it was essentially corroborated by Swift. 

The narrative statement by Cunningham on cross-examination, that 

he was sure Koscho was going to be there, does not negate his 

previous testimony on direct examination, that Koscho either said 

he would or probably would return the next day. Also, Werth, who 

also was present, did not rebut or contradict the testimony of 

Swift and Cunningham that Koscho said he would return. In this 

regard, Werth's statement that he did not know when Koscho would 

return, is inadequate to contradict the specific testimony of 

Cunningham as to what Koscho said. 

1442 
13. on October 4, 1989, shortly after the start of the 

12:01 a.m. shift, Cunningham told his immediate supervisor, Mel 

Robinson, that he would be leaving at the end of the regular 

shift (before the completion of scheduled mandatory overtime) to 

speak to an MSHA inspector about a safety violation. Cunningham 

also asked Robinson to get in touch with Dan Jones, the shift 

foreman, so that he could talk to Jones. 

14. Shortly after 5:30 a.m., during the midnight shift of 

October 4, Cunningham reiterated to Jones that pushing one wagon 

with a locomotive is against the law. Jo~es indicated that his 

foreman Bob Burgh told him it was allowed. According to 

Cunningham, Jones said specifically that he did not agree with 

the safeguard, and indicated that he was not going to obey it. 

In essence, Cunningham told Jones that if the foreman had indicated that the safeguard did not have to be followed, then a 

violation could also occur on the day shift. He indicated that 

he therefore felt there was an ongoing safety problem, and wanted 

to leave his work station to see Swift and Koscho. According to 

Jones, he told Cunningham that the shift foreman, Mark Watkins, 

had explained to him, with regard to the safeguard, that it was 

permissible to go from switch to switch. Jones denied saying to 

Cunningham that he did not feel he had to follow the safeguard. 

He was asked whether he ever said he did not agree with the 

safeguard and answered as follows: "I said that I felt that what 

I had done that night was not in violation of the safeguard" (Tr. 

284-285). I accept the version testified to by Jones as it is 

essentially consistent with what he had told Cunningham the 

previous night (See Finding 8, infra). 

15. During the midnight shift, October 4, Jones told 

Cunningham that the incident in which a motor pushed a car 

occurred the previous night and "· •. that we weren't doing that 

type of action that night" (i.g. October 4), Tr. 288. He no 

longer had any intention of clearing tracks by pushing cars with 

a motor, but did not tell this to Cunningham. 

16. During the conversation between Cunningham and Jones on 

October 4, 1989, at approximately 5:30 a.m., the former told 

Jones that he wanted to leave his work station at the end of the 

regular shift (before scheduled mandatory overtime) to speak to 

Swift and Koscho about the aforementioned violation of the 

safeguard. Jones indicated to Cunningham that Cunningham was not 

allowed to leave work, and a discussion took place in which 

Cunningham stated his rights, as a safety representative, to 

leave the mine. Jones threatened Cunningham with discipline and 

gave Cunningham a direct work order to stay at his worksite 

through mandatory overtime. Cunningham made it clear that 

despite the direct work order, he intended to exercise his rights 

as a safety representative, and that he would leave work before 

1443 
the completion of mandatory overtime to talk to the federal 

inspector about the· safeguard violation. 

17. On October 4, 1989, at approximately 7:40 a.m., Jones 

came back to take Cunningham out of the mine and gave him another 

direct order to stay at his work station through mandatory 

overtime. Cunningham again explained his rights as a safety 

representative, and indicated he wanted to leave to speak to 

Swift and a federal safety inspector. 

18. Upon exiting the mine on October 4, 1989, Cunningham 

went to the safety office and told MSHA Inspector Rantovich, who 

was conducting an investigation on another matter, that he wanted 

to speak to him about a safety problem. Later on, Cunningham 

informed him about the problem of pushing cars with only one 

motor, and related the previous day's conversation with Koscho. 

Rantovich stated that in order to investigate a safeguard violation he needed a written 103(g) complaint. 

19. Barletta terminated Complainant from his employment for 

failure to follow the orders of shift foreman Jones, on the 

midnight shift of October 4, 1989, that he remain in the mine 

through mandatory overtime. Barletta was aware that the reason 

Cunningham wanted to leave his worksite was to talk to an MSHA 

inspector or Swift. 

20. Swift filed a Section 103(g) complaint over the 

October 3, 1989 incident on October 5, 1989, and a citation was 

eventually issued on October 12, 1989. 

Discussion 

A. Protected Activity 

In order to prevail herein, Complainant must establish first 

of all, that he was engaged in a protected activity i.g., that he 

was exercising "any statutory right" afforded by the Act. 

Essentially, it is Respondent's position that Cunningham's 

leaving his work station during mandatory overtime, and contrary 

to a direct work order, is not a protected activity. In support 

of this position, Respondent argues that on October 4, there was 

no hazard present, and that "Swift and MSHA already knew about 

the alleged violation and there is no reason why Cunningham had 

to come out of the mine early on October 4, since he could not 

provide any additional information that could not have been 

1444 
obtained through2other means, •.•• " (Respondent's Posthearing 

Brief, pg. 23). _I 

It is true that a violative action had occurred on 

October 3, and was brought to the attention of Koscho at that 

time. However, it would be unduly restrictive to conclude that, 

from Cunningham's point of view, there was no hazard on October 4 

as argued by Respondent. Jones had clearly communicated to 

Cunningham his interpretation of the safeguard, as told to him by 

his foreman and supervisor, that pushing with a locomotive from 

switch to switch was not prohibited. Thus, Cunningham could 

reasonably have concluded on October 4, as he did, that another 

incident could occur on the day shift, of a similar use of a 

locomotive, which might be in violation of the safeguard. 

Further, as explained by swift, if a locomotive is used to push 

wagons, presumably even from switch to switch, the vision of the 

miner operating the locomotive is obstructed, creating a hazard 

of hitting a trailing wire or a miner walking on the track. Further, Cunningham was asked by Koscho to find out if Goodwin in 

fact pushed a locomotive with a wagon. Koscho also told him he 

probably would return to the mine on October 4. 

Furthermore, Respondent has not cited any Commission decisions which directly and specifically hold that, under the 

circumstances herein, Complainant was not engaged in the exercise 

of a statutory 3~ght, when he left his worksite to seek out Swift 

and/or Koscho. _/ 

2 1 Respondent also asserts, at page 23 of its brief, supra, 

that Cunningham was most likely acting in bad faith i.g., seeking 

to avoid mandatory overtime or challenging Respondent's authority 

"rather than vindicating a legitimate safety interest which could 

not be adequately addressed at the end of his shift or by Swift, 

••.• " However, Respondent does not advance any facts to 

support this latter assertion, and it is rejected as being unduly 

speculative. 

3 /I find the following cases cited by Respondent not to be 

relevant to the case at bar. In Howard v. Martin Marietta corp., 

3 FMSHRC 1599 (1981), Judge Broderick held that a miner who left 

his wQrk site to call MSHA to complain about a front-end loader 

being unsafe, was protected by Section 105(c) of the Act. In 

Howard, supra, at 1603. Judge Broderick concluded that a miner 

has an absolute right to leave the premises to call for an 

inspection when he believes that there exists a situation "· .. 

requiring an immediate safety and health inspection." This 

conclusion fits the facts presented in Howard, supra, but clearly 

does not attempt to limit the right to leave the premises to only 

those situations requiring an immediate inspection. Such an 

interpretation goes beyond the law of the case in Howard, supra. 

1445 
In resolving the issues herein presented, I am guided in my 

decision by the Legislative History of the Act which embodies 

Congress' intent in enacting the Act. The Senate Report, on the 

Senate version of the bill that became the Act, (S. Rep. 

No. 95-181, 95th Cong. 2d Sess. 1977, reprinted in the 

Legislative History o·f the Federal Mine Safety and Health Act of 

1977 at 623 ("Legislative History")), contains the following 

language relating to the protection of miners against 

discrimination: 

If our national mine safety and health program is 

to be truly effective, miners will have to play an 

active part in the enforcement of the Act. The 

Committee is cognizant that if miners are to be 

encouraged to be active in matters of safety and 

health, they must be protected against any possible 

discrimination which they might suffer as a result of 

their participation. * * * 

fn. 3 (continued) 

In UMWA on behalf of Wise v. Consolidation Coal Co., 

(6 FMSHRC 1447 (1984)), a safety committeeman ignored a safety 

board, placed by the operator, in order to observe work being 

performed to correct a hazardous condition. The Commission held 

that the miner did not have a right, protected by the Mine Act, 

to go beyond a dangered-off area contrary to the operators 

orders. The Commission reasoned that an operator may restrict 

access to hazardous areas to effectuate correction of a hazard. 

The Commission commented in Wise, supra, at 1432, that if a 

safety committeeman believes that abatement work presents a 

hazard, then the normal statutory procedures are available. 

These comments do not per se require a conclusion that the 

Complainant herein did not have a right to seek an inspector, 

Koscho, or swift, the safety committee chairman. 

In Ross v. Monterey Coal Co, 3 FMSHRC 1117 (1981), a miner, 

acting as a union safety committeeman, inspected areas other than 

the work area of his employer. The Commission found that the 

disciplinary letter given him by his employer was nondiscriminatory, and was issued to protect a legitimate interest in controlling the work force. The mere recognition of a legitimate 

managerial interest in the circumstances presented in Ross, 

supra, does not compel a finding of a legitimate managerial 

interest herein, which would have the effect of destroying 

Complainant's right to seek out an inspector. 

I do not accord any weight to a decision denying Cunningham 

unemployment compensation, as that decision did not adjudicate 

any rights of Complainant under Section 105(c), supra, of the 

Act, which is the exclusive jurisdiction of the Commission to 

adjudicate. 

1446 
Further-instructive with regard to the construction to be 

accorded the scope of activities protected under Section 105(c), 

supra, is the following language from the senate Report, supra, 

(Legislative History at 623). 

The Committee intends that the scope of the protected 

activities be broadly interpreted by the Secretary, and 

intends it to include not only the filing of complaints 

seeking inspection under Section 104(f) or the participation in mine inspections under Section 104(e), but 

also the refusal to work in conditions which are 

believed to be unsafe or unhealthful and the refusal to 

comply with orders which are violative of the Act or 

any standard promulgated thereunder, or the participation by a miner or his representative in any administrative and judicial proceeding under the Act. 

The Senate Report, supra, (Legislative Histo¥7 at 624) 

explicitly indicates that Section 105{c), supra,: was intended 

by the Committee: 

[T]o be construed expansively to assure that miners 

will not be inhibited in any way in exercising any 

rights afforded by the legislation. This section is 

intended to give miners, their representatives, and 

applicants, the right to refuse to work in conditions 

they believe to be unsafe or unhealthful and to refuse 

to comply if their employers order them to violate a 

safety and health standard promulgated under the law. 

The Sixth Circuit Court of Appeals in Boich v. Federal Mine 

Safety and Health Review Commission, 704 F.2d 275,. 283 (6th Cir. 

1983), recognized the principle of broad construction to be 

accorded the Act in general, and referred to the Legislative 

History as follows: 

The Act is remedial in nature and should be broadly 

construed. Phillips v. Interior Board of Mine 

Operations Appeals, 500 F.2d 772 (D.C. Cir. 1974); see 

Marshall v. Whirlpool Corp., 593 F.2d 715, 721-22 

{6th Cir. 1979), aff'd, 445 u.s. 1,100 s.ct. 883, 

63 L.Ed.2d 154 (1980). The Senate Report specifically 

provides that the section should be "broadly interpreted by the Secretary .... " 

'.!_! The Senate Report, supra, on the Senate version of the 

Act, (S. 717), refers to Section 106(c), which, essentially, 

contains the same language as section 105(c) of the Act. 

1447 
I can not disregard the ~xpression of legislative intent as 

referred to above. Based on these statements, I conclude that it 

would be violative of legislative intent to deny that, in the 

circumstances presented herein, Cunningham had a right on 

October 4 to seek out the inspector and/or the safety committee 

chairman. To do so would tend to discourage active participation 

in safety matters, and inhibit the exercise of the right to 

complain about safety matters, which would contravene the 

explicit, expressed, Congressional intent stated in the Senate 

Report, supra. For these reasons, I find that Complainant was 

engaged in protected activity on October 4, 1989, when he left 

his work station to seek out Swift and/or Koscho. 

B. Motivation 

Adverse action was taken against Cunningham by Barletta when 

he terminated the farmer's employment. Respondent maintains 

that, assuming Cunningham engaged in protected activity, he would 

have been discharged in any event, because he disobeyed a direct 

work order without cause. Inasmuch as I have found that the 

record here establishes that Cunningham had a protected statutory 

right to leave his work station, Respondent therefore had a duty 

to let him go, and thus did not have a right to order him to 

remain at his work station and continue working. Thus, in actuality, the action taken against Cunningham resulted solely from 

his exercising a statutory right which of necessity required him 

to violate a work order. Hence, he was terminated based on the 

exercise of a statutory right. As such, his rights under Section 

105(c), supra, were violated. 

I thus conclude that Cunningham was discriminated against in 

violation of Section 105(c), supra. 

ORDER 

It is hereby ORDERED that: 

1. Respondent shall, within 15 days of the date of this 

Decision, post a copy of this Decision at its Dilworth Mine where 

notices to miners are normally placed, and shall keep it posted 

there for a period of 60 days. 

2. 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. 

1448 
3. This Decision is not final until a further Order is 

issued with respect to Complainants' relief and the amount of 

Complainants' entitlement to back pay if any. 

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) 

/fb 

1449 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 13 1990 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BENTLEY COAL COMPANY, 

Respondent 

. . Docket No. WEVA 90-36 

A.C. No. 46-05991-03547 

Docket No. WEVA 90-52 

A.C. No. 46-05991-03548 

Docket No. WEVA 90-159 

A.C. No. 46-05991-03550 

Audra No. 1 Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Fauver 

These cases are before me upon a petition for assessment 

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

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

Petitioner has filed a motion to approve a settlement 

agreement and to dismiss these cases. I have considered the 

representations and documentation submitted and I conclude 

that the proffered settlement is consistent with the criteria 

in § llO(i) of the Act. 

ORDER 

WHEREFORE IT IS ORDERED that the motion for approval of 

settlement is GRANTED and Respondent shall pay the approved 

penalties of $2,500 within 30 days of this Decision. Upon 

such payment these proceedings are DISMISSED. 

Distribution: 

fAf4.~ ~ llMv-tAwi11iam Fauver 

Administrative Law Judge 

Page H. Jackson, Esq., Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, Room 516, 

Arlington, VA 22203 (Certified Mail) 

Ernest R. Mikles, Vice President of Operations, Bentley Coal 

Company, Star Route, Box 44-C, Coalton, WV 26257 

iz 

1450 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 171990 

SECRETARY OF LABOR, . . CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

JIM WALTER RESOURCES, INC., 

Respondent 

. . 

. . 

. . 

Docket No. SE 89-42 

A.C. No. 01-00758-03732 

No. 3 Mine 

SUPPLEMENTAL 

DECISION APPROVING SETTLEMENT 

Appearances: William Lawson, Esq., Office of the Solicitor, 

U.S. Department of Labor, Birmingham, Alabama 

for the Secretary of Labor. 

H. Thomas Wells, Jr., Esq., Maynard, Cooper, 

Frierson, and Gale, P.C., Birmingham, Alabama 

for Jim Walter Resources, Inc. 

Before: Judge Melick 

This supplemental decision is issued pursuant to 

Commission Rule 65(c). The decision issued in these 

proceedings on June 27, 1990, failed to incorporate the 

settlement of the noted citations. At hearings on 

July 12, 1989, petitioner filed a motion to approve a 

settlement agreement as to Citations No. 9984616, 9984623, 

and 9984624. A reduction in penalty from $583 to $150 was 

proposed. I have considered the representations and 

documentation submitted, and conclude that the proffered 

settlement is appropriate under the criteria set forth in 

Section 110 ( i) of the Federal Mine Safety and !eal th Act of 

.:19 77. 

WHEREFORE, the motion for ~proval of sett~ment is 

GRANTED, and it is ORDERED that! espondent pay penalty of 

$150 within 30 days of this orde f the noted ita~ion~. 

I ~ 1~~ \ -t~J\f'\_ Gdry Mel ck \ 

Administ tive Law\Judge 

\ \ \ 

\ \ \ \ \, 

1451 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

JUL 2 O 1990 

BEAVER CREEK 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. 

BEAVER CREEK COAL COMPANY, 

Respondent 

CONTEST PROCEEDINGS 

Docket No. WEST 89-23-R 

: Citation No. 3224857; 10/18/88 

Docket No. WEST 89-24-R 

Order No. 3224859; 10/18/88 

Trail Mountain No. 9 Mine 

Mine ID 42-01211 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 89-182 

A.C. No. 42-01211-03557 

Docket No. WEST 89-185 

A.C. No. 42-01211-03556 

: Trail Mountain No. 9 Mine 

DECISION 

Appearances: Robert J. Murphy, Esq., Office of the Solicitor, 

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

for Respondent; 

David M. Arnolds, Esq., ARCO, Denver, Colorado 

for Contestant. 

Before: Judge Cetti 

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 challenge two citations and one 

imminent danger withdrawal order issued by the Secretary of 

Labor's Mine Safety and Health Administration ("MSHA"} against 

the Beaver Creek Coal Company (Beaver Creek) and for review of 

civil penalties proposed by the Secretary for the related 

violations. 

Pursuant to notice, these cases were heard in Salt Lake 

City, Utah. Both parties have filed post-hearing briefs which 

I have considered along with the entire record in making this 

decision. 

1452 
STIPULATIONS 

The parties have agreed to the following stipulations, which 

I accept: 

1. That Beaver Creek is engaged in mining and selling of 

coal in the United States and its mining operations affect interstate commerce. 

2. That Beaver Creek is the owner and operator of Trail 

Mountain Number 9 Mine. 

3. That Beaver Creek is subject to the jurisdiction of the 

Federal Mine Safety and Health Act of 1977, 30 U.S. Code 801. 

4. That the presiding Judge has jurisdiction in this 

matter. 

5. That the proposed penalties will not affect Beaver 

Creek's ability to continue in business. 

6. That Beaver Creek demonstrated good faith in abating 

the alleged violations. 

7. That Beaver Creek is a medium-size operator with 

approximately 244,097 tons of production in 1988. 

8. The certified copy of the Mine Safety and Health Administration's Assessed Violation History (Ex. J) accurately 

reflects the history of Beaver Creek's Trail Mountain No. 9 Mine 

for the past two years, prior to the date of the citations. 

ISSUES 

1. Whether there was a violation of 30 C.F.R. § 75.1704 

as charged in Citation No. 3224857. 

2. Whether there was a violation of 30 C.F.R. § 75.202(a) 

as charged in Citation No. 3224858. 

3. Whether the violations were "significant and substantial." 

4. Whether the violation of 30 C.F.R. § 75.1704 (Citation 

No. 3224857) resulted from "unwarrantable failure" on the part 

of Beaver Creek. 

1453 
5. Whether the issuing inspector abused his discretion or 

authority in issuing the 107(a) closure Order No. 3224859. 

6. The appropriate civil penalties, if any, to be assessed 

taking into consideration the statutory civil penalty criteria 

in Section llOCi) of the Act. 

I 

Beaver Creek owns and operates Trail Mountain No. 9 Mine 

(the "Mine"), an underground coal mine located near Price, Utah. 

These contest and civil penalty proceedings arise out of 

MSHA's issuance to Beaver Creek of Section 107Ca) imminent 

danger closure Order No. 3224859 and its underlying Citation 

No. 3224858, and a 104(d)(l) unwarrantable failure Citation 

No. 3224857. Beaver Creek timely contested the imminent danger 

closure order and the two citations. The proposal for penalties, 

WEST 89-185 (Citation No. 3224857) and WEST 89-182 (Citation 

No. 3224858) were served on Beaver Creek a few days before the 

hearing and were timely answered. 

The two citations and the 107(a) closure order are so 

closely related factually, that all proceedings were consolidated and testimony from each witness on both citations and 

the order were taken at one time. There are, however, separate 

issues between Order No. 3224859, with its related Citation 

No. 3224858, and Citation No. 3224857. 

Inspector Robert Huggins, accompanied by his supervisor, 

William Ponceroff, conducted the inspection of the mine. Supervisor Ponceroff was present, partly for the purpose of observing 

Mr. Huggins and evaluating his ability and training. It was, 

nevertheless, Mr. Huggins' inspection. Mr. Jeffrey Cooper, who 

at that time was the Safety and Health Supervisor for Beaver 

Creek, and Mr. Duane Gilbert, Shift Supervisor for Beaver Creek, 

joined the inspection team. 

Mr. Cooper is a highly trained and experienced health and 

safety professional. (See transcript C. 203-206 for specifics 

on his training and experience). Mr. Gilbert is an experienced 

supervisor, holding fire boss and mine foreman certificates since 

1978. Inspector Huggins and his Supervisor Ponceroff are also 

highly trained, experienced mine safety professionals. 

The inspection party went underground to make the inspection 

at approximately 7 a.m. during a non-production shift. While 

1454 
walking inby the No. 2 belt line, they heard the noise of rushing 

air. The usual belt line noise was absent since the belt was not 

running at the time the air noise was heard and investigated. 

The noise as descri~ed by Supervisor Ponceroff was "like driving 

in the car and you open a wing window ••• it was really noticeable." The noise was characterized by Inspector Huggins, as a 

wind speed of 45-60 miles per hour pouring through a car window. 

The noise was heard before its source was discovered. The wind 

noise source was located. It was identified as a hole in the 

coal rib on the off walkway side of the belt entry between crosscuts Nos. 5 and 6. The hole was approximately eight inches high, 

six inches wide, and seven inches thick. 

Coal dust which was emitted from this rib opening resulted 

in the formation of a conical accumulation at the base of the 

rib, indicating to all concerned that the rib hole must have 

been there for quite some time. 

The inspector and Mr. Cooper looked through the hole in 

the rib using their cap lamps but they could see very little in 

either direction. They did, however, see some deterioration of 

the roof with fallen debris about five feet high and at the far 

side saw some roof at an angle. 

Although they did not realize it at the time, the inspection 

team, in looking through the hole in the rib, were looking into 

an old abandoned work out area that was located between the belt 

entry and the return entry. 

Mr. Huggins and Mr. Cooper went through the man door at -the 

No. 5 crosscut stopping between the belt entry and the return 

entry to try to see the hole from the return side. They could 

not find it even when Supervisor Ponceroff and Mr. Gilbert shone 

a light through the hole and put smoke through the hole in their 

attempts to locate the hole. The reason they could not find 

the hole from the return side was that the hole through the rib 

entered into the abandoned worked-out area that was located 

between the belt entry and the return, and this old worked-out 

abandoned area was closed off from the return by two stoppings 

on the return side. 

The men left the mine and went to the mine off ice where 

Inspector Huggins and Mr. Cooper looked at the mine map and 

found the narrow area in the rib and determined that the hole 

was probably in that spot. At that point in time they still 

did not realize why they were unable to see the light or smoke 

which they put through the hole in the rib. 

1455 
After some discussions with Supervisor Ponceroff, 

Mr. Huggins stated that he thought the hole constituted an 

unwarrantable failure and the roof conditions constituted an 

imminent danger. Mr. Cooper disagreed. 

After several phone calls between the inspectors and the 

Denver MSHA off ice, the inspectors proposed that Beaver Creek 

build a 50-foot longwall of solid concrete block. Beaver Creek 

objected because it believed the cost would have been prohibitive and Mr. Cooper did not believe there was any hazard. Finally, Mr. Gilbert suggested building a crib wall, which he believed 

was unnecessary but which he suggested in order to get the closure order lifted. The inspector approved. 

Mr. Cooper then asked what areas of the mine were affected 

and the inspector told him the belt line and the return. Therefore, Mr. Cooper withdrew all of the men from the mine inby 

crosscuts 5 and 6. The crib wall was promptly constructed at a 

cost of about $3,600 in material and $35,000 in lost production. 

The closure order was lifted within one and one-half days of the 

inspection. 

Because he believed there was no major roof problem, 

Mr. Cooper took a camera when he returned underground and took 

photographs of the area. Within the next two days, he took 

additional photographs, took measurements and observations, 

and documented his findings on a certified mine map, which was 

received into evidence as Beaver Creek's Exhibit 2. 

The conditions that existed under which Mr. Huggins issued 

the closure order and the unwarrantable failure citation were 

as follows: 

1. A six-inch by eight-inch hole was in the rib that 

separated the belt entry from old workings. Inspector Huggins 

could only guess at the length and thickness of that rib. 

Mr. Ponceroff did not check the thickness and therefore he 

did not know what it was. 

2. Air slack or potting had occurred in the roof along the 

rib, the extent of which Supervisor Ponceroff did not measure. 

Inspector Huggins did not measure it either but estimated that 

it varied from 9 inches to 14 inches deep for the length of the 

rib. Mr. Cooper later measured it to be in two areas, 16 feet 

long and 4 feet long respectively, for a depth of generally 

4 inches to a maximum of 7 inches. 

3. Timbers in the belt entry next to the rib, which had 

been present at least ten years, showed no sign of taking weight. 

1456 
4. Bolts in the belt entry were on four- to five-foot 

centers showed no weight stress. 

5. There was no evidence of cutting or shearing of the rib 

into the roof. 

6. There was fallen roof material in the worked-out area 

behind the rib; i.e., in this abandoned area between the rib and 

the return entry. The roof in that worked out area had been 

unsupported and the area had been mined out a long time ago, 

variously estimated at 10-15 or more years. 

7. The six-inch by eight-inch hole that separated the belt 

entry from the old worked out area had existed a long time. 

8. The air going through the hole in the rib entered the 

old workings, which were stoppinged off from the return entry. 

9. All air in the mine was deliberately vented to the 

return entry. Belt air is vented to the return by the use of 

regulators which an operator can locate anywhere he desires. 

Beaver Creek had a regulator close to the portal, about six 

crosscuts outby the hole. 

10. The return entry was the mine's alternate or secondary 

escapeway. 

II 

Docket Nos. WEST 89-23-R and WEST 89-185 

Citation 3224857 

Inspector Huggins issued Citation No. 3224857 under Section 

104Cd)(l) of the Act for a violation of 30 C.F.R. 75.1704. Section 8, "Condition or Practice" of the citation reads as follows: 

The designated return escapeway was not being 

maintained to ensure safe passage of persons including 

disabled persons. A hole has eroded from the belt entry .i,nto the return entry through the coal rib between 

#5 and #6 crosscuts on #2 beltline. The hole was 

measured to be 8 inches by 6 inches and the air was 

making a rushing noise and going into the return. The 

#6 and #7 stoppings used to separate the belt air from 

the return air designated escapeway are leaking and the 

air rushing into the return could be readily heard. 

These conditions have been there for awhile and it 

should have been observed by the preshi·ft examiner. 

1457 
The citation states that the risk of injury was highly likely, 

that the gravity was S&S and that Beaver Creek's negligence was 

high. 

The cited regulation 30 C.F.R. § 75.1704 provides in 

relevant part as follows: 

Except as provided in Section 75.1705 and 75.1706, 

at least two separate and distinct travelable passageways which are maintained to ensure passage at all 

times of any person, including disabled persons, and 

which are to be designated as escapeways, at least 

one of which is ventilated with intake air, shall be 

provided from each working section continuous to the 

surface escape drift opening, ••• and shall be maintained in safe condition and properly marked. 

Discussion and Conclusion 

The main facts surrounding Citation No. 3224857, set out 

above, are well established and virtually undisputed. A hole 

six inches by eight inches was present in the coal rib between 

crosscuts 5 and 6 on the offside of the belt entry. The hole 

went into a worked out area between the belt entry and the return 

entry. The return entry was the alternate escapeway. The old 

workings were stoppinged off on the return side of the workings. 

Thus, the return escapeway was separate and distinct and was 

maintained in a safe condition. The return entry was separate 

from the belt entry by stoppings on the return side of the worked 

out area. There was no persuasive evidence of any significant 

air leakage at any of the mines stoppings. Cf. Rochester & 

Pittsburgh Coal Company, 10 FMSHRC 1576, 1577-1578. The rib, 

except for the six-inch by eight-inch hole, constituted a redundant separation. The preponderance of the evidence presented 

did not establish a violation of 30 C.F.R. § 75.1704. Citation 

No. 3224857 is vacated. Contest proceeding No. WEST 89-23-R is 

granted. Civil Penalty proceeding WEST 89-184 is dismissed. 

III 

Docket Nos. WEST 89-24-R and WEST 89-182 

Citation No. 3224858 

Citation No. 3224858 alleges a section 104Ca}, S&S violation 

of 30 C.F.R. § 75.202(a). The citation reads as follows: 

The mine roof was not being supported adequately 

by a distance of 60 feet between the #5 and #6 crosscuts and the #2 belt entry. The roof has potted out 

1458 
next to the rib and the rib is about 2 feet thick for 

a distance of about 50 feet next to old entry. 

30 C.F.R. Section 75.202Ca) reads as follows: 

The roof, face and ribs of areas where 

persons work or travel shall be supported or 

otherwise controlled to protect persons from 

hazards related to falls of the roof, face or 

ribs and coal or rock bursts. 

IV 

Imminent Danger Closure Order No. 3224859 

The 107Ca) imminent danger closure order issued to Beaver 

Creek reads as follows: 

The following condition constitutes an 

imminent danger which was observed between the 

#5 and #6 crosscuts in the #2 belt entry of 

the left rib going in the mine. The coal rib 

between the belt entry and the return entry is 

about 2-foot thick with a hole in the coal rib 

into the return. There is a lot of pressure 

on the rib because the main fan is about 1,000 

feet from this area. The old entry behind 

this rib (return side). The roof has fallen 

and the two-foot rib is about 50 feet in length. 

The mine roof in the belt entry has potted out 

next to this two-foot coal rib. See Citation 

3224858. 

The Secretary, based upon the testimony of Inspector 

Huggins and Supervisor Ponceroff, contends that the area behind 

the six-inch by eight-inch hole in the rib, the old worked-out 

area adjacent to the belt entry, was in the process of rapid 

deterioration. The fallen roof debris in this worked-out area 

was approximately five (5) feet in height. Supervisor Ponceroff 

testified that the thickness of the rib between the belt entry 

and the old workings had "whittled down to two foot." He further 

testified that he "imagined" that Inspector Huggins assumed 

the 2 foot thickness of rib extended for a distance of 50 feet 

(Tr. 93). He also testified he observed sloughage on both 

sides of the rib line, "potting out" of the roof and fracture 

lines running from the "old workings to the belt line roof." 

Mr. Ponceroff stated that the "entire area from the return 

entry to the belt line entry was showing "signs of change." 

1459 
When asked what signs of change the area was showing, he replied: 

A. The signs of change at the location of the post 

where the hole was -- occurred, had eroded through 

the rib. Sloughage was occurring. Lamination was 

occurring. The area was potting out. If you --

the area in the cracks had been -- were recent 

cracks: there was no rock dust in those cracks. 

Huggins testified he did not measure the length of the 

thinned-out rib or its thickness but he "guessed" it was about 

50 feet in length and averaged 2 feet in thickness. 

Beaver Creek's Position 

Beaver Creek submits that closure Order No. 3224859 and its 

underlying Citation No. 3224858 were without any basis in law or 

in fact and that Inspector Huggins' issuance of them was improper 

and abusive. 

Beaver Creek outlines its position as follows: 

1. Inspector Huggins did not believe that an imminent 

danger existed. 

2. No danger with respect to the rib or roof existed. 

3. If a danger existed, it was not imminent. 

4. The order is defective on its face because it fails to 

state the area of the mine throughout which the alleged danger 

existed. 

Section 107(a) requires that the authorized representative 

of the Secretary issue the order if he finds that an imminent 

danger exists. Beaver Creek contendS-that if the issuing inspector did not believe that an imminent danger existed, the 

order must fall. 

Beaver Creek presented some evidence in support of its 

assertion that the issuing inspector, Huggins, did not believe 

an imminent danger of a roof fall existed. Mr. Cooper testified 

that on November 10, 1988, in Salt Lake City, Inspector Huggins, 

after his deposition, said to Mr. Cooper, "For your information, 

and completely off the record, I want you to know that the 

imminent danger was not mine: the unwarrantable was." Mr. Cooper 

testified that he documented this statement in his journal on 

that day. 

1460 
Inspector Huggins adopted practically all of Supervisor 

Ponceroff 's testimony at the hearing. 

Beaver Creek also points out that Inspector Huggins by his 

own admission did not remember looking at the condition of the 

timbers or bolts .to see if they were taking weight. He testified 

he did not look over his head. 

While the evidence presented by Beaver Creek on this issue 

has some plausibility, I credit the testimony of Inspector 

Huggins and Supervisor Ponceroff that Mr. Huggins did in fact 

determine that an imminent danger existed. 

Roof Fall Danger 

With respect to the issuance of the imminent danger order, 

Mr. Huggins testified on direct examination as follows: 

Q. Okay. And, could you tell us the circumstances 

that led to the issuance of that particular citation (sic)? 

A. All the things that was involved in this area 

right here, like I said, not knowing what is 

overhead, and in the inte~est of safety, and so 

forth, that's why it was issued. 

On cross-examination Inspector Huggins' reasons for issuing 

the imminent danger closure order were summarized as follows: 

Q. I understand your testimony, then, that you 

issued the emminent danger (sic) danger order 

out of fear of a roof fall, because the roof 

had fallen and (sic) the old workings that was 

unsupported, and because there was potting 

along the rib that you estimated or guessed 

at being 2 feet thick, like couldn't really 

determine. 

A. And, also, that I could not see straight up. 

I did not know what was above. 

Q. Sure, you didn't know what was above --

A. Right. That's true. 

Q. -- because you can't see through the roof? 

1461 
A. And in the interest of safety, you know --

Q. Uh-huh. 

A. -- and it was to save somebody's life, the way 

I look at it. 

CTr. 179 - 180) 

Beaver Creek in support of its position points to the uncontroverted fact that the roof bolts and timbers in the belt 

entry, which had been in place for at least 10 years, showed 

no stress or signs of taking weight~ that Inspector Huggins 

seemingly ignored the mine map and only guessed at the length 

and thickness of the rib in question. 

Inspector Huggins testified that he did not consider whether 

the timbers or the bolts showed signs of stress because he was 

concerned about the "potting," which he asserted was a real indication of a roof fall. Inspector Huggins estimated the potting 

to be 9 inches to 14 inches deep and ran most of the length of 

the rib, but he took no measurements. There was conflicting 

opinion as to whether this condition was due to air slack or 

potting. Supervisor Ponceroff described air slack to be an 

eroding of the mine due to moisture, and he described potting 

to be the falling away of large pieces in the shape of a kitchen 

pot. Supervisor Ponceroff testified that there can be air slack 

without a risk of a roof fall and also there can be potting without the risk of a roof fall. Mr. Cooper testified that what 

existed wa& air slack, not potting, and that air slack is a 

normal occurrence in mines. Mr. Cooper measured the air slack to 

be generally 4 inches in depth to 7 inches maximum and in two 

stretches, 16 feet and 4 feet long, respectively. The photographs of the area CB.C. Ex. 4.6, 4.8 and 4.9) show the condition 

that existed. It was undisputed that the rib was not cutting or 

shearing up into the roof. Mr. Cooper testified that the rib 

was not crushing out. 

Inspector Huggins' primary concern, in addition to the potting, apparently was based on the 6 inch by 8 inch hole in the 

rib that existed for a long time and his guess that the rib was 

only 2 feet thick for 50 feet, therefore insufficient to support 

the roof. 

Inspector Huggins also expressed concern about the fallen 

roof in the old workings. However, the old workings were very 

old and were unsupported, while the roof in the belt entry was 

supported by timbers and closely spaced bolts which appeared to 

1462 
be in good shape. Mr. Cooper testified the roof in the belt 

entry along the rib was in good condition CTr. 250, BC Ex. 4.12, 

4.13, and 4.14). 

Supervisor Ponceroff asserted that Beaver Creek was using 

the rib as a primary support and therefore it should have been 

50 to 60 feet thick, and that the rib provided little or no support, creating a 40-foot span which would result in sag that 

would finally break. Inspector Ponceroff, like Mr. Huggins, puts 

little weight on the facts that the rib h~d been there many years 

and that the timbers and bolts show no weight, even though those 

bolts and timbers were at least 10 years old. Beaver Creek contends that, if there was going to be any sag, it would have shown 

on the timbers in those 10 years. 

Supervisor Ponceroff argued that he could see vertical 

cracks in Beaver Creek's pictures received in evidence that could 

result in a roof fall. Beaver Creek contends that Supervisor 

Ponceroff never explained in any intelligible manner how those 

cracks, if they existed, could create a danger when the adjacent 

timbers and bolts showed no stress. Beaver Creek also points out 

that Supervisor Ponceroff 's testimony about the risk resulting 

from the cracks and from the fallen roof in the worked-out area 

and the air slack was that the roof could fall, not that a fall 

was likely or imminent. This is evident in the following excerpt 

from his testimony: 

So, the what can happen in a case like this, the 

reason why you can have a massive roof fall there, 

is the fact that it may be -- the fracture may be 

going at an angle, and it'll stay there until something else breaks, and that hole (sic) thing~ 

come at once. (Emphasis added). 

Mr. Cooper, on the contrary, testified that the cracks were 

not vertical or on an angle, but were mere horizontal laminations. 

It is undisputed Mr. Cooper did one thing the inspectors failed 

to do. After the inspectors left, he tested the area in question 

with a scaling bar and found it to be solid. Mr. Cooper testified that "I banged on that thing, and banged on it, and it 

was just as solid as ever. You couldn't hear anything there." 

Supervisor Ponceroff testified that it is common to do this 

"sound and vibration" test but that he did not do it and it is 

clear from the record that Inspector Huggins did not do it. 

Supervisor Ponceroff also made much of the report of unintentional roof falls in the mine. Beaver Creek, however, presented evidence that all five prior unintentional falls were in 

areas where there was either no roof support or only some partial 

1463 
bolting and all five prior falls were in different areas of the 

mine that were quite a ways away from the area in question. 

Mr. Robert J. Marshall, a certified mining engineer, was the 

last witness to testify. He is the engineering supervisor for 

Beaver Creek. He is a licensed engineer in Utah and Colorado. 

After the inspection, Mr. Marshall conducted an extraction ratio 

study of the percentage of the coal that had been removed versus 

the percentage of coal that remained in place. Mr. Marshall's 

analysis showed that the coal in place provided approximately two 

times as much support as was required by the roof. The thinned 

out stretch of the rib, as perceived by Supervisor Ponceroff and 

Inspector Huggins, provided negligible support. However, that 

support was unnecessary. The thinned-out stretch could have been 

completely removed without creating a risk of a roof fall. 

His testimony was offered as an expert witness with respect 

to coal mine roof control issues. 

Discussion 

Section 107(a) of the Act provides in part as follows: 

If upon any inspection or investigation of a 

coal or other mine which is subject to this Act, 

an authorized representative of the Secretary 

finds that an imminent danger exists, such representative shall determine the extent of the area 

of such mine throughout which the danger exists, 

and issue an order requiring the operator of 

such mine to cause all persons except those ref erred to in section 104(c), to be withdrawn 

from, and to be prohibited from entering, such 

area until an authorized representative of the 

Secretary determines that such imminent danger 

and the conditions or practices which caused the 

imminent danger no longer exist. 

Section 3(j) of the Mine Act, 30 u.s.c. 802(j), defines an 

imminent danger as "the existence of any condition or practice 

in a coal or other mine which could reasonably be expected to 

cause death or serious physical harm before such condition or 

practice can be abated." This definition is unchanged from the 

definition contained in the Federal Coal Mine Health and Safety 

Act of 1969, 30 U.S.C. § 801 et seq. (1976) (amended 1977) (the 

"1969 Coal Act"). The Senate report on the Mine Act explains 

1464 
that the Secretary's authority to issue imminent danger 

orders "should be construed expansively by inspectors and the 

Commission." s. Rep. No. 181, 95th Cong., 1st Sess. 38 (1977), 

reprinted in Legis. Hist. Mine Act 626. 

In discussing the concept of imminent danger, the Commission 

has recently stated: 

In analyzing [the] definition [of imminent 

danger], the U.S. Courts of Appeals have eschewed 

a narrow construction and have refused to limit 

the concept of imminent danger to hazards that 

pose an immediate danger. See, ~· Freeman 

Coal Mining Co. v. Interiorlfcl. of Mine Op. App., 

504 F. 2d 741 (7th Cir. 1974). Also, the Fourth 

Circuit has rejected the notion that a danger is 

imminent only if there is a reasonable likelihood 

that it will result in an injury before it can 

be abated. Eastern Associated Coal Corp. v. Interior Bd. of Mine Op. App., 491 F.2d 277, 278 

(4th Cir. 1974). The court stated that "an imminent danger exists when the condition or practice 

observed could reasonably be expected to cause 

death or serious physical harm to a miner if 

normal mining operations were permitted to-Proceed in the area before the dangerous condition 

is eliminated." 491 F.2d at 278 (emphasis in 

original}. The Seventh Circuit adopted this 

reasoning in Old Ben Coal Corp. v. Interior Bd. 

of Mine Op. App., 523 F.2d 25, 33 (7th Cir. 1975). 

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

19 89) • 

The Seventh Circuit has further recognized the importance of 

the inspector's judgment in issuing an imminent danger order: 

Clearly, the inspector is in a precarious position. He is entrusted with the safety of miners' 

lives, and he must ensure that the statute is enforced for the protection of these lives. His 

total concern is the safety of life and limb •••• 

We must support the findings and the decisions of 

the inspector unless there is evidence that he has 

abused his discretion or authority. (emphasis added) 

Old Ben, supra, 523 F.2d at 31; Rochester & Pittsburgh, 11 FMSHRC 

at 2164. 

1465 
The Commission has taken note of the fact that mine roofs 

are inherently dangerous and that even good roof can fall without 

warning. Consolidation Coal Company, 6 FMSHRC 34, 37 (January 

1984). It has also stressed the fact that roof falls remain the 

leading cause of death in underground mines, Eastover Mining Co., 

4 FMSHRC 1207, 1211 and n. 8 (July 1982); Halfway Incorporated, 

8 FMSHRC 8, 13 (January 1986); Consolidation Coal Company, 

supra. 

The Commission recently stated in upholding the issuance 

of an imminent danger withdrawal order in Rochester & Pittsburgh 

Coal Co. v~ Secretary of Labor, supra at 2164; [The operator's] 

focus on the relative likelihood of [miners] being injured ••• 

ignores the admonition .in the Senate Committee Report for the 

Mine Act that an imminent danger is not to be defined "in terms 

of a percentage of probability that an accident will happen." 

S. Rep. No. 181, 95th Cong., 1st Sess. 38 (1977), reprinted in 

Senate Subcommittee on Labor of the Committee on Human Resources, 

95th Cong., 2nd Session, Legislative History of the Federal Mine 

Safety and Health Act of 1977 at 626 Cl978). Instead, the focus 

is on the "potential of the risk to cause serious physical harm 

at any time." Id. The Committee stated its intention to give 

inspectors "thenecessary authority for the taking of action to 

remove miners from risk." Id. 

"[Such] argument also fails to recognize the role played 

by MSHA inspectors in eliminating imminently dangerous conditions. Since he must act immediately, an inspector must have 

considerable discretion in determining whether an imminent 

danger exists." Applying this rationale to the case at bar, the 

question, in my opinion, is whether Inspector Huggins abused his 

discretion or authority when he determined, on the basis of his 

observations and the information he had at the time he issued 

the order, that an imminent danger existed. Upon review of the 

evidence I am unable to find that he abused his discretion or 

authority. I therefore uphold the validity of the imminent 

danger order. 

The Commission has recently noted that an imminent danger 

order need not be based upon a violation of a mandatory standard 

in order to be valid. Sees. Rep. No. 461, 95th Cong., 1st Sess. 

39 (1977), reprinted in Senate Subcommittee on Labor, Committee 

on Human Resources, 95th Cong., 2nd Sess., Legislative History 

of the Federal Mine Safety and Health Act of 1977, at 1317 (1978) 

("Legis. Hist."); Freeman Coal Mining Co., 1 IBMA 197, 207-08 

(1973), aff'd, Freeman Coal Mining Co. v. IBMA, 504 F.2d 741 

C7th Cir. 1974>. Accordingly, despite upholding the validity of 

the imminent danger order, the question of whether a preponderance of the evidence establishes a violation of 30 C.F.R. 

§ 75.202Ca) as alleged in Citation No. 3224858 remains. 

1466 
After the inspector completed his inspection and left, 

Mr. Cooper made further observations, photographs, measurements, 

and tests. He used a scaling bar and found the belt entry roof 

in question to be solid. Mr. Marshall, a certified mining 

engineer, conducted an extraction ratio study. He testified 

that the coal in place in the area in question provided approximately two times as much support as was required to support the 

roof. This expert testimony was credible and was not rebutted. 

I credit the testimony of Messrs. Marshall and Cooper. On the 

basis of their testimony and my evaluation of all the evidence 

in the record, I find that the preponderance of evidence presented is insufficient to establish a violation of 30 C.F.R. 

§ 75.202Ca). Citation No. 3224858 is therefore vacated. 

ORDER 

1. Citations Nos. 3224857 and 3224858 are vacated and the 

related proposed penalties are set aside. 

2. The Section 107Ca) imminent danger Order No. 3224859 

is affirmed. 

Distribution: 

t F. Cetti 

istrative Law Judge 

David M. Arnolds, Esq., Thomas F. Linn, Esq., Beaver Creek Coal 

Company, 555 Seventeenth Street, 20th Floor, Denver, CO 80202 

CCertif ied Mail) 

Robert J. Murphy, Esq., Office of the Solicitor, U.S. Department 

of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO 

80294 (Certified Mail) 

/ek 

1467 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

JUL 2 0 1990 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ENERGY FUELS MINING COMPANY, 

Respondent 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 89-440 

A.C. No. 05-03771-03518 

Raton Creek Mine No. 1 

DECISION 

Appearances: Margaret A. Miller, Esq., Roberts. Murphy, Esq., 

Office of the Solicitor, U.S. Department of Labor, 

Denver, Colorado, 

for Petitioner. 

Phillip D. Barber, Esq., Welborn, Dufford, Brown & 

Tooley, Denver, Colorado, 

for Respondent. 

Before: Judge Lasher 

This proceeding was initiated by the filing of a petition for 

assessment of penalties by the Secretary of Labor pursuant to 

Section 110 of the Federal Mine Safety and Health Act of 1977, 30 

u.s.c. § 820 (1977) (herein the Act). 

This matter was consolidated and scheduled for hearing with two 

other penalty dockets, WEST 90-25 and WEST 90-52. At the commencement of the hearing on June 12, 1990, a settlement had been concluded and was announced CT. 2-6) covering all six citations involved. Such settlement agreement was considered and approved from 

the bench and is here affirmed. 

Pursuant to their agreement, Respondent is to pay the penalties 

originally assessed by Petitioner in full for five of the six citations (as reflected in the Order below), and as to the remaining 

Citation No. 2931276, the "Significant and Substantial" designation 

thereon is to be deleted and the penalty reduced from $63 to $50. 

ORDER 

1. Respondent, if it has not previously done so, shall pay the 

Secretary within 30 days from the date of this decision the total 

sum of $324 as and for civil penalties as reflected below: 

1468 
Citation Number 

2930776 

2931275 

2931277 

3077194 

3077196 

2931276 

Total 

Penalty 

$ 74 

74 

42 

42 

42 

50 

$324 

2. Citation No. 2931276 is MODIFIED to delete the "Significant 

and Substantial" designation thereon and is otherwise affirmed. 

Distribution: 

I - .·- -

,;;.?};;:, ~~-- /. /, ~~/~;,/ _;;-; /(.'""' '- 'f~P. ._ /. /ti:' . /./ / / . 

Michael A. Lasher, Jr. 

Administrative Law Judge 

Margaret A. Miller, Esq., Robert J. Murphy, Esq., Office of the 

Solicitor, U.S. Department of Labor, 1585 Federal Office Building, 

1961 Stout Street, Denver, CO 80294 (Certified Mail) 

Phillip D. Barber, Esq., Welborn, Dufford, Brown & Tooley, 1700 

Broadway, Suite 1100, Denver, CO 80203 (Certified Mail) 

/ek 

1469 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 2 4 1990 

JOSEPH WIETHOLTER, 

Complainant 

v. 

QUALITY READY MIX, INC., 

Respondent 

. . 

DECISION 

DISCRIMINATION PROCEEDING 

Docket No. LAKE 90-17-DM 

MD 89-69 

Quality Pit & Mill 

Appearances: Joseph Wietholter, Celina, Ohio, pro se 1 Robert J. Brown, Esq., Thompson, Hine and 

Flory, Dayton, Ohio for Respondent. 

Before: Judge Melick 

This case is before me upon the Complaint by 

Joseph Wietholter under section 105(c)(3) of the Federal Mine 

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

"Act," alleging discharge by Quality Ready Mix, Inc., (Ready 

Mix) in violation of section 105(c)(l) of the Act.l/ More 

particularly the Complainant alleges that he was unlawfully 

discharged on July 10, 1989, for the following reasons: 

I was fired on July 10, 1989, as the result of an 

accident involving a Euclid haul truck that had no 

brakes. I had been informed by another employee at 

the mine that the truck had no brakes and that the 

trucks [sic] transmission was to be used to control 

it. While operating the truck on July 10, 1989, 

the engine stalled on a ramp and the truck started 

rolling. The trucks [sic] starter was inoperative 

and could not be started. From within the trucks 

I; Section 105(c)(l) of the Act provides as 

follows: 

No person shall discharge or in any manner 

discriminate against or cause to be discharged or 

cause discrimination against or otherwise interfere 

with the exercise of the statutory rights of any 

miner, representative of miners or applicant for 

employment in any coal or other mine subject to 

this Act because such miner, representative of 

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 

1470 
[sic] cab I jumped from the truck and the truck 

came to rest at the bottom of the steep ditch. I 

subtained [sic] injures [sic] to my neck and I'm 

under medical care. A previous incident also 

contributed to my firing. On July 8, 1989 I was 

instructed to operate a dragline. After observing 

water bleeding from the ground where I had been 

instructed to move the dragling [sic] to, I 

protested to Robert Hirchfeld [sic], supervisor, 

that the ground was unstable. He replied that it 

was stable ground, and ordered [sic] me to operate 

the dragline from that site. After moving the 

dragline, the ground beneath it failed and the 

crain [sic] fail [sic] forward. (Complaint of 

Joseph Wietholter filed July 18, 1989 with the 

Federal Mine Safety and Health Administration). 

Joseph Wietholter testified at hearing that on 

July 8, 1989, while he was operating the dragline at the 

Ready Mix mine, Superintendent Hirschfield directed him to 

pull the dragline into a waterlogged area which Wietholter 

considered to be unsafe. According to Wietholter, 

Hirschfield directed him to either get into the dragline and 

follow instructions or leave. As he proceeded to move the 

dragline into the area it leaned forward and sunk 

approximately 3-feet on one side. Wietholter later met 

Hirschfield on the job site and Hirschfield "started yelling, 

screaming and threw his hat up in the air". Wietholter 

acknowledges that he was not disciplined for the incident 

and, indeed, following the meeting did not feel that 

Hirschfield blamed him for the dragline sinking. 

On July 10, 1989, Wietholter was operating the Euclid truck 

hauling gravel. According to Wietholter the union shop steward, 

Mark Marshall, showed him how to drive it and warned him that if 

it stalled to jump out. Wietholter observed that the truck had 

no seat belts, no windshield and no brakes. He did not 

I/cont'd fn.l 

- 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 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. 

1471 
complain however about these alleged safety defects nor did 

he refuse to drive the truck. Later that day the truck 

stalled on a hill and he could not restart it. Apparently 

Wietholter could not stop it without power and, as the truck 

began to roll he jumped off. The truck went out of control 

and into a ditch. When Hirschfield arrived at the scene he 

refused to hear Wietholter's explanation and told him he was 

fired. It was then, upon the shop steward's advice, that 

Wietholter called the Federal Mine Safety and Health 

Administration and reported what he considered to be a number 

of safety violations at the mine site and filed his complaint 

under section 105(c} of the Act. 

Robert Hirschfield, owner and President of Ready Mix, 

testified that he hired Wietholter on June 6th or 7th and 

that Wietholter worked only about a month before he fired him. 

He purportedly fired Wietholter because of Wietholter's 

inability to operate the dragline. Hirschfield testified 

that Wietholter destroyed 3-lift and 2-pull cables on the 

dragline1 damaged a fuel tank, and proved that he was not 

capable of operating the machine. According to Hirschfield 

he gave general instructions to Wietholter on July 8, 1989, 

to remove overburden in an area 150 feet to 200 feet long and 

about 50 feet wide. At about 12:00 or 1:00 that afternoon he 

observed that Wietholter had removed an area 70 feet long by 

50 feet wide and had moved the machine into an area where the 

machine was not level. Hirschfield maintains that he then 

directed Wietholter to stop working that area even though 

Wietholter was willing to continue operating the dragline in 

that position. Hirschfield denied that Wietholter had 

previously complained about the ground conditions. 

Hirschfield was not aware of any safety complaints by 

Wietholter either to MSHA or to himself but acknowledged that 

Wietholter did make routine requests for repairs on the 

dragline. 

According to Hirschfield, about mid-day on July 10 he 

asked Wietholter to haul sand in a truck. Wietholter 

performed this for about 3 1/2 hours before the accident. 

Hirschfield did not see the accident but in light of all of 

the problems he felt Wietholter was "not the man for the job" 

and fired him. 

In order to establish a prima f acie violation of section 

105(c}(l} of the Act Mr. Wietholter must prove by a 

preponderance of the evidence that he engaged in an activity 

protected by that section and that his discharge was 

motivated in any part by that protected activity. Secretary 

1472 
on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 

(1980) rev.a on other grounds sub nom Consolidation Coal Co., 

v. Marshall 663 F.2d 1211 (3rd Cir. 1981); Secretary on 

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

(1981). 

In this regard, in reference to the July 10, 1989, 

accident on the Euclid haul truck which Wietholter maintains 

was the precipitating incident leading to his discharge, 

there is no evidence of any protected activity. Before the 

accident Weitholter admittedly never complained of any safety 

defect on the truck nor did he refuse to work on it. 

With respect to the dragline sinking incident on 

July 8, 1989, Wietholter maintains that he forewarned 

superintendent Hirschfield about operating the dragline in 

the waterlogged area before it sank. While this warning 

might be construed as a safety complaint Wietholter not only 

did not refuse to operate tne dragline in the waterlogged 

area but indeed went ahead and moved the dragline into that 

area. It is not reasonable to infer therefore that any 

anti-safety animus would have resulted from this activity. 

Under the circumstances, Wietholter has failed to sustain his 

burden of proving that Hirschfield retaliated against him for 

his alleged prior warnings about operating the dragline in 

the waterlogged area. 

Under the circumstances the Complainant herein has 

failed to sustain his burden of proving that he was 

discharged in violation of Section 105(c)(l) of the Act and 

accordingly his Complaint herein must be dismissed. 

ORDER 

Discrimination case Docket No. LAKE 90-17 

DISMISSED. 

Distribution: 

hereby 

Mr. Joe Wietholter, 710 Dvonshire il7, Celina, OH 45822 

(Certified Mail) 

Robert J. Brown, Esq., Thompson, Hine and Flory, 2000 

Courthouse Plaza, N.E., P.O. Box 8801, Dayton, OH 45401-8801 

(Certified Mail) 

nb 1473 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 2 71990 

SOUTHERN OHIO COAL COMPANY, 

Contestant 

. . 

. . CONTEST PROCEEDING 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

. . 

DECISION 

Docket No. LAKE 90-37-R 

Order No. 3324186; 2/1/90 

Meigs No. 31 Mine 

Mine I.D. # 33-01172 

Appearances: David M. Cohen, Esq., Lancaster, Ohio, for 

Contestant; 

Patrick M. Zohn, Esq., Office of the Solicitor, 

U.S. Department of Labor, Cleveland, Ohio for 

Respondent. 

Before: Judge Melick 

This case is before me under section 107(e)(l) of the 

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

et seq., the "Act," to challenge an imminent danger 

withdrawal order issued by the Secretary of Labor against the 

Southern Ohio Coal Company (Southern Ohio) on February 1, 1990, 

pursuant to section 107(a) of the Act. The order reads as follows: 

A serious accident has occurred in which a miner 

was injured due to the practice of moving equipment 

using a wire rope without a guard or barrier or 

without persons being in a safety zone of 1 1/2 

times the length of exposed wire rope. Safety 

contacts will be made of all personnel who 

work underground to assure the policy of moving 

equipment with the use of wire rope is adhered to. 

Section 107(a) of the Act provides in part as follows: 

If, upon any inspection or investigation of a coal 

or other mine which is subject to this Act, an 

authorized representative of the Secretary finds 

that an inuninent danger exists, such representative 

shall determine the extent of the area of such mine 

throughout which the danger exists, and issue an 

order requiring the operator of such mine to cause 

all persons except those referred to in section 

104(c), to be withdrawn from, and to be prohibited 

1474 
from e·ntering, such area until an authorized 

representative of the Secretary determines that 

such imminent danger and the conditions or 

practices which caused the imminent danger no 

longer exist. 

Section 3(j) of the Act defines "imminent danger" as the 

existence of any condition or practice in a coal or other 

mine which could reasonably be expected to cause death or 

serious physical harm before such condition or practice can 

be abated. In this case it is charged ~hat a "practice" 

rather than a "condition" existed i.e. "the practice of 

moving equipment using a wire rope without a guard or barrier 

or without persons being in a safety zone of 1 1/2 times the 

length of exposed wire rope. " 

In Rochester and Pittsburgh Coal Co. v. Secretary of 

Labor, 11 FMSHRC 2159 (1989), the Corrunission considered two 

methods for determining the validity of an imminent danger 

withdrawal order issued under section 107(a) of the Act. 

First the Commission agreed that substantial evidence existed 

to support the judge's findings that an "imminent danger" 

existed at the time the order was issued. The Commission 

also concluded in that decision that apparently even if an 

imminent danger had not existed, the findings and the 

decisions of the inspector in issuing the order should 

nevertheless be upheld "unless there is evidence that he has 

abused his discretion or authority". Rochester and 

Pittaburgh, supra 2164 quoting from Old Ben Coal Corp. v. 

Interior Board of Mine Operation Appeals, 523 F.2d 25 at 31 

(7th Cir. 1975). 

For the reasons that follow I do not find in this case 

that an "imminent danger" existed at the time the order was 

issued. Furthermore, I find that the issuing inspector did 

indeed abuse his discretion and authority in issuing the 

order under the circumstances herein. 

The issuing MSHA inspector, Donald Osborne, was 

conducting an electrical inspection on February 1, 1990, in 

the subject Meigs No. 31 Mine when he learned that an 

accident had occurred the day before, injuring miner Bill 

Yoho. The facts surrounding the accident are not in dispute. 

The evidence shows that on January 31, 1990, at about 1:30 p.m., 

at the 6 Right off the 6 East Mains area at the No. 15 crosscut 

several miners were in the process of removing an air compressor 

with a 15 ton track mounted locomotive. They had rigged a sheave 

block attached to the track to pull the compressor at a right 

angle to the direction of the locomotive. As they were pulling 

the compressor toward the track it became stuck, a cnain link 

failed and the wire rope snapped back striking Mr. Yoho in the 

face and head. The wire rope was 40 feet long and Yoho was 

admittedly standing within 1 1/2 lengths of the rope. 

1475 
Inspector Osborne testified that while no regulatory 

violation existed in this case, the use of a wire rope 

within a safety zone of 1 1/2 times the length of the rope 

constituted an "imminent danger". In support of his view 

Osborne cited a memorandum issued by the corresponding MSHA 

district manager on September 3, 1987, setting forth the 

safety requirements to be followed when wire ropes are used 

to move equipment i.e. a safety zone 1 1/2 times the length 

of the wire rope or the use of a cage or barrier. Osborne 

testified that the memo was in fact discussed with Southern 

Ohio officials, including officials at the Meigs No. 31 Mine, 

on January 9, 1988. 

Osborne testified that the "practice" about which he was 

concerned was of not protecting employees when using wire 

ropes. He acknowledged that since he was citing a "practice" 

and not a "condition" he noted in the order that "no area 

[was] affected". Osborne conceded however that he did not 

know whether the procedure followed in this instance was 

indeed a "practice" at the subject mine. When asked how he 

determined that the cited procedure was a "practice", Osborne 

stated only that "I didn't know that it was [a practice]; 

however I did not know that it wasn't" (Tr .47). 

The threshold issue in this case is whether the cited 

procedures constituted a "practice" within the meaning of 

section 3(j) of the Act. 

The word "practice" is defined, as relevant hereto, in 

Webster's New Collegiate Dictionary, G & C Merriam Company, 

1979, as "a repeated or customary action" or "the usual way 

of doing something". The issuing inspector clearly did not 

have any direct evidence that the cited event was a "repeated 

or customary action" or was "the usual way of doing 

something" within this meaning. Nor could such findings be 

made by inference i.e. an inference could not be drawn from 

the observation of one incident that there was a "practice" 

of performing the cited procedure. See Mid-Continent 

Resources 6 FMSHRC 1132 (1984); Garden Creek Pocahontas 11 

FMSHRC 2148 (1989). Accordingly the Secretary has failed to 

sustain her burden of proving that a "practice" existed at 

the time the order was issued. There was therefore no 

"imminent danger" within the meaning of section 3(j) of the 

Act. 

Moreover by the failure of the issuing inspector to have 

conducted further investigation to determine whether the 

cited procedures were indeed sufficiently repetitive to 

constitute a "practice" I conclude that the inspector abused 

his discretion and authority in issuing the order at bar. It 

is clearly improper for the inspector to infer that the cited 

events were a "practice" from the absence of evidence that 

1476 
they were not a practice. The Secretary has the burden of 

proving each and every element supporting its withdrawal 

order and she cannot shift that burden. For this additional 

reason the imminent danger withdrawal order must be vacated. 

ORDER 

Distribution: 

i Gary Melick ·' ' 

Adm;i. istrativefi Law Judge I ; ·' 

David M. Cohen, Esq., American Electric Power Service Corp., 

161 w. Main Street, Box 700, Lancaster, OH 43130 (Certified 

Mail) 

Patrick M. Zohn, Esq., Office of the Solicitor, U.S. 

Department of Labor, 881 Federal Office Building, 1240 East 

Ninth Street, Cleveland, OH 44199 (Certified Mail) 

nb 

1477 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

FMC WYOMING CORPORATION, 

Contestant 

v •. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Respondent 

and 

UNITED STEELWORKERS OF 

AMERICA, DISTRICT 33, 

Intervenor 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

and 

UNITED STEELWORKERS OF 

AMERICA, DISTRICT 33, 

Intervenor 

v. 

FMC WYOMING CORPORATION, 

Respondent 

DENVER, CO 80204 

JUL 2 71990 

. . 

: 

. . 

. . 

. . 

. . 

. . 

. . 

. 

. 

. . 

CONTEST PROCEEDINGS 

Docket No. WEST 86-43-RM 

Citation No. 2647693; 11/23/8 

Docket No. WEST 86-45-RM 

Order No. 2647695; 11/23/85 

FMC Trena Mine 

Mine ID 48-00152 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 86-110-M 

A.C. No. 48-00152-05535 

FMC Trena Mine 

DECISION AFTER REMAND 

Appearances: James H. Barkley, Esq., Margaret A. Miller, Esq., 

Office of the Solicitor, U.S. Department of Labor, 

Denver, Colorado, 

for Respondent/Petitioner; 

James Holtcamp, Esq., Vancott, Bagley, Cornwall & 

McCarthy, Salt Lake City, Utah, 

for Contestant/Respondent; 

Stan Loader, Staff Representative, United Steelworkers of America, Rock Springs, Wyoming, 

Intervenor. 

Before: Judge Cetti 

1478 
The Commission's remand involves two (2) violations, one of 

30 C.F.R. § 57.5002 and one of 30 C.F.R.·§ 57.18002. The issues 

which remained after remand are whether the violation of 30 

C.F.R. § 57.5002 by FMC Wyoming Corporation (FMC) was significant 

and substantial and the appropriate penalty for each of the two 

violations. 

I 

PROPOSED SETTLEMENT 

Prior to this decision on remand, the Secretary of Labor 

(Secretary) and the operator, FMC Wyoming Corporation (FMC), 

agreed to a settlement resolving all issues remaining before 

me after the Commission's remand Decision. This settlement 

agreement included a withdrawal of FMC's notice of contest to 

both citations and a reduction of the penalties sought by the 

Secretary. 

Pursuant to this settlement agreement with FMC, the Secretary filed a Motion to Approve Settlement and Order Payment. The 

intervenor, United Steelworkers of America, District 33 CUSWA), 

which has party status pursuant to its request and my prehearing 

Order granting party status, was neither a negotiator nor a participant in the negotiations of the settlement. USWA objected to 

approval of the settlement and by my Order dated April 10, 1990. 

I disapproved the proposed settlement on the basis of Commission 

Procedural Rule 30 (29 C.F.R. § 2700.30Ca). 1/ 

Thereafter, the Secretary filed a motion, which I now have 

before me, requesting I reconsider my Order Disapproving Settlement. The Secretary states in part, "While it is true that the 

Secretary did not seek the concurrence of or consult the union 

intervenor in this case in reaching a settlement with the operator, the Secretary believes that concurrence of the intervenor is 

not a requirement" to an agreed settlement of the case. 

1/ § 2700.30 Penalty settlements. 

(a) General. No proposed penalty that has been 

contested before the Commission shall be compromised, 

mitigated, or settled except with the approval of 

the Commission after agreement by all parties to the 

proceeding. (Emphasis added) ~-

1479 
Both the Secretary and USWA submitted points and authorities 

in support of their position. Having reconsidered the matter, I 

find the position of USWA to be meritorious. Under the facts and 

circumstances of this case, Commission Procedural Rule 30 unequivocally requires that the miner's representative CUSWA) be 

an agreeing party to the settlement before it can be approved. 

Absent Commission precedent changing the impact of this rule, I 

am obliged to follow the same, and accordingly my Order Disapproving Settlement is here AFFIRMED. 

II 

SIGNIFICANT AND SUBSTANTIAL VIOLATIONS 

The main issue before me at this time is whether FMC's 

unwarrantable failure to comply with the mandate of 30 C.F.R. 

§ 57.5002 constitutes a significant and substantial violation. 

A "significant and substantial" violation is described in 

Section 104(d)(l) 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. § 814Cd))l). A violation is properly designated significant and substantial "if, based upon the particular facts 

surrounding the violation there exists a reasonable likelihood 

that the hazard contributed to will result in an injury or illness of a reasonably serious nature." Cement Division, National 

Gypsum Co., 3 FMSHRC 822, 825 (April 1981). 

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

Commission explained its interpretation of-the term "significant 

and substantial" as follows: 

In order to establish that a violation of a mandatory safety standard is significant and substantial 

under National Gypsum the Secretary of Labor must 

prove: Cl) the underlying violation of a mandatory 

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

a measure of danger to safety-contributed to by the 

violation; (3) a reasonable likelihood that the hazard 

contributed to will result in an injury; and (4) a 

reasonable likelihood that the injury in question will 

be of a reasonably serious nature. 

In United States Steel Mining Company, Inc., 7 FMSHRC 1125, 

1129, the Commission stated further as follows: 

1480 
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 104Cd)(l), it is the 

contribution of a violation to the cause and effect of 

a hazard that IrD.lst 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, l574-7S (July 1984). 

In Consolidation Coal Company v. Secretary of Labor, Mine 

Safety and Health Administration, 8 FMSHRC 890, 897-98 (June 

1982), aff'd, 824 F.2d 1071 CD.C. Cir. 1987), the Commission 

adapted the Mathies f ormul4 to a health standard as follows: 

Adapting this test to a violation of a mandatory 

health standard, such as section 70.lOOCa), results in 

the following formulation of the necessary elements to 

support a significant and substantial finding: Cl) the 

underlying violation of a mandatory health standard; 

(2) a discrete health hazard -- a measure of danger to 

health -- contributed to by the violation; (3) a reasonable likelihood that the health hazard contributed to 

will result in an illness; and (4) a reasonable likelihood that the illness in question will be of a reasonably 

serious nature. 

In applying the Mathies/Consol test to this case, I find, as I 

did in my the initial decision, that FMC clearly violated the 

provisions of the mandatory health standard 30 C.F.R. 

§ 57.5002 2/ by its failure to take dust surveys while the maintenance crew removed insulation containing asbestos from its No. 

3 turbine. This failure eliminated the possibility of an accurate determination of whether or not maintenance crew employees 

were overexposed to airborne asbestos. Exposing employees to 

~/ 30 C.F.R. § 57.5002 provides: 

Dust, gas, mist, and fume surveys shall be conducted 

as frequently as necessary to determine the adequacy of 

control measures. 

1481 
airborne asbestos in an unknown concentration is a discrete hazard. Thus, the first and second elements of the Mathies/Consol 

formula have been established. Skipping the third element for a 

moment, I find there is no significant dispute as to the fourth 

element, since the evidence overwhelmingly showed that, if an 

illness resulted from the exposure, the illness in question would 

be an illness of a reasonably serious nature. 

The third element the Secretary must prove is a reasonable 

1-ikelihood that the health hazard contributed to will result in 

an illness. It is generally recognized that the development and 

progress of respiratory disease is due to the cumulative dosage 

of dust a miner inhales which, in turn, depends upon the concentration and duration of each exposure, and that proof of a single 

incident of overexposure does not, in and of itself, conclusively 

establish a reasonable likelihood that respirable disease will 

result. The exposure in this case was for a relatively short 

period of time to an unknown concentration of airborne asbestos. 

For this reason, I initially believed that the Secretary had not 

proven the violation was S & s. Now, however, it has been established by the Commission's finding that FMC's failure to take a 

dust survey was not due to simple negligence, but was a result of 

its unwarranted failure to comply with the mandatory health 

standard. This fact, plus my review of the evidence which indicates a reasonable likelihood that there was an overexposure, 

leads me to conclude that FMC's violation of the mandatory health 

standard was significant and substantial under the policy, law, 

and rationale the Commission set forth in the Consolidation Coal 

Company case, supra. Furthermore, it is believed that FMC should 

not be allowed to defend on the basis of its unwarrantable failure to comply with the mandatory health standard, i.e., the failure to take the mandated dust surveys. FMC's violation of the 

mandatory health standard under the facts and circumstances of 

this case, is a significant and substantial violation. 

III 

PENALTY 

The only remaining issue is the assessment of the appropriate civil penalties for FMC's violation of 30 C.F.R. § 57.5002 

and 30 C.F.R. § 57.18002. With respect to the latter, the Commission found that FMC violated that portion of the mandatory 

safety standard that requires the person making daily workplace 

examinations to be a competent person. In making this finding, 

the Commission stated that the person FMC designated "cannot be 

said to have had the ability and experience fully qualifying him 

to examine the workplace around the turbine for conditions which 

might adversely affect safety and health." 

1482 
It is undisputed that FMC is a large operator, and appropriate penalties will not impair FMC's ability to continue in business. The parties stipulated that the operator's history of 

prior violations is average for an operator of its size, and that 

the violations were abated within the time period prescribed. The 

negligence of FMC and the gravity of the violations are both high. 

Taking into consideration the six statutory criteria in Section 

llO(i) of the Mine Act, I find that the appropriate civil penalty 

for·FMC's violation of 30 C.F.R. § 57.5002 is $2,000 and the 

appropriate penalty for its violation 0£ 30 C.F.R. § 57.18002 is 

$800. These assessments are considerably higher than MSHA's 

initial proposed penalty of $500 for each of the violations, but 

these higher penalties are justified and fully supported by the 

record. 

ORDER 

1. Citation No. 2647693 alleging a significant and substantial violation of 30 C.F.R. § 57.5002 caused by FMC's unwarrantable failure to comply with the mandatory safety· standard is 

AFFIRMED and a civil penalty of $2000 is assessed. 

2. Order No. 2647695 alleging a violation of 30 C.F.R. 

§ 57.18002 is AFFIRMED and a civil penalty of $800 is assessed. 

3. FMC Wyoming Corporation is directed to pay the Secretary of Labor the above-assessed civil penlaties in the sum of 

$2800 within 30 days of the date of this Decision. 

Distribution: 

~~~C!dtz st F. Cetti 

inistrative Law Judge 

Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1585 Federal Building, 1961 Stout Street, Denver, 

CO 80294 (Certified Mail) 

Matthew F. McNulty III, Van Cott, Bagley, Cornwall & McCarthy, 

50 South Main Street, Suite 1600, Salt Lake City, UT 84144 

(Certified Mail) 

Stan Loader, USWA Staff Representative and Miners Representative, 

P.O. Box 1315, Rock Springs, WY 82902 (Certified Mail) 

Harry Tuggle, Safety and Health Specialist, Safety and Health 

Department, United Steelworkers of America, Five Gateway Center, 

Pittsburgh, PA 15222 (Certified Mail) 

/ek 

1483 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

C"uly 31, 1990 

ENERGY FUELS MINING COMPANY, 

contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Respondent 

CONTEST PROCEEDING 

Docket No. WEST 90-211-R 

Citation No. 3240559; 12/11/89 

Raton Creek No. 2 

Mine ID 05-3817 

ORDER OF DISMISSAL 

Before: Judge Merlin 

on June 22, 1990, I issued an order stating that it was not 

clear from the pleadings then of record whether the operator was 

filing a notice of contest challenging the issuance of the 

subject withdrawal order or was contesting the penalty assessment. The parties were directed to submit further information 

and to set forth their positions with respect to the timeliness 

of the operator's filings. 

From the statements now filed by the parties, it appears 

that the notice of contest filed on May 24, 1990, was directed to 

the penalty assessment. 1 The Solicitor advises that the penalty 

proposal was sent to the operator on March 7, 1990, and according 

to the return receipt card was received on March 15, 1990. The 

Solicitor claims the filing is untimely and must be dismissed. 

The operator argues the filing should be accepted. 

Section 105(a) of the Mine Act, 30 u.s.c. § 815(a), provides 

in pertinent part: 

If, after an inspection or investigation, the 

Secretary issues a citation or order under section 104, 

he shall, within a reasonable time after the termination of such inspection or investigation, notify the 

operator by certified mail of the civil penalty proposed to be assessed under section llO(a) for the 

The notice of contest was filed with Commission's Office 

of Administrative Law Judges in Falls Church, Virginia. It 

should have been filed at Commission headquarters in Washington, 

D.C. 29 C.F.R. § 2700.5. 

1484 
violation cited and tha- the operator has 30 days 

within which to notify the Secretary that he wishes to 

contest the citation or proposed assessment of penalty. 

A copy of such notification shall be sent by mail to 

the representative of miners in such mine. If, within 

30 days from the receipt of the notification issued by 

the Secretary, the operator fails to notify the Secretary that he intends to contest the citation or the 

proposed assessment of penalty, * * * the citation 

and the proposed assessment of penalty shall be deemed 

a final order of the Commission and not subject to 

review by any court or agency. * * * * 

Section 2700.25 of Commission regulations, 29 C.F.R. 

§ 2700.25, states as follows: 

The Secretary, by certified mail, shall notify the 

operator or any other person against whom a penalty is 

proposed of: (a) The violation alleged; (b) the amount 

of the penalty proposed; and (c) that such person shall 

have 30 days to notify the Secretary that he wishes to 

contest the proposed penalty. If within 30 days from 

the receipt of the Secretary's notification of proposed 

assessment of penalty, the operator or other person 

fails to notify the Secretary that he intends to contest the proposed penalty, the Secretary's proposed 

penalty shall be deemed to be a final order of the 

Commission and shall not be subject to review by the 

Commission or a court. 

And Section 100.7(b) of the Secretary of Labor's regulations, 30 C.F.R. § 100.7(b) reads in relevant portion: 

Upon receipt of the notice of proposed penalty, 

the party charged shall have 30 days to: (1) Pay the 

proposed assessment (acceptance by MSHA of payment 

tendered by the party charged will close the case); or, 

(2) notify MSHA in writing of the intention to contest 

the proposed penalty. The Office of Assessments shall 

provide a return mailing card with each notice of 

proposed penalty to be used by the party charged to 

request a hearing before the Federal Mine Safety and 

Health Review Commission under Section 105 of the Act. 

Such a request must be sent to the address listed on 

such notification. When MSHA receives the notice of 

contest, it shall immediately advise the Commission of 

such notice, and shall promptly forward the case to the 

Office of the Solicitor. No proposed penalty which has 

been contested before the Commission, shall be compromised, mitigated or settled except with the approval 

of the Commission. 

1485 
{c) The fa .... lure to pay or to coi.:cest the proposed 

penalty within 30 days of receipt of notice thereof 

shall result in the proposed penalty being deemed a 

final order of the Commission and not subject to review 

by any court or agency. 

As set forth above, the operator received notice of the 

proposed penalty by March 15, 1990. It took no action within 

30 days. Indeed, it has never sent back the return mailing card 

(commonly calleq the "blue card") provided by MSHA to request a 

hearing. The notice of contest which was not filed until May 24, 

1990, was 40 days late. 

Since the operator failed to file within the statutorily 

prescribed time period, this case must be dismissed. The Act 

specifically mandates that a penalty not contested within the 

allotted period the proposed assessment shall be deemed a final 

order of the Commission not subject to review by any court or 

agency. Northern Aggregates Inc., 2 FMSHRC 1062 (May 1980) 

(Administrative Law Judge Melick). Cf. J. P. Burroughs and Sons, 

Inc., 3 FMSHRC 854 (April 1981); Old Ben Coal Company, 7 FMSHRC 

205 (February 1985); Local Union 2333, District 29, UMWA v. 

Ranger Fuel corporation, 10 FMSHRC 612, 618 (May 1988); Peabody 

Coal Company, 11 FMSHRC 2068, 2092, 2093 (October 1989) 

(Administrative Law Judge Koutras). 

In this connection it must also be noted that a long line of 

cases going back to the Interior Board of Mine Operation Appeals 

have held that cases contesting the issuance of a citation must 

be brought within the statutory 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 2143 (1979), aff'd by the Commission, 1 

FMSHRC 989 (August 1979); Amax Chemical Corp., 4 FMSHRC 1161 

(June 1982) (Administrative Law Judge Steffey); Rivco Dredging 

Corp., 10 FMSHRC 889 (July 1988) (Administrative Law Judge 

Maurer); See Also, Peabody Coal Co., supra; and Big Horn 

Calcium, 12 FMSHRC 463 (March 1990) (Administrative Law Judge 

Cetti). Accordingly, the time requirements for contesting the 

issuance of a citation and for contesting the penalty assessment 

which appear together in section 105(a), must be viewed as 

jurisdictional. It is well settled that jurisdiction cannot be 

waived and can be raised by the court sua sponte at any stage of 

the proceedings. Insurance Corporation of Ireland, LTD, 

et al. v. Compagnie des Bauxites, 456 U.S. 694, 701-702 (1982); 

Athens Community Hospital, Inc. v. Schweiker, 686 F.2d 989 (D.C. 

Cir. 1982). 

The only case cited by the operator, Humphrey v. Samples, 

1 MSHC 1723 (1979), is distinguishable. It involved a complaint 

of discrimination filed under Section 105(c) of the Act. 

30 U.S.C. § 815(c). The legislative history of 105(c) expressly 

1486 
p~ovides that the time allowed for filing a discrimination case 

should not be construed strictly where the filing of the complaint is delayed under justifiable circumstances. s. Rep. No. 

181, 95th Cong., 1st Sess. 36 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong. 2nd 

Sess., Legislative History of the Federal Mine Safety and Health 

Act of 1977, p. 624 (1978). Bryant v. Dingess Mine Service, et 

al., 9 FMSHRC 336 (February 1987) (Administrative Law Judge 

Broderick); Mcintosh v. Flaget Fuels, 12 FMSHRC 1151 (May 1990) 

(Administrative Law Judge Koutras). 

The foregoing is dispositive. But it is noted that this 

operator has appeared before the Commission ~n many other proceedings, is represented by counsel and offers no excuses for its 

tardiness. 

In light of the foregoing, this case is DISMISSED. 

Law Judge 

Distribution: 

Phillip D. Barber, Esq., Energy Fuels Mining Company, Welborn, 

Dufford, Brown & Tooley, P.C., 1700 Broadway, Suite 1700, Denver, 

co 80290-1701 (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) 

Richard A. Munson, Esq., One Tabor Center, 1200 17th Street, 

Suite 2500, Denver, CO 80202 (Certified Mail) 

Mr. Keith Hill, Director, Safety and Training, Energy Fuels coal, 

Inc., P. o. Box 449, Florence, co 81226 (Certified Mail) 

Lawrence Beeman, Director, Office of Assessments, u. s. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

(Hand Deliver) 

/gl 

1487 

ADMINISTRATIVE LAW JUDGE ORDERS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

July 6, 1990 

UNITED MINE WORKERS OF AMERICA, 

ON BEHALF OF 

GILBERT ROYBAL, 

Complainant 

v. 

WYOMING FUEL COMPANY, 

Respondent 

ORDER 

DISCRIMINATION PROCEEDING 

Docket No. WEST 90-118-D 

DENV CD 90-01 

Golden Eagle Mine 

On July 5, 1990, the United Mine Workers of America on 

behalf of Filbert Roybal, Complainant, filed a motion for my 

recusal, stating that Wyoming Fuel Company attorney Lawrence J. 

Corte would be a witness in the case and that the credibility of 

this local (Denver) attorney "will constitute a crucial issue" in 

this case. 

Recusal of a Mine Safety and Health Review Commission Judge 

is governed by Commissioner Procedural Rule 81 (29 C.F.R. 

§ 2700.81, which provides as follows: 

§ 2700.81 Disqualification 

(a) Withdrawal generally. A Commissioner or 

Judge may withdraw from a proceeding whenever he 

deems himself disqualified. 

(b) Request to withdraw. Any party may request 

a Commissioner, or the Judge (at any time following 

his designation and before the filing of his decision), to withdraw on grounds of personal bias or 

disqualification, by filing promptly upon discovery 

of the alleged facts an affidavit setting forth in 

detail the matters alleged to constitute grounds for 

disqualification. 

(c) Procedure if Judge does not withdraw. If the 

Judge does not disqualify himself and withraw from 

the proceeding, he shall so rule upon the record, 

stating the grounds for his ruling and shall proceed 

with the hearing, or, if the hearing has been completed he shall proceed with the issuance of his 

decision, unless the Commission stays the hearing or 

further proceedings by granting a petition for interlocutory review. 

1488 
After consideration of the matter, upon my own motion, 

pursuant to the Commission Procedural Rule 81 (29 C.F.R. 

§ 2700.81, I hereby disqualify myself and withdraw from this 

proceeding. 

{2~_,__d;_;;f C?en ~'1g -~·. Cett1 

Ad nistrative Law Judge 

Distribution: 

Gerard C. Boyle, Esq., Susan J. Tyburski, Esq., BOYLE & 

TYBURSKI, 621 - 17th Street, Suite 2300, Denver, CO 80293 

Timothy M. Biddle, Esq., Susan E. Chetlin, Esq., CROWELL & 

MORING, 1001 Pennsylvania Avenue, N.W., Washington, D.C. 

20004-2505 

/ek 

1489 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

July 23, 1990 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Complainant 

v. 

CANYON COUNTRY ENTERPRISES, 

d/b/a CURTIS SAND & GRAVEL, 

CORPORA~ION, 

Respondent 

. . 

. . 

. . 

. . 

DISCRIMINATION PROCEEDING 

Docket No. WEST 90-165-DM 

M9 89-24 

Soledad Canyon Mine 

ORDER DIRECTING RESPONDENT TO FULLY ANSWER DISCOVERY REQUESTS 

On or about June 12, 1990, Complainant served on Respondent 

certain Interrogatories and a Request for Production of 

Documents. 

On July 9, 1990, Complainant filed its Motion for Order 

Compelling Responses To Discovery Requests, attaching Respondent's answers thereto, pointing out accurately that Respondent 

"hao provided no information whatsoever in response to those 

requests, opting instead to object on general and spurious 

grounds." 

Respondent's counsel may not be familiar with Commission 

practice which is traditionally liberal on these matters. As to 

the request for production of documents, Respondent, in its 

"General Objections," misconstrued the provisions of Commission 

procedural Rule 57 (2900 C.F.R. § 2700.57). 1/ Respondent also 

complains that the Complainant's discovery request was 9 days 

over the 60-day period provided in Rule 55. Complainant has 

shown that Respondent's answer to its Complaint was not received 

by it until approximately one month after it was due. Whether or 

not this delay was attributable to any tardiness on Respondent's part, it constitutes good cause for Complainant's very 

nominal delay in initiating discovery and, accordingly, pursuant 

to the authority provided in Rule 55, discovery time is extended 

- to be completed by September 28, 1990. 

1/ I find no "good cause" for excusing Respondent from answering the discovery requests of Complainant. There is no claim of 

prejudice from Respondent from the delay and I would certainly 

inf er none from the short period involved. 

1490 
Respondent has also raised various "Special Objections" to 

the requests for document production and interrogatories, for the 

most part, that such are 11 overbroad, 11 "burdensome," protected by 

the attorney-client privilege, and irrelevant. I have studied 

both the requests and objections, and find such objections are 

either the result of a misunderstanding of the issues in a mine 

safety discrimination case, or are simply contentious. Such 

objections are couched in broad language. The information sought 

by Complainant is clearly within the scope of that permitted by 

Procedural Rule 55(c) which provides: 

(c) Scope of discovery. Parties may obtain 

discovery of any relevant matter, not privileged, that is admissible evidence or appears 

reasonably calculated to lead to the discovery 

of admissible evidence. 

Accordingly, all such objections are denied and Respondent 

is directed to fully, and in good faith, answer such on or before 

August 17, 1990. Counsel are requested to attempt to cooperate 

in discovery and procedural matters so that this matter can be 

brought to focus on major issues. Counsel are also requested to 

further explore the amicable resolutio.n of this matter. 

The presence of legal counsel in an administrative proceeding--and before this Commission--will be expected to bring with 

it a higher degree of professionalism and responsibility to the 

tribunal and its purpose. Pro forma objections and obstructions 

are not encouraged or countenanced. 

The attention of counsel to Commission Procedural Rule 63 

C2700 C.F.R. § 63) is invited. 

{kr~~J~ ~ ~-( 4 

Michael A. Lasher Jr. 

Administrative Law Judge 

1491 
Distribution: 

Susanne Lewald, Esq., Office of the Solicitor, U.S. Department of 

Labor, 71 Stevenson Street, Suite 1110, San Francisco, CA 94105 

Scott H. Dunham, .Esq., O'MELVENY & MYERS, 400 South Hope Street, 

Los Angeles, CA 90071-2899 

Michael G. McGuinness, Esq., O'MELVENY & MYERS, Canyon Country 

Enterprises, d/b/a Curtis Sand and Gravel Corporation, 400 South 

Hope Street, Los Angeles, CA 90071-2899 

Dana R. Corey, Esq., GILL & BALDWIN, 1444 North Brand Boulevard, 

Glendale, CA 91203 

/ek 

1492