MARCH 1992 

COMMISSION DECISIONS 

09-24-92 

03-25-92 

Lang Brothers, Inc. (previously unpublished) 

Waste Coal Management, Inc. 

ADMINISTRATIVE LAW JUDGE DECISIONS 

03-02-92 

03-06-92 

03-09-92 

03-10-92 

03-H0-92 

03-10-92 

03-11-92 

03-11-92 

03-18-92 

03-19-92 

03-19-92 

03-20-92 

03-24-92 

03-24-92 

03-26-92 

03-26-92 

03-30-92 

03-31-92 

03-31-92 

Shrewsbury Coal Company 

Sec. Labor on behalf of Peter D. Sprouse v. 

P-F Mining, Inc., et al. 

Chrisman Ready-Mix, Inc./Ozark Material Co. 

Shell Energy Company, Inc. 

Consolidation Coal Company 

Charles E. Carpenter emp. by Island Creek Coal 

Sec. Labor on behalf of Robert W. Buelke v. 

Santa Fe Pacific Gold Corporation 

Consolidation Coal Company 

Peabody Coal Company 

Consolidation Coal Company 

Consolidation Coal Company 

Consolidation Coal Company 

Consolidation Coal Company 

Consolidation Coal Company 

Yerington Leasing Company 

Eagle Nest, Inc. 

Rochester & Pittsburgh Coal Co. 

Clifford Meek v. Essroc Corporation 

Harman Mining Company 

ADMINISTRATIVE LAW JUDGE ORDERS 

03-05-92 

03-11-92 

03-19-92 

03-26-92 

Contest of Respirable Dust Samples 

Tunnelton Mining Company 

Contest of Respirable Dust Samples 

Consolidation Coal Company 

WEVA 90-48 

KENT 91-75 

WEVA 91-1796 

WEVA 92-179-D 

CENT 

WEVA 91-58 

WEVA 91-166-R 

WEVA 91-1801 

WEST 92-243-DM 

WEVA 91-303 

KENT 91-1231 

WEVA 91-1600 

WEVA 91-1601 

PENN 91-1045 

WEVA 91-228-R 

WEVA 91-247-R 

LAKE 91-119-M 

WEVA 92-729-R 

PENN 88-309-R 

LAKE 90-132-DM 

VA 91-270-R 

No. 91-1 

PENN 91-1456 

No. 91-1 

PENN 91-1375 

Pg. 413 

Pg. 423 

Pg. 425 

Pg. 430 

Pg. 431 

Pg. 433 

Pg. 436 

Pg. 472 

Pg. 473 

Pg. 483 

Pg. 489 

Pg. 4% 

Pg, 495 

Pg. 496 

Pg. 499 

Pg. 502 

Pg. 505 

Pg. 506 

Pg. 513 

Pg. 518 

Pg. 520 

Pg. 523 

Pg. 526 

Pg. 529 

Pg. 532 

MARCH 1992 

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

Lonnie D. Ross and Charles E. Gilbert v. Shamrock Coal Company, Docket 

No. KENT 91-76-D and KENT 91-77-D. (Judge Fauver, February 28, 1992) 

Secretary of Labor, MSHA v. Zeigler Coal Company, Docket No. LAKE 91-636. 

(Judge Koutras, February 12, 1992) 

Secretary of Labor, MSHA v. U.S. Steel Mining Co., Inc., Docket No. 

WEVA 91-1607. (Judge Maurer~ February 12, 1992) 

UMWA on behalf of Dan Nelson and others v. MSHA, John Weekly, et al., 

Docket No. SE 88-92-D, SE 88-23-D. (Judge Weisberger, February 14, 1992) 

Larry E. Swift and others v. Consolidation Coal Co., Docket No. 

PENN 91-1038-D.(Judge Melick, February 19, 1992) 

Secretary of Labor, MSHA v. Ford Construction Company, Docket No. 

WEST 90-346-M. (Judge Morris, February 16, 1992) 

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

Secretary of Labor, MSHA v. Brown Brothers Sand Company, Docket No. 

SE 91-93-M, etc. (Judge Koutras, January 23, 1992) 

Secretary of Labor, MSHA v. Robert Shick employed by Muncie Sand and 

Gravel, Inc., Docket No. LAKE 91-64-M. (Judge Fauver, February 18, 1992) 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF l.ABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

LANG BROTHERS, INC. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

September 24, 1991 

Docket Nos. YEVA 90-48 

YEVA 90-58 

BEFORE: Backley, Doyle, Holen and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

In this civil penalty proceeding arising under the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)(the wMine Act~ or 

"Act"), we are asked to decide whether certain gas well cleaning and plugging 

operations of Lang Brothers, Inc. ("Lang") were subject to the jurisdiction of 

the Mine Act and whether, in performing these operations, Lang was an 

independent contractor within the Act's definition of "operator." Commission 

Administrative Law Judge James A: Broderick concluded that, on the facts of 

this case, the gas well cleaning and plugging operations in question were 

subject to the Mine Act and that Lang was an independent contractor-operator 

under the Act. 12 FMSHRC 1690 (August 1990)(ALJ). For the reasons that 

follow, we affirm the judge's decision. 

I. 

Factual and Procedural Background 

The salient facts of this case are undisputed. Lang is a heavy 

construction company, approximately half of whose business involves drilling 

of new gas wells and the repairing of existing wells for gas companies. The 

remainder involves the cleaning and plugging of gas wells for coal mine 

operators. 

The focus of this proceeding is on Lang's cleaning and plugging of two 

gas wells located in.an area scheduled for d~velopment as part of the 

Blacksville No. 2 Mine, a large underground coal mine owned and operated by 

Consolidation Coal Company ("Consol"). Mining within 300 feet of an oil or 

gas well is prohibited by 30 C.F.R. § 75.1700. 1 However, the Department of 

1 Section 75.1700, which repeats section 317(a) of the Mine Act, 30 

U.S.C. § 877(a), provides: 

Oil and gas wells. 

413 
Labor's Mine Safety and Health Administration ("MSHA"), in a Decision and 

Order dated July 18, 1980 ("Decision and Order"), granted Consol's petition 

for modification, filed pursuant to section lOl(c) of the Mine Act, 30 U.S.C. 

§ 8ll(c). That Decision and Order released Consol from the 300-foot 

requirement with respect to oil and gas wells in the Blacksville No. 2 Mine so 

long as the wells were cleaned and plugged. The modification allowed Consol 

to mine through the area of the wells on the condition that it clean the 

wellbores and plug the wells from below the coal bed to the surface, as well 

as meet various specific conditions for the plugging of the wells. 

Consol contracted with Lang, an independent contractor, to clean and 

plug the gas wells in its mines. The contract was on an annual basis and 

renewable. Under the contract, Consol issued Lang a supplemental "purchase 

order" for each gas well to be cleaned and plugged. Pursuant to the contract, 

Lang obtained an operator's identification number from MSHA and was required 

to provide the necessary mine safety training to its employees in order to 

comply with the provisions of the Mine Act and applicable rules and 

regulations. 

The purpose of cleaning and plugging the gas wells is to ensure that 

natural gas does not seep through the well into a mining area and create a 

safety hazard. If a gas well was left unplugged or was improperly plugged, 

gas could leak into an adjacent mine during the extraction of coal and result 

in an underground ignition or explosion. After a well is closed by plugging, 

it is no longer usable as a gas producer. 

Typically, before Lang proceeds to do such work for Consol, Consol 

obtains a plugging permit from the state and makes appropriate arrangements 

with the affected surface landowner for access to the gas well. Lang builds 

roads to gain access to the site, if necessary, sets up the drilling rig at 

the surface site of the gas well, and moves the other necessary equipment, 

such as a "mud pump," water tanks, and a bulldozer to the site. Lang then 

[STATUTORY PROVISIONS] 

Each operator of a coal mine shall take 

reasonable measures to locate oil and gas wells 

penetrating coalbeds or any underground area of a coal 

mine. When located, such operator shall establish and 

maintain barriers around such oil and gas wells in 

accordance with State laws and regulations, except 

that such barriers shall not be less than 300 feet in 

diameter, unless the Secretary or his authorized 

representative permits a lesser barrier consistent 

with the applicable State laws and regulations where 

such lesser barrier will be adequate to protect 

against hazards from such wells to the miners in such 

mine, or unless the Secretary or his authorized 

representative requires a greater barrier where the 

depth of the mine, other geologic conditions, or other 

factors warrant such a greater barrier. 

414 
does the cleaning and plugging, performs reclamation activities at the site, 

and removes its equipment. A gas well is cleaned out by removing the well 

casing from the surface down to the gas production zone. Lang does not dig or 

drill through the earth or the coal. Rather, Lang sends its tools down 

through the existing well borehole and cleans out any debris. Lang takes out 

whatever has fallen into the borehole such as caved-in earth, or debris. 

Plugging involves filling the well borehole with expandable cement. Sec. Exh. 

4. 

In March 1989, Consol issued Lang a purchase order to reopen, clean out 

and plug Well B2-233, located in the Pennsylvania area of the Blac~sville No. 

2 Mine. Consol obtained a permit from the Commonwealth of Pennsylvania for 

this work and Lang brought its equipment to the site. The well extended more 

than 1,370 feet below the surface and passed through the mine's coal seam, 

situated approximately 675 feet below the surface. 

On March 20, 1989, MSHA inspector George Phillips went to the 

Blacksville No. 2 Mine office and asked to see the contractorsQ register, 

which the operator is required to maintain pursuant to 30 C.F.R. § 45.4. 

Lang's name appeared on the register, and Inspector Phillips went to the area 

in which Lang was cleaning Well B2-233. Phillips issued Lang a citation 

charging a violation of 30 C.F.R. § 77.l710(i), because Lang's bulldozer did 

not have seat belts. Phillips also concluded that the violation was of a 

significant and substantial nature. There is no indication in the record as 

to how far Consol's coal mining operation was from Well B2-233 at the time the 

well was being cleaned and plugged. 

In December 1989, pursuant· to another purchase order. Consol directed 

Lang to clean out and plug another gas well located in the Pennsylvania area 

of the Blacksville No. 2 Mine, Well B2-278. Consol obtained a state permit 

for this work and Lang brought its equipment to the site and started work. 

Well B2-278 extended more than 3,000 feet below the surface and passed through 

the mine's coal seam, situated approximately 800 feet below the surface. 

On December 4, 1989, while Lang was cleaning Well B2-278, Inspector 

Phillips issued Lang three citations, one alleging a violation of 30 C.F.R. 

§ 77.404(a) because of a defective cylinciei;-.pressure gauge; one alleging a 

violation of 30 C.F.R. § 77.503 because of damaged insulation on a welder 

cable; and one alleging a violation of 30 C.F.R. § 77.1110 because of a 

defective fire extinguisher at the oil storage station. On December 12, 1989, 

Phillips again inspected Well B2-278 and issued two more citations, one 

alleging a violation of 30 C.F.R. § 77.404(a) because of two inoperative rear 

lights on a bulldozer, and one alleging a violation of 30 C.F.R. § 77.410 

because of a defective automatic warning device on a bulldozer. Phillips also 

concluded that these violations were of a significant and substantial nature. 

At the time the citations were issued, Consol was mining about 300 feet from 

the well. 

The Secretary subsequently proposed civil penalties for all of the 

alleged violations and the matter proceeded to an evidentiary hearing before 

Judge Broderick. Before the judge, Lang argued that its operation was not 

subject to the Mine Act. According to Lang, it was merely plugging wells 

415 
drilled for production of gas. Lang contended that it was not working at a 

mine and asserted that it was not in any way involved in extraction of 

minerals in nonliquid form but, rather, was engaged in a gas-related activity. 

It also argued that it had no contact with Consol's miners. Lang submitted 

that it was subject to the Occupational Safety and Health Act of 1970, 29 

U.S.C. § 651 et seq. (1988)(the "OSHAct"). Lang further argued that even if 

its operation was subject to the Mine Act, it was not an "operator" within the 

meaning of the Act. Lang conceded, however, that if it were deemed an 

operator under the Mine Act, the cited violations occurred. 

In his decision, Judge Broderick concluded· that Lang was an ~ndependent 

contractor-operator under the Mine Act and was subject to the Mine Act's 

jurisdiction. The judge gave special emphasis to the Commission's decisions 

in Otis Elevator Company, 11 FMSHRC 1896 (October 1989) (nOtis I"), and Otis 

Elevator Company, 11 FMSHRC 1918 (October 1989) ("Otis II"), in which the 

Commission held that an independent contractor examining and maintaining 

elevator equipment at underground coal mines was an operator under the Mine 

Act. (The judge issued his decision before the Commission's Otis I and Otis 

II decisions were affirmed by the United States Court of Appeals for the 

District of Columbia Circuit. Otis Elevator Co. v, Secretary & FMSHRC, 921 

F.2d 1285 (1990).) Applying the Commission's Otis test, the judge found: 

The activities of Lang Brothers, in cleaning and 

plugging the gas wells for Consol, constituted an 

integral and important part of Consol's extraction 

process. Consol was obliged to clean and plug the 

wells in accordance with the modification petition in 

order to mine through the area where the wells 

penetrated the coal seam. If Consol did the work 

itself, there could be no doubt that it was part of 

the mining process. 

12 FMSHRC at 1694. The judge also determined that Lang had a continuing 

presence in mine-related work, since approximately SOX of its work involved 

cleaning and plugging gas wells for coal mine operators. Id. 

The judge also distinguished Old Dominion Power Co. v. Donovan, 772 F.2d 

92 (4th Cir. 1985). He emphasized the high percentage of Lang's work done for 

coal mines and noted: 

Although Lang's employees were not in the mine itself, 

they operated heavy equipment which penetrated the 

mine atmosphere and directly and substantially 

affected the extraction process. Most importantly, 

their work was directly related to the safety of the 

miners, since improper plugging of a gas well could 

cause methane leaking into the mine as the extraction 

of the coal progressed and could result in an 

underground ignition or explosion. 

12 FMSHRC at 1695. The judge concluded that Lang's contact with the mine was 

neither infrequent nor de minimis. 

416 
The judge affirmed all of the citations and assessed civil penalties 

totaling $234. 12 FMSHRC at 1695. The Commission granted Lang's subsequent 

petition for discretionary review, which challenges only the judge's 

jurisdictional rulings. On review, Lang asserts that the gas wells it cleans 

and plugs are not mines, that it is not a mine operator, and that jurisdiction 

over its activities is with the OSHAct, not the Mine Act. 

II. 

Disposition of Issues 

A. Whether the well sites and Lang's operations were subject 

to the Mine Act 

We begin with the question whether the well sites and Lang's operation 

at the sites were subject to the Mine Act as part of a "coal or other mine" or 

"coal mine" within the meaning of section 3(h) of the Act, 30 U.S.C. § 802(h). 

Lang argues that the gas wells in question did not constitute a "coal or 

other mine" under the Mine Act, Citing the definition of "coal or other mine" 

in section 3(h)(l) of the Act, Lang argues that it was not involved in the 

extraction of nonliquid minerals and that, insofar as "liquid" minerals are 

concerned, the Act's definition applies only to "extract[ion] with workers 

underground," a condition not present here. 2 Lang argues that its work 

involved no contact with the coal bed other than passing through it via t~e 

borehole, while going down to the gas producing strata. Lang adds that its 

workers were not exposed to the hazards of mining and that they never came 

2 Section 3(h)(l) states: 

"coal or other mine" means (A) an area of land 

from which minerals are extracted in nonliquid form 

or, if in liquid form, are extracted with workers 

underground, (B) private ways and roads appurtenant to 

such area, and (C) lands, excavations, underground 

passageways, shafts, slopes-, ·tunnels and workings, 

structures, facilities, equipment, machines, tools, or 

other property including impoundments, retention darns, 

and tailings ponds, on the -surface or underground, 

used in, or to be used in, or resulting from, the work 

of extracting such minerals from their natural 

deposits in nonliquid form, or if in liquid form, with 

workers underground, or used in, or to be used in, the 

milling of such minerals, or the work of preparing 

coal or other minerals, and includes custom coal 

preparation facilities .... 

30 U.S.C. § 802(h)(l). A similar definition of "coal mine" is contained in 

section 3(h)(2) of the Mine Act. 30 U.S.C. § 802(h)(2). 

417 
into contact with any miners. In short, from Lang's perspective, its concern 

was "the proper cleaning and plugging of a natural gas well, not with coal 

mining." Lang Br. at 17. 

As Lang acknowledges, the legislative history of the Mine Act makes 

clear that a broad reading is to be given to the definition of a mine. The 

Senate Committee stated: 

The Committee notes that there may be a need to 

resolve jurisdictional conflicts, but it is the 

Committee's intention that what is considered to be a 

mine and to be regulated under the Act be given the 

broadest possibl[e] interpretation, and it is the 

intent of this Committee that doubts be resolved in 

favor of inclusion of a facility within the coverage 

of the Act. 

S. Rep. No. 181, 95th Cong., 1st Sess. 14 (1977), reprinted in Senate 

Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2d Sess., 

Legislative History of the Federal Mine Safety and Health Act of 1977, at 602 

(1978). Judicial precedent also indicates that the Mine Act's definition of 

mining is to be broadly interpreted in favor of coverage. See, ~. Donovan 

v. Carolina Stalite Co., 734 F.2d 1547, 1551-55 (D.C. Cir. 1984); Marshall v. 

Stoudt's Ferry Preparation Co., 602 F.2d 589, 592 (3rd Cir. 1979) cert. 

denied, 444 U.S. 1015 (1980). While we recognize, as the D.C. Circuit Court 

of Appeals in Carolina Stalite observed, "[i]t is clear that every company 

whose business brings it into contact with minerals is not to be classified as 

a mine within the meaning of section 3(h)" (734 F.2d at 1551), for the reasons 

that follow we hold that Lang's activities, in this instance, are subject to 

the Mine Act. 

In reaching our decision, we focus on the relationship between Lang's 

operations at the well sites and the extraction process at Consol's mine, to 

determine whether there is a sufficient relationship between the activity in 

question and the extraction process for statutory coverage to apply. 

Precedent does not require that Lang itself be engaged in extraction. See 

Carolina Stalite Co., 6 FMSHRC 2518, 2519 (November 1984). 

Lang casts its activities as being concerned only with the proper 

cleaning and plugging of gas wells. Lang's work at the well sites, however, 

was integrally related to Consol's extraction of coal. Cf. Carolina Stalite, 

734 F.2d at 1551. The sole purpose of Lang's cleaning and plugging contract 

with Consol was to facilitate Consol's extraction of underground coal. If the 

wells were not plugged, Consol would not be permitted, because of section 

75.1700 supra, to mine within 300 feet of the wells. Plugging them permitted 

Consol to extract more coal, since it could mine the affected coal instead of 

having to stay at least 300 feet away from the gas wells. 

Consol filed its petition for modification for the purpose of allowing 

it to mine completely through the coal adjacent to oil and gas wells in the 

vicinity of the Blacksville No. 2 Mine. MSHA's Decision and Order granting 

418 
the petition sets forth detailed conditions for plugging (including cleaning) 

such wells. Consol contracted with Lang to do the work in compliance with the 

MSHA-prescribed procedures. MSHA's Decision and Order also sets forth 

procedures for Consol to follow when mining through a plugged oil or gas well 

area in order to ensure the safety of the miners. 

Lang's cleaning and plugging work directly affected the safety of 

miners. Gas leaks into the mine could result in a fire or explosion. In 

fact, Lang acknowledges that cleaning and plugging gas wells is "clearly part 

of coal mine safety." PDR at 10; L. Br. at 13. Lang also acknowledged before 

the judge, that plugging gas wells is "important to" and "directly .concerned 

with mine safety." Tr. 12, 15. We agree with the judge that if Consol had 

done the plugging work itself, there would be no serious question that the 

work was part of the mining process. 

Lang recognizes that "MSHA inspectors do and properly do come and 

satisfy themselves that the wells are plugged in accordance with MSHA 

regulations." Tr. 15, 122. Lang notifies MSHA when it is ready to plug 

wells. Tr. 59. MSHA oversees the cementing phase of plugging operations at 

.such wells in accordance with the terms of its decisions granting petitions 

for modification. Tr. 54, 59, 75-76, 122. Indeed, Lang concedes MSHA's 

jurisdiction over its work of plugging gas wells. Tr. 122. In our view, 

there is no reasonable basis for Lang's assertion that, while MSHA may 

regulate well plugging, it may not regulate the other related steps involved 

in such work, including setting up its operation to carry out these various 

tasks. 

We reject Lang's claim that its operation site is nothing more than "an 

area of land from which minerals are extracted in liquid form" and thus not a 

"mine" under section 3(h)(l) of the Act. This is not a case about the 

extraction of minerals in liquid form. Rather, it is about the extraction of 

coal and Lang's actions to facilitate its safe removal. Although section 

3(h)(l) excludes from the statute's coverage some areas where "minerals are 

extracted in ... liquid form," Lang does not argue that the wells in question 

were producing gas at the time that it was working at the sites. Although the 

record is not entirely clear as to whether the wells had been formally 

abandoned prior to Lang's work, Consol's and Lang's intent certainly was to 

ensure that the wells would no longer produce gas. Thus, we conclude that 

Lang was not working in an area from which liquid minerals were being 

extracted within the meaning of the statute. 

Accordingly, Lang's operations were, as the judge found, "an 

and important part of Consol's extraction process." 12 FMSHRC at 1694. Thus, 

we conclude that the gas well sites and Lang's operations at those sites, 

under the facts involved in this case, were subject to the coverage of the 

Mine Act. 

B. Whether Lang is an operator under the Mine Act 

Lang additionally argues that, in performing the services in question, 

it was not an independent contractor operator within the meaning of the Mine 

Act because its contact with Consol's mine was de minimis and unrelated to 

419 
coal extraction. 3 

Section 3(d) of the Mine Act expanded the definition of "operator" under 

the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801 et seq. 

(1976)(amended 1977), to include "any independent contractor performing 

services or construction at such mine." In its Otis decisions, the Commission 

concluded that an independent contractor performing elevator maintenance and 

repair operations at underground coal mines constituted an operator within the 

meaning of the Act. Otis I, 11 FMSHRC at 1902; Otis II, 11 FMSHRC at 1923. 

The Commission indicated, however, that "not all independent contractors are 

operators under the Mine Act, and that 'there may be a point ... a.t which an 

independent contractor's contact with a mine is so infrequent or de minimis 

that it would be difficult to conclude that services were being performed.'" 

Otis I, 11 FMSHRC at 1900-01, quoting Nat'l Indus. Sand Ass'n v. Marshall, 601 

F:2d 689, 701 (3rd Cir. 1979). Citing Nat'l Indus. Sand Ass'n, supra, and Old 

Dominion, supra, as proper authority for determining when an independent 

contractor is an operator, Lang asserts that its contact with Consol's mine is 

so infrequent and de minimis that it does not amount to the performance of 

services. Further, in Lang's view, this activity does not amount to being 

engaged in the extraction process for the benefit of the owner or lessee of 

the property (in this case, Consol). 

We conclude that the judge's determination that Lang was a statutory 

operator is amply supported by the record. In cleaning and plugging the gas 

wells, Lang performed services clearly related to the extraction process, at 

what amounted to a surface work area of Consol's Blacksville No. 2 underground 

coal mine. The overriding purpose of the plugging work was to ensure that gas 

did not seep into the mine after Consol mined through the area. Lang's work 

thus directly affected the safety of miners involved in the extraction of 

coal. 

Notwithstanding the relatively limited period -- seven to ten days --

during which Lang provided services at the mine to clean and plug a well, we 

conclude that the contact was not de minimis. An independent contractor's 

presence at a mine may appropriately be measured by the significance of its 

presence, as well as by the duration or frequency of its presence. The judge 

found that Lang's operation "constitute[d}an integral and important part of 

Consol's extraction process." 12 FMSHRC at 1694. Further, Lang had a 

"blanket contract" with Consol to clean and plug gas wells under specific 

purchase orders, and had plugged wells at different Consol mines since 1980 or 

1981. 

3 Section 3(d) of the Mine Act provides: 

"operator" means an owner, lessee, or other person who 

operates, controls, or supervises a coal or other mine 

or any independent contractor performing services or 

construction at such mine. 

30 u.s.c. § 802(d). 

420 
Our holding today is consistent with Nat'l Indus. Sand, Old Dominion, 

and the D.C. Circuit's decision. Nat'l Indus. Sand involved the 

Secretary of Labor's promulgation of training regulations. As relevant here, 

the Third Circuit was addressing the Secretary's authority to "include fewer 

than all independent contractors as operators for purposes of the training 

regulations." 601 F.2d at 701. The Court noted that "[t]here may be a point, 

at least, at which an individual contractor's contact with a mine is so 

infrequent or minimis, that it would be difficult to conclude that services 

were being performed." (Emphasis added). The Third Circuit viewed 

minimis contact as a ~evel at which it would be difficult to conclude that 

services were being performed, and noted that Congress intended to, include 

those engaged in the extraction process for the benefit of the owner or 

lessee. 601 F.2d at 701-03. , Lang is performing services for the 

benefit of Consol as part of the extraction process. Indeed, the services are 

so critical that without them Consol would be prohibited from extracting coal 

in these areas. 

In Old Dominion, the Fourth Circuit adopted the 

analysis of the Third Circuit, and concluded that the appropriate analysis is 

whether the independent contractor substantially participates in mining 

activities. 772 F.2d at 97. Since the Fourth Circuit found that Old Dominion 

Power Company's wonly contact with the mine is the inspection, maintenance, 

and monthly reading of a meter for the purpose of a bill to a mine 

company for the sale of electricity,n there was not, in the Court's view, 

substantial participation in mining activities. 772 F.2d at 96. 

In its opinion affirming the Commission's Otis decisions, the D.C. 

Circuit held that section 3(d) of the Act "does not extend only to 

'independent contractor[s] performing services ... at [a] mine'; by its terms 

it extends to 'any independent contractor performing services ... at {a] 

mine.'" Otis, 921 F.2d at 1290 (emphasis in original). However, the court 

expressly noted that its decision did not address "whether there is any point 

at which an independent contractor's contact with a mine is so infrequent or 

.de minimis that it would be difficult to conclude that services were being 

performed.'" 921 F.2d at 1290 n.3 (citation omitted). 

For the reasons set forth above, we conclude that substantial evidence 

and applicable legal principles support tb.e' judge's determination that, in 

performing the services in question, Lang was an independent contractoroperator within the meaning of the Act. 

c. 

Occupational Safety and Health Act 

Reasserting its earlier argument concerning the Mine Act's section 3(h) 

"liquid/nonliquid" distinction, Lang argues that oil and gas drilling are not 

subject to the Mine Act. Lang states that its operations here are no 

different, from a health and standpoint, than are other oil and gas 

drilling operations. Lang. Br. at 16-18. While Lang acknowledges that 

section 4(b)(l) of the OSHAct precludes Occupational Safety and Health 

Administration ("OSHA") jurisdiction if another agency exercises statutory 

authority, it maintains that there is no Mine Act s authority in this 

421 
instance. 

We reject Lang's argument that its activity is properly regulated under 

the OSHAct. Coverage under the OSHAct is exempted pursuant to section 4(b)(l) 

of the OSHAct, 29 U.S.C. § 653(b)(l), which states in pertinent part: 

Nothing in this chapter shall apply to working 

conditions of employees with respect to which other 

Federal agencies ... exercise statutory authority to 

prescribe or enforce standards or regulations 

affecting occupational safety or health. 

As set forth earlier in this decision, we have determined that Lang's 

Consol-related operations fall within the section 3{h) definition of wcoal or 

other mine" and that, with respect to these activities, Lang comes within the 

ambit of the term "operator" under section 3(d). Further, we also note that, 

in this instance, MSHA has exercised statutory authority to prescribe and 

enforce "standards or regulations" affecting the operation in question. 

MSHA's Decision and Order created, in effect, a new safety standard dealing 

with the cleaning and plugging of gas wells involving Consol's mine. Under 30 

C.F.R. § 44.4(c), an operator must comply with the conditions in an order 

granting a petition for modification, and the violation of such conditions is 

equivalent to a violation of any other safety standard. See also Int. U., 

UMWA v. FMSHRC, 931 F.2d 908, 909 (D.C. Cir. 1991). 

III. 

·conclusion 

On the foregoing bases, we affirm::; :Zi/tt ,(krd V. Backley, ~-

Arlene Holen, Commissioner 

~fix~ L. Clair Nelson, Commissioner 

4 Chairman Ford did not participate in the consideration or disposition 

of this matter. 

422 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

WASTE COAL MANAGEMENT, INC. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

March 25, 1992 

Docket No. KENT 91-75 

BEFORE: Ford, Chairman; Backley, Doyle, Holen, and Nelson, Commissioners 

ORDER 

BY THE COMMISSION: 

In this proceeding arising under the Federal Mine Safety and Health Ac~ 

of 1977, 30 U.S.C. § 801 et seq. (1988)(the "Mine Act"), Commission Chief 

Administrative Law Judge Paul Merlin issued an Order of Default on June 20, 

1991, finding respondent Waste Coal Management, Inc ("Waste Coal") in default 

for failure to answer the civil penalty petition filed by the Secretary of 

Labor and the judge's Order to Show Cause. The judge assessed civil penalties 

of $273 as proposed by the Secretary. For the reasons that follow, we vacate 

the Order of Default and remand this case for further proceedings. 

On March 9, 1992, the Commission received a letter dated February 29, 

1992, addressed to Judge Merlin, in which the president of Waste Coal requests 

the judge to dismiss the Secretary of Labor's Motion for Default Judgment. 

Apparently, neither the Secretary nor Waste Coal is aware that Judge Merlin, 

had held Waste Coal in default and had ord~~ed it to pay the Secretary's 

proposed penalties by order dated June 20, 1991. Counsel for the Secretary 

filed the Motion for Default Judgment on November 19, 1991, and advised the 

president of Waste Coal, by letter dated February 11, 1992, that the motion 

had not been ruled upon by the judge. The Commission's records indicate that 

the judge's Order of Default was sent to the parties by certified mail. The 

Postal Service never returned the return receipt cards to the Commission, 

however, suggesting that the orders may not have been received. 

The judge's jurisdiction over this case terminated on June 20, 1991, 

when his Order of Default was issued. 29 C.F.R. § 2700.65(c). Under the Mine 

Act and the Commission's procedural rules, relief from a judge's decision may 

be sought by filing a petition for discretionary review with the Commission 

within 30 days of its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R. 

§ 2700.70(a). Waste Coal did not file a timely petition for discretionary 

review within the 30-day period, nor did the Commission direct review on its 

own motion. 30 U.S.C. § 823(d)(2)(B). Thus, the judge's order became a final 

decision of the Commission 40 days after its issuance. 30 U.S.C. § 823(d)(l). 

423 
Under the circumstances of this case, we deem the February 29 letter to 

be a request for relief from a final Commission decision and to incorporate a 

late-filed petition for discretionary review. See J.R. Thompson. Inc., 12 

FMSHRC 1194, 1195-96 (June 1990). Relief from a final judgment is available 

to a movant under Fed. R. Civ. P. 60(b)(l) on the basis of mistake, 

inadvertence, surprise or excusable neglect. See,~. Lloyd Logging. Inc., 

13 FMSHRC 781, 782 (May 1991). It appears from the record that Waste Coal 

filed a "Blue Card" request for a hearing in response to the Secretary's 

initial notification of proposed penalties and offered to settle this matter 

for $125 at that time. It further appears that Waste Coal is proceeding 

without benefit of counsel. We are unable on th~ basis of the present record 

to evaluate whether Waste Coal has offered a cognizable explanation for its 

failure to respond to the judge's show cause order. Consequently, in the 

interest of justice, we will permit Waste Coal to present its position to the 

judge, who shall determine whether final relief from default is appropriate. 

See,~. Blue Circle Atlantic. Inc., 11 FMSHRC 2144, 2145 (November 1989), 

Accordingly, we grant Waste Coal's petition for discretionary review, 

vacate the judge's default order, and remand this matter for proceedings 

consistent with this order. 

Distribution: 

William H. Crandall, President 

Waste Coal Management, Inc. 

Box 590092 

Birmingham, AL 35259 

Joseph Luckett, Esq. 

Office of the Solicitor 

2002 Richard Jones Rd. 

Nashville, TN 37215 

Chief ALJ Paul Meriin 

Richard V. Backley, Commissioner 

~tr-::::1.l!c: ... ~ 

L. Clair Nelson, Commissioner 

Federal Mine Safety & Health Rev. Connn. 

Washington, D.C. 20006 

424 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE. 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 21992 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SHREWSBURY COAL COMPANYu 

Respondent 

Docket No. WEVA 91-1796 

A.C. No. 46-03300-03520 

VC #8 Central Shop 

DECISION 

Appearances: Pamela S. Silvermanv Esq. 7 Office of the 

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

Virginia, for the Petitioner; 

Before: 

David J. Hardy, Esq., Jackson & Kelly, Charleston, 

West Virginia, for the Respondent. 

Judge Melick 

This case is before me pursuant to section lOS(d) of the 

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

et seq., the "Act," to challenge Citation No. 3482538, issued by 

the Secretary of Labor under section 104(d)(l) of the Act for an 

alleged violati~n of the regulatory standard at 30 C.F.R. 

§ 77.1607(bb). The general issue before me is whether the 

1; Section 104(d)(l) of the Act provides as follows: 

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

authorized representative of the Secretary finds that there has 

been a violation of any mandatory health or safety standard, and 

if he also finds that 1 while the conditions created by such 

violation do not cause imminent danger, such violation is of such 

nature as could significant and substantially contribute to the 

cause and effect of a coal or other mien safety or health hazard, 

and if he finds such violation to be caused by an unwarrantable 

failure of such operator to comply with such mandatory health or 

safety standards, he shall include such finding in any citation 

given to the operator under this Act. If, during the same 

inspection or any subsequent inspection of such mine within 

90 days after the issuance of such cbtation, an authorized 

representative of the Secretary finds another violation of any 

mandatory health or safety standard and finds such violation to 

be also caused by an unwarrantable failure of such operator to so 

comply, he shall forthwith issue an order requiring the operator 

425 
section 104(d)(l) citation against Shrewsbury Coal Company 

(Shrewsbury) is valid and, if so, what is the appropriate civil 

penalty. 

Citation No. 3482538 charges as follows: 

A positive audible or visible warning system was 

not installed and operated to warn persons that the 

conveyor would be started at the mine when the No. 9 

overland belt was started by a person located more than 

a mile away who could not see the entire length of this 

conveyor. It was reasonable to expect a person could 

be working on this belt and get injured when the belt 

started up without warning because the breaker could 

not be locked out and the belt gobbed off once during 

this shift and the guards were off o The foreman, John 

Hudnall, was in a building (door open) located approx. 

50 feet from the tail of the belt and approx. 5-7 feet 

from the belt. When asked why alarms were not on the 

belt he said they were stolen when the belt was idle in 

the past. The belt was put back into active service 

about July, 1990 according to Hudnall. 

The cited standard, 30 C.F.R. § 77.1607(dd), provides in 

part that "[w]hen the entire length of the conveyor is not 

visible from the starting switch, a positive audible or visible 

warning system shall be installed and operated to warn persons 

that the conveyor will be started." 

Shrewsbury does not deny the violation but maintains that 

the violation was neither "significant and substantial" nor the 

result of its "unwarrantable failure." According to experienced 

Coal Mine Inspector Sherman Slaughter, during the course of a 

regular inspection at the subject mine on January 15, 1991, he 

was inside foreman John Hudnall's office next to the No. 9 

overland belt when the belt went down. He noted that no alarm 

sounded when the belt resumed operatiqn. According to Slaughter, 

Hudnall explained that the belt alarm had been stolen sometime 

before July 1990, and had not since been replaced. During his 

inspection Slaughter noted that the No. 9 belt started and 

stopped more than 10 times. From his experience he opined that 

the belts would frequently shut down during the course of a 

shift. Slaughter also observed that two beltmen worked on each 

fn. 1 (continued) 

to cause all persons in the area affected by such violation, 

except those persons referred to in subsection (c) to be 

withdrawn from,a nd to be prohibited from entering, such area 

until an authorized representative of the Secretary determines 

that such violation has been abated." 

426 
shift and were responsible for all 19 belts. Slaughter found the 

violation to be "significant and substantial" based on his 

knowledge of the frequency and seriousness of injuries and 

accidents that have occurred in the past by belts starting 

without warning. In reaching this conclusion he also considered 

that at the time of this citation some rollers were left 

unguarded, that there were no lights along the belt and that it 

was necessary to cleanup gob along the belt. He also noted that 

neither the No. 9 belt nor the door to the breaker box could be 

locked out at that time. Slaughter opined that as a result of 

the violation persons could become caught in the belt and lose 

limbs and bleed to death. He pointed out that an accident had 

previously occurred at this particular plant and a worker lost a 

limb as a result of contact with a conveyor belt. Slaughter 

testified that he had seen the belts running at this operation 

without guards and on this same date had issued approximately 20 

violations for missing guards. 

In evaluating whether a violation is "significant and 

substantial" the Commission in Mathies Coal Co., 6 FMSHRC 1 

(1984), explained 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)(l), 

is the contribution of a violation to the cause and 

effect of a hazard that must be significant and 

substantial. U.S. Steel Mining Company, Inc., 6 FMSHRC 

1866, 1868 (August 1984); U.S. Steel Mining Company, 

Inc., 6 FMSHRC 1573, 1574-75 (July 1984). 

The question of whether any particular violation is 

significant and substantial must be based on the particular facts 

surrounding the violation. Secretary of Labor v. Texasgulf, 

427 
Inc., 10 FMSHRC 498 (1988); Youghiogheny & Ohio Coal Company, 

9 FMSHRC 1007 (1987). 

The third element of the 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" and that the 

likelihood of injury must be evaluated in terms of continued 

normal mining operations. U.S. Steel Mining co., 6 FMSHRC 1573 

(1984); Monterey Coal Co., 7 FMSHRC 996 (1985). The time frame 

for determining if a reasonable likelihood exists includes the 

time that a violative condition existed or would have existed if 

normal mining operations continued. Rushton Mining Co., 

11 FMSHRC 1432 (1989)0 

Clearly the facts of this case warrant 11 signif icant and 

substantial" findings. The circumstances herein were 

particularly aggravated since at the time of the violation, 

miners were in the act of shovelling coal adjacent to unguarded 

rollers on the cited beltline, that the belt had not been locked 

out to prevent movement, and that there was no audible or visible 

system in place to warn these miners when the belt would commence 

movemento Under the circumstances 1 it indeed reasonably 

likely that these miners could become entangled the 

unprotected rollers upon a sudden belt start-up and suffer severe 

injur,ies including .loss of limbs and/or death. From the 

significant number of guarding violations also issued that same 

day, and the fact that the alarm system had been absent for a 

significant period of time, it is apparent that, under normal 

continued mining operations, the hazard would have continued 

unabated. 

It is also clear that the violation was the result of 

"unwarrantable failure." In reaching this conclusion I have not 

disregarded the testimony of John White, Corporate Manager of 

Maintenance and Environment for the Shrewsbury parent company, 

that a previously stolen alarm on the No. 9 belt had been 

replaced in May 1990. This testimony,is, however, immaterial. 

Inspector Slaughter testified credibly that Hudnall told him at 

the time he issued the citation that the alarm had been stolen 

during the previous shutdown and that the belts had been 

subsequently restarted in July 1990. Furthermore Inspector 

Slaughter maintains that Hudnall told him that the alarm had not 

been working since July 1990. While Hudnall testified at hearing 

that he did not then have personal knowledge that the alarm had 

been absent for that period and learned this only from later 

talking to his electrician, I do not find this version to be 

credible. It is inconsistent with the inspector's credible 

testimony, it comes a year and a half after the citation was 

issued after a long opportunity for contemplation and it is 

patently not credible to believe that the belt foreman did not 

notice the absence of an audible alarm that should be expected to 

428 
be triggered on a belt that would have been repeatedly started 

during the 6-month period July 1990 to January 1991. 

Under the circumstances it is clear that both Shrewsbury's 

electrician and its belt foreman knew that the start-up alarm was 

missing from the No. 9 belt for nearly 6-months before the 

citation was issued. Their failure to have replaced the stolen 

alarm system for that period of time constitutes an omission of 

an aggravated nature constituting "unwarrantable failure" and 

high negligence. See Emery Mining Corporation, 9 FMSHRC 1997 

.(1987), and the Youghiogheny and Ohio Coal Company, 9 FMSHRC 2007 

(1987)0 The section 104(d)(l) citation is accordingly affirmedo 

Considering the criteria under section llO(i) of the Act 1 I also 

find that the proposed penalty of $400 for the alleged violation 

is appropriate. 

ORDER 

Shrewsbury Coal Company is hereby directe~ to 

penalty of $400 within 30 days o t date of his 

' ·~ 

. '\ 

Distribution: 

pay a civil 

dee' iono 

Pamela s. Silverman, Esq., Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, Room 516, Arlington, 

VA 22203 (Certified Mail) 

David J. Hardy, Esq., Jackson & Kelly, 1600 Laidley Tower, P.O. 

Box 553, Charleston, WV 25322 (Certi.fied Mail) 

/fb 

429 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 61992 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

on behalf of 

PETER D. SPROUSE, 

Complainant 

v. 

Docket No. WEVA 92-179-D 

HOPE CD 91-16 

Mine No. 4 

P-F MINING, INCORPORATED, et alu~ 

Respondents 

ORDER OF DISMISSAL 

Before~ Judge Weisberger 

The Secretary's Motion to Withdraw is granted based on the 

Notice of Withdrawal of Complaint filed by Complainant. 

It is Ordered that this case be DISMISSED. 

geis~ Administrative Law Judge 

Distribution: 

Tina c. Mullins, Esq., U.S. Department of Labor, Office of the 

Solicitor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203 

(Certified Mail) 

Cecil c. Varney, Esq., Varney Law Offices, L.C., P.O. Box 468, 

141 East Second Avenue, Williamson, WV 25661 (Certified Mail) 

nb 

430 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

MAR 9 1992 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Vo 

CHRISMAN READY-MIX INC.u 

Respondent 

SECRETARY OF LABORu 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Vo 

OZARK MATERIAL CO. u INCo u 

Respondent 

. . 

0 

0 

DECISION 

CIVIL PENAL"l'Y PROCEEDING 

Docket No. CENT 91-17-M 

A.C. Noo 03-01597-05503 

Clarksville Quarry 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 91-82-M 

A.C. No. 03-01509-05502 

Guthrey Island Pit & Plant 

Appearances: Ernest A. Burford, Esq., Office of the Solicitoru 

U.S. Department of Labor, Dallas, Texas 6 

for Peti tioneq 

Robert Chrisman, President, Ozark Material Company, 

Inc., Ozark, Arkansas, 

for both Respondents. 

Before: Judge Lasher 

In these two proceedings the Secretary of Labor CMSHA) seeks 

assessment of penalties for a total of three alleged violations 

(described in three Citations) pursuant to Section llO(a) of the 

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

(1977). 

After the commencement of hearing in Fort Smith, Arkansas, 

on December 19, 1991, the parties concluded a settlement of the 

two violations involved in Docket No. CENT 91-82-M and Respondent agreed to pay in full MSHA's initially assesed penalties of 

$39 each for both Citations, Nos. 3625803 and 3625804. That settlement was approved from the bench CT. 57-59) and such approval 

is here affirmed and will be reflected in the Order appearing at 

the end of this decision. 

431 
As a result of the settlement, only one Citation remained, 

No. 3281982 contained in Docket No. CENT 91-17-M. 

subsequent to the hearing on the issues involved in this 

matter, Respondent agreed to pay in full the penalty proposed by 

MSHA ($20.00) and MSHA's motion to approve this resolution is 

here approved and such penalty is assessed. 

ORDER 

In Docket No. CBNT 91-82-M, Citations numbered 3625803 and 

3625804 are AFFIRMED and Respondent~ within 30 days from the 

date of this decision, SHALL PAY to the Secretary of Labor pena ties totaling $78.00 ($39.00 for each Citation) a 

In Docket No. CENT 91-17-M, Citation No. 3281982 is APPIRMED 

and Respondent, if it has not previously done so, within 30 days 

from the date of this decision SHALL PAY to the Secretarv of 

Labor a penalty therefor in the sum of $20o00o -

Distribution: 

Ernest A. Burford, Esq., Office of the Solicitor, U.S. Department 

of Labor, Suite 501, 525 Griffin Street, Dallas, TX 75202 (Certified Mail) 

Mr. Robert Chrisman, President, CHRISMAN READY-MIX INC., P.O. Box 

505, o.iark, AR 72949 (Certified Mail) 

ek 

432 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 10 1992 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SHELL ENERGY COMPANY, INC., 

Respondent 

Docket No. WEVA 91-58 

A.C. No. 46-07081-03528 

Victoria No. 1 Mine 

DECISION 

Appearances: Ronald Gurka, Esq., Office of the Solicitor, U.S. 

Department of Labor, Arlington, Virginia 0 for the 

Petitioner; 

Before: 

Frank Staud, Shell Energy Company, Inc., 

Shinnston, West Virginia, for the Respondent. 

Judge Melick 

This case is before me pursuant to section 105(d) of the 

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

seq., the "Act," to challenge Citation No. 3312037, issued to 

Shell Energy Company, Inc., (She Energy) by thI Secretary of 

Labor pursuant to section 104(d)(l) of the Act. I The citation 

l; Section 104(d)(l) reads as follows: 

"(d)(l) If, upon any inspection of a coal or other mine, an 

authorized representative of the Secretary finds that there has 

been a violation of any mandatory health or safety standard, and 

if he also finds that, while the conditions created by such 

violation do not cause imminent danger, such violation is of such 

nature as could significant and substantially contribute to the 

cause and effect of a coal or other mien safety or health hazard, 

and if he finds such violation to be caused by an unwarrantable 

failure of such operator to comply with such mandatory health or 

safety standards, he shall include such finding in any citation 

given to the operator under this Act. If, during the same 

inspection or any subsequent inspection of such mine within 

90 days after the issuance of such citation, an authorized 

representative of the Secretary finds another violation of any 

mandatory health or safety standard and finds such violation to 

be also caused by an unwarrantable failure of such operator to so 

comply, he shall forthwith issue an order requiring the operator 

to cause all persons in the area affected by such violation, 

433 
alleges a violation of the mandatory standard at 30 C.F.R. 

§ 75.200 and charges as follows: 

A 30 feet [sic] cut of coal was mined out of the 

2nd split off of the No. 3 Pillar block on the 001 

section, resulting in Don Henderson continuous miner 

operator being 10 feet beyond permanent roof-supports. 

The approved roof-control states, workman [sic] shall 

not advance inby roof-bolts except to instailtemporary 

supports. This condition should have been known by the 

mine foreman because he made a preshift examination of 

the working places before the start of the shift. 

Randy Moore, Mine foreman. 

Respondent Shell Energy admits inter alia? that there was a 

violation of the cited standardr that the violation was 11 significant and substantial" and that it was the result of its 

''unwarrantable failure. 11 Indeed it is quite clear that the 

admitted violation was extremely serious and the result of 

operator negligence. Shell Energy argues only that a $600 

penalty as proposed by the Secretary is too high. 

More particularly 1 its answer to the petition for 

assessment of civil penalty, Respondent claimed that (1) the 

"Victoria Mine is shut down and no longer in operation" and (2) 

"due to market conditions and other extenuating circumstances, 

the amount of the fine would affect our ability to operate in the 

future." 

At hearing, however, Shell Energy representative Frank Staud 

acknowledged that the payment of the proposed $600 penalty would 

not cause Shell Energy to go out of business. Indeed Staud 

testified that "if $600 is going to shut me down, I shouldn't 

even be in business" and maintained only that he would "rather 

give that $600 to a creditor, somebody that I owe money to and 

needs it ..•• " At hearing Staud also testified that his 

company has resumed its mining busine·ss. 

Under section llO(i), in assessing the amount of a civil 

monetary penalty, the Commission must consider, among other 

things, "the effect [of the penalty] on the operator's ability to 

continue in business." Since the parties have stipulated and the 

evidence clearly demonstrates that payment of the proposed 

penalty would not affect Shell Energy's ability to continue in 

business, I find no basis for a reduction of the proposed 

fn. 1 (continued) 

except those persons referred to in subsection (c) to be 

withdrawn from, and to be prohibited from entering, such area 

until an authorized representative of the Secretary determines 

that such violation has been abated." 

434 
penalty. Considering the undisputed evidence, it is clear that 

the proposed penalty of $600 is indeed appropriate, if not low, 

for the corresponding serious and negligent violation in this 

case. 

ORDER Pi 

Shell Energy company, Inc., is directfa to pay a civil 

penalty of $600 for the violation charged p Citation No. 3312037 

within 30 days of the date o this decisio r 

I\ ·1 ti 

IM~\ 

Distribution: 

Ronald Gurkar Esq.p Office 

Labor, 4015 Wilson Boulevard, 

(Certified Mail) 

Gar~ Melick~! Adnf~nistrati e Law Judge ,i 

th~ Solicitor, U.S. Department 

Room 516v Arlington; VA 22203 

Mr. Frank Staud, Shell Energy Company, Inc., 57 Rebecca Street, 

Shinnston, WV 26431 (Certified Mail) 

/fb 

435 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 101992 

CONSOLIDATION COAL COMPANY, 

Contestant ~ CONTEST PROCEEDINGS 

V. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA)u 

Respondent 

SECRETARY OF LABORu 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA}u 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

Docket Noo WEVA 91-166-R 

Citation Nco 3105295v 2/4/91 

Docket No. WEVA 91-167-R 

Citation Noo 3105296v 2/4/91 

Robinson Run No. 95 Mine 

Mine ID 46-01318 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 92-177 

A.C. No. 46-01318-04022 

Robinson Run No. 95 Mine 

PARTIAL DECISION 

and 

Appearances: 

Before: 

STAY ORDER 

Wanda M. Johnson, Esq., Office of the Solicitor, 

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

the Respondent/Petitioner. 

Walter J. Scheller, Es(::i'., Consolidation Coal 

Company, Pittsburgh, Pennsylvania, for the 

Contestant/Respondent. 

Judge Koutras 

statement of the Proceedings 

These consolidated proceedings concern Notices of contest 

filed by the contestant Consolidation Coal Company (Consol), 

against the respondent (MSHA) pursuant to section 105(d) of the 

Federal Mine Safety and health Act of.1977, 30 u.s.c. 815(d), 

challenging the legality of two section 104(a) non-"S&S" 

citations issued on February 4, 1991, charging Consol with 

alleged violations of the mandatory accident reporting 

requirements found in 30 C.F.R. § 50.10 and § 50.12. The civil 

436 
penalty case concerns MSHA's proposed civil penalty assessments 

of $2,000 for the alleged violations, and a proposed civil 

penalty assessment of $157, for one additional alleged violation 

of 30 C.F.R. § 75.400, as noted in a section 104(a) citation 

issued on August 22, 1991. A hearing was held in Morgantown, 

West Virginia, and the parties waived the filing of briefs. 

However, I have considered their oral arguments made in the 

course of the hearing in my adjudication of these matters. 

Issues 

The issues presented in these proceedings are as follows: 

lo Whether Consol violated the cited mandatory regulatory 

standards, and if so, the appropriate civil penalties to be 

assessed for those violations based on the criteria found 

section llO(i) of the Acto 

2o Whether the incident or "event" of February 1, 1991 

which gave rise to the issuance of the two contested alleged 

reporting violations was in fact an "ignition" (accident) 

which was required to be reported to MSHA pursuant to 

30 CoF.Ro § 50ol0. 

3. Whether Consol violated the provisions of 30 C.F.R. 

§ 50.12, by continuing mining on February 1, 1991, after 

its investigation concluded that a reportable ignition had 

not occurred. 

4. Additional issues raised by the parties are identified 

and disposed of in the course of these decisions. 

Applicable Statutory and Regulatory Provisions 

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

Pub. L. 95-164, 30 u.s.c. § 801 et seq. 

2. Commission Rules, 20 C.F.R.·-§ 2700.1 et seq. 

3. Mandatory reporting standards 30 C.F.R. §§ 50.10 and 

50.12; and mandatory safety standard 30 C.F.R. § 75.400. 

Stipulations 

The parties stipulated to the following (Tr. 6-7): 

1. The presiding judge has jurisdiction to hear and decide 

these cases. 

2. Inspector James Young was acting in his official 

capacity as an MSHA inspector when the contested citations 

were issued on February 4, 1991. 

437 
3. Inspector Ronald Tulanowski was acting in his official 

capacity as an MSHA inspector when he conducted the accident 

investigation on February 4, 1991 (Exhibit C-1). 

4. The "event" which occurred on February 1, 1991, at the 

Robinson Run No. 95 Mine was not a planned event. 

5. Consol never notified MSHA of the February 1, 1991, 

"event" prior to the issuance of the citations. 

6. The imposition of any maximum penalties that may be 

assessed in these proceedings pursuant to the Act will not 

affect Consol's ability to continue in businesso 

7. The alleged violations were abated in good faith. 

8. Consol may be considered a large mine operator for 

purposes of any civil penalty assessmentso 

9. The presiding judge may take judicial notice of the fact 

that February 1, 1991, the date on which the "event" in 

question occurred, was a Fridayv and the investigation 

conducted by MSHA on February 4, 199lv was conducted on 

Monday. 

Bench Ruling 

The parties advised me that Citation No. 3103343, issued on 

August 22, 1991, for an alleged violation of 30 C.F.R. § 75.400, 

is a citation which includes an issue concerning MSHA 1 s 

"excessive violation history" civil penalty assessment policy. 

Under the circumstances, the parties jointly moved for a stay of 

this citation, and the motion was granted from the bench (Tr. 5)o 

Subsequently, on February 4, 1992, I issued an order reaffirming 

the bench ruling and staying the adjudication of the citation. 

Discussion 

The record in this case reflects that on Friday, February 1, 

1991, at approximately 10:30 a.m., an "incident" or an "event" 

occurred on the 11 Left (087-0) working section of Consol's 

Robinson Run No. 95 Mine. It is MSHA's position that the "event" 

was in fact an unplanned frictional coal dust ignition which 

occurred 30 feet outby the face of the No. 1 Entry, and which 

should have immediately been reported. It is Consol's position 

that the alleged ignition did not occur, or if it did, it was 

something other than an "ignition" within the reporting 

requirements of 30 C.F.R. § 50.10. 

The alleged ignition was reported to MSHA through an 

anonymous telephone call, and MSHA Inspectors Ronald T. 

Tulanowski and James A. Young were dispatched to the mine site on 

438 
Monday, February 4, 1991, to conduct an investigation. They 

conducted the investigation (MSHA Exhibit #3), and issued the two 

contested citations, which are as follows: 

Section 104{al non-"S&S" Citation No. 3105295, issued on 

February 4, 1991, cites an alleged violation of 30 C.F.R. 

§ 50.10, and the condition or practice is described as follows: 

Based on information obtained during an investigation 

to determine if a face ignition occurred, the company 

officials did not report or contact MSHA after their 

own investigation of this condition. A dust ignition 

set off by miner bits in sulfur at the face of the #1 

entry on the 11 left 087 working section according to 

crew members did occur at 10:35 a.m. on 2-1-91. Six 

members of the crew and two foremen witnessed this 

ignition. The company did not contact MSHA to report 

this occurrence or to obtain information to see if they 

should report this occurrence. 

Section 104Cal non-"S&S" Citation No. 3105296, issued on 

February 4, 1991, cites an alleged violation of 30 CoF.R. 

§ 50.12, and the condition or practice states as follows~ 

No permission was granted to disturb or change an area 

where a face ignition occurred. MSHA was not contacted 

or notified that a face ignition occurred in the #1 

face of the 11 left 087 working section. The ignition 

occurred at 10:35 a.m. on 2-1-91 and the section 

resumed production at 1:00 p.m. after conducting their 

investigation. The area was washed down with water, 

the miner was moved after advancing 80 feet past where 

the ignition occurred, and the miner has had extensive 

maintenance performed since 2-1-91. The area was 

inspected by MSHA on 2-4-91 and found to be cleaned and 

rock dusted. 

MSHA's Testimony and Evidence 

MSHA Insoector James A. Younq testified that he has been so 

employed for six years, and he confirmed that he and Inspector 

Ron Tulanowski went to the mine on February 4, 1991, to 

investigate an ignition which had been reported to the MSHA 

office. Mr. Young stated that the section crew was initially 

questioned on the surface, and after they dressed and went 

underground, additional conversations were held with the same 

individuals underground, and he identified some of the 

individuals, including foremen, and several mine management 

people who were present during the conversations (Tr. 15-17). 

Inspector Young explained and described the conversations 

with the crew members as follows at (Tr. 17-18). 

439 
A. In essence, what we tried to determine by the questions 

that Mr. Tulanowski was asking was did the individuals see 

sparks or did they see a flame of any duration and maybe the 

color of it. 

Each individual categorically stated that they had witnessed 

a flame. They gave a dimension to it. They gave a color to 

it. They gave how long it lasted. 

At the end of this, talking with each crew member one-onone, there was a kind of a consensus question asked. This 

is what was said. Does anyone disagree or does everyone 

agree? At that time no one spoke up in disagreement with 

what we had heard in that room. 

Q. You said that the crew mentioned the dimension of the 

flame. Do you recall what the dimensions were? 

A. Almost man for man, everyone said it was approximately 

three foot by six foot. It was orange in color. It lasted 

for a very short period of time, and that time frame was 

arrived at by kind of taking a happy medium. One guy would 

say five to ten seconds, and one would say three to 

So we split the difference and made it a three-to-fivesecond duration. 

Q. Do you recall how the employees told you they reacted to 

this flame? 

A. They seemed to be very upset. A couple of them made it 

very clear that they were scared, that they heard a noise. 

One of them said that he actually felt the heat and that it 

was kind of an upsetting experience. 

Mr. Young stated that after speaking with the employees, he 

inspected the area where the alleged ignition occurred and found 

that it had been cleaned and rock dusted, and the miner had been 

advanced approximately 80 feet from the entry where the event 

took place. He then returned to the surface and discussed the 

matter with management, and advised them that the citations would 

be issued. Mr. Young confirmed that the issued the two citations 

and he explained the findings that he made. He confirmed that he 

considered the violations to be non-"S&S", and the reporting 

citation was marked "high negligence" because he believed that 

management should have at least made an effort to contact MSHA 

for information or to report the incident. Abatement was 

achieved through a meeting with the crew and management to 

explain the importance of reporting such matters to MSHA 

(Tr. 20-25). 

Mr. Young identified a copy of an accident report which he 

prepared and he confirmed that he agreed with the findings in the 

440 
report (MSHA Exhibit #3). He also confirmed that the conclusions 

in the report and the decision to issue the citations were based 

on the information he received from Consol's employees, and that 

the conclusion that the ignition was caused "when heat or sparks 

generated from the cutter bits ignited with the coal dust" was 

based on "kind of a consensus opinion of all of us involved" 

(Tr. 26-27) . 

On cross-examination, Mr. Young stated that mine management 

makes "a decent effort" to address any safety problems and has 

been cooperative with him during his prior inspections of the 

mine, and he considered mine superintendent David Tonkin to be a 

truthful person. Mr. Young stated that on February 4, 1991, he 

was made aware of the fact that management had conducted an 

investigation of the event in question, but he could not state 

whether he believed that Mr. Tonkin would have reported the 

incident if he thought that an ignition had occurred (Tr. 30). 

Mr. Young confirmed that Mr. Tonkin told him that he had 

conducted an investigation, and in 11 general terms said he did not 

find any soot on the roof". After the MSHA investigation was 

completed, Mr. Tonkin told him that he did not believe there was 

a reportable accident but that he nonetheless assumed the 

responsibility for the matter (Tr. 31). 

Mr. Young stated that the investigative interviews with the 

crew on the surface were conducted as a group in the same room, 

and not individually. Inspector Tulanowski was asking the 

questions and Mr. Young was taking notes and jotting down some 

things that were said. The first person questioned was James 

Parker, and Mr. Young was not aware that he was chairman of the 

mine safety committee. Mr. Young stated that "their stories were 

not the same. They were not habitual. One guy did not copy what 

the other man said ••• he gave his testimony in different 

terminology. They did not sound alike". The "testimony" was not 

taken under oath, and the one room was used because that is where 

mine management summoned the crew and made the room available. 

During the subsequent meeting in the underground dinner hole, the 

crew came in groups of two or three,~nd "it ended up that there 

was about five in there plus a couple of management men" and 

several people were walking in and out (Tr. 34-35). 

Mr. Young was of the opinion that an ignition "would have to 

have a flame", and that the duration would be "a pop, which is 

referred to in the mining industry. A pop is methane, based more 

on myself, in the mine. A pop would be similar to a firecracker" 

(Tr. 35). In response to a question as to whether or not the 

term "ignition" is defined in MSHA's regulations, Mr. Young 

responded as follows (Tr. 35-36): 

Q. Are you aware of anywhere in the regulations where the 

term "ignition" is defined? 

441 
A. I haven't researched that, no. 

Q. So you are not aware of whether or not it is defined? 

A. There is a definition in there somewhere, I'm sure. It 

could be our manual or policy manual or something. I 

haven't looked it up. The part that I play in this is not 

talking about technical terms of an ignition or an explosion 

or whatever. The only thing that I'm basing -- and my name 

is on this citation -- for is the fact that Consolidation 

coal company is to report to us anything, regardless of what 

it was. 

Mr. Young confirmed that no one said anything during the 

investigation that would lead him to believe that methane had 

ignited and he stated that u

1we were not speaking in terms of 

methane. We were talking of coal dust 11 (Tr. 38). He also stated 

that information was received that indicated that bit lugs were 

off the miner and that enough sulfur was present at the bottom of 

the coal seam to cause an ignition when coming in contact with 

the bits. He confirmed that he was told that the ventilation was 

good and that the methane checks which were made did not indicate 

the presence of any methane (Tr. 38 . 

Mr. Young confirmed that he does not have the technical 

background which would enable him to determine what it takes to 

ignite coal dust, but that "we have classes on that, but you 

don't retain much of it" (Tr. 38). He further confirmed that he 

and Mr. Tulanowski only prepared part of the report of 

investigation. They wrote the abstract which appears at Section 

E, at page one, and the description of the accident which appears 

on pgs. 2-3. The rest of the report "was put together and 

compiled by other people in MSHA up the ladder from us, which is 

a lot of it is just--if you will read the general information, 

that was put together by someone else. I did not do that." 

(Tr. 39). 

Mr. Young stated that he was told that the flame was of 

short duration and self-extinguishing, and that "the flame 

appeared and it went out". He confirmed that he had not 

previously conducted investigations of ignitions, but that he has 

had his hair burned and eyebrows singed from methane ignitions, 

but there were no "telltale" signs of any soot (Tr. 40). 

According to the testimony of the people during his investigation, coal dust ignited. Something was also said about 

Mr. Parker's water supply, and that several miner head bits were 

reportedly missing, but he could not recall what was said about 

the water supply, and he did not believe that anyone knew when 

the bits had last been set (Tr. 42). 

Mr. Young stated that the other individuals who contributed 

to the report of investigation were supervisors who had to clear 

442 
the reports for terminology, grammar, and punctuation, and he did 

not know who signed the reports for him and Mr. Tulanowski. It 

was his understanding that the striking out of the words "methane 

ignition" on page 3 of the report, and the insertion of 

"frictional dust" was to cure a typographical error or misprint 

(Tr. 43). Mr. Young confirmed that notes were taken during the 

investigation, and that they were turned in with his report. 

MSHA's counsel stated that the whereabouts of the notes is not 

known, and she confirmed my bench comment that "God knows what 

happened to them" (Tr. 44). Counsel also confirmed that tape 

recorders were not used to record the employee interviews 

(Tr. 44) . 

James W. Parker, Jr., testified that he has been employed 

with Consol for 19 years, and was working as a continuous miner 

operator on February lu 1991. He described the work that he was 

performing that evening and he stated as follows at (Tr. 51-52) ~ 

I sheared it down that one time, and I scooted it over 

about probably eight to ten inches. Then I sumped it 

in another 12 inches at the top again. When I sheared 

it down the second time, thatvs when my bolter operator 

hollered and screamed. Thatvs when I felt the flame 

coming from the left-hand side of the miner. 

Q. When you said you felt the flame, what color was the 

flame? 

A. Orange and yellow. 

Q. Was it a big flame or was it just a little spark? 

A. It started out at the head. It went up, and as it went 

up it widened out from probably -- it went probably 5 or 6 

feet high, and it went probably in an area of 7-1/2 feet 

wide. As it went to the top, it started rolling back. As 

it hit the arch, it started rolling back toward us. 

That's when I looked down. I couldn't turn my sprays 

on all the way. By this time my bolter operator had 

done grabbed the washdown hose and somebody on the 

other side had the other washdown hose. 

I had looked down to see where my fire suppression was 

because that was the only thing I had left. As soon as I 

looked and seen my control handle, I looked back up and it 

was gone. 

Q. At the time this flame rolled towards you, what did you 

do? What was your reaction? 

443 
A. It scared me real bad. That's the first time I've ever 

been in one of them. I knew if we didn't get it out that it 

could have just did (sic) the whole mines up. 

Q. You said you had been mining for at least 19 years. You 

have seen a spark before, have you not? 

A. Yes, Ma'am. 

Q. Was this a spark? 

A. No, ma 1 am. It was a flame. 

cab clear over to the trim chain 

hit the arch it was rolling back 

somebody had a torch shooting at 

It went from the end of the 

and off the rib. After it 

toward me. It felt like 

me. 

Mr. Parker stated that he was seated on the right side of 

the machine, and that the ignition occurred on the left side of 

the machine head. After he shut down the machine, day shift 

foreman Gary Graham called for Mr. Tonkin and mine foreman Ray 

Oldaker to come to the scene. Mr. Parker stated that Mr. Graham 

stated that he saw the smoke from the flame, and that when 

Mr. Oldaker arrived he stated "Yes, I see a little bits of soot 

in the air" (Tr. 55) . 

Mr. Parker stated that he suggested that Mr. Tonkin and 

Mr. Oldaker summon "the safety committee and Federal and State, 

and get it over with", but that they took the position that they 

had to conduct an initial investigation before calling anyone. 

Mr. Tonkin and Mr. Oldaker gathered the crew together and 

questioned them, and Mr. Parker stated that "We all agreed that 

we had an ignition and it went up the left-side of the miner, out 

the rib 1 and rolled back toward the miner" (Tr. 56). The crew 

was then instructed to go eat, and a mechanic came to the area 

and said that two or three bits had broken off the miner. The 

water sprays were cleaned, some work was done on a loose monitor 

box, and the crew was then instructed to continue working. Most 

of the work performed on the miner can normally be done at the 

start of the shift, but broken bits and plugged sprays can be 

taken care of on-shift (Tr. 57). 

Mr. Parker stated that after eating, and after the work was 

completed on the miner, he asked Mr. Tonkin and Mr. Oldaker if 

anyone was going to be called, and they told him that "We don't 

have to call them". Mr. Spencer then remarked "Okay, but I'm 

telling you I don't want any trouble in this later on" and he 

proceeded to continue slabbing the place "where I had finished 

from where I had the flash" (Tr. 59). He continued seeing sparks 

from "a real thick stream of sulfur" and "it was throwing sparks 

as I was hitting in sulfur" (Tr. 59). 

444 
Mr. Parker stated that after meeting with management on 

Friday, February 1, 1991, the crew was not contacted again until 

the MSHA inspectors came to the mine on Monday, February 4, 1991, 

to conduct their investigation. Management summoned the crew 

together at the safety office to meet with the inspectors 

(Tr. 61). The statement he gave to the inspectors was 

essentially the same as it was on Friday, and he explained that 

the inspectors questioned the crew as a group but asked questions 

of each individual, took notes of the answers given, and read the 

notes back and asked each individual if their statements were 

correct. Mr. Parker stated that he was not sworn, did not sign 

any statement, and he was not given a copy of what was said 

(Tr. 69-71)0 

On cross-examination, Mr. Parker testified that the 

ventilation was good on the evening in question, and he marked up 

a sketch showing where he was operating his miner, the 

ventilation air direction, where he was seated, the location 

where the ignition originated and its point of travel, and the 

location of a fan (Exhibits C-1 and C-2, Tr. 78-82) o He 

confirmed that he checked the miner bits at the start of the 

shift, and he set 8 bits and replaced the ones that were bado He 

also cleaned the water sprays, and the mechanic told him that two 

or three bits were knocked off where they struck the sulfur which 

is hard enough to sometimes break bits (Tr. 83). He confirmed 

that he cut the water sprays back because he did not want to 

create a mud hole and mire the miner (Tr. 84). After the 

incident in question, he continued to use full water pressure and 

that "it was just throwing sparks where it was hitting hard" 

(Tr. 85). He confirmed that the methane monitor was "picking 

nothing up but one-tenth" (Tr. 87). 

Referring to notes that he made on February 1, 1991, after 

the ignition, Mr. Parker confirmed that the notes do not 

mentioned "flames rolling back", but that "it says a ball of 

on the left side that lasted three to five seconds" (Tr. 88). He 

stated that "the way it rolled back_it looked like a ball of 

fire. The flames rolled back at me". He further conceded that 

his notes do not say anything about his feeling any heat, or that 

he felt like someone had pointed a torch at him, or that anyone 

said anything about seeing smoke (Tr. 88-89). He stated that he 

made the notes 5 to 10 minutes after the miner was shut down, and 

that the notes contain an accurate description of the way he 

remembered the incident five minutes after it happened (Tr. 89). 

Mr. Parker stated that he was serving on the mine committee 

on February 1, 1991, and that he was fairly familiar with the 

union contract. He believed that he cannot refuse to work 

because of an unsafe condition, but that he could work under 

protest and request his foreman to summon a safety committeeman 

to be present. He confirmed that he did not invoke his 

individual safety rights or state that he did not wish to operate 

445 
the miner after the ignition occurred (Tr. 91). He was not aware 

of the fact that an individual miner could request a section 

103(g) inspection, and believed that this could only be done by a 

safety committeeman (Tr. 93). 

Mr. Parker did not believe that the area where he was 

working was too dusty, and he confirmed that the return was white 

after he placed two bags of rock dust into the fan before he 

started mining. The return looked the same after the incident 

(Tr. 95). He confirmed that when Mr. Tonkin was at the scene 

during his initial investigation "everybody" agreed that an 

ignition had occurred, but management decided not to report it 

(Tr. 96). 

Gary L. Hayes, roof bolter operator, testified that he was 

working with miner operator Parker on Friday, February 1, 1991, 

and after checking the face for methane and finding one-tenth of 

one-percent, he advised Mr. Parker that was safe to begin 

cutting coal. He explained that Mr. Parker proceeded to cut and 

trim the coal face. Mr. Hayes was standing to the front of 

Mr. Parker, approximately 12 feet from the miner head, when he 

saw a flame come over the head of the miner. The flame traveled 

straight to the roof top and widened out for a distance of four 

to five feet, and then rolled back from a corner of the roof. 

Mr. Hayes screamed and grabbed a wash-down hose and aimed it at 

the flame. However, the flame extinguished itself and only 

lasted for four to five seconds. 

Mr. Hayes stated that foremen Carter and Wolfe were present 

and they notified mine management about the flame. Mr. Hayes 

confirmed that he was standing closer to the flame than anyone 

else, that he was scared, and that this was the first time he 

ever saw a flame come off a mining machine head in his 18 years 

in the mines, and he described what he observed as follows at 

(Tr. 104, 106, 110) : 

Q. When you first saw this flame, you said it rolled up. 

Would you say, sir, it was almost the arch? 

A. Yes, I'd say that. It came up like the face where it 

sumped in and cut down. It come up that face. When it hit 

the mine roof where that miner sumped in it had kind of a 

roll to it, that made the flame go around because it had to 

come back out, see. That's what caused it to like roll back 

towards us. 

It didn't really come back to us, but it just rolled back 

there as far as we was sumped in and rolled back. If it had 

come back any farther, I think it would have went down the 

return. 

* * * * * * * 

446 
Q. Everyone characterized it as a flame or fire? 

A. Everyone said it was a flame. The flame came up and 

then it rolled up. Some of them got a ball or fire out of 

that because it rolled out. It was a flame that went up off 

of the head of the miner and went up to the top. 

If you could cup your hand like that and take something 

see, it curved like this (indicating). It just went up 

there. Well, it would have went straight up, but when it 

hit that curve, it made it roll out. 

* * * * * 

It pretty well consumed itself mainly right at the face and 

the head of the miner, right in that area. It didn't really 

come back out and go down a return or anything. 

Mr. Hayes stated that after the flame extinguished 1 day 

shift foreman Gary Graham and dust sampler Sandy Eastman arrived 

at the area and they stated "they could smell the smoke where the 

flame came up" (Tr. 105). Mine superintendent David Tonkin and 

mine foreman Greg Oldaker then arrived and conducted an 

investigation. After checking the machine and checking for 

methane, they allowed work to continue. Mr. Hayes stated that 

the crew was questioned and that they explained to Mr. Tonkin 

"that we had a flame come up. It was orange yellow, bright 

orange and orange mixed flame that came up". Mr. Hayes stated 

that the crew also informed Mr. Tonkin that they were in 

agreement that "it was set off by dust and not methane. It was 

the dust from the miner. The sulfur and the sparks set the dust 

off or whatever. That's how the flame got started, that we felt 

it got started" (Tr. 108). Mr. Hayes further stated that Mr. 

Tonkin and Mr. Oldaker were not present to see what had occurred, 

but that "they agreed that, yes, there was a flame. That's what 

we seen" (Tr. 108). 

Mr. Hayes stated that Mr. Tonkin and Mr. Oldaker informed 

the crew that in view of the fact that so many ignitions had 

previously occurred in the 12 Left section they had an agreement 

"with the Federal" that if management investigated such incidents 

and both management and the union were satisfied as to the cause 

of the ignition, work could resume (Tr. 109). The area was in 

"good shape" when work resumed (Tr. 110). Mr. Hayes confirmed 

that he has observed sparks at the face in the past, and he 

stated that "We've mined in sulfur, and there's a lot of times 

that there's sparks and stuff like that. But this was a flame of 

fire" (Tr. 111). 

Mr. Hayes confirmed that the inspectors interviewed the crew 

on Monday, February 4, 1991, and that management was present. 

Each individual at the meeting stated what they had observed, and 

447 
their statements were read back to them, and they all agreed to 

what they had observed and made no changes in their statements 

(Tr. 112). 

On cross-examination, Mr. Hayes stated that there was no 

appreciable methane present during the work shift, that there was 

"a good bit of air" ventilating the face and keeping the methane 

out, and that the dust was "no more" than what he had seen on 

prior occasions. He believed that Mr. Parker did not have the 

miner water sprays all the way on (Tr. 115). He further believed 

that none of the crew had ever previously observed an ignitionf 

and he confirmed that when the inspectors spoke to the crew 

everyone was in the room together (Tr. 118). 

David Allen Moore, testified that he has worked for Consol 

for 18 years, and was a roof bolter on February lf 1991. The 

mining machine area was dusty and he stuck his head around the 

corner of the entry to get some fresh air, and when he next 

turned around he saw a flame travel up the rib from the bottom 

head of the miner. He was scared, and he screamed and grabbed 

the water hose, but the flame went out. He stated that the flame 

extended three to four feet from the miner head up to the roof 

arch for a distance of five or six feet and that 11 the heat from 

that thing just felt like it could singe the hair on your facef 

and it was real bright yellow and orange. It just scared me to 

death" (Tr. 122-123). Shift foreman Gary Graham and dust person 

Sandy Eastham heard the screams and came to the area and 

Mr. Graham stated he could smell the smoke, and Mr. Moore said 

that he showed Mr. Graham "a little bit of soot" where he said he 

could "smell where it burned" (Tr. 123-124). 

Mr. Moore stated that Mr. Tonkin and Mr. Oldaker were called 

to the scene, and spoke to each person, and they each stated and 

agreed that they had seen a flame (Tr. 125). Mr. Moore stated 

that Jimmy Parker, Dave Moore, Gary Hayes, Roy Sailor, and Kevin 

Carter were present, but that Bob Wo.;tte was not. However, 

Mr. Wolfe had previously agreed that there was an ignition, but 

he was allowed to go home after dinner. Mr. Tonkin asked 

everyone whether there was an agreement as to what had happened 

and Mr. Moore stated that 11 we said yes" (Tr. 125). 

Mr. Moore stated that management had on previous occasions 

called "the Federal out" when there were prior ignitions, but 

that someone stated that the only time they were to be called was 

in the event of a gas ignition. Mr. Moore stated that "we all 

agreed" that what occurred on February 1, 1991, was a dust 

ignition and "it ignited and caught the dust at the face on fire 

which caused the flame. It made us scream" (Tr. 127). He 

confirmed that after dinner, they continued mining (Tr. 128). 

448 
Mr. Moore stated that when he next returned to work on 

Monday, February 4, 1991, he and the crew met with the 

inspectors. Inspector Tulanowski asked the questions, and 

Inspector Young "wrote them down" (Tr. 128). The statements were 

read back, and "they all agreed that this is what happened" 

(Tr. 129). Mine management representatives, including 

Mr. Graham, Sandy Eastham, and foreman Kevin Carter were also 

present (Tr. 130). Mr. Moore was not sure what Mr. Carter may 

have said, and he could not recall that Mr. Wolfe was present 

(Tr. 131) . 

On cross-examination. Mr. Moore described where he was 

standing when he observed the flame, and he confirmed that it was 

the first time he had seen anything like it (Tro 132-134). He 

also testified as to the use of the water sprays by Mr. Parkeru 

and he confirmed that while Mro Parker was cutting at the face 

after the incident with the water sprays fully on 11 it made sparks 

all the time" {Tr. 137). 

Respondent's Testimony and Evidence 

Kevin B. Carter, Longwall Foreman, stated that he has worked 

as a foreman for 12 years and that he holds a B.S. degree 

technical mine engineering from Fairmont State and that he was 

the day shift section boss on the 11 Left section on February 1, 

1990. He fire-bossed the section that day and found no more than 

two-tenths of one percent methane. 

Mr. Carter stated that soon after mining began he heard 

everyone yelling and foreman Bob Wolfe was running to the water 

hose. Mr. Carter stated that in response to the yelling he was 

turning "a lot of different ways and looking everywhere at once 

because I wasn't sure what was going on", and that "whatever I 

saw, I saw very briefly because I was turned the other way from 

the people, just a glow near the bits". He explained that he saw 

"a glow near the bits on the left side, above the bits. It was 

just gone almost immediately as I looked." (Tr. 143). He stated 

that he saw no flame or smoke. 

Mr. Carter could not remember Mr. Parker telling him that he 

saw anything, and he stated that Dave Moore and Gary Hayes told 

him that they "saw something on the left side of the miner" but 

he did not remember that they said they saw flames rolling back 

toward them. Mr. Carter stated that Mr. Moore and Mr. Hayes told 

him that they saw "like a ring of fire near the bits, a glow near 

the bits, up above between the bits and roof" (Tr. 143-144). 

Mr. Carter explained his understanding of "a ring of fire" 

as follows at (Tr. 145): 

449 
A. In my experience, when someone refers to it, they refer 

to it when they're in sulfur. When you're cutting a lot of 

it, you'll see a lot of sparks off the head. The head moves 

pretty quickly, and you'll see a lot of -- it's called a 

ring of fire. 

Q. Does it create an illusion of a ring of fire? Does 

everything look orange? 

A. It's almost like holding metal against a grinder. It 1 s 

the same thing. 

Mr. Carter confirmed that management conducted an 

investigation of the incident and that Mr. Tonkin spoke to 

everyone and stated "are we in agreement that we hit sulfur with 

the bits and you saw a ring of fire around the bits? We know 

what it was, and we know what caused it 11 • Mr. Carter stated that 

everyone responded 11 yes" and no one stated that they had seen 

flames (Tr. 146). 

Mr. Carter stated that "it was not real dusty" on 

February 1, and that the air flow was good and the fan was 

running. He also stated that he was looking back toward the boom 

of the miner and was also watching the cables. He confirmed that 

he was present during the MSHA investigation of February 4, and 

that the statements made to the inspectors "seemed to have 

escalated a little bit" from the statements previously given to 

Mr. Tonkin. The employees told the inspectors that they saw fire 

above the miner bits and when asked if he recalled that they said 

they saw flames he responded "I think they did" (Tr. 148). 

On cross-examination, Mr. carter stated that he never made 

any statement that he saw flames. (In response to a question 

from the bench, Inspector Young stated that during the 

investigation interviews he recalled that Mr. Carter "used the 

terminology "fire" and not flame (Tr. 153)). 

Mr. Carter confirmed that he did not actually observe the 

event when it happened and that he was "at the rear of the miner, 

facing the rear of the mine, facing away from the face" 

(Tr. 155). However, as he turned around he briefly saw a glow 

on the left side of the miner, and that "I caught the tail end of 

whatever it was, enough for me to have noticed there was 

something there" (Tr. 156). He stated that at the time of the 

event he asked Mr. Moore and Mr. Hayes what they saw and that 

they told him they saw fire on the left side of the miner at the 

bits and they did not characterize what they saw as a "ring of 

fire" (Tr. 159) . 

Mr. Carter confirmed that most of the crew members had long 

years of experience in the mines and that "they saw something 

more than they had seen before or they wouldn't have been 

450 
panicked. We do hit a lot of sulfur. You see a lot of sparks, a 

lot of glow around the bits" (Tr. 160-161). 

Robert Wolfe, section foreman, stated that he holds a BS 

degree in mining engineering and an AS degree in mechanical 

engineering from Fairmont State. He has served as an hourly 

loading machine and miner operator, roof bolter, shear operator, 

and shieldman, and on February 1, 1991, he stayed over from his 

night shift to work the day shift and help slab the No. 1 entry 

(Tr. 165). He explained the work he performed, and he confirmed 

that he checked for methane and found two-tenths of one percent 

"which is common on that area" (Tr. 167). 

Mr. Wolfe stated that Mr. Parker cut the miner water sprays 

back 80 percent when he sheared the bottom of the facer and that 

"there was a ball where the bits were coming into contact with 

the iron pyrite. It's sparks 1 we had a lot of sulfur gas sparks.u 

(Tr. 168). Mr. Wolfe stated that he grabbed a washdown hose used 

to wash dust off the miner to put additional water on the sparks 

and that he did not see any flames. He did not remember making 

any statements to anyone that he saw flames (Tr. 168). He did 

not see or smell any smoke. In his opinion 1 the crew became 

excited because "they seen more sparks off the iron pyrite than 

they was used to seeing because the water was cut back on the 

miner", and that "there wasn 1 t that much dust aq (Tr. 169) -0 

Mr. Wolfe confirmed that he was present during the 

investigation conducted by Mr. Tonkin and Mr. Oldaker, and he 

explained as follows at (Tr. 170-171): 

Q. Do you recall Mr. Tonkin asking the crew members if they 

had seen flames or had an ignition? 

A. Yes. Everyone there was present. 

Q. Do you recall what the answers were? 

A. The best I can remember, everyone determined that hadn't 

been that. That hadn't happened. 

JUDGE KOUTRAS: Do you remember him asking everybody 

individually whether they saw a flame? 

THE WITNESS: He asked them as a group. 

JUDGE KOUTRAS: What did he say? Did anybody see 

flames? 

THE WITNESS: I don't recall what he said exactly, but 

it was in that line. He said, "Did anyone see flames? 

Everyone was standing in a semi-circle around him as 

he was speaking. 

451 
JUDGE KOUTRAS: He specifically asked the group whether 

they saw a flame? 

THE WITNESS: Yes. 

BY MR. SCHELLER: 

Q. Their answers at that point were that they had not? 

A. Yes, the best I can remember. I by this time had been 

in there a lot of hours. 

On cross-examination, Mr. Wolfe stated that the crew 

screamed when they saw sparks and that he already had the water 

hose on and pointed in the direction of the miner head because it 

was a common occurrence. He was following his normal procedure 

and would have the water on regardless of any sparks in order to 

cut down the dust (Tr. 172-174). 

David c. Tonkin, Assistant Mine Superintendent, stated that 

he was serving as the acting superintendent on February 1 7 1991, 

and has 23 years of mining experience (Tr. 185)" He confirmed 

that he has investigated ignitions on several occasions and that 

he looks for physical evidence such as soot, cindersr and ash and 

that he has visited areas after an ignition and could still smell 

smoke. He confirmed that he was summoned to the section by Gary 

Graham who informed him 11 they might have had an ignition at the 

No. 1 heading". Mr. Graham further informed him that 11 they had 

stopped mining and I left everything be" (Tr. 186). 

Mr. Tonkin confirmed that he investigated the area where the 

event took place and found no physical evidence of soot or ash 

and smelled no smoke. He found nothing that would have led him 

to believe that an ignition had occurred (Tr. 187). He then 

called the crew together to question the individuals about what 

they had seen and he explained as follow at (Tr. 187-189): 

A. I don't remember exactly the order I talked to them. 

Mr. Hayes said he was standing on the right side of the 

miner. He had been checking for methane in the face area. 

He said he saw a small fireball at the bits of the miner. 

He turned to get the hose, to get the hose there, turned the 

water on and it was gone. 

I talked to Mr. Moore. He said he was standing near the 

corner. He was not looking at the miner. He said he heard 

somebody holler, and he looked around. He said he saw a 

fireball at the bits of the miner. He saw people grab the 

water hose and it was gone. 

I talked to Jimmy Parker. I asked him what he was doing. 

He described the motions he went through as far as making 

452 
one sump, making the second sump. He said he was making the 

second sump and as the miner head was being dropped, which 

is a common practice for miner operators, they usually reach 

down and turn the water nearly off or down. He said he was 

reaching down to turn the water down, and he heard somebody 

holler. He said he reached back up and looked. He saw a 

ball and it was gone. 

* * * * I told them we were going to make the investigation. 

I questioned them. I went back over it. I said that from 

you all are telling me, we saw a fireball at the bits of the 

miner. I questioned them about a blue flame. There's no 

blue flame. It's a fireball at the bit of the miner. It 

was contained around the bits of the miner. I saidf "Do you 

all agree with that?" They said yes. 

Q. Did anyone tell you they saw any flames? 

A. No, there was no mention of flames. 

Mr. Tonkin stated that if anyone had told him they saw 

flames or that the flames went to the roof it would have been a 

reportable event and he would have reported it as he has done 

the past. However, after speaking to all of the employees he 

concluded that while dropping the miner, Mr. Parker hit a sulfur 

ball as the water was turned off or nearly turned off and that 

"this would bring a larger than normal amount of light to the 

area . • • he was cutting through this sulfur ball with his water 

off and greatly amplified the light. The people were not used 

to it, and they were afraid" (Tr. 189). 

Mr. Tonkin stated that he made the decision that the event 

was not reportable and that "I asked everybody if they agreed 

with me with what we saw, and they all agreed what we saw. That 

was a fireball near the bits on the side of the miner". He 

explained that the "fireball 11 he was referring to was the "Ring 

of Sparks" which is "low on the py;r:Jtes" (Tr. 190}. 

Mr. Tonkin confirmed that he was present during the MSHA 

investigation of February 4, 1991, and that the events as relayed 

by the crew to the inspectors were not the same as they were 

relayed to him on February 1, immediately after the occurrence. 

He believed the sparks were enhanced by the lack of water on the 

miner and that it cut through the pyrite with the water turned 

off or nearly turned off. There was no doubt in his mind that an 

ignition did not occur (Tr. 191). 

On cross-examination, Mr. Tonkin stated that the employees 

told him they saw a fireball on the left side of the miner near 

the bit area, and that it was contained around the bits. They 

did not state that it rolled up the arch (Tr. 192). He confirmed 

453 
that the employees told the inspectors that there were flames, 

but he did not know that they stated that it was an ignition. 

Mr. Tonkin stated that he was not told anything about any 

flames by the crew when he spoke to them on Friday, February 1, 

and that "the story today was even more so than the story that we 

had that day" (Tr. 192). Mr. Tonkin stated that he reported what 

he believed happened to his superiors, and that his decision with 

respect to the lack of a reportable incident was based on 

physical evidence and what the men had reported to him. The 

presence of flames and an ignition was not reported to him as 

such, and he believed the men saw "a ball of fire", which he 

defined as the "result of the bits hitting the sulfur, and it was 

amplified by the lack of water" (Tr. 194). 

He further explained as follows at (Tro 194) ~ 

Qo You have heard these men testify today how that flame or 

that ball of fire rolled toward them. Then you said that 

was never reported. 

A. Yes. They told me that it was a flame and came towards 

them, yes. The day that you~re talking about in the safety 

office, there was no mention of a large ball of fire going 

up against the arch and rolling back to them. That was not 

even mentioned that day, but they did say that day there 

were flames. 

Q. Just based on your own opinion, you would not call a 

ball of fire an ignition? 

A. My terminology of ball of fire has to do with hitting 

sulfur and a ball of fire, large sparking around the bits, 

my terminology of a ball of fire. 

Q. But you always have sparking around bits in large 

streaks and things like that,.c.o+rect? 

A. Yes. 

Q. It does not result in a ball of fire. It's just 

streaks. 

A. If the water is turned on, I'd say, no, it wouldn't. 

Mr. Tonkin stated that at the time of the MSHA investigation 

he told Inspector Young that the story relayed to him by the crew 

was not the same as what he heard underground on February 1, 

(Tr. 196). Mr. Tonkin stated that he told Mr. Parker that in the 

event management concluded that there was no ignition it would 

not be reported to MSHA and that mining would continue. 

454 
Mr. Tonkin believed that his relations with the miners and the 

inspector were good (Tr. 197). 

Mr. Tonkin stated that since he did not believe there was an 

ignition, mining was allowed to continue. If an ignition that he 

thought was reportable had occurred, the evidence would not have 

been destroyed and "we would have let it be" (Tr. 198). He 

believed that management did the right thing and that foreman 

Graham told the crew not to disturb anything until he (Tonkin) 

reached the area. Mr. Tonkin conceded that Mr. Parker may have 

seen a flame, and he stated that "he did not tell me he saw a 

flame. That's what I had to go on. I'm not denying he saw 

flames, I'm just telling you what they reported to me" (Tr. 199) o 

Mr. Tonkin was of the opinion that if dust had engaged an 

ignition and rolled to the roof, there would surely be soot on 

the roof. He speculated that the miners may have embellished 

their story because management and the safety committee were not 

on good terms and the union may have pressured them (Tr" 199-

2 00) . 

Mr. Tonkin stated that he prepared no notes or report of his 

investigation and saw no harm in notifying MSHA of the event 

(Tr. 200-201). He explained that he has in the past 

in ignition investigations with MSHA, but that in 

did not feel the need to call MSHA if he believed was no 

ignition (Tr. 201). He stated that after questioning everyone 

they agreed that there was a ball of fire in and around the bits 

and that no one spoke up and said that they saw more than a ball 

of fire and saw flames rolling up over the roof (Tr. 202-203). 

Greg Oldaker stated that he has 20 years of mining 

experience and that he was the underground mine foreman on 

February 1, 1991. He confirmed that he was summoned to the 

section by phone and that "they said they had a possible 

ignition" (Tr. 204). He confirmed that he checked the miner and 

found no evidence of soot, ash, or soot streamers, and did not 

smell smoke. He saw nothing that would indicate that an ignition 

had occurred. He found 30,000 cubi2 feet of air going across the 

miner, and one-tenth of one-percent methane (Tr. 205). 

Mr. Oldaker confirmed that he was present "the majority of 

the time" during the management investigation and that "as a 

whole, to me, everybody was more or less agreeing that had a ball 

or fire" (Tr. 206). He described a "ball of fire" as "like when 

you're in sulfur and you've got a lot of sparks from the sulfur 

coming around the head of the miner they'll refer to it as a ball 

of fire. That's more or less what it is" (Tr. 206). He stated 

that he never heard anyone say anything about flames, and that 

the crew basically agreed that what they had seen was a ball of 

fire around the bits. He "was more or less in agreement with 

them because I didn't see evidence of an ignition myself when I 

looked at it" (Tr. 207). He confirmed that he may have been in 

455 
or out of the room during MSHA's interviews with the employees 

but he did not sit in on any of the testimony (Tr. 207). 

In response to further questions, Mr. Oldaker stated that he 

has observed balls of fire from cutting sulfur, and the size of 

the ball would depend on the amount of sulfur present. Although 

there may be a big glow "like a shower of sparks", he did not 

believe it would roll up the face and he has never observed this 

happen. Although he believed that such sparking could probably 

ignite methane, he did not know if it would ignite coal dust 

(Tr. 209). 

Inspector Young was recalled by the Court and he explained 

that any statements made during the investigation with respect to 

"a ball of fire rolling up the coal and all that" would not 

appear in his report of investigation. He further explained that 

it "would not be the terminology that you put in there. IRve 

never seen one of these come close to that kind of descriptionuu 

(Tr. 210). When asked if he would include in his report any 

statements by Mr. Wolfe and Mr. Carter (if in fact made to him) 

that they saw a ball of fire, Mr. Young responded "a ball of 

five, maybe, but you were saying rolling up the coal and allo We 

would not have put that in there, no" 

(Tr. 210) . 

When asked if he would have included in his report any 

statements (if in fact made) that flames were rolling back toward 

the mine operator, Mr. Young stated that he would have put that 

in his notes "but I would not have worded it that way in this 

accident report, no. I've never seen one with terminology like 

that" (Tr. 22 O} • 

Mr. Young confirmed that during his investigation on 

February 4, Mr. Tonkin stated "if I had heard what you just heard 

the other day on the section, I would have reported it" (Tr. 

211). Mr. Tonkin told him that the statements made by the miners 

during the interviews were not the same statements made to him 

(Tonkin) during his investigation (Tr. 219). 

Mr. Young confirmed that he based his citation for the 

failure by the respondent to preserve the evidence on the 

testimony of the employees which led him to conclude that three 

was an ignition, and that there was an ignition, MSHA should 

have been afforded the opportunity to investigate it. However, 

since the area was cleaned up and repairs made to the miner, any 

investigation would have been fruitless (Tr. 212). Conceding 

that the respondent had the right to investigate in order to 

decide whether a reportable accident had occurred, and that there 

would be nothing to preserve if it was concluded that the 

incident was not reportable, Mr. Young monetheless stated that 

"the testimony was so overwhelming that we had no choice. We 

456 
didn't hear anything contrary to an ignition. Nobody told us a 

maybe, an if, or what for. It was all dead straight forward". 

When asked if the testimony he heard during the hearing in 

this case was like the testimony he heard during his 

investigation, Mr. Young responded "I don't know if any words 

agreed" (Tr. 212). Mr. Young stated that Mr. Parker's testimony 

that "it went all the way to the ceiling and rolled back on him" 

was the same as what he stated during the investigation, and that 

the hearing testimony of the other miners was also consistent 

with their prior statements (Tro 213). 

When asked if he disagreed with the testimony about the 

appearance of a nball of firen or 11 a ring of fire 10 r Mr. Young 

stated that there were 8 or 9 people in the room during his 

interviews and that 11 it seemed that we had one faction over here 

that wanted to agree on this is what it is and one faction over 

here that wanted to agre.e on something else 11 (Tr. 216). 

Mr. Young stated that he has seen "a ring of flames 11 around a 

miner bit when dust and methane are ignited, and that he has also 

observed "sparks go round and round bit lugs" and that there is a 

distinct difference in the two. The response he received was 

"that it was a fire and it had a flame. It was this color and it 

did this" (Tr. 217). 

Mr. Young stated that Mr. Tonkin and Mr. Oldaker were not 

asked any questions during his interviews with the other miners. 

Mr. Young also confirmed that Gary Graham was present "out in the 

hall", but that he was not questioned. The questioning was 

limited to "the people that was right around the continuous miner 

that saw what went on" (Tr. 217). Mr. Young stated that he 

distinctly remembered that Mr. Wolfe stated he saw fire, but that 

Mr. Carter "was hesitant" and that "he always looked down. He 

didn't look up. He didn't want to give me a direct answer" 

(Tr. 218). Mr. Young stated further at (Tr. 219): 

THE WITNESS: My position, was in the middle somewhere. 

I had more than one person categorically tell me, "We had a 

fire and ignition or ball." Then I had another guy saying, 

"James, I didn't see it." I wasn't told the same thing you 

were. 

JUDGE KOUTRAS: Was there any inquiry made of these 

miners as to what they may have told Mr. Tonkin. 

THE WITNESS: There was remarks made in the room by 

other people about "Wait a minute. I didn't hear that the 

other day." They would make an explanation to them but not 

directed at me. 

Mr. Young agreed that the testimony of the miners 

during the hearing in this case was more than what he heard 

457 
during his investigation and he attributed this to the kinds of 

direct questions asked by counsel which were not the same 

questions asked during the investigation interviews (Tr. 220). 

He stated that the responses to the questions asked during the 

investigation were straight-forward and that no one was "wishywashy" about what was said (Tr. 221). He stated that "the 

testimony given to me did not say anything about a small ball. 

Just categorically, we had a flame and a fire, and that's what we 

based it on". 

Mr. Young stated that in view of some statements by some of 

the respondent's representatives who were present during his 

interviews with respect to the term "ball of fire 10 , he 

specifically asked for clarification as to whether there was 11 a 

flame of fire of orange color" or "a ring of sparksno The 

statements by the crew that "flames were rolling back on the 

roof" led him to conclude that there was an ignition (Tro 223) 0 

David Allen Moore was recalled by the Court, and he stated 

that when Mr. Tonkin spoke with the crew during his investigation 

he told Mr. Tonkin that "I seen the flame shoot up there" It was 

hot. It scared me 11 (Tr" 226)" When asked if he specifically 

used the word "flamen, Mro Moore responded 96 Yes, fire, Flame 

fire. I 1 d say flame. I can°t remember exactly, but it was 

either fire or flame. I think fire and flame is the same thing, 

isn't it? I'd say flame because he asked me how big it was and 

the color of it" (Tr. 226). Mr. Moore further stated that he 

told Mr. Tonkin that it was "three foot high and five to six foot 

wide, and it was kind of yellow and orange and real bright. It 

was hot" (Tr. 227). 

Mr. Moore stated that he heard "ball of fire" discussed and 

that "it just rolled like a ball of fire there, but it was three 

foot high at the miner head where it was cutting". He stated 

that everyone agreed that they saw "a flame shooting up the rib, 

three foot high and five foot long "(Tr. 220). 

Gary Lee Hayes was recalled by the Court, and he stated that 

when Mr. Tonkin spoke with the crew during his investigation 

Mr. Tonkin was told that "we had an ignition, that we had flame, 

we explained to him how it came off the miner and how it rolled 

back. I think that's how he got to the point of a ball of fire 

and everything. We didn't really know. This was the first time 

we ever experienced anything like this" (Tr. 229). In response 

to a question as to how he concluded that an ignition occurred, 

Mr. Hayes responded as follows (Tr. 229-230): 

JUDGE KOUTRAS: Let me ask you this. How did you come 

to the conclusion that this was an ignition? 

THE WITNESS: This is what we've been told, that any 

time that you've got fire like that in the face area, it's 

458 
called an ignition. That's the reason we come out with this 

point was the flame that happened in the face that was set 

off. We believe it was set off by the dust. This was we 

called it, an ignition. 

If it wasn't an ignition, the only thing I an say is it 

was a flame of fire that came off the head of the miner to 

the top. This is the way we reported it. I said ignition, 

but that's my own opinion of what an ignition is, a fire at 

the face of a working section. That's why I've come to the 

point of an ignition. 

JUDGE KOUTRAS~ What does ring of fire mean to you? 

THE WITNESS: A ring of fire is like miner bits hitting 

sulfur and being going around the head of the miner. I've 

seen this happen. I didnwt feel that was a reportable 

thing. I've seen it many a time in my years of coal mining 

experience. I've seen the bits keep hitting it. It 

followed the miner hitting around. It's them bits set on an 

order where they just keep hitting it, and it makes it look 

like a ring of fire. But we had flame. It was a flame. 

JUDGE KOUTRAS: That ring of fire that you have 

described, would that be an ignition? 

THE WITNESS: No, I didn't say that an ignition, no. 

JUDGE KOUTRAS: Did you remember specifically telling 

Mr. Tonkin that what you saw was flame? 

THE WITNESS: Yes, sir. 

James W. Parker, Jr. was recalled by the Court, and he 

stated that when Mr. Tonkin came to the scene on February 1, he 

told Mr. Tonkin that "it was a flame going up the left-hand side 

of the miner, up to the top, and rolled back from the arch over 

the top toward us" (Tr. 232). Mr. Parker stated that he never 

referred to the flame as a "ring of fire". He confirmed that 

during the MSHA investigation of February 4, the statements made 

to the inspectors were "pretty much" the same statements made to 

Mr. Tonkin and he did not recall anyone refer to the flame as a 

"ring of fire" (Tr. 233). 

Consol's Expert Witness 

Dr. Pramod c. Thakur, testified that he is employed by 

Consol and is responsible for degasification of all of its mines, 

control of respirable dust, and the prevention of methane and 

dust ignitions. He received his early mining education in India 

and holds BS, MS, and PHO degrees in mining engineering from Penn 

State University and has an MS degree in applied Mathematics. He 

459 
is a certified mine manager, has conducted research in methane 

and dust ignitions and mine ventilation, and has been involved in 

investigations of ignitions (Tr. 234-237). 

Dr. Thakur agreed with Inspector Young's statement that 

"when you have a visible flame, it's an ignition, ignition of 

something" (Tr. 237). He stated that methane and air mixtures 

will ignite, and that coal dust and air mixtures will ignite. In 

order for these mixtures to ignite there are three ingredients 

that must be present, namely, (a) the right concentration, (b) 

the right temperature for all ignition temperatures, and (c) the 

right energy input (Tr. 238). 

Dr. Thakur confirmed that based on the testimony of all of 

the witnesses, which he heard in the course of the hearing, he 

agreed with MSHA that no methane ignition took place on 

February 1, 1991 (Tr. 239). He was also of the opinion that it 

was impossible to ignite coal dust under the circumstances 

described by the witnesses. He explained that based on the 

published literature by the U.S. Bureau of Mines one would have 

to have a thousand times more dust at the face than what was 

present at the time of the event in question; and that the dust 

would have to be ignited by an explosive charge" No mechanical 

friction of any sort can ever ignite coal dust, and that based on 

all of the literature on the subject 11 it is impossible to ignite 

coal dust and air mixtures with mechanical friction" (Tr. 241). 

Dr. Thakur stated that sparking caused by friction will 

ignite a mixture of methane and air, with a resulting flame which 

is bluish in color. Depending on the volume, "you will hear a 

pop", and the flame "will rise, go to the roof". He further 

stated that "there's no way you can have a sustaining visible 

flame to qualify as an ignition and go away in three seconds 11 

(Tr. 241) . 

In addition to the lack of sufficient coal dust, and the 

impossibility of igniting coal with a.frictional emission, Dr. 

Thakur stated that a "great powerful source" of energy, which is 

10 to 100 times more than what is necessary to ignite a mixture 

of methane and air, must be present to ignite coal dust. He also 

indicated that a coal dust explosion may be ignited if there was 

an initial methane explosion which has sufficient momentum to 

"kick up" the dust from the mine floor, ribs, and roof at 700 

degrees centigrade or higher (Tr. 242). 

Dr. Thakur stated that based on the testimony he heard in 

this case from all of the witnesses he was of the opinion that 

what occurred was the creation of light by the bits of the mining 

machine striking quartzite or pyrite. Quartzite will oxidize 

very rapidly, creating a light, and pyrite creates more light 

because it oxidizes very rapidly and dissipates faster and gives 

off a "more orange light". The resulting sparks, or "ring of 

460 
fire", is pyrite oxidizing very rapidly, and there will be more 

sparking when the water is cut down. There is no ignition, no 

fire, or any flame, and to anyone standing 10 to 30 feet away it 

would appear to be a "ball of fire" (Tr. 245). Once the machine 

is stopped, the sparks will end, and if the machine is started 

again, it will happen again. He believed it was impossible to 

have a coal dust ignition given the amount of methane present 

(Tr. 245). 

On cross-examination, Dr. Thakur stated that based on 

scientific opinion and research, it was his opinion that it is 

impossible to ignite coal dust py mechanical friction, and he 

explained what is necessary to ignite an airborne mass of coal 

dust (Tr. 246-248)0 He further stated as follows at (Tro 249)~ 

Q. You mean to tell me then that it is your position, when 

you heard these employees testify, that it was just some 

kind of sparkso 

A. There was all this sparking and because of a lack of 

water it became a very -- what should I say -- large number 

of particles were createdo They were all oxidizing very 

rapidly and they glowedo They created a source of lighto 

As I said, this was the mechanism they used in army days t.o 

light the mines. The people used to work in the light of 

the sparking wheels. 

Q. I know what you are saying about sparks and so forth. 

These people said they saw a flame. 

A. You also realize -- I don't want to put them down -- they had never seen a real ignition before. 

Q. But they have seen a flame before, have they not? I 

have seen a flame. 

A. Yes. But what they thoug:ti.17 was a flame, in my opinion, 

was not a flame. 

Dr. Thakur acknowledged that sparking is a potential source 

of ignition, and he cited a fatal incident in Nova Scotia caused 

by frictional ignition. However, he believed that the real 

ignition source in that event was the presence of a lot of 

methane and using mechanical means to cut the coal (Tr. 251). He 

believed that if there is no methane there will be no coal dust 

explosions, and he stated that "the only way they ever have coal 

dust explosion is if they were shooting coal or there was a freak 

of several methane explosions" (Tr. 253). Dr. Thakur concluded 

his testimony as follows at (Tr. 258-259): 

THE WITNESS: The only thing I would submit, Your 

Honor, to you is that if a mechanism is creating so-called 

461 
sparks, as soon as you stop that mechanism the sparks stop. 

That's not an ignition. 

For an ignition to be called an ignition, something has 

to be ignited, something which would sustain a visible flame 

for some duration of time, even it is five or ten seconds. 

I respectfully submit to you that what they saw was a 

big mechanical wheel cutting into pyrite, creating fine 

particles, and creating a lot of heat which oxidized those 

particles. They glowed, and they glowed like a ball of 

fire. 

The moment you stopped that machine the phenomenon 

ended. There was nothing ignited, and, thereforeq there was 

no ignition. I would have taken the same action as Mr. Dave 

Tonkin did if I were the mine superintendent. was not a 

reportable accidento 

Findings and Conclusions 

Fact of Violationo Citation Noa 3105295, 30 C.F.R. § 50.10 

Consol is charged with a violation of 30 CoFoR. § 50ol0; for 

failing to report the alleged ignition which the inspector 

believed occurred on February 1, 1991. Section 50.10 provides as 

follows: 

§ 50.19 Immediate notification 

If an accident occurs, an operator shall immediately 

contact the MSHA District or Subdistrict Off ice having 

jurisdiction over its mine. If an operator cannot contact 

the appropriate MSHA District or Subdistrict Office it shall 

immediately contact the MSHA Headquarters Off ice in 

Washington, DC by telephone, toll free (202) 783-5582. 

I take note of the fact that the citation issued by 

Inspector Young contains language which suggests that Consol was 

required to report the results of its investigation of the 

incident of February 1, 1991, to MSHA, and that it also failed to 

contact MSHA to obtain information to determine whether "the 

occurrence" needed to be reported. During the course of the 

hearing, Mr. Young testified that Consol was obliged to report 

"anything, regardless of what it was" (Tr. 36). However, 

contrary to the inspector's belief, Consol's only legal 

obligation pursuant to section 50.10, was to immediately report 

an "accident". The definition of an "accident" found at section 

50.2(h) (5), includes an unplanned ignition or explosion of gas or 

dust. The citation alleges that a dust ignition occurred on the 

11 left working section on February 1, 1991, and the issue 

presented is whether a coal dust ignition in fact occurred, or 

462 
whether the occurrence in question was something other than a 

reportable ignition. 

Neither the Act nor the regulations further define ignition. 

However, the Dictionary of Mining, Mineral, and Related Terms, 

U.S. Department of the Interior, 1968 Edition, provides the 

following relevant definitions: 

Ignition •...• The act of igniting, or the state of 

being ignited; An outburst or fire or 

an explosion. (Pg. 569). 

Coal mine 

ignition o The burning of gas and/or dust without 

evidence of violence from expansion of 

gases o (Pg. 2 2 5) . 

Webster 1 s Third New International Dictionary (Unabridged), 

provides the following relevant definitions: 

Ignite . . . . . To subject to fire or intense heat; to 

heat up; to catch fire; to begin to glow~ 

become luminescent. (Pg. 1125). 

Ignition .. o • The act or action of igniting; subjection 

to the action of fire or intense heat; 

setting fire. (Pg. 1125). 

Luminescence .. An emission of light that is not ascribable 

directly to incandescence and therefore 

occurs at low temperatures, that is produced 

by • . . friction, . . . by certain bodies 

while crystallizing. (Pg. 1345). 

(Similarly defined by the Mining Dictionary, 

at pgs. 662-663). 

Luminous . . • full of light; .. emitting or seeming to emit a 

steady suffused light that is reflected or 

produced from within. (Pg. 1345). 

Radiating or emitting light; bright; clear. 

(Mining Dictionary, at pg. 663). 

In support of its conclusion that an ignition in fact 

occurred on February 1, 1991, MSHA relies on the testimony of 

Inspector Young, including his report of investigation, and the 

testimony of the miners who witnessed the February 1, 1991, event 

and who were subpoenaed to testify at the hearing in this case. 

With regard to the investigation conducted by Mr. Young and 

Mr. Tulanowski, and the report which they prepared are concerned, 

as I noted in the course of the hearing, the investigation and 

the report leave much to be desired and are of little credible or 

evidentiary value (Tr. 43-47; 76-78; 150-153; 175-180). 

463 
The record reflects that the "statements" purportedly given 

to the inspectors during their investigation were in fact verbal 

summaries of the questions asked by Inspector Tulanowski and the 

responses recorded by Inspector Young as part of his investigative notes. However, the notes were not produced at the 

hearing and they are apparently lost and not available. Further, 

it would appear that none of the miner "statements" were reduced 

to writing or signed by the miners who purportedly gave them, 

they were not sworn, and I take note of the fact that the miners 

were interviewed in groups rather than individually and in 

private. One potentially critical witness (Foreman Gary Graham), 

who reportedly commented on February 1, 1991, that he smelled 

smoke when he arrived at the scene was not called to testify at 

the hearing, and although Mr. Graham was present during the 

interviews of February 4, 1991, Inspector Young confirmed that he 

was asked no questions (Tr. 217) o 

Mro Young confirmed that he and Inspector Tulanowski only 

prepared part of the report of investigation, and that the rest 

of the report was prepared by other unidentified MSHA officials. 

Mr. Young acknowledged that he and Mr. Tulanowski did not sign 

the report, and he could not state who initialed and signed the 

report over their typewritten names. Although the name nnavid N. 

Wolfe" appears over Mr. Young 1 s typed name, Mr. Young confirmed 

that he did not know Mr. Wolfe (Tr. 43). Mr. Young also did not 

know who changed pg. 3 of the report by scratching through the 

word "methane" and inserting "frictional dust", and he believed 

the change was made to correct a typographical error. 

Three eyewitnesses to the incident of February 1, 1991, gave 

rather graphic and detailed sworn testimony as to what they 

observed. Continuous miner operator Parker, who has worked for 

Consol for 19 years, and roof bolter Hayes, with 18 years of 

experience in the mines, testified that they observed a flame 

from the miner machine head travel up to the roof and roll back 

over the machine before it extinguished itself. Mr. Parker was 

operating the machine and Mr. Hayes was standing to the front of 

Mr. Parker, approximately 12 feet from the miner head. 

Mr. Parker recorded his observation in his personal notes made 5 

or 10 minutes after the event, and while the notes do not mention 

any "flames rolling back" they do mention an "orange and yellow 

ball of fire" lasting 3 to 5 seconds, and Mr. Parker explained 

that the flames he saw resembled a "ball of fire" as they rolled 

back and that is why he characterized it as such in his notes. 

Further, Mr. Parker and Mr. Hayes, both of whom had previously 

observed sparks and sparking in their mining experience, denied 

that what they actually saw were sparks, and they were rather 

emphatic that they observed a flame, and their testimony in this 

regard remained consistent when later recalled by the court in 

the course of the hearing. 

464 
Roof bolter David Moore, with 18 years of mining experience, 

testified consistently on direct and on recall by the court that 

after sticking his head around the corner of the entry to get 

some fresh air he turned around and saw a flame travel up the 

coal rib from the head of the miner machine, and he described the 

flame as bright orange and yellow. He also stated that he could 

feel the heat. Mr. Moore, Mr. Parker, and Mr. Hayes all insisted 

that during management's inquiry on February 1, 1991, they told 

Mr. Tonkin that they had seen a flame. Mr. Tonkin confirmed that 

he made no notes of the discussions with the crew and he 

apparently did not prepare any report of his inquiry. He 

testified that the three miners told him they saw "a fireballn 

near the bits of the miner machine, and he confirmed that the 

three miners told the MSHA inspectors on February 4v 1991v that 

they had seen flames (Tr. 194). 

In support of its conclusion that what the miners actually 

saw on February 1, 1991, was not a flame or an ignitionv but 

sparking which often occurs when the bits of the miner machine 

strike sulfur or pyrite while mining with insufficient water in 

the machine, Consol relies on the eyewitness testimony of 

longwall foreman Kevin Carter, section foreman Robert Wolfe, and 

its expert witness and employee Dr~ Thakur, Consol also relies on 

the testimony of Mr. Tonkin and Mr. Oldaker, the management 

officials who conducted the inquiry of February 1, 1991. 

Mr. Carter testified that he saw "just a glow near the bits" 

of the miner machine, but he acknowledged that "whatever" he saw 

was brief, that he was looking in several different directions in 

response to the yelling by crew members, and that he was 

positioned at the rear of the miner looking away from the face, 

and that he did not actually see what had happened. Mr. Carter 

also confirmed that at the time of the incident, Mr. Hayes and 

Mr. Moore told him that they saw fire on the left side of the 

miner at the bits, and he believed that the miners told the MSHA 

inspectors that they saw flames. Mr. Carter acknowledged that 

given their long years of experience in the mines, and the fact· 

that sparking and glowing is not particularly unusual, the miners 

saw "something more than they had seen before or they would not 

have panicked" (Tr. 159). 

Mr. Wolfe testified that he saw no flames, and it was his 

opinion that what the crew actually saw was an unusual sparking 

event caused by the miner bits striking pyrite. He believed that 

the lack of water in the machine caused unusual sparking which he 

characterized as "a ball of sulphur gas sparks" (Tr. 168). 

Mr. Wolfe further testified that at the time Mr. Tonkin spoke 

with the crew on February 1, 1991, no one said anything about 

seeing any flame. Mr. Wolfe denied that he ever made any 

statements to anyone that he saw flames. However, in response to 

a question from the court concerning the information at page 3 of 

the MSHA report of investigation which states that he "observed 

465 
an orange flame measuring approximately 3 feet tall and 6 feet 

wide, at the miner ripper head", Mr. Wolfe stated that based on 

his own mining terminology, an orange flame is the same as a 

spark (Tr. 176). 

Mr. Tonkin did not witness the event of February 1, 1991. 

Mr. Tonkin was summoned to the area by Mr. Graham who told him 

that "they might have had an ignition". Upon arriving at the 

scene, Mr. Tonkin found no physical evidence such as soot, 

cinders, or ash. Based on his discussions with the crew, 

including statements by Mr. Hayes and Mr. Moore that they saw 0 a 

fireball at the bits of the miner", Mr. Tonkin concluded that an 

ignition had not occurred, and that the crew had only observed uia 

ball of fire". Mr. Tonkin conceded that Mr. Parker may have seen 

a flame, but he insisted that none of the miners told him that 

they saw any flames. Mr. Tonkin stated that he would consider a 

flame to be an ignition, but that based on the terminology that 

he used to, a ball of fire that is caused by sulfur is not 

classified as an ignition (Tr. 195). 

Mr. Oldaker did not witness the event, and he was summoned 

to the area by a telephone caller who informed him of uia possible 

ignitionn. Mr. Oldaker saw no evidence of any ignition 1 and 

while he was present during the MSHA interviews with the crew, he 

confirmed that he did not sit in on any of the "testimony u and 

may have been in and out of the room. He denied hearing anyone 

say anything about the presence of flames, and his conclusion 

that everyone saw "a ball of fire" was based "more or less" on 

what he believed was a consensus view of the crew. 

Dr. Thakur agreed that a visible flame would indicate that 

an ignition has occurred, and he confirmed that given the right 

concentration, temperature, and energy input, a mixture of coal 

dust and air will ignite. However, based on the testimony of the 

witnesses, he did not believe that an ignition occurred. He 

concluded that the employees saw sparks or a ball of fire created 

by the miner bits cutting into ~yrit~. This produced a lot of 

heat which oxidized the fine pyrite particles, and which resulted 

in a glow and the creation of a source of light. Dr. Thakur 

further concluded that it was impossible to ignite coal dust and 

air mixtures with mechanical friction. 

Although it may be true that the subpoenaed miners who 

testified under oath during the hearing disclosed more than what 

they may have previously stated to Mr. Tonkin, I find no reason 

for disbelieving their testimony. Mr. Tonkin confirmed that he 

got along well with the miners, and although he suggested that 

the union safety committee may have put pressure on them to 

embellish their stories because the committee did not get along 

with management, I find no credible evidence to support any such 

conclusion. 

466 
Although Mr. Tonkin impressed me as a candid and credible 

individual, and Inspector Young believed him to be a truthful 

person, it would appear to me that the "investigation" conducted 

by Mr. Tonkin on February 1, 1991, was more of a group discussion 

and rather cursory, and he took no notes and prepared no written 

report of what may have been said. Under the circumstances, I do 

not find it unusual that critical facts remain unresolved and 

undocumented, and that individual perceptions and recollections 

as what may have been said has changed over time. Nor do I find 

it unusual that miners subjected to a management inquiry, and in 

the presence of foreman and other management officials, sometimes 

have a tendency to remain noncommittal, particularly when they 

are not placed under oath and are not called upon to testify in a 

formal hearing away from their working mine environment. 

After careful review and consideration of all of the 

testimony in this case, and having viewed all of the witnesses 

during the course of the hearing, I conclude and find that 

Mr. Parker, Mr. Hayes, and Mr. Moore are credible witnesses and I 

believe their testimony that they observed a flame of rather 

short duration coming from the miner machine bits at the head of 

the machine and rolling up and over the machine. Their 

description of the flame is consistent with the aforementioned 

dictionary definitions of the terms 11 ignite 11 and 19 ignitionH ~ and 

I do not find their testimony to be in conflict with the 

testimony of Mr. Tonkin, who confirmed that the presence of a 

flame is in fact an ignition, and the testimony of Dr. Thakur, 

who testified that a visible flame would indicate that an 

ignition has occurred. 

Although I find Dr. Thakur to be a knowledgeable and 

credible individual, his opinion that an ignition did not occur 

was based on his belief that what the miner eyewitnesses saw was 

"some kind of sparks" which they thought was a flame, rather than 

on his personal observation of the same event. Dr. Thakur 

acknowledged that a spark was a potential source of ignition, and 

his testimony that sparking caused :p_y rapid oxidizing and a lack 

of water would create a "source of light", or heat, and a glow 

which would appear "like a ball of fire" are characteristics 

similar in some respects to those found in the dictionary 

definitions of an ignition. 

Although Dr. Thakur initially stated that it was impossible 

to ignite coal dust by mechanical friction, he later confirmed 

that he was familiar with accidents and explosions that have 

occurred because of frictional dust ignitions (Tr. 251). 

Further, although Dr. Thakur stated that "there's no way you can 

have a sustaining visible flame to qualify as an ignition and go 

away in three seconds" (Tr. 241), he later testified that ''for an 

ignition to be called an ignition, something has to be ignited, 

something which would sustain a visible flame for some duration 

of time, even if it is five or ten seconds" (Tr. 259). Under all 

46 7 
of these circumstances, I remain unconvinced that frictional coal 

dust ignitions are impossible under any and all circumstances. 

In any event, the issue here is whether or not the testimony of 

the eyewitness miners is credible and supports any reasonable 

conclusion that what they saw of February 1, 1991, was a flame, 

and whether or not that flame was a coal dust ignition which was 

required to be immediately reported to MSHA pursuant to 30 C.F.R. 

§ 50.10. I have concluded and found that what the miners 

observed was a flame. I further conclude and find that the flame 

which they observed constituted an unplanned coal dust ignition 

which was required to be immediately reportedo Accordingly, 

since it was not reported to MSHA, a violation has been 

established and the citation IS AFFIRMED. 

Fact of Violationo Citation Noo 3105296, 30 CoFoRo § 50ol2o 

Consol is charged here with a violation of section 50ol2 9 

because it permitted mining to continue after the occurrence of 

the ignition on February 1, 1991, and failed to obtain MSHAis 

permission before disturbing or changing the area where the 

ignition occurredo Section 50.12, provides as follows~ 

§ 50ol2 Preservation of evidenceo 

Unless granted permission by a MSHA District Manager or 

Subdistrict Manager, no operator may alter an accident 

site or an accident related area until completion of 

all investigations pertaining to the accident except to 

the extent necessary to rescue or recover an 

individual, prevent or eliminate an imminent danger, or 

prevent destruction of mining equipment. 

Consol does not dispute the fact that after the conclusion 

of Mr. Tonkin's inquiry on February 1, 1991, mining was allowed 

to continue and the miner machine was advanced past the area 

where the ignition had occurred and the area was cleaned up and 

rock dusted. The record reflects that when foreman Graham 

initially arrived at the scene, he ordered all mining to cease 

and that nothing be disturbed until Mr. Tonkin arrived. 

Mr. Tonkin subsequently permitted mining to continue after he 

concluded from his discussions with the crew that an ignition did 

not occur. Mr. Tonkin maintained that no one initially mentioned 

that they had seen any flame, and coupled with the lack of any 

physical evidence of any ignition, he made the decision that a 

reportable accident (unplanned coal dust ignition) did not occur 

and that the incident was not required to be reported. Under 

these circumstances, he allowed mining to continue. 

In view of my finding that a reportable accident (unplanned 

coal dust ignition) occurred and was not immediately reported to 

MSHA, I further conclude that Consol's continuation of mining, 

which resulted in the alteration of the scene of the ignition 

468 
without MSHA's permission, constitutes a violation of 

section 50.12. Although it is true that foreman Graham acted 

promptly by discontinuing any further mining and preserving the 

scene until Mr. Tonkin's arrival, and Mr. Tonkin may have in good 

faith believed that an ignition had not occurred, I conclude that 

these factors may be considered in mitigation of the violation, 

but may not serve as an absolute defense to the violation. Under 

the circumstances, I conclude and find that a violation has been 

established, and the citation IS AFFIRMED. 

Size of Business and Effect of ·civil Penalty Assessments on the 

Respondent's Ability to Continue in Business 

I adopt as my findings the stipulations by the parties that 

Consol is a large mine operator and that the payment of civil 

penalty assessments for the violations in question will not 

adversely affect its ability to continue in business. 

History of Prior Violations 

An MSHA computer print-out listing Consol's history of prior 

violations for the period August 23 1 1989 9 through August 22, 

1991, reflects civil penalty payments in the amount of $221, 247, 

for 797 violations. One prior single penalty assessment of $20 

for a violation of 30 C.F.R. § 50.10, issued on September 19, 

1989, is included in this history. MSHA's pleadings reflect that 

Consol's overall annual coal production for civil penalty 

assessment purposes was 49,368,060 tons, and that the Robinson 

Run No. 95 Mine had an annual production of 1,856,689 tons. 

Although I cannot conclude that Consol's history of prior 

violations is particularly good, for an operation of its size, I 

cannot conclude that additional increases in the civil penalty 

assessments that I have made for the two violations which have 

been affirmed, are warranted. However, I have considered the 

history, as well as the other penalty criteria, in assessing the 

penalties for the violations. 

Good Faith Compliance 

The parties stipulated that Consol abated the violations in 

good faith. The record reflects that corrective action was 

immediately taken and that the inspector terminated the citations 

within an hour after they were issued. Under the circumstances, 

I conclude and find that Consol exercised rapid good faith 

compliance in correcting the cited conditions and I have taken 

this into consideration. 

Gravity 

The inspector found that both violations were not 

significant and substantial. The evidence establishes that no 

significant amounts of methane were present and that the area 

469 
where mining was taking place was in good condition. Further, 

the flame in question only lasted for approximately three seconds 

and there were no injuries. Although these factors concerning 

the prevailing mining conditions mitigate the gravity of the 

violations, I nonetheless conclude that the failure to report an 

ignition and to allow mining to continue without notice to MSHA 

and without its approval are serious violations. 

Negligence 

The inspector found that the violations resulted from a 

"high" degree of negligence, and he based these findings on his 

belief that mine management made no effort to contact MSHA for 

the purpose of reporting the incident or seeking information as 

to how to proceed further (Tr. 22-23). 

Taking into account Mr. Tonkin 9 s denials that the miners 

specifically told him that they had seen flames when he initial 

spoke to them on February 1, 1991, I nonetheless find that all of 

the indicia of a reportable ignition were present when Mr. Tonkin 

came to the opposite conclusion. Mr. Tonkin conceded that the 

miners told him that they had seen a ball of fire. Foreman 

Carter confirmed that at the time of the incident he was told 

miners Hayes and Moore that they saw fire at the left side of the 

miner machine bits, and Mr. Carter himself testified that he had 

briefly observed a glow. Foreman Wolfe, who claimed that what 

the crew saw was sparks, was of the view that a spark was the 

same thing as a flame, an he did not deny the statement 

attributed to him in MSHA's accident report which indicates that 

he saw an "orange flame". Mr. Tonkin agreed that if a flame were 

indeed present, an ignition occurred. Under all of these 

circumstances, I conclude that Mr. Tonkin acted less than 

reasonable when he based his conclusion that an ignition had not 

occurred solely on the fact that the miners may not have 

specifically informed him that they had observed a flame. I 

further conclude and find that the failure by mine management to 

immediately report the matter to MSHA and to preserve the scene 

until MSHA could look into the situation supports the inspector's 

high negligence findings and they ARE AFFIRMED. 

Civil Penalty Assessments 

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 the 

following civil penalty assessments are reasonable and 

appropriate for the violations which have been affirmed: 

Citation No. 

3105295 

3105296 

2/4/91 

2/4/91 

30 C.F.R. Section 

50.10 

50.12 

470 

Assessment 

$500 

$350 
ORDER 

Docket Nos. WEVA 91-166-R and WEVA 91-167-R 

Consol's contests are DENIED and DISMISSED. 

Docket No. WEVA 92-177 

Consol IS ORDERED to pay civil penalty assessments in the 

amounts shown above for the two citations which have been 

affirmed. Payment is to made to MSHA within thirty (30) days of 

the date of this decision and order" 

My previous Stay Order of February 4, 1992, staying 

excessive history section 104(a) Citation No. 3102243, August 22, 

1991, 30 C.F.R. § 75.400, remains in effect and the citation IS 

STAYED pending the Commission's decisions in Drummond Coal Co., 

Inc., 13 FMSHRC 339, and 13 FMSHRC 356 (March 1991) 1 and Zeigler 

Coal Company, 13 FMSHRC 367 (March 1991)" 

$~~~ Administrative Law Judge 

Distribution: 

Walter J. Scheller, Esq., Consolidation Coal Company, 

1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

Wanda M. Johnson, Esq., Office of the Solicitor, U.S. Department 

of Labor, Suite 516, Ballston Towers #3, 4015 Wilson Boulevard, 

Arlington, VA 22203 (Certified Mail) 

/ml 

471 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 101992 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CHARLES E. CARPENTER, 

Employed by 

ISLAND CREEK COAL COMPANY, 

Respondent 

Docket No. WEVA 91-1801 

A.C. No. 46-05480-03815 A 

Dobbin Mine 

DECISION APPROVING SE'IT.LEMENT 

Appearances: 

Before: 

Edward H. Fitch, Esq.p Office of the Solicitor, 

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

the Petitioner; 

Paul J. Harris, Esq,. Wallace, Ross & Harris, 

Elkins, West Virginia, for the Respondent. 

Judge Melick 

This case is before me upon a petition for assessment of 

civil penalty under Section llO(c) of the Federal Mine Safety and 

Health Act of 1977 (the Act). The petition had previously been 

modified by the Secretary's withdrawal of charges against 

Mr. Carpenter under Order No. 3111274. At hearings on the 

remaining charges under Order No. 3111276, the Secretary filed a 

motion to approve a settlement agreement and to dismiss the case. 

A reduction in penalty from $1,200 to $350 was proposed. I have 

considered the representations and documentation submitted in 

this case, and I conclude that the proffered settlement is 

appropriate under the relevant criteria set forth in Section 

110(i) of the Act. 

WHEREFORE, the motion for approval of settlement is GRANTED, 

and it is ORDERED that Respondent pay a penalty of $350. Payment 

shall be made in monthly installments of $50 comme cing April 1, 

1992. i I 

I A /, 

I / .LI 1l 1 i t ! 

G~ry M1 'bk / 

A{iminiff rative taw 

( 

{' •, 

" 

472 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

SECRETARY OF LABOR, MSHA, 

on behalf of 

ROBERT W. BUELKE, 

Applicant 

Vo 

SANTA FE PACIFIC GOLD 

CORPORATION, 

Respondent 

DENVER, CO 80204 

MAR 1t1992 

. . 

. . 

DISCRIMINATION PROCEEDING 

Docket No. WEST 92-243-DM 

WE MD 91-15 

Rabbit Creek Mine 

DECISION 

AND 

ORDER OF TEMPORARY REINSTATEMENT 

Appearances~ Gretchen M. Lucken 0 Esq. u Office of the Solicitoru 

UoSo Department of Labor 0 Arlington0 Virginiav 

for A.pplican t; 

Charles w. Newcomb, Esq., Denver, Colorado, 

for Respondent. 

Before: Judge Cetti 

This discrimination proceeding arises under the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. § 801 et~ (1988) 

( 11 Mine Act"). Section 105(c} of the Mine Act, 30 U .s.c. § 815(c) 

{1988), prohibits operators of mines from discharging or otherwise discriminating against a miner who has filed a complaint 

alleging safety or health violations at a mine. If a miner believes that he has been discharged .. i.n violation of this section, 

he may file a complaint with the Secretary of Labor ("Secretary"), who is required to initiate a prompt investigation of the 

alleged viola ti on. If the Secretary finds that the miner's complaint was "not frivolously brought, 11 she must apply to the Federal Mine Safety and Health Review Commission ("Commission") for 

an order temporarily reinstating the miner to his job, pending a 

final order on the complaint. The Commission is required to 

grant such an order if it finds that the statutory standard has 

been met. 

Al though the Act does not ra:;ruire a hearing on the Secretary 1 s application for temporary reinstatement, the Commission's 

regulations provide an opportunity for a hearing upon ra:;ruest of 

a mine operator, prior to the entry of a reinstatement order. 

See 29 C.F.R. § 2700.44(b) (1990). The scope of such a hearing 

473 
is limited to a determination by the Administrative Law Judge "as 

to whether the miner's complaint is frivolously brought," with 

the Secretary bearing the burden of proof on this standard. 

Factual and Procedural Background 

On February 7, 1992, the Secretary pursuant to Section 

105(c) (2) of the Mine Act and Commission Rule 29 C.F.R. 

§ 2700.44(a), filed an application for an order requiring Respondent, Santa Fe Pacific Gold Corporation ("Pacific Gold") v to 

temporarily reinstate Robert W. Buelke to his job as an electrician at Pacific Gold, Rabbit Creek Mine from which he was discharged July 1, 1991. 

On August 6v 199lv Mro Buelke filed his discrimination complaint with MSHA at the Reno tield otfice. His complaint in part 

reads as follows: 

Io Have worked as a mine electrician approximately 15 yearso Resume Attachedo 

IIo Have had numerous encounters with supervisors in trying to get electrical installations done correctly, or repaired correctly; 

have tried to get them taken care of "in 

house", written a couple of letters/reports 

of concern, and have been put down and fired 

mainly because of these -- see attached letter. 

If you need any additional information, please 

feel free to contact me. 

Thank you for your concern, time and consideration. 

cc: Perry Tenbrink 

Ray Nicholson 

Sincerely, 

/s/ 

Robert w. Buelke 

The application for temporary reinstatement states that the 

Secretary has determined that the Respondent's discharge of 

Robert W. Buelke was motivated by his protected safety activity 

and that this constitutes an act of illegal discrimination which 

4 74 
provided the basis for a non-frivolous cause of action under Section 105(c)(2) of the Act. Attached to the application is an 

affidavit setting forth the factual basis for the Secretary's 

determination. 

The affidavit reads as follows: 

AFFIDAVIT 

James E. Belcher, being duly sworn, deposes 

and states: 

1. I am the Chief, Office of Technical Compliance and Investigation Division, Metal and 

Nonmetal Safety and Health" 

2. I am responsible for reviewing discrimination complaints filed pursuant to the Federal Mine Safety and Health Act of 1977 C"the 

Mine Act")" I have reviewed the special investigation file in the above-captioned case. 

3. My review of the investigative file disclosed the following facts: 

a. At all relevant times, Respondent, 

Santa Fe Pacific Gold Corporation, engaged in 

the production of gold and is therefore an 

operator within the meaning of Section 3(d) 

of the Mine Act; 

b. At all relevant times, Applicant, 

Robert W. Buelke, was employed by Respondent 

as an electrician and was a miner as defined 

by Section 3 (g) of the Mine Act; 

c. Rabbit Creek Mine, located near 

Winnemucca, Humboldt County, Nevada, is a mine 

as defined by Section 3 ( h) of the Mine Act, the 

products of which affect interstate commerce; 

d. The alleged act of discrimination 

occurred on July 1, 1991, when Applicant 

Robert w. Buelke was discharged by Perry 

Tenbrink, f.bintenance Supervisor; 

e. Applicant Buelke engaged in protected activity by making numerous safety com475 
plaints to managanent concerning electrical 

equipment and by submitting letters to Mine 

Manager Michael Surratt on January 23, and 

May 13, 1991. The letters detailed safety complaints by Buelke concerning electrical e:;i:uipment; 

f. The letters concerning safety complaints were received with hostility. Buelke 

was told that he had no business writing letters to mine managemento Buelke 9 s supervisors 

became hostile in tone and work assignments 

after the letters were submitted~ 

g. On May 29 0 1991 0 Buelke was given 

a step one disciplinary notice allegedly for 

failing to correct an electrical grounding problem in a timely manner. 

h. The Respondent 1 s articulated basis 

for the May 29 0 1991 0 disciplinary action was 

pretextual. 

i. On July 1, 1991, having been absent for one week due to legitimate illness, 

Buelke received three disciplinary notices for 

violation of the one hour rule which req:uires 

employees to call in sick at least one hour 

prior to the start of the shift. 

j. Buelke suffered disparate treatment, as other anployees violated the one hour 

rule and received no disciplinary action or 

less severe action. 

4. In view of the foregoing facts, I have 

determined that the Applicant Robert W. Buelke 

was discharged for engaging in protected safety 

activity and the complaint filed by him is not 

frivolous. 

/s/ 

James E. Belcher 

Taken, subscribed and sworn before me this 

3rd day of February, 1992. 

4 76 

catherine L. Falarko 

Notary Public 
Stipulations 

1. Jurisdiction of this action is conferred upon the Federal Mine Safety and Health Review Commission pursuant to Section 

113 of the Act 1 3 0 U • S • C • 8 2 3 . 

2. This action is brought by the Secretary of Labor (Secretary) pursuant to authority granted by Section 105(c)(2) of the 

Act, 30 U.S.C. 815(c) (2). 

3. The Administrative Law Judge has jurisdiction to hear 

and decide this mattero 

4. At all relevant times hereinafter mentionedp Respondent 

Santa Fe Pacific Gold Corporation, a New Jersey corporationu 

authorized to do business in Nevada operated the Rabbit Creek 

Mine in the production of gold and is therefore an ~'opera tor 11 as 

defined by Section 3(d) of the Act, 30 u.s.c. 802(d). 

5. Respondent's Rabbit Creek Mine, located in or near 

Winnemucca, Humboldt County, Nevadav is a surface metal minev the 

products of which enter commerce within the meaning of Sections 

3(b}, 3(h} 17 and 4 of the Actv 30 UoS,,Co 802(b), 802(h)v and 8030 

6. At all relevant times, Complainant Robert W. Buelke, was 

employed by Respondent as an electrician and was a miner as defined by Section 3(g) of the Act, 30 u.s.c. 802(g). 

7. Buelke was employed as an electrician at the Rabbit 

Creek Mine from June 6, 1990, until his discharge on July 1, 

1991. 

8. At all relevant times hereinafter mentioned, Perry 

Tenbrink was maintenance supervisor for the Respondent at the 

Rabbit Creek Mine and as such supervised miners a.uployed at the 

mine. Mr. Buelke was discharged by~maintenance supervisor Perry 

Tenbrink on July 1, 1991. 

Applicant's Evidence 

Mr. Buelke testified that he was concerned about employee 

safety; that he made numerous safety complaints to management 

concerning electrical e::;iuipment. He wrote two letters detailing 

safety complaints, to the mine manager, Mr. Surratt. 'lbe first 

letter dated January 23, 1991, a memorandum with the heading 

Internal Correspondence, reads as follows: 

477 
Whereas I"m the only MSHA Electrician on the 

Rabbit Creek Mine Site, and not in a position 

to advise, design, or change many of the electrical installations here, I would appreciate 

your naming someone who is responsible and liable for all electrical installations, and operations. Under MSHA regulations, and being a carded MSHA electrician, I automatically become totally liable for all electrical installations, 

and operations should there be any violations of 

the codes or accidents, unless I have a written 

notice from you relieving me of this responsibility and specifically naming someone else0 

Since this mine has been in operation for 6 

months and turned over from the constractor to 

Rabbit Creek and we are now coming under full 

MSHA jurisdiction, I'm obligated as a MSHA 

electrician to shut down and tag out (until 

corrected) any electrical equipment that is in 

violation of the code and/or a safety hazardo 

I would appreciate a reply before February l v 

1991 thereafter I will be obligated to carry out 

my duties. 

Mr. Buelke's second letter, addressed to David Wolfe, the 

Head of the Safety Department, dated Ma.y 13, 1991 reads as 

fallows: 

Whereas it has been a very busy time since 

our last meeting, around the first of March, 

with off site schools, new used trucks, a new 

P&H shovel, and general maintenance on the 

rest of our fleet, I regret that I have not 

been able to get a list of, electricial (sic) 

problem areas, to your attention, before this 

time. I have decided, due to my limited time 

available to research and verify each problem, 

that I will try to get a list of three problems 

to you each month, for you to get corrected or 

verified. 

The following three i terns are sul:xni tted for 

your verification and corrective action this 

month: 

478 
1. The need for a static ground line on the 

34,500 volt pit-shovel supply line for the 

following reasons: 

a. Common safety practive. (sic) 

b. Required by MSHA in all mines (metal 

or non-metal) and strictly enforced in th~ 

Midwest - even the iron mines. 

c. Falls under the N.E.C. Section 250 on 

grounding as high-lited on attached copies. 

2. The need to correct the Main 375Kw/480v 

Pit Generator feed for the following reasonsg 

a. The generator output leads have been 

changed and no longer meet code Section 445; 

high-lited. 

b. A second branch circuit is req:uired 

to protect the 2/0 pump cable Section 240u 

high-lited. 

c. Pump must be additionally (separtly) 

(sic) grounded or cable must be provided with 

ground check monitor, Section 250. 

3. The need to correct the new 4160/480 volt 

pit-pump transformer/distribution panel (located on the lower hopper level) for the following 

reasons: 

a. All service panels over 1000 amp must 

be protected with Ground.Fault Interupter breaker, Section 230 and 240, high-lited. 

b. A main disconnect means shall be provided on all service panels over 6 circuits 

(present 7 - and has additional spaces available), Section 230. 

If you need any additional information, please 

feel free to contact me. 

'!bank you for your concern, time, and consideration. 

4 79 
Mr. Buelke also testified that his concern for enployee 

safety from electrical hazards due to improper grounding of the 

substation, led him to tag a.it the substation on May 14, 1991, 

and again on May 20, 1991. He stated that the improper grounding 

could result in serious injury or death. 

It is Applicant's position that Pacific Gold took adverse 

action against Mr. Buelke in the form of disciplinary notices and 

the July 1, 1991, discharge. On May 29, 1991, Mr. Buelke received a step-one disciplinary notice allegedly for failure to correct a grounding problen on the substation in a timely manner 

while time permitted. The electrical log book entries, and the 

testimony of Mr. Buelke and Mr. Brabank indicated that Mr. Buelke1s actions were consistent with good practice and that 

Mr. Buelke acted diligently and responsibly with regard to the 

substation. The Applicant contends that the May 29u 199lv disciplinary notice was pretextual, and that Mr. Buelke was in fact 

punished for engaging in protected safety activity, including his 

previous safety complaints and tagging out the substation to ensure proper grounding on May 20v 1991. 

Testimony was presented at the hearing that tended to show 

that Mr. Buelke has a good work record and has never been disciplined in any way prior to May 29, 1991, concerning performance of 

his duties. Mr. Buelke has on occasion been called out to perform electrical work that more senior electricians could not 

perform. 

Mr. Buelke received three consecutive disciplinary notices 

on July 1, 1991, for failure to report off sick prior to one hour 

before the start of the shift, which allegedly formed the basis 

for his discharge. Mr. Buelke testified as to matters that appear to be mitigating circumstances. Evidence and arguments were 

presented to show that other employees violated the one hour rule 

and received no or less severe disciplinary action. 'lbe evidence 

shows that Mr. Buelke received the three disciplinary notices on 

the same day without any verbal warning or discussion, after returning from a legitimate illness of which the compnay was aware. 

The evidence indicated that Mr. Buelke had no history of lateness 

or absenteeism and had never been disciplined in any way for attendance problems prior to July 1, 1991, the date of his 

discharge. 

Special Investigator David Brabank, Western District, MSHA, 

testified concerning the conduct of the 105(c) investigation, 

including the purpose and scope of the investigation. Mr. Brabank testified as to information he obtained with respect to 

disparate treatment in the enforcement of the one hour reporting 

480 
rule. Mr. Brabank testified as to why in his opinion, based on 

the special investigation, the complaint is non-frivolous. 

Respondent's Position 

Respondent's position broadly stated is that Mr. Buelke did 

not engage in protected activity and adverse actions taken 

against him were not motivated by that activity and in any event 

Mr. Buelke's job-related misconduct warranted the termination of 

his employment under company policies. 

Respondent asserts that Mr. Buelke was properly discharged 

for receiving two or more disciplinary notices within 12 months 

in accordance with company policy. 

Conclusion 

At the conclusion of the hearing in this matter on February 27u 1992 1 after reviewing all the evidence and arguments 

presentede I ruled from the bench that the Secretary had made a 

sufficient showing and I granted the application for an Order of 

Temporary Reinstatement. I hereby affirm in writing the oral 

ruling made from the bench. The bench order orally issued 

February 27, 1992, was substantially as follows: 

ORDER 

My ruling in this matter is limited to the single issue of 

whether Mr. Buelke's application for temporary reinstatement is 

frivolously brought. I heard the testimony of only two witnesses, both presented by the Solicitor. I see no reason to doubt 

their credibility. Evaluated against the "not frivolously 

brought" standard, I conclude that the Secretary has made a 

sufficient showing of the elements of a complaint under Section 

105Cc) of the Act. Theretore, the application for an Order of 

Temporary Reinstatero.ent of Robert W. Buelke is GRANTED. 

Respondent is ORDERED to immediately reinstate 

Mr. Buelke to his position as electrician from which position he 

was discharged, at the same rate of pay, and with the same or 

equivalent duties assigned to him immediately prior to his 

discharge. 

As previously stated the scope of this temporary reinstatement hearing is limited to my determination as to whether 

Mr. Buelke's discrimination complaint is frivolously brought. 

The Respondent will have a full opportunity to respond, and the 

parties will be afforded an opportunity to be heard on the merits 

481 
of the discrimination complaint filed. The parties will be notified as to the time and place of any hearing requested on the 

discrimination complaint. 

Distribution: 

Aug t F. Cetti 

Administrative Law Judge 

Gretchen M. Lucken, Esq., Office of the Solicitor, u.s. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

(Certified Mail) 

Robert w. Buelke, 7110 Stratus, Winnemucca, NV 89445 

C Certified Mail) 

Charles w. Newcomb, Esq., SHERMAN & HOWARD, 633 17th Street, 

Suite 3000, Denver, CO 80202 (Certified Mail) 

sh 

482 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 111992 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANYu 

Respondent 

DECISION 

CIVIL PENALTY PROCEEDINGS 

Docket Noo WEVA 91-303 

A. C. No. 46-01453-03949 

Docket No. WEVA 91-353 

A. C. No. 46-01453-03950 

Docket No. WEVA 91-1028 

A. C. No. 46-01453-03953 

Humphrey No. 7 Mine 

Docket No. WEVA 91-305 

A. C. No. 46-01436-03840 

Shoemaker Mine 

Docket No. WEVA 91-1033 

A. C. No. 46-01867-03886 

Blacksville No. 1 Mine 

Appearances: Patrick L. DePace, Esq., Office of the Solicitor, 

u. s. Department of Labor, Arlington, Virginia, 

for the Petitioner; 

Walter J. Scheller, Esq., Consolidation Coal 

Company, Pittsburgh, Pennsylvania, for the 

Respondent. 

Before: Judge Maurer 

At the hearing of these cases, which was held on November 13 

and 14, 1991, in Morgantown, West Virginia, the parties jointly 

moved for approval of their settlement of certain portions of the 

captioned matters. And subsequently, the Secretary on 

January 16, 1992, filed a Motion to Approve Settlement in Docket 

No. WEVA 91-1033 in its entirety. 

Docket No. WEVA 91-303 involves a single section 104(d) (2) 

order, Order No. 3314158. An oral motion was presented on the 

record requesting approval of a reduction in the proposed civil 

483 
penalty from $1000 to $900, and a request to modify the order to 

a section 104(a) citation as well as reducing the negligence 

factor to "moderate." I granted the motion on the record. 

Docket No. WEVA 91-305 involves a single section 104(a) 

citation, Citation No. 3327217. Respondent agreed to pay the 

full amount of the proposed civil penalty, i.e., $311. I granted 

the motion to approve settlement on the record. 

Docket No. WEVA 91-1028 involves two section 104(a) 

citations, Citation Nos. 3308260 and 3307302. An oral motion was 

presented on the record requesting approval of a reduction in the 

civil penalty proposed for each citation from $259 to $155 as 

well as modification of each of the citations to nonsignificant 

and substantial violations. I granted the motion on the record. 

Docket No. WEVA 91-353 involves six section 104(a) 

citations, Nos. 3308250, 3327724, 3308251 3307317; 3307306u and 

3327732. At the hearing, settlement motions were presented with 

regard to five of these six. In regard to Citation No. 3308250, 

a motion was made requesting approval of a reduction in the civil 

penalty from $259 to $155 and modification to a nonsignificant 

and substantial violation. With regard to Citation No. 3327724, 

respondent agreed to pay the full amount of the proposed civil 

penalty, $192. A motion was made concerning Citation Nos. 

3308251 and 3307317, requesting approval of a reduction in the 

civil penalty proposed for each citation from $259 to $155 as 

well as modification of each of the citations to nonsignif icant 

and substantial violations. In regard to Citation No. 3307306, a 

motion was made requesting approval of the respondent's agreement 

to pay $192 of the proposed penalty of $259 as well as requesting 

an order modifying the citation to reflect a "low" degree of 

negligence on the part of respondent. I granted the motions 

concerning these five citations on the record. Citation No. 

3327732 remained for trial, and in that regard, the operator 

stipulated to the fact of violation, but disputes the "S&S" 

finding and of course, the assessed penalty. 

At hearing, there were two citations and an order still in 

dispute. As noted previously, in Docket No. WEVA 91-353, 

section 104(a) citation No. 3327732 remained in dispute and in 

Docket No. WEVA 91-1033, section 104(d) (2) Order No. 3314086 and 

section 104(a) Citation No. 3314087 remained in dispute. Testimony was heard in regard to each of these on November 13 and 14, 

1991. Following the conclusion of the testimony on November 14, 

respondent had not yet fully presented its defense for the two 

violations at issue in Docket No. WEVA 91-1033. Accordingly, it 

was agreed that the parties would reconvene in Morgantown, West 

Virginia, on December 17, 1991, for the conclusion of the 

evidence in Docket No. WEVA 91-1033. However, prior to that 

date, the parties reached an agreement in regard to each of the 

violations at issue in Docket No. WEVA 91-1033. A written Motion 

484 
to Approve Settlement was filed with the undersigned administrative law judge. In regard to Order No. 3314086, the motion 

requested approval of respondent's agreement to pay $276 of the 

proposed penalty of $1100 as well as requesting modification of 

the order to a section l04(a) citation as well as indicating that 

the violation was the result of a "moderate" degree of negligence 

on the part of the respondent. With regard to Citation No. 

3314087, the motion requested the entry of an order vacating the 

citation. Based on the Secretary's representations, I conclude 

that the proffered settlement is appropriate under the criteria 

contained in section llO(i) of the Mine Act. The terms of this 

settlement agreement as well as those entered onto the record at 

the hearing will be incorporated into my order at the end of this 

decisiono 

Both parties have filed post-hearing proposed findings and 

conclusions and/or briefs, which I have considered along with the 

entire record in making the following decision. 

FINDINGS OF FACT 

1. Citation Nao 3327732 alleges a violation of the 

regulatory standard found at 30 C.F.R. § 75.605 and charges as 

follows~ 

A strain clamp was not provided to prevent strain 

on the No. 6 A.W.G. trailing cables for the 5 southwest 

section (043) battery charger. 

2. MSHA Coal Mine Inspector, (Electrical) Roy Jones issued 

Citation No. 3327732 to the respondent on November 20, 1990, 

while conducting a regular electrical inspection of respondent's 

Humphrey No. 7 Mine. On that date, he had observed that there 

was no strain clamp on a trailing cable for a battery charger. 

3. Respondent does not contest the fact that the violation 

of the cited mandatory standard as described in Citation 

No. 3327732 existed at that time. ·The cable admittedly was not 

properly clamped, but respondent submits that the violation was 

nonetheless improperly designated "S&S. 11 

4. The trailing cable in question was suspended from the 

mine roof on insulated "J" hooks, and extended from the battery 

charger to the power center, a distance of approximately 100 to 

150 feet. It was arguably subject to being pulled down by a 

scoop car that would of necessity travel under it on a regular 

basis, i.e., once or twice every shift. However, only 15 feet of 

the cable, the width of a heading, would ever be exposed to the 

scoop, if it could be reached. 

485 
5. The height of the entry was approximately 7 to 7 1/2 

feet and the scoop was approximately 4 1/2 feet high. 

Mr. Radabough, a maintenance foreman, credibly testified that in 

his opinion it would be unlikely for the scoop to catch that 

cable, although he acknowledges the possibility. Inspector 

Jones, on the other hand, testified that he was not aware of the 

clearance existing for the scoop from the roof in the area where 

it could potentially pull the cable (Tr. 58-59). This is a 

significant omission in the. chain of analysis regarding the 

reasonable likelihood of the cable being pulled down in the first 

instance. 

6. A strain clamp is most important on equipment that is 

actually in motionr that is mobile equipment which is in frequent 

motion and which drags its trailing cable behind it. This is so 

because the purpose of the strain clamp is to protect the cable 

and electrical connections from damage should the cable be jerked 

or suddenly pulled. 

7. A battery charger is mounted on skids and not moved on a 

daily or even weekly basis. Rather the charger is moved only 

once or twice per month. Furthermoref the cable is not pulled or 

dragged behind the battery charger. 

8. There was a box connecter installed where the cable 

entered the metal frame of the battery charger which provided 

protection for the jacketing of the cable where it enters the 

frame and also provided some strain relief on the cable. 

DISCUSSION AND FURTHER FINDINGS 

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 reasonable 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 

486 
violation: (3) a reasonable likelihood that the hazard 

contributed to will result in an in)ury: 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. 11 

U.S. Steel Mining Co., 6 FMSHRC 1834 1 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 substantialo Uo So Steel 

Mining Companyu Inc.u 6 FMSHRC 1866u 1868 (August 

1984}; U.S. Steel Mining Company, Inc.u 6 FMSHRC 1573, 

1574-75 (July 1984). 

The Secretaryvs position is that if the cable should be 

pulled down by the scoop, the absence of a strain clamp on the 

cable at the battery charger could result in insulated wires 

becoming exposed. Inspector Jones explained that power conductors are normally inside the housing of the battery charger 

and therefore are not subject to contact with any surface which 

may conduct an electric current. However, in the absence of a 

strain clamp, the cable can be pulled outside the housing, and 

the power conductors could become exposed. This sequence of 

events could possibly shock a miner who might inadvertently touch 

the exposed power conductors or the metal guard surrounding the 

battery charger. If an exposed wire should come into contact 

with the metal housing in such a fashion, an electric current, 

i.e., amperage, would be conducted onto the frame of the battery 

charger. An individual would be potentially exposed to as much 

as 15 amps of electric current were he to come into contact with 

the exposed conductors or the energized frame of the battery 

charger. This in turn could produce a serious electric shock 

injury or even an electrocution. 

The weakness in the Secretary's analysis is, however, that 

the likelihood of the scoop pulling down a cable 2 1/2 feet above 

it and to which it is exposed for only a distance of 15 feet once 

or twice per shift is not a reasonably likely event. Yet it is a 

precondition to all that follows in the Secretary's above 

scenario which culminates in the miner's injury or death due to 

electric shock. 

487 
Additionally, even the inspector concedes that the box 

connector which was installed would supply some strain relief to 

the battery charger cable in the absence of the required strain 

clamp. 

Accordingly, on the basis of the foregoing findings and 

conclusions, I find the violation alleged in Citation No. 3327732 

to be nonsignificant and substantial. Citation No. 3327732, as 

so modified, will be affirmed herein. 

I also find that the violation occurred as a result of the 

11moderate 11 negligence of the respondent because there was no 

recordation of this condition in the weekly electrical examination records and it is most likely that there was never a stra 

clamp installed for this cable on this particular battery 

charger. 

Considering the statutory criteria contained in 

section llO(i) of the Mine Act, I find and conclude that a civil 

penalty of $50 for the admitted violation is appropriate and will 

be ordered herein. 

ORDER 

It is hereby ORDERED that~ 

1. Citation Nos. 3327724, 3307306 (modified to reflect 

"low" negligence), and 3327217 ARE AFFIRMED. 

2. Citation No. 3314087 IS VACATED. 

3. Citation Nos. 3308250, 3308251, 3307317, 3327732, 

3308260, and 3307302 ARE MODIFIED to delete the "significant and 

substantial" (S&S) finding, and as so modified, ARE AFFIRMED. 

4. Order Nos. 3314158 and 3314086 ARE MODIFIED to citations 

issued pursuant to section 104(a) of the Mine Act with negligence 

factors reduced to "moderate" in each, and as so modified, ARE 

AFFIRMED. 

5. Respondent, Consolidation Coal Company, IS ORDERED TO 

PAY civil penalties in the amount of $2,696 within 30 days of the 

date of this decision, for the violations found herein. 

aurer 

rative Law Judge 

488 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 181992 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PEABODY COAL COMPANY, 

Respondent 

Docket No. KENT 91-1231 

A.C. No. 15-14074-03587 

Martwick Underground Mine 

DECISION 

Appearances: W. F. Taylor, Esq., Office of the Solicitor, U.S. 

Department of Laboru Nashviller Tennessee for the 

Petitioner; 

Before: 

David R. Joest, Esq.f Peabody Coal Company 7 

Henderson, Kentuckyp for the Respondento 

Judge Melick 

This case is before me pursuant to section lOS(d) of the 

Federal Mine Safety and Health Act of 1977, 30 C.F.R. § 801 

et seg., the "Act," to challenge four citations issued by the 

Secretary of Labor against the Peabody Coal Company (Peabody) for 

alleged violations of regulatory standards. The general issue 

before me is whether Peabody violated the cited regulatory 

standards as alleged, and, if so, what is the appropriate civil 

penalty. Three of these four citations were the subject of a 

posthearing settlement motion in which a reduction in penalties 

from $472 to $394 was proposed. Considering the representations 

and documentation submitted, I find that the proffered settlement 

is appropriate under the criteria set forth in section llO(i) of 

the Act and an order directing payment will be incorporated in 

this decision. 

The one citation remaining at issue, Citation No. 3419837, 

as amended at hearing, alleges a violation of the mandatory 

standard at 30 C.F.R. § 75.301 and charges that "[o]nly 

6,750 cubic feet a minute of air was reaching the last open 

crosscut between Nos. 1 and 2 Rooms (intake to return) in rooms 

left off northeast entries off four east panel off southwestern 

submain entries (ID 004)." The cited standard provides in 

relevant part that "[t]he minimum quantity of air reaching the 

last open crosscut in any pair or set of developing entries and 

the last open crosscut in any pair or set of rooms shall be 

9,000 cubic feet a minute .•.• " 

489 
The essential facts are not in dispute. Federal Mine Safety 

and Health Administration (MSHA) ventilation specialist Lewis 

Stanley obtained an air reading during the course of an. 

inspection of the subject mine in the area he determined to be 

the last open crosscut between the No. 1 and the No. 2 rooms. It 

is undisputed that the quantity of air at that location was then 

only 6,750 cubic feet per minute (CFM). It is further undisputed 

that if Inspector Stanley measured the air at the correct 

location then Respondent failed to provide the prescribed minimum 

of 9,000 CFM and there was a violation of 30 C.F.R. § 75.301 as 

charged. Respondent maintains however, that Inspector Stanley 

did not measure the air at the correct location in that he did 

not take his reading at the "last open crosscut." 

In Secretary of Labor v. Peabody Coal Companyv 11 FMSHRC 4" 

( 1989) Q the Commission stated in regard to the term 11 last open 

crosscut" that~ 

Although "last open crosscut" is not defined in 

the Mine Act or the Secretary's regulations, the Act 

and regulations contain repeated references to the 

term. [Footnote reference omitted.] As notedu a 

"crosscut" is a passageway or opening driven across 

entries for ventilation and haulage purposes. In 

general, the last open crosscut thus refers to the last 

(most inby) open passageway between entries in a 

working section of a coal mine. [Footnote reference 

omitted.] The last open crosscut "is an area rather 

than a point or line . • " Henry Clay Mining Co., 

3 IBMA 360, 361 (1974). 

At hearing, Inspector Stanley provided expert testimony that 

the crosscut labeled "location of bolter" on Joint Exhibit No. 1 

(Appendix A) was the "last open crosscut." Peabody argues 

however, that since this crosscut was then being roof-bolted and 

the roof-bolting machine was situated in and partially 

obstructing that crosscut it was not ·;'open" and therefore could 

not have been the "last open crosscut." Clearly, however, within 

the scope of the above definition the concept of "open" in the 

phrase "open crosscut" refers to the point at which the crosscut 

is cut through in its total width to complete a passageway 

between entries. In this regard, I accept the definition 

provided by the MSHA expert testimony. A definition such as 

proffered by Peabody depending upon whether mining equipment such 

as a roof bolter may be within the crosscut at a particular 

moment would completely void the purpose of the ventilation 

requirements here cited and indeed is without any legal or 

rational foundation. Peabody's contention is accordingly 

rejected. 

I also reject Peabody's contention that the violation was 

not proven because the inspector failed to take his air reading 

490 
within the area he defined as the "last open crosscut." It is 

not disputed that the specific point at which the inspector 

obtained his reading provided the same reading as if it was 

actually taken within the last open crosscut. He was apparently 

unable to take a reading within the crosscut because of the 

position of the roof bolter. The evidence is clearly sufficient 

therefore from which it may reasonably be inferred that the 

quantity of air in the last open crosscut was deficient as 

charged. 

A violation is properly designated as significant and 

substantial "if, based on the particular facts surrounding that 

violation, there exists a reasonable likelihood that the 

contributed to will result in an injury or illness of a 

reasonably serious nature." Cement Division, National Gypsum 

Co.p 3 FMSHRC 822v 825 (April 1981) In Mathies Coal Coo, 

~FMSHRC 1, 3-4 (January 1984), the Commission explained: 

In order to establish that a violation of a mandatory 

standard is significant and substantial under National 

Gypsum the Secretary must prove: (1) the underlying 

violation of a mandatory safety standard, (2} a 

discrete safety hazard -- that a measure danger 

to safety -- contributed to by 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. 

See also Austin Power Co. v. Secretary, 861 F.2d 99, 

103-04 (5th Cir. 1988), aff'd 9 FMSHRC 2015 1 2021 

(December 1987) (approving Mathies criteria))o 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)), and"'also that the likelihood 

of injury be evaluated in terms of continued normal 

mining operations (U.S. Steel Mining Co., Inc. 6 FMSHRC 

1573, 1574 (July 1984); see also, Halfway, Inc., 

8 FMSHRC 8, 12 (January 1986). 11 

Inspector Stanley testified without contradiction that the 

subject mine liberates methane and that adequate ventilation is 

accordingly necessary to remove and/or dilute such methane. He 

cited a number of ignition sources in the cited set of rooms 

including the roof bolter within the last open crosscut. It was 

his expert opinion that a resulting explosion or ignition could 

result in burn injuries or fatalities. It may reasonably be 

inferred from this evidence that the violation was "significant 

and substantial" and serious. I further find the operator 

chargeable with but little negligence in light of the dearth of 

491 
evidence in this regard. Under the circumstances and considering 

the criteria under section llO(i) I find that a civil penalty of 

$200 is appropriate. 

ORDER 

Peabody Coal Company is hereby 

penalties of $594 within 30 days 

Distribution: 

W. F. Taylor, Esq., Office of the Solicitor, U.S. Department of 

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

(Certified Mail) 

David R. Joest, Esq., Midwest Division Counsel, Peabody Coal 

Company, 1951 Barrett Court, P.O. Box 1990, Henderson, KY 

42420-1990 (Certified MaiL) 

/fb 

492 
1 

MARTwICK 

UNIT 4 

4/29/91 

2 3 4 5 

Return Air 

out 

DO 

D 

DO 

oOD 

ODD 

OD 

APPENDIX A 

Cito ti on No. 3419837 

L. Stonley 

104 o. s~s 

6 \./here MeusureMent should tu ken 

\.Jhere Inspector took o.ir Meo.sureMent 

1 

o. 

0 

Loco tion of bolter 

3 4 5 

2 

J'o/N./- ~~/,//:,/ f-

/VO. { 493 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 191992 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. WEVA 91-1600 

A.C. No. 46-01453-03960 

v. 

Humphrey No. 7 Mine 

CONSOLIDATION COAL COMPANY, 

Respondent 

Appearances~ 

DECISION APPROVING SETTLEMENT 

Caryl L. Casden, Esq.u U.S. Department of Labor 

Office of the Solicitor 1 Arlington, Virginia, 

for Petitioner• 

Walter J. Scheller III, Esq., Consolidation Coal 

Company, Pittsburgh, Pennsylvania for 

Respondent. 

Before: Judge Melick 

This case is before me upon a petition for assessment of 

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

Health Act of 1977 (the Act). At hearing Petitioner sought to 

vacate Citation No. 3316065 for insufficient evidence and filed a 

motion to approve a settlement agreement as to the remaining 

citations. A reduction in penalty from $2,638 to $2,510 has been 

proposed. I have considered the representations and 

documentation submitted in this case, and I conclude that the 

proffered settlement is appropriate under the criteria set forth 

in Section llO(i) of the Act. 1 

WHEREFORE, the motion for af/(roval of settl ent is GRANTED, 

and it is ORDERED that Respondeni/pay a penalty df $2,510 within 

!I IL \_/ i _,, / t ...__,, ! i I • .. · \ ', 

ary ~e~ick ; \ 

,Administrative L w Judge I 1 I fl 

Distribution: i / P 

: / if 

Caryl L. Casden, Esq., U.S. Department of Labor, Office of the 

Solicitor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203 

(Certified Mail} 

Walter J. Scheller III, Esq., Consolidation Coal Company, Consol 

Plaza, Pittsburgh, PA 15241-1421 (Certified Mail) 

494 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 191992 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. WEVA 91-1601 

A.C. No. 46-01453-03961 

v. 

Humphrey No. 7 Mine 

CONSOLIDATION COAL COMPANYu 

Respondent 

Appearances~ 

DECISION APPROVING SETTLEMENT 

Caryl L. Casdenu Esq.u U.S. Department of Labor 0 

Office of the Solicitoru Arlingtonu Virginiau 

for Petitioner' 

Walter J. Scheller III, Esq., Consolidation Coal 

Company, Pittsburgh, Pennsylvania for 

Respondent. 

Before: Judge Melick 

This case is before me upon a petition for assessment of 

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

Health Act of 1977 (the Act). At hearings and following hearings 

Petitioner filed motions to approve settlement agreements and to 

dismiss the case. A reduction in penalty from $1,295 to $1,191 

has been proposed. I have considered the evidence, 

representations and documentation submitted in this case, and I 

conclude that the proffered settlement is appropriate under the 

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

WHEREFORE, the motion for ap roval of settle ~nt is GRANTED, 

and it is ORDERED that Responden pay· penalty o i $1,191 within 

30 days of this order. i i 

( \ I 1 

G t ~1~~/V\ ' / /,rl/\ 

~~in~f trative L w Judge ' 

' 

495 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 201992 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. PENN 91-1045 

A.C. No. 36-04281-03732 

v. 

Dilworth Mine 

CONSOLIDATION COAL COMPANYv 

Respondent 

Appearances: 

Before: 

DECISION 

Caryl Casden, Esq. 3 and H. P. Bakeru Esq. 9 (on the 

Brief)u Office of the Solicitoru U.S. Department 

of Laborv Philadelphiau Pennsylvania for the 

Petitioner; 

Walter J. Scheller III, Esq., Consolidation Coal 

Company, Pittsburgh, Pennsylvania, for the 

Respondent. 

Judge Melick 

This case is before me upon the petition for civil penalty 

filed by the Secretary of Labor pursuant to section 105(d) of the 

Federal Mine Safety and Health Act of 1977, 30 C.F.R. § 801 

et seg., the "Act;" charging the Consolidation Coal Company 

(Consol) with one alleged violation of the mandatory standard at 

30 C.F.R. § 75.1103-4. Five oth~r citations in this case were 

the subject of a partial settlement decision issued November 27, 

1991. The general issue before me is whether Consol violated the 

cited regulatory standard as alleged, and, if so, what is the 

appropriate civil penalty to be assessed. 

The citation at bar, No. 3468340, charges as follows: 

The petition for modification Docket No. M-86-49-C 

dated December 5, 1986, for the carbon monoxide system 

at the mine was not being used as described. In that 

under Item No. 5 of the petition the audible and visual 

alarm was not sent to a surface location where a 

responsible person was on duty at all times. The hard 

line phone system used between the master command 

center in Moundsville, West Virginia, and Dilworth Mine 

was inoperable. There was no alarm system that is 

continuously manned on the surface of Dilworth Mine. 

496 
It is undisputed that on the date of the alleged violation, 

January 30, 1991, Respondent then had in place a point-type fire 

detection system meeting the requirements of the cited mandatory 

standard. It is the Secretary's position however, that in light 

of her approval of a petition for modification of the cited 

mandatory safety standard pursuant to section lOl(c) of the Act 

(permitting the use under certain circumstances of a carbon 

monoxide fire detection system with audio and visual alarms 

connected to a monitored surface location) Consol was required to 

comply not with the cited standard byt with the terms of the 

approved petition for modification. I 

Consol maintains on the other hand that by its own specific 

terms the approved petition for modification is inapplicable to 

the case at bar. For the reasons that follow, I find that the 

approved petition is indeed inapplicable hereto and that since 

Consol was in compliance with the cited standard there was in 

fact no violation. 

The approved petition for modification at issue provides 

that 11 a low-level carbon monoxide [early warning fire detection] 

system shall be installed in all belt entries utilized as intake 

1; Section lOl(c) of the Act provides as follows: 

"Upon petition by the operator or the representative of 

miners, the Secretary may modify the application of any mandatory 

safety standard to a coal or other mine if the Secretary 

determines that an alternative method of achieving the result of 

such standard exists which will at all times guarantee no less 

than the same measure of protection afforded the miners of such 

mine by such standard, or that the application of such standard 

to such mine will result in a diminution of safety to the miners 

in such mine. Upon receipt of such petition the Secretary shall 

publish notice thereof and give notice to the operator or the 

representative of miners in the affected mine, as appropriate, 

and shall cause such investigation to be made as he deems 

appropriate. Such investigation shall provide an opportunity for 

a public hearing at the request of such operator or 

representative or other interested party, to enable the operator 

or the representative of miners in such mine or other interested 

party to present information relating to the modif icatibn of such 

standard. Before granting any exception to a mandatory safety 

standard, the findings of the Secretary or his authorized 

representative shall be made public and shall be available to the 

representative of the miners at the affected mine. The Secretary 

shall issue a decision incorporating his findings of fact 

therein, and send a copy thereof to the operator or the 

representative of the miners, as appropriate. Any such hearing 

shall be of record and shall be subject to section 554 of Title 5 

of the United States Code." 

497 
air-courses" (Government Exhibit No. 4). From this unambiguous 

language it is clear that only those belt entries utilized as 

intake air courses are to be governed by the approved petition. 

Since it is undisputed that none of the belt entries were being 

utilized as intake air courses, the approved petition for 

modification is clearly inapplicable. Since it is further 

undisputed that Consol continued to utilize the point-type sensor 

fire detection system required by 30 C.F.R. § 75.1103-4, and that 

the system was fully operational on the date of the citation, 

there was no violation. 

Under the circumstances it is not necessary to reach the 

question of whether the approved petition for modification 

superseded the cited mandatory standardo 

ORDER 

Citation Noo 3468340 is her\jby vacated. ' n \ 

i rv'--~!\, lv\,~J~ Gary M~ick ~ Adminisl\ative ~w Judge 

\ I 

Distribution: 

Caryl Casden, Esq., and H. P'. Baker, 

Solicitor, U.S. Department of Labor, 

3535 Market Street, Philadelphia, PA 

'v , Esq., Office of the 

Room 14480 Gateway Building, 

19104 (Certified Mail) 

Walter J. Scheller III, Esq., Consolidation Coal Company, Consol 

Plaza, 1800 Washington Road, Pittsburgh, PA 15241-1421 

(Certified Mail) 

/fb 

498 
FEDERAL MINE SAFETY AND HEALTH REVIEW. COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

March 24, 1992 

CONSOLIDATION COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABORu 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

V. 

CONSOLIDATION COAL COMPANY 0 

Respondent 

. . 

. . 

. . 

. . 

CONTEST PROCEEDING 

Docket No. WEVA 91-228-R 

Citation No. 3315561; 2/20/91 

Arkwright No. 1 Mine 

Mine ID 46-01452 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 91-1832 

A. C. No. 46-01453-03788 

Arkwright No. l Mine 

DECISION 

Appearances: Walter J. Scheller III, Esq., consolidation 

coal company, Pittsburqh, Pennsylvania, for 

Contestant-Respondent; 

Before: 

Charles M. Jackson, Esq., Office of the 

Solicitor, o. s. Department of Labor, 

Arlinqton, Virqinia, for Respondent-Petitioner. 

Judqe Merlin 

This case is a petition f9r the assessment of five civil 

penalties and a notice of contest C"orresponding to one of the 

penalties. The contest case was filed by the operator under 

section 105(d) of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 815(d). The penalty petition was filed by the Secretary of Labor against Consolidation Coal Company under section 

110 of the Act, 30 u.s.c. § 820. The case came on for hearing on 

March 10, 1992. 

Citation No. 3315928 and Citation No. 3315561 

Citation No. 3315928 was issued for a violation of 30 C.F.R. 

§ 75.316 because the man door in the stopping was bound and the 

bottom frame was bent, resulting in the door standing open a 

couple of inches and air was passing from the track into the 

fresh air escapeway. The alleged violation was designated by the 

inspector as significant and substantial. 

499 
Citation No. 3315561 was also issued for a violation of 

30 C.F.R § 75.316 because the stopping between the track entry 

and fresh air escapeway on the 11 left section had a ~ block hole 

and air was passing from the track entry into the fresh air 

escapeway. This citation is the subject of a notice of contest 

case Docket No. WEVA 91-228-R. 

The inspector testified first with respect to Citation 

No. 3315928. He set forth his position regarding the existence 

of a violation and why it was significant and substantial. The 

inspector exhibited great confusion over the meaning of significant and substantial. At the conclusion of the inspector's 

direct testimony the parties advised that they wished to settle 

this citation on the basis that the significant and substantial 

designation be deleted and that the penalty be assessed at $1280 

The settlement was approved on the record. 

At the same time the parties also moved to settle Citation 

No. 3315561 on the same basis that the significant and substantial designation be deleted. The proposed settlement in this 

matter was $94 and it, too, was approved from the bench. 

Citation Noo 3315933 

This citation was issued for an alleged violation of 

30 c.F.R.§ 75.904 because the circuit breaker which provided 

protection for the main South No. 2 belt drive was not marked for 

identification. The inspector testified with respect to the 

existence of a violation and why it was significant and substantial. Once again, the inspector was confused and unclear with 

respect to significant and substantial. At one point he stated 

there was no reasonable likelihood of injury. After direct and 

cross examination, the parties agreed to settle the case on the 

basis that the significant and substantial designation be deleted 

and that I set an appropriate penalty amount. The proposed 

settlement was accepted on the record and I assessed a penalty in 

accordance with the criteria in Section llO(i) of the Act, in the 

amount of $94. 

Citation Nos. 3315935 and 3315510 

Citation No. 3315935 was issued for a violation of 30 C.F.R. 

§ 75.807. The 4160 high voltage transmission cable, which provides power to the main South No. 1 belt drive transformer, was 

laying on the mine floor and there was considerable head coal and 

rib sloughage on the cable. citation No. 3315510 was issued for 

a violation of 30 C.F.R. § 75.1100-2(b) because a distance of 540 

feet existed between consecutive fire hose outlets between No. 62 

and No. 68 block along the main Butts No. 2 conveyor belts. 

Prior to going on the record, the parties agreed to settle 

these citations on the basis that the significant and substantial 

designations be deleted for both citations, that a penalty of 

$128 be assessed for Citation No. 3315935 and that a penalty of 

500 
$94 be assessed for Citation No. 3315510. The proposed settlements were approved from the bench. 

ORDERS 

In light of the foregoing, the recommended settlements are 

APPROVED and the operator is ORDERED TO PAY the following amounts 

within 30 days from the date of this decision. 

Citation No. 

3315928 

3315561 

3315933 

3315935 

3315510 

Distribution: 

Total 

Paul Merlin 

Amount 

$128.0()) 

$ 94.00 

$ 94.00 

$128.0()) 

$ 94o~HiJ 

$538.00 

Chief Administrative Law Judge 

Walter J. Scheller III, Esq., Consolidation Coal Company, 1800 

Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

Charles M. Jackson, Esq., Office of the Solicitor, U. s. Department of Labor, 4015 Wilson Boulevard, 4015 Wilson Boulevard, 

Arlington, VA 22203 (Certified Mail) 

Mr. William White, UMWA, Rt. 1 Box-154B5, Bruceton Mills, WV 

26525 (Certified Mail) 

~ichard G. High, Jr., Director, Office of Assessments, MSH~ 

u. s. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

/gl 

501 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6"rH FLOOR 

WASHINGTON, D.C. 20006 

March 24, 1992 

CONSOLIDATION COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA)u 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA), 

Petitioner 

Vo 

CONSOLIDATIOB COAL COMPANY9 

Respondent 

. . 

: 

. . 

0 

0 

CONTEST PROCEEDING 

Docket No. WEVA 91-247-R 

Citation No. 3315776; 2/26/91 

~ Blacksville Noo 1 Mine 

0 

0 

0 

0 

. . 

: 

. . 

Mine ID 46-01867 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEVA 91-1553 

Ao Co NOo 46-01453-03788 

Humphrey Noa 1 Mine 

Docket No. WEVA 91-2022 

A. C. No. 46-01867-03909 

: Docket No. WEVA 92-146 

: A. C. No. 46-01867-03912 . . 

: Blacksville No. 1 Mine 

DECISION 

Appearances: Walter J. Scheller III, Esq., consolidation 

Coal Company, Pi_ttsbu~qh, Pennsylvania, for 

Contestant-Respondent1 

Before: 

Charles M. Jackson, Esq., Office of the 

Solicitor, u. s. Department of Labor, 

Arlington, Virqinia, for Respondent-Petitioner. 

Judqe Merlin 

When the above-captioned cases came on for hearing on 

March 9, 1992, counsel for both parties advised that settlements 

had been reached. With permission of the bench these settlements 

were placed upon the record. Other cases scheduled for hearing 

at the same time were heard on the merits. 

WEVA 91-1553 

This case involved two violations which were originally 

assessed at $518 and the proposed settlement was for $414. 

502 
Citation No. 3307921 was issued for a violation of 30 C.F.R. 

§ 75.220 because the main haulage entry was in excess of 20 feet 

wide and was not supported as required by the approved roof 

control plan. The proposed settlement modified the citation to 

reflect that the violation was not significant and substantial. 

The originally assessed penalty was $259 and the proposed settlement was $155. The Solicitor represented that the reduction and 

modification were warranted because gravity was less than originally thought. According to the Solicitor, the roof in the area 

cited was not in poor condition. The foregoing representations 

were accepted from the bench and the proposed settlement was 

approvedo 

Citation No. 3328103 was issued for a violation of 30 CoF.R. 

§ 75.518 because the water pump did not have adequate overload 

protectiono The operator has agreed to pay the originally 

assessed penalty for this violation. The circumstances of this 

violation were explained and I accepted the proffered amount from 

the bench. 

WEVA 91-2022 

Citation Noo 3307720 was issued for a violation of 30 C.F.R. 

§ 50.10 because the operator failed to immediately report a fire 

that occurred in the surf ace slack silo during silo cleaning 

operations by an independent contractor. The originally assessed 

penalty was $500 and the proposed settlement was $200. The 

Solicitor represented that the penalty reduction was warranted 

because negligence was less than originally thought. The Solicitor advised that there was some confusion by the independent 

contractor and the operator as to whether the incident was a mine 

fire reportable under the regulations. Therefore, the Solicitor 

stated that the negligence should be modified from high to 

moderate. The foregoing representations were accepted from the 

bench and the proposed settlement was approved. 

WEVA 92-146 and WEVA 91-247-R 

These cases are a petition for the assessment of a civil 

penalty and a corresponding notice of contest. Citation No. 

3315776 was issued for a violation of 30 C.F.R. § 75.303. An 

inadequate pre-shift examination allegedly was conducted on the 

P-8 langwall supply track because an obvious hazardous condition 

existed and was not reported. The Solicitor moved to vacate the 

citation on the ground he would be unable to establish that the 

hazardous condition existed at the time of the pre-shift. The 

foregoing representations were accepted from the bench and the 

motion to vacate was approved and the cases dismissed. 

503 
ORDERS 

In light of the foregoing the recommended settlements are 

APPROVED. 

It is ORDERED that Citation No. 3307921 be MODIFIED to 

delete the significant and substantial designation and the 

operator PAY $414 within 30 days of the date of this decision. 

It is further ORDERED that Citation No. 3307720 be MODIFIED 

to reflect the operator's negligence as moderate and the operator 

PAY $200 within 30 days of the date of this decisiono 

It is further ORDERED that Citation No. 3315776 be VACATED 

and that Docket Nos. WEVA 91-247-R and WEVA 92-146 be DISMISSED. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution~ 

Walter J. Scheller, Esq., Consolidation coal company, 1800 

Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

Charles M. Jackson, Esq., Office of the Solicitor, u. s. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

(Certified Mail) 

Robert Strapp, Esq., UMWA, 900 15th Street, NW., Washington, DC 

20005 (Certified Mail) 

Mr. William White, UMWA, Rt. 1, Box,;t54B5, Bruceton Mills, WV 

26525 (Certified Mail) 

Richard G. High, Jr., Director, Office of Assessments, MSHA, 

U. s. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 

22203 

/gl 

504 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 2 61992 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA)u 

Petitioner 

Docket No. LAKE 91-119-M 

A.C. No. 20-02849-05501 

v. 

Aggregate Pit 

YERINGTON LEASING COMPANY, 

Respondent 

Appearances~ 

Before: 

DECISION APPROVING SET.rLEMENT 

Susan J. Bissegger, Esq., Office of the Solicitor, 

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

the Petitioner; 

Mr. John s. Yerington III, President, Yerington 

Leasing Company, St. Joseph, Michigan, for the 

Respondent. 

Judge Melick 

This case is before me upon a petition for assessment of 

civil penalty under Section lOS(d) of the Federal Mine Safety and 

Health Act of 1977 (the Act). Following hearings, Petitioner 

filed a motion to approve a settlement agreement and to dismiss 

the case. Petitioner now moves to vacate Citation Nos. 3618778, 

3618779 and 3618780 for insufficient evidence and Respondent 

agrees to pay the proposed penalty for the remaining citations of 

$80 in full. I have considered the representations and 

documentation submitted in this case, and I conclude that the 

proffered settlement is appropriate under the criteria set forth 

in Section llO(i) of the Act. 

WHEREFORE, the motion for approval of settlement is GRANTED, 

and it is ORDERED that Resp~nden/Jpay a pen

11

;a1ty of $80 within 

30 days of this order. ~ 

\ .... / I / 1 I) A-/~ : 

I / I I .v l Ii( 't /]/\ /• 

Gi;t,ry "Melick" _, / 1 \ 

~inistrattve Law Judge\ 

I 

sos 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 2 61992 

EAGLE NEST, INC., 

Contestant 

CONTEST PROCEEDING 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

: 

Docket No. WEVA 92-729-R 

Citation No. 3754287• 3/2/92 

East Nest Mine 

DECISION 

Appearances~ David J. Hardy, Esq., Jackson and Kellye 

Charleston, West Virginiau for Contestant1 

Pamela Silverman, Esq., U.S. Department of Labor, 

Office of the Solicitor, Arlington, Virginia, 

for Respondent. 

Before: Judge Weisberger 

This case is before me upon based upon a Notice of Contest 

filed by the Operator on March 5, 1992, challenging the issuance 

of Citation No. 3754287 which alleges a violation of 30 C.F.R. § 

75.1002. 1 on the same date, the Operator filed a Motion for 

Expedited Proceedings. In telephone conference calls on March 5 

and 6, 1992, counsel for the Operat()r presented argument in favor 

of the Motion, and counsel for the Secretary presented argument 

in opposition to the Motion. The Motion was granted, and the 

case was scheduled for hearing on March 12, 1992 in Charleston, 

West Virginia and was heard on that date. At the hearing, Ronald 

Larrison, Thomas Hager, and Steve Alexander testified for the 

Operator. Ernest H. Thompson and Ernest Sheppard testified for 

the Secretary. The parties waived their right to submit written 

post hearing briefs, and in lieu thereof presented oral argument. 

The Secretary, in addition, filed a written argument on 

March 17, 1992, and the Operator filed a response to this 

argument on March 18, 1992. 

1The Secretary filed an Answer on March 12, 1992. 

506 
FINDING OF FACT AND DISCUSSION 

I. Violation of 30 C.F.R. § 75.1002 

On February 19, 1992, longwall m'ining had commenced in the 

E-Panel at the Operator's Eagle Nest Mine. In general, as 

longwall mining proceeds, a gob area is built up behind (inby) 

the longwall face. In the E-Panel immediately inby the gob 

(mined-out areas), the Operator located a set up entry wherein 

various equipment to develop a future longwall panel was storedo 

Immediately inby this entry, a bleeder entry vented gases from 

the gob to the return entries, and then out of the mineo An 

intake entry, containing trolley wires and tracks, was located 

immediately inby the bleeder entry, and was separated from the 

bleeder entry by a double row of cement blocks, each row 

consisting of blocks 8 inches x 8 inches x 16 incheso On 

February 24, 1992, as part of the normal longwall mining process, 

the first roof fall in the gob area occurred. 

on February 27, 1992, the entry containing the trolley 

tracks and wires was inspected by MSHA Inspector Ernest Thompsono 

The trolley wires were 108 feet from the inby end of the set-up 

entry, but were approximately 350 feet from longwall faceo 

Thompson issued a citation alleging a violation of 30 c.F.R. 

§ 75.1002 which, as pertinent, provides that trolley wires 

" ••• shall be kept 150 feet from pilar workings". (emphasis 

added). The initial issue for resolution is whether the term 

"pilar workings", encompasses the gob or mined out area or, 

whether it means the longwall face. 

The term "pilar workings", as set forth in Section 75.1002, 

supra, is not defined in Volume 30 of the Code of Federal 

Regulations. Section 75.1002, supra, sets forth the statutory 

provision found at Section 310(c) of the Federal Mine Safety and 

Health Act of 1977 (P.L. 95-164, "tfie 1977 Act", and, its 

predecessor, Section 310(c) of the Federal Coal Mine Health and 

Safety Act of 1969, (P.L. 91-173, "the 1969 Act"). Neither the 

1969 Act, nor the 1977 Act contains any definition of the term 

"pilar workings". Neither is that term defined in A Dictionary 

of Mining, Mineral, and Related Terms (U.S. Department of the 

Interior, 1968). Hence, in analyzing the scope to be accorded 

the term "pilar workings", emphasis is placed on the 

Congressional intent behind the enactment of Section 310(c), 

supra. 

The only indication of any Congressional intent with regard 

to Section 310(c) supra, consists of the following language 

contained in the Section-by-Section analysis of the Senate 

507 
version of the 1969 Act "This Section2 requires that •.. trolley 

wires ••• be kept at least 150 feet from pilar workings ••• because 

the ventilating current may contain explosive mixtures of gas. 

Also, pilar falls may damage and cause short circuits in the 

cables and transformers." {S. Rep. No. 91-411, 91st, Cong., 1st 

Sess. 77, reprinted in Legislative History Federal Coal Mine 

Health and Safety Act, at 77) Since the gob area of a longwall 

panel can liberate gas, and can cause a "sudden outrush of air" 

(Tr. 147) when the gob roof falls, even after the first fall, it 

would appear that Congress, in enacting Section 75.1002 supra, 

intended to minimize the hazard of gob gases being forced over 

trolley wires, a source of ignition (See, Consolidation Coal 

company, 4 FMSHRC 2153, 2161 (1982), petition for discretionary 

review denied (January 14, 1983), wherein Judge Broderick, in 

analyzing whether the measurement of the distance to certain nonpermissible equipment should be taken from the outby corner of 

the pilar being mined, or from the actual place of the cut 0 set 

forth as follows with regard to Section 75.1102 supra~ "The 

hazard which the standard is designed to prevent is an ignition 

or explosion which could result from methane being forced back 

over electrical equipment which may arcon 

Thomas Hager, the Operatorgs mine foreman, and Steve 

Alexander, underground superintendent at Eagle Nestu both of whom 

have more than 20 years experience each in the mining industry, 

testified, in essence, that the term "pilar workings" means the 

area where coal is being extracted i.e., the longwall face. 

Also, in support of its position herein, the Operator relies on 

the Secretary's Program Policy Manual, Volume v, Part 75, 

wherein, under the heading 75.1002-1, location of other electric 

equipment; requirements for permissibility, the following 

language is set forth: "In longwall mining, the 150-foot 

distance shall be measured in a straight line from the wire, 

cable or electric equipment in question to the outby edge of the 

longwall roof-support system." It was not controverted that this 

language contemplates that the measurement be taken from the 

longwall face. 

The Program Policy Manual, supra, does not explicitedly 

defined the term "pilar workings". Further, to the extent that 

the Program Policy Manual supra, is inconsistent with the 

expressed Congressional intent behind the enactment of Section 

310(c), supra, I accord more weight to the latter with regard to 

the scope to be accorded the term 11 pilar workings". Also, I have 

considered the definitions of the term "pilar workings", as 

provided by Hager and Alexander. Although they each have 

extensive mining experience, they did not explicity testify as to 

the common usage of that term in the industry. Instead, it 

2In the senate version of the 1969 Act, the statutory 

provision at issue was set forth as Section 211(c). 

508 
appears that their definitions of "pilar workings" were based on 

what the term meant to them. In contrast, I place more weight on 

the testimony of Ernest Sheppard an MSHA Ventilation Specialist 

who indicated that, in his experience mining prior to MSHA, and 

during the time he has worked for MSHA, he has not known the term 

"pilar workings" to exclude the gob area. (Tr.270) 

Hence, for all the above reasons I conclude that the 

Operator violated Section 75.1002 supra, inasmuch as the trolley 

wires were located less than 150 from the set-up entry which is 

immediately inby the gob area which is part of the "pilar 

workings." 

II. Significant and Substantial 

The Citation herein alleges that the violation is 

significant and substantial. In Southern Ohio Coal Company, 13 

FMSHRC 912, (1991), the Commission reiterated the elements 

required to establish a significant and substantial violation as 

follows: 

We also affirm the judge~s conclusion that the 

violation was of a significant and substantial natureo 

A violation is properly designated as significant and 

substantial "if, based on the particular facts 

surrounding that violation, there exists a reasonable 

likelihood that the hazard contributed to will result 

in an injury or illness of a reasonably serious 

nature." 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: 

In order to establish that a violation 

of a mandatory standard is significant and 

substantial under National Gypsum the 

Secretary must prove: (1r-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. 

See also Austin Power Co. v. Secretary, 861 F.2d 

99, 103-04 (5th Cir. 1988), aff'g, 9 FMSHRC 2015, 2021 

(December 1987) (approving Mathies criteria). 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 

509 
there is an injury" (U.S. Steel Mining Co., 6 FMSHRC 

1834, 1836 (August 1984)), and also that the likelihood 

of injury be evaluated in terms of continued normal 

mining operations (U.S. steel Mining Co., Inc. 6 FMSHRC 

1573, 1574 (July 1984); see also Halfway, Inc., 8 

FMSHRC 8, 12 (January 1986)." (Southern Ohio, supra at 

916-917). 

With regard with the first element, I find that a violation 

Section 75.1002 supra has been established. Alsou as discussed 

above, infra 1 the presence of trolley wires 108 feet from the gob 

contributed to the hazard of an explosionv inasmuch as the 

trolley wires, an ignition source, could have come in contact 

with gob gas. However, the record fails to establish the third 

element set forth in Mathies, supra, i.e. a reasonable likelihood 

that the hazard contributed to would result in an injuryu as it 

has not been established that there was a Q~reasonable likelihooauu 

that the hazard contributed to would result in an event in which 

there is injury", U.S. Steel Mining Co., 6 FMSHRC 1834u 1836 

(August 1984) . 

Hager, on cross examinationu agreed with Thompson that the 

trolley wires are an ignition sourceo Readings taken by Thompson 

with an MX270 Methane Tester on February 27, 1992, did not reveal 

the presence of methane. Samples taken at two evaluation points 

on February 27, indicated the presence of 1/lOOth of one percent 

and 1/lOth of one percent of methane, and, at the latter 

location, 8,706 cubic feet of methane in 24 hours. The amount of 

methane produced was not within the explosive range, and was 

considered by Thompson to be "not high", (Tr. 173), but the 

positive readings indicated to him that the gob area was 

liberating methane. However, the area that the evaluation points 

were located in was approximately three crosscuts removed from 

the track entry in question, and separated by stoppings from that 

entry. Also, any methane present at the evaluation points would 

go directly into the return and be vented out of the mine. 

Of more significance is the fact that any hazard of a gas 

explosion occasioned by the location of the trolley wires, is 

minimized by the presence of a double row of cement block 

stoppings, 8 inches x 8 inches x 16 inches, between the bleeder 

entry and the trolley track entry. Although Thompson performed a 

smoke test which showed air going from the bleeder to the track 

through four stoppings on March 3 and 4, and observed a hole 6 

inches by 6 inches between the rib and one of the stoppings, 

there is insufficient evidence to base a conclusion that these 

conditions had existed on February 27, the date of the original 

citation. Indeed, Thompson indicated that he did not check the 

stoppings on that date. Also, according to Hager, smoke readings 

that he took at one of these stoppings on February 20, 26, 27, 

29, and 3 dates subsequent to March 4, indicated the air to be 

travelling into the bleeder entry. Moreover, although the 

510 
planned longwall roof fall that had occurred on February 24, 

1992, did blow out some stoppings, there is no evidence that the 

roof fall affected any of the stoppings between the bleeder and 

track entries. 

Thompson indicated that had observed an area of bad roof and 

indicated that if it should fall, it could crush ventilation 

controls. However, an examination of the mine map, Joint Exhibit 

No. 1, indicates, as explained by Alexander, that should the roof 

fall in the area indicated by Thompson and ruin stoppings 0 then 

air would flow to the return entries, and not to the track entryo 

Although Thompson indicated that even with various 

precautions something can happen to release gas at the gas well 

that is present in the solid pilar to be mined, the specific 

safety precautions to be takenu Operatorgs Exhibit Noo 3u appear 

to mitigate against the degree of this hazardo 

Further, the presence of a low level of incombustible 

elements, the energized power center, and the presence of coal 

dust and saturated oil on the mine floor do not increase the 

likelihood of an explosion 0 in the absence of a reasonable 

likelihood of gas from the gob reaching the area in which the 

trolley track was located. 

Thompson observed that 11 rail bonds, used to prevent the 

trolley tracks from arcing, were missing, and that the balance 

were struck on rather than welded. This condition extended over 

five crosscuts. However, it is significant to note, as indicated 

by Hager, that this area was 200 to 800 feet from the area in 

question. 

Accordingly, for all the above reasons, I conclude that the 

violation herein was not significant and substantial. 

511 
ORDER 

It is ORDERED that Citation No. 3754287 be amended to 

indicate that the violation alleged therein is not significant 

and substantial. It is further ordered that the Notice of 

Contest be DISMISSED. 3 

Administrative 

ram isberger ~ Law Judge 

Distribution~ 

David J. Hardy, Esq., Jackson & Kelly, P.O. Box 553, Charleston, 

WV 25322 (Certified Mail) 

Pamela Silverman, Esq.u Office of the Solicitor 0 Uo So Department 

of Labor, 4015 Wilson Boulevard0 Room 516 0 Arlington0 VA 22203 

(Certified Mail) 

nb 

3counsel have each presented argument as to the level, if any, 

of the Operator's negligence. I decline to reach any decision on 

this issue. I find that a finding on the issue of negligence is 

only necessary in deciding the amount of a civil penalty pursuant 

to Section llO(i) of the act. Hence, a decision on the issue of 

negligence at this stage of the proceedings would not be in harmony 

with the statutory scheme for enforcement of violations set forth 

in the Act, which provides for the Secretary to initially propose 

a penalty (See, Section lOS(c) and 110 of the Act}. 

512 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th .FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 301992 

ROCHESTER & PITTSBURGH COAL 

Contestant 

v. 

SECRETARY OF LABOR6 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA)u 

Respondent 

CONTEST PROCEEDINGS 

Docket No. PENN 88-309-R 

Citation No. 2889075; 8/24/88 

Docket No. PENN 88-310-R 

Citation No. 2889167= 9/6/88 

~ Greenwich Collieries No. 2 

Mine 

Mine ID 36-02404 

DECISION ON REMAND 

Before: Judge Weisberger 

The Commission remanded this case to me for further 

Proceedings consistent with its decision, Rochester and 

Pittsburgh Coal Company, 14 FMSHRC 37 (1992)). On February 5, 

1992, in a telephone conference call with counsel for both 

parties, counsel indicated, that in the event the issues raised 

by the Commission's Decision cannot be settled, briefs will be 

filed by April 6, 1992. on March 9, 1992, in a follow-up 

telephone conference call with counsel with both parties, counsel 

indicated their intention to rely on their previously filed post 

hearing briefs and that supplemental briefs, if any, will be 

filed by March 20, 1992. The Operator filed a brief on 

March 19, 1992. 

The factual background of these cases is set forth in the 

Commission's decision, Rochester and Pittsburgh, supra, at 38-40, 

and need not be repeated here. In its Decision, the Commission, 

Rochester and Pittsburgh, supra, at 41, directed as follows: 

The judge should set forth findings and 

conclusions as to whether the Secretary proved that the 

disputed safeguard was based on the judgment of the 

inspector as to the specific conditions at Mine No. 2 

and on a determination by the inspector that a 

transportation hazard existed tha.t was to be remedied 

by the action prescribed in the safeguard. Taking into 

consideration the principles announced in SOCCO I, the 

judge should determine whether the safeguard notice 11 identif[ied] with specificity the nature of the hazard 

513 
at which it [was] directed and the conduct required of 

the operator to remedy such hazard." 7 FMSHRC at 512. 

If the judge finds the safeguard to have been validly 

issued, he should resolve the question of whether R&P 

violated the safeguard. If the judge determines there 

were violations, he should then consider whether the 

violations were of a significant and substantial nature 

and should assess appropriate civil penalties. 

I. 

Whether the safeguard was based on the judgment of the 

inspector as to the specific conditions at Mine No. 2. 

The evidence is not controverted that the safeguard in issue 

was issued by Neven Davis, an MSHA inspector, on May 18, 1988, as 

a result of having observed 2 miners unloading from an elevator, 

4 or 5 metal pipes about 2 inches in diameter, and between 2 to 4 

feet in length. He also had observed two cylindrical objects 

about an half foot high on the floor of the elevator. Hence, I 

conclude that the issued safeguard, which refers to these 

objects, and requires that no person shall be transported on 

cages or elevators with equipment, supplies, or other materials, 

was therefore based on the judgment of the inspector as to the 

specific conditions at Mine No. 2. 

II. 

Whether the safeguard at issue was based on a determination 

by the inspector that a transportation hazard existed that was to 

be remedied by the action prescribed in the safeguard. 

Davis testified, with regard to the hazard that necessitated 

the issuance of the safeguard, as follows: "we have metal 

objects there and these elevators have been known to speed up or 

slow down at times, thereby cre.ating __ more or less the hazard of 

these pipes moving or flying and then striking anybody riding the 

elevator with this equipment on at this time." [sic] (Tr. 23) 

Based on this testimony that has not been either rebutted, 

impeached, or contradicted, I conclude that the safeguard was 

issued based on the determination by Davis that a transportation 

hazard existed that was to be remedied by the action prescribed 

by the safeguard i.e. prohibiting persons from being transported 

on an elevator with equipment supplies or other materials, aside 

from the carrying of small hand tools, surveying instruments, or 

technical devices. 

III. 

Whether the safeguard notice identified with specificity the 

nature of the hazard at which it was directed and the conduct 

reguired of the operator to remedy such hazard, and whether the 

514 
operator violated the safeguard. 

In Southern Ohio Coal Company ("SOCCO I"), 7 FMSHRC 509 

(April 1985), a case involving the issue of whether a notice to 

provide a safeguard was violated, the Commission, at 512, held as 

follows: "···we hold that a safeguard notice must identify with 

specificity the nature of the hazard at which it is directed and 

the conduct required of the operator to remedy such hazard. We 

further hold that in interpreting a safeguard a narrow 

construction of the terms of the safeguard and its intended reach 

is required. 11 The Commission, in SOCCO I,supra, did not analyze 

the wording of the safeguard at issue, but rather focused on 

whether the specific conditions referred to in the safeguard 

should have put the operator on notice that the specific 

conditions cited in citation at issue fell within the safeguard 1 s 

prohibitions. In this connection, the Commission concluded that 

the citation subsequently issued for an accumulation of water 

a travelway, did not fall within the safeguardus prohibition 

which referred to fallen rocks and cement blocks, and required 24 

inches of clearance on both sides of a conveyor belt. 

In Green River Coal Co Inc., 14 FMSHRC 43 {January 1992) a 

safeguard had been issued by an MSHA inspector requiring 24 

inches clearance on each side of the belt as a result of having 

observed roof support timbers that had been installed too close 

to the belt. Subsequently, on the basis of this safeguard, the 

inspector issued a citation alleging that 24 inches of clearance 

had not been provided due to an obstruction caused by a roof 

fall. 

The Commission, in Green River, supra in referred to its 

decision in SOCCO I, supra, where the safeguard had been issued 

to address an obstruction caused by cement blocks and rocks, and 

took cognizance of its statement in socco I, supra, 11 ••• that 

further instances of physical obstructions, whether rocks, cement 

blocks, construction materials, mine equipment, or debris, would 

fall within the scope of the safeguard" (7 FMSHRC at 513). In 

this connection, the Commission explicitly stated that its 

disagreement with the following argument of the Secretary: 

" .•. because the safeguard notice and citation in this case cover 

'physical obstructions', roof support timbers and fallen rock, 

the citation was validly issued ..•. 11 (Green River, supra at 46). 

Instead, the Commission reiterated its explanation in socco I, 

supra, that 11 ••• strict construction of safeguards is premised 

upon the unique process by which safeguards are issued." (Green 

River, supra, at 46). 

In the same fashion, the Commission, in Green River, supra, 

at 47, took cognizance of the inspector's belief 11 ••• that 

whenever a clear travelway was not provided for whatever reason, 

he should issue a citation, even though an obstruction caused by 

fallen rock was not specifically addressed in the safeguard 

515 
notice." However, the Commission concluded, as it did in 

socco I, supra, that a safeguard " ••• must identify with 

specificity the nature of the hazard against which it is directed 

and the conduct required of the operator to remedy the hazard." 

(Green River, supra, at 47). 

In addressing the directives of the Commission on remand, 

and following the analysis of the Commission in socco I, supra, 

and Green River, supra, I conclude that the Safeguard herein did 

not identify with specificity the nature of the hazard against 

which it was directed. The safeguard does not explicitly set 

forth any hazard. 1 Further, even if it be assumed that the 

hazards described are the pipes and cylindrical objects 

themselves, the safeguard, rather than prohibiting these specific 

hazards, instead proscribes a broad category of equipment, 

supplies, or other materialso I agree with the position of the 

Contestant 0 that if the Secretary believes that men should not be 

transported with equipment supplies and other materials 0 the 

proper procedure is to promulgate a mandatory standard under 

section 101 of the Federal Mine Safety and Health Act of 1977. I 

also do not find that the exc.lusion of the carrying of small hand 

tools, surveying instrumentsu or technical devices from the 

provisions of the safeguard, renders the prohibition of 

equipment 9 supplies, or other materials sufficiently specific to 

validate the safeguard. In addition, given the strict 

construction to be accorded the safeguard, I also conclude that a 

dolly approximately two feet high, tapered toward its rectangular 

base that was approximately one foot by two feet, is not within 

the scope of the prohibition of the safeguard which referred to 

metal pipes and "large" cylindrical objects. 

1

The objects mentioned in the safeguard i.e. metal pipes and 

cylindrical objects, are not hazard::f·per se, as Davis, in 

describing the hazard involved in transporting this equipment in 

elevator with persons, described the creation of a hazard of the 

pipes moving and hitting the person in the elevator as a 

consequence of the elevator speeding up or slowing down. He did 

not describe any hazard of the pipes or cylindrical objects 

per se. Also, I note that in socco I, supra the Commission did 

not indicate that the objects refered to in the safeguard i.e. 

the presence of cement blocks and rocks, constituted a hazard per 

se. To the contrary, the Commission recognized that the objects 

themselves did not constitute the hazard, but the hazard was that 

of stumbling. In this connection the Commission stated as 

follows: "The presence of these solid objects in the walkway 

would present an obvious stumbling hazard and depending on the 

amount of material or debris, could prevent passage altogether." 

socco I, supra at 513. 

516 
For all the above reasons I conclude that although the 

safeguard was validly issued, Contestant herein did not violate 

the safeguard. Accordingly I find that the notices of contest 

herein shall be sustained, and that Citation Nos. 2899095, and 

2889167 be DISMISSED. 

Distribution: 

~~ Avram Weisberger 

Administrative Law Judge 

Carl Charneski, Esq., Office of the Solicitoru U.S. Department of 

Labor, 4015 Wilson Boulevardu Room 516u Arlingtonu VA 22203 

(Certified Mail) 

Joseph A. Yuhas, Esq., Tanoma Mining Company, RD #1 1 Box 40 1 

Barnesboro, PA 15714 (Certified Mail) 

nb 

517 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

CLIFFORD MEEK, 

Complainant 

ESSROC CORPORATION, 

Respondent 

Before: Judge Fauver 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

MAR 311992 

DISCRIMINATION PROCEEDING 

Docket No. LAKE 90-132-DM 

MSHA Case No. UC MD-90-06 

FINAL ORDER 

This is a discrimination proceeding under § 105(c) (1) of the 

Federal Mine Safety and Health Act of 1977u 30 U.S.C § 801 et~ 

A decision on liability was entered December 14, 1991, finding 

that Respondent discriminated against Complainant by refusing to 

employ him because of protected activities. A supplemental 

decision was entered on January 31, 1992, denying a motion to 

dismiss. The matter has been pending a final order on monetary 

relief. 

After extensive exchanges between the parties, and submissions 

to the judge, of factual positions, documents, legal arguments, and 

proposals for monetary relief, Complainant filed a revised proposed 

order for back pay interest, and an attorney fee through March 2, 

1992. 

After considering this proposal and Respondent's reply, an 

Order was entered on March 10, 1992, directing the parties to 

exchange and file by March 30, 1992, certain information needed for 

a final order for monetary relief. Complainant has filed the 

additional information, and states that Respondent has not 

furnished the items specified in the Order, i.e., W-2 statements 

and quarterly gross wages for its hourly employees at the 

Middlebranch Plant for the period from February 27, 1990, to March 

1, 1992. 

The premises considered, Complainant's request on March 30, 

1992, for an order granting monetary relief is GRANTED, and it is 

therefore ORDERED that: 

1. Respondent shall pay to Complainant, within 30 days from 

the date of this Order, the following damages due from February 27, 

1990, through March 2, 1992: 

518 
Back Pay and Interest 

Attorney Fee and 

Litigation costs 

- - - - $24,000.00 

- - - - $17,065.80 

$41,065.80 

2. Respondent's liability for back pay, 

attorney fee and litigation costs after March 

continue to accrue until this case including 

concluded. 

interest and an 

2, 1992, shall 

any appeals is 

3. The prior Decisions herein and Final Order 

constitute the judge's final disposition of this proceeding. 

Distribution~ 

U)Jl>~~~~ William Fauver 

Administrative Law Judge 

Robert J. Tscholl p Esq. p Roetzel & Andress:, 220 J:Viarket Avenue 1 

South 1 Suite 502u Cantonr OH 44702 (Certified 

John C. Ross, Esq., Ross & Robertsonu Po 0. Box 35727u Canton 1 OH 

44735 (Certified Mail) 

/fas 

519 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 Skyline, 10th Floor 

5203 Leesburg Pike 

Falls Church, Virg_inia 22041 HAR 311992 

HARMAN MINING COMPANY 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION 

Petitioner 

HARMAN MINING CORPORATION 

Respondent 

) CONTEST PROCEEDING(S) 

) 

) Master Docket No. 91-1 

) DOCKET NOS. VA 91-270-R 

) through VA 91-287-R 

) Citation Nos. 9861336 

) through No. 9861344 

) Mine~ Greenbrier No. 1 

) 

) 

} PENALTY PROCEEDING(S) 

) 

) Master Docket No. 91-1 

) DOCKET NO. VA 91-536 

) A.C. No. 44-06259-035560 

) 

) 

) Mine: Greenbrier No. 1 

) 

DECISION APPROVING SETTLEMENT 

ORDER OF DISMISSAL 

Before: Judge Broderick 

On March 26, 1992, the Secretary filed a motion to approve 

a settlement between the parties in the above cases. The cases 

involve nine alleged violations of 30 C.F.R. § 70.209(b), each of 

which was originally assessed at $1;"300. The Secretary continued 

to assert that. the violations resulted from a deliberate act, 

which is denied by the mine operator. The degree of negligence 

is disputed, and the parties agree to the reduction in the total 

penalties from $11,700 to $9,360. 

I have considered the motion in light of the criteria in 

§ llO(i) of the Act and conclude that it should be approved. 

Accordingly, the settlement motion is APPROVED. The 

operator is ordered to pay within 30 days of the date of this 

order the sum of $9,360 for the violation(s) charged in these 

proceedings. 

520 
IT IS FURTHER ORDERED that the contest proceedings are 

DISMISSED. 

Distribution: 

V/v~ ,,4-J3 vv~c/"-- James A. Broderick 

Administrative Law Judge 

Mark R. Malecki, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Suite 400, Arlington, VA 22203 

Thomas R. Scott, Esq. 1 Street, Street, Street 1 Scott and Bowman 

339 West Main Street, P.O. Box 2100, Grundy, Virginia 24 4 

521 
522 
ADMINISTRATIVE LAW JUDGE ORDERS 

In Re: 

FEDERAL MINE SAFETY AND HEAL'rH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 5- -1992 

CONTESTS OF RESPIRABLE 

DUST SAMPLE ALTERATION 

CITATIONS 

Master Docket No. 91-1 

ORDER DENYING MOTION TO EXCLUDE EXPERT 

WITNESS AND TO IMPOSE THE SANCTIONS 

SOUGHT BY THE SECRETARY 

ORDER TO U.S. STEEL TO SERVE AMENDED 

EXPERT WITNESS REPORT 

on February 20 / 1992 1 the Secretary of Labor (Secretary) f 

a motion to exclude Andrew McFarland as an expert witness 0 and to 

bar U.S. Steel Mining Co., Inc. (U.S. Steel) from participating 

expert witness discovery. U.S. Steel filed an dpposition to the 

motion on March 2, 1992. 

I 

Following a Prehearing Conference on June 19, 1991, I issued 

a Prehearing Order Adopting Plan and Schedule of Discovery 

(Discovery Plan) which had been submitted by the Secretary after 

negotiations with counsel for some of the mine operators. Section 

II.C. of the Discovery Plan required the Secretary and the other 

parties to exchange lists of expert witnesses they anticipate using 

at trial. It also required that the expert witnesses "prepare a 

written report stating their credentials, all opinions or 

conclusions to which the expert expects to testify ... , and a 

summary of any test, study, results, or evaluations which form the 

bases for such conclusions or opinions." The Discovery Plan has 

been amended, most recently on December 3, 1991, (the Fourth 

Amended Discovery Plan) , and the time for exchanging expert witness 

lists and reports of expert witnesses has been extended, but the 

language from Section II. C. quoted above has not been changed. 

At the Prehearing Conference, counsel for U.S. steel stated 

that the Discovery Plan requirement that expert witnesses provide 

a summary of any tests, studies, results, or evaluations was "a bit 

burdensome" and was more than required by Rule 26 of the Federal 

Rules of Civil Procedure. He suggested an amendment to the 

Discovery Plan to delete the requirement for providing a summary of 

any tests, etc. After discussion with counsel for the Secretary 

and U.S. Steel, the requirement was retained. (Prehearing Conf. 

Tr. 54-57). 

523 
II 

The Secretary argues that the report of Dr. McFarland 

submitted by U.S. Steel does not comply with the Discovery Plan in 

that it fails to state the substance of his opinions and 

conclusions, and fails to describe "in any detail" the tests he 

performed, the results of the tests, or his evaluation of those 

results. Dr. McFarland does not descr.ibe the experiments to which 

he refers in his report, any data related to the experiments, or 

the results of the experiments. The Secretary argues that U.So 

Steel's failure to comply with the Discovery Plan prejudices her 

case because she is not able to prepare for a deposition of the 

expert. She contends that U.S. Steel's failure to comply with the 

order is flagrant and indicative of bad faitho Because of thisv 

she asks for sanctions against U. So Steel~ to exclude Dr. 

McFarland as an expert witness, to prohibit U. s. steel from 

exchanging Or. McFarland 1 s work with any other party in the case: 

and to prohibit U.S. Steel from deposing the Secretary 0 s experts. 

U.S. Steel contends' in its opposition that the four page 

report submitted by Dr. McFarland contains the opinions and 

conclusions to which he will testify v and a summary of the 

experiments conducted under his direction concerning the handling 

of dust filter cassettes. It asserts that the report complies with 

the requirements of the Discovery Plan. The opposition also 

discusses the reports of experts served upon U.S. Steel by the 

Secretary, although no action is pending before me concerning such 

reports, only some of which have been filed with me (there is no 

requirement they be filed). 

III 

The Discovery Plan mandates an exchange of expert witness 

lists by the parties so that these witnesses may be deposed during 

the joint discovery phase of these proceedings. It requires an 

exchange of the reports of such witnesses to facilitate and 

expedite the depositions. Although.the Plan does not require the 

reports to include the detail exhibited by some which have been 

filed with me, it does direct that a summary of any tests, studies, 

results, or evaluations be furnished. Dr. McFarland's report does 

not meet this requirement: it does not, in summary or otherwise, 

state what tests or experiments were performed and what the results 

of the experiments were. The report is not adequate to facilitate 

and expedite Dr. McFarland's deposition by the Secretary's counsel. 

I conclude that it does not comply with Section II. c. of the 

Discovery Plan. 

IV 

The fact that U. s. Steel has not fully complied with the 

Discovery Plan does not in itself show bad faith, and I am not 

disposed to infer bad faith. The failure to comply is not in my 

524 
judgment "flagrant," but it should be remedied. To exclude U.S.· 

Steel's expert from testifying in these proceedings is too drastic 

a remedy. Although such a sanction would be related to the failure 

to comply, and would certainly penalize U.S. Steel, it would also 

penalize the Commission since Dr. McFarland's testimony could be 

important in resolving the disputed issues. Cases before the 

Commission are not duels, but attempts to ascertain the truth lying 

behind factual disputes so that the Commission can apply the 

provisions of the Mine Act·to the facts. To bar U~S. Steel from 

participating in further expert discovery bears no relation to its 

failure to comply. I therefore reject the sanctions proposed by 

the Secretary. U. s. Steel, however 1 is required to comply with the 

terms of the Discovery Plan, and I will order it to file with me 

and serve upon the Secretary, a report from its expert witness, Dro 

McFarland, which describes, at least in summary fashion 1 the tests 

and experiments which he conducted or directed 1 the results of such 

tests and experiments, and his conclusions based upon these tests 

and experiments. 

ORDER 

Based upon the above discussion IT IS ORDERED 

lo The Secretary 1 s motion to exclude Dr" McFarland as an 

expert witness is DENIED; 

2. The Secretary 1 s motion to bar U. s. Steel 

participating in further expert discovery is DENIED; 

from 

3. U.S. Steel shall, within 10 days of the date of this 

order, file with me and serve upon the Secretary a report from its 

expert witness, which describes the tests and experiments he 

conducted or directed, the results of such tests and experiments, 

and his conclusions based thereon. 

7 i . /. . •. '., /,/ 1 : f 

./'ti A.'·t.J<~·> A 4'/lv:n Je/1,.?"·c v: ; ',,./VV --"' /~ /·,..../ ;,.,.,/(./-~ ·· t v-C '~./ 

~ James A. Broderick ~ Administrative Law Judge 

Distribution: 

Douglas N. White, Esq., Office of the Solicitor, U.S. Department of 

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

John c. Palmer, IV, Esq., Robinson and McElwee, P. o. Box 1791, 

Charleston, WV 25326 (Certified Mail) 

All Others by Regular Mail 

/fas 

525 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 111992 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Vo 

TUNNELTON MINING COMPANYu 

Respondent 

Docket Noo PENN 91-1456 

Ao C. NOo 36-00929-03720 

Marion Mine 

DECISION DENYING SETTLEMENT MOTION 

Before~ Judge Fauver 

This case is a petition for assessment of a civil penalty 

under§ 105(d) of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 801 et seq. 

The parties have moved for approval of a settlement. 

The Meaning of a "Significant and 

Substantial" violation 

Since the settlement motion proposes to reduce the alleged 

violation from a "significant and substantial" violation to a "nonsignif icant and substantial" violation, it will be helpful to 

review the meaning of this statutory term. 

The Commission has held that a violation is "significant and 

substantial" if there is a "reasonable likelihood that the hazard 

contributed to will result in an injury or illness of a reasonably 

serious nature." U.S. Steel Mining Co., Inc., 7 FMSHRC 327, 328, 

(1985); Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 

(1981); Mathies Coal Co., 6 FMSHRC 1, 3-4 (1984). This evaluation 

is made in terms of "continued normal mining operations." 

Steel Mining co., Inc. 6 FMSHRC 1573, 1574 (1984). The question of 

whether any particular violation is significant and substantial 

must be based on the particular facts surrounding the violation. 

Texasgulf, inc., 10 FMSHRC 498 (1988); Youghiogheny & Ohio Coal 

Company, 9 FMSHRC 1007 (1987). 

Analysis of the statutory language and the Commission's 

decisions indicates that the test of an S&S violation is a 

practical and realistic question whether, assuming continued mining 

operations, the violation presents a substantial possibility of 

526 
resulting in in]ury or disease, not a requirement that the · Secretary of Labor prove that it is more probable than not that 

injury or disease will result. See my decision in Consolidation 

Coal company, 4 FMSHRC 748-752 (1991). The statute, which does not 

use the phrase "reasonably likely to occur" or "reasonable 

likelihood" in defining an S&S violation, states that an S&S 

violation exists if "the violation is of such nature as could 

significantly and substantially contribute to the cause and effect 

of a coal or other mine safety or health hazard" (§ 104(d)(l) of 

the Act; emphasis added). Also, the statute defines an "imminent 

danger" as "any condition or practice .•• o which could reasonably be 

expected to cause death or serious physical harm before [it] can be 

abated," ~ and expressly places S&S violations below an imminent 

danger. 2 It follows that the Commissionus use of the phrase 

"reasonably likely to occur" or Hreasonable likelihoodn does not 

preclude an s&s finding where a substantial possibility of injury 

or disease is shown by the evidenceu even though the proof may not 

show that injury or disease was more probable than noto 

The Proposed Settlement 

The inspector issued Citation Nao 3484197u alleging 

violation of 30 C.FoRo § 75.604(b) on the ground that the trailing 

cable to a roof bolter was not Heffectively insulatedu and [did] 

not effectively exclude moisture" because there was "an opening 

measuring 1/2 inch by 1 1/2 inches through the outer insulated 

jacket, and the inner insulated conductors [were] exposed." 

The settlement motion states that the exposed inner insulation 

of the cable was intact and, therefore, injury was "unlikely to 

occur." However, it does state or indicate that the opening in the 

cable did not present a substantial possibility of injury, e.g.u 

the exposure of the inner insulation rendering it vulnerable to 

cutting or breaking, with moisture reaching live conductors, by 

forces that would not penetrate the inner insulation if the outer 

jacket were intact, or the possibility of moisture entering the 

outer jacket reaching an existing"-but unseen nick in the inner 

insulation. 

1 Section 3(j) of the 1969 Mine Act, unchanged by the Federal 

Mine Safety and Health Act of 1977; emphasis added. 

2 Section 104(d) (1) limits S&S violations to conditions that 

"do not cause imminent danger •••• " 

527 
Accordingly, the settlement motion is DENIED. The proposal to 

reduce the penalty from $136 to $86 will be approved if the motion 

is amended to delete the change to non-s&s, or if the parties show 

sufficient facts to warrant such a change. 

{)),;~ ~ti<AVh/ William Fauver 

Administrative Law Judge 

Distribution: 

Theresa C. Timlin, Esq., Office of the Solicitoru U.So Department 

of Labor, 14480-Gateway Building, 3535 Market Streetu Philadelphiau 

PA 19104 (Certified Mail) 

Joseph A. Yuhas, Esq., Tunnelton Mining Companyu P. Oo Box 367u 

Ebensburg, PA 15931 (Certified Mail) 

/fas 

528 
IN RE: 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 19 1992 

CONTESTS OF RESPIRABLE 

DUST SAMPLE ALTERATION 

CITATIONS 

Master Docket Noo 91-1 

ORDER GRANTING IN PART MOTION TO 

COMPEL FURTHER EXPERT DISCOVERY 

on March 12, 1992, the Secretary of Labor (Secretary) filed a 

Motion to Compel Further Expert Discovery. In particular, the 

Secretary seeks an order compelling the production of documents 

utilized by expert witnesses identified by the law firms Buchanan 

Ingersoll, Crowell & Moring, Jackson & Kelly and smithQ Heenan & 

Althen (the four law firms) in preparing their reports, and those 

documents which reflect the results of tests performed by the 

experts. In addition the Secretary seeks access to the 

experimental filters created by those experts, for the purposes of 

inspection, photographing and videotaping. 

A response to the motion was filed on behalf of the four law 

firms on March 16, 1992. on March 18, 1992, at the request of the 

parties, I heard further argument on the motion in a telephone 

conference call with Laura Beverage, Esq., representing the four 

law firms, and Richard Gilman, Esq., representing the Secretary. 

At the conclusion of the call, I announced my decision on the 

motion, and am reducing it to writing by this order. 

The Secretary seeks the production of documents and access to 

the experimental filters in order to more effectively examine 

Contestants' experts in their scheduled depositions. Section II. c. 

of the Discovery Plan requires the parties to exchange expert 

witness lists by January 24, 1992. Each expert must prepare a 

report with his credentials and all opinions and conclusions to 

which he expects to testify and a summary of tests, studies, etc., 

forming the basis for his conclusions or opinions. Section II.C.3. 

provides that all costs associated with expert depositions shall be 

governed by Rule 26(b) (4) of the Federal Rules of Civil Procedure. 

Because this motion relates to expert witness discovery, even 

though it deals with documents and tangible things, it is governed 

by Rule 26(b) (4) rather than 26(b) (3). The documents and tangible 

things are sought to assist in and facilitate the deposition of 

expert witnesses. 

529 
II 

The nature of these cases and the evidence of which I am aware 

make it clear that expert opinion evidence will be important, 

perhaps critical, in arriving at a decision. For this reason, the 

depositions of expert witnesses are highly important to the parties 

and to the Commission, in order that the witnesses• opinions can be 

tested by informed cross-examination. The experts' reports are 

voluminous and involve complex tests, and physical and mathematical 

formulae. To conduct adequate and meaningful examination of the 

experts, counsel must understand the background and bases for their 

reports. Accordingly, I will grant the Secretary's motion to 

produce the documents and things referred to in the motion" 

III 

The "back-up data 19 ref erred to in the Secretary a s motion 

consists of documents utilized by the experts in preparing their 

reports, and documents reflecting the results of tests performed by 

the experts. These documents are detailed in paragraphs numbered 

3 through 8 in the letter of·March 6 1 1992 from Mro Gilman to Mso 

Beverage, appended as attachment A to the Secretary 0 s motion o 

Because these are existing documentsu copies should be made 

available to the Secretary without costo Further 0 the identity of 

persons who assisted in the preparation of the reports and samples 

of the coal dust used in the experimental samples (numbers 9 and 10 

of attachment A) should be made available to the Secretary without 

cost. 

IV 

Some or all of contestants• experts created and tested 

experimental dust filters as part of their studies. A large number 

of such filters were created and tested by two of the experts and 

they form an important part of their conclusions and reports. It 

is important that the Secretary be permitted to inspect these 

filters in preparation for her · deposing the expert witnesses. 

However, examining, testing, photographing and videotaping these 

filters may take considerable time and involve some expense. I 

conclude that the Secretary, as the party seeking discovery, should 

be required to pay the reasonable expenses associated with making 

the filters available. (The parties agree that under Rule 

26(b) (4) (c), the party seeking discovery will pay the expert a 

reasonable fee for the time spent in his deposition). I do not 

believe that manifest injustice will result from requiring the 

Secretary to pay these expenses •. I have considered and reject the 

Secretary's contention that because she made the cited filters and 

other filters available in the fact discovery phase without cost to 

the operators, it is manifestly unjust to require her to bear the 

expenses incidental to making the experts' filters available in 

order that she may prepare for their depositions. 

530 
The reasonable expenses associated with making the filters 

available will include the cost of providing technician(s) to 

assemble the filters and oversee the Secretary's inspection of 

them. The parties will attempt to agree on what the reasonable 

expenses are and, if they are unable to agree, will return to me 

for a further ruling. 

v 

The Secretary's motion states that Dr. Malloy and Dr. Yao 

(listed as expert witnesses by Smith, Heenan and Althen) are 

employees of a party and therefore Rule 26(b) (4) (C) does not apply 

to them. After discussion during the conference call v was 

agreed that further consultation between counsel with respect to 

the status of these witnesses is necessaryv and I am not now ruling 

on the applicability of Rule 26(b) (4)(C) to them. 

ORDER 

In accordance with the preceding discussion, the Secretaryvs 

Motion to Compel Further Expert Discovery is GRANTED u with the 

condition that the Secretary shall pay the reasonable expenses 

associated with making the expert witnessesu experimental filters 

available for inspectionv photographing or videotapingo 

Distribution: 

)V;AN-s~ .i >.or ~#3:Vie4'~~ j' James A. Broderick 

Administrative Law Judge 

Douglas N. White, Esq., Richard L. Gilman, Esq., Office of the 

Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, 

Arlington, VA 22203 (Certified Mail) 

Laura E. Beverage, Esq., Jackson & Kelly, P. o. Box 553, 

Charleston, WV 25322 (Certified Mail) 

Timothy M. Biddle, Esq., Crowell and Moring, 1001 Pennsylvania 

Avenue, N.W., Washington, D.C. 20004 (Certified Mail) 

Michael T. Heenan, Esq., Smith, Heenan and Althen, 1110 Vermont 

Avenue, N.W., Washington, D.C. 20005 (Certified Mail) 

R. Henry Moore, Esq., Buchanan Ingersoll, 600 Grant Street, 58th 

Floor, Pittsburgh, PA 15219 (Certified Mail) 

All others regular mail. 

/fas 

531 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 26 1992 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA}, 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

Docket No. PENN 91-1375 

A. C. No. 36-04281-03736 

Dilworth Mine 

DECISION DENYING SETTLEMENT MOTION 

Before~ Judge Fauver 

This case a petition for assessment of c penal ties 

under§ 105(d) of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 801 seg. 

The parties have moved for approval of a settlement. 

The Meanina of a "Significant and 

Substantial" Violation 

Since the settlement motion proposes 1 to reduce some of the 

alleged violations from "significant and substantial" to "nonsignificant and substantial" violations, it will be helpful to 

review the meaning of this statutory_,term. 

The Commission has held that a violation is "significant and 

substantial" if there is a "reasonable likelihood that the hazard 

contributed to will result in an injury or illness of a reasonably 

serious nature." U.S. Steel Mining Co., Inc., 7 FMSHRC 327, 328, 

(1985); Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 

(1981); Mathies Coal Co., 6 FMSHRC 1, 3-4 (1984). This evaluation 

is made in terms of "continued normal mining operations." u. s. 

Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 {1984). The question 

of whether any particular violation is significant and substantial 

1 The motion states that after discussion the "significant and 

substantial 11 designation was "deleted. 11 However, the Secretary has 

no authority to change an allegation of violation after filing a 

civil penalty proceeding, without approval of the judge. 

Accordingly, the "deletions" will be considered as a settlement 

proposal to amend the citations. 

532 
must be based on the particular facts surrounding the violation. 

Texasaulf, Inc., 10 FMSHRC 498 (1988); Youghiogheny & Ohio Coal 

Company, 9 FMSHRC 1007 (1987). 

Analysis of the statutory language and the Commission's 

decisions indicates that the test of an S&S violation is a 

practical and realistic question whether, assuming continued mining 

operations, the violation presents a substantial possibility of 

resulting in injury or disease, not a requirement that the 

Secretary of Labor prove that it is more probable than not that 

injury or disease will result. See my decision in Consolidation 

Coal Company, 4 FMSHRC 748-752 (1991). The statute, which does not 

use the phrase "reasonably likely to occur 11 or "reasonable 

likelihood" in defining an S&S violationf states that an S&S 

violation exists if "the violation is of such nature as could 

significantly and substantially contribute to the cause and effect 

of a coal or other mine safety or health hazard" (§ 104(d) ( of 

the Act; emphasis added). Also, the statute defines an nimminent 

danger 11 as "any condition or practice ••. which could reasonably be 

expected to cause death or serious physical harm before [it] can be 

abated," 2 and expressly places S&S violations below an imminent 

danger. 3 It follows that the Commission" s use of the phrase 

"reasonably likely to occurn or 11 reasonable likelihood19 does not 

preclude an S&S finding where a substantial possibility of injury 

or disease is shown by the evidence, even though the proof may not 

show that injury or disease was more probable than not. 

Proposed settlement 

Citation No. 3702181 was issued for a violation of 30 C.F.R. 

§ 77.205 when the inspector observed that the travelway to the 

electrical switch box was obstructed by a wooden pallet and old 

desks, creating a tripping hazard. 

The motion states that, "while the pallet lay horizontal under 

the switch box, thus creating a possible tripping hazard, the desks 

were not directly in front of the box, and less likely to create a 

tripping hazard. Thus, the likelihood of being injured is less 

that originally assessed." 

The motion does not state or indicate that the pallet and 

desks did not present a substantial possibility of causing a 

tripping accident. Accordingly, the proposal to reduce the charge 

to a non-S&S violation will be denied. 

2 Section 3(j) of the 1969 Mine Act, unchanged by the Federal 

Mine Safety and Health Act of 1977; emphasis added. 

3 Section 104(d) (1) limits S&S violations to conditions that 

"do not cause imminent danger •..• " 

533 
_ citation Nos. 3702182 and 3702187 were issued for violations 

of 30 C.F.R. § 77.513 when the inspector observed that electrical 

control switch boxes were not provided with insulating mats nearby. 

The motion states that, while "the mats were placed on the 

outside wall to the electrical control switch boxes and within 10 

feet of the switch box, this placement does not meet the condition 

that the mat be kept in place. Moreover, while the electrical 

control switch boxes were Delta grounded system, externally 

grounded, a shock hazard was still possible depending on the method 

of installation and on the conditions existing at the switch boxes, 

such as whether it was wet. The shock hazard would be eliminated 

by the use of the insulating mats, whichv though not in place, were 

nearby. Therefore, the likelihood of being injured is less than 

originally assessed." 

The motion does not state or indicate that the failure to keep 

the insulated mats in place did not present a substantial 

possibility of resulting in an electrical injury. Accordingly, 

the proposal to reduce the charges to non-S&S violations will be 

denied. 

The settlement proposals as to Citations 3702191 and 3702193 

are appropriate and if resubmitted in a revised motion will be 

approved. 

ORDER 

WHEREFORE IT IS ORDERED that: 

1. The settlement motion as a whole is DENIED. 

2. The parties may submit a revised motion as to all or any 

of the citations involved. 

3. The citations not approved for settlement will proceed to 

hearing at a date to be set. 

()}~~~~v~ William Fauver 

Administrative Law Judge 

534