DECEMBER 1986 

COMMISSION DECISIONS 

07-12-86 

12-08-86 

12-19-86 

12-30-86 

12-30-86 

Sec. of Labor for Corbin, Corbin & Taylor 

v. Sugartree Corp., Terco, Inc., etc. 

(previously unpublished order) 

Sec. of Labor for Yale Hennessee v. 

Alamo Cnment Company 

Garry Goff v. Youghiogheny & Ohio Coal 

Kelley T·-ucking Company 

Leo Klim~zak v. General Crushed Stone Co. 

ADMINISTRATIVE LAW JUDGE DECISIONS 

12-03-86 

12-03-86 

12-04-86 

12-04-86 

12-05-86 

12-08-86 

12-09-86 

12-09-86 

12-10-86 

12-12-86 

12-12-86 

12-12-86 

12-16-86 

12-16-86 

12-16-86 

12-17-86 

12-18-86 

12-19-86 

12-23-86 

12-23-86 

12-23-86 

12-24-86 

12-24-86 

12-31-86 

12-30-86 

Anlo Energy, Inc. 

Johnny Wall v. Davidson Mining, Inc. 

Tackett Mining, Inc. 

Lester R. Copelin v. B&LS Contracting, Inc. 

King's Mill Energy, Incorporated 

Sec. Labor for DuWayne Schafer v. 

Consolidation Coal Company 

Twin Star Contracting Co., Inc. 

Sugar Hill Limestone Company 

Larry D. Swaney v. Southern Ohio Coal Co. 

Ivan Moore v. Martin County Coal Corp. 

Empire Energy Corporation 

Consolidation Coal Company 

Johnnie J. Delgado v. Barrett Industries 

Cathedral Bluffs Shale Oil Company 

Consolidation Coal Company 

U.S. Steel Mining Co., Inc. 

Drummond Company, Inc. 

Sec. Labor for Ronnie D. Clark v. 

Eldridge Coal Company 

Sec. Labor for Donald R. Hale v. 4-A 

Coal Company, Inc. 

Kanawha Coal Company 

Consolidation Coal Company 

Sahara Coal Company, Inc. 

Consolidation Coal Company 

Southern Ohio Coal Company 

Brown Brothers Sand Co. (Order) 

KENT 84-255-D Pg. 1855 

CENT 86-151-DM Pg. 1857 

LAKE 84-86-D 

CENT 85-109 

lORK 82-21-DM 

KENT 84-185 

WEVA 86-87-D 

KENT 86-53 

LAKE 86-50-D 

WEVA 86-286 

CENT 85-89-D 

KENT 86-16 

PENN 86-165 

WEVA 86-444 .... D 

KENT 85-183-D 

WEST 86-76 

WEVA 86-180-R 

CENT 86-124-DM 

WEST 81-186-M 

WEVA 86-250-R 

WEVA 86-371 

SE 86-126 

KENT 86-10-D 

VA 85-29-D 

WEVA 86-96-R 

WEVA 86-153-R 

LAKE 86-123 

WEVA 85-183-R 

WEVA 86-8-R 

SE 86-23-M 

Pg. 1860 

Pg. 1867 

Pg. 1871 

Pg. 1873 

Pg. 1877 

Pg. 1879 

Pg. 1882 

Pg. 1887 

Pg. 1892 

Pg. 1894 

Pg. 1898 

Pg. 1902 

Pg. 1904 

Pg. 1908 

Pg. 1917 

Pg. 1939 

Pg. 1944 

Pg. 1946 

Pg. 1962 

Pg. 1966 

Pg. 1968 

Pg. 1976 

Pg. 1977 

Pg. 1982 

Pg. 1988 

Pg. 1990 

Pg. 1998 

Pg. 2022 

DECEMB'ER 1986 

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

Secretary of Labor, MSHA v. Austin Power, Incorporated, Docket No. 

CENT 86-40, etc. (Judge Koutras, November 10, 1986) 

Secretary of Labor, MSHA v. Kelley Trucking Company, Docket No. 

CENT 85-109. (Judge Merlin, Default Decision, July 21, 1986) 

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

Secretary of Labor for Yale Hennessee v. Alamo Cement Company, Docket 

No. CENT 86-151-DM. (Judge Koutras, Petition for Interlocutory Review of 

November 6, 1986 Order) 

Secretary of Labor for Michael Hogan & Robert Ventura & UMWA v. Emerald 

Mines Corporation, Docket No. PENN 83-141-D. (Judge Koutras, November 7, 1986.) 

Leo Klimczak v. Ceneral Crushed Stone, Docket No. YORK 82-21-DM. (Judge 

Melick, April 6, 1983) 

COMMISSION DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 16, 1986 

on behalf of JAMES CORBIN, 

ROBERT CORBIN, and 

A. C. TAYLOR 

v. Docket No. KENT 84-255-D 

SUGARTREE CORPORATION, 

TERCO, INC., and RANDAL LAWSON 

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

ORDER 

BY: Chairman Ford; Backley and Doyle, Commissioners 

In connection with a Motion for Immediate Reinstatement, also ruled 

on today, the Secretary of Labor has filed a Motion to Direct the Payment 

of Sums into Escrow or, in the Alternative, to Direct Posting of a Bond 

as Security. Respondent Terco, Inc., has filed an opposition to the 

motion. 

1855 
Commissioner Lastowka, dissenting: 

The Secretary of Labor's motion should be granted. The administrative 

law judge has determined after a full hearing that complainants were 

unlawfully discharged. The Secretary does not seek immediate payment to 

the miners themselves of the damages awarded by the judge. 'Rather, the 

Secretary desires only to have the operator post sufficient security to 

ensure payment of the damages in the event that the operator's appeal is 

unsuccessful. Certainly, the Commission is empowered to afford the 

requested relief. 30 U.S.C. § 815(c)(3). Cf. Metric Constructors, FMSHRC 

Docket No. SE 80-31-DM (Order of August 21,-l984); see Fed. R. App. P. 7. 

The exercise of this authority is especially appropriate where one of 

the respondents ceased operations shortly after the Secretary's institution of these discrimination proceedings and the major issue before the 

Commission concerns the question of successorship. 

In weighing the relative interests of the complainants and the 

operator in this particular matter, I can discern no persuasive reason 

why the interim security sought by the Secretary should not be provided. 

Accordingly, I dissent from the denial of the Secretary's motion. 

Distribution 

Mary Griffin, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Guy E. Millward, Jr., Esq. 

Millward & Jewell 

P.O. Box 650 

Barbourville, Kentucky 40906 

1856 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), on 

behalf of YALE E. HENNESSEE 

v. 

ALAMO CEMENT COMPANY 

December 8, 1986 

Docket No. CENT 86-151-DM 

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

Commissioners 

ORDER 

BY THE COMMISSION: 

In this discrimination proceeding arising under the Federal Mine 

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

for the first time a Commission administrative law judge's order of 

temporary reinstatement under revised Commission Procedural Rule 44, 29 

C.F.R. § 2700.44 (1986)(51 Fed. Reg. 16022 (April 1986)). For the 

reasons that follow, we affirm the judge's order. 

On April 22, 1986, complainant Yale E. Hennessee was discharged by 

Alamo Cement Company ("Alamo") for alleged insubordination during the 

course of a work refusal incident. The next day Hennessee filed a 

complaint with the Secretary of Labor pursuant to section 105(c)(2) of 

the Mine Act, 30 U.S.C. § 815(c)(2), asserting that Alamo had discharged 

him unlawfully because he had refused to complete an assigned task under 

unsafe conditions. On September 10, 1986, after commencing the required 

investigation of the complaint and determining that it was not brought 

frivolously, the Secretary filed an application with this independent 

Commission for the temporary reinstatement of Hennessee. 30 U.S.C. 

§ 815(c)(2). Alamo filed a request for a hearing on the application 

pursuant to 29 C.F.R. § 2700.44(a)(l986). On October 23, 1986, a 

hearing was held before Commission Administrative Law Judge George A. 

Koutras. 

1857 
Following the hearing, Judge Koutras issued an order on November 6, 

1986, directing Alamo to temporarily reinstate Hennessee. The judge 

found that a "viable issue" was raised as to whether Hennessee's work 

refusal, which preceded his discharge, was based in part on his reasonable, good faith belief that performing the task in question was hazardous. 

Accordingly, the judge concluded that Hennessee's complaint was not 

frivolous. On November 14, 1986, pursuant to 29 C.F.R. § 2700.44(e) 

(1986), Alamo filed with the Commission a petition for review of the 

judge's order. The Secretary has filed a brief in opposition. 

We have reviewed carefully the evidence, pleadings, and briefs, and 

conclude that the judge's order is supported by the record. The scope 

of a temporary reinstatement hearing is limited to a determination by 

the judge as to whether the miner's discrimination complaint is frivolously brought. 30 U.S.C. § 815(c)(2); 29 C.F.R. § 2700.44(c)(l986). 

The judge appropriately found that the testimony and other evidence, 

including certain evidence introduced by Alamo itself, raises a nonfrivolous issue as to whether Hennessee's discharge was in violation of 

the Mine Act. We also find that the hearing afforded Alamo due process. 

As relevant here, the essence of due process is the opportunity to be 

heard. E.g., Boddie v. Connecticut, 401 U.S. 371, 378 (1971); Hodel v. 

Virginia-SUrface Mining & Reel. Assn., 452 U.S. 264, 299-300 (1981). 

Alamo has been heard in a pre-deprivation hearing, in which it was 

allowed to present witnesses and evidence and to cross-examine the 

government's witnesses. Cf. Southern Ohio Coal Co. v. Donovan, 774 F.2d 

693 {6th Cir. 1985), reh'g-denied, 781 F.2d 57 (1986). 

No view is intimated herein as to the ultimate merits of this case. 

The only issue that has been decided is that Hennessee's complaint was 

not frivolously brought. Alamo's request for a stay is denied, and the 

judge's order is affirmed. This matter is remanded to the judge. 

Further proceedings, on the part of all concerned, are to be conducted 

expeditiously. See Secretary on behalf of Donald R. Hale v. 4-A Coal 

Co., Inc., 8 FMSHRC 905, 907-08 (June 1986). 

~m~ Jy~·, Lastow~a, Commissioner 

'-/-' ; / / _,..-; I .. 7il ~ 

('--t--....._ . ,,: {IJ ; 

' I · ~L............-v ~C. . ..Lh,.,_ , L. Clair Nelson, Commissioner 

1858 
Distrihution 

David M. Thomas, Esq. 

Fulbright & Jaworski 

130l McKinney Street 

Houston, Texas 77010. 

Barry F. Wisor, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Frederick W. Moncrief, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Administrative Law Judge George Koutras 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

1859 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

GARRY GOFF 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

December 19, 1986 

Docket No. LAKE 84-86-D 

YOUGHIOGHENY & OHIO COAL COMPANY 

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

Commissioners 

DECISION 

BY THE COMMISSION: 

This proceeding concerns a discrimination complaint filed by 

Garry Goff pursuant to the Federal Mine Safety and Health Act of 1977, 

30.U.S.C. § 801 et seq. (1982)(the "Act"). Following a previous 

d.etermination bythe Commission that Goff's complaint stated a cause 

of action under section 105(c)(l) of the Act, the matter was remanded 

to Commission Administrative Law Judge Melick. The purpose of the 

remand was to determine whether Goff was discriminatorily discharged by 

the Youghiogheny and Ohio Coal Company ("Y&O") because he was "the subject 

of medical evaluation and potential transfer" under the standards set 

forth in 30 C.F.R. Part 90. 1/ 7 FMSHRC 1776 (November 1985). On remand, 

the judge examined that issue and found that Goff was not discharged in 

violation of section 105(c) (1). 2/ 8 FMSHRC 741 (May 1986) (ALJ). The 

Commission granted Goff's petition for discretionary review. For the 

reasons that follow, we affirm. 

1/ Under 30 C.F.R. Part 90, a miner determined by the Secretary of 

Health and Human Services to have evidence of the development of pneumoconiosis is given the opportunity to work without loss of pay in an area 

of the mine where the average concentration of respirable dust in the 

mine atmosphere during each shift to which that miner is exposed is 

continuously maintained at or below 1. 0 mill:tgrams per cubic meter of 

air ("mg/m3 "). 

:!:_/ Section lOS(c)(l) of the Act provides in part as follows: 

No person shall discharge or in any manner discriminate 

against or cause to be discharged or cause discrimination against 

or otherwise interfere with the exercise of the statutory rights of 

any miner ••• in any coal or other mine ••• because such miner •.• 

is the subject of medical evaluations and potential transfer under 

a standard published pursuant to section [101] of this [Act] •••. 

30 U.S.C. § 815(c)(l). 

1860 
This proceeding began when Goff filed a complaint of discrimination 

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

( 11MSHA"). Following investigation of the complaint, MSHA determined 

that a violation of section 105(c)(l) of the Act had not occurred. Goff 

then filed a complaint in his own behalf with this independent Commission 

alleging that his discharge violated the Act. Y&O moved to dismiss the 

complaint for failure·to state a cause of action. The administrative 

law judge concluded that Goff's complaint was based on an allegation 

that Goff was discriminated against because he suffers from Black Lung 

(pneumoconiosis) and that such a complaint could be resolved only under 

section 428 of the Black Lung Benefits Act, 30 u.s.c. § 901 et seq. 

(1982)("BLBA"). Therefore, the judge granted the motion to dismiss. 

6 FMSHRC 2055 (August 1984). On review, we reversed the judge's decision, 

holding that a miner may state a cause of action under section 105(c)(l) 

of the Mine Act by alleging discrimination based upon the miner being 

"the subject of medical evaluations and potential transfer" under Part 

90 and remanded the proceeding to the judge to determine whether Goff 

had been discharged unlawfully. 

Our task on review is to determine whether the judge properly 

concluded that Goff was not discriminatorily discharged in violation of 

section 105(c)(l) of the Act. A number of collateral issues were raised 

by the complainant which lie outside the scope of our review and which 

we do not address; for example, whether Goff in fact had pneumoconiosis, 

which of the various doctors seen by Goff correctly diagnosed his medical 

condition, and whether Y&O's leave policies were reasonable. Further, 

our review in no way addresses any separate remedy Goff may be seeking 

under section 428 of the BLBA. 30 U.S.C. § 938. 3/ 

I. 

Goff worked as a supervisory foreman for Y&O from September 1976 

until January 20, 1984. In August 1982, while employed at Y&O's Allison 

Mine, Goff's doctor diagnosed him as having pneumoconiosis and Goff 

thereafter was assigned to work primarily outside the mine. In October 

1983, Goff again was diagnosed by his doctor as having pneumoconiosis. 

3/ The BLEA is administered by the Employment Standards Administration 

( 11ESA11 ) of the Department of Labor. The Department of Labor is charged 

with the duty under both the Mine Act and the BLBA to investigate pneumoconiosis-related discrimination complaints.. Accordingly, the Department's 

MSHA and its ESA have entered into a Memorandum of Understanding ("MOU") 

to coordinate their investigations and to clarify their jurisdiction and 

procedures, 44 Fed. Reg. 75952 (Dec. 21, 1979). 

Under the MOU, ESA makes the determination as to whether a violation 

of section 428 of the BLBA has occurred and MSHA makes a determination 

whether a violation of section 105(c) of the Mine Act has occurred. If 

the aggrieved person proceeds with complaints under both sections, MSHA 

proceeds first with the section 105(c) complaint and ESA may then proceed 

with the section 428 complaint. The MOU reflects that the two sections 

may provide different remedies. 

1861 
return to work the next day, he would be discharged. 6/ Goff testified 

that he told Weber and Wurschum that he would be unable to work until 

his doctor authorized his return. Goff did not report to work on January 20, 

1984. .On January 21, he received a letter from Y&O dated the previous 

day informing him that he was discharged for failing to report to work. 

The letter stated that Goff's "allegation of not being able to work has 

not been documented by medical certification" and noted that the results 

of Goff's medical examination on January 13 did not indicate any reason 

that would prevent Goff from working underground. On January 30, 1984, 

Goff took a medical release dated January 24, 1984, to Weber, who indicated 

that Y&O was not hiring. 

On July 2, 1984, Goff received a letter from MSHA stating that 

based on the chest x-ray reports he had sent to MSHA on January 14, 

pneumoconiosis was indicated and he was eligible under Part 90 to work 

in an area of the mine with an average concentration of respirable dust 

at or below 1.0 mg/m3 of air. On August 8, 1984, however, Goff was further 

advised by MSHA that because he no longer was employed at an underground 

coal mine, Part 90 status was not applicable to him. 

II. 

In concluding that Y&O did not discharge Goff unlawfully, the judge 

noted that for Goff to establish a violation of section 105(c)(l), Goff 

had to prove that he engaged in protected activity and that his discharge 

was motivated in any part by the protected activity. 8 FMSHRC at 743. 

(Citing to Secretary on behalf of Pasula v. Consolidation Coal Co., 

2 FMSHRC 2786, 2799 (October 1980), rev'd on other grounds sub. nom. 

Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981).) 

With respect to the motivational issue, the judge indicated that there 

was no evidence that any Y&O personnel knew, prior to Goff's discharge, 

that he had filed a Part 90 application. 8 FMSHRC at 743-44. In addition, 

the judge concluded that Y&O officials could reasonably have given 

greater weight to the medical evidence they obtained from the Wheeling 

Park Hospital medical evaluation of Goff, which indicated that Goff did 

not have pneumoconiosis and was capable of working. 8 FMSHRC at 744. 

6/ Dr. Elliott stated in his medical report: 

Chest x-ray was within normal limits. No evidence of pneumoconiosis was seen. 

There was no evidence of any significant respiratory or 

pulmonary disease physiologically. 

I find no medical reason at this time that would prevent Mr. 

Goff from being able to work underground as a supervisor. 

8 FMSHRC at 742-43. 

1862 
Finally. the judge found that even if Y&O had known that Goff 

applied for Part 90 status, Y&O would not have been motivated to discharge 

him on that basis because Part 90 status would not have affected Goff's 

work assignment as a labor foreman. 8 FMSHRC at 744. Under Part 90, a 

qualifying miner is entitled only to transfer to a dust reduced area where 

concentrations of respirable dust are at or below 1.0 mg/m3 of air, 

and the judge noted that Wurschum believed the dust concentrations in 

the entire Nelms' Mine were less than 1.0 mg/m3 of air. The judge further 

noted that in 1984 the average respirable dust concentration in the 

outby areas of the mine, where Goff ordinarily would have worked, was 

0.55 mg/m3 of air and that even near the face the average concentration 

was less than 1.0 mg/m3 of air. 8 FMSHRC at 244. The judge concluded 

that Goff had "failed in his burden of proving that Y&O was motivated in 

any part in discharging him because he was 'the subject of medical 

evaluation and potential transfer' under Part 90." 8 FMSHRC at 745. 

III. 

Eor the reasons that follow, we affirm the judge's conclusion that 

Goff's discharge did not violate the Act. A complaining miner establishes 

a prima facie case of prohibited discrimination under the Mine Act by 

proving that he engaged in protected activity and that the adverse 

action complained of was motivated in any part by that activity. Pasula, 

2 FMSHRC at 2797-2800; Secretary on behalf of Robinette v. United Castle, 

Coal Co., 3 FMSHRC 803, 817-18 (April 1981). The operator may rebut the 

prima facie case by showing either that no protected activity occurred 

or that the adverse action was not motivated in any part by protected 

activity. Robinette, 3 FMSHRC at 818 n. 20. See also Donovan v. 

Stafford Constr. Co., 732 F.2d 954, 958-59 (D.C. Cir. 1984); Boich v. 

FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983)(specifically approving the 

Commission's Pasula-Robinette test). 

The medical examinations and procedures to which Goff was subjected 

in this case were intended to determine whether he suffered from pneumoconiosis, an initial step in obtaining Part 90 status, and as such, were 

protected activities. Further, Goff engaged in protected activity in 

applying to MSHA for a det.ermination of his eligibility for Part 90 

status. Like the medical evaluations, the application process is a 

necessary preliminary step and comes within the statutory protection 

afforded miners who are the "subject of medical evaluations and potential 

transfer" under Part 90. 

We conclude, however, that although these events constituted protected 

activities, Goff did not i:.stablish that Y&O was motivated in any part by 

knowledge of such protected activities. 

Direct evidence of actual discriminatory motive is rare. Short of 

such evidence, illegal motive may be established if the facts support a 

reasonable inference of discriminatory intent. Secretary on behalf of 

Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510-11 (November 1981), 

rev'd on other grounds sub. nom. Donovan v. Phelps Dodge Corp., 709 

1863 
F.2d 51 (D.C. Cir. 1983); Sammons v. Mine Services Co., 6 FMSHRC 1391, 

1398-99 (June 1984). The present record contains no direct evidence 

that Y&O was illegally motivated, nor does it support a reasonable 

inference of discriminatory intent. 

In examining the record for instances in which discriminatory 

intent could be inferred, we note that, with respect to Goff's medical 

evaluations of August 1982 and October 1983, Y&O did not discharge Goff 

because of these evaluations. To the contrary, the record indicates 

that Y&O accommodated Goff by assigning him work primarily on the surface. 

Not until the Allison Mine closed in early January 1984, approximately a 

year and a half after Goff's first diagnosis of pneumoconiosis, was he 

transferred to underground work. !_/ 

Similarly, no inference of discriminatory intent can be inferred 

from Y&O's response to Goff's medical evaluation of January 1984. 

Substantial evidence supports the judge's conclusion that Y&O reasonably 

relied upon Wheeling Park Hospital's January 1984 evaluation of Goff 

which, based upon specific medical tests and x-rays, indicated that Goff 

was fit to return to work. 

With respect to Goff's Part 90 application, we affirm the judge's 

finding that Y&O did not know prior to his discharge that Goff had filed 

a Part 90 application. There is no evidence that Goff told supervisory 

personnel at Y&O that he had applied or was going to apply for Part 90 

status. Goff states that he told mine manager Wurschum on January 1984, 

that he wanted to take one or two days off to "get x-rays taken" to 

settle the situation concerning his pneumoconiosis. Goff Dep. 58, Tr. 

188. According to Wurschum, Goff asked only whether he was going to be 

allowed to take some days off and Goff said nothing about having x-rays 

taken or applying for Part 90 status. Tr. 401. We note that Goff 

actually filed his application on January 14, 1984. After that date 

Goff easily could have notified Y&O personnel that he had filed for Part 

90 status (for example: in his January 16, 1984, letter to Weber or at 

the January 19, 1984, meeting). Goff did not do so. We hold that the 

record therefore supports the judge's finding that there is no "evidence 

that any Y&O personnel knew, prior to his discharge, that [Goff] had 

filed a Part 90 application." 8 FMSHRC at 744. 

7/ Goff also argues that Y&O interfered with his section 105(c)(l) 

rights by failing to report his illness as required by 30 C.F.R. Part 50 

when Y&O first became aware that he had been diagnosed with pneumoconiosis. 

We do not agree. Under Part 50, an operator is required to report 

illness, including pneumoconiosis, to the appropriate MSHA District 

Office and to the MSHA analysis center in Denver. -30 C.F.R. §§ 50.20 

and 50.20-6. Failure to report as required may be a viol'fltion of Part 

50, but it does not constitute discrimination. The purpose of reporting 

a miner's illness under Part 50 is to gather occupational illness statistics, 

not to effectuate the rights of medical evaluation and transfer inherent 

in Part 90 and protected by section 105(c)(l). 

1864 
Moreover, substantial evidence supports the judge's conclusion that 

even if Y&O had known that Goff applied for Part 90 status, it is not 

reasonable to believe it would have been motivated to discharge him on 

that basis because Part 90 status would not have affected Goff's work 

assignment. The Nelms Mine manager testified that during 1984 the 

average concentration pf respirable dust in areas outby the faces was 

0.55 mg/m3 of air, and the average concentration in inby areas was less 

than 1.0 mg/m3 of air. That testimony was not disputed. 8/ Nevertheless, 

Goff stated in his letter to Weber that on the advice of his doctor, he 

would be off work until he had a dust free job. Neither the Act nor Part 

90 gives a miner with evidence of the development of pneumoconiosis the 

right to work in a mining environment that is totally free of respirable 

dust. Rather, section 203(b)(2) of the Act, 30 U.S.C. § 843(b)(2), and 

30 C.F.R § 90.3(a) give a miner with evidence of the development of 

pneumoconiosis the right to exercise an option to transfer to an area of 

the mine with an average respirable dust concentration at or below 1.0 

mg/m3 of air, not to cease work altogether. 

There is no proof in this record that Goff would have encountered 

excessive and impermissible respirable dust concentrations in his underground assignment. As previously indicated, there is persuasive evidence 

that during 1984 the average concentration of respirable dust in areas 

outby the.faces was 0.55 mg/m3 of air and the average concentration in 

inby areas was less than 1.0 mg/m3 of air. 

By refusing to report to work until he was assigned a dust-free 

job, Goff acted beyond the purview of section 203 of the Act and 30 

C.F.R. Part 90. As such, his work refusal was not protected by the 

statute. 

Bf Although the mine manager's testimony was based on the results of 

respirable dust samples taken pursuant to 30 C.F.R. Part 70, the results 

are indicative of the respirable dust concentrations that Goff could 

expect to encounter. They reflect average concentrations of respirable 

dust in areas where Goff ordinarily would be expected to work. Tr. 355-56. 

1865 
IV. 

We find that Goff did not establish that the protected activity, 

being "the subject of medical evaluation and potential transfer", in any 

way motivated Y&O to discharge him. Rather, Y&O discharged Goff hecause 

he refused to report for work as ordered. We therefore affirm the 

judge's dismissal of Goff's complaint. 

Distribution 

Garry Goff 

57920 Rocky Fork Road 

Jacobsburg, Ohio 43933 

Gerald P. Duff., Esq. 

Hanlon, Duff & Paleudis Co., LPA 

46770 National Road West 

P.O. Box 77 

St. Clairsville, Ohio 43950 

Administrative Law Judge Gary Melick 

~ . /'?' ... ~.-e<.£~£d' .~,,(~ Richard V. Backley, CommissiOn~ 

Federal Mine Safety and Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

1866 
FEDERAL MINE SAFETY AND HEALTH REYl.EW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

KELLEY TRUCKING COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

December 30, 1986 

Docket No. CENT 85-109 

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

Commissioners 

ORDER 

BY THE COMMISSION: 

In this civil penalty proceeding arising under the Federal Mine 

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

Chief Administrative Law Judge Paul Merlin issued an Order of Default on 

July 21, 1986, finding Kelley Trucking Company ("Kelley Trucking") in 

default and assessing a civil penalty of $400. Approximately four and 

one-half months later, the Commission received a handwritten letter from 

Curtis Kelley, president of Kelley Trucking, requesting a hearing. For 

the reasons explained below, we deem this letter to constitute a request 

for relief from a final Commission order, vacate the judge's default 

order and remand for further proceedings. 

On April 18, 1985, an inspector of the Department of Labor's Mine 

Safety and Health Administration ("MSHA") issued Kelley Trucking a 

citation pursuant to section 104(d)(l) of the Mine Act, 30 U.S.C. 

§ 814(d)(l), and a withdrawal order pursuant to section 104(g)(l), 30 

u.s.c. § 814(g)(l), alleging a violation of 30 C.F.R. § 48.25(a). This 

enforcement action was taken on the grounds that two of the company's 

drivers, hauling coal under contract at the Bokoshe N.W. Mine of Commercial Fuels, Inc. ("Commercial Fuels"), lacked required miner's training. 

On June 20, 1985, MSHA's Office of Assessments, under the special assessment procedures of 30 C.F.R. § 100.5, notified Kelley Trucking that it 

proposed a civil penalty of $400 for the alleged violation. On July 12, 

1985, Kelley Trucking timely filed its "Blue Card" request for a hearing 

before this independent Commissi~n. On August 20, 1985, the Secretary 

of Labor filed a Complaint Proposing Penalty. The record indicates that 

Kelley Trucking did not file an answer to the complaint. 

1867 
On April 25, 1986, approximately eight months after the Secretary's 

complaint was filed, Judge Merlin issued an Order to Show Cause directing 

Kelley Trucking to answer the complaint within 30 days or be placed in 

default. On July 21, 1986, for failure to respond to the show cause 

order or to file the requested answer, the judge issued an Order of 

Default against Kelley Trucking directing it to pay the $400 civil 

penalty proposed by the Secretary. Kelley Trucking did not file with 

the Commission a request for review of the default order and review was 

not directed by the Commission on its own motion. Accordingly, the 

judge's default order became a final order of the Commission 40 days 

after issuance. 30 U.S.C. § 823(d)(l). 

On December 8, 1986, the Commission received by certified mail a 

four-page, handwritten letter of explanation from Curtis Kelley, owner 

of Kelley Trucking, attached to which was a copy of a letter dated July 

30, 1986, on behalf of Kelley Trucking to Allen R. Tilson, Esq., of the 

Secretary's Office of Solicitor in Dallas, Texas. In addition to contesting the violation and requesting a hearing, the December 8 letter 

stated that after receiving "the letter" from Judge Merlin, "everytime I 

would get any mail concerning this matter, I would answer ••• and would 

ask for a hearing." Kelley stated specifically that he had answered the 

April 25, 1986 show cause order, requesting a hearing, but had received 

no response. The July 30, 1986 letter to the Secretary's Solicitor's 

Office·explained Kelley's position generally and his inability to pay 

the civil penalty in one lump sum. 

The judge's jurisdiction in this matter terminated when his default 

order was issued on July 21, 1986. 29 C.F.R. § 2700.65(c). Because the 

judge's decision has become final by operation of law, Kelley Trucking's 

request for a hearing mus~ be construed as a request for relief from a 

final Commission decision incorporating by implication a late-filed 

petition for discretionary review. See, e.g., M.M. Sundt Constr. Co., 

8 FMSHRC 1269, 1270-71 (September 1986). Two questions are presented: 

(1) whether preliminary relief should be permitted by accepting Kelley 

Trucking's letter as a late-filed petition for discretionary review; and 

(2) whether the judge's default order should stand or Kelley Trucking's 

failure to answer the complaint and show cause order should be excused 

and the proceeding on the merits reopened. Id. 

We address the first question with reference to the standards set 

forth in Fed. R. Civ. P. 60(b)(l), which provides: 

On motion and upon such terms as are just, the 

court may relieve a party or his legal representative from a final judgment, order, or 

proceeding for the following reasons: 

mistake, inadvertence, surprise, or excusable 

neglect; ••• or .•• any other reason justifying 

relief from the operation of the judgment. 

Kelley Trucking appears to be a small, independent trucking firm, and 

has proceeded without benefit of counsel. On its face, Kelley Trucking's 

1868 
December 1986 letter also reveals a lack of understanding of relevant 

Mine Act and Commission procedures and confuses the separate roles of 

the Com.mission and the Department of Labor. We note in mitigation that 

Kelley Trucking did arrange to have a letter sent to the Department of 

Labor's Dallas Office explaining its general situation shortly after 

issuance of the default order. Under the circumstances, we accept 

Kelley Trucking's submission as a late-filed petition for discretionary 

review. See Sundt, supra, 8 FMSRRC at 12 71. 

As to the substantive aspects of Kelley Trucking's request, we have 

observed repeatedly that default is a harsh remedy and that if the 

defaulting party can make a showing of adequate or good cause for the 

failure to respond, the failure may be excused and appropriate proceedings 

on the merits permitted. Sundt, 8 FMSHRC at 1271. Rule 60(b)(l) factors 

in the forefront, we find relevant the fact that the company appears to 

be a small trucking firm, which has proceeded without benefit of counsel. 

The company filed a timely "Blue Card" request for a hearing. Kelley 

Trucking's December letter alleges that it submitted a response to the 

judge's show cause order and that it communicated in good faith throughout 

the proceedings below. The record does not contain any such response to 

the show cause order. However, Kelley Trucking has raised the possibility 

of an unintended failure of communication or breakdown in the mail 

delivery system. On the present record, we cannot evaluate the credibility 

of this assertion and are not prepared to rule summarily. Sundt, 8 FMSHRC 

at 1271. In the interest of justice, we conclude that Kelley Trucking 

should have the opportunity to present this position to the judge, who 

shall determine whether relief from the default order is warranted. 

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

the matter is remanded for proceedings consistent with this order. 

Kelley Trucking is reminded to serve the opposing party with copies of 

all its correspondence and other filings in this matter. 29 C.F.R. 

§ 2700.7, 

~ 

Ford B F d B. Ford, Chairman 

~~ylq~o~ 

Last_wka, 

@~'- fu_~, L. Clair Nelson, Commissioner 

1869 
Distribution 

Mr. Curtis Kelley 

Kelley Trucking Company 

H C 63, Box 10 

Hodgen, Oklahoma 74939 

Allen Reid Tilson, Esq. 

Off ice of the Solicitor 

U.S. Department of Labor 

525 Griffin Street, Suite 501 

Dallas, Texas 75202 

Ann Rosenthal, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Chief Administrative Law Judge Paul Merlin 

Federal Mine Safety & Health Review Commission 

1730 K Street, N.W., Suite 600 

Washington, D.C. 20006 

is10 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

December 30, 1986 

LEO KLIMCZAK 

v. Docket No. YORK 82-21-DM 

GENERAL CRUSHED STONE CO. , INC. 

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

Commissioners 

ORDER 

BY THE COMMISSION: 

Leo Klimczak has filed with the Commission a motion seeking a new 

hearing in this matter. On April 6, 1983, Commission Administrative Law 

Judge Gary Melick issued a decision dismissing Mr. Klimczak's discrimination complaint; that decision became a final order of the Commission 

by operation of the statute, and on lfarch 9, 1984, the United States 

Court of Appeals for the Second Circuit affirmed the judge's decision. 

5 FMSHRC 684 (April 1983)(ALJ), aff'd mem., No. 83-4122 (2d Cir. March 9, 

1984). For the reasons that follow, the motion for a new hearing is 

denied. 

The basis of Klimczak's motion is an assertion that he has obtained 

new evidence, which he claims establishes his complaint of discrimination. 

Once a petition for review of a final Commission decision is filed in a 

federal court of appeals, the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 801 et seq. (1982), provides that jurisdiction to 

entertain a motion for-reave to adduce additional evidence rests 

exclusively with the court while the petition is pending before it. 

30 U.S.C. § 816(a). As noted above, this matter was reviewed in the 

Second Circuit, and Klimczak did not seek permission during that 

proceeding to adduce additional evidence. 

Even assuming that the Commission has jurisdiction in this matter, 

this motion, filed more than two and one-half years after the court's 

decision, is seriously untimely (cf. Fed. R. Civ. '!?. 60(b), which provides 

a one-year time limit for motions-re~uesting relief from a final judgment 

on the basis of newly discovered evidence). Further, Klimczak fails to 

demonstrate why this alleged new evidence could not have been discovered 

earlier with the exercise of due diligence. 

1871 
Accordingly, the motion for a new hearing is denied. 

Distribution 

Mr. Leo Klimczak 

210 West Adsworth Avenue 

Avon, New York 14414 

General Crushed Stone Company 

No. 6 County Road 

Honeoye Falls, New York 14472 

Administrative Law Judge Gary Melick 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

1872 
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 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ANLO ENERGY, INC., 

Respondent 

DEC 3 1986 . . 

. . 

. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 84-185 

A.C. No. 15-13862-03510 

Peacock Mine No. 1 

DECISION 

Appearances: Mary Sue Ray, Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, TN, for 

Petitioner; 

Respondent did not appear at the hearing. 

Before: Judge Fauver 

This case was brought by the Secretary of Labor for 

assessment of civil penalties under the Federal Mine Safety 

and Health Act of 1977, 30 u.s.c. § 801, et seq. 

Respondent did not appear at the hearing, but submitted 

a letter stating its position on the charges. Having 

considered the letter, the hearing evidence, and the record 

as a whole, I find that a preponderance of the substantial, 

reliable, and probative evidence establishes the following: 

FINDINGS OF FACT 

1. At all relevant times, Respondent operated Peacock 

Mine No. 1 at Greenville, Hopkins County, Kentucky. It had 

operated the Peacock Mine No. 1 since December 1, 1982. The 

Peacock Mine No. 2 is an underground coal mine operating two 

shifts per day, employing 15 to 20 employees, and producing 

coal for resale in interstate commerce. 

2. Respondent had a history of twelve violations of the 

Act between December 1, 1982, and March 25, 1984, including 

electrical, roof control, ventilation, methane monitor, and 

two recordkeeping violations. 

3. In a spot inspection of the Peacock Mine No. 1 in 

March, 1984, Inspector Curtis Haile found that around the 

general face area water was ranging in depth from O to 10 

inches. The floor of the mine was erratic in height, and the 

1873 
water level varied depending on the floor. Inspector Haile 

issued § 107(a) withdrawal order on March 26, 1984, after 

finding an imminent danger because of defects in the power 

center. In connection with that order, on the same day he 

issued Citations 2338752 and 2338753, which are the subject 

of this proceeding. 

4. Citation 2338752 was issued for a violation of 30 

C.F.R. § 75.900 in that grounded phase protection was not 

provided for three phase circuits on the power center. 

Inspector Haile tested these circuits by simulating a ground 

fault condition by the use of a five amp fuse. He testified 

that, during the first test on the first breaker, the breaker 

tripped as normal, but when he checked the remaining 

breakers, none of them would de-energize. He went back and 

checked the first breaker and it also failed to trip. He 

testi~ied that the first breaker test in which the breaker 

tripped as normal was most likely faulty because of a carbon 

arc or a very small wire connecting its zig zag transformer, 

which burned out in the second test. He stated that when he 

checked the power center to verify abatement, he found that 

the grounding resistors had been completely bypassed. This 

resulted in a grounded system with no circuit limitation. 

Inspector Haile testified that it was highly likely this 

condition would result in a fatal accident involving at least 

one person should a ground fault condition appear on the 

frame of any piece of equipment. He testified that a 

reasonably qualified electrician would have detected the 

condition upon testing, and that it was negligence to bypass 

the grounding resistors. 

5. Citation 2338753 was issued for a violation of 30 

C.F.R. § 75.902 in that the ground monitoring circuits were 

not operative on the main power center. Inspector Haile 

testified that ground monitoring circuits are required to 

ensure that there is a viable ground wire continuously in 

operation from the power system center to the frame of the 

piece of equipment. In the event that a ground fault occurs, 

this would provide a path for energy to return from the frame 

of the equipment to the power center where it would be 

de-energized by a breaker. Inspector Haile found three 

separate circuits in which the ground wire monitor was not 

functioning: shuttle car number three, a satellite pump, and 

shuttle car number two. None of these was tagged out and all 

of them were available for use. Inspector Haile testified 

that it was likely that the satellite pump would be used 

sometime in the near future and that the shuttle car circuits 

were used routinely in coal ;;>reduction operations. This was 

a very serious violation in that, at any given time, the 

ground wire could sever due to faulty manufacture, a faulty 

splice, or normal wear and tear. If the ground wire were 

severed and the machinery were involved in a ground fault, 

1874 
the hazard could result in a fatality. Normally the ground 

monitors would be checked weekly. 

6. Respondent presented no claim or evidence of 

financial hardship with respect to payment of the proposed 

penalties. 

DISCUSSION WITH FURTHER FINDINGS 

The violation charged in citation 2338752 was due to 

negligence in that the company knew or should have known of 

the violation. It was likely that the condition would cause 

a fatality. 

The violation charged in citation 2338753 was due to 

negligence in that the company knew or should have known of 

the violation. It was a serious violation with a risk of a 

fatality. 

Respondent is a small operator within the meaning of the 

Act. 

Respondent had a total of 12 reported citations from 

December 1, 1982, to March 25, 1984. Six of these citations 

were significant and substantial and one was accompanied by a 

§ 107Ca) order. Prior violations include a cable violation, 

a ground monitor violation, an improper identification of 

circuit breaker violation, improper splicing of cables, and 

improper inspection and cover plates. 

The violations involved here were both abated within the 

time given. 

Considering all of the criteria of § llO(i) of the Act 

for assessing civil penalties, Respondent is ASSESSED a 

penalty of $900 for the violation charged in Citation 2338752 

and a penalty of $550 for the violation charged in Citation 

2338753. 

CONCLUSIONS OF LAW 

1. The Commission has jurisdiction in this proceeding. 

2. Respondent violated 30 C.F.R. § 75.900 as alleged in 

Citation 2338752. 

3. Respondent violated 30 C.F.R. § 75.902 as alleged in 

Citation 2338753. 

1875 
ORDER 

Respondent shall pay the above civil penalties in the 

total amount of $1.1450.00 within 30 days of this Order. 

Distribution: 

/. ~~ ~Ve/L.-- t.({\11iam Fadv':r 

Administrative Law Judge 

Mary Sue Ray, Esq., Office of the Solicitor, U.S. Department 

of Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN 

37203 (Certified Mail} 

John Baird, Agent for Service: Anlo Energy, Inc., 518 

Hopkins Street, Greenville, KY 42345 (Certified Mail) 

Kellan Lamb, Esq., Anlo Energy, Inc., P.O. Box 229, 

Greenville, KY 42345 (Certified Mail) 

Flem Gordon, Esq., Gordon & Gordon, P.s.c., 1500 Fredrica 

Street, P.O. Box 390, Owensboro, KY 42302-0390 (Certified 

Mail) 

kg 

1876 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 3 1986 

JOHNNY WALL, DISCRIMINATION PROCEEDING 

Complainant 

v. 

DAVIDSON MINING, INC., 

Respondent 

Docket No~ WEVA 86-87-D 

MSHA Case No. HOPE CD 86-1 

No. 1 Mine 

ORDER OF DISMISSAL 

Before: Judge Koutras 

Statement of the Case 

This discrimination case was scheduled for a hearing on 

October 21, 1986, in Beckley, West Virginia, and the parties 

were so informed by my Notice of Hearing of August 6, 1986. On 

September 25, 1986, complainant's counsel Kathryn R. Bayless 

advised me by telephone that the parties agreed to settle the 

matter, and that they would file their joint settlement agreement 

with me within the next week. In view of the settlement, the 

scheduled hearing was cancelled, and the parties were so informed 

by my order of October 9, 1986. The parties were requested to 

file their settlement agreement with me by October 19, 1986. 

They have failed to do so. 

In view of the failure by the parties to file their settlement agreement with me, or to otherwise communicate with me 

regarding the status of the case, I issued an order on 

November 11, 1986, directing the parties to show cause why this 

matter should not be dismissed because of their failure to 

respond to my orders. The parties have again failed to respond. 

ORDER 

In view of the failure by the parties to respond to my 

Orders, this matter IS DISMISSED. 

-~Jn Administrative t~~~:J Law Judge 

1877 
Distribution: 

Kathryn R. Bayless, Esq., Bayless & Willis, 1626 North Walker 

Street, Princeton, T/JV 24740 (Certified Mail) 

David Burton, Esq., Burton & Gold, 1460 Main Street, P~O. 

Box 5129, Princeton, WV 24740-5129 (Certified Mail) 

Mark M. Neil, Esq., John F. Rist, III, Esq., 1800 Harper Road, 

Beckley, WV 25801 (Certified Mail) 

/fb 

1878 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 4 1986 

SECR~TARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

AD.dINISTRATION (MSHA) , 

Petitioner 

v. 

TACKETT MINING, INC., 

Respondent 

Docket No. KENT 86-53 

A.C. No. 15-12129-03519 

No. 4 Mine 

DECISION 

Appearances: Mary Sue Ray, Esq., Office of the Solicitor, 

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

for the Petitioner. 

Before: Judge Koutras 

Statement of the Case 

This proceeding concerns a proposal for assessment of civil 

penalty filed by the petitioner against the respondent pursuant 

to section llO(a) of the Federal Mine Safety and Health Act 

of 1977, 30 u.s.c. § 820(a), seeking a civil penalty assessment 

of $900 for an alleged violation of mandatory safety standard 

30 C.F.R. § 75.400, as stated in a section 104(d) (1) "S&S" 

Citation No. 2470592 served on the respondent on August 7, 1985. 

The citation was issued after an inspector observed an accumulation of loose coal and coal dust to a depth of 1 to 6 inches 

along a belt conveyor. 

The respondent filed a timely answer, and the case was 

docketed for a hearing in Paintsville, Kentucky, with several 

other cases during the hearing term November 18-20, 1986. However, in view of a proposed settlement agreement, no testimony 

was presented at the hearing, and the petitioner was permitted 

to file the proposed settlement motion for my consideration pursuant to Commission Rule 30, 29 C.F.R. § 2700.30, and it was 

approved from the bench (Tr. 3). 

1879 
Discussion 

In support of the proposed settlement disposition of this 

case, the petitioner has submitted information pertaining to 

the six statutory civil penalty criteria found in section llO(i) 

of the Act. In addition, the petitioner has submitted a full 

discussion and disclosure as to the facts and circumstances 

surrounding the issuance of the citation in question, and a 

reasonable justification for the reduction of the original proposed civil penalty assessment. The proposed settlement requires 

the respondent to pay a civil penalty assessment of $300 for the 

violation in question. 

The information submitted by the parties reflects that the 

respondent is a small mine operator with 11 employees and 

25,000 tons of coal production in 1985. A letter from the 

respondent's CPA reflects that the mine operated at a loss of 

$16,384.27, for the year ending December 31; 1985, and expects 

a loss as high as $50,000 for 1986. The parties agree that the 

initial civil penalty proposal of $900 would affect the respondent's ability to continue in business 

Conclusion 

After carefui review and consideration of the pleadings, 

arguments, and submissions in support of the motion to approve 

the proposed settlement of this case, I conclude and find that 

the proposed settlement disposition is reasonable and in the 

public interest. Accordingly, pursuant to 29 C.F.R. § 2700.30, 

the motion IS GRANTED, and the settlement IS APPROVED. 

ORDER 

Respondent IS ORDERED to pay a civil penalty in the amount 

of $300 in satisfaction of the violation in question within 

thirty (30) days of the date of this decision and order, and 

upon receipt of payment by the petitioner, this proceeding is 

dismissed. 

12/ 7 ~ -----/ 

~~~4/ ~ /4-i·$'id~ J?'OO'ftJe /,(. Koutras 

Administrative Law Judge 

1880 
Distribution: 

Mary Sue Ray, Esq., Office of the Solicitor, U.S. Department of 

Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN 37203 

(Certified Mail) 

Mr. Jerry Tackett, President, Tackett Mining, Incorporated, 

Post Office Box 1412, Paintsville, KY 41240 (Certified Mail) 

G. Chad Perry, Esq., Perry & Preston, P.O. Drawer C, Paintsville, 

KY 41240 (Certified Mail) 

/fb 

1881 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 4 1986 

LESTER R. COPELIN, : DISCRIMINATION PROCEEDING 

Complainant 

v. 

B & LS CONTRACTING, INC., 

Respondent 

. . 

. . 

Docket No. LAKE 86-50-D 

DECISION 

Appearances: Lee J. Hoefling, Esq., Rusk, OVerton & Hoefling, 

Washington, Indiana for Complainant; 

Martin J. Klaper, Esq., and Douglas C. Haney, Esq., 

Ice, Miller, Donadio & Ryan, Indianapolis, Indiana, 

for Respondent. 

Before: Judge Broderick 

STATEMENT OF THE CASE 

Complainant contends that he was discharged from his job as 

heavy equipment operator for Respondent because of activities 

protected under the Federal Mine Safety and Health Act of 1977 

(the Act). Pursuant to notice, the case was called for hearing 

on June 25, 1986 in Evansville, Indiana. Lester Copelin 

testified on his own behalf. John Jackson, Cletus Taylor, Walter 

Roy, Larry Spencer and James Craig tetified for Respondent. Both 

parties have filed post hearing briefs. Based on the entire 

record and considering the contentions of the parties, I make the 

following decision. 

FINDINGS OF FACT 

complainant worked for Respondent from about January, 1979 

until he was discharged on April 9, 1985. He was a heavy 

equipment operator, primarily operating a 992 Caterpillar loader 

at Respondent's Apraw Mine, a surface coal mine near Washington, 

Indiana. His duties were to load overburden into the loader 

bucket and take it to waiting dump trucks. Prior to April, 1985, 

his work was generally satisfactory except for some complaints of 

being a little slow and not working well in the presence of water 

in the pit. Complainant worked the night shift, from 6:00 p.m. 

to 5:30 a.m. He was paid $12.85 an hour. 

1882 
On a number of occasions beginning in about 1983, 

Complainant complained to foremen Walter Roy and Larry Spencer 

about the improper placement of light plants at the pit causing 

glare and shadows, and making it difficult for the loader 

operators to see very well. When these complaints were made, the 

foremen generally attempted to move the light plants to minimize 

the problem. There were instances when it was not possible to 

relocate the light to avoid glare and shadows, and there were 

other instances when the foremen ignored his complaints. 

Complainant never complained to the Mine safety and Health 

Administration about the placement of light plants. Similar 

complaints were made by other loader operators and others working 

in the pit area at night. 

In about March, 1985, a highwall collapsed at the mine. 

Larry Spencer, the foreman, in commenting on the collapse, stated 

that accidents like that just happen occasionally. Complainant 

told Spencer that they did not have to happen when cracks in the 

wall were evident. Complainant complained to his foremen on 

prior occasions of cracks in highwalls. 

On April 3, 1985, night shift superintendent Frank Derman 

asked Pit foreman Cletus Taylor why the 992 loader operated by 

Complainant was being operated at such slow pace. Derman 

directed Taylor to talk to Complainant about why the work was 

progressing so slowly. Complainant had been assigned to dig 

out a ramp and haul it away from the coal seam. Taylor asked 

Complainant if there was anything wrong with the loader and was 

told that there was· not. Taylor operated the loader himself and 

determined that there were no problems with it. He told 

Complainant that he was going to have to pick up his rate of 

speed and load a little faster. There were no light plant 

problems that night and the work was being performed on level 

ground. 

At the end of the shift on April 4, 1985 at between 6 and 7 

a.m., Complainant approached John Jackson, Mine Superintendent 

and told him that he had been reprimanded by Pit Foreman Taylor 

for working too slowly. Complainant thought the reprimand was 

unfair because he was getting as much out of the machine as it 

was capable of. Jackson told him he would look into the matter. 

Jackson timed the cycles of the 992 loader operators on the day 

shift. The cycle times varied from 32 to 38 seconds. Cycle time 

is the elapsed time from the dumping of a load in a truck, 

returning to the spoil pile, loading the bucket and returning to 

the truck. At the beginning of the next night shift (April 4), 

Jackson asked Taylor to time Complainant's cycles for 30 minute 

time periods 2 or 3 times during the shift. Taylor did time his 

cycles during three 30 minute periods. The average cycle time 

was 60 seconds. Taylor also timed Complainant's cycles on 

1883 
April 4. The times ranged from 50 to 60 seconds. He also timed 

the cycles on the day shift of April 5 and the cycle times varied 

from 32 to 38 seconds. On Monday April 8, Jackson timed the 

cycles on the day shift and they again ranged from 32 to 38 

seconds. He timed.Complainant early in his shift on April 8, and 

found his cycle times ranged from 50 seconds to 60 seconds plus. 

Jackson then went to talk to Complainant and told him that he had 

checked his complaint and found that Complainant's cycle times 

were too slow and that his work pattern was inefficient. Jackson 

said Complainant would have to improve quick or he would be 

replaced. Complainant replied: "If you don't like my work, send 

me down the road." (Tr. 50) Complainant was sent back to work 

and Jackson went home (about 8 or 9 p.m.). Jackson returned at 

about 4 a.m., April 9 and again checked Complainant's cycle times. 

They varied from 50 seconds to over 60 seconds. Jackson then 

decided to terminate Complainant. He informed Complainant of the 

decision at the beginning of the second shift on April 9. 

The pit area where Complainant worked on April 3/4 was flat. 

Complainant contends that on April 8/9 he was "digging downhill 

at a reasonably steep angle ••• " (Tr. 12) He stated that the 

angle of the slope was "probably four to one. 11 (Tr. 27) 

Jackson stated that the slope was approximately 10 percent --

"somewhere about 10 feet per hundred feet drop. 11 (Tr. 56) Pit 

Foreman Walter Roy stated that the slope on which Complainant 

worked "wasn't near that steep (four to one)" (Tr. 96). He also 

testified that the slope "wasn't flat. It was comfortable." 

(Tr. 99). I find that on April 8/9 Complainant was digging on a 

downhill slope of approximately a 10 percent grade, and this 

grade should not significantly affect the cycle time of a loader 

operator. 

After his discharge, Complainant began working for Gohmann 

Asphalt and Construction Company in May, 1985 as a heavy 

equipment operator. He was laid off in November, 1985, and 

returned to work in March, 1986. He is paid $16.50 an hour. 

ISSUES 

1. Was Complainant discharged for activities protected 

under the Act? 

2. so, what remedies are appropriate for the 

discriminatory discharge? 

1884 
CONCLUSIONS OF LAW 

1. JURISDICTION 

Respondent operated a surface coal mine subject to the Act. 

Complainant was a miner and is protected by section 105(c) of the 

Act. I have jurisdiction over the parties and subject matter of 

this proceeding. 

2. DISCRIMINATION-GENERAL RULE 

Under the Act, a miner can establish a prima facie case of 

discrimination by showing that he engaged in protected activity 

and that the adverse action complained of was motivated in any 

part by that activity. Secretary/Pasula v. Consolidation Coal 

Co., 2 FMSHRC 2786 (1980), rev'd on other grounds sub nom. 

Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 

1981); Secretary/Robinette v. United Castle Coal Co., 3 FMSHRC 

803 (1981). The operator may rebut the prima facie case by 

showing either that no protected activity occurred or that the 

adverse action was not motivated in any part by protected 

activity. If the operator cannot rebut the prima facie case in 

this manner, it may affirmatively defend by showing that it was 

motivated also by the miner's unprotected activities and would 

have taken the adverse action for the unprotected activites alone. 

Pasula, supra; Simpson v. Kenta Energy Inc., 7 FMSHRC 1034 

(1986). 

3. PROTECTED ACTIVITY 

Complainant's complaints about the improper placement of 

light plants causing glare and other obstructions to his vision 

obviously were related to the safe operation of his loader. 

Therefore, these complaints constituted activity protected under 

the Act. Complainant's discussion with Spencer following the 

highwall collapse in March, 1985 was a general statement of blame 

and is too amorphous to constitute protected activity. 

Complaints of visible cracks in the highwall would be protected. 

However, Complainant's testimony concerning such complaints was 

vague and totally lacking in specificity. 

Refusal to work at a pace which would affect safety would be 

protected under the Act. But Complainant did not refuse to speed 

up his cycle time. He stated that he was unable to work at the 

required pace. Inability to work at the speed required by a mine 

operator is not protected by the Act. The evidence does not show 

that because of safety concerns, Complainant worked at a slower 

pace than Respondent demanded. 

1885 
ADVERSE ACTION AND MOTIVATION 

Complainant was discharged ostensibly for working too slowly. 

There is no evidence that his previous complaints regarding the 

placement of light plants or the cracks in the highwall played 

any part of Respondent's decision to discharge him. The evidence 

is overhwelming that the decision to discharge was motivated 

solely by Complainant's slowness in operating his machine. 

Complainant contends that conditions in the pit made a 37 second 

cycle time unsafe. However, he also testified that he "went as 

fast as [heJ could" (Tr. 18). The thrust of his testimony is 

that he was unable to work as fast as Respondent desired. 

Whether it was fair to terminate an employee with 6 years 

seniority on the basis of slow work performance for 3 or 4 days 

is not an issue that I have to resolve. I conclude that 

Complainant~s discharge was not motivated in any part by activity 

protected under the Act. If it were, I would conclude that the 

evidence establishes that Respondent would have terminated him in 

any event for unprotected activities alone. 

ORDER 

Based upon the above findings of fact and conclusions, the 

complaint and this proceeding are DISMISSED because the evidence 

does not establish a violation of section 105(c) of the Act. 

,/~ ,;4-13(/ll~;;i cJ James A. Broderick · Administrative Law Judge 

Distribution: 

Lee J. Hoefling, Esq., Rusk, Overton & Hoefling, 101 East Walnut 

Street, Washington, Indiana 47501 (Certified Mail) 

Martin J. Klaper, Esq., Ice, Miller, Donadio & Ryan, One American 

Square, Box 82001, Indianapolis, Indiana 46282-0002 (Certified 

Mail) 

slk 

1886 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 5 1986 

SECRETARY OF LABOR CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

KING'S MILL ENERGY, 

INCORPORATED, 

Respondent 

. . Docket No. WEVA 86-286 

A.C. No. 46-01735-03539 

Docket No. WEVA 86-317 

A.C. No. 46-01735-03540 

Docket No. WEVA 86-318 

A.C. No. 46-01735-03541 

Ki~g's Mill No. 1 Mine 

DECISION 

Appearances: P~ge H. Jackson, Esq., Office of the Solicitor, 

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

for Petitioner; 

Before: 

Paulo. Clay, Jr., Esq., King's Mill Energy, 

Incorporated, Fayetteville, West Virginia, for 

Respondent. 

Judge Melick 

These cases are before me upon the petitions for civil 

penalty filed by the Secretary of Labor pursuant to section 

105(d) of the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. § 801 et seq., the "Act," charging King's Mill Energy, 

Incorporated (King's Mill) with regulatory violations and 

seeking an appropriate civil penalty for each violation. At 

hearings held in Charleston, West Virginia the parties agreed 

to settle all but one of the citations at issue proposing a 

reduction in penalties from $995 to $745. I have considered 

the representations and documentation submitted in connection 

with the settlement proposal and I conclude that the proffered 

settlement is appropriate under the criteria set forth in 

section llO(i) of the Act. 

The remaining citation, Citation No. 2715285,alleges a 

"significarit and substantial" violation of the operator's 

roof control plan under the standard at 30 C.F.R. § 75.200 

and charges as follows: 

The approved roof control plan, permit no. 

4-RC-11-70-1123-13 was not being followed in that a 

miner was permitted to work inby permanently and 

temporarily supported roof in the last cross-cut 

1887 
between the No. 4 and No. 5 entries on the North 

Mains Section. A roof fall occurred fatally 

injuring the miner. The fall measured 15'9" X 7'7" 

and 0-8 inches thick. 

King's Mill admits that it violated the roof control 

plan as alleged and concedes that the violation was "significant and substantial" and serious. It argues only that the 

proposed penalty of $3,000 was excessive in that the violation was not the result of its negligence. 

The relevant provisions of the roof control plan read as 

follows: 

When loose, broken, or drummy roof is encountered, 

mining shall be discontinued and bolts shall be 

installed on 4-foot lengthwise and crosswise 

spacing to within 4 feet of the face before mining 

is resumed. When mining in conditions described 

above, the length of the miner runs shall be 

limited to a depth that no person will be required 

to advance inby the last row of bolts during mining 

operations. (Government Exhibit 5 page 18 ~ 4) 

MSHA's undisputed investigative report reads, as 

relevant hereto, as follows: 

On Tuesday, November 5, 1985, at about 7:50 a.m., 

the day shift production crew under the supervision 

of Charles Sawyers, section foreman, arrived on the 

north mains (013 MMU) section. Sawyers conducted a 

preshift examination of the section and assigned 

work duties. Mining, with a Wilcox Mark 22 continuous mining system, was started in the No. 3 to 

No. 2 crosscut and then continued in the No. 3 

entry face. 

According to Franklin Scott, continuous miner 

operator, and Frank Stevens, front bridge conveyor 

operator, the roof became drummy'and loose in the 

No. 3 entry face area as the coal was cut from the 

mine roof. Mining was stopped and the continuous 

mining machine trammed out of the No. 3 entry into 

the No. 4 to No. 5 entry crosscut. This crosscut 

had been mined through into the No. 5 entry by this 

section crew on November 4, 198~. According to 

Sawyers, the cut through lift was about 14 feet 

wide and was done to provide better face ventilation across the section. This cut through was roof 

bolted during the evening shift on November 4, 1985. 

Scott stated that he trammed the continuous mining 

machine into the mined through area and mined two 

or three runs Clifts) across th~ coal face, which 

1888 
further opened the crosscut into the No. 5 entry. 

Sawyers was helping Ronald Lane, timberman, set 

timbers and clean the right side of the crosscut 

opening during this mining. Sawyers then 

instructed Scott to move the continuous mining 

machine back into the crosscut and shear (slab) 

the left ribline to widen the crosscut so that the 

continuous mining system could be advanced into the 

No. 5 entry. Sawyers then left the area to conduct 

a preshift examination for the evening shift. Lane 

crossed the bridge conveyor to the left side of the 

crosscut and Scott moved the mining machine back. 

Scott began shearing the rib line and Lane followed 

timbering and cleaning along the left rib beside 

the mining machine. 

During this mining a portion of the newly exposed 

roof, measuring 15' 9" X 7' 7" X 0-6" thick, fell 

along the sheared left rib. Scott stated that he 

was not facing the rib at the time of the fall and 

due to low mining height limiting his visibility, 

was unsure as to the whereabouts of Lane. Scott 

stopped the machine, crossed the bridge conveyor, 

and saw that Lane had been covered with the fallen 

slate. Scott summoned the foreman and mine electrician, Albert Sawyers, for help. These men used 

a lifting jack with timbers for blocking and recovered 

Lane from under the rock. Lane was examined and no 

vital signs found. Lane was transported to the 

surface into an awaiting ambulance and taken to a 

local hospital where he was pronounced dead on 

arrival. 

It is undisputed that had the fallen rock been tested by 

the sound and vibration method prior to its falling it would 

have sounded "drummy" and that the cited area had not been 

roof bolted. The evidence also shows that the deceased had 7 

years underground coal mining experience, had completed 9 

days of training at the· King's Mill No. 1 mine and had been 

working by himself at this mine for 4 or 5 days. Mine Superintendent Burke had also personally reviewed the roof control 

plan with the deceased. In addition before he left the 

deceased on the day of this incident the section foreman had 

reminded the deceased that the top was "drummy" in the crosscut and had warned him to stay on the right side of the 

cross-cut away from the endangered ar.ea. 

Superintendent Burke observed that the deceased was in 

violation of company policy by placing himself inby permanent 

supports under these circumstances. Burke had fired 2 miners 

for similar violations of company policy. He could offer no 

explanation as to why the deceased had violated this policy 

on this occasion. 

1889 
In arguing that the Respondent was negligent the government maintains that the deceased was a new employee with less 

than 3 weeks experience and had not been subject to a 

"written" training program. This argument does not however 

take into consideration that the deceased was a miner with 

many years experience and had been specifically trained in 

the roof control provisions barring miners inby roof bolts 

where drummy conditions existed. ·The government's argument 

also fails to take into consideration the undisputed evidence 

that Sawyers specifically warned Lane about the drummy roof 

conditions in the cross-cut at issue and told him to stay on 

the right side of the cross-cut, an area which had been 

properly supported. 

The government next contends that the operator's negligence may be shown by the fact that the section foreman had 

taken the deceased inby the roof bolt support on the right 

side of the No. 5 entry earlier on the shift at a time when 

the continuous miner was allegedly cutting coal. It is 

undisputed however that the miner was not in fact cutting 

coal when Sawyers and Lane were at the right side of the No. 

5 entry. Moreover it is clear that this area was not a 

"drummy" area and it was accordingly permissible for miners 

to be in the area that was then supported by timbers. Thus 

it was not a violation of the roof control plan for Sawyers 

and Lane to have positioned themselves in the noted area and 

Lane could not therefore have inferred from this positioning 

that it was somehow acceptable to violate the roof control 

plan. Under the circumstances there is insufficent evidence 

to support a finding of operator negligence as alleged. 

In assessing a penalty for this ~iolation I have also 

considered that the operator is small in size and has a 

moderate history of violations. There is also no dispute 

that the violation was abated in accordance with MSHA's 

directives. Under the circumstances a penalty of $100 is 

deemed appropriate for the violation. 

ORDER 

King's Mill Energy Incorporated is dire~ted to pay civil 

penalties of $845 within 30 days of the date of this decision. 

n I l ; \ ' 

I i · •I , \ ' .> 

I ' I(/,_,.-~ : ' .\ . \. .' \) \ ; ' - ....__ __ j "----..... I 1 -,. 

gary M lick \ \ 

Admini~trative\Law Judge ; \ \i 

. \ \ 

1890 
Distribution: 

Page H. Jackson, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Blvd., Rm 1237A, Arlington, VA 

22203 (Certified Mail) 

Paul O. Clay, Jr., Esq., King's Mill Energy, Inc., P.O. Box 

871, Fayetteville, WV 25840 (Certified Mail) 

rbg 

1891 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

DEC 8 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

ON BEHALF OF 

OuWAYNE SCHAFER, 

Complainant 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

. . 

. . 

. . 

. . 

1986 

DISCRIMINATION PROCEEDING 

Docket No. CENT 85-89-D 

Glenharold Mine 

SUPPLEMENTAL DECISION 

Appearances: Margaret A. Miller, Esq., Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, 

for Complainant; 

Gregory Lange, Esq., Richardson, Blaisdell, Isakson 

and Lange, Hazen, North Dakota, 

for Respondents1 

Deborah Fohr Levchak, Esq., Office of the General 

Council, Basin Electrical Power Cooperative, 

Bismarck, North Dakota, 

for Respondents. 

Before: Judge Lasher 

In accordance with the decision in this matter dated October 

17, 1986, the parties have conferred and reached a stipulated 

agreement as to the costs and expenses incurred by the individual 

complainant, DuWayne Schafer, in connection with the institution 

and prosecution of this proceeding in the total sum of $273.76. 

Pursuant to such agreement, Respondent agrees to immediately pay 

such sum to Complainant and indicates· it is in the process of 

doing so. Accordingly, this agreement is approved. 

Respondent also indicates that it has complied with or is in 

the process of complying with the requirements of my initial 

decision herein with respect to Ca) removing the letter of 

reprimand from Complainant Schafer's personnel file and its 

records, (b) posting of the decision, and payment of civil 

penalty. The cooperation of the parties in bringing this matter 

to resolution is appreciated. 

1892 
This supplemental decision, in .combination with my original 

decision, constitutes final disposition of this matter before me 

and, upon its issuance by the Commission's Executive Director, 

terminates my jurisdiction herein pursuant to Commission rule 

65 ( c) • 

Distribution: 

~/#: ~-?i--·· Michael A. Lasher, Jr. 

Administrative Law Judge 

Margaret A. Miller, Esq., Office of the Solicitor, U.S. 

Department of Labor, 1585 Federal Building, 1961 Stout Street, 

Denver, co 80294 (Certified Mail> 

Gregory Lange, Esq., Richardson, Blaisdell, Isakson & Lange, 206 

Central Avenue N., Hazen, ND 58545 (Certified Mail) 

Deborah Fohr Levchak, Esq., Office of General Counsel, Basin 

Electric Power Cooperative, 1717 E. Interstate Avenue, Bismarck, 

ND 58501 (Certified Mail) 

/bls 

1893 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 9 1986 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

Docket No. KENT 86-16 

A.C. No. 15-15103-03505 

v. 

No. 1 Mine 

TWIN STAR CONTRACTING 

COMPANY , INC • , 

Respondent 

Appearances: 

Before: 

DECISION 

Mary Sue Ray, Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, Tennesse~, 

for Petitioner; 

Jerry Pelphrey, President, Twin Star Contracting 

Company, Paintsville, Kentucky, pro se, for 

Respondent. 

Judge Koutras 

Statement of the Case 

This proceeding concerns a proposal for assessment of 

civil penalty filed by the petitioner against the respondent 

pursuant to section llO(a) of the Federal Mine Safety and 

Health Act of 1977, 30 u.s.c. § 820(a), seeking a civil penalty 

assessment of $400 for an alleged violation of mandatory safety 

standard 30 C.F.R. § 77.1606(c). The respopdent filed an answer 

denying the violation, and a hearing was held in Paintsville, 

Kentucky, on November 18, 1986. 

Issues 

The issues presented in this proceeding are as follows: 

1. Whether the respondent violated the cited 

mandatory safety standard, arid if so, the appropriate civil penalty to be assessed for the violation based on the cr~teria found in section 

llO(i) of the Act. 

1894 
2. Whether the inspector's "significant and 

substantial" (S&S) finding concerning the violation 

is supportable. 

Applicable Statutory and Regulatory Provisions 

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

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

2. Section llO(i) of the 1977 Act, 30 U.S.C. § 820(i). 

3. Commission Rules, 20 C.F.R. § 2700.l et seq. 

Discussion 

Section 104(d) (1) "S&S" Order No. 2468943, was served on 

the respondent at 3:15 p.m., on August 12, 1985, by MSHA 

Inspector R. C. Hatter. The inspector cited a violation of 

30 C.F.R. § 77.1606(c), and the condition or practice is 

described as follows: 

The cat rock truck No. Pl20 exhibits an equipment defect affecting safety, not corrected prior 

to use of such truck, which is being used for spoil 

haulage in the pit, in that the outer edge of the 

rt. rear tire is badly worn and in one location 

approx. 3' long x 12-14" wide, the outer tread is 

gone and at least 10 or more layers or plies are 

worn through.· The condition can result in a blowout which can cause accident resulting in a serious 

injury. Such truck is subject to use on two shifts. 

Such condition is caused by an unwarrantable failure. 

30 C.F.R. § 77.1606(c) provides as follows: "Equipment 

defects affecting safety shall be corrected before the equipment 

is used." 

Petitioner's Te and Evidence 

MSHA Surface Mine Inspector R. C. Hatter, testified as to 

his background and experience, and he confirmed that he inspected 

the mine on August 12, 1985, and issued the order question. 

He confirmed that issued the violation ter observing that 

the right rear tire on a rock haulage truck which was operation on the haulage road was badly worn. He described the condition of the tire and believed it was a safety hazard. In his 

1895 
view, the condition of the tire presented a possible "blow-out" 

hazard. He confirmed that abatement was achieved within 

approximately 2 hours of the issuance of the order, and that 

the worn tire was replaced with a new one (Tr. 5-33; 63-64). 

Respondent's Testimony and Evidence 

Loyal E. Tackett, respondent's mine foreman, confirmed that 

he was aware of the condition of the tire in question, and given 

the prevailing conditions, including the speed of the trucks 

operating on the haulage road, the road terrain, and the fact 

that the truck normally travelled a distance of 400 to 500 feet, 

he was of the opinion that the condition of the tire did not 

present a hazard. He explained that tire maintenance is performed by a local contractor, and he identified a copy of a 

purchase order dated August 9, 1985, indicating that a replacement tire for the truck was on order at the time the violation 

was issued (Exhibit R-3, Tr. 38-51) •· He also confirmed that a 

new tire was installed on the cited truck to abate the violation 

on the same day that it was issued, and he identi::ied a.copy of 

a sales receipt reflecting that the cost of the new tire was 

$2,223.02. 

Jerry Pelphrey, President, Twin Star Contracting Company, 

testified as to the condition of the tire in question, and in 

his view, it did not present a safety hazard. He confirmed 

that he is no longer in business at the No. 1 Mine, and stated 

that he closed down the operation in September, 1985, and with 

the exception of two drills, he has sold all of his equipment. 

He confirmed that abatement was achieved within 2 hours of the 

issuance of the order by the inspector by the installation of a 

new tire, and he asserted that a replacement tire had been 

ordered to replace the worn tire observed by the inspector 

(Tr. 51-5 3 ; 7 6-7 9) . 

At the conclusion of the testimony in this case, the 

parties agreed to settle the dispute by a mutual agreement 

requiring the respondent to pay a civil penalty assessment in 

the amount of $200 for the violatio~ in question. Mr. Pelphrey 

stated that he was ready, willing, and able to pay the settlement amount and would remit payment to MSHA upon receipt of my 

decision and order in this case. 

After review and consideration of all of the evidence, 

testimony, and arguments presented by the parties, including 

the requirements of Commission Rule 30, 29 C.F.R. § 2700.30, 

I issued a bench decision approving the proposed settlement by 

the parties. I took particular note of the fact that the 

1896 
respondent was a small mine operator, and that its reported coal 

production in 1985 was 14,150 tons. I so considered the fact 

that the respondent is no longer in business, and that its prior 

history of assessed violations for the 2-year period August 12, 

1983 through August 11, 1985, consists of 19 section 104(a) 

citations and one section 104(d} (1) citation. The total civil 

penalty assessments for these prior violations is $820, and the 

respondent has paid the full amount for all of these assessments. 

ORDER 

The respondent IS ORDERED to pay a civil penalty assessment 

in the amount of $200 in satisfaction of section 104(d) (1) 

Order No. 2468943, August 12, 1985, 30 C.F.R. § 77.1606(c). 

Payment is to be made to MSHA within thirty (30) days of the 

date of this decision and order, and upon receipt of payment, 

this matter is dismissed. 

Distribution: 

Mary Sue Ray, Esq., Office of the Solicitor, U.S. Department 

Labor, 280 U.S. Courthouse, 801 Broadway, Nashvi , TN 

37203 (Certified Mail) 

Mr. Jerry Pelphrey, President, Twin Star Contracting Company, 

Inc., 414 Broadway, Paintsville, KY 41240 (Certified Mail and 

Regular Mail) 

/fb 

1897 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 9 1986 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. PENN 86-165 

Petitioner A.C. No. 36-02786-03510 

v. 

SUGAR HILL LIMESTONE COMPANY, 

Respondent 

Docket No. PENN 86-192 

A.C. No. 36-02786-03511 

Sugar Hill Strip· 

DECISION 

Before: Judge Melick 

By notice dated August 12, 1986, these cases were set 

for consolidated hearings to commence on October 7, 1986, in 

State College, Pennsylvania. The Secretary thereafter 

requested postponement because of the absence of a witness 

and the Respondent concurred in the request. By mailgram 

notice issued October 3, 1986 (followed by another notice by 

certified mail dated October 6, 1986) those hearings were 

rescheduled to commence November 4, 1986, in Pittsburgh, 

Pennsylvania. On October 9, 1986, this office received a 

copy of the above mailgram returned from Russell A. Smith on 

behalf of Respondent Sugar Hill Limestone Company (Sugar 

Hill) with the following handwritten notice thereon: 

As we discussed on Friday 10/3/86 - Pittsburgh 

would be farther from us than State College. Could 

we possibly have these hearings in Jefferson County. 

We cannot afford to lose a day of work to attend 

these hearings. 

The undersigned responded to Mr. Smith on October 14, 

1986, indicating that it was apparent that the hearings in 

the cases would in any event take a full day, that several 

other Commission cases were already scheduled for hearings in 

Pittsburgh that same week and that his particular request 

could not be accomodated. It was further noted that the 

distance from the mine site to Pittsburgh was not excessive 

and Mr. Smith was reminded that the failure of a representative to appear at the scheduled hearing could result in a 

default decision against the Respondent. 

1898 
A notice of the specific hearing site was thereafter 

issued on October 23, 1986, designating the assigned courtroom in Pittsburgh. Subsequently, one day before the 

scheduled hearing, this office received a letter from Sugar 

Hill stating as follows: 

This letter is to inform you once again that there 

is no way that we can make a hearing in Pittsburgh. 

It is not a seventy mile trip but closer to one 

hundred and fifteen or twenty miles and when you 

consider Pittsburgh traffic a three to four hour 

trip. 

we feel since this happened in Jefferson County and 

not Allegheny that is where.the case should be 

handled. 

We could arrange the use of the Reynoldsville Fire 

Hall Meeting Room at no cost if that would be 

suitable. 

No representative of the operator subsequently appeared 

at. the hearings as scheduled and accordingly an order to show 

cause was issued pursuant to Commission Rule 63, 29 C.F.R. § 

2700.63, requiring a response on or before November 17, 1986. 

In a letter received November 17, 1986 Mr. Smith stated as 

follows: 

As we explained in our letter of 10-28-86; we feel 

we should be entitled to a hearing in Jefferson 

County. It is impossible for us to travel to 

Pittsburgh for hearing. We have many responsibilities to take care of daily and these must be 

done, and can be done in the time it would take us 

to travel the 100 plus miles each way. Another 

reason for us not reporting on November 4th was due 

to elections being held and to be in Pgh by 9:00 

A.M., we would have had to leave before the polls 

opened. We hope you will find these adequate 

reasons. 

It is the established law that the location of hearing 

sites is in the discretion of the Commission Administrative 

Law Judge. 11 In setting the hearing site he shall give due 

regard to the convenience of and necessity of the parties or 

their representatives and witnesses, the availability of 

suitable hearing facilities, and other relevant factors. 11 

5 u.s.c. § 554(b); 30 u.s.c. § 815(d); Commission Rule 51, 

29 C.F.R. § 2700.51; Secretary v. Cut Slate Inc., 1 FMSHRC 

796 (1979). See also Secretary v. Sewell Coal Company, 2 

FMSHRC 2479 Cl980). In selecting a hearing site the judge 

1899 
must therefore balance the public interest and due execution 

of the agency's functions with the convenience of the parties. 

Sewell Coal Company, supra at 2481. 

In balancing these interests in these cases the undersigned was confronted with the fact that 3 other cases from 

the same region had also been scheduled for hearing the same 

week in Pittsburgh, that because of his caseload the judge 

had already scheduled trials for every work week for the 

following 4 months none of which were located in areas closer 

to Reynoldsville, and that while the judge had other cases to 

set for hearing in Pittsburgh after March he had no cases 

involving litigants in areas closer to Reynoldsville. 

The litigants in the other cases before this judge are 

entitled to prompt hearings and disposition of their cases, 

and, accordingly, to best utilize limited judicial resources 

and maintain prompt disposition of cases the undersigned 

generally schedules cases for hearing in a centralized 

geographical location for the convenience of the maximum 

number of litigants. 

In these particular cases I also considered that the 

distance from the mine site to Pittsburgh was not excessive 

(administrative notice may be taken of the American Automobile Association's estimate of 95 miles from Reynoldsville, 

Pennsylvania to Pittsburgh) and that counsel for the 

Secretary had preferred that based on the number of witnesses 

he anticipated calling in these cases that trial would take a 

full day whether it was held in Pittsburgh or Reynoldsville. 

Mr. Smith also claims he would have been unable to vote had 

be travelled to Pittsburgh. However he overlooks the availability of absentee balloting, a simple procedure which has 

been followed by the undersigned on this and many other 

occasions. 

The lack of a courtroom or comparable facility and the 

lack of accomodations in the Reynoldsville area meeting the 

governmental budgetary ceiling were also factors, albiet 

secondary, considered in locating these hearings in Pittsburgh. 

Within this framework I find that Sugar Hill must be 

held in default for failing to appear at the scheduled 

hearings in Pittsburgh. Accordingly the penalties proposed 

by the Secretary in these proceedings are now final. 

Commission Rule 63, 29 C.F.R. § 2700.63. 

1900 
The Sugar Hill 

pay civil penalties 

this decision. 

ORDER 

Limestone Company is hereby directed to 

of $1,492 within 30 .days of the date of 

~ \ fl,l~ \ I · ( \. 

Gary Melick \ \ ,. L \_,..,_ \ 

.Adminik>trativa Law Judge'- ',, 

I i\ \ Distribution: \\ 

' \ 

William T. Salzer, Esq., and Lind~ ',M. Heniy, Esq., Office of 

the Solicitor, U.S. Department of Labor, Room 14480-Gateway 

Building, 3535 Market Street, Philadelphia, PA 19104 

(Certified Mail) 

Mr. Russell A. Smith, Partner, Sugar Hill Limestone Company, 

P.O. Box 69, Reynoldsville, PA 15851 (Certified Mail) 

rbg 

1901 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 10 1986 

LARRY D. SWANEY, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

SOUTHERN OHIO COAL COMPANY, 

Respondent 

Docket No. WEVA 86-444-D 

MSHA Case No. MORG CD 86-10 

Martinka No. 1 Mine 

ORDER OF DISMISSAL 

Before: Judge Koutras 

On November 25, 1986, I issued an Order to Show Cause 

requiring the complainant to explain why his complaint should 

not be dismissed because of his failure to respond or even 

acknowledge the respondent's repeated discovery requests. The 

complainant has been totally unresponsive to the respondent's 

certified and regular first class mailings, and they have been 

returned "unclaimed" by the Post Office Department. My show 

cause order was issued in response to the respondent's motion 

to dismiss the complaint. 

In addition to the matters pleaded by the respondent in 

support of its motion to dismiss, the complainant has failed 

to acknowledge the Notice of Hearing issued on September 24, 

1986, and a subsequently issued Notice of Continuance issued 

on October 8, 1986, and the Post Office Department returned 

both notices as "unclaimed." The latter notice was mailed by 

certified mail and regular first class mail. 

My show cause order was mailed by both certified mail and 

regular first class mail, and the respondent has again failed 

to respond even though he was advised to respond either in 

writing or personally by collect telephone call to my office. 

He has done neither, and has not since been heard from. 

Under the circumstances, in view of the complainant's 

failure to respond to the respondent's legitimate discovery 

1902 
requests, and to my show cause order, this case IS DISMISSED. 

The hearing scheduled for Morgantown, West Virginia, on 

December 16, 1986, IS CANCELLED. 

Distribution: 

Mr. Larry D. Swaney, Route 3, Box 410A, Morgantown, WV 26505 

(Certified Mail and Regular Mail) 

David A. Laing, Esq., Alvin J. McKenna, Esq., Porter, W~ight, 

Morris & Arthur, 41 South High Street, Columbus, OH 43215 

(Certified Mail} 

/fb 

1903 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

IVAN MOORE, 

Complainant 

v. 

MARTIN COUNTY COAL CORP., 

Respondent 

DEC 12 1986 

. . 

. . 

. . 

DISCRIMINATION PROCEEDING 

Docket No. KENT 85-183-D 

DECISION 

Appearances: William Reaves, Esq., Ashland, Kentucky, for 

Complainant; Edwin s. Hopson, Esq., Louisville, 

Kentucky, and Leo A. Marcum, Esq., Inez, 

Kentucky, for Respondent 

Before: Judge Fauver 

This proceeding was brought by Complainant under section 

105(c) of the Federal Mine Safety and Health Act of 1977, 30 

u.s.c. § 801, seq. Complainant charges a violation of section 

105(c) based upon Respondent's constructive discharge of him on 

April 11, 1984. 

Based on the hearing evidence and the record as a whole, I 

find that a preponderance of the reliable, probative, and substantial evidence establishes the following: 

FINDINGS OF FACT 

1. Respondent, a Kentucky corporation, operates a coal mine 

in Martin County, Kentucky, where, at all pertinent times 

Complainant was employed. 

2. The mine has regularly produced coal for sale or use in 

or substantially affecting interstate commerce. 

3. Complainant began work for Respondent in 1975 and on 

August 4, 1983, he was employed as a fuel truck operator when he 

was injured as a result of a mine blast detonated by Respondent. 

4. After a lengthy workmen's compensation proceeding, 

Complainant was found to be suffering an occupational disability 

of 30% (KY Workers' Compensation Board Op., Sept. 12, 1985). 

1904 
5. In the course of the work.men's compensation proceeding, 

a superintendent of Respondent and the foreman in charge of 

Complainant both testified that Complainant's job consisted of 

driving a fuel truck, fueling the equipment and occasionally, in 

the winter, putting additives into the fuel. This testimony was 

given in depositions on January 5,1984. 

6. Complainant decided, based on the above testimony, that 

he could hold Respondent bound by the limited job description in 

such testimony. He applied to return to work, and returned to 

work, in late March 1984. 

7. For about 9 days on the job, Complainant operated the 

fuel truck and performed the fueling duties without incident. 

Then, on April 10, 1984, his supervisor, Herbert Meek, asked him 

to help out loading shot holes. Complainant stated that was not 

part of his job duties. Meek asked him to go with him to the 

superintendent, J.R. Stepp, to resolve the matter. Complainant 

told the superintendent that he could not load holes because his 

left shoulder still bothered him, and because of the testimony of 

the superintendent (previously referred to) that his job was only 

driving .the truck, refueling equipment and occasionally putting 

additives into the fuel. 

8. Stepp told Complainant that, if Meek needed him to load 

holes then he would have to load them, and when Complainant 

replied that he was not physically able to do that, Stepp 

suggested that he go to a doctor and get a slip showing he was 

restricted from loading holes. Stepp sent Complainant home with 

the suggestion that he get such a slip, but did not indicate 

whether he would be reinstated if such a slip were obtained. 

9. Complainant left that day, and did not seek to get a 

restricted-duty slip f~om his physician. He has not returned to 

Respondent's employ since April 10, 1984. 

10. Before April 11, 1983, Complainant had a number of 

incidents at Respondent's mine when he made safety complaints to 

his supervisors, and at least once he made a safety complaint to 

a government mine inpector with his supervisor's knowledge of 

such complaint. After the accident on April 11, 1983, Complainant charged Respondent with safety violations in connection 

with the blast and this charge was a major issue in the work.men's 

compensation case. 

11. Respondent, through its supervisors, had regular 

knowledge of Complainant's history of making safety complaints, 

including his charge in the workmen's compensation case. 
12. When Complainant returned to work in 1984, he came back 

with a tape recorder, and often turned it on in the presence of 

his supervisors to record their conversations with him. When he 

went back to work in 1984, Complainant intended to make an issue 

of the supervisors' previous depositions so that, in the event he 

was asked to load holes or do other manual labor except drive the 

fuel truck, refuel the equipment and occasionally put additives 

into the fuel, he would refuse to do such work. I also find that 

his supervisors were aware of this plan by Complainant and were, 

themselves, prepared to have a "showdown" with him on that issue. 

13. Complainant testified tQat he cannot use his left arm 

in work and that he would be a "one-armed" man as a fuel truck 

operator. 

DISCUSSION WITH FURTHER FINDINGS 

Respondent has had a policy, at least since 1980, of not 

accepting restricted-duty slips from physicians when an hourly 

employee returns to duty after disease or injury. The employee 

must present an unqualified medical return-to-duty slip or he 

will not be permitted to return to duty. Complainant knew of 

this policy before 1984 and, when he applied to return to work in 

1984, he was careful to get an unrestricted medical 

return-to-duty slip. He also decided not to get a 

restricted-duty slip after he was sent home on April 10, 1984, 

because he knew or believed that Respondent would not let him 

return to work with a restricted-duty slip. 

He contends that he is able to do the job of fuel truck 

operator using only one arm. However, I find that the duties of 

that job reasonably require the use of both arms and both hands 

and that the Respondent has shown a reasonable basis for refusing 

to reinstate Complainant as a fuel truck operator after April 10, 

1984, so long as he has contended that he can use only one arm. 

With respect to his refusal to load shot holes, I find that 

such duties are within the scope of the required duties of his 

position and that, before and after the accident on April 11, 

1983, his job was subject to the requirement that, if his supervisor asked him to load shot holes, he was required to do that 

work. I therefore find that Respondent was justified in sending 

Complainant home on April 10, 1984, for refusing to load shot 

holes. 

Complainant has shown substantial protected activities 

involving his safety complaints before and after April 11, 1983, 

and before April 10, 1984. However, he has not shown by a preponderance of the evidence that Respondent's decision to send him 

home on April 10, 1984, was in any part motivated by discrim1906 
ination because of his protected activities. Also, his refusal 

to load shot holes was a sufficient independent cause for sending 

him home on April 10, 1984, and refusing to reinstate him after 

April 10, 1984, and would reasonably have resulted in such 

employer actions independent of his protected activities. 

CONCLUSIONS OF LAW 

1. The Commission has jurisdiction in this proceeding. 

2. Complainant has failed to meet his burden of proving a 

violation of section 105(c) of the Act. 

ORDER 

WHEREFORE IT IS ORDERED that this proceeding is DISMISSED. 

Distribution: 

&).Y,t.~ 7-~f#'e/1- William Fauver 

Administrative Law Judge 

William C. O. Reaves, Esq., Dill & Scott, 1527 Central Avenue, 

P.O. Box 711, Ashland, KY 41105-0711 (Certified Mail) 

Edwin s. Hopson, Esq., Wyatt, Tarrant & Combs, Citizens Plaza, 

Louisville, KY 40202 (Certified Mail) 

Leo A. Marcum, Esq., McCoy, Marcum & Triplett, P.O. Box 1087, 

Inez, KY 41224 (Certified Mail) 

slk 

1907 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 DEC 12 1986 

SECRETARY OF LABOR, 

MINE SAFETY AND aEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

EMPIRE ENERGY CORPORATION, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 86-76 

A.C. No. 05-01370-03553 

Eagle No. 5 Mine 

DECISION 

Appearances: Margaret A. Miller, Esq., Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, 

for Petitioner; 

R. Henry Moore, Esq., Rose, Schmidt, Chapman, Duff 

& Hasley, Pittsburgh, Pennsylvania, 

for Respondent. 

Before: Judge Lasher 

Procedural Background 

This proceeding was initiated by the filing of a petition 

for assessment of a civil penalty by the Secretary of Labor 

(herein the Secretary) on March 17, 1986, pursuant to Section 110 

the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

Section 820(1977) (herein the Act). A hearing on the merits was 

held in Denver, Colorado, on August 6, 1986, at which both 

parties were ably represented by counsel. 

The Secretary charges Respondent with violating 30 C.F.R. 

75.1725(a) as described in Citation No. 2207389 issued October 4, 

1985, as follows: 

"The double head roof bolter #18089 operating at 1st Left of 

the Set up entry at 14 East was being operated with the 

ATRS !:_; . that was bleeding off the pressure (PSI). While 2 

driller (sic) were drilling the ATRS dropped very slow 4 to 

5 inches. The second time the ATRS dropped 4 to 5 inches 

all at once. There was an excessive hydraulic old leak on 

the right side drill pot and one hose was leaking right on 

the hydraulic pump assembly. This leak were (sic) 

corrected. 

The PSI was checked with 

1725 PSI, then the motor 

drope Csic> to 1500 PSI. 

a gauge and the PSI went up to 

was turned off and the pressure 

Then it went down to 1350 PSI in 

1/ "ATRS" stands for Automatic Temporary Roof Support CT. 12, 

38). 

19.08 
2 1/2 minutes. The motor was started and it went up to 1625 

PSI and while the motor was operating the PSI drope (sic> 

150 PSI in ·3 minutes." 

30 C.F.R. 75.1725(a) provides: 

"Machinery and equipment; operation and maintenance. 

(a) Mobile and stationary machinery and equipment shall be 

maintained in safe operating condition and machinery or 

equipment in unsafe condition shall be removed from service 

immediately." 

The alleged violation was characterized in the Section 

104Cd)(l) Citation as being "significant and substantial". 

On October 7, 1985, the Inspector who issued the Citation, 

Ernesto L. Montoya, took subsequent action and "terminated" the 

Citation with the following indication for his justification: 

"The ATRS jack was replaced on the double head roof bolt 

machine #18089." 

In addition to Inspector Montoya, MSHA Inspector Alexander 

Kendzerski, a rebuttal witness, testified for Petitioner at the 

hearing. Three management personnel, James Hake, who was Respondent's Supervisor of Safety and Loss Control, Darrell Sparks, 

a maintenance foreman, and Randy Bunyan, maintenance superintendent, testified for Respondent. 

The primary and dispositive issue in this matter is whether, 

in fact, the ATRS was not functioning properly, i.e. that it was 

dropping from its position at the roof because it was not "maintained in safe operating condition." 

Preliminary Findings 

At the commencement of the hearing the parties reached the 

following stipulations of facts and conclusions: 

1. Respondent is engaged in the mining and selling of 

bituminous coal in the United States and its mining operations 

affect interstate commerce. 

2. Respondent is the owner and operator of Eagle No. 5 

Mine, MSHA I.D. No. 05-01370. 

3. Respondent is subject to the jurisdiction of the Act. 

4. The Administrative Law Judge has jurisdiction in this 

matter. 

1909 
5. The subject Citation was properly served by a duly 

authorized representative of the Secretary upon an agent of 

Respondent on the date and place stated therein, and may be 

admitted into evidence for the purpose of establishing its 

issuance, and not for the truthfulness or relevance of any 

statements asserted therein. 

6. The exhibits offered by Respondent and the Secretary are 

authentic (but no stipulation was reached made as to their 

relevance or the truth of the matters asserted therein). 

7. The proposed penalty ($1,000.00) will not affect 

Empire's ability to continue in business. 

8. The Respondent demonstrated good faith in abating the 

alleged violation. 

9, Respondent is a large mine operator with production of 

1.2 million tons in 1985. 

10. In the 24-month period preceding the issuance of the 

Citation there were 247 inspection days at the mine. 

11. The computer printout offered into evidence by the 

Secretary CP-1) is only relevant insofar as it reflects the 

number of violations between October 4, 1983 and October 3, 1985. 

Any violations on the printout which did not occur within that 

time period are not relevant. 

The preponderant reliable and probative evidence of record 

established the following factual conformation and sequence of 

events. 

On October 4, 1985, after a union complaint under section 

103(g) of the Act was filed with MSHA, Inspector Montoya undertook an inspection of Respondent's Eagle No. 5 mine CT. 27-34). 

Upon arriving at the mine, Inspector Montoya met with 

Respondent's Supervisor of Safety and Loss Control, Jim Hake, and 

while proceeding to the 14 East Section he handed Mr. Hake a copy 

of the union complaint. The complaint alleged that the ATRS was 

"bleeding off" CT. 26-28)f that such had been reported for a week 

and that Randy Runyan, the maintenance superintendent, and 

"acting foreman James Pike" had not taken any steps to correct 

the condition (Ex. P-2). ~/ 

The ATRS, depicted in Exhibit P-3, is an attachment to a 

Fletcher Dual Head Roof Bolter CT. 37-39: P-3). It is operated 

2/ The miner who filed the section 103(g) complaint did not 

testify. 

1910 
by means of hydraulic pressure derived from two independent 

hydraulic pumps on the bolter itself CT. 39-40, 152). The ATRS 

consists of a T shaped beam or bar which is raised against the 

top and is hinged in the middle CT. 38-46; R-4, P-3). The T-bar 

is connected to a hydraulic cylinder which in turn is connected 

to a "shoe" or skid foot assembly which is pressurized against 

the bottom when the T-bar is pressurized against the top CT. 

40-41, 70-71, 111-112; R-41 P-3). The ATRS has a "tilt" cylinder 

which facilitates its use on steep slopes such as are present at 

the mine in question CT. 102, 155-1581 1921 R-4). It is designed 

to operate at an angle without binding CT. 72, 150-151, 192; P-3; 

R-4). Two hydraulic hoses run from the hydraulic system of the 

bolter to the ATRS (T. 96). There is a load check (safety) valve 

which is part of the ATRS cylinder itself CT. 40-41, 97-98, 

146-147). Its function is to prevent hydraulic oil from flowing 

from the ATRS back to the bolter once the ATRS is pressurized CT. 

42, 146-147, 181). 3; Once the ATRS is pressurized, the 

hydraulic hoses to the ATRS can be removed without effect on the 

pressurization of the ATRS because of the presence of the load 

check valve CT. 74, 97-98, 146-147). The depressurization of the 

ATRS can only be effected by use of the controls on the bolter 

(Tr. 125) • 

When the Inspector and Mr. Hake arrived on the section and 

first viewed the ATRS, Inspector Montoya observed the boom of the 

ATRS to gradually drop from the roof approximately 4-5 inches CT. 

41; Citation). The miners operating the bolter indicated to him 

that the ATRS was not operating properly CT. 47-8, 94). They 

demonstrated that by operating the ATRS and the bolter in a 

manner to cause the ATRS to come away from the roof suddenly by 

about 4-5 inches (T. 94-95, 129-132; Citation). At the face area 

where the bolter was 'being operated, there was approximately 

12-14 inches of loose unconsolidated material (loose coal) on the 

bottom. 

At Mr. Hake's direction, the bolter was taken out of 

service, and moved back away from the face area to an intersection where the roof was supported and where there was no soft 

material on the bottom1 the ATRS was then pressurized against the 

roof (T. 47, 72-73, 82, 95-97). It did not come away from the 

roof, even during drilling operations, and the mechanics who 

inspected and tested it could find nothing wrong with it (T. 

52-53, 73-74, 97-100, 145-146). The ATRS remained pressurized 

against the roof for 35 minutes CT. 97-99, 133). The hydraulic 

cylinder was marked and this indicated that no decompression of 

the hydraulic cylinder occurred at that time ·cT. 73-74). The 

3/ The load check valve is a safety feature designed so that if 

a hose should burst or "something extraneous to the operation 

should happen", no oil would escape the cylinder. If oil shquld 

escape, this would allow the TRS beam against the roof to come 

down CT. 181) • 

1911 
hoses were disconnected from the ATRS and no hydraulic fluid ran 

out of the hoses, indicating that the check valve was functioning 

properly (T. 97-98, 146-147). 

The bolter was again taken back into the face area CT. 

81-82). Before this· was done, it was explained to Inspector 

Montoya by maintenance foreman Darrell Sparks that the loose 

unconsolidated material on the bottom of the place might cause 

the ATRS to come away from the top (T. 81-82, 101, 151). There 

were gouges in the material, indicating that the ATRS foot had 

slid down when it was in the place previously (T. 151>. The 

bolter was again pressurized against the roof and the hydraulic 

cylinder marked to indicate any movement which would indicate a 

loss of hydraulic pressure CT. 103-104, 137). While the marks on 

the cylinder did not indicate any decompression of the cylinder 

which would result from a loss of hydraulic pressure, the T-bar 

of the ATRS did come away from the roof on one side as the bolter 

was operated CT. 103-105). 

The bolter was again taken out of the face area and back to 

an intersection (T. 105). In the intersection the ATRS was again 

pressurized against the roof for approximately 45 minutes and 

showed no signs of coming away from the roof CT. 107). Two minor 

oil leaks which had been observed by the Inspector (T. 48) were 

repaired. ~hese leaks had nothing to do with the operation of 

the ATRS CT. 105-106). A pressure gauge was used to test the 

hydraulic pressure in the bolter but could not be used to test 

the ATRS itself (T. 106-107), 181-182). 

The equipment involved (the bolter with ATRS attached) was 

mobile and was removed from service immediately upon issuance of 

the citation. (T. 11-13, 18-19). 

The alleged violation was abated by replacing the ATRS 

hydraulic cylinder and was completed before the time set for 

abatement CT. 192; Citation). 

The following week the hydraulic cylinder which was removed 

from the ATRS was tested by a private firm and found to show no 

evidence of "bleeding off" of hydraulic pressure or malfunction 

of the check valve CT. 81, 175-179; R-1). 

Discussion and Ultimate Findings and Conclusions 

Inspector Montoya, even at the hearing, was unable to say in 

precisely what respect the ATRS was not being maintained in safe 

1912 
operating condition. ~/ His belief that it was unsafe or 

defective appears to be based on several factors. First, he 

testified that he saw the T-bar lower from the roof (T. 85). 

This occurred after he observed two roof-bolter operators pouring two 5-gallon cans of oil into the machine. He also observed 

patches of oil in the vicinity of the bolter, and that two hoses 

were leaking oil. From these observations and perhaps other 

factors, the Inspector apparently reached the conclusion that the 

hydraulic cylinder of the ATRS, which raised the T-bar (boom) of 

the ATRS upward to support the roof, was losing pressure, because 

of loss of oil pressure. The Inspector's precise thinking as to 

the mechanism which caused the purported malfunction was not 

convincingly articulated in his testimony. His most precise 

explanation for the T-bar's dropping was that: 11 It dropped 

because the - safety valve, the check valve, and the ATRS was not 

working properly" CTr. 42) and "The cylinder leaked and the T-bar 

dropped" CT. 43) • ~/ 

Respondent effectively and credibly rebutted the bases for 

Inspector Montoya's belief that the ATRS' hydraulic cylinder was 

losing pressure. For example, Respondent showed that the bolter 

"on a day to day basis" normally uses 30 gallons of oil and that 

the 10 gallons seen being put into the machine by the Inspector 

is a "small amount" (T. 153, 193-194). Respondent also established: 

(1) That on October 3, 1985, the day before the Citation was 

issued, the ATRS and its load check valve was checked and found 

to be in good working order CT. 185). 

C2) That the two oil "leaks" observed by the Inspector were 

not on the ATRS but on the bolter and that these leaks were not 

excessive, but a "dripping" CT. 152, 187). 

4/ The Secretary failed to establish what, if anything, was 

wrong with the ATRS, or the hydraulic system generally. Various 

tests performed all showed there was nothing wrong with the 

safety (load check> valve or the cylinder. The Secretary's 

rebuttal witness, Inspector Kendzerski, after learning of the 

negative testing, could only point to the primary possibility of 

a defective valve as being the cause for the T-bar's dropping 

down. 

21 While the behavior of the ATRS provided a clear and 

legitimate basis for the Inspector's concern, and his sincerity 

is beyond question, comparison of the Inspector's qualifications 

and training with respect to the operation of hydraulic systems 

to those of Respondent's witnesses in such field indicates a 

higher degree of expertise on the part of Respondent's witnesses. 

Further, Respondent's three witnesses were clearly much the more 

knowledgable in the subject matters involved and such is 

reflected in even the most casual comparison of their testimony 

with that of the Inspector. 

1913 
(3) That the ATRS and roof bolter were thoroughly tested two 

times on October 4, 1985, and it was not found to be malfunctioning, and more specifically, that there was no sign that oil was 

leaking from the ATRS cylinder CT. 96-107, 147, 181-182, 187). 

(4) That shortly after the Citation was issued, the ATRS was 

taken to a local hydraulic shop, Craig Electric Motor and 

Machine, Incorporated, and it was examined, tested, and 

determined that it was not malfunctioning, and more specifically, 

that there was nothing wrong with the load check valve, or the 

cylinder (Ex. R-1; T. 175-183, 196). 

(5) That the reason the T-bar dropped from the roof on the 

two occasions the Inspector saw it do so was due to the facts 

that: 

Cal The roof bolter (to which the ATRS is attached) was 

sitting on 12-14 inches of loose coal, i.e. a soft bottom 

CT. 100, 113, 134-135, 151, 220, 222), 

Cb) Both times the T-bar was seen to drop the equipment was 

at the face sitting on loose coal CT. 41-42, 81-82, 100, 

139-140, 151), 

Cc) The inherent capacity of the ATRS itself to raise the 

T-bar back to the roof automatically requires the operator 

to make certain adjustments when the bottom gives way under 

the ATRS CT. 215, 218, 222) and that the problem observed 

on October 4, 1985 was the result of the roof-bolter 

operator's failures CT. 138, 155-157, 169, 221-222). 

(6) The problem of the T-bar's dropping down had been noted and 

diagnosed some two years earlier CT. 100, 139). 

In this connection, Mr. Hake testified: 

"When we first started roof-bolting at Empire a couple of 

years ago, we had had this same thing, same type of 

situation. People thought the ATRS was not working properly, and that's what we found out then, that if you 

didn't set - it was very important that when you did put 

the ATRS down that it was on solid footing, that if there 

was any loose material underneath it, that it may not stay 

snug up against the mine roof." CT. 100) 

I am unable to conclude on the basis of the evidentiary 

record developed at the hearing herein that on the occasions 

observed by Inspector Montoya where the ATRS dropped or lowered 

from the roof such was a result of the equipment's "not being 

maintained in safe operating condition". Such a finding is 

necessary to a determination .that the particular regulation cited 

by MSHA was infracted. Secretary v. Alabama By-Products Corporation, 4 FMSHRC 2128 (1982). In the final analysis, this matter 

called for resolution of a conflict between Respondent's version 

of what cau$ed the 4-5 inch T-bar drop and that of Petitioner. 

1914 
Both parties presented and relied on the opinions of their 

witnesses to carry the burdens of proof required by their 

respective positions. As above noted, the expertise and 

qualifications of Respondent's witnesses in this particular 

matter to render opinions as to the mechanical aspects of the 

ATRS and its behavior overwhelmed that of Petitioner's witnesses. 

Furthermore, Respondent's experts were generally more familiar 

with the equipment, the mine conditions and the past operation of 

the roof bolter than was the issuing inspector. Their testimony, 

when compared, reflects more detail and superior quality. For 

example, the Inspector saw significance in the fact that when he 

arrived on the scene, two 5-gallon cans of hydraulic fluid were 

being put into the machine. Yet, it appeared that the bolter 

would require some 30 gallons daily. While the Secretary's 

second witness, Alexander Kendzerski, had impressive 

qualifications to render an opinion as to operation and safety of 

the bolter (the ATRS system), his testimony was not based on 

direct knowledge, testing, or personal observation (T. 206). 

More importantly, the tenor of his testimony was speculative, 

i.e. the cause of the 4-5 inch drop "could" have been the relief 

valve CT. 201, 206, 208, 209, 214). Again, the issuing inspector 

reached the conclusion that something was wrong with the ATRS 

system based on circumstantial evidence, but he was unable to 

establish what actually was wrong or precisely in what respect 

the equipment was not "in safe operating condition". 

Assuming arguendo that the event viewed by the Inspector, 

the 4-5 inch drop of the T-bar, posed a hazard to the miners 

working under it, it does not automatically or necessarily follow 

that it was caused by unsafe equipment or, more specifically, 

that the equipment itself was not in "safe operating condition". 

This is particularly true in view of the relative strength and 

probative value of Respondent's explanations for the drop, and 

its supportive explanations for the presence of splotches of oil 

observed by the Inspector on the floor area, and the necessity 

for replenishing hydraulic fluid in considerable quantity. 

Assuming that use of the ATRS in the circumstances extant at the 

time and place involved here was unsafe, the enforcement choice, 

issuance of a 104(d)(l) citation citing an infraction of 30 

C.F.R. 75.1725(a) either will not, or cannot, achieve the 

remedial result sought by the Secretary. As previously 

indicated, various testing procedures performed both in the 

Inspector's presence and subsequently after the cylinder had been 

replaced for abatement purposes, disclosed no defects or malfunctioning. 

On the basis of this evidentiary record, it has not been 

proved, nor can it be inferred, that the subject equipment was 

not in some respect being maintained properly, was otherwise defective, or, in the language of the' regulation, not in "safe 

operating condition." It is concluded that the Secretary has 

failed to establish the violation charged by a preponderance of 

the reliable evidence. 

1915 
ORDER 

Citation No. 2207389 is VACATED. 

Distribution: 

~~:.A .. .t£ a.~·­ ,M~h~e1 A. Lasher, Jr. 

Administrative Law Judge 

Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1585 Federal Building, 1961 Stout Street, Denver, 

CO 80294 (Certified Mail) 

R. Henry Moore, Esq., Rose, Schmidt, Chapman, Duff & Hasley, 900 

Oliver Building, Pittsburgh, PA 15222-5369 (Certified Mail) 

Craig Gardiner, Esq. and Kathleen J. Gormley, Esq., %Cyprus 

Minerals Company, 7200 South Alton Way, P.O. Box 3299, Englewood, 

CO 80155 (Certified Mail) 

/bls 

1916 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 12 1986 

CONSOLIDATION COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA} , 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

CONTEST PROCEEDINGS 

Docket No. WEVA 86-180-R 

Order No. 2710945; 2/4/86 

Docket No. WEVA 86-181-R 

Order No. 2710946; 2/4/86 

Docket No. WEVA 86-182-R 

Order No. 2710948; 2/4/86 

Docket No. WEVA 86-183-R 

Order No. 2710949; 2/4/86 

Docket No. WEVA 86-184-R 

Order No. 2710951; 2/4/86 

Docket No. WEVA 86-185-R 

Order No. 2710952; 2/4/86 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 86-257 

A. C. No. 46-01867-03677 

Blacksvil No. 1 Mine 

DECISION 

Appearances: Michael R. Pee sh, Esq., Consolidation Coal 

Company, Pittsburgh, Pennsylvania, for 

Contestant/Respondent; 

Linda M. Henry, Esq., Office 

U. S. Department of Labor, lphia, 

Pennsylvania, for Respondent/Petitioner. 

Judge Maurer 

STATEMENT OF THE CASE 

Contestant Consolidation Coal Comoany (Consol) has filed 

notices of contest challenging the issuance six seoarate 

orders which were all issued on February 4, 1986, at its 

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Blacksville No. 1 Mine. The Secretary of Labor (Secretary) 

has filed a oetition seeking civil penalties in the total 

amount of $3-, 500 for the violations charged in the six contested orders. The proceedings have been consolidated for 

purposes of hearing and decision. 

Pursuant to notice, the cases were heard in Morgantown, 

West Virginia, on August 12 and 13, 1986. 

The general issues before me concerning each of the 

individual orders and its accompanying civil penalty petition 

are whether there was a violation of the cited standard, and, 

if so, whether that violation was "significant and substantial" and caused by the "unwarrantable failure" of the mine 

operator to comply with that standard as well as the appropriate civil penalty to be assessed for the violation, should 

any be found. 

Both parties have filed post-hearing proposed findings 

of fact and conclusions of law, which I have considered along 

with the entire record herein. I make the following decision. 

STIPULATIONS 

The parties have agreed to the following stipulations, 

which I accept (Tr. I-4, I-5): 

1. The Federal Mine Safety and Health Review Commission 

and this Administrative Law Judge have jurisdiction to hear 

this case. 

2. Blacksville No. 1 Mine is owned and operated by the 

respondent, Consolidation Coal Company. 

3. The subject orders were properly issued upon the 

respondent by a duly authorized representative of the Secretary of Labor. 

4. 1985 annual production for Consolidation Coal Company's Blacksville No. 1 Mine was 1,609,803 tons of coal. 

5. Consolidation Coal Company has a history of 681 

assessed violations for the two years preceding the issuance 

of the orders at issue. 

6. Since the issuance of 104(dl(l) citation 2259064 on 

January 16, 1984, there has been no clean inspection at the 

Blacksville No. 1 Mine. Thus, this mine was still on a 

104(d) (2) chain at the time of the issuance of the orders 

involved. 

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7. Payment of the civil penalties assessed in this matter 

will not affect the operator's ability to stay in business. 

8. The operator has abated the conditions cited in good 

faith. 

9. None of these conditions constituted an imminent 

danger. No imminent danger orders were issued at the time. 

10. The exhibits to be entered into evidence in this case 

are authentic copies of the originals. 

I. DOCKET NO. WEVA 86-180-R; ORDER NO. 2710945 

Order No. 2710945, issued pursuant to section 104(d) (2) 

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

§ 801 et seq. (the Act), alleges a violation of the regulatory 

standard at 30 C.F.R. § 75.1403 ~ and charges as follows: 

Beginning at a point approximately 60 feet outby 

the portal bus track switch on the portal bottom 

and extending into the portal bus track for approximately 37 feet the clearance space had become obstructed on the wire side with loose rock. This 

area had been heavily rockdusted several shifts 

earlier thus depositing such dust on the loose rock. 

This indicates this obstruction had existed several 

shifts. In addition equipment that had been passing in this area had plowed a deep groove through 

the accumulation making very obvious with or 

without equipment being present. At a point 16" 

inches from the rails, the portal bus had grooved 

the material. This area is visited several times 

each day by managing officials who should have observed this condition. 

FINDINGS OF FACT 

1. The order was issued at 8:35 a.m. on February 4, 

1986, by MSHA Inspector Joseph Migaiolo during an inspection 

of the Blacksville No. 1 Mine. 

1/ 30 C.F.R. § 75.1403 provides as follows: 

Other safeguards adequate, .in the judgment 

of an authorized representative of the Secretary, 

to minimize hazards with respect to transportation 

of men and materials shall be provided. ~ 

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2. During this inspection, Inspector Migaiolo observed 

that beginning at a point approximately 60 feet outby the 

portal bus track switch on the portal bottom and extending 

along the portal bus track there were "obstructionsn in the 

clearance space on the wire side for approximately 37 feet. 

These 11 obstructions" consisted of oil shale which had 

sloughed off from the rib adjacent to a curve in the portal 

bus track. 

3. It is obvious that this loose material had been 

there for some time because several layers of rock dust had 

been intermingled in the accumulation of shale and trackmounted equipment had plowed a groove through the debris. 

Moreover, two of Consol's certified firebosses, Messrs. 

Turner and Casteel, had admittedly been watching the accumulation of sloughage, presumably patiently waiting for the 

proper time to clean it up. In fairness, they were of the 

considered opinion that the condition, as it existed on 

February 4, 1986, did not at that time constitute a hazard. 

4. A notice to provide safeguards regarding clearance 

space on track haulage had been previously issued at this 

mine on November 4, 1977. This safeguard essentially stated 

that the clearance space on all track haulage should be kept 

free of loose rock, supplies and other loose materials. 

~ Vehicles travel this stretch of haulage daily and 

conceivably there could be and are situations that arise 

which would cause miners to stop in this area and alight 

from their equipment. It is also likely that an individual 

walking in the area where these materials had accumulated 

could slip and fall and thus injure himself. However, the 

accumulation of loose material existed on the wire side or 

tight side of the track haulage, underneath the hot trolley 

wire. If a person were to alight from his vehicle and walk 

in this area, I find it most likely that because of the 

greater clearance available on the opposite side and in 

order to stay out from under the hot wire, he would walk on 

the clearance side of the haulage. I find the testimony of 

Mr. Gross in this regard to be completely credible and 

unrebutted. · 

CONCLUSIONS OF LAW 

1. Consol is subject to the provisions of the Act in 

the operation of the subject mine and I have jurisdiction 

over the parties and subject matter of this proceeding. 

[This finding applies to all the orders considered in this 

proceeding. ] 

1920 
2. The evidence as found in the above Findings of Fact 

establishes the existence of a previously issued safeguard 

concerning the subject matter of the instant order and the 

failure of the operator to comply with same in that the 

clearance space on the wire or tight side of tbe track haulage in the affected area was not kept clear as required by 

the safeguard. Rather, an accumulation of oil shale sloughage 

was allowed to build up to the point where the equipment 

going by had admittedly been cutting a groove through the 

sloughage to pass. Clearly, the operator failed to comply 

with the issued safeguard and thereby violated 30 C.F.R. 

§ 75.1403. 

3. The issue of whether or not the violation was of 

such a nature as could significantly and substantially contribute to the cause of a coal mine safety hazard presents 

a more difficult question. 

The Commission has held that a violation is properly 

designated 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 man~ 

datory 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. 

The Commission subsequently explained 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). 

In the instant case, it is established that a violation 

occurred, and that the violation contributed to a discrete . 

safety hazard that could contribute to an injury if a miner 

would disembark in the accumulated loose material-.- It is 

the third element of the Mathies formula which the Secretary has failed to prove up. Although I agree that if 

1921 
miners were required to disembark in such materials, it is 

reasonably likely that someone might sustain a slip and fall 

type injury, the Secretary has presented no credible evidence 

to support his conclusion that in those isolated instances 

where miners would be forced to disembark on this particular 

stretch of haulage, they would do so on the wire side rather 

than the patently more convenient, considerably wider, and 

obviously safer clearance side. In fact, as alluded to in 

Finding of Fact No. 5, the credible evidence is to the contrary. Accordingly, I cannot conclude that the Secretary has 

established that there was a reasonable likelihood that an 

accident or injury would occur. Therefore, the inspector's 

"significant and substantial" finding is vacated and the 

order is modified to reflect a "non-S&S" violation. 

4. Nonetheless, I find that the violation was caused by 

the "unwarrantable failure" of the operator to comply with 

the standard. 

In Zeigler Coal Company, 7 IBMA 280 (1977), the Interior 

Board of Mine Operations Appeals interpreted the term "unwarrantable failure" as follows: 

An inspector should find that a violation of any 

mandatory standard was caused by an unwarrantable 

failure to comply with such standard if he determines that the operator has failed to abate the 

conditions or practices constituting such violation, conditions or practices the operator knew or 

should have known existed or which it failed to 

abate because of lack of due diligence, or because 

of indifference or lack of reasonable care. 

The Commission has concurred with this definition to 

the extent that an unwarrantable failure to comply may be 

proven by a showing that the violative condition or practice 

was not corrected or remedied prior to the1 issuance a 

citation or order, because of indifference, willful intent, 

or serious lack of reasonable care. United States Steel 

Corp. v. Secretary of Labor, 6 FMSHRC 1423 at 1437 (1984). 

Herein, it is indisputable that knowledge of the violative condition as it existed at the time the order was issued 

had been within the knowledge of the operator for some time. 

Even if management didn't feel it was a particularly hazardous condition, the operator is still chargeable with the 

knowledge that it was a violative condition in light of the 

safeguard on record. Therefore, I find their inaction in 

cleaning up this debris to be a serious lack of reasonable 

care to see that the violative condition was abated in a 

timely fashion. 

1922 
5. Considering the criteria in section llO{i) of the 

Act, I conclude that a penalty of $300 is appropriate. 

II. DOCKET NO. WEVA 86-181-R; ORDER NO. 2710946 

Order No. 2710946, issued pursuant to section 104(d) (2) 

of the Act alleges a violation the regulatory standard at 

30 C.F.R. § 75.1403 and charges as follows: 

The north side crossover track switch shelter 

hole was not being maintained free of loose 

rock (pieces 12" x 8" x 3" and several pieces 

7" x 11" x 2" and loose shale 6-8" in depth). 

In addition depth of the hole was only 35" 

near its middle (height of the coal 4' wide x 

5' in depth is required). A board 36" long x 

4" wide x 5/8" was also in the shelter hole. 

This condition is obvious and as such has 

existed for several shifts. Management frequently passes this area and thereby should 

have had observed and recorded this shelter 

hole obstruction and construction. 

FINDINGS OF FACT 

1. The order was issued at 9:16 a.m. on February 4, 

1986, by Inspector Joseph Migaiolo during an inspection of 

the Blacksville No. 1 Mine. 

2. At this time, Inspector Migaiolo observed the 

north side crossover track switch shelter hole in a condition that d not meet the criteria for shelter holes contained in 30 C.F.R. § 75.1403-9. That section provides, 

inter a, that shelter holes should be at least 5 t 

in depth, not more than 4 feet in width, and at least the 

height of the coal seam or 6 feet, whichever is less. It 

also provides that shelter holes should be kept of 

refuse and other obstructions. 

3. Inspector Migaiolo observed this particular shelter ho to be obstructed with 6 to 8 inches of loose rock 

on floor. Most importantly, however, instead of the 

shelter hole being 5 t deep, as required, it was only 

34 inches deep in its center because of a protruding rock 

at the rear of the shelter hole. Even though Mr. Gross 

disputed the particular place the inspector- took the measurement from order to arrive at the 34 inch depth, he 

conceded during his direct examination that the condition 

of the shelter hole was in violation of mandatory 

standard. 

1923 
4. A notice to provide safeguards regarding shelter 

holes had been previously issued at this mine on November 21, 

1984. This safeguard essentially stated that all switch 

throws should be provided with shelter holes. Implicit in 

that requirement is that all shelter holes provided in compliance with the safeguard should meet the criteria for shelter holes contained in the mandatory standard at 30 C.F.R. 

§ 75.1403-9. 

5. Since this shelter hole is located at a track 

switch, the speed of track-mounted equipment past this area 

is relatively slow. However, track-mounted equipment can 

and does derail even if it is moving at a slow walking pace. 

Derailment of equipment which is carrying supplies or any 

other material could cause that material to become an airborne projectile with sufficient velocity to cause serious 

injury should someone be struck. 

CONCLUSIONS OF LAW 

1. On February 4, 1986, the operator violated 30 C.F.R. 

§ 75.1403 in that the north side crossover track switch 

shelter hole did not meet the criteria for a shelter hole 

contained in 30 C.F.R. § 75.1403-9 as more fully set out in 

the Findings of Fact. 

2. This violation was of such a nature as could significantly and substantially contribute to the cause and effect 

of a coal mine safety hazard. In order to make an "S&S" 

finding, the Secretary must prove a violation, a discrete 

safety hazard, a reasonable likelihood that the hazard will 

result in injury and that the injury will be of a reasonably 

serious nature. Mathies Coal Company, supra. 

Herein, I have already found the violation. The safety 

hazard is that given the fact that shelter holes are designed 

to protect miners from derailed equipment and airborne projectiles off of that equipment, a shelter hole of insufficient depth [34 inches vice 5 feet] is a serious derogation 

of the protection a miner would have in the case of a nearby derailment. During such a derailment, it is reasonably 

likely that any material or supplies being carried by the 

rail-mounted equipment would become airborne debris traveling with sufficient velocity to cause serious injury if a 

miner should be struck. Further, it is much more likely 

that a miner would be struck by such debris if the shelter 

hole in which he had taken refuge was less than the required 

5 foot depth, as here. 

3. An "unwarrantable failure" exists where the evidence establishes the failure of an operator to abate 

1924 
conditions constituting violations of a mandatory standard 

because of a lack of due diligence, indifference, or a 

serious lack of reasonable care. Zeigler Coal Co., supra: 

U. S. Steel Corp., supra. 

In the instant case, management demonstrated a serious 

lack of reasonable care in locating this violative condition 

and abating it. The pre-shift examiner, Turner, testified 

that he may not have even glanced into this shelter hole on 

the morning of Inspector Migaiolo's visit. Furthermore, 

both he and Mr. Gross, a management employee, the safety 

supervisor in fact, testified to the effect that they look 

at a shelter hole with an eye toward determining if there is 

anything that would prevent somebody from getting into it or 

something which would cause somebody to be injured while in 

it. Mr. Turner further opined that he "didn't have any call 

to measure it." 

Therefore, I find that the operator displayed indifference to the criteria required for shelter holes that is 

contained in the regulations and demonstrated a serious lack 

of reasonable care in discovering and abating this violation. 

4. Considering the criteria in section llO(i) of the 

Act, I conclude that a penalty of $400 is appropriate. 

III. DOCKET NO. WEVA 86-182-R; ORDER NO. 2710948 

Order No. 2710948, issued pursuant to section 104(d) (2) 

of the Act, alleges a violation of 30 C.F.R. § 75.1403 and 

charges as follows: 

Crosscuts being used as shelter holes in the 

south and north archways on the crossover track 

haulage were not peing maintained of loose 

rock for a distance of 15 feet and 4 feet wide 

(proper measurements at this mine) • In this 

north side shelter hole, rib and roof sluffing 

had accumulated loose shale to a depth of 24 

inches and a width of approximately 31 inches 

and length of approximately 15 feet. On this 

south side shelter hole, loose rock had distributed over the shelter hole floor for a distance 

of 15 feet depth. These two shelter holes had 

obvious conditions which should easily have been 

observed by management. 

FINDINGS OF FACT 

1. The order was issued at 10:40 a.m. on February 4, 

1986, by MSHA Inspector Joseph Migaiolo during an inspection 

of the Blacksville No. 1 Mine. 

1925 
2. There is a serious dispute between the parties as to 

whether the cited areas were in a crosscut being used as a 

shelter hole in the north and south archways on the crossover track haulage or were shelter holes that existed in the 

immediate area behind the cutout portions in the archways 

independently of the crosscut that happened to be behind 

them. The only significance this fact has in the final determination of whether a violation occurred is whether the area 

must be clear of obstructions for a depth of 15 feet in the 

case of a crosscut or only 5 feet in the more general case 

of a shelter hole. 

3. The entire area in the proximity of the shelter 

holes was arched. The archway is constructed of steel arch 

straps with boards in between the straps that act as the 

walls of the archway. The dimensions of the cutout portions 

of the archway constituting the shelter hole entrances are 

4 feet by 4 feet and the level of the shelter holes is about 

10 to i2 inches above the level of the track entry. There 

indisputably was a crosscut behind the arches. 

4. On June 6, 1972, a notice to provide safeguards 

was issued at the Blacksville No. 1 Mine requiring that all 

crosscuts being used as shelter holes be kept free of refuse 

and materials for a distance of 15 feet. 

5. I specifically find that the area described in 

Government Exhibits Nos. 7 and 9 as the situs of the violative conditions is a crosscut within the meaning of the 

safeguard which is Government Exhibit No. 8, albeit a substantially modified crosscut which could cause reasonable 

men to differ as to the applicability of the instant safeguard. 

6. At the time of Inspector Migaiolo's observation of 

the violative condition, rib and roof sloughage and loose 

shale had accumulated to a depth of 24 inches in an area 

approximately 31 inches wide and 15 feet deep into the 

north side shelter ho . Also the area through the arch, 

in the crosscut, was littered with materials such as soalling ribs and large rocks that had fallen from the roofcavi ty. Furthermore, large rocks which had fallen out of 

the roof cavity area more fully described in Government 

Exhibit No. 9 were lying loose on top of the arch across 

the archway. These rocks, of which there were several, 

were approximately 12 cubic feet in size. In the south 

side shelter hole, the walkway was littered with scattered 

debris. 

7. Mr. Gross, the Safety Supervisor at the mine, 

acknowledges that the northside portion of the cited area 

1926 
was in violation of the shelter hole criteria because the 

"manhole was not 4 foot wide and 5 foot deep". However, he 

disputes that this area is covered by the safeguard because 

the whole area is arched and is therefore no longer a crosscut within the meaning of the safeguard. Essentially then, 

Mr. Gross, on behalf of the operator, concedes that a violation occurred because the shelter hole was not cleaned out 

to a depth of 5 feet but disputes whether it should have been 

cleaned out 10 feet further back to a depth of 15 feet. 

8. I find that since the safeguard applies to the 

shelter holes, by its terms, they must have been cleaned out 

to a depth of 15 feet in order to be in compliance with the 

mandatory standard. 

9. The largest equipment that would be traveling 

through this entry is a 20-ton motor and it would be moving 

through this area at a relatively slow rate of speed. I 

find that in the event of a derailment in this area, it 

would be unlikely that the equipment itself would enter the 

shelter holes and injure individuals inside the arches. 

However, if the equipment crashed into the archway, debris 

such as the large rocks on top of the arch very likely would 

have fallen into the northside shelter hole. These rocks 

were of sufficient size to severely injure someone had they 

been struck. There likewise existed slip, trip, and fall 

hazards within the shelter holes because of floor debris. 

CONCLUSIONS OF LAW 

1. The evidence as found in the above Findings of Fact 

establishes the existence of a previously issued safeguard 

concerning the subject matter of the instant order and the 

failure of the operator to comply with the same in that the 

subject crosscut, being used as a shelter hole, was not kept 

clear of refuse and debris for a distance of 15 feet. Therefore, the operator failed to comply with the issued safeguard 

and thereby violated 30 C.F.R. § 75.1403. 

2. In the event of a derailment of track-mounted 

equipment in the proximity of this archway in the crosscut, 

I find that it is reasonably likely that if the archway were 

struck, even at a relatively slow speed, loose flying debris 

could seriously injure persons taking shelter in the crosscut/shelter hole. Therefore, I conclude that the violation 

contributed to a measure of danger to safety reasonably 

likely to result in serious injury to miners. Mathies Coal 

Co., supra. I therefore further conclude that the violation 

was significant and substantial. 

3. Th~ violation was not the result of Consol's unwarrantable failure to comply with the safeguard cited. 

1927 
Consol's position with regard to the applicability of the 

cited safeguard is that the normal crosscut at this mine is 

approximately 13-1/2 to 15 feet wide, depending on the type of 

miner used to cut it. The crosscut herein involved was substantially modified by an archway down to two shelter hole 

entrances that are 4· feet by 4 feet. Their reasoning goes 

that the purpose for the safeguard is to protect miners 

against a derailed piece of equipment getting into the crosscut and therefore the shelter hole. Should this occur, it 

could be necessary to get 15 feet deep into the crosscut in 

order not to be struck by the equipment itself. Here, however, the equipment itself could not get into the crosscut 

because of the steel and wood archway. Therefore, they 

reasoned that the safeguard does not apply to these shelter 

holes in the archway and thus it follows that the shelter 

holes should not have to be kept clear of obstructions to 

a depth of 15 feet. 

This is not an unreasonable position, but I have found 

it to be in error. The archway and shelter holes had existed 

in that configuration for at least 12 years. During this 

extended period of time, no one had ever before suggested 

that this particular safeguard applied to this configuration 

of crosscut/shelter hole. Nor had any other MSHA inspector 

ever required that it be kept clear of obstructions to a 

depth of 15 feet. In fact, on the day the order was issued, 

the testimony was to the effect that Inspector Migaiolo and 

his supervisor had some difficulty deciding themselves 

whether the area should be cleared of obstructions for 5 

feet or 15 feet. 

The Commission interprets the term "unwarrantable failure to comply" as being a violative condition which resulted 

from indifference, willful intent, or a serious lack of reasonable care. U. s. Steel Corp., supra. From the totality 

of evidence in this record, I cannot conclude that the instant violation resulted from Consol's indifference, willful 

intent, or a serious lack of reasonable care. Even though 

the rock found by the inspector in these shelter holes had 

obviously accumulated over a period of days or even weeks, 

the operator had a reasonable basis for disbelieving that 

the cited safeguard applied to this hybrid type of crosscut. 

Therefore, I find that the instant order improperly 

concluded that the violation resulted from Consol's unwarrantable failure to comply with the mandatory standard, i.e., 

the safeguard issued on June 6, 1972, by Inspector Powers. 

4. Considering the criteria in section llO(i) of the 

Act, I conclude that a penalty of $300 is appropriate. 

1928 
IV. DOCKET NO. WEVA 86-183-R; ORDER NO. 2710949 

Order No. 2710949, issued pursuant to section 104(d) (2) 

of the Act alleges a violation of the regulatory standard at 

30 C.F.R. § 75.1403 and charges as follows: 

On the south side of the crossover track haulage, shelter holes were not being maintained 

at least every 105 Beginning at the first 

shelter inby the manway the next shelter hole 

was approximately 205 away. This area is 

traveled at least ~hree times a day by management officials and as such should have been identified that shelter hole spacing was not proper. 

An overcast was present in the related area. 

FINDINGS OF FACT 

1. The order was issued at 11:10 a.m. on February 4, 

1986, by Inspector Joseph Migaiolo during an inspection of 

the Blacksville No. 1 Mine. 

2. Inspector Migaiolo observed, representatives of 

Consol essentially admitted, and I so find as a fact that 

shelter holes had not been provided every 105 feet in the 

crossover track haulage of the subject mine. More particularly, the inspector located an area, 205 feet in length, 

that did not contain a shelter hole. 

3. On January 26, 1981, a notice to provide safeguards 

was issued for this mine concerning shelter holes. This 

safeguard essentially stated that shelter holes shall be 

provided on track haulage at intervals of not more than 105 

4. Considering the fact that this condition had existed 

since at least January of 1981, management personnel at Consol are certainly chargeable with the knowledge that the condition co-existed with the safeguard that forbade it. 

So If equipment operating in this area were to derail, 

persons in the area would not have a shelter hole available 

and could be crushed by the equipment. Furthermore, the same 

reasoning as is contained in Finding of Fact No. 5 in Section 

II, supra, applies equally as well here where there is no 

shelter available. 

CONCLUSIONS OF LAW 

1. On February 4, 1986, the operator violated 30 C.F.R. 

§ 75.1403 in that the evidence of record establishes the 

1929 
existence of a previously issued safeguard concerning the subject matter of the instant order and the failure of the operator to comply with the same in that there was no shelter hole 

for a length of 205 feet along the crossover track haulage 

of the subject mine. The safeguard required a shelter hole 

at least every 105 feet along the haulage. By failing to 

comply with the issued safeguard, the operator thereby violated 30 C.F.R. § 75.1403. 

2. I find the violation contributed a measure of danger 

to safety reasonably likely to result in serious injury to 

miners. The rationale contained in Conclusion of Law No. 2 

in Section II, supra, applies equally to this order and violation. 

3. I likewise find the violation was the result of 

Consol's unwarrantable failure to comply with the mandatory 

standard, i.e., the safeguard of January 26, 1981. Management personnel at Consol knew or should have known that the 

violative condition and the safeguard forbidding that condition had co-existed at this mine for more than 5 years at 

the time the order was written. 

4. Considering the criteria in section llO(i) of the 

Act, I conclude that a penalty of $500 is appropriate. 

V. DOCKET NO. WEVA 86-184-R; ORDER NO. 2710951 

Order No. 2710951, issued pursuant to section 104(d) (2) 

of the Act, alleges a violation of the regulatory standard 

at 30 C.F.R. § 75.202 3J and charges as follows: 

In a large roof cavity on the south side crossover an unsupported roof brow existed. On the 

north end of the cavity a brow approximately 24 

inches thick, 30 inches wide, and 18 inches long 

was suspended over the walkway. This brow has 

come about due to roof sluf f ing around a conventional roof bolt. Three sides of this roof brow 

are exposed to air in that a roof strap was holding the fourth side together. This condition 

should have been observed easily due to location 

over the walkway and deteriorated form of roof 

unconsolidated shale. Management travels this 

area at least three times each day for examination 

and should have observed the condition. 

2/ 30 C.F.R. § 75.202 provides in pertinent part: 

Loose roof and overhanging or loose faces and 

ribs shall be taken down or supported. 

1930 
FINDINGS OF FACT 

1. The order was issued at 11:25 a.m. on February 4, 

1986, by Inspector Joseph Migaiolo during an inspection of 

the Blacksville No. 1 Mine. 

2. Inspector Migaiolo issued the instant order when he 

observed a roof brow approximately 24 inches in thickness to 

the main roof, 30 inches wide at the top and 18 inches at 

the base on the north end of the cavity at the south side 

crossover. The pillar of rock, consisting of oily shale 

type material is shown in a sketch admitted into evidence in 

this proceeding as Government Exhibit No. 15. The column of 

rock was at the end of an unsupported steel plank. The roof 

bolt on that end was no longer attached to the steel plank, 

having pulled through, and therefore the column of rock was 

lying on top of the plank on that end. The brow, consisting 

of unconsolidated oily shale, had deteriorated by erosion on 

three sides; only the right side was still attached to the 

main roof. 

3. This eroded roof condition had existed for at least 

several days, if not weeks, as it takes this long for the 

r6of to deteriorate to the point where Inspector Migaiolo 

found it on February 4. In fact, Messrs. Turner and Casteel 

had been watching this area for several weeks. Turner had 

tested the area by sounding it with a 7 foot roof bolt on 

the very morning the order was issued as part of his preshift examination. Company personnel considered the brow to 

be tight and adequately supported. I disagree. However, 

the one roof bolt that had popped out of the steel roof 

strap could have popped out at any time prior to Migaiolo's 

inspection. 

4. Individuals regularly travel through this area for 

supplies, clean-up procedures, and pre-shift examinations at 

least once a shift, three times a day. 

5. The condition was abated by removing the brow and 

installing two roof bolts. 

CONCLUSIONS OF LAW 

1. On February 4, 1986, the operator violated 30 

C.F.R. § 75.202 by its failure to either take down or 

adequately support this brow. 

2. Whether that violation was "significant and substantial" depends on whether based on the facts surrounding 

the violation, there existed a reasonable likelihood that 

the hazard contributed to would have resulted in an injury 

of a reasonably serious nature. Cement Division, National 

1931 
Gypsum Co., supra. Obviously, falls of roof material can 

result in serious or even fatal injuries. It is indisputable 

that roof falls are the leading cause of coal mining fatalities. 

In the instant situation, I find it to be reasonably likely 

that the fall of the relatively small area of unsupported 

roof brow could have caused a serious injury to a miner who 

would have happened to be walking underneath it, should it 

have come down at that time. I further find it to be reasonably likely that the unsupported roof brow as described in 

the record herein could have come down at any time. I fully 

credit the opinion testimony of Inspector Migaiolo in this 

regard. 

3. The violation was not, however, the result of 

Consol's unwarrantable failure to comply with the mandatory 

standard. Inspector Migaiolo's own testimony on crossexamination effectively negates his own finding of unwarrantability. The following exchange, as pertinent to this finding, took place at Tr. I-147, 148: 

Q. You stated that the roof bolt straps, the one 

strap was, that the bolt had popped out of it, so 

to speak? 

A. Yeah, that's right. 

Q .... the fact that this could occur instantly, 

would that negate the unwarrantability of this 

condition? 

A. Yes. 

Q" Okay" And you did state that that could occur 

instantly, that the bolt could pop out? 

A. Yes. 

Furthermore, responsible personnel at Consol testified 

that they were well aware of the deteriorated roof condition 

in this area and were testing it by attempting to pull it 

down and sounding it for looseness. 'They testified and I 

find their testimony credible to the extent that they found 

the roof to be tight and secure in their opinion. I disagree with their conclusion that the area was adequately supported and accordingly have found a violation of the standard 

cited, but I cannot conclude that the-violation occurred as 

the result of Consol's "unwarrantable failure to comply" 

with that standard. 

4. Considering the criteria in section llO(i) of the 

Act, I conclude that a penalty of $450 is appropriate. 

1932 
VI. DOCKET NO. WEVA 86-185-R; ORDER NO. 2710952 

Order No. 2710952, issued pursuant to section 104(d) (2) 

of the Act, alleges a violation of the regulatory standard 

at 30 C.F.R. § 75.303 lf and charges as follows: 

3/ 

An inadequate preshift examination was performed 

of the portal bus spur located on the portal bottom and crossover track haulage north and south 

sides. Such examination was inadequate for all 

three shifts. Obvious conditions noted in these 

areas as issued are as follows: 104(d) (2} Orders 

on 2/4/86 (1) 2710945, (2) 2710946, (3) 2710948, 

( 4) 271094 9, ( 5) 2710951. Such conditions in 

sequence were (1) obstructed clearance space in 

portal bus spur on bottom, (2) obstructions and 

unsized shelter hole at north end crossover switch, 

(3) obstructions in crosscuts used as shelter 

holes on north and south sides of bottom crossover 

track haulage, (4) shelter holes not spaced every 

105' on south side of crossover track haulage, 

(5) roof brow inadequately supported on south side 

of crossover track haulage. An adequate examination shall be performed and recorded. 

30 C.F.R § 75.303 provides in pertinent part: 

(a) Within 3 hours immediately preceding the beginning of any shift, and before any miner in such 

shift enters the active workings of a coal mine, certified persons designated by the operator of the mine 

shall examine such workings and any other underground 

area of the mine designated by the Secretary or his 

au~horized representative. Each such examiner shall 

examine •.. and test the roof, face, and rib conditions 

in such working section; examine active roadways, travelways, and belt -conveyors on which men are carried •..• 

Such mine examiner shall place his initials and the 

date and time at all places he examines. If such mine 

examiner finds a condition which constitutes a violation of a mandatory health or safety standard or any 

condition which is hazardous to persons who may enter 

or be in such area, he shall indicate such hazardous 

place by posting a "danger" sign conspicuously at all 

points which persons entering such hazardous place 

would be required to pass, and shall notify the operator of the mine .... Upon completing his examination, 

such mine examiner shall report the results of his 

examination to a person, designated by the operator to 

receive such reports at a designated station on the 

surface of the mine, before other persons enter the 

underground areas of such mine to work in such shift. 

Each such mine examiner shall also record the results 

of his examination .•. in a book approved by the Secretary 

kept for such purpose. 

1933 
FINDINGS OF FACT 

1. The order was issued at 12:10 p.m. on February 4, 

1986, by MSHA Inspector Joseph Migaiolo during an inspection 

of the Blacksville No. 1 Mine. 

2. I find as a fact that the inadequate pre-shift violation charged in this order is duplicative of that previously 

charged in Order Nos. 2710945, 2710946, 2710948, 2710949, 

and 2710951 in the following respects: 

a. Order No. 2710945 charged the operator, inter alia, 

with inadequate pre-shifting. The pertinent portion of that 

order stated: "This area is visited several times each day 

by managing officials who should have observed this condition." 

b. Order No 2710946 charged the operator, inter alia, 

with inadequate pre-shifting. The pertinent portion of that 

order stated: "Management frequently passes this area and 

thereby should have had observed and recorded this shelter 

hole obstruction and construction." 

c. Order No. 2710948 charged the operator, inter alia, 

with inadequate pre-shifting. The pertinent portion of that 

order stated: "These two shelter holes had obvious conditions which should easily have been observed by management." 

d. Order No. 2710949 charged the operator, inter alia, 

with inadequate pre-shifting. The pertinent portion of that 

order stated: "This area is traveled at least three times a 

day by management officials and as such should have been 

identified that shelter ho spacing was not proper." 

e. Order No. 2710951 charged the operator, inter alia, 

with inadequate pre-shifting. The pertinent portion of that 

order stated: "Management travels this area at least three 

times each day for examination and should have observed the 

condition." 

3. In the previous five numbered sections of this 

decision I have discussed and made findings of fact and conclusions of law concerning all the facts alleged in the five 

previous orders and have found violations in each of the 

five. Additionally, I have made findings and conclusions 

concerning the seriousness of these violations, and unwarrantability and have considered all the statutory criteria 

in arriving at an appropriate civil penalty. As part and 

parcel of this process, I have necessarily considered and 

made findings concerning the operator's negligence in either 

failing to locate or failing to appreciate the seriousness 

1934 
of the particular hazard involved. In essence the five previous orders charged the operator with failure to locate and 

abate certain violative conditions. I have considered those 

charges in their totality and have made the necessary findings which I feel are justified in the record. 

Order No. 2710952 adds nothing to the case from a factual standpoint. The facts are exactly identical to those 

the operator is charged with in the five previous orders. 

The on new issue raised in the instant order is a violation o 0 C.F.R. § 75.303 as a separate violation arising 

out of the same facts. Since these facts have already been 

adjudicated and appropriate penalties arrived at in the five 

previous sections, I find Order No~ 2710952 to be multiplicative for purposes of findings and penalties. 

CONCLUSIONS OF LAW 

1. Because the factual allegations contained in Order 

No. 2710952 are duplicative of those charged earlier in 

Order Nos. 2710945, 2710946, 2710948, 2710949, and 2710951, 

and penalties have already been assessed herein the violative conditions charged, Order No. 2710952 will be vacated. y 

DISCUSSION WITH FURTHER FINDINGS 

Consol repeatedly raised the issue during the hearing 

that the (d) (2) orders which are the subject of this decision 

were somehow tainted by the fact that this same inspector, 

Migaiolo, or even other unnamed inspectors, on one or more 

prior occasions had walked right past these cited conditions 

without batting an eye, let alone writing a (d) (2) order. A 

second issue frequently raised was that Inspector Migaiolo's 

supervisor, one Paul Mitchell, was accompanying the inspector on s day and that but for his presence, Migaiolo 

would ther not have written the violations at all or at 

least would not have characterized them as "unwarrantable." 

The is a legal issue, the a factual allegation 

that simply fails of proof. 

Consol's legal argument essentially amounts to some 

form of estoppel. argument at hearing was along the 

lines that if one inspector observed a certain condition and 

4/ Conclusions of law concerning the violation of 30 C.F.R. 

§ 75.303, per se, were not made in the previous five numbered 

sections of this decision because a violation of that section 

was not formally charged in those orders, even though the 

language contained therein as set out in Finding of Fact 

No. 2 in fact did allege violations of that section as well 

as the substantive section actually specified. 

1935 
didn't say anything about it one way or the other and the 

next day when basically the same condition existed, a second 

inspector wrote an unwarrantable violation order on , that 

because of the operator's reliance on the first inspector, 

at least the unwarrantable portion the order should not 

be upheld. 

In their post-hearing brief, Consol has softened that 

position considerably and in fact provided the U.S. Court 

of Appeals citation in Emery Mining Corp. v. Secretary of 

Labor, 5/ which effectively negates the estoppel argument. 

Therein-the court stated "courts invoke the doctrine of 

estoppel against the government with great reluctance." 

Further, quoting from Heckler v. Community Health Services, 

104 S. Ct. 2218 (1984), at 2226 the court stated that as a 

general rule "those who deal with the Government are expected to know the law and may not rely on the conduct of 

government agents contrary to law." 

Consol goes on to state that subjective interpretation 

of the regulations by inspectors is improper, and that allowing inconsistencies to exist in the interpretation of 

the rules and regulations from one inspection or inspector 

to the next defeats the purpose of the Act and makes it 

difficult if not impossible for operators to comp 

While I agree that an objective, if not absolutely 

identical, on the spot analysis of every factual condition 

and regulation would be an ideal situation, I don't think 

it is possible given the that MSHA inspectors are 

human and many of the regulations they are charged with 

enforcing are themselves subjective in nature. 

I there find that each order must stand on its own. 

All the relevant facts surrounding the cited conditions and 

the circumstances of its issuance were admitted into the 

record and the parties given the opportuni to argue what 

inferences and conclusions should be drawn therefrom. The 

fact that another inspector, or even the same inspector, 

previously observed but did not cite a particular violation 

on a previous occasion is one of those relevant facts but 

is not by itself determinative of whether the order should 

be affirmed. 

ORDER 

Based on the above findings of 

law, IT IS ORDERED: 

and conclusions of 

1. Order No. 2710945, contested in Docket No. WEVA 86-

180-R, IS AFFIRMED as a non-S&S violation of 30 C.F.R. § 

75.1403. Further, the order properly concluded that the 

5/ 3 MSHC 1585 (10th Cir. 1984). 

1936 
said violation resulted from Consol's unwarrantable failure 

to comply with the standard involved. 

2. Order No. 2710946, contested in Docket No. WEVA 

86-181-R, properly charged a violation of 30 C.F.R. § 75.1403 

and properly found that the violation was significant and substantial and resulted from Consol's unwarrantable failure to 

comply with the standard involved. Accordingly, Order No. 

2710946 IS AFFIRMED. 

3. Order No. 2710948, contested in Docket No. WEVA 

86-182-R, properly charged a violation of 30 C.F.R. § 75.1403 

and properly found that the violation was significant and substantial. However, the contested order improperly concluded 

that the violation resulted from Consol's unwarrantable failure to comply with the mandatory safety standard involved. 

Therefore, the violation was not properly cited in a section 

104(d) (2) order. Accordingly, Order No. 2710948 IS HEREBY 

.MODIFIED to a§ 104(a) citation. 

4. Order No. 2710949, contested in Docket No. WF.VA 

86-183-R, properly charged a violation of 30 C.F.R. § 75.1403 

and properly found that the violation was significant and substantial and resulted from Consol's unwarrantable failure to 

comply with the standard involved. Accordingly, Order No. 

2710949 IS AFFIRMED. 

5. Order No. 2710951, contested in Docket No. WEVA 

86-184-R, properly charged a violation of 30 C.F.R. § 75.202 

and properly found that the violation was significant and substantial. However, the contested order improperly concluded 

that the violation resulted from Consol 1 s unwarrantable failure to comply with the mandatory safety standard involved. 

Therefore, the violation was not properly cited in a section 

104(d) (2) order. Accordingly, Order No. 2710951 IS HEREBY 

MODIFIED to a§ 104(a) citation. 

6. Order No. 2710952, contested in Docket No. WEVA 

86-185-R, IS VACATED. 

7. The Consolidation Coal Company IS HEREBY ORDERED 

TO PAY a civil penalty of $1,950 within 30 days of the date 

of this decision. 

Roy aurer 

Admi 'strative Law Judge 

1937 
Distribution: 

Michael R. Peelish, Esq., Consolidation Coal Company, 1800 

Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

Linda M. Henry, Esq., Office of the Solicitor, u. S. Department of Labor, 3535 Market Street, Philadelphia, PA 19104 

(Certified Mail) 

yh 1938 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

DEC 161986 

JOHNNIE J. DELGADO, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

BARRETT INDUSTRIES, INC., 

Respondent 

Docket No. CENT 86-124-DM 

MD 86-22 

Barrett Base Plant 

DECISION 

Appearances: Mr. Johnnie J. Delgado, San Antonio, Texas, 

pro se.: 

Mr. Franklin Spradling, Barrett Industries, San 

Antonio, Texas, 

for Respondent. 

Before: Judge Morris 

Complainant brings this action on his own behalf alleging he 

was discriminated against by his employer, Barrett Industries, 

Inc., in violation of the Federal Mine Safety and Health Act of 

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

The statutory discrimination provision, Section 105(c)(l) of 

the Act, now codified at 30 U.S.C. § 815(c)(l), provides as 

follows: 

§ 105(c)(l) No person shall discharge or in any manner discriminate against or cause to be discharged or cause discrimination against or otherwise interfere with the exercise 

of the statutory rights of any miner, representative of 

miners or applicant for employment in any coal or other mine 

subject to this Act because such miner, representative of 

miners or applicant for employment has filed or made a complaint under or related to this Act, including a complaint 

notifying the operator or the operator's agent, or the representative of the miners at the coal or other mine of an 

alleged danger or safety or health violation in a coal or 

other mine, or because such miner, representative of miners 

or applicant for employment is the subject of medical evaluations and potential transfer under a standard published 

pursuant to section 101 or because such miner, representative of miners or applicant for employment has instituted or 

caused to be instituted any proceeding under or related to 

this Act or has testified or is about to testify in any such 

proceeding, or because of the exercise by such miner, representative of miners or applicant for employment on behalf 

of himself or others of any statutory right afforded by this 

Act. 

1939 
After notice to the parties, a hearing on the merits was 

held in San Antonio, Texas on September 18, 1986. The parties 

waived their right to file post-trial briefs. 

Applicable Case Law 

In order to establish a prima facie case of discrimination 

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

the burden of production and proof to establish that Cl) he 

engaged in protected activity, and (2) the adverse action 

complained of was motivated in any part by that activity. 

Secretary on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 

2786, 2797-2800 (October 1980), rev'd on other grounds sub nom. 

Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 

1981); Secretary on behalf of Robinette v. United Castle Coal 

Co., 3 FMSHRC 803, 817-18 {April 1981). The operator may rebut 

the prima facie case by showing either that no protected activity 

occurred or that the adverse action was not in any part motivated 

by protected activity. If an operator cannot rebut the prima 

f acie case in this manner it nevertheless may defend aff irmatively by proving that Cl) it was also motivated by the miner's 

unprotected activities, and (2) it would have taken the adverse 

action in any event for the unprotected activities alone. The 

operator bears the burden of proof with regard to the affirmative 

defense. Haro v. Magma Copper Co., 4 FMSHRC 1935, 1936-38 

(November 1982). The ultimate burden of persuasion does not 

shift from the complainant. Robinette, 3 FMSHRC at 818 n. 20. 

See also Boich v. FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983); 

i50Ilovan v. Stafford Constr. Co., 732 F.2d 954, 958-59 CD.C. Cir. 

1984){specifically approving the Commission's Pasula-Robinette 

test). The Supreme Court has approved the National Labor 

Relations Board's virtually identical analysis for discrimination 

cases arising under the National Labor Relations Act. NLRB v. 

Transportation Management Corp., 462 U.S. 393, 397-403 (1983). 

Summary of the Evidence 

Johnnie J. Delgado was terminated by Barrett Industries on 

February 7, 1986 {Tr. 8, 9). At the time he was the operator of 

a 988A Caterpillar loader. He was working 50 hours and earning 

$5.40 per hour CTr. 9, 10). 

On the date of his termination Delgado was going to have 

lunch with his wife at lunch time. When he learned his wife was 

at the parking lot another operator said he would load the truck 

while Delgado went to eat. Due to the nature of the business the 

workers do not have a regular lunch period (Tr. 10-13, 26, 27). 

Mr. Delgado started eating and Bob Dixon, the plant supervisor, signaled him to go back to work. When Delgado signaled he 

was eating Dixon restated that he wanted Delgado to load the 

1940 
trucks "right now". Delgado asked if he should go out and eat 

dust. Dixon replied affirmatively. Delgado said he wouldn't eat 

in the dust (Tr. 10, 12, 14). Delgado said he'd go back to work 

right quick, that is, in about five minutes, as soon as he 

finished eating (Tr. 14). 

Delgado finished eating and walked down to his caterpillar. 

Dixon had gotten another operator to drive the loader. Dixon 

then told Delgado that he was terminated (Tr. 11, 14-16, 27). 

Everytime Delgado had talked about safety to Mr. Barrett or 

Frank Spradling, Bob Dixon would yell at him for talking to them 

(Tr. 11). After he was fired Delgado talked to Mr. Barrett who 

told him he couldn't do anything (about him ha~ing been fired) 

(Tr. 17, 18). 

It it always dusty in the pit area, particularly where the 

material comes on the conveyor from the shaker and into the pile 

(Tr. 18) • 

About a month before he was fired Delgado had complained 

that his machine was leaking too much oil. He had also 

complained Cat some undetermined time) about carbon monoxide 

leaking from the corroded exhaust (Tr. 19). No one at Barrett 

said he shouldn't complain about his equipment or anything of 

that nature (Tr. 19). The company didn't seem upset when he 

complained about the oil leak or the manifold (Tr. 20). In 

December 1985 Delgado had complained to his supervisor Rodrigues 

about the safety of the workers he was lifting in the loader 

bucket. They were raised to place pins in the crusher (Tr. 

20-22). The company was not upset over the bucket incident (Tr. 

22, 23). 

Due to a back injury in November 1985, Delgado has not 

worked since he was terminated. The doctor released him two 

months ago (Tr. 24). Delgado considered himself a good employee 

(Tr. 24). 

Franklin Spradling, director of safety, testified for 

Barrett Industries (Tr. 30). The witness, who was not present on 

February 7, 1986, testified that the company crushes limestone 

(Tr. 30, 31). 

Delgado's job was at the pile where he would load customer's 

trucks (Tr. 31). Three times supervisor Dixon asked Delgado to 

return to work. When he would not return Dixon got another 

operator to perform the work (Tr. 31). About four or five 

workers are trained for that job (Tr. 32). 

The company does not have a prescribed lunch period (Tr. 31). 

Other than clarifying the lunch policy, the witness had no 

1941 
problem with anything Delgado had stated (Tr. 31). He felt 

Delgado should have stayed on his job until he was relieved (Tr. 

32). The base pile operation cannot be shut down as long as 

customers arrive (Tr. 33). 

Mr. Delgado complaints about safety did not relate to this 

termination. The company, in fact, rewarded Delgado for some of 

his safety awareness (Tr. 34). 

Mr. Spradling considered Delgado to be a good employee (Tr. 

34). Dixon, who is no longer with the Barrett Company, was the 

top management representative at the site (Tr. 34, 35). Dixon 

left the company four to five weeks ago but the witness didn't 

know the reason (Tr. 35). 

Evaluation of the Evidence 

This alleged discrimination arose after complainant Delgado 

left the· jobsite and joined his wife for lunch on the company 

parking lot. Complainant indicated this was the normal lunch 

time but he agreed the workers do not "punch out" for lunch (Tr. 

12, 26). 

While he was at lunch the plant supervisor directed him to 

return to work. He stated he didn't want to eat dust. When he 

did return he was terminated. 

The facts do not establish that Mr. Delgado was engaged in a 

protected activity. He refused to return to work because his 

lunch period was interrupted. The refusal was not based on any 

unsafe or unhealthy condition. Rather, he told Dixon that as 

soon as he finished eating he would go back to work right quick 

(Tr. 14). 

Collateral issues arise as to whether complainant was fired 

because he complained about safety. No evidence supports the 

view that the company was retalilating against complainant. In 

fact, the testimony of respondent's witness Spradling is 

unrebutted that Delgado complaints about safety did not relate to 

his termination. In addition, the company had previously 

rewarded Delgado for his safety awareness (Tr. 34}. 

For the foregoing reasons I conclude that the complaint of 

discrimination filed herein should be dismissed. 

Conclusions of Law 

Based on the entire record, the following conclusions of law 

are entered: 

1. The Commission has jurisdiction to decide this case. 

1942 
2. Complainant failed to establish that he was discriminated against in violation of Section 105(c)(l) of the Act. 

ORDER 

Based on the foregoing facts and conclusions of law I enter 

the following order: 

The complaint of discrimination filed herein is dismissed. 

Law Judge 

Distribution: 

Mr. Johnnie J. Delgado, 5423 Brookhill, San Antonio, TX 78228 

(Certified Mail) 

Barrett Industries, Inc., Mr. Franklin Spradling, Director of 

Safety, Rt. 3, Box 211Bl, 6889 Evans Road, San Antonio, TX 78218 

(Certified Mail) 

/bls 

1943 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE. SUITE 400 

DENVER, COlORADO 80204 DEC 16 1986 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , Petitioner 

v. 

CATHEDRAL BLUFFS SHALE OIL 

COMPANY, 

Respondent 

Docket No. WEST 81-186-M 

A.C. No. 05-03140-05005 

Cathedral Bluffs Shale Oil 

DECISION APPROVING SETTLEMENT 

Before: Judge Morris 

This case, a proceeding under the Federal Mine Safety 

and Health Act of 1977, 30 u.s.c. § 801, was remanded by the 

Commission on November 5, 1986. 

Prior to a resubmission of the issues the parties filed 

a motion seeking approval of a proposed settlement. 

Citation 327786 herein alleged a violation of 30 C.F.R. 

57.19-100. An original assessment of $90 was proposed. 

The parties now seek a decision affirming the citation 

and assessing a penalty of $50. 

I have reviewed the proposed settlement and I find it is 

reasonable and in the public interest. It should be approved. 

Accordingly, I enter the following: 

ORDER 

1. The settlement is approved. 

2. Citation 327786 is affirmed and a penalty of $50 is 

assessed. 

3. Respondent is ordered to pay to the Secretary the sum 

of $50 within 30 days of the date of this decision. 

Law Judge 

1944 
Distribution: 

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

of Labor, 4015 Wilson Boulevard, Arlington, Virginia 22203 

(Certified Mail) 

James M. Day, Esq., Cotton, Day & Doyle, 1899 L Street, N.W., 

12th Floor, Washington, D.C. 20036 (Certified Mail) 

/ot 1945 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 16 1986 

CONSOLIDATION COAL COMPANY, 

Contestant 

CONTEST PROCEEDING 

v. Docket No. WEVA 86-250-R 

Order No. 2711286; 3/19/86 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

: 

: 

Blacksvil No. 1 Mine 

Appearances: 

Before: 

DECISION 

w. Henry Lawrence, Esq., Steptoe and Johnson, 

Clarksburg, West Virginia, for the Contestant; 

William T. Salzer, Esq., Office of the 

Solicitor, U.S. Department of Labor, 

Philadelphia, Pennsylvania, for the 

Respondent. 

Judge Koutras 

Statement of the Proceeding 

This case concerns a Notice of Contest filed by the contestant against the respondent pursuant to section l05(d) of 

Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 815(d), challenging the legality of a section 104(d)(2) 

order issued to the contestant at its Blacksville No. 1 Mine 

on March 19, 1986. The case was heard in Morgantown, 

West Virginia, and while the contestant filed posthearing 

arguments, MSHA did not. However, I have considered its oral 

argument's made during the course of the hearing. 

Applicable Statutory and Regulatory Provisions 

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

30 U.S.C. § 301, et seq. 

2. Sections 104(a) and (d), and 105(d} the Act. 

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

19116 
Issues 

The issues presented in this case are: Cl) whether the 

conditions or practices cited by the inspector in his order 

constitute a violation of 30 C.F.R. § 77.205, and (2) whether 

the violation was "significant and substantial." Additional 

issues raised by the parties are disposed of in the course of 

this decision. 

Unwarrantable Failure Issue 

At the conclusion of all of the testimony and evidence 

in this case, Inspector Magaiolo was recalled and asked 

whether he still believed the alleged violation resulted from 

contestant's unwarrantale failure to comply with the cited 

mandatory safety standard. Mr. Magaiolo stated that in light 

of the testimony presented by the contestant, particularly 

plant foreman Joe Fisher's testimony that he discovered the 

debris on the platform 2 hours before the issuance of the 

order and ordered it removed, he did not now believe that the 

violation was the result of an unwarrantable failure by the 

contestant to comply with the toeboard requirements of the 

·cited standard. Mr. Magaiolo believed that the order should 

be modified to a section 104(a) citation, and MSHA's counsel 

agreed that this should be done. Counsel's motion in this 

regard was granted from the bench (Tr; 163-165). 

Stipulation 

1. The parties agreed that the contestant and the subject mine are subject to the Act and the jurisdiction of the 

Federal Mine Safety and Health Review Commission. 

2. The parties agreed that assuming the contested order 

is affirmed, all of the pre-requisite statutory requirements 

for the existence of the "section 104(d) chain" have been met 

in this proceeding. 

3. MSHA 1 s counsel moved to modify the inspector's negligence finding from "highn to "moderate, 11 and the motion was 

granted from the bench without objection. 

Discussion 

Section 104(d)(2) "S&S" Order No. 2711286, issued on 

March 19, 1986, cites an alleged violation of 77.205(e), and 

the condition or practice is described as follows: 

On the surface of the prep plant area in 

the headhouse, on the No. 2 reclaim belt floor, 

1947 
there was approx. 13' of platform that requires 

toeboards. From this platform enormous amount 

of debris is accumulated and can be knocked to 

the below floor work areas. Citation 2711286 

on 3/19 identified an entanglement of debris 

found this inspection. Toeboard was located on 

one side of the platform where a shovel and 

sledge hammer was laying partially over the 

edge. Due to the enormous amount of debris 

accumulated on this platform, it should have 

been obvious to management that a toeboard was 

needed. 

MSHA's Testimony and Evidence 

MSHA Inspector Joseph A. Migaiolo testified as to his 

background and experience, and he confirmed that he issued 

the contested order in question on March 19, 1986, and served 

it on mine management representative Patrick wise who accompanied him during his inspection. 

Mr. Migaiolo stated that he issued the order after finding that an elevated metal platform in the headhouse on the 

No. 2 reclaim belt floor did not have toeboards installed 

around its perimeter to prevent debris which was stored on 

the platform from falling off the end of the platform to the 

floor and ground below. He identified exhibit G-9, as a 

sketch of the platform which he made at the time he issued 

the order, and the debris which he observed is identified on 

the sketch. The debris consisted of conveyor belt strips, 

roof bolts, an 8 foot board, a metal platform plate weighing 

approximately 15 pounds, two pieces of metal plates weighing 

approximately 6 to 10 pounds, a 6 foot metal plate bent on 

one end, a bucket, a sledge hammer, and a shovel. The hammer 

and shovel were leaning against a toeboard which was installed 

along one side of the platform and they were protruding over 

the platform. The remaining items were located along the 1 

and upper right side of the platform as shown in the sketch. 

M.r. Migaiolo stated that a large drive motor was located 

on the platform, and the motor was used to drive the reclaim 

lt which passed under and by the end of the platform. The 

tform was approximately 10 to 12 et above the belt floor, 

and access to the platform was by means of a walkway passing 

under it and up a stairway at the end of the platform. 

Mr. Migaiolo stated that he asked Mr. Wise about the 

materials on the platform, and Mr. Wise advised him that the 

1948 
materials apparently became lodged in the reclaim belt and 

were taken off the belt and placed on the platform. 

Mr. Migaiolo marked his sketch, exhibit G-9, with green markings indicating the platform areas which lacked a toeboard. 

One area was 3 feet long and the other area was 9 feet long. 

Mr. Migaiolo stated that the existing toeboards were 

from 4 to 8 inches in height and were welded to the side of 

the platform. In order to determine whether toeboards are 

required, one must first determine whether anyone would be 

passing or working under the platform. In his opinion, persons such as a cleanup man, an examiner, or a repairman would 

normally travel or work under or on the platform and would 

also go up the stairs to reach the platform. The platform 

was subject to vibration from the motor while the belt was 

running, as well as from the normal vibration of the headhouse, and he believed that it was reasonably likely that the 

vibration would cause the debris to fall off the platform to 

the floor below. If these materials struck someone, they 

would inflict serious injuries. 

Mr. Migaiolo stated that he observed an unprotected 4 to 

5 inch gap or opening between the edge of the platform and 

the belt below for a distance of 3 feet. Platform vibration 

could result in a roof bolt rolling over the edge of the platform where there was no toeboard, through the opening and to 

the ground some 40 feet below. The roof bolt could hit the 

windshield of an end loader which normally worked on the 

ground under the opening. 

Mr. Migaiolo observed that the platform had been recently 

hosed down with water but the debris and materials had not 

been removed. He observed no coal dust accumulations on the 

platform. He described the area under the platform as a 

"vacant work area," and he did not believe that it was a "high 

traffic area." However, he still believed that the materials 

and debris on the platform could fall off the unprotected 

edges and strike someone in the work areas below. He also 

believed that anyone passing under the platform would not 

always use the travelway along the wall, and that they would 

have access to the stairway by passing under the platform from 

different directions. 

Mr. Migaiolo described the mine operator as conscientious 

in the manner in which it examined the building, and indicated 

that the headhouse is inspected and cleaned up at least once a 

day. He confirmed that the platform had a 32 to 34 inch 

"double barrel" handrail installed around its perimeter. 

Although someone on the platform inspecting the motor would 

1949 
only be there for a few minutes, he believed that someone 

cleaning up coal in the work areas on the floor below would be 

there for 20 to 30 minutes and would be exposed to the hazard 

of the debris or material falling off because of the vibration 

or by someone inadvertently dropping something off the 

platform. 

Mr. Migaiolo confirmed that he is the resident mine 

inspector and had previously inspected the mine. However, he 

could not recall previously inspecting the headhouse or platform. He stated that Mr. Wise advised him that the platform 

was used as a storage area for the debris from the belt, and 

he therefore concluded that the mine operator was aware of 

this. He also believed that the material and debris was 

collected over some period of time. Abatement was achieved 

within 3 hours after the order was issued, and toeboards were 

inst~lled on the remaining portions of the platform (Tr. 

5-40). 

On cross-examination, Mr. Migaiolo stated that he looked 

over the edge of the platform through the opening between the 

platform and the belt below. He could see the ground through 

the opening but did not see an endloader. He believed that 

the endloader operated on the ground "swamp area" at least 

once a week cleaning up debris. He confirmed that he did not 

observe any of the material or debris on the platform moving 

or vibrating, and he did not ask anyone about how long the 

materials were there. 

Mr. Migaiolo confirmed that he also issued a section 

104(a) citation on March 19, 1986, because of the same debris 

and material on the platform. He believed the debris constituted a tripping and stumbling hazard to anyone on the platform, and he cited a violation of mandatory safety standard 

section 77.205(b), and made a finding of "moderate" negl 

gence. When asked to explain and distinguish the difference 

between his section 104(a) citation and his section 104(d)(2) 

or , particularly since he found "moderate" negligence for 

both violations, he could not respond. 

Mr. Migaiolo stated that since the plant had been in 

existence for a number of years, toeboards should have been 

installed on the platform. When asked to explain his prior 

testimony that toeboards are required only if persons working 

on the floor below are exposed to a hazard of being struck 

from f ing objects, he reiterated that he believed that 

someone would be in the area at least once a day. He also 

explained that the platform was not previously cited because 

1950 
he probably did not observe any material or debris on the 

platform (Tr. 40-81). 

Contestant's Testimony and Evidence 

Joe Fisher, plant foreman, stated that he is the afternoon shift supervisor, and that he has supervisory authority 

over the reclaim belt headhouse. He stated that the platform 

in question holds a motor and speed reducer for the No. 2 

reclaim belt. He identified exhibit C-4 as a sketch of the 

platform area in question, and he confirmed that a second 

short belt 36 inches wide, with 8 inches of extensions on 

either side passed directly under the platform in question. 

He stated that the area under the platform opposite the steps 

and the short belt was a rather cramped area where very little 

work was performed. He stated that belt idlers were changed 

in the area every 2 years, and that work on the ground "swamp 

area" under the headhouse was performed every 2 weeks by a 

payloader. 

Mr. Fisher stated that normal access to the platform was 

along a travelway leading to the stairs next to the wall. He 

also stated that a second means of access was by a stairway 

located near the 36 inch toeboard depicted in exhibit C-4, 

and the platform was protected by a toeboard at that location. 

A 3 inch high toeboard was installed along the perimeter of 

the platform on either side of the motor and along the side 

extending to the stairs in order to abate the violation. 

Mr. Fisher stated that maintenance on the belt motor is 

performed on the platform, and that debris which is caught in 

the short belt is removed after the belt is stopped and 

locked out. Since the short belt passes 15 inches under the 

platform close to the top, any debris or material removed 

from the belt is simply placed on the platform until it can 

be removed from the area with an endloader. He confirmed 

that a cleanup man and the shift foreman (himself) would have 

occasion to be on the pla orm at any given time and that the 

cleanup man would stand on the stairs to hose the area down. 

Mr. Fisher stated that the platform is not used as a 

regular storage area, but is used only for the purpose of 

placing debris from the short belt there until it can be 

removed by an endloader. It is placed on the platform om 

the short belt because it is easy and convenient, and he does 

not want to throw the debris off the belt onto the floor 

below. 

1951 
Mr. Fisher confirmed that shortly before Inspector 

Migaiolo's inspection he went to the platform and observed 

some metal sk tboard material, strips of rubber, some roof 

bolts and a shovel on the platform. He instructed the cleanup 

man to hose down the platform with water and to remove the 

debris. He also confirmed that as the shift foreman, he is on 

the platform everyday. 

Mr. Fisher stated that he did not believe additional 

toeboards were necessary on the platfonn because any debris 

falling off the platform along the edge where a new 30 and 

48 inch long toeboard was installed for abatement would fall 

to the floor or the short belt below. It was his understanding that toeboards were only necessary where there was a 

possibility of something being kicked off the platform and 

striking someone below (Tr. 81-103). 

On cross-examination, Mr. Fisher stated that the distance 

from the edge of the short belt to the stairs is approximately 

16 inches, and that when he is on the platform to check the 

motor he is there for approximately 3 minutes. He confirmed 

that he was on the platform approximately 2 hours before the 

inspector arrived on the scene and observed the materials 

which he previously described. He did not observe the large 

board, but conceded that it could have been there. He picked 

up a roof bolt and placed it next to the existing toeboard. 

Mr. Fisher confirmed that the platform vibrates, and he 

stated that the shovel is there to clean any coal that may be 

accumulated under the belt and the platform. He assumed that 

the sledge hammer was there to knock out any rock which may 

be lodged on the short belt chute. This work would be perf armed by someone standing on the short belt while it is 

stopped and locked out. 

Mr. Fisher confirmed that he placed the materials on the 

platform shortly before the inspector's arrival and instructed 

the cleanup man to remove them and to hose down the platform. 

He also explained that if he is alone he cannot remove any 

debris taken from the belt by himself and must wait for the 

cleanup man who normally removes them with a payloader. He 

explained further that as a supervisor, he cannot perform any 

labor, and must rely on a union cleanup man to carry away any 

debris (Tr. 103-118). 

Patrick Wise, dust foreman, stated that he sometimes 

serves as an escort for Federal inspectors, and he confirmed 

that he accompanied Inspector Migaiolo during his inspection 

of March 19, 1986. Mr. Wise stated that he observed a twisted 

1952 
roof bolt, a bucket, a shovel, a piece of steel, and a board 

on the platform in question. He also stated that a 6 inch 

high toeboard was in place near the stairs leading to the platform, and he circled the area on exhibit C-4. He stated that 

a 3 inch high toeboard was welded over the 6 inch toeboard 

which was in place to abate the violation. 

Mr. Wise stated that Inspector Migaiolo asked him how 

long the debris had been on the platform, and that he informed 

the inspector that he did not know and that he was not responsible for the headhouse and did not usually go there to perform his dust foreman's duties. Mr. Wise denied that he told 

the inspector that the platform was used as a storage area. 

Mr. Wise agreed with Mr. Fisher's testimony concerning the 

short belt which ran under the platform (Tr. 121-130). 

Robert w. Gross, Safety Supervisor, Blacksville No. 1 

Mine, stated that his duties take him to the headhouse at 

least once a week while conducting his fire inspections. He 

stated that prior to the issuance of the order in question, 

he was not aware of the existence of the platform because it 

was isolated and hidden behind the reclaim belt. However, 

since the order was issued he inspects the platform regularly 

to insure that no debris has accumulated there. He confirmed 

that when he observed the platform prior to the abatement, a 

toeboard was in place adjacent to the top of the stairway. 

Mr. Gross stated that he did not believe that the platform was a crossover, elevated walkway, elevated ramp, or 

stairway requiring toeboards. He confirmed that he discussed 

the matter concerning a roof bolt falling between the opening 

between the platform and the belt to the ground below where 

an endloader sometimes is working and that he informed the 

inspector that the machine had a canopy. The inspector took 

the position that the roof bolt could strike the windshield, 

but Mr. Gross believed that this was not likely since the 

windshield is straight rather than curved. 

Mr. Gross stated that when he observed the platform the 

day after abatement, he noticed the difference in the h ght 

of the toeboard which was installed next to the steps to 

achieve abatement and the old one which was previously there. 

Mr. Gross believed that it was unlikely that something 

could fall off the platform and injure someone because the 

area was not frequently travelled. He stated that the inspector was more interested in material falling from the corner 

of the platform to the ground where there was a space between 

the platform and the reclaim belt {Tr. 135-147). 

1953 
On cross-examination, Mr. Gross confirmed that while he 

could make decisions concerning the necessity for toeboards 

to be installed on the platform in question, he never considered this since he was unaware of the existence of the platform prior to the issuance of the violation. He confirmed 

that since the issuance of the violation in this case, more 

toeboards have been installed in elevated areas used to 

service equipment. 

Mr. Gross confirmed that toeboards on the platform where 

there was prior access to the platform from another corner 

were installed when the plant was constructed prior to 1969 

and he agreed that one could infer from this that the operator knew that an area around a stairway used for access to 

the platform presented a possible danger of material falling 

off the platform to the area below (Tr. 155). He also confirmed that no toeboards were installed along the cited perimeter of the platform above the short belt which passed under 

the platform. He stated that he did not know how the belt 

was constructed, and although a belt "extension" would lessen 

the likelihood of falling objects from the platform striking' 

the belt and bouncing off, he conceded that such an occurrence 

was possible (Tr. 158). 

Inspector Migaiolo was recalled by the Court, and he 

stated that he had no particular recollection of the existence 

of the short belt under the platform in question, but had no 

reason not to believe the testimony of the contestant's 

witnesses with respect to the existence of this belt. He also 

stated that he did not observe the 14-inch long toeboard 

installed by the stairway leading to the platform, and he confirmed that his principal concern was the fact that the missing toeboard along the perimeter of the platform as depicted 

at the upper left-hand corner of his sketch (exhibit G-9), 

presented a hazard of material such as a roof bolt falling 

between the opening to the ground below and striking the windshield of the front-end loader operating in the "swamp area" 

below (Tr. 160-164). 

Contestant's Arguments 

During the course of the hearing, contestant's counsel 

argued that subsection (e) of section 77.205, does not include 

platforms of the kind cited by the inspector in this case, and 

that it is inapplicable to the facts of this case. He pointed 

out that section 77.205 deals with "Travelways, 11 and suggested 

that if the inspector were concerned that the platform were 

being used as a storage area, he should have cited section 

1954 
77.208(a), which requires the storage of materials "in a manner which minimizes stumbling or fall-of-material hazards." 

Counsel pointed out that if the materials in question should 

not have been on the platform, or if they simply presented a 

tripping hazard, there would be no need for toeboards. Counsel further pointed out that the contestant has installed toeboards in the plant as necessary, particularly over walkways 

where people are likely to be travelling or working, and that 

this is done to afford protection from falling objects. Counsel concluded that the only piece of equipment which would be 

operating below the platform was an end loader in the "swamp 

area" on the ground level under one corner of the platform, 

and that it was equipped with a roof and vertical windshield. 

He asserted that a roof bolt falling from the platform would 

hit the roof of the endloader, and that it was highly unlikely 

or foreseeable that it would strike the windshield and injure 

the operator. He also argued that the contestant's evidence 

established that no one travels or works under the platform, 

and that even if required by subsection Ce), the contestant 

believed that toeboards are not necessary because no one is 

exposed to a falling object hazard (Tr. 167-168). 

In his posthearing proposed findings and conclusions, 

contestant's counsel argues that the cited platform in question is not an elevated walkway in that it did not serve as 

an area over which workers travelled from one work area to 

another, and that subsection (e) of section 77.205 simply 

does not apply in this case. Except for an endloader with a 

steel roof and vertical windshield which operated in a "swamp 

area" on the ground below the platform approximately twice 

each month, counsel cites the absence of any evidence that 

any other individuals would be exposed to falling objects 

either inside or outside the slope headhouse containing the 

platform. With respect to the endloader, counsel asserts 

that it was highly unlikely that materials from the platform 

could fall through the 4 to 5-inch wide gap at one end of the 

platform to the "swamp area" some 40 feet below, and even if 

it did, it was highy unlikely, if not impossible, that falling debris would strike the operator because he is protected 

by a steel roof and the windshield is vertical. Assuming the 

applicability of subsection (e), counsel concludes that in 

these circumstances, a toeboard at the corner location of the 

platform where the gap existed was not necessary. 

Counsel further argues that the inspector issued the 

citation on the mistaken and erroneous belief that the platform was used as a storage area and that employees worked or 

travelled under the edges of the platform where toeboards 

were not present. Counsel concludes that MSHA has presented 

1955 
no credible evidence to support these assumptions, and he 

points out that the evidence establishes that the debris 

taken from the belt and placed on the platform had existed 

there for approximately 2 hours, and that foreman Fisher had 

instructed an employ~e to remove the debris from the platform. 

MSHA's Arguments 

During oral argument, MSHA's counsel took the position 

that since subsection (e) is the only provision specifically 

referring to toeboards, the term "elevated walkways" as used 

in the standard encompasses work areas on elevated platforms 

on which individuals would be required to walk from one point 

to another, and that the requirement for toeboards where 

necessary is designed to prevent the type of hazards that 

would occur on platforms (Tr. 78). 

MSHA's counsel also took the position that the question 

concerning the need for toeboards on the cited platform would 

depend on whether debris is placed there as a matter of practice, or whether it is a one-time occurrence (Tr. 150). He 

agreed that the installation of toeboards along some perimeter areas of the platform, and not along other locations, 

appeared to be based on judgments by mine management that 

some areas needed protection from falling objects, while 

others did not (Tr. 156). Counsel also concluded that the 

cited platform falls within section 77.205, and that the 

inspector's concern about objects falling off the edge to the 

ground floor below has been substantiated by the evidence and 

that the citation should be affirmed (Tr. 166). 

Findings and Conclusions 

The contestant in this case is charged with a violation 

of mandatory safety standard 30 C.F.R. § 77.205(e), for failing to install toeboards along a 13-foot perimeter of an 

elevated metal platform located in the preparation plant headhouse. The platform contained a large motor used to drive a 

belt which passed under the platform, and access to the platform for purposes of servicing the motor is by a stairway at 

one end. The inspector issued the citation after finding 

that debris which had been taken from the belt and placed on 

the platform had not been removed or cleaned up. The inspector believed that the additional toeboards were required to 

prevent the debris from falling off the platform and striking 

people who he believed would be working or travelling or working under the platform. 

1956 
The inspector confirmed that he issued a second citation 

(exhibit C-3), at the same time, citing the same debris. The 

second citation was issued pursuant to subsection (b) of section 77.205, because the inspector believed it constituted a 

tripping or stumbling hazard to persons on the platform. 

That citation is not in issue in this case. 

section 77.205(e) provides as follows: "Crossovers, 

elevated walkways, elevated ramps, and stairways shall be of 

substantial construction, provided with handrails, and maintained in good condition. Where necessary toeboards shall be 

provided." 

The critical question in this case is whether or not the 

cited platform area comes within the scope of section 

77.205Ce), and whether or not it may be considered a "crossover, elevated walkway, elevated ramp, or stairway" requiring 

toeboards "as necessary." Toeboards were in place at some 

locations on the platform, but not in others. The inspector 

was concerned that the debris found on the platform could 

fall off and strike someone walking or working under the 

platform. 

There is no evidence in this case that the platform in 

question is a crossover, elevated ramp, or stairway. Even 

though the inspector described the area where the debris was 

found as a platform, and the standard makes no references to 

platforms, MSHA takes the position that the platform may be 

considered an elevated walkway for purposes of section 

77.205(e). The contestant takes the position that the platform is not a walkway within the meaning of the cited standard. Even if it were, contestant takes the further position 

that toeboards would then only be required if it were necessary. On the facts of this case, contestant concludes that 

toeboards at the cited platform locations were not necessary. 

In Sunbeam Coal Corporation, Docket No. PITT 79-213, 

2 FMSHRC 192, 221 (January 29, 1980), I vacated a violation 

issued by an inspector who alleged that an elevated platform 

area used for maintenance purposes was a walkway within the 

meaning of section 77.205(a), and that safe access to the 

asserted walkway was not provided and maintained. In that 

case, MSHA attempted to amend its pleadings to cite a violation of subsection (e) of section 77.205, claiming that the 

platform area was a walkway within the meaning of that subsection. I ruled that the cited platform was in fact a platform 

work station used for maintenance purposes and not a walkway 

normally used by miners to travel in and through the plant, 

and the inspector candidly admitted that this was the case. 

1957 
In Climax Molybdenum Company, 2 FMSHRC 1884, 1887, 

July 25, 1980, Commission Judge Morris vacated a citation 

issued for an alleged violation of section 57.11-2, a standard applicable to metal and nonmetal underground mines and 

identical in language to section 77.205(e). The operator was 

charged with a violation for failure to provide handr~ils on 

the top of the roof of a 10-foot high shed located inside a 

larger building. The inspector found empty cardboard boxes a 

foot from the edge of the roof of the shed and he believed 

the roof was used as a ",storage area." Judge Morris vacated 

the citation on the ground that the top of the shed was not 

one of the areas described in the standard and was not a 

crossover, an elevated walkway, an elevated ramp, nor a stairway, as stated in the standard. 

In Magma Copper Company, 1 FMSHRC 837, 857-858, July 3, 

1979,· I vacated a citation for an alleged violation of section 57.11-2, after finding that a work platform 100 feet 

above ground was not a "travelway" as defined by section 57.2. 

Section 57.2 defines a "travelway" as "a passage, walk or way 

used and designated for persons going from one place to 

another." 

I take note of the fact that the inspector cited the 

same debris on the platform in support of a second citation 

issued at the same time the citation in issue here was issued. 

The second citation cited a violation of section 77.205(b) 

because the inspector believed that the debris also constituted a tripping or stumbling hazard to anyone on the platform. MSHA's attempts in this case to transform a platform 

into a walkway simply to support a violation of section 

77.205(e) IS REJECTED. 

On the facts of this case, I cannot conclude that MSHA 

has established that the platform in question was in fact a 

walkway as I understand the meaning of that term. While it 

is true that one person would have occasion to be on the platform in the normal course of any given day and would have to 

walk along the platform to reach the belt motor, the platform 

was not used as a regular and routine route of travel for 

miners travelling or working in the headhouse. It seems 

obvious to me that the inspector cited subsection (e) because 

it contains the only reference to toeboards, but does not 

include platforms among the locations encompassed by that 

standard. Subsection (b) refers to travelways and platforms 

and requires that they be maintained clear of extraneous material and other stumbling or. slipping hazards. The inspector 

1958 
did not cite subsection (b) because it contains no requirements for toeboards. 

It seems to me that after much litigation with respect 

to this standard, MSHA could easily cure the ambiguity by 

amending its standards to specifically include the term "platform" as part of subsection (e) and include a reference to 

toeboards as part of subsection (b). I conclude and find 

that the platform in question does not fall within the intent 

and meaning of subsection Ce) of section 77.205, and the citation IS VACATED. 

Assuming that I were to find that the platform area in 

question was an "elevated walkway" I would still vacate the 

citation on the ground that MSHA has failed to present any 

credible testimony or evidence that toeboards were necessary 

at the locations cited by the inspector. The regulatory 

language "where necessary" as found in section 77.205(e) 

obviously means that toeboards are not to be provided in 

every instance. Big Ten Corporation, 2 FMSHRC 2266, 2280 

(August 15, 1980). In that case, former Commission Judg~ 

Stewart vacated a citation alleging a violation of section 

77.205(e) on the ground that the walkway was sufficiently 

safe without toeboards since it was used approximately 

1,500 times over a 5-year period and had never been previously cited for lack of toeboards. He concluded that the 

absence of any prior citations was indicative of the fact 

that the lack of toeboards did not constitute a violation of 

the standard. 

The evidence in this case establishes that the platform 

in question is a "mezzanine area" located between the third 

and fourth floor of the headhouse, and that it is used to 

house a motor which drives a belt passing under the platform. 

Access to the platform is by means of a flight of steps 

located at one corner, and employees would have to pass under 

the platform to reach the stairway. The evidence also establishes that the normal route to the stairway is along a designated travelway beside a wall along and under one side of the 

elevated platform (Tr. 14-15). The inspector described the 

walkway area under the platform as a "vacant work area" and 

not a "high traffic area." However, he apparently believed 

that workers passing through this area to ~each the stairway 

would be exposed to falling debris from the platform (Tr. 36). 

Although the inspector also believed that workers would pass 

under the platform at other locations, the contestant's credible testimony established that a belt was located under the 

platform and that it would block access to anyone passing 

under the platform. While the inspector could not recall the 

1959 
belt, he had no reason to dispute the testimony by the contestant in this regard, and I conclude that the belt did in fact 

pass under the platform and would serve as an impediment to 

anyone attempting to reach the stairway by walking under the 

platform. 

MSHA has produced no credible testimony or evidence that 

anyone was exposed to any falling debris hazard in this case. 

I find the inspector's belief that a roof bolt could fall off 

the platform down between the small opening at the edge of 

platform and strike an endloader operating at ground level 

40 feet below and cause injury to the equipment operator to 

be highly speculative. The contestant's credible testimony 

established that the endloader was protected by an overhead 

canopy and that the windshield is vertical. Further, the 

·inspector conceded that the area under the platform is not a 

high traffic area and that any hazard would be limited to one 

person. Although he indicated that a repairman, cleanup man, 

or maintenance and examination personnel would be exposed to 

a falling debris hazard, these conclusions on his part are 

unsupported by any specific evidence establishing that this 

was in fact the case. The inspector did not contact or speak 

with any of these individuals, nor did he support his conclusions with facts. 

Foreman Fisher confirmed that a toeboard was in place in 

the stairway area under the belt and platform to protect 

people using the stairway. With regard to the areas cited by 

the inspector, he confirmed that no toeboards were ever 

installed in those locations and that no inspectors had ever 

mentioned the need for toeboards in those areas during any 

prior inspections (Tr. 101). Mr. Fisher also stated that he 

can observe the platform area visually, and the only time he 

goes there is to check the belt motor oil and that this 

usually takes about 3 minutes (Tr. 109). Belt cleanup is 

performed under the platform, and the belt is greased twice a 

year (Tr. 113) • 

Dust foreman Wise stated that he spends little time in 

the platform area in question, but that the platform is "out 

of the way" and that prior to the citation he did not even 

know of its existence (Tr. 130). In his opinion, the likelihood of something falling off the platform and injuring someone was "one in a million" (Tr. 134). 

safety supervisor Gross testified that he normally walks 

through the headhouse once a week on Fridays, and that prior 

to the citation he was not even aware of the existence of the 

platform because "it's hidden behind the belt." His normal 

1960 
route of travel while checking fire hoses and accumulations 

of combustible materials would take him under the belt and 

down the stairway along the back wall. However, since the 

issuance of the citation, he checks the platform for materials (Tr. 137-138). He did not consider the platform area 

as a "work area" and that people are not normally there (Tr. 

138-139). 

ORDER 

In view of the foregoing findings and conclusions, the 

contest filed in this proceeding IS GRANTED, and the modified 

section 104(a) Citation No. 2711286, issued on March 19, 1986, 

charging a violation of 30 C.F.R. § 77.205(e), IS VACATED. 

Distribution: 

/'/ . .,,,.. /~/ ,/ ·. .-- ,/ '/ / .. ~· <.::, 

·· //-":7;-/1;_L- ;:L~ ~~ ·· ,George "A. Kout:f as 

Administrative Law Judge 

William T. Salzer, Esq., Office of the Solicitor, U.S. 

Department of Labor, Room 14480 Gateway Building, 3535 Market 

Street, Philadelphia, PA 19104 (Certified Mail) 

w. Henry Lawrence, Esq., Steptoe & Johnson, P.O. Box 2190, 

Clarksburg, WV 26301 (Certified Mail) 

/fb 

1961 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 171986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

U.S. STEEL MINING COMPANY, 

INC., 

Respondent 

Before: Judge Melick 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 86-371 

A.C. No. 46-03084-03510 

Winifrede Central Shop 

DECISION 

This case is before me upon the petition for civil 

penalty filed the Secretary of Labor pursuant to section 

105(d) of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 801 et. ~, the "Act", for a violation of the 

regulatory standard at 30 C.F.R. § 77.1713(a). The general 

issues before me are whether U.S. Steel Mining Company, Inc., 

(U.S. Steel) violated the cited standard and, if so, whether 

that violation was of such a nature as could significantly 

and substantially contribute to the cause and effect of a 

mine safety or health hazard i.e., whether the violation was 

"significant and substantial". If a violation is found it 

will also be necessary to determine the appropriate civil 

penalty to be assessed in accordance with Section llO(i) of 

the Act. 

The citation at bar, No. 2717754, alleges a "significant 

and substantial" violation at the Winif rede Central Shop and 

charges as follows: 

Examinations of the working areas were not being 

conducted for hazardous conditions in the working 

areas of the truck shop on B and C shifts and in 

the electrical shop on C shift. 

The cited standard, 30 C.F.R. § 77.1713(a), captioned in 

part as "daily inspection of surface coal mine'', requires 

that "at least once during each working shift, or more often 

if necessary for safety, each active working area and each 

active surface installation'shall be examined by a certified 

person designated by the operator to conduct such examinations for hazardous conditions and any hazardous conditions 

noted during such examinations shall be reported to the 

operator and shall be corrected by the operator." 

1962 
The parties in this case agreed to waive hearing and to 

submit the matter on a joint stipulation of facts. The 

stipulation as amended reads as follows: 

1. The respondent operates the Winifrede 

Central Shop (hereinafter "the Shop"} which is the 

subject of this proceeding. 

2. The shop is located in Winifrede, West 

Virginia. The shop is located approximately 8.5 

miles from the Number 50 surface Mine which is an 

operating coal strip mine. It is located approximately 5 miles from the Morton Mine which is an 

operating undergound coal mine. The shop is 

located approximately one-half mile from the 

Winifred Central Cleaning Plant, a coal preparation 

plant. 

3. The shop's function is to repair and 

maintain electrical and mechanical equipment from 

the No. 50 surface Mine, the Morton Underground 

Mine and the Winif rede Central Cleaning Plant. The 

preparation plant processes coal mine from both 

surface and underground mines. 

4. The shop has separate supervision from any 

of the aforementioned mines or plants, and has a 

separate MSHA mine identification number. 

5. The shop is composed of a one-story 

electrical shop building of approximately 3200 

square feet, and a one-story automotive repair 

building of 4300 square feet. When the shop is in 

operation, some fourteen employees would have been 

working in the electrical shop and two employees in 

the automotive repair shop. 

6. On March 3, 1986 Inspector Ronald Brown 

issued Citation No. 2717754. The inspector observed 

that no inspection, as required by 30 CFR § 77.1713 

was made in the working areas of the automotive 

repair building on the B or C shifts and no such 

inspection had been made in the electrical shop on 

the C shift on that date. The operator does not 

dispute this observation. 

7. The employees at the shop are subject to 

hazards inherent in workings in areas where heavy 

equipment is.being moved, electrical work, grinding, 

cutting, sharpening and welding are being done and 

1963 
where lathes and drill presses are operating. The 

work area also contains flammable and caustic 

liquids. 

8. A copy of the above-mentioned citation was 

properly served upon, and received by, the mine 

operator. 

9. . .. Exhibit A is an accurate statement 

of the number and type of violations occuring at 

the shop from March 3, 1984 to March 3, 1986. 

10. The alleged violation was timely abated 

after the operator began to conduct inspections for 

hazardous conditions in all working areas on each 

work shift. 

11. Payment of the proposed penalty of 

$168.00 would not affect the operator's ability to 

continue in business. 

12. MSHA Policy Memorandum No. 85-4(c), dated 

April 8, 1985, accurately reflects current MSHA 

enforcement policy regarding 30 CFR § 77.1713. 

U.S. Steel argues in this case that the shop at issue 

herein is not subject to the cited regulation because it is 

not a surface coal mine. The cited regulation by its caption 

applies to "surface coal mine[s]". More specifically the 

standard on its face applies to "each working area and each 

active surface installation [of such surface coal mines]". 

By stipulation the shop herein is used to repair and maintain 

electrical and mechanical equipment from, among other places, 

the nearby (only 8.5 miles) No. 50 Surface Coal Mine. Within 

this framework it may reasonably be inferred that the 

Winifrede Central Shop was an "active surface installation" 

of the No. 50 Surf ace Coal Mine. The fact that the shop is 

also used to repair equipment from the nearby (5 miles away) 

Morton Underground Coal Mine is not, in my opinion germane 

to the issue of liability in this case. 

The parties in their joint stipulations of fact and in 

their briefs have also made referance to an MSHA policy 

memorandum on the subject of the cited standard (MSHA policy 

memorandum No. 85-4(c)). That memorandum only serves to 

confirm the stated positions of both parties that the cited 

standard is indeed applicable to surface coal mines. Under 

all the circumstances it clear that the violation has been 

proven as charged. 

Based on the limited stipulations furnished in this case 

however I cannot determine whether the violation was "significant and substantial", see Secretary v. Mathies Coal Co., 6 

FMSHRC l (1984), nor whether it was of high gravity. For the 

1964 
same reasons I am able to find but little negligence. It 

appears that the Respondent has been operating under a 

mistaken but good faith belief that the shop was not subject 

to the inspection requirements of the cited standard. 

Considering the additional stipulations of factors to be 

considered under section llOCi) of the Act, I find that a 

penalty of $50 is appropriate. 

ORDER 

U.S. Steel Mining, Co., Inc. is hereby directed to 

civil penalty of $50 within 30 days of the date of this 

decision. \ 

Distribution: 

/ . ~ )\,·~ Ga~y MJ ick I Admini&~rative I aw Judge 

(703) 1.56-62611 

pay 

James Leonard, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Blvd., Room 1237A, Arlington, VA 22203 

(Certified Mail) 

Billy M. Tennant, Esq., 600 Grant Street, Room 1580, 

Pittsburgh, PA 15230 (Certified Mail) 

rbg 

1965 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

DRUMMOND COMPANY, INC., 

Respondent 

DEC 181986 

CIVIL PENALTY PROCEEDING 

Docket No. SB 86-126 

A. C. No. 01-00515-03648 

Mary Lee No. 1 Mine 

DECISION APPROVING SETTLEMENT 

ore: Judge Merlin 

The parties have filed a joint motion to approve settlements 

of the two violations involved in this case. The settlements are 

the result of a conference call between the Solicitor, operator's 

attorney, and the Judge. The total of the originally assessed 

penalties was $1,450. The total of the proposed settlements is 

$1,250. 

The motion discusses both violations in light of the six 

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

and Health Act of 1977. Order No. 2602747 was issued for vioion of 30 C.F.R. § 75.200 because of noncompliance with the 

approved roof control plan. An insufficient number of timbers 

had been installed in an area where there had been a roof fall. 

The timbers were spaced too far apart. In addition, the area of 

roof fall had been cut too wide and there was evidence that a 

miner had walked eight feet under unsupported roof. The operator 

has agreed to pay the $800 penalty originally assessed for this 

violation. 

Order ~o. 2602744 was issued for violation of 30 C.F.R. 

§ 75.1003-2 because a piece of off-track equipment was transported along the troll roadway without the proper precautions 

having been taken. A reduction in the proposed penalty for this 

violation from $650 to $450 is now recommended because of reduced 

negligence. The operator believed in good faith that the equipment involved, a conveyor taflpiece, was not covered by the regulation. The Solicitor further advises that the term "off-track" 

is not presently defined in the regulations and that accordingly, 

negligence is less than originally estimated. 

1966 
The representations and recommendations oE the parties are 

accepted. 

Accordingly, the motion to approve settlements is GRANTED 

and the operator is ORDERED TO PAY $1,250 within 30 days of the 

date of this decision. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

William Lawson, Esq., Office of the Solicitor, u. s. Department 

of Labor, Suite 201, 2015 Second Avenue North, Birmingham, AL 

35203 (Certified Mail) 

J. Fred McDuff, Esq., Drummond Company, Inc., Post Office Box 

10246, Birmingham, AL 35202 (Certified Mail> 

Ms. Joyce Hanula, UMWA, 900 15th Street, N.W., Washington, DC 

20005 (Certified Mail> 

/gl 

1967 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

RONNIE DALE CLARK, 

complainant 

v. 

ELDRIDGE COAL COMPANY, 

CHARLES & JIM ELDRIDGE, 

Respondents 

DEC 19 1986 

. . 

DISCRIMINATION PROCEEDING 

Docket No. KENT 86-10-D 

MSHA Case No. BARB CD 85-46 

DECISION 

Appearances: William F. Taylor, Esq., U.S. Department of Labor, 

for the Complainant; Jim Eldridge and Charles 

Eldridge, pro se and representing Eldridge coal 

Company, Inc. 

Before: Judge Fauver 

This is a discrimination proceeding brought by the Secretary 

of Labor under§ 105(c)(2) of the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. § 801, et seq. The complaint alleges that 

Ronnie Dale Clark, an underground coal miner, was constructively 

discharged by Respondents because the working conditions at 

Eldridge Coal Company 1 s Kelloke Mine, where Clark was employed, 

were so unsafe and intolerable that Clark was unable to continue 

working. 

After a hearing, post-hearing depositions were allowed and 

filed as part of the record. 

Having considered the record as a who , I find that a preponderance of the iable, probative, and substantial evidence 

establishes the following: 

1. Ronnie Dale Clark, during his employment with Eldridge 

Coal Company, especially during the last few weeks of his employment in 1985, made several safety complaints to his immediate 

supervisors, William Blevins and Jim Eldridge. Among other 

things, Clark complained about an imminent danger associated with 

the coal feeder he was assigned to operate. 

2. For about two months immediately before Clark's employment termination (March 15, 1985, his last day of work), he was 

1968 
instructed by Mine Foreman Jim Eldridge to block in the coal 

feeder's electrical contactor points with a capboard, thereby 

bypassing a breaker and the on/off switch. In order to engage or 

block in the contactor points, Clark was instructed by Jim 

Eldridge to place the on/off switch in the feeder starting box, 

at the operator station, in the off position, remove the electrical component lid, place his hands within the component box 

and reposition the capboard. Clark stated that this pratice was 

extremely hazardous, that it created an imminent danger, and that 

he was afraid the practice would kill him. 

3. On several occasions Clark complained about this practice to both of his supervisors, William Blevins and Jim Eldridge. 

On many occasions he asked Bill Blevin or Jim Eldridge to have 

someone repair the feeder. His pleas fell on deaf ears and it 

became abundantly clear to Clark that no action was going to be 

taken to correct the imminent danger to which he was exposed 

daily. 

4. Clark made one last attempt to have the feeder placed in 

a safe condition, when he visited the home of William Blevins on 

Sunday afternoon, March 17, 1985. Clark stated that he went to 

Blevins to discuss the unsafe conditions of the coal feeder and 

to determine whether or not the feeder had been repaired and 

placed in a safe operating condition. When Blevins informed 

Clark that no action had been taken to repair the feeder, Clark 

informed Blevins that he would not report to work on Monday 

morning, March 18, 1985, because of the unsafe and imminently 

dangerous working conditions at Eldridge Coal Company. 

5. About a week after informing his immediate supervisor, 

William Blevins, that he was withdrawing from the imminently 

dangerous working conditions at Eldridge Coal Company, Clark went 

to Mine Foreman Jim Eldridge's home to find out whether or not 

the coal feeder had been repaired so that he could return to work. 

During this conversation Clark was told that he no longer held a 

job with Eldridge Coal Company. 

DISCUSSION WITH FURTHER FINDINGS 

The testimony of Clark is confirmed by his supervisor 

William Blevins and by an MSHA electrical expert. 

Blevins stated that Clark, on at least two occasions, 

expressed to him that he was greatly concerned about the unsafe 

condition of the feeder. Blevins was also present when Clark 

made complaints to Mine Foreman Jim Eldridge concerning the 

dangerous condition of the coal feeder. Blevins was also present 

when Clark made complaints to Mine Foreman Jim Eldridge concerning the dangerous condition of the coal feeder. Blevins 

explained the situtation as follows: 

1969 
Jim [Eldridge] was present when Ronnie [Clark] asked us to 

fix [the coal feeder] and he said'· •• that we'd get it 

fixed on Saturday' I think it was one day through the week 

and he said 'they would work on it on Saturday, on a day • 

• • 'you know ••• 'where they could shut it down.' 

[Evidentiary Deposition, page 4, Response to Question D20.] 

Blevins also confirmed the dangers associated with 

blocking in the feeder contactor points. In particular, 

Blevins stated that the practice of opening the starting box 

to reposition the capboard caused one to be exposed to energized 

electrical components, and using the capboard to block the contractor points was an unsafe practice. 

Federal Mine Safety and Health District Electrical Supervisor 

Henry Standifer, with many years of electrical experience in both 

the private coal industry and in government safety enforcement, 

testified that the practice of blocking in the contactor points 

as described by Clark created a very unsafe condition. Standifer 

explained the situation as follows: 

QUESTION BY TAYLOR: The situation that Mr. Clark 

described in turning off the breaker and placing his 

hands inside the starting box to put the capboards 

under the contactors to block them in, what type of 

hazard does that create? 

ANSWER BY STANDIFER: He exposes hisself [sic] to 480 volts 

anytime that you open the door and go inside that box. 

QUESTION: would you consider that in your experience as an 

electrical supervisor in [sic] the number of years that 

you've had in the coal industry in private sector and government sectors, would you consider that situation an imminent 

danger? 

ANSWER: Absolutely. [Evidentiary Deposition at page 21, 

Questions 34 and 35.] 

Standifer also provided statistical data showing the number 

of deaths and injury producing accidents associated with electrical hazards in the area of Harlan County, Kentucky where the 

Eldridge Coal Comany was located. 

In Simpson v. Kenta Energy, Inc., 4 FMSHRC 1023 {1986), the 

Commission held that Simpson was not within the protection of 

§ 105(c) because he did not notify the operator of the perceived 

dangerous conditions before his work refusal. The Commission 

also stated that in order to establish a constructive discharge 

the miner must show that in retaliation for protected activity 

the operator created or maintained intolerable working conditions 

in order to force the miner to quit. 

1970 
The instant case clearly meets both tests of the Simpson 

case. Clark on several occasions complained about the dangers 

associated with blocking in the capboard. The complaints were 

directed to Clark's immediate supervisor/face boss William 

Blevins, and on at least one occasion to Mine Foreman Jim 

Eldridge, who is the individual responsible for creating the 

hazard in the first instance. Clark went to Blevins' home on the 

afternoon of Sunday, March 17, 1985, to complain about the hazard 

and to ascertain if his pleas had caused mine management to 

correct the dangerous working conditions. Clark met his obligation of communicating the perceived hazard to mine management 

before his work refusal. 

Clark's situation also satisfies the second element of the 

Simpson test, which requires the miner to show that the operator 

was motivated to maintain the unsafe condition because of the 

miner's engagement in a protected activity. 

In considering discharge motivations, the Commission has 

long recognized that direct proof of a discriminatory motive is 

not often possible. The adjudicator often must look to circumstantial evidence to draw inferences regarding the motivating 

factors. Chacon v. Phelps Dodge Corp., 2 FMSHRC 1505 (1981); 

Brazell v. Island Creek Coal Company, 2 FMSHRC 1801 (1982); 

Bradley v. Belva Coal Company, 2 FMSHRC 1729 (1982); Neal v. W.B. 

Coal Company, 2 FMSHRC 1225 (1981) (PDR denied, reversed on other 

grounds 704 F.2d 275 (6th Cir. 1983), vacated in part 719 F.2d 

194 (6th Cir. 1983). 

I find that the circumstances of this case show that the 

operator intended to force Clark to quit because of his protected 

activities, i.e., complaints about unsafe working conditions. In 

reaching this finding I have considered the following: (1) Clark 

for approximately two months prior to employment termination had 

lodged complaints about his exposure to an imminent electrical 

hazard, as well as other hazards at the mine; (2) Clark made the 

operator keenly aware of the hazard Cin fact the hazard was 

specifically produced by mine management); (3) no action was 

taken by mine management to correct the hazard during Clark's 

employment; (4) Clark was given a "Hobson's choice" of working in 

an imminently dangerous environment or withdrawing from work; (5) 

Clark withdrew from his employment on March 17, 1985 by informing 

Blevins of his intent not to report to work on Monday, March 18, 

1985; (6) immediately after Clark withdrew from the job the 

hazard was eliminated by management causing the feeder to be 

repaired; (7) Russell Kelly replaced Clark as feeder operator on 

March 19, 1985, the day after Clark informed management of his 

work refusal (Kelly stated he did not experience any problem with 

the feeder; the reason Kelly did not experience any problem with 

the feeder was explained by Blevins who stated that the feeder 

was repaired before Kelly was assigned to operate the feeder). 

1971 
The circumstantial evidence in this case clearly indicates 

that the operator was motivated to maintain the hazardous condition in retaliation of Clark's protected activities. 

The Act places safety responsibility on the shoulders of 

both the operator and the miner. It is the miner's obligation 

before a work refusal to inform the operator of the hazardous 

conditions. A corresponding responsibility applies to the operator as well. Once the operator is placed on notice that a hazard 

exists the operator is obligated to address the hazard. See 

Secretary of Labor v. Metric Constructors, Inc., 3 FMSHRC 1259 

(1984); Secretary of Labor on behalf of Pratt v. River Hurricane 

Coal Co., Inc., 3 FMSHRC 1053 (1983}; Secretary of Labor on 

behalf of Bush v. Union Carbide Corp., 2 FMSHRC 2152 (1983). If 

the operator chooses not to address the perceived hazard, it 

thereby gives the miner the right of withdrawing from the hazard 

and refusing to work until the condition is corrected or in some 

way satisfactorily addressed. 

Clark was faced with an imminent danger created directly by 

the orders of his Mine Foreman, Jim Eldridge. MSHA Electrical 

Supervisor Henry Standifer stated that if he had observed the 

situation Clark described he would have issued an imminent danger 

order of withdrawal pursuant to § 107(a} of the Act. Standifer 

considered the situation described by Clark as extremely hazardous and likely to cause death or serious injury. Clark was being 

exposed to 480 volts of electricity each time he was required to 

place his hands in the coal feeder's starting box to reposition 

the capboard. The practice of blocking in the capboard clearly 

falls within the definition of an imminent danger as that term is 

used in§ 107(a) of the Act. See Eastern Associated Coal Corporation v. IBMA, 491 F.2d 277 (4th Cir. 1974), 1 FMSHRC 1119. 

Clark made the operator aware of the hazard and he asked 

each of his supervisors to take action to repair the feeder and 

thereby remove the hazard. The operator chose to ignore his 

complaints, leaving Clark with no alternative than withdrawing 

from the imminent danger. Clark exercised his right to withdraw 

on March 17, 1985. About one week later, Clark reported to Mine 

Foreman Jim Eldridge to determine whether the coal feeder was 

repaired and if so to return to work. 'Eldridge told him he was 

no longer employed by Eldridge Coal Company. 

Under the circumstances Clark was justified in removing 

himself from the hazard and refusing to work. Robinette v. 

United Castle Coal Company, 2 FMSHRC 1213 (1981). The delay of 

one week before reporting back to work was reasonable considering 

that Clark had complained of the imminent danger for several 

weeks without any success in obtaining relief of the situation. 

Eldridge Coal Company's refusal to reinstate Clark constituted 

adverse action motivated by a protected work refusal. Such 

action by the operator violates the Act and affords Clark the 

1972 
protection of§ 105(c). See Pasula v. Consolidation Coal 

Company, 2 FMSHRC 1001 (1980) reversed on other grounds sub. nom. 

consolidation Coal Company v. Marshall, 663 F.2d 1211 (3rd Cir. 

1981}; Dunmire and Estle v. Northern Coal Company, 2 FMSHRC 1585 

(1982}; Jenkins v. Hecla-Day Mines Corporation, 3 FMSHRC 1527 

(1984); Robinette, supra. 

Jim Eldridge was a supervisor and mine foreman at the time 

of Clark's constructive discharge ·on March 15, 1985. Charles 

Eldridge was Vice President of Eldridge Coal Company, Inc., and 

was a managing official on-site at the Kelloke Mine on a daily 

basis. Both were also in such managerial positions when Respondent refused to reinstate Clark about a week later. 

Section 105(c)(l) of the Act provides in pertinent part: 

No person shall discharge or in any manner discriminate against or cause to be discharged or cause discrimination against or otherwise interfere with the 

exercise of the statutory rights of any miner •••• 

[Emphasis added.] 

The language of § 105(c) makes it clear that both Jim 

Eldridge and Charles Eldridge, as individuals, are subject to the 

Act. Further, the legislative history unequivocally supports 

this position. The Senate Committee Report in regard to § lOSCc> 

states: 

It should be emphasized that the prohibition against 

discrimination applies not only to the operator but to 

any other person directly or indirectly involved. 

[Legislative History of the Federal Mine Safety and 

Health Act of 1977, page 624; emphasis added.] 

In Mine Workers, Lucal 9800 v. Dupree, 2 FMSHRC 1077, 

(1980), Local 9800 filed a complaint of discrimination alleging 

that MSHA and its agent Dupree had engaged in.activities which 

violated § 105(c) of the Act. MSHA, in seeking a dismissal of 

the complaint, argued that it was not subject to liability under 

§ 105(c). Judge Broderick disagreed. In holding that MSHA comes 

within the scope of § 105(c), the judge looked to the plain 

meaning of § 105(c) and also to the intent of Congress. He found 

that the Act prohibited discrimination from any source. The 

judge, relying on the legislative history, states at page 1078 of 

the Dupree case: "Section 105(c) is 'to be construed expansively' in order 'to assure that miners will not be inhibited in 

any way from exercising any rights afforded by the legislation'." 

The judge went on to hold: 

Because the purpose of the statutory provision was to 

protect miners from discrimiation from any source, and 

following an expansive construction, MSHA is found to 

1973 
be a person under Section l05{c) prohibi~ed from discriminating against any miner. [Dupree, supra, 1078.] 

I hold that Jim and Charles Eldridge come within the definition of a "person" and as such fall within the scope of § 105Cc). 

Both Jim Eldridge and Charles Eldridge will be held personally 

responsible for the unlawful discharge of Clark. They and the 

corporation will be held jointly and severally liable for sanctions including back pay, interest, and a civil penalty. 

The element of damages is the amount of pay lost between the 

date of constructive discharge, March 15, 1985, until the date 

the Kelloke Mine ceased operation {May 24, 1985), plus back 

interest until payment of damages. 

In assessing a civil penalty, I note that Respondent was a 

small operator during the period involved, and that the subject 

mine is out of business. 

Considering all the criteria for assessing a civil penalty 

under section llO(i) of the Act, I find that a penalty of $100 is 

appropriate for this violation. 

CONCLUSIONS OF LAW 

1. The Commission has jurisdiction in this proceeding. 

2. Respondents violated section 105(c)(i) of the Act by 

constructively discharging Ronnie Dale Clark as alleged in the 

complaint. 

ORDER 

WHEREFORE IT IS ORDERED that: 

1. Respondents are jointly and severally liable for, and 

shall pay over to the complaining miner, Ronnie Dale Clark, back 

wages in the amount of $3,600.00, plus $556.54 interest, computed 

from the date of discharge through December 22, 1986, for a total 

of $4,156.54. Said amount shall be immediately forwarded to 

Ronnie Dale Clark at Post Office Box 19, Holmes Mill, Kentucky 

40843. If such payment is not made, interest after December 22, 

1986, shall accrue at the rate of 9% per annum until full payment 

is made to Ronn Dale Clark. 

2. Respondents are jointly and severally liable for, and 

shall pay, a civil penalty of $100 for the violation found 

herein. 

1974 

{(>{&:~ fa-:tp'~ William Fauver 

Administriative Law Judge 
Distribution: 

W.F. Taylor, Esq., U.S. Department of Labor, Office of the 

Solicitor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN 37203 

(Certified Mail) 

Mr. Charles Eldridge, Rt. 1, Box 376A, Evarts, KY 40828 

(Certified Mail) 

M. Jim Eldridge, Rt., 1, Box 513, Evarts, KY 40628 (Certified 

Mail) 

Eldridge Coal Co, Inc., c/o Charles Eldridge, Rt. 1, Box 376A, 

Evarts, KY 40828 (Certified Mail) 

kg 

1975. 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 23 1986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTR.f\TION CMSHA), 

ON BEHALF OF 

DONALD R. HALE, 

Complainant 

v. 

4-A COAL COMPANY, INC., 

Respondent 

. . 

DISCRIMINATION PROCEEDING 

Docket No. VA 85-29-D 

NORT CO 83-8 

No. 4 Mine 

ORDER OF DISMISSAL 

Before: Judge Melick 

The Secretary of Labor with the consent of the individual 

Complainant, Donald Hale, requests approval to withdraw his 

complaint in the captioned case citing as grounds therefore, a 

mutually agreeable settlement. Under the circumstances herein, 

permission to withdraw is granted and the case dismissed. 

29 C.F.R. § 2700.11. In accordance with the settlement agreement the Respondent, 4-A Coal Company, Inc., is directed to 

forward to counsel for the Secretary.within 30 days of the date 

of this order, a certified or cashie~ s check in the amount of 

$700 payable to Donald R. Hale or the ine Safetk and Health 

Administration. • /""'-

GL M ick ) 

Adminit; ative 

( 703) \ -6261 

Distribution: ) 

James B. Leonard, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Blvd., Rm 1237A, Arlington, VA 

22203 (Certified Mail> 

C.R. Bolling, Esq., 1600 Front Street, P.O. Drawer L, 

Richland, VA 24641 (Certified Mail) 

Donald R. Hale, P.O. Box 1075, Raven, VA 24639 (Certified 

Mail) 

rbg 

1976 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 23 1986 

KANAWHA COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION . (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

KANAWHA COAL COMPANY, 

Respondent 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

CONTEST PROCEEDING 

Docket No. WEVA 86-96-R 

Order No. 25812931 12/19/85 

Madison No. 2 Mine 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 86-256 

A.C. No. 46-02844-03562 

Madison No. 2 Mine 

DECISION 

Appearances: Edward N. Hall, Esq., Robinson & McElwee, Lexington, Kentucky, for Contestant/Respondent Kanawha 

Coal Company CKanawha>1 Jonathan M. Kronheim, Esq., 

Office of the Solicitor, U.S. Department of Labor, 

Arlington,_ Virginia for Respondent/Petitioner 

Secretary of Labor (Secretary). 

Before: Judge Broderick 

STATEMENT OF THE CASE 

Kanawha filed a Notice of Contest challenging the withdrawal 

order issued on December 19, 1985 under section 104(d)(2) of the 

Federal Mine Safety and Health Act of 1977 (the Act). The 

Secretary subsequently filed a Petition for the assessment of a 

civil penalty for the violation of a mandatory safety standard 

charged in the contested order. The two cases were consolidated 

for the purposes of hearing and decision. Following pretrial 

discovery, the consolidated cases were heard pursuant to notice 

in Charleston, West Virginia on September 11, 1986. Dennis Cooke 

and Edward White testified on behalf of the Secretary. Troy 

1977 
Morris, David Sprouse, Robert Dotson, Ricky Spurlock, Virgil 

Martin, and Roy Purdue testified on behalf of Kanawha. Both 

parties have submitted post hearing briefs. Based on the entire 

record, and considering the contentions of the parties, I make 

the following decision. 

ISSUE 

The issue in this case is primarily a factual one: whether 

a miner proceeded under unsupported roof in the subject mine on 

December 18, 1985.1/ If he did, a violation is established, and 

the further issues-whether the violation was significant and 

substantial, and whether it resulted from Respondent's · 

unwarrantable failure to comply with the standard arise. 

Respondent has also raised the issue whether a "clean inspection" 

took place between the time the underlying (d)(l) citation was 

issued (~arch 29, 1984) and the date of the order contested 

herein. Finally, if a violation is established, an appropriate 

penalty must be assessed. 

FINDINGS OF FACT 

PRELIMINARY FINDINGS 

Kanawha was the owner and operator of an underground coal 

mine in Boone County, West Virginia, known as the Madison No. 2 

Mine. Kanawha produced 1,303,284 tons of coal in 1985~ the 

subject mine produced 335,542 tons. In the 24 months prior to 

the contested order, there were 293 paid violations cited at the 

subject mine, including 39 violations of 30 C.F.R. § 75.200. 

This is a moderately serious history of prior violations 

considering the size of the mine. 

The coal seam in the area of the mine involved in this case 

was aproximately 40 inches high. The roof was hard sandrock and 

was considered "good top." 

A citation was issued on March 29, 1984 under section 

104(d)(l) of the Act for failure to guard a tail pulley. A 

l; Respondent did not raise the issue whether it was proper to 

Issue an order under section 104(d)(2) of the Act for an alleged 

violative condition that had been terminated prior .to the 

inspection •. See Emery Mining Co., 7 FMSHRC 1908 (1985); Nacco 

Mining Company, 8 FMSHRC 59 (1986), review pending; Emerald Mines 

Corp., 8 FMSHRC 324, review pending; White County Coal Corp., 8 

FMSHRC 921 (1986), review pending; Greenwich Collieries, 8 FMSHRC 

1105 (1986), review pending. Since the issue was not raised or 

briefed, I do not decide it here. 

1978 
withdrawal order was issued the same day under 104(d)(l) for an 

accumulation of loose coal. Government's Exhibit 4 establishes 

prima facie that a clean inspection was not conducted at the mine 

between the date of the above citation and order and the date of 

the order contested herein. Kanawha did not submit any evidence 

to refute the prima facie case. 

THE CONTESTED ORDER 

On December 19, 1985, Federal Mine Inspector Cooke came to 

the subject mine at approximately 7:15 a.m. to perform a regular 

inspection. He went into the mine with the day shift mantrip and 

proceeded to the 3 left section. He observed that the crosscut 

between entries one and two had been mined through and was 

partially roof bolted. Inspector Cooke measured the distance 

from the next to the last row of roof bolts in the crosscut inby 

the No. 2 entry to the deepest penetration of the continuous 

miner in the crosscut left off the No. 2 entry. He found the. 

distance to be 23 feet 4 inches. He then measured the distance 

from the cutting bits of the miner to the controls, and found 

this to be 20 feet 3 inches. He therefore concluded that the 

continuous miner on the previous shift had proceeded 3 feet 1 

inch.under unsupported roof. Inspector Cooke testified that the 

row of bolts inby the row (toward entry No. 1) from which he 

measured was not used because he concluded that it had been 

installed after the crosscut was mined through. He based this 

conclusion on the fact that the bolts and cover plates had an 

oily film present and had no coal dust deposits on them. 

Inspector Cooke then issued a 104(d)(2) withdrawal order on 

December 19, 1985 at 10:00 a.m. for an alleged unwarrantable 

failure to comply with the roof control safety standard. He made 

the unwarrantable failure findings because he concluded that the 

section foreman should have been in the area while the crosscut 

left off the No. 2 entry has been mined, and should have 

prevented the miner from proceeding under unsupported roof. 

The order was terminated on December 19, 1985 at 10:00 p.m. 

when the roof control plan was fully explained to all employees 

on the working section by the company Safety Director. 

The section foreman, the continuous miner operator, and the 

roof bolter who worked the evening shift on December 18, 1985, 

all testified on behalf of Kanawha. No mining was performed on 

,the subsequent midnight shift. Their testimony was consistent 

and tends to establish the following sequence of mining. The 

miner had begun cutting during the day shift in the crosscut 

right from entry No. 1. The evening shift completed the cut and 

backed the miner out of the crosscut back down the No. 1 entry to 

1979 
the outby crosscut to the No. 2 entry then back up No. 2 to the 

crosscut where it began mining in the crosscut right between 

entries 2 and 3. The miner pushed through the crosscut. In the 

meantime, roof bolts were installed in the crosscut right between 

entries 1 and 2 where the cut had been made. When this was 

completed, the roof bolter was turned around, and its cable was 

damaged leaving the bolter inoperative in the No. 1 entry. The 

scoop was also broken down in the No. 1 entry. For these 

reasons, it was decided to begin to cut the crosscut left from 

the No. 2 to the No. 1 entry. However, the miner was unable to 

push through the crosscut without another row of bolts. The 

miner backed into the crosscut between entries 2 and 3. The roof 

bolting machine was repaired and installed an additional row of 

bolts in the crosscut left off No. 2 entry. It backed out and 

the miner finished cutting the crosscut. This occurred at the 

end of the shift. No further bolting was done in the crosscut 

during the evening shift, and no bolts were installed prior to 

the inspector arriving during the day shift. I have no reason to 

disbelieve the eyewitness testimony as to what happened on the 

evening shift of December 18, 1985, and, therefore, I accept it 

as factual. The absence of dust on the bolts and cover plates is 

not sufficient to establish that the bolts were not installed 

prior to the push through. The distance between the last row of 

bolts installed in the crosscut right off No. 1 and the last row 

installed in crosscut left off No. 2 was 19 feet 3 inches. I 

therefore find as a fact that the contiuous miner did not proceed 

under unsupported roof in the crosscut between entries 2 and 1 on 

December 18, 1985. 

The Secretary argues that a violation occurred because the 

last bolt in the disputed row of bolts was 6 feet from the rib. 

This was not charged in the order and not raised until the 

hearing. In any event, I accept the testimony of the members of 

the crew on December 18 that a complete row of bolts (5) was 

installed in the crosscut. 

CONCLUSIONS OF LAW 

Kanawha was subject to the Act in the operation of the 

Madison No. 2 Mine, and I have jurisdiction over the parties and 

subject matter of this proceeding. 

The evidence does not establish that Kanawha was in 

violation of 30 C.F.R. § 75.200 as charged in the order. 

Therefore, the order was issued in error, and no penalty can be 

assessed. 

1980 
ORDER 

Based on the above findings of fact. and conclusions of law, 

IT IS ORDERED: 

1. Kanawha's contest of order of withdrawal 2581293 is 

GRANTED. 

2. Order 2581293 is VACATED. 

3. The Secretary's Petition for the Assessment of a civil 

penalty is DISMISSED. 

Distribution: 

I , I /Jt::1u£ μ1,,,,c{-v! c( ~ James A. Broderick 

Administrative Law Judge 

Edward Hall, Esq., Robinson & McElwee, Box 1580, Lexington, KY 

40592 (Certified Mail} 

Jonathan M. Kronheim, Esq., U.S. Department of Labor, Office of 

the Solicitor, 4015 Wilson Blvd., Rm. 1237A, Arlington, VA 

22203 (Certified Mail) 

slk 

1981 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 231986 

CONSOLIDATION COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

. 

. 

. 

. 

. . 

. 

. 

. . 

. . 

. 

. 

. . 

. . 

CONTEST PROCEEDING 

Docket No. WEVA 86-153-R 

Order No. 2713988; 2/13/86 

Humphrey No. 7 Mine 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 86-261 

A.C. No. 46-01453-03689 

Humphrey No. 7 Mine 

DECISION 

Appearances: Michael R. Peelish, Esq., Pittsburgh, Pennsylvania 

for Consolidation Coal Company (Consol)J 

Therese I. Salus, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, Pennsylvania, for the Secretary of Labor (Secretary). 

Before: Judge Broderick 

STATEMENT OF THE CASE 

Consol has challenged the issuance of an order of withdrawal 

on February 13, 1986, under section _lQ4(d)(2) of the Federal Mine 

Safety and Health Act of 1977 (the Act). The Secretary seeks a 

penalty for the safety violation charged in the contested order. 

Because both dockets arose out of the same incident, they were 

consolidated for the purposes of hearing and decision. Pursuant 

to notice, the case was heard on October 7, 1986 in Morgantown, 

West Virginia. Joseph Baniak and David Laurie testified on 

behalf of the Secretary. Marvin Faulkner, Kent Isancnson, 

Stanley Brozik, and Harold Moore testified on behalf of Consol. 

Both parties were given the opportunity to file posthearing 

briefs. A brief was filed on behalf of Consol. The Secretary 

1982 
did not file a brief. Based on the entire record, and 

considering the contentions of the parties, I make this decision. 

FINDINGS OF FACT 

1. At all times pertinent to this decision, Consol was the 

owner and operator of an underground coal mine in Monongalia 

County, West Virginia, known as the Humphrey No. 7 Mine. 

2. Consol pro.duces more than 37 million tons of coal 

annually. The subject mine produces almost 3 millions tons. 

Consol is a large operator. 

3. During the 24 months preceding the order contested 

herein, there were 925 paid violations issued to the subject 

mine, 813 of which were designated significant and substantial. 

Included in that number were 130 violations of 30 C.F.R. § 75.400. 

One hundred twenty-three of these were designated significant and 

substantial. Although the number of paid violations is 

substantial, in view of the size of the .mine and the number of 

inspection days, I conclude that the history of prior violations 

is ~oderate and I will not increase any penalty assessed herein 

because of prior history. 

4. An order was issued to the subject mine under section 

104(d)(2) of the Act on August 23, 1985. Consol did not raise 

the issue of an intervening clean inspection1 therefore, I 

conclude that there was not a clean inspection between August 23, 

1985 and February 13~ 1986. 

5. On February 13, 1986, Federal Inspector Joseph J. Baniak 

conducted a regular inspection at the subject mine. He proceeded. 

to the 6-Butt section belt conveyor drive and take up areas. At 

about 10:00 a.m. on February 13, 1986, Inspector Baniak issued an 

order of withdrawal under section 104{d)(2) of the Act alleging a 

violation of 30 C.F.R. § 75.400. 

6. I find that at the time the order was issued, the 

following conditions existed in the area: large accumulations of 

loose coal and coal dust, including float coal dust in 

suspension, existed under and around the belt and in and around 

the motor and electrical components. The accumulations extended 

approximately 100 feet inby the intersection ·and 50 feet outby. 

They were also present in 2 crosscuts. They extended from rib to 

rib along the entry. The accumulation around the belt drive 

motor was approximately 14 inches deep from the frames, and was 

packed up around the motor. 

1983 
7. The accumulations were very dark in color and for the 

most part were dry. The belt was energized and was running at 

the time the order was issued. 

8. On February i3, 1986, the preshift mine examiner's 

report called out shortly after 7:00 a.m. indicated that the 6-

Butt drive needed additional dust. 

9. The belt shoveler on the 6 Butt belt line read the 

preshift mine examiner's report and went into the mine to the 6-

Butt section. He was prepared to add rock dust when he saw that 

two belt men were engaged in adjusting the rollers on the belt. 

The belt shoveler (also a fire boss) told the beltmen to complete 

their work adjusting the belt and he would return to dust the 

area when they finished. This occurred between 8:00 and 8:30 a.m. 

The belt was running while it was being adjusted. The belt 

shoveler then proceeded to shovel coal spillage some 300 feet 

down the belt line. 

10. The hazard created by the condition found to exist in 

finding of fact No. 6 was the possibility of a mine fire or 

explosion. The large amount of the accumulations, the existence 

of float dust on electrical equipment and suspended in the air, 

and the existence of ignition sources in the power cables and the 

drive motor made the occurrence of a fire or explosion reasonably 

likely if the condition were allowed to continue. 

11. Because of the extent of the accumulation, especially 

the coal dust packed around the motors, it is clear that it had 

existed for some time prior to the preshift examiner's report 

referred to in finding of fact No. 8. Consol was aware or should 

have been aware of the condition prior to the preshift examiner's 

report. 

12. The air in the area of the violation was largely coming· 

off the working section to the regulator and out of the mine. In 

the event of a fire, however, the regulator would likely have 

been disrupted, and the fire and smoke could travel in all 

directions including in the direction of the face. 

13. 

conveyor 

over the 

outlet. 

125 feet 

Fire extinguishers were present at the 6-Butt belt 

drive. An automatic fire supression unit was present 

belt drive. There was also a fire hose with a water 

Fire sensors were present over the belt drive and every 

along the belt. 

14. Methane is not liberated in the area of the mine where 

the violation was cited. 

1984 
15. A sample was taken by Consol from a trough in front of 

the belt drive motors. It was tested and found to be 70 percent 

incombustible. 

16. After the order was issued, ten to twelve·men were 

assigned to clean and rock dust the area. Some of the rock 

dusting was done by hand and some by machine. The condition was 

abated, and the order terminated at about 11:55 a.m., 

February 13, 1986. 

REGULATION 

30 C.F.R. § 75.400 provides as follows: 

Coal dust, including float coal dust deposited on 

rock-dusted surfaces, loose coal, and other combustible 

materials, shall be cleaned up and not be permitted to 

accumulate in active workings, or on electric equipment 

therein. 

ISSUES 

1. Whether the condition found to exist in finding of fact 

No. 6 was a violation of 30 C.F.R. § 75.400? 

2. If so, whether the violation was significant and 

substantial? 

3. If so, whether the violation resulted from Consol's 

unwarrantable failure to ·comply with the standard? 

4. If so, what is the appropriate penalty for the 

violation? 

CONCLUSIONS OF LAW 

1. Consol is subject to the Act in its operation of 

Humphrey No. 7 Mine, and I have jurisdiction over the parties and 

subject matter of this proceeding. 

2. The accumulation of loose coal and coal dust, including 

float coal dust referred to in finding of fact No. 6 was 

violative of 30 C.F.R. § 75.400. Loose coal and coal dust was 

permitted to accumulate in active workings and on electric 

equipment, and was not cleaned up until after the withdrawal 

order was issued. 

3. The extent of the accumulation, its proximity to 

ignition sources, and especially the extensive amount of float 

coal dust, made the occurrence of a fire or explosion reasonably 

1985 
likely. The violation was very serious. In the words of 

walk-around miner Laurie, "In my opinion it was pure gun powder 

on top of rock dust." (Govt. Ex. 4) I am accepting the 

testimony of Inspector Baniak and John Laurie over the 

conflicting testimony of Marvin Faulkner and Kent Isancnson 

regarding the extent of the accumulation.. I discount the 

evidence of the incombustible content in the sample taken by 

Consol. It was a single sample taken by hand, and there is no 

evidence that it was representative of the acumulations in the 

area. 

4. The condition had been present for some time--certainly 

during the prior shift. I conclude that Consol's failure to 

clean up the accumulations constituted a serious lack of 

reasonable care. See U.S. Steel Corp. v. Secretary, 6 FMSHRC 

1423 (1984). Therefore the violation was the result of Consol's 

unwarrantable failure to comply with the standard. 

5. There is no evidence that the imposition of a penalty 

will affect Consol's ability to continue in business. 

6. Consol abated the condition promptly and in good faith 

after the issuance of the order. 

7. Considering the criteria in section llO(i) of the Act, I 

conclude that a penalty of $1000 is appropriate. 

ORDER 

Based on the above findings of fact and conclusions of law, 

IT IS HEREBY ORDERED: 

1. The notice of contest of order No. 2713988 is DENIED. 

2. Order No. 2713988 issued February 13, 1986, including 

the special findings that the violation was significant and 

substantial and caused by Consol's unwarrantable failure, is 

AFFIRMED. 

3. Consol shall within 30 days of the date of this order 

pay $1000 as a civil penalty for the violation found herein. 

1986 
Distribution: 

Michael R. Peelish, Esq., Consolidation Coal Company, 1800 

Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

Therese I. Salus, Esq., U.S. Department of Labor, Office of 

the Solicitor, 3535 Market Street, Philadelphia, PA 19104 

(Certified Mail) 

slk 

1987 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 DEC 24 1986 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA} , 

Petitioner 

v. 

SAHARA COAL COMPANY, INC., 

Respondent 

Docket No. LAKE 86-123 

A.C. No. 11-00784-03592 

Mine No. 21 

DECISION APPROVING SETTLEMENT 

Before: Judge Broderick 

On December 18, 1986, the Secretary of Labor filed a motion 

for approval of a settlement reached by the parties in this 

case. The violations were originally assessed at $1600 and 

the parties propose to settle for $1005. 

Three citations are included in this docket. The first 

two charge Respondent with failing to immediately report 

an explosion and a roof fall which disrupted ventilation: 

The third charges a failure to conduct an adequate preshif t 

examination. With respect to the nonreporting violations, 

the motion states that Respondent's negligence was low: it 

was clear that a roof fall occurred, but not that an explosion 

occurred. It was only after a two month investigation that 

MSHA determined that it was an explosion. The roof fall was 

immediately reported and although the ventilation disruption 

was not reported, the MSHA inspector came to the mine and 

could observe that the ventilation was disrupted. The motion 

proposes to reduce the penalties from $200 and $400 to $105 

and $300 respectively. With respect to the preshift examination, 

the motion states that an adequate preshift examination was 

performed, but that the methane or carbon monoxide must have 

built up after the examination. The negligence is therefore 

rated low, and the motion proposes to reduce the penalty from 

$1000 to $600. 

I have conside~ed the motion in the light of the criteria 

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

be approved. 

1988 
Accordingly, the settlement is APPROVED and Respondent 

is ORDERED.TO PAY the sum of $1005 within 30 days of the 

date of thi~ order. 

Distribution: 

f W.i5 .M '1-'dt+itL_ 

James A. Broderick 

Administrative Law Judge 

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

Solicitor, 230 South Dearborn St., 8th Fl., Chicago, IL 60604 

(Certified Mail) 

Charles N. Wheatley, Esq., Sahara Coal Company, Inc., 3 First 

Nat'l Plaza, Suite 3050, Chicago, IL 60602 (Certified Mail) 

slk 

1989 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 DEC 24 1986 

CONSOLIDATION COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Respondent 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

. . 

. . 

. . 

. . 

: 

CONTEST PROCEEDING 

Docket No. WEVA 85-183-R 

Citation No. 22Z2286; 

4/11/85 

Blacksville No. 2 Mine 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 85-236 

Blacksville No. 2 Mine 

DECISION 

Appearances: William T. Salzer, Esq., Office of the 

Solicitor, U.S. Department of Labor, 

Philadelphia, PA, for Petitioner; 

Michael Peelish, Esq., consolidation Coal 

Company, Pittsburgh, PA, for Respondent 

Before: Judge Fauver 

Consolidation Coal. Company (hereafter "Consolidation") 

seeks to vacate a citation charging a safety violation, and 

the Secretary of Labor seeks a civil penalty for the violation charged, under the Federal Coal Mine Safety and Health 

Act of 1977, 30 u.s.c. § 801, et~ 

Having considered the hearing evidence and the record as 

a whole, I find that a preponderance of the reliable, probative, and substantial evidence establishes the following: 

1990 
FINDINGS OF FACT 

1. Consolidation owns and operates Blacksville No. 2 

Mine, which produces coal for sal~ or use in or affecting 

interstate commerce. 

2. Consolidation is a large coal operator, producing· 

over 10,000,000'tons a year. 

3. On April 11, 1985, MSHA Electrical Inspector Spencer 

Shriver issued Citation 2222286 charging a violation of 30 

C.F.R. § 75.807. 

4. The citation alleges th~ following condition or 

practice: 

The 7200 volt cable serving the 5 North 

Section Power Center, is laying on the bottom 

for 25 feet, beside area of new track construction, in No. 5 entry, outby belt trench. 

Cable is contacting a 5 foot drill steel 

leaning against rib, and is heavily abraided 

for about 6 feet where it passes around the 

corner of the intersection inby the belt 

trench. About 20 feet of cable is laying on 

the bottom, near Bantam Duster, and across 

entry from power center cable has 3 cuts, 1/8 

inch deep and 1/2 to 2 inches long, and is 

abraided, where it hangs down from crossing 

No. 5 entry, and into high-voltage sled. 

Area is under construction and the cable has 

received mechanical damage at corner of 

intersection and at high-voltage sled, and is 

subject to mechanical damage at the two 

locations where it was laying on bottom. 

These conditions were easy to observe. 

5. The cited safety standard states in pertinent part: 

All underground high-voltage transmission 

cables shall be installed only in 

regularly-inspected air courses and 

haulageways, and shall be covered, buried, or 

placed so as to afford protection 'against 

damage, quarded where men regularly work or 

pass under them unless they are 6 1/2 feet or 

more above the floor or rail, securely 

anchored, properly insulated 

6. The electrical inspector came into the area along 

the number 5 entry. He passed the recess where the power 

1991 
sled and power center were located. He proceeded up the 

entry and through the intersection where an overcast had 

recently been cut. He then walked approximately 75 feet 

outby the intersection to where the track ended. 

7. Inspector Shriver observed that the cable was 

hanging low as it came out of the power sled into the entry. 

It was approximately three feet from the ground. He noticed 

three cuts on this part of the cable. He also noticed handprints in the rockdust on this part of the cable. Given the 

handprints on this part of the cable, but not elsewhere, and 

the eighteen inch step up to the power sled and center, it 

appeard to him that the cable was being used as a handrail or 

hoist to and from the power center~ 

8. The 7200 cable crossed over the entry at this point 

and was hung against the roof. When it came down on the 

opposite side of the entry, there were approximately 25 feet 

of cable looped and lying -0n the ground next to a bantam 

duster. 

9. The cable then ran along the ribs of the entry close 

to the roof. It went over the intersection tight against the 

top of the overcast. When it came down the other side of the 

intersection, it was wrapped tightly around the corner of the 

intersection, approximately three or four feet off the ground. 

There were heavy abrasions on the six feet of the cable that 

were wrapped around the corner. 

10. These abrasions were on the side of the cable that 

faced the intersection. Given the height of the cable and 

the concentration of heavy abrasions on this corner, it 

appeared to the inspector that the cable was being scraped 

and damaged by machinery or equipment traveling around or 

through the intersection. 

11. Once the cable rounded the corner of the intersection, it was then wrapped around a drill steel that was 

leaning against the rib. 

12. The next fifty feet of the 7200 cable along the 

entry was hanging less than six and a half feet from the 

ground. Ten feet of that was guarded-. The other forty feet 

were unguarded. 

13. The next twenty five feet of cable were lying on 

the ground near the rib. This area was at the end of the 

track. At the end of the track and next to the cable on the 

ground, there were cross ties and rails that had been 

unloaded where supplies are dropped off. There were also 

1992 
several pieces of metal lying within two or three inches of 

the cable. There were three pieces of metal measuring about 

four feet long and four i~ches wide. 

14. Upon entering the area, the electrical inspector 

had observed a crew bolting in the cross cut area between the 

number four and five entries. He observed the section foreman, Mr. Stone, in the same vicinity as well. 

15. After the inspector indicated that a citation was 

being issued, the 7200 cable was de-energized. The electrical inspector went back and looked more closely at the 

cuts on the cable near the power sled. Using his fingernail, 

he estimated that the cuts were one eighth of an inch in 

depth and varied from one half to two inches long. It was 

the inspector's opinion that these cuts were more than normal 

wear and tear and amounted to serious damage to the outer 

jacket. 

16. The way in~ which the 7200 cable was hung and placed 

in this area of the number 5 Entry was readily observable. 

The damage to the cable at the power sled and on the corner 

of the intersection was also readily observable. The inspector made his observations of the area in a matter of minutes. 

The potential for further damage was obvious at the corner of 

the intersection and the end of the track. 

17. The 7200 cable had been in this positon from the 

time the power center was moved to its location, within the 

last several days. It was Inspector Shriver's opinion that 

the cable had been in this condition for two to three days 

based on his observation of the area. He believed that the 

overcast was cut several days before. There was also rock 

dust settled on the cable and there were no emptly bags in 

the area, indicating t:he cable had been in this position for 

several days. 

18. The area is required to be examined by the section 

foreman during pre-shift and on-shift examinations. Section 

Foreman Stone had done an on-shift examination of this area 

at approximately eight o'clock that morning. A pre-shift had 

been done by the last boss on the midnight shift. 

19. If left in this position, the cable would have been 

subjected to further damage and it was reasonably likely that 

a short circuit would have occurred. 

20. When a 7200 cable is damaged, a short circuit or 

exposed conductors can result. If a person contacts an 

energized conductor, he would almost certainly be electrocuted given the voltage of_ this cable. A short circuit can 

199'3 
result in fire, explosion or electrocution. Water or 

moisture can get into a cable through the damaged area and 

result in an explosion. 

21. The cuts and abrasions on the cable constituted 

damage. The six feet of abraided cable at the intersection 

was subject to further damage. The twenty five feet of cable 

on the ground near the end of the track was subject to damage 

from supplies and other materials being dropped on the cable. 

22. This area was regularly traveled and worked in by 

miners. It was a construction area. The track and power 

center were located in this entry •. 

23. Because of the high voltage of the 7200 cable, it 

has a number of safety features in its overall protection 

system. Each of the three conductors or phase wires in the 

cable ,is covered with shielding. The shielding is covered 

with insulation. Then there? is another braided or tape 

shield covered by the outer jacket. Any amount of damage to 

the cable could affect the overall protection system of the 

cable. If the cable is damaged through to the conductors, 

the breaker would be tripped and the cable de-energized if 

the ground monitoring system is functioning properly. If it 

is not functioning properly at the time, the breaker would 

not be thrown. An attempt might be made to reset the breaker 

even when it has been thrown off. If the object that penetrated the inner cable was removed the power would remain on 

and a short circuit would result. 

24. In the event that thes.e hazards occurred, very 

serous injuries would result given the frequency with which 

this area is traveled and worked in. Serious injuries from 

burns and flying debris would result. A fatality could 

result from electrocution. 

25. The electrical inspector did not require the cable 

to be repaired or replaced in order to abate the violation. 

All that was required was hanging the cable near the roof in 

all locations so that it would not be subjected to contact or 

further damage. This·was done within approximately one hour. 

Since the damage to the cable did not penetrate beyond the 

outer jacket and it was protected from further damage, the 

area was made safe. 

DISCUSSION WITH FURTHER FINDINGS 

The standard cited is a broad safety regulation 

regarding the installation of high voltage transmission 

cables. The intent of § 75.807 clearly is to protect 

1994 
high-voltage cables against damage and to protect miners 

against contact with high-voltage cables. 

Consolidation violated the section by its failure to 

cover, bury or place the 7200 cable in the 5 North Section so 

as to afford protection against damage. The cable was 

damaged at two places: near the power sled and at the corner 

of the intersection. Also, the twenty five feet of 7200 

cable outby the intersection near the end of the track was 

not protected against damage from various types of supplies 

being unloaded there. Pieces of metal debris in the area 

could have caused damage to the cable as well. The operator 

also violated the standard by its failure to guard the cable 

where it hung less than six and a half feet since this is an 

area where miners regularly worked. Little Bill Coal 

Company, 2 FMSHRC 3634, 3642-3643 (December 1980). 

The violation was caused by the operator's "unwarrantable failure" to comply. An unwarrantable violation may be 

proved by: 

• • • a showing that the violative condition 

or practice was not corrected or remedied, 

prior to the issuance of a citation or order, 

because of indifference, willful intent, or a 

serious lack of reasonable care. [United States 

Steel Corp., 3 FMSHRC 1424, 1434 (1984).] 

The fact that tQe 7200 cable was put in this position 

after the overcast was cut and no action was taken to hang 

the cable or protect it from damage demonstrates indifference 

or a serious lack of reasonable care. Given that this area 

is required to be examined during pre-shift and on-shift by 

the section foreman, and the damage to the cable and potential for further damage was not observed nor acted upon, 

indifference or a serious lack of care has been also shown. 

The violation was of such a nature as could signif icantly and substantially contribute to the cause and effect 

of a mine safety and health hazard in this mine. As stated 

by the Commission in Mathies Coal Company, 3 FMSHRC 1184 

(1984), in order to establish that a violation is "significant and substantial," it must be shown that there was: (1) 

an 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 

injury, and (4) a reasonable likelihood that the injury in 

question will be of a reasonably.serious nature. 

Damage to the outer jacket of a cable, even a small 

tear, weakens the overall system of protective insulation and 

1995 
increases the risk of danger to the internal layers of insulation on the power conductors. The fact that the cable was 

damaged and subject to further damage increased the likelihood of the hazards of electrocution, fire or explosion. A 

short circuit or exposed conductors were likely to have 

occurred. In addition, water or moisture could have seeped 

through damaged areas and caused a short circuit and explosion. Given that this construction area was reqularly 

traveled and worked in, injury was reasonably likely. 

In the event that one of the hazards occurred, very 

serious injuries would have been reasonably likely. Serious 

or even fatal injuries would result from electrocution, burns 

and flying debris. 

Considering all the criteria for assessing a civil 

penalty under section llO(i) of the Act, I find that a 

penalty of $750 for this violation is appropriate. 

CONCLUSIONS OF LAW 

1. The Commission has jurisdiction in these proceedings. 

2. Consolidation Coal Company violated 30 C.F.R § 

75.807 as charged in Citation 2222286. 

ORDER 

WHEREFORE IT IS ORDERED that: 

1. Citation 2222286 is AFFIRMED. 

2. Consolidation Coal Company shall pay the aboveassessed civil penalty of $750 within 30 days of this 

Decision. 

~~.uv~ William -~:.:er Administrative Law Judge 

1996 
Distribution: 

Susan Jordan, Esq., and William T. Salzer, Esq., Office of 

the Solicitor, U.S. Department of Labor, Room 14480 Gateway 

Building, 3535 Market Street, Philadelphia, PA 19104 

(Certified Mail) 

Nelson M. Michael, Esq., Swadley, Michael, Barr & James, P.O. 

Box 220, Keyser, WV 26726 (Certified Mail) 

Michael R. Peelish, Esq., Cosolidation Coal Company, 1800 

Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

Michael H. Boland, Esq., UMWA, 900 15th Street, N.W., 

Washington, D.C. 20005 (Certified Mail) 

kg 

1997 
FEDERAL MlHE SAFETY AND HEALTH REVIEV'f COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 311986 

SOUTHERN OHIO COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

. . 

. . 

. . 

: 

. . 

. . 

CONTEST PROCEEDINGS 

Docket No. WEVA 86-8-R 

Citation No. 255703q; 9-10-85 

Docket No. WEVA 86-9-R 

Order No. 2564405; 2-10-85 

Docket No. WEVA 86-11-R 

Order No. 2564943; 9-17-85 

Docket No. WEVA 86-35-R 

Order No. 2564613; 10-10-85 

Docket No. WEVA 86-36-R 

: Citation No. 2564615; 10-10-85 

: 

1998 

Docket No. WEVA 86-37-R 

Citation No. 2564821; 10-9-85 

Docket No. WEVA 86-38-R 

Order No. 2705721; 10-16-85 

Docket No. WEVA 86-39-R 

Citation No. 2705722; 10-16-85 

Docket No. WEVA 86-47-R 

Citation No. 2705729; 10-21-85 

Docket No. WEVA 86-48-R 

Order No. 2706704; 10-22-85 

Docket No. WEVA 86-49-R 

Citation No. 2706709; 10-22-85 

Docket No. WEVA 86-154-R 

Order No. 2706772; 2-5-86 
SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH, 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SOUTHERN OHIO COAL COMPANY, 

Respondent 

. . 

. .. 

. . 

. . 

. . 

. . 

. . 

. . 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEVA 86-30 

A.C. No. 46-03805-03685 

Doc~et No. WEVA 86-42 

A.C. No. 46-03805-03686 

Docket No. WEVA 86-51 

A.C. No. 46-03805-03688 

: Docket No. WEVA 86-54 

: A.C. No. 46-03805-03687 . . 

: Docket No. WEVA 86-71 

: A.C. No. 46-03805-03690 . . 

: Docket No. WEVA 86-75 

: A.C. No. 46-03805-03692 

: 

: Docket No. WEVA 86-102 

: A.C. No. 46-03805-03700 . . Docket No. WEVA 86-264 

: A.C. No. 46-03805-03722 

DECISION 

Appearances: David M. Cohen, Esq., and David A .• Laing, Esq., 

American Electric Power Service Corporation, 

Lancaster, Ohio, for Southern Ohio Coal Company; 

Susan Jordan, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania, for the Secretary of Labor. 

Before: Judge Fauver 

Southern Ohio coal Company seeks to have certain orders 

and citations vacated, and the Secretary seeks to have them 

affirmed and civil penalties assessed for violations charged in 

them, under the Federal Mine Safety and Health Act of 1977, 30 

u.s.c. § 801, et ~ 

Having considered the hearing evidence and the record as a 

whole, I find that a preponderance of the substantial, reliable, and probative evidence establishes the following: 

1999 
FINDINGS OF FACT 

WEVA 86-9-R and WEVA 86-30 

1. Settlement proposed at the hearing was GRANTED. Order 

2564405 will be AFFIRMED and a civil :genalty of $600 is APPROVED. 

WEVA 86-37-R and WEVA 86-42 

2. Settlement proposed at the hearing was GRANTED. Citation 2564821 will be AFFIRMED and a civil penalty of $137 is 

APPROVED. 

WEVA 86-39-R and WEVA 86-51 

3. Settlement proposed at the hearing was GRANTED. Citation 2705722 is VACATED and the Petition for Civil Penalty will 

be DISMISSED. 

WEVA 86-11-R and WEVA 86-75 

4. Settlement proposed at the hearing was GRANTED. Order 

25649.43 will be AFFIRMED and a civil penalty of $400 is APPROVED. 

WEVA 86-38-R and WEVA 86-102 

5. Settlement proposed at the hearing was GRANTED. Order 

2705721 will be .AFFIRMED and a civil penalty of $550 is APPROVED. 

WEVA 86-36-R and WEVA 86-54 

6. Citation 2564615 was issued on October 10, 1985, by 

MSHA Inspector David Workman when he observed that the offtrack shuttle car roadway in 3 Butt Section had excessive mud. 

7. The area affected was 180 feet inby the belt feeder 

including the entire four way intersection. The mud measured 

approximately twelve to sixteen inches in depth. The wet and 

muddy conditions made the steering of the shuttle cars 

difficult. 

8. "A Notice to Provide Safeguards" had been issued on 

September 10, 1974, requiring that off-track haulage roadways 

"be maintained as free as practicable from bottom irregularities, debris, and wet or muddy conditons." It was still in 

effect ~t the time that the subject citation was issued. 

g·. The large accumulations of mud could af feet the 

control of equipment driven through this area. 

2000 
10. The muddy conditions could have contributed to the 

cause and effect of a serious accident. 

11. For abatement of the cited condition, the area was 

made safe by running a scoop through and removing the accumulation of mud. 

WEVA 86-35-R and WEVA 86-102 

12. On October 10, 1985, Order 2564613 was issued by MSHA 

Inspector David Workman when he observed that two brows of a 

boom hole in the roof of No. 4 entry of the 3 Butt section were 

not supported adequately. 

13. The boom hole had been cut in the entry during the 

midnight shift of October 9, 1985. The area was being prepared 

as a belt transfer or dumping point. The hole was about three 

feet high and nineteen and one-half feet wide. 

14. After the boom hole was cut, additional roof bolts 

were put in the top of the cavity of the hole. No new bolts 

were 'placed on any of the four brows of the boom hole. The 

bolts on the brows were there before the roof was cut. 

15. On two sides of the boom hole a row of bolts was 

very close to the edge of the brows. The bolt plates were up 

to the edge. These bolts provided adequate support to two 

sides. 

16. On each of the other two sides of the boom hole inby 

a row of bolts was much farther from the edge of the brow. On 

the right side, the bolts were l' 2", 2', 1 1 8" and 2' 2" from 

the edge. On the left side, the measurements were 2', 2' 5" 

and 2' S"o Inspector Workman and David Antock, the miners' 

representative, took these measurements at the time the order 

was issued. 

17. The roof control plan for this mine does not provide 

specifically for the support of boom holes. However, it is a 

well established practice in the mining industry that roof 

support be provided as close to the edge of a brow of a boom 

hole as possible. 

18. The lack of roof bolts near the edge resulted in two 

exposed areas of roof approximately fifteen and one half feet 

long and two and a half feet wide. 

2001 
19. At the time of the order there was no imminent danger 

of a roof fall. However, given the size and weight of the 

unsupported areas, the type and history of the slate roof in 

this mine, and the heavy vibrations the area was subject to, it 

could reasonably be expected that parts or. all of the exposed 

roof areas would fall at some point and result in serious 

injuries. 

20. The bolting pattern was readily observable. The 

section foreman did not require the roof bolters to put 

additional bolts on the brows and ensure' that the area was 

supported properly after the boom hole was cut. Furthermore, 

this area is required to be examined during pre-shift and 

on-shift examinations. The section foreman did not report that 

the brows were not adequately supported during any subsequent 

examination of the area. · 

21. For abatement of the cited condition, the area was 

made safe by installing bolts on the brows closer to the edge. 

This took approximately one-half hour. 

WEVA 86-48-R and WEVA 86-102 

22. Order No. 2706704 was issued on October 22, 1985, by 

MSHA Inspector David Workman when he observed a large piece of 

loose roof on the B-6 longwall section supply track inby the 

pumping station 150 ·feet. 

23. The piece of loose slate roof was about 5 feet long, 

30 inches wide and 4 inches thick. There was a gap between the 

remaining roof and the loose rock of one half to one inch for 

the entire length of the loose slate. The loose piece of roof 

could have fallen at any time. 

24. The condition of the loose roof was obvious and very 

dangerous. The gap between the roof and rock could be observed 

when approaching from either direction. 

WEVA 86-49-R and WEVA 86-71 

25. Citation No. 2706709 was issued on October 22, 1985, 

by MSHA Inspector David Workman when he observed an unguarded 

opening on a tail gate motor on the B-6 Longwall which exposed 

moving parts of the fluid coupler. 

2002 
26. The unguarded opening was 1-3/4 inches by 1-1/2 

inches and large enough that a person's fingers could fit 

through it. The opening was located on the side of the coupler 

approximately two feet from the ground. 

27. The exposed moving parts of the coupler moved at 1785 

RPM. 

28. There was a reasonable probability of tripping in the 

area of the coupler in that the coupler was located in the 

walkway along the face conveyor which cohtained refuse, bottom 

irregularities and a number of rams that had to be stepped 

over. 

29. There was a substantial risk that someone would 

accidentally put a finger or fingers into the opening and 

suffer a serious injury. To abate the condition, the opening 

was guarded by fixing a piece of rubber belting over the hole. 

WEVA 86-154-R and WEVA 86-264 

30. On February 5, 1986, Order No. 2706772 was issued by 

MSHA "Inspector Harry Markley based upon his finding that a safe 

means of access was not provided and maintained to the power 

center located at the Grassy Run portal. 

31. The MSHA inspector and union walkaround observed wet, 

muddy and rocky conditions in the pathway that was used around 

the power center. 

32. The walkway in front of the power center consisted of 

approximately eight feet of flat area. In this area the mud 

was knee deep in places and extremely slippery. 

33. The pathway around the left side of the power center 

to the back consisted of a two foot rocky and muddy walkway 

along the power center and the dangered-off power cables for a 

distace of approximately forty feet. 

34. From the edge of the power center walkway toward the 

open pit there was an increasing downward slope ending in a 

vertical highwall. The slope was 3 degrees for about 10 feet, 

then there was a slope of 22 degress for about 12 feet, 

followed by a slope of 27 degrees for about 16 feet, ending in 

a sharp highwall that dropped vertically about 11 to 15 feet. 

35. At least part of the two foot wide walkway between 

the power center and slope would need to be used in order to 

access the left back side of the power center where the power 

2003 
plugs were located. If someone came around the front of the 

power center, he would have to walk along the two foot wide 

path between the power center and pit to reach the power 

switches on the left·back side. In the event he came around 

the back, he would need to walk around the power cables that 

were staked and wired off and then up .the two foot path along 

the power cables to the left back side of the power center 

where the switches for the cables wer~ located. 

36. Due to weather conditions that time of year, the 

walkway around the power center was extremely wat and muddy. 

The slope between the pathway and vertical highwall was also 

muddy and not safe to walk on. 

37 •. Access to the power center would be required at least 

twice a shift to energize the cables at the start of the shift 

and de-energize them at the end of the shift. If any problems 

with equipment were encountered during a shift, personnel would 

be required to travel to the power center more of ten to remove 

the power. Whenever a piece of equipment would break down, the 

power would have to be removed from the equipment to work on 

it. 

·38. The MSHA inspector and union walkaround observed two 

men working on the power center during the time that they were 

in this area. They were electricians who were repairing a 

problem with a ground fault system. 

39. The power center had been in this location and in 

operation for approximately two to five days before the MSHA 

order was issued. 

40. This area is required to be examined daily during 

on-shift examinations by certified personnel. The assistant 

shift foreman, John Vevilock, was responsible for this area and 

had conducted the on-shift examination that day. He was also 

working in the area at the time the order was issued. 

41. The wet, muddy, rocky conditions in the walkway along 

side of the power center and trailing cables presented a 

slipping hazard. 

42. The conditions around the power center presented a 

serious hazard that someone could stop or fall in the walkway 

and continue slipping down the incline into the pit below. A 

person falling down the slope and over the highwall could be 

seriously injuried or killed. 

2004 
43. All that was required to make .the area safe was a 

guard rail or barrier to prevent a person from falling in the 

first place and keep him from slipping down the slope over the 

highwall in the event that he did slip and fail. The operator 

built a platform with guard rails between the power center and 

slope by the next day. 

WEVA 86-8-R AND WEVA 86-75 

44. On September 10, 1985, Citation 2557039 was issued by 

MSHA Electrical Inspector John Paul Phillips for a violation of 

30 C.F.R. § 75.503 on a five horsepower Flygt pump located in 

the face of the Number One heading on 1 North off 2 West 

Section. 

45. The citation stated that the pump was not maintained 

in permissible condition in that an input power cable to the 

controller was not entered through the entrance gland. In 

addition, the citation stated that the cable had been pulled 

out of the packing gland and only insulated wires were through 

the gland. 

46. The operator does not contest that a violation of 30 

C.F.R. § 75.503 existed in that the input cable did not go 

completely through the packing gland of the controller. The 

operator does contest, however, the special findings of an 

unwarrantable, significant, and substantial violation. 

47. The inspector entered the area to inspect the 

controller because of problems he had observed with other 

similar controllers in this.mine. He was accompanied by Pat 

Grimes, union walkaround, and Kenney Moore, company representative. The inspector immediately observed that the controller 

was hung by its two cables which were looped on j-hooks in the 

roof. 

48. It is recognized that the normal mining practice is 

to hang these control boxes from the roof by their handles 

which are on top of the boxes or by bolting brackets on the 

back. 

49. The control box in question may or may not have had a 

handle on it, but it did have bolting brackets for mounting. 

50. It is not considered good mining practice to hang the 

controlJ:er by its cables because strain is put on the input 

cables by the weight of the box. The control box itself weighs 

approximately thirty pounds. 

2005 
51. The electrical inspector asked the union walkaround, 

Mr. Grimes, who is also a certifed electrician, to take the 

controller down. As Mr. Grimes was about to do this, he 

noticed that one of the input cables was pulled out of the box. 

He specifically observed the insulated colored leads through 

the slot between the straining clamp a·nd tb,e outside of the box. 

He observed that the black cover of the:.qable did not go 

completely through the straining clamp into the control box. 

Mr. Grimes pointed out his observations to the inspector. 

52. Once the controller was on the ground, the cover was 

removed by Mr. Grimes. The fact that the input cable did not 

pass completely through the wall of the controller, as is 

required, was confirmed. In addition, the inspector observed 

two othe'r violations in the controller. These violations 

involved inadequate overcurrent protection and ground monitoring system. These violations were the conditions that the 

inspector was concerned with when entering the area because of 

similar findings on other controllers. The inspector issued 

citations for violations of 30 C.F.R. § 75.518 and § 75.902 

for these conditions at the same time he issued the order at 

bar.· 

53. With respect to the citation at issue, the inspector 

and union walkaround observed that the input cable went to the 

straining clamp on the outside of the box but did not go 

through the packing gland. The packing gland consists of 

packing material made of asbestos between two rings. The input 

cable had to extend through the packing gland and into the 

controller in order to be permissible. It is uncontested that 

the input cable did not go through the packing gland. 

54. The fact that the input cable itself did not extend 

through the packing gland and into the box was observable without the cover off since the colored leads of the cable could be 

observed coming out of the box in the small space between the 

outside of the box and the straining clamp. 

55. Mr. Grimes, a certified electrician, attempted to 

enter the cable back into the control box. However, the cable 

would not fit through the inner ring of the packing gland. Mr. 

Grimes took the whole packing gland out of the box. It was 

apparent to him and the inspector that while the input cable 

could fit through the ring closest to the outside, it would not 

fit through the ring toward the inside of the box. 

2006 
56. Given the manner in which the control box was hung 

from its cables on j-hooks and the weight of the box itself, 

the pressure on the cable had caused the cable to slip farther 

back from the packing gland and exposed colored leads on the 

outside of the box. While the straining c~amp was tight, it 

was not so tight as to prevent any mov..ement .pf . .the cable. The 

straining clamp could not be too tight or it would affect the 

conductors inside. 

57. Due to the fact that the input cable could not be 

entered completely through the packing gland and the existence 

of the other violative conditions that were cited, the operator 

made a decision to take the pump'and its controller out of 

service and remove it to the outside of the mine. 

58. When the control box was taken outside, it was not in 

the same condition as when it was first observed by the 

inspector, because attempts had been made to enter the cable 

through the packing gland into the box. Specifically, the 

colored leads could no longer be seen on the outside of the 

box • 

.. 59. The purpose of the pump was to dewater the face area 

in the section. It was energized at the time the inspector 

entered the area. 

60. The pump, and its controller are required to be 

examined during weekly permissibility inspections. The pump 

had been examined during a permissibility inspection by a 

certified electrician on September 8, 1985, two days before the 

citation was written. 

61. In addition, this equipment is subject to daily 

examination during pre-shift examinations by the section 

foreman. The violative condition was not observed during any 

permissibility or pre-shift examinations. 

62. The manner in which the controller was hung by its 

cables was easily observable. It is not a normal mining 

practice because of the strain put on the cables. The way the 

controller was hung should have resulted in closer examinations 

during pre-shift and particularly in permissibility inspections 

to make sure the cables were not pulled out of the explosion 

proof box. Closer examination would have resulted in observation of the exposed colored leads on the outside of the box. 

63. Permissibility standards require that the input cable 

extend completely through the packing gland into the control 

2007 
box so that no spark, fire, or explosion can escape the 

explosion-proof box. Given that the cable did not go through 

the packing gland and that there were other violations found in 

the control box, it could reasonably be expected that a fire, 

explosion or even spark would not be contained and could result 

in a mine fire or explosion. Serious injuries or even fatalities would be likely to result from burns or smoke inhalation. 

DISCUSSION WITH FURTHER FINDINGS 

WEVA 86-36-R AND WEVA 86-54 

Citation 2564615 was issued by the inspector when he 

observed excessive mud in an off-track shuttle car roadway. 

The area cited was 180 feet inby the belt feeder and included a 

four way intersection. 

The standard cited, 30 CFR § 75.1403, provides the 

authority to issue and enforce special safeguards regarding 

transporation in coal mines when an MSHA official determines 

that they are needed. It reads: 

Other safeguards adequate, in the judgment 

of an authorized representative of the 

Secretary, to minimize hazards with respect 

to transportation of men and materials 

shall be provided. 

Safeguards written and approved under this section have 

the force and effect of a mandatory safety regulation. 

Following this section are general criteria to be used in 

promulgating special safeguards. Section 75.1403-lO(i) 

contains criteria regarding off-track haulage roadways. It 

specifically provides: 

Off-track haulage roadways should be maintained as free as practicable from bottom 

irregularities, debris, and wet or muddy 

conditions that affect the control of the 

equipment. 

A "Notice to Provide Safeguard" was issued at this mine on 

September 10, 1974, by MSHA Inspector Raymond Strand. The Safeguard contains language identical to§ 75.1403-lO(i). This 

safeguard was in effect at the time that the citation was 

issued. 

2008 
I find that the off-track roadway was not maintained as 

free as practicable from wet and muddy conditions that could 

affect the control of the equipment. Inspector Workman issued 

the citation after observing what he believed were excessive 

amounts of mud in a four way intersection. He stated that he 

did not specifically measure the depth of tne mud or the size 

of the area affected, but that he walked a~ound the area and 

walked out into the mud until it reached .the top of his boots. 

He estimated that the mud was 12 to 16 inches deep and possibly 

up to 20 inches in places. He also testified· that the entire 

intersection was affected and measured approximately 16 x 16 

feet. 

David Antock, the union representative who accompanied 

Inspector Workman during his inspection, corroborated his 

observations. He testified that the mud would have been over 

his boots if he walked out into it. 

Respondent contends that the muddy conditions were not as 

bad as described by Inspector Workman and Mr. Antock. However, 

none of Respondent's witnesses actually measured the accumulations. Also, Inspector workman was the only person who 

actually walked out toward the middle of the roadway. Mr. 

Antock observed him do this and saw him back out when the mud 

reached the top of his boots. 

Both Inspector Workman and Mr. Antock testified that the 

muddy conditions would affect the control of a shuttle car. 

Both men ha.ve had significant experience operating shuttle cars 

and Mr. Antock worked as a shuttle car operator in this mine 

and had driven a shuttle car in this particular section as 

recently as a few days before the citation was written. 

Inspector Workman and Mr. Antock observed a shuttle car 

operator in the area trying to clean out his car. The mud had 

come over the deck and into the car itself. Mud was observed 

around the tram handles and brakes. The mud would have to be 

at least six inches deep to come over the deck. Both felt that 

it would be extremely difficult to operate a shuttle car 

through the area without sliding. Accumulation of mud to this 

extent gets underneath and inside the car and affects the 

control and braking of the vehicle. 

The violation was abated by scooping the mud out of the 

roadway. Mr. Antock, who was working on this section at the 

time of the hearing, indicated that cleaning up one to two 

times per shift is sufficient to keep the area clean and safe. 

He testified that recently the area was being scooped once at 

2009 
the beginning of the shift and once at the end and that the 

shuttle cars were not having problems through there. It takes 

about fifteen minutes to scoop the area when done on a regular 

basis. 

The violation was significant and substantial. It was 

reasonably likely or reasonably foreseeable that a shuttle car 

traveling through the muddy conditions would slip and result in 

serious injuries to the operator or others in the area. 

Considering the criteria of section'llOCi) for civil 

penalties, the proposed penalty of $157 is found appropriate 

for this violation. 

WEVA 86-35-R and WEVA 86-102 

Inspector David workman issued Order 2564613 on 

October 10, 1985, pursuant to § 104Cd>C2> of the Act. He was 

conducting a regular inspection of the Martinka No. 1 Mine 

when, while proceeding through the No. 4 entry of the 3 Butt 

Section, he observed two brows of a boom hole that, in his 

opinion, were not supported adequately. 

The standard cited is a broad safety regulation regarding 

roof control programs and plans. The part cited by the inspector and at issue here reads: 

Each operator shall undertake to carry 

out on a continuing basis a program to 

improve the roof control system of each 

coal mine and the means and measures to 

accomplish such system. The roof and ribs 

of all active underground roadways, travelways, and working places shall be supported 

or otherwise controlled adequately to 

protect persons from falls of the roof or 

ribs. 

The Secretary maintains that the operator violated 30 CFR 

§ 75.200 in that the brows of the boom hole were not supported 

adequately to protect against a roof fall. 

I find that the inspector was correct in his conclusion 

that a violation existed based upon his observations. Inspector workman observed the recently cut boom hole as he was 

traveling through the crosscut. He learned that it had been 

cut out with a continuous mini~g machine the day before and 

that this area was to be a belt transfer or dumping point. The 

2010 
cavity that was cut out to make the boom hole measured approximately three feet high by nineteen and a half feet wide. The 

boom hole was cut up into the roof and out to existing bolts. 

The hole was cut far enough out so that two sides had a row of 

bolts wi~hin several inches of the edge. However, the other 

two sides inby had bolts much farther ,,from· the edge. The bolts 

on the right side of the boom hole were l' .2°, 2', l' 8" and 2' 

2" from the edge and the bolts on the left side were 2', 2' 5" 

and 2' 5" away from the edge of the brow. The only new bolts 

installed were put in the top of the cavity. 

Based on his observations, as well as his knowledge of 

this mine and his own experience, Inspector Workman found that 

the area had not been rebolted properly after the boom hole was 

cut. David Antock, the union representative who accompanied 

the inspector, agreed that the roof area had not been supported 

adequately. 

Inspector Workman has been an MSHA inspector for fifteen 

years with a total of twenty three years of mining experience. 

He ·has had special training in roof control as an MSHA inspector. He has been conducting MSHA inspections at Martinka 

No. l· Mine since 1977. Mr. Antock, the miners' representative, 

has worked at this mine for six years and for the last four 

years he has been a roof bolter in the section involved. Their 

opinions are accorded substanial weight based on their testimony, demeanor on t,he stand and their background. It is a 

recognized and well accepted practice in the underground coal 

mining industry that when a boom hole is cut out of the roof, 

the brows are supported by bolting as close to the edge as 

reasonably possible. Mr. Antock stated several times during 

his testimony that he has been told to bolt as close to the 

edge of the brow as possible by every foreman he has worked for 

as a roof bolter. He stated that he 11would have bolted at the 

end of the brow ••• [f]or the reason that it keeps falling out, 

and that's where we've always been told ••• " 

In the opinions of Inspector Workman and Mr. Antock, the 

distances between the bolts and the edge of the brow were too 

great to provide adequate support to the immediate area. The 

result was two exposed areas of unsupported roof measuring 15 

1/2' x 1-1/2' on the right and 15-1/2' x 2-1/2' on the left 

side. Both men agreed that all of the bolts on the brow should 

have been within two feet to provide adequate support and the 

closer the better. 

Respondent's witnesses recognized that bolting closer to 

the brow provides better roof support. Mr. Jon Merrified, the 

2011 
Respondent's Safety Director, stated that the bolts should be 

near the edge of the brow and "'near'" is not ten feet. 'Near' 

is not five feet. 'Near' could be somewhere in the vicinity of 

two feet, in my best judgment. And that's the way I would want 

to see it done, also." (June 19, 1986, Tr. 14.) He went on to 

comment that on average, boom hole boLts are~placed "around one 

foot, four inches" from the edge of the brow and that "I would 

not have been satisfied if they weren 1 t i.n the two to one and a 

half foot range." (June 19, 1986, Tr. 30.) 

In addition to his knowledge of standard mining practice, 

Inspector Workman based his opinion on observations of the area 

and history of the roof of the mine. Although he did not 

observe any exessive breakage or cracks that would have 

signified an imminent danger, he did see several small loose 

pieces that he pulled down himself. Also, he was aware that 

the slate roof in this mine had a history of instability given 

its weight and lack of "interlocking" effect. He felt that 

given the weight of the slate rock on the unsupported brows, 

the roof would become loose, crack and fall. Mr. Antock stated 

that the roof has "never been stable there" and that a fall 

would have occurred if the roof were left in that condition 

without added bolts. 

It should be noted that all that was required to make the 

area safe was several additional bolts on each of the two sides. 

It took approximately one half hour for a roof bolter to put in 

the new bolts. 

The regulation, 30 CFR § 75.200, requires adequate roof 

support. The order was issued because the inspector observed 

roof conditions which required additional roof support in his 

view. He believed that if additional bolts were not installed, 

the roof would have fallen in. His testimony and documentation 

are fully supported by the miners' representative and are sufficient to establish a violation in this case. 

The Commission has recently rest;:\ted its test for determining whether a violation constitues an "unwarrantable failure 

to comply." In affirming Ziegler Coal Company, 7 IBMA 280, 1 

FMSHRC 1518 (1977), it held: 

•.• an unwarrantable failure to comply may 

be proved by a showing that the violative 

condition or practice was not corrected or 

2012 
remedied, prior to the issuance of a citation or order, because of indifference, 

willful intent, or a serious lack of reasonable care. 

United States Steel Corp., 3 FMSRHC 14.24, 1434 (1984). 

The Secretary argues that the inspector correctly issued 

the order in this case because indifference or a serious lack 

of due diligence or reasonable care was demonstrated by a 

number of actions attributable to the operator. 

The boom hole was cut the day before, at the end of the 

midnight shift. After the boom hole was cut, only the top of 

the cavity was. rebolted. There is evidence that the reason 

that additional bolts were not provided on the brows was the 

fact that the roof bolters could not get the roof bolting 

machine around the corners of the boom hole and under the two 

exposed brows. There was debris left in the area from the 

cutting of the boom hole. The belts were down at the time and 

the materials could not be cleared out until the next shift. 

In the meantime, the bolters came in to support the roof and 

could only get to the center of the boom hole. Inspector 

Workman stated that statements to this effect were made to him 

by Henry Paul at the time the violation was cited and by Mike 

Layman at a later date. These men were section foremen at the 

time. Mr. Layman stated that his crew would not have been able 

to get the roof bolting machine around the corners because of 

material left from the boom hole and that he may have told 

Inspector Workman that. 

The foremen and roof bolters knew or should have known 

that additional bolts were needed closer to the edge of the 

brow. As discussed earlier, the fact that this is an established mining practice was clearly shown by the evidence. The 

action of the roof bolters who came to the area to abate the 

violation demonstrated that they knew that the bolts should be 

as close to the edge as possible. They placed additional bolts 

within one foot of the edge. When asked by Inspector Workman 

why they put the additional bolts there, they stated that is 

where they should have been. The foreman in charge of the crew 

at the time that the boom hole was cut should have observed the 

work and made sure the roof was rebolted and supported adequately. The fact that debris hampered additional bolting did 

not justify leaving the jobincomplete. The failure to take 

further ~ction demonstrated a serious lack of reasonable care. 

In addition, the violative condition should have been 

observed during any one of the required examinations of the 

2013 
area after the boom hole was cut. This area is required to be 

examined during pre-shift and on-shift examinations. The 

examiners should have seen the inadequate bolting pattern and 

exposed areas of roof. Roof falls are the primary cause of 

fatalities and injuries and examiners should be trained to look 

for roof conditions that are unsafe or potentially unsafe. The 

failure to observe and take action in ·this case amounts to a 

serious lack of reasonable care. 

These facts amply support the Secretary's claim that this 

violation existed due to a lack of due diligence or reasonable 

care on the part of the company. 

For these reasons, I find that the allegation of an 

unwarrantable violation is supported by the evidence. 

In order to establish a "significant and substantial" 

finding, it must be shown that: 

..• based upon the particular facts surrounding the violation, there exists a 

reasonable likelihood that the hazard contributed to will result in an injury or 

illness of a reasonably serious nature. 

National Gypsum, 3 FMSHRC 822 at 825, 2 FMSHRC at 1203 (1981). 

The safety hazard contributed to by this violation was a 

roof fall. Two of the brows had unsupported areas of approximately 15-1/2' x 2-1/2'. Both of these areas presented a 

danger of roof fall in the opinions of the inspector and Mr. 

An tock. 

The inspector testified that it was his opinion that these 

unsupported areas could reasonably be expected to move and fall 

given the slate roof's weight and history of instability. 

Mr. Antock agreed. Both of these men, as well as the company's 

witnesses, were aware of roof falls and injuries at this mine. 

Mr. Merrified confirmed that there were at least six injuries 

from roof fall accidents between July 1985 and the time of the 

hearing. In addition, this particular area was a travelway and 

was being prepared to become a belt transfer point. This area 

would have become highly traveled while it was being set up, 

making the likelihood of injury greater. 

In the event of a roof fall in this area, it was reasonably likely that there would be serious injuries. Inspector 

Workman testified that if either of the unsupported brows fell, 

there could be fatalities and other serious injuries. 

2014 
As a general matter, roof support is of foremost concern 

inasmuch as roof falls frequently result in serious injuries to 

miners. In Secretary of Labor v. Consolidation Coal Company, 3 

FMSHC 1187, 1190 (1984), the Commission acknowledged the 

Congressional concern with the serious. and· frequent injuries 

which result from roof falls: 

A prime motive in enactment of the 1969 

Coal Act was to '[i]mprove health and 

safety conditions and practices at underground coal mines' in order to prevent 

death and serious physical harm. One of 

the problems that greatly concerned 

Congress was the high fatality and injury 

rate due to roof falls. The legislative 

history is replete with references to roof 

falls as the prime cause of the fatalities 

in underground mines. [Citations and 

footnotes omitted.] 

Fatality statistics reveal that during the first three 

months of 1986, there have been eleven roof fall fatalities in 

underground coal mines in the United States. Four of those 

deaths have been in West Virginia. Current Report, BNA MSHR p. 

457 (April 16, 1986). In 1982 through 1985, there were 37, 23, 

34 and 18 fatalities, respectively, due to roof and rib falls. 

Roof falls are the leading cause of coal mine deaths. Current 

Report, BNA MSHR p. 141 (January 25, 1984H p. 316 (January 9, 

1985), p. 305 (January 8, 1986). In 1981, roof falls in underground coal mines resulted in 37 fatalities, 778 nonfatal 

injuries involving lost workdays and 116 nonfatal injuries 

involving no lost workdays. Current Report, BNA MSHR p. 

111-112 {July 28, 1982). These statistics establish that more 

miners die or are injured as a result of roof falls than any 

other type of accident including ignitions and explosions. 

Thus, Inspector Workman's concern that miners could be injured 

in a roof fall was well-founded. The Review Commission 

emphasized in National Gypsum that the inspector's "independent 

judgment is an important element in making 'significant and 

substantial' findings which should not be circumvented." 3 

FMSHRC at 825-826. The inspector's conclusions in this case 

were based on his observations of the roof itself, the 

surrounding area, his knowledge of the mine and the number of 

employees who would have occasion to be in the area. 

2015 
I find that Inspector Workman made a careful assessment of 

the conditions he observed and reasonably concluded that the 

violation cited was ''significant and substantial." 

WEVA 86-48-R and WEVA 86-102 

At the hearing and in prehearing exchanges, the parties 

stipulated that the violation of 30 CFR § 75.200 charged in 

Order 2706704 occurred, that it was of such a nature as could 

significantly and substantially contribute to the cause and 

effect of a mine safety hazard, and that' it was based on an 

underlying citation properly issued under§ 104(d)(l) of the 

Act. The only remaining issue is whether the violation was 

caused by an "unwarrantable failure" to comply. 

The violation was obvious and very dangerous. A large 

piece of slate roof was loose, gapping down and could have 

fallen at any time. The loose piece of slate roof was approximately five feet long, thirty inches wide and four inches 

thick. A gap of one-half to one inch existed between the roof 

and loose rock. The condition was visible when approaching 

from either direction on the supply track. In light of the 

size,· weight and looseness of the piece of slate, there could 

have been a roof fall at any time resulting in serious or fatal 

injuries. 

This specific area along the supply track was required to 

be examined by a certified person during pre-shift and on-shift 

examinations. 

The Secretary contends that the violative condition was 

allowed to develop into a very dangerous situation without 

being reported during examinations of the area. The Secretary 

submits that the fact that this obvious condition in a regularly used travelway went unreported and uncorrected amounts 

to a lack of due diligence, indifference or serious lack of 

reasonble care and is sufficient grounds for a finding of 

unwarrantability. The company contends that the condition 

occurred suddenly sometime between the time of the last 

examination and Inspector Workman's arrival in the area. 

Both Inspector Workman and Mr. Antock testified that it 

was very unlikely that the roof could have gotten into this 

condition in the three to four hours since the last preshift 

examination. Based on their mining experience and familiarity 

with the- top in this mine, it was their opinion that movement 

of such a large and heavy piece of rock in a short period of 

time would have meant a major fall throughout the area. It was 

2016 
their opinion, based on their observations of the area that 

day, that the rock had moved gradually over a period of time 

and did not develop suddenly since the pre-shift examination of 

this area at 2:20 p.m. 

In addition, both Inspector Workman and Mr. Antock stated 

that this area of the supply track is frequently traveled by 

crew members on their way to and from the supply truck during 

each shift. 

Therefore, the Secretary argues that the facts amply 

support the allegation that this violation existed due to a 

lack of due diligence or reasonable care on the part of the 

operator. 

Inspector Workman testified that: 

Well, as I started to say a little bit ago, 

our guidelines say that if there are foremen who are in the area, then we are 

required if we find a violation like this 

to charge unwarrantable failure, and reasonably believe that the foreman should have 

known this condition existed or a condition 

and practice that exists throughout the 

area, conditions left unabated. [June 19 

Tr., p. 2511.] 

Because Section Foreman Jim Chiater and Longwall Foreman 

Fitzhugh were on the section, Inspector Workman believed they 

"should have known" of the cited condition. However, they 

testified that they ch~cked' the preshift report, which did not 

indicate a roof hazard, and did not see this area until after 

the order was issued. 

The crew on the shift on which the order was issued did 

not walk through the cited roof area, but traveled in another 

entry to get to the dinner hole and later to get to the face. 

No one on the crew saw the cited area before the order was 

issued. 

The gap in the loose slate, about one-half to one inch 

wide, contained no rock dust, indicating that the slate did not 

loosen over a substantial period of time. 

I f~nd that there is no direct or objective evidence 

supporting the allegation of an unwarrantable failure by 

2017 
Respondent. The Secretary has not met his burden of proving 

the allegation of an "unwarrantable" violation by a preponderance of the evidence. 

Considering all the criteria for asse~sing a penalty, I 

find that penalty of $25 is appropriate for this violation. 

WEVA 86-49-R and WEVA 86-71 

Citation 2706709 alleges a violation of 30 CFR § 1722(a) 

for the failure to guard exposed moving machine parts of a 

fluid coupler. 

The regulation provides: 

Gears; sprockets; chains; drive, head, 

tail, and takeup pulleys, flywheels; 

couplings; shafts; sawblades; fan inlets; 

and similar exposed moving machine parts 

which may be contacted by persons, and 

which may cause injury to persons shall be 

guarded. 

The fluid coupler has moving parts and is subject to the 

requirements of§ 1722(a}. There was guarding around most of 

the fluid coupler, but a small opening exposed moving parts. 

The size of the unguarded opening, its location and the 

speed of the moving parts, combined with the potential for 

tripping in this area, substantiate the inspector's finding 

that it was reasonably likely that someone would fall and lose 

fingers. I conclude that there was a violation, and that it 

was significant and substantial. Considering all the criteria 

for assessing a penalty, I find that a penalty of $157 is 

appropriate for this violation. 

WEVA 86-154 and WEVA 86-264 

The operator contends that the degree of slope between the 

edge of the power center and high wall was no greater than an 

acceptable slope for refuse piles, and was actually purposely 

constructed to meet the guidelines for the construction of 

refuse piles in 30 C.F.R. § 77.215(h}. However, refuse piles 

that miners are permitted to walk on do not end in a sharp 

highwall dropping vertically into an open pit. The slope in 

this case was muddy, slippery and not safe to walk on. The 

danger of slipping and continuing to slide to and over the 

highwall required a guard rail or barrier under 30 C.F.R. 

§ 77 • .205 

2018 
The violation constituted an unwarrantable failure to 

comply with the requirements of 30 C.F.R. § 77.205 in that the 

failure to provide a safe walkway around the power center at 

the time .it was set up demonstrates a seripus lack of care. In 

addition, the fact that this area had.been examined during each 

shift every day that the power center had been in this location 

and that the foreman was working in thts -immediate area amounts 

to indifference or a serious lack of reasonable case. United 

States Steel Corp., 3 MSHA 1424, 1434 (1984). 

The violation was of such a ~ature as could significantly 

and substantially contribute to the cause and effect of a 

slipping accident. 

WEVA 86-8-R and WEVA 86-75 

The operator violated 30 C.F.R. § 75.503 by its failure to 

maintain the five horsepower Flygt pump in permissible condition. The operator concedes that the power input cable did 

not extend completely through the packing gland into the 

control box and therefore the pump was not in permissible 

condition. 

The violation constituted an unwarrantable failure to 

comply with the requirements of 30 C.F.R. § 75.503 in that the 

failure to install and hang the box properly demonstrates 

indifference or a serious lack of care. The manner in which 

the box was hung was unusual and put strain on the cable which 

caused it to pull farther out of the packing gland. 

Furthemore, the failure to observe that the cable was 

pulled out of the box during at least the weekly permissibility 

examination demonstrates a serious lack of care. The manner in 

which the box was hung and the exposed colored leads should 

have been observed during examinations of the area. 

The violation was of such a nature as could significantly 

and substantially contribute to the cause and effect of a mine 

fire or explosion. 

Considering all the criteria for assessing a penalty, I 

find that a penalty of $500 is appropriate for this violation. 

GENERAL FACTORS 

Southern Ohio Coal Company is a large operator with a 

history of a substantial number of violations within the 

2019 
24-month period before the first inspection involved in these 

proceedings. It made a timely and good faith effort to abate 

each violation found herein, after the violation was cited by 

the inspector. 

CONCLUSIONS OF LAW 

1. The Commission has jurisdiction in these proceedings. 

2. Respondent violated the safety standard as alleged in 

each of the following citations and orders: Citation 2564615; 

Citation 2706709; Citation 2705729; Citation 2557039; Order 

2564943; Order 2705721; Order 2564613; and Order 2706772. 

3. With the exception of the allegation of "unwarrantable," Respondent violated the safety standard as alleged in 

Order 2706704. 

ORDER 

WHEREFORE IT IS ORDERED that: 

- 1. In WEVA 86-30, Respondent shall pay the approved 

penalty of $600 (settlement). 

2. In WEVA 86-42, Respondent shall pay the approved 

penalty of $157 (settlement). 

3. Based upon the approved settlement to vacate the 

citation in WEVA 86-51, that proceeding is DISMISSED. 

civil 

civil 

4. In WEVA 86-11-R and WEVA 86-75, Respondent shall pay 

the approved civil penalty of $400 (settlement). 

5. In WEVA 86-38-R and WEVA 86-102, Respondent shall pay 

the approved civil penalty of $550 (settlement). 

6. In WEVA 86-36-R and its related penalty case, WEVA 

86-54, Citation 2564615 is AFFIRMED and Respondent shall pay 

the ASSESSED penalty of $157. 

7. In WEVA 86-49-R and the related penalty case, WEVA 

86-71, Citation 2706709 is AFFIRMED and the Respondent shall 

pay the ASSESSED penalty of $157. 

2020 
8. In WEVA 86-47-R and the related penalty case, WEVA 

86-71, based upon the bench decision at the hearing·, Citation 

2705729 is VACATED and the Petition for Civil Penalty is 

DISMISSED. 

9. In WEVA 86-49-R and WEVA 86-~l-R and .their related 

penalty case, WEVA 86-75, Order 2557039 is .. AFFIRMED and 

Respondent shall pay the ASSESSED civil penalty of $500; Order 

2564943 is AFFIRMED and Respondent shall pay the ASSESSED civil 

penalty of $400. 

10. In WEVA 86-38-R and WEVA 86-48-R and their related 

penalty case, WEVA 86-102, Order 2705721 is AFFIRMED and 

Respondent shall pay the ASSESSED penalty of $550; Order 

2706704 is MODIFIED to delete "unwarrantable" and as modified 

is AFFIRMED and Respondent shall pay the ASSESSED civil penalty 

of $25; Order 2564613 is AFFIRMED and Respondent shall pay the 

ASSESSED civil penalty of $1,000. 

12. In WEVA 86-8-R and its related penalty case, WEVA 

86-75, Citation 2557039 is AFFIRMED, and Respondent shall pay 

the assessed civil penalty of $500. 

13. In WEVA 154-R and its related civil penalty case, 

WEVA 86-264, Order 2706772 is AFFIRMED and Respondent shall pay 

the ASSESSED civil penalty of $500. 

12. All payments of the civil penalties ordered above 

shall be made within 30 days of this Order • 

Distribution: 

. r,J~~ William Fauver 

Administrative Law Judge 

David M. Cohen, Esq., American Electric Power Service Corporation, 161 West Main Street, Lancaster, Ohio 43130 (Certified 

Mail) 

Susan M. Jordan, Esq., Office of the Solicitor, U.S. Department 

of Labor, Room 14480, 3535 Market Street, Philadelphia, PA 

19104 (Certified Mail) 

kg 

2021 
FEDERAL MINE SAFETY. AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

(703} 756-6232 

December 30, 1986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

BROWN BROTHERS SAND COMPANY, 

Respondent 

CIVIL. PENALTY PROCEEDING 

Docket No. SE 86-23-M 

A.C. No. 09-00265-05506 

Junction City Mine 

ORDER 

By order issued on December 2, 1986, I scheduled this case 

for a hearing in Macon, Georgia, on January 27, 1987, and the 

parties will be informed of the precise hearing location in 

advance of the commencement of the hearing. The hearing is a 

continuation of a previously recessed hearing, and concerns an 

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

§ 56.9807, as stated in a section 104(d) (2) Order No. 2521411, 

issued by MSHA Inspector Steve c. Manis on September 4, 1985. 

The inspector issued the order after determining that an automatic back-up warning device on a 644C John Deere front-end 

loader was inoperable. The violation was abated after the 

respondent repaired the warning device, and the order has since 

been terminated. 

By letter dated December 10, 1986, respondent's President 

Carl Brown, asks whether I intend to visit the mine or whether 

I will permit him to subpoena MSHA Special Investigator Robert 

Everett for testimony at the hearing. 

With respect to any mine visit, the respondent's request 

for a mine visit IS DENIED. The alleged violation in this case 

has been abated and the order has been terminated. Under the 

circumstances, I· cannot conclude that a mine visit will assist 

me in the adjudication of the alleged violation in question or 

the other pending alleged violations. 

With regard to the respondent's request that Inspector 

Everett be subpoenaed to testify, I take note of the fact that 

by order issued on September 8, 1986, MSHA's motion for the 

quashing of a subpoena served on Mr. Everett was granted. The 

-

2022 
basis for the ruling was stated in the order and it was further 

explained in detail to the respondent during the course of the 

hearing on September 15, 1986. Inspector Everett did not issue 

the order which is the subject of the instant alleged violation 

and scheduled hearing. He conducted a special investigation to 

determine whether or not a section llO(c) proceeding should be 

instituted by MSHA against the respondent-for the alleged violation. That decision was pending at·the time of the initial 

hearing, and for the respondent's own protection against selfincrimination in any possible llO(c) proceeding, no testimony 

or evidence was taken with respect to the order issued by 

Inspector Manis. 

By letter dated October 8, 1986, and in response to my 

inquiry concerning the status of MSHA's pending llO(c) determination, MSHA's counsel advised me that MSHA determined that a 

section llO(c) proceeding was not appropriate and no such proceeding would be initiated. Under the circumstances, I find no 

basis for requiring the attendance of Special Investigator 

Everett for testimony at the scheduled hearing on January 27, 

1987, and I cannot conclude that his testimony would be relevant 

or material to any adjudication of the order issued by Inspector 

Manis. Accordingly, the respondent's request that Mr. Everett 

be subpoenaed IS DENIED. 

Attached is a copy of Mr. Brown's letter of December 10, 

1986. 

Attachment 

Distribution: 

!/~' /,} ~/ ;r--:-- ./ .. ~ .t1~/ I// '0.~0 Ge rge i~ Koutr s 

Administrative Law Judge 

Ken S. Welsch, Esq., Office of the Solicitor, U.S. Department 

of Labor, Room 339, 1371 Peachtree Street, N.E., Atlanta, GA 

30367 (Certified Mail) 

Mr. Carl Brown, Brown Brothers Sand Company, P.O. Box 82, 

Howard, GA 31039 (Certified Mail) 

/fb 

*U• S. GOVERNMENT PB.INTING OFFICE 1987; 491•223/53110 

2023