DECEMBER 1988 

COMMISSION DECISIONS 

12-13-88 

12-15-88 

Southern Ohio Coal Company 

The Helen Mining Company 

ADMINISTRATIVE LAW JUDGE DECISIONS 

12-08-88 

12-08-88 

12-12-88 

12-12-88 

12-16-88 

12-20-88 

12-22--88 

12-22--88 

12-23-88 

12-23-88 

12-27-88 

12-28-88 

12-29-88 

12-29-88 

12-29-88 

12-30-88 

Lincoln Sand & Gravel Co. 

Marion County Limestone Co., Ltd. 

Sec. Labor for Patrick Stanfield v. National 

Mines Corporation 

James D. Grimes v. Consolidation Coal Co. 

Consolidation Coal Company 

Karst Robbins Coal Company, Inc. 

Randy Rothermel, d/b/a Tracey & Partners 

Consolidation Coal Company 

Randy G. Cunningham v. Consolidation Coal Co. 

Jackie Sanders v. Gosser Construction Co. 

James River Limestone Co., Inc. 

Faith Coal Company 

Sec. Labor for Ford Allen Amos v. Nally and 

Hamilton Enterprises, Inc. 

Zeigler Co&l Company 

Sec. Labor for Raymond Long v. Cannelton Industries 

Pennsylvania Electric Company 

ADMINISTRATIVE LAW JUDGE ORDERS 

11-10-88 

12-22-88 

12-23-88 

12-27-88 

Mid-Continent Resources 

Mid-Continent Resources 

Adkins Coal Corporation 

Sec. Labor for David S. Haynes v. DeCondor Coal Co. 

LAKE 87-95-R 

PENN 86-94-R 

LAKE 88-67-M 

CENT 88-77-M 

KENT 88-171-D 

WEVA 88-218-D 

WEVA 88-243 

KENT 88-21 

PENN 88-155 

WEVA 88-139 

PENN 88-293-D 

LAKE 88-130-ff 

VA 88-22-M 

SE 88-50 

KENT 88-175-D 

LAKE 88-89 

WEVA 88-281-D 

PENN 88-227 

WEST 88-231 

WEST 89-3-R 

VA 87-8 

WEVA 89-31-D 

Pg. 1669 

Pg. 1672 

Pg. 1679 

Pg. 1683 

Pg. 1689 

Pg. 1701 

Pg. 1702 

Pg. 1708 

Pg. 1716 

Pg. 1734 

Pg. 1748 

Pg. 1749 

Pg. 1750 

Pg. 1769 

Pg. 1771 

Pg. 1776 

Pg. 1778 

Pg. 1780 

Pg. 1791 

Pg. 1798 

Pg. 1808 

Pg. 1810 

DECEMBER 1988 

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

Local Union 2333, District 29, United Mine Workers of America v. Ranger 

Fuel Corporation, Docket No. WEVA 86-439-C. (Judge Melick, Decision on 

Remand, October 25, 1988) 

Secretary of Labor on behalf of Joseph Gabossi v. Western Fuels-Utah, 

Docket No. WEST 86-24-D. (Judge Morris, Decision on Remand, October 24, 1988) 

Rochester & Pittsburgh Coal Company v. Secretary of Labor, MSHA, Docket 

No. PENN 88-152-R. (Judge Melick, November 17, 1988) 

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

Secretary of Labor, MSHA v. Southern Ohio Coal Company, Docket No. 

WEVA 86-190-R, WEVA 86-254. (Judge Maurer, Decision on Remand, October 

31, 1988) 

COMMISSION DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 . 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

December 13, 1988 

SOUTHERN OHIO COAL COMPANY 

Docket Nos. LAKE 87-95-R 

LAKE 88-26 

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

Commissioners 

ORDER 

BY THE COMMISSION: 

In this matter pending on review, arising under the Federal Mine 

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

or "Act"), counsel for the Secretary of Labor has filed a motion 

requesting vacation of the citation and associated civil penalty 

assessment in issue and dismissal of the proceeding. Southern Ohio Coal 

Company ("SOCCO") has filed a response indicating that it has no 

objection to the granting of the Secretary's motion. For the following 

reasons, we grant the motion. 

On July 22, 1987, an inspector of the Department of Labor's Mine 

Safety and Health Administration ("MSHA") issued·SOCCO a citation 

alleging a violation of 30 C.F.R. § 70.lOO(a), the mandatory health 

standard that, in general, requires operators of underground coal mines 

to maintain continuously an average concentration of respirable dust in 

mine atmospheres at or below 2.0 milligrams of dust per cubic meter of 

air ("mg/m3") ... The citation was based on analysis of twelve respirable 

dust samples obtained by MSHA inspectors conducting a respirable dust 

survey in a particular longwall section of SOCCO's Meigs No. 2 underground coal mine. The samples indicated an average respirable dust 

concentration of 2.1 mg/m3, a level in excess of that permitted under 

section 70.lOO(a). SOCCO contested the citation and this matter 

proceeded to hearing before Commission Administrative Law Judge Avram 

Weisberger. In his.decision, Judge Weisberger concluded that SOCCO had 

violated the standard, affirmed the citation, and assessed a $259 civil 

1669 
~nail:l:iy 'f.o'r 'the 'viiolatfon. 10 FMSHRC 923 (July '1988}(~LJ}. ·w~ 

subsequently granted SOCCO's petition for discretionary review, which, 

inter alia, challenged the dust sampling procedures used by the MSHA 

inspectors in this case. 

After the submission of SOCCO's brief on review, the Secretary 

filed with us a Motion to Vacate Citation and to Dismiss Proceeding. Ih 

this motion, the Secretary states that one of the twelve samples upon 

which the citation was based was not obtained in conformance with MSHA''s 

s?mpling procedures. The Secretary further states that if the invalid 

sample wete deleted from the dust analysis, the average ·dust concentration for the mine section in question would be 1.67 mg/m3, a 

permissible level. The Secretary requests that we enter an order 

vacating the citation and assessed civil penalty and dismissing this 

proceeding. On November 18, 1988, the Commission issued an order 

directing SOCCO to file a written response to the Secretary's motion. 

On November 29, 1988, SOCCO filed a Memorandum in Response, in which it 

asserts that is has no objection to the granting of the Secretary's 

motion and the dismissal of this proceeding. 

As we have held, our "responsibility under the Mine Act is to 

ensure that a contested case is terminated, or continued, in accordance 

with the Act. 11 Youghiogheny & Ohio Coal Co., 7 FMSHRC 200, 203 

(February 1985) ( 11Y&011 ). A motion by the Secretary to vacate a citation 

or order and to dismiss a review proceeding will be granted if "adequate 

reasons" to do so are present. See, ~· Y&O, supra; Kocher Coal Co., 

4 FMSHRC 2123, 2124 (December 1982); Climax Molybdenum Co., 2 FMSHRC 

2748, 2750-51 (October 1980), aff'd, 703 F.2d 447 (10th Cir. 1983). 

Here, the Secretary asserts that it now appears to her that a necessary 

factual predicate for the violation in issue is lacking. As the 

prosecutor charged with enforcement of the Mine Act, the Secretary has 

reached a determination that she should seek withdrawal of this 

proceeding. ff. Roland v. Secretary of Labor, 7 FMSHRC 630, 635-36 (May 

1985), aff'd, No. 85-1828 (10th Cir. July 14, 1986). The operator has 

not objected to the Secretary's motion or claimed that it will be 

prejudiced by the requested action. No reason otherwise appears on this 

record as to why the motion should not be granted. 

1670 
Accordingly, upon consideration of the Secretary's motion and the 

operator's response, the Secretary's motion is granted. The citation 

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

also vacated and this proceeding is dismissed. 

Distribution 

David A. Laing, Esq. 

Porter, Wright, Morris & Arthur 

41 South High Street 

Columbus, Ohio 43215 

Dennis D. Clark, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

~~ ~~ Richard V. Backley, Commissioner 

J~ A. Doyle, CommiSS=ner 

/-1 

\/ ~ A. Lasto~, Commissioner 

I '-t~ () -n -rd~f_.J...-~··J 1 LUL4-~·-1'-' L. Clair Nelson, Commissioner 

Administrative Law Judge Avram Weisberger 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suit.e 1000 

Falls Church, Virginia 22041 

1671 
FEDERAL MINI SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

December 15, 1988 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

THE HELEN MINING COMPANY 

Docket Nos. PENN 86-94-R 

PENN 86-181 

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

Commissioners 

DECISION 

BY THE COMMISSION: 

This consolidated contest and civil penalty proceeding arises 

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

seg. (1982) ("Mine Act"). The issue before us is whether Commission 

Administrative Law Judge Avram Weisberger properly found that a 

violation of 30 C.F.R. § 75.200, the mandatory roof control safety 

standard for.underground coal mines, was not caused by the unwarrantable 

failure of The Helen Mining Company ("Helen") to comply with the 

standard. 9 FMSHRC 1095 (June 1987)(ALJ). For the reasons that follow, 

we affirm the judge's decision. 

The relevant facts are undisputed. The Homer City Mine is an 

underground coal mine located in Homer City, Pennsylvania. Homer City 

is the only underground coal mine in the country that utilizes the 

shortwall mining method. The shortwall method is a pillar extraction 

system whereby the roof is temporarily supported by hydraulicallypressurized shields while a remote-controlled continuous miner cuts 10-

f oot deep swaths from the face. The extracted coal is removed from the 

face area by a conveyor belt or pan line. The hydraulic shields are 

advanced into the void created by the cut as the face is advanced and 

are repressurized against the newly exposed roof. As the shields move 

forward, the roof that the shields had been supporting "caves" or falls 

creating a "gob" area behind the shields. If, because of the structure 

of the overburden, ~he main roof does not break, it will start to bend, 

exerting extreme pressure in the roof over the tops of the shields. 

Although the shields support this pressure, the roof between the inby 

1672 
end of the shields and the face will show signs of stress and start to 

fracture, resulting in small roof falls or "pot-outs." Tr. 426-27, 433, 

435-36; Battistoni Deposition, p. 16. 

In August 1985, Helen installed in its H-Butt No. 4 shortwall 

section new Gullick Dobson shields that Helen's engineers had designed 

to meet the specific needs of the Homer City Mine. l/ On January 7, 

1986, Helen began using a new continuous mining machine, the Joy 14-CM, 

in the section. Since the remote controls on the Joy miner differed 

significantly from those of the machine that had been previously used, 

operators of the Joy 14-CM experienced some difficulty in precisely 

controlling the cuts made. The operators overcut the coal seam creating 

changes in the height of the roof of the mine. "Step-ups" in the roof 

generated by the overcuts ranged up to 7 inches and averaged between 3-4 

inches. 2/ 

On January 28, 1986, William McClure, an inspector with the 

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

conducted an inspection of the mine. McClure was accompanied by his 

supervisor, Robert Nelson. Upon arriving at the H-Butt No. 4 shortwall 

section, McClure noted that the first four ~hields, located in the 

headgate entry area, had cribbing installed between their main canopies 

and the mine roof, due to gaps in the roof created by pot-outs. McClure 

also observed that of the 53 shields, 13 had forepole pads that were not 

in contact with the roof. The inspector determined that four of the 13 

forepole pads were not in contact due to pot-outs and the remaining nine 

were not in contact because a step-up had been created in the roof on 

the prior pass across the face. McClure measured gaps of 10 to 13 

inches from the tops of the forepole pads to the roof on at least four 

of the shields, and lesser gaps of 2 to 10 inches. over the other nine 

shields. The 13 forepole pads not in contact with the roof were within 

4 feet of the face. 

The Homer City mandatory roof control plan required that: 

The space in between the shield canopy extensions 

and the coal face shall not exceed 4 feet. Where 

this spacing is exceeded, roof support shall be 

installed not to exceed 4 foot spacing before any 

work or travel is permitted in this unsupported 

area, except for the purpose of installing supports. 

l/ The shields have five major components: (1) the main canopy, which 

supports up to 688 tons; (2) the forward canopy, which supports up to 44 

tons and can be cantilevered against the roof; (3) the forepole 

extension pad (or forepole pad), which supports up to 13.9 tons and 

which can be extended from the forward canopy; (4) the shield hydraulic 

legs; and (5) the ram arm, which pushes the conveyor forward and pulls 

the shield ahead as the face advances. 

'l:_/ "Step-ups" are vertical overcuts into the mine roof by the 

continuous miner at·a height greater than the height of the previous 

cut. Tr. 714-722; see also Tr. 495-498. 

1673 
Exhibit GX-2, Diagram 16(b) .. McClure interpreted this provision to 

require the forepole pads to be in contact with the roof at a point no 

greater than 4 feet from the face. McClure also found that the 

violation of section 75.200 was significant and substantial in nature 

and the result of Helen's unwarrantable failure to comply with the 

mandatory safety standard. Therefore, the inspector issued an order to 

Helen pursuant to section 104(d)(2) of the Mine Act alleging a violation 

of section 75.200. lf The order was terminated within 45 minutes of its 

issuance, after cribbing was installed between the forepole pads of some 

shields and the roof, and other shields were repositioned so that the 

forepole pads contacted the roof. 

Helen contested the issuance of the order and the Secretary's 

proposed civil penalty for the violation. Helen contended that the 

language of its roof control plan did not require the forepole extension 

pads to contact the mine roof within 4 feet of the face, that MSHA had 

never. before cited the lack of contact between forepole pads and the 

roof as a violation of the plan, and that installing cribbing above the 

forepole pads posed a greater hazard than allowing forepole pads to not 

be in .contact with the roof. 

ll Section 104(d)(2) of the Mine Act, 30 U.S.C. § 814(d)(2), states: 

(2) If a withdrawal order with respect to any area 

in a coal or other mine has been issued pursuant to 

paragraph (1), a withdrawal order shall promptly be 

issued by an authorized representative of the 

Secretary who finds upon any subsequent inspection 

the existence in such mine of violations similar to 

those that resulted in the issuance of the 

withdrawal order under paragraph (1) until such time 

as an inspection of such mine discloses no similar 

violations. Following an inspection of such mine 

which discloses no similar violations, the 

provisions of paragraph (1) shall again be 

applicable to that mine. 

Section 75.200, which restates section 302(a) of the Mine Act, 30 U.S.C. 

§ 862(a), provides in pertinent part that: 

The roof ... of all active ... working places shall 

be supported or otherwise controlled adequately to 

protect persons from falls of the roof ...• A roof 

control plan and revisions thereof suitable to the 

roof conditions and mining system of each coal mine 

and approved by the Secretary shall be adopted .... 

No person shall proceed beyond the last permanent 

support unless adequate temporary support is 

provided or unless such temporary support is not 

required under the approved roof control plan and 

the absence of such support will not pose a hazard 

to the miners .... 

1674 
Following an evidentiary hearing, the judge determined that Helen 

did not violate its approved roof control plan because "the ... plan did 

not specifically require the forepole pads to be in [contact] with the 

roof •..• " 9 FMSHRC at 1101. The judge noted, however, that section 

75.200 requires, in addition to compliance with the approved roof 

control plan, that "the roof ... of all ... working places ..• be 

supported or otherwise controlled adequately to protect persons from 

falls." 9 FMSHRC at 1103. The judge observed that the Commission has 

stated that "the adequacy of particular roof support or other control 

must be measured against the test of whether the support or control is 

what a reasonably prudent person, familiar with the mining industry and 

protective pu.rpose of the standard, would have provided in order to meet 

the protection intended by the standard." Id. (citing Canon Coa.l 

Company, 9 FMSHRC 667, 668 (April 1987)). Finding that" ... a 

substantial hazard ... [exists] as the gap between the roof and the 

forepole pad can lead to unsupported roof being exposed for the duration 

of a pass by the [continuous] miner," and that "a reasonably prudent 

person familiar with the mining industry would have recognized the 

hazard," the judge concluded that Helen, by allowing the gaps to exist, 

had failed to support or otherwise adequately control the roof at the 

shortwall face in violation of section 75.200. 9 FMSHRC 1104-05. The 

judge also concluded that the violation significantly and substantially 

contributed to a mine safety hazard. 9 FMSHRC at 1105-06. 

In determining whether the violation of section 75.200 constituted 

an unwarrantable failure to comply with the regulation, the judge found 

that Hel~n had reasonably interpreted its approved roof control plan to 

not require the forepole pads to be in contact with the roof, had a .long 

history of not being cited by MSHA for similar conditions, and had a 

reasonable belief that miners would be exposed to a serious safety 

hazard if they were required to install cribbing over forepole pads. 

Therefor~, the judge concluded that Helen's failure to comply with the 

requirements of section 75.200 was not the result of either 

indifference, willful intent, or serious lack of reasonable care. 

g FMSHRC at 1106-07. 

We granted the Secretary's petition for discretionary review which 

challenges only the judge's conclusion that the violation did not result 

from Helen's unwarrantable failure. The Secretary contends that the 

judge set the legal standard for an unwarrantable failure at a higher 

threshold than that intended by Congress. The Secretary argues that 

application of a correct unwarrantable failure standard to ~he facts in 

this case would result in a finding that Helen unwarrantably failed to 

comply with section 75.200. The Secretary also asserts that the judge 

erroneously limited his consideration of those aspects of Helen's 

violative conduct that might be indicative of an unwarrantable failure. 

In determining whether or not Helen's violation of section 75.200 

resulted from an unwarrantable failure the judge relied upon the holding 

in United States Steel Corp., 6 FMSHRC 1423, 1437 (June 1981), that "an 

unwarrantable failure may be proved by showing that a violative 

condition or practice was not corrected prior to the issuance of a 

citation or order b~cause of indifference, willful intent, or serious 

lack of reasonable care." Subsequent to both U.S. Steel and the judge's 

1675 
decision in the present case, however, we further addressed the proper 

interpretation of the term "unwarrantable failure" as used in section 

l.04(d) of. the Mine Act. Emery Mining Corp., 9 FMSHRC 1997, 2004 

(December 1987) and Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2010 

(December 1987). After careful consideration of the ordinary meaning of 

the term, the purpose of unwarrantable failure sanctions under the Mine 

Act, and the legislative history and judicial precedent, we held that 

unwarrantable failure means "aggravated conduct, constituting more than 

ordinary negligence, by a mine operator in relation to a violation of 

the Act."!::!_/ In Emery, we determined that the same "indifference, 

willful intent or serious lack of reasonable care" language from U.S. 

Steel, relied upon by the judge, in large measure describes aggravated 

forms of operator conduct constituting more than ordinary negligence. 

9 FMSHRC at 2003-04. Accordingly, as we did in ~. we find that the 

judge's approach to resolving the unwarrantable failure issue in this 

case is sufficiently congruent with the subsequently announced 

"aggravated conduct" standard to allow us to proceed to an examination 

of the evidence supporting the judge's finding. See also Quinland 

Coals, Inc., 10 FMSHRC 705, 707-08 (June 1988). Applying Emery, we find 

that substantial evidence supports the judge's finding that Helen did 

not unwarrantably fail to comply with section 75.200. 

Witnesses for both parties testified that Helen's roof control 

plan did not expressly address whether the forepole extension pads had 

to contact the roof within 4 feet of the face. Helen's witnesses 

testified without dispute that there had never been a requirement in 

Helen's roof control plan that the forepole pads be in contact with the 

roof at any distance from the face. All witnesses to whom the question 

was posed also agreed that the roof control plan expressly excluded 

forepole pads from the bearing area specification for the shields. 

Tr. 218, 367, 451, 512, 516, 564-65, 605, ~85. Further, Helen's 

witnesses consistently testified that the function of the forepole pads 

i~ to provide coverage from·falling roof debris rather than to support 

the roof, and General Mine Foreman Dunn testified, without 

contradiction, that the primary roof support component on the Gullick 

Dobson shield is the main canopy area, located directly over the 

shield's hydraulic legs, rather than the forepole pad. Tr. 578-83, 601, 

618-22, 628-29, 645-50, 743~44, 761-62. 

We find this evidence concerning the design and function of 

Helen's Gullick Dobson shortwall shield system provides a substantial 

evidentiary basis supporting the judge's finding that Helen's conduct in 

relation to its violation of the standard did not constitute aggravated 

~/ The judge focused his determination of unwarrantable failure upon 

Helen's motive in not correcting the violative condition. The judge 

stated "[tlhe critical issue is not what caused the violative condition, 

but rather the operator's motive in not correcting the violative 

condition." 9 FMSHRC at 1106. Emery makes clear that in resolving 

unwarrantable failure questions, the operator's total conduct "in 

relation to a violation of the Act" must be examined. This examination 

includes the operato·r• s conduct in causing the violation, remedying it, 

or both, depending upon the circumstances of the case. 

1676 
conduct exceeding ~rdinary negligence under Emery. Although this 

substantial evidence is sufficient for affirming the judge's finding, we 

also note other factors we find supportive of the judge's finding of no 

unwarrantable failure. 

First, Helen officials testified that MSHA had not issued any 

citations or orders relative to the forepole pads not being in contact 

with the roof prior to the order in issue and the Secretary introduced 

no evidence of prior enforcement actions that would have put Helen on 

notice that forepole pad contact with the roof was required. In fact, 

Helen's evidence indicated that similar shields had been used for over 

10 years and no controversy concerning such gaps had ever arisen. 

9 FMSHRC at 1101, 1107; Tr. 566, 596, 681, 763. 

Second, pursuant to meetings between Helen and MSHA officials 

after the subject order was terminated the Secretary approved an amended 

roof control plan that requires 11 ••• whenever abnormal conditions are 

encountered, and two or more adjacent [forepole pad] tips Gannot be made 

to contact the roof, lagging should be installed." Exhibit GX-2, p. 15. 

The fact that even under the revised plan, not all forepole pads are 

required to be in contact with the roof can be viewed as supporting 

Helen's belief that the forepole pads did not have to contact the roof 

in order to maintain adequate roof support. 

Third, there is also substantial record support for the judge's 

finding that Helen's officials reasonably believed that installing 

cribbing over the forepole pads would expose a miner to a greater hazard 

of roof fall than allowing the forepole pads to remain in a non-contact 

status. Helen's witnesses testified clearly and unequivocally that they 

believed the chance of a miner being injured by falling roof debris was 

significantly higher if the miner was installing cribbing than if some 

of the forepole pads were not in contact with the roof for the duration 

o~ a pass by the continuous mining machine. Tr. 609-10, 626, 769, 793. 

We note that the reasonableness of Helen's belief is lent some support 

by the fact that although no miners were injured under Helen's practice 

of not installing cribbing between the forepole pads and the roof, in 

the period between the issuance of the order in question and the hearing 

before the judge, during which period Helen installed cribbing between 

the forepole pads and the roof, two miners were injured by falling roof 

debris while installing cribbing. Tr. 273, 608. 

1677 
In sum, in light of all the above, we conclude that substantial 

evidence supports the judge's finding of no unwarrantable failure and 

that the failure of Helen to install cribbing in the gaps did not 

constitute aggravated conduct exceeding ordinary negligence. 

Accordingly, we affirm the finding of the judge that Helen did not 

unwarrantably fail to comply with the requirements of section 75.200. 

Distribution 

Colleen A. Geraghty, Esq. 

Off ice of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Ronald B. Johnson; Esq. 

Volk, Frankovitch, Anetakis, 

Recht, Robertson & Hellersted 

3000 Boury Center 

Wheeling, West Virginia 26003 

Joyce 

rj'_~cl A. Doyle, ComrniSSi'ner ~ 

~mes A/'~astow~a, Co issioner //, ]L:r ·'7 . '.' . L_v ~·""' . _ l·lc-1\.) 

L. Clair Nelson, Commissioner 

Administrative Law Judge Avram Weisberger 

Federal Mine Safety and Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

1678 
ADMINISTRATIVE LAW JUDGE DECIS;IONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 2204i 

DEC 8 1988 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner,,. 

v. 

LINCOLN SAND AND GRAVEL 

co. I 

Respondent 

Docket No. LAKE 88-67-M 

A.C. No. 11-01151-05504 

Lincoln Sand & Gravel Co. 

DECISION 

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

Office of the Solicitor, Chicago, Illinois, 

for the Petitioner. 

Before: Judge Maurer 

STATEMENT OF THE CASE 

This proceeding concerns a proposal for assesa ent of civil 

penalty filed by the petitioner against the responde .. t 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 

$168 for three alleged violations of the mandatory safety 

standards found in 30 C.F.R. Part 56. 

The respondent ~ontested the violations and requested a 

hearing. Pursuant to notice, a hearing was convened in 

St. Louis, Missouri, on July 25, 198·8, and while the petitioner 

appeared, the respondent did not. In view of the respondent's 

failure to appear, the hearing proceeded without them. For 

reasons discussed later in this decision, respondent is held to 

be in default, and is deemed to have waived its opportunity to be 

further heard in this matter. 

ISSUE 

The issue presented in this case is whether the petitioner 

has established the violations cited, and, if so, the appropriate 

civil penalty that should be assessed for the violations. 

1679 
MSHA's Testimony and Evidence 

The following MSHA exhibits were received in evidence in 

this proceeding: 

1. A copy of the section 104(a) Citation 

issued by Inspector James R. Bagley on October 

2. A copy of the section 104(a) Citation 

issued by Inspector James R. Bagley on October 

3. A copy ·of the section 104Ca) Citation 

issued by Inspector James R. Bagley on October 

No. 

15' 

No. 

15, 

No. 

27, 

3057591, 

19 87. 

3-057592' 

19 87. 

3057593, 

1987. 

4. A copy of the proposed assessment ::'iata sheet. 

Inspector Bagley testified that he conducted a regular 

safety inspection of the mine, a sand and gravel operation, on 

October 15, 1987. 

During the course of this inspection, he observed a 3/8 

inch stacker conveyor belt that he wanted to inspect, so he 

climbed on the walkway that is attached to that conveyor. When 

he stepped on the walkway, it started bouncing. He looked 

underneath the walkway and saw that the first two support braces 

supporting the walkway were broken, which left only three support 

braces intact. He therefore felt that the access was not safe, 

and that this was a violation of 30 C.F.R. § 56.11001. The 

walkway is used by employees to perform maintenance and repair 

work on the conveyor itself, and it is the only means of access 

to that conveyor. 

A second condition discovered by the inspector was that the 

cover plates on several electrical junction boxes and switch 

boxes were not in place on board the dredge. With the covers 

missing, the einployees were exposed to 440-volt terminals inside 

the boxes located approximately 5-5 1/2 feet above the floor of 

the dredge in an active work and travel area. The inspector 

found this to be a "significant and substantial" violation of 30 

C.F.R. § 56.12032, which could reasonably be.expected to result 

in a fatal electrical shock or serious burns. 

During a compliance follow-up inspection on October 27, 

1987, Inspector Bagley issued a third citation because he found a 

transformer enclosure on the squth end of the repair shop which 

was not locked against unauthorized entry. The transformer 

inside the enclosure was energized to 2200 volts and the so 

energized terminals of the transformer were located approximately 

four feet above ground level. The inspector determined that this 

was a "significant and substantial" violation of 30 C.F.R. 

1680 
§ 56.12068 because the transformer was located in a normal work 

area. If anyone did contact the terminals on the transformer 

they would receive a fatal electrical shock or a serious burn. 

Respondent's Failure to Appear at the Hearing 

The record in this case indicates that a Notice of Hearing 

dated July 1, 1988, setting this case down for hearing in 

St. Louis, Missouri, on July 25, 1988, was received by the 

respondent on July 5, 1988. 

This hearing was originally noticed for 8:00 a.m. on that 

date. Subsequently, the week prior to the hearing in a phone 

call which I received from the respondent they requested a later 

hearing time and so I telephonically approved a change to 10:00 

a.m. on the same date in the same place. This message was also 

conveyed to the Secretary's counsel and the court reporter so the 

hearing effectively was changed to 10:00 a.m., July 25, 1988. At 

10:30 a.m., Mr. Miguel Carmona of the Solicitor's Office called 

the Lincoln Sand and Gravel Company in Lincoln, Illinois. He 

spoke to a Mr. Ash, who identified himself as the Office Manager 

for the Lincoln Sand and Gravel Company. Mr. Ash advised that 

they were not coming to the hearing. 

The hearing proceeded in the respondent's absence. The 

petitioner put in her case through the testimony of Inspector 

Bagley and moved for an Order af f irrn1ng the three citations ahd 

the proposed civil penalty. 

Under the circumstances in this record, I conclude and find 

that the respondent has waived its right to be heard further in 

this matter and that it is in default. Although Commission Rule 

29 C.F.R. § 2700.63 calls for the issuance of a Show Cause Order 

before a party is defaulted, given the facts of this case, set 

out above, I conclude that the issuance of such an order would be 

a futile gesture. 

Fact of Violation 

I conclude and find that the petitioner· has established the 

three alleged violations of 30 C.F.R. Part 56 set out in Citation 

Nos. 3057591, 3057592 and 3057593 by a preponderance of the 

evidence. The testimony of Inspector Bagley fully supports the 

citations which he issued and his special findings concerning the 

"S&S" nature of the violations. Therefore, the citations are 

affirmed as issued. 

1681 
Civil Penalty Assessment 

On the.basis of the foregoing findings and conclusions, and 

taking into account the requirements of section llOCi) of the 

Act, I conclude and find that the proposed civil penalty 

assessment of $168 is appropriate in this case. 

ORDER 

Respondent IS ORDERED to pay a civil penalty in the amount 

of $168 within thirty (30) days of the date of this decision, and 

upon receipt of that payment by MSHA, these proceedings are 

DISMISSED. 

urer 

rative Law Judge 

Distribution: 

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

of Labor, 230 s. Dearborn St., 8th Floor, Chicago, IL 60604 

(Certified Mail> 

Mr. William C. Bruner, President, Lincoln Sand & Gravel Co., P.O. 

Box 67, Lincoln, IL 62657 (Certified Mail) 

slk 

1682 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 8 1988 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. CENT 88-77-M 

: A.C. No. 13-01953-05504 

v. 

Portable Plant No. 1 Mine 

MARION COUNTY LIMESTONE 

COMP ANY, LTD. , 

Respondent 

Appearances: 

Before: 

DECISION 

Margaret A. Miller, Esq., Office of the 

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

Colorado, for the Petitioner; 

James H. Dingeman, President, Marion County 

Limestone Co., Pella, Iowa, for the Respondent. 

Judge Koutras 

Statement of the Case 

This proceeding concerns proposals for assessment of 

civil penalties filed by the petitioner against the respondent 

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

Health Act of 1977, 30 U.S.C. § 820(a). The petitioner seeks 

a civil penalty assessment of $500 for an alleged violation of 

mandatory safety standard 30 C.F.R. § 56.15005; an assessment 

of $400 for an alleged violation of safety standard 30 C.F.R. 

§ 56.16002(a)(l); and an assessment of $500 for an alleged 

violation of safety standard 30 C.F.R. § 56.3400. All of the 

alleged violations were cited in a combined section 107(a) 

Imminent Danger Order and section 104(a) "S&S" Citation 

No. 3055739, served on the respondent by an MSHA inspector on 

October 29, 1987. 

The respondent filed a timely answer and a hearing was 

held in Des Moines, Iowa. The parties waived the filing of 

any written posthearing arguments, and I have considered their 

oral arguments made on the record during the course of the 

hearing in my adjudication of this matter. 

1683 
Issues 

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

conditions or practices cited by the inspector constitute 

violations of the cited mandatory safety standards, (2) the 

appropriate civil penalties to be assessed for the violations, 

taking into account the statutory civil penalty criteria found 

in section llO(i) of the Act; and (3) whether the violations 

were "significant and substantial." Additional issues raised 

by the parties are identified and disposed of in the course of 

this decision. 

Applicable Statutory and Regulatory Provisions 

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

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

2. Section llO(i) of the 1977 Act, 30 u.s.c. § 820(i). 

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

Stipulations 

The parties stipulated to the following (Joint Exhibit 

No. 1) : 

1. Respondent is engaged in crushing and 

selling of limestone in the United States, and 

its mining operations affect interstate 

commerce. 

2. Respondent is the owner and operator 

of the Portable Plant No. 1, MSHA ID. 

No. L 09154. 

3. Respondent is subject to the jurisdiction of the Federal Mine Safety and Health Act 

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

4. The Administrative Law Judge has jurisdiction in this matter. 

5. The subject order/citation was properly 

served by a duly authorized representative of 

the Secretary upon an agent of the respondent on 

the date and place stated therein, and may be 

1684 
admitted into evidence for the purpose of establishing its issuance, and not for the truthfulness or relevancy of any statements asserted 

therein. 

6. The exhibits to be offered by the 

respondent and the petitioner are stipulated to 

be authentic but no stipulation is made as to 

their relevance or the truth of the matters 

asserted therein. 

7. The respondent demonstrated good faith 

in abating the violations. 

8. Respondent is a medium-size mine operator with 13,607 tons of production in 1987. 

9. The certified copy of the MSHA Assessed 

Violations History, marked as Exhibit P-1, 

accurately reflects the history of the mine for 

the two years prior to the date of the 

order/citation. 

Discussion 

The combined section 107(a) Imminent Danger Order and 

section 104(a) "S&S" Citation No. 3055739, issued on 

October 29, 1987, by Inspector Dennis A. Heater, states as 

follows: 

The crusher operator was observed standing 

with one foot on the vibrating jaw crusher with 

the jaw running. The operator was attempting 

to break an oversized rock which was lodged in 

the jaw opening with a sledge ham~er. If the 

operator should slip or lose his balance he 

could fall into the crusher jaws. The operator 

was directly above the jaw opening. The opening measured approximately 4 foot wide and 

could accommodate rocks approximately· 2 foot in 

diameter. The crusher reduced rock to approximately 5 inches diameter. This order is to 

stop this practice immediately. 

The employee did not have the aid of a 

safety belt or line (56.15005). Loose material 

on the pan feeder above him could fall and 

st~ike the operator while in this area 

(56.16002, 1) (sic). 

1685 
. Tbe operator was placing himself in a ~ery 

bad position (56.3400). This jaw crusher can 

only be shut down from a lower level. The 

practice now established, until the feasibility 

of obtaining a back hoe or secondary breaking 

hammer can be determined, will be to shut the 

pan feeder and the jaw crusher down, trim any 

loose material from the edge of the pan feeder 

and fill in the jaw crusher opening with this 

material. The operator will then. attempt to 

break the oversize rock with a sledge hammer or 

remove it. with the aid of a chain and back hoe. 

The order/citation was terminated by Inspector Heater on 

November 10, 1987, and the termination notice states as 

follows: 

The company has established a written 

policy along with the verbal policy issued at 

the time of the order. The written policy 

explains procedure for working around the jaw 

crushers not at all while the crusher is in 

operation-.~If an object becomes entangled in 

the jaw crtisher, the jaw is to be shut down and 

then the object is to be removed. Letter 

attached. 

Petitioner's Testimony and Evidence 

MSHA Inspector D~nnis A. Heater testified as to his 

experience and training, and he confirmed that he issued the 

combined imminent danger order and citation during the course 

of a regular inspection of the respondent's limestone mining 

operation. He e.Xplained the mining and crushing procedures 

performed at the mine and plant. He confirmed that he issued 

the order and citation after observing quarry foreman Clint 

Geery standing on, and straddling the jaw crusher hopper using 

a sledge hammer to break up a rock which had lodged at the 

bottom of the hopper at the opening of the.jaw crusher. The 

crusher was in operation, and Mr. Geery had one foot on the 

vibrating device. The pan feeder, which dumped rock materials 

into the jaw crusher hopper, was located approximately 3 feet 

above the hopper opening where Mr. Geery was standin~, and the 

pan feeder was shut down and was not in operation. 

Mr. Heater confirmed that Mr. Geery was not wearing a 

safety belt or line and was not "tied off" while standing over 

the hopper opening. In view of the fact that the crusher was 

1686 
in operation and i-1.r. Geery' s foot was resting on the vibrating 

machine, Mr. Heater was concerned that Mr. Geery would fall 

into the crusher if he slipped while attempting to break up 

the rock with the sledge hammer. Mr. Heater was also concerned 

that the unconsolidated rock materials in the pan feeder could 

have moved and struck Mr. Gerry, knocking him into the crusher 

opening over which he was standing. 

Mr. Heater believed that it was highly likely that a 

fatal accident would have occurred had Mr. Geery continued the 

practice of attempting to break up or free the rock while 

standing in such a precarious position. Mr. Heater stated 

that in order to preclude distracting Mr. Geery, he did not 

yell at him to come down. He simply placed his hand on 

Mr. Geery's shoulder and moved him back and away, from his 

position on the crusher hopper. 

Mr. Heater confirmed that he discussed the matter with 

Mr. Geery, and that Mr. Geery informed him that he was 

attempting to break up the rock because it would not feed 

through the crusher, and that the method he was using was the 

only available practical method without shutting down the 

crusher and causing delays in production. Mr. Geery admitted 

that he had on previous occasions used the same method in 

attempting to break up rocks which became lodged in the jaw 

crusher opening. 

Mr. Heater confirmed that he issued the imminent danger 

order in order to prevent Mr. Geery from continuing the practice of standing on an operating crusher opening while attempting to break up or free rock which was stuck over the jaw 

crushing opening without wearing a safety belt or being tied 

off to prevent him from falling into the jaw crusher opening 

located approximately 4 to 5 feet below where Mr. Geery was 

standing. 

Mr. Heater stated that he cited the respondent with a 

violation of section 56.15005, because Mr. Geery was not wearing a safety belt or line and was not otherwise tied off to 

prevent him from falling into the crusher.. Mr. Heater 

believed that it was highly likely that Mr. Geery could have 

slipped and fallen into the running and vibrating crusher 

because he was not tied off or wearing a safety belt. 

Mr. Heater stated that he cited the respondent with a 

violation of section 56.16002(a)(l), because the unconsolidated rock materials which were on the pan feeder presented a 

hazard to Mr. Geery at the location where he was standing over 

the crusher hopper. In the event a truck driver inadvertently 

1687 
dumped a load of rock onto the pan feeder while Mr. Geery was 

attempting to dislodge the rock in the crusher, the material 

on the pan feeder could have moved and dropped into the 

crusher striking Mr. Geery or knocking him into the crusher. 

Mr. Heater believed that Mr. Geery was exposed to the hazard 

of caving or sliding materials from the pan feeder, and that 

his exposure to this hazard while he was standing on the 

crusher while it was running would reasonably likely result in 

serious injury or death if he were to fall in the crusher. 

Mr. Heater confirmed that if Mr. Geery had fallen into the 

operating crusher, he would be unable to get out, and that the 

cut-off switch was in an area below the crusher and not 

readily accessible. 

Mr. Heater stated that he cited the respondent with a 

violation of section 56.3400, because Mr. Geery placed himself 

in a hazardous position while att~nptin~ to perform secondary 

breakage of the rock with a sledge hammer. M~. Heater 

believed that it was highly likely that an accident would have 

occurred and that Mr. Geery would have suffered fatal injuries 

had he continued the practice. Mr. Heater agreed that no one 

other than Mr. Geery was exposed to any hazard or injury 

because of the practice in question. 

Mr. Heater confirrned that he discussed the order and citations with the respondent's president J·ames OinJeman at the 

time of his inspection, and that Mr. Dingeman agreed that 

Mr. Geery should not have attempted to break or dislodge the 

rock while standing on the oper~ting crusher. Mr. Dingeman 

immediately issued verbal instructions to ~r. Geery not to 

repeat the practice, and he subsequently issued a written 

notice to all employees instructing them not to stand on top 

of the crusher while it was in operation, and to shut it down 

before attempting to remove any material entangled in the 

crusher. Mr. Heater also confirmed that he had no reason or 

information to believe that Mr. Dingeman was aware of the fact 

that Mr. Geery had engaged in the practice in question. 

Mr. Heater also stated that he considered Mr. Dingeman to be a 

conscientious mine operator who was concerned for safety (Tr. 

7-35). 

On cross-examination, Mr. Heater stated that the materials 

in the pan feeder were approximately 3 feet above, and 4 feet 

away from where Mr. Geery was standing on the crusher. 

Mr. Heater agreed that any material falling from the pan feeder 

would not likely cause fatal injuries to Mr. Geery if they 

struck him, and that they were only a contributing factor to 

the hazard presented. 

1688 
Mr. Heater confirmed that although Mr. Dingeman had previously engaged in the sand and gravel business, his limestone 

operation was rel4tively new and that he had only been in this 

business for approximately 3 years (Tr. 35-47). 

Respondent's Testimony and Evidence 

James H. Dingeman, respondent's president, confirmed that 

he does not dispute the fact that Mr. Geery placed himself in 

a hazardous position on the crusher as described by Inspector 

Heater. Mr. Dingeman also confirmed that he does not dispute 

the fact that the violations occurred as stated in the 

order/citation issued by Mr. Heater. Mr. Dingeman asserted 

that he filed his contest because of his belief that the 

proposed civil penalty assessments were excessive, and his 

belief that while it was possible that Mr. Geery could have 

fallen into the crusher hopper, it was not highly likely that 

he would have fallen into the crusher jaws because they were 

blocked by the large rock which was lodged at the bottom of 

the cone-shaped hopper. 

Mr. Ding~nan asserted that he is concerned about the 

safety of his employees and has always attempted to operate an 

accident-free mining operation. He confirmed that he had previously installed a chain across the crusher entrance location 

to prevent employees from inadvertently walking or falling 

into the crusher, and that prior to the issuance of the order 

and citation, he believed that breaking or dislodging rocks 

from a crusher with a sledge hammer was an acceptable 

industry-wide practice. He had never received any information 

that such a practice had ever resulted in accider1ts or 

injuries. 

Mr. Dingeman stated that in order to gain access to the 

crusher, Mr. Geery apparently unhooked the chain which guarded 

that location in order to position himself on the crusher. In 

addition to issuing his written work policy instructions 

requiring the shutting down of the crusher before any attempts 

are made to break or dislodge rocks, Mr. Din3ernan stated that 

he relocated the crusher shut-down switch closer to the crusher 

so that it would be readily accessible to all employees performing this work. These corrective actions were taken by 

Mr. Dingeman after the violations were issued (Tr. 47-52). 

~indings and Conclusions 

The respondent does not dispute the fact that the three 

violations occurred as stated by the inspector in the contested 

order/citation which was issued in this case. I take note of 

1689 
the fact that all of the violations were the result of the 

inspector.' s observations of quarry foreman Clint Geery placing 

himself in a precarious and hazardous position on a vibrating 

hopper of a jaw crusher while it was in operation. Mr. Geery 

was attempting to break up or dislodge a large rock which had 

lodged in the jaw crusher opening, and he was not wearing a 

safety belt or otherwise tied off with a safety line to prevent 

him from falling into the crusher. The inspector concluded 

that in the circumstances, the foreman was in danger of falling 

into the crusher. 

30 C.F.R. § 56.15005, provides as follows: l 

Safety belts and lines. 

Safety belts and lines shall be worn when 

persons work where there is danger of falling; 

a second person shall tend the lifeline when 

bins, tanks, or other dangerous areas are 

entered. 

30 C.F.R. § 56.16002(a)(l), provides as follows: 

Bins, hoppers, silos, tanks, and surge piles. 

(a) Bins, hoppers, silos, tanks, and 

surge piles, where loose unconsolidated materials are stored, handled or transferred shall 

be -- (1) equipped with mechanical devices or 

other effective means of handling materials so 

that during normal operations persons are not 

required to enter or work where they are 

exposed to entrapment by the caving or sliding 

of materials. 

30 C.F.R. § 56.3400, provides as follows: 

Secondary breakage. 

Prior to secondary breakage operations, 

material to be broken, other than hanging 

material, shall be positioned or blocked to 

prevent movement which would endanger persons 

in the work area. Secondary breakage shall be 

performed from a location which would not 

expose persons to danger. 

In the answer filed in this case, Mr. Dingeman asserts 

that the foreman in question was a knowledgeable individual 

1690 
with many years of accident-free quarrying experience, and 

that "if he was highly likely to fall into the crusher he 

would have known that" and "would not put himself in jeopardy." 

Although the quarry foreman did not testify in this case, I 

find no reason for discounting Mr. Dingeman's assessment of 

his work skills. However, the Commission has previously considered and rejected such an argument in at least two cases 

dealing with the same safety belt and safety line standard 

which was cited in this case. See: Kerr-McGee Corp., 

3 FMSHRC 2496, 2497 (November 1981); Great Western Electric 

Company, 5 FMSHRC 840 (May 1983). 

In the Great Western Electric Company case, the Commission 

stated as follows at 5 FMSHRC 842: 

Great Western argues that the skill of a 

miner is a relevant factor in determining 

whether there is a danger of falling because 

the miner's skill defines the scope of the 

hazard presented. We find that such a subjective approach ignores the inherent vagaries 

of human behavior. Even a skilled employee may 

suffer a lapse of attentiveness, ~ither from 

fatigue or environmental distractions, which 

could result in a fall. The specific purpose 

of 30 C.F.R. § 57.15-5 is the prevention of 

dangerous falls. Kerr-McGee Corp., 3 FMSHRC 

2496, 2497 (November 1981). By adopting an 

objective interpretation of' the standard and 

requiring a positive means of protection 

whenever a danger of falling exists, even a 

skilled miner is protected from injury. We 

believe that this approach reflects the proper 

interpretation and application of this safety 

standard. 

That is not to say that the miner's skill 

is totally immaterial. The skill of a miner 

may be a relevant factor in determining an 

appropriate civil penalty for a violation. In 

making work assignments and giving instructions 

to its employees, the amount of reliance which 

an operator places on the relative skills of 

its employees may be an indication of the operator's negligence concerning the violation. A 

miner's skill may also influence the probability of the occurrence of the event against 

which a standard is d1rected, ana·so affect 

that element of gravity. 

1691 
It is well-settled that under the Act, an operator is 

liable without fault for violations of any mandatory standards 

committed by its employees. See: Allied Products Co. v. 

FMSHRC, 666 F.2d 809 {5th Cir-:-I'982); American Materials 

· Corp. , 4 FMSHRC 415 {Mar ch 19 8 2) ; Kerr-McGee Corp. , 3 FMSHRC 

2496 {November 1981); El Paso Rock Quarries, Inc., 3 FMSHRC 35 

{January 1981); Ace Drilling Company, 4 FMSHRC {April 1980). 

In addition to the respondent's candid admissions that 

each of the violations occurred as stated in the order/citation 

issued by the inspector in this case, I conclude and find that 

the testimony·and evidence adduced by the petitioner supports 

and establishes each of the violations in question. I agree 

with the inspector's conclusion that the position of the foreman on the vibrating and operating crusher hopper without the 

use of a safety belt or line exposed him to a hazard of falling 

into the machine. I also agree with the inspector's conclusion 

that by positioning himself in such a manner on the crusher 

hopper, the foreman exposed himself to possible entrapment by 

the caving or sliding of rock materials from the pan feeder, 

and that by performing secondary breakage by means of a sledge 

hammer from a hazardous position without being secured from a 

fall, the foreman exposed himself to danger. Under all of 

these circumstances, the violations, and the combined 

order/citation issued by the inspector ARE AFFIRMED. 

Significant and Substantial Violations 

A "significant and substantial" violation is described in 

section 104{d){l) of the Mine Act as a violation "of such 

nature as could significantly and substantially contribute to 

the cause and effect of a coal or other mine safety or health 

hazard." 30 C.F.R. § 814{d){l). A violation is properly· 

designated significant and substantial "if, based upon the 

particular facts surrounding the violation there exists a 

reasonable likelihood that the hazard contributed to will 

result in an injury or illness of a reasonably serious nature." 

Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 {April 

1981). 

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

Commission explained.its interpretation of the term "significant and substantial" as follows: 

In order to establish that a violation of 

a 1nandatory safety standard is significant and 

substantial under National Gypsum the Secretary 

1692 
of Labor must prove: Cl) the underlying violation. of a mandatory safety standard; (2) a discrete safety hazard--that is, a measure of 

danger to saf aty-contributed to by the violation; (3) a reasonable likelihood that the 

hazard contributed to will result in an injury; 

and (4) a reasonable likelihood that the injury 

in question will be of a reasonably serious 

nature. 

In Unite.d States Steel Mining Company, Inc., 7 FMSHRC 

1125, 1129, the Commission stated further as follows: 

We have explained further that the third 

element of the Mathias 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 FM.SHRC 1834, 1836 (August 

1984). We have emphasized that, in accordance 

with the language of section 104Cd)(l), it is 

the contribution of a violation to the cause 

and effect of a haza€d that must be significant 

and substantial. U.S. Steel Mining Company, 

Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. 

S"t'eel Mining Company, Inc., 6 FMSHRC 1573, 

1574-75 (July 1984). 

The ~uestion of whether any particular violation is significant and substantial must be based on the particular facts 

surrounding the violation, including the nature of the mine 

involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498 

(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007 

(December 19 8 7) . 

With regard to the violation of 30 C.F.R. § 56.15005, I 

conclude and £ind that the foreman's unsecured position on the 

vibrating and operating crusher presented a danger of his fall-

. ing into the crusher. In the event of a fall, I believe it 

would be reasonably likely that the foreman would have suffered 

injuries of a reasonably serious nature. I agree with the 

inspector's "significant and substantial" finding,_ and IT IS 

AFFIRM.ED. 

With regard to the violation of JO C.F.R. § 56.16002(a)(l), 

I agree with the inspector's "significa~t and substantial" finding. By placing himself in a hazardous position on the crusher 

bopper in question, the foreman exposed himself to injury from 

moving or falling rock materials from the pan feeder. Although 

1693 
it is possible that any materials moving or falling from the pan 

feeder may not in and of themselves have inflicted fatal 

injuries, I believe one may reasonably conclude that such a fall 

or movement of materials could have contributed to the hazard 

presented. Any sudden or unexpected movement or fall of these 

materials could have knocked the foreman into the crusher hopper 

from his unsecured position, and if this occurred, the weight of 

the materials would likely have trapped the foreman inside the 

moving crusher hopper and prevented his timely exit. For all of 

these reasons, I also agree with the inspector's "significant 

and substantial" finding with respect to the violation of 

30 C.F.R. § 56.3400. Accordingly, the inspector's "S&S" findings as to both of these violations ARE AFFIRMED. 

Size of Business and Effect of Civil Penalty Assessments on 

the Respondent's Ability to Continue in Business 

The parties stipulated that the respondent is a medium 

size mine operator, and that the 1987 annual production for 

the mine was 13,607 tons of limestone. Mr. Dingeman stated 

that he employs five people, and notwithstanding the stipulation, he believes that his mining operation is a relatively 

small one. I agree, and I conclude and find that the evidence 

here supports a conclusion that the respondent is a small mine 

operator. 

Mr. Dingeman stated that while the payment of the proposed 

civil penalty assessments will not put him out of business, he 

is concerned about the amount of the penalty, particularly 

since the three separate violations ~hich were "specially 

assessed" by MSHA were the tesult of only one incident involving Mr. Geery's attempts to break or dislodge the rock from the 

crusher while not wearing a safety belt or otherwise securing 

or protecting himself from a fall into the vibrating and operating machine. I conclude and find that the penalties assessed 

by me will not adversely affect the respondent's ability to 

continue in business. 

Good Faith Compliance 

The parties stipulated that the respondent demonstrated 

good faith in abating the violations. The record establishes 

that the violations were immediately abated when the inspect.or 

removed Mr. Geery from his loc~tion on the crusher. Further, 

·as soon as Mr.· Dingeman was informed of the practice, he 

immediately verbally instructed Mr. Geery not to repeat the 

practice, and subsequently issued written instructions to all 

of his employees as to the safe procedures to be followed in 

1694 
the future, and moved the stop-start switch closer to the location of tne crusher. Under the circumstances, I conclude and 

find that the respondent exercised rapid good faith compliance 

in abating the violative practice and conditions in question, 

and I have taken this into consideration in this case. 

History of Prior Violations 

An MSHA computer print-out of the respondent's prior history of violations reflects that the respondent has received 

no citations or assessed violations prior to February 19, 1987. 

The information presented reflects that for the period 

February 19, 1987 to October 28, 1987, the respondent ·was 

assessed for five violations for which it paid civil penalty 

assessments totalling $110. None of these violations involved 

any of the mandatory standards cited in this case. Under the 

circumstances, I conclude that the respondent has a good compliance record, and I have taken this into consideration in 

this case. I have also taken into consideration the inspector's testimony that the respondent is a conscientious and 

safety-conscious mine operator. 

Gravity 

On the basis of the unrebutted testimony of the inspector, and including my "significant and substantial" findings 

and conclusions, I conclude and find that all of the violations which have been affirmed in this case were serious. 

Negligence 

The evidence in this case establishes that the violations 

were the direct result of the conduct of the quarry foreman 

who jeopardized only his own safety by placing himself in a 

hazardous position on the crusher hopper while it was in operation. The inspector's unrebutted testimony reflects that the 

foreman admitted that he had engaged in this practice over a 

period of 2 years. The inspector was of the opinion that 

Mr. Dingeman, as the operator and owner of the quarry, was a 

conscientious and safety conscious mine operator, and there is 

no evidence that he had aver observed t:he foreman on an operating crusher, or that he had any kno~ledge of the apparent 

practice engaged in by the foreman. 

Although Mr. Dingeman characterized the foreman as 

"intelligent, knowledgeable, and experienced," I have difficulty understanding why such an individual would place himself 

in such a precarious position on an operating crusher hopper 

without securing himself from a po~sible fall into the machine. 

1695 
Mr. Dingeman testified that he had previously installed a 

chain across the crusher access to preclude individuals from 

inadvertently walking into or falling into the crusher, and 

that the foreman apparently unhooked the chain guarding the 

crusher location in order to position himself over it while 

attempting to dislodge the large rock with a sledge hammer. 

Although Mr. Dingeman believed that the breaking or dislodging 

of a rock with a hammer was an acceptable industry-wide practice, and that he never received any information that such a 

practice had ever resulted in accidents or injuries, I find 

great difficulty in accepting any notion that engaging in such 

a practice while the crusher is in operation without the benefit of a safety belt or line is acceptable, or the industry 

norm. 

The record and pleadings in this case reflect that 

Inspector Heater made a finding of "high negligence" with 

respect to the violation of section 56.15005, and that similar 

negligence findings were made with respect to the violations 

of sections 56.16002(a)(l) and 56.3400 when the order/citation 

was subsequently modified by another inspector. Based on the 

evidence and testimony adduced at the hearing, I concur in 

those findings. 

I conclude and find that an experienced and knowledgeable 

mine foreman should have recognized the fact that he was placing himself in a precarious position by attempting to break or 

dislodge a rock from an operating jaw crusher without first 

shutting down the machine or securing himself with a safety 

belt or line. Insofar as the foreman's conduct is concerned, 

I conclude and find that it clearly supports a finding of 

"high negligence" with respect to each of the violations which 

are a direct result of his action in placing himself in such a 

hazardous position. 

It is well settled that the negligence of a mine foreman 

may be imouted to the operator. see: Southern Ohio Coal 

Company, 3 FMSHRC 1459 (August 1982); Nacco Mining Co., 

3 FMSHRC 848 (April 1981). However, on the fac~s of this 

case, the evidence establishes that Mr. Dingeman had not previously observed the foreman on an operating crusher and had 

no knowledge of the practice ad'liitted to by the foreman. 

Further, the evidence established that Mr. Dingeman had previously taken steps to prevent anyone fro,n inadvertently walking or falling into the crusher by l~stalling a chain across 

the access to the crusher, and the inspector believed that 

Mr. Dingeman was a conscientious and safety-minded-mine operator. Under these circumsta!lces, I believe it is appropriate 

1696 
in this case to take these factors in consideration in mitigating any civil penalties which should be assessed against 

the respondent for the violations in question. See; Allied 

Products Company v. FMSHRC, supra; Nacco.Mining C"O:", 3 FMSHRC 

848, 850 (April 1981); Marshfield Sand & Gravel, Inc., 

2 FMSHRC 139l(June 1980); Old Dominion Power Co., 6 FMSHRC 

1886 (August 1981). I have also considered the fact that the 

three vioiations which have been affirmed as separate violations of each of the cited mandatory standards, are interrelated and arose out of one single act of the foreman. 

Civil Penalty Assessments 

On the basis of the foregoing findings and conclusions, 

and taking to account the requirements .of section llO(i) of 

the Act. I conclude and find that the following civil penalty 

assessments for the violations which have been affirmed are 

reasonable and appropriate: 

Order/Citation No. 

3055739 

3055739 

3055739 

Date 

10/29/87 

10/29/87 

10/29/87 

30 C.F.R. Section 

56.15005 

56.16002(a){l) 

56.3400 

ORDER 

Assessment 

$350 

$175 

$200 

The respondent IS ORDERED to pay civil penalty assessments in the amounts shown above within thirty C30) days of 

the date of this decision. Upon receipt of payment by the 

petitioner, this matter is dismissed. 

Distribution: 

//e~Koutras H 4,~ Ad1ninistrative Law Judge 

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

Department of Labor, 1585 Federal Office Building, 1961 Stout 

Street, Denver, CO 80294 {Certified Mail) 

Mr. James H. Dingeman, President, Marion County Limestone Co., 

P.O. Box 25, Pella, IA 50219 {Certified Mail) 

/f b 

1697 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 121988 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

AOMINISTRATION (MSHA) , 

ON BEHALF OF 

PATRICK STANFIELD, 

Complainant 

v. 

NATIONAL MINES CORPORATION, 

Respondent 

DISCRIMINATION PROCEEDING 

Docket No. KENT 88-171-D 

MSHA Case No. BARB CD 88-25 

MSHA Case No. BARB CD 88~28 

Stinson No. 7 Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Koutras 

Statement of the Case 

This proceeding concerns a complaint of alleged discrimination filed by the Secretary of Labor on behalf of the 

complainant Patrick Stanfield against the respondent pursuant 

to section 105(c) (2) of the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. § 801 et seq. The complaint alleges that the 

respondent discriminated against the complainant by suspending 

him for lodging safety complaints and by forcing him to take 

previously unscheduled accrued annual leave after interrogating 

him about his complaints. The Se6retary amended her complaint 

and proposed a civil penalty assessment against the respondent 

in the amount of $2,500, for the alleged violation. 

The respondent filed a timely answer denying any discrimination and the matter was scheduled for a·hearing in Pikeville, 

Kentucky, during December 13-14, 1988. The hearing was cancelled 

after the Secretary's counsel advised me the parties agreed to 

settle the dispute. The parties have now filed a Joint Motion 

seeking approval of the proposed settlement. The relevant terms 

of the settlement are as follows: 

., r" o 1698
1. National Mines Corporation agrees to 

pay Mr. Stanfield gross wages for the 12 working 

day suspension imposed by National Mines 

Corporation. Such wages amount to gross pay of 

$1,618.81. Mr. Stanfield was paid on a monthly 

salary basis as a foreman. 

2. The records maintained in Mr. Stanfield's 

personnel and company file shall be completely 

expunged of all information relating to the 12 day 

suspension. 

3. In the event that National Mines 

Corporation is contacted by a prospective employer 

of Mr. Stanfield at any time in the future, 

National Mines Corporation agrees not to give 

Mr. Stanfield a negative or unfavorable reference 

regarding Mr. Stanfield's job performance while 

employed by National Mines Corporation. National 

Mines Corporation will when contacted by a prospective employer of Stanfield only give such 

prospective employer Mr. Stanfield's job title(s) 

and' dates of employment. 

4. In light of the difficulties and 

contingencies necessarily attendant to the litigation of the subject case together with the 

complex factual disputes requiring many witnesses 

and the nature of the economic loss to the complainant, which by the terms of this settlement 

·shall be recompensed, the parties agree that the 

proposed settlement in this case is appropriate 

under the circumstances. 

5. In consideration of the willingness of 

National Mines Corporation to resolve the claim 

quickly by payment of the back wages due to the 

complainant, the Secretary agrees to modify her 

requested civil penalty from the proposed amount 

of $2500.00 to a reduced assessment of $300.00. 

Since Section 105(c) of the Act is uniquely 

designed to benefit the public interest by 

restitution to those affected by violation of 

Section 105(c) of the Act, the Secr~tary believes 

that such purposes are fulfilled in this case by 

the settlement terms. 

1699 
6. It is·· the parties' belief that approval of 

this settlement is in the public interest and will 

further the intent and purpose of the Federal Mine 

Safety and Health Act of 1977. 

Conclusion 

After careful review and consideration of the settlement 

terms and conditions executed by the p~rties in this proceeding, 

I conclude and find that it reflects a reasonable resolution 

of the complaint filed by MSHA on Mr. Stanfield's behalf. Since 

it seems clear to me that all parties are in accord with the 

agreed upon disposition of the complaint, I see no reason why 

it should not be approved. I also find no reason for not 

approving the reduction of the civil penalty assessment as proposed by the Secretary. 

ORDER 

The Joint Motion IS GRANTED, and the settlement IS 

APPROVED. The parties ARE ORDERED to fully comply forthwith 

with the terms of the settlement. The respondent IS FURTHER 

ORDERED to pay to the Secretary a civil penalty assessment of 

$300 for the violation in question, and payment is to be made 

within thirty (30) days of the date of this decision and ordero 

Upon receipt of payment by the Secretary, and full compliance 

with the terms of the settlement, this matter is dismissed. 

Distribution: 

/~ 

U_.d~ Ko~tras Administrative Law Judge 

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

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

37215 (Certified Mail) 

Charles Baird, Esq., 415 Second Street, Post Office Box 351, 

Pikeville~ KY 41501 (Certified Mail) 

Tony Oppegard, Esq., Appalachian Research & Defense Fund of 

Kentucky, .Inc.,. P.O. Box 360, Hazard, KY 40701 (Certified Mail) ... 

/fb 

1700 
FEDERAL MINE. SAFETY AND .HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE lAW JUDGES 

JAMES D. GRIMES, 

Complainant 

v. 

2 SKYLINE. 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH. VIRGINIA 22o4i 

DEC 121988 

. . 

DISCRIMINATION PROCEEDING 

Docket No. WEVA 88-218-D 

MORG CD 88-08 

CONSOLIDATION COAL COMPANY 

Respondent 

. . Georgetown Prep Plant 

ORDER OF DISMISSAL 

Before: Judge Fauver 

Pursuant to a settlement approved when this case was called 

for hearing on October 4, 1988, the above case is DISMISSED. 

~~fav~ William Fauver 

Administrative Law Judge 

Distribution: 

Thomas M. Myers, Esq., General Counsel, UMWA, District 6, 56000 

Dilles Bottom, Shadyside, OH 43947 (Certified Mail) 

Michael R. Peelish, Esq., Quarto Mining Company, 1800 Washington 

Road, Pittsburgh, PA 15241 (Certified Mail) 

1701 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION . 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

December 16, 1988 · 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA)~ 

Petitioner 

Docket No. WEVA 88-243 

A. C. No. 46-01318-03818 

v. Robinson Run No. 95 Mine 

CONSOLIDATION COAL COMPANY, 

Respondent 

DECISION 

Appearances: Jo s e p h T • C r aw f or d , Es q • , Off i c e of t he 

Solicitor, U. S. Depart~ent of Labor, 

Philadelphia, Pennsylvania, for Petitioner. 

Michael R. Peelish, Esq., Consolidation Coal 

Company, Pittsburgh, Pennsylvania, for Respondent~ 

Before: Judge Merlin 

This case is a petition for the assessment of civil 

penalties filed by the Secretary of Labor against Consolidation 

Coal Company for three alleg-ed violations. 

Citation No. 2897188 

This citation was issued fo~ a failure to report to MSHA an 

injury which was originally believed to have a reasonable poten- tial to cause death. 30 C.F.R. § 50.2(h){2) and 30 C.F.R. 

§ 50.10. At the hearing the Solicitor advised that MSHA was 

vacating the citation based upon a report of the ambulance attendant. Therefore, I dismissed the penalty petition insofar as 

this item was concerned. I advised both counsel, and particularly the Solicitor who has the burden of proving a violation, that 

if a case such as this.goes to hearing, appropriate medical 

evidence must be presented. 

Order No. 2897193 

The subject order i s s u e d u n de·r sect i on 1O4 ( d ) { 2 ) of the Act , 30 U.S.C. § 814(d)(2) recites as follows: 

Welding operatiDns were being performed outside of· the Robinson Run shop on a lowboy 

haulage car and the area was not shielded. 

1702 
On 02-03-88 a 104 d-2 order no. 2897259 

was issued in the Robinson Run shop for 

welding operations being performed and the 

area not shielded, therefore this order will 

not be terminated untill [sic] all persons required to performe [sic] welding operations 

are trained in the use of shields. 

Jeff Haskins, Maintenance Foreman 

Note! The work area inside the shop was 

shielded. 

30 C.F.R. § 77.408 provides: 

Welding operations shall be shielded and 

the area shall be well-ventilated. 

The essential facts are not in dispute. Jim Flanagan, an 

hourly employee, was welding on a lowboy haulage car in the doorway to the shop (Tr. 23, 50, 83). The lowboy was half in and 

half out of the shop (Tr. 26, 86). A shield had been placed 

around that portion of the lowboy facing the inside of the shop 

(Tr. 25, ·27, 35, 66). However, no shielding was placed on the 

side of the welding operation facing out into the yard (Tr. 25, 

27, 35, Operator's Exhibits ~os. 3-8). ~arious employees of the 

operator could be in the general area and use a door to the shop 

which was located about 20 to 25 feet from the welding operation 

(Tr. 29-30, 33, 35-36). 

7he mandatory standard is clear. Welding operations must be shiel~ed. Since the standard has no exceptions, the shielding 

requirement must be held to apply to all sides. Therefore, I 

conclude a violation existed. I cannot accept the operator's 

argume.nt that distance constitutes a shield. There is no basis 

to read such a caveat into the standard. To do so would introdute an element of. uncertainty into the standard, because a determination would have to be made in every situation as to how much 

distance con~titutes a shield and under what· circumstances. So 

too, the welder's body cannot be accepted as a shield, because he 

can change his position at any moment. 

The violation was cited in a 104{d){2) order. The Commission had held that the special findings in such an order may be 

challenged in a penalty proceeding. Quinland Coals, Inc., 

9 FMSHRC 1614 (September 1987). The inspector stated the operator was guilty of unwarrantable failure beca~se the mine foreman 

who was in the ~hop area should have known of the violation (Tr. 

38, 52-53). The inspector later· testified that the mine foreman 

did not tell the welder to erect shielding on the outside (Tr. 

37, 54). 

1703 
The Co~mission has held that unwarrantable failure means 

aggravated .conduct, constituting more than ordinary negligence. 

Emery Mining Corporation, 9 FMSHRC 1997 (Dec. 1987); Youghiogheny 

and Ohio Coal Company, 9 FMSHRC 2007 (Dec. 1987); Southern Ohio 

Coal Company, 10 FMSHRC 138 (Feb. 1988); Q~inland Coals, Inc., 

10 FMSHRC 705 (June 1988). The inspector's testimony falls far 

short of establishing unwarrantable failure under the Commission's criteria. Indeed, insofar as the record and the brief 

filed on behalf of the Secretary indicate, the inspector and the 

Solicitor are unaware of governing Commission decisions although 

MSHA has acknowledged and explained these decisions. See MSHA 

Po 1 i c y Memo r a n d. um 8 8 - 2 C a n d 8 8 -1 M , d a t e d A pr i l 6 , 1 9 8 8 . A c c o rd - ingly, the unwarrantable finding must be vacated. The evidence 

shows only ordinary negligence. 

The inspector originally designated this violation as significant and substantial, but the conference officer deleted this 

designation because the miners are required to wear safety glasses (Tr. 41-42). The term "significant and substantial" is 

not synonymous with gravity. In this case I conclude the Solicitor failed to show any degree of gravity. The inspector testified he knew of situations where individuals, who came in close 

proximity to welding operations received injuries (Tr. 32). He 

then defined close proximity as 6 feet (Tr. 39). However, he 

testified that he did not know who would pass within 6 feet of 

the welding operations in this case (Tr. 40). The door to the 

shop was located 20 to 25 feet away from the welding operations 

but no evidence was presented as to what, if any, injury might be 

sustained by persons using this door. I of course, cannot specu- late on such a matter. Under the circumstances, therefore, the 

v i o 1 aJ: i o n m us t be h e 1 d n o n s er i o u s . 

A penalty of $25 is assessed. 

Order ~o. 2897194 

The issue presented here is whether the cited wire was a 

trolley wire or a power wire. If it was a power wire~ as the 

Secretary contends, it had to be insulated under 30 C.F.R. 

§ 75.517. Insulation wraps around the wire and completely covers 

it (Tr. 112). If it was a trolley wire, as the operator asserts, 

it only had to be guarded in accordance with 30 C.F.R. § 75.1003. 

Guarding comes down over the sides of the wire, leaving the 

underneath exposed (Tr. 113). 

After consideration of this matter and in light of all the 

evidence of record, including the testimony of the witnesses, I 

conclude that the cited wire was a power wire which should have 

been insulated in accordance with 30 C.F.R. § 75.517. 

The record discloses that there were a number of different 

electrical wires in the affected area, each with its own 

characteristics and functions. The cited wire carried power 

1704 
among the trolley wires in the track yard which was above ground 

(Operator's Exhibits 11-17, Tr. 117). 1/ Jt crossed a number of 

trolley wires (Tr. 109). -

The operator argues that the subject wire is a trolley wire. 

I cannot accept this position. The term "trolley wire" is 

defined as: 

The means by which power is 

an electric trolley locomotive. 

from the roof and conducts power locomotive by the trolley pole. it is sometimes also used to run 

equipment. B.C.I. 

conveyed to 

It is hung 

to the 

Power from 

other 

A Dictionary of Mining, Mineral and Related Terms (U. S. 

Department of the Interior 1968). 

The testimony -.at the hearing accords with the dictionary definition. A trolley wire runs right over the track and 

supplies power directly to the equipment (Tr. 107). A trolley 

wire is designed to allow electrical contac.t between it and a 

metal slide of the pole attached to the equipment (Tr. 147-148). 

The underneath side of a trolley wire is exposed so that the 

necessary electrical contact can occur (Tr. 151). If the trolley 

wire were insulated, i.e. fully wrapped, there could be no contact (Tr. 151). As already noted, the subject wire did not conduct power by means of a trolley pole to a locomotive or any 

other piece of equipment; it merely carried power from one 

trolley wire to another (Tr. 117). Additionally, a trolley wire i~ smaller than the cit~d wire and is made of copper to withstand 

the friction of another piece of meta 1 touching it (Tr. 148). 

Another type of wire used in the affected area was a trolley feeder~ wire. Based upon the evidence, I conclude the subject 

wire cannot be considered a trolley feeder wire. As the 

operator's safety supervisor testified, the purpose of a trolley 

feeder wire is to carry power from the initial power source over 

long distances to trolley wires (Tr. 142-143)~ Because the 

trolley feeder wire is larger than the troll~y wire it can carry 

substantial voltage over greater distances without generating as 

much heat (Tr. 147-148). Although, the wire cited by the inspector was the same dimension as a trolley ·feeder wire, this alone 

would not make it a trolley feeder wire since its purpose was 

different from that of a trolley feeder wire. 

!/ The cited wire does not ap~ear on the operator's photogra~hs 

because the operator removed the wire after the citation 

was issued. Th~ wire's route was pencilled in on the photos 

(Tr. 102, 133, 154). 

1705 
The operator's contention that the cited wire is a trolley 

wire or troJley feeder wire because it is part of the trolley 

wire "system", is unpersuasive. Such an approach presents too 

vague and uncertain a standard upon which to decide this case. 

Moreover, the purposes of the Act are better served by the conclusion that the wire in question was a power wire. The insulation required for a power wire completely covers all sides of the 

wire. It is obviously safer than guarding which covers only on 

the top and sides. Guarding with an exposed underside is allowed 

for trolley wires, because there must be an electrical contact 

between the wire and the pole attached to the piece of equipment being powered. ·Since the wire in this case did not come in contact with any pole or equipment, there was no need for its 

underside to be exposed. In light of the foregoing, I conclude a 

violation existed. 

The violation was cited in a 104(d)(2) withdrawal order on 

the ground that the operator was guilty of unwarrantable failure. 

The inspector stated that because the foreman was in the area, 

which was pre-shifted every day, he should have known of the violation (Tr. 104, 114, 128, 130). Here again, as with the prior 

citation, the inspector and the Solicitor made no reference to 

the criteria now laid down by the Commission for determining the 

existence of unwarrantable failure. And here again, nothing in t~e record shows aggraiated conduct of the sort required by the 

Commission and illustrated by MSHA in its Policy Memorandum, 

cited supra. On the contrary, the uncontradicted evidence discloses that the cited wire had been in use since 1980 without a 

citation being issued (Tr. 137). Although such a circumstance 

does not preclude subsequent ·enforcement, it. does show the 

absence of aggravated conduct on the part of the operator. In 

light of the foregoing, the finding of unwarrantable failure must 

be vacated. The operator was guilty of only ordinary negligence. 

I accept the inspector's testimony that a shock hazard 

existed because miners in the area carried bars which could come 

in contact with the uninsulated portion of the wire (Tr. 111, 

121-122). On this basis I find the violation was serious. The 

inspector's finding of significant and substantial must however, 

be set aside. As already noted, the term "significant ~nd substantial" is not synonymous with gravity. The Commission has 

defined "significant and substantial" in a precise and detailed 

manner and.has established a four-step test to determine its 

existence. National Gypsum Co., 3 FMSHRC 822 (1981); Mathies 

Coal Co., 6 FMSHRC l 0984); U. S. Steel Mining Co., 6 FMSHRC 

1834 (1984); Ozark-Mahoning Co., 8 FMSHRC 190 (1986); 

Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (1987); Texasgulf 

Inc., 10 FMSHRC 498 (1988). No evidence was presented to show 

1706 
whether the cited violation was significant and substantial under 

the Com~iss1on•s guidelines. Furthermore, the Solicitor asked no 

questions on this issue and the inspector said nothing about it. 

Accordingly, this finding cannot stand. 

In accordance with the foregoing findings of a violation of 

ordinary gravity and negligence and in light of the stipulations 

regarding the other statutory criteria, a penalty of $250 is 

assessed. 

ORDER 

I have reviewed the briefs filed by counsel. To the extent 

that the briefs are inconsistent with this decision, they are 

rejected. 

As already noted~ the stipulations regarding the remaining 

criteria un&er section llO(i) of the Act, have been accepted~ 

Accordingly, it is ORDERED that Citation ~o. 2897188 be 

vacated, and that Order Nos. 2~97193 and 2897194 be affirmed. 

It 1s further ORDERED that .the following civil penalties are 

assessed. 

Order No. 

2897193 

2897194 

Penalty $ 25 

$250 

It is ORDERED that the operator pay $275 within 30 days from 

the ~ate of this decision. 

\ 

\ 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Joseph T. Crawford, Esq., Office of the Solicitor, U. S. Department of Labor, Room 14480-Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

Michael R. Peelish, Esq., Consolidation Coal Company, 1800 

Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

1707 
FEDERAL MJNE SAFETY AND HEALTH REVIEW COMMISSl'ON 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

DEC 201988 

. . 

. . 

. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 88~21 

A.C. No. 15-09351-03582 

Karst Robbins Mine No. 4 

KARST ROBBINS COAL COMPANY, INC.: 

Respondent 

DECISION 

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

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

:Petitioner. 

Before: Judge Fauver 

The Secretary of Labor brought this proceeding for civil 

penalties for alleged violations of safety standards under the 

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

~ 

The case was called for hearing in Kingsport, Tennessee, on 

August 2, 1988. Government counsel appeared with his witnesses 

and documentary evidence. Respondent did not attend the hearing. 

The Government witness.es were sworn and testified, and the 

Government's evidence was received. 

It is clear from the nature of the evfdence in relation to 

the charges, and the fact of Respondent's non-appearance, that 

the request.for hearing by Respondent was intended to delay the 

Government's efforts to assess and recover civil penalties. 

Respondent's delaying tactics are further shown by the fact that 

Respondent is in arrears of past civil penalties due under the 

Act in the amount of $78,625 (as of October 4, 1988). 

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: 

1708
FINDINGS OF FACT 

1. Respondent, Karst Robbins Coal Company, Inc., is a 

moderate to large sized operator with a production of 308,363 

tons of coal in 1986. 

2. The amount of the proposed penalties will not affect the 

ability of the operator to continue in business. 

Citations 2797848 and 2797849 

3. While 6arrying out a spot inspectio~ at Respondent's No. 

4 Mine on February 9, 1987, Mine Safety and Health 

Administration CMSHA) Inspector Elijah Myers discovered that a 

miner, Ira Lee Clark, had received an electrical shock on 

February 5, 1987, while working on a 480 volt trailing cable. 

4. This accident resulted in second and third degree burns 

to Mr. Clark, but Respondent did not report the accident to MSHA. 

5. Inspector Myers investigated the accident and found that 

when Mr. Clark was injured he was allempting to do electrical 

work on the cable, but was not a qualified electrician and was 

not working under the direct supervision of a qualified 

electrician as required by 30 C.F.R. §§ 75.511 and 75.153. This 

was the basis for his issuance of Citation 2797848 on February 9, 

19 87. 

6. Inspector Myers also found that when Mr. Clark was 

injured the electrical circuit 

been deenergized and locked out 

required by 30 C.F.R. § 75.Sll. 

Citation 2797849. 

for the roof bolter cable had not 

or tagged at the power center, as 

For this reason he issued 

7. Inspector Myers prepared an accident investigation 

report shortly after the incident. His testimony regarding the 

accident fully supported this report. Ins~ector Myers found that 

the injured miner, Ira Lee Clark, was assigned to do electrical 

· repair work by his supervisor, Mr. Bill Whitt, Jr., who was at 

that time chief electrical supervisor and maintenance foreman. 

8. When he attempted to do electrical work on the roof 

bolter trailing cable Mr. Clark was not a qualified electrician 

and he was not being directly supervised by a qualified 

electrician. 

9. Befoce he began working on the cable, Mr. Clark asked 

the roof bolter operator, Ernest Robbins, to deenergize the cable. 

This was in itself an unsafe practice and also contrary to the 

requir~~ents of 30 C.F.R. § 75.511. 

1709 
10. Mr. Robbins pulled both "cat-heads" or plugs on the 

cable from the power center and laid them over the rib. He did 

not lock out or tag the cable. Devices to lock out or tag a 

disconnected cable. were not available at the power center. 

11. After Mr. Robbins removed the cabie plugs, Frank Gross, 

the section foreman, came along and plugged them back into the. 

power center. He mistakenly assumed that the cable had been 

·accidentially disconnected by moving equipment hitting the cable. 

12. Forenan Gross stated that there were no devices to lock 

out or tag the cat-heads at the time that the injury occurred 

despite his prior notification to company officials, including 

Danny Karst, the mine manager, of the need for such devices. 

13. When Mr. Gross re-energized the cable Mr. Clark was 

holding the cable, attempting to resplice it. He was immediately 

shocked and burned. If lock out or tagging devices had been 

provided for the roof bolter cable and used, Mr. Clark would not 

have been injured. 

14. Inspector Myers has 28 years of qualified electrical 

experience in coal mining, including work in private industry and 

with MSHA. In his expert opinion Mr. Clark would have been 

killed had Ernest Robbins not pulled the cable out of his hands. 

At the time of the electrical shock, Mr. Clark was helpless and 

unable to free himself from the live wire. 

15. In July 1986, Inspector Myers had investigated an 

electrical fatality at the Karst Robbins No. 4 Mine involving 

nearly identical circumstances. Ralph Whitehead, like Mr. Clark 

in this case, was not a qualified electrician but attempted to. 

repair a 480 volt trailing cable. He did not deenergize the 

cable and was electrocuted when he came into contact with an 

energized conductor. 

16. A § 107(a) withdrawal order and three citations were 

issued by Inspector Myers in July 1986, as a result of the 

investigatidn of the Whitehead fatality. · 

17. Shortly after the Whitehead fatality Inspector Myers 

warned Eddie Karst, owner of the mine, about the danger of 

assigning ~nqualif ied personnel to do electrical work and the 

danger of doing electrical work on a cable without deenergizing 

the circuit and locking it out or tagging it. 

18. MSHA Supervisor Henry Standafer has over 35 years 

qualified electrical experience in coal mining and has been 

electrical supervisor for District 7 of MSHA since June 1977. 

Mr. Standafer participated in the investigation of the Whitehead 

1710 
fatality in July 1986 and helped prepare the accident 

investigation report. 

19. Mr. Standafer described an electrical fatality that 

occurred in District 7 on August 8, 1983. A qualified 

electrician was electrocuted while attempting to repair a roof 

bolter cable without deenergizing the cable. This occurred at 

the Lesterf ield Coal Company. 

20. As a result of that electrical fatality, Mr. Standafer 

initiated a program in District 7 to warn coal operators and 

miners doing electrical work of the dangers of working on 

energized electrical equipment and to inform them that there was 

no need energize a trailing cable in order to "trouble shoot" 

it. (Tr. 51-52). 

21. In that program MSHA representatives spoke with over 

2,600 mining personnel within District 7, including the 

supervisors and affected miners at Karst Robbins. This included 

Respondent's supervisor Bill Whitt, Jr. 

22. After the Whitehead fatality at Respondent's No. 4 

Mine, ·in July 1986, Danny Karst, Edward Karst and Bill Whitt, 

Jr. were management representatives at conferences with MSHA 

representatives. In those conferences, MSHA emphasized the need 

to have only qualified electricians or properly supervised 

personnel doing electrical work and the importance of 

deenergizing and locking out or tagging circuits before doing 

electrical work on them. · 

23. At the time of the Whitehead fatality, Respondent's No. 

4 Mine had only three qualified electricians for the entire m:ine, 

which employed about 300 miners in four working sections. 

24. Mr. Standafer is responsible for maintaining and 

monitoring the mines in MSHA's District 7 to ensure that they 

have qualified electrical personnel. He described Karst Robbins' 

record for maintaining an adequate number of such miners as "very 

poor" (Tr. 55-57). 

25. Mr. Standafer also described Respondent's record for 

compliance with electrical safety standards as being "very bad, 

very poor" (Tr. 62). 

26. Mr. Standafer agreed with Inspector Myers' expert 

opinion in the Whitehead case, and in this case, that there was 

no need to have a trailing cable energized to properly carry out 

trouble-shooting or repair work on the cable. 

1711 
Order 2785787 

27. MSHA Inspector Donald Henry issued§ 104(d)(2) Order 

2785787 to Respondent on April 16, 1987, for a violation of 30 

C.F.R. § 75.507 .because Respondent was opera.ting a power center 

in the return air course, rather than in the 1ntake air course. 

28. The section foreman, Jim Brogdon, stated to Inspector 

Henry that it was the usual procedure at this mine to maintain 

power centers in the return air courses. 

29. The mine manager, Mr. Danny Karst, confirmed Mr. 

Brogdon's statement to Inspector Henry that this was the normal 

procedure at the Karst Robbins No. 4 Mine. 

30. Because of the risk of methane explosions, and the risk 

of propagating fires or explosions by accumulations of coal dust, 

a serious threat of explosion or mine fire was caused by return 

air from the .face area sweeping over .the power center, which is 

not required to be permissible equipment. Such an explosion or 

fire could have resulted in death or serious injury to mariy 

miners. 

Citation Number 3005188 

31. Inspector Henry issued Citation 3005188 at Respondent~s 

Mine No. 4 on July 1, 1987, for a violation of 30 C.F.R. § 75.200 

because he found unsupported roof in two areas of a roadway 

leading to the 002 section. 

32. One area of unsupported roof was about 2,000 feet from 

002 section. Draw rock had fallen out of the roof, loosening 

eight roof bolts and leaving a gap three to six inches between 

the roof and the bearing plates attached to the roof bolts. This 

gap caused the roof .to be unsafe and unsupported because the 

bearing plates were not firm against the roof. 

33. Inspector Henry noticed that none of the fallen draw 

rock was on the mine floor in this area. This indicated to him 

that the ground area had been cleaned up before his observation 

of the dangerous roof condition. 

34. Inspector Henry observed another unsafe roof area about 

1,000 feet closer to 002 section. The heads of roof bolts and 

bearing plates were missing from about 12 roof bolts covering an 

area 15 feet wide and 20 feet long. 

35. Inspector Henry observed evidence that the ground area 

had been cleaned up prior to his inspection. 

1712 
36. There had been a number of roof falls in the mine 

before the issuance of this citation. Roof conditions at this 

mine were generally poor. 

37. When Inspector Henry observed the _two cited roof 

conditions he was traveling with Jack O'Rourke, mine foreman, and 

Bill Shuler, the mine superintendent. ~either offered any 

explanation regarding these unsafe conditions. 

38. Respondent had not done anything to correct the roof 

support in the two cited areas before the inspector arrived. 

Both areas of dangerous roof presented a risk of death or serious 

injury to miners traveling in the roadway. 

DISCUSSION WITH 

FURTHER FINDINGS 

Citations 279848 and 2797849 

Respondent showed gross negligence and a reckless disregard 

for the cited safety standards by directing an unqualified and 

unsupervised miner, Ira Lee Clark, to do electrical work on a 

trailing cable and by failing to deenergize and lock out or tag 

the electrical circuit while he attempted to work on the cable. 

The miner received an electical shock with serious burns, and 

probably would.have been killed had a fellow employee not pulled 

the cable from his hands. 

Respondent had direct, prior notice of the importance of the 

cited regulations when a miner was killed in an electrocution at 

this mine involving nearly identical circwnstances {the Whitehecid 

case, in July 1986), and in 1983 Respondent had been notified of 

the dangers involved in failing to comply with the same 

electrical standards. In addition, Respondent had been put on 

notice by MSHA that it was not necessary to energize a trailing 

cable in order to trouble shoot or repair the cable. 

Order 2785787 

Respondent showed gross negligepce in placing a power 

center in the return air course, in violation of 30 C.F.R. 

§ 75.507. This equipment is not required to be permissible 

(i.e., designed to prevent a methane explosion) and therefore 

should not be operated in return air, which would spread any 

possible buildup of methane from the working faces to the 

ignition sources in the power center. This violation constituted 

an "unwarrantable failure" to comply with a safety standard 

within the meaning of§ 104{d)(2) of the Act. 

1713 
Citation 3005188 

The dangerous roof conditions were obvious and should have 

been corrected by Respondent before the area was inspected by 

MSHA. Respondent was therefore negligence ~n connection with 

violation. The violation was most serious because the dangerous 

roof conditions were in a roadway traveled by miners. 

Compliance History 

Respondent has a poor compliance history, as shown by 

numerous serious violations of safety standards in the two-year 

period before the inspections involved here, and as shown by the 

testimony of MSHA witnesses. In addition, Respondent has 

demonstrated a persistent and deliberate failure to pay 

substantial civil penalties for violations of mine safety 

standards that are long overdue. As of October 4, 1988; 

Respondent was in arrears for civil penalties in the amount of 

$78,625. The recalcitrance shown by this record of nonpayment is 

part of Respondent's poor compliance history. 

Penalty Assessments 

Considering all of the criteria for civil penalties in 

§ llOCi> of the Act, I find that the Secretary's following 

post-hearing proposals for civil penalties for the violations 

found herein are appropriate, and Respondent is ASSESSED those 

penalties: 

Citation 2797848 

Citation 2797849 

Order 2785787 

Citation 3005188 

Civil Penalty 

$7,500 

$7, 50·0 

$2,500 

$1,500 

$19,000 

Conclusions of law 

1. The undersigned judge has jurisdication over this 

proceeding. 

2. Respondent violated the safety standards as alleged in 

Citatioris 2797848, 2797849 and 3005188 and in Order 2785787. 

1714 
ORDER 

WHEREFORE IT IS ORDERED that Respondent shall pay the above 

civil penalties of $19,000 within 30 days of this Decision. · 

~-:r-MAVV\..... William Fauver 

A~inistrative Law Judge 

Distribution: 

Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department 

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

37215 (Certified Mail) 

Mr. John Luttrell, Operations Manager, Karst Robbins Coal 

Company, Inc., Route 1, Box 58, Closplint, KY 40927 (Certified 

Mail) 

kg 

1715 
FEDERAL MINE SAFETY\AND HEALTH REVIEW COMMISSION. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 221988 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

·v. 

RANDY ROTHER..\IBL, individually 

and d/b/a TRACEY & PARTNERS, 

Respondent 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

DECISION 

CIVIL PENALTY PROCEEDINGS 

Docket No. PENN 88-155 

A. C. No. 36-01836-03529 

Docket No. PENN 88-156 

A. C. No. 36-01836-03530 

D6cket No. PENN 88-60 

A. C. No. 36-01836-03528 

Tracey Slope 

Appearances: Anita Eve, Esq., Office of the Solicitor, 

U. s. Department of Labor, Philadelphia, 

Pennsylvania, for the Secretary; 

Mr. Randy Rothermel, Tracey and Partners, 

Klingerstown, Pennsylvania for the Respondent. 

Before: Judge Weisberger 

Statement of the case 

In these consolidated cases the Secretary (Petitioner} seeks 

civil penalties for alleged violations by the Operator 

(Respondent) of various safety standards set forth in Volume 30 

of the Code of Federal Regulations. Pursuant to notice, these 

cases were heard in Harrisburg, Pennsylvania, on August 8 - 9, 

1988. Donn W. Lorenz, HarryW. Kern, Victor G. Mickatavge, James 

Schoffstall, and William c. Hughes testified for Petitioner. 

Randy Rothermel and Cindy Rothermel testified for Respondent. 

Responden~ also called as witnesses William C. Hughes, Donn 

Lorenz, James Schoffstall, and Harry w. Kern. 

Neither Petitioner nor Respondent filed a Post Trial Brief 

or Proposed Findings although time was allowed for such to be 

filed~ 

on December 14, 1988, Petitioner filed a Motion to Vacate 

Citation No. 2676409 and Dismiss the Related Civil Penalty 

Proceeding. This Motion was not opposed by Respondent, and it is 

hereby granted. 

, 7, c:, 
Stipulations 

At the hearing the Parties indicated the following facts 

were stipulated to: 

1. The Tracey Slope Mine is owned and operated by the 

Respondent, Randy Rothermel. 

2. The Tracey Slope Mine is subject to the jurisdiction of 

the Federal Mine Safety and Health Act of 1977. 

3. The presiding Administrative Law Judge has jurisdiction 

over these proceedings pursuant to § 105 of the Act. 

4. The citations, orders, modifications and terminations, 

if any, involved herein, were properly served by a duly authorized representative of the Secretary of Labor upon an agent of 

the Respondent at the dates, times, and plates stated heiein, and 

may be admitted into evidence for the purpose of establishing 

their issuance. · · 

5. The Parties stipulate to the authenticity of their 

exhibits but not to relevancy or the truth of the matters asserted 

therein. 

6. The computer printout reflecting the Respondent's history of violations is an authentic copy and may be admitted as a 

business record of the Mine Safety and Health Administration. 

7. The total annual production of the Tracey Slope Mine was 

approximately 3,240 tons of coal per year. 

8. The Tracey Slope Mine is no longer in operation. 

At the hearing, the Parties agreed to submit a post hearing 

stipulation as to Respondent's history of violations. On 

December 19, 1988, in a telephone conference call, with Counsel 

for Petitioner and Respondent's owner, it was stipulated that the 

history of the previous violations should be determined based on 

the fact that the approximate number of assessed violat~ons in 24 

months prior to the issuance of the first Citation in these cases 

are 40. 

I. Docket NO. PENN 88-60 

Citation No. 2676133 

30 C.F.R. § 75.1704i as pertinent, provides that" ••• two 

separate and distinct travelable passageways," which are to be 

designated as escapeways and" .•• which are maintained to 

1717 
insure passage at all times of any person, including disabl~d 

persons, • • • shal 1 be maintained in safe condition • • • " 

In essence," Donn W. Lorenz, a MSHA Inspector, testi E ied that when 

he inspected Respondent's mine on March 24, 1987, of the two 

escapeways, one was "inaccessible" due to a rock fall. 

Government's Exhibit 1 depicts that the area that was described 

by Lorenz as being "inaccessible," was in the path leading from 

the face to the fourth level, which was the return escapeway. It 

appears to be the Respond~nt's position that the regulations do 

not require a second escapeway while a slope is being developed, 

and that in either event, as indicated by the cross-examination 

of Lorenz, access from the working face to the fourth level 

return escapeway could have been obtained by going inby to the 

main slope intake escapeway, and then traveling in a northerly 

direction to the intersection with the fourth level and then 

turning west to the return escapeway. I find however that 

section 75.1704, supra, by its clear language requires "two separate and distinct" escapeways, and that there is nothing further 

in the language of this section which would exclude its applicability to a developing slope. Also, I have taken into account 

Lorenz's testimony that access from the working face to the 

return escapeway was "inaccessible" due to a rock fall, and the 

cross-examination of Respondent's owner Randy Rothermel which 

indicates that, in essence, although the escape route was 

travelable, it would not be possible for a disabled person to 

traverse that route. i\ccordingly, I find that on the date in 

issue, the Respondent's mine did not nave two separate and 

distinct escapeways maintained in a condition safe enough to 

ensure passage of all persons including disabled ones. Thus I 

find that there has been a violation· of section 75.1704, supra. 

The Citation that was issued characterized the violation 

herein as being significant and substantial. The only evidence 

bearing on this issue consists of statements by Lorenz that the 

escapeway was "inaccessible" due to a rock fall, and that it was 

"reasonably likely" that one traveling this way would "get hurt," 

resulting in lost work days or restricted duty (Tr. 30). 

Lorenz's testimony does not reveal any facts he took into account 

in arriving at the above opinions. Although a rock fall would 

clearly contribute to an element of danger to. safety, in view of 

the fact that there is no evidence before me with regard to the 

extent of the rock fall and its quantity in relation to the 

traveled pathi I have no basis to conclude that there was a 

reasonable likelihood that the hazard contributed to would result 

in an injury, and that the injury in question wotild be of a 

"reasonably serious nature." (c.f. Mathies Coal Company 6 FMSHRC 

1, 3-4 (January 1984) ). Accordingly, I conclude that it has not 

1718 
been established that the violation herein was significant and 

substantial.. C See, Mathies Coal Company, supra). In the same 

fashion, for the same reason, I cannot conclude that the violation herein was any more than a moderate degree of gravity. 

Further, I conclude that Respondent was negligent to only a 

moderate degree, as the escapeway was travelable before a roof 

breaking occurred, over which the Respondent had no control 

{Tr. 30-31). Based upon this analysis as well as the remaining 

·statutory factors contained in section llOCi> of ~he Act, I 

conclude that a penalty herein of $100 is appropriate. 

Order No. ~676178 

Harry w. Kern, an inspector for MSHA, testified, in essence, 

that on July 22, 1987, he requested permission from "Rothermel to 

enter the mine to make a spot inspection. Kern said that 

~othermel told him that he {Kern) was not allowed in the mine to 

make an inspection. Accordingly Kern testified that he then 

issued Order No. 2676178, a section 104Cb> Order. Rothermel did 

not contradict this latter statement attributed to him, but 

indicated that on the date the Order was issued, there was a 

second escapeway, as the face had advanced from where it was at 

the date the original citation was issued, and accordingly the 

third slant was open all the way to the return escapeway {the 

four th level). 

I find, based upon Kern's uncontradicted testimony, that on 

July 22, 1987, Rothermel refused him ~ermission to make an inspection. Accordingly, I find that this Order ~a~ properly issued. 

This Order was characterized as significant and substantial, but 

there was no evidence adduced on this point. I conclude that 

violation herein is not significant and substantial. 

Citation No. 26767135 

Lorenz testified that, in essence, when he inspected 

Respondent's mine on July 12, 1987, he did not observe any 

permanent stoppings in the gangway or fourth level which was the 

third open crosscut outby the working face. It was further his 

testimony that th~ ventilation map of Respondent's mine so 

indicates permanent stoppings in the thicd open crosscut outby 

the face. Rothermel, in essence, conceded that there were no 

permanent stoppings in either the first, second, or third slants 

or the fourth level. However, he testified that when he took the 

mine over, ther~ was a waiver which indicated that permanent 

stoppings did not have to be made out of cinder blocks. However, 

such a waiver was not offered in evidence, and Rothermel indicated that the waiver did not specify the type of 1naterials to be 

used to construct the permanent stoppings. It was further 

Rothermel's testimony that in 1982, when he received a citation 

1719 
for a permanent stopping, he was told by special investigators 

that all he had to install was plywood to separate the intake and 

return air.· It was further "Rothermel' s statement that subsequent 

to the Citation in issue, he conferred with Jim Schoffstall, 

Jerry Farmer, and Ed Blank, MSHA Officials, and explained to them 

that he had intended to put an overcast where the stopping should 

have been, and therefore had not installed permanent stoppings. 

Rothermel indicated that the MSHA Off ic-ials told him that a 

double brattice was sufficient. It further was Rothermel's statement that, because the slope was being developed and was at most 

100 feet from the blasting, permanent stoppings could not have 

been installed as they would have been blown out of the slope. 

I conclude, based upon Lorenz's testimony, and not contested 

by Respondent, that on the date in question there was no permanent 

stopping at the third crosscut outby the face. Such a stopping 

appears to be indicated on the ventilation map. Further, the 

ventilation plan in effect at the time, CGx-2), indicates that 

permanent stopping "will be constructed of concrete blocks, cinder 

blocks, sheet metal or other fire-resistant material." I find 

that there was insufficient evidence to conclude that there was 

any waiver in effect, which would have allowed for the plac~~ent 

of stoppings at the third open crosscut outby the face, of 

materials other then those described in the plan. Accordingly, I 

£ind that· inasmuch as there were no permanent stoppings at the 

third open crosscut outby the face as requ.ired by the plan and 

map~ the plan has been violated and hence a violation of 30 C.F.R. 

§ 75.316. 

Citation 2676135 issued by Lorenz alleges the violation to 

be significant and substantial. However, there ~as no evidence 

adduced to support such a conclusion. Accordingly, I find that 

the violation herein was not significant and substantial. There 

is no evidence that the air on the working section was insuf ficient. Also there is no evidence of the contribution to any 

hazard as a result of the stoppings in question being of brattice, 

as testified to by Rothermel, rather than of the construction 

required in the plan. Nor is there any evidence that the 

diffetence in construction caused any·increment in any hazard. 

Accordingly, I find that it has not been established that the 

gravity of the violation herein is mace than low. Further, based 

upon the observations of Rothermel's demeanor, I find that he was 

truthful in his testimony, in essence, that he acted in good faith 

in celying upon a waiver and conversations with MSHA Officials in 

constructing a stopping of brattice material. AccorJingly, I 

conclude that the Respondent's negliJence herain is low. Taking 

into account these factors as well as the other statutory factors 

contained in section llbCi) of the Act as stipulated to by the 

Parties, I conclude that a penalty herein of $20 is appropriate. 

~20 
Order No. 2677518 

Victoi G. Mickatavge, a MSHA Inspector, testified that on 

.July 22, i987, he returned to Respondent's mine to perform a 

follow up inspection. He said that Rothermel told him that he 

(Mickatavge) was not to inspect the mine and he was not allowed 

entry. Mickatavge accordingly issued Order 2677518 predicated 

upon a violation of section 104(b) of the ~ct. ~othermel did not 

deny having refused Mickatavge permission to inspect the mine. 

It therefore is concluded that this Withdrawal Order was properly 

issued. Ho~ever, there is no evidence to conclude that it was 

significant and substantial. 

Citation No. 26767136 

Lorenz testified that on March 25, 1987, the fifth level was 

not depicted in the last ventilation plan ceceived by M.SHA from 

Respondent in June 1980. He indicated that this plan depicted 

development only to the thir~ level. James Schoffstall, an 

inspector s.upervisor for MSHA, indicated that developm~nt at the 

Eourth and fifth level was beyond that depicted in the ventilation 

plan CGx-2), which was approved in 1984. Rothermel indicated that 

Eor the last 12 years he has been submitting ventilation maps to 

MSHA, and that the last one i~ 1987, had been picked up by MSHA 

from Respondent's engineer Al Reidel. He also maintained, in 

essence, that the development of the fifth level would have the 

same ventilation as the third level, as it did not change the 

\'later gauge ~ihich created the vacuum ori the fan to draw air. I 

find, based upon the testimony of Schoffstall and Lorenz, that on 

the date in issue, active working·s at the fifth level had not been 

included or projected on a ventilation plan which MSHA had 

received from Respondent. Specifically, I note that 30 C.F.R 

§ 7 5. 315-1 requires an opera tor to sub.nit a ,nap containing "* ** ( 6) 

Projections of anticipated mine development for at least 1 year*** 

(8) ~ll underground workings with the active working sections 

delineated." Inasmuch as the underground workings at the level 5 

were not set forth nor projected in the most recent map on file 

with Petitioner, I find that Respondent herein violated section 

75.316-1, supra. I. find Rothermel's testimony insufficient to 

establish that any map containing the above information was filed 

· "1ith ?et i ti oner. I do not .E ind any mer it to Respondent's argu-

~ent, in essence, that it be relieved of any responsibility to 

e ile such .::i. plan, as development of the t if th level wo11ld have 

oeen the same a.s development of the third 1 evel. 

I find that no evidence has been adduced by Petitioner to 

2stablish either the gravity of the situation of the violation or 

the degree of Respondent's negli3ence •. Based upon the lack of 

~vidence in these areas, as well as the remaining statutory 

factors of llO(i) of the Act, I conclude that a penalty herein of 

$20 is appropriate. 

1721 
Cit~tion Nb. 2616225 

Kern testified, in essence, that he received information 

from the Denver M.SHA Off ice that Respondent had not filed a 

Quarterly Employment and Production Report for the first quarter 

of 1987, as required by 30 C.F.R. § 50.30. The Respondent did 

not present any testimony or other evidence to rebut Kern's testimony. Accordingly, I find, based upon Kern's testimony, that 

Respondent herein violated 30 C.F.R. § 50.30. No evidence was 

presented with regard to Respondent's negligence in this matter, 

nor was any evidence presented with regard to the gravity of this 

violation. Taking into account the lack of these factors, as 

~ell as the r~naining statutory factors in section llO(i) of the 

Act, I conclude a penalty of $20 as assessed is appropriate. 

Citation No. 26776177 

30 C.F.R § 49.2 as pertinent, provides, in essence, that an 

operator shall either establish two mine rescue teams or enter 

into an arrangement for mine rescue services except where alternative compliance is permitted for small and remote mines, or 

except for those mines operating under special mining conditions. 

There is no evidence in this case that the requirements for these 

two exceptions have been met. 

Kern testified that, in general, the MSHA District Off ices 

are notified when a rescue service no longer covers a min~. He 

further testified that when such a circllinstance occurs, the procedure is Eor the District Off ice to mail a letter to the local 

MSHA Off ice advising it of the same and indicating that a citation 

is to be served. According to ~ern such a letter was received and 

a citation was served upon Respondent. No testimony was offered 

by ~espondent nor was any evidence adduced by Respondent to rebut 

the testimony of Kern. 

At most, Kern's testimony, ~ased upon his personal knowledge, 

astablished that he received a letter from another MSHA Off ice 

advising him to serve a citation. Howeve~, there was no documentary evidence, nor any testimony based upon personal knowledge 

from which I could reasonably conclude that,. in fact, the company 

that had previously arranged to service Respondent had terminated 

its relationship. Nor was any evidence presented before me to 

est~blish that Respondent did not have its own mine rescue team. 

Thus, I ~ust conclude that it has not been established that there 

has been any violation herein of section 49.2, supra. Accordin3ly, this Citation must be dis~issed due to lack of proof. 

1722 
II. Docket No. PENN 88-155 

Order No. 2932285 and Citation No. 2932286 

According to Lorenz, on October 1, 1987, there was 3 to 15 

percent of methane in the working section in the gangway approxi1nately 30 feet inby the ~o. 3 Chute. He indicated that methane 

will explode when it is in the concentrations of 5 to 15 percent. 

In 1etecting the methane he used a National Mine Service methane 

detector. He issued Withdrawal Order ~o. 2932285 under the 

provisions of section 107(a) of the Federal Mine Safety and Health 

i\ct of 1977, providing for withdrawals from the mine in the event 

of "imminent danger." In addition, Lorenz also issued Citation 

~o. 2932286 citing Respondent for violating 30 C.F.R. § 75.308 

which provides, in essence, until the air at the working face is 

less than 1.0 percent, power shall be cut off and no work shall be 

~ermitted, and that if the air ~ontains more than 1.5 percent, 

then all f)ersons shall be withdrawn, and all power shall be cut 

~EL According to Rothermel, the methane testing by Lorenz, which 

resulted in the Withdrawal O~der and the above Citation, 6ccurred 

.:tt approximately 11:00 a.m., when coal had just been fired, which 

is the time when methane is nor;nally released. On cross-e}camination, Lorenz indicated that subsequently on October 1, at 

approximately 1:30 p~m., at Rothermel's request he checked for 

methan~ and in the monkey it Nas 1.2 percent, and in th~ gangway 

1.7 percent. Lorenz's testimony, that at the location tested in 

the workin9 section, there was between 3 to 15 percent oE :nethane, 

has not been rebutted. i\lthough there were no workers doing anything at the time, there was power in the section. Giv9n these 

uncontradicted s_tatements, I find that the Withdrawal Oeder 

No. 2932285 was properly issued and Respondent was in violation of 

section 75.308 as cited. 

According to Lorenz, the amount of methane detected was in 

the explosive range, and a resulting explosion would be "rather 

violent," (Tr. 159). Inasmuch as there were miners in the 

vicinity of the high methane, and power was on in the section, I 

find the violation herein to 'oe significant and substantial. 

(See, Mathies, supra). In the same fashion, I £ind that the 

gravity of the violation herein to be high. · In essence, it is 

~espondent's positi6n that it was not negligent in having miners 

~amain in the vicinity of the high methane reading, as they were 

sitting in close proximity to a v~ntil~tion tube providing Eresh 

'iir to remove the methane, and if they had left this position, 

they ~ould have had to traverse an ~rea of high methane. 

~espondent also appears to tnai.'.'ltain that the release of methane 

was highest when coal is fired, and that release of high !nethane 

at that time is normal. I find however, that the dictates of 

section 75.308, supra, unequivoc~lly mandate withdrawal "from the 

·:i c':?.::i of the mine in danger thereby to a sa Ee "lrea," and cut ting 

1723 
off all electrical power whenever the air contains more then 

1~5 percent of methane. Although the release of methane upon 

firing might have been a normal occurrence, I find Respondent 

negligent to a high degree in not having had the power shut off 

until methane levels safely returned to less than one percent. 

In the same vein, I find Respondent highly negligent in not 

having removed all its miners from the entire area of the mine 

endangered by the release of excessive ;amounts of methane. 

Taking these factors into account, as well as the remaining 

statutory factors in section llOCi) of the Act, I find the 

assessed penalty herein of $1000 to be appropriate. 

Citation No. 2932287 

Lorenz also issued Citation No. 2932287 alleging that 

although Respondent had a permissible flame safety lamp with 

which tests were made for methane, Respondent did not have an 

approved methane detector, and hence violated 30 C.F.R. 

§ 75 .307-1. This section, in essence, provides that subsequent 

to December 31, 1970, an approved methane d~tector "shall be used 

for such test," and that a permissible flame safety lamp may be 

used as a "supplementary testing device." Respondent has not 

contradicted Ldrenz's testimony that it did not have a permissible methane detector •. It appears to be Respondent's position 

that either a methane detector or a permissible flame safety lamp 

i_s permissible. However, I findthat according to the clear 

language of section 75.307~1, the use of permissible flame 

detectors is mandated and that a flame safety lamp may be used in 

addition to the methane detector, but not in substitution thereof • 

. C See, Webst.er' s New Collegiate Dictionary, 19 7 9 edition, which 

defines supplementary as "added as a supplement," and supplement 

as "l. something that completes or makes an addition."> Hence, 

I find that section 75.307-1 was violated herein. 

Although the citation alleges the violation to be significant and substantial, there were not facts presented to establish 

that Respondent's failure to have a methane detector was significant and substantial specially in light of the fact that it had a 

safety flame lamp. Lorenz's testimony appears to indicate that 

generally a methane tester is safer than a safety lamp, in that a 

safety lamp could sometimes go out in high concentrations of 

methane, and the gauze in the lamp could be ignited, causing an 

accident. Bowever, there was no proof of the specific hazard 

contributed to by the violation herein, nor was there any proof 

of any likelihood that any hazard contributed to would result in 

an injury of a reasonably serious nature. Hence, I find that the 

violation herein has not been established to have been significant 

and substantial. For the same reasons, I find the gravity of the 

vi6lation herein not to have been established to have been more 

than low. 

1724. 
Although the violation herein might have resulted from 

Respondent's misunderstanding of section 75.307-1, supra, I find 

this section is clear in its requirements. Hence Respondent is 

found to have been negligent herein to a m6derate degree in not 

following the clear dictates of th~ regulation. Considering 

these factors, as well as the remaining factors in section llOCi> 

of the Act, as stipulated to by the Parties, I find that a 

penalty herein of $50 to be appropriate. 

Citation No. 2932288 

Lorenz further testified that subsequent to the issuance of 

the 107Ca> Withdrawal Order <Order ~o. 2932285), he told Rothermel 

to withdraw from the mine, and the latter indicated that he was 

going up ~o. 2 Chute to drill and shoot. He said that Rothermel 

took his tools and crawled through the No. 2 Chute. This testimony has not been rebutted by Respondent. Accordingly, I find 

that Respondent did not obey the Withdrawal Order and hence 

Citation No. 2932288 was properly issued. I have previously found 

. that the underlying condition of high methane levels which gave 

rise to the Withdrawal Order No. 2932285 posed an imminent danger. 

As such, I find that Rothermel, in refusing to vacate the effected 

area in spite of being told by Lorenz to vacate, acted with a very 

high degree of negligence. The gravity of this violation was 

high, as Rothermel would have been subjected to high concentrations of methane. Taking these factors into account,· as well as 

the remaining factors in section llO(i) of the Act, I find that 

the assessed penalty of $2000 is appropriate. 

Citation Nos. 2932309 and 2932310 

On the same date, October 1, 1987, Kern issued Citation 

Nos. 2932309 and 2932310 alleging violations of 30 C.F.R § 75~301 

concerning the quantity of air reaching the last open crosscut in 

the ~o. 2 Chute off the fifth level East gangway, and the face of 

the West monkey of the fifth level East gang~ay, respectively. 

In the Citations he noted the quantity of air at the last open 

crosscut to be only 3950 cubic feet par minute with a methane 

reading of 2 percent. In the face he noted. the air quantity of 

1291 cubic feet per meter with a methane reading of 5 percent. 

Section 75.301, supra, provides that the. minimum quantity of air 

reaching the working face shall be 3000 cubic feet a minute. 

Respondent did not rebut the finding of ~ern as to only 1291 

cubic feet per minute at the face. ~ccordingly, I find a violation of section 75.301, supra, as alleged. section 75.301, 

supra, further provides that in all active workings " •.• the 

volwne and velocity of the current of air shall be sufficient to 

dilute, render harmless, and to carry away, flammable, explosive, 

noxious, and ha~mful gases, and dust, and smok~ and explosive 

1725 
fumes." It further provides that the authorized representative 

of the Secretary "· •• may require in any coal mine a greater 

quantity arid velocity of air when he finds it necessary to 

protect the health or safety of miners." In this connection, 

Kern presented his opinion that there was not enough air present 

to remove the concentrations of methane found. Respondent did 

not rebut this opinion or offer any contrary evidence. Accordingly, I find that section 75.301, supra, was violated herein as 

indicated in Citation Nos. 2932309 and 2932310. 

Rothermel testified that the only machinery which was in 

operation when the Citations were written was a nonpermissible 

fan. I find, however, that what is critical is not the situation 

at the precise moment the Citation was issued, but I must rather 

take into account the presence of undiluted excess methane in the 

normal mining cycle which includes blasting. Based upon the 

previous testimony of Lorenz, I conclude that excess undiluted 

methane does present a·situation where there is a definite safety 

hazard of an explosion with a reasonable likelihood that this 

hazard will result in an injury of a reasonably serious nature. 

Thus, the violation herein can be characterized as significant 

and substantial. For essentially the same reasons, I find the 

gravity of this violation to be relatively high. I find that the 

only evidence with regard to Respondent's negligence herein 

consists of testimony by Rothermel with regard to the placement 

of a tube from the fan to provide air to clear methane from the 

area. Since Respondent was making some attempts to dilute the 

methane I find that it acted herein with moderate negligence. 

Taking these factors into account, as well as the remaining 

statutory factors in section llOCi) of the Act, I find a civil 

penalty of $750 for a violation of Citation No. 2932309 and a 

civil penalty of $750 for a violation of Citation ~o. 2932310 to 

be appropriate. 

Citation No. 2932312 and Order No. 2932313 

Kern, on October 2, 1987, found with regard to Respondent's 

fan, used-to ventilate the working section on the fifth level, 

that its glands were loose and its wires were not protected. He 

thus issued Citation ~o. 2932312 alleging the fan to be nonpermissible and thus in violation of 30 C.F.R. § 302-4(a). This latter 

section provides that a fan used to provide ventilation of the 

working face" ••• shall be of a permissible type, maintained in 

permissible condition . • • " The Respondent did not present 

evidence as to the specific condition of the fan, but indicated 

that it had used the fan for some time. Respondent moved to 

vacate the Citation on the ground that it had a waiver for this 

fan, and it was not notified that this waiver, which was for the 

second level, and used for the third and fourth levels, could not 

be used for the fifth level. Neither the waiver nor its contents 

1726 
were offered in evidence, (Rothermel indicated that his records 

had been burned). As such, I can not find that Respondent was 

relieved from the responsibility of complying with section 75.302-

4 (a) with regard to the fan in issue. I thus find that Respondent 

herein did indeed violate section 75.302-4, supra. In _light of 

this conclusion, Respondent's Motion to Vacate the Citation is 

denied. 

Petitioner has alleged that the violation herein was signif icant and substantial, but has not presented any evidence which 

would tend to establish that the specific condition of the fan, 

which rendered it nonpermissible, created any discrete safety 

hazard which resulted in a reasonable likelihood of an injury of 

a reasonably sarious nature. As such, I must find the violation 

herein not to be significant and substantial (Mathies, supra). 

In the same fashion, I can not find that the evidence herein 

establishes the violation to be other than a low gravity. I 

find, based upon observations of Rothermel's demeanor, that the 

Respondent herein acted. in good faith in believing that it had a 

proper waiver allowing it to operate the fan in question. Accordingly, I find that Respondent's negligence herein to be low. 

Taking these factors into account, as well as the remaining 

statutory factors, I find a penalty herein of $20 to be appropriate. 

A:s>proximately 20 mi~utes after the issuance of the above 

Citation, Kern issued Withdrawal Order No. 2932313 which provides 

th.at" ••• Rothermel stated that he would not remove the 

auxiliary electric fan from the working section." Respondent has 

not presented any evidence to rebut this statement. Hence, I 

find this Order to have been properly issued. 

III. PENN 88-156 

Citation No. 2932307 

Kern testified that when he was at the mine on September 10, 

1987, Respondent did not have an updated map. He indicated he 

believed the date of the last mine map was 1986, and that he 

knows it was more than a year since the last· map was subnitted. 

Respondent did not of fer any cross-examination of Kern, and hence 

his testimony . ..,as not rebutted. Schoffstal 1, testifying for the 

Respondent, indicated that Respondent's last map was submitted in 

April 1985, and he was "fairly certain" it set forth the third 

level (Tr. 307). Testimony presented with regard to other citations discussed in this decision indicates that Respondent, at 

the time the Citation was issued, was working on the fifth level. 

Since it was not contradicted that the last EileJ map went to th~ 

third level, it must be concluded that Respondent did not.have an 

updated rnap. As such, it had been established that there was a 

1727 
\ 

violation of 3-0 C.F.R § 75.1200 which provides, in essence, that 

an operator shall have an accurate "and up-to-date map." I do 

not find that this violation was any more than a low level of 

gravity. Further, Rothermel had told Kern that he had requested 

an engineer to prepare an updated map, and as such, I find 

Respondent's negligence to be very low. Accordingly, based upon 

these factors and the remaining statutory factors, I conclude 

that a penalty of $20 is appropriate for the violation herein. 

Citation No. 2932311 

On October· 1, 1987, Kern issued Citation No. 2932311 inasmuch as he observed, in violation of the Roof Control Plan, that 

"Respondent had not installed manways in the No. 2 and No 3 Chutes 

off the fifth level gangway. Respondent maintains, referring to 

language on page B of the Roof Control Plan (Gx 4), that the Plan 

is a minimum Roof Control Plan, and that in lieu of manways, foot 

carries were installed every 5 feet. The harries were boards 

1 inch thick attached to props on the bottom of the chutes, with 

a height of approximately 3 feet. There were three props across 

the approximately 15 foot wide chutes, leaving 2 feet on each 

side of th~ barries. 

I find that the lack of manways to be a clear violation of 

the Roof Control Plan, which in the section headed protective 

inanways, unequivocally provides as follow: "Protective ma.oways 

will be installed in the chutes along with development," (Gx 4). 

~lso I note that, as part of the plan, paragraph 12 of the 

conventional safety precautions provides for "protected manways" 

where the pitch of the vein exceeds 20 degrees, to protect the 

miners from sliding and/or falling material, (Gx 4). Paragraph 2 

of the conventional safety precautions clearly provides that any 

changes or deviation from the safety precautions is considered a 

violation of the Plan, CGx 4). Respondent relies on paragraph 1 

of the conventional safety precautions which indicates the Plan 

to be a "minimum roof control plan," (Gx 4, p. B). I find this 

statement to be 1iualif ied by the following phrase which appears 

in the end of that sentence" .•• and was formulated for normal 

roof and rib conditions while using the mining system described," 

(Gx 4, p. B). The next sentence requires the operator to provide 

additional support ~in areas where abnormal roof or rib conditions are encountered," (Gx 4, p. B, emphasis added). Hence, it 

is clear that the terms of the plan are for normal conditions, 

and additional suooort is to be orovided where "abnormal" conditions are encount~~ed. There is:no evidence that in the cited 

~rea the conditions were anything other than normal. 

There is no evidence that the violation herein was signif icant and substantial in light of the protective system of the 

foot barries which were installed at the mine. In the same 

1728 
fashion, I find that it has not been established in these circwnstances that. the violation herein was anything more than a low 

level of gravity. Also, I find that the Respondent acted in good 

faith in believing that the foot barries provided a safer protection than the manways, and hence believed that the manways were 

not required. ~ccordingly, I find that the negligence herein to 

be low. Taking into account these factors, as well as the 

remaining factors in llOCi) of the Act, I find that a penalty 

hP.rein of $20 is appropriate. 

Citation No. 2676404 

William G. Hughes, a MSHA Inspector, testified, in essence, 

that on Wovember 9, 1987, he performed an eledtrical inspectiori 

of Respondent's mine. In this inspection he observed a one horsepower fan that contained an electrical connection made by twisting 

wires. He also observed three-phase wires that were bare and not 

insulated to the original dielectric insulation strength. 

30 C.F.R. § 75.514 provides that all electiical connections shall 

oe "electrically efficient." It was Hughes' testimony, which was 

not contradicted by Respondent or impeached upon by cross-examination, that, in essence, the connection in question was not 

electrically efficient as the wires being connected could be moved 

'oy the fan's vibration, thereby creating sparks and heat. Also,· 

section 75.514, supra, provides, in essence, that all electrical 

connections " ••• shall be reinsulated at least to the same 

degree of protection as the remainder of the wire." In this 

connection, it was Hughes' testimony, which was not impeached upon 

by cross-examination or rebutted by Respondent, that the threephase wires were bare, and.were not insulated to the original 

dielectric insulating properties. I thus find that Respondent 

violated section 75.514, supra. 

Rothermel, in essence, testified that the fan motor herein 

was guarded by a relay to prevent power from going to the fan if 

the fan would overheat. Accordingly it is Respondent's position 

that this would tend to diminish somewhat the likelihood of heat 

to such a degree as to cause an ignition. 

It was Hughes' testimony that the type of connection herein 

could have 'b~en moved by the vibration of the fan, thereby 

creating sparks and heating of the wires. Further, it was 

Hughes' testimony, in essence, that inasmuch as the three-phase 

wires were riot insulated, and 1 inch on each wire was exposed, a 

ground to frame, or phase to phase connection could have resulted. 

~his in turn could have caused heat or sparks to be produced, 

leading to an ignition especially if high methane was present. I 

find Hughes' testimony more persuasive than that of Rothermel. I 

thus .E ind. that the violation herein, of imp coper connections and 

bare wires, to hava created a discrete safety hazard. Further, 

1729 
altnou.gh the fan was not being used at that time, it was capable 

of being used, and it is clear that it would be used in the 

normal mining process. Further, evidence presented in Order No. 

2932285 and Citation ~o. 2932286, infra, established the presence 

of methane when shots are fired in the normal mining process. As 

such, I conclude that the violation was significant and substantial. 

For the same reasons I find the violation to have been ·of a 

more than moderate level of gravity. There is no evidence herein 

to base any finding that the Respondent's negligence was other 

than low. Taking these factors into account, as well as the 

remaining statutory factors of section llOCi) of the Act, I 

conclude that a penalty herein of $100 for the violation to be a 

proper penalty. 

Citation No. 26716405 

Hughes issued Citation No. 26716405 alleging that the fan 

'i1as not provided with a connection to a grounding conductor. 

Hughes testified that the fan did not have a ground to provide a 

return to th~ surface. A violation of 30 C.F.R. § 701-l(d) was 

alleged. Section 75~701-1, supra, provides for five types of 

approved grounding. Here, the only facts ~ith regard to the type 

of grounding, if any~ consists of Hughes' testimony that the fan 

herein should have had a ground to provide a return to the surface. This .type of grounding is only one of the five which are 

approved. There is no evidence that the fan did not have one of 

the other types of grounds which were approved. In the absence 

of such testimony, I must conclude that section 75.701 has not 

·been violated, and this Citation must be dismissed. 

Citation No. 2676407 

Citation No. 2676407 provides, in essence, that a 75 horsepower three-phase pu.inp at Respondem:.' s mine ". • • was uot 

provided with a solid connection to a grounding conductoc 

extending to a low resistance ground field on the surface." The 

Citation further alleges this to be a violation of 30 C.F.R. 

§ 75.701-l(d). 

Hughes indicated that there was no method provided for 

grounding of the pump (Tr. 358). He indicated that without a 

ground, if there is an insulation breakdown or bad connection, 

there could be a phase to ground connection which could cause 

ignition if methane were present. ~e also indicated that _a phase 

to ground connection could cause a person to be electrocuted if 

one would come in contact with the frame. Hughes also indicated 

that the plli~P was located in the third level which is the normal 

passageway for men at the mine. He also indicated that although 

1730 
there was a fuse disconnect which had a thermal protection it 

would be possible still to have a phase to ground overload with 

the fuses not disconnecting, and which accordingly would be fatal 

to one touching the frame. Hughes explained that a ground wire 

was attached to the pump, but the connection to the outside 

grounding was broken. 

It was essentially Rothermel's testimony that there was a 

· grounding wire that went outside to a low resistance ground 

Eield, and that he usually inspected it once a day, but does not 

recall when he last inspected it prior to Hughes' inspection. 

Hughes then indicated that when he observed the pump when he 

issued the Citation, the ground wire was attached to the pump, 

but the connection to the outside ground was broken. I ~ccept 

Hughes' testimony as to the condition, at the date of the 

Citation, of the grounding connection, as it was based on his 

observation. In contrast, 'Rothermel could not recall when.he 

last inspected the connection prior to Hughes inspection. I 

conclude, based upon the testimony of .Hughes, that the pump was 

not connected to a ground, and as such would be in violation of 

75.701. Further, based upon Hughes' testimony, I conclude that 

the violation herein to be significant and substantial. Base 

upon the same reasons, I conclude that the gravity of the violation was high. Bowever 1 I find credible Rothermel's testimony 

that he inspected the connection once a day, although he could 

not recall when he last inspected it prior to the inspection. I 

thus find that the negligence herein was moderate. 1'aking the 

other statutory factors into account, I conclude a violation of 

~100 is appropriate. 

Citation.No. 2676410 

Citation No. 2676410 alleges a violation of 30 C.F.R. 

§ 77.507 in that a disconnect box for the main mine fan" ••• was 

not safely installed as the box was lying on the ground exposed to 

rain and moisture.~ 

Hughes testified that the box in question was in the mud and 

not mounted to exclude moisture. Rothermel testified that the 

box was 15 inches wide; 2 feet long, and 6 inches deep, and was 

mounted to railroad ties ( 8 feet by 3 inches wide by 8 inches 

high) ia the form of cribbing of three ties. Hughes testified 

that because the box was not grounded, moisture could have 

grounded out the phases in the box, and that in the event a 

person would have touched the box to pull the handle, he could 

have been electrocuted. Hughes also indicated that the "National 

~lectrical Code" requires the box to be vertical so that tha 

handles can be pulled downward and the blades can come down 

(Tr. 427). 

1731 
Section·75.507, supra, provides, in essence, that all 

electrical equipment shall be "permissible." ;\side from the 

opinion of Hughes, no evidence was presented which would indicate 

that the fan was not permissible. Hughes made reference to an 

electrical code, .but none was offered in evidence. I find 

Rothermel's testimony credible with regard to the placement of 

the box in question on cribbing made of railroad ties. I thus 

find that section 75.507 has not been violated and this Citation 

· should be dismissed. 

Citation No. 2676411 

Hughes also issued Citation No. 2676411, which states that 

the fan motor was not provided with a "solid connection" to a 

grounding conductor extending to a low resistance ground field, 

and accordingly 30 C.F.R. § 77.701-l(c) had been violated. 

Hughes testified, in essence, that the fan was not provided with 

"a source" for return back to the original source, <Tr. 413). He 

said that he did not observe any grounding from the motor to the 

disconnect box, and that a wire which was attached from the motor 

to a ground rod would not have provided a return to the source. 

He explained that in such·a situation there would i.1ave been a 

difference in potential. He wa3 asked where the connection for 

the grounding would have run~ and he stated that the ground wire 

"would have been tonnected" to the frame of the disconnect box, 

(Tr. 414). ~othermel indicated that the morning befoce or aft:r 

the Citation was issued, he was out at the fan and the giound was 

hooked up. On cross-examination he indicated the electrical 

examinations are made weekly, and he would have checked the 

ground wire, by looking at it, at the last examination. He 

further indicated the ground wire, that was fastened to the 

motor, did not go to the quadruplex, but did go to a ground 

stake. 

Based on Hughes's testimony, I conclude that on the day the 

Citation was issued, the fan did not have proper grounding, and 

as such, section 701-1, supra, was violated. 

The Citation ~lleges the vi~lation to have been significant 

and substantial. The only evidence bearing 6n this issue is 

Hughes' testiinony tha:t, in essence, if a person was to have 

contacted the fuse disconnect box that had been energized, he 

·would have been electrocuted. He indicated that the box had 

"some unused opening" which would allow inoisture in the box, 

which would make it to become moisturized, (Tr. 413). However, 

the Citation was issued for improper grounding for the fan. 

Thus, it has not been established the specific hazards, and the 

likelihood of any injury as a consequence of the fan not being 

grounded. I thus find the violation not to be significant and 

substantial. 

1732 
For the same reasons, I find the evidence insufficient to 

conclude that the violation herein was more than a low level of 

gravity. I have taken into account Rothermel's testimony that 

when he examined the grounding, it was hooked up. However, he 

indicated that the grounding did not go to the quadruplex, which 

appears to be the source, but to a ground stake. I thus find 

Respondent to have acted with a moderate degree of negligence in 

the violation herein. I have also considered the remaining 

statutory factors end conclude that a penalty of $75 is appropriate for the violation herein. 

Citation No. 2932441 

At the hearing, the Parties indicated that, in essence, 

Citation ~o. 2932441 is the same or similar to Citation ~o. 2676225. As such, testimony on this Citation was waived. 

Based on the evidence adduced and discussed in Citation ~o. 2676225, infra, I conclude that Citation No. 2932441 was 

properly issued and established a violation of 30 C.F.R § 50.30, 

and that a penalty of $20 is appropriate. 

ORDER 

Accordingly, it is ORDERED that: Citation Nos. 2676133, 

2676135, 2932312, 2932311, 2676409, and 2676411 be modified to 

delete any findings that the cited violations are significant and 

substantial. · 

It is further ORDERED that Citation Nos. 2676177, 2676405, 

2676409, and, 2676410 are vacated. 

It is further ORDERED that Withdrawal Orders 2676178, 

2677518, and 2932225 were properly issued. 

It is further ORDERED that Respondent shall pay $5,065, 

within 30 days of this Decision, as Civil Penalties for the violations found herein. 

Distribution: 

(( ( . I. 

Avram l,j~ Weisberger ~ 

i\di-ninistrative Law Judge 

Susan.M. Jordan, Esq., Office of the Solicitor, IJ. s. Department 

of.taoor, Room 14480.,..Gateway Building, 3535 Market Street, . Philadel~hia, PA 19104 (Certified Mail) 

K

M

1

r: Randy Rothermel, Tracey and Partners, R. o. #1, Box 33-A,· 

1ngerstown, PA 17941 (Certified Mail) 

dcp 

1733 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 221988 I 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

. MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

. . 

. . Docket No. WEVA 88-139 

A. C. No. 46-01867-03739 

: Blacksville No. 1 Mine . . 

. . 

. . 

Docket No. PENN 88-144 

A. C. No. 36-04281-03616 

Dilworth Mine 

DECISION 

Appearances: Covette Rooney, Esq., Office of the Solicitor, 

Department of Labor, Philadelphia, Pennsylvania, 

for the Secretary: 

Michael R. Peelish, Esq., Consolidation Coal 

Company, Pittsburgh, Pennsylvania, for the 

Respondent. 

Before: Judge Weisberger 

Statement of the. Cases 

In these cases the Secretary (Petitioner) seeks civil penalties for alleged violations by th~ Operator (Respondent) of 

30 C.F.R. § 75.400. Pursuant to notice, these cases were heard 

in Pittsburgh, Pennsylvania, on August 23, 1988. In Docket No. 

WEVA 88-139, James D. Underwood, Raymond .Ash, and James E. Bowman 

testified for Petitioner and John Weber, Robert w. Gross, and 

Carl Steven Casteel testified for Respondent. In Docket No. 

PENN 88-144, James Samuel Conrad, Jr., and Edward Daniel 

Yankovich, Sr. testified for Petitioner and Steven Wolfe, Walter 

Joseph Malesky, and.John Leo Weiss testified for Respondent. 

At the hearing, on Docket No. WEVA 88-139 at the conclusion 

of Petitioner's case Respondent made a motion to dismiss which 

after argument was denied. Petitioner filed its Post Trial 

Memorandum and Proposed Findings of Fact on November 14, 1988 and 

Re~pondent filed its Post Hearing Brief on November 9, 1988. 

Time was reserved for the filing of Reply Briefs but none were 

filed. 

1734
Docket No. WEVA 88-139 

Stipulations . ··1' .. ,, ·-: ... 1. The Blacksville No.·· 1 Mine is· owned and operated by 

Respondent, Consolidation Coal Company. 

2. The Blacksville No. 1 Mine is subject to the jurisdiction of the Federal Mine Safety and Health Act of 1977. · 

3. This administrative law judg~ has jurisdiction over 

these proceedin~~-

4. The subject Order was properly served by a duly authorized representative of the Secretary of Labor upon an agent of 

the Respondent at.the dates, times, and places stated therein, 

and may be admitted into evidence for the purpose of establishing 

its issuance, and not for the truthfulness or relevancy of any 

statements asserted therein. · 

5. The assessment of a civil penalty in this proceeding 

will not affect Respondent's ability to continue in business. 

6. The Operator 1 s history of previous violations in total 

was 478 violations over 554 inspection d~ysi 48 of these violations were for violations of 30 C.F.R. § 75.400 C7 of which were 

section 104Cd)(2) Orders). 

7. The Operator's size is as follows: 

a. Blacksville No. 1 Mine employees approximately 

241 employees. 

b. Daily production of Blacksville No. 1 Mine equals 

approximately ~etween 6,500 and 7,000 tons~ Annual production 

equala approximately 1,500,000 tons. 

c. Consolidation Coal Company operates approximately 

30 mines. 

d. The annual production of all Re.spondent' s mines is 

approximately 52.5 million tons. 

e. The annual dollar volume of sales by the Respondent 

for 1988 will not be released by the Respondent. 

f. E. I. DuPont d~ Nemours and Company is the parent 

company, Consolidation Coal Company is a wholly-owned subsidiary. 

8. The Operator abated the cited condition immediately. 

The Order was terminated at 11:55 a.m. on October 23, 1988. 

1735 
9. Approximately seven miners were exposed to the cited 

condition. 

10. A comparison of the fatality and disabling injury 

frequency rates for the mine and for the Operator's operation 

overall with those of the industry are as fo·llows: 

a. Blacksville No. 1 Mine 

1986 Rate F - Fatal. 

NFDL - No Fatal Days 

0 - F 0 NDL - No Days Lost 

13 - NFDL 5.16 

4 NDL 1.59 

Total 17 6.75 

1987 Rate 

0 - F 0 

41 - NFDL 15.34 

3 - NDL 1.12 

Total 44 16.46 

1st Quarter 1988 

Rate 

0 - F 11.38 

8 - NFDL 1.42 

1 - NDL 0 

Total 9 12.81 

b. Consolidation coal Company 

1988· Rate 

9 - F .09 

309 - NFDL 3.23 

142 - NDL 1.49 

Total 460 4.81 

1987 Rate 

2 - F .02 

680 - NFDL 7.20 

169 - NOL 1. 79 

Total 851 9.01 

1736 

lost 
1st Quarter 1988 

0 - F 

177 - NFDL 

31 - NDL 

Total 208 

c. Nationwide 

1986 

84 - F 

9,165 - NFDL 

2,696 - NDL 

Total ·11,945 

1987 

58 - F 

11,538 - NFDL 

3,867 - NDL 

Total 15,463 

1st Quarter 1988 

10 - F 

3,102 - NFDL 

983 - NDL 

Total 4,095 

Rate 

0 

7.94 

1.39 

9.33 

Rate 

.os· 

5.70 

1.68 

7.43 

Rate 

.04 

7.81 

2.62 

10.46 

.03 

8.64 

2.74 

11.40 

11. The Parties stipulate that there had been on clean intervening inspections of the entire mine between the date of the 

inatant .violation and the previously i~sued order. Thus, the 

mine, at that time:, was on a .104(d) chain. (Sic.) 

12~ The Parties stipulate the authenticity of their exhibits, 

but not to the truth or relevance of the matters asserted therein. 

Findings of Fact and Conclusions of Law 

I. 

Order No. 2943442 

James D. Underwood, an inspector for MSHA, testified that in 

visiting Respondent's Blacksville No. 1 Mine on the morning 

October 23, 1987, in the PG Section he observed float coal dust 

1737 
deposited on the roof in the third entry in the areas outby the 

portal bus _station. He continued to walk in the area and observed 

coal dust further outby in this entry and also in crosscut 25 

between entries 3 and 4 and crosscut 26 between entries 3 and 2. 

(The area he observed coal dust is shaded in red on Government 

Exhibit C.) Underwood described the color df the dust as "dark" 

and closer to black than gray. He said that the darkest area was 

in the crosscut 26 between the 2nd and 3rd entries. He said that 

after abatement with rock dust the areas in question became white 

in color. Underwood's testimony was corroborated by James E. 

Bowman an employee of Respondent, who as representative of the 

miners accompanied Underwood on his inspection on October 23. 

Bowman indicated that in the areas outlined in red on Government 

Exhibit c, he saw coal dust that he described as "black." 

In arguing that it did not allow any coal dust to accumulate 

in the areas cited by Underwood~ Respondent, in essence, refers 

to the fact that on the day piior to Underwood's inspection, MSHA 

Inspectors conducted an intensified Triple A Inspection, walked 

through the area in question, and did not issued any citations 

for violation for section 75.400, supra. In this connection, 

Raymond Ash, a MSHA supervisor, indicated that, in e~sence, when 

he walked though the area in question there were accu.mulations of 

float dust, but the accumulations "weren't that bad" {Tr. 65). 

He said that the whole section was rock dusted in a fashion that 

was "pretty well within standards" {Tr. 65). He said, in essence, 

to the best of his recollection there was nothing outstanding about 

the section, and it was not either a very .bad condition or a very 

good condition. He further said the conditions were not bad enough 

to issue a citation. 

John Weber, a mine escort employed by Respondent, testified 

that coal dust is black, and that when he observed the areas in 

question on October 23, along with Underwood, they were not black, 

but were "medium grey" in color (Tr. 102). (sic.) He indicated 

that the color was essentially the same as was observed the day 

before. Robert W. Gross, Respondent's s~fety supervisor, indicated 

that when he observed the areal on October 23, before the alleged 

violation was abated, the material that he observed was-between 

light gray to medium gray in color. He said that in his opinion 

there was 110 accumulation of coal dust. Carl Steven Casteel, 

Respondent's section foceman, W3.s asked whether on October 23, when 

he walked through the cited area if there v1as float dust present. 

He stated that he did not see anything not acceptable and said that 

the color 0£ the material there was gray. 
According to Gross when the area in question was initially 

mined it was rock dusted and rock dust is white. Gross indicated 

that with d.ampness rock dust becomes "off white," CTr. 132) and 

described the area in question as damp. However, he indicated 

that he felt the material in question, but he did not describe 

what it felt like. He was asked if he recal"led whether the 

accumulations were wet or dry, and he said "It was October, 

they're not going to be what be call wet, they would be damp" 

·CTR. 136>. Thus his statement that it was "damp," appears thus 

to be based not upon his personal knowledge, but upon his opinion, 

based on the time of year of the alleged violation. On the other 

hand, when Underwood was asked how he would classify the area, he 

described it as a dry area. 

Accordingly, I cannot find that it had been established that 

the area in question was damp. Thus, I cannot find that the 

material in question, rock dust, was made dark by dampness. 

Underwood in his testimony described the material in question 

as being dark and closer to black than gray. His testimony was 

corroborated by Bowman. Weber although describing the material in 

question as being medium gray conceded that the area in question 

although having a range of colors was not as good as the rest of 

the section which was white. In the same fashion although Gross 

indicated that the material in question was between light gray to 

medium gray, he described the material in the crosscut 26 between 

the 2nd and 3rd entries, and the material in the area outby the 

power center in Entry No. 3 to be a little darker than the rest of 

the area. Also Casteel described the material· in the cited area as 

being gray. In contrast the material outside the cited areas was 

described as being a lighter gray. Based upon all of the above, I 

conclude that Respondent, in the cited area, had allowed some coal 

dust to accumulate and had not cleaned it up when cited by 

Underwood. As such, I find that a violation of 75.400, supra, has 

occurred. 

II. 

According to Underwood, the violation herein by Respondent 

resulted from its unwarrantable failure inasmuch as the cited 

area is the entry Lo the P6 Section and as such all supervisory 

personnel would walk though the area on a daily bases to get to 

the working oection. As such, in essence, Underwood maintained 

that these personnel should have observed the condition by making 

an adequate inspection and should have cleaned it up. In this 

connection it was Underwood's opinion that the coal dust in 

question had accumulated when the area was originally cut, and in 

his opinion riad been there for a week. 

1739 
In the recent case of Emery Mining Corporation, 9 FMSHRC 

1997 (December 1987), the Commission held that "unwarrantable 

failure," i"s more than ordinary negligence and requires "aggravated conduct." I find that Underwood did not refer to any facts 

to support his opinion that the violating condition had existed 

for a week. Indeed, he indicated on cross-examination, in 

essence, that the condition that he observed could develop in 

minutes. Also Weber was present the day prior to Underwood's 

inspection, when he accompanied four MSHA Inspector, who walked 

throughout the area and.did not issue any violations for allowing 

any coal dust to accumulate. Ash, who was present during this 

examination, itidicated in his opinion that the rock dusting he 

had observed "pretty well" met their standards and described the 

accumulation of coal dust as "not that bad." I thus find that 

Respondent did not act with more than ordinary negligence when it 

did not clean up a condition that was observed the day before, 

and not cited, by four MSHA Inspectors. According, I cannot find 

that the violation herein resulted from Respondent's unwarrantable failure. 

III. 

According to Underwood the violation herein should be considered significant and .substantial, because arcing off a 

energized trolley ~ire in the area could have ignited the coal 

dust. Also a 7200 volt wire and power center were both in the 

C\rea and according to Underwood "Anything·could have happened" to 

them (Tr. 29), and "it could have intensified it with the float 

coal dust accumulation" (Tr. 24). Underwood further maintained 

that any ignition would b~ reasonably likely to cause serious 

injuries to the crew of seven working inby in the area. However, 

crosscut 26, between entries 2 and 3, described by Underwood as 

the darkest area in question contained neither a trolley wire nor 

a 7200 volt cable. Also, although Underwood, in essence, 

testified that the presence of the coal dust was a dangerous 

situation if anything would "happen" (Tr. 29) to the 7200 volt 

cable, this event seems unlikely due to Underwood's having 

conceded under cross-examination that the cable was very well 

insulated. Also the only location of the coal dust that 

Underwood testified to was on the roof where~s the cable was 

placed on the left rib. Also it does not appear reasonabli 

likely that the coal dust in question would contribute to any 

hazard occasioned by a malfunction of the power center, as the 

power center and its connectors were not within the cited area, 

and there is no evidence as their distance to the cited area. 

Nor does it appear that it was reasonably likely that the 

presence of coal dust would contribute to the hazard of an 

ignition occasioned by arcing in the trolley wire. The trolley 

1740 
wire did not run at all in the most inby of the two areas cited, 

and ran for only a portion of the other cited area. In this 

-latter area although the trolley wire was between 3 to 6 inches 

of the roof, there was an insulated guard-between the wire and 

the roof which hung over the side of the wire and which covered, 

as agreed to by Underwood, the "majority" of the wire in the area 

(Tr. 37). According to Underwood approximately 15 feet of the 

wire was not guarded and arcing, which he agreed was a common 

occurrence, could occur in that area if there were dust or other 

obstructions between the arc of the vehicle and the wire. 

However, he indicated that he did not see any dust on the wire. 

Taking all of the above into account, I_ conclude that it has 

not been established that there was a reasonably likelihood that 

the cock dust which had been allowed to accumulate, contributed 

to the hazard of an ignition or other hazard which would result 

in an injury of reasonably serious nature. (See, Mathies Coal 

Company, 6 FMSHRC 1 (January 1984). As such, I conclude that it 

has not been established that the violation herein was 

significant and substantial. 

In assessing a penalty for the violation found herein, I 

have taken to account the factors set forth in section llO(i) of 

the Act as stipulated to by the Parties and adopt them. I also 

conclude essentially for the reason set forth above, (II., infra) 

that the Respondent-herein acted with a low degree of negligence. 

Should the accumulation of coal dust herein result in an explosion 

or ignition, such would result in grave consequences of injury to 

persons. However, it has not been establish that such an event is 

reasonably likely to occur. As such, I find that the violation 

herein to be of a low level of gravity. Taking all of the above 

into account, I conclude that a penalty herein of $50 is appropriate. 

Docket No. PENN aa-144 

Stipulations 

1. Consolidation Coal Company is the owner and operator of 

the Dilworth Mine located in Rices Landirig, Greene County, 

Pennsylvania. 

2. Consolidation Coal Company and Dilworth Mine are subject 

to the jurisdiction of the Federal Mine Safety and Health Act of 

1977. 

3. The Administrative Law Judge has jurisdiction over this 

case pursuant to Section 105 of the Act. 

1741 
4. In the 2 year period prior to November 25, 1987, the 

Dilworth Mine had an undetermined number of violations of the 

standard c6ntested in this case, 30 C.F.R~ § 75.400. 

5. The size of the operator is reflected by the following 

data: 

a. The Secretary has no knowledge and therefore cannot 

stipulate as to the number of employees employed in the Dilworth 

Mine. 

b. The Secretary had no knowledge and therefore cannot 

stipulate as to the daily production of the Dilworth Mine. Annual 

production tonnage of the Dilworth Mine is 1,432,626. 

c. The Secretary has no knowledge and therefore cannot 

stipulate as to the number of mines operated by the operator and 

the total number of miners employed by th.e operator. 

d. The annual production tonnage of all the operator's 

mines is 41,221,321. 

e. Information regarding the annual dollar volume of 

sales by the operator during 1985 will not be released by the 

operator. 

f. DuPont E.I. De Nemours & Company is the parent com-

. pany; Consolidation Coal Company is a wholly-owned subsidiary. 

6. The violation was abated within a reasonable period of 

time; the subject area was rerock dusted. 

7. Any one miner would be affected or was exposed to the 

hazard created by the violation. 

8. The Operator's history of previous violations in total 

was 405 violations over 504 inspection days. Seventy-five of 

these violations were for violations of section 75.400. 

9. The Parties stipulate the authenticity of their exhibits, 

but not to the truth or relevance of the matters asserted therein. 

In a telephone conference call on November 30, 1988, the 

Parties further stiptil~ted that: The Dilworth Mine had not had a 

clean intervening inspection since the issuance of the previous 

d(2) order at this min~, and thus was on a (d)(2) chain. 

1742 
I. 

Order No. 2937915 

On November 25, 1987, James Samuel Conrad, Jr., a MSHA 

Inspector, performed a spot inspection of Respondent's Dilworth 

Mine pursuant to a request of one of Respondent's miners. During 

the course of this inspection he observed coal dust in the ribs, 

·floor, and belt structure of the 3-D section. He said that with 

the cap lamp that he was wearing the coal dust appeared to be 

black, with a reddish tint. He explained that it gets to have 

such a tint if it is "real black" (Tr. 186). He explained that 

under the coal dust he was able to see rock dust and that the 

rock dust accumulated in nooks and crannies of the ribs. He said 

that on the belt structure~ he was able to brush the dust off and 

that at one point he measured the dust with a ruler and it was a 

half inch deep. 

Edward Daniel Yankovich, Sr., a miner who accompanied Conrad 

as a walkaround, stated that the area in question was completely 

covered with black coal dust, including the roof, ribs, floor, 

and belt structure. He estimated the depth as 2 to 3 inches. 

Walter Joseph Malesky, Respondent's belt foreman, who 

examined the area in question on November 25, 1987, in a preshift 

examination, at ~pproximately 6:45 a.m., indicated that in the 

front-end of the belt there was an area that was starting to get 

dark in color. He described the color as dark gray to light black 

and provided his opinion that it should have been rock dusted in 

the next shift. Steven Wolfe, Respondent's construction boss, 

testified that the floor of the area in question was darker th~n 

the ribs and contained rock and coal dust which was the normal 

condition at the mine. He indicated that in general the color was 

dark gray. He also opined that when he arrived in the section on 

November 25, it needed rock dusting. John Leo· Weiss, Respondent's 

assistant foreman, stated that when he walked the length of the 

area in question at 9:15 a.m. on November 25, he observed coal dust 

on the belt and material on the bottom that was dark in color. He 

described the ribs as having some float dust that was gray in color. 

He also indicated he believed the area needed to be rock dustad. 

Wolfe indicated that the coal dust was thin coated and not "thick" 

and Weiss indicated that the deoth of the coal dust was between a 

quarter of inch to a half inch,Lbut in most areas there was a 

light coating. He provided his opinion th~t the areas in question needed to be cock dusted. 3e said that the ribs were gray 

and not dark, the bottom was aark gray, with small spots of black 

on the bottom of the left rib and indicated that wetness turns 

the material dark. 

1743 
Based upon the above, I find that at the time in question 

Respondent had not cleaned up coal dust in the area in question 

and had allowed it to accumulate. In this connection I accorded 

more weight to the testimony of Conrad as to the depth of the 

coal dust inasmuch as he measured it with a ruler. As such I 

find that the citation was properly issued and Respondent herein 

did violate 30 c.F.R. § 75.400 as alleged in the citation. 

II. 

According to Conrad the belt line in question has a history 

of coal dust. ·According to Wolfe it probably took a shift for 

this dust to develop. At approximately 6:45 a.in. on November 25, 

Walter Joseph Malesky, Respondent's belt foreman, in a preshift 

examination of the belt in question noticed that the area was 

starting to get dark in color and opined that it should be rock 

dusted in the next shift. He noted this condition in writing in 

the examiner's report of daily inspection for that date. Malesky 

indicated that he observed the coal dust as being dark gray to 

light black, and when asked what the depth of the material was 

indicated that he did not think that it was "any inches" 

(Tr. 274). He said that some of the material was part dry and 

some of it was damp, and that he made a ball of the mud which 

assisted him in determining that in his opinion it was not 

dangerous. He indicated upon cross-examination that he had the 

authority to stop the belt and assign men to abate the condition. 

He did neither, but in addition to the entry of the condition in 

the daily inspection report at 7:50 a.m., he informed Robert 

Burgh, Ken Dudics, the belt coordinator, and the Assistant 

Foreman Mark Watkins of the need to rock dust. Wolfe testified 

that he was informed at about 8: 00 a .m. by Mark Watkins that the. 

_belt in question needed dusting. He indicated that he went to 

the bore hole to obtain the rock duster, but that this equipment 

had a hose that was plugged up and that it took between 25 and 

30 minutes to change the equipment. The rock duster was then 

filled up with 12 tons of dust which took about 30 minutes and 

was then transported to the area in question, but that on the way 

it was derailed. He indicated that it took another 15 to 

· 20 minutes from the derailing to transport the rock duster to the 

section. 

It appear3 to be Petitioner's position, as articulated by 

Conrad, that Respondent herein was negligent to a high degree in 

that it was aware of tne fact that the area in question needed 

rock dusting, but did not assign anyone to immediately correct 

the condition. According to Conrad, Respondent should not have 

relied on its abatement by using a bulk duster as this equipment 

1744 
could fail, and instead should have either assigned men to distribute dust manually or to drag the area. He indicated that it 

could have taken two men to perform this work in approximately 

10 to 15 minutes. Conrad indicated that dragging or hand dusting 

might have been more "expedient" than using a duster CTr. 229). 

I note that according to Wolfe, bag or hand·dusting is used in 

areas of approximately 100 feet whereas on November 25, the day 

of the citation he was informed that area to be dusted was 

approximately 300 feet •. I thus find that there was not aggravated conduct in Respondent's condition to eliminate the hazard 

of rock dust with the use of a rock duster as opposed to assigning 

men to hand dust or drag. It appears that a decision as to the 

method to be used was a matter of judgment. As such any delays in 

cleaning the coal dust occasioned by the breakdown and derailment 

of the rock duster is clearly not evidence of aggravated conduct. 

Also although Malesky did not either shut off the belt or assign 

men to rock dust the area in question, and did not notify other 

management officials of the existence of this condition until 

approximately 1 hour after he observed it, I find that any maleficence. in this regard to have been a matter of negligence rather 

than "~ggravated conduct," or serious lack of reasonable care 

(Emery Mining Co., supra, c.f. U.S. Steel Coro., 6 FMSHRC 1423 

(June 1984)), inasmuch as it was based solely upon an error of 

judgment. In this connection, I note that Malesky, in supporting 

his not shutting off the belt or ordering the men to hand dust, 

indicated that he did not believe that the condition was dangerous. 

In this connection he noted that part of the material was dry, but 

that some of it was damp. The fact that he made a ball of the 

material assisted him in determining that it was not dangerous. He 

also had indicated that when asked with regard to the depth of the 

material that he did not think that it was "any inches" (Tr. 274). 

Thus, I find that Respondent's conduct herein was not aggravated 

conduct, did not rise above near negligence, and thus the violation 

herein cannot be characterized as resulting from Respondent 

unwarrantable failure (see Eme~y Mining, supra>.l/ 

1/I have considered Kitt Energy Core. 6 FMSHRC 289 (May 1984) 

which is relied on by Petitioner, but do not find it appropriate 

to the issues herein. In Kitt, Judge Merlin found that failure 

of the Operator to assign sufficient men to clear up coal dust 

over a period of 2 weeks constituted unwarrantable failure. In 

the case at bar, in contrasti approximately 1 hour after knowledge of the violation, the Operator took action to completely 

clean up the accumulation. 

1745 
III. 

According to Conrad, and not contested by Respondent's 

witnesses, coal dust is a major contributor to explosion and 

to the severity of fire~. He described coal dust as being very 

volatile. At the time of the citation the belt was running and 

according to Conrad a running belt could be knocked out of line 

by a falling rock causing the belt line to rub against various 

structures causing ~eat. He also indicated that the belt rollers 

could malfunction and generate heat, and that the electrical 

motors were of an open type and could blow up or short out. He 

said that ·all these events are potentially ignition sources which 

would be enhanced by the coal dust in the area. In this connection, Conrad indicated that all the dust that he touched was dry. 

Areas of the floor were described as having either puddles or 

being dai-np. However, according to Conrad the coal that lies on 

top of the water was dry. In this connection, it is noted that 

Wiess indicated on cross-examination that coal dust on top of 

water can still ignite. I note also that Yankovich indicated 

that he stirrad the coal dust with his finger and described it as 

dry. In contrast Wolfe testified that there was real moist muck 

on tha bottom of the area which contained rock and coal dust, and 

this condition is normal at the mine. Malesky who indicated that 

he made a ball of the mud described some of the area as wet, some 

damp, and "part of it was dry" (Tr. 273). 

Based on the testimony of Conrad and Yankovich that the dust 

they touched was dry, I find that the area in question contained 

coal dust that was dry. I find, based on Conrad's measurements, 

that the dust was at least 1/2 inches deep in some places. In 

addition, I note Conrad's testimony that on the day of the citation the area in question in the belt line had two tenth of one 

percent of methane. Taking all these factors into account, I 

conclride that the coal dust in question contributed to the hazard 

of an ignition. According to Conrad should such an ignition or 

explosion occur it would be reasonably likely to result in an 

injury of a reasonably serious nature. In this connection he 

indicated that those fighting the fire, or persons working inby 

the sectio11, would likely be burned or injured by having inhaled 

carbon monoxide. Accordingly, based upon all these factors, I 

conclude that the violation herein was significant and substantial. (Mathies Coal Company, supra.) 

IV. 

I conclude that the Respondent herein was negligent to a 

modecately high degree, in that Malesky did not infonn any of 

Respondent's managers of the condition in question until approximately 1 hour after it was observed by him. I further find, as 

1746 
outlined above CIII., infra), that the gravity of the violation 

herein was relatively high. Taking these factors into account as 

well as the remaining statutory factors in section llO(i) of the 

Act, I conclude that a penalty herein of $500 is appropriate. 

ORDER 

It is ORDERED that Order No. 2943442 be modified to a 

·.section 104(a) Citation to reflect the fact that the violation 

therein was not significant and substantial. 

It is further ORDERED that Order No •. 2937915 be modified to 

a section 104(d)(l) Citation to reflect the fact that the viola~ 

tion therein was not the result of Respondent's unwarrantable 

failure. 

It is further ORDERED that Respondent herein shall pay $550, 

within 30 days of this decision, as a civil penalty for the violations found herein. 

Distribution: 

Avram Weisberger 

i\dministrative Law Judge 

Covette Rooney, Esq., Office of the Solicitor, u. S. Department 

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

Philadelphia, PA 19104 (Certified Mail) 

Michael R. Peelish~ Esq., Con~6lidation Coal Compariy, 

1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

dcp 

1747 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

RANDY G. CUNNINGHAM, 

Complainant 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

December 23, 1988 

DISCRIMINATION PROCEEDINGS 

Docket No. PENN 88-293-D 

PITT CD 88-23 

CONSOLIDATION COAL COMPANY, 

Respondent 

Docket N~. PENN 88-294-D 

PITT CO 88-24 

Dilworth Mine 

ORDER OF DISMISSAL 

Before: Judge Merlin 

On August 17, 1988, you filed with this Commission 

complaints of discrimination under section 105(c) of tne Federal 

Mine Safety and Health Act of 1977 •. On November 4, 1988, show caus~ orders were issued directing you to provide information regardin~ your complaints or show good reason for your failure to 

do so. These show causes were mailed to you certified mail, 

return receipt requested and the file contains the receipt cards 

indicating you received. the show cause orders. You have however, 

not responded and complied with the show cause orders. 

Accordingly, these cases are DISMISSED. 

---= 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Mr. Randy G. Cunningham·, 3522 Orchard Avenue, Finleyville, PA 

15332 (Certified Mail) 

Consoltdation Coal Company, 450 Racetrack Road, Washington, PA 

15301 ( Cert i f i e d M_a i 1 ) 

1748 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 231988 

JACKIE SANDERS, 

Complainant 

DISCRIMINATION PROCEEDING 

v. Docket No. LAKE 88-130-D 

GOSSER CONSTRUCTION COMPANY, 

Respondent 

VINC CD 88-09 

Jaeco Mine 

ORDER OF DISMISSAL 

Before: Judge Melick 

By notice issued October 19, 1988, hearings in the 

captioned proceedings were scheduled to commence on 

November 29, 1988, at 8:30 a.m., in Bloomington, Indiana. 

The Complainant however failed to appear at the scheduled 

time and place. 

Accordingly on November 30, 1988 an Order to Show Cause 

was issued directing the Complainant to explain on or before 

December 15, 1988 why she failed to appear at the scheduled 

hearing. She has failed to respond to that order and 

accordin_gly this case must be dismissed. 

ORDER 

Discrimination Proceeding Docket No. 

hereby dismissed. ·) 

Distribution: 

l 

i 

! 

Gary M 

AdminiS rative 

( 70 3) 7\ 6-6261 

.. 88-130'D is 

Judge 

Ms. Jackie Lee Sanders, 207 Hickorf Street, Jasonville, 

Indiana 47438 (Certified Mail) 

Ronald L. Chapman, Esq., Cotner, Andrews, Mann & Chapman, 528 

North Walnut Street, P.O. Box 2478, Bloomington~ Indiana 

47402-2478 (Certified Mail) 

nt 

1749 
FEQiRAI. MINE SAFETY AND HEALTH REVl~W CQMMISSIPN 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 271988 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. VA 88-22-M 

A.C. No. 44-02786-05514 

v. 

No. 1 Quarry and Mill 

JAMES RIVER LIMESTONE 

COMP A.t.'1Y, INC. , 

Respondent 

. 

. 

Appearances: 

Before: 

DECISION 

Page H. Jackson, Esq., Office of the Solicitor, 

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

for the Petitioner: 

Herbert A. Kelly, Plan~ Manager, James River 

Limestone Company, Inc., Buchanan, Virginia, 

for the Respondent. 

Judge Koutras 

Statement of the Case 

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

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

§ 820(a). Petitioner seeks a civil penalty assessment in the 

ampunt of $305 for an alleged violation of mandatory safety 

standard 30 C.F.R. § 56.3200. The respondent filed a timely 

answer contesting the alleged-violation, arid a hearing was 

convened in Roanoke, Virginia. The parties filed posthearing 

arguments, and I have considered them in my adjudication of 

this matter. 

Issues 

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

condition or practice cited by the inspector constitutes a 

violation of the cited mandatory safety standard, (2) the 

appropriate civil penalty to be assessed for the violation, 

taking into account the statutory civil penalty criteria found 
in section llOCi) of the Act, and (3) whether the violation 

was "significant and substantial." Additional issues raised 

by the parties are identified and disposed of in the course of 

this decision. 

Applicable Statutory and Regulatory Provisions 

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

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

2. Section llOCi> of the 1977 Act, 30 ·u.s.c. § 820Ci>. 

3 •. Commission Rules, 29 C.F.R. § 2·700.1 et seg. 

Stipulations 

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

1. Copies of the contested order/citation, 

and the subsequent modifications, exhibits G-1, 

G-2, and G-3, were issued by an authorized 

representative of the Secretary and properly 

served upon the respondent. 

2. The presiding judge has jurisdiction 

in this matter. 

3. The respondent's ability to continue 

in business will not be adversely affected by 

any civil penalty imposed as a result of this 

proceeding. 

4. The respondent is a medium-size mine 

operator. 

5. The respondent abated the violation in 

question in good faith by complying with the 

order/citation. 

Discussion 

The combined section 107(a)-section 104(a) Imminent 

Danger Order/Citation No. 2851959, issued by MSHA Inspector 

Charles E. Rines, cited a violation of mandatory safety 

standard 30 C.F.R. § 56.3005. This was subsequently modified 

to reflect the redesignation of the cited mandatory safety 

standard to the appropriate section which was in ef Eect at the 

time of the violation, namely, section 56.3200 (exhibit G-3). 

The cited condition or practice is as follows: 

1751 
This is an .0rd.er of withd:rawal·: A drill 

shot on the #4 bench had shot into an underground cavern. The ground condi tion.s around 

the opening appear to be very unstable. No one 

shall be allowed to enter this area qn the #4 

bench 35 0 ft. from the original slide ·area 

where the cavern is in the floor until a geologist had inspected the area along with an authorized representative of the Secretary of Labor 

and the area has been determined safe for 

mining operations. 

Petitioner's Testimony and Evidence 

MSHA Inspector Charles Rines testified that the respondent operates a limestone quarry which mines dolomite, and he 

described the multiple bench drilling and blasting methods 

used at the mine. ~e confirmed that he visited the mine on 

July 1, 1987, for the purpose of checking into the compliance 

for several previously issued orders of withdrawal which had 

been served on the respondent to prevent men from working 

under a slide area where unstable materials had fallen from 

the top of the mountain. He was accompanied by the pit 

superintendent Richard Gillam. After viewing the area with 

Mr. Gillam, Mr. Rines advised him that in view-of the presence 

of unstable materials on the number 2 and 3 benches, the 

previous areas affected by the outstanding order would be 

extended for an additional 300 feet {Tr. 21-29}. 

Mr. ~ines identified exhibit G-1 as a copy of the contested order/citation which he issued, and he confirmed that 

he issued it during the course of his inspection and observation of the area in question with Mr. Gillam. Mr. Gillam 

advised him that a shot had been fired into an underground 

cavern, exposing a hole below the number 3 bench. Mr. Rines 

stated that he observed an 80-D shovel working on the number 3 

bench, "just t6 the right" of the hole. He also observed a 

truck pull up to within 5 feet of the hole, and then back up 

to the shovel where it was loaded with materials from the toe 

of the nwnber 3 bench. The truck left to take the loaded 

material to the crusher, and Mr. Rines observed another truck 

drive in to position itself for loading in the same manner as 

the first one. Mr. Rines estimated the weight of the loaded 

truck ~t 54 tons, and the weight of the shovel at 72 tons. He 

estimated the distance of the shovel from the hole as 25 feet. 

He estimated the locaiion of the hdle as 35 feet beneath the 

top of the bench, and estimated the dimensions of the hole as 

12 feet by 10 feet. Mr. Rines confirmed that he could not see 

the hole from the top of the bench, and that he had to go down 

1752 
to the number 4 bench to approach and view it from a position 

on the loose rock (Tr. 29-39). 

Mr. Rines stated that Mr. Gillam told him that the shot 

had been fired several days prior to the i_nspection, and that 

the holes had been drilled by Ingersoll-Rand with an experimental drill. Mr. Rines identified several photographs of the 

cited area and he described several cracks which he observed 

in the number 3 bench along the opening and bottom of the 

bench, and extending from the hole itself. Mr. Rines could 

not state the depth of the hole in question,·and he identified 

the location ~f another cavern which had been shot into in the 

past at the face of the number 4 bench CTr. 39-46). 

Mr. Rines confirmed that after observing the ground conditions, he advised Mr. Gillam that he would have to issue an 

order withdrawing men from the number 3 bench. Mr. Gillam 

ordered the truck and shovel removed from the area, and he 

left the area to summon Mr. Kelly, the plant manager. 

Mr. Rines confirmed that he explained his reasons for issuing 

the order to both Mr. Gillam and Mr. Kelly (Tr. 47-48). 

Mr. Rines also confirmed that he marked the area affected by 

his withdrawal order with a can of red paint on the face of 

the number 3 and 4 benches (Tr. 49). 

Mr. Rines confirmed that he issued the order because of 

the unstable ground conditions in the proximity of the hole in 

question. These unstable conditions consisted of visible 

horizontal and vertical cracks in the face of the number 3 

bench and the floor of the number 4 bench, and on either side 

of the hole. He also observed material which had slid down 

toward the opening of the hole itself (Tr. 50-51). 

Mr. Rines stated that he cited a violation of mandatory 

safety standard section 56.3200, which requires that certain 

action be tak·en when hazardous ground conditions are present 

which create a hazard to persons. He confirmed that the 

hazardous conditions consisted of the visible cracks which 

were present in the wall and floor of the number 3 bench, and 

the uncertainty of the extent of the caver-n and hole in the 

number 4 bench. In his view, these conditions presented a 

hazard to the trucks and shovel operating in the proximity of 

the hole. He was concerned that the trucks were too close to 

the edge of the hole, and that the weight of the trucks may 

have caused the wall to give way and break off, thereby 

causing the trucks to fall into the void. The shovels was 

located approximately 55 feet from the hole, and the trucks 

were operating within 5 feet of the hole as they drove into 

the area, and within 20 feet as they left with their loads. 

1753 
The ·cracks which ·he otrs·erved were clC>ser to th-e ·fruck-s than to 

the shovel. Although the shovel was approximately 35 to 

40 feet from the cracks, given the uncertainty of the length 

and breadth of the cavern hole under the bench where they were 

operating, he was concerned about the sho~el as well as the 

trucks (Tr. 51-56). · 

Mr. Rines explained his gravity finding of "reasonably 

likely" as follows (Tr. 57)r 

A. Due to the number of cracks and the close 

proximity that the trucks were coming to those 

cracks in the wall, that if they had continued 

operating there, it's reasonably likely we 

could have had an accident there. 

Q. · Okay. And you say that the likelihood of 

the accident would be the ground giving way 

underneath the trucks? 

A. Yes, sir. 

Q. And you checked here that the _injury was 

likely to be fatal. Why did you check fatal? 

A. Well, if that truck -- if the ground gave 

way, the truck was going to fall approximately 

fifty-five feet (55'). And a truck _going over 

the side of a wall, or the wall sloughing off 

with him, could be a fatal accident. 

Q. Okay. You checked the number of persons 

affected as being two. 

A. Yes, sir. 

Q. Who would they be? 

A. They would have been the shovel operator 

and the truck driver, himself. · 

Mr. Rines stated that he made a finding of "moderate" 

negligence because Mr. Gillam-conceded that he had known about 

the existence of the cavern but had done nothing about it. 

Mr. Rines believed that once the underground cavern was 

detected, and given the presence of cracks, the area should 

have been barricaded or blocked off. Hole.s could also have 

been drilled to determine the extent of the cavern hole open-

.ing, and the top of the number 3 bench could have been bermed. 

1754 
Had these measures been taken, the respondent would have been 

in compliance with the cited standard (Tr. 59). 

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

speak with any geoltigists after issuing the violation. He 

explained that the truck in question was 5· feet from the edge 

of the bench above the hole which was located below the bench, 

and he identified the location of the hole by ref erring to 

respondent's photographic exhibit R-2 (Tr. 75). He ~onfirmed 

that there was no actual hole on the flat surface of the 

number 3 bench haulageway where the truck was operating, and 

that the hole was located at the face of the number 4 bench 

(Tr. 76). He reiterated his concern that the area beneath the 

roadway where the truck was located could have given way and 

engulfed the truck (Tr. 77). He explained the work being performed with the truck and shovel, and indicated that material 

was being removed after the area was drilled and blasted (Tr. 

79-82). Mr. Rines stated that he was unaware that any geologists were examining the area after he issued the violation, 

and that he next returned to the mine on August 22, 1988 (Tr. 

85). 

Charles B. Vance, MSHA supervisory mine inspector, testified that the respondent's mine has been under the enforcement 

jurisdiction of his office, and that he has visited the mine 

15 to 20 times over the past 3 years. He confirmed that he 

visited the mine in July, 1987, in the company of MSHA district 

ma11ager Mike Trainer, safety specialist Roger McClenta and 

sub-district manager Ray Austin. The purpose of the visits was 

to observe the ground conditions involving the cavern and slide 

area in question (Tr. 90). Mr. Vance confirmed that he visited 

the mine on July 15, 1987, to examine the cavern area. He 

identified a copy of a modification he issued to the citation 

issued by Inspector Rines to allow work to correct the hazard 

noted in his initial order. The modification made reference to 

the removal of material from the floor of the number 3 bench, 

and the filling of the cavern on the number 4 bench (Tr. 91). 

Mr. Vance stated that he had expected the respondent to blast 

10 holes which had been _drilled along the edge of the nwnber 3 

bench in order to fill the cavern and hole.with the material 

blasted from above that location (Tr. 92-93). 

Mr. Vance stated that he observed no equipment or work 

taking place when he was in the area on July 15th, and the 

cavern or hole was still open and unfilled, and nothing had 

been don~ to correct the cited con di ti on. · He observed several 

cracks "all around that area," and "in and around" the cavern 

(Tr. 94). He considered the ground conditions at that time as 

hazardous to persons working in the area because there was no 

1755 
indication as to the extent of the cavern or how much weight 

it would take to break into it, and he believed that the rock 

could give way and a vehicle could go over the edge of the 

bench or break into the cavern (Tr. 94>• 

Mr. Vance confirmed that the visit by Mr. Trainer and 

Mr. Austin came after he issued his modification of July 15, 

1987, and since that.time the respondent has not requested him 

or anyone else in MSHA to further modify the order issued by 

Mr. Rines. Mr. Vance also confirmed that no further work has 

been done by the respondent in the affected area, and as far 

as he knows "it has been left alone" (Tr. 96). He confirmed 

that the respondent has the option of either abating the 

hazardous cited conditions before continuing any further work 

in the area, or simply leaving it alone (Tr. 96). 

On cross-examination, Mr. Vance was of the opinion that 

the safest method for addressing the hazard in question would 

be to seek the aid of a geologist to survey the cavern area 

and then fill it with shot rock, or by blasting the materi~l 

down into the hole from the drill holes which were not 

previously shot (Tr. 96-97). Mr. Vance confirmed that he was 

not with Inspector Rines when he issued his order on July 1, 

1987. 

Respondent's Testimony and Evidence 

Herbert A. Kelly, respondent's former plant manager, 

testified that he is a professional geologist, and holds a 

degree in geo·logy from the South Dakota School of Mines, and a 

master's degree in mining engineering from the South Dakota 

School of Mines and Technology. He stated that the cited area 

in question was not an active bench for quarry production at 

the time of the inspection conducted by Mr. Rines. Mr. Kelly 

explained that the Ingersoll-Rand Company had requested 

permission to test a drill and the respondent permitted them 

to do so at the area in question. The location was selected 

because "the wall between the No. 3 bench and the No. 4 bench 

was pretty ragged. We had what we call a belly rock hanging 

out, and it was cracked away in at least one location. And 

this historically had been an area of underground caverns, in 

this particular corner of the quarry. We had no idea that one 

was lurking as close as it was" (Tr. 100). 

Mr. Kelly explained that after the blast holes were 

drilled, some of them were shot in order to recover some of 

the rock. When the shot was fired, the bottoms of the drill 

holes broke into the natural cavern under and beyond the reach 

of the holes. Mr. Kelly stated that the area was then 

1756 
observed for a day or two by himself, and the quarry and plant 

superintendent, and they detected no problam in working on the 

number 3 bench with equipment to remove materials which had 

been previously shot from the bench above. The work in 

question "had nothing to do with this cavern shot, other than 

the fact that we would have to go near th~ top of the bench 

above it" (Tr. 101). 

Mr. Kelly stated that it is not unusual for quarry trucks 

to come close to the edge of a wall, and that usually, a 

better berm or big rocks are used to protect equipment from 

rolling over the edge to the bench below. He conceded that in 

the instant case, "we dic;l not have a very planned arrangement 

above the top of this hole" (Tr. 102). Mr. Kelly stated that 

he detected no cracks on the face of the number 3 bench or the 

wall between the number 3 and 4 benches leading into the 

cavern in question. He believed the ground conditions were 

safe for equipment to operate, and by throwing rocks down the 

cavern hole, he determined that the cavern was going down 

rather than up. He confirmed that work had been done in the 

cited bench area for the past 6 years without breaking into 

anything, and that this was the first time a cavern had been 

discovered in that area (Tr. 103). 

Mr. Kelly stated that he had no objection-to the withdrawal order at the time Mr. Rines informed him that he would 

issue it. Mr. Kelly explained that the cited area was not an 

urgent operational area, and it was simply "a side job" which 

was not holding up, production. In weeks following the order, 

Mr. Kelly and another company geologist inspected the area and 

believed that there was no problem in continuing work on the· 

number 3 bench. In addition, MSHA personnel from Pittsburgh, 

including a geologist, inspected the area and agreed that the 

only way to resolve the situation was to attempt to fill the 

cavity by drilling and blasting material from above, or 

trucking in material or bulldozing it in from above to fill 

the cavity. Mr. Kelly confirmed that the MSHA personnel did 

not believe there was any problem with proceeding in the 

manner stated in Mr. Vance's modification of July 15, namely, 

"to work on the No. 3 bench to fill the cavern down to the 

No. 4 bench" (Tr. 104). 

Mr. Kelly confirmed that no work has been done to fill 

the cavern in question because the area is not critical, and 

other pending work took priority. He explained that work had 

started at the top of the quarry in an attempt to rectify 

previous ground control withdrawal orders by making benches at 

the very top of the quarry, and it is impossible to work 

safely on the benches below because of falling rocks. The 

1757 
respondent intended to fill the cavern, but Mr. Kelly was · 

unaware of any timetable for this to be done (Tr. 105). 

Mr. Kelly· agreed that it would be unsafe to bring equipment to 

the number 4 bench to try and work around and too close to the 

cavern, but he saw no problem in the work .being performed on 

the number 3 bench on July 1, 1987, and the work which would 

be permitted by Mr. Vance's modification (Tr. 106). 

Mr. Kelly confirmed that the drill holes were 55 feet 

deep and did not reach the cavern. He estimated the thickness 

of the material below and between the surface of the number 3 

bench roadway and the cavern area to be at least 55 feet, but 

agreed that he had no idea as to the parameters of the cavern 

and conceded· that depending on the extent of the cavern, and 

its direction, the roadway could be undermined. He confirmed 

that caverns are natural occurrences in limestone mines (Tr. 

10 8). 

Mr. Kelly stated that he objected to the civil penalty 

assessment points for negligence and lack of good faith abatement, and he believed that the respondent had a good relationship with the inspectors and responded quickly to their 

requests (Tr. 109). He also stated that while he had "no 

quarrel" with the withdrawal order issued by Mr. Rines, he did 

not believe that fines and "bad marks on our r~cord for negligence and lack of good faith" were deserved (Tr. 122). When 

asked whether he agreed that a hazard existed, Mr. Kelly 

responded "we agreed to get another look from experts on the 

outside. We recognize that there's a problem there with the 

caverns. We don't pretend to know it all, about them. And 

since it was not holding up our operation, we were certainly 

willing to wait for somebody to come in and check it out" (Tr. 

122). 

Mr. Kelly confirmed that he was aware of the existence of 

the cavern hole prior to July 1, 1987, when Mr. Rines came to 

the mine, and that it had been exposed from the experimental 

drilling which was taking place to shoot. down the crack and 

"belly r6ck" which posed a hazard to a shovel and loader working below. Mr. Kelly also confirmed that he was aware of the 

fact that a network of caverns were present in that area of 

the quarry, but he was not aware that the cavern in question 

was so near to the area where drilling would be taking place. 

Previous caverns which have been exposed have been filled with 

rock (Tr. 124). 

Mr. Kelly confirmed that his contacts with MSHA's technical personnel came ~fter the order and modification were 

issued by Mr. Rines and Mr. Vance, and that he requested their 
assistance in order to obtain an outside opinion. Although 

Mr. Kelly agreed that drilling a test hole from the number 3 

bench to determine the extent of the cavern was a good idea, 

he stated that this was never suggested·by any of the MSHA 

people (Tr. 116-117). During this period _of time, no work was 

being performed on the bench and nothing further was done (Tr. 

117}. 

On cross-examination, Mr. Kelly confirmed that there are 

a number of holes in the face of the pit which have not been 

filled in, and that at the location next to the shot hole, 

there was no ·berm which was placed there intentionally (Tr. 

125). He confirmed that he walked and observed the area 

several times after the shots were shot through to the cavern, 

and saw no significant cracks which penetrated the rock to any 

depth. He confirmed that the equipment was moved to the cited 

location approximately 4 hours before the order was issued 

(Tr. 127). He also confirmed that in the past, there was 

another location where machinery and miners were working 

within 15 feet of a cavern which had .been bridged over, and 

where the thickness of the pillar was about 15 feet. However, 

he stated that aftef "we worked that for a while, we backed 

off from it. We scared ourselves" (Tr. 128). 

Inspector Vance was recalled, and he identified exhibit 

G-11, as a photograph of the cavern in question which he made 

on July 15, 1987, when he modified Mr. Rines' order, and he 

identified the area where work would be permitted to continue 

pursuant to his modification in order to fill the cavern (Tr. 

133-136). Mr. Vance st~ted that Mr. Trainer and Mr. Austin 

never told him that it was safe to operate machinery on the 

floor of the number 3 bench in the area of the cavern, and 

that the matter was not discussed. In Mr. Vance's opinion, 

proper blasting and filling should have been done to fill the 

hole (Tr. 137). He believed that this could have been done 

from a good distance away from the hole, or from the next 

bench above, or from blasting the holes which had already been 

drilled (Tr. 138). Mr. Kelly stated that this was tried, but 

that the holes were blocked off and could not be opened (Tr. 

138). 

Petitioner's Arguments 

During oral argument at the hearing, petitioner's counsel 

argued that the evidence establishes that a hazardous ground 

condition existed on July 1, 1987, and that under the circum"':' 

stances, the order issued by Inspector Rines was justified and 

that a violation of section 56.3200 has been established. 

Counsel pointed out that Mr. Kelly conceded that he had no 

1759 
knowledge of the extent of the caverri which had been exposed 

by prior.drilling and blasting, and that men and equipment 

were working on the bench area above the location of the 

exposed cavern. Although Mr. Kelly further conceded that he 

had observed ground cr~cks which he belieyed were not significant, counsel pointed out-that the cracks were not probed to. 

debermine whether they were surface or sub-surface cracks. 

Conceding that Mr. Kelly kept the area under observation after 

the cavern was exposed, since he was a trained geologist, 

counsel suggested that Mr. Kelly should have taken further 

steps to address the hazardous ground conditions, but that 

· nothing was done other than to throw some rocks into the hole 

in an attempt to determine its depth and breadth (Tr. 139-144). 

Counsel believed that once the cavern was discovered, the 

respondent had an obligation to do something about it before 

sending men back in for normal operations (Tr. 149). 

Petitioner's counsel argued further that a reasonable 

interpretation of section 56.3200 would lead one to conclude 

that the existence of surface groun'd cracks, coupled with an 

exposed cavern hole, the extent and condition of which are 

unknown, constituted a hazard to the truck and shovel operators working on the bench above the cavern. Counsel asserted 

that the respondent had a duty to at least determine the 

extent of the cavern or to fill it tip, and that drilling to 

deter~ine the extent, thickness, and integrity of the ground 

above the location of the cavern would have been the kind of 

action expected by 'MSHA to address the hazard. Counsel also 

suggested that the respondent could have called in MSHA after 

such drilling for a determination as to whether or not its 

efforts were sufficient (Tr. 147). 

In its posthearing brief, petitioner's counsel reiterates 

his arguments made at the hearing, and concludes that the 

hazard presented by the cavern hole and the surrounding ground 

conditions where work was taking place at the time of the 

inspection by Inspector Rines posed a danger and risk of 

injury to the miners working on the number 3 bench. Conceding 

that the term "hazard" is not further defined by the Act or 

MSHA's standard~, counsel cites the dictionary definitions of 

the term as found in Black's Law Dictionary, Pg. 647 (rev. 

5th ed. 1979), and Webster's Ninth New Collegiate Dictionary, 

Pg. 557 (1986), which define the term as "a risk or peril, 

assumed or involved; a danger of risk lurking in a situation 

which by chance or fortuity develops into an active agency of 

harm; a source of danger; a chance event." Counsel asserts 

that these definitions are consistent with the intent and 

purpose of the standards found in 30 C.F.R. Part 56, namely, 

the "protection of life, the promotion of health and safety, 

1760 
and the prevention of accidents." .Counsel also points out 

that the rulemaking history concerning the promulgation of 

section 56.3200, reflects an intention that the standard have 

broad application and would apply wherever a fall of ground 

hazard is present. 

Counsel asserts that the respondent violated section 

56.3200, by permitting miners to operate heavy equipment in 

the vicinity of the cavern or hole, the extent of which was 

unknown, but which it knew existed beneath the area where the 

work was being performed. Counsel concludes that this conduct 

by the respondent violated the standard because any ground 

condition which creates a risk of injury to a miner must be 

taken down or supported before miners resume work: in the 

vicinity of that ground condition. 

Respondent's Arguments 

In support of his belief that the cited area did not pose 

a hazard, Mr. Kelly relies on the fact that Inspector Vance's 

modification to the order issued by Inspector Rines allowed 

entry to the cited area for the purpose ~f removing materials 

from the floor of the number 3 bench to fill the cavern on the 

number 4 bench. Mr. Kelly asserted that the modification 

indicated to him that without doing anything else, work could 

safely proceed in the cited nlli~ber 3 bench area to excavate 

materials in an attempt to fill the cavern hole below. Since 

this permitted excavation work was precisely what was being 

done on July 1, 1987, when work was stopped by the withdrawal 

order issued by Inspector Rines, Mr. Kelly did not believe 

that a hazard existed on that day (Tr. 117-118). Mr. Kelly 

advanced this sam49 argument when he stated as follows in his 

posthearing argument filed in this case: 

The respond~nt requests that the monetary 

penalty assessment, penalty points f6r negligence, penalty points for lack of good faith 

and the citation on our record with MSHA should 

all be rescinded. We followed the inspector's 

instructions promptly, courteously and 

explicitly when he ordered us to withdraw from 

the area. We had other MSHA officials visit 

the site as requir2d. Two weeks later MSHA 

modified the withdrawal order to permit us to 

return to work at the same location under the 

same conditions. The modification of the order 

mak~s me believe that the alleged safety hazard 

was not serious enough to be citable in the 

first place. 

1761 
Findings and Conclusions 

Fact of violation 

The respondent is charged with an alleged violation of 

mandatory safety standard 30 C.F.R. § 56.3200, ~hich provides 

as follows: 

.Ground conditions that create a hazard to 

persons shall be taken down or supported before 

other work or travel is permitted in the 

affected· area. Until corrective work is completed, the area shall be posted with a warning 

against entry and, when left unattended, a 

barrier shall be installed to impede unauthorized entry. 

The respondent's position with respect to the existence 

of any hazardous ground conditions rests on Mr. Kelly's 

argument that the modified order issued by Inspector Vance 

allowed work to continue in the very same area which Inspector 

Rines determined was hazardous. Mr. Kelly also believed that 

there was sufficient ground support and stability bet~een the 

two benches in question to allow the trucks and shovel to 

operate without posing a hazard to miners or equipment. 

Although the two actions.taken by the inspectors appear 

to be contradictory and lend some support to Mr. Kelly's argument, I tak.e note of Mr. Vance's explanation concerning the 

area ~hich he had in mind when he modified the order to allow 

work to proceed to address the hazardous giound conditions. I 

also take note of the fact that Mr. Vance's modification is 

qualified and conditional in that it allowed work to the limit 

of the area previously sprayed in red paint by Mr. Rines. 

Taken in context, I cannot conclude that Mr. Vance's modification per se supports a reasonable inference that the ground 

conditions which he and Mr. Rines believed were.hazardous 

never existed. In my view, any determination as to whether or 

not any hazardous conditions were present at the time the 

order/citation was issued by Mr. Rines must be made on the 

basis of an evaluation of all of the facts and evidence available to .Mr. Rines when he made his evaluation of the ground 

conditions and came to the conclusion that they presented a 

hazard to miners while they were engaged in the excavation 

work which was taking place at that time. 

1762 
Although Inspector Rines made reference to a drill shot 

on the ~o. 4 bench in his order, he clarified this by confirming that ·the violation did not directly involve the number 4 

bench because it was blocked off by stored materials and there 

was no access into the area by any equipment, and that his 

reference to the number 4 bench was intended to ref er to a 

production shot on the nwnber 4 bench if it were to be mined 

(Tr. 114-115). Mr. Kelly agreed that Mr. Rines was concerned 

that the ground on the number 3 bench could give.way to the 

cavern b~low, and his belief of the existence of a hazard 

because of a possible vertical drop of equipment caused by the 

edge of the bench cracking and coming down from the weight of 

the equipment operating over the cavern hole (Tr. 113). 

The evidence in this case reflects that Inspector Rines 

issued the withdrawal order/citation on July 1, 1987, after 

observing the exposed cavern and cracks in the floor of the 

number 3 bench and the £ace of the number 4 bench. Coupled 

with the uncertainty as to the extent of the cavern or hole 

which had been exposed by prior blasting and drilling, 

Mr. Rines concluded that the ground conditions where trucks 

and a shovel were engaged in the excavation and removal of 

materials were such as to create a hazard in that the weight 

of the equipment could have caused the floor of the number 3 

bench to give way beneath the trucks and shovel. Two weeks 

later, on July 15, 1987, Inspector Vance viewed the same 

ground conditions, and he observed cracks in the floor of the 

number 3 bench near the shot hole, and cracks in the immediate 

vicinity in and around the hole. Mr. Vance also believed that 

the ground cohditions he observed presented a hazard in that 

the rock and material could give way, causing a vehicle to go 

into the cavern. 

Mr. Kelly confirmed that he had no quarrel with the withdrawal order issued by Inspector Rin~s. Mr. Kelly confirmed 

that the quarry area in question had a history of underground 

caverns, and that the particular location which was cited by 

Mr. Rines was selected for drilling and blasting because it 

had "bellied out" with hanging ~ock, was cracked in at least 

one location, an.d that the wall between the number 3 and 

4 benches was "pretty ragged." Mr. Kelly conceded that these 

conditions posed a hazard to miners and equipment working 

below. He also alluded to a prior incident where equipm~nt 

and miners were withdrawn from a working area over a cavern 

with a pillar thickness of 15 feet because "we scared ourselves." Mr. Kelly also confirmed that caverns may vary from 

inches wide to 100 feet wide, and he conceded that n6 drilling 

was done to determine the direction or extent of the cavern in 

question, and that in the event it extended back under the 

1763 
number 3 bench, the roadway used by the truck and shovel could 

be undermined by the cavity. Although Mr. Kelly saw no 

problem with working on the number 3 bench, he agreed that it 

would be unsafe to bring in equipment to try and work around 

and too close to the cavern. 

After careful consideration of all of the facts in this 

case, I conclude and find that the petitioner has established 

by a preponderance of all of the evidence that the ground 

conditions observed by Inspector Rines were hazardous and 

presented a risk and danger to the miners who were performing 

work in the cited area. Although the respondent was aware of 

the hazard presented by the cavern which had previously been 

exposed in the course of drilling and blasting to excavate and 

remove materials from the area, it simply kept the. area under 

observation and took no action to fill the cavern or take down 

and support the rock and materials in the affected area. 

Under the circwnstances, I conclude and find that a violation 

of section 56.3200, has been established, and the citation IS 

AFFIRMED. 

Significant and Substantial Violation 

A "significant arid substantial" violation is described in 

sectiori 104(d)(l) of the Mine Act as a violation "of such 

nature as could significantly and substantially contribute to 

the cause and effect of a coal or other mine safety or health 

hazard." 30 C.F.R. § 814(d)(l). A violation is properly 

designated .significant and substantial "if, based upon the 

particular facts surrounding the violation there exists a reasonable likelihood that the hazard contributed to will result 

in an injury or illness of a reasonably serious nature." . 

. Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 

19 81) • 

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

Commission explained its interpretation of the term "signif icant and substantial" as follows: 

In order to establish that a violation of 

a mandatory safety standard is significant and 

substantial under National Gypsum the Secretary 

of Labor must prove: Cl) the underlying violation of a mandatory safety standard; (2) a discrete safety hazard--that is, a measure of 

danger to safety-contributed to by the violation; (3) a reasonable likelihood that the 

hazard contributed to will result in an injury; 

and (4) a reasonable likelihood that the injury 

1764 
in question will be of a reasonably serious 

nature. 

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

1125, 1129, the Commission stated further ~s follows: 

We have explained further that the third 

element of the Mathies formula "requires that 

the Secretary establish a reasonable likelihood 

that the hazard contributed to will result in 

an event in which there is an injury." U.S. 

Steel Mining Co., 6 FMSHRC 1834, 1836 (August 

1984). We have emphasized that, in accordance 

with the language of section 104(d)(l), it is 

the contribution of a violation to the cause 

and effect of a hazard that must be significant 

and substantial. U.S. Steel Mining Company, 

Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. 

S't'eel Mining Company, Inc., 6 FMSHRC 1573, 

1574-75 (July 1984). 

The question of whether any particular violation is 

significant and substantial must be based on the particular 

facts surrounding the violation, including the nature of the 

mine involved, Secretary of Labor v. Texasgulf~ Inc., 

10 FMSHRC 498 (April 1988); Youghiogheny & Ohio Coal Company, 

9 FMSHRC 2007 (December 1987). 

I conclude and find that the hazardous ground conditions, 

including the unknown extent of the cavern hole beneath the 

bench where men and equipment were working, presented a danger 

of the ground giving way under the weight of the equipment. 

In the event this had occurred, I believe it would be reasotiably likely that the miners working in the area would have 

suffered injuries or a reasonable serious nature. Under the 

circumstances, I agree with the inspector's "significant and 

substantial" finding, and IT IS AFFIRMED. 

History of Prior Violations 

An MSHA computer print-out reflects that for the period 

July 1, 1985 through June 30, 1987, the respondent paid civil 

penalty assessments in the amount of $570 for 10 section 

104(a) citations, seven of which are $20 "single penalty" 

assessments. I take note of the fact that none of the prior 

citations are for violations of the safety standard cited in 

this case, or for any ground control violations. 

1765 
Inspector Rines was of the opinion that the respondent's 

compliance record was "a little bit higher than normal" as 

compared to quarries of similar size. In addition, he stated 

that the respondent has had chronic ground control problems 

which have been of concern to MSHA, and th.a_t several ground 

control imminent danger orders have been issued, terminated, 

or are still outstanding at the quarry. Mr. Rines believed 

that the respondent 1 s ground control practices were poor, and 

he confirmed that the two outstanding imminent danger orders 

were issued in 1984, but that no active mining was taking 

place in those areas. Mr. Rines explained that a previous 

slide caused ·by blasting and drilling close to the highwall 

resulted in some of the material sliding into the quarry, and 

that MSHA has been on the property periodically attempting to 

control the overburden so that the quarry may be made safe 

(Tr. 60-70). 

Although petitioner's counsel stated that Inspector Rines 

believed that the respondent had a "poor attitude" in connection with ground control, I find no credible evidence to 

support any such conclusion. Further, even.though the respondent may have been served with prior imminent danger orders, 

some of which may be outstanding, this does not per se establish a "poor attitude" with respect to ground control. Absent 

any facts or evidence to the contrary, I cannot conclude that 

the respondent has failed to comply with any MSHA orders or 

directives, nor can I conclude that the record in this case 

supports a finding that the respondent's compliance record 

with respect to its paid history of assessed civil penalties 

is such as to warrant any additional increase in the civil 

penalty assessment which has been made for the violation in 

question. 

Size of Business and Effect of Civil Penalty Assessment on the 

Respondent's Ability to Continue in Business 

The parties stipulated that the respondent is a 

medium-size mine operator and that the civil penalty assessment made in this case will not adversely affect its ability 

to continue in b~siness. I adopt these stipulations as my 

£indings and conclusions on these issues. 

Gravity 

On. the basis of my findings and conclusions affirming the 

"significant and substantial" findings made by Inspector 

Rines, I conclude and find that the violation in question was 

serious. The unstable ground conditions presented a hazard to 

bo·th the miners and equipment working in the cited bench area. 

1766 
Negligence 

Insp~ctor Rines made a finding of "moderate" negligence# 

and he testified that "their negligence wasn't all that high. 

They just hadn't done anything." The evidence establishes 

that the respondent was aware of the cavern which had been 

exposed as a result of prior drilling and blasting which was 

done in an effort to take down part of the bench wall which 

had cracked and "bellied out." Although Mr. Kelly confirmed 

that he was aware of the cavern and had inspected it and kept 

it under observation prior to the inspection by Mr. Rines, no 

particular action was taken to fill the hole or to determine 

its extent, and the area was not barricaded or otherwise 

secured against entry. Under the circumstances, I conclude 

and find that the violation resulted from the respondent's 

failure to exercise reasonable care, and the inspector's negligence finding is affirmed. 

Good Faith Abatement 

The record reflects that the cited conditions have not 

been corrected, and that the dontested order is still "outstanding." The respondent has apparently opted to leave the 

affected area and continue its mining operations elsewhere in 

the quarry. The petitioner has stipulated that the respondent 

acted in good faith by immediately withdrawing the miners and 

equipment from the cited area, and I find no evidence that the 

respondent has been uncooperative with MSHA in attempting to 

address the hazardous gr6und conditions in question. 

Mr. Kelly testified that in compliance with Inspector Rines' 

order, the respondent requested assistance from MSHA's technical support personnel, and petitioner's counsel agreed that· 

the unstable ground conditions in the area of the cavern presented a difficult situation in that any attempts to go back 

into the area to evaluate the ground conditions, including the 

filling of the cavern hole, would in itself present a hazard 

and danger (Tr. 150, 154). I find no evidence that the respondent has ever attempted to place men or equipment back to work 

in the area which has been withdrawn. 

Petitioner's counsel agreed that the respondent withdrew 

its miners as soon as the order was issued and that the designated danger area has in effect been dangered or marked off 

and has remained so to the present. Counsel conceded that 

once this was done, "the violation ceased to exist," and he 

could off er no explanation as to why the respondent received 

"negative" civil penalty assessment points with respect to the 

issue of good faith (Tr. 109-112). Under all of the aforesaid 

1767 
.. cir.cums tances, I conclude and .find that t·he respondent acted 

in good faith once the order/citation was issued, and I have 

taken this into account in the civil penalty assessment which 

I have made for the violation iri question. 

Civil Penalty Assessment 

On the basis of the foregoing findings and conclusions, 

and taking into account the requirements of section llOCi) of 

the Act, I conclude and find that a civil penalty assessment 

in the amount of $250 is reasonable and appropriate for the 

violation which has been affirmed in this case. 

ORDER 

The respondent IS ORDERED to pay a civil penalty in the 

amount of $250 for a violation of mandatory safety standard 

30 C.F.R. § 56.3200, and payment is to be made to MSHA within 

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

receipt of payment, this proceeding is dismissed. 

~~K~~ Administrative Law Judge 

Distribution: 

Page ft. Jackson, Esq., Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, Room 516, 

Arlington, VA 22203 (Certified Mail) 

James River Limestone Company, Inc., Drawer 617, Buchanan, 

VA 24066 (Certified Mail) 

Mr. H. A. Kelly, Route 3, Box 482, Buchanan~ VA 24066 

(Certified Mail) 

/f b 

1768 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 2 8 \988 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

FAITH COAL COMPANY, 

Respondent 

Docket No. SE 88-50 

A.C. No. 40-02701-03526 

Goforth Mine 

DECISION 

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

Department of Labor, Nashville, Tennessee, for the 

Petitioner; 

Philip A. Condra, Esq., Dunlap, Tennessee, for the 

Respondent. 

Before: Judge Maurer 

This case is before me upon a petition for assessment of 

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

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

Pursuant to notice, a hearing on the merits was held in 

Chattanooga, Tennessee, on October 14, 1988. At the conclusion 

of the hearing, the parties proposed a settlement of the case. 

Based on the testimony adduced in the record, the petitioner 

proposed reducing the charged negligence factor concerning 

Citation No. 2808790 from "high" to "moderate" and reducing the 

proposed penalty for both violations at bar from $179 to $156. I 

have considered the representations and documentation submitted · 

in this case as well as the record of trial and I conclude that 

the proffered settlement is appropriate under the criteria set 

forth in section llDCi> of the Act. 

WHEREFORE,·the motion for approval of settlement is GRANTED, 

Citation Nos. 2808790 and 2808791 are affirmed, and it is ORDERED 

that respondent pay a penalty of $156 within 30 days of this 

order. 

Roy J. a rer 

Admini~trative Law Judge 

1769 
Mary Sue Ray, Esq.·, U.S. Department of Labor, Office of the 

Solicitor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 

37215 (Certified Mail) 

Philip A. Condra, Esq., 207 Rankin Avenue South, P.O. Box 307, 

Dunlap, TN 37327 (Certified Mail) 

/ml 

1770 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 291988 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

on behalf of 

FORD ALLEN AMOS, 

Complainant 

v. 

NALLY AND HAMILTON 

ENTERPRISES, INC., 

Respondent 

. . 

. . 

. . 

. . 

. . 

. . 

DISCRIMINATION PROCEEDINGS 

Docket No. KENT 88~175-D 

BARB CD 88-24 

Kay Jay Mine 

DECISION 

Appearances: William F. Taylor, Esq., Office of the 

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

Tennessee for the Complainant; 

Lloyd R. Edens, Esq., Cline & Edens, 

Middlesboro, Kentucky for the Respondent. 

Before: Judge Melick 

This case is before me upon the Complaint by the 

Secretary of Labor on behalf of Ford Allen Amos under section 

105(c)(2) of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 801 et seq., the "Act," alleging that Mr. Amos 

was discharged by Nally and Hamilton Enterprises, Inc. 

(Nally) on February 22, 1988, in violation of section 

105(c)(l) of the Act.1/ The Secretary seeks reinstatement, 

damages and interest for Mr. Amos as well as civil penalties 

against Respondent Nally. Nally maintains that Amos was in 

fact not discharged but quit on his own volition and 

therefore suffereo no adverse action within the meaning of 

section 105(c)(l). 

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

No person shall discharge or in any manner 

discriminate against or cause to be discharged or 

cause discrimination against or otherwise interfere 

with the exercise of the statutory rights of any 

1771 
In order to establish a prima facie violation of 

section 105(c)(l), the complainant must prove by a 

preponderance of the evidence that he engaged in an activity 

protected by that section and that he suffered an adverse 

action that was motivated in any part by that protected 

activity. Secretary on behalf of Pasula v; ·consolidaton Coal 

Company, 2 FMSHRC 2786 (1980) rev'd on other grounds sub~· 

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

Cir. 1981); Secretary on behalf of Robinette v. United Castle 

Coal Co., 3 FMSHRC 803 (1981). 

It is not disputed that during the week before Mr. Amos' 

February 22, -19 88, departure from the Nally Kay Jay Mine he 

had been "docked" 30 minutes pay for purportedly having 

stopped work early on several occasions. Amos' foreman, 

Johnny Jackson, testified that he watched_Amos and fellow 

truck driver Wayne Roark quit early on two occasions and 

explained this to Amos when Amos complained of his paycheck. 

Amos disputed that he had quit early and the matter was still 

at issue at the time of a confrontation between Amos and 

Jackson on February 22, 1988. At this time Jackson was 

admittedly also angry, believing that Amos was stirring up 

employee dissension by spreading rumors that he would 

complain of his reduced pay to company owner Tommy Hamilton. 

cont'd fn.1/ 

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 ~n alleged 

danger or safety or health ~iolation 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 sect~on 101 or 

-because such miner represent~tive of minerd 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. 

1772 
According to Amos, on the evening of February 22, 1988, 

Jackson appeared at the worksite and called he and Darryl 

Akers off their 50 ton haulage trucks. A heated exchange 

followed. Amos explained what happended in the following 

.colloquy: 

We were standing there and Johnny looked at me and 

s~id "I want. all this talk about going to Tommy 

Hamilton stopped •. " I. said "John~y, I can't get y.ou 

to fix my truck, you won't do nothing for the truck 

and if you don't believe me, get up there and drive 

it. 11 · I said "now you come up here and cut my time 

for something I didn't do." That's when he said 

"as of right now your time is stopped." I said 

"what do ~ou mean, Johnny? He said "you are fired." 

(Tr. 111)_/ 

While Amos maintained at hearing that he was in fact 

discharged at the time of this confrontation, he nevertheless 

immediately returned to work driving his 50 ton haulage truck. 

Amos also acknowledged that Jackson saw him get back into the 

truck. This evidence is consistent with Jackson's testimony 

that after the confrontation he told Amos to go back to work .. 

At hearing, Amos confirmed that he continued working after 

the confrontation in which he claims he was fired but claims 

he did so because he thought he could get his job back. 

After continuing to work for about three hours, Amos 

decided to leave. He drove his pick-up truck to the mine 

exit where he met Matt Roark and Jackson. Amos described, 

what ha~pened as follows; 

When I reached the shop there was Matt Roark, he 

was standing beside the shop and I stopped there 

first and hollered at Matt Roark to come over to my 

truck. I had a blanket in my truck which there was 

a guy that rides tb work with me and he sat on the 

blanke~ on the way home because he was a grease man 

and he got oily and stuff. I said "Matt" and Matt 

looked at me and said "what is it?" I· said "Johnny 

fired me." I said "I want you to give this blanket· 

to Ronnie so he could drive in the other guy's 

truck." I pulled alongside Johnny. He said "what 

is it?" I said "you fired me." He just grinneCl at 

me • ( Tr • 112 ) • 

~/ At hearing, co-worker Wayne Roark generally corroborated 

Amos' version of this confrontation. 

1773 
Foreman Johnny Jackson testified that indeed he founO. 

that Amos and Wayne Roark had been quitting work early. He 

observed them do so on several occasions before docking their 

pay. When Amos received his short paychec~ Jackson explained 

the reason for the deduction. Jackson later became concerned 

because he heard rumors that Amos was threatening to take his 

complaints to company owner Tommy Hamilton. According to 

Jackson this was causing turmoil among his workers and 

therefore, at the February 22, confrontation, he told Amos in 

essence that if he did not stop the rumors he would be fired. 

Jackson testified that he then told Amos to "get on your 

truck and hau1·rock11 ."!._/ · 

Jackson also described what happened later when Amos 

approached the exit gate: 

At the time that he come up there, Matt got out of 

my.pickup and walked around to the front and he 

asked Mr. Amos was he broke down and what was wrong. 

He said "no, Johnny fired me a while ago," and he 

pulled up and Matt was standing, you know, like at 

the corner of my pickup and I said "what is your 

problem?" He said "you fired me." I said "no, 

son, I didn't fire you." (Tr. 251). 

After this exchange Amos left the job site and did not 

return. He later was paid for the additiorial work he 

performed that evening after the initial confrontation. 

The credible evidence in this case shows clearly that 

after Amos claims he was "fired" he nevertheless, in the 

presence of the man who purportedly f iced him, immediately 

returned to work driving his haulage truck and continued to 

work for another three hours before deciding to leave the job. 

This behavior is totally inconsistent with what would be 

expected from someone who has just been £ired and what would 

be permitted by a foreman who has just fired him. While Amos 

testified that he continued to worK because he thought he 

might thereby be able to retain his job, this testimony only 

confirms that there had never been any real termination of 

Amos' employment in the first place. 

3/ Charles Jackson a company "oiler" testified that he 

;verheard Johnny Jackson tell Amos "to get on his truck and 

haul rock". 

1774 
It is also significant that when Amos later decided to 

leave the job after continuing to work for about three hours 

he apparently surprised the person (Johnny Jackson) who he 

claims had earlier fired him as he approached the exit gate 

because Jackson apparently asked Amos "what __ is it?" or "what 

was wrong?" Amos concedes that he then had to explain why he 

was leaving the job site by telling Jackson "you fired me". 

If Amos had indeed earlier been fired there would hardly be 

need to explain why he was then leaving the job site. Under 

the circumstances I do not find that the Complainant has met 

her burden proving that Amos had in fact ever been fired as 

he alleges or that he was subject to any adverse action 

within the meaning of section lOSCc)(l) of the Act. 

Accordingly this case must be dismissed. 

ORDER 

Discrimination Proceedings Docket No. ENT 88-175 Dare 

hereby dismissed. I 

! 

Distribution: 

G ry M~ ick 

Lt\./~i \_,/ (JJ~ . 

Adminis rative L w Judge · 

(703) 7~6-6261 /! ) . } 

I • ,i 

w. F. Taylor, Esq., Office of the Solicitor, U.S. Department 

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

37215 (Certified Mail) 

Lloyd R. Edens, Esq., Cline & Edens, Post Office Drawer 2220, 

Middlesboro, KY 40965 (Certified Mail) 

nt 

1775 
FEDERAL MIN£ SAFETY AND HEAL TH 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. 

ZEIGLER COAL COMPANY,· 

Respondent 

DEC 2 91988 

. . CIVIL PENALTY PROCEEDING 

Docket No. LAKE 88-89 

: A.C. No. 11-00612-03534 . . 

. . 

. . 

Spartan Mine 

DECISION 

Appearances: Miguel J. Carmona, Esq., Office of the Solicitor, 

U.S. Department of Labor, Chicago, IL; for the 

Petitioner 

Brent Motchan, Esq., Zeigler Coal Company, Fairview 

Heights, IL, for the Respondent. 

Before: Judge Maurer 

This case is before me upon a petition for assessment of 

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

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

Pursuant to notice, a hearing on the merits was held in 

St. Louis, Missouri, on October 7, 1988. At the conclusion of 

the reporting inspector's testimony, the parties proposed a 

settlement of the case. Based on the testimony adduced in the 

record, the petitioner proposed reducing the charged negligence 

from "high" to "low", withdrawing the "unwarrantable failure" 

contention and reducing the proposed penalty from $1000 to $250. 

I have considered the representations and documentation submitted 

in this case as well as the record of trial and I conclude that 

the proffered settlement is appropriate under the criteria 

set forth in section llOCi> of the Act. 

WHEREFORE, the.motion for approval of settlement is GRANTED, 

Citation No. 3042299 is hereby modified to one issued under 

Section 104Ca) of the Act, and it is ORDERED that respondent pay 

a penalty of $250 within 30 days of this order. 

aurer 

s rative Law Judge 

1776
Distribution: 

Miguel J. Carmona, Esq., Office of the Solicitor, U.S. 

Department of Labor, 230 South DearbOrn Street, Chicago, IL 

60604 (Certified Mail) 

Brent Motchan, Esq., zeigler Coal Company, 331 Salem 

Place, Fairview Heights, IL 62208 (Certified Mail) 

/ml 

1777 
FED:ERAL M1NE SAFETY AND HEALTH REVIEW COM,MISS·ION· 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

.. FALLS CHURC,H. VIRGIN.IA 22041. 

DEC 2 91988 

SECRETARY OF LABOR, 

MINE SAFETY ·A.Nrl HEALTH ' ,, 

ADMINISTRATIC)N (MSHA'} ·;r l.: 

DISCRIM~NATION PROCEED~NG 

Docket No. WEVA 88-281-D 

ON BEHALF OF RAYMOND LONG, HOPE 88-12 

.Complainant 

v. 

CANNELTON INDUSTRIES, INC., 

Respondent 

. •' 

No. 130 Mine 

DECISION APPROVING SETTLEMENT 

AND DISMISSING PROCEEDING 

Before: Judge Broderick 

On December 15 and 19, 1988, the Secretary filed a 

motion to approve a settlement agreed to by all parties to 

this proceeding. Respondent agrees to send the letter 

attached to the motion as Exhibit 1, to complainant Long, 

and to post a copy of. the letter at the mine for 30 days. 

Respondent agrees to expunge the written warning issued to 

Long from his personnel file. It further agrees not to 

consider the incident of February 12, 1988, in any disciplinary 

action or personnel decision involving complainant. 

Respondent agrees to set up a training program for its foremen 

regarding the provisions of section lOS(c} of the Mine Act. 

The program shall conform to the outline attached to the 

motion as Exhibit 2 and may be monitored by MSHA. It 

further agrees to pay a civil penalty of $1000, and to post 

a copy of the motion and this order at the mine for 30 days. 

This case does not involve any lost time or claim for 

back. pay or expenses. I have considered the motion in the 

light of the purposes of section 105(c) of the Act, and 

conclude that it should be approved. 

Accordingly, the motion to approve settlement is GRANTED; 

Respondent is ordered to carry out the terms of the settlement, 

and to pay the civil penalty of $1000 within 30 days of the 

date of this decision. Subject to Respondent carrying out 

the terms of the settlement, this proceeding is DI~MISSED. 

I J I . 

'lf.,i·ut::A' _,AJ~'Ji_r.,rfi.~·-it'Jl 

,// James A. Broderick Cf Administrative Law Judge 

177R 
Distribution: 

Page H. Jackson, Esq., U.S. Department of Labor, Office of 

the Solicitor, 4015 Wilson Blvd.,· Arlington, VA 22203 

(Certified Mail) 

Laura E. Beverage~ Esq., Jackson & Kelly, 1600 Laidley Tower, 

P.O. Box 553, Charleston, WV 25322 (Certified Mail) 

·Raymond Long, General Delivery, Beard's Fork, WV 25014 

{Certified Mail) 

William "Bolts" Willis, United Mine Workers of America, 

Box 126, Pratt, WV 25162 (Certified Mail) 

slk 

1779 
·FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSIO'N 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC: 301988 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Petitioner 

Docket No. PENN 88-227 

A. C. No. 36-0647S~03S01 

v. 

Iselin Preparation Plant 

PENNSYLVANIA ELECTRIC COMPANY,: 

Respondent 

DECISION 

" 

Appearances: Therese I. Salus, Esq., U.S. Department of 

Labor, Office of the Solicitor, Philadelphia, 

Pennsylvania for the Petitioner; 

Timothy N. Atherton, Esq., Pennsylvania 

Elect~ic Company, Johnstown, Pennsylvania and 

John P. Proctor, Esq., Bishop, Cook, Purcell, 

Reynolds, for Respondent. 

Before: Judge Melick 

This case is before me upon the petition for civil 

penalty filed by the Secretary of Labor pursuant to secti.on 

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

30 u.s·.c. § 801 et seq., the "Act," charging the Pennsylvania 

Electric Company (Penelec) with two violations of regulatory 

standards. The general issues before me are whether Penelec 

violated the cited regulatory standards and, if so, whether 

those viola~ion~ were of such a nature as could have 

significantly and substantially contributed to the cause and 

effect of a mine safety or health hazard, i.~. whether the 

violations were "significant and substantial". More 

specifically the threshold issue in this case is whether the 

specific areas cited in this case i.e. the head drives of 

conveyors SA and SB at Penelec's Homer City Steam Electric 

Generating Station, come within the Secretary's jurisdiction 

under the Act. If jurisdiction is established and violations 

are found, it will also be necessary to determine the 

appr6priate civil penalty to be assessed in accordance with 

section llOCi) of the Act. At hearing the parties submittea 

the case on joint stipulations of facts (Appendix A) 

supplemented by documentary evidence. 

1780 
Section 4 of the Act provides that "[e]ach coal or other 

mine, the products of which enter commerce, or the operations 

. or products of which affect commerce, and each operator of 

such mine, and every miner in such mine ~hall be subject to 

the provisions of this Act." It is not disputed that the 

Secretary's jurisdiction in this case is accordingly to be 

determined by whether the head drives for the SA and SB 

conveyors at issue are part of a facility that is a "coal or 

other mine". 

"Coal or other mine" is defined in Section 3Ch)(2) 

as follows: 

•••• [A]n area of land and all structures, 

facilities, machinery, tools, equipment, shafts, 

slopes, tunnels, excavations, and other property, 

real or personal, placed upon, under, or above the 

surface of such land by any person, used in, or to · 

be used in, or resulting from, the work of 

extracting in such area bituminous coal, lignite, 

or anthracite from its natural deposits in the 

earth by any means or method, and the work of 

preparing the coal so extracted, and includes 

custom preparation facilities ••• 

Section 3Ci> defines "work of preparing the coal" as 

" ••• the breaking, crushing, sizing, cleaning, washing, 

drying, mixing, storing, and loading of bituminous coal, 

lignite, or anthracite, and such other work of preparing such 

coal as is usually done by the operator of the coal mine." 

The legislative history of the Act also indicates that 

the definition of a "mine" is to be given the broadest 

possible interpretation and that doubts should be resolved in 

£avor of inclusion of a facility within its coverage. See 

S.Rep. No. 181, 9Sth Cong., 1st Sess., 1, 14, reprinted in 

1977 U.S. Code Cong. Admin. News, pp 3401, 3414. Marshall v. 

Stoudt's Ferry Preparation Co., 602 F.2d S89, S92 (3rd Cir. 

1979). See also Donovan v. Carolina Stalite Co., 734 F.2d 

1S47 (D.C. Cir. 1984); Harman Mining Corp.,.v. Federal Mine 

Safety and Health Review Commission, 671 F.2d 794 (4th Cir. 

1981); and Cypress Industrial Minerals Co. v. Federal Mine 

Safety and Health Review Commission, 664 F.2d 1116 (9th .Cir. 

19 81) . 

In summary, for purposes of the jurisdictional issue 

before me, the relevant undisputed evidence.shows that amorig 

other operations, raw coal is received at the Homer City · 

truck receiving facility where it may then be conveyed · 

through a crusher. Eventually the raw coal is transported by 

1781 
conveyors SA and SB Cover the SA and SB head drives at issue) 

through Bin No. 2 and then to the Iselin Preparation Plant 

where it is broken, crushed, sized, washed; cleaned, dried 

and blended. The useable coal product is then directed for 

use in the generating station boilers to pr_o_duce electrical 

energy. 

Within this framework of evidence it is clear that at 

least some raw coal is transported on the SA and SB conveyor 

belts which run over the SA and SB head drives on its way to 

the Iselin Preparation Plant. At the preparation plant the 

coal is broken, crushed, sized, washed, cleaned, dried and 

blended in· preparation for consumption in the Penelec 

generating station. These activities are all within the 

scope of "work of preparing coal" within the meaning of 

section 3(i) of the Act. It is also clear that the head 

drives over which t6e raw coal passes on its way to such 

preparation are "structures", "equipment", and "machinery" 

that is "used in or to be used in" the "work of preparing the 

coal". See Secretary v. Mineral Coal Sales, Inc., 7 FMSHRC 

.615 (198S). 

In distinguishing the Mineral Coal Sales case from 

the case of secretary v. Oliver M. Elam, Jr. Company, 2 

FMSHRC 1S72 (1982), the Commission observed that an 

examination of the nature of the Mineral Siding operation 

reveals that, unlike the commercial loading dock in Elam in 

which coal was crushed merely to facilitate- loading and 

transportation on barges, at Mineral Siding all of the above 

listed work activities (coal storage, mi~ing, crushing, 

sizing and loading) were performed on the coal to make it 

suitable for a particular use or to meet market specifications. In the instant setting a simiilar broad range of coal 

preparation activities are conducted and are directed to the 

particular purpose of consumption in the Penelec generating 

station. Under all t:he circumstances it is- clear that the 

head drives of the SA and SB conveyor belts are indeed 

subject t6 the Secretary's jurisdiction under the Act. 

In accordance with the joint stipulations, Penelec does 

not challenge the findings that the SA and SB conveyor head 

drives were inadequately guarded as charged in the citations 

and that "MSHA had otherwise satisfied its burden of proof 

with regard to Citations Nos. 2884282 and 2884283 and the 

penalties proposed therefore". I have considered the 

documentation and other evidence submitted in these 

proceedings and conclude that the evidence does indeed 

support the violations and the proposed penalties. In 

particular I find that the operator is chargeable but with 

little negligence. It is undisputed that Penelec was 

1782 
operating on the good faith belief that the SA and SB 

conveyor head drives were subject only to the inspection 

jurisdiction of the Occupational Safety and Health 

Administration. Moreover it is undisputed that Penelec was 

in compliance with that administration's re_g_ulations. 

ORDER 

Citations No. 2884282 and 2884283 are affirmed as 

"significant and substantial" citations and the Pennsylvania 

Electric Company is directed to pay civil penalties of $S4 

for each violation within 30 days of the date of this 

decision. In light of this decision on the merits the 

post-hearing Motion to Dismiss and/or For S,ary Judgment 

filed by Respondent is denied. 

l/ \ .. /: 

Distribution 

\ • ~~ ,r:! 

I

' : .. , . \ '~ i: 

.f w~ ;t~~-~-'-\.. Gary Melick '\ 

.Administrative .:Law Judge 

(703>: 7S6-6261 J v . Therese I. Salus, Esq.~ Office of the Solicitor, U.S. 

Department of Labor, 353S Market Street,· Philadelphia, PA 

19104 (Certified Mail) 

Timothy N. Atherton, Esq., Pennsylvania Electric Company, 

1001 Broad Street, Johnstown, PA 1S907 (Certified Mail) 

John P. Proctor, Esq., Bishop, Cook, Purcell, Reynolds, 1400 

L Street, N.W., Washington, D.C. 2000S-3S02 (Certified Mail) 

nt 

1783 
Appendix A. 

A. P~ocedural History 

1. The Homer City Steam Electric Generating Station, 

Homer City, Indiana County, Pennsylvania, is operated by 

Penelec and owned by Penelec and the N~w York State Electric 

& Gas Corporation C"NYSEG"), each with an undivided fifty 

percent ownership interest. 

. 2. On August 2S, 1977, Penelec met with, discussed and 

reached a verbal understanding with the Mininig Enforcement and 

Safety Administration ("MESA"), predecessor of the Mine Safety 

and Health Administration C"MSHA"), regarding MESA's and the 

Occupational Safety and Health Admini~tration ("OSHA")'s 

jurisdiction over the coal cleaning and coal handling facilities 

at the Homer City Station. · 

3. On January 7, 1988, MSHA inspector John Kopsic issued 

two citations to Penelec for alleged violations of · · 

30 C.F.R. § 77.400Cc) at the Homer City coal handling facility in 

an area known as "Conveyors 5A and SB" (e.g., the No. SA and SB 

head drives for the belt conveyor were inadeqQately guarded). 

(See, "Coal Flow Diagram", attached hereto as Exhibit "A"). 

4. Notwithstanding the August 1977 understanding, MSHA · 

has without Respondent's knowledge inspected the head drives of 

.the SA and SB conveyors and did so on January 7, 1988, without 

prior notice to Penelec. 

S. Shortly after issuance of the subject citations, 

· Penelec requested an informal conference which was held among 

various Penelec and MSHA personnel on or about February 18, 1988. 

·MSHA refused to vacate the subject citations. Richard E. Orris, 

Penelec's former Manager-Safety, by letter dated February 2S, 

1988 to Donald W. Huntley, MSHA District 2 Manager, referenced 

the August 1977 meeting and requested clarification from MSHA on 

the question of jurisdiction. 

6. By letter dated April 12, 1988 1 Mr. Huntley informed 

Penelec that MSHA would be expanding its inspection activities to 

encompass several additional areas of the coal handling facility, 

including the head dr.i ves of conveyors SA and s·B. These 

inspection activities would include: Cl) Bin No. 1 Building, 

including feeders, the control room and the tails of the SA and 

SB conveyor belts; (2), Bin No. 2 Building, including motors, the 

plug shoot probe, control button, Conveyors SA and SB, and all 

floors; (3) Motor Control Circuit Room next to Bin No. 2 from the 

1784 
Lucerne No •. 6 drawof f tunnels, the No. 3 chute; conveyor, and 

silo, the NQ. 24C and 2SC raw coal belts, the Grundlack crusher 

(not used since 1982); (4) the Pennsylvania Crusher, a truck 

dump, two scale houses three auger samplers, the Machine Mill 

drawoff tunnels, (observed in operation by Inspector Kopsic) the 

No. lT, No. 2T, No. 3T and No. 4T belts, and the four raw coal 

truck silos and all adjoining belts. 

7. Penelec's schematic "Coal Flow Diagram," attached 

.hereto as Exhibit "B", demonstrates the movement, of coal within 

the Homer City coal handling facility and shows MSHA's inspection 

activity prior to the January 1988 inspection and as enunciated 

in Mr. Huncley's April 12, 1988 letter. 

8. On May 16, 1988, Penelec received notification from 

MSHA of a proposed assessment for each violation in the amount of 

$S4.00. 

9. On May 2S, 1988, Penelec requested a formal hearing 

with the Mine Safety and Health Review Commission on all · 

viol·ations listed in the proposed assessment. 

10. On.June 29, 1988, Penelec received a "Petition of the 

Secretary of Labor for Assessment of Civil Penalty." 

11. On July 28, 1988, Penelec filed an Answer to the 

aforesaid petition and set forth as an affirmative defense MSHA's 

lack of jurisdiction over Conveyors SA and SB and the additional 

areas outlined in Mr. Huntley's April 12, 1988 letter. Penelec 

does not challenge the Inspector's finding that the 5A and SB 

conveyor head drives were inadequately guarded and that MSHA had 

otherwise satisfied its burden of proof with regard to Citations 

Nos. 2884282 an¢! 2884283 and the penalties proposed therefore. 

12. On August 3, 1988, Administrative Law Judge Gary 

Melick issued a pre-hearing order instructing the parties to 

discuss by August 22, 1988 possible settlement, witnesses, 

stipulation of material facts and trial dates. · 

13. On August 22, 1988, the parties filed a motion for 

extension of time until September 22, 1988 to comply with the 

pre-hearing order. The motion was granted bj Judge Melick. 

14. On August 31, 1988, Penelec filed an "Application for 

Temporary Relief" and on September 9, 1988, counsel for the 

Secretary of Labor filed an objection to the application for 

temporary relief. 

lS. On September 7, 1988, a meeting was held in 

Philadelphia between Penelec and MSHA representatives in order to. 

resolv~ amicably the matters at issue. 

1785 
16. No agreement was reached and on September 15, 1988, 

Judge Melick conducted a conference call with the parties and a 

hearing date was set for September 23, 1988, which date was 

rescheduled at Penelec's request to October 18, 1988 in 

Hollidaysburg, Pennsylvania. 

B. Penelec's Operations at the Homer City Generating Station 

17. The Homer City Generating Station produces electrical 

energy by the combustion of coal. The Generating Station has 

three generating units: Two (2) 600,000 kilowatt units (Units 

Nos. l and 2) ~laded in service in 1969 and a third 650,000 

kilowatt unit (Unit No. 3) which began operating in 1977. Homer 

City Station burns approximately 4.5 million tons of Pennsylvartia 

coal each year. 

18. The Secretary does not claim there fs jurisdiction 

under the Act regarding working conditions inside any of the 

electric generating facilities at the Homer City Station. Those 

conditiona are regul~ted by the Occupational Safety and gealth 

Act of 1970, 29 u.s.c. § 651, et seq. 

19. The sulfur dioxide emission limitation requirement 

established by the Pennsylvania Department of Environmental 

Resources for Units Nos. 1 and 2 is 3.2 lbs of S02 per mmBtu heat 

input; the sulfur dioxide emission limitation requirement 

established by the U.S. Environmental Protection Agency for Unit 

No. 3 is 1.2 lbs of ·so2 per mmBtu heat input. 

20. The Homer City Generating Station is supplied with 

coal from three sources: Helen and Helvetia (Lucerne 6, 8 and 9) 

miries, which are under MSHA's jurisdiction, and a truck receiving 

facility where coal is delivered by various outside sources. 

(See, Exhibits "A" and "B"). 

21. All coal purchases by Penelec from either the Helen or 

Helvetia mines or purchased from other sources and delivered at 

the truck receiving facility, is consumed at the generating 

station. 

l. Coal purchased from Helen and Helvetia mines 

22. Coal purchased from the Helen or Helvetia mines is 

delivered by conveyor belt to scales where it is weighed, .sampled 

automatically, and title passes to Penelec and NYSEG. (See, 

Exhibits "A" and "B"). 

23. The coal from the Helvetia mines proceeds by conveyors 

Nos. 3 and 4 directly to Bin t\Jo. 1, where it is combined with 

coal from the Helen mine which also is transported to the Bin by 

1786 
conveyors Nos. 1 and 2. Previously, the coal from the Helvetia 

mines could proceed via a G~undlack crusher (still ii place) that 

was used for experimental pu.rposes from 1977 until 1983. At Bin 

No. 1, the coal from the Helen and Helvetia mines is sampled 

again and then placed on conveyors SA and SB which transport the 

coal to Bin No. 2. 

24. Though, after the coal is sampled, there exists the 

capability to divert the coal from Bin No.2 directly to the 

generating station, because the·Helen Helvetia coal generally 

does not comply with EPA standards, this is rarely done. Rather, 

most of the coal travels from Bin No. 2 to the coal cleaning 

plant owned by Penelec and NYSEG and operated by the Iseliri 

Preparation Company, a subsidiary of Rochester and Pittsburgh 

Coal Company. (See, Exhibits "A" and "B"). 

2S. The coal cleaning plant, which breaks, crushes, sizes, 

washes, cleans, dries and blends the coal, was constructed in 

1977 to provide medium sulfur compliance coal for Units Nos. 1 

and 2 and low sulfur compliance coal for Unit No. 3. The Iselin 

Coal Preparation Plant has been inspected by MSHA since 1977. 

2. Coal purchases and delivered by truck 

26. When coal is delivered to the Homer City truck 

receiving facility, it is weighed, auger sampled and title passes 

to Penelec and NYSEG, after which the coal is dumped into one of 

four hoppers. (See Exhibit "A"). 

27. From the truck hoppers, the trucked coal C.6% sulfur 

or 1.6% sulfur or "raw" coal) is separately transported by 

conveyor, through the Pennsylvania Crusher, where, unless the 

coal is frozen or clumped together, as it was during Mr. Kopic's 

January 1988 inspection, the coal ordinarily bypasses the 

crushing mechanism. From the Pennsylvania Crusher, the poal 

continues on conveyor 2T to a bypass chute. From the bypass 

chute, the trucked coal is transported by conveyors Nos. 3T and 

4T to a distribution point on top of the truck coal Silos. (See, 

Exhibits "A" and "B"}. 

28. From the distribution point, the low sulfur coal C0.6% 

sulfur} is transported by conveyor 7T to clean coal silos for 

direct use in Unit No. 3. 

29. Medium sulfur coal Cl.6% sulfurn--which Respondent 

purchases periodically but has not done since January 1988), on 

the other hand, is distributed into any of the four (4) truck 

coal silos and then by conveyor 6T to a point immediately outside 

Bin No. 1 onto conveyors SA and SB for transport to Bin No. 2. 

From Bin No. 2, the medium sulfur coal proceeds by conveyor for 

use in Units Nos. 1 and 2. 

1787 
3:9. 'R'l:l!l eif ,mine ·:O'r ""raw'" eoa'l c£ollows the 'same 'Path as t 0

he 

medium sulfur coal (l.6% sulfur) except that at Bin No. 2, the 

"raw" coal is diverted and transported by convey,or le to the coal 

cleaning plant (See Exhibits "A" and "B"). 

3.. Coal from the coal cleaning plant, 

31. The coal cleaning plant produces three products: (a) 

15-20% of the total feed is refuse and is transported via truck 

by Iselin personnel to a refuse storage area; Cb) 15-20% of the 

total feed is Unit No. 3 product and is delivered to the clean 

coal silos via Conveyor 17C or to the clean coal stockpile via 

Conveyor 21; and Cc> the remaining 60% of the feed is Units Nos. 

1 and 2 product and is delivered by Conveyor 8C back to the top 

of Bin No. 2 where it is distributed to the stockpile via 

Conveyor 6 or through Feeders 7A and 7B onto Conveyot 7 to the 

stacker reclaimer. 

32. The stacker rec.laimer _either directs the coal to an 

activ~ stockpile for later reclamation or passes the coal 

directly to the generating station boilers. 

1788 
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,~,,,,,,,,,,,,,.,~~~~~~~~~~~~~~~~~-~ 

HOMER CITY STATION 

COAL FLOW DI AGRAM 

MSHA INSPECTION ACTIVITY 

SINCE 1977 

ADDITIONAL AREAS OF INSPECTION 

ACTIVITY PURSUANT TOD. HUNTLEY'S 

LETTER OF APRIL 12, 1988 

EXHIBIT B 
ADMINISTRATIVE LAW JUDGE ORDERS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION· 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

November 10, 1988 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. WEST 88-231 

A.C. No. 05-00301-03549 

v. Dutch Creek No. 1 Mine 

MID-CONTINENT RESOURCES, INC., 

Respondent 

ORDER 

1. Respondent has served on petitioner certain interrogatories and requests for production of documents. 

2. Petitioner responded thereto and a number of objections 

have been posted by the petitioner. The parties orally argued to 

their respective positions in a conference call on November 9, 

1988. 

On respondent's motion to compel, I find the following 

issues: 

Interrogatory No. 8 poses the following question to which 

respondent filed the following answer. 

8. As to each of the foregoing orders, 

list by name, address, place of employment and occupation, each person the 

issuing MSHA inspector contacted in the 

course of the issuing inspector's investigation prior to the issuance of each of 

said orders. 

Answer No. 8. Order No. 3223449 - George 

Prewitt. 

Order No. 2832627 - David Powell 

The identity of any miner who discussed this 

citation with the inspector will be protected 

as confidential and disclosure of any identity 

is hereby objected to. 

1791 
Discussion 

Camnission Rule 59, 29 C.F.R. S 2700.59, provides as 

follows: 

§ 2700. 59 Name .of miner witnesses 

and informants. 

A Judge shall not, until 2 days 

before a hearing, disclose or order 

a person to disclose to an operator 

or his agent the name of a miner 

who is expected by the Judge to 

testify or whom a party expects 

to summon or call as a witness. A 

Judge shall not, except in extraordinary circumstances, disclose or 

order a person to disclose to an 

operator or his agent the name of 

an informant who is a miner. 

The judge is bound by the foregoing Commission Rule. 

Accordingly, respondent's motion to compel discovery as to 

the identity of any such miner is denied. However, petitioner 

is directed to state whether any miners are to be called as 

witnesses and to state the number of such witnesses without 

disclosing their identity. 

Respondent's motion to compel, as modified herein, is 

granted. 

Interrogatory No. 9 poses the following question to which 

respondent filed the following answer: 

9. As to each of the foregoing orders, 

please identify what fact(s) or data, if 

any, relied upon by the issuing inspector, 

elicited during the pre-order or precitation investigation, was provided by 

what person(s), if any, named responsive 

to Interrogatory No. 8. 

Answer No. 9. Response to Number 8 above 

is hereby incorporated. 

Discussion 

Facts relied upon do not identify any miner that may be 

involved. Respondent's motion to compel is granted. 

1792 
Interrogatory No. 10 poses the following question to which 

respondent filed the following answer: 

10. As to each of the foregoing orders, 

please identify the name and address of 

each person petitioner expects to call as 

a witness at the hearing in this matter, 

and with respect to each person: 

a. State the subject matter about which 

the person is expected to testify: 

b. State the substance of the facts or 

the expected testimony about which the 

person is expected to testify: 

c. State the substance of the opinions, 

if any, to which the person is expected 

to testify: 

d. Summarize the grounds for each opinion. 

Answer No. 10. The Secretary has not yet 

determined what witnesses will be called to 

testify, but will state that Phil Gibson 

and Lee Smith may be called to testify in 

this matter. 

Discussion 

The parties have agreed that, except for the identity of 

miner witnesses, petitioner will answer Interrogatory 10 by 

November 22, 1988. 

Accordingly, ·respondent's motion to compel is granted. 

Interrogatory No. 11 poses the following question to which 

respondent filed the following answer. 

11. As to each of the foregoing orders, 

please identify and describe each exhibit 

which petitioner intends to mark and offer 

as an exhibit in evidence at the hearing 

on the foregoing citations or orders. 

Answer No. 11. The Secretary will mark 

and introduce the MSHA History of Assessed 

Violations. At this time, the Secretary 

has not determined what, if any, other 

exhibits will be used. 

1793 
Discussion 

The same agreement and ruling is entered herein as provided 

above as to Interrogatory No. 10. 

Interrogatory No. 13 poses the following question to which 

respondent filed the following answer. 

13. Please state, if not in writing and 

subject to one of the following requests 

for production, the enforcement policy or 

policies affecting Mid-Continent Resources, 

Inc. as determined and put in effect by 

each of the following persons: J.L. Spicer, 

Ron Schell, John W. Barton, William A. 

Holgate, and/or J.M. DeMichiei. 

Answer No. 13. All formal policies are 

placed in writing by MSHA. All other 

policies are protect~d-by the deliberativeprocess privilege and objection is hereby 

made to this request. 

Discussion 

The claim of privilege asserted by petitioner is sustained 

and respondent's motion to compel is denied. 

Request for Production of Document No. 17 asks for the 

following to which respondent responded as f.ollows: 

17. As to each of the foregoing orders, 

please provide legible copies of any and 

all documents which petitioner intends 

to mark.and offer as exhibits to be received in evidence in the trial of this 

matter. 

Response No. 17. The Secretary has not yet 

determined what evidence will be introduced. 

Discussion 

Petitioner has agreed. to produce all such document's by 

November 22, 1988. Petitioner will further submit a final update 

by November 25, 1988. 

Accordingly, respondent's motion to compel is granted. 

1794 
Request for Production of Document No. 18 asks for the 

following to which respondent responded as follows: 

18. Any and all notes of memoranda 

concerning enforcement at Mid-Continent 

Resources, Inc.'s operations in Coal 

Basin, Colorado. 

Response No. 18. Objections, this 

request is burdensome and requests 

documents that are confidential. 

Discussion 

This request is overly broad. The thrust is directed at 

Mid-Continent's assertions that the Secretary has abused his 

prosecutorial discretion. This.issue has been partially heard 

and is pending before the undersigned Judge in WEST 89-3-R. 

If the Commission has jurisdiction to review an alleged abuse of 

discretion by the secretary Can issue not yet determined but 

pending before the undersigned Judge) then requests of this type 

should be .presented, argued and briefed· in WEST 89-3-R. In. sum, 

an orderly record requires that all of these i,sues be presented 

in one case. 

Petitioner's objections are sustained and respondent's 

motion to compel is denied. 

Request for Production of Document No. 19 asks for the 

following. to which respondent responded as follows: 

19. Any and all memoranda or memorial 

of enforcement policies affecting MidContinent Resources, Inc. developed or 

promulgated by J.L. Spicer, Ron Schell, 

John w. Barton, William A. Holgate, 

and/or John M. DeMichiei. 

Response No. 19. Objection, this request 

is burdensome and calls for documents 

that are confidential. 

Discussion 

The same ruling is made herein as to the Request for 

Production involved in Request No. 18. 

1795 

... ·-:··. 
Request for Production of Document No. 20 asks fot t·he 

following to which respondent responded as follows: 

20. Any· and all notes or memoranda 

other than the informant's name made 

from telephone calls or personal 

contacts by MSHA personnel with MidContinent Cother than management) 

personnel regarding Mid-Continent 

Cother than management) personnel 

regarding Mid-Continent's operations 

and/or alleged violations. 

Response No. 20. No documents exist 

regarding these violations and objection is made as the request calls 

for confidential information. 

Discussion 

Petitioner has agreed to comply with this· request and 

respondent accepts the limitation that the request be limited 

to Docket No. WEST 88-230 and WEST 88-231. 

Accordingly, respondent's motion to compel, as modified, is 

granted. 

Request for Production of Document No. 21 asks for the 

following to which respondent responded as follows: 

21. Any and all notes or memoranda 

pertinent to the criteria, review, and 

processing of special assessment violations. 

Response No. 21. Objection, this request is overbroad, burdensome, and 

calls for privileged material. 

Discussion 

Controlling case law establishes that. a mine operator, prior 

to a hea·ring, may raise the issue that in proposing a penalty the 

Secretary failed to comply with his Part 100 penalty regulations. 

Youghiogheny and Ohio Coal company, 9 FMSHRC 673, 679-680 (1987). 

Accordingly, respondent's motion to compel is granted. 

1796 
Request for Production of Document No. 22 asks for the 

following to which respondent responded as follows: 

22. Any and all notes or memoranda received by MSHA from the U.S. Department 

of Labor Inspector General, the General 

Accounting Off ice, or any other federal 

or state investigative agency concerning 

complaints and/or mining methods or 

practices conducted at Mid-Continent 

Resources, Inc. 

Response No. 22. Objection~ this request 

is overbroad, burdensome, and calls for 

privileged material. 

Discussion 

The same ruling is entered herein as in Request No. 18. 

ORDER 

For the reasons stated above and for additional reasons 

agreed to in the conference call, the undersigned enters the 

following order: 

1. The above rulings are confirmed. 

2. The rulings herein are controlling as· to the same issue.s 

p_ending in WEST 88-230. · 

3. Petitioner has been ordered to answer interrogatories 

and requests herein within certain time frames. Respondent is 

likewise ordered to answer petitioner's interrogatories and 

requests within the same time frames. 

.....-·· .. • 

Law Judge 

Distribution: 

James· H. Barkley, Esq., Margaret A. Miller, Esq., Office of 

the Solicitor, U.S. Department of Labor, 1585 Federal Building, 

1961 Stout Street, Denver, co 80294 

Edward Mulhall, Jr. ,. Esq. , Delaney & Balcomb, 818 Colorado 

Avenue, P.O. Drawer 790, Glenwood Springs, CO 81602 

/ot 

1797 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGJ:S 

COLONNADE CENTER 

ROOM 280. 1244 SPEER BOULEVARD 

DENVER. CO 80204 

December 22, 1988 

MID-CONTINENT RESOURCES, INC., 

Contestant 

. . CONTEST PROCEEDING 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Respondent 

ORDER 

Docket No. WEST 89-3-R 

Order No. 3077666; 9/23/88 

Dutch Creek Mine 

Mine ID 05-00301 

This contest proceedings arises under the Federal Mine 

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

Act"). 

Mid-Continent Resources, Inc. (Mid-Continent) has contested 

a 104(d)(2) order issued under the Act. The Order, No. 3077666, 

alleges Mid-Continent violated 30 C.F.R. § 75.1704. ~/ 

.!/ The regulation provides as follows: 

§ 75.1704 Escapeways 

[Statutory Provisions] 

Except as provided in §§ 75.1705 and 75.1706, at least two 

separate and distinct travelable passageways which are maintained 

to insure passage at all.times of any person, including disabled 

pers6ns, and which are to be designated as escapeways, at least 

one of which is ventilated with intake air~ shall be provided 

from each working section continuous to the surface escape drift 

opening, or continuous to the escape opening, or continuous to 

the escape shaft or slope facilities to the surface, as appropriate, and shall be maintained in safe condition and properly 

marked. Mine openings s.hall be adequately protected to prevent 

the entrance into the underground area of the mine of surf ace 

fires, fumes, smoke and floodwater. · Escape facilit:ies approved 

by the Secretary or his authorized representative, properly , 

maintained and frequently tested, shall be present at or in each 

escape shaft or slope to allow all persons, including di.sabled 

persons, to escape quickly to the surface in the event of an 

emergency. 

1798 
The order alleged the following condition: 

The intake air escapeway was not maintained in a safe 

travelable condition. Part of the escapeway has heavy 

roof problems, however, it is supported by truss bolts, 

resin bolts, some 6" x 6" timber and 3 cribs. The bottom 

has heaved for approximately 800 feet causing problems 

in traveling or moving disabled persons quickly to the 

surface in the event of an emergency. The travelway needs 

to be cleaned with equipment to make it safe. 

In additiori to its contest of Order No. 3077666 

Mid-Continent further alleged that the order is part of a 

persuasive on-going policy of abuse against Mid-Continent by the 

Secretary through MSHA's District Manager. Said alleged abuse, 

implemented by MSHA's supervisors and inspectors, seeks to 

subject Mid-Continent to shutdowns of its major mining units 

whenever possible, and whether properly or not. Mid-Continent 

further asserts that the order issued by MSHA was arbitrary, 

capricious and improper. 

When Mid-Continent filed its notice of contest it further 

requested an expedited hearing. 

The motion for an expedited hearing was granted and a two 

day hearing, commencing October 12, 1988, was held in Glenwood 

Springs, Colorado. 

At the hearing both parties presented evidence concerning 

Order No; 3077666. The evidentiary record has been closed on 

that phase of the case (Tr. 442-443). At the hearing MidContinent, over the Secretary's objection, also presented 

evidence in support of its view that the Secretary abused her 

statutory discretion in enforcing the Act at ·Mid-Continent's 

mine. 

At the close of Mid-Continent's evidence the Secretary 

orally moved the judge to dismiss all issues involving the 

alleged abuse of discretion by the Secretary. 

The issue of an alleged abuse of discretion wa~ initially 

raised in this expedited hearing. Accordingly, after the entry 

of an order on the issue of jurisdiction the judge indicated he 

would grant the Secretary time to consider whether she would 

stand on her motion to dismiss or seek an evidentiary hearing to 

present her evidence on that issue (Tr. 444). 

On October 17, 1988 the judge sua sponte directed the 

parties to file briefs addressing the issue of whether the 

Commission has juri~diction to consider an alleged abuse of 

discretion. Such briefs were filed. 

1799 
Issue 

The issue presented here is whether the Commission has 

jurisdiction to review the alleged abuse of discretion by the 

secretary in enforcing the Mine Safety Act at Mid-Continent's 

Mine in the 12 months ending September 30, 1988. 

Mid-Continent asserts the Commission not only has such 

juri•diction but a corresponding duty to consid~r allegations oi 

Secretarial or agency abuse. Further, Mid-Continent argues that 

Commission has review and oversight authority over any · 

misfeasance, malfeasance or abuse if the Commission determines 

such conditions exist. Finally, it is contended that the 

Commission has wide jurisdictional latitude and authority to 

fashion "other appropri~te relief" for such conditions. 

Discussion 

It is a fundamental principle that, as an administrative 

agency created by statute, the Commission cannot exceed the 

jurisdictional authority granted to it by Congress. See e.g., 

Civil Aeronautics Board v. Delta Airlines, 367 U.S. 316, 322 

(1961); Lehigh & New England R.R. v. ICC, 540 F.2d 71, 78 (3rd 

Cir. 1976}; National Petroleum Refiners Assoc. v. FTC, 482 F.2d 

672, 674 (D.C. Cir. 1973). The Commission is an independent 

adjudicative agency created by section 113 of the Mine Act, 30 

U.S.C. § 823, to provide trial-type proceedings and administrative appellate review in cases arising under the Act. Several 

provisions of the Mine Act grant subject matter jurisdiction to 

the Commission by establishing specific enforcement and contest 

proceedings and other forms of action over which the Commission 

judicially presides:~, section 105(d), 30 u.s.c. § 815(d), 

provides for the contest of citations or orders, or the contest 

of civil penalties proposed for such violations; section 

105(b)(2), 30 U.S.C. § .815(b)(2), provides for applications for 

temporary relief from orders issued pursuant to section 104; 

section 107(e), 30 U.S.C. § 817Ce), provides for contests of 

imminent danger orders of withdrawal; section 105Cc), 30 U.S.C. 

§ 815 (.c), provides for complaints of discrimination; and section 

111, 30 U.S.C. § 821, provides for complaints for compensation. 

Specific provisions, such as these, delineate the scope of the 

Commission's jurisdiction. 

In view of the arguments advanced by Mid-Continent it is 

necessary to consider the statutory provisions in detail together 

with the legislative history of the Act. 

Section 105(d) of the Act, 30 u.s.c. § 823(d)(l) provides as 

follows: 

1800 
(d) If, within 30 days of receipt thereof, an operator 

of a coal or other mine notifies the Secretary that he 

intends to contest the issuance or modification of an 

order issued under section 104, or citation or a notification of proposed assessment of a penalty issued under 

subsection (a) or (b) of this section, or the reasonableness ·of the length of abatement time fixed in a citation 

or modification thereof issued under section 104, or any 

miner or representative of miners notifies the Secretary 

of an intention to contest the issuance, modification, 

or termination of any order issued under section 104, or 

the reasonableness of the length of time set for abatement 

by a citation or modification thereof issued under section 

104, the Secretary shall immediately advise the Commission 

of such notification, and the Commission shall afford an 

opportunity for a hearing (in accordance with section 554 

of title 5, United States Code, but without regard to 

subsection (a)(3) of such section>, and thereafter shall 

issue an order, based on findings of fact, affirming, 

modifying, or vacating the Secretary's citation, order or 

proposed penalty, or directing other appropriate relief. 

Such order shall become final 30 days after it issuance. 

The rules of procedures prescribed by the Commission shall 

provide affected miners or representatives of affected 

miners an opportunity to participate as parties to hearings 

under this section. The Commission shall take whatever 

action is necessary to expedite proceedings for hearing 

appeals of orders issued under section 104. 

[Emphasis added by Mid-Continent]. 

The portions of section 105Cd) emphasized by Mid-Continent 

in no way enlarge the Commission's jurisdiction. The hearing the 

Commission must afford relates to the specific matters set forth 

in ~ection 105(d) and elsewhere in the Act. As stated, the 

Commission shall issue an order as to the citations, orders or 

proposed penalties. It may also direct "other appropriate 

relief" but this relief involves such specific citations, orders 

or proposed penalties. It is a £undamental rule of statutory 

construction that adjudicat~on of an issue must start with the 

plain language of the statute. Rubin v. United States, 449 U.S. 

424, 430 Cl981); International Union, UMWA v. Federal Mine Safety 

and Health Review Commission, 840, F.2d 77, 81 CD.C. Cir. 1988). 

I believe the statute is clear. 

Mid-Continent urges the Commission to interpret" its 

authority under sectipn 105(d) as broadly as it has interpreted 

section 105Cc)(2). In support such a broad view Mid-Continent 

cites Northern Coal Co., 4 FMSHRC 126, 142; Glen Munsey v. Smitty 

Baker Coal Co., Inc., 2 FMSHRC 3463, 3464 (1980 and NLRB v. 

Rutter-Rex Mfg., Co., 396 U.S~ 258, 263 (1969). In addition, 

1801 
Mid-Continent claims the legislative history removes any doubts 

on these points: 

It is the Committee's intention that the Secretary propose 

and that the Commission require, all relief that is 

necessary.to. make the complaining party whole and to remove the deleterious ·effects of the discriminatory conduct 

including, but not limited to reinstatement with full 

seniority rights, back-pay with interest, and recompense 

for any special damages sustained as a result of the 

discrimination. The specified relief is only illustrative. 

Thus, for example, where appropriate, the Commission should 

issue broad cease and desist orders and include requirements for the posting of notices by the operator. 

s. Rep. No. 95-181, above, 37, reprinted in Leg. Hist. 

625. [Emphasis added by Mid-Continent] 

Mid-Continent's arguments are misdirected. Section 105(d) 

sets forth some but not all of the situations where the 

Commission has jurisdiction. The expression "other appropriate 

relief" in Section 105Cc> deals with the fashioning of remedies. 

It does not follow that the authority to fashion such remedies 

can also be used to encompass Mid-Continent's allegations. 

The cases cited by Mid-Continent are not inopposite these 

views. 

In urging a broad construction of the statutory expression 

of "other appropriate relief" Mid-Continent also relies on Clima},: 

Molybdenum Co., 2 FMSHRC 2748, 2751-52 Cl980), aff'd sub nom. 

Climax Molybdenum Co. v. Secretary of L~bor, 703 F.2d 447, 452 

(10th Cir. 1983); Youghiogheny & Ohio Coal Co., 7 FMSHRC 200, 203 

(1985) as well as Kaiser Coal Corporation 9 FMSHRC 1165 (1988). 

I agree the Commission may grant declaratory relief in 

appropriate circumstances. However, such appropriate relief must 

necessarily relate to the contested order or citation. But 

Mid-Continent cannot fuse the contest of an order with its claims 

of agency abuse. It is clear that declarat~ry relief cannot be a 

vehicle to enlarge jurisdiction. Colorado westmoreland,10 FMSHRC 

1236 ( 1988). 

Section 113(d)(l) of the Act, 30 U.S.C. § 823(d)(l) provides 

as follows: 

Cd)(l) An administrative law judge appointed by the 

Commission to hear matters under this Act shall hear, and 

make a determination upon, any proceeding instituted 

before the Commission and any motion in connection therewith, assigned. to such administrative law judge by the 

1802 
chief administrative law judge of the Commission or by 

the Commission, and shall make a decision which constitutes 

his final disposition of the proceedings. The decision 

of the administrative law judge of the Commission shall 

become the final decision of the Commission 40 days after 

its issuance unless within such period the Comission has 

directed that such decision shall be reviewed by the 

Commission in accordance with paragraph (2). An administrative law judge shall not be assigned to prepare a 

recommended decision under this Act. 

The foregoing section of the Act merely addresses the 

province of the Commission's administrative law judges. This 

section adds nothing to the Commission's jurisdiction. 

Section 113Cd)(2)(A)(ii) of the Act, 30 u.s.c. § 823(d)(2)-

CA>Cii), provides as follows: 

Cii) Petitions for discretionary review shall be filed 

only upon one or more of the following grounds: 

CI) A finding or conclusion of material fact is not 

supported by substantial evidence. 

CII) A necessary legal conclusion is erroneous. 

{III) The decision is contrary to law or to the duly 

promulgated rules or decisions of the Commission. 

CIV) A substantial question of law, policy or discretion 

is involved. 

CV) A prejudicial error of procedure was committed. 

The foregoing section and CA)(i) thereof mandates the 

standards for the Commission's review of administrative law 

judges decisions under the Act. 

This section does not increase to Commission's jurisdiction. 

There are many substantial questions of law, policy or discretion 

involved in the various orders, citations and penalties arising 

under the Act. A review of the many Commission decisions 

discloses such issues. 

Section llOCi) of the Act, 30 u.s.c. § 820(i), provides as 

follows: 

Ci) The Commission shall have authority to assess all 

civil penalties provided in this Act. In assessing civil 

1803 
monetary penalties, the Commission shall consider the 

operator's history of previous violations, the appropriateness of such penalty to the size of the business of 

the operator charged, whether the operator was negligent, 

the effect on the operator's ability to continue in 

business, the gravity of the violation, and the demonstrated good faith of the person charged in att.empting 

to achieve rapid compliance after notification of a 

violation. 

[Emphasis added by Mid-Contine~t] 

Mid-Continent argues that this provision of the Mine Act 

clearly shows that one of the purposes of the Act and the_ 

Commission's oversight of MSHA is to ensure that oppressive enforcement does not place an operator at the risk of being put out 

of business by the instant order and MSHA's alleged abuse of 

dis.cretion. 

· I reject Mid-Continent's argument. The cited portion of 

Section llO(i) is clearly interwoven with the assessment of civil 

penalties. It does not form a separate basis to confer jurisdiction. 

Legislative History 

Mid-Continent cites extensive portions of the legislative 

history of the Act ~nd observes that the reasons for creating the 

Commission are contained in the legislative history. F~r 

example: 

The Committee's oversight of the enforcement and administration of the mine safety laws has demonstrated that the 

Department of the Interior has been seriously deficient in 

past years in its enforcement and administrative responsibilities under these statutes. S. 717 is designed and 

drafted to correct these deficiencies and make the enforcement of the mine safety laws more responsible to the demonstrated needs of our nation's miners and the mining 

industry. 

[Emphasis added by Mid-Continent] 

And, explaining the function of an independent Commission: 

The bill provides a right to contest orders and proposed 

penalties before the Commission. 

The Committee realizes that alternatives to the establishment of a new independent reviewing body exist. For 

example, under the present Coal Act, review of contested 

matters is an internal function of the Secretary of the 

Interior who has established a Board of Mine Operations 

Appeals to sepa·rate his prosecutorial and investigative 

functions from his adjudicatory functions. 

1804 
The Committee also recognizes that there are organizational 

and administrative justifications for avoiding the establishment of new administrative agencies. However, the 

committee believes that the considerations favoring a 

completely independent adjudicatory authority outweigh 

these arguments. 

The Committee believes that an independent Commission is 

essential to provide administrative adjudication which 

preserves due process and instills much more confidence in 

the program. 

[Emphasis added by Mid-Continent] 

s. Rep. No. 95-181, Committee on Human Resources on s. 

7187, Federal Mine Safety and Health Act of 1977, as 

amended, at 8-9, 47, 95th Cong., 1st Sess. (1977). 

In reporting the conference changes to what became the 

1977 Mine Act, the House characterized the functions of 

the Commission as follows: 

The conference substitute provides for an independent 

Federal Mine Safety and Health Review Commission. This 

Commission is assigned all administrative review responsibilities and is also authorized to assess civil penalties. 

The objective in establishing this Commission is to 

separate the administrative review functions from the enforcement functions, which are retained as functions of 

the Secretary. This separation is important in.providing 

administrative adjudication which preserv€s due process 

and installs confidence in the program. This separation 

is also important because it obviates the need for denovo review of matters in the courts, which has been a 

source of great delay. 

[Emphasis added by Mid-Continent] 

123 Cong. Rec. H 11644 (daily ed. October 27, 1977) 

(Remarks of Rep. Gaydos). 

Mid-Continent argues that the legislative history of the 

Mine Act also shows that it was a consistent intention of th~ 

Congress that the Commission be created as a check on possible 

abuses of enforcement discretion by the Secretary. As the Senate 

Committee explained its plan a full year before the Act was 

enacted: 

THE MINE SAFETY AND HEALTH REVIEW COM.MISSION 

Organization of the Commission 

The bill provides to an operator the right to contest any 

citation, order or penalty before the Commission, which 

is established under section 114 [sic] of the Act. The 

1805 
committee believes that an independent Commission is 

essential to.provide impartial adjudication of these matters 

and prbtect the constitutional rights of operators. 

Although the Commission is patterned after the Occupational 

Safety and Health Review Commission, the Committee believes 

that the heavy caseload of that commission and the peculiar 

technical matters involved with mine health and safety 

problems warrant the establishment of an independent 

commission. 

[Emphasis added by Mid-Continent] 

s. Rep. 94·-1198, Committee on Labor and Public Welfare, 

Federal Mine Safety and Health Amendments Act of 1976, at 

40, 94th Cong., 2nd Sess. (1976). 

No doubt .the congress has oversight authority over the 

administration of the Act. However, a fair reading of the 

legislative history indicates that Congress did not consider 

any abuse of discretion by the Secretary in the enforcement of 

the Mine Act. 

If it had considered that facet Congress might have vested 

jurisdiction with the Commission. But, as previously observed, 

the Commission's jurisdiction is limited. 

Mid-Continent finally and simply asserts there is no other 

forum except the Commission. It declares the legislative history 

contemplates that the Commission, and of necessity its administrative law judges, have the duty to protect the constitutional 

rights of operators. In support of its position Mid-Continent 

cites the legislative history as well as American Coal Co. v. 

U.S. Department of ~Labor, 639 F.2d 659, 660-62 (10th Cir. 1981)~ 

Louisville & Nashville RR Co. v. Donovan, 713 F.2d 1243, 1245-46 

(6th Cir. 1983) and Bituminous Coal Operators' Ass'n v. Marshall, 

82 F.R.D. 350, 35·2 (D.C. 1979). 

The cited cases. are not in opposite the views expressed in 

this order. In American Coal it was ruled the District Court 

lack.ed subject matter jurisdiction. Specifically, the Court held 

that an order issued by an MSHA inspector pursuant to section 

103(k) was subject to review by the Commission even though the 

section contains no specific reference to such review. In 

American Coal the appellate Court specifically relied on that 

portion of the legislative history that an operator "may appeal 

to the Commission the issuance of a closure order ••. " 639 F.2d 

at 661. [A 103(k) order can often result in a mine closure]. 

In Louisville and National RR, involving black lung 

benefits, the appellate Court ruled the District Court lacked 

subject matter jurisdiction where there existed a special 

statutory review procedure, 713 F.2d at 1243. 

1806 
Bituminous Coal Operators Ass'n supports the Secretary and 

not Mid-Continent. As the Court noted the review of orders and 

citations ar.ising under the Act are vested in the Commission, 82 

F.R.D. at 352. 

Mid-Continent is not without a remedy. With respect to the 

orders (or citations) issued during the period of the alleged 

abuse of discretior each must starid of fall on its own .merits. 

If the order is held valid on the facts presented then no abuse 

of discretion existed with respect to that order. If, on the 

other hand, the order is vacated any abuse of discretion that may 

be involved is btired with respect to that order. 

In sum, the Mine Act enabling statues do not grant the 

Commission authority to determine the appropriate level of 

enforcement at a particular mine. 

For the reasons expressed herein I enter the following: 

ORDER 

1. The motion of the Secretary to dismiss contestant's 

broad allegations of alleged abuse in the enforcement of the Act 

at Mid-Continent's mine is granted. 

2. If contestant desires to preserve this issue in pending 

and future cases it is directed to prepare and submit an offer of 

proof in relation thereof in such other cases. 

3. The parties are granted 30 days to file such post-trial 

briefs as they desire as to Order No. 3077666 concerning the 

alleged violation of 30 C.F.R. § 75.1704. 

Judge 

Distribution: 

Edward Mulhall, Jr., Esq., Delaney & .Balcomb, Drawer 790, 

Glenwood Springs, CO 81602 

James H. Barkley, Esq., Office of the Solicitor, U.S. Department 

of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO 

80294 

/bls 

1807 
FED£RAl MINE SAFETY AND HEALTH REVIEW COMMISS.ION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 · 

December 23, 1988 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ADKINS COAL CORPORATION, 

Respondent 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. VA 87-8 

A.C. No. 44-05185-03544 

: Mine No. 1 

. . 

ORDER 

On August 4, 1988, Petitioner filed a Motion to Permit 

Discovery, requesting an order permitt1ng the initiation of 

discovery, pursuant to 29 .C.F.R. § 2700.55Ca), inasmuch as the 

Motion was filed beyond 20 days after the filing of the Petition 

for Assessment of Civil Penalty. 

9n August 25, 1988, a Stay Order was issued, pursuant to 

Respondent's Motion for continuance filed on Augttst 11, 1988, 

which was not opposed by Petitioner, pending the filing of a 

llO(c) action against certain .individuals concerning the same 

subject matter as the above case. In a conference initiated .by 

the undersigned with Counsel for both Parties on December 8, 

1988, it was indicated that a request for hearing with regard to 

the llO(c) action had been filed. On December 15, 1988, 

Respondent submitted a statement in response to Petitioner's 

First Request for Production of Documents which had been filed 

along w~th R~spondent's Motion on August 4, 1988. 

In its Motion, Petitioner alleged that the discovery sought 

is relevant, reasonably calculated to lead to the discovery of 

admissible evidence, within the knowledge and custody of the 

Respondent, and will assist Petitioner in the preparation for 

trial. 

Petitioner's First Request for Production of Documents seeks 

discovery of documents contained in "the personal notebook 

maintained by the mine foreman." Respondent argues that the 

notebook is to be considered an attorney work product, inasmuch 

as it " ••• was maintained by the mine foreman on the advise and 

pursuant to instruction by Couns~l." (sic). 

1 Qno 
Based upon the representations in Petitioner's Motion, which 

have not been challenged by Respondent in its statement filed on 

December 15, 1988, I find that good cause has been established, 

and discovery may be permitted. 29 C.F.R. § 2700.SS(c), in 

essence, provides that discovery includes relevant material that 

is not privileged, and which is either admissible or appears 

reasonably calculated to lead to the discovery of permissible 

evidence. In order to eliminate surprise and allow the Parties 

to prepare for trial, in general, the rules of discovery should 

be broadly applied C See Hickman v. Taylor, 329 U. S. 495 C 1947)). 

Although Respondent maintains that the notebook in question 

should be cons1dered an attorney work product, as it was · 

maintained by the mine foreman on the advice and pursuant to 

instructions by Counsel, Respondent has not alleged that the 

notebook in question was maintained in preparation for trial Cc.f. 

Rule 26Cb), Federal Rules of Civil Procedure). Clearly, any 

notebook kept, even on the advice of Counsel, in the regular 

course of the business would be outside the "work product" 

protection (See cases cited in Moore's Federal Practice at 

26-354, 355). Further, inasmuch, as the notebook in question 

appears to be in the exclusive,control of Respondent, it would 

appear that Petitioner would suffer undue hardship should 

discovery not be allowed (Rule 26(b)(3), supra). 

Accordingly, it is ORDERED that Petitioner'~ Motion to 

permit discovery is GRANTED and Petitioner's First Request for 

Production of Documents is allowed. 

Distribution: 

A~sberger m~ 

Administrative Law Judge 

(703) 756-6210 

Charles Jackson, Esq., Office of the Solicitor, u. S. Department 

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

(Certified Mail) 

Charlie R. Jessee, Esq., Compton & Jessee, P.C., 180 East Main 

Street, Abingdon, VA 24210 (Certified Mail) 

dcp 

1809 
FED·ERAL Ml~:E SAFETY AND HEALTH REVIE~ COMMISSION 

OFFfCE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 271988 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

ON BEHALF OF 

DAVID S. HAYNES 

Applicant 

v. 

DECONDOR COAL COMPANY, INC., 

Respondent 

. . 

. . 

DISCRIMINATION PROCEEDING 

Docket No. WEVA 89-31-D 

MORG CD 88-18 

Mine No. 6 

ORDER OF TEMPORARY REINSTATEMENT 

Appearances: Mary K. Spencer, Esq., Office of the Solicitor, 

U. s. Department of Labor, Arlington, Virginia; 

David Morrison, Esq., Harry P. Waddell, Esq., 

Steptoe & Johnson, Clarksburg, West Virginia. 

Before: Judge Weisberger 

I. 

On November 2, 1988, the Secretary, on behalf of David S. 

Haynes, filed an Application for Temporary Reinstatement, 

alleging, in essence, that the complaint of discharge filed by 

Hayne.s was not frivolous. On November 14, 1988, Respondent filed 

a statement alleging that there was reasonable cause for the discharge of the Applicant, and alleging further that the Applicant 

cannot be temporarily reinstated to his former position " ••. as 

the job is no longer available." In its Statement, Respondent 

also requested a hearing. 

On Novenber 15, 1988, the undersigned arranged a telephone 

conference call between Counsel for Applicant and Respondent's 

President in order to arrange a hearing date. At that time 

Respondent advised that it would be represented by Counsel. On 

November 17, 1988, in a conference telephone call with the undersigned and Counsel for both Parties, it was agreed that the 

Parties would confer for the purpose of discussing settlement, 

and in the event that no settlement would .be reached, the matter 

was set.for hearing on December 7, 1988, in Clarksburg, 

W~st Virginia. The matter was not settled, and was subsequently 

heard on December 7, 1988. At the hearing, the Applicant waived 

, Q," 
his right to have a hearing within 10 days following receipt by 

the Chief Judge of the Request for Hearing. At the hearing, 

David Stanley Haynes, the Applicant, testified on his own behalf, 

and Jack Duane Hovatter, Johnriy Paul Williams, and James Edward 

Martin testified for Respondent. At the conclusion of ·the 

hearing, Counsel for Applicant indicated she desired to file a 

Post Hearing Brief and the Applicant waived his right to have an 

Order issued in this matter within 5 days following the close of 

the hearing. It was ordered that Briefs were to be filed by 

Express Mail on December 16, 1988. Briefs were filed on 

December 19, 1988. 

II. 

The Applicant had filed a Complaint of Discrimination dated 

August 1, 1988, alleging, in essence, tha!: on July 19, 1988, as 

shift foreman, he removed his men from working in the area 

designated by John Williams, the mine foreman, on the ground that 

the conditions therein were hazardous. The complaint further 

alleges that on July 20, 1988, Haynes explained to Williams that, 

in· essence, he did not cut in the area as instructed, due to the 

nature of the conditions therein, and Williams in turn fired him. 

Haynes, in essence, testified that he was employed by 

Respondent from May 14, 1988 to July 20, 1988, as the second 

shift (afternoon) foreman and miner helper. It was the testimony 

of Haynes that prior to commencing the shift on July 19, 1988, 

Williams 'told him, in essence, to set a water pump in the 3R back 

cut area as there was a lot of water which had accumulated, and 

then to mine the area as many times as he could. Haynes indicated that in the process of loading coal, the shuttle car cable, 

~hich he described as being in poor shape, was in mud and water 

and kept knocking out the power on the outside. He said that the 

pump was not working inasmuch as there was much mud in the dip, 

and it kept clogging up. He said that he was concerned about the 

danger to one of the miners of accidental electrocution. He indicated that such an accident could occur if a miner would come in 

contact with a transformer during the time the power was knocked 

out, a.nd then remain in contact when the power was turned back on. 

Accordingly, Haynes stopped mining in the area and removed his 

men. He said that at the end of his shift he left a note for 

Williams to repair the cable and also indicated that the power 

kept knocking out. 

Haynes indicated that at the beginning of the day shift the 

following day, Williams called him and asked him why he did not 

cut the 3R back cut, and Haynes explained that he tried, but that 

the power kept knocking out, and he was concerned that someone 

would get hurt, so he took the men out. Haynes said that in 

response Williams told him that he was finished and to get his 

clothes. 

1811 
Section 105(c)(2) of the Federal Mine Safety and Health Act 

of 1977 (The Act), in essence, provides that if the Secretary 

finds that a complaint of discrimination " ••• was not frivolously brought," the Commission upon application of the Secretary, 

" • • • shall order the immediate reinstatement of the miner 

• • • ." 29 C.F.R. § 2700.44(c) provides, ln essence, that at a 

hearing concerning an application for temporary reinstatement, the 

burden of proof is on the Secretary to establish that the complaint 

"is not frivolously brought." 

It is the position of the Respondent that the Applicant cannot prevail in any action alleging a violation of section 105(c) 

of the Act, inasmuch as he failed to communicate to management 

his concern about hazardous working conditions -on July 19, 1988. 

In this connection it is noted that Haynes did not communicate to 

any of his superiors on July 19, 1988, any of his safety concerns. 

Respondent thus argues that since Applicant cannot ultimately 

prevail in any section lOS(c) action, it must be found that it 

has not been established that the complaint was not frivolously 

brought. I do not find inerit to Respondent's argument. The 

legislative history of the Federal Mine Safety and Health Act of 

1977, indicates that the language creating the right of a miner 

to be reinstated temporarily where his complaint of discrimination was not "frivolously brought," was first inserted in the 

Senate's version (S.717, 95th Congress, 1st Session 1977). The 

Report. on the Senate Bill from the Committee on Human Resources 

CS. Rep. No. 95-181, 95th Cong., 1st Sess. (1977), in explaining 

the provisions of the Bill, indicates that the Secretary shall 

seek an Order of the Commission for temporary reinstatement when 

it determines that the complaint " ••. appears to have 

·merit·. • • " (Reprinted in Legislative History of the Federal 

Mine Safety and Health Act of 1977, at 624 (1978) ). [Hereinafter 

cited as 1977 Legislative History.] There is no further discussion in the legislative.history of the Act of the meaning Congress 

iritended to place on the term "was not frivolously brought." 

Clearly Congress.intended this term to encompass its usual 

accepted meaning. In this connection, I note that Webster's New 

Collegiate Dictionary (1979 edition) defines frivolous as "l: of 

little weight or importance • • • ." The testimony of Haynes, 

not rebutted by Respondent, tends to establish that the complaint 

was brought to protest his being fired after he took action based 

on his perception of various safety hazards. I do find that in 

order to prevail, Applicant must establish no more than proving 

that his complaint is not of little weight or importance. 

Congress in enacting section 105(c)(2), supra, did not choose to 

use the term "substantial likelihood" of prevailing, which it used 

in section 105(b)(2)(B) as a precondition to the granting of 

1812 
temporary relief from modification of an Order issued under 

section 104(c). Hence, Applicant does not have the burden of 

establishing here a likelihood of prevailing in any section lOSCc) 

action. Respondent thus cannot defeat Applicant's case by 

establishing that he would not prevail in a _105 (c) action. 

Also, inasmuch as the scope of the hearing was limited, pursuant to 29 C.F.R § 2700.44(c), to the issue of whether the 

complaint was frivolously brought, it is possible that the ·issue 

of notice to Respondent of the hazardous conditions, was not 

fully litigate_d. Nontheless, I observed the demeanor of both 

witnesses and found Haynes more credible in his testimony that, 

in the note to Williams, that he left at the end of the shift on 

July 19, 1988, he informed the latter to repair the cable, and 

also stated that the power kept knocking out. Also, Williams 

indicated that Haynes had told him in the telephone call Williams 

made to him on the morning of July 20, that the power was going 

out and the cable of the buggy was smoking. For all these reasons, I conclude that the Applicant has established that the 

complaint herein was "not frivolously brought." 

III. 

Pursuant to section 105Cc)(2), supra, once it has been established that a complaint has not been frivolously-brought, the 

"immediate reinstatement" of the miner shall be ordered pending 

final order on the complaint. It is Respondent's position that 

had Haynes not been fired on July 20, he would have been part of 

an economic lay off on July 30, 1988, and thus should not be reinstat~d, as it would put him in a better position then he would 

have been in had he not been discharged. In this connection, 

Jack Duane Hovatter, Respondent's superintendent and its 

secretary/treasurer, who owns the company with his two brothers, 

indicated that,. in general, the R.espondent was losing money in 

1988. He said.that in the second quarter of 1988 it lost $39,000, 

and in the third quarter of 1988 it made a profit of $10. Accord-

.lngly, in approximately March 1988, the midnight shift was 

eliminated, and two employees were laid off. He said that for 

about a year he and his brothers talked about eliminating the 

afternoon shift. Hovatter said that about July 1, 1988, it was 

decided to end that shift by July 30, 1988. He indicated that the 

lay off was accelerated to July 20, 1988, when Haynes, a shift 

foreman was fired and it was determined to be imp.cactical to hire 

another shift foreman for less then 2 weeks until the contemplated 

lay off on July 31. Accordingly, on July 20, 1988, the afternoon 

shift was eliminated, and four 5nployees were laid off and never 

recalled. The remaining five employees of the shift were transferred to the day shift. He indicated that Vernon Stone was 

transferred and not laid off because he was a miner operator, and 

his transfer allowed Williams, who had been working as a miner 

1813 
operator on the day shift, to concentrate on his duties as a shift 

foreman. He also said that Danny Stone was transferred as he was 

a certified electrician, and there was only one electrician on the 

day shift and thus he could serve as a backup. Also, he said that 

Roger Haskill was transferred because he had experience running a 

bolter for 9 or 10 months. He also indicated that Charles Lucas 

was transferred because he had experience as a buggy operator, 

miner helper, and bolter operator, so he could replace other 

.miners operating such equipment if they were absent from work. 

Further, he indicated that Gary Gerdridas was transferred as he 

was an EMT (Emergency Medical Technician), and inasmuch as the da.Y 

section now had· more than seven employees an EMT was required. It 

was his testimony, in essence, that Haynes would have been laid 

off July 31, and not transferred to the day section as he did not 

have any experience to qualify him for a position with the day 

shift. In this connection, he noted that the day shift already 

had a foreman, and he was not aware of Haynes' other work experience aside from the fact that he knew that he ran a miner for 1 

day. I find Hovatter's testimony credible and conclude had Haynes 

not been fired on July 20, 1988, he would have been laid off on 

July 31, 1988, along with other members of his shift, and not 

reassigned to the day shift. 

Based upon a review of the legislative history of the Act, it 

appears it was the intent of Congress in providing for temporary 

reinstatement where a complaint of discrimination is not frivolously brought, to protect miners from the adverse and chilling 

effect of loss of employment while discrimination charges are 

being investigated. (1977 Legislative History at 625, 1330, 

1362. ) Inasmuch as Haynes' job was eliminated due to a lay off 

hecessitated by business reasons, I agree with Respondent that to 

have Haynes reinstated to his former job would put him in a 

better position then .he would have been in had he not been fired. 

To grant such a benefit would be a windfall to Haynes and would 

clearly go beyond Congressional intent. However, I find the 

testimony of Haynes credible that he was hired originally as a 

miner's helper, and on a daily basis spelled the miner's operator 

at lunch time. I also find credible Haynes' testimony elicited 

upon cross-examination that from 1970 to 1975 he operated a roof 

bolter, shuttle car, and miner operator at a~other mine. Thus, I 

find that section 105Cc>C2), supra, and section 2700.44, supra, 

will be effectuated by requiring Respondent to r-einstF.l.te Haynes 

immediately, once it has a position avail3.ble as shift foreman, 

roof bolter, miner operator, or shuttle car operator. 

1814 
ORDER 

It is hereby ORDERED that Respondent reinstate Applicant, 

immediately upon the availability of a position as either shift 

foreman, roof bolter, miner operator, or shu.t_tle car operator. 

It is further ORDERED that the. reinstatement shall remain in 

effect pending a final order by the Commission upon Applicant's 

Complaint of Discrimination. 

Distribution: 

Avram Weisberger 

Administrative Law Judge 

Mary K. Spencer, Esq., Office of the Solicitor, u. s. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified 

Mail) 

David Morrison, Esq., Steptoe & Johnson, P. 0 •. Box 2190, 

Clarksburg, VVV 26302 (Certified Mail) 

dcp 

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