JANUARY 1991 

COMMISSION DECISIONS 

01-25-91 Blackfoot Coal Company 

01-29-91 Mettiki Coal Corporation 

ADMINISTRATIVE LAW JUDGE DECISIONS 

01-08-91 

01-08-91 

01-08-91 

01-09-91 

01-11-91 

01-14-91 

01-14-91 

01-14-91 

01-14-91 

01-15-91 

01-16-91 

01-16-91 

01-17-91 

01-17-91 

01-17-91 

01-17-91 

01-17-91 

01-18-91 

01-18-91 

01-18-91 

01-22-91 

01-23-91 

01-23-91 

01-24-91 

01-24-91 

01-24-91 

01-29-91 

01-31-91 

01-31-91 

01-31-91 

Beech Fork Processing, Inc. 

Donald F. Rados v. Beth Energy Mines 

National King Coal, Inc. 

Southern Ohio Coal Company 

Sanger Rock and Sand 

Ike Coal Company, Inc. 

Sec. Labor for Michael Price & Joe John 

Vacha & UMWA v. Jim Walter Resources 

Drummond Company 

Whibco, Incorporated 

Prestige Coal Company 

Sec. Labor for Robert J. Richardson v. 

J.S. Redpath Corporation 

Beaver Creek Coal Company 

Energy Fuels Coal, Inc. 

Energy Fuels Coal, Inc. 

Energy Fuels Coal, Inc. 

Energy Fuels Coal, Inc. 

Energy Fuels Mining Company 

GFD Construction Co., Inc. 

Brighton Sand & Gravel 

Consolidation Coal Company 

Sec. Labor for Clyde C. Cole v. Canyon 

Country Enter./Curtiss Sand & Gravel 

Consolidation Coal Company 

USS, a Division of USX Corporation 

Keith Lewallen & Charles Patterson d/b/a 

Tippy Coal Company 

Ronald L. Shriver v. Consolidation Coal Co. 

Explosives Technologies International, Inc. 

Bethel Fuels Incorporated 

Charles T. Smith v. KEM Coal Company 

Drummond Company, Inc. 

Drummond Company, Inc. 

VA 90-44 

YORK 89-6 

Pg. 

Pg. 

1 

3 

KENT 90-116 Pg. 9 

PENN 90-186-D Pg. 32 

WEST 89-365 Pg. 33 

LAKE 90-53 Pg. 40 

WEST 88-275-M Pg. 46 

KENT 90-128 Pg. 48 

SE 87-87-D Pg. 66 

SE 91-10-R Pg. 68 

YORK 90-11-M Pg. '81 

KENT 91-25-R Pg. 93 

WEST 91-104-DM Pg. 96 

WEST 89-396-R Pg. 98 

WEST 89-266-R Pg. 109 

WEST 89-283-R Pg. 112 

WEST 89-304-R Pg. 115 

WEST 89-433 Pg. 118 

WEST 90-91 Pg. 121 

SE 90-6-M Pg. 123 

WEST 90-63-M Pg. 127 

WEVA 90-122 Pg. 137 

WEST 90-165-DM Pg. 142 

WEVA 90-302 Pg. 144 

LAKE 90-28-RM Pg. 145 

KENT 89-201 Pg. 157 

· WEVA 90-286-D 

CENT 90-95-M 

WEVA 90-186 

KENT 90-30-D 

SE 90-124 

SE 90-143 

Pg. 160 

Pg. 161 

Pg. 165 

Pg. 166 

Pg. 168 

Pg. 170 

JANUARY 1991 

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

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

WEVA 90-141. (Judge Broderick, November 26, 1990) 

Roy Farmer and others v. rsiand Creek Coal Company, Docket No. 

VA 91-31-C. (Judge Broderick, December 20, 1990) 

Secretary of Labor ·on behalf of Michael Price and Joe John Vacha, .and 

UMWA v. Jim Walter Resources, Inc., Docket No. SE 87-128-D. (Judge 

Broderick, December 20, 1990) 

Donald Northcutt, Gene Myers and Ted Eberle v. Ideal Basic Industries, Inc., 

Docket No. CENT 89-162-DM. (Judge Morris, Interlocutory Review of a 

December 13, 1990 order.) 

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

Dennis Wagner v. Pittston Coal Group, etc., Docket No. VA 88-21-D. 

(Judge Broderick, November 26, 1990) 

Featherlite Corporation v. Secretary of Labor, MSHA, Docket No. 

CENT 88-113-RM, etc. (Judge Cetti, December 13, 1990) 

Secretary of Labor, MSHA v. Tunnelton Mining Company, Docket No. 

PENN 90-17. (Judge Fauver, December 14, 1990) 

COMMISSION DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF IABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

Bl.ACKFOOT COAL COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

January 25, 1991 

Docket No. VA 90-44 

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

BY THE COMMISSION: 

This civil penalty proceeding arises under the Federal Mine Safety and 

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

18, 1990, Commission Chief Administrative Law Judge Paul Merlin issued an 

Order of Default finding respondent Blackfoot Coal Company ("Blackfoot") in 

default for its failure to answer the Secretary of Labor's civil penalty 

proposal and the judge's order to show cause. The judge assessed Blackfoot 

a civil penalty of $4,273, as proposed by the Secretary. On January 14, 

1991, Blackfoot filed a petition for discretionary review ("PDR") of the 

judge's default order, requesting that the case be reopened. For the 

reasons explained below, we vacate the judge's default order and remand for 

further proceedings. 

The record discloses that inspectors of the Department of Labor's Mine 

Safety and Health Administration ("MSHA") issued to Blackfoot a section 

104(d) citation, a section 104(d)(l) order, and three section 104(a) 

citations alleging violations of various safety regulations. Upon 

preliminary notification by MSHA of the civil penalties proposed for these 

alleged violations, Blackfoot filed a "Blue Card" request for a hearing 

before this independent Commission. On August 3, 1990, counsel for the 

Secretary filed a proposal for penalty assessments, a copy of which was sent 

to:. "Blackfoot Coal Company, Inc.[,] Attn: Gary A. Horn, President[,] P.O. 

Box 395[,) Nora, VA 24222." When no answer to the penalty proposal was 

filed, the judge, on September 17, 1990, issued a show cause order directing 

Blackfoot to file an answer within 30 days or show good reason for its 

failure to do so. The order was sent to Horn at the same Nora, VA address. 

Under the Commission's rules of procedure, the party against whom a penalty 

is sought must file an answer with the Commission within 30 days after 

service of the proposal for penalty. 29 C.F.R. §§ 2700.S(b), 2700.28. 

In its PDR, Blackfoot states that the Secretary's proposal for penalty 

assessments and the judge's show cause order were sent to an incorrect 

former address of Blackfoot, that Horn was never president of Blackfoot, and 

that Horn was not employed by Blackfoot at the time the proposal and show . 

1 
cause order were received by him, although he had previously been employed 

by Blackfoot. Blackfoot asserts that mail incorrectly addressed to it has 

sometimes been delivered to Horn because the postman thought Horn still 

worked for Blackfoot. The PDR, filed by Blackfoot's president, Sam 

Blankenship, states Blackfoot's correct address as P.O. Box 1802, Bristol, 

VA, 24203. 

The PDR raises issues concerning the correct address for service on 

Blackfoot and whether an authorized individual received service on behalf of 

Blackfoot. It also appears, according to the PDR, that Blackfoot responded 

to the Secretary's discovery requests in this proceeding. In light of these 

considerations, we conclude that the operator should have the opportunity to 

present its position to the judge, who shall determine whether ultimate 

relief from default is warranted. See,~. Patriot Coal Co., 9 FMSHRC 

382, 383 (March 1987). 

J6yce A. Doyle, Commissio'!Jr 

~71/k 

L. Clair Nelson, Commissioner 

2 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

January 29, 1991 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. Docket No. YORK 89-6 

METTIKI GOAL CORPORATION 

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

DECISION 

BY THE COMMISSION: 

In this civil penalty proceeding arising under the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. §§ 801 et .fillll.· (1988) ("Mine Act"), the issue 

before us is whether Commission Administrative Law Judge William Fauver 

properly found that its roof control plan required Mettiki Coal Corporation 

("Mettiki") to replace roof support posts that were removed in order to 

install longwall equipment. Judge Fauver found that the plan required 

replacement of the posts and that Mettiki violated its roof control plan, and 

30 C.F.R. §§ 75.220 and 75.303(a). He assessed a civil penalty in the sum of 

$200 against Mettiki for the violations alleged in Order Nos. 3115846 and 

3115848. 1 12 FMSHRG 80, 89 90 (January 1990)(ALJ). For the reasons that 

1 Section 75.220, entitled "Roof control plan," provides in pertinent 

part: 

(a) (1) Each mine operator shall develop and follow a 

roof control plan, approved by the District Manager, that is 

suitable to the prevailing geological conditions, and the 

mining system to be used at the mine. Additional measures 

shall be taken to protect persons if unusual hazards are 

encountered .... 

Section 75.303(a) provides in pertinent part: 

Within 3 hours immediately preceding the beginning of any shift, and 

before any miner in such shift enters the active workings of a coal 

3 
follow, we affirm the judge's decision. 

Mettiki operates the Mettiki Mine, an underground coal mine located in 

Garrett County, Maryland. On July 13, 1988, Joseph Darios, an inspector with 

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

conducted a quarterly examination of the mine. Inspector Darios was 

accompanied by Alan Smith, the company representative. 

Upon arriving in the L-4 longwall set-up entry, Inspector Darios 

observed that the area had been mined to widths greater than 18 feet, and that 

roof support posts were missing from various locations in the L-4 entry and 

the Nos. 5 and 6 crosscuts. He measured widths ranging from 20 feet 6 inches 

to 23 feet 9 inches in the areas where the posts had been removed. In 

addition, he noticed that the roof in the cited area was "scaly," in that 

there were fractures in the immediate roof, but not in its upper strata. 

Inspector Darios also observed that the pan line, the conveyor system for 

removing the coal from the longwall face, had been installed, but that neither 

the longwall shields nor shearer had been installed. Inspector Darios stated 

that he overheard two Mettiki employees state that the posts had been removed 

on July 11, 1988, while the pan chains were being pulled around a turn into 

the area. Tr. 451. 

The roof control plan that was in effect when the first 155 feet of the 

L-4 set-up entry was mined (the "old plan"), requires a single row of posts on 

a maximum of 5-foot centers to be installed when the set-up entry is sheared 

to 21 feet so as "to reduce the entry width to a maximum of eighteen feet." 

Joint Exh. 5; Gov. Exh. 13; Tr. 434. The roof control plan subsequently 

adopted by Mettiki and applicable to the remainder of the cited area (the "new 

plan"), allows shearing of entries and connecting crosscuts to maximum widths 

of 23 feet, but requires a double row of posts to be installed on a maximum of 

5-foot centers "to reduce the width of the proposed sheared area to 18-feet 

wide maximum prior to shearing." Gov. Exh. 13; Joint Exh. 4, p. 31; 

Tr.· 434-35. Both versions of the plan allow removal of the posts as the 

longwall pan, shields and shearer are installed. 2 Joint Exh. 4, p. 31. 

mine, certified persons designated by the operator of the mine shall 

examine such workings and any other underground area of the mine 

designated by the Secretary or his authorized representative. 

Each such examiner shall ... examine and test the roof, face, and 

rib conditions in such working section . . . and examine for such 

other hazards and violations of the mandatory health or safety 

standards, as an authorized representative of the Secretary may from 

time to time require. Each such mine examiner shall also 

record the results of his examination .... 

2 The new plan additionally provides that as "the longwall pan, shields 

and shearer are installed, posts will be removed as necessary." (emphasis 

added). 

4 
Based upon his observations, Inspector Darios issued Order 

No. 3115846 to Mettiki pursuant to section 104(d)(2) of the Mine Act, alleging 

that Mettiki violated its roof control plan and section 75.220, and further 

alleging that the violation was significant and substantial and caused by 

Mettiki's unwarrantable failure to comply with the standard. Gov. Exh. 12. 

Inspector Darios subsequently modified that order to designate which 

conditions were violative of Mettiki's old roof control plan, and which 

conditions were violative of Mettiki's new roof control plan. Tr. 407-08; 

Gov. Exh. 13. 

Inspector Darios also issued Order No. 3115848, pursuant to section 

l04(d)(2) of the Act, alleging a violation of 75.303(a) because he believed 

that suitable preshift examinations of the L-4 set-up entry and Nos. 5 and 6 

connecting crosscuts were not conducted on July 12 and 13, 1988. He based 

this conclusion on the fact that the last work day in that area was 

July 11, 1988, and that the conditions cited in Order No. 3115846 were not 

recorded in the July 12 and 13, 1988, preshift examination records. Order 

No. 3115848. Inspector Darios further found Mettiki's alleged violation of 

section 75.303(a) to be significant and substantial and caused by Mettiki's 

unwarrantable failure to comply with the standard. Id. 

The orders were te:i;:ininated wben posts were replaced in the cited 

locations and when an adequate preshift examination of the cited areas was 

conducted and the allegedly hazardous conditions were entered in Mettiki's 

preshift examination records. 

The Secretary proposed a civil penalty of $1100 for the alleged 

violation of section 75.220 and Mettiki's roof control plan, and $1000 for the 

alleged violation of 75.303(a). Mettiki contested the validity' of the 

withdrawal orders, the associated special findings, and the civil penalties 

proposed by the Secretary of Labor. 

At the evidentiary hearing, the parties agreed to terminate the hearing 

prior to Mettiki's presentation of its case, to stipulate the existing record, 

and to limit the issues to be decided. Tr. 470-72. It was agreed that the 

only liability issue remaining in dispute was whether Mettiki's roof control 

plan required Mettiki to replace posts that were removed in order to install 

longwall equipment. Tr. 470. The parties further agreed that if the judge 

determined that Mettiki's plan required replacement of the posts, his holding 

would be dispositive of both orders and the orders would be modified to 

section 104(a) citations with reduced findings of negligence and gravity. Tr. 

471-73. Finally, the parties agreed that the opinion evidence of Inspector 

Darios to the effect that the plan did not require replacement of the posts 

would not be binding on the government. Tr. 471-72. 

Before the judge, Mettiki contended that the Secretary failed to meet 

her burden of establishing that the provision allegedly violated was part of 

its approved and adopted plan and that the condition cited by Inspector Darios 

violated any provision of that plan. Mettiki argued that the plain wording of 

the roof control plan did not proscribe the cited conditions because it did 

not expressly require replacement of the posts. Mettiki contended that, as a 

result, it did not receive adequate notice that it was expected to replace 

5 
posts which had been removed in order to install longwall equipment. Mettiki 

argued alternatively that, even if its plan could be read to require the 

replacement of posts removed to install longwall equipment, the Secretary's 

enforcement actions were nonetheless invalid because Mettiki had not yet 

installed the longwall shields or shearer. 

The judge rejected Mettiki's arguments and interpreted Mettiki's roof 

control plan to require Mettiki to replace the posts cited as missing. The 

judge's interpretation of Mettiki's roof control plan emphasized that the plan 

allows the operator to shear set-up entries and crosscuts an additional five 

feet to a maximum of 23 feet only after a double row of posts on five-foot 

centers have been installed. 12 FMSHRC at 89. The judge found that the 

stated purpose of requiring the double row of posts is to maintain an 18 foot 

width before the entries and crosscut are widened to 23 feet. 

The judge interpreted "as" in the phrase "[a]s the longwall pan, 

shields, and shearer are installed, posts will be removed as necessary," to 

mean "during the time that" or "while." Id. The judge concluded that the 

plan allows removal of the posts only during installation of the pan, shields, 

and shearer. The judge also stated his belief that use of the phrase "as 

necessary" in the plan further demonstrates that removal of the posts should 

be minimized. 

The judge also relied upon provisions in the plan setting forth the 

order in which steps are to be performed so that the entries and crosscuts are 

narrowed by and supported with posts at each step. The judge emphasized that 

the plan provision stating that the "entry and crosscut will be sheared to 

23 feet wide and supported to plan" read in conjunction with the provision 

allowing removal of posts only when installation of the longwall equipment is 

occurring, supports a conclusion that posts removed in order to install 

longwall equipment must be replaced. The judge explained that a contrary 

interpretation would render the cutting and roof support procedures 

superfluous. Additionally, the judge stated that a contrary interpretation 

would create a dangerous situation in which posts could be absent 

indefinitely. 

Consistent with the parties' stipulations, after the judge determined 

that Mettiki's roof control plan required replacement of the posts and that, 

consequently, Mettiki had violated its plan and sections 75.220 and 75.303(a), 

he modified the orders to citations issued pursuant to section 104(a) of the 

Mine Act. 12 FMSHRC at 90. The judge modified the allegations of negligence 

in the orders from the original designation of high to moderate, and modified 

the allegations of gravity in both orders by deleting the significant and 

substantial designations. Id. Finally, the judge assessed a civil penalty of 

$100 for each of the two violations. 

Mettiki's petition for review challenged the judge's finding that 

Mettiki's plan requires replacement of posts removed to install longwall 

equipment. Mettiki essentially argues, as it did before the judge, that its 

plan does not expressly prohibit the conditions cited in Order No. 3115846, 

and that the Secretary cannot disregard the express terms of the plan in order 

to require replacement of the posts without employment of the plan amendment 

6 
process. Mettiki asserts that it did not receive adequate notice that 

replacement of the posts was required, and that even if such a requirement 

could be read into the plan, the orders are nonetheless invalid because 

Mettiki was in the process of installing longwall equipment. We disagree. 

It is a well settled rule of construction that a written document must 

be read as a whole, and that particular provisions should not be read in 

isolation. U.S. v. Morton, 467 U.S. 822, 828 (1984); rehearing den., 

468 U.S. 1226 (statute); Washington Metro v. Mergentime Corp., 626 F.2d 959, 

961 (D.C. Cir. 1980) (contract). If the provision allowing removal of the 

posts is read in isolation from the provisions requiring that entries and 

crosscuts be supported with posts to reduce the width of these areas to a 

maximum of 18 feet, one might well reach the conclusion that the posts need 

never be replaced. Such a reading, however, would result in a contradiction 

between the provisions allowing removal of the posts and the provisions 

requiring support and would render the support phrases superfluous. It is 

well established that written provisions of the same document must be read and 

interpreted consistently with each other and that effect must be given to each 

part of a document to avoid making any word meaningless or superfluous. 

Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979) (statute); 17 Am Jur. 2d 

Contracts§§ 258-59 (1964). 

We find that the judge properly interpreted Mettiki's roof control plan 

in accordance with these settled canons of construction. We are unpersuaded 

by Mettiki's assertion that the Secretary failed to meet her burden of proving 

that Mettiki's plan required replacement of the posts because Inspector Darios 

testified that the posts did not have to be replaced once they were removed. 

The parties agreed to consider Inspector Darios' opinion testimony irrelevant 

and non-binding on the Secretary. Tr. 443, 471-72; M. Br. at 9. We also are 

unconvinced by Mettiki's argument that it did not receive adequate notice that 

it was required to replace posts following their removal. If Mettiki's plan 

is read as a whole, avoiding conflicts between provisions and without 

rendering provisions superfluous, the plan clearly requires that a maximum 

width of 18 feet must be maintained and that this plan requirement can be 

exceeded only when posts are temporarily removed as necessary to install the 

specified longwall equipment. Furthermore, Mettiki had notice of other 

mandatory standards pertaining to roof control which recognize and seek to 

prevent the hazards associated with excessive widths of entries and crosscuts. 

See, i.e., 30 C.F.R. § 75.203(a), 75.203(e), and 75.206(a). 

we similarly ect Mettiki 1 s argument that the subject enforcement 

action was nonetheless invalid since Mettiki had not yet completed 

installation of the longwall equipment because, although it had installed the 

longwall pan, it had not yet installed the shields and shearer. Mettiki 

essentially argues that if the plan requires replacement of the posts, it 

should be read to require replacement of the posts only after all three 

components of longwall equipment have been installed. The Secretary responds 

by stating that Mettiki's argument is unavailing in light of evidence in the 

record that, in this instance, installation of the longwall equipment was not 

a continuous, uninterrupted process. S. Br. at 8. The judge did not directly 

consider Mettiki's argument that the orders were invalid because Mettiki was 

in the process of installing the equipment. Instead, his determination that 

7 
Mettiki's plan required replacement of posts removed to install longwall 

equipment was dispositive of this issue. 12 FMSHRC at 89-90. His decision is 

consistent with the parties' stipulation that "the only issue remaining on 

liability ... is whether Mettiki's roof control plan required Mettiki to 

replace posts that were removed in order to install longwall equipment." 

12 FMSHRC at 88. The parties further agreed that, if the judge decided "that 

the roof control plan is [to be interpreted] as MSHA contends, then ... the 

104(d)(2) order would be converted into a 104(a) citation, with reduced 

allegations as to gravity and negligence." Tr. 472. Thus, in view of these 

agreements between the parties, we need not determine the period of time 

during which the posts could remain absent before Mettiki was required to 

replace them in accordance with its roof control plan. 

Finally, we reject Mettiki's argument that Order No. 3115848 alleging a 

violation of section 75.303(a) should be vacated because the Secretary 

allegedly failed to introduce the order into evidence or present evidence 

regarding its issuance. At the evidentiary hearing, Mettiki agreed that the 

judge's determination of whether Mettiki's plan required replacement of the 

roof support posts would be dispositive of both orders. Tr. 472-73. We 

believe, therefore, that the judge properly held Mettiki to the terms of its 

agreement. 

·- We conclude that the judge correctly interpreted Mettiki's roof control 

plans to require replacement of roof support posts which are removed in order 

to install longwall equipment. Accordingly, we affirm the judge's decision. 

Richard V. Backley, Acting Chgirman 

,., 

',//--<- /C-"- //. ,/_l,(_,:-_J {-:(___ 

J 6yce Doyle, Commissioner // 

!lli. ~ .. 

L. Clair Nelson, Commissioner 

8 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 8 1991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

Docket No. KENT 90-116 

A.C. No. 15-16162-03529 

v. 

BEECH FORK PROCESSING 

INCORPORATED, 

Respondent 

Docket No. KENT 90-162 

A.C. No. 15-16162-03527 

Docket No. KENT 90-163 

A.C. No. 15-16162-03528 

Appearances: 

Before: 

Mine No. 1 

DECISIONS 

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

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

for the Petitioner; 

Craig s. Preece, Comptroller, Beech Fork 

Processing, Inc., Lovely, Kentucky, for the 

Respondent. 

Judge Koutras 

Statement of the Proceedings 

These proceedings concern 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), charging the respondent with twenty 

(20) violation of certain mandatory safety and health standards 

found in Parts 70, 75, and 77, Title 30, Code of Federal 

Regulations. The respondent filed timely contests and hearings 

were held in Pikeville, Kentucky. The parties waived the filing 

of posthearing briefs, but I have considered all of their oral 

arguments made on the record during the hearings in my adjudication of these matters. 

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. 

9 
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. 

Issues 

The issues presented in these proceedings are {1) whether 

the cited conditions or practices constitute violations of the 

cited mandatory safety and health standards; (2) whether several 

of the cited violations were significant and substantial (S&S); 

(3) whether one section 104(d) (1) violation in Docket No. 

KENT 90-116, was unwarrantable; and (4) the appropriate civil 

penalty assessments to be made for the violations which have been 

affirmed. 

Stipulations 

The parties stipulated to the following (Tr. 7-8): 

1. The respondent does not dispute the fact of violations 

in these proceedings. 

2. The history-6f prior violations is reflected in an MSHA 

computer print-out (exhibit P-1). 

3. The proposed civil penalty assessments for all of the 

violations are appropriate to the size of the mining operations 

conducted by the respondent. 

Docket No. KENT 90-116 

This case concerns one section 104(d) (1) citation and four 

section 104(a) citations issued by MSHA inspectors during the 

course of their inspections, and they are as follows~ 

Section 104 (d) (1) uus&S 1u Citation No. 3369907, October 4, 

1989, 30 c. F. R. § 75. 316 (Exhibit P-2) ~ · "The air reaching the 

face in the No. 2 left brk. where the 12 CM Joy continuous-mining 

machine was being operated could not be measured with an approved 

and calibrated anemometer." 

MSHA Inspector Carlos Duff confirmed that he issued the 

citation and he described the conditions he found which prompted 

him to do so. He stated that he detected less than 100 cubic 

feet of a per minute in the cited area which had been driven to 

a depth of 120 feet without establishing the required ventilation 

of 6 1 000 cubic feet a minute as provided by the ventilation plan 

( exhib P-3) o 

Mr. Duff confirmed that he detected no methane in the area 

but that the absence of ventilation resulted in "real dusty" 

conditions which created visibility problems. He stated that the 

10 
mining machine, shuttle cars, and scoops were potential sources 

of ignition and in the event of any methane liberation while coal 

was being cut at the face there was a hazard of a fire or explosion in the event the methane reached an explosive level. 

Mr. Duff confirmed that the cited condition was corrected 

within 20 minutes and that the violation was timely abated. 

Although a ventilation curtain had been installed in the area, 

and the respondent had a waiver allowing it to maintain the 

curtain 20 feet from the face, no ventilation had been established for the 120 feet area which had been driven. 

Mr. Duff stated that the superintendent, or foreman, Danny 

Osborne, was a certified foreman and that he was required to 

monitor the ventilation on the section and check for methane 

every 20 minutes. Mr. Duff stated further that given the fact 

the entry had been driven for 120 feet, the lack of ventilation 

was not created during the shift and had to exist for at least 

two shifts and that Mr. Osborne did not deny that he was aware of 

the cited condition. 

Mr. Duff confirmed that he did not check the mining machine, 

and he conceded tha·t in the event the methane monitor were 

functioning properly and there were no permissibility violations, 

the gravity would be less than he found (Tr. 9-26). 

Section 104(a) 11 S&S 11 Citation No. 3158954, December 18, 

1989, 30 C.F.R. § 75.1103-4 (Exhibit P-4): 

The automatic fire sensor and warning device 

system was not properly installed on the No. 4 and 5 

belt flight. The fire sensor line ended approximately 

120 feet outby the No. 5 tail roller. The fire sensors 

on the Noo 4 and 5 belts were installed at or below the 

bottom belt. 

MSHA Inspector Foster I. Justice confirmed that he issued 

the citation and he described the cited conditions. He stated 

that the fire sensor devices were in fact installed along most of 

the belt line but that they were hung from a wire rope and were 

hanging below the belt rather than at an elevation above the 

belt. He stated that the foreman, Gary Sumpter, advised him that 

the fire sensors throughout the mine were installed in a similar 

fashion but that no one had previously cited the condition or 

said anything about it. Mr. Justice confirmed that because of 

the 11 foot coal height in the mine, the respondent had a problem 

installing the fire sensors at elevations above the belt because 

of the roof and mining height conditions. 

Mr. Justice stated that no sensors were installed for the 

120 feet at the area outby the tail roller, but they probably 

would have been when the belt was extended. He agreed that the 

ll 
mining height and roof conditions did present an installation 

problem and he conceded that the condition was probably observed 

and not cited during prior inspections. He confirmed that the 

condition was timely abated and that the respondent repositioned 

the sensors above the belt lines. 

Mr. Justice stated that since heat and smoke rises, the 

location of the sensors below the belt presented a hazard in that 

there would be a delay in alerting the miners on the section in 

the event of a mine fire and they could have been "smoked out" 

before the sensors detected any smoke. He confirmed that the 

belt drive motors, stop-start boxes, and electrical wiring on the 

belt line were potential sources of ignition. Any belt slippage 

or stuck rollers could have resulted in a belt fire and the eight 

miners on the section would have been exposed to smoke inhalation 

and carbon monoxide. The belt was running coal at the time he 

observed the conditions, and Mr. Sumpter acknowledged that he was 

aware of the fact that the sensors were installed below the 

elevation of the belt (Tr. 28-42). 

Section 104(a) 11 s&s 11 Citation No. 3158955, December 19, 

1989, 30 C.F.R. § 7Q.B01 (Ex~ibit P-6): 

Based on the results of a supplemental noise 

survey conducted by MSHA on 12/18/89, the noise standard has been exceeded in the environment of the roof 

drill operator, occupation code 014 on the 001-0 MMU. 

The results obtained from a personal noise dosimeter, 

Mark I, property No. 108221 showed a C/T value of 

169.5%. 

A hearing conservation plan as required by 

30 C.F.R. § 70.510 shall be submitted to MSHA within 

60 days from the date of this citation. 

confirmed that he issued the citation and 

that he conducted a noise survey on the designated 

operator occupation, used an approved dosimeter, and 

found that the noise exposure exceeded the required level. He 

stated that the respondent is required to monitor the noise 

:from the .equipment to insure compliance. 

Mr. Justice stated that he conducted five additional noise 

surveys and found the noise exposure to be in compliance in those 

instances. He confirmed that one of the miner operators surveyed 

was furnished personal hearing protection with an EAR-plug 

device, but that he did not determine whether the cited drill 

operator had such a device. He conceded that any hearing damage 

for excessive noise would occur over a protracted period of time. 

The violation was timely abated after a subsequent test determined no excessive noise level exposure for the drill operator 

12 
and the respondent timely submitted a hearing conservation plan 

(Tr. 42-51). 

Section 104(a) "S&S" Citation No. 2982728, January 17, 1990, 

30 C.F.R. § 77.216-3(a) (Exhibit P-7): "The slurry impoundment 

has not been examined and the instrumentation monitored by a 

qualified person at intervals not exceeding seven days. The last 

examination recorded in the book was dated 1-8-90. The last 

piezometer readings recorded in the book were dated 12-22-89." 

MSHA Inspector Robert H. Bellamy testified that he is a 

mining engineer, has a degree in mining engineering from the 

University of Kentucky, and that he is a specialist in dam 

impoundments which are created for disposal of mine refuse. He 

confirmed that he issued the citation after determining that the 

coal fines slurry dam impoundment constructed and maintained by 

the respondent was not being examined at least every 7 days and 

that the piezometer instrument used to monitor the water level in 

the impoundment was not being monitored and checked every 7 days 

as required by the standard., 

Mr. Bellamy confirmed that an inspection book was maintained 

at the mine but that it did not reflect that the required inspections and monitoring of the impoundment was being conducted and 

recorded. He stated that plant superintendent James Chitti was 

one of the three individuals qualified to inspect and monitor the 

impoundment and that Mr. Chitti advised him that he was "caught 

up in other work" or was "too busy" to perform these tasks. 

Mr. Bellamy stated that the purpose of the inspection and 

monitoring of the impoundment is to detect any hazards which may 

be developing and whether or not the impoundment is being properly constructed. He described the impoundment as a 130-foot 

high dam covering 900 acres and confirmed that the respondent was 

continuing to build up by placing refuse materials on it and 

that a bulldozer is at the site at all times for this purpose. 

He confirmed that people were living below the location of the 

impoundment, and that in the event of a failure of the impoundment, they would be at risk. 

Mro Bellamy confirmed that at the time of the inspection the 

impoundment was within the established safety factor, and that 

the respondent had generally been in compliance in the past with 

the required inspections and monitoring cycles (Tr. 52-68). 

Section 104(a) "S&S" Citation No. 2982729, January 17, 1990, 

30 C.F.R. § 77.216(d) (Exhibit P-8): 

The maintenance of the slurry impoundment is not 

being implemented in accordance with the plan approved 

by the district manager in that drainage from the right 

13 
abutment {looking downstream) has been allowed to erode 

the downstream outslope of the embankment. The erosion 

has accumulated at the toe, partially blocking the 

underdrain outlet. 

Inspector Bellamy confirmed that he issued the citation 

after observing that material at the toe of the impoundment 

embankment had eroded and washed down the embankment blocking the 

underdrain (Exhibit P-10, sketch of violative condition}. The 

purpose of the underdrain is to relieve any excess water accumulated under the embankment, and as a result of the blockage 

caused by the blocking of the underdrain, the water had accumulated and was seeping from the area above the drain. If the 

blockage had continued, the water would not flow through the 

underdrain and it will accumulate in and saturate the embankment 

and may eventually lead to a failure of the embankment and the 

dam. Mr. Bellamy confirmed that the impoundment was not being 

maintained in accordance with the approved plan (Exhibit P-9; Tr. 

68-77) 0 

Docket No. KENT 90-162 

" 

This proceeding concerns five (5) section 104(a) citations 

issued on December 6, and 18, 1989, and they are as follows: 

No. 3367667, 30 C.F.R. § 77.216(d) (S&S) (Exhibit P-11). 

The construction of the slurry impoundment is not 

being implemented in accordance with the plan approved 

by the district manager in that the landslide debris 

and loose soils are not being removed from the left 

abutment prior to the placement of coarse refuse. 

Inspector Bellamy confirmed that he issued the citation 

after finding that the mine refuse material deposited on the 

impoundment embankment was being deposited on top of other loose 

soils and debris which had slid down the embankment during a 

prior 11 landslide 11 in the area. The landslide materials were 

unsuitable for compaction and should have been removed from the 

area before the refuse materials used to construct the impoundment were deposited. Mr. Bellamy described the area as 150 by 

50 feetr and he confirmed that 1 or 2 months prior to his inspection he had discussed the construction methods with Mr. Chitti 

and informed him that he could remove the landslide materials as 

the dam was being constructed but that he could not cover it with 

the refuse materials used to construct the damo 

Mr. Bellamy stated that some of the landslide material had 

been cleaned out prior to the day of his inspection, but that he 

could not recall what Mr. Chitti may have said about the refuse 

materials which had been deposited over the landslide area which 

he observed. Mr. Bellamy confirmed that the failure to remove 

14 
the unstable landslide materials would cause seepage in that area 

and would result in a "differential settlement" of the area and a 

failure in that relatively small area. He did not believe that 

any major failure of the impoundment would have occurred at the 

time of the inspection but that a "worst case" scenario would be 

a possible failure of the embankment if the condition were not 

corrected. He considered the cited area to be a "weak zone" in 

the dam embankment. He believed that construction work on the 

impoundment began approximately a year or so prior to the time of 

his inspection. He did not know when the initial landslide in 

question occurred, but confirmed that he saw evidence of the 

slide when the dam was being constructed at an earlier time. 

Mr. Bellamy did not believe that the landslide itself was a 

threat to the impoundment (Tr. 80-89). 

No. 3367668, 30 C.F.R. § 77.216(d) (Non S&S) (Exhibit P-12). 

The maintenance of the slurry impoundment is not 

being implemented in accordance with the plan approved 

by the district manager in that refuse has been allowed 

to block the main undergrain outlet. The refuse prohibits free flow from the underdrain. 

The respondent withdrew its contest with respect to this 

citation and agreed to pay the proposed civil penalty assessment. 

Inspector Bellamy confirmed that the citation is distinguishable 

from the prior impoundment citation which he issued (Exhibit 

P-8), in that the water which was backed up in the blocked 

underdrain was seeping through the blocked drain and was not 

backed up and seeping through the embankment area above the 

underdrain. 

No. 3158951, 30 C.F.R. § 75.1722{b) (S&S) (Exhibit P-13). 99The No. 4 conveyor head roller was not adequately guarded a 

distance to prevent a person from reaching over the guard and 

becoming caught between the belt and conveyor head roller. 10 

Inspector Justice confirmed that he issued the citation 

after observing that the guard over the conveyor head roller was 

insufficient to prevent someone from reaching in and contacting 

the pinch pointo He stated that the head roller was partially 

guarded with pieces of metal but that it did not completely cover 

the pinch points. He believed that the cited condition was 

obvious. 

Mr. Justice stated that while miners are prohibited from 

cleaning up, greasing, or performing other work around a moving 

conveyor, it is common knowledge that they do. If there is any 

slippage of the conveyor belt roller, it is a common practice to 

throw rock dust on the roller to dry it out and anyone doing this 

would be exposed to a hazard of getting their arm or had caught 

in the unprotected pinch point. He was aware of an incident at 

15 
another mine where a miner had his arm torn off when it was 

caught in an unguarded head roller while he was throwing rock 

dust into it. He also believed that anyone cleaning up or 

shoveling in the area could readily contact the pinch point if 

they were to fall into it and contact the pinch point. If this 

were to occur, a serious injury would result. 

Mr. Justice had no knowledge that the respondent required 

anyone to rock dust the head roller, but it was his belief that 

this is done anyway regardless of any instructions to the contrary. The condition was abated at the time he next returned to 

the mine to terminate the citation and the head roller was 

protected with an adequate guard (Tr. 90-100). 

No. 3158952, 30 C.F.R. § 75.1722(b) (S&S) (Exhibit P-14). 

"The No. 4 conveyor tail pulley was not adequately guarded to 

prevent a person from coming in contact with the conveyor tail 

pulley and belt. The tail roller was guarded with a piece of 

belt across the back of the tail roller." 

Inspector Justice confirmed that he issued the citation 

after observing that,the conveyor tail pulley was not adequately 

guarded to prevent a person from contacting the pinch point 

between the pulley and the belt. He stated that the tail pulley 

was guarded with a piece of belt material or a "flap" at the back 

of the pulley but that it did not cover the ends or sides of the 

pulley at the pinch points. He did not believe that the belting 

material, which was not rigid and could easily be pushed aside, 

constituted adequate guarding. 

Mr. Justice confirmed that the hazards presented by the 

inadequate guard were the same as those which were present with 

respect to the previous citation which he issued for an inadequate guard on the conveyor head roller during the same 

inspection (Exhibit P-13; Tr. 100-105)" 

No. 3158953, 30 C.F.R. § 75.1715 (S&S) (Exhibit P-15). niThe 

che.ck-in and check-out system was not established at this mine. 

There was no positive identification of the persons underground 

who portal at the 1-A portal. 11 

Inspector Justice confirmed that he issued the citation 

after determining that several miners who were working underground were not identified or "tagged" on the check-in and checkout board provided at the mine. He explained that seven miners 

who were assigned to work at a new mine area and who were checked 

in at one area were in fact working at another area, and that 

several miners working underground were not identified on the 

board as being underground. 

Mr. Justice explained the required check-in and check-out 

system and stated that the identification tag which a miner 

16 
carries on his belt must conform to the one maintained on the 

board. He was aware of a prior incident at another mine where a 

miner who had worked a double shift had not checked in and was 

unaccounted for after a rock fell on him and he could not move. 

By the time rescuers reached him, he had died after being underground for 16 hours. Mr. Bellamy stated that miners are required 

to check in and out at the end of their shift in order to account 

for everyone who may still be underground at the end of their 

normal work shift (Tr. 105-114). 

Docket No. KENT 90-163 

This case concerns ten (10) section 104(a) citations, and 

they are as follows: 

Section 104Ca) non- 11 s&s 11 Citation No. 9979793, November 13, 

1989, 30 C.F.R. § 70.207(a): 

The mine operator did not take five (5) valid 

respirable dust samples from the designated occupation 

036 on MMU I.D. 003-0, £or the bimonthly period of 

September-October as shown in the attached Advisory 

No. 010, dated November 7, 1989. Four (4) valid 

samples were received and credited to this bimonthly 

sampling cycle. Management shall collect and submit 

five (5) valid respirable dust samples from the 

Designated Occupation 036 on MMU I.D. 003-0. These 

samples shall be received by the Pittsburgh Respirable 

Dust Processing Laboratory on or prior to the termination due date listed on this citation. 

Section 104(a) non- 11 S&S 11 citation No. 3364696, January 5, 

1990, 30 C.F.R. § 77.1109(dL which states: "A fiee extinguisher 

was not provided for the main fan installation. 11 

The contestant withdrew its contests with respect to Cita-

~ion Nos" 9979793 and 3364696, and agreed to pay the proposed 

civil penalty assessments for these violations (Exhibits P-16 and 

P-19). 

Section 104(a) ius&S 11 Citation No. 3364694, January 3, 1990, 

30 C.F.R. § 75.503~ 11The roof bolter being used on the 002-0 

section was not being maintained in a permissible condition. 

When checked with an approved device, the control panel cover had 

an opening in excess of .006 of an inch. 11 (Exhibit P-17) 

MSHA Inspector Lewis H. KlayKo confirmed that he issued the 

citation after conducting a permissibility inspection of the roof 

bolter. He used a feeler gauge and found an opening in excess of 

.006 of an inch in the bolter control panel cover. This was in 

excess of the required permissible opening of .004 of an inch. 

17 
Mr. KlayKo confirmed that he detected no methane in the 

cited area. However, the roof bolter was in operation and the 

area was dusty. Since there is always a chance of hitting a 

pocket of methane in a dusty environment, a spark or an arc 

through the control panel cover opening could ignite the methane 

and the dust could contribute to a methane ignition. If this 

were to occur, the miners working in the area would be exposed to 

lost work days and restricted duty injuries. 

Mr. KlayKo stated that the respondent is required to conduct 

weekly inspections of its electrical equipment, including the 

roof bolter. He believed that the cited condition should have 

been detected during such an inspection or through the regular 

maintenance of the equipment. He stated that foreman Ted 

McGinnis informed him that he was having problems on the section 

and that he had a man off sick and was behind on his electrical 

maintenance of the equipment. Mr. KlayKo had no reason to 

dispute this, and he indicated that the maintenance of the 

equipment was "maybe not quite up to snuff." 

Mr. KlayKo confirmed that the condition was abated within 

15 minutes and that~J:le had experienced no prior problems with the 

respondent with respect to permissibility violations other than 

the citations which he issued in this case. He also confirmed 

that the openings which he found in all of the cited equipment 

probably resulted from some maintenance work where the cover 

panels were not tightened sufficiently after they were removed 

and replaced (Tr. 120-125). 

Section 104(a) "S&S" Citation No. 3364695, January 3, 1990, 

30 C.F.R. § 75.503: "The Joy miner being used on the 002-0 

section was not being maintained in a permissible condition. 

When checked with an approved device, the master control panel 

cover had an opening in excess of 006 of an inch. (Exhibit 

P=J_8 o 

Inspector KlayKo confirmed that he issued the citation after 

checking the Joy continuous-mining machine master control panel 

with a feeler gauge and finding an opening in excess of .006 of 

an inch, which was in excess of the required permissible opening¢ 

The miner was cutting coal at the face at the time of inspect:ion, and it was backed out so that he could check ito 

Mr. KlayKo confirmed that the hazards presented by the 

violation were more serious than those presented by the previous 

citation concerning the non-permissible roof bolter because the 

miner was cutting coal at the face and that a sudden release of 

methane could result in flame coming out of the control panel 

cover opening and causing an ignition which would endanger the 

seven men working the section. 

18 
Mr. KlayKo confirmed that he detected no methane and had no 

knowledge of any prior methane ignitions in the mine. He also 

confirmed that the violation was abated in 15 minutes and that 

Mr. McGinnis' explanation for the existence of the condition was 

the same as the one for the cited roof bolter (Tr. 125-129). 

Section 104(a) 11 8&8" citation No. 3364697, January 5. 1990, 

30 C.F.R. § 77.1605(a), which states as follows: "The Caterpillar dozer S/N 92V12890, had broken windows in both doors of the 

cab." (Exhibit P-20). 

Inspector KlayKo confirmed that he issued the citation after 

finding cracks in the windows of both doors of the cited bulldozer which was pushing coal on a surface storage pile. He 

stated that the dozer operator was not wearing any eye protection 

and he believed that a sliver of glass could have flaked off the 

cracked glass because of the vibration of the dozer while it was 

operating and found its way to the eyes of the operator injuring 

him. He believed that any sliver or flake of glass could have 

fallen on the gloves of the operator and that he could have 

inadvertently rubbed it in his. eyes. 

Mr. KlayKo believed that the condition existed for "a few 

days 11 and that the foreman or the equipment operator should have 

observed the condition and taken corrective action. He stated 

that foreman Chitti offered no explanation for the condition, and 

Mr. KlayKo indicated that the surface areas, including the 

equipmentf was required to be preshifted. He also confirmed that 

the windshield was in good condition, and that the cracked door 

windows were safety glass. The violation was timely abated and 

the respondent replaced the cracked windows (Tr. 129-135). 

Section 104(a) 11 S&S 11 Citation No. 3364698, January 5, 1990, 

30 C.F.Ro ~ 77ol605(b)~ 11 The International end loader Model 

H-90r used to spread sludge on the haul road was not equipped 

with adequate park brake" It would not hold when set. 11 (Exhibit 

P-21) , 

Inspector KlayKo confirmed that he issued the citation after 

inspecting the cited end loader and finding that the parking 

brake would not hold when it was engaged and tested on a 5 to 

7 degree grade, The loader was loading slag, or limestone rock 

and gravel, on trucks which were spreading it on a haulage road 

and the loader was also used to spread some of this materialo 

Mr. KlayKo stated that the foot brakes were in good condition, 

and that the front bucket is often lowered to the ground to serve 

as an additional braking device. 

Mr. KlayKo stated that the haul road was approximately 

50 feet wide, and while there were other steeper grades along the 

road, the end loader would not be operated in those areas. He 

believed that the inadequate parking brake presented a hazard in 

19 
the event the operator decided to stop the loader with the engine 

running and got out to clear some debris from the roadway. If 

this occurred, the loader would roll back and possibly strike 

some of the trucks or the drivers who were out of their trucks 

while working on the roadway. 

Mr. KlayKo stated that the equipment operator is required to 

check the brakes before operating the loader and to report any 

inadequate brake condition to his foreman. He confirmed that the 

operator of the loader informed him (KlayKo) that the parking 

brake was not working. Mr. KlayKo also confirmed that the 

equipment operator is required to make a maintenance report but 

that he did not check any such reports. 

Mr. KlayKo stated that a possibility of an accident existed, 

and he confirmed that a loader operator would not normally park 

the machine on a grade. He also indicated that the parking brake 

may have malfunctioned during the course of the working shift 

(Tr. 135-146). 

Section 104 (a) 11 s&s 11 Cit.ation .No. 3364699, January 5, 1990, 

30 C.F.R. § 77.400(c)-, states as follows: "The guards on the 

refuse conveyor belt drive had been removed and not replaced." 

(Exhibit P-22) . 

Inspector KlayKo confirmed that he issued the citation after 

finding that the guards on the refuse conveyor belt drive had 

been removed and not replaced. He observed the guards about 

3 feet from the belt which was running, but he saw no one working 

in the area. He stated that he had walked by the belt a day or 

two earlier and the guards were removed, but since the belt was 

not running at that time he assumed that it was down for maintenance and did not issue a citation. 

Mro KlayKo conceded that subsection (d) of section 77.400, 

was more appropriate than subsection (c) and without objection, 

the petitioner was allowed to amend pleadings to conform to 

its evidence and to reflect a citation of subsection (d) rather 

than (c). 

Mro KlayKo stated that foreman Chitti informed him that a 

roller had probably been changed out and that someone had 

neglected to replace the guards. Mro KlayKo believed that the 

belt should have been preshifted, and he believed that anyone 

cleaning or greasing the belt while it was running could contact 

the unguarded pinch points and suffer serious injuries. The 

guards were reinstalled the same day, and Mr. KlayKo terminated 

the citation when he next returned to the mine on January 8, 1990 

(Tr. 146-153). 

Section 104{a) "S&S" Citation No. 3364700, January 8, 1990, 

30 C.F.R. § 75.503: "The Joy miner being used on the 001-0 

20 
section was not maintained in a permissible condition. When 

checked with an approved device, the trailing cable junction box 

caver had an opening in excess of .008 of an inch." (Exhibit 

P-23). 

Section 104(a) "S&S" Citation No. 3515144, January 9, 1990, 

30 C.F.R. § 75.503: "The roof bolter being used in the 001-0 

section was not being maintained in a permissible condition. 

When checked with an approved device, the cover for the lights 

junction box had an opening in excess of .009 of an inch. 11 

(Exhibit P-24). 

Inspector KlayKo confirmed that he issued the permissibility 

violations after checking the miner machine and roof bolter with 

a feeler gauge and finding openings in the miner trailing cable 

junction box and the roof bolter lights junction box greater than 

permissible. The roof bolter opening was the largest that he has 

ever found. He confirmed that the hazards presented by the 

violations were the same as the previous permissibility violations which he issued, and that the miner and bolter were both 

operating immediately prior ~o his inspecting them. 

·- Mr. KlayKo stai:ed that foreman McGinnis 11 felt bad11 about the 

violations and corrected them immediately within 15 minutes. 

Mr. KlayKo confirmed that his inspection was his first inspection 

visit at the mine and he was not aware of any prior compliance 

problems at the mine (Tr. 153-158). 

Section 104(a) 11 S&S 11 Citation No. 3515145, January 9, 1990, 

30 C.F.R. § 77.205(e), states as follows: "The steps to the 

parts trailer on the surface area of the 001-0 section was not 

provided with handrails." (Exhibit P-25). 

Inspector KlayKo confirmed that he issued the citation after 

he observed that the steps at the parts trailer were not provided 

with hand ra s" He stated that there were four steps leading up 

to the trailer interiorc He believed that the were sub~ 

stantially constructed wooden steps approximately 40 inches wide 

and 10 inches deep. The highest step leading into the trailer 

was approximately 48 inches above ground level" 

Hr" KlayKo believed that the lack of hand ls presented a 

siip and fall hazard. Miners who would visit the trailer to 

obtain parts could possibly slip on the stairs during the winter 

season if they were frozeno The ground conditions near the steps 

were wet and muddy and the freezing and thawing of the ground 

would contribute to the slipping conditions since the materials 

would be deposited on the steps. In the event someone slipped on 

the steps they would have nothing to hold onto to break their 

fall. If they were to slip off the stairs they could suffer a 

possible broken leg, back, or shoulder. 

21 
Mr. KlayKo stated that foreman McGinnis advised him that the 

lack of handrails was an oversight and that he would install them 

immediately. The condition was corrected and handrails were 

installed on both sides of the stairway (Tr. 158-166). 

Findings and Conclusions 

Fact of Violations 

As previously noted, the respondent has stipulated that all 

of the conditions and practices cited by the inspectors in these 

proceedings constitute violations of the cited mandatory safety 

or health standards, and it has withdrawn its contests with 

respect to three of the violations (Citation Nos. 3367668, 

9979793, and 3364696). Further, the respondent has presented no 

testimony or evidence to rebut the credible testimony of the 

inspectors in support of the violations which they issued in the 

course of their inspections. Under the circumstances, I conclude 

and find that the petitioner has established all of the contested 

violations by a preponderance of the credible and probative 

evidence presented in these proceedings, and all of the violations ARE AFFIRMED. , 

Significant and Substantial Violations 

A "significant and substantial" violation is described in 

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

as could significantly and substantially contribute to the cause 

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

30 C.F.R. § 814(d) (1). A violation is properly designated 

significant and substantial "if, based upon the particular facts 

surrounding the violation there exists a reasonable likelihood 

that the hazard contributed to will result in an injury or 

illness of a reasonably serious nature. 11 Cement Division, 

National Gypsum Co. 3 FMSHRC 822u 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 11 ·as follows: 

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

under National Gypsum the Secretary of Labor must 

prove~ (1) the underlying violation of a mandatory 

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

a measure of danger to safety-contributed to by the 

violation; (3) a reasonable likelihood that the hazard 

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

reasonable likelihood that the injury in question will 

be of a reasonably serious nature. 

22 
In United States Steel Mining Company, Inc., 7 FMSHRC 1125, 

1129, (August 1985), the Commission stated further as follows: 

We have explained further that the third element 

of the Mathies formula "requires that the Secretary 

establish a reasonable likelihood that the hazard 

contributed to will result in an event in which there 

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

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

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

is the contribution of a violation to the cause and 

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

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

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

In United States Steel Mining Company, Inc., 7 FMSHRC 327 

(March 1985), the Commission reaffirmed its previous holding in 

U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August 1984) that it 

is the contribution of a violation to the cause and effect of a 

hazard that must be significant and substantial, and that a 

determination of the significant and substantial nature of a 

violation must be made in the context of continued normal mining 

operations, including the question of whether if left uncorrected, the cited condition would reasonably likely result in an 

accident or injury. 

The respondent presented no testimony or evidence to rebut 

the testimony and evidence adduced by the petitioner in support 

of the significant and substantial (S&S) findings made by the 

inspectors. Under the circumstances, and on the basis of the 

credible and probative testimony presented by the inspectors, I 

conclude and find that with the exception of Citation No. 3364697 

broken door windows on a bulldozer), and Citation No. 3364698 

·~inadequate parking brake on an end loader) v (Docket No. KENT 

90-163) p all of the S&S findings made by the inspectors with 

respect to the remaining contested citations and order are 

supportable, and these findings ARE AFFIRMEDo 

With regard to Citation Nos. 3364697 and 3364698, the 

respondent 1 s representative argued that the cited conditions did 

not present any hazards or a reasonable likelihood of an injury. 

The same argument was made with respect to Citation No. 351545 

(lack of hand-rails on parts trailer steps) (Docket No. 

I-<ENT 90-163) , 

With regard to Citation No. 3364697, concerning the 11 brokenn 

windows in both doors of the cited bulldozer operator 1 s cab, I 

take note of the fact that the inspector testified that the 

windows were 11 cracked" and he was concerned that a sliver of 

glass could have flaked off the glass and found its way to the 

eyes of the operator. He also believed that a flake or sliver of 

23 
glass could have fallen on the gloves of the operator and he 

could have inadvertently rubbed the glass in his eyes with his 

gloves. 

The inspector confirmed that the bulldozer windshield, which 

is directly in front of the bulldozer operator, was in good 

condition, and that the cracked door windows were constructed of 

safety glass. Under these circumstances, and in the absence of 

any evidence as to the proximity of the doors to the operator's 

face while seated in his normal position at the controls of the 

machine, I find it highly unlikely that a sliver of glass from 

the cracked safety glass doors would contact the operator's eyes. 

I conclude and find that the inspector's belief that an injury 

was reasonably likely is unsupported speculation, and his S&S 

finding is vacated. The citation is modified to reflect a 

non-S&S violation. 

With regard to Citation No. 3364698, concerning the cited 

end loader with an inadequate parking brake, the inspector 

confirmed that the service or foot brakes which are normally 

applied to stop the machine while it is working were in good 

condition. 

The inspector confirmed that the loader would not be operated in roadway areas steeper than the 5 to 7 degree grade where 

the parking brake was tested. He believed that there was a 

possibility of an accident in the event the loader operator 

decided to stop the loader with the engine running and left his 

machine to clear some debris from the roadway. However, the 

inspector confirmed that the loader bucket is often lowered to 

the ground to serve as an additional braking device, and he 

conceded that a loader operator would not normally park the 

machine on a grade. 

The inspector confirmed that the loader operator informed 

him that the parking brake was not working. However, the inspector apparently did not question the operator about his speculative conclusion that the operator would leave his machine with 

the engine running on a grade to clear debris from the roadway. 

In the absence of any evidence that this was in fact the case, I 

cannot conclude that the inspector's speculation concerning the 

possibility of an accident supports his S&S finding. Accordingly, his finding in this regard is vacated, and the citation is 

modified to reflect a non-S&S violation. 

With regard to Citation No. 3515145, concerning the lack of 

protective handrails on the parts trailer steps, I conclude and 

find that the credible and unrebutted testimony of the inspector 

supports his S&S finding, and it is affirmed. 

24 
Unwarrantable Failure Violation 

In Docket No. KENT 90-116, Citation No. 3369907, issued on 

October 4, 1989, and citing a violation of the ventilation 

requirements of mandatory safety standard section 75.316, was 

issued as a section 104{d) (1) unwarrantable failure citation. 

The governing definition of unwarrantable failure was 

explained in Zeigler Coal Company, 7 IBMA 280 (1977), decided 

under the 1969 Act, and it held in pertinent part as follows at 

295-96: 

In light of the foregoing, we hold that an inspector should find that a violation of any mandatory 

standard was caused by an unwarrantable failure to 

comply with such standard if he determines that the 

operator involved has failed to abate the conditions or 

practices constituting such violation, conditions or 

practices the operator knew or should have known 

existed or which it failed to abate because of a lack 

of due diligence, or beqguse of indifference or lack of 

reasonable care.-

In several recent decisions concerning the interpretation 

and application of the term "unwarrantable failure," the 

Commission further refined and explained this term, and concluded 

that it means "aggravated conduct, constituting more than ordinary negligence, by a mine operator in relation to a violation of 

the Act." Energy Mining Corporation, 9 FMSHRC 1997 (December 

1987); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007 (December 

1987); Secretary of Labor v. Rushton Mining Company, 10 FMSHRC 

249 (March 1988). Referring to its prior holding in the Emery 

Mining case, the Commission stated as follows in Youghiogheny & 

Ohio, at 9 FMSHRC 2010~ 

We stated that whereas negligence is conduct that 

is 11 inadvertent, 11 "thoughtless" or "inattentive," 

unwarrantable conduct is conduct that is described as 

"not justifiable" or "inexcusable." Only by construing 

unwarrantable failure by a mine operator as aggravated 

conduct constituting more that ordinary negligence, do 

unwarrantable failure sanctions assume their intended 

distinct place in the Act's enforcement scheme. 

In Emery Mining, the Commission explained the meaning of the 

phrase "unwarrantable failure" as follows at 9 FMSHRC 2001: 

We first determine the ordinary meaning of the 

phrase "unwarrantable failure." "Unwarrantable" is 

defined as "not justifiable" or "inexcusable." 

"Failure" is defined as "neglect of an assigned, 

expected, or appropriate action." Webster's Third New 

25 
International Dictionary (Unabridged) 2514, 814 (1971) 

("Webster 1 s 11 ). Comparatively, negligence is the failure to use such care as a reasonably prudent and 

careful person would use and is characterized by 

"inadvertence," "thoughtlessness," and "inattention." 

Black's Law Dictionary 930-31 (5th ed. 1979). Conduct 

that is not justifiable and inexcusable is the result 

of more than inadvertence, thoughtlessness, or 

inattention. * * * 

The inspector's credible testimony, which is not rebutted by 

the respondent, supports his conclusion that there was little or 

no ventilation in the cited area which had been driven for 

120 feet. Given the distance driven, with no ventilation, the 

inspector's conclusion that the condition existed for at least 

two shifts, is supportable. The respondent did not dispute the 

inspector's testimony that the certified foreman present in the 

area was required to monitor the ventilation and did not deny 

that he was aware of the cited condition, and indeed admitted it 

(Tr. 17). Although the inspector confirmed that he detected no 

methane present, he nonetheless found that the absence of ventilation resulted in ''real dusty" conditions and that the mining 

machine, shuttle cars, and scoops operating on the section 

constituted potential ignition sources which presented a fire or 

explosion hazard in the event of any methane liberation while 

coal was being cut. 

The respondent presented no evidence or testimony to rebut 

the inspector's findings that a significant and substantial 

violation existed, nor did it present any reasonable explanation 

for the absence of ventilation in the cited area. In addition to 

the inspector's testimony that the section foreman, who was with 

him during his inspection, admitted that he was aware of the lack 

of ventilation, the inspector testified that the condition could 

not have been created on the on-going shift, and that the lack of 

ventilation existed for at least two, and possibly three prior 

shifts (Tr. 23). He also confirmed that in order to abate the 

condition and establish the required amount of ventilation 

pursuant to the ventilation plan, three breaks had to be cut 

through and this work was done the next day (Tr. 24-25). Under 

all of these circumstances, I conclude and find that the inspector's credible testimony supports a finding of aggravated conduct 

and his unwarrantable failure finding and citation IS AFFIRMED. 

Size of Business and Effect of Civil Penalty Assessments on the 

Respondent 1 s Ability to Continue in Business 

The parties agreed that the respondent employs approximately 

100 miners, and that its annual production for 1989 was approximately two-million tons of coal. The annual production for the 

No. 1 Mine was one-million tons. The respondent's representative 

confirmed that the respondent operates eight mines and that the 

26 
No. 1 Mine consists of an underground mining operation, a surface 

plant, and an impoundment. The respondent stipulated that 

payment of the proposed civil penalty assessments in all of these 

proceedings will not adversely affect its ability to continue in 

business. 

In view of the foregoing I conclude and find that the 

respondent is a large mine operator and that the payment of the 

civil penalty assessments that I have made for the violations 

which have been affirmed will not adversely affect its ability to 

continue in business. 

History of Prior Violations 

The MSHA computer print-out listing the respondent's compliance record for the period October 4, 1987, through October 3, 

1989, reflects that the respondent paid civil penalty assessments 

in the amount of $18,742, for 160 violations, 44 of which were 

"single penalty" non-S&S violations. With the exception of one 

section 104(d) (1) order, one combined section 104(a) citation and 

107 (a) imminent danger order,. .. and five combined section 104 (a) 

citations and sectiqn-104(b) orders, all of the remaining violations were issued as section 104(a) S&S citations. 

With regard to Docket No. KENT 90-116, I take note of the 

fact that the computer print-out reflects one prior violation of 

30 C.F.R. § 75.316, issued on March 22, 1988, as a "single 

penalty" citation for which the respondent paid a civil penalty 

assessment of $20. No prior violations of sections 75.1103-4, 

70.501, 77.216-3(a), or 77.216(d) are noted. 

In Docket No. KENT 90-162, the computer print-out reflects 

no prior citations for violations of sections 77.216(d) and 

75ol722(b), Six prior violations of the check-in and check-out 

requirements of section 75.1715, were issued on April 6, 1988, as 

g'single penalty 1u citations which were assessed and paid at $20 

eacha I assume that the multiple citations were issued for 

failure to provide proper identification for six individual 

miners. In the instant proceeding, the inspector issued a single 

violation for failure to provide proper identification for seven 

miners working underground. 

In Docket No. KENT 90-163 1 the print-out reflects no prior 

violations of sections 70.207(a), 77.1605(a}, and 77.400(c}. 

Three prior violations of section 77.1605(b} are noted, and they 

were all issued on April 4, 1988. 

Although I cannot conclude that the respondent's history of 

prior violations is particularly good, for an operation of its 

size where the No. 1 Mine had an annual production of one million 

tons, I cannot conclude that it warrants any increases in the 

civil penalty assessments which I have made for the violations 

27 
which have been affirmed. In this regard, I have considered the 

fact that the respondent's history contains only a few repetitive 

violations, none of which I consider particularly egregious, and 

this is reflected in my civil penalty assessments. 

Good Faith Compliance 

The record in these proceedings establishes that the respondent timely corrected and abated all of the violations in good 

faith. In Docket No. KENT 90-163, the four permissibility 

violations were all abated within 15 minutes, and the handrails 

were installed in the parts trailer stairway immediately and 

prior to the time fixed by the inspector. 

In Docket No. KENT 90-116, the ventilation violation was 

abated and the ventilation was restored within 30 minute& of the 

issuance of the violation. One of the slurry impoundment violations (2982728), was abated within 2 hours, and 1-day earlier 

than the time fixed by the inspector. 

In Docket No. KENT 90-16.2,. the check-in and check-out 

violation was abategwithin 3 hours, 2-hours earlier than the 

time fixed by the inspector. 

I have taken the respondent's good faith and rapid abatement 

actions into consideration in the civil penalty assessments which 

I have made for the violations in these proceedings. 

Negligence 

Except for Citation Nos. 3369907 and 3364696, the inspectors 

found that all of the remaining violations resulted from a 

moderate degree of negligence. The inspector who issued Citation 

Noo 3369907 concluded that it resulted from a high degree of 

negligence, and the inspector who issued Citation No. 3364696 

concluded that it resulted from a low degree of negligence. 

The respondent presents no testimony or evidence to rebut 

the findings of the inspectors. Based on these findings, which I 

conclude and find are supported by the evidence adduced in these 

proceedings, I further conclude and find that all of the violations were the result of the failure by the respondent to exercise reasonable care to prevent the cited conditions or practices 

which it knew or should have known existed. Under the circumstances, the negligence findings made by the inspectors are all 

affirmedo 

In Docket No. KENT 90-163, with respect to the violation for 

the broken windows on the cited bulldozer, and the inadequate 

parking brake on the cited end loader, I have considered the fact 

that the equipment operators apparently failed to adequately 

inspect the equipment and did not report the violative conditions 

28 
to their respective foremen. The inspector testified that the 

end loader operator acknowledged that the parking brake was 

inadequate, and the broken glass on the bulldozer should have 

been readily obvious to the operator. Although the negligence of 

the equipment operators does not absolve the respondent of any 

liability for the violations, I have considered this in mitigation of the civil penalty assessments made for these violations. 

Gravity 

With the exception of the three citations which were issued 

as ''single penalty" non-S&S citations (3367668, 9979793, and 

3364696), I conclude and find that on the basis of the credible 

testimony presented by the inspectors, all of the remaining 

citations affirmed as significant and substantial (S&S) violations, were serious. 

With regard to Citation Nos. 3364697 and 3364698, I conclude 

and find that the cracked safety glass windows in the doors of 

the cited bulldozer and the inadequate end loader parking brake 

were nonserious conditions. 

Civil Penalty Assessments 

Although the respondent presented no testimony or evidence 

with respect to the fact of each violation, its representative 

confirmed that the respondent contested the violations because it 

believed that the inspectors were issuing all citations at the 

mine as significant and substantial (S&S) violations, and that 

this has resulted in civil penalty assessments which the respondent believes are "high" for the conditions cited. 

The respondent also took the position that the "high" 

penalty assessments resulted from MSHAis inappropriate consideration of its history of prior violations. In support of this 

assertionf the respondent believes that any prior violations 

issued on any of the mine working sections should be considered 

and limited only to those mine sections rather than the entire 

mine. The respondent further believes that it is unfair to 

combine all of the prior violations and consider them as part of 

the compliance record for the entire mine, rather than the 

separate mine sections, and that by considering them in totality, 

rather than separately, "double assessments" have resulted. 

It is clear that I am not bound by MSHA's civil penalty 

assessment procedures found in Part 100, Title 30, Code of 

Federal Regulations. Nor am I bound by MSHA's proposed civil 

penalty assessments. All civil penalty cases contested by a mine 

operator before the Commission, an agency which is not part of 

the U.S. Department of Labor, are considered de novo by the 

presiding judge, and any civil penalty assessments are made in 

accordance with the criteria found in section llO(i) of the Act. 

29 
In the instant proceedings, my findings and conclusions with 

regard to the violations are based on the preponderance of the 

credible and probative evidence adduced on the record in the 

course of the hearings. The civil penalty assessments which I 

have made for the violations which have been affirmed are likewise based on the evidentiary record and the criteria found in 

section llO{i) of the Act. 

The respondent's assertion that its history of prior violation should be considered separately for each mine section, 

rather than the entire mine, is rejected. I find no support for 

the respondent's conclusion that MSHA's consideration of its 

prior history of violations resulted in any "double" proposed 

civil penalty assessments. The respondent's history of prior 

violations for the purposes of any civil penalty assessments is 

reflected in the computer print-out which is a part of the record 

in this case. I have considered this compliance record as the 

overall compliance record for the No. 1 Mine, and I consider the 

violations noted in the print-out as the total history for the 

mine, regardless of the particular mine sections where the 

violative conditions may havg occurred. Further, as noted 

earlier, I have tak~n this history into account in assessing the 

penalties for the violations in question, and I cannot conclude 

that the respondent has been unreasonably penalized or treated 

unfairly. 

On the basis of the foregoing findings and conclusions, and 

taking into account the civil penalty assessment requirements of 

section llO(i) of the Act, I conclude and find that the following 

civil penalty assessments are reasonable and appropriate for the 

violations which have been affirmed in these proceedings: 

Docket No. KENT 90-116 

Citation No. Date 30 C.F.R. Section Assessment 

3369907 10/04/89 75.316 $950 

3158954 12/18/89 75.1103-4 $165 

3158955 12/19/89 70.501 $100 

2982728 01/17/90 77.216-3(a) $170 

2982829 01/17 /90 77.216(d) $150 

'Docket No. KENT 90-162 

Citation No. Date 30 C.F.R. Section Assessment 

3367667 12/06/89 77.216(d) $100 

3367668 12/06/89 77.216(d) $ 20 

3158951 12/18/89 75.1722(b) $175 

3158952 12/18/89 75.1722(b) $175 

3158953 12/18/89 75.1715 $250 

30 
Docket No. KENT 90-163 

Citation No. Date 30 C.F.R. Section Assessment 

9979793 11/13/89 70.207(a) $ 20 

3364694 01/03/90 75.503 $160 

3364695 01/03/90 75.503 $160 

3364696 01/05/90 77.1109(d) $ 20 

3364697 01/05/90 77.1605(a) $ 20 

3364698 01/05/90 77.1605(b) $ 20 

3364699 01/05/90 77.400(d) $125 

3364700 01/08/90 75.503 $160 

3515144 01/09/90 75.503 $160 

3515145 01/09/90 77.205(e) $170 

ORDER 

The respondent IS ORDERED to pay the civil penalty assessments shown above within thirty (30) days of the date of these 

decisions and order. Payment is to be made to MSHA, and upon 

receipt of payment, t9ese proceedings are dismissed. 

~!~ Administrative Law Judge 

Distribution: 

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

of Labor 1 2002 Richard Jones Road, suite B-201, Nashville, TN 

37215 (Certified Mail) 

:['fir o s. Preece, . Comptroller, Beech Fork Processing, Inc. v 

F.O. Box 190J Lovely, KY 41231 (Certified Mail) 

/fb 

31 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 8 1991 

DONALD F. RADOS, DISCRIMINATION PROCEEDING 

complainant 

v. Docket No. PENN 90-186-D 

BETH ENERGY MINES, INC., PITT-CD-90-06 

Respondent 

Livingston Portal 84 Complex 

ORDER OF DISMISSAL 

Before: Judge Koutr?s 

The complainant's unopposed request to withdraw his 

complaint in this matter IS GRANTED, and this case IS DISMISSED. 

k/~~ Administrative Law Judge 

Distribution~ 

Paul H. Girdany, Michael Healey, Esqs., HEALEY WHITEHILL, Fifth 

Floor, Law & Finance Building, Pittsburgh, PA 15219 (Certified 

Mail) 

Ro Henry Moore; Esqo, Buchanan Ingersoll, 600 Grant Street, 58th 

Floor, Pittsburgh, PA 15219 (Certified Mail) 

/ml 

32 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

JAN 8 1991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

NATIONAL KING COAL, INC., 

Respondent 

DECISION 

Docket No. WEST 89-365 

A.C. No. 05-00266-03556 

King Coal Mine 

Appearances: Susan J. Eckerti Esq., Office of the Solicitor, 

u.s. Department of Labor, Denver, Colorado, 

for Petitioner; 

Tom Bird, National King Coal, Inc., Durango, 

Colorado, 

for Respondent. 

Before: Judge Cetti 

This case is before me upon the petition for civil penalty 

filed by the Secretary of Labor pursuant to Section llO(a) of the 

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

~(the "Act"). The Secretary charges National King Coal,""""""Irlc. 

(National)f the operator of an underground coal mineu with a 

104(a) significant and substantial violation of 30 C.F.R. 

§ 75.606. 

National filed a timely answer to the Secretary's proposal 

for penalty, denying the alleged violation. After notice to the 

parties, an evidentiary hearing on the merits was held before me 

at Durango, Colorado. Oral and documentary evidence was introduced. Both parties have filed post-hearing bri s, which I have 

considered along with the entire record in making this decision. 

STIPULATIONS 

At the hearing 1 the parties entered the following stipulations into the record, which I accept. 

1. National is engaged in the mining and selling of coal in 

the United States, and its mining operations affect interstate 

commerce. 

33 
2. National is the owner and operator of King Coal Mine, 

MSHA I.D. No. 05-0026-03556. 

3. National is subject to the jurisdiction of the Federal 

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

4. The administrative law judge has jurisdiction in this 

matter. 

5. The subject citation was properly served by a duly 

authorized representative of the Secretary, upon an agent of 

respondent, on the date and place stated therein, and may be 

admitted into evidence for the purpose of establishing its 

issuance, and not for the truthfulness or relevancy of any 

statements asserted therein. 

6. The exhibits to be offered by respondent and the Secretary are stipulated to be authentic, but no stipulation is made 

as to their relevance or to the truth of the matters asserted 

therein. 

7. The propos~d penalty will not affect respondent's 

ability to continue in business. 

8. The operator demonstrated good faith in abating the 

violation. 

9. National is a small mine operator with 111,651 tons of 

production in 1988. 

10. The certified copy of the MSHA assessed violations history, marked as Exhibit P-1, accurately reflects the history of 

this mine for the two years prior to the date of the citation. 

If a violation of the requirements of 30 CoFoRo § 750606 

is found, the violation is properly designated nsignificant and 

substantial.• 

12. If a violation of 30 CoF.R. § 75.606 is found, the appropriate civil penalty under llO(i) of the Act for the violation 

is $168000. 

I 

Cosme Fo Gutierrezf the Federal Mine Inspector who issued 

the citation charging a violation of 30 C.F.R. § 75.606f testified as to his experience and qualifications as a mine inspector. 

34 
He has conducted inspections of the King Coal Mine once or twice 

a year since his transfer from West Virginia in 1984. His inspection includes the entire mine and take approximately two or 

three weeks to complete. The mine is an underground seam, approximately 4.5 to 5.5 feet thick. The mine has two sectors, 

generally, consisting of 001 and 002 sections. 

On March 23 both, Federal mine inspectors Cosme Gutierrez 

and David L. Head were inspecting the King Coal Mine. Mr. Gutierrez was making a regular inspection. About 7:20 a.m., Inspector Gutierrez went underground and walked to the third east section which is the 001 section. He proceeded into the third entry 

where the continuous mine machine was operating and took an air 

reading. He then stood back away from the continuous miner to 

observe a mining cycleo 

As aptly stated in Respondentus post-hearing brief, "in a 

typical continuous mining machine section of a coal mine there 

are several pieces of equipment. These are: the continuous 

mining machine that cuts coal from the working face, two shuttle 

cars (rubber-tired coal haulage vehicles) that move the cut coal 

from the tail-boom of-the continuous mining machine outby to the 

feeder-breaker, and the feeder-breaker which is a stationary 

piece of equipment that feeds cut coal hauled by the shuttle car 

onto the conveyor belt system for transport out of the mine." 

Inspector Gutierrez testified that he observed the mining 

cycle as he stood in the intersection between three and four 

entry. The power kicked off the miner and he saw Mr. Willie 

Lucero, the face boss and section foreman, go over to Tom Bird, 

the mine superintendent and tell him that the power kicked off 

the continuous miner because a shuttle car ran over the miner's 

trailing cable and damaged ito At the time he overheard this 

conversationv he was standing about 30 feet from the site of 

where the incident occurredo 

After overhearing the section foreman tell the mine superintendent that the shuttle car ran over the miner's trailing cable, 

Inspector Gutierrez proceeded to walk the 30 feet to the site of 

the damaged trailing cable which was in the number three entry by 

the last open crosscuto Inspector Gutierrez saw the miner 1 s 

trailing cable lying in the roadway where the shuttle car traveled back and fortho The cable was lying in the roadway three or 

four feet from the rib. Mr. Gutierrez knelt down and examined 

the trailing cable. The trailing cable was approximately two 

inches in diameter. The outer rubber covering had tire marks 

indented on it whichu he observed, were the same type of tire 

marks that would have been made by the shuttle car that was still 

35 
setting approximately 10 feet back from the miner. Mr. Gutierrez 

testified that, once the shuttle car ran over the cable and the 

power shut off the miner, the shuttle car backed off about ten 

feet from the miner. At the time, the shuttle car was the only 

piece of equipment in the entry other than the continuous miner. 

Inspector Gutierrez testified that he knew the cable had 

been damaged because the breakers in the power center had tripped 

or shut off, and he saw "tire marks and indentations in the 

slightly depressed rubber cable." He testified the miner's 

trailing cable was not adequately protected because it was in the 

roadway where the shuttle cars could run over it. He explained 

that "once you but a cable where it can be run over, there is no 

longer protection." lj 

Inspector Gutierrez stated that he observed the trailing 

cable being repaired and the damage he observed was not in an old 

pre-existing splice. He told the Superintendent Bird that he was 

going to issue a citation. 

David L. Head has been a federal mine inspector for 14 

years, specializing,tn electrical inspections. On March 23, 

1989, Inspector Head, as well as Inspector Gutierrez, was making 

a regular inspection in the King Coal Mine. At the time the 

trailing cable power to the continuous miner "kicked off," Inspector Head stated he was in the second entry a short distance 

away from where Inspector Gutierrez was standing. He could see 

Inspector Gutierrez. He was only 25 to 30 feet from where he 

could see into the face area of entry number three. He also 

overheard the conversation in which the face boss Willie Lucero 

came to the mine superintendent Bird and told him "that the 

shuttle car had damaged the cable" and that the power to the 

miner had tripped. 11 At the time Inspector Head overheard this 

conversationu he was 30 feet from the spot where the face boss 

Willie Lucero and the operator of the continuous miner Shane 

Hurst talked to the mine superintendent and told him that the 

shuttle car ran over the minerus trailing cable. 

1/ A shuttle car is a piece of rubber-tired mobile equipment 

with a truck-like bed that is loaded with coal by the continuous 

miner" The shuttle car travels back and forth hauling the cut 

coal from where it is loaded by the continuous miner to a dump 

site. The shuttle car weighs approximately 15 to 20 tons and has 

a load capacity of about seven tons. CTro 27). 

36 
Inspector Head testified that mobile equipment was moving 

with high frequency through the area where the incident occurred. 

He stated that, in his opinion, a trailing cable in the roadway 

in tha area was not adequately protected and that it was very 

probable that it could be run over by mobile equipment. 

Neither Inspector actually saw the shuttle car run over the 

miner's trailing cable. Neither saw any splice in the miner's 

trailing cable. The only witness called by Respondent was 

Mr. Tom Bird, the mine superintendent. His testimony conflicts 

with that given by Inspectors Gutierrez and Head. He testified 

that, when the power "kicked off" the continuous miner, he was at 

a distant point in entry number two, several hundred feet away 

from the continuous miner and that Inspector Gutierrez was with 

him. Mr. Bird stated that, when the power kicked off the continuous miner, the only two employees in that area near the face 

of the number three entry were the face boss Mr. Willie Lucero 

and the operator of the miner Mr. Shane Hurst. The face boss, 

along with the miner's operator, came to him and told him that 

they needed an electrician to repair the trailing cable. 

Mr. Bird testified that, when he asked why the "power kicked 

off, 11 the face boss,replied he "thought somebody had run over it 

with a shuttle car." Mr. Bird stated that they proceeded towards 

the miner. Mr. Bird, however, did not go directly to the miner. 

He testified, "I went back to the power center. I unplugged the 

cable, locked it, tagged it out •••• I don't recall if anyone was 

with me then or not •••• Then I proceeded back.to the miner." He 

stated that, when he got to the miner, there was no shuttle car 

behind the miner. 

Mr. Bird recalled that "somebody that was there" said smoke 

came out of a splice in the cable located about three feet behind 

the miner. When the splice in the cable was opened, he found the 

"black and red conductors (inside the cable) had rubbed together, 

causing a short-circuitv causing a considerable amount of damage 

inside the splice.n It was Mr. Bird 1 s theory that, as the miner 

was advancing, npulling the cable taut" it caused the cable to 

break down. 

Inspector Gutierrez early in the hearing explained that the 

mineris helper "normally" handles the continuous miner 1 s trailing 

cableu frequently kicking it or moving it by hand to the rib, out 

of the way of the mobile equipment traversing the area. 

Mr. Gutierrez stated that it was the cable helper's job to continually move the cable 11 out of way 11 and the cable hadn't been 

moved out of the was in this case. Mr. Bird testified, "Generally, we don 9 t use a cable helper," and that there was no helper or 

cable man at the time the power in the trailing cable of the 

miner "kicked off." 

37 
DISCUSSION 

30 C.F.R. § 75.606 provides as follows: 

Trailing cables shall be adequately protected 

to prevent damage by mobile equipment. 

The focus of this standard is to require operators to take 

appropriate steps to ensure the protection of trailing cables 

from damage by mobile equipment. The Secretary is correct in asserting that it does not have to prove that a cable was in fact 

damaged by a piece of mobile equipment in order to sustain a 

finding of a violation of section 30 C.F.R. § 75.606. See, Secretary of Labor CMSHA) v. United States Steel Mining Company-,~­

Inc., 6 FMSHRC 155.157 (January 1984). In that case, a violation 

of 30 C.F.R. § 75.606 was found even though the cable was not 

damaged, but had been lying out in the roadway three feet from 

the rib and was found therefore to not have been adequately 

protected. 

The Secretary is also correct in asserting that there is no 

requirement that the ~nspector be an eye witness to an event in 

order to issue a 104(a) citation for a violation arising out of 

that event. The language of 104Ca) requires the Inspector to 

issue a citation when "upon inspection or investigation" the 

Inspector "believes that an operator of a coal mine or other 

mine ••. has violated the Act •••• " (emphasis added). Emerald 

Mines Co. v. Federal Mine Safety and Health Review Commission, 

863 F.2d 51, 54 (D.C. Cir. 1988). In the case at bar, Inspector 

Gutierrez investigated the situation and reasonably concluded 

that there was a violation of 30 C.F.R. § 75.606. 

I credit the testimony of Inspectors Gutierrez and Heado 

Based upon their credible testimony summarized aboveu I find and 

conclude that trailing cable of the continuous miner was not 

adequately protected to prevent damage by mobile equipmento Thus 

there was a violation of the cited mandatory safety standard. 

Even though there was no eye witness who saw the shuttle car 

run over the cableQ the evidence presented established that it 

was more probable than not that the shuttle car ran over the 

trailing cable while it lay in the roadway and damaged ito Thusu 

a preponderance of the evidence presented established the 

violation of the cited safety standardo 

Even assuming the face boss and the operator of the continuous miner said they "thought" or uiassumed" the shuttle car ran 

over the cableu it appears (aside from the testimony of the two 

38 
federal coal mine inspectors, one of whom saw tire marks on the 

trailing cable), the very fact that Respondent's face boss and 

its operator of the continuous miner "thought" that the shuttle 

car ran over the cable is indicative of the fact that they were 

aware that the trailing cable was lying in the roadway where it 

at least could be damaged by a shuttle car. The face boss, the 

operator of the miner, and the shuttle car operator were the only 

employees of the Respondent in the general area when the cable 

was damaged. None of these employees were called to testify. 

Respondent instead relied on hearsay statements as to what its 

face boss said and thought. On the other hand, the testimony of 

the mine inspector as to what they heard the face boss or section 

foreman tell the mine Superintendent was admissible hearsay even 

in a court of law where stricter rules of evidence are followed. 

As previously stated, I credit the testimony of the two mine 

inspectors and on the basis of their testimony find there was a 

violation of the cited safety standard. 

The evidence and the stipulations clearly established that 

the violation was signif ican~ and substantial and that, taking 

into consideration the statutory criteria in section llO(i) of 

the Act, the Secretary's proposed $168 penalty is an appropriate 

penalty for this violation. 

ORDER 

1. Citation No. 3412632, alleging a violation of 30 C.F.R. 

§ 75.606, including its finding that the violation was significant and substantial, is AFFIRMED. 

2. A civil penalty of $168 is ASSESSED for this violation. 

3o The Respondent is directed to pay $168 to the Secretary 

of Labor within 30 days of the date of this decisionQ as a civil 

penalty for the violation found herein, 

A ust Fo Cetti 

A ministrative Law Judge 

39 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA . 22041 

JAN 9 1991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. LAKE 90-53 

Petitioner A.C. No. 33-01173-03825 

v. 

SOUTHERN OHIO COAL COMPANY, 

Respondent 

Meigs No. 2 Mine 

DECISION 

Appearances: Patrick M. Zohn, Esq., Office of the Solicitor, 

U.S. Department of Labor, Cleveland, Ohio for 

the Secretary of Labor (Secretary) ; 

David M. Cohen, Esq., Lancaster, Ohio for 

Southern Ohio Coal Company (SOCCO). 

Before: Judge Broderick 

STATEMENT OF THE CASE 

The Secretary seeks a civil penalty for an alleged violation 

of 30 C.FoRo § 7501403-lO(h)v charged in a section 104(a) 

citation issued January 5, 19900 The violation was designated as 

significant and substantial. It was based on a safeguard notice 

issued on March 31, 1989, pursuant to section 314(b) of the Mine 

Act. 

Pursuant to notice, the case was called for hearing in 

Columbus, Ohio on September 26, 1990. Patrick H. McMahon 

testified on behalf of the Secretary. John Moore and Jon 

Merrifield testified on behalf of SOCCO. At the conclusion of 

the hearing, the Secretary argued her position on the record, and 

waived her right to file a post-hearing brief. socco has filed a 

post hearing brief. The case was ably tried on both sides, and 

the issues are sharply defined. I have considered the entire 

record and the contentions of the parties in making this 

decision. 

40 
FINDINGS OF FACT 

I 

At all times pertinent to this proceeding, SOCCO was the 

owner and operator of an underground coal mine in Meigs County, 

Ohio, known as the Meigs No. 2 Mine. SOCCO is a large operator. 

There is no evidence that a penalty assessed in this case will 

have any effect on SOCCO's ability to continue in business, and I 

find that it will not. During the period from January 5, 1988 to 

January 4, 1990, the subject mine had 596 paid violations, of 

which 30 were violations of 30 C.F.R. § 75.1403. Considering the 

size of the subject mine, this history is not such that a penalty 

otherwise appropriate should be increased because of it. 

II 

During an inspection on March 31, 1989, Federal Mine 

Inspector Patrick H. McMahon discovered a rubber scoop being 

operated along the supply track in the subject mine with only 

6 inches of side clearance. -The scoop was taking on supplies 

from the supply cars; and was bumping the sides of the supply 

cars. Inspector McMahon issued a notice to provide safeguards 

requiring that a total of at least 36 inches side clearance (both 

sides combined) be provided for all rubber tired haulage 

equipment operated along the supply tracks in the subject mine. 

In issuing the safeguard notice, the inspector was primarily 

concerned that the scoop operator could be injured if the scoop 

struck the rib or a supply car. He also considered the fact that 

the track was a walkway, and miners using it as such could be 

injured. 

III 

On January Sr 1990 9 Inspector McMahon was conducting a 

regular inspection at the subject mine. He walked up the track 

entry in the 001 section and observed a scoop tractor parked 

between the coal rib and the supply cars. The scoop operator was 

loading supplies. The inspector measured the distance between 

the scoop operator 1 s compartment and the coal rib which he found 

to be 24 inches. He then measured the distance from the other 

side of the scoop to the supply car, which he found to be 4 

incheso 

The rib line was uneven, and the bottom was rutted from 

vehicles operating in the area. There was a downhill slope 

toward the face area. The scoop operator's view was partially 

obstructed by the supplies which were on the scoop, some of which 

were stacked on the battery compartment with no structure to hold 

them in. Scoops are equipped with "articulated steering," which 

the inspector believed rendered them less controllable by the 

scoop operator. Inspector McMahon issued a citation charging a 

violation of 30 C.F.R. § 75.1403-lO(h) referring to the prior 

safeguard notice. 

41 
REGULATION 

30 C.F.R. § 75.1403 provides as follows: 

Other safeguards adequate, in the judgment of 

an authorized representative of the 

Secretary, to minimize hazards with respect 

to transportation of men and materials shall 

be provided. 

30 C.F.R. § 75.1403-lO(h) provides as follows: 

75.1403.10 criteria-haulage; general 

* * * 

(h) A total of at least 36 inches of 

unobstructed side clearance (both sides 

combined) should be provided for all rubbertired haulage equipment where such equipment 

is used. 

1. Whether the safeguard notice issued March 31, 1989, is 

valid? 

2. If so, whether the evidence shows a violation of the 

safeguard as charged in the citation issued January 5, 1990? 

3. If it does, whether the violation was properly 

designated significant and substantial? 

£!," If doesff what is the appropriate penalty for the 

CONCLUSIONS OF L:M-4 

I 

socco was subject to the provisions of the Mine Act in the 

::;peration of the Meigs No. 2 Mine 0 and I have jurisdiction over 

the parties and subject matter of this proceeding. 

II 

socco challenges the safeguard notice on the ground that it 

is not mine-specific, that is, it is not directed to hazards 

peculiar to the subject mine. Safeguard notices are authorized 

by section 314(b) of the Mine Act which provides: "other 

safeguards adequate, in the judgment of an authorized 

representative of the Secretary, to minimize hazards with respect 

to transportation of men and materials shall be provided." 

42 
The Commission discussed safeguard notices and contrasted 

them with mandatory health and safety standards in Southern Ohio 

Coal Co., 10 FMSHRC 963 (1988). However, it declined to decide 

whether a safeguard notice must be mine-specific to be upheld. 

In the case of Southern Ohio Coal Company, 9 FMSHRC 273 

(1987), petition for discretionary review granted March 1987, 

Commission Judge Roy Maurer concluded that a safeguard "not 

issued under any of the specific criteria for safeguards 

contained in 30 C.F.R. §§ 75.1403-2 through 75.1403-11" is 

invalid unless "demonstrably related to same mine-specific hazard 

or unsafe condition sought to be corrected". The safeguard in 

Judge Maurer's socco case was issued under 30 C.F.R. §75.1403 and 

was not related to a mine-specific hazard. Therefore, it was 

held invalid. 

In Southern Ohio Coal .Company, 10 FMSHRC 1564 (1988), Judge 

Avram Weisberger concluded that a safeguard notice requiring that 

all track haulage in the mine be properly maintained and aligned, 

was not mine-specific and was therefore invalid. 

In the case of ,Beth Energy Mines, Inc., 11 FMSHRC 942 

(1989), Judge Gary Melick found invalid a safeguard notice issued 

pursuant to 30 c.F.R. § 1403-lO(e) which provides that positive 

active stopblocks or derails should be used to protect persons 

from danger of runaway haulage equipment. Judge Melick concluded 

that safeguards may not be used to impose general requirements on 

mines without regard to the circumstances present in the mine in 

question. 

In Southern Ohio Coal Company, 11 FMSHRC 1992 (1989), 

petition for discretionary review granted November 1989, Judge 

Maurer concluded that a safeguard notice issued pursuant to 30 

CoFoRo § 75ol403-9(a) which provides that shelter holes be 

provided on track haulage roads at intervals of not more than 105 

was not issued on a "mine-by-mine" basis because of any 

peculiar circumstance in the subject mine, and was therefore 

lnvalid. 

In Beth Energy Mines, Inc., 12 FMSHRC 761 (1990), petition 

discretionary review granted May 1990, Judge William Fauver 

upheld a safeguard notice though the hazard was of a general 

rather than a mine-specific nature, when the safeguard was based 

on one of the criteria in 30 C.F.R. § 75.1403-2 through 

§ 7501403-110 

Judge Fauver 1 s decision relied on the Court of Appeals 

decision in the case of United Mine Workers of America v. Dole, 

870 F.2d 662 (D.C. Cir. 1989), which held that MSHA's 

implementing regulations including promulgated general criteria 

(not limited to mine-specific conditions) for roof control plan 

approval constituted a mandatory standard. Following the 

reasoning in the UMWA decision, Judge Fauver concluded that the 

published criteria for safeguard notices (1403-2 through 1403-11) 

43 
since they were promulgated pursuant to section lOl(a) may be 

used as valid safeguard notices even though the hazards to which 

they apply are general and nonspecific. 

The socco cases before Judges Maurer and Weisberger, and the 

Beth Energy case before Judge Melick were following the rationale 

in the case of Zeigler Coal Co. v. Kleppe, 536 F.2d 398 (D.C. 

cir. 1976) which held that a ventilation plan could not be used 

to impose general ventilation requirements on a mine. According 

to the Court, the latter should be the subject of a mandatory 

standard promulgated under section 101 of the Act. In the UMWA 

decision, the court of Appeals, according to Judge Fauver, 11 clarified" the Zeigler decision when it held that the Secretary 

may require generally applicable plan approval criteria in mine 

plans. Since the criteria are promulgated pursuant to notice and 

comment requirements, incorporating them in a mine plan makes 

them mandatory standards. Similarly, incorporating published 

criteria in a safeguard notice, makes it in effect a mandatory 

safety standard. 

I agree with the reasoning in Judge Fauver's decision, and 

conclude that the not~ce challenged in this case is valid since 

it cited and tracked the criterion in 30 C.F.R. § 75.1403-lO(h). 

III 

socco argues that the safeguard is invalid because it does 

not minimize but increases hazards with respect to the 

transportation of men and materials. The evidence does not 

support this contention. In fact the safeguard addresses and 

attempts to minimize hazards to the scoop operators and miners 

using the track entry as a walkway to the face. I accept the 

inspector 1 s testimony on this issue. The fact that alternative 

means of transporting materials (e.g.u carrying them by hand) 

might pose other hazards not a defense to the violation of the 

safeguard noticeo I conclude that the failure to maintain a 

total of at least 36 inches of clearance for the scoop being 

operated along the supply track was a violation of the safeguard 

notice issued April 14p 1989u and of 30 C.F.R. § 75.1403-lO(h). 

IV 

A violation is properly cited as significant and substantial 

if ~nere a hazard contributed to by the violation and a 

reasonable likelihood that the hazard will result in an injury of 

a reasonably serious nature Cement Division/National Gypsum Co., 

3 FMSHRC 822 (1981); Mathies Coal Co., 6 FMSHRC l (1984). 

Inspector McMahon testified that the scoops operated in the 

haulage entry for only a "couple of minutes" per shift. A cage 

was present on the scoop operator's compartment and he was 

"probably fairly well protected, yes." (Tr. 52) Shelter holes 

were provided in the vicinity of the supply cars for miners 

walking toward the face. I conclude that the Secretary has 

failed to establish that the violation was reasonably likely to 

44 
result in injury. Therefore it was not properly denominated 

significant and substantial. 

v 

Although I have concluded that a serious injury is not 

likely to result from the violation, if an injury did occur, 

whether to the scoop operator, or to a miner walking the entry, 

it could be serious. I conclude that the violation was 

moderately serious. socco has been cited for this violation 

previously, and has received 44 citations or orders under part 

75.1400 during the prior 12 month period. I conclude that the 

violation resulted from SOCCO's moderate negligence. Considering 

the criteria in section llO(i) of the Act, I conclude that an 

appropriate penalty for the violation is $150. 

ORDER 

Based on the above findings of fact and conclusions of law, 

IT IS ORDERED: 

l, Safeguard Notice 3124669 is AFFIRMED. 

2. Citation 3323861 is MODIFIED to delete the significant 

and substantial finding and, as modified, is AFFIRMED. 

3. SOCCO shall pay a civil penalty in the amount of $150 

within 30 days of the date of this decision. 

Distribution~ 

j

',{ ) ,1 I i r,l ii,,:,;:_.:; -r/.-c // l:J<.itA ..,_, ~'//\-..__ 

James A. Broderick 

Administrative Law Judge 

Patrick Mo Zohn, Esqof UoSo Department of Labor, Office of the 

Sol 881 Federal Office Building, 1240 East Ninth Street, 

Cleveland, OH 44199 (Certified Mail) 

David Cohen; Esqo, American Electric Power Service Corporation, 

Supply Department, PoO. Box 700, Lancaster, OH 43130-0700 

(Certified Ma ) 

Yml 

45 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

JAN 111991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SANGER ROCK & SAND, 

Respondent 

Docket Noo WEST 88-275-M 

AeC. No. 04-01937-05505 

Docket No. WEST 89-71-M 

A.C. No. 04-01937-05506 

Sanger Pit and Mill 

DECISION APPROVING SETTLEMENT 

AFTER REMAND 

Before: Judge Morris_ 

On September 19, 1990, the Commission remanded the above 

case. 

Prior to considering the issues raised in the order of 

remand, the parties filed a proposed settlement agreement. 

Robert Pountney, the successor-in-interest and current 

representative of Respondent Sanger Rock and Sand, agreed to 

withdraw its notice of contest. 

In view of Respondent 1 s motion to withdrawf Petitioner 

agreed to dismiss the complaintso 

The citationsv the original assessments, and the proposed 

disposition are as follows~ 

Citation No" 

3076869 

3074994 

Assessment 

$20 

$20 

Disposition 

$20 

$20 

I have reviewed the proposed settlement and I find it is 

reasonable and in the public interest. It should be approved& 

Accordingly, I enter the following~ 

ORDER 

1. The settlement agreement is APPROVED. 

2. The above citations and proposed penalties are AFFIRMED. 

46 
3. Respondent is ORDERED to pay the sum of $40 to the 

Secretary of Labor within 15 days of the date of this decision. 

4. Upon payment of said amount by Respondent to Petitioner, 

the cases herein are DISMISSED. 

Law Judge 

Distribution: 

Susanne Lewald, Esq., Office of the Solicitor, U.S. Department of 

Labor, 71 Stevenson Street, Suite 1110, San Francisco, CA 

94105-2999 (Certified Mail) 

Mro Robert Pountney, Cal Met Central California, 11599 North 

Fryant Roadv Fresnot CA 93720 (Certified Mail) 

/ek 

47 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG. PIKE 

FALLS CHURCH, VIRGINIA 22041 

~JAH141991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. KENT 90-128 

A.C. No. 15-07253-03568 

v. 

No. 10 Mine 

IKE COAL COMPANY, INC., 

Respondent 

Appearances: 

Before: 

DECISION 

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

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

for the Petitioner~ 

Arnold D. Coleman, Secretary-Treasurer, Ike Coal 

Company, Inc., Elkhorn City, Kentucky, 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), 

seeking a civil penalty assessment in the amount of $1,200, for 

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

§ 75.507. The respondent filed an answer denying the violation, 

and a hearing was held in Pikeville, Kentucky. The parties 

waived the filing of posthearing briefs, but I have considered 

their arguments made on the hearing record in my adjudication of 

this matter. 

Issues 

The issues presented in this proceeding are (l} whether the 

respondent has violated the standard as alleged in the proposal 

for assessment of civil penalty, (2) whether the violation was 

"significant and substantial," and (3) the appropriate civil 

penalty that should be assessed based on the civil penalty 

48 
criteria found in section llO(i). Additional issues raised in 

this proceeding are identified and disposed of in the course of 

my 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, 20 C.F.R. § 2700.1 et seq. 

Discussion 

Section 104(a) "S&S" Citation No. 3368426, issued by MSHA 

Inspector Thomas M. Charles on September 21, 1989, cites a 

violation of mandatory safety standard 30 C.F.R. § 75.507, and 

the cited condition or practice is described as follows: 

Evidence indicates,that a nonpermissible power 

connection poi:qt-in the form of a bulldozer is being 

used in the main return air course of this mine. There 

are numerous sets of bulldozer tracks extending underground through the No. 1 entry return portal. There is 

a diesel power case 450 dozer parked next to the No. 1 

return portal. The electrical system of this dozer is 

not permissible. 

A 107-A Order #3368425 has been issued in conjunction with this citation. No termination due date is 

set. 

The aforementioned Imminent Danger Order No. 3368425 1 issued 

simultaneously by Inspector Charles on September 21, 1989, states 

as follows~ 

Evidence indicates that a work practice which 

constitutes an imminent danger is being performed at 

this mine. There are bulldozer tracks (numerous) in 

the number one return portal. These tracks extend 

underground for an unknown distance. (Mine is idle no 

fan running} . A diesel powered Case 450 bulldozer is 

parked next to the No. 1 return portal. Evidence 

indicates that the dozer has been used underground to 

pull equipment out of this mine. This dozer has an 

open nonpermissible electrical system. Given the 

equipment height and finished mining height of this 

area of the mine there can not be much clearance for 

the dozer operator. Also the internal combustion 

49 
engine of the bulldozer puts off harmful gasses which 

in the confined underground area of a mine could be 

fatal. 

A citation number 3368426 is being issued in 

conjunction with this 107-A order. A special assessment will be asked for on this order, also a special 

investigation will be asked for. 

Inspector Charles subsequently filed a report, which is 

included with the pleadings filed by the petitioner, requesting a 

special assessment for the cited violation, and the report states 

as follows: 

Special assessments are requested. There is no 

way that the operator could not of been aware of this. 

This mine is nonproducing, the owners are in the process of pulling the equipment out, possibly doing this 

work their self. By using the bulldozer underground in 

a close clearance confined area in the main return air 

course a reckles$ disregard for health and safety has 

been demonstrated. 

Petitioner•s Testimony and Evidence 

MSHA Inspector Thomas M. Charles testified that he has 

served as an inspector since 1978, and that he has 22 years of 

mining experience, including work as a mine foreman. He confirmed that he conducted a spot inspection of the mine on 

September 21, 1989, and that the mine was in a "non-producing, 

men working" status at that time. He stated that the mine gate 

was locked and that he walked onto the mine property and went 

past the mine fan to the mine opening at the number one return 

portalo He observed evidence of some "work activity11 at the mine 

and observed a Case 450 bulldozer parked 11 around the hill from 

the nu entry and observed dozer tracks in and around the 

area. He observed that the dozer had 11 greyish and blue" mud on 

it up and over the bulldozer "cat pads" for some 34 inches. 

Since he did not have his usual equipment with him, he only went 

25 feet underground and used a stick or a reed to measure the 

and length of the dozer cat pad tracks on the ground, and 

when he compared the measurements with those of the cat pads on 

·the dozer, he found a 11 direct match. 11 

Mr. Charles stated that he also observed a rubber tired 

battery tractor, a flatbed truck, and some scoops at the site, 

and he identified a sketch of the site which he prepared 

(exhibit P-4). There was no one working at the mine, but he saw 

a pickup truck parked at the mine office and a private security 

guard hired by the mineral owner was sitting in the truck. He 

did not observe any joy loader on the mine surface. He stated 

that the mine entry was approximately 6 feet high at the entry 

50 
portal, and he walked into the entry for a distance of 25 feet 

and observed the same dozer tracks which he had observed in and 

around the portal entry. He also observed that the dozer exhaust 

stack and roll-over protection had been removed and were lying on 

the flat bed truck. He assumed that this equipment had been 

removed from the dozer in order to allow it to clear the portal 

entry into the underground mine, and based on his observations 

and measurements of the tracks, he concluded that someone had 

taken the dozer inside the mine opening and used it underground. 

He then left the mine to call his supervisor, and returned to the 

mine to do his "paperwork." :'\e placed a red closure tag at the 

mine and left a copy of the citation and order at the mine 

office. 

Mr. Charles stated that the "blueish and greyish" mud and 

tracks which he observed outside the mine entry is the same kind 

of mud found underground and that it was not the usual kind of 

mud found on the surface. He confirmed that there was a mud hole 

with tracks around it outside of the portal entry, but that this 

surface mud was not the same kind which was underground. If the 

dozer exhaust stack and rollover protection had not been removed 

from the dozer, the ,.machine could not have been taken underground 

because of the lack of clearance at the entry, and his assumption 

was that this equipment had been removed so that the dozer could 

go underground to help bring out some of the equipment which the 

respondent was removing from the mine. 

Mr. Charles stated that after the citation and order were 11 conferenced11 by the district manager in Pikeville, he was 

instructed to return to the mine to conduct a special investigation and he next returned to the mine with two other inspectors 

on September 26, 1989, to inspect the mine again, and that Ike 

and Rodney Coleman were there at that time. Mr. Charles stated 

that the inspection party went underground for a distance of 

approximately 800 feetF and he observed that a scoop had been 

used to R~back-:bladeiu or wipe out some of the dozer tracks 1 and 

that a scoop was stuck in the mud. He stated that the mine was 

wet and had "standing water and mud," and that he observed the 

same type of dozer tracks underground as he had previously 

observed on September 21, when he issued the citation and order. 

Mr" Charles confirmed that on September 26, the dozer was 

still parked outside of the mine, and he measured the cat pads 

with a tape measure and found that they were 16 inches wide and 

6 inches between the track blades. He compared these measurements with the tracks which he observed underground, and he again 

found the same match as he had found during his prior inspection 

of September 21. He also measured the finished mining height at 

the portal entry at 6 feet, and he indicated that the mining 

heights were higher inside the underground mine and were suff icient to allow the dozer to operate underground. 

51 
Mr. Charles stated that the respondent informed him that a 

Joy 1410 front-end loader was used underground to help retrieve 

some of the equipment and claimed that the tracks were made by 

the loader. Mr. Charles did not believe that the tracks were 

made by a loader because from his experience, any track prints on 

the ground made by the loader would be different from those made 

by the dozer. He explained that the Joy loader in question was a 

common piece of equipment, and that he had previously inspected 

the loader during two complete inspections of the mine which he 

had conducted prior to September 21, and that he was familiar 

with the loader tracks. He did not observe any loader at the 

surface or underground in the area where he traveled, and he 

confirmed that he did not travel to the mine face. 

Mr. Charles identified exhibit P-5, as a picture of a Cat 

dozer which is representative of the type of "cleat" or gripping 

pattern of the dozer which he believes was used underground. He 

also identified a standard cat pad from a Joy 1410 loader which 

was produced in court for demonstration purposes by the petitioner's counsel. Mr. Charles explained that the loader pad 

gripping pattern and configuration was different from the dozer 

tracks which he obse~ved underground, that the loader pad is 

12 inches wide, and that any tracks left by the loader in the mud 

would be different from those made by the dozer. 

Mr. Charles stated that he returned to the mine on 

September 27, to meet with the respondent in order to terminate 

the citation and order, and that he "looked over" the surface 

area of the mine, while one of his fellow inspectors, Billy 

Ramey, went underground to continue his inspection and investigation. Mr. Charles stated that the dozer was still parked on the 

surface, and the exhaust stack had been replaced. However, the 

rollover protection was still removed from the dozer at this 

timeo Mro Charles stated that there was no question in his mind 

that the bulldozer had been used underground at various times in 

the main return air courseo 

Mr. Charles stated that the bulldozer in question was a 

nonpermissible piece of equipment, and that its electrical 

components which constitute power connection pointsr are nonpermissibleo He confirmed that the cited mandatory section 75.507, 

prohibits the use of such a piece of equipment underground in a 

return air courseo He further confirmed that the use of such 

equipment underground in return air presents a dangerous and 

hazardous situation because the nonpermissible dozer, including 

its electrical system and components, are a potential ignition 

sources. In the event of any accumulation of methane underground, and given the fact that the dozer would be operating in a 

52 
confined area, an ignition was possible. If this had occurred, 

anyone working underground would be exposed to a serious ignition 

hazard and would likely suffer burns or fatal injuries (Tr. 

8-63) . 

Mr. Charles stated that the mud which he observed on the 

bulldozer was "way up on the framework." He confirmed that he 

had not previously observed the dozer at the mine site, and in 

his opinion, it was brought to the site to pull the equipment 

out. Referring to his sketch, exhibit P-4, he confirmed that the 

measurement shown as 5.3, represents the measured height of the 

dozer which was five and three-tenths of a foot high, and that 

the measured height of the entry was 6 feet. He further confirmed the entry heights increased inby to heights of 8 and 

9 feet and that it "rolled out in places," and that the next 

lowest height he found was in the low top area approximately 

800 feet underground, and that this area was 6 feet high. He 

also confirmed that when he visited the mine on September 21 and 

26, 1989, the power was on, but he observed no one working there 

(Tr. 64-68). He stated that the respondent would not have been 

given permission to use the dgzer underground because it was 

nonpermissible and was not equipped with a scrubber to keep the 

diesel ignitions clean (Tr. 69). 

MSHA Inspector Billy Ramey testified that he has served as 

an inspector since September, 1982, and he confirmed that he went 

to the mine on September 27, 1989, with Inspector Charles to 

conduct a spot inspection. Mr. Ramey stated that he was aware of 

the citation and order issued by Mr. Charles on September 21, 

1989, and that he (Ramey) went underground for a distance of 

approximately 180 feet, or "three breaks," to check the 

conditions (Tr. 70-72). 

Mro Ramey stated that he observed equipment tracks underground along the left rib and that the nbottom rockn was clean. 

He also observed a pump cable lying in the roadway and determined 

that a piece of equipment had traveled over it and cut a piece of 

the cable. Although most of the underground mud on the bottom 

had been cleaned up or 11 drug over 11 by scoops, and he observed no 

tracks in the remaining mud, he did observe equipment track 

indentations on the mine rock bottom and over the pump cable. He 

measured the trac)(S which were in plain view, and found that they 

were 16 inches wide and 6 inches long. The bulldozer which had 

been cited by Inspector Charles was still parked on the surface 1 

and after measuring the cat pads, Mr. Ramey found that his 

measurements conformed with the tracks measurements which he made 

underground, and he concluded that the tracks were made by the 

same bulldozer (Tr. 72-73). 

Mr. Ramey stated that he observed some mud on the frame of 

the bulldozer but he could not find any muddy areas on the 

53 
surf ace where the bulldozer could have operated in mud deep 

enough to cause it to come up and over the frame of the machine. 

Mr. Ramey confirmed that he was familiar with a 1410 Joy 

loader but that he did not observe one at the mine site when he 

was there. After examining a Joy loader cat pad used for demonstration purposes by the petitioner's counsel, Mr. Ramey was of 

the opinion that the tracks which he observed underground were 

not made by such a loader. He confirmed that the bulldozer 

exhaust stack was on the machine which was parked on the surface, 

and that Mr. Charles lifted it off and then replaced it. 

Mr. Ramey did not believe that the rollover protection was on the 

machine (Tr. 74-76). 

On cross-examination, Mr. Ramey stated that he has never 

observed a piece of steel welded across a 1410 Joy loader cat 

pad. He confirmed that no one was at the mine when he was there 

on September 27, except for a security guard. He also confirmed 

that he helped Inspector Charles measure the height of the 

bulldozer, but he could not recall the measurements. He did 

recall that Mr. Charles measμred the height of the portal entry, 

but he could not re9all the measured height. Mr. Ramey confirmed 

that the mine was still closed and "red-tagged" when he was there 

(Tr. 77-79) . 

Mr. Ramey stated that he observed 10 or 12 "good pad marks" 

underground which he believed were made by the bulldozer. He 

confirmed that he observed a gob pile outside the portal entry 

with mud which appeared to be from inside the mine, but he did 

not see any evidence of any bulldozer tracks in the job pile area 

(Tr. 79-81) • 

Mr. Ramey stated that he has never observed a loader being 

used to pull any equipment out of a mine and he did not ieve 

that a loader would be used for this purpose. He confirmed that 

he detected no methane with his methane spotter while he was 

underground and he did not observe any loader at the mine site 

when he was there on September 27. He did observe the bulldozer, 

a battery tractor motor, 30 to 40 feet of cable inside the mine, 

and more cable on the outside, but he did not see any scoops (Tr. 

70-86). 

Inspector Charles was recalled, and he confirmed that while 

he believed that someone had gone underground between 

September 21 and 26, and wiped out some of the dozer tracks, he 

did not issue any citation or further order for a violation of 

his closure order because he did not observe this happen and did 

not know who may have gone underground, and since this would have 

been a "willful" offense, he did not believe that he had enough 

evidence to establish such a violation (Tr. 89). 

54 
Mr. Charles confirmed that he discussed the use of the dozer 

underground with the respondent, but that the respondent denied 

using it underground and claimed that a loader was used and that 

the tracks were caused by the loader. Mr. Charles confirmed that 

he had previously observed a loader at the mine prior to his 

inspection of September 21, but he did not see it on the surface 

after he issued his closure order, nor did he know where it was 

at (Tr. 90). He did not find the absence of the loader unusual 

because he and the respondent "had a pretty rough relationship 

going right at that time" and that the conversations about the 

dozer being used underground "were confined to a few questions 

and gruff replies and yes and no, you know, try to take care of 

business and get out" (Tr. 91). Mr. Charles confirmed that 

during the 7-month period when he conducted inspections at the 

mine he had never observed any dozer at the mine and he believed 

it was rented or leased (Tr. 93). Given the conditions he 

observed on September 21, he believed that a loader would have 

had difficulty tramming on the soft mine bottom because it does 

not have much bottom clearance and he did not believe it would 

have been capable of pulling any other equipment out of the mine 

in the mud (Tr. 94). 

Respondent's Testimony and Evidence 

Rodney Coleman testified that he is employed by the respondent as a maintenance person, and after viewing the "cat pad" 

produced in court by the petitioner, he stated that "it looks 

like a loader track, but not like we use," and he explained the 

differences (Tr. 95-96). Mr. Coleman stated that the 450 Case 

dozer in question was not used underground and that it was used 

in front of the surface drift mouth in the area of a "big mud 

hole." He denied that any 5/8 inch steel cable hooked to the 

winch of the dozer was used in the mine to pull out the equipment,, and he stated that the respondent had two 1410 loaders ('I'r" 

96) o He stated that when it was necessary to clean the drift 

mouth; the materials removed from the mine bottom were pushed to 

the mud hole. He could not recall the height of the portal entry 

but stated that he could probably touch his head to the beams 

across the portal (Tr. 97). 

Mr. Coleman stated that no men were employed at the mine 

from September 8 to 21, 1989, and he confirmed that when Inspector Charles closed the mine on September 21, no one was there and 

the npaperwork 11 was left at the off ice and he found it 2 days 

later (Tr. 97). Mr. Coleman confirmed that 11 several times 11 he 

has hooked a chain to a 1410 loader and pulled a piece of equipment around with the loader, and in his opinion, this can be 

done. He indicated that the loader has a ground clearance of 

7 inches "between the tracks, 11 and that this was approximately 

the same clearance as a scoop (Tr. 98). 

55 
In response to further questions, Mr. Coleman stated that 

pr~or to September 21, the equipment which was underground 

consisted of two small scoops, a flat bottom feeder, a 11-RU 

cutter and a 16 cutter. He believed that they were trying to 

remove the flat bottom feeder by pushing it on one end with a 

scoop and pulling on one end with a loader, and he confirmed that 

it was removed from underground (Tr. 99). He again denied that 

the dozer was used underground to remove any of the equipment, 

and he confirmed that he did not go underground with any of the 

inspectors in September 26 (Tr. 101). 

When asked about the respondent's relationship with Inspector Charles, Mr. Coleman stated that "he kept the men tore up. 

Kept all the men in an upset mood. With his arrogant way of 

going about his job. Instead of doing the job, he would always 

have to criticize them and made them feel bad" during his prior 

mine inspections (Tr. 101). Mr. Coleman confirmed that he did 

not get along with Mr. Charles, and that he was the only inspector that he ever had a problem with (Tr. 102). 

Findings and Conclusions 

Fact of Violation 

The respondent is charged with a violation of mandatory 

safety standard 30 C.F.R. § 75.507, which provides as follows: 1

iExcept where permissible power connection units are used, all 

power-connection points outby the last open crosscut shall be in 

intake a 11 

In its answer filed on July 23, 1990, the respondent denied 

that the cited bulldozer was used underground. The respondent 

asserted that it was closing the mine because the company was 

insolvent and that it used a Joy loader to bring the underground 

equipment to the mine surface. The respondent further asserted 

·that Inspector Charles never observed any nonpermissible equipment underground, and that his opinion that the nonpermissible 

bulldozer was used underground was not fair. Rodney Coleman 

testif that "we all" drafted the answer and that Branson 

Coleman signed it in capacity as president of the company 

(Tr,, 103) e 

Inspector Charles 1 credible and unrebutted testimony establishes that the cited diesel powered bulldozer was a nonpermissible p of equipment, and that electrical components 

constituted nonpermissible power connection points. His credible 

and unrebutted testimony further establishes that the use of this 

equipment in an underground return a course is prohibited by 

section 75.507. 

56 
Neither Inspector Charles or Inspector Ramey actually ever 

observed the cited bulldozer operating underground. Inspector 

Charles' belief that the dozer was used underground to help 

remove some mine equipment was based on his personal observations 

of certain equipment tracks which he observed in the soft and 

muddy roadway underground. He went underground for a distance of 

25 feet on September 21, 1989, and 800 feet on September 26, 

1989. On each occasion, he observed the tracks, and confirmed 

that they extended some 300 feet inby the portal entry on 

September 26. Inspector Ramey, who went to the mine with Inspector Charles on September 27, 1989, confirmed that he went underground that day for a distance of approximately 180 feet, and 

also observed the tracks in the soft mine roadway. 

Inspector Charles' conclusion that the tracks which he 

observed were made by the dozer was based on certain measurements 

which he made of the tracks in the roadway and the dozer which he 

found parked outside of the portal entry. He made these measurements on two separate occasions on September 21, and 26, and in 

each instance he found that his measurements of the tracks, when 

compared to his measurements of the dozer cat-pads, were an 

"exact match." Inspector Ramey.also measured the tracks which he 

observed in the roadway while he was underground on September 27, 

1989, and he testified that they conformed with the measurements 

which he made of the dozer cat pads that same day. He testified 

that he observed approximately 10 to 15 "good marks" in the 

roadway, and based on these measurements and observations, he too 

concluded that the dozer was used underground. 

In addition to his measurements and comparisons of the 

tracks with the configuration and measurements of the dozer 

cat-pads, Mr. Charles measured the height of the dozer and the 

portal entry and concluded that the mining heights at the entry, 

as well as inby, were sufficient to allow the dozer to operate 

undergroundo This conclusion was further supported by his 

observation that the dozer exhaust stack and rollover protection 

had been removed from the dozer in order to allow the dozer to be 

taken through the portal entry and be operated underground with 

sufficient roof clearance. Inspector Ramey believed that the 

rollover protection was not on the dozer when he observed it, and 

although the exhaust stack had been replaced when he observed it, 

he stated that Inspector Charles easily removed it with his hand 

and then replaced it. 

The respondent denied that the cited dozer was taken and 

used underground to help remove its underground equipment, and it 

asserted that the tracks observed by the inspectors were made a 

Joy 1410 loader. Inspector Charles and Ramey testified that they 

observed no loader at the mine during their September inspections, and they both confirmed that they were familiar with the 

type of loader in question, had previously observed it, and they 

described it as a common piece of equipment used in mining. They 

57 
were also familiar with the loader cat-pads and testified 

unequivocally that the tracks which they observed and measured 

were not made a loader. They also were in agreement that given 

the poor roadway conditions and the operational parameters of a 

loader, it was not likely that a loader was used to help remove 

the equipment from the underground mine. 

During closing arguments on the record, Mr. Arnold Coleman 

stated that during the period in question when the dozer was 

cited, approximately $10,000 worth of tools and supplies were 

stolen from the mine. Mr. Coleman denied that the cited dozer 

was used by the respondent underground and he indicated that 

"anything was possible," and suggested that someone else could 

have gone to the mine and taken the dozer underground (Tr. 112). 

When reminded of the inspector 1 s testimony that he had not 

previously observed any dozer at the mine prior to his 

September 21, inspection, and believed that it was a leased piece 

of equipment, Mr. Coleman responded "I say it's roughly that time 

when they went in and stole all that stuff" (Tr. 112). 

I take note of the fact,that when Inspector Charles went to 

the mine on Septemb~r-21, 1989, he found a security guard there 

and the mine entrance had been secured. Mr. Coleman indicated 

that supplies and tools had been stolen from the mine, but he did 

not indicate that any underground equipment had been stolen. 

Under these circumstances, I find it highly unlikely that any 

thieves would have taken a dozer to a secured mine and used it 

underground in an attempt to steal equipment. 

The respondent suggested that the dozer remained outside of 

the portal entry while a length of cable was attached to the 

dozer winch and was used to remove the equipment which was 

underground. Inspector Ramey confirmed that he observed 30 to 

40 feet of rusty cable on the dozer winch outside of the mine 

Tro 84)" Inspector Charles confirmed that on September 26, the 

respondent mentioned something about winching the equipment out 

of the mine with a cable, but that when he observed the cable on 

September 27, he estimated that it was 60 to 80 feet long. Since 

the roadway where the equipment was located was approximately 

400 feet underground, and the respondent was experiencing some 

fficulty in moving the equipment through the roadway, Inspector 

Charles believed 91 there was no way that the rope would be long 

enough to reach' 0 the equipment (Tr. 31). 

Rodney Coleman testified that the equipment which the 

respondent was attempting to remove from the mine was located in 

"a real rough areaH 500 feet inside the mine in an uphill area 

which was "real muddy 16 (Tr. 99). Although he alluded to a 

5/8 inch steel cable hooked to the dozer winch, Mr. Coleman 

denied that the dozer was used underground to do this (Tr. 96). 

However, I find no testimony from Mr. Coleman that the equipment 

was removed by using the cable. Indeed, Mr. Coleman testified 

58 
that he was attempting to remove a flat bottom feeder by pushing 

one end with a scoop and pulling on one end with a loader (Tr. 

99) • 

Mr. Coleman's testimony concerning the roadway conditions 

where the equipment which was being removed was located corroborates Inspector Charles• testimony that the worst roadway conditions were 400 to 600 feet inside the mine where the roadway 

could not be maintained and where "you couldn't hardly get a 

piece of equipment in and out of the mine" (Tr. 39). In view of 

these conditions, Mr. Charles believed that the dozer was probably being used to move the equipment through this area (Tr. 40). 

Rodney Coleman further testified that he had used a Joy 1410 

loader on prior occasions to pull a piece of equipment around, 

and in his opinion, the loader could be used for such a purpose. 

Inspector Charles confirmed that during his mining experience he 

has observed mine operators use a Joy 1410 loader to pull shuttle 

cars around under good tramming conditions (Tr. 46). However, 

the fact that such a loader may have been used on prior occasions 

to pull equipment around, and is capable of doing such a job, 

does not per se estabJish that it was used underground for that 

purpose, or that the tracks observed by the inspector were loader 

tracks rather than dozer tracks. Given the roadway conditions 

testified to credibly by Inspector Charles, conditions which were 

not rebutted by the respondent, I find the inspector's belief 

that it was not likely that a loader would be used in the muddy 

soft bottom roadway in an attempt to remove the equipment to be 

credible. 

Although the respondent maintained that the loader was used 

underground, there is no evidence that at any time during the 

inspections of the mine on September 26, or 27, 1989, did the 

respondent offer to show the loader to the inspectors, and 

Inspector Charles 9 credible testimony that he saw no loader and 

could not determine its whereabouts when he was at the mine 

during his inspections remains unrebutted. The absence of the 

loader, and the respondent's failure to bring it to the attention 

of the inspectors, or to account for it, particularly when it was 

claiming that it was used, raises a strong inference that the 

loader was not at the mine during the inspections. 

After careful review of all of the testimony and evidence in 

this case, and having viewed the inspectors in the course of the 

hearing, I find them to be credible witnesses. Notwithstanding 

the fact that the inspectors never observed the dozer operating 

underground, I conclude and find that the evidence they developed 

during their inspections to support their conclusions that the 

dozer was used underground to help remove some of the equipment, 

albeit circumstantial, supports their conclusions in this regard. 

I further conclude and find that the respondent has presented no 

credible or probative evidence to support its assertion that the 

59 
equipment tracks were made by a loader, rather than the cited 

dozer, and that it has not rebutted the conclusions made by the 

inspectors to the contrary. 

Although there is no direct evidence as to who may have used 

the dozer underground, the fact remains that the respondent was 

the operator of the mine and that it was under its control. 

Further, the respondent admits that it had decided to cease 

mining operations and was at the mine conducting work to recover 

its equipment which was underground. Under the circumstances, I 

believe one can reasonably conclude that the dozer was taken 

underground by the respondent and used to recover some of the 

equipment. As the responsible mine operator, the respondent is 

accountable and liable for any violations which may occur at the 

mine. 

On the basis of the foregoing findings and conclusions, I 

conclude and find that the petitioner has established a violation 

of the standard by a preponderance of the credible and probative 

evidence adduced in this case, and the contested citation issued 

by the inspector IS AFFIRMED~ 

·- Significant and Substantial Violations 

A "significant and substantial" violation is described in 

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

as could significantly and substantially contribute to the cause 

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

30 C.F.R. § 814(d) (1). A violation is properly designated 

significant and substantial "if, based upon the particular facts 

surrounding the violation there exists a reasonable likelihood 

that the hazard contributed to will result in an injury or 

illness of a reasonably serious nature." Cement Division, 

National Gypsum Coo, 3 FMSHRC 822, 825 (April 1981). 

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

Commission explained its interpretation of the term "significant 

and substantial 01 as follows: 

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

under National Gypsum the Secretary of Labor must 

prove~ (1) the underlying violation of a mandatory 

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

a measure of danger to safety-contributed to by the 

violation< (3) a reasonable likelihood that the hazard 

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

reasonable likelihood that the injury in question will 

be of a reasonably serious nature. 

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

1129, (August 1985) , the Commission stated further as follows:, 

60 
We have explained further that the third element 

of the Mathies formula "requires that the Secretary 

establish a reasonable likelihood that the hazard 

contributed to will result in an event in which there 

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

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

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

is the contribution of a violation to the cause and 

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

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

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

Although the evidence establishes that the mine was not 

actively producing coal when the inspectors conducted their 

inspections, the power was on and inspector Charles confirmed 

that methane liberations were possible at any time in an underground mine (Tr. 39, 67}. Although Inspector Ramey confirmed 

that he did not detect any methane with his methane spotter 

during prior mine inspections, he believed that methane was 

present in certain bottle air samples which he had taken at the 

mine (Tr. 82). Furth~r, in its answer filed in this proceeding, 

the respondent conceded that the operation of a nonpermissible 

bulldozer in its underground mine would be hazardous. 

Inspector Charles' credible and unrebutted testimony establishes that the nonpermissible dozer and its electrical components were potential ignition sources, and that the operation of 

the dozer underground where there was a possible build up of 

dangerous pockets of gas presented an ignition hazard which 

exposed anyone underground to burns or fatal injury. He indicated that the mine was idle for certain periods of time, and 

anyone going underground to attempt to remove the equipment would 

be exposed to pockets of gas which could have been present (Tr. 31~32) o The inspector also confirmed that the nonpermissible 

diesel powered dozer was not equipped with a scrubber to keep the 

diesel ignitions clean (Tro 69)" 

The respondent presented no evidence to rebut the inspector's credible testimony with respect to the hazards associated 

with the operation of a nonpermissible dozer in the underground 

mine" Under the circumstances, I conclude and find that the 

evidence presented by the petitioner supports the inspector's 

significant and substantial (S&S) finding, and IT IS AFFIRMED. 

History of Prior Violations 

Exhibit P-1 is an MSHA computer print-out reflecting the 

respondent's history of prior violations for the period 

September 21, 1987, through September 20, 1989. The information 

presented establishes that the respondent was served with 186 

assessed violations, 145 of which were designated as 11 significant 

61 
and substantial" (S&S) violations. Six violations received 

"special assessments" totalling $2,750, and 30 violations were 

designated as "single penalty assessments." Twenty-five citations attributable to the No. 10 Mine reflect that they were 

issued in conjunction with section 104(b) withdrawal orders for 

noncompliance or failure to take timely action to abate the cited 

conditions. 

The computer print-out further reflects proposed civil 

penalty assessments totalling $18,591, for all of the aforementioned violations, and that the respondent has paid only 

$1,025.46, of this amount. MSHA has apparently served the 

respondent with "delinquency letters" for the assessments which 

remain unpaid. Petitioner's counsel had no additional information with respect to the status of these unpaid assessments or 

whether or not they have been ref erred to the Department of 

Justice for collection action. 

I conclude and find that for an operation of its size, the 

respondent has an extremely poor compliance record, and I have 

taken this into consideration in assessing the civil penalty for 

the violation which has been·· affirmed. 

Size of Business and Effect of civil Penalty Assessment on the 

Respondent's Ability to Continue in Business 

The information contained in MSHA's pleadings, Proposed 

Assessment Form 1000-179, reflects that the respondent's overall 

coal production in 1989 was 85,110 tons, and that the No. 10 Mine 

had an annual coal production of 24,290. Mr. Arnold (Ike) 

Coleman agreed that the No. 10 Mine had an annual coal production 

of approximately 24,000 tons when it was producing in 1989, and 

that it employed 10 miners. In the absence of any evidence to 

the contrary, I conclude and find that the respondent is a small 

mine operator and I have taken this into consideration in assessing the civil penalty for the violation which has been affirmed. 

Mr. Arnold (Ike) Coleman, stated that he is the 

secretary-treasurer of Ike coal Company, and that his father, 

Branson Coleman, served as the company president. Although 

Branson Coleman was present in the court room, he was not called 

to testify in this proceeding. Arnold Coleman confirmed that his 

family is no longer mining coal and that the company is out of 

business. He stated that he was unable "to work the mine" 

because of the "attitude" of the MSHA inspectors. He maintained 

that most of the citations reflected in MSHA's computer print-out 

w;1ere issued at the No. 10 Mine by Inspector Charles and contributed to his decision to close the mine (Tr. 104). 

Mr. Coleman confirmed that the respondent also operated the 

c-22 and C-23 mines, and he asserted that the prior violations 

issued at those mines resulted from conditions which had existed 

62 
when they were operated by the previous owner. However, he 

conceded that the violations were issued to his company, that his 

company owned the equipment and was responsible for maintaining 

the permissibility of that equipment (Tr. 105-106). 

The respondent's history of prior violations, as corroborated by copies of the citations and orders produced by the 

petitioner, reflect that violations were issued at several mining 

locations operated by the respondent under MSHA mine identif ication numbers associated with mines operated by the respondent and 

which are identified as the No. 3 1 No. 7, B.C. Energy c-22, and 

B.C. Energy C-23. Citation No. 3360514, issued on January 5, 

1989, at the No. 3 Mine (Exhibit P-52), reflects that the mine 

"has been abandoned for more than 90 days." No information was 

forthcoming with respect to the current status of the other 

mines, but it would appear that as of the dates the violations 

were issuedr the mines were actively producing coal. 

Twenty (20) of the prior citations and orders issued at the 

No. 10 Mine were issued by three different inspectors, and 15 

were issued by Inspector Charles,. four of which were non-S&S 

violations. The citations were issued to the respondent under 

its mine identification number, and with the exception of one 

citation served on an individual identified as Bill Wetsel, the 

remaining citations and orders were served on Arnold "Ike" 

Coleman and Rodney Coleman, and another individual (Ralph 

Coleman) 1 who I assume is a member of the coleman family that 

operated the mine. Under the circumstances, and contrary to 

Arnold Coleman's assertions, I cannot conclude that these violations involved preexisting conditions resulting from the operations of the mine by an operator other than the respondent. The 

violations include electrical and permissibility violations, roof 

control and ventilation violations, conveyor belts and fire 

warning devices sump pumpsf underground cables, a roof-bolting 

machine? and a loading machineo Under the circumstances, and in 

~he absence of any probative evidence to the contrary, I conclude 

and find that all of this equipment belonged to the respondent 

and was used by the respondent while it was operating the mine, 

and that the conditions cited were within its control and 

resulted from its operation of the mine" 

I find no credible evidence in this case to support any 

conclusion that any of the inspectors who issued the aforementioned citations at the Noa 10 Mine, including Inspector Charles, 

harassed the respondent 1 and the cited conditions and practices, 

on their face, reflect conditions which prompted the inspectors 

to issue the citations and orders in question. Accordingly, the 

respondent's suggestion that he was forced to close the mine 

because of the nattitude 11 of the inspectors is rejected. To the 

contrary 1 I can only conclude that any effect the citations and 

orders had on the respondent's decision to close the mine and 

63 
cease mining coa~ came about as a result of its failure to stay 

in compliance with the required mandatory safety standards. 

No probative information or documentation was forthcoming 

from the respondent with respect to its current financial condition, and the respondent has produced no tax, financial, or networth statements conclusively establishing that it is insolvent 

or has filed for bankruptcy. Although the petitioner's counsel 

alluded to a $200,000 debt owed to the respondent for contract 

work which it performed for an unknown company or individual, 

Arnold Coleman indicated that he has not collected this debt and 

has sued the individual for the money, but that this individual 

has declared bankruptcy (Tr. 109). 

No information was forthcoming with respect to the status of 

the mining equipment which was removed from the No. 10 Mine, as 

well as the equipment used by the respondent at its other mining 

operations, and I have no basis for determining whether or not 

this equipment is owned or mortgaged, or whether it is still in 

the possession of the respondent as part of its corporate assets. 

Under all of these circumstances, and in the absence of any 

evidence to the contr~ry, I cannot conclude that the respondent 

has established that it cannot pay the civil penalty assessment 

which I have made for the violation which has been affirmed in 

this case. 

Negligence 

In his inspection report filed in connection with the order 

and citation which he issued, Inspector Charles took the position 

that by using the cited nonpermissible dozer underground, the 

respondent exhibited a "reckless disregard" for safety. He made 

the same finding of "reckless disregard" on the face of the 

citation which he issued. In support of this negligence finding, 

the petitioner argued that assuming that the fact of violation is 

established, it would be obvious that the respondent knew about 

this violationp and it pointed out that in its answer filed in 

this case, the respondent conceded that using a nonpermissible 

dozer underground would be hazardous (Tr. 111). I agree with the 

inspector's negligence finding of "reckless disregard," and IT IS 

AFFIRMED" 

Gravity 

In view of my "significant and substantial" (S&S) findings, 

I conclude and find that the violation was serious. Indeed, in 

its answer filed in this proceeding, the respondent conceded that 

operating the nonpermissible bulldozer underground would be 

hazardous. 

64 
Good Faith Compliance 

The evidence in this case reflects that in conjunction with 

the citation which he issued, the inspector also issued a section 

107(a) imminent danger order "red-tagging" or closing down the 

entire underground area of the mine. Since there is no evidence 

that the respondent timely contested the issuance of the order, 

it is not in issue in this case. I take note of the fact that in 

issuing the citation, the inspector did not establish an abatement time and it seems obvious that the inspectors never observed 

the dozer being operated underground. On the facts here presented, although I conclude and find that the violation was 

abated, it was effectively abated by the inspector when he closed 

the underground mine area, and not by the respondent who denied 

that the dozer was used underground. Under the circumstances, I 

have no basis for finding that the respondent abated the violation in good faith. 

Civil Penalty Assessment 

On the basis of the foregoing findings and conclusions, and 

taking into account.the civil penalty assessment criteria found 

in section llO(i) of the Act, I conclude and find that a civil 

penalty assessment of $950, is reasonable and appropriate for the 

violation which has been affirmed. 

ORDER 

The respondent IS ORDERED to pay a civil penalty assessment 

of $950 for the section 104(a) "S&S" Citation No. 3368426, 

September 21, 1989, 30 C.F.R. § 75.507. Payment is to be made to 

MSHA within thirty (30) days of this decision and order, and upon 

receipt of payment, this matter is dismissed. 

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) 

Branson Coleman, Arnold D. Coleman, Ike Coal Company, Inc., 

103 Wolfpit Creek Road, Elkhorn City, KY 41522 (Certified Mail) 

/fb 

65 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 14 J99l 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

MICHAEL L. PRICE AND 

JOE JOHN VACHA, 

Complainants 

and 

UNITED MINE WORKERS OF 

AMERICA (UMWA) , 

Intervenor 

v. 

JIM WALTER RESOURCES, INC., 

Respondent 

TEMPORARY REINSTATEMENT 

PROCEEDING 

Docket Noo SE 87-87-D 

No. 4 Mine 

DECISION DISMISSING TEMPORARY REINSTATEMENT PROCEEDING 

Before: Judge Broderick 

Following a hearing on June 29, 1987, I issued an order 

directing Respondent to immediately reinstate complainants Price 

and Vacha to the positions from which they were discharged on 

March 2v 1987. The order of temporary reinstatement was affirmed 

by the Commission on August 3, 19870 9 FMSHRC 1305 ·(1987)0 The 

Comrnissionus decision was affirmed by the Court of Appeals for 

the 11th Circuito Jim Walter Resources, Inc. v. FMSHRC, No. 87-

7484, (11th Cir., December 21, 1990). In the meantime, I issued 

a decision following a hearing on the merits Docket Noo SE 87-

128-D 7 ordering JWR, inter aliac to permanently reinstate Price 

and Vacha. 10 FMSHRC 896 (1988). The Commission reversed in 

part and remanded the case to me in August 19900 12 FMSHRC 1521 

(1990)" On December 20, 1990, I issued a decision on remand 

again' ordering JWR to permanently reinstate Price and Vacha. 12 

FMSHRC (1990). 

Under the above circumstances the Temporary Reinstatement 

Proceeding is moot. Accordingly, the above docket is DISMISSED. 

I I , 1 d . J " - .... ¢ / . 'A -f\ ,, I , ,4,'' 

/;{, v 1'CL ·S. /;f"f~ J I· / ..... , l. '-o /t._ ~ James A. Broderick 

' Administrative Law Judge 

66 
Distribution: 

Colleen A. Geraghty, Esq., U.S. Department of Labor, Office of 

the Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified 

Mail) 

Robert K. Spotswood, Esq., John W. Hargrove, Esq., Bradley, 

Arant, Rose & White, 1400 Park Place Tower, Birmingham, AL 35203 

(Certified Mail) 

Patrick K. Nakamura, Esq., Longshore, Nakamura & Quinn, 2101 City 

Federal Bldg., Birmingham, AL 35203 (Certified Mail) 

Mary Lu Jordan, Esq., United Mine Workers of America, 900 15th 

Street, N.W., Washington, D.C. 20005 (Certified Mail) 

slk 

67 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 14 1991 

DRUMMOND COMPANY, 

Contestant 

Vo 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

DECISION 

CONTEST PROCEEDINGS 

Docket No. SE 91-10-R 

Citation No. 3020151; 

10/4/90 

Docket No. SE 91-11-R 

Citation No. 3020153; 

10/4/90 

Appearances: David M. Smith, Esq., Maynard, Cooper, Frierson 

and Gale, Birmingham, Alabama, for the Contestant; 

William Lawson, Esq., U. s. Department of Labor, 

Office of the Solicitor, Birmingham, Alabama, for 

the Respondent. 

Before: Judge Weisberger 

Statement of the Case: 

These cases are before me based upon Notices of Contest 

iled by the Operator (Contestant) on October 26, 19900 On the 

same date Contestant filed a Motion to Expedite a Hearing on the 

issues raised by the Notice Contest" In a conference call on 

October 29, 1990, between the undersigned and counsel for both 

Parties, it was agreed that a hearing be scheduled for November 

14 and 15, 1990, and a hearing was subsequently held on those 

dates Hoover, Alabama" Walter Deason and Sidney Hill 

testified for the Secretary (Respondent)o George Cappsp John Mo 

Busbyv Bi Jo Johnson; and Larry Lee, testified for the 

Contestanto 

At the close of the hearing, Contestant indicated that it 

sought an opportunity to submit Proposed Findings of Fact and a 

Brief, and the Parties were allowed to file same within 15 days 

after receipt of the tr~nscript of the proceedings. The Parties 

were further granted a right to file a reply brief 5 days 

thereafter" Respondent filed a Brief on December 17, 1990, and 

Contestant filed Proposed Findings of Fact and Conclusions of Law 

on December 20, 1990. Contestant and Respondent filed Reply 

Briefs on December 27 and 26, respectively. 

68 
Docket No. SE 90-10-R 

Findings of Fact and Discussion 

I. 

On October 4, 1990, whi"le inspecting Contestant's Mary Lee 

No. 2 Mine, MSHA Inspector Walter W. Deason, issued a Citation 

alleging a violation of 30 C.F.R. § 75.400 in the area of the 

4315 conveyor belt drive. Section 75.400, supra, provides, as 

pertinent, that, inter alia, coal dust, including float coal dust 

deposited on rock-dusted surfaces, and loose coal shall not be 

permitted to accumulate. 

The 4315 section conveyor belt transports coal from the face 

outby to the 430 belt line. In essence, Deason indicated that he 

measured an accumulation of float coal dust, up to 19 inches 

deep, beneath the take-up rollers and extending outby. The 

accumulation also extended across the 36 inch wide belt. Deason 

described the.material as powdery dry, like gun powder, and real 

fine. After he issued the Citation in question, he had some 

miners shovel under ~he rollers to clean the accumulation. He 

indicated that the material that was shoveled was powdery dry. 

According to Deason, he measured the material around the 

tight side of the belt with a ruler, and it was 16 inches deep. 

He described the material as black. He indicated that he stuck 

his stick in it, and opined that it was dust all the way through. 

However, according to Deason, he doubted he could have put his 

hand in the material, as it was compacted. On cross-examination 

he conceded that coal dust becomes compacted when it is wet. 

Sidney Hill, Jr., an international representative employed 

by the United Mine Workers of America, who performs safety 

inspections 9 testified that he traveled with Deason on October 4r 

and that the belt header there 11 0 o o was indeed perhaps one 

of the worst cases of accumulation that I had observed." 

(Tr. 209). He described an accumulation of coal along the main 

rollers beneath the belt, which he estimated to be a foot and a 

half deep. He indicated that the material was loose and 11 0 •• 

dry in some caseso" (Tro 209). Hill testified that subsequent 

to the discovery by Deason of the accumulation, it was removed 

with a shovel. Hill said he then got down on his hands and knees 

and examined the coal 11 and I would say for the most part it was 

dry coal." (Tr. 211). 

I find that the testimony of Contestant's witnesses do not 

rebut the testimony of Respondent's witnesses which I find 

69 
establishes an accumulation of coal in the area in question. 

George Capps, a miner employed by Contestant who served as the 

Chairman of the Union's Mine Safety Committee on the dates in 

question, testified that he measured with a ruler the depth of 

coal indicated on a walking stick that Deason had inserted in the 

coal, and it showed a depth of only 9 inches. In the same 

connection, John M. Busby, Contestant's evening shift safety 

inspector, testified that the material, in essence, was at most 

10 inches deep, and that on the tight side it tapered down from 

that level. I find the detailed testimony of Capps with regard 

to the procedure that he used in measuring the depth of the coal 

to be persuasive. I conclude, however, that the coal in the area 

in question to a depth of 9 inches, as testified to by Capps, is 

nonetheless indicative of an accumulation within the purview of 

Section 75.400, supra. 

Capps indicated that with regard to the accumulation in the 

area where Deason measured the depth of the coal at the top of 

the take-up, "it was just mush, mushy stuff." (Tr. 230). He 

said that the material had some rocks in it, and that when he 

shoveled under the belt after,:the condition had been observed by 

Deason, the material,was not dry. Busby indicated that, in the 

area where the power center is close to the belt line, he was a 

foot to a foot and a half from the material, and it contained 

rock dust coal and muck. He described it as hardened and ashen 

gray in color. However, he indicated that, on the tight side of 

the belt, the accumulation that was opposite the power center and 

between the two rollers contained some dry material. He also 

indicated that he saw float coal dust around the conveyor drive. 

He also agreed that under the take-up roller, where a roller was 

missing, the material "in general" was dry {Tr. 374-375). He 

described the accumulation that the belt was touching, as a 

mixture of lump coal, fine lump coal, and ashen particles, and 

that there was a "smattering" of black on top. (Tr. 337). 

The testimony of Deason is confusing with regard to whether 

he termed the material in question coal dust or float coal dust. 

However, I conclude that Contestant's witnesses have not rebutted 

the testimony of Deason and Hill that the material in question, 

to a depth of at least 10 inches, contained coal that to some 

degree was not solid and was loose. Although Busby described the 

material as damp and wet, he indicated that it was not "running 

wet" (Tr. 388). Capps indicated that the material that he 

shoveled under the belt was not dry, and that at the at the top 

of the take-up it was wet and mushy. 

I find the testimony of Busby and Capps inadequate to rebut 

either the testimony of Hill who indicated that he was on his 

hands and knees when he observed that the coal was dry for the 

most part, or the testimony of Deason that at least in some areas 

the coal was fine and powdery dry. Further, although ---- Contestant's witnesses disagreed with Deason with regard to the 

70 
texture of the material in question, they, in essence, agreed 

with him that the belt was running in the material. Taking this 

fact into account, and considering the depth of the material 

being at least 10 inches, and the extent of the material, 

consisting of loose coal, which was found across the 36 inch belt 

and under the take-up rollers and extending outby thereby, I 

conclude that there was an accumulation of loose coal. As such I 

find that Contestant herein did violate Section 75.400, supra, as 

alleged. 

II. 

In the Citation at issue, Deason indicated that the 

violation was significant and substantial. None of Respondent's 

witnesses contradicted the testimony of Deason that a roller was 

missing from the take-up unit, and as a consequence the conveyor 

belt was rubbing against metal creating friction, which is a 

source for ignition. According to Deason, the belt, under the 

bottom of the rollers, was running in an accumulation of coal 

that was "powdery dry" (Tr. 29). He noted that the belt was 

"flipping it up in the air" J.Tr. 29). Hill indicated that he was 

on his hands and kn~es and " ... for the most part it was dry 

coal" (Tr. 211). On the other hand, Capps, while agreeing that 

the belt was turning in an accumulation of coal, testified that 

he shoveled under the belt and "it wasn't dry" (Tr. 264). Busby, 

who also shoveled the coal, indicated that the material that the 

belt was touching was "caked" (Tr. 376), and that "It was a 

mixture of lump coal, fine lump coal ashen particles. There was 

some rock dust in it and there was a smattering of black on top" 

(Tr. 337). However, on cross examination he agreed that "in 

general," the mixture was dry in consistency (Tr. 375). Also, 

although he testified that the material was damp to dry and was 

not "dusty dry" (Tr. 386)? on cross examination, he indicated 

the material directly underneath the missing roller "was 

dryn (Trc 385)" Also, although. he indicated that he did 

not see 11 a great deal of dust 11 being "stirred" by the belt, he 

nonetheless indicated that "there was float coal dust on the 

surface" (Tr. 348). 

Thusp taking into account the presence of significant 

amounts of coal accumulation, the running of a conveyor belt in 

coalp the existence of dry coal particles, and the presence of 

friction, an ignition source, I conclude that 2 given the 

continuation of the violative condition herein, a hazard of a 

fire would have been reasonably likely to have occurred. 

Further, inasmuch as the flow of air went from the area in 

question inby, smoke from a f in this area would be carried 

inby. It was the conclusion of Deason, which has not been 

rebutted by testimony from any of Contestant's witnesses, that 

serious injuries to miners would have resulted due to smoke 

inhalation or other hazardous conditions occasioned by a fire. 

Hence, I conclude that there was a reasonable likelihood of an 

71 
injury of a reasonably serious nature. I thus conclude that it 

has been established that the violation herein was significant 

and substantial (See, Mathies Coal Company, 6 FMSHRC 1 {January 

1984)). 

III. 

Deason indicated that the violation herein was as a result 

of Contestant's unwarrantable failure. It thus is incumbent upon 

Respondent to establish that the accumulation herein resulted 

from Contestant's aggravated conduct (Emery Mining Corporation, 

9 FMSHRC 1997 (1987)). For the reasons that follow, I conclude 

Respondent has not met this burden. 

a. History of Accumulations at Conveyor Belts 

At 1:03 a.m., on October 2, 1990, two days before Deason 

issued the Citation in question, he cited Contestant for an 

accumulation of coal beneath and around the take-up unit at the 

slope belt. According to Deason, he found that shift inspectors 

were not placing their initia~s in places they inspected. Deason 

testified that he then told Carl Ware, the foreman of the owl 

shift, to tell the fire bosses that they needed to make 

inspections and to place their initials on inspection reports. 

The following day at 4:16 p.m., Deason served Contestant with a 

Citation alleging an accumulation of coal under the belt line 

drive and the take-up unit of the 40 North No. 1 Conveyor Belt. 

On October 4, at 4:48 p.m., Deason served Contestant with a 

Citation alleging an accumulation of coal beneath the belt drive 

and a take-up unit of the 40 North No. 3 Conveyor Belt. Ten 

minutes later, Deason cited Contestant for an accumulation of 

coal from the end drive rollers to the discharge rollers at the 

4050 section conveyor drive. 

According to Deason, the accumulation at the slope belt was 

13 inches deep as measured by him; and extended from rib to ribo 

He indicated that the accumulation 20 to 30 feet away from the 

take-up unit had been there for an extended period of time as it 

was impossible for coal to spill that far back off the belt. 

This testimony was not contradicted or otherwise impeached by 

Contestanto 

According to Deasonr the accumulation at the 40 North No. 1 

Belt extended 50 to 60 feet and was 35 inches deep at the deepest 

point. Deason indicated that this condition was readily visible. 

He indicated that the material consisted of small particles of 

coalff and hence was not considered to be a spillage which is 

lumpy and is usually on the side of a belt. In contrast, the 

accumulation at the 40 North No. 1 belt was at the bottom of the 

belt. According to Deason it takes time for material to 

accumulate on the bottom. Hence, according to Deason, this 

accumulation did not occur overnight. Deason discussed this 

72 
condition with Busby as follows: "I just -- basically I just 

told him, you know, we had to clean the accumulations up and got 

with him on the, you know, discussing the amount of time that it 

would take to clean the accumulations up, you know, and establish 

an abatement time" (Tr. 61). (sic). 

In essence, Deason testified that the accumulation at the 40 

North No. 2 Belt was up to 12 inches deep and the belt was 

rubbing against the accumulations for a distance of approximately 

30 feet. This testimony was not impeached or contradicted by 

Contestant. 

Essentially it was the testimony of Deason that the 

accumulations at the 4050 section conveyor drive extended 20 to 

30 feet outby the belt and between the tracks. He indicated that 

the accumulations were up to 13 inches deep and consisted of 

small particles and that the material was not lumpy. He opined 

that a driver of a vehicle in the area would be able to see the 

accumulations. 

After noting the accumulations in the 4050 section conveyor 

drive, Deason went to the area in question (4315 section conveyor 

belt) and in thl neutral entry saw coal dust extending a distance 

of 7 crosscuts. I He described the material therein as float 

coal dust and black, which led him to conclude that it presented 

a serious hazard. He then went to look for the source of the 

dust he had observed in the neutral entry, and went to the 4315 

header where he observed dust being flipped in the air. 

In general, Hill testified that on October 3 while 

inspecting the mine with Billy Ray Powell, a member of the Local 

Union's safety committee, he asked Powell the reason why the 

amount of coal had accumulated, and the latter told him that ii " o o in the past they had some problems on the belt line and 

the conditions were ones that were being worked upon, ... 11 

(Tro 207)0 However, Hill did not describe the nature of these 

problems, nor did he indicate that they were prevalent in the 

area in question. 

b. The Length of Time the Coal Was Allowed to Accumulate 

With regard to the accumulations in the areas in issue, 

Deason indicated that because the consistency of the material 

therein was powdery and real fine it had to have been ground. He 

thus concluded that the accumulations could not have-occurred in 

the time that elapsed from the end of the previous day shift. 

Hill opined that inasmuch as there was no indication of any 

blockage on the belt which would have caused a rapid accumulation 

1; Each crosscut is 70 feet in length. 

73 
(spillage), the accumulations herein occurred over a period of 

time. Neither Deason's nor Hill's testimony was impeached or 

rebutted by Contestant. 

c. Visibility of the Accumulations 

Deason, testified to having observed powdery dry 

accumulations at the 4315 header which were 19 inches deep. 

However, he did not indicate with any degree of specificity as to 

where he was when he observed this condition, and as to whether 

this condition was readily observable from the walkway side. 

Hill indicated in this connection that he walked with Deason from 

the tail roller to the take-up unit, and that "along the belt 

roller, the main roller, there was accumulations of coal beneath 

the belt and extended in varying degrees all the way back to the 

belt take-up unit. The coal was very deep." [sic] (Tr. 209). 

He indicated that these conditions were readily visible to him 

and"· •. they would be visible to a person walking by them, I 

would think" (Tr. 214). 

According to Capps, when he made his own inspection of the 

area in question inunediately'prior to the arrival of Deason, the 

area "looked good" CTr. 251), and there were no hazards. He 

indicated, essentially, that he was not able to see the belt 

running in accumulations or rubbing against the frame w2ere the 

roller was missing, as the guards had not been removed. I He 

also indicated that the belt line was clean and that, 

specifically, the area under the rollers was clean. However, he 

indicated that the take-up area was not clean, and that he would 

have seen that area if he would have looked through the screens. 

Busby indicated that the area of the header is difficult to 

see because of the mesh screens, but conceded that the area in 

·which the rollers are located is susceptible to spillage, and 

hence demands a closer inspection than other areas of the belt" 

Indeed he indicated that he kneeled down along the walkway or 

travel side of the belt, looked over the guards to the belt line, 

and saw an area of hardened material which extended under the 

belt to a depth of about 10 inches. He noted that he was standing 

one to one and a half feet away when he made this observation. 

d. Analysis 

I conclude that the weight of evidence establishes that 

Contestant did not use due diligence in inspecting for 

accumulations in the area in question. The weight of the 

2 I On the date in issue 7 mesh guards measuring approximately 

4 by 8 feet were in place. 

74 
evidence specifically establishes that the accumulations in 

question would have been noticed upon a careful inspection. Due 

to the extent and depth of the accumulations (see I, infra), I 

conclude that it is highly likely that they existed at least 

4 hours earlier when the preshift examination was made. 

In its Brief, Respondent asserts that Contestant knew of the 

violation herein and did not abate it until cited by Deason. The 

record fails to establish such knowledge on the part of 

Contestant of the specific accumulations at the specific 

locations in issue, i.e., the 4315 section conveyor belt. (c.f., 

Southern Ohio Coal Company, 12 FMSHRC 1498 (1990)). The fact 

that accumulations on four other belt lines were found and cited 

by Deason, on October 2-4, 1990, does not per se establish either 

knowledge or aggravated conduct with regard to the specific 

accumulations herein at the 4315 belt header (see, Eastern 

Associated Coal Corporation, 12 FMSHRC 239 (1990)). There is 

insufficient evidence that Deason had any discussion with any of 

Respondent's personnel prior to the issuance of the Citation in 

issue, with regard to problems with accumulations at the belt 

lines. The only evidence proffered by Respondent is the 

testimony of Deason .with regard to his conversation with Busby 

after he (Deason) found an accumulation at the 40 North No. 1 

belt on the evening of October 3, 1990. (III, a, infra). A 

plain reading of this testimony reveals that it does not 

establish that Deason informed Busby of the need either to take 

care of accumulations in general on belt lines, or to be aware of 

such problems in the area in question. It would appear that 

Deason's comments to Busby were related solely to abating the 

accumulations at the 40 North No. 1 header. Similarly Deason's 

conversation with Ware on October 2, in which he told Ware to 

tell fire bosses of the " •.. need to be making these 

examinations and need to putting dates and times and 

initialso o o 11 (Tr 48)p was in the context of Deason's concern 

with the failure by inspectors to enter their initials upon 

making examinationso There is no evidence that Respondent was 

informed by Deason of the need to make a thorough inspection of 

the area in question. Thus, the fact that Deason found 

accumulations after he spoke to Ware and Busby does not, per se, 

establish aggravated conducto 

Further, I reject the argument advanced by Respondent, that 

Contestant made a conscious decision not to stop production of 

coal to clean the accumulations, but rather to wait until the 

idle owl shift to do so. This argument is based on the testimony 

of Busby that, "normally," he.would have had the cited conditions 

cleaned during the owl shift when the guards would be removed 

75 
allowing the area on the tight side to be cleaned (Tr. 377). 3/ 

Since the record does not establish that Respondent had knowledge 

o.f the accumulations herein, I do not place much weight on what 

Busby would have done, had he in fact known of the accumulations. 

I find this testimony too speculative. I place more weight on 

evidence of what Contestant .actually did with regard to the 

removal of the accumulations. 

In this connection, neither Deason nor Hill saw anyone 

shoveling coal from under the belt on October 4, prior to the 

issuance of the Citation. Busby also indicated that no one was 

shoveling when he walked into the 4315 area. On the other hand, 

Capps, in essence, testified that a miner was shoveling out from 

under the belt about 200 to 250 feet inby the headers. I find 

Capps' testimony credible inasmuch as none of the other witnesses 

who were present indicated specifically that they did not see a 

miner cleaning from under the belt, 200 to 250 feet inby the 

headers. Also, Busby testified that at the time of Deason's 

inspection he was told by Don Clark, the evening shift mine 

foreman, that the latter had previously assigned an employee to 

shovel. In addition, Deason,_in essence, indicated that he saw 

that some accumulations had been shoveled on the tight side in 

the area of the header. In this connection, Busby testified that 

the first 25 or 30 feet inby the area in question, from the 

walkway across to the tight side, was clean and that "the residue 

with shovel markings was wet" {Tr. 393). This testimony has not 

been rebutted. I thus conclude that Respondent made some efforts 

to clean up the accumulations. 

Based on all the above, I conclude that the record is 

insufficient to support a conclusion that the accumulations at 

issue resulted from Respondent's aggravated conduct. Hence, the 

violation herein is not the result of Respondent's unwarrantable 

failure" 

Docket Noo SE 90-11-R 

On October 4, 1990, Deason issued Citation/Order No. 3020153 

alleging a violation of 30 C.F.R. § 75.303 in that "adequate belt 

examinations" were not conducted on the day and evening shifts 

3; In this connection, Respondent in its Brief, also refers 

to the testimony of Capps that , in essence, screens (guards) are 11 never 11 taken down while the belt is running, and that "usually" 

this is done during the owl. shift when the belt is shut down 

(Tr. 297). I do not place much weight on these conclusions, as the 

record does not establish the basis for these conclusions. There 

is no evidence that Capps had personal knowledge of these matters, 

nor does the record indicate the source he relied on for his 

conclusions. 

76 
"in that the record books indicate none observed" on th~ 

40 North, Nos. 1, 2 and 3, 430, and 4315 section belts. I 

Section 75.303, supra, in essence, provides that within 

3 hours inunediately preceding a shift, certified persons shall 

examine every working section, and that "belt conveyors on which 

coal is carried shall be examined after each coal-producing shift 

has begun." Section 75.303, supra, further provides as follows: 

such mine examiner shall place his initials and 

the date and time at all places he examines. If such 

mine examiner finds a condition which constitutes a 

violation of a mandatory health or safety standard or 

any condition which is hazardous to persons who may 

enter or be in such area, he shall indicate such 

hazardous place by posting a 11 danger 11 sign 

conspicuously at all points which persons entering such 

hazardous place would be required to pass, and shall 

notify the operator of the mine. 

In order for Respondent"toestablish a violation herein for 

a failure to examine,- it must first be proven that there were 

hazardous conditions that were not reported in an area required 

to be examined, i.e., "active workings." That term is defined in 

30 C.F.R., Section 75.2(g)(4) as 11 ••• any place in a coal mine 

where miners are normally required to work or travel." In 

essence, the testimony of Deason described accumulations of coal, 

for which he cited Contestant, at the slope belt, 40 North No. l 

belt, 40 North No. 3 belt, and 4050 Section drive. (Docket No. 

SE 91-10-R, III, (a) infra). Contestant has not rebutted or 

impeached Deason's testimony in this regard. Deason indicated in 

his testimony that the 40 North belt No. 1, and the area cited 

concerning the 4050 belt, were areas that were regularly traveled, Deason also indicated that in the area of the slope belt 

that contained an accumulation of coal 9 the take-up unit 

rollers were not guarded, violation of 30 C.F.R. 

Section 75.1722(a , as the guards had rusted and were torn. He 

noted that this was in an area that was traveled daily and where 

miners worked daily. None of these conclusions were rebutted or 

4; The Section 104(d) Order in issue is predicated upon the 

underlying Section 104(d}(l) Citation, discussed in Docket No. 

SE 91-10-R, infra, wherein I found that the violation therein was 

not the result of Contestant's unwarrantable failure. Hence, the 

Order should be amended to a Section 104(d} Citation. 

77 
impeached by Respondent. I thus conclude that it has been 

established that there were violative conditions in areas 

required to be examined. 

Deason indicated that if one would walk by, one could not 

help but see the condition of the guarding at the slope belt. 

This opinion was not rebutted or impeached. In addition, 

Deason's testimony that guards had been removed on the tight side 

of the 4315 belt header, was corroborated by Capps and Busby. 

Although there were accumulations and a guard missing in the 

4315 header area, these facts were not reported in the Preshift 

Mine Examiner's Report, for the period from September 25, 1990, 

through the evening shift of October 4, 1990. The 2:00 p.m. to 

2:30 p.m. examination of October 3, 1990, indicates "belt needs 

cleaning," but did not specify the specific accumulations at the 

header, nor did it note the missing guard. In the same fashion, 

the Preshift Report for the period from 8:00 p.m. to 10:30 p.m., 

October 3, 1990, indicates "cleaned og belt," but does not 

specify the area that is in question. I 

Contestant did net offer the testimony of any of its 

examiners to attempt to establish that the violative 

accumulations at the 40 North6

No. l and 4050 belts were examined 

and reported to the Operator. I Nor did Respondent offer any 

testimony to establish that the violative condition of missing 

guards at the 4315 belt was examined and reported. 

Similarly the Preshift Mine Examiner's Reports for the 4050 

Section conveyor drive for the period from September 25, 1990, 

through the night shift of October 4, 1990, do not report any 

accumulations at the rollers. The remarks for the 6:00 a.m., 

examination of September 25-28, October 1-3, were not accorded 

any probative value as they were not legible and could not be 

understoodo 

5 I Entries in the preshift examination section in the 

Examiner's Reports for~ 10/l/90v 10/2/90 for the period 5:10 a.m. 

to s~12 a.m., 10/3/90 for the period 5:10 a.m. to 5:12 a.m.r and 

the remarks for October 4p 1990, for the time period 4:00 a.m. to 

4:12 a.m., were not accorded any probative value as they were not 

legible and could not be understood. 

6; Busby indicated that, within the scope of his duties, he 

normally examines the belt line, although there is a designated 

belt examiner. However, he did not make any examination on 

October 3 or 4, and could not state when he last examined it prior 

to the date the Citation herein was issued, i.e., October 4. 

78 
The Preshift Mine Examiner's Report for the period from 

September 25, 1990, through the day shift of October 4, 1990, did 

not indicate any of the accumulations at the slope, 40 North 

No. 2 and 3 belts, as set forth above, infra. 

Hence, it is concluded that inasmuch as Contestant did not 

report the conditions ~et forth above, infra, it did violate 

Section 75.303. supra. I 

Deason had told Ware on October 2, to inform the fire bosses 

of the need to make inspection and enter dates, times, and 

initials. Subsequently, Deason observed hazardous conditions of 

missing guards at the 4315 header, and accumulations of coal at 

the 40 North No. 1 and 4050 belts, areas that were regularly 

traveled. The record fails to establish that these areas 

containing hazardous conditions were examined. No evidence was 

presented to excuse Contestant's actions in this regard. In this 

circumstances, I conclude, that the failure to examination was 

the result of Contestant's unwarrantable failure (See, Emery, 

supra). 

ORDER 

Docket No. SE 91-10-R. 

It is ORDERED that, the Notice of Contest is sustained in 

part in that Citation/Order No. 3020151 shall be AMENDED to 

reflect the fact that the Citation therein was not the result of 

Contestant's unwarrantable failure. 

1; Thus 9 since a violation of Section 750303 1 supra, has been 

established, it is not necessary to resolve the conflict in 

testimony between Busby and Deason with regard to the distance of 

the unguarded area at the 40 North Noo 3 belt, and as to whether or 

not the area that was unguarded at the 40 North No. 2 belt was 

regularly traveled or not. 

Deason also cited missing guards at the 4050 belt. However; 

there was not a mandated requirement to make a preshift examination 

of the area of the 4050 belt where the guard was missing, as 

Busby 1 s testimony that no one works around the tail piece, was not 

contradicted by Deason who indicated that the area was not heavily 

traveled. Further, although Deason indicated that people go to 

that area to clean the belt, Busby indicated that, in such an 

event, the belt is turned off. Since this area did not have to be 

inspected, it is not necessary to resolve the conflict between 

Deason and Johnson with regard to whether the missing guard at the 

4050 belt drive exposed a pinch point. 

79 
It is further ORDERED that, in all other respects the Notice 

of Contest is DISMISSED. 

Docket No. SE 91~11-R 

It is ORDERED that the Notice of Contest is sustained in 

part in that Citation/Order No. 3020153 shall be AMENDED to 

reflect that it is to be reduced from Section 104(d) Order to a 

Section 104(d)(l) Citation. It is further ORDERED that, in all 

other respects, the Notice of Contest be DISMISSED • 

Distribution: 

. J(}~ ~eisberger Administrative Law Judge 

Davis M. Smith, Esq., Maynard, Cooper, Frierson and Gale, 

1901 6th Avenue North, 2400 AmSouth/Harbert Plaza, Birmingham, AL 

35203-2602 (CertifiedMail) 

William Lawson, Esq., Office of the Solicitor, u. s. Department 

of Labor, 2015 2nd Avenue North, Suite 201, Birmingham, AL 35203 

(Certified Mail) 

dcp 

80 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE,. 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 14 1991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. YORK 90-11-M 

A.C. No. 30-01212-05519 

v. 

McConnellsville Plant 

WHIBCO, INCORPORATED, 

Respondent 

Appearances: 

Before: 

DECISION 

William G. Staton, Esq., Office of the Solicitor, 

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

the Petitioner~ 

Mr. David E. Hergert, Vice President, Production, 

Whibco, Inc., Leesburg, New Jersey, 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 1 30 u.s.c. § 820(a) 1 

seeking a civil penalty assessment in the amount of $300, for an 

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

§ 56.1410l(a) (1). The respondent filed a timely answer denying 

the alleged violation, and a hearing was held in Syracuse, 

New York. The parties waived the filing of posthearing briefs, 

but I have considered their oral arguments made on the hearing 

record in the course of my adjudication of this matter. 

Issues 

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

respondent has violated the standard as alleged in the proposal 

for assessment of civil penalty, (2) whether the violation was 

"significant and substantial," and (3) the appropriate civil 

81 
penalty that should be assessed for the violation based upon the 

civil penalty assessment criteria found in section llO(i) of the 

Act. 

Applicable Statutory and Regulatory Provisions 

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

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

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

3. Commission Rules, 20 C.F.R. § 2700.1 et seq. 

Stipulations 

The parties agreed that the respondent is subject to the Act 

and that the presiding judge has jurisdiction to hear and decide 

this matter. The respondent's representative stated that the 

respondent has annual mining revenues of approximately 12 million 

dollars, and that its McConnellsville plant generates revenues of 

approximately $700,000 annually. He confirmed that the plant has 

five employees and a plant manager, and the parties agreed that 

the plant is a small mining operation, and that the respondent is 

a small-to-medium size operator. 

Discussion 

Section 107(a) - 104(a) 11 S&S 11 Order-Citation No. 3045987, 

issued on December 12, 1989, by MSHA Inspector Harold Adams, 

cites a violation of mandatory safety standard 30 C.F.R. 

§ 56.1410l(a) (1), and the cited condition or practice is stated 

as follows: 

Service brakes on Terex loader, Ser. # 53437, are in 

very poor condition. Loader could not be stopped with 

an empty bucket on a 2 percent grade (approx) by use of 

service brakes. 

Condition has existed for approx. 30 days. Suspected 

cause as stated by supervisor is cold weather. When 

loader was checked, air pressure gauge did not register. Loader was removed from service. 

Petitioner 1 s Testimony and Evidence 

MSHA Inspector Harold Adams confirmed that he inspected the 

respondent 1 s plant on December 12, 1989, and issued the contested 

citation after finding that the service brakes on the cited Terex 

loader would not hold the loader when it was tested on an approximate grade of 2 percent. He stated that the loader had just 

dumped a load of sand into the processing plant, and the loader 

operator advised him that the brakes were "not very good. 11 The 

82 
loader normally operates on level ground, but it travels up a 

ramp of approximately 2 percent grade to the plant where it dumps 

its bucket load of sand. After dumping the load, the operator 

applied the brakes at the top of the ramp, and the loader, with 

an empty bucket, drifted backwards down the ramp to level ground, 

and the brakes had no effect and would not hold the loader. 

Mr. Adams described the route of travel taken by the loader, 

and he confirmed that it made several trips a day with a loaded 

bucket along the same route. He stated that service and vendor 

trucks use the same roadway t~aveled by the loader, and that mine 

personnel also walk along the roadway on occasion. He confirmed 

that the loader operator informed him that the cited brake 

condition had existed for about 30 days, and that Jeff Scott, the 

plant manager, told him that the condition was caused by the cold 

weather and that the loader air receiver had to be drained nitely 

because of moisture accumulations in the air line caused by the 

cold weather conditions. Mr. Adams confirmed that the brakes 

would not stop the loader when it was tested, and he also issued 

an imminent danger order taking the loader out of service. 

Mr. Adams stated that he discussed the citation and order 

with Mr. Scott when.he issued them, and that Mr. Scott informed 

him that there was an air leak. Mr. Adams stated that his 

supervisory inspector was with him when he cited the loader and 

that his supervisor got into the cab of the loader and observed 

that the air pressure gauge showed no air pressure. Mr. Adams 

believed that the lack of pressure could have resulted from an 

air leak or a defective pressure gauge, but that when he next 

returned to the plant he was advised that an air leak had caused 

the brake condition and that an air line or hose had to be 

replaced. He then checked the brakes again with a full bucket of 

sand on the ramp and found that the brakes would hold the loader 

and that the air pressure gauge indicated 120 pounds of air 

pressure in the systemo 

Mr. Adams confirmed that he made a gravity finding of 

nreasonable likely" and that he based this on the fact that the 

loader routinely traveled along the roadway to and from the plant 

with a full and empty bucket and that its route of travel took it 

by the plant office and employee parking lot. In view of the 

presence of other vehicular traffic on the roadway, and occasional foot traffic by employees who used the roadway, he 

believed that the loader with inadequate service brakes would 

reasonably likely have an accident. If an employee or other 

vehicle were struck by the loader, which is a heavy piece of 

equipment, he believed that an injury resulting in lost work days 

or restricted duty would reasonably likely occur if the loader 

were continued to be used with service brakes which would not 

stop it. 

83 
Mr. Adams confirmed that he made a negligence finding of 

"moderate." He believed that Mr. Scott knew that the brake 

condition had existed for approximately 30-days prior to the 

inspection and that the loader had a leaky hose. Mr. Adams 

confirmed that he made no inquiry as to whether the loader had 

been used during this 30-day period, but based on his observations and the fact that this may have been the only loader, he 

concluded that it had been used during this time. He further 

confirmed that in making his negligence finding he considered the 

fact that Mr. Scott had taken steps to try and correct the 

condition by bleeding the brakes of all moisture on a daily basis 

prior to the inspection. Mr. Adams also confirmed that he issued 

a separate citation on the loader after finding that it had a 

cracked windshield and cracked side windows (Tr. 9-19). 

On cross-examination, Mr. Adams confirmed that he had 

previously visited the plant, but he could not recall whether it 

was during the summer or winter months. He confirmed that his 

supervisor Jim Green was with him on the day of the inspection in 

question. Mr. Adams further confirmed that he has not inspected 

any other plants operated by-the respondent and that his prior 

inspection experience with "cold weather operations" were limited 

to open pit copper mines in Arizona, but that they did not 

present any equipment freezing problems. He confirmed that the 

weather conditions at the time of the inspection were "cold and 

freezing" and that there was "a couple of inches of snow" on the 

ground. He further confirmed that the respondent did explain to 

him that the loader air pressure tank was being bled at the end 

of each shift prior to the inspection and that this was done to 

remove the moisture from the air system to prevent freezing. 

In response to further questions, Mr. Adams confirmed that 

there were no particular hazards on the plant ramp where the 

loader dumped its load, and that the loader was equipped with an 

adequate hand brake and operable backup alarmo He also confirmed 

that the loader bucket could also be used as a braking device and 

that the loader normally travelled at a speed of 5 miles per hour 

or less. Mr. Adams further stated that he checked the respondent's "accident lost time" records, and had no knowledge that 

the respondent had any prior lost time accidents (Tro 19-22) o 

Respondent 1 s Testimony and Evidence 

Jeffrey Scott, plant manager, testified that at the time the 

problem developed with the cited loader 7 Inspector Adams was in 

the plant conducting his inspection. Mr. Scott stated that there 

was approximately 6 to 8 inches of snow on the ground, and that 

once the loader brake problem was identified the loader was put 

in the garage and the air pressure gauge line was replaced and 

the loader was allowed to warm up before being used. He believed 

that the freezing weather conditions and moisture in the air line 

caused the braking problem found by the inspector and Mr. Scott 

84 
did not believe that there was any serious risk with the loader 

prior to the time it was cited. He identified the loader operator as Philip Pike and stated that he was an experienced loader 

operator. Mr. Scott confirmed that the respondent had no lost 

time accidents (Tr. 27-28). 

On cross-examination, Mr. Scott confirmed that he was not 

with Inspector Adams when he asked the loader operator to test 

the loader brakes on the plant ramp. Mr. Scott further confirmed 

that he was aware of the braking problem, and that due to the 

cold weather, the loader had experienced similar freezing problems "off and on" on three or four occasions, and each time, the 

loader was taken to the garage so that the air lines could be 

bled to remove the moisture and to permit the loader to warm up 

in the garage. He experienced no braking problems with the 

loader when the weather was not cold and freezing. He described 

the loader as an old machine, and he indicated that the air 

dryers were not too efficient. 

Mr. Scott stated that the roadway used by the loader was 75 

to 80 feet wide, and he confirmed that seven or eight large 

trucks or tractor t~ailers were in and out of the plant roadway 

area on any given day and that employees would also be travelling 

on foot along the roadway. He stated that the air leak was in 

the air pressure gauge itself and did not directly affect the 

braking system. He did not believe that the lack of pressure in 

the air gauge would affect the efficiency of the brakes, and that 

the only hose or line which was replaced was the one connected to 

the air pressure gauge (Tr. 29-32). 

Mr. Scott stated that after the loader was taken out of 

service by the inspector on December 12, 1986, it was returned to 

service that same afternoon within approximately 5 hours. During 

this timeu no servicing was done on the brake system, and the 

brakes 91worked good" (Tr o 34) o However, when the loader was 

tested? one brake was not adjusted properly and three of the four 

wheels were locking up. The brake pads had to be adjusted so 

that the one wheel would brake (Tr. 34). He did not believe that 

the three wheels which were locking up made much difference in 

stopping the loader (Tro 35). 

Mro Scott stated that the cited loader was not used on a 

daily basis at the plant and it is only used when another loader 

which is normally used at the plant is at the pit area doing 

other work (Tro 35). Mr. Scott stated that the inspector allowed 

him to use the loader after the brakes were adjusted on 

December 12, and after he retested it because it was needed on 

the night shift (Tr. 37). 

Mr. Scott stated that he was not aware of the condition of 

the loader when it was tested by the inspector on December 12, 

but he confirmed that he had problems with the loader prior to 

85 
this time and the operator would leave it in the garage for as 

long as it took to thaw out. He further confirmed that no one 

would observe the loader during the shift to determine whether 

the brake system was operating correctly (Tr. 38). 

Mr. Scott confirmed that the drivers of the contractor 

trucks at the plant were familiar with the plant, and that the 

drivers and plant employees were familiar with safely maneuvering 

around a loader (Tr. 39). 

In response to further clarifying questions, Mr. Scott 

confirmed that the pressure gauge line was replaced and the 

loader was allowed to warm up in the garage after it was cited by 

the inspector and that nothing was done to the loader prior to 

the inspection. The inspector observed the loader "fresh for the 

first time" on the morning of his inspection "in the condition 

that it was in" (Tr. 40). He confirmed that he was not present 

when the operator applied the brakes and the loader drifted, but 

that he was present and did observe it drift down the ramp when 

the brakes were applied when the inspector took him to the loader 

and had the operator test it .. a second time. Mr. Scott did not 

dispute the fact th~t the loader brakes would not hold the 

machine on the ramp, regardless of what caused the condition (Tr. 

41) . 

Inspector Adams was recalled by the petitioner and he stated 

that he did not recall informing Mr. Scott that he could place 

the loader back in service on December 12. He stated that he 

next inspected the loader on December 14, when he terminated his 

order (Tr. 42). He stated that on December 12, the mechanic who 

was working on the loader informed him that there were air leaks. 

Mr. Adams stated he did not observe the loader in operation 

before leaving the mine that day and December 14, and did not see 

it in operation after he cited it (Tr. 43-44). 

Mr. Adams stated that he returned to the plant on 

December 14, at which time Mr. Scott provided him with information about the corrections made to the loader, and he terminated 

the order on that day ('I'r. 44) . Mr. Adams stated that once a 

section 107(a) order is issued taking a piece of equipment out of 

service, the mine operator must advise MSHA that the cited 

condition has been corrected before he can place the equipment 

back in service. However, if a citation is issued, the equipment 

may be placed in service after the condition corrected and 

MSHA need not be notified (Tr. 47). Mr. Adams could not recall 

any conversation with Mr. Scott which would have led him to 

believe that once the loader was repaired it could be placed back 

in service (Tr. 47). Mr. Adams could not recall whether there 

were two loaders ~t the plant {Tr. 48). 

Mr. Scott was recalled by the court, and he reiterated that 

after the loader brakes were adjusted on December 12, after it 

86 
was taken out of $ervice, the inspector allowed it to be placed 

back into service that same day (Tr. 49). 

Findings and Conclusions 

Fact of Violation 

The respondent is charged with a violation of mandatory 

safety standard 30 C.F.R. § 56.14101(a) (1), which provides as 

follows: 

(a) Minimum reguirements. (1) Self-propelled 

mobile equipment shall be equipped with a service brake 

system capable of stopping and holding the equipment 

with its typical load on the maximum grade it travels. 

This standard does not apply to equipment which is not 

originally equipped with brakes unless the manner in 

which the equipment is being operated requires the use 

of brakes for safe operation. This standard does not 

apply to rail equipment. 

The credible and.-unrebutted testimony of the inspector 

establishes that the cited loader service brakes were in poor 

condition and would not hold the loader and keep it from drifting 

down the plant ramp when the brakes were tested. The respondent 

does not dispute the fact that the brakes would not hold, and its 

defense is that the loader is required to be used at all times 

while the plant is in operation during the winter season and that 

the poor braking condition was caused by the operation of the 

loader in sub-freezing weather. Although I recognize the operational difficulties in operating equipment under adverse weather 

conditions, the cited standard makes no allowances or exceptions 

and it requires as a minimum that the service brakes be maintained so that they are capable of stopping and holding the 

equipment with its typical load on the maximum grade travels. 

In case, the evidence establishes that when the loader 

operator tested the loader brakes in the presence of the inspector, they would not hold or stop the machine, and plant manager 

Scott did not dispute this fact. Accordingly, I conclude and 

find that the petitioner has established a violation by a preponderance of the credible testimony and evidence adduced in this 

case, and the contested citation issued by the inspector IS 

AFFIRMED" 

Sianificant and Substantial Violations 

A 11 significant and substantial" violation is described in 

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

as could significantly and substantially contribute to the cause 

and effect of a coal or other mine safety or health hazard. 11 

30 C.F.R. § 814(d) (1). A violation is properly designated 

significant and substantial "if, based upon the particular facts 

87 
surrounding the violation there exists a reasonable likelihood 

that the hazard contributed to will result in an injury or 

illness of a reasonably serious nature." Cement Division, 

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

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

Commission explained its interpretation of the term "significant 

and substantial" as follows: 

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

under National Gypsum the Secretary of Labor must 

prove: (1) the underlying violation of a mandatory 

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

a measure of danger to safety-contributed to by the 

violation: (3) a reasonable likelihood that the hazard 

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

reasonable likelihood that the injury in question will 

be of a reasonably serious nature. 

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

1129, (August 1985), the Commission stated further as follows: 

We have explained further that the third element 

of the Mathies formula "requires that the Secretary 

establish a reasonable likelihood that the hazard 

contributed to will result in an event in which there 

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

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

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

is the contribution of a violation to the cause and 

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

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

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

I take note of the fact that the "narrative findings" 

supporting the "special assessment" made by MSHA in this case 

reflects that when the cited loader was tested on the 2 percent 

grade it could not be stopped and that it could have become 

uncontrollable and collided with another vehicle, a stationary 

object, or a pedestrian. However, there is no evidence in this 

case that the loader was "uncontrollable" when it drifted down 

the ramp, nor is there any evidence that any other vehicular 

traffic or people were present, or are normally present, in the 

ramp area. Further, except for the ramp area, there is no 

evidence that the roadway where the loader travelled was other 

than level, and the inspector confirmed that he perceived no 

collision hazards in the immediate ramp area. 

88 
Although the loader travelled at a relatively low rate of 

speed, it nonetheless was driven on the roadway traveling to and 

from the stockpile area to the processing plant. Although the 

roadway was 75 to 80 feet wide, there is no evidence that the 

loader, other traffic, or individuals on foot, were restricted to 

any particular part of the roadway, and the respondent confirmed 

that seven or eight large trucks or tractor trailers were on the 

roadway on a daily basis coming and leaving the plant area, and 

that employees would also be walking on the roadway. Since the 

loader was apparently used throughout the winter season with snow 

on the ground, I believe one can reasonably conclude that in the 

normal course of travel, any slippery or adverse road conditions 

would contribute to the hazard presented by a loader whose 

service brakes would not hold or stop the loader when they were 

applied. Although the loader was equipped with a serviceable 

parking brake and backup alarm, and the bucket could be used as a 

braking mechanism, these devices would only be relevant when the 

loader is backing up or parked. There is no evidence that the 

loader operator would lower his bucket if it were full to stop 

the machine in an emergency situation to avoid a collision with 

another vehicle or someone on foot on the roadway, and the 

inspector's unrebutted testimony reflects that it would be more 

difficult to stop the loader with a full loaded bucket than it 

would if the bucket were empty. 

In view of the presence of other large trucks coming and 

going from the plant at any given time while using the roadway, 

and the presence of plant employees on foot on the roadway, 

particularly under inclement weather conditions, I conclude and 

find that the operation of the cited loader on the roadway with 

brakes which would not stop or hold the loader when they were 

applied, presented a situation which would reasonably likely 

result in an accident. In the event the loader collided with 

another vehicle, or struck someone walking along the roadway, I 

believe that this would result in injuries of a reasonable 

serious nature. Although there is no evidence that the loader 

brakes were tested on a level portion of the roadway, and the 

parties offered no evidence to establish whether the loader was 

capable of stopping on a level area if the brakes were to be 

applied, I nonetheless conclude and find that a loader with 

brakes which were incapable of holding or stopping the machine on 

the 2-percent grade.where they were tested presented a hazard to 

vehicles and pedestrians using the roadway. The roadway was at 

the bottom of the ramp, and the loader would be backed down the 

ramp after dumping its load (Tr. 11, 15). 

Although there is a dispute as to whether or not the inspector permitted the loader to be placed back into service after he 

issued the order-citation, the fact remains that at the time the 

inspector observed the loader in operation and had the brakes 

89 
tested, they would not hold or stop the machine. Under all of 

the aforementioned circumstances, I conclude and find that the 

inspector's significant and substantial (S&S) finding is supportable, and IT IS AFFIRMED. 

History of Prior Violations 

The petitioner did not produce a computer print-out reflecting the respondent's history of prior paid assessed violations. 

However, petitioner's counsel stated that according to the 

information he has received the respondent was assessed for 26 

violations in 1987, two in 1988, and three in 1989. Counsel 

confirmed that this information may apply to the respondent as 

the corporate operate and that the violations may apply to all of 

the plants which it operates rather than the particular plant in 

question. He further confirmed that he had no information to 

indicate that the respondent had been previously cited for a 

violation of the same mandatory standard cited in this case (Tr. 

50-53) • 

The respondent's representative confirmed that the plant in 

question has been inspected two or three times annually by MSHA, 

and he believed that two or three citations may have been issued 

during each of these inspections. He agreed that the 22 violations for the past 24-months noted as part of MSHA's proposed 

assessment information found on MSHA Form 1000-179, which is part 

of the pleadings, appears to be accurate. Under all of these 

circumstances, and in the absence of any further evidence of 

record, I cannot conclude that the respondent's compliance record 

warrants any additional increase in the amount of the civil 

penalty which I have assessed for the violation in question. 

Size of Business and Effect of civil Penalty Assessment on the 

Respondent 1 s Ability to Continue in Business 

I conclude and find that the respondent is a small-to-medium 

size mine operator, and that the civil penalty assessment which I 

have made for the violation is appropriate. In the absence of 

any evidence to the contrary, I cannot conclude that the payment 

of the assessment will adversely affect the respondent's ability 

to continue in business. 

Good Faith Compliance 

The respondent's representative stated that the respondent 

has always timely corrected any cited conditions and has in the 

past paid the civil penalty assessments for those violations 

which is has not contested. The parties are in agreement that 

the cited loader brake conditions were corrected and that the 

90 
respondent abated the violation in good faith (Tr. 53-55). I 

conclude and find that this was the case, and I have taken this 

into consideration. 

Gravity 

Based on the credible testimony of Inspector Adams with 

~espect to the hazards associated with the violation, I conclude 

and find that it was serious. · 

Negligence 

Although plant superintendent Scott acknowledged that he was 

aware of the cited loader brake condition, the evidence establishes that he at least made an effort to check the condition by 

taking the loader to the garage to bleed the moisture out of the 

air pressure system and to allow the loader time to warm up. 

Although Mr. Scott's assertion that the inspector allowed the 

loader to be placed back into service after it was taken to the 

garage on the day of the inspection was disputed by the inspector, the fact remains that thg loader brakes would not hold when 

the inspector had it tested and Mr. Scott was not with the 

inspector at that time. Under the circumstances, I agree with 

the inspector's moderate negligence finding and it is affirmed. 

Civil Penalty Asse~sment 

In its answer, the respondent took issue with MSHA's proposed "special assessment," including the "narrative findings" 

supporting the proposed assessment. However it is clear that I 

am not bound by MSHA 1 s proposed civil penalty assessment, and 

that once a penalty is contested and Commission jurisdiction 

attached, a judge's determination of the amount of the penalty is 

de novo, based upon the statutory penalty criteria and the record 

developed in the adjudication of the case. See: Sellersburg 

Stone Company 1 5 FMSHRC 287 (March 1983) 1 aff'd, 736 F.2d 1147 

(7th Cir" 1984); United States Steel Mining Co., Inc., 6 FMSHRC 

1148 (May 1984)" 

On the basis of the foregoing findings and conclusions, and 

taking into account the six statutory civil penalty assessment 

criteria found in section llO(i) of the Act, I conclude and find 

that a civil penalty assessment in the amount of $150 is reasonable and appropriate for the violation which I have affirmed. 

ORDER 

The respondent IS ORDERED to pay a civil penalty assessment 

of $150 for the violation in question, and payment is to be made 

91 
to MSHA within thirty (30} days of the date of this decision and 

order. Upon receipt of payment, this matter is dismissed. 

b.~~ Administrative Law Judge 

Distribution: 

William G. Staton, Esq., Office of the Solicitor, U.S. Department 

of Labor, 201 Varick Street, Room 707, New York, NY 10014 

(Certified Mail) 

Mr. David E. Hergert, Vice President, Production, Whibco, Inc., 

P.O. Box 259, Leesburg, NJ 08327 (Certified Mail) 

/fb 

92 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

January 15, 1991 

PRESTIGE COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

CONTEST PROCEEDINGS 

Docket No. KENT 91-25-R 

Citation No. 3416484; 8/29/90 

Docket No. KENT 91-26-R 

Order No. 3416485; 8/29/90 

Docket No. KENT 91-27-R 

order No. 3416486: 8/29/90 

Mine ID 15-16582 

- ORDER OF DISMISSAL 

Before: Judge Merlin 

These cases are notices of contest filed by the operator 

seeking to challenge citations issued by an inspector of the Mine 

Safety and Health Administration under section 104(a) of the 

Federal Mine Safety and Health Act of 1977. 

The citations were issued on August 29, 1990. The notices 

were not received by the Commission until October 19, 1990. 

Section 105(d) of the Mine Act, 30 U.S.C. § 815(d), provides 

relevant part: 

If u within 30 days of receipt thereof, an operator 

of a coal or other mine notifies the Secretary that he 

intends to contest the issuance or modification of an 

order issued under section 104, or citation or a notification of proposed assessment of a penalty issued 

under subsection (a) or (b) of this section, or the 

reasonableness of the length of abatement time fixed in 

a citation or modification thereof issued under section 

104 * * * the Secretary shall immediately advise the 

commission of such notification and the Commission 

shall afford an opportunity for a hearing * * * * 

On November 9, 1990, the Solicitor filed her answer to the .. notices of contest in which she stated that the citations were 

properly issued and therefore the contests should be denied. The 

93 
Solicitor's answer did not raise the issue of timeliness. 1 

Thereafter, on November 20, 1990, an order was issued pointing 

out the time interval between the issuance of the citations and 

the filing of the notices. In addition, the order noted the 

general view that the 30 day filing requirement of section 105(d) 

is jurisdictional and that unless the contest is brought within 

the prescribed time, it must be dismissed. In light of these 

circumstances, the parties were ordered to submit memoranda 

setting forth their positions with respect to the timeliness of 

the operator's pleadings which they have now done. 

The Solicitor's memorandum concurs with the November 20th 

order regarding the date the citations were issued and date the 

contests were served on the Commission. The Solicitor argues 

that the notices of contest were due on October 3, 1990. 2 According to the Solicitor, the cases cited in the November 20, 

1990, order regarding timeliness supports the conclusion that the 

30-day requirement for contesting the issuance of a citation or 

order is jurisdictional. Therefore, the Solicitor moves that 

these cases be dismissed for the operator's failure to serve the 

notices within the statut6ri~y prescribed time. 

The operator asserts that the notice of contests were not 

filed earlier because it had sought to exhaust other administrative remedies provided by the Mine Act, referring to its attendance at a conference with MSHA on September 28, 1990. The 

operator notes that the contests were filed within 30 days of 

that conference. In the alternative, the operator argues that 

since the three citations were subsequently modified by MSHA on 

November 13, 1990, in a manner favorable to it, MSHA has acquiesced in the timeliness of its filing. 

As stated in the November 20th order, a long line of decisions going back to the Interior Board of Mine Operation Appeals 

held that cases contesting the issuance of a citation must be 

In her memorandum filed in response to the November 20 

order, the Solicitor defends this oversight by highlighting the 

short time frame in which she has to answer the contests. While 

I understand that the short period does not allow an in-depth 

review of the citations, it would appear rudimentary that the 

timeliness of the contests would be checked and that it would be 

possible to alert this matter to the presiding judge. 

2 The Solicitor's reference to 29 C.F.R. 2700.S(b) is 

erroneous since that provision applies to responsive pleadings. 

In her answer the Solicitor had used the date October 15, 1990, 

as the date of service, referring to 29 C.F.R. § 2700.7(b), which 

provides that service is complete upon mailing. Whether the 

filing date is October 15 or October 19 has no effect on the 

result. 

94 
brought within the statutory prescribed 30 days or be dismissed. 

Freeman coal Mining Corporation, 1 MSHC 1001 (1970) ; Consolidation Coal Co., 1 MSHC 1029 (1972); Island Creek Coal Co. v. Mine 

Workers, 1 MSHC 1029 (1979); aff'd by the Commission, 1 FMSHRC 

989 (August 1979); Amax Chemical Corp., 4 FMSHRC 1161 (June 

1982); Rivco Dredging Corp., 10 FMSHRC 889 (July 1988); See 

Also, Peabody Coal Co., 11 FMSHRC, 2068 (October 1989); Big Horn 

Calcium Company, 12 FMSHRC 463 (March 1990); Energy Fuels Mining 

Company, 12 FMSHRC 1484 (July 1990). The time limitation for 

contesting issuance of citations must therefore, be viewed as 

jurisdictional. 

The notices of contest in these cases were filed over 50 

days after the citations were issued which was 20 days late. The 

Mine Act and applicable regulations afford no basis to excuse 

tardiness because the operator mistakenly believes it can pursue 

avenues of relief with MSHA before coming to this separate and 

independent Commission to challenge a citation. The Act clearly 

provides otherwise. Nor does relevant case law suggest support 

for any such approach. Finally, the subsequent modifications of 

the citations cannot affect the operator's duty to file its 

contests within the"prescribed time. Accordingly, the operator's 

arguments cannot be accepted. 

The operator should be aware, however, that the issues it 

seeks to raise here may be litigated in the penalty suit when 

MSHA proposes a monetary assessment. 

In light of the foregoing, it is.ORDERED that these cases 

be, and are hereby, DISMISSED. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Richard Eo Peyton, Esq. 1 Frymire, Evans, Peyton, Teauge & 

Cartwright, Po O. Box 695, One South Main Street, Madisonville, 

KY 42431 (Certified Mail) 

Anne Fo Knauff, Esq., Office of the Solicitor, U. S. Department 

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

37215 (Certified Mail) 

95 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

January 16, 1991 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

ROBERT J. RICHARDSON, 

Complainant 

v. 

J. S. REDPATH CORPORATION, 

Respondent _ 

. 

. DISCRIMINATION PROCEEDING 

Docket No. WEST 91-104-DM 

Star Point No. 2 Mine 

DECISION APPROVING SETTLEMENT 

ORDER TO PAY 

ORDER OF DISMISSAL 

Before: Judge Merlin 

On December 31, 1990, the Solicitor filed a stipulation of 

settlement, consent and motion in the above-captioned discrimination case. The stipulation sets forth the proposed agreement as 

follows: 

The Respondent has authorized the Secretary to 

represent the following agreements and stipulations to 

the Court~ 

1. Respondent hereby agrees to compensate Robert 

Richardson in the amount of $480.00 for loss of back 

wages and other expenses resulting from his discharge. 

2. Robert Richardson 1 s employment record will be 

expunged of any adverse references relating to this 

matter. 

3. The Secretary hereby agrees to withdraw his request for a penalty in this case, based upon the 

Respondent 1 s good faith and willingness to resolve this 

matter. 

4. Complainant and the Secretary hereby accept the 

above stipulations as full settlement of the case filed 

herein. 

96 
The parties jointly move for an order requiring 

respondent within 30 days to (1) tender to Robert 

Richardson the sum of $480.00, and (2) expunge from 

Robert Richardson's employment records any adverse 

reference to this matter 

Robert Richardson has been fully paid in this 

matter and has authorized the Secretary to represent to 

the court that he consents to the settlement of his 

discrimination claim against respondent in accordance 

with settlement (sic) agreement contained in the above 

stipulation. 

Each party hereby agrees to bear its own fees and 

other expenses incurred by such party in connection 

with any stage of this proceeding. 

In light of the foregoing, I find the settlement appropriate 

under the circumstances. 

Accordingly, it is ORDERED that the proposed settlement be 

APPROVED and the operator wit~in 30 days of the date of this 

order EXPUNGE from Robert Richardson's employment records any 

adverse reference to' this matter. The operator having paid, it 

is further ORDERED that this case be DISMISSED. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Margaret Ao Miller, Esq., Office of the Solicitor 1 U. s. Department of Labor 0 1585 Federal Office Building 1 1961 Stout Street, 

Denver 0 CO 80294 (Certified Mail) 

Carol H. Sapakie, Esq., Jennings, Strauss & Salmon, One Renaissance Square, Two North Central, Phoenix, AZ 85004-2393 (Certified Mail) 

J" So Redpath Corporation, P. o. Drawer PMC, Price, UT 84501 

(Certified Mail) 

Redpath Engineering, 1855 W. Baseline, Suite 240, Mesa, AZ 85202 

(Certified Mail) 

/gl 

97 
FEDERAL· MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 16 \99\ 

BEAVER CREEK COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BEAVER CREEK COAL COMPANY, 

Respondent 

CONTEST PROCEEDINGS 

: Docket No. WEST 89-396-R 

Citation No. 3411573; 7/13/89 

Docket No. WEST 89-408-R 

Citation No. 3411781; 8/3/89 

Docket No. WEST 89-410-R 

Citation No. 3411783; 8/3/89 

Trail Mt. No. 9 Mine 

Mine ID 42-01211 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 90-40 

A.C. No. 42-01211-03562 

Docket No. WEST 90-103 

A.C. No. 42-01211-03564 

DECISION 

2'!..ppearances; David M. Arnolds, Esq., Atlantic Richfield 

Company, Denver, Colorado, for the 

Contestant/Respondent; 

Before~ 

Robert J. Murphy, Esq., Office of the Solicitor, 

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

the Respondent/Petitioner. 

Judge Maurer 

STATEMENT OF THE CASE 

These consolidated cases are before me under section 105(d) 

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

§ 801 et seq., the "Act" to challenge four citations issued by 

the Secretary of Labor (Secretary) against the Beaver Creek Coal 

Company (Beaver Creek) and for review of the civil penalties 

proposed by the Secretary. 

98 
Prehearing th~ Secretary filed a Motion to Approve Partial 

Settlement and Order Payment. The motion requested approval to 

vacate Citation No. 3411573 contained in Docket No. 

WEST 89-396-R, and also requested approval to redesignate 

section 104{d) (1) Citation No. ~411783 as a section 104(a), nonsignificant & substantial violation and to reduce the proposed 

penalty from $1100 to $200. I granted the motion on the record 

(Tr. 5). 

Therefore, there remained for trial two section 104(a) 

citati0ns: Citation No. 3411781, contested in Docket No. 

WEST 89-408-R and assessed in Docket No. WEST 90-40 for a $213 

penalty, and Citation No. 3412086, an uncontested citation 

assessed at $259 in Docket No. WEST 90-103. Pursuant to notice, 

these cases were tried before me in Provo, Utah on June 20, 1990. 

Both parties have filed post-hearing proposed findings of fact, 

conclusions of law, and briefs which have been considered by me 

in the course of making this decision. 

The general issues before me concerning each of the 

remaining citations and its accompanying civil penalty petition 

are whether the citations were properly issued, whether there was 

a violation of the cited standard, and, if so, whether that 

violation was "significant and substantial" as well as the 

appropriate civil penalty to be assessed for the violation should 

any be found. Included as part and parcel of any determination 

of these questions is whether or not the inspector who issued the 

citations properly collected the dust samples which allegedly 

substantiate the violations. 

STIPULATIONS 

The parties stipulated to the following (Joint Exhibit 

No o 1) ~ 

lo Beaver· Creek Coal Company is engaged in mining and 

selling of coal in the United statesp and its mining operations 

affect interstate commerce. 

2" Beaver Creek Coal Company is the owner and operator of 

Trail Mto No. 9 Mine, MSHA I.D. No. 42-01211. 

3. Beaver Creek Coal Company 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 citations were properly served by duly 

authorized representatives of the Secretary upon an agent of 

respondent Beaver Creek Coal Company on the dates and places 

99 
stated therein, and may be admitted into evidence for the purpose 

of establishing their issuance, and not for the truthfulness or 

relevancy of any statements asserted therein. 

6. The exhibits to be offered by respondent Beaver Creek 

Coal Company and the Secretary are stipulated to be authentic but 

no stipulation is made as to their relevance or the truth of the 

matters asserted therein. 

7. The proposed penalties will not affect Bea~er creek Coal 

Company's ability to continue business. 

a. The operator demonstrated good faith in abating the 

violation. 

9. Beaver Creek Coal Company is a medium mine operator with 

244,097 tons of production in 1988. 

10. The certified copy of the MSHA Assessed Violations 

History accurately reflects the history of this mine for the two 

years prior to the date of the citation. 

THE APPLICABLE STANDARD 

Both citations herein involved were issued by MSHA for 

alleged violations of 30 C.F.R. § 75.403, which states in 

pertinent part: 

Where rock dust is required to be applied, it shall be 

distributed upon the top, floor and sides of all 

underground areas of a coal mine and maintained in such 

quantities that the incombustible content of the 

combined coal dust, rock dust, and other dust shall be 

not less than 65 per centum, but the incombustible 

content in the return air courses shall be no less than 

80 per centumo 

I. Docket No. West 89-408-R, and WEST 90-40; citation No. 3411781 

Citation No. 3411781, issued pursuant to section 104(a) of 

the Act charges as follows: 

Rock dust was not applied to the ribs and roof and 

maintained in such quantities that the incombustible content 

shall not be less than 65 per centum in the No. 4 entry of 

the main North working section. The effected area was in 

the No. 3 entry from 40 1 outby the face to the intersection 

a distance of about 65 1 • They were roof bolting inby the 

affected area. A sample was taken to verify the citation. 

The ribs slough heavily in this section. 

100 
FINDINGS OF FACT 

1. On August 3, 1989, Inspector Fred L. Marietti, 

accompanied by his Supervisor, William E. Poncerhoff, arrived at 

Beaver Creek's Trail Mountain No. 9 Mine to perform a regular 

triple-A inspection. Marietti and Poncerhoff were joined by Gary 

Curtis, the Maintenance Supervisor at the mine, and they 

proceeded underground. They were joined underground by Dan Lucy, 

the Safety Director for the mine, and Dan Meadors (misspelled 

"Metters" in the transcript). Mr. Meadors was the Operations 

Manager at the mine at the time. 

2. The inspection party proceeded to the No. 3 or 4 entry 

(it doesn't matter which) where Inspector Marietti described the 

condition of the entry .as black from 40 feet outby the face to 

the intersection, a distance of about 65 feet. The ribs and the 

roof were black. He opined that just by visual observation, he 

could tell that there was not a sufficient amount of rock dust 

applied to maintain the required 65 percent incombustible 

content. 

3. The inspect~r then proceeded to take a sample to verify 

the violation he felt existed. He used a dust kit--a brush, a 

pan and a sieve screen. He went across the right rib and then 

the left rib with his brush and pan, collecting dust. Then 

because Mr. Meadors was commenting to him about a "band sample" 

being more representative, he also went across the roof with his 

brush and pan. He did not, however, collect any material from 

the floor in this area because the floor was wet and he was 

satisfied that the dampness itself would suffice to make that 

material incombustible. 

4. The dust sample collected by the inspector was 

subsequently analyzed by the MSHA laboratory at Mt. Hope, West 

Virginia. The analysis showed that only 13% of the sample was 

incombustible. Therefore, 87% of the sample was combustible. 

DISCUSSION WITH FURTHER FINDINGS AND CONCLUSIONS 

The inspector went on to opine that this presented a very 

dangerous situation. In the event that you had an ignition, 

there was a reasonable likelihood that there would be fatal 

injuries to miners working on the section. He went on to state 

that there were numerous ignition sources present in this 

particular area that could instigate an explosion and/or a fire. 

Mr. Curtis testified that this entry had previously been 

rock dusted and the inspector conceded that it had been at some 

prior time, but that it was not an adequate amount of rock dust 

at the time it was cited. The inspector also stated that the 

ribs slough heavily in this area and therefore heavier and more 

frequent applications of rock dust are required to maintain the 

101 
65 percent incombustible content in the intakes and 80 percent in 

the returns. 

Both Curtis and Lucy opined that the entry was adequately 

rock dusted. Obviously, this testimony is diametrically 

opposed to Inspector Marietti's. In order to reconcile this 

difference of opinion or choose between the two, it is necessary 

to examine the entire record, including the method the inspector 

used to obtain the dust sample that corroborates his opinion. 

Mr. Curtis did not observe the inspector take the sample. 

Mr. Lucy did. He testified that Inspector Marietti sampled only 

one spot on the right rib of about 1 foot by 1-1/2 feet, where a 

piece of coal had fallen out and that he had dug his pan into the 

sloughage on the floor, picking up coal fines. Lucy testified 

that he was present the entire time and that the inspector did 

not sample the remainder of the right rib or the roof and left 

rib as he claims to. 

I believe and have found as a fact that the inspector 

obtained the sample as he clq~med (Finding of Fact No. 3). The 

inspector is a very experienced and well-trained coal mine safety 

and health inspector who I felt testified in a truthful and 

forthright manner. Furthermore, his field notes, made 

contemporaneously with the incident, as well as the form he used 

to submit the dust sample to the Mt. Hope Laboratory state that 

the sample was taken from the roof and both ribs. Mr. Lucy, on 

the other hand, has a mere three months of underground coal 

mining experience, and I therefore assign little relative weight 

to his descriptions and opinions concerning the adequacy of the 

rockdusting or the dust sampling. 

The senior company representative on the scene at the time, 

Mro Meadors, had asked the inspector to take a "band sample" to 

include the roof u the floor and both ribs. The company felt that 

this would be a more representative sample of the area. They 

feel that the 65% criteria .applies on an averaging basis to the 

roof, floor and ribs. The inspector declined to do so because 

the floor was wet. 

There is some precedent for their request. The MSHA 

Underground Manual, which was published on March 9, 1978, 

considered the "band sample" to be the most accurate method of 

measuring incombustible content. However, this manual was 

rescinded and replaced by the MSHA Program Policy Manual in 

December 1988. The new manual provides no guidance on dust 

sampling methodology. 

Another MSHA publication, however, entitled The Explosion 

Hazard in Mining, published in 1981, contains the following 

excerpt at page 50 (Gov't Exhibit No. 5): 

102 
Band sampling, or the combining of the mine dust into a 

single sample from collection from the floor, ribs, and 

roof (perimeter) was adopted in 1952 by the Bureau of 

Mines. Band sampling .reduces the time required for 

collection, quartering, packing, handling, and chemical 

analysis, thus promoting the possibility of sampling in 

more locations in mines. In most mines the quantity of 

dust on the floor is many times greater than that on 

the ribs and roof. conseguently, band samples tend to 

represent the dust on the floor. Thus, band sampling 

should only be used where it is obvious from visual 

examination that the rib-roof surf aces are adeguately 

rock-dusted. Dust on all mine surfaces--namely, the 

ribs, roof, and floor--should be neutralized by rock 

dust. Where an obvious deficiency in rock dust exists 

on one of these surfaces separate samples should be 

taken. (Emphasis Added). 

In my judgment, whichever methodology is the more correct, 

or the "best", neither is proscribed for use. The inspector is 

free to use his judgment as to which technique to employ in the 

particular circumsta11ces. · 

An administrative appellate decision with respect to this 

issue can be found at North American Coal Corporation, 1 MSHC 

1130, 1134 (1974). It is~ decision of the Interior Board of 

Mine Operations Appeals, the predecessor to the Federal Mine 

Safety and Health Review Commission in which the Board held: 

With respect to Order 3 TJD, August 16, 1971; 1 JF, 

September 3, 1971, and 1 TJD, September 16, 1971, North 

American challenges the findings of violation on the 

ground that the samples relied on reflected only the 

incombustible content of the floor. North American 

urges that the samples should have reflected the 

combined incombustible content of the roof and ribs, as 

well as the floor, at the cited locations. 

Section 304(d) 1 was designed to prevent the occurrence 

of conditions which could lead to a fire, or still 

worse, an explosiono The floor samples in the instant 

case, falling as they did within the proscribed area 

indicated a dangerous condition because a spark might 

very well have led to at least a fire. We hold 

therefore that a floor sample standing alone may be the 

basis of a finding that a section 304(d) violation has 

occurred. Accordingly, we conclude that the Judge did 

1 Section 304(d) of the 1969 Coal Act is identical in language 

to 30 C.F.R. §75.403. 

103 
not err by determining that these alleged violations 

occurred. 

I am satisfied with the inspector's explanation of why he 

took no sample from the wet floor and his method of obtaining, 

handling and packaging the sample he did take fo.r shipment to the 

laboratory. During cross-examination (Tr. 68), the inspector was 

asked if every spot in the mine more than 40 feet from the face 

must be rockdusted in accordance with 30 C.F.R. § 75.403. He 

replied that: 

I would say that no inspector, including myself, is 

going to go throughout the mine and look where there 

has been a little sloughage on a rib or a spot on the 

floor that don't have rock dust and issue you a 

violation. It would be a considerable area involved. 

Given the fact that I find the sample was properly obtained, 

and that analysis of it demonstrated that only 13% of the sample 

was incombustible, I must disagree with Curtis and Lucy that the 

affected area was adequately rockdusted. Rather, I make that 

credibility choice in favor of the Secretary since the 

inspector's visual observation and evaluation was subsequently 

verified by laboratory analysis. Accordingly, I find that a 

violation of 30 C.F.R. § 75.403 existed as the inspector cited 

it. Furthermore, I also believe the violation was significant 

and substantial ( S.&S) . 

A "significant and substantial" violation is described in 

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

as could significantly and substantially contribute to the cause 

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

30 c.F.R. § 814(d) (1). A violation is properly designated 

significant and substantial "if, based upon the particular facts 

surrounding the violation there exists a reasonable likelihood 

that the hazard contributed to will result in an injury or 

lness of a reasonably serious nature. 11 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 11 as follows: 

In order to establish that a violation of a 

mandatory safety standard is significant and 

substantial under National Gypsum the Secretary of 

Labor must prove: (1) the underlying violation of a 

mandatory safety standard; (2) a discrete safety 

hazard--that is, a measure of danger to safetycontributed 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 

104 
injury in question will be of a reasonably serious 

nature. 

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

1129, the Commission stated fur~her as follows: 

We have explained further that the third element 

of the Mathies formula "requires that the Secretary 

establish a reasonable likelihood that the hazard 

contributed to will result in an event in which there 

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

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

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

is the contribution of a violation to the cause and 

effect of a hazard that must be significant and 

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

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

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

The 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). 

Coal dust has long been recognized as an active cause of 

coal mine explosions and its suppression is of primary concern to 

those involved in the profession of mine safety. The principal 

suppression measure utilized is the dilution of coal dust with 

calcium carbonate, better known as rock dust. In underground 

coal mining operations, rock dust must be applied to all areas 

within 40 feet of a working face unless those areas are 

inaccessibleu unsafe to enter, too wet or too hi~h in 

incombustible content to propagate an explosion. 

The danger presented by these combustible dust accumulations 

is a mine fire or a mine explosion. Furthermore, where you have 

accumulations of combustible materials, there is always the 

possibility that you will have a methane ignition in the_face 

area and these accumulations would cause the ignition to probably 

spread or propagate into other areas of the mine, depending how 

fine, dry and pulverized the accumulations are. There was a lot 

of electrical equipment on the section at the time as well. 

Serious injuries were reasonably likely to occur to the section 

crew such as smoke inhalation in the event of a mine fire, which 

occurrence I find to be reasonably likely. If a fire were to 

loccur, it would be reasonably likely that the miners would be 

exposed to smoke and fire hazards and suffer disabling injuries 

2 30 C.F.R. § 75.402 

105 
of a reasonably serious nature. The focus is clearly and 

properly on the potential of the risk involved and I find that 

there was plenty of potential for a mine fire here given the 

conditions the inspector found. All the ingredients were 

present: accumulations of cert~fiably combustible materials and 

nearby ignition sources. If you had a methane ignition which 

propagated into a mine dust explosion, then it could be fatal. 

Therefore, I concur with the inspector that the violation was 

"significant and substantial", and serious. 

He also marked the negligence as moderate. I concur that 

the appropriate level of negligence established by inference in 

the record is ordinary or moderate negligence. 

Considering the criteria in section llO(i) of the Act, I 

conclude that an appropriate civil penalty for the violation is 

$213, as originally proposed by the Secretary. 

II. Docket No. WEST 90-103; Citation No. 3412086 

Citation No. 341_2086, issued on October 16, 1989, pursuant 

to section 104(a) of the Act, charges as follows: 

The analytical results of seven spot dust samples 

collected on 7-31-89 by a MSHA inspector showed that 

all seven of the samples fall below the required amount 

of incombustible content. A copy of the dust sampling 

lab report is attached to this citation. 

FINDINGS OF FACT 

1. Citation No. 3412086 was issued by Inspector Robert 

Jones on October 16 1 1989, based on the lab analysis of dust 

samples taken by Inspector Marietti on July 31, 1989. 

2o On July 31, 1989 1 Inspector Marrieti went underground 

with Mr. Curtis to the Second Left Section Return. He took seven 

spot samples at different locations in the return in what he 

considered to be a representative area. He performed the 

sampling function generally as previously described in Finding of 

Fact No. 3 in the previous section utilizing his rock dust kit. 

3. Mr. Curtis objected to this spot sampling and asked the 

inspector to take a "band sample" in each of those spots. The 

inspector refused because he believes that all surfaces of the 

mine, roof, ribs and floor must have the required amount of 

incombustible content. 

4. The Dust Sampling Lab Report from Mt. Hope, West 

Virginia, indicates that four of the samples were taken solely 

from the right rib; one sample was taken from the roof and one 

rib and the other two were taken from both ribs. The amount of 

106 
incombustible material in the seven samples ranged from a low of 

38% to a high of 74.6%. Inspector Marietti admitted on crossexamination that if he had taken a "band sample" of the roof, 

both ribs and the floor at each of those spots, the samples would 

possibly have exceeded the required 80% incombustibility. 

DISCUSSION WITH FURTHER FINDINGS AND CONCLUSIONS 

The inspector also believed this to be a S&S violation. It 

presented a dangerous situation because of the same reasoning 

that applied in the previous section of this decision--only more 

so. This violation occurred in a return entry which is carrying 

dust and liberated methane gas from the face area into the return 

entry during the mining cycle. 

Rather than repeat myself, for the same reasons I gave in 

the earlier part of this decision, I find the samples were 

properly obtained within the inspector's discretion to do so and 

do substantiate an S&S violation of 30 C.F.R. § 75.403. I also 

once again find a moderate degree of negligence on the part of 

the operator and considering the statutory criteria in section 

llO(i) of the Act find and conclude that the appropriate civil 

penalty for the violation is $259, as originally proposed by the 

Secretary. 

To reiterate the major point of these cases, I do not 

believe that the operator can impose a requirement of "band 

sampling" on the inspector as a precondition to his citing a 

violation of 30 C.F.R. § 75.403. The Interior Board of Mine 

Operations Appeals has so held and the Commission has not chosen 

to reverse that precedent to date. 

ORDER 

Citation Noo 3411573 IS VACATED" 

2o Section 104(d) (1) Citation Noo 3411783 IS 

MODIFIED to a non-s&s section 104(a) citation 

and AFFIRMED. 

3a Citation Nos. 3411781 and 3412086 ARE 

AFFIRMED. 

4. Beaver Creek Coal Company is ordered to pay 

the sum of $672 within 30 days of the date of 

this decision as a civil penalty for the 

violations found herein. 

·----vltlawwv" 

urer 

ative Law Judge 

107 
Distribution: 

David M. Arnolds, Esq., Atlanta Richfield Company, 555 

Seventeenth St., Denver, CO 80202 (Certified Mail) 

Robert J. Murphy, Esq., Office of the Solicitor, U.S. Department 

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

Denver, co 80294 (Certified Mail) 

/ml 

108 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

ENERGY FUELS COAL, INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HE~~TH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ENERGY FUELS COAL, INC., 

Respondent 

DENVER, CO 80204 

JAN 171991 

. ..... • 

CONTEST PROCEEDINGS 

Docket No. WEST 89-266-R 

Citation No. 2873916; 4-17-89 

Docket No. WEST 89-280-R 

Citation No. 2875275; 4-06-89 

Docket No. WEST 89-281-R 

Citation No. 2875274; 4-06-89 

Southfield Mine 

Mine I.D. 05-03455 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 89-356 

A.C. No. 05-03455-03568 

Southfield Mine 

DECISION 

ORDER TO PAY 

DISMISSAL OF CONTEST CASES 

Appearances~ Phillip D. Barber, Esq., John S. Cowan, Esq.g 

WELBORNu DUFFORD 8 BROWN & TOOLEY, Denver, Colorado, 

for Contestant/Respondent; 

Margaret A. Miller,, Esq. 8 Office of the Solicitor, 

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

for Respondent/Petitioner. 

Before~ Judge Cetti 

The Secretary of Labor, on behalf of the Mine Safety and 

Health Administration (MSHA), charges Respondent with violating 

safety regulations promulgated under the Federal Mine Safety and 

Health Actu 30 u.s.c. § 801, et~ (the "Act"). 

After notice to the parties, a hearing scheduled for three 

days commenced in Denver, Colorado, on December 18, 1990. At the 

hearing, the parties announced they had reached an amicable settlement of all issues not previously settled in the eight remaining citations in Civil Penalty Docket No. 89-356. ~ 

1/ Two of the original 10 citations in this penalty docket, 

Citation Nos. 2840175 and Citation No. 2873917 were vacated 

by an earlier order. 

109 
Energy Fuels agrees to pay in full MSHA's initial penalty 

assessment for the five of the citations in Civil Penalty Docket 

No. WES'r 89-356, as reflected in the summary shown below. 

Citation Proposed Agreed 

Number Penalty DiSEOSition 

2874086 $68.00 $68.00 

2874087 $85.00 $85.00 

2864088 $68.00 $68.00 

2864090 $68.00 $68.00 

2873916 !?68.00 $68.00 

Pursuant to this settlement, MSHA seeks modification of 

Citation Nos. 2874091, 2815274, and 2875275 to delete the "Significant and Substantial" designations thereon, and the parties 

agree that the penalty should be reduced to $50.00 each for 

Citation Nos. 2874091 and 2875274, and reduced to $61.00 for 

Citation No. 2875275. Thus the total penalty for the eight 

citations is $518.00. The deletion of the 11 Significant and 

Substantial" designat;.ion was'based on insufficient evidence. 

In support of their motion, the parties have further submitted information relating to the statutory criteria for assessing 

civil penalties in llO(i) of the Act. 

I have reviewed the proposed settlement and I find it is 

reasonable and in the public interest. It should be and is 

APPROVED. 

ORDER 

lo Citation Noso 2875274, 2875275, and 2874091 are MODIFIED 

to delete the designation "Significant and Substantial" and, as 

so modified, are AFFIRMEDo 

2o Citation Nos. 2874086, 2874087, 2874088, 2874090, and 

2873916 are AFFIRMED. 

3o Penalties are ASSESSED in the amounts agreed to by the 

parties, as shown above, totaling $518.00. 

4. Contest Proceeding Docket Nos. WEST 89-226-R, WEST 

89-280-Ru and WEST 89-281-R are DISMISSED. 

110 
5. Contestant/Respondent is ORDERED to pay to the Secretary 

of Labor the sum of $518.00 within 30 days of the date of this 

decision and, upon payment, Civil Penalty Proceeding Docket WEST 

89-356 is DISMISSED. 

Distribution: 

August F. Cetti 

Administrative Law Judge 

Phillip D. Barber, Esq., John S. Cowan, Esq., WELBORN, DUFFORD, 

BROWN & TOOLEY, P.C., 1700 Broadway, Suite 1700, Denver, CO 

80290-1701 (Certified Mail) 

Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of LaborQ 1585 Federal Office Building, 1961 Stout Street, 

Denverr CO 80294 (Certified Mail) 

/ek. 

111 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER. CO 80204 

JAN 1 7 l99l 

ENERGY FUELS COAL, INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINIS'rRATION ( MSHA), 

Respondent 

SECRETARY OF LABORQ 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Vo 

ENERGY FUELS COAL, INC.u 

Respondent 

. . 

CONTEST PROCEEDINGS 

Docket No. WEST 89-283-R 

Citation No. 3298277; 5-11-89 

Docket No. WEST 89-284-R 

Citation No. 3298276; 5-11-89 

Docket No. WEST 89-285-R 

Citation No. 3298275; 5-11-89 

Docket No. WEST 89-286-R 

Citation No. 3298274; 5-11-89 

Docket No. WEST 89-287-R 

: Citation No. 3298273; 5-11-89 

Docket No. WEST 89-305-R 

Citation No. 2875247; 5-11-89 

Docket No. WEST 89-309-R 

Order No. 2875243; 5-11-89 

: Docket No. WEST 89-311-R 

Citation No. 2875241; 5-11-89 

Southfield Mine 

Mine I.Do 05-03455 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 89-449 

A.C. No. 05-03455-03569 

Southfield Mine 

DECISION and ORDER TO PAY 

and 

DISMISSAL OF CONTEST PROCEEDINGS 

Appearances: Phillip D. Barber, Esq., Welborn, Dufford, Brown & 

Tooley, Denver, Colorado, 

for Contestant/Respondent; 

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

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

for Petitioner/Respondent. 

Before: Judge Cetti 

112 
The Secretary of Labor, on behalf of the Mine Safety and 

Health Administration CMSH..~), charges respondent with violating 

safety regulations promulgated under the Federal Mine Safety and 

Health Act, 30 u.s.c. § 801, et~ (the "Act"). 

After notice to the parties, a hearing commenced in Denver, 

Colorado, on December 18, 1990. 

At the hearing, the parties announced they had reached an 

amicable settlement of all issues not previously settled. 

The citations, the original assessments, and the proposed 

disposition of all matters in controversy are as follows: 

Citation Contest Case 

Number Number 

3298277 WEST 89-283-R 

3298276 WEST 89-284-R 

2875247 WEST 89-30-S-R 

2875243 wEST 89-309-R 

2875241 WEST 89-311-R 

I 

Proposed 

Penalty 

$170 

$170 

$ 79 

$ 79 

$ 79 

Modification 

& Disposition 

Non S&S 

Vacated 

Non S&S 

Non S&S 

$170 

$ 50 

$ 79 

$ 50 

Pursuant to their settlement agreement, the Secretary moves 

to amend Citation Nos. 3298277, 2875241, and 2875247 to delete 

the characterization "significant and substantial." Based on the 

fact on review, the Secretary finds the violations alleged therein do not contribute significantly and substantially to the cause 

and effect of a mine safety or health hazard and there is insufficient evidence to prove otherwise. 

The parties advise that Contest Proceeding Nos. WEST 

89-285-Ru WEST 89-286-R, and WEST 89-287-Ru involving respective 

Citation/Order Naso 3298275u 3298274u and 3298273 carry no penaltieso Energy Fuels Coalu Inc., agrees to withdraw its contest 

filed in each of these dockets. Consequently, these three contest proceedings, along with all the above-captioned contest proceedingsu are dismissed pursuant to the· proposed settlement 

agreemento 

The settlement was considered under the statutory criteria 

for civil penalties in section llOCi) of the Act. I find the 

settlement is reasonable and in the public interest. It is 

APPROVED. 

113 
ORDER 

1. Citation Nos. 3298277, 2875241, and 287247 are MODIFIED 

to delete the "Significant and Substantial" designations thereon 

and, as so modified, are AFFIRMED. 

2. Citation No. 2875243 is AFFIRMED. 

3. Citation No. 3298276 is VACATED. 

4. Contest Proceedings Docket Nos. WEST 89-283-R, WEST 

89-284-R, WEST 89-305-R, WEST 89 309-R, WEST 89-311-R, WEST 

89-285-R, WEST 89-286--R, and WEST 89-287-R are DISMISSED. 

5. The penalties agreed to by the parties in the total sum 

of $349 are here ASSESSED and Energy Fuels Coal, Inc., is ORDERED 

to pay the same to the Secretary of Labor within 30 days from the 

date of this Decision. Upon said payment, Civil Penalty Proceeding Docket No. WEST 89-449 is' DISMISSED. 

Distributiong 

~~~ t F. Cetti 

istrative Law Judge 

Phillip D. BarberQ Esq., John S. Cowan, Esq., WELBORN, DUFFORD, 

BROWN & TOOLEY, P.C., 1700 Broadway, Suite 1700, Denver, co 

80290-1701 (Certified Mail) 

Margaret Ao Milleru Esq.u Office of the Solicitor, U.S. Department of Laboru 1585 Federal Office Building, 1961 Stout Street, 

Denver 0 CO 80294 (Certified Mail) 

/ek 

114 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

JAN 17 1991 

ENERGY FUELS COAL, INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, _ 

SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ENERGY FUELS COAL, INC. 

Respondent 

. . 

. 

. 

. . 

. . 

. . 

CONTEST PROCEEDINGS 

Docket No. WEST 89-304-R 

Order No. 2930823; 5-11-89 

Docket No. WEST 89-308-R 

Order No. 2875244; 5-11-89 

Southfield Mine 

Mine I.D. 05-03455 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 89-437-A 

A.C. No. 05-03455-03574 

Southfield Mine 

DECISION 

ORDER TO PAY 

DISMISSAL 

Appearancesg Phillip D. Barberv Esg.u Johns. Cowan, Esq.u 

WELBORN, DUFFORD, BROWN & TOOLEY, Denver, Colorado, 

for Contestant/Respondent; 

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

U.S. Department of Laboru Denver, Colorado, 

for Respondent/Petitioner. 

Before~ Judge Cetti 

The Secretary of Labor, on behalf of the Mine Safety and 

Health Administration (MSHA), charges Respondent with violating 

safety regulations promulgated under the Federal Mine Safety and 

Health Act, 30 u.s.c. § 801, et~ (the "Act"). 

After notice to the parties, a hearing commenced in Denver, 

Colorado, on December 18, 1990. At the hearing, the parties 

announced they had reached an amicable settlement of all issues 

not previously settled. 

115 
Contest Proceeding No. 89-308-R 

Order No. 2875244 in this docket was issued to Respondent as 

a Section 104(d)(l) order for a violation of 30 C.F.R. § 75.400 

because loose coal and coal dust were allegedly permitted to 

accumulate under the Long Airdox coal feeder and the tail pulley 

of the 2 north belt conveyor in piles ranging from six to eight 

inches, for a distance of about six feet. 

At the hearing, the Secretary moved to amend the order to a 

104(a) citation with a $500.00 penalty, and Energy Fuels agreed 

to withdraw its objection to the amended citation and penalty. 

Contest Proceeding No. 89-304-R 

Order No. 2930823 in this docket is a Section 104Cd){l) 

Order with a proposed penalty of $850.00 in the civil penalty 

docket. This order was issued to Respondent for the alleged 

violation of 30 C.F.R. § 75.220 because the approved roof-control 

plan was not being complied with in the 1 right entry on the 2d 

south 003 section. The plan required that, when heads or roofbol t supports are dislodged or sheared off, additional supports 

are to be installed to provide adequate support of the mine roof. 

MSHA charged that additional roof supports were not installed in the roof area in the 1 right entry, where roof-bolt 

supports had been sheared off or pulled down by the mining equipment. The affected area in the 1 right entry started at the 

intersection and extended inby for a distance of about 30 feet. 

MSHA contends the mine roof was not being adequately supported to 

the miners in the area from falls-of-the-roof o 

At the hearing, Energy Fuels agreed to withdraw its contest 

and any objection to the Order as written and to the $850.00 

proposed penalty. 

The parties 0 with the approval of the undersigned Judgeu 

agreed that the order is deemed effective as of the date it was 

written and not as of the date of the settlement. The mine has 

gone through a clean unwarrantable failure cycle since the order 

was issuedu and therefore it is deemed effective as of the date 

its issue to ensure this settlement does not trigger a new 

cycleo 

Thus, the Order No. 2930823 in this contest case, the original assessments 1 and the proposed disposition of all matters in 

controversy are as follows: 

116 
Order Contest Proposed Modification 

Number Case No. Penalty & Dis12osition 

2875244 WEST 89-308-R $650.00 104Ca) $ 500.00 

2930823 WEST 89-304-R $850.00 104(d)(l) 850.00 

TOTAL $1,350.00 

I have considered the proposed settlement disposition of 

this matter. I find the proposed settlement is reasonable, consistent with the Act, and in the public interest. The settlement 

disposition should be and is APPROVED. 

ORDER 

1. Order No. 2875244 is MODIFIED to change the type of 

action from a 104(d)(l) Order to a 104(a) Citation, and, as so 

modified, is AFFIRMED. A civil penalty of $500.00 is ASSESSED. 

2. Order No. 2930823, with its finding that the violation 

is "Significant and Substantial" is AFFIRMED. A civil penalty of 

$850.00 is ASSESSED]. 

3o Contest Proceeding Docket Nos. WEST 89-308-R and WEST 

89-304-R are DISMISSED. 

4. Respondent Energy Fuel Coal Inc. is ORDERED to pay to 

the Secretary of Labor the sum of $1,350.00 within 30 days of the 

date of this decision, as and for the civil penalties assessed 

hereino Upon such payment, this proceeding is DISMISSED. 

a~~~ Aug t F. Cetti 

Ad nistrative Law Judge 

Distributiong 

Phillip Do Barberu Esq.v John S. Cowan, Esq.u WELBORN, DUFFORD; 

BROWN & TOOLEY PoCov 1700 Broadway, Suite 1700v Denveru CO 

80290-1701 (Certified Mail) 

Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1585 Federal Office Building, 1961 Stout Street, 

Denver, CO 80294 (Certified Mail) 

/ek 

117 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

JAN 1 7 1991 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

ENERGY FUELS COAL, 

INCORPORATED, 

Respondent 

. . 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 89-433 

A.C. No. 05-03455-03570 

Southfield Mine 

DECISION 

Appearances: Phillip D. Barber, Esq., Welborn, Dufford, Brown & 

Tooley, Denver, Colorado, 

for Contestant/Respondent; 

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

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

for Petitioner/Respondent. 

Before: Judge Cetti 

The Secretary of Labor, on behalf of the Mine Safety and 

Health Administration (MSHA) u charges Respondent with violating 

safety regulations promulgated under the Federal Mine Safety and 

Health Actu 30 UoSoCo § 80lu et~ (the 11Act 11 )0 

After notice to the parties, a hearing commenced in Denver, 

Colorado, on December 18, 1990. At the hearing, the parties announced they had reached an amicable settlement of all issues not 

previously settled in the 11 remaining citations in this docket. 

At the hearingu the Secretary 1 s counsel moved to modify Citation Nos. 3077189, 3077190 6 3077191, and 3977192, to delete the 

~significant and substantial" characterization of the violations on 

the grounds that there was insufficient evidence to prove the violations were "significant and substantial" and to reduce the proposed civil penalties of each of the four citations to $50 each, as 

indicated in the summary table below. 

The Secretary was permitted to amend Item 10 D of Citation 

Nos. 3077185 and 3077187 to show in each citation that the "number 

of persons affected" was two (2) rather than ten ClO>, and to 

reduce the proposed penalty in each of the two citations from $147 

to $100, as indicated in the summary table below. The other five 

118 
citations and their proposed penalties were not amended or modified. 

Respondent withdrew its contest as to these five citations and 

agreed to pay the Secretary's original proposed penalties in the 

amounts indicated in the summary table below. 

The citations, the regulation, the original assessments, and 

the proposed disposition of all citations in controversy are as 

follows: 

SUMMARY TABLE 

Citation Proposed 

Number 30 C.F.R. § Penalty Dis_Eosition 

2931193 75.208 $105.00 $105.00 

2931194 75.400 $112.00 $112.00 

3077174 75.400 $ 85.00 $ 85.00 

3077184 75.1722(a) $ 79.00 $ 79.00 

3077185 75.1707 $147.00 $100.00 

3077186 75.400 $126.00 $126.00 

3077187 ]5.202(a) $147.00 $100.00 

3077189 75.1723(a)(2) $ 79.00 $ 50.00 

3077190 75.400 $ 85.00 $ 50.00 

3077191 75.400 $ 79.00 $ 50.00 

3077192 75.1725(a) $ 79.00 $ 50. 00 

The settlement disposition was considered in light of the 

statutory criteria in section llOCi) of the Act, and the parties' 

representtion as to lack of sufficient evidence in specified cases. 

I find the settlement is reasonable and in the public interest. It 

is APPROVEDo 

ORDER 

lo tation NOSo 3077189P 3077190u 307719lv and 3077192 are 

modified to delete the characterization 11 significant and substantial 0' and, as so modified, are AFFIRMED. 

2o Citation NOSo 2931193u 2931194P 3077174, 3077184q 3077186 

are AFFIRMEDo 

3o Citation Noso 3077185 and 3077187 are amended to show in 

item 10 D of each citation that the number of persons affected is 

two (2) rather than twelve (12) and, as so modified, are AFFIRMEDo 

4o The civil penalties agreed to by the parties, as specified 

in the summary table above totaling $907.00, are ASSESSED. 

119 
5. Respondent Energy Fuels Coal Inc. is ORDERED to pay to the 

Secretary of Labor the sum of $907.00 as and for the civil penalties assessed herein. Upon such payments, this proceeding is 

DISMISSED. 

Distribution: 

Aug st F. Cetti 

Administrative Law Judge 

Phillip D. Barber, Esq., Welford, Dufford, Brown & Tooley, P.C., 

Energy Fuels Coal, Inc., 1700 Broadway, Suite 1700, Denver, CO 

80290-1701 (Certified Mail) 

Margaret Ao Miller 0 Esqou Office of the Solicitoru UoS. Department Laborv 1585 Federal Buildingu 1961 Stout Streetu Denverv CO 

80294 CCertif ied Mail) 

/ek 

120 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

JAN 17 1991 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ENERGY FUELS MINING COMPANY, 

Respondent 

: 

. . 

. . 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 90-91 

A.C. No. 05-03771-03520 

Raton Creek Mine No. l 

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

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

for Petitioner; 

Phillip D. Barber, Esq., WELBORN, DUFFORD, BROWN & 

TOOLEY, Denver, Colorado, 

for Respondent. 

Before: Judge Cetti 

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 civil penalty assessments for alleged violations 

of mandatory safety standards 30 C.F.R. §§ 75.1704 and 70.400. 

Respondent filed a timely answer contesting the alleged violations. Pursuant to notice to the parties, a hearing was held in 

Denver, Colorado, on December 18, 1990. At the hearing, the parties announced they had reached an amicable settlement of all 

matters at issue. 

Citation No. 2931280 was issed as an S&S violation of 30 

C.F.R. § 75.1704 with a $74.00 proposed civil penalty. Pursuant 

to their proposed agreement, the Secretary amended the citation 

to delete the S&S characterization of the violation and amended 

the proposed penalty to $50.00. The Secretary based her amendments upon insufficient evidence to prove the violation was "Significant and Substantial. 11 Respondent withdrew its objection to 

the citation and penalty as amended. 

Citation No. 2340524 alleges an S&S violation of 30 C.F.R. 

§ 75.400 and has a proposed penalty of $54. At the hearing, 

Respondent withdrew its contest to the citation as originally 

issued and to the Secretary's original proposed penalty of 

$54.00. 

121 
This settlement disposition was considered and approved. 

It is found reasonable and in the public interest. 

ORDER 

1. Citation No. 2931280 is MODIFIED to delete the "Significant and Substantial" designations and, as so modified, is 

AFFIRMED. A penalty of $50.00 is ASSESSED. 

2. Citation No. 3412632, alleging a violation of 30 C.F.R. 

§ 75.400, including its finding that the violation was "Significant and Substantial, 11 is AFFIRMED, and a civil penalty of $54.00 

is ASSESSED. 

3. Respondent is directed to pay $104.00 to the Secretary 

of Labor within 30 days of the date of this decision, as a civil 

penalty for the violations found herein. Upon payment, this 

proceeding is DISMISSED. 

C)~if.v.tf .;/( r22L 

Aug t F. Cetti 

Adm istrative Law Judge 

stribution~ 

Margaret A. Millerg Esq., Office of the Solicitor, U.S. Department of Labor, 1585 Federal Office Building, 1961 Stout Street, 

Denveru CO 80294 (Certified Mail) 

llip Do Barberu Esq. 9 WELBORN, DUFFORD 0 BROWN & TOOLEYu 1700 

Broadwayu Suite 1700u Denveru CO 80203 (Certified Mail) 

/ek 

122 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 18 1991 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

GFD CONSTRUCTION CO., INC., 

Respondent 

. . 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. SE 90-6-M 

A.C. No. 08-01046-05508 

Green's Pit 

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

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

for the Secretary of Labor (Secretary); 

Anthony Green, Sr., owner, GFD Construction Co., 

Pensacola, Florida, for GFD Construction (GFD). 

Before: Judge Broderick 

STATEMENT OF THE CASE 

The Secretary seeks civil penalties for three alleged 

violations of mandatory health and safety standards by GFD. 

Pursuant to notice, the case was called for hearing in Pensacola, 

Florida 0 on November 27, 1990. Anthony Green was called as an 

adverse witness by the Secretary; Ralph Hawks and Lawrence 

Richardson testified on behalf of the Secretary; Anthony Green, 

Sr., testified on behalf of GFD. Both parties were given the 

opportunity to file post-hearing briefs. The Secretary filed 

such a brief. GFD did not. I have considered the entire record 

and the contentions of the parties and make the following 

decision. 

FINDINGS OF FACT 

I 

GFD is the owner and operator of a masonry sand extraction 

operation in Pensacola, Florida, known as Green's Pit. The sand 

is separated from foreign material and trucked by GFD to home 

builders, the U.S. Naval Air Station, the state of Florida, 

Escambia County, Florida, the city of Pensacola and other 

purchasers. GFD has drills, pumps, a separator, front end 

loaders, drag lines and trucks. About 17 to 18 persons are 

123 
employed by GFD. It has been in business in Pensacola for 19 

years. It is a small operator. 

II 

on July 11, 1989, MSHA cited GFD for failing to file a 

quarterly report for the first quarter of 1989. GFD had been 

cited on 3 prior occasions for the same violation. The citation 

was terminated the same day it was issued. 

III 

On October 18, 1988, Federal Mine Inspector Lawrence 

Richardson conducted an inspection of Green's Pit. He found that 

the LK 600 Kobelco front-end loader had an inoperative reverse 

signal alarm. The loader was classified as heavy duty mobile 

equipment. Its wheel diameter was about 5 feet, the overall 

height was about 12 feet, and its length was over 25 feet. The 

vehicle had a rear motor protruding out approximately 8 feet 

which obstructed the operator's view to the ground at the rear of 

the vehicle. Inspector Richardson issued a 104(a) citation 

alleging a violation of 30 .C.F.R. § 56.9087 (now§ 56.14132). No 

work activity was observed at the time, but two employees were 

proceeding to the dredge. 

The citation was not issued in written form on the date the 

violation was observed, because Mr. Green ordered the inspector 

off the mine property. It was later served by mail. The 

citation was terminated July 11, 1989, after the back-up alarm 

had been repaired. 

Mr. Green contended that the front-end loader was in the 

shop at Pensacola Ford Tractor, Inc. on October 18, 1988, and was 

not on the mine property" He submitted a repair estimate dated 

October 12ff 1988v estimating repairs at $7u23lo I have carefully 

considered this evidence and the testimony of Mro Green and 

Inspector Richardsono I find that the loader was at the mine on 

October 18, 1988v and did not have an operative back-up alarm. 

:CV 

On October 18 1 1988~ the automatic reverse signal alarm on 

Kobelco LK 700 front-end loader was not operative. The 

LK 700 loader is larger than the LK 6000 The operator of this 

machine also has obstructed vision to the rearo The citation was 

terminated July llv 1989, after the back-up alarm had been 

repairedo 

v 

GFD had five prior violations of the regulation requiring 

back-up alarms between March 1978 and October 1988. When the 

124 
cited equipment was purchased by GFD, they did not have back-up 

alarms; GFD had them installed. The machines cost over $100,000 

each; the back-up alarms cost about $30 each. Because of the 

nature of GFD's operation, the wires to the back-up alarms are 

frequently cut and have to be repaired. 

REGULATIONS 

30 C.F.R. § 50.30(a) provides in part as follows: 

Each operator of a mine in which an 

individual worked during any day of a 

calendar quarter shall complete a MSHA Form 

7000-2 • • • and submit the original • 

30 C.F.R. § 9087 provides as follows: 

ISSUES 

Heavy duty mobile equipment shall be 

provided with audible warning devices. When 

the operator of such equipment has an 

obstructed view to,the rear, the equipment 

shall have--either an automatic reverse signal 

alarm which is audible above the surrounding 

noise level or an observer to signal when it 

is safe to back up. 

1. Whether the cited violations were established by a 

preponderance of the evidence? 

2. If so, what are the appropriate penalties? 

CONCLUSIONS OF LAW 

GFD is subject to the provisions of the Mine Act in the 

operation of Green's Pit, and I have jurisdiction over the 

parties and subject matter of this proceeding. Green 1 s Pit is a 

mine; it produces and sells a mineral, masonry sandu to private· 

business entities, and to local, state and Federal government 

agencies. Its equipment or some of it, was manufactured in other 

states and foreign countries. Its business affects interstate 

commerce. 

:n: 

There is no dispute concerning the violation of 30 C.F.R. 

§ 50.30(a). A quarterly report was not timely filed. The 

violation was not serious, but resulted from GFD's negligence. I 

conclude that $50 is an appropriate penalty for the violation. 

125 
III 

The two violations cited for inoperative front-end loaders 

were established by a preponderance of the evidence. They were 

moderately serious, and resulted.from GFD's ordinary negligence. 

There is no evidence concerning the abatement of the violations. 

The fact that Mr. Green ordered the inspector off his property 

was presumably the subject of another citation (and a criminal 

proceeding in the Federal District Court), and is no part of this 

case. I conclude that a penalty of $300 is appropriate for each 

of these violations. 

ORDER 

Based on the above findings of fact and conclusions of law, 

IT IS ORDERED: 

1. Citations 2856056, 2856057 and 3429647 are AFFIRMED. 

2. Respondent GFD Construction Company shall, within 30 

days of the date of this order, pay to the Secretary, the sum of 

$650 for the violations found herein. 

j t:",(e-s ,kh~o~r,c.,el(_ James A. Broderick r Administrative Law Judge 

Distribution: 

William Lawson, Esq., U.S. Department of Labor, Office of the 

Solicitorv 2015 Second Avenue North, Birmingham, AL 35203 

(Certified Mail) 

Anthony Jo Greenv GFD Construction Co.v Inc.v 470 East Ensley 

Streetv Pensacola, FL 32514 (Certified Mail) 

slk 

126 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

JAN 18 1991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BRIGHTON SAND & GRAVEL, 

Respondent 

. . 

. . 

. . 

Docket No. WEST 90-63-M 

A.C. No. 05-04390-05501 

Brighton Quarry 

DECISION 

Appearances: 

Before: 

s. Lorrie Ray, Esq., Office of the Solicitor, U.S. 

Department of Labor, Denver, Colorado, 

for p·etitioner; 

Ronald w. Loser, owner, Brighton Sand and Gravel, 

Brighton, Colorado, 

for Respondent. 

Judge Morris 

The Secretary of Labor, on behalf of the Mine Safety and 

Health Administration (MSHA), alleges Respondent Brighton Sand 

and Gravel violated safety regulations promulgated under the 

authority of the Federal Mine Safety and Health Act, 30 u.s.c. 

§ 802 et~ (the "Act")o 

After notice to the parties, a hearing on the merits was 

held on November 19u 1990u in Denveru Colorado. 

The parties waived the filing of post-trial briefs and submitted the issues on the evidence and oral arguments. 

Threshold Issues 

The evidence shows MSHA conducted a CAV 1/ inspection of the 

operator in April 1989. Four months later the same MSHA inspector conducted a regular inspection of the siteo 

The operator argues MSHA, in its CAN inspection, should have 

inspected all areas of the plant including the equipment repair 

shed. Hence the operator asserts any violations not detected in 

the CAV inspection should be vacated. 

!/ Courtesy Assistance Visit 

127 
The operator has misconstrued the scope of CAV inspections. 

The program was initiated in 1979 to provide technical assistance 

to mine operators under certain conditions. A copy of the initial memorandum prepared by the Assistant Secretary of Labor for 

CAV inspections is attached to this decision. (The memorandum 

was not offered in evidence by either party but it is attached to 

show MSHA's policy for its program.) 

When a CAV inspection takes place, MSHA cannot guarantee 

that all areas of a mine will be inspected, nor can it guarantee 

that all possible violations will be detected by the inspector. 

This is because the primary obligation for compliance with the 

regulations rests with the mine operator. 

For these reasons, the opera.tor's threshold objections are 

denied. However, under the broad umbrella of statutory good 

faith, I note the operator fully abated the 13 CAV notices of 

violation ~/ and further abated the violative conditions in this 

case. 

Citations 

The five citations in this case were issued under the 

authority of Section 104(a) of the Act. 

Background 

Jake J. DeHerra, a federal mine inspector and a person experienced in mining, inspected Respondent's plant on August 21, 

1989. The operator's owner, Mr. Ron Loser, only accompanied the 

inspector when he entered the tool shed. 

Mr. Loser has been in business for 40 years. No disabling 

injuries have occurred in the business and he does not permit 

unsafe conditions to exist. He has also received awards for - safety. 

Citation No. 3451630 

In the tool shed, the inspector found the grounding plug was 

missing from a service cord, a battery charger, a bench grinder, 

a power saw, a vacuum cleaner, and a ventilating fan. 

'~/ The 13 CAV notices are contained in Exhibit P-1. 

128 
Since all of this equipment was electrically powered, the 

inspector concluded that a violation of 30 C.F.R. § 56.12025 ~/ 

existed. 

The operator argued that this equipment was double insulated 

and no grounding plug was required. The equipment itself was 

marked "UL."~/ 

On this credibility issue, I credit the inspector's testimony: the equipment was not protected against shock, since it 

was not enclosed in plastic nor was it marked with the "Double 

D," C"DD") symbol. 

In the presence of the inspector, Mr. Laser immediately 

abated these violations by cutting the ends off the plug. He 

intended to prevent the equipment from being used. 

Citation 3451630 should be affirmed. 

The operator was negligent, since he should have known of 

this condition. Further, I accept the inspector's view that the 

gravity was moderate. 

Citation No. 3451631 

_ Inspector DeHerra observed that a piece of conduit was 

broken loose from the connection box. 

He originally cited this condition as a violation of 30 

C.F.R. § 56.12005, but he later changed the regulation to 30 

C.F.R. § 56.12004. 

Exhibit P-3 was drawn by the inspector to illustrate his 

testimony. 

11 § 56.12025 Grounding circuit enclosures 

All metal enclosing or encasing electrical circuits shall be 

grounded or provided with equivalent protection. This 

requirement does not apply to battery-operated equipment. 

!/ Underwriters Laboratory 

129 
It is true that the conduit had broken loose at the main 

electrical box. However, the ~ondition as described, does not 

fall within the purview of 30 C.F.R. § 56.12004. 

Citation No. 3451631 and all penalties therefor should be 

vacated. 

Citation No. 3451632 

Mr. DeHerra wrote this citation when he saw an unguarded 

tail pulley. 5/ The witness further illustrated his testimony in 

drawing Exhibit P-4. 

The tail pulley was not in a normal work area but there was 

a nearby walkway. If a worker fell or slipped into the pinch 

points, he could be injured. 

The uncontroverted evidence establishes a violation of the 

regulation. The citation should be affirmed. 

Concerning civil penalties: 

This condition could have been observed by the operator. 

A failure to remedy it indicates the operator was negligent. 

Since the unguarded equipment was not in a regular work 

area, the gravity is low. 

The cited regulation readsg 

§ 56.14107 Moving machine parts. 

Ca) Moving machine parts shall be guarded to protect 

persons from contacting gears, sprockets, chainsu driveu 

headu tail 0 and takeup pulleys, fly-wheelsv couplings 0 

shafts 0 fan blades 0 and similar moving parts that can cause 

injury" 

(b) Guards shall not be required where the exposed movmoving parts are at least seven feet away from walking or 

working surfaces. 

130 
Citation No. 3451634 

During the inspection, Mr. DeHerra observed a discharged 

fire exinguisher. 6/ A needle on the extinguisher gauge indicates whether it ii charged or discharged. If discharged, there 

would be no pressure in the equipment. 

However, there was a pressurized replacement fire extinguisher in the operator's office but there was no record of the 

date it was inspected. 

The uncontroverted evidence establishes a violation of the 

regulation. Citation No. 3451634 should be affirmed. 

Since there was a nearby replacement fire extinguisher {even 

without an inspection tag}, these factors indicate the opera~ 

tor's negligence and gravity were low. 

Citation No. 3451635 

Mr. DeHerra testified that the regulation 8/ involved here 

requires a test of the grounding system. Although the system was 

grounded, it had not been checked. When the inspector asked for 

the records, Mr. Loser stated he had contacted an electrical contractor but no action had been taken. 

_I The cited regulation reads~ 

§ 5604203 Extinguisher recharging or replacement. 

Fire extinguishers shall be recharged or replaced with a 

fully charged extinguisher promptly after any discharge. 

~/ The cited regulation 30 C.F.R. § 56.12028 reads: 

Continuity and resistance of grounding systems shall be 

tested immediately after installation, repair, and modification1 and annually thereafter. A record of the resistance 

measured during the most recent tests shall be made available on a request by the Secretary or his duly authorized 

representative. 

131 
The facts establish that the continuity of the equipment 

grounding conductors had not been checked since the plant was 

moved. These facts establish a violation of the regulation which 

requires the system be tested immediately after installation. 

In this case, it is uncontroverted that a test was made by 

an electrical contractor. However, the check was after the citation had been issued. 

Citation No. 3451635 should be affirmed. 

I consider the operator's negligence to be moderate since 

the company was aware of the testing requirements. However, the 

gravity is low, since the electrical system was grounded. 

CIVIL PENALTIES 

Respondent argues the r~gulations involved here are "Mickey 

Mouse." I disagree. The regulations clearly relate to safety 

and, given unfavorable factual circumstances, severe injuries 

could result. I further note that the Mine Act mandates that a 

penalty be assessed if a violation is found to exist. 

Section llOCi) of the Act further establishes certain 

criteria to be considered in assessing civil penalties. 

In this case, the Secretary proposed penalties of $20 for 

each violation. The evidence as to negligence, gravity and good 

faith have been previously discussed. 

In connection with the remaining criteria, I find the opera- ~or must be considered as smallv even miniscule, since only 

Mro Loser and his son customarily operated the business. 

Mro Loser also indicated he has now sold the business& 

The operator's prior history is very favorable. The 

computer printout, Exhibit P-2, fails to establish any prior 

olationso 

On balance, I consider the penalties as hereafter assessed 

to be propero 

For the foregoing reasons, I enter the following: 

132 
ORDER 

L Citation No. 3451630 is AFFIRMED and a penalty of $20 is 

ASSESSED. 

2. Citation No. 3451631 and all penalties are VACATED. 

3. Citation No. 3451632 is AFFIRMED and a penalty of $10 is 

ASSESSED. 

4. Citation No. 3451634 is AFFIRMED and penalty of $10 is 

ASSESSEDo 

5. Citation No. 3451635 is AFFIRMED and a penalty of $10 is 

ASSESSED. 

Law Judge 

stributiong 

s. Lorrie Ray, Esq., Office of the Solicitor, U.S. Department of 

Laboru 1585 Federal Office Building, 1961 Stout Street, Denveru 

co 80294 (Certified Mail} 

Ronald Wo Loseru OWneru BRIGHTON SAND & GRAVEL, 695 North 11th 

Avenuev Brightonu CO 80601 (Certified Mail) 

/ek 

133 
U. §5. Department of Lf.bor tl1ne Selt:ty tli::1 Hea:th A.::l:ninis1ra11on 

~:J1 E- Y>1ISD'I E>oule>·erd 

A•iin;i:or •. Viq~in;t. 2.<::203 

~ P"\I J \ 3 191? 1\ ..... \ 

:'RD!'~: ROEERT B. L.1>G1'.TEER 

kssistunt s~~tary ior 

Kine Safety and He~lth 

SUB.JECT: Corr.pliance kssista.nce Visits 

In the past Y..SHA has receiveo rr.any requests f:rorr, r..ine opere.tors 

for ~SHh inspectors who, by virtue of their tr~ining and 

experience:, posi;ess Eigr:.ific~nt expertise in xr.ine £c.fety and 

heal th e.nc5 kno;..·leoge of r.ine. E af ety ano heal th £ te.naards and 

reg:.llctions, to e.s:::i.st the opero?..tors in t.he.ir efforts t.o co:::-.ply 

\dth the :t-~ine kct Of l9i7. Operators have requested t.hat KSHJ.. 

:representatives visit t.heir n.ines for the purpose of pointing 

out any conoitions or practices which Lre in violation of t.he 

J..ct or stanch.rds £0 th~t t.he operator rr.ay correct thern, but that 

no monetary civil penalties be ~ssesseo. 

In :response to the open~ tors' :request£, Y..SFJ.. hc.s 2.ne.ly:z.eo t.he 

question ~nc haE. concluc5eo that inspectors may rr.cke visits to 

mines in certain £ituationE to point out potential viol~tions 

,...i thout :rrone tl..ry civil pen!.l ties being proposed. Section 502 

(b) of the Y.ine ~c! Qirects t.he Secretary ~* * * to the greatest ~xtent possibleu [to/ provide technical assiEtance to operators 

:i rnee'c.ing the. :reguirernent.s of this i-..ct l&'?.na in further irr.proving 

·we hee 1th c:L"'"ld IE i;.f ety conci t.ions and pre cti ce s in coal er other 

lS a 

The 6ituetions in the mining industry ~here such a pro;r.?..m would 

be feasible are~ (1) new ~ines not yet proouc~ng, (2) seasonal 9 

closed or ab~ndoned mines prior to reopeningu and (3) new 

nstalletionE in mines prior to their becoming oper&tional. A 

co::TJn:in <E:le.rnent in all these situations is that t..he rr.ine has ~it.her been closed (or has net yet been opened). or that there 

.irs a ne•·• in~te.lle.tion not yet cpe:ration!..lo P..SHJ.. e>:perie.nce e.nd 

rrtatistics ~how t.het the ·tst.~rt-up period for a :rr.ine 0 new 

construction, er ne~ equipment is e particularly high-risk 

period. It i6 also a perio5 ~hen practices initially Et~rted 

'tend t.o become .a permanent pl!. rt of future ope:ra tions. l f the 

ne\\ oper~ticns Are begun correctly, there ~re ineica.tions that 

there ~ill be fewer ~ccidents, injuriei, ~nd fetalities during 

both th~ initial st~rt-up period end the lete~ oper~tions. 

134 
- 2 -

Therefore, beginning immediately, I am instituting a program 

for metal/nonmetal of making inspectors availnble upon the 

request of operators to conduct compliance assistance visits 

(CAV) in the following ca.tegories: 

1. New mines not yet producing: 

2. Seasonal, closed, or abandoned mines prior to 

reopening; 

3. New facilities or new ins~alla~ion of equipment in 

an operating mine. 

A CAV would be conducted pursuant to a request made by an 

operator to the appropriate subdistrict manager. In order that 

MSHA may be most responsive, such requests should be made at 

least one to two weeks in advance of the date on which the 

operator wants the visit •. The CAV would cover one or more of 

the fo~lowing areas ~s requested by the operator: 

lo Miscellaneous iron installations (guards, walkways, stairways, etc.)1 

~o Equipment with movirig parts (conveyor belts, 

crushers, screens, etc.); 

Je Mobile equipment (trucks, loaders, etc.); 

4$ Proposed plans and desiqns; 

Se Planned training, and 

~o Other areas as appropriatea 

~he inspecto~ 0 while conducting ~ CAVv will issue notices of ~io1ation whenever he observes a potential violation or 

imminent danger ~ituationo Each notice will be clearly marked 

QCAV-NONPENALTY• and will not be included in any fashion in 

t.he assessment processe The purpose of the notice is to alert 

the operator to ~ potentially hazardous condition or practice ~o tha~ the operator may correct it prior to the beginning of 

©perations 0 ©r use of t.he installationo equipment or plan 0 

~tco Operators should be aware 0 however, that regular inspec-

'l.i.ons will lbe made of the operations once they have begun and 

that during the ~egular inspections the inspector will look at 

all of the notices issued during the CAV to insure that the ~onditions and practices noted have been corrected. If the 

©orrection has not been made, an appropriate citation or withdrawal order will be issued. No additional penalty, monetary 

or other,,:ise, will be proposed solely because of the previous 

CAV., 

With regard to the CAVs of new mines or new installations of 

equipment in operating mines, the CAV is limited to the future 
- 3 -

use of the mine, installation or equipment under construction. 

The inspector, in conducting a CAV, is to proceed directly to 

the site of the CAV and is not to conduct a regular inspection of the premises. However, should an imminent danger situation 

be observed, .an appropriate order will be issued • .. This is a new program and like any new program, problems and 

questions will arise and adjustments will have to be made. I 

want to encourage resolution of the problems and questions at 

the field level1 however, I want to be timely advised of the 

problems and questions and their resolutions. I also want to 

encourage suggestions for improvement of the pro9ram. . . 

I firmly believe that this program will increase the coopera- tion between MSHA and the mine operators, will reduce accidents, 

injuries, and fatalities and will, in 9eneral, enhance.the 

safety and health of the miners. Therefore, I want each of the 

district and subdis~rict managers to give their personal attention to insuring that t~e program achieves these 9oals. 

136 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 18 1991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. WEVA 90-122 

A.C. No. 46-01438-03830 

v. 

Ireland Mine 

CONSOLIDATION COAL COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION 

Page H. Jackson, Esq., Office of the Solicitor, 

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

the Petitioner; 

Walter J. Scheller, III, Esq., Consolidation Coal 

Company, Pittsburgh, Pennsylvania, for the 

Respondent. 

Judge Koutras 

Statement of the Case 

This proceeding concerns proposals for assessment of civil 

penalties filed by the petitioner against the respondent pursuant 

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

1977? 30 u.s.c. § 820(a), seeking civil penalty assessments in 

the amount of $482, for two alleged violations of certain mandatory safety standards found in Part 77, Title 30, Code of Federal 

Regulations. The respondent filed a timely contest and a hearing 

was held in Pittsburgh, Pennsylvania. 

Issues 

The issues presented in these proceedings are (l} whether 

the conditions or practices cited by the inspector constitute 

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

the violations were "significant and substantial," and (3) 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. 

137 
Applicable Statutory and Regulatory Provisions 

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

30 u.s.c. § 801 et seg. 

2. Commission Rules, 29 C.F.R. § 2700.1, et seg. 

3. Mandatory safety standards 30 C.F.R. §§ 77.505 and 

77.516. 

Stipulations 

The parties stipulated to the following (Tr. 6-8): 

1. The respondent's mine is subject to the Act 

and the presiding judge has jurisdiction to hear and 

decide this case. 

2. The contested citations were issued to the 

respondent by a duly authorized representative of the 

Secretary of Labor and _they were properly served on the 

respondent. · 

3. The payment of civil penalty assessments for 

the violations will not adversely affect the respondent 1 s ability to continue in business. 

4. With regard to cited mandatory safety standard 

30 C.F.R. § 77.516, the applicable National Electrical 

Code referred to therein is the 1968 Code. 

5. Independent contractor R. G. Johnson was 

issued a citation identical to the one served on the 

respondent for a violation of mandatory safety standard 

30 C.F.R. § 77.505. 

Discussion 

Section 104(a) "S&S" Citation No. 2896648, issued by MSHA 

Inspector Spencer A. Shriver on January 22, 1990, cites a violation of mandatory safety standard 30 C.F.R. § 77.505, and the 

cited condition or practice is described as follows: 11 0n the 

contractor 3 phase 480 volt power at 4 north airshaft, the 600 

MCM conductors do not enter the safety switch through proper 

fittings. Mine operator connected to contractor load while this 

violation existed.iv 

Mandatory safety standard 30 C.F.R. § 77.505, provides as 

follows: 

138 
§ 77.505 Cable fittings; suitability. 

Cables shall enter metal frames of motors, splice 

boxes, and electric compartl)1ents only through proper 

fittings. When insulated·wires, other than cables, 

pass through metal frames, the holes shall be substantially bushed with insulated bushings. 

Section 104(a) "S&S" Citation No. 2896649, initially issued 

by Mr. Shriver on January 22, 1990, and subsequently modified on 

January 29, 30, and 31, 1990, cites an alleged violation of 

30 C.F.R. § 77.516, and the cited condition or practice is 

described as follows: 

At 4 north substation, operator provided power to 

contractor by three 333 "1!0!A 124070-480 volt transformers. Connected primary ungrounded wye/secondary 

grounded wye. This transformer connection will not 

permit sufficient current to flow to operate protective 

devices and clear a grou~d fault. A phase-to-ground 

fault was found on the 480 cable which served the 

3-phase space heaters in the hoist house. 

Reference article 110-2, 1968 National Electric 

Code. A phase-to-ground fault on 480 volt circuit 

which is not cleared, would result in phase-to-phase 

voltage across the primary transformer winding or 12470 

volts on windings rated 7200 volts. 

Mandatory safety standard 30 C.F.R. § 77.516, provides as 

follows: 

§ 770516 Electric wiring and equipment; installation 

and maintenance" 

In addition to the requirements of §§ 77.503 and 

77.506, all wiring and electrical equipment installed 

after June 30, 1971, shall meet the requirements of the 

National Electric Code in effect at the time of 

installation. 

MSHA Inspector Spencer A. Shriver, an electrical engineer 

who holds a master 1 s degree in electrical engineering, confirmed 

that he issued the citations in the course of his inspections at 

the mine, and he testified in support of the violations and 

explained his negligence and gravity findings, including the 

significant and substantial (S&S) nature of the violations (Tr. 

19-152; 314-317). Supervisory Inspector Paul M. Hall, chief 

electrical engineer, who accompanied Mr. Shriver during his 

inspections, and Mr. Elio L. Checca, an electrical engineer from 

MSHA's Bruceton Safety Technology Center, also testified on 

behalf of the petitioner (Tr. 153-255; 361-363). 

139 
In defense of the violations, the respondent presented the 

testimony of Mr. Gary S. Harvey, an electrical engineer responsible for electrical construction activities, and Mr. John M. Burr, 

electrical engineering manager (Tr. 256-318). 

on November 19, 1990, I issued an order affording the 

parties an opportunity to file posthearing arguments and briefs. 

Thereafter, by letter dated November 27, 1990, the petitioner's 

counsel advised me that the parties reached a proposed settlement 

for both of the alleged violations. The parties then submitted a 

joint motion pursuant to Commission Rule 30, 29 C.F.R. § 2700.30, 

seeking approval of a proposed settlement of the case. Pursuant 

to the terms of the settlement, the petitioner has agreed to 

vacate Citation No. 2896649, and to modify Citation No. 2896648, 

to allege a non-significant and substantial violation. The 

respondent has agreed to pay the full amount of the proposed 

civil penalty assessment of $241, for this violation, and has 

represented to the petitioner that there are presently no transformers on mine property with an ungrounded wye, grounded wye 

configuration and that, in the future, no transformers with such 

a configuration will _be allo~ed on any mine property subject to 

the Act. 

In support of the proposed settlement, the petitioner has 

submitted information pertaining to the six statutory civil 

penalty criteria found in section llO(i) of the Act. The petitioner has also submitted a reasonable justification for the 

approval of the settlement. With regard to the vacated citation, 

the petitioner points out that it is concerned that the contested 

citation, as modified, failed to adequately inform the respondent 

of the specific provisions of the National Electrical Code of 

1968 which the issuing inspector believed the transformer installation ated. In view of this possible defect in the citaand the respondent 1 s expressed representations regarding 

and future transformer installations, the petitioner has 

determined that, this instance, vacating Citation No. 2896649 

furthers the purposes of the Act. 

Conclusion 

After careful review and consideration of the entire record 

in th case, including the arguments advanced by the parties in 

support of the settlement disposition of this case, I conclude 

and find that the proposed settlement reasonable and in the 

publ interest. Accordingly, the motion to approve the settlement IS GRANTED, and the settlement IS APPROVED. 

ORDER 

1. Section 104(a) "S&S" Citation No. 2896649, 

initially issued on January 22, 1990, and subsequently 

140 
modified on January 29, 30, and 31, 1990, citing an 

alleged violation of 30 C.F.R. § 77.516, IS VACATED. 

2. Section 104(a) "S&S" citation No. 2896648, 

issued on January 22, 1990-, citing a violation of 

30 C.F.R. § 77.505, IS MODIFIED to delete the significant and substantial ("S&S") finding, and as modified, 

the citation IS AFFIRMED. 

3. The respondent IS ORDERED to pay a civil 

penalty assessment of $241, in satisfaction of Citation 

No. 2896648, and payment is to be made to MSHA within 

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

order. Upon receipt of payment by MSHA, this matter is 

dismissed. 

_ 

k:Ktt~ A.dministrati ve Law Judge 

Distribution: 

Page H. Jackson, Esq., Office of the Solicitor, U.S. Department 

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

(Certified Mail) 

Walter J. Scheller, III, Esq., Consolidation Coal Company, Consol 

Plaza, 1800 Washington Road, Pittsburgh, PA 15241-1421 

(Certified Mail} 

/fb 

141 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

JAN 22 1991 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

CLYDE C. COLE, 

Complainant, 

v. 

CANYON COUNTRY ENTERPRISES, 

d/b/a CURTIS SAND & GRAVEL, 

CORPORATION, 

Respondent 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

DECISION 

Before: Judge Lasher 

DISCRIMINATION PROCEEDING 

Docket No. WEST 90-165-DM 

MD 89-24 

Soledad Canyon Mine 

On December 14, 1990, the Complainant (Secretary of Labor on 

behalf of Clyde c. Cole), and Respondent filed a "Stipulation for 

Dismissal" indicating that, discovery having been completed, both 

parties agree that this matter should be dismissed with prejudice 

as far as the Secretary of Labor is concerned. These two parties 

also agree, among other things, that the dismissal of this proceeding shall not be construed to create or abrogate any rights 

beyond those available to Clyde c. Cole under the Act at the time 

of the ling of this actiono 

Individual Complainant, Mro Coleu has substituted David Po 

Koppelmanu Esq.u International Union of Operating Engineers, 

Local 12, AFL-CIO, as his attorney by a pleading filed on January 17, 19910 This Union had previously "intervened" for this 

purpose this proceeding by a pleading received June 9, 19900 

Through Attorney Koppelmanu Complainant opposes the Secretary of 

Laborus request for dismissal of this proceeding. It appears 

that Complainant Cole wishes to continue this proceeding originally brought by the Secretary of Labor by substituting himself 

as Complainant" Howeverq Section 105(c) of the Act apparently 

contemplates two situations: (a) where the Secretary brings the 

action under Section 105(c)(2)? and (b) where, if the Secretary 

Mupon investigation~ declines to prosecute, the action is brought 

under Cc)(3) by the individual complainant in his own behalf. 

Here, after proceeding to prosecute under 105(c)(2), the Secretary, upon further investigation, has determined a violation did 

not occur and seeks dismissal of this (c)(2) action. Such rights 

as Mr. Cole has would appear to be provided in Section 105(c)(3) 

of the Act. 

142 
I do not rule on or delineate such at this point. The request of 

the Secretary of Labor is found·authorized and dismissal of this 

proceeding is found warranted, since the party charged with the 

responsibility bringing the prosecution (MSHA) no longer feels a 

violation was committed by Respondent. 

ORDER DISMISSING PROCEEDING 

The motion of the Secretary of Labor to withdraw her complaint is GRANTED and, pursuant to the provision of Commission 

Procedural Rule 11 (29 C.F.R. § 2700.11), this proceeding is 

DISMISSED with prejudice to the Secretary of Labor to renew any 

further prosecution as provided in Paragraph III of the aforesaid 

Stipulation for Dismissal between the Secretary of Labor and 

Respondent. 

Distribution: 

• . _?-7 

~,,dd.L ~- ~~-I;$.- Michael A. Lasher, Jr. Administra~ive Law Judge 

David P. Koppelman, Esq., International Union of Operating Engineers, Local 12, 150 East Corson Street, Pasadena, CA 91103 

(Certified Mail) 

Susanne Lewaldu Esqov Office of the Solicitoru U.S. Department of 

Laboru 71 Stevenson Streetu Suite lllOu San Franciscou CA 94105 

(Certified Mail) 

Michael G. McGuinness, Esq., O'MELVENY & MYERS, Canyon Country 

Enterprises, d/b/a Curtis Sand and Gravel Corporation, 400 South 

Hope Streetu Los Angeles, CA 90071-2899 (Certified Mail) 

Dana R. Corey, Esq.u GILL & BALDWIN, 1444 North Brand Boulevard, 

Glendale, CA 91203 (Certified Mail) 

Mro Clyde Co Cole 0 8237 Soledad Canyon Road, Acton, CA 93510 

(Certified Mail) 

/ek 

143 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lath FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 2 3 1991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

Docket No. WEVA 90-302 

A.C. No. 46-01318-03959 

Robinson Run No. 95 Mine 

DECISION APPROVING SETTLEMENT 

Appearances: Wanda,Johnson, Esq., U.S. Department of Labor, 

Office of the Solicitor, Arlington, VA, for the 

Petitioner; 

Walter J. Scheller, III, Esq., Consolidation Coal 

Co., Pittsburgh, PA 15241, for the Respondent. 

Before: Judge Melick 

This case is before me upon a petition for assessment of 

civil penalty under section 105(d) of the Federal Mine Safety and 

Health Act of 1977 (the Act). At the hearing, the parties filed 

a motion to approve a settlement agreement and to dismiss the 

case. Respondent has agreed to pay the proposed penalty of $l504 

fullo I have considered the representations and documentation 

submitted in this case, and I conclude that the proffered 

settlement is appropriate under the criteria set forth in 

section llO(i) of the Act. 

WHEREFORE, the motion for approval of settlernenti is GRANTED, 

and it ORDERED that respondent pay a penalty of $1504 within 

3 o days of this order. 

1 

'I . I ~ . . 

t!~t~.\\ 1_/L'-\ . Jdminisfrative L~w Judge 

, • \ \ I 

; I 

I 

'. 

I 

144 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 2 3 1991 

USS, A DIVISION OF USX CORP., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

LOCAL UNION NO. 1938, 

UNITED STEELWORKERS_OF 

AMERICA, DISTRICT·NO. 33,· 

Representative of Miners 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

USX CORPORATION, 

Respondent 

LOCAL UNION NO. 1938, 

UNITED STEELWORKERS OF 

AMERICA, DISTRICT NO. 33, 

Representative of Miners 

.. . 

145 

CONTEST PROCEEDINGS 

Docket No. LAKE 90-28-RM 

Citation No. 3469434; 1/3/90 

Docket No. LAKE 90-29-RM 

Order No. 3469:435; 1/3/90 

Docket No. LAKE 90-30-RM 

Order No. 3469437; 1/3/90 

Docket No. LAKE 90-31-RM 

Order No. 3469438; 1/8/90 

Docket No. LAKE 90-32-RM 

Order No. 3469439; 1/8/90 

Docket No. LAKE 90-33-RM 

Order 3469440; 1/8/90 

Docket No. LAKE 90-36-RM 

Order No. 3469471; 1/24/90 

Minntac Plant 

CIVIL PENALTY PROCEEDINGS 

Docket No. LAKE 90-35-M 

A.C. No. 21-00820-05588 

Docket No. LAKE 90-65-M 

A.C. No. 21-00820-05594 

Docket No. LAKE 90-66-M 

A.C. No. 21-00820-05595 

Docket No. LAKE 90-92-M 

A.C. No. 21-00820-05599 

Minntac Plant 
Appearances: 

DECISION 

Billy M. Tenant, Esq., Pittsburgh, Pennsylvania, 

for USS, a Division of usx Corp. (USS); Miguel J. 

Carmona, Esq., Office of the Solicitor, U.S. 

Department of Labor, Chicago, Illinois for the 

Secretary of Labor (Secretary) ; 

James Ranta, Staff Representative, United, 

Steelworkers of America, Virginia, Minnesota, for 

for the Representative of Miners (USWA). 

Before: Judge Broderick 

The above proceedings involve one citation and six 

withdrawal orders concerning which USS has filed notices of 

contest, and 16 alleged safety violations charged in 10 citations 

and 6 withdrawal orders (including the contested citation and 

orders) for which the Secretary seeks civil penalties. The 

citations and orders were issued between November 28, 1989, and 

January 24, 1990, during an inspection at the Minntac Plant. 

Therefore, they were consoliqgted for purposes of hearing and 

decision. Local Union 1938, USWA requested and, without 

objection, was granted party status in the proceeding. Pursuant 

to notice the case was called for hearing in Duluth, Minnesota, 

on October 17 and 18, 1990. James King and John Keating 

testified on behalf of the Secretary; John Keating also testified 

on behalf of USWA; Ronald Rantala, Bruce Long, Tom Hakala, and 

Randall Pond testified on behalf of USS. All parties have filed 

post hearing briefs. I have considered the entire record and the 

contentions of the parties and make the following decision. 

FINDINGS OF FACT 

USS is the owner and operator of the Minntac Plant located 

in Sto Louis County, Minnesota. It produces taconite pellets 

from low-grade iron ore. The plant includes a mine, a crusher, a 

concentrator and an agglomerator. During the year prior to the 

citations and orders involved herein, approximately 1,159,284 

hours of work were performed at the Minntac Plant, and over 3 

million hours were performed by the controlling entity. USS is a 

large operator. Between January 24p 1988 and January 23, 1990, 

there were 414 paid violations of mandatory health and safety 

standards at the subject facility, including 178 assessed 

violations of 30 C.F.R. § 56.11001, and 28 assessed violations of 

30 C.F.R. § 56.20003. In view of the size of the facility, this 

history is not such that penalties otherwise appropriate should 

be increased because of it. Payment of the proposed penalties in 

these cases will not affect the ability of USS to continue in 

business. All of the citations and orders involved in these 

proceedings were abated promptly and in good faith. 

The inspection which resulted in the citations and orders 

was of the milling facility of the plant and particularly, the 

agglomerator. The agglomerator is the last step in the taconite 

146 
producing process, and the pellets are formed there. It is 

located in two separate buildings, each with six floors. One 

building has about 800,000 square feet of floor space, the other 

about 400,000. There are 169 conveyor belts in one building and 

125 in the other. They carry approximately 52,000 tons of 

material each day in order to produce about 41,000 tons of 

pellets. About 240 miners are employed in the agglomerator. 

CITATION 3444248 

on November 28, 1989, a citation was issued for an alleged 

violation of 30 C.F.R. § 56.11001 because an area of the washdown 

floor in the agglomerator was covered with wet slurry across the 

entire walkway. There were also washdown hoses lying on the 

floor. The slurry was about 1 or 2 inches deep and covered an 

area of about 20 feet by 30 feet. No one was cleaning the area 

when the citation was issued, and no employees were present in 

the area. The area was frequently used as a travelway to other 

areas of the plant. It was not the sole route to these areas 

however. The violation was abated the following day when the 

cited area was cleaned. 

CITATION 3469424 

On January 2, 1990, a citation was issued for an alleged 

violation of 30 C.F.R. § 56.20003 because of an accumulation of 

dust and other extraneous materials including tools on a walkway 

adjacent to a conveyor belt. There was also dust on machinery in 

the area of the walkway. The dust on the walkway was about 1 to 

2 inches deep. The walkway was about 10 feet wide and 60 to 70 

feet long. Dust on the machinery was 4 to 5 inches deep. 

Employees did not regularly work in the area, and no one was in 

the area at the time the citation was issued. Footprints were 

seen in the dust. The violation was abated on or before the 

termination datep January 8v when the walkway was cleaned. 

CITATION 3469425 

This citation was issued January 2; 1990, alleging a 

violation of 30 CoFoRo § 56020003 because of an accumulation of 

dust I' hoses and tools on an eleva.ted walkway adj a cent to the head 

end of the conveyoro No employees were working in the area and 

it was travelled only infrequently. The accumulation varied from 

1 to 2 inches deep and covered an area of about 20 feet by 20 

feet" On the day in question the wash pumps were inoperative, 

and it was not possible to hose down the area. The pumps had 

been down for about 3 days. The violation was abated on or 

before the termination date of the citation when the walkway was 

cleaned. 

CITATION 3469426 

This citation was issued January 2, 1990, charging a 

violation of 30 C.F.R. § 56.11001 because of an accumulation of 

147 
ore up to 8 inches deep along a walkway. The area covered was 

approximately 10 feet by 3 feet. The material was dry . This 

area also could not be washed down because the pump was 

inoperative. The conveyor was seldom used and employees worked 

infrequently in the area. .However, there were footprints and a 

heater in the cited area. The violation was abated on or before 

the termination date when the walkway was cleaned. 

CITATION 3469427 

A violation of 30 C.F.R. § 56.20003 was charged because of 

an accumulation of ore, hoses and other materials along a walkway 

adjacent to a conveyor. The walkway was used by attendants who 

were supposed to clean the areas where they worked. As in the 

previously cited areas, this area could not be washed down 

because the pump was inoperative. The violation was abated on or 

before the termination date when the walkway was cleaned. 

CITATION 3469428 

A violation of 30 C.F.R .. § 56.20003 was cited because slurry 

and ore as well as hoses were permitted to accumulate in a 

walkway of a washdown floor. The slurry and ore accumulation 

varied from 1 to 3 inches deep. It was slippery. Employees were 

not working in the area at the time the condition was cited. The 

area had been partially washed down before the pumps became 

inoperative. The violation was abated on or before the 

termination date when the walkway area was cleaned. 

CITATION 3469429 

A violation of 30 C.F.R. § 56.11001 was alleged because of 

an accumulation of slurry in a walkway of a washdown floor. The 

accumulation was 3 to 4 inches deep and covered an area 5 feet 

wide and approximately 500 feet longo Hoses were lying on the 

walkwayv some of them buried in the slurryo The area was not 

normally travelledo The slurry resulted from an overspill from 

the filtero The violation was abated on or before the 

termination date when the walkway was cleaned. 

CITATION 3469431 

A violation of 30 C.F.R. § 56.11001 was alleged on January 

3 1990r because of an accumulation of slurry and dry ore in the 

center walkway of a washdown floor. Part of the accumulation was 

wet and part was dryo The area was not frequently travelled, but 

it was necessary to travel it for maintenance purposes. The 

violation was abated on or before the termination date when the 

area was cleaned. 

CITATION 3469433 

A violation of 30 C.F.R. § 56.11001 was charged because of 

an accumulation of slurry on a walkway between two conveyors. 

148 
The slurry was 4 to 6 inches deep and covered the entire walkway, 

150 feet long and 5 feet wide. It was very wet and very 

slippery. The walkway was used relatively infrequently for 

maintenance of the conveyors. No employees were in the area at 

the time the citation was issued. The violation was abated on or 

before the termination date when the walkway was cleaned. 

CITATION 3469434 

This citation was issued on January 3, 1990, and charges an 

unwarrantable failure violation of 30 C.F.R. § 56.11001. It was 

issued under section 104(d) (1) of the Act. The inspector 

originally told USS that he was going to issue a 104(a) citation. 

However, he informed USS by telephone on January 4 that the 

citation would be issued under section 104(d) (1). The written 

citation was actually delivered on January 8. The citation 

charges a violation because of an accumulation of slurry 1-1/2 

inches in depth, 10 feet wide and 90 to 100 feet long. There 

were footprints in the slurry and hoses lying across the walkway. 

Several employees used the walkway. The washdown hoses were 

inoperative at the time. The condition was abated prior to the 

termination date when the area was barricaded and the walkway 

cleaned up. 

ORDER NO. 3469435 

on January 3, 1990, Inspector King issued a 104(d) (1) 

withdrawal order alleging an unwarrantable failure violation of 

30 C.F.R. § 56.11001 because of an accumulation of fine dry ore 

along both sides of an elevated walkway adjacent to a conveyor. 

The accumulation was conically shaped and covered the entire 

walkway and was up to 10 inches in depth. The walkway was used 

for maintenance purposes and was the only access to the conveyor. 

There were no employees in the area at the time of the citation. 

The condition was abated on January 8v 1990 1 when the area was 

barricaded and cleaned up. 

ORDER NO. 3469437 

The inspector issued a l04(d) (1) order for a condition 

observed on January 3u 1990u alleging a violation of 30 C.F.R. 

§ 56.llDlo Initially Inspector King informed USS that he would 

issue a 104(a) citation for the condition. On January 4, 1990, 

he informed USS by telephone that he was going to issue a 

104(d) (1) order" The written order was served on USS on 

January 8. Ore was present on a walkway around a tail pulley of 

a conveyor. The accumulation was approximately 2 to 3 feet deep 

on both sides of the tail pulley and covered about two-thirds of 

the walkway. The area was not frequently travelled, but was 

used by maintenance workers and supervisors. A sign was present 

restricting access to the area. The condition was abated by 

barricading and cleaning the area. 

149 
ORDER NO. 3469438 

on January 8, 1990, Inspector King received written 

complaints from miners given him by the union safety 

representative all having to do-with cleanup problems at the 

plant. the inspector found piles of fine dry ore and a buildup . of slurry across the entire floor of the washdown floor. There 

were footprints in the material indicating that it had been 

present for some time. The Union safety committeeman had pointed 

out the problem to USS some days previously. At the time of the 

inspection, two employees were cleaning the area with a water 

hose. The area was used by maintenance workers and operational 

personnel. None were in the area at the time the order was 

issued. The area was not barricaded, nor were any warning signs 

posted. In early January 1990, USS was attempting to reclaim the 

frozen chunks of concentrate, and it overloaded its reslurrying 

system, causing a major spill on the washdown floor. This 

occurred on and prior to January 7. USS has a cleanup program 

for the agglomerator plant, and additional men were assigned to 

clean up after the spill. The order was terminated February 13, 

1990, after the area was barricaded and cleaned up. It had been 

cleaned up by the end_of January. 

ORDER NO. 3469439 

On January 8, 1990, Inspector King, again acting on a 

miner's complaint, issued a 104(d) (2) order alleging a violation 

of 30 C.F.R. § 56.11001 because the floor of classifier pit, 

approximately 30 feet by 30 feet, was covered with slurry and 

water up to 1 foot in depth. The pumps had overflowed causing 

the accumulation. The area was travelled by miners once or twice 

each shift to check the pumps. No one was in the area when the 

order was issued. The area had been cited many times previously 

for accumulation problems. the order was terminated January 31, 

1990v after the area was barricaded and cleaned up. 

ORDER NO. 3469440 

This order was issued on January 8, 1990, following a 

miner's complainto It alleges a violation of 30 C.F.R. 

§ 56.11001 for an accumulation of water and slurry on ~he floor 

of another classifier pit. The accumulation was about 1 foot 

deep and covered an area of about 25 feet by 30 feet. The area 

was used by maintenance personnel to service the pumps. The 

condition was similar to that cited in order No. 3469439 and 

resulted from the same problem. The area was not barricaded or 

posted. The order was terminated on January 22, 1990u after the 

area was barricaded and cleaned up. 

ORDER NO. 3469471 

On January 24, 1990, Inspector King issued a 104(d) (1) order 

alleging a violation of 30 C.F.R. § 56.11001, for an accumulation 

of wet slurry on a travelway around a conveyor tail pulley. The 

150 
accumulation was from one to eight inches deep and covered an 

area of 20 feet wide and 60 feet long. The wet slurry was very 

slippery. Footprints were seen in the walkway. The walkway was 

not heavily travelled. No one was cleaning in the area when the 

order was issued. The order was terminated on January 25, 1990, 

after the area was barricaded and the slurry was hosed away. 

STATUTORY PROVISION 

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

(d) (1) If, upon any inspection of a coal or 

other mine, an authorized representative of 

the Secretary finds that there has been a 

violation of any mandatory health or safety 

standard, and if he also finds that, while 

the conditions created by such violation do 

not cause imminent danger, such violation is 

of such nature as could significantly and 

substantially contribute to the cause and 

effect of a coal or other mine safety or 

health hazards, and if he finds such 

violation to be caused by an unwarrantable 

failure of such operator to comply with such 

mandatory health or safety standards, he 

shall include such finding in any citation 

given to the ope~ator under this Act. If, 

during the same inspection or any subsequent 

inspection of such mine within 90 days after 

the issuance of such citation, an authorized 

representative of the Secretary finds another 

violation of any mandatory health or safety 

standard and finds such violation to be also 

caused by an unwarrantable failure of such 

operator to so comply, he shall forthwith 

issue an order requiring the operator to 

cause all persons in the area affected by 

such violation, except those persons referred 

to in subsection (c) to be withdrawn from, 

and to be prohibited from entering, such area 

until an authorized representative of the 

Secretary determines that such violation has 

been abated. 

(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 

151 
an inspection of _such mine which discloses no 

similar violations, the provisions of 

paragraph (1) shall again be applicable to 

that mine. 

REGULATIONS 

30 c.F.R. § 57.11001 provides as follows: 

Safe means of access shall be provided and 

maintained to all working places. 

30 C.F.R. § 56.20003 provides as follows: 

ISSUES 

At all mining operations--

( a) Workplaces, passageways, storerooms, 

and service rooms shall be kept clean and 

orderly; 

(b) The floor of every workplace shall be 

maintained in a clean and, so far as 

possible, dry condition. Where wet processes 

are used, drainage shall be maintained, and 

false floors, platf'orms, mats, or other dry 

standing places Shall be provided where 

practicable; and 

(c) Every floor, working place, and 

passageway shall be kept free from protruding 

nails, splinters, holes or loose boards, as 

practicable. 

lo Whether the violations charged in the citations and 

orders were established by the evidenceo 

lao Whether to establish the violations chargedp 

it is necessary to show that employees were actually working 

in the cited areas when the citations and orders were 

issued. 

2o Whether the violations charged in citations 3444248 and 

3469434 and in order 3469438 were properly designated significant 

and substantialo 

3o Whether the violations charged in citation 3469434 and 

Orders 3469435, 3469437, 3469438, 3469439, 3469440 and 3469471 

were the result of USS's unwarrantable failure to comply with the 

cited standards and whether the citation and orders were properly issued. 

4. If the violations are established, what are the 

appropriate penalties. 

152 
CONCLUSIONS OF LAW 

I 

USS is subject to the provisions of the Mine Act in the 

operation of the Minntac Plant and I have jurisdiction over the 

parties and subject matter of these proceedings. 

II 

The safety standard contained in 30 C.F.R. § 56.11001 

requires mine operators to provide and maintain safe means of 

access to all working places. I interpret this to require that 

all ordinarily used travelways be kept clear of slipping and 

tripping hazards. I do not accept the argument that only 

designated travelways are covered by this standard. I conclude 

that all walkways or passageways used by miners, whether they are 

engaged in maintenance, cleaning or production are covered by the 

standard. I interpret working places to include all areas where 

work is ordinarily performed. I do not accept USS's argument 

that the standard only appli~s to areas where work is being 

performed at the time the violation is cited. such an 

interpretation is unrealistic, and not in keeping with the 

promotion of health and safety envisioned by the Mine Act. 

III 

The safety standard contained in 30 C.F.R. § 56.20003 

requires mine operators to keep workplaces and passageways clean 

and orderly; it requires them to keep workplace floors clean and, 

so far as possible, dry, and to maintain drainage and dry 

standing places where wet processes are used. As in my 

interpretation of § 56.11001, I conclude the standard applies to 

all workplaces and passageways, even though no work was being 

performed at the time of the cited violationsu and even though 

the passageways were not designated or regularly used as such. 

The standard recognizes that some operations will result in wet 

conditions: the issue in each of the cited violations is whether 

there were excessive amounts of dust, dirt, slurry, etc., in the 

cited areaso 

It is not clear in the citations and orders involved herein, 

why some were issued under § 56.11001 (safe means of access to 

working places) 1 and some under§ 56.20003 (housekeeping 

requirements) o Most of th~ violations charged under either 

standard involve walkwayso There is an overlap in the 

requirements of the two standards, however, and I do not find 

that any of the citations or orders improperly cited one standard 

or the other. 

153 
IV 

The evidence concerning citation 3444248 shows that portions 

of a walkway 20 feet by 30 feet were covered with 2 inches of 

slippery slurry. There were also hoses buried in the slurry. 

The area was a washdown floor, and employees had been assigned to 

clean it. However, no one was cleaning it at the time it was 

cited. The condition rendered the walkway unsafe. A violation 

of 30 C.F.R. § 56.11001 is established. It was moderately 

serious and the result of ordinary negligence. 

citations 3469424 and 2469425 were issued because of dust 

and other materials on walkway. In both cases, the accumulation 

had existed for some time. The walkways were not frequently 

used. Violations of 30 C.F.R. § 56.20003 are established. They 

were not serious but resulted from USS's negligence. 

citation 3469426 charged a violation of § 56.11001 because 

of an accumulation of ore on a walkway up to 8 inches deep 

covering an area of 10 feet by 3 feet. Employees seldom entered 

the area. The condition had existed for some time. It was 

moderately serious and resulted from more than ordinary 

negligence. 

citations 3469427 and 3469248 both charge violations of 

§ 56.20003 because of ore, hoses and other materials (427), and 

slurry and ore (428). Both cases involve walkways and extensive 

areas. Both were low traffic areas. I conclude that the 

violations were established; that they are not serious and were 

the result of negligence. 

Citations 3469429, 3469431, and 3469433 charge safe access 

violations: § 56.11001. Each involves a substantial 

accumulation of wet slurry on walkways. The areas were not 

frequently travelled. The extent of the accumulations make the 

violations moderately serious. They resulted from USS negligence 

which was mitigated to some extent by the fact that the pumps 

needed for cleanup were inoperative. 

Citation 3469434 was issued under section 104(d} (1) charging 

a violation of § 56.11001 because of an accumulation of slurry 

along a walkway with hoses ·lying across the walkway. The walkway 

was used by a large number of employees. It posed a hazard to 

such employees and a violation was established. It was serious 

and resulted from the negligence of USS. 

Orders 3469435, 3469437, 3469438, 3469439, and 3469440 were 

issued under section 104(d) (1) and charge violations of § 

56.11001 because of accumulations of ore along walkways, slurry 

along walkways, slurry and water covering the entire floor. In 

each instance, I conclude that a violation was established. In 

each case it was moderately serious and the result of the 

negligence of USS. The negligence concerning the violation 

154 
charged in order 3469437 is mitigated by the fact that a sign 

restricting access was present. 

Order 3469471 charges a violation of § 56.11001 because of 

an accumulation of wet slurry along an infrequently used walkway. 

A violation was established. It was not serious but was the 

result of negligence. 

v 

Citations 3444248 and 3469434 and Order 3469438 charge· 

violations of a significant and substantial nature. The 

Commission has held that a violation is significant and 

substantial if there is a reasonable likelihood that the hazard 

contributed to by the violation will result in an injury of a 

reasonably serious nature. Mathies Coal Company, 6 FMSHRC 1 

(1984); U.S. Steel Mining, Incorporated, 6 FMSHRC 1834 (1984). 

In each of the violations involved here, substantial areas of 

accumulation were involved. The walkways were frequently 

travelled. Both slipping and tripping hazards were present. I 

conclude that in each instance, serious injuries were likely to 

result. The violatiq_ns were'significant and substantial. 

VI 

citation 3469434 and Orders 3469435, 3469437, 3469438, 

3469439, 3469440, and 34694471 were issued under section 

104(d) (1) and charge that the violations were the result of the 

unwarrantable failure of USS to comply with the standard in 

question. In Emery Mining Corp., 9 FMSHRC 1997 (1987), the 

Commission stated that unwarrantable failure means aggravated 

conduct, constituting more than ordinary negligence. I conclude 

that the Secretary has failed to establish such aggravated 

conduct in relation to any of the cited instances. There were a 

large number of violations of the standards involved herein. 

Miners had complained of cleanup problems on many occasions. On 

the other hand, mitigating circumstances were present in that the 

water pumps were inoperative for a period of time. USS had 

devoted substantial overtime work to attempt to alleviate the 

problems. Negligence was established; unwarrantable failure was 

not 0 The violations were not properly written under section 

104 (d) 0 

ORDER 

Based on the above findings of fact and conclusions of law, 

IT IS ORDERED: 

1. Citations 3444248, 3469426, 3469429, 3469431, 3469433, 

3469424, 3469425, 3469427 and 3469428 are AFFIRMED, Citation 

3444248 including its special finding of a significant and 

substantial violation. 

155 
2. Citation 3469434 and Orders 3469435, 3469437, 3469438, 

3460439, 3469440 and 3469471 are MODIFIED to 104(a) citations; the 

unwarrantable failure finding is removed. 

3. The contest proceedings are thus GRANTED IN PART, in that 

the unwarrantable failure finding is removed, and DENIED IN PART in 

that the violations are AFFIRMED. 

4. Guided by the criteria in section llO(i) of the Act, I 

conclude that the following civil penalties are appropriate for the 

violations and USS shall, within 30 days of the date of this 

decision pay civil penalties as follows: 

CITATION 

3444248 

3469426 

3469429 

3469431 

3469433 

3469434 

3469435 

3569437 

3569438 

3469439 

3469440 

3469471 

3469424 

3469425 

3469427 

3469428 

Distribution~ 

TOTAL 

PENALTY 

$ 250 

350 

400 

400 

400 

750 

750 

600 

750 

750 

750 

200 

200 

200 

200 

200 

$7150 

/ A/:..-//;/; J

fl/t -nc _s __ -'1' -,_, J" 1::Yk'! ,_, ?:~ /t:_, 

James A. Broderick 

Administrative Law Judge 

Billy Mo Tennant, Esq., USS, A Division of USX Corporation, 600 

Grant Street, Room 1580, Pittsburgh, PA 15219-4776 (Certified Mail) 

Miguel Carmona, Esq., U.S. Department of Labor, Office of the 

Solicitor, 230 South Dearborn Street, 8th Floor, Chicago, IL 60604 

(Certified Mail) 

James Ranta, United Steelworkers of America, Loca11938, 307 First 

street North, Virginia, MN 55792 (Certified Mail) 

slk 

156 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 2.4 1991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. KENT 89-201 

A.C. No. 15-16040-03411 

v. 

KEITH LEWALLEN AND 

Docket No. KENT 89-241 

A.C. No. 15-16040-03512 

CHARLES PATTERSON, d/b/a 

TIPPY COAL COMPANY, 

Respondents 

Docket No. KENT 89-263 

A.C. No. 15-16040-03515 

Appearances~ 

Before: 

Docket No. KENT 90-1 

A.C. No. 15-16404-03516 

Docket No. KENT 90-55 

A.C. No. 15-16040-03517 

No. 1 Mine 

DECISION 

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

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

for the Petitioner; 

D. Randall Jewell, Esq., Millward and Jewell, 

Barbourville, Kentucky, for Respondent Keith 

Lewallen; 

Michael Caperton, Esq., London, Kentucky, for 

Respondent Charles Patterson. 

Judge Fauver 

These consolidated cases for civil penalties under § llO(i) 

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

§ 801 seg., came on for hearing in London, Kentucky, on 

November 27, 1990. On the second day of the hearing, the parties 

moved for approval of a settlement agreement. For the reasons 

stated on the record, the motion was granted. This decision 

confirms the bench decision granting the motion to approve 

settlement. 

157 
ORDER 

WHEREFORE IT IS ORDERED that: 

1. The parties' motion to approve settlement, presented at 

the hearing, is GRANTED. 

2. Respondents Charles Patterson and Keith Lewallen, doing 

business as Tippy Coal Company, are both found to be operators 

within the meaning of the Act. 

3. Each of the citations and orders for which civil 

penalties are sought in these proceedings is AFFIRMED. 

4. Respondents shall pay civil penalties of $11,338.00 in 

the monthly payments set forth below, provided: Respondent Keith 

Lewallen's liability (which is joint and several with the 

liability of Respondent Charles Patterson) is limited to $400.00: 

January 27, 1991 - $500.00 

February 27, 1991 - $500.00 

March 27, 19-91 - $560.00 

April 27, 1991 - $500.00 

May 27, 1991 - $500.00 

June 27, 1991 - $500.00 

July 27, 1991 - $500.00 

August 27, 1991 - $500.00 

September 27, 1991 - $500.00 

October 27, 1991 - $500.00 

November 27, 1991 - $500.00 

December 27, 1991 - $500.00 

January 27, 1992 - $500.00 

February 27, 1992 - $500.00 

March 27, 1992 - $500.00 

April 27, 1992 - $500.00 

May 27, 1992 - $500.00 

June 27, 1992 - $500.00 

July 27, 1992 - $500.00 

August 27, 1992 - $500.00 

September 27, 1992 - $500.00 

October 27, 1992 - $838.00 

5. The failure of the Respondent Charles Patterson to make 

any one of the monthly payments ordered herein without the prior 

consent of the District Manager, District 7, of the Mine Safety 

and Health Administration, Unites states Department of Labor, 

158 
shall cause the entire amount of remaining payments to be 

immediately due and payable. 

Distribution: 

C;);d~ ~Vfrl- William Fauver 

Administrative Law Judge 

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) 

D. Randall Jewell, Esq., Millward and Jewell, P.O. Box 650, 

Barbourville, KY 40906 (Certified Mail) 

Michael Caperton, Esq., P.O. Box 5130, London, KY 40745 

(Certified Mail) 

/fb 

159 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 2 4 1991 

RONALD L. SHRIVER, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

Docket No. WEVA 90-286-D 

MORG CD 90-09 

Osage No. 3 Mine 

ORDER OF DISMISSAL 

Before: Judge Melic~ , 

Complainant requests approval to withdraw his Complaint in 

the captioned case on the grounds that the parti~s have reached a 

mutually agreeable settlement. Under the circumstances herein, 

permission to withdraw is granted. 29 C.F.R. § 2700.11. This 

case is therefore dismissed and the h. a. rings sche'ldul.ed 

January 30, 1991, are accordingμ r;~~f \ o~~~ 

!Gary e~J.Ck \ : \μ · 

Admin·stration\r.aw Judge 

( 703) ;756-6261 \J I 1 

Distribution~ f! 

I 

Allen Karlin, Esq., 174 Chancery Row, Morgantown, WV 26505 

(Certified Mail) 

Walter Scheller III, Esq.~ Consolidation Coal Companyu Consol 

Plaza, 1800 Washington Road, Pittsburgh, PA 15241 (Certified 

Mail) 

nb 

160 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 2 4 1991 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

EXPLOSIVES TECHNOLOGIES 

INTERNATIONAL, INC., 

Respondent 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. 'cENT 90-95-M 

A.C. No. 34-01285-05502 AFS 

Meridian Aggregates Co. 

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

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

Secretary of Labor (Secretary); 

Volker E. Schmidt, President, Explosives 

Technologies International, Inc., for Respondent. 

Before: Judge Broderick 

STATEMENT OF THE CASE 

The Secretary seeks civil penalties for two alleged 

violations of mandatory health and safety standards. Pursuant to 

noticeu the case was called for hearing in Kansas City, Missouri, 

on December 13, 1990c Norman Lavalle, Richard Goff, and Steve 

Viles testified on behalf of the Secretary" Volker Schmidt 

testified on behalf of Respondent. At the completion of the 

hearing, both parties argued their positions on the record and 

waived the right to file post hearing briefs. I have considered 

the entire record and the contentions of the parties in making 

the following decision. 

FINDINGS OF FACT 

1. In November 1989 and January 1990, Respondent was a 

contractor at the site of a mine owned and operated by Meridian 

Aggregates. Meridian produced crushed granite. Respondent did 

drilling under contract with Meridian. 

2. Respondent's operation is small. Between May 17, 1989 

and the date of the citations involved herein, three violations 

were issued to Respondent at the Meridian facility. This history 

is not such that penalties otherwise appropriate should be 

increased because of it. 

161 
3. on November 21, 1989, Federal Mine Inspector Norman 

Lavalle conducted a noise survey at the Meridian Aggregates Mine. 

He attached a dosimeter to the operator of an Atlas Copco 712 

drill employed by Respondent. It disclosed noise exposure of 

2.94 times the exposure limit, equivalent to 98 dba for an 8 hour 

shift. A citation was issued for a violation of 30 C.F.R. § 

56.5050(b). 

4. On January 10, 1990, a compliance assistance inspection 

was conducted by Inspector Lavalle and MSHA District health 

specialist Steve Viles. Viles was of the opinion that a noise 

barrier shield could be used on the Atlas Copco 712 drill to 

reduce the noise exposure for the drill operator. 

5. Respondent leased the Atlas Copco Drill from the Mining 

Supply and Equipment Company, paying $5500 per month. 

6. The operator of the drill was wearing personal hearing 

protection at the time the citation was issued. 

7. The citation was terminated on January 10, 1990. The 

Atlas Copco was replaced by another drill and Respondent informed 

MSHA that the Atlas Copco would be removed from the property. 

8. On January 10, 1990, the boom support structure of 

Respondent's Robbins Drill had cracks in the metal. The drill 

was not being operated at the time. Its clutch was being 

repaired. A citation was issued for a violation of 30 C.F.R. § 

56.7002. 

9. The cracks in the structure had been present for some 

time, as there was oil and grease found in the crack. 

lOo The citation was terminated February 26, 1990 after the 

boom support structure was repaired by welding it. 

REGULATIONS 

30 C.F.R. § 56.5050 provides that when an employee's noise 

exposure exceeds the equivalent of 90 dBA per 8 hours of 

exposure, Vifeasible administrative or engineering controls shall 

be utilized. If such controls fail to reduce exposure to within 

permissible levels, personal protection equipment shall be 

provided and used .... 11 

30 C.F.R. § 56.7002 provides as follows: 

Equipment defects affecting safety shall be 

corrected before the equipment is used. 

CONCLUSIONS OF LAW 

162 
1. Meridian Aggregates is a mine and Respondent is an 

independent contractor performing services at the mine. 

Therefore it is an operator. I have jurisdiction over the 

parties and subject matter of this proceeding •. 

2. on November 21, 1989, a drill operator employed by 

Respondent was exposed to a noise level in excess of that 

specified in the table contained in 30 C.F.R. § 56.5050. 

3. There were feasible administrative and engineering 

controls which could have been utilized to reduce the noise level 

to which the employee was exposed. 

4. The fact that the drill was not owned but was leased by 

Respondent is not a defense to a charge of violation of the noise 

standard. The evidence establishes a violation of 30 C.F.R. 

§ 56.5050(b). ' 

5. The violation was not serious. It resulted from 

Respondent's ordinary negligence. It was abated within the time 

set for termination as extended. I conclude that an appropriate 

penalty for the vio~ation is '$so. 

6. on January 10, 1990, there were cracks in the metal of a 

drill boom support structure. The drill was not being operated 

at the time the condition was discovered because its clutch was 

being repaired. The cracks had existed for some time. The 

evidence establishes a violation of 30 C.F.R. § 56.7002. 

7. The violation was not serious. It resulted from 

Respondent's ordinary negligence. It was abated within the time 

set for termination. I conclude that an appropriate penalty for 

the violation is $50. 

ORDER 

Based on the above findings of fact and conclusions of law, 

IT IS ORDERED: 

i. citations 3283281 and 3271867 are AFFIRMED. 

2. Respondent shall within 30 days of the date of this 

decision pay the Secretary the sum of $100 for the violations 

found herein. 

j;~~~: ~4!;~:~:::! Administrative Law Judge 

163 
Distribution: 

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

Solicitor, 525 Griffin Street, Suite 501, Dallas, TX 75202 

(Certified Mail) 

Mr. Volker E. Schmidt, Explosives Technologies International, 

P.O. Box J, Greenwood, MO 64034 (Certified Mail) 

slk 

164 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 2 9 1991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BETHEL FUELS INCORPORATED, 

Respondent 

Docket No. WEVA 90-186 

A.C. No. 46-06647-03555 

No. 1 Deep Mine 

DECISION APPROVING SETTLEMENT 

This case is before me upon a petition for assessment of 

civil penalty under Section 105(d) of the Federal Mine Safety and 

Health Act of 1977 (the Act). Petitioner has filed a motion to 

approve a settlement agreement and to dismiss the case. 

Respondent has agreed to pay the proposed penalty of $600 in 

full. I have considered the representations and documentation 

submitted in this case, and I conclude that the proffered 

settlement is appropriate under the criteria set forth in 

Section llO(i) of the Act. 

WHEREFORE, the motion for approval of settlement is G TED, 

and it ORDERED that Respondent pay a penalty of $600 wi. hin 

30 days of this ordero The hearings previously scheduled 'n this 

case are accordingly cancelledo 

ary Mel · /f.fiv~l Distribution~ 

Pamela S, Silverman, Esq., U.S. Depart 

the Solicitor, 4015 Wilson Blvd., Rm. 

(Certified Mail) 

of Labo ,,, Off ice of 

Arlington, VA 22203 

Mr. Junior Golden, Vice President, Bethel Fuels, Inc., Route 7, 

Box 510, Morgantown, WV 26505 (Certified Mail) 

ml 

165 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 311991 

CHARLES T. SMITH, 

complainant 

DISCRIMINATION PROCEEDING 

v. Docket No. KENT 90-30-D 

KEM COAL COMPANY, 

Respondent 

BARB CD 89-27 

Appearances: 

Before: 

DECISION 

Michaels. Endicott, Esq., Ed Spencer's Law 

Offices, Paintsville, Kentucky, for the 

Complainant; 

Timothy Joe Walker, Esq., Reese, Lang & Breeding, P.s.c., London, Kentucky, for the Respondent. 

Judge Fauver 

By decision of October 31, 1990, Respondent was found to 

have discharged Complainant in violation of § lOS(c) (1) of the 

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

seq. Based upon that decision, the parties stipulated damages 

and costs (except an attorney's fee) in the amount of $21,864.18, 

including interestu through October 31, 1990. 

Complainant also seeks an attorney fee of $7,500.00, and an 

order establishing an attorney fee of $150.00 an hour for any 

future legal work on appe~l of this case. 

Respondent opposes the proposed attorney fee and seeks a 

reduced award" The record indicates that counsel for Complainant 

has expended 30.15 hours in legal work in this case thus far. It 

further indicates that a reasonable and customary fee for 

comparable cases in the Eastern Kentucky area is $150.00 an hour. 

In determining a reasonable attorney fee, the recognized 

starting point is the number of hours reasonably expended on the 

litigation multiplied by a reasonable hourly rate. A reasonable 

hourly rate is defined as that prevailing in the community for 

similar work. once established, this computation may be 

adjusted upward or downward for unusual or special circumstances. 

I find that this case does not present unusual or special 

circumstances warranting an adjustment of a computation based on 

an hourly rate of $150.00. 

166 
FINAL ORDER 

Respondent, Kem coal Company, shall immediately pay 

Complainant (1) $21,864.18, reflecting back pay and other 

stipulated damages with interest through October 31, 1990, and 

(2) damages, with interest, incurred since October 31, 1990, 

until Complainant is reinstated or rejects a bona fide offer of 

reinstatement. 

Respondent, Kem Coal Company, is FURTHERED ORDERED to pay 

Complainant's attorney an attorney fee of $4,522.50, based on a 

hourly rate of $150.00 for 30.15 hours expended on this 

litigation, and a future fee based on an hourly rate of $150.00 

for any legal work reasonably expended on this matter after the 

date of this decision. 

This Decision and the Decision of October 31, 1990, 

constitute a final disposition of this matter. 

4i~al;aMj/eA.- Administrative Law Judge 

Distribution: 

Michaels. Endicott, Esq., L.E., "Ed" Spencer and Associates, 

83 Main Street, P.O. Box 1176, Paintsville, KY 42140 (Certified 

Mail) 

Timothy Joe Walkeru Esqov Reece, Lang & Breeding, P.S.C., London 

Bank & Trust Building, 400 South Main Street, P.O. Drawer 5087, 

London, KY 40745-5087 (Certified Mail) 

/ml 

167 
rEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

January 31, 1991 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

DRUMMOND COMPANY, INC., 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. SE 90-124 

A. C. No. 01-00323-03638 

Chetopa Mine 

DECISION APPROVING SETTLEMENT 

ORDER TO PAY 

Before: Judge Merlin 

The parties have filed a joint motion to approve settlement 

of the two violations involved in this case. The originally 

assessed penalty was $790 and the proposed settlement is $690. 

The parties discuss the violations in light of the six statutory 

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

and Health Act of 1977. 

Citation No. 3016679 was issued for a violation of 30 

C.F.R. § 75.400 because coal and coal dust were allowed to 

accumulate on the slope belt. The originally assessed penalty 

was $395 and the proposed settlement $345. citation 

No.3016542 was issued for a violation of 30 C.F.R. § 75.400 

because coal and coal dust were allowed to accumulate on the 10 

east belt. The originally assessed penalty was $395 and the 

proposed settlement $345. The parties represent that the 

reductions are warranted because gravity was not as severe as had 

been first estimated. According to the parties~ gravity less 

because of the operator 1 s fire monitoring system along the belt 

lines. The parties further advise that the operator has a 

monitoring system which detects the presence of carbon monoxide 

along the belt lines. In the event of a fire, the monitoring 

system sounds a warning alarm alerting the responsible person and 

identifying the belt line with the problem. I accept the foregoing representations and based upon them find that gravity was 

somewhat less than originally thought. Accordingly, I approve 

the recommended settlement. 

168 
Accordingly, it is ORDERED that the proposed settlement be 

APPROVED and the operator PAY $690 within 30 days of the date of 

this decision. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

William Lawson, Esq., Office of the Solicitor, u. s. Department 

of Labor, suite 201, 2015 second Avenue North, Birmingham, AL 

35203 (Certified Mail) 

J. Fred McDuff, Esq., Drummond Company, Inc., P. o. Box 10246, 

Birmingham, AL 35202 (CertifiedMail) 

Ms. Joyce Hanula, Legal Assistant, UMWA, 900 15th Street, NW., 

Washington, DC 20005 (Certified Mail) 

/gl 

169 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

January 31, 1991 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

DRUMMOND COMPANY, INC., 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. SE 90-143 

A. C. No. 01-00515-03764 

Mary Lee No. 1 Mine 

DECISION APPROVING SETTLEMENT 

ORDER TO PAY 

Before: Judge Merlin 

The parties have filed a joint motion to approve settlement 

of the seven violations involved in this case. The originally 

assessed penalty was $2,289 and the proposed settlement is 

$1,544. The parties discuss the violations in light of the six 

statutory criteria set forth in section 110(i) of the Federal 

Mine Safety and Health Act of 1977. 

Citation No. 3016649 was issued a 104(d) (1) citation for a 

violation of 30 C.F.R. § 75.1105 because there were five batteries and three chargers located in the battery charging station 

that were not housed in a fire proof area. The originally 

assessed penalty was $1,000 and the proposed settlement is $255. 

The parties represent that the reduction is warranted because 

negligence was not at all as severe as had been first estimated. 

According to the parties, there were over twenty batteries 

located in the area and only five were not protected in a fire 

proof manner, all of which were located to close to the coal 

ribs. In light of these circumstances, MSHA has modified the 

citation from a 104(d) (1) citation to a 104(a) citation and 

reduced negligence from high to moderate. I accept the foregoing 

representations and based upon them find that negligence was less 

than originally thought. Accordingly, I approve the recommended 

settlement. 

With respect to the six remaining citations, the parties 

advise that the operator has agreed to pay those proposed 

penalties in full. 

170 
Accordingly, it is ORDERED that the proposed settlements be 

APPROVED and the operator PAY $1,544 within 30 days of the date 

of this decision. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

William Lawson, Esq., Office of the Solicitor, U. s. Department 

of Labor, 2015 Second Avenue, Suite 201, Birmingham, AL 35203 

(Certified Mail) 

J. Fred McDuff, Esq., Drummond Company, Inc., P.O. Box 10246, 

Birmingham, AL 35202 (Certified Mail) 

Joyce Hanula, Legal Assistant, UMWA, 900 15th St., N.W., Washington, D.C. 20005 (Certified Mail) 

/gl 

171 
172