JULY 1991 

COMMISSION DECISIONS 

07-18-91 Mustang Fuels Corporation 

ADMINISTRATIVE LAW JUDGE DECISIONS 

07-01-91 

07-01-91 

07-02-91 

07-02-91 

07-08-91 

07-08-91 

07-10-91 

07-12-91 

07-12-91 

07-15-91 

07-15-91 

07-15-91 

07-15-91 

07-17-91 

07-17-91 

07-17-91 

07-17-91 

07-17-91 

07-17-91 

07-19-91 

07-19-91 

07-22-91 

07-22-91 

07-23-91 

07-25-91 

07-25-91 

07-25-91 

07-25-91 

07-29-91 

07-30-·91 

07-31-91 

OK and WV Coal Company 

Ramblin Coal Company, Inc. 

Hickory Coal Company 

Consolidation Coal Company 

Custon Crushing Inc. 

Consolidation Coal Company 

Peabody Coal Company 

Red Arrow Gold Corporation 

Mettiki Coal Compgny 

Donald Northcutt, Gene Myers & Ted Eberle v. 

Ideal Basic Industries, Inc. 

United States Steel Mining Co. 

Beechgrove Processing Company 

Francis A. Marin v. ASARCO, Inc. 

Don Fnaze employed by Liter's Quarry of Indiana 

Thomas D. Shumaker, UMWA on behalf of Michael 

Kelecic, etc. v. Consolidation Coal Co. 

Energy West Mining Company 

Ronnie E. Price v. Consolidation Coal Company 

Consolidation Coal Company 

Consolidation Coal Company 

Anthony Mining Company 

Southern Ohio Coal Company 

Kelly L. Diede v. Summit Incorporated 

Energy West Mining Company 

Billy R. Sipple employed by Shillelagh Mining 

Old Ben Coal Company 

Old Ben Coal Company 

Aloe Coal Company 

Jet Concrete Incorporated 

Pyro Mining Company 

RB Coal Company, Inc. 

James D. McMillen employed by Shellelagh Mining 

ADMINISTRATIVE LAW JUDGE ORDER 

05-20-91 ASARCO, Incorporated 

KENT 91-100 

CENT 91-13 

KENT 90-428 

PENN 90-49 

WEVA 91-105 

WEST 90-184-M 

WEVA 91-49 

KENT 91-101 

WEST 90-215-M 

YORK 89-42 

CENT 89-162-DM 

PENN 91-39 

SE 90-120 

WEST 91-161-DM 

LAKE 91-63-M 

PENN 90-202-D 

WEST 91-406-R 

WEVA 90-308-D 

WEVA 91-92 

WEVA 91-181 

LAKE 90-87 

LAKE 91-650-R 

CENT 90-160-DM 

WEST 91-83-R 

WEVA 90-177 

LAKE 91-59 

LAKE 91-4Lf 

PENN 91-40 

WEST 90-273-M 

KENT 90-340-R 

KENT 90-338 

WEVA 90-200 

Pg. 1061 

Pg. 1063 

Pg. 1069 

Pg. 1071 

Pg. 1076 

Pg. 1083 

Pg. 1089 

Pg. 1097 

Pg. 1099 

Pg. 1101 

Pg. 1102 

Pg. 1103 

Pg. 1108 

Pg. 1113 

Pg. 1116 

Pg. 1119 

Pg. 1120 

Pg. 1122 

Pg. 1131 

Pg. 1133 

Pg. 1134 

Pg. 1149 

Pg. 1155 

Pg. 1164 

Pg. 1174 

Pg. 1177 

Pg. 1178 

Pg. 1181 

Pg. 1185 

Pg. 1187 

Pg. 1189 

Pg. 1198 

SE 88-82;...RM Pg. 

JULY 1991 

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

Asarco, Inc., v. Secretary of Labor, MSHA, Docket Nos. SE 88-82-RM, etc. 

(Judge Weisberger, Interlocutory Review of May 20, 1991 Order.) 

[Published in this issue] 

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

Secretary of Labor, MSHA v. Midwest Minerals, Inc., and Richard R. 

Atkinson, Docket No. CENT 90-60-M, CENT 91-51-M. (Judge Koutras, Interlocutory 

Review of May 30, 1991 Order.) 

Larry E. Burns v. Blattner & Sons, Inc., Docket No. WEST 90-166-DM. (Judge 

Lasher, June 21, 1991.) 

Homestake Mining Company v. Secretary of Labor, MSHA, Docket No. CENT 90-108-RM. 

(Judge Lasher~ June 21, 1991.) 

COMMISSION DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

MUSTANG FUELS CORPORATION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 18, 1991 

Docket No. KENT 91-100 

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

BY THE CO.MMISSION: 

In this civil penalty proceeding arising under the Federal Mine Safety 

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

Commission Chief Administrative Law Judge Paul Merlin issued an order of 

default on June 17, 1991, finding Mustang Fuels Corporation ("Mustang") in 

default for failure to respond to his April 23, 1991, order to show cause. 

The judge assessed a civil penalty of $450.00. For the reasons that follow, 

we vacate the default order and remand the case for further proceedings. 

On June 25, 1991, the Commission received an undated letter from 

Mustang that contains a statement of the reasons why disagrees with 

the civil penalty proposed by the Secretary of Labor in this case. The 

judge 1 s jurisdiction over the case terminated when his decision was issued 

on June 17, 1991. 29 C.F.R. § 2700.65(c). Under the circumstances 

presented, we deem Mustang's letter to be a timely petition for 

discretionary review of the judge's default order. ~. Middle States 

10 FMSHRC 1130 (September 1988). The petition is granted. 

The record discloses that on June 19, 1990, an inspector of the 

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

a citation pursuant to section 104(a) of the Mine Act, alleging a 

violation of 30 C.F.R. § 77.807-1, and an imminent danger withdrawal order 

to section 107(a) of the Mine Act, alleging that sufficient 

clearance from a high-voltage cable was not provided in an area in which a 

dozer was being operated. Mustang filed a "Blue Card" request for a 

before this .Commission. When no answer to MSHA' s Proposal for Assessment of 

Civil Penalty was filed, Judge Merlin issued an order directing Mustang to 

file an answer within 30 days or show good cause for its failure to do so. 

When no response was received, Judge Merlin issued an order finding Mustang 

in default for failure to answer the Secretary's civil penalty proposal and 

the show cause order, and assessing the $450 civil penalty proposed by the 

Secretary. 

1061 
On June 25, 1991, the Commission received a letter from Donna Johnson, 

the secretary and treasurer of Mustang, in which Ms. Johnson alleges that 

John Kerr, the president of Delta Fuels Corporation ("Delta"), hired Mustang 

as the "underground miner" for the mine, and hired another company as its 

"surface mine contractor." Johnson explains that surface mining operations 

were being conducted by the other contractor when the subject citation and 

order were issued on June 19, 1990, but that Mustang "never ran any coal at 

any time" out of the mine, and had no control over the surface mine 

contractor. It appears that both the citation and the order of withdrawal 

were issued for conditions present on the surface. She further states that 

Mr. Kerr assured Mustang that the "citations would be taken care of," and 

that, subsequently, Kerr left the country. 

Ms. Johnson also attached to her letter a separate undated letter 

addressed to MSHA from Mustang stating that the mine "has been and will be 

permanently aban[doned]. This was effective on August 1, 1990." The 

subject citation and order were issued at the mine on June 19, 1990, and 

terminated on July 5, 1990. 

Mustang appears to be a small company proceeding without benefit of 

counsel. In conformance with the standards set forth in Fed. R. Civ. P. 

60(b)(l), the Commission has previously afforded such a party relief from 

default upon a colorable showing of inadvertence, mistake, or excusable 

neglect. JL_g_,_, A.H. Stone Company, 11 FMSHRC 2146, 2147 (November 1989). 

Here Mustang asserts that it failed to respond to the judge's order because 

it relied upon Kerr's alleged representation that the citation "would be 

taken care of," and that it believed that it was not the party responsible 

for any violative conduct. On the basis of the present record, we are 

unable to evaluate the merits of Mustang's assertions, but, in the interest 

of justice, we will permit Mustang to present its position to the judge, who 

shall determine whethe~ relief from the default order is warranted. 

Accordingly, we grant Mustang's petition for discretionary review, 

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

consistent ·with this order. 

L. Clair Nelson, Commissioner 

1062 
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 

JUL 1 1991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. CENT 91-13 

Petitioner A. c. No. 34-01633-03520 

v. 

OK & WV COAL COMPANY, 

Respondent . . DECISION 

No. l Mine 

Appearances: Robert A. Fitz, Esq., Office of the Solicitor, 

u. s .. Department of Labor, Dallas, Texas, for the 

Secretary of Labor (Secretary); 

A. F. Robinson and R. v. Bell, Madison, 

We?t Virginia, for OK & WV Coal Company (OK & WV). 

Before: Judge Broderick 

STATEMENT OF THE CASE 

In this proceeding, the Secretary seeks civil penalties for 

two alleged.~vielations of mandatory health and safety standards 

cited following an investigation of a fatal electrical accident 

at the subject mine on January 12, 1990. Pursuant to notice, the 

case was called for hearing in Tulsa, Oklahoma, on May 21, 1991. 

Ronnie Wilburn, Paul Cash, James Vince Smedley and Harold Shaffer 

testified on behalf of the Secretary. OK & WV did not call any 

witnesses. At the close of the hearing, both parties waived 

their right to file post hearing briefs, and each made a closing 

argument on the record" I have considered the entire record and 

the contentions of the parties, and make the following decision. 

FINDINGS OF FACT 

1. OK & WV was the operator of an underground coal mine in 

Okmulgee County, Oklahoma, from August 1989 to August 1990, known 

as the No. 1 Mine. The mine is currently operated by another 

company. 

2. The mine produced 31,834 tons of coal in 1989 and 

32,098 tons in the first quarter of 1990. The operator decided 

"it was impossible to make money there and we decided to sever 

our contract and try to dissolve our business in Oklahoma" 

(Tr. 103). I find that OK & WV was a small mine operator. 

1063 
3. From the time the mine opened and until January 12, 

1990, OK & WV was cited for 36 violations, none of which involved 

30 c.F.R. § 75.509 or § 75.511. In view of the fact that the 

mine operated for such a short period of time, I find that this 

history is not such that penalties otherwise appropriate should 

be increased because of it. 

4. Dover Varney was employed at the subject mine in January 

1990, as an electrician. He was an experienced and certified 

electrician, one of four employed at the mine. He had 13 years 

mining experience, and had worked 4 months at the subject mine. 

Mr. Ronnie Wilburn, the chief electrician and Mr. Varney's 

supervisor, believed that Varney was the ablest electrician at 

the mine including Wilburn. 

5. The crew on the day shift at OK & WV on January 12, 

1990, was having trouble with the continuous mining machine 

beginning about 12:30 p.m. When they attempted to operate the 

machine, the circuit breaker knocked out the power. The first 

shift electrician Paul cash was working on it. 

6. The chief electrician Wilburn and second shift 

electrician Dover Varney went.underground at about 2:00 p.m., on 

January 12, prior to the beginning of the second shift. cash and 

Varney deenergized the miner and took off the control panel. 

They disconnected the pump motor and planned to tram the miner 

from the area. However, when they energized the miner and 

replaced the panel, they were unable to start the miner. 

7. Leaving the miner energized, they again removed the 

control panel. Varney looked in the compartment and saw that the 

circuit brea:Jte:i'was "kicked." He checked the No. 1 circuit with 

his voltmeter which showed no voltage. Wilburn, who stated that 

he "wasn't that familiar with the machine," told Varney that he 

thought there was stiLt power on the machine (Tr. 40). Cash, who 

was crawling away toward his tool box, and whose cap lamp had 

dimmed, said 91 Dover, one breaker doesnvt kill all the power in 

that box~ (Tr. 50). 

8. Varney replied, as he reached in the panel, "if it has 

power on it~ it 1 s the first one I 1 ve ever .•• 11 At that moment 

he received the electric shock from the 450 volt circuit. This 

occurred about 5:00-p.m. 

9. The trailing cable was deenergized. CPR was 

administered and Varney was taken to the surf ace and transported 

to the hospital by ambulance. He was pronounced dead on arrival 

at 5~22 p.m. 

1064 
10. Varney was not wearing gloves at the time of the fatal 

accident. The electricity apparently entered his body through 

his forearm just below the elbow. He was kneeling on the wet 

floor at the time. 

11. Chief electrician Wilburn was standing about 5 feet from 

Varney when the accident occurred. He was facing Varney and 

talking to him as found in 7. and 8. above. Cash, as I found 

above, was crawling away from the machine. 

12. The cover to the control panel on the miner contained a 

printed instruction that the trailing cable must be deenergized 

before working in the compartment. Wilburn, however, was not ~ware of this instruction prior to the fatal accident. 

13. On January 15, 1990, Federal Coal Mine Inspector Harold 

Shaffer investigated the accident. He issued a 103(k) Order, a 

104(d) (2) Order charging a violation of 30 C.F.R. § 75.512, and a 

104(a) citation charging a violation of 30 C.F.R. § 75.1720(c). 

14. On January 16, 1990, Inspector Shaffer issued a 

modification of the 104(d) (2}.0rder to show the correct section 

of 30 C.F.R. as 75.511. 

15. The order was terminated on January 16, 1990, after a 

training course on locking out and tagging procedures was 

presented to the mine's electricians by the mine manager and an 

MSHA-qualified instructor. 

16. When the case was called for hearing, the Secretary 

moved to amend the Proposal for Penalties and the 104(d) (2) Order 

to charge a -~iolation of 30 C.F.R. § 75.509 rather than 30 C.F.R. 

§ 75.511. OK & WV did not object and the motion was granted. 

REGULATIONS 

No electrical work shall be performed on low-, 

medium-, or high-voltage distribution circuits or 

equipmentv except by a qualified person or by a person 

trained to perform electrical work and to maintain 

electrical equipment under the direct supervision of a 

qualified person. Disconnecting devices shall be 

locked out and suitably tagged by the persons who 

perform such work, except that in cases where locking 

out is not possible, such devices shall be opened and 

suitably tagged by such persons. Locks or tags shall 

be removed only by the persons who installed them or, 

if such persons are unavailable, by persons authorized 

by the operator or his agent. 

1065 
30 C.F.R. § 75.509 provides: 

All power circuits and electric equipment 

shall be deenergized before work is done or 

such circuits and equipment, except when 

necessary for trouble shooting or testing. 

30 C.F.R. § 75.1720 provides in part: 

ISSUES 

• • . each miner regularly employed in the 

active workings of an underground coal mine 

shall be required to wear the following 

protective clothing and devices: 

* * * 

(c) Protective gloves when handling 

materials or performing work which might 

cause injury to the hands; however, gloves 

shall not be worn where they would create a 

greater hazard by becoming entangled in the 

moving parts of equipment. 

lo Whether the evidence establishes that OK & WV failed to 

deenergize electric equipment before working on such equipment? 

2. If so, was it necessary to have the equipment energized 

for trouble shooting or testing? 

3. Whether the requirement that protective gloves be worn 

applies to the facts shown in this proceeding? 

4o If the two violations charged occurredv what are the 

proper penalties therefor? 

CONCLUSIONS OF LAW 

lo OK & WV was subject to the provisions of the Mine Act in 

the operation of the subject minev and I have jurisdiction over 

the parties and subject matter of this proceeding. 

2" On January 12, 1990, OK & WV in the person of 

electrician Dover Varney performed work on electric equipment, 

namely the electric panel of a continuous mining machine without 

deenergizing the machine. 

3. It was not necessary to have the machine energized while 

performing the work for trouble shooting or testing. 

1066 
4. Therefore, a violation of 30 C.F.R. § 75.509 is 

established by the evidence in this proceeding. 

5. The protective clothing standard requires gloves to be 

worn when performing work which might course injury to the hands. 

The Secretary's Program Policy Manual July 1, 1988, interpreting 

Section 75.1720(c) requires that "miners wear gloves whenever 

they troubleshoot or test energized electric power circuits or 

electric equipment." (Gx 11). 

6. Therefore the failure of Varney to wear gloves when 

testing the energized electric circuit of the continuous miner 

was a violation of 30 C.F.R. § 75.1720(c). 

7. The fatal electrical accident resulted from the 

violation of 30 C.F.R. § 75.509 referred to in conclusion 4. 

Therefore, the violation was extremely serious. 

8. OK & WV in the person of its chief electrician was aware 

of the violation and observed its occurrence. On the other hand, 

the chief electrician warned the victim of the danger. Further, 

the victim was a highly qual±f ied and certified electrician who 

should have known not to reach in an energized circuit 

compartment. These factor mitigate OK & WV's negligence. 

9. Considering the facts established on this record in the 

light of the criteria in Section llO(i) of the Act, I conclude 

that a civil penalty of $2500 is appropriate for the violation of 

75.509. 

10. The evidence does not establish that the violation of 

30 C.F.R. §""75'.1720(c) was related to the fatal accident. The 

electric current entered the victim's body on his forearm below 

the elbow which would not have been covered by a glove. He was 

kneeling on the wet flooro OK & WV made gloves available, but 

apparently did not require the miners to wear them. The 

violation was of moderate gravity and resulted from ordinary 

negligence. 

11. Considering the facts established on this record in the 

light of the criteria in Section llO(i) of the Act, I conclude 

that a civil penalty of $100 is appropriate for the violation of 

Section 75o1720(C)oORDER 

Based on the above findings of fact and conclusions of law, 

IT IS ORDERED: 

1. Order No. 2929848 issued January 15, 1990, as amended is 

AFFIRMED. 

1067 
2. Citation No. 2929857 issued January 16, 1990, is 

AFF:IRMED. 

3. OK & WV shall within 30 days of the date of this order 

pay to the Secretary of Labor the following civil penalties: 

CITATION/ORDER 

2929848 

2929857 

Distribution: 

30 C.F.R. 

75.509 

75.l720(c) 

TOTAL 

AMQUNT 

$2500 

$....lQ.Q 

$2600 

/f'tf~~ k1J~d+i6/t. ~ ~ames A. Broderick . v- Administr.ati ve Law Judge 

Robert A. Fitz, Esq., Office ,<:?,f the Solicitor,. u. s. Department 

of Labor, 525 Griffin-Street, suite 501, Dallas, TX 75202 

(Certified Mail) 

Mr. David R. Lange, OK & WV Coal Company, P. o. Box 326, 

Henryetta, OK 74437 (Certified Mail) 

dcp 

1068 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLl!":IE. 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 1 l991 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

RAMBLIN COAL COMPANY, INC., 

Respondent 

. . 

. . 

. . 

. . 

. 

. • 

ORDER 

. . 

CIVIL PENALTY PROCEEDINGS 

Docket No. KENT 90-428 

A.C. No. 15-16104-03533 

No. 5 Mine 

Docket No. KENT 90-429 

A.C. No. 15-16685-03510 

Docket No. KENT 90-430 

A.C. No. 15-16685-03511 

No. 8 Mine 

These consolidated cases came on for hearing at 

Prestonsburg, Kentucky, on June 18, 1991. Various motions were 

made and ruled upon from the bench. This Order confirms the 

bench rulings. 

WHEREFORE IT IS ORDERED that: 

1. The motion for approval of settlement in Docket Noa 

KENT 90-428 is GRANTED. Respondent shall pay the approved civil 

penalty of $105 within 30 days of this Order and upon such 

payment Docket No. KENT 90-428 is DISMISSED. 

2" In Docket No" KENT 90-430, the Secretary 9 s motion to 

vacate citation No. 3367869 is GRANTED. 

3. In Docket No. KENT 90-429, the motion to approve 

settlement of the following citations, in the civil penalty 

amounts shown, is GRANTED. 

Citation 

3367128 

3510164 

3510419 

Civil Penalty 

$91 

$20 

$112 

Respondent shall pay the approved civil penalties of $223 

within 30 days of this Order. 

1069 
4. STAY ORDER: as to all remaining citations in Docket No. 

KENT 90-430 and as to Citation No. 3509948 in Docket No. KENT 90-

429, further proceedings are STAYED pending the Commission's 

decision in Hobert Mining, Inc., Docket No. WEVA 91-65. 

5. A decision on the merits of the remaining citations in 

Docket No. KENT 90-429 shall be rendered after consideration of 

the parties' briefs. 

lfA -7'~ )· ~ 12 W1A v V\_ 

Wil iam Fau er 

Administrative Law Judge 

Distribution: 

Joseph B. Luckett, Esquire, Office of the Solicitor, U.S. 

Department of Labor, 2002 Richard Jones Road, Suite B-201, 

Nashville, TN 37215 (Certified Mail) 

Billy Shelton, Esquire, Baird, Baird, Baird & Jones, PSC., P. o. 

Box 351, Pikeville, KY 41502 (Certified Mail) 

/fas 

1070 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 2 1991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. PENN 90-49 

A.C. No. 36-07783-03516 

v. Slope No. 1 Mine 

HICKORY COAL COMPANY, 

Respondent 

Appearances: 

DECISION 

Anthony O'Malley, Jr., Esq., Office 

of the Solicitor, U.S. Department 

of Labor, Philadelphia, PA, for the 

Secretary of Labor; 

Mr. William Kutsey, Owner, Hickory 

coal company, Pine Grove, PA, pro 

se. 

Before: Judge Fauver 

The Secretary of Labor seeks civil a penalty for an alleged 

violation of the Federal Mine Safety and Health Act of 1977, 30 

u.s.c. § 801 et seg. 

Having considered the hearing evidence, oral arguments, and 

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

substantial, reliable, and probative evidence establishes the 

following Findings of Fact and further findings in the Discussion below~ 

FINDINGS OF FACT 

1. At all relevant time, William Kutsey, doing business as 

Hickory Coal Company, operated an underground coal mine known as 

Slope No. 1 Mine in or near Ravine, Schuylkill County, 

Pennsylvania, where he produced coal for sales in or affecting 

interstate commerce. 

2. On September 19, 1989, Federal Mine Inspectors arrived 

at Respondent's Slope No. 1 Mine for the purpose of providing 

technical assistance and to conduct a § lOl(c) petition for 

modification investigation. When Mr. Kutsey was informed that 

the underground investigation would also include enforcement 

1071 
action (i.e. citations or orders issued under the Act) for any 

outstanding or unabated violations, he shut down the hoist engine 

and informed the inspectors that no further underground work 

would occur that day, and that the inspectors would not have 

access to the underground mine. 

3. The action taken by Respondent on September 19, 1989, 

prevented the inspectors from performing their official 

inspection and investigative duties under the Act. Because of 

such action by Respondent, Inspector Charles c. Klinger issued 

Citation No. 2676993, on September 19, 1989, charging a violation 

of § 103(a) of the Act. 

4. On September 21, 1989, the inspectors returned to the 

mine and Mr. Kutsey continued to deny the inspectors entry to the 

mine. Because of this conduct, Inspector Klinger issued a 

withdrawal order (No. 2676995), on September 21, 1989, forbidding 

any persons to enter the mine until entry by inspectors was 

permitted by Respondent. 

5. Because of Respondent's denial of entry to the mine, 

inter alia, the Secretary brought a civil action in the United 

States District Court for the Eastern District of Pennsylvania, 

Secretary of Labor v. William Kutsey, t/a Hickory Coal Company 

(Civil Action No. 89-7874). On February 1, 1990, after an 

evidentiary hearing, the Court found that, on September 19, 1989, 

and September 21, 1989, defendant had refused entry to the mine 

and was continuing to operate a front-end loader in violation of 

a prior withdrawal order. The Court issued a preliminary 

injunction, enjoining defendant from denying authorized 

representatives of the Secretary entry to the mine and from 

interfering with, hindering, or delaying the Secretary of Labor 

or her authorized representatives in carrying out the provisions 

of the Act. The Court also enjoined defendant from permitting 

any person, except persons referred to in § 104(c) of the Act, 

from entering the mine until the Secretary terminated, modified 

or withdrew Order Noo 26769950 

6. Respondent, acting through William Kutsey, had denied 

Federal Mine Inspectors access to the subj~ct mine before 

September 19, 1989, and had direct knowledge of the requirements 

of § 103(a} of the Act before such date. 

DISCUSSION WITH FURTHER FINDINGS 

William Kutsey has had a longstanding dispute with MSHA over 

the requirements for adequate roof-control at the subject mine. 

He has not agreed to certain provisions that MSHA would require 

for approval of a roof-control plan at his mine. Also, Mr. 

Kutsey appears to have a personal conflict with one of the MSHA 

inspectors. These conflicts apparently gave Mr. Kutsey the 

misguided belief that he could obtain a resolution of his 

differences with MSHA by denying the inspectors entry to the mine 

until his disputes were settled. This, of course, is an 

1072 
inappropriate reaction and one that is unlawful under this 

statute. Section 103(a) of the Act provides: 

Authorized representatives of the Secretary 

or the Secretary of Health, Education, and 

Welfare shall make frequent inspections and 

investigations in coal or other mines each 

year for the purpose of (1) obtaining, 

utilizing, and disseminating information 

relating to health and safety conditions, the 

causes of accidents, and the causes of 

diseases and physical impairments originating 

in such mines, (2) gathering information with 

respect to mandatory health or safety 

standards, (3) determining whether an 

imminent danger exists, and (4) determining 

whether there is compliance with the 

mandatory health or safety standards or with 

any citation, order, or decision issued under 

this title or other requirements of this Act. 

In carrying out the requirements of this 

subsection, no advance notice of an 

inspection shall be provided to any person, 

except that in carrying out the requirements 

of clauses (1) and (2) of this subsection, 

the Secretary of Health, Education, and 

Welfare may give advance notice of 

inspections. In carrying out the 

requirements of clauses (3) and (4) of this 

subsection, the Secretary shall make 

inspections of each underground coal or other 

mine in its entirety at least four times a 

year, and of each surface coal or other mine 

in its entirety at least two times a year. 

The Secretary shall develop guidelines for 

additional inspections of mines based on 

criteria including, but not limited to, the 

hazards found in mines subject to the Act, 

and his experience under this Act and other 

health and safety laws. For the purpose of 

making any inspection or investigation under 

this Actu the Secretary, or the Secretary of 

Health, Education, and Welfare, with respect 

to fulfilling his responsibilities under this 

Act, or any authorized representative of the 

Secretary or the Secretary of Health, 

Education, and Welfare, shall have a right of 

entry to, upon, or through any coal or other 

mine" 

The allegations of citation No. 2676993 and Order No. 

2676995 are sustained by a preponderance of the reliable 

evidence. 

1073 
In arriving at a civil penalty, I will consider Respondent's 

financial condition, the size of the operation, and the other 

criteria for civil penalties in § llO(i) of the Act. I note that 

Government Exhibit 4, the print-out of Respondent's prior 

violation charges and civil penalties from March 1, 1986, to 

November 26, 1990, shows total assessments of $7,842.00 in back 

penalties with zero payment of penalties. The payment or nonpayment of final civil penalties (i.e •• those that are not 

pending litigation) is part of the operator's history of 

compliance in § llO(i) of the Act. In light of Respondent's 

total delinquent history as to Government Exhibit 4, I will give 

Respondent an opportunity to propose to the Secretary a 

settlement and schedule of payments of the back penalties before 

assessing a penalty for the violation found in this case. If a 

suitable agreement is not reached by the parties for the payment 

of back penalties, I will consider Respondent's delinquent status 

as an adverse factor in assessing a penalty in this case. 

CONCLUSrONS OF LAW 

1. The judge has jurisdiction in this proceeding. 

2. Respondent violated § 103(a) of the Act as alleged in 

citation No. 2676993 and Order No. 2676995. 

ORDER 

WHEREFORE IT IS ORDERED that: 

1. Citation No. 2676993 and Order No. 2676995 are 

AFFIRMED. 

2. Pending assessment of a civil penalty for the violation 

found hereinu Respondent shall have 15 days from this Decision 

and Order to propose a settlement and schedule of payments to the 

Secretary of Labor, regarding the arrearage of $7,842.00 in back 

penaltieso The parties shall file a report of the results of any 

negotiations concerning such matter, not later than July 22, 

1991. 

~~~ William Fauver 

Administrative Law Judge 

1074 
Distribution: 

Anthony G. O'Malley, Jr., Esq., Office of the Solicitor, U.S. 

Department of Labor, 3535 Market Street, Philadelphia, PA 19104 

(Certified Mail) 

Mr. William Kutsey, Hickory Coal Company, R.D. #1, Box 479, Pine 

Grove, PA 17963 (Certified Mail) 

fas 

1075 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 2, 1991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. WEVA 91-105 

A. C. No. 46-01438-03872 

v. Ireland Mine 

CONSOLIDATION COAL COMPANY, 

Respondent 

DECISION 

Before: Judge Merlin 

statement of the Case 

This case is a petition for the assessment of a civil 

penalty filed under sections 105(d) and llO(i) of the Federal 

Mine Safety and Health Act, 30 u.s.c. § 815(d) and§ 820(i), 

(hereafter referred to as the "Act"), by the Secretary of Labor 

against Consolidation Coal Company for a violation of 30 C.F.R. 

§ 70.lOO(a) which is a restatement of section 202(b) (2) of the 

Act v 3 0 U o S . C o § 8 4 2 ( b) ( 2 ) o 

30 CoFoRo § 70olOO(a) provides as followsg 

(a) Each operator shall continuously maintain 

the average concentration of respirable dust in 

the mine atmosphere during each shift to which 

each miner in the active workings of each mine is 

exposed at or below 2.0 milligrams of respirable 

dust per cubic meter of air as measured with an 

approved sampling device and in terms of an equivalent concentration determined in accordance with 

§ 70.206 (Approved sampling devices; equivalent 

concentrations)o 

Citation No. 3327204 dated October 29, 1990, charges a 

violation of 30 C.F.R. § 70.lOO(a) for the following condition or 

practice. 

Computer message 0321-002, advisory No. 0203, 

dated October 22, 1990, shows the average concentration of respirable dust in the working environment of the 044, longwall operator (tailgate 

side), for MMU 005-0, was 2.1 milligrams which 

1076 
Each 

the basis 

matters. 

agreement 

exceeds the applicable standard of 2.0 mgm/3 

(sic). First the mine operator shall take corrective measures to lower the respirable dust, then 

sample the 044 occupation the following production 

shifts until five (5) valid samples are submitted 

to MSHA, St. Clairville, Ohio 43950 (Mailing 

Labels Included). 

Stipulations 

of the parties has submitted the case for decision on 

of stipulations which are in agreement except for a few 

The stipulations are adopted to the extent they are in 

as follows: 

(1) The Chief Administrative Law Judge of the Federal Mine 

Safety and Health Review Commission has jurisdiction to hear and 

decide this civil penalty proceeding pursuant to Section 105 of 

the Federal Mine Safety and Health Act of 1977: 

(2) The operator has an average history of prior violations 

for a mine operator o; its size. There were at least six (6) 

violations of 30 C.F.R. § 70.lOO(a) at the Ireland Mine prior to 

October 29, 1990: 

(3) Citation No. 3327204, the current violation, was issued 

on October 29, 1990, for a violation of 30 C.F.R. § 70.lOO(a). 

The respirable dust average of 2.1 milligrams is correct and is 

based on an average of five respirable dust test results of 1.1, 

0.8, 3.1, 2.7, and 3.0; 

(4) The only issue to be determined is whether the violation constituted a significant and substantial violation as 

defined by the Act; 

(5) Inspector Ted Zitko was acting in his duly authorized 

and official capacity as a Mine Safety and Health Administration 

Inspector when Citation No. 3327204 was issued on October 29, 

1990; 

(6) citation No. 3131217 was issued on March 13, 1990, for 

a previous violation of 30 C.F.R. § 70.lOO(a) based on the 

average of five (5) respirable dust tests that were performed in 

February 1990; 

(7) Citation No. 3131217 was issued for a violation that 

occurred on the 044 longwall MMU-005-0 section, which is the same 

section as the current alleged violation. The average respirable 

dust level in Citation No. 31a1217 was 2.7 milligrams; 

1077 
(8) The information contained in Citation No. 3131217 that 

was issued for the previous violation of March 13, 1990, is 

accurate and is a final Commission decision. The Court may take 

judicial notice of the contents of the file of that case which 

were attached and ideptified by the secretary as Document A. 

(9) The operator is considered a large mine operator for 

purposes of 30 u.s.c. § 820(i); 

(10) The operator has demonstrated good faith in achieving 

compliance after notice of the violation in both Citation Nos. 

3327204 and 3131217; 

{11) If a hazard existed, at least two {2) miners were 

exposed; 

(12) Ireland Mine had no fatal injuries in 1989 or in 1990. 

As of January 1991, the disabling injury frequency rate for the 

Ireland Mine is 3.45 and the disabling injury frequency rate for 

the coal industry is 10.87; 

(13) The maximum penalty which could be assessed for this 

violation pursuant to 30 u.s.c. § 820(a) will not affect the 

ability of the operator to remain in business. 

statement of the rssue 

As set forth in the stipulations, the violation is admitted. 

The issue presented for determination is whether the violation 

was "significant and substantial" within the purview of 

Commission and judicial precedents. 

Precedents 

In Consolidation Coal Company, 8 FMSHRC 890 (June 1986)u the 

Commission decided that a respirable dust concentration of 4ol 

mg/m3 constituted a significant and substantial violation. In so 

holding the Commission adopted principles which appropriately 

serve as a guide for resolution of the present matter. Similarthe Court of Appeals which affirmed the Commission in Consolidation Coal Company Vo Federal Mine Safety and Health Review 

Commission, 824 Fo2d 1071 (Do C. Ciro 1987), further elucidated 

the precepts which govern this inquiry. 

In Consolidation Coal Company, the Commission recognized the 

unambiguous legislative purpose to prevent disability from 

pneumoconiosis or any other occupation-related disease. The 

Commission stated that Congress intended the 2.0 mg/m3 standard 

to be the maximum permissible·. -,;xposure level in order to achieve 

its goal of preventing disabling respiratory disease. 8 FMSHRC 

at 897. The respirable dust violation was then analyzed to 

1078 
determine whether it was significant and substantial in accordance with the four step test enunciated by the Commission in 

National Gypsum Co., 3 FMSHRC 822 (1981) and Mathies Coal 

Company, 6 FMSHRC 1 (1984). The respirable dust violation was 

admitted (first step) and the Commission held that any exposure 

above the 2.0 mg/m3 level established a measure of danger to 

health (second step). 8 FMSHRC at 898. In finding a reasonable 

likelihood that the hazard would result in illness (third step), 

the Commission stated that although a single incident of overexposure would not in and of itself establish a reasonable likelihood, the development of respiratory ~isease was due to cumulative overexposure with precise predict1

ion of whether and when 

respiratory disease would develop being impossible. 4 FMSHRC at 

898. Accordingly, the Commission held that if the Secretary 

proves an overexposure in violation of § 70.lOO(a) a presumption 

arises that there has been established a reasonable likelihood 

that the health hazard will result in illness. 8 FMSHRC at 899. 

Finally, the commission found there was no serious dispute that 

the illness in question would be of a reasonably serious nature 

(fourth step). 8 FMSHRC at 899. Because the four elements of 

the significant and substantiaLtestwould be satisfied in any 

case where there was a violation of§ 70.lOO(a), the Commission 

held that when the Secretary finds a violation of§ 70.lOO(a), 

a presumption that the violation is significant and substantial 

is appropriate. The presumption may be rebutted by proof of 

non-exposure. 8 FMSHRC at 899. 

Upon review, the court of Appeals affirmed the Commission 

and upheld its adoption of the presumption that all respirable 

dust violations of § 70.lOO(a) are significant and substantial. 

The Court stated in pertinent part as follows: 

* * * The determination of the likelihood 

of harm from a violation of an exposure-based 

health standard necessarily rests on generalized 

medical evidence concerning the effects of exposure to the harmful substance, rather than on 

evidence specific to a particular violation. 

* * * Once the Commission had determined 

on the basis of medical evidence that any violation of the respirable dust standard should be 

considered significant and substantial, it would 

be meaningless to require that the same findings 

be made in each individual case in which a violation occurs. * * * 

* * * * * * 

The Commission's adoption of the presumption 

at issue here is consistent with congressional 

1079 
intent in enacting the Mine Act, and specifically 

with Congress's use of the "significant and 

substantial" language. 

824 F.2d at 1084, 1085. 

Analysis 

I conclude that the foregoing decisions of the Commission 

and the court of Appeals compel a finding that the violation in 

this case is significant and substantial. Admittedly, the 

average concentration in this case was 2.1 mg/m3 , whereas it was 

4.1 mg/m3 in Consolidation coal Company. However, as set forth 

above, the Commission in consolidation Coal Company adopted a 

presumption that all exposures above the 2.0 mg/m3 limit specified in § 70.lOO(a) are significant and substantial. In this 

case the operator has offered no evidence, such as non-exposure 

through the wearing of protective equipment, to rebut the 

presumption which is therefore, determinative. 

In arguing that the violation here is not significant and 

substantial the operator reries upon the Commission's reference 

in Consolidation Coal Company to statements in the legislative 

history of the 1969 Coal Act that in a dust environment below 

2.2 mg/m3 there would be virtually no probability of contracting 

pneumoconiosis even after 35 years of exposure at that level. 

8 FMSHRC at 896-897. The operator's argument cannot be accepted. 

Although the Commission referred to the cited legislative 

history, it did not decide that overexposure violations of a 

certain magnitude could be considered non significant and substantial. On the contrary, as explained above, the Commission's 

analysis and holdings regarding the four elements necessary for 

an overexposure violation to be considered significant and 

substantial 0 are grounded solely upon the 2.0 mg/m3 ceiling of 

§ 70.lOO(a)o So too, the Commission 9 s creation of the presumption0 that any overexposure violation is significant and substantial 0 is specifically cast in terms of all violations of 

§ 70.lOO(a), i.e. 2.0 mg/m3 as the maximum ceiling. It is well 

settled that absent a clearly expressed legislative intention to 

the contrary, the language of the statute itself must be regarded 

as conclusive. Burlington Northern Railroad Co. v. Oklahoma Tax 

Commission, 481 U.S. 454, 461 (1987); Consumer Product Safety 

Commission v. GTE Sylvania Inc., 447 U.S. 102, 108 (1980). 

Moreover, the Court of Appeals in Consolidation Coal Company 

specifically rejected the operator's suggestion that the standard 

for designating an overexposure violation as significant and 

substantial must be higher than 2.0 mg/m3 required for a violation. The Court said it could not say that Congress intended 

that some concentration of re!:?>irable dust higher than 2.0 mg/m3 

be found before the violation could be designated as significant 

and substantial. 824 F.2d at 1084-1085. Rather it held that the 

Commission's adoption of the presumption of significant and 

1080 
substantial was consistent with the Congressional intent in 

enacting the Mine Act. 824 F.2d at 1085. 

In addition, the Court decided that in the legislative 

history the statements regarding non-probability of pneumoconiosis at a 2.2 mg/m3 level did not provide a basis to reject the 

commission's adoption of the significant and substantial presumption. 824 F.2d at 1085-1086. The court held that the operator's 

arguments failed to consider the cumulative effects of repeated 

overexposure and that its position could not be reconciled with 

the Congressional intent to prevent respirable disease. 824 F.2d 

at 1086. Finally, the Court pointed out that Congress did not 

merely require dust concentrations be maintained below 2.0 mg/m3 

"over the long term" as the operator suggested, but mandated 

instead that the concentration be "continuously" maintained below 

the specified level "during each shift". 824 F.2d at 1086. 

Therefore, the reference in the legislative history to a "dust 

environment" of 2.2 mg/m3 or less, relied upon by the operator is 

something quite different from the exacting requirements Congress 

actually placed in the law. 

The arguments the operator advances in this case are the 

very ones it made in Consolidation Coal Company. And just as the 

Commission and the Court of Appeals rejected them previously, so 

they must be rejected here. The Commission's presumption that 

any respirable dust violation is significant and substantial 

applies here and determines the result. For me to carve out some 

intermediate and indeterminate zone in which a non significant 

and substantial violation exists would not only be contrary to 

the terms of the Act and underlying Congressional purposes, but 

also would be precluded by the decisions of the Commission and 

the Court of Appeals. 

It should be noted that the record in this case further 

demonstrates that the instant violation was significant and 

substantialo Although the subject citation was issued for an 

average concentration of 2.1 mg/m3 , a citation issued seven 

months previously was for an average dust level of 2.7 mg/m3 

(Stipulation No. 7)o Accordingly, even if the language in the 

legislative history regarding a dust environment below 2.2 mg/m3 

could otherwise be of comfort to the operator, the record shows 

that on the subject longwall section the dust environment was not 

anywhere near, much less below the 2.2 mg/m3 level "continuously" 

and 91 during each shift"o 

In light of the foregoing, I find the cited violation was 

significant and substantial. 

The Solicitor 1 s Stipulat:.-Dn No. 4 proposes that an issue to 

be determined is whether the violation was due to moderate 

1081 
negligence. The operator's proposed stipulations are silent.on 

negligence. Because there is no evidence on the matter, I find 

the operator was not negligent. Cf. 824 F.2d at 1076. 

I conclude the violation was serious and accept the stipulations of the parties with respect to the other criteria of 

section llO(i). Therefore, I conclude an appropriate penalty is 

$300. 

I take note of the decision in Cyprus Empire Corporation, 11 

FMSHRC 1795 September (1989), but for the reasons set forth 

herein, I decline to follow it. 

The briefs of the parties have been reviewed. To the extent 

they are inconsistent with this decision they are rejected. 

ORDER 

It is ORDERED that the finding of significant and 

substantial in Citation No. 3327204 be AFFIRMED. 

It is further ORDERED that the operator PAY $300 within 

30 days of the date of this decision. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution~ 

Wanda Mo Johnson, Esqo, Office of the Solicitoru U. So Department 

Laborv 4015 Wilson Boulevardu Room 516, Arlingtonu VA 22203 

(Certified Mail) 

Walter J. Scheller, Esq., Consolidation Coal Company, 1800 

Washington Roadu Pittsburghu PA 15241 (Certified Mail) 

Mr. Leo Conner, UMWA, RD lu Box 192A, Glen Easton, WV 26039 

Certified Mail) 

/gl 

1082 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CUSTOM CRUSHING INC., 

Respondent 

DENVER, CO 80204 

JUL g \99\ 

. 

. 

. . 

. 

. 

. . 

. 

. 

: 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 90-184-M 

A.C. No. 42-01816-0SSQJ 

Custom Crushing # 1 

Appearances: Susan J. Eckert1· Esq • ., Off ice of the Solicitor, 

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

for Petitioner1 

Steve Zabriskie, President, Custom Crushing Inc., 

Taylorsville, Utah, 

pro ~ 

Before: Judge Morris 

The Secretary of Labor, on behalf of the Mine Safety and 

Health Administration C"MSHA11 ) charges Respondent custom Crushing, 

Inc., with violating safety regulations promulgated under the 

Federal Mine Safety and Health Act, 30 u.s.c. § 801, et ~ Cthe 

uuAct") 

A hearing on the merits was held in Salt Lake Cityu Utah, on 

April 30u 19910 The parties waived the filing of post-trial 

briefs. 

STIPULATION 

At the commencement of the hearing, the parties stipulated as 

followsg 

lo Custom Crushing, Inc., is engaged in the mining of sand 

and gravel in the United States, and its mining operations affect 

interstate commerce. 

2. custom crushing, Inc., is the owner and operator of the 

Custom Crushing #1 Portable Crusher, MSHA I.D. No. 42-01816-05507. 

3. Custom Crushing, Inc., is subject to the jurisdiction of 

the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801, et ~(the "Act"). -

1083 
4. The Administrative Law Judge has jurisdiction in this 

matter. 

5. The subject citations were 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 their 

issuance, and not for the truthfulness or relevance 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 the truth of the matters asserted therein. 

7. The proposed penalty will not affect Respondent's ability 

to continue in business. 

8. The Operator demonstrated good faith in abating the 

violations. 

9. Custom Crushing, Inc,., is a small operator of a sand and 

gravel portable crush~r with 7,952 control hours worked in 1989. 

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 citations. 

Citation No. 2652565 

In this citation, MSHA charges respondent with violating 30 

C.F.R. § 56.12002. 1 

The evidence is uncontroverted: On March 6, 1990, MSHA 

Inspector James Skinneru an electrical and hoisting specialist, 

inspected Respondento 

l The cited regulation provides as followsg 

§ 56.12002 Controls and switches. 

Electric equipment and circuits shall be 

provided with switches or other controls. 

Such switches or controls shall be of approved 

design and construction and shall be properly 

installed. 

1084 
The Operator's electrical control panels were located in the 

control trailer. The electrical panels, opened by the Inspector, 

housed protective breakers for individual circuits of the electrical motors throughout the plant. 

Each panel is six feet high and two to three feet wide. CExs. 

P-2 and P-3 are photographs of the outer doors of the panels.) 

After opening the door, the Inspector observed two rows of 

circuit breakers with holes where a circuit breaker had been removed and a hole had been cut (Tr. 17). After the panel doors to 

the energized panels were closed, the Operator objected to their 

being reopened. As a result, no inside measurements were made and 

no photographs of the interior were taken. 

Exhibit P-4 is an illustration of a circuit breaker panel 

taken from the National Electrical Code book (NEC), 1990 Edition. 

Due to the holes, Respondent's panel was unlike those illustrated in the NEC. (Tr. 19). The holes in the inner panel were 

about 3 to 4 inches. _ As a riidlt of the described condition, a 

worker could come into contact with a three-phase 480 volt current. 

(Tr. 22). If a worker would touch one of the busses and be 

grounded, he would receive a 277-volt shock. Voltage as low as 48 

can be fatal. (Tr. 23). 

The design for electrical panels is approved by a national 

organization, the National Electrical Manufacturers Association 

CNEMA). The NEMA approves of bare busses but an inner covering 

panel or "dead front" is required. Respondent's inner panel had 

been altered. (Tr. 28). 

In the Inspectores opinionu the violation occurred because the 

circuit breakers had been altered from the original designo The 

change was where a circuit breaker had been removedu leaving a 

holeu and at least one hole had been cut in the panel. (Tr. 33u 

34)o The alteration of the dead front panel left holes in it. 

(Tr. 35). 

The violation was abated by posting signs on the outside panel 

stating that the doors should not be opened unless the generator 

was de-energizedo (Tro 36)o 

STEVE ZABRISKIEu President of Respondent 0 submitted 

photographs of the electrical panelo However, the witness did not 

rebut the testimony of Inspector Skinner concerning the holes in 

the inner electrical panel. He further confirmed that a worker 

could be shocked if he contacted the wires in the holes cut in the 

panel. (Tr. 6 5) • 

1085 
DISCUSSION 

It is uncontroverted that the electrical panel in Respondent's control trailer had been altered. The focus of MSHA's 

regulation § 56.12002 is that the electrical controls were not of 

"approved design and construction." 

Inspector Skinner testified the design for such panels is 

approved by NEMA. While Nema approves bare busses, they must be 

covered. The "dead front" inner panel is a NEMA feature. (Tr. 

28). 

The design of the internal cover of Respondent's panel board 

had been altered. {Tr. 33). Figure 384-3 of Exhibit P-4 shows a 

panelboard. The panelboard in the illustration is without openings such as those at Respondent's electrical panel. 

Section 56.12002 must be construed in light of its underlying purpose--the protection of miners exposed to the equipment's 

use. That purpose was plainJ.yset forth in the Secretary's statement of purpose and scope of the Part 56 standards, which provided: 

"The purpose of these standards is the protection of life, the promotion of health and safety, and the prevention of accidents." 

30 u.s.c. § 56.1. Any overly narrow or restrictive reading of the 

scope of Section 56.12002 cannot be reconciled with that statement 

of purpose or with the fundamental protective ends of the Mine Act 

itself, as set forth in the Mine Act. See 30 u.s.c. § 80l(a), Cd), 

and Ce>. Compare Ideal Cement Company,-U FMSHRC 2409 (1990). No 

doubt, the purpose of an inner panel without holes is to protect a 

miner from corning in contact with live busses and terminals. 

On the record here, Citation Noe 2652565 should be affirmed. 

Citation Noo 2652567 

This citation alleges a violation of 30 C.F.R. § 56.15004. 2 

The cited regulation providesg 

§ 56¢15004 Eye protection. 

All persons shall wear safety glasses, goggles v or face shields or other suitable protective devices when in or around an area of 

a mine or plant where a hazard exists which 

could cause injury to unprotected eyes. 

1086 
The evidence is uncontroverted: On the following day, during the inspection, Mr. Skinner observed the crusher operator in 

the wooden booth near the primary jaw-crusher. The Operator was 

not wearing safety glasses nor did he have eye protection while 

his head was outside of the window opening. CTr. 40, 42). His 

head was in this position for about five minutes. (Tr. 43). The 

jaw-crusher, which can throw rock splinters, was three to four 

feet below the employee. CTr. 44: Exs. R-1 and R-2 show the 

booth and employee.) Upon being questioned, the employee said 

he had eye glasses but he was unable to produce them. 

The violation was abated when the employee was provided with 

glasses. (Tr. 45). 

Witness Zabriskie offered photographs CExs. R-1, R-2) and 

basically confirmed Inspector Skinner's testimony. (Tr. 55-57). 

DISCUSSION 

The uncontroverted evidence establishes that the crusher 

operator was leaning outside of the booth. In this position, he 

was three to five fee_t above 'the jaw-crusher. The hazard of 

flying rock splinters was apparent. 

The factual situation establishes a violation of 30 C.F.R. 

§ 56.15005 and Citation No. 2652567 should be affirmed. 

CIVIL PENALTIES 

The statutory criteria to assess civil penalties is contained in Section llOCi) of the Act, 30 u.s.c. § 820(i). 

The Operator's history is very favorable. In the two years 

ending March Su 1990 0 the company received no citationso In the 

iod before March 6u 1988 0 there were nine citationso 

The parties have stipulated that Respondent is a small operator and the proposed penalties will not affect its ability to 

continue in business. 

The Operator was negligent as to both citations since it 

should have known of the violations. 

The gravity was moderate though remote. Severe injuries 

could occur if the circumstances were ideal. 

Respondent promptly abated the violations. 

1087 
On balance, a civil penalty of $50 is appropriate for each 

violation. 

Accordingly, I enter the following: 

ORDER 

1. Citation No. 2652565 is AFFIRMED and a civil penalty 

of $50 is ASSESSED. 

2. Citation No. 2652567 is AFFIRMED and a civil penalty 

of $50 is ~SSESSED. 

Law Judge 

Distribution~ 

Susan Jo Eckert 0 Esq.u Office of the Solicitor 0 U.S. Department of Labor 8 1585 Federal Office Building 0 1961 Stout Street 0 

Denver 0 CO 80294 (Certified Mail) 

Steve Zabriskie 0 Pres. 0 CUSTOM CRUSHING, INC., 5660 Cora Way, 

Taylorsville 0 UT 84118 (Certified Mail) 

ek 

1088 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 8 i99\ 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. WEVA 91-49 

Petitioner A. c. No. 46-01867-03866 

Vo 

CONSOLIDATION COAL COMPANY, 

Respondent 

Docket No. WEVA 91-50 

A. C. No~ 46-01867-03867 

Docket No. WEVA 91-62 

A. C. No. 46-01867-03869 

Blacksville No. 1 Mine 

: Docket No. WEVA 91-3 

A. C. No. 46-01968-03881 

Docket No. WEVA 91-51 

A. C. No. 46-01968-03885 

Blacksville No. 2 Mine 

DECISION 

Appearances~ Page H. Jackson? Esq. 9 Office of the Solicitoru 

Uo s. Department of Labor, Arlington, Virginia, 

for the.~Secretary of Labor, (Secretary); 

Walter J. Scheller III, Esq., Pittsburgh, 

Pennsylvania, for Consolidation Coal Company 

(Consol). 

Before~ Judge Broderick 

STATEMENT OF THE CASE 

Pursuant to notice, the above cases were called for hearing 

in Morgantown, West Virginia, on April 17, 1991. Counsel for the 

Secretary made an oral motion on the record to approve settlements of the violations charged in Docket Nos. PENN 91-3, 91-49, 

91-51, and 91-62. He also moved to approve settlements in three 

of the four citations included in Docket No. PENN 91-50. The 

remaining 104(d) (2) Order in PENN 91-50 was heard on the merits. 

Dale R. Dinning and Raymond L. Ash testified on behalf of the 

Secretary. John M. Morrison and John M. Weber testified on 

behalf of Consol. Both parties filed post hearing briefs with 

respect to the contested order. 

1089 
PROPOSED SETTLEMENTS 

Docket No. WEVA 91-3 includes two 104(a) citations, one 

alleging a violation of 30 C.F.R. § 75.1725(a), the other a 

violation of 30 C.F.R. § 75.303(a). They were assessed at $292 

and $227 respectively, and Consol agrees to pay the assessed 

amount. I have considered the motion in light of the criteria in 

Section llO(i) of the Act, and conclude that it should be 

approved. 

Docket No. WEVA 91-49 includes four citations, two of which 

charge violations of 30 C.F.R. § 75.303(a). The Secretary moves 

to vacate one of these, Citation No. 3314125 on the ground that 

the area covered by the citation overlaps with that covered by 

Citation No. 3314130. With respect to remaining three citations, 

Consol agrees to pay the assessed amounts, $434 for Citation 

No. 3314124, $434 for Citation No~ 3314129, and $276 for Citation 

No. 3314130. I have considered the motion in the light of the 

criteria in Section llO(i) of the Act, and conclude that it 

should be approved. 

Docket No. WEVA 91-50. With respect to three of the four 

citations in the docket, the Secretary moves to approve settlements in which Consol will pay the assessed amounts, $355 for 

Citation No. 3314121, $355 for Citation No. 3314122 and $276 for 

Citation No. 3314123. I have considered the motion in light of 

the criteria in Section llO{i) of the Act, and conclude that it 

should be approved. 

Docket No. WEVA 91-51. This docket contains a single 

violation of 30 C.F.R. § 75.1003(c) charged in a 104(a) citation. 

It was originally assessed at $292. The violation involved an 

unguarded trolley wire at a mantrip station. The motion proposes 

that the citation be modified to a nonsignificant and substantial 

one and the penalty b.e reduced to $1760 The portal buses used at 

~he mine have a covered top and are insulated with rubbero The 

practical way in and out of the mantrip is from the wide 

side of the track away from the wire. I have considered that 

motion in the light of the criteria in Section llO(i) of the Act, 

and conclude that it should be approved. 

WEVA 91-62. This docket contains a single violation of 

30 C.FoRo § 75o303{a) alleged in a citation charging an inadequate preshift examination. The motion proposes that Consol will 

pay the assessed amount of $276. I have considered the motion in 

the light of the criteria in Section llO(i) of the Act, and 

conclude that it should be approved. 

1090 
FINDINGS OF FACT with respect to Order No. 2708208. 

l~ Consol was at all pertinent times the owner and operator 

of an underground coal mine in Monongalia County, West Virginia, 

known as the Blacksville No. 1 Mine. 

2. The imposition of civil penalties in this proceeding 

would not affect Consol's ability to continue in business. 

3. Consol is a large operator. 

4. Between July 31, 1988 and July 30, 1990, there were 

686 paid violations of mandatory standards at the subject mine 

(this history, of course, extends beyond the date of the 

violation involved in this proceeding). Included in this number 

are 32 violations of 30 C.F.R. § 75.202 prior to the violation 

contested here. This history is average for a mine of this size. 

It is not such that a penalty should be increased because of it. 

5. The violation invo],.yed in this proceeding was promptly 

abated in good faith~ 

6. The subject mine has a history of roof falls; it has the 

worst roof conditions of any mine in the Morgantown, 

West Virginia area. 

7. The subject mine liberates approximately 3 million cubic 

feet of methane in a 24 hour period. 

8. A roof fall occurred in the 4 South Left Return entry 

prior to March 1 1 1990. The roof was 12 feet to 14 feet high and 

the fall cattsed a cavity 20 feet long, 14 feet wide, and about 

6 feet higho The area was 10 dangered off" with a rope and a 

danger sign on both sides of the fall¢ 

·5~8 

9o In early March l990v the 4 South belt regulator was 

moved to the 4 South Left return aircourse. The air passed 

through the regulator and crossed an overcast to the return 

entryo Consol explained that it moved the regulator because of 

the large number of citations for float coal dust on the 

regulator at its former locationo 

lOc The air velocity in the area of the roof fall was 

approximately 50;000 cubic feet per minute. 

11. The entry was about 16 feet wide. The distance between 

the danger signs was between 70 and 80 feet. 

12. There is no evidence that any miners travelled past the 

danger sign on either side of the roof fall. Consol's evidence 

establishes that it is highly unlikely that a Consol miner would 

travel into a dangered-off area. 

1091 
13. The mine weekly examination record indicates that an 

examiner had been in the vicinity of the 4 South belt regulator 

on April 25, 1990. There is no evidence that the examiner 

traveled past the danger sign. 

14. Methane is lighter than air and tends to migrate to the 

higher places in a mine, and specifically to roof fall cavities. 

15. MSHA Program Policy Manual relating to 30 C.F.R. 

§ 75.305, issued 7-1-88 (GX 3), requires weekly examinations of 

air courses. It provides that modification of this requirement 

where a roof fall has occurred, or where an area is unsafe for 

travel can be achieved only by a petition for modification under 

Section lOl(c) of the Act. It does not specifically require that 

the air course be traveled in its entirety, contrary to MSHA's 

argument in this case. 

16. Federal Mine Inspector Dinning issued a l04(d) (2) Order 

on April 30, 1990, charging a violation of 30 C.F.R. § 75.202(a). 

The order found that additional roof support was needed at the 

No. 16 crosscut where the 4 South belt regulator crosses over the 

equalizing overcast to the 4 South Left return. The roof fall 

exposed the roof bolts so that they were hanging 3 to 4 feet from 

the roof. The order found that the area could not be traveled 

safely. 

17. The order originally found that the violation was 

significant and substantial and was reasonably likely to cause an 

injury. The MSHA conference officer modified the order deleting 

the significant and substantial finding and indicating that an 

injury was unlikely to result. 

l8o Because of the height of the roof fall cavity and its 

distance from the danger signs it was not possible to adequately 

examine the area in qμ~stion for the presence of methane on 

April 25g 19900 

l9o Because of the distance of the roof fall from the danger 

signs, and the necessity of examining the edges of the roof fall 

for further deterioration by a sound and vibration test, it was 

not possible to adequately examine the roof conditions of the 

area in question on April 25u 19900 

DISCUSSION 

My findings of fact 18 and 19 are based largely on the 

testimony of Raymond Ash, supervisor coal mine health and safety 

inspector. The contrary testimony of Consol Safety supervisor 

John Morrison and John Weber, I find less persuasive. Morrison 

admitted that he "could not see the entire top of this 

cavity ... 11 (Tr. 58). I do not accept Weber's conclusion that 

a methane check of the cavity could be performed with a probe. 

1092 
Despite the presence of cribs, further deterioration of the roof 

could occur and not be visible to an examiner standing at either 

of the danger signs. Whether such further deterioration took 

place could only be adequately determined by a sound and 

vibration test. 

20. Should a further roof fall occur, it could damage an 

overcast and disrupt the mine ventilation. 

21. The violation was abated and the order terminated on 

April 3, 1990, on the grounds that the 4 South belt regulator was 

removed from the No. 16 crosscut, and therefore the area of bad 

roof would not have to be traveled through by a mine examiner. 

'REGULATIONS 

30 C.F.R. § 75.202(a) provides: 

(a} The roof, face and ribs of areas where 

persons work or travel shall be supported or otherwise 

controlled to protect persons from hazards related to 

falls of the roof, face or ribs and coal or rock burst. 

, 

30 C.F.R. § 75.305 provides: 

In addition to the preshift and daily examinations 

required by this Subpart D, examinations for hazardous 

conditions, including tests for methane, and for 

compliance with the mandatory health or safety 

standards, shall be made at least once each week by a 

certified person designated by the operator in the 

return..o~:each split of air where it enters the main 

return, on pillar falls, at seals, in the main return, 

at least one entry of each intake and return aircourse 

in its entirety, idle workings, and insofar as safety 

considerations permitu abandoned areas. Such weekly 

examinations need not be made during any week in which 

the mine is idle for the entire week, except that such 

examination shall be made before any other miner 

returns to the mine. The person making such examinations and tests shall place his initials and the date 

and time at the places examinedu and if any hazardous 

condition is found, such condition shall be reported to 

the operator promptly. Any hazardous condition shall 

be corrected immediately. If such condition creates an 

imminent dangeru the operator shall withdraw all 

persons from the area affected by such condition to a 

safe area, except those persons referred to in 

section 104(d) of the Act, until such danger is abated. 

A record of these examinations, tests, and actions 

taken shall be recorded in ink or indelible pencil in a 

book approved by the Secretary kept for such purpose in 

1093 
an area on the surf ace of the mine chosen by the mine 

operator to minimize the danger of destruction by fire 

or other hazard, and the record shall be open for 

inspection by interested persons. 

ISSUES 

1. Whether the area cited was one where persons work or 

travel? 

2. If a violation of 30 C.F.R. § 75.202 is established, 

whether it resulted from Consol's unwarrantable failure to comply 

with the standard? 

3. If a violation of 30 C.F.R; § 75.202 is established, 

what is the appropriate penalty therefor? 

CONCLUSIONS OF LAW 

1. Consol is subject to the provisions of the Mine Act in 

the operation of the Blacksville No. 1 Mine, and I have jurisdiction over parties and subject matter of this proceeding. 

2. In the case of Cypress Empire, 12 FMSHRC 911 (1990), the 

Commission implied that the phrase in 75.202(a), "where persons 

work or travel" includes not only areas where persons actually 

work or travel, but also areas where persons are required to 

travelo 12 FMSHRC 917. 

3. 30 C.F.R. § 75.305 provides that return aircourses must 

be examined in their entirely at least once each week. Findings 

of Fact 18 and·: 19 establish that such examinations in the subject 

maine would require the examiners to travel under unsupported 

roof to adequately examine the area for hazardous conditions. 

4o Thereforev since persons are required to travel the 

cited area; a violation of 30 C.FoRo § 75o202(a) is shownu even 

though there no evidence that in fact anyone did travel the 

area after the danger signs were in place. 

5o Because there is no evidence that persons did travel the 

areap and because the evidence shows that it was highly unlikely 

that anyone would travel the area, the violation (of 75.202(a); 

the question whether 75.305 was violated is not before me) was 

unlikely to result in injury to minerso I conclude that it was 

not a serious violationo 

60 In Emery Mining Corp.i 9 FMSHRC 1997 (1987} the 

Commission held that unwarrantable failure means "aggravated 

conduct, constituting more than ordinary negligence in relation 

to a violation of the Act. 11 I conclude that the evidence in this 

record shows that Consol in good faith believed that dangering 

1094 
off the area of the roof fall constituted compliance with the 

standard. This was erroneous, but was not aggravated conduct. I 

conclude that the violation did not result from unwarrantable 

failure to comply with the standard. 

7. Considering the evidence in the light of the criteria in 

Section llO(i) of the Act, I conclude that a penalty of $200 is 

appropriate for the violation. 

ORDER 

Based on the above findings of fact and conclusions of law, 

IT IS ORDERED: 

1. Citation Nos. 3314013 and 3314014 (Docket No. WEVA 91-3) 

are AFFIRMED. 

2. Citation Nos. 3314124, 3314129, and 3314130 are 

AFFIRMED. Citation No. 3314125 is VACATED (Docket No. 

WEVA 91-49). 

~ , ... 

3. citation Nos. 3314121, 3314122, and 3314123 are 

AFFIRMED. Order No. 2708208 is MODIFIED to a 104(a) Citation 

and, as modified is AFFIRMED. (Docket No. WEVA 91-50). 

4. Citation No. 3314272 is MODIFIED to delete the 

significant and substantial finding and, as modified is AFFIRMED. 

(Docket No. WEVA 91-51). 

5. Citation No. 3314138 is AFFIRMED. (Docket No. 

WEVA 91-62) • 

.. 6. Consol shall within 30 days of the date of this Decision 

pay the following civil penalties~ 

CITATION/ORDER 

3314013 

3314014 

3314124 

3314129 

3314130 

3314121 

3314122 

2708208 

30 C.F.R. 

75.1725(a) 

75.303(a) 

75.1403-S(a) 

75.202(a) 

75.303(a) 

75.1704 

75.1704 

75.202(a) 

1095 

AMOUNT 

$ 292 

227 

434 

434 

276 

355 

355 

200 
3314123 

3314272 

3314138 

Distribution: 

75.305 

75.1003 

75.303(a) 

276 

176 

276 

TOTAL $3301 

tlAAAJ!~ /J,ij:vckrtL!ri James A. Broderick 

Administrative Law Judge 

Page H. Jackson, Esq., Office of the Solicitor, u. s. Department 

of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203 

{Certified Mail) 

Walter J. Scheller III, Esq., Consolidation coal company, 

1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

dcp 

1096 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 101991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. KENT 91-101 

A. C. No. 15-14074-03573 

v. 

Martwick Underground 

PEABODY COAL COMPANY, 

Respondent Docket No. KENT 91-131 

A .•. c. No. 15-02705-03701 

Appearances: 

Beforeg 

. Camp No. 2 Mine 

DECISION APPROVING SET'l'LEMENT 

w. F. ~aylor, Esq., Office of the Solicitor, u.s. 

Department of Labor, Nashville, Tennessee, for the 

Petitioner; 

David R. Joest, Esq., Midwest Division Counsel, 

Peabody Coal Company, Henderson, Kentucky, for the 

Respondent. 

Judge Melick 

These cases are before me upon petitions for assessment of 

civil penalty under section 105(d) of the Federal Mine Safety and 

Health Act of 1977 (the Act). At hearings, Petitioner filed a 

motion to approve a settlement agreement and to dismiss these 

cases. A modification of Citation No. 3416556 to delete the 

"significant and substantial" findings and a reduction in penalty 

from $545 to $378 was proposed. I have considered the 

representations and documentation submitted in these cases, 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 approvat of settlement is GRANTED, 

and it is ORDERED that Respondent pay penalty of $378 within 

30 days of this order. . \ 

·' . . ·1 ,\ r1 \ . . , \ I ~ , 

·." 

1

. \ •, {,\ \ rt~ .,, . j' \ ' r V--- · .. , I ' 

Gary Mel!i2k \ 

Adlninist\ative LaW udge 

1097 
Distribution: 

w. F. Taylor, Esq., Office of the Solicitor, U.S. Department of 

Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 37215 

(Certified Mail) 

David R. Joest, Esq., Midwest Division Counsel, Peabody Coal 

Company, 1951 Barrett Court, P.O. Box 1981, Henderson, KY 

42420-0800 (Certified Mail) 

/fb 

1098 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

ll H 4 2 1991 ,.JUL .1 l 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

RED ARROW GOLD CORPORATION, 

Respondent 

. . 

. 

0 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 90-215-M 

A.C. No. 05-04228-05504 

Red Arrow Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Cetti 

This case is before me upon a petition for assessment of a 

civil penalty under § 105(d) of the Federal Mine Safety and 

Health Act of 1977, 30 u.s.c. § 801 et~ Petitioner has filed 

a motion to approve a settlement agreement and to dismiss the 

case. 

Petitioner states that based upon documentation submitted to 

Petitioner, Respondent's financial situation is such that the 

operator's ability to remain in business would be affected by the 

penalty amounts originally assessed by the Petitioner. I have 

considered the representations and documentation submitted and I 

conclude that the proffered settlement is consistent with the 

c teria in § llO(i} of the Acto 

ORDER 

WHEREFORE IT IS ORDERED that the motion for approval of 

settlement is GRANTED and Respondent shall pay to the Secretary Labor 0 the approved penalty of $300 which will be payable 

in three (3) installments of $100 each with the first installment 

to be paid on or before August 12, 1991, the second on or before 

September 12, 1991, and the last on or before October 12, 1991. 

1099 

() ,J;~ {!Jr ~F. Cetti 

Administrative Law Judge 
Distribution: 

Susan J. Eckert, Esq., Office of the Solicitor, U.S. Department 

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

Denver, CO 80294 (Certified Mail) 

Mr. Craig A. Liukko, President, RED ARROW GOLD CORPORATION, 141 

S. Main, Post Office Box 531, Mancos, CO 81328 (Certified Mail) 

Robert Korn, Esq., Box 185, Telluride, CO 81435 (Certified Mail) 

sh 

1100 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 .LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

METTIKI COAL COMPANY, 

Respondent 

JUL 121991 

. . 

. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. YORK 89-42 

A.C. No. 18-00671-03537 

Mine: Mettiki General 

Prep Plant 

SOL No. 9146176 

DECISION APPROVING SETTLEMENT 

Before: Judge Fauver 

This case is before me upon a petition for assessment of 

civil penalties under § 105(d) of the Federal Mine Safety and 

Health Act of 1977, 30 u.s.c. § 801 et seg. Petitioner has filed 

a motion to approve a settlement agreement and to dismiss the 

case. I have considered the representations and documentation 

submitted and I conclude that the proffered settlement is 

consistent with the criteria in § llO(i) of the Act. 

WHEREFORE, IT IS ORDERED that the motion for approval of 

settlement is GRANTED. Respondent shall pay the approved 

penalties of $800 within 30 days of this decision. Upon such 

payment this case is DISMISSED. 

Distribution~ 

~~?-~Y4'f William Fauver 

Administrative Law Judge 

Howard K. Agran, Esq., Office of the Solicitor, U.S. Department . 

of Labor, 1440 Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

Thomas C. Means, Esq., Crowell & Moring, 1001 Pennsylvania 

Avenue, N.W., Washington, D.C. 20004-2505 (Certified Mail) 

fas 

1101 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

JUL 151991 

DONALD NORTHCUTT, GENE MYERS, 

AND TED EBERLE / 

Complainants 

DISCRIMINATION PROCEEDING 

Docket No. CENT 89-162-DM 

v. Ada Quarry & Plant 

IDEAL BASIC INDUSTRIES, INC., 

Respondent 

ORDER OF DISMISSAL 

Before: Judge Morris 

HAVING CONSIDERED the Joint Motion to Withdraw Complaint 

and Dismiss Action with Prejuaice submitted by Complainants 

Donald Northcutt, Gene Myers, and Ted Eberle, and 

WHEREAS the Secretary of Labor, in Docket No. CENT 

88-142-D, withdrew from prosecut1ion of these Complainants 1 claim 

of discriminatory discharge, thereby allowing these Complainants 

to pursue this claim individu~lly under 30 u.s.c. § 815(c), and 

SEEING THAT, with respect to these three Complainants, 

this matter has been settled by the parties, 

IT IS HEREBY ORDERED that Complainants Donald Northcuttt, 

Gene Myers, and Ted Eberle may withdraw their Complaint and their 

action is hereby DISMISSED WITH PREJUDICE, each party to bear 

his own attorneys' es and costso 

Distributiong 

~hnJo [/id.minis ative 

rris 

~ 

Law Judge 

Ben Ao Goffu Esqov GOFF & MEADOR, 6301 Gaston Avenue, Suite 725, 

Dallasu TX 75214-6206 (Certified Mail) 

Michael Towers, Esq., FISHER & PHILLIPS, 1500 Resurgens Plaza, 

945 East Paces Ferry Road, Atlanta, GA 30326 (Certified Mail) 

J. Warren Jackman, Esq., PRAY, WALKER, JACKSON, WILLIAMSON & 

MALLAR, Ninth Floor, Oneok Plaza, Tulsa, OK 74103 (Certified 

Mail) 

ek 

1102 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 151991 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

UNITED STATES STEEL MINING 

COMPANY, INCORPORATED, 

Respondent 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 91-39 

A. c. No. 36-05018-03821 

: Cumberland Mine 

.. 

. 

DECISION 

Appearances: H. P. Baker, Esq., Office of the Solicitor, 

u. s. Department of Labor, Philadelphia, 

Pennsylvania, for the Secretary; 

Billy M. Tennant, Esq., Pittsburgh, 

Pennsylvania, for the Respondent. 

Before: Judge Maurer 

This case is before me upon the petition for civil penalty 

filed by the Secretary of Labor (Secretary) pursuant to the 

Federal Mine Safety and Health Act of 1977 1 30 U.S.C. § 801 

et seqo; the 00Act 1 °

0 for an admitted violation of a mandatory 

standardo The remaining issues before me in this case are 

whether this violatiqn. was a "significant and substantial" one, 

the "negligence" to be attributed to the operator, and the 

assessment of an appropriate civil penalty in accordance with S~ction llO(i) of the Act. 

The case was heard in Morgantown, West Virginia, on 

April 18, 1991. The parties have both filed proposed findings 

and conclusions which I have duly considered in making the 

following decision. 

STIPULATIONS 

The parties stipulated to the following, which I accepted (Tr. 6-9): 

1. United States Steel Mining Company, Inc., 

hereinafter called Respondent, is a wholly owned 

subsidiary of USX Corporation. 

1103 
2. Respondent is subject to the jurisdiction of 

the Federal Mine Safety and Health Act of 1977. 

3. The Administrative Law Judge has jurisdiction 

over these proceedings. 

4. The subject citation was properly served by a 

duly authorized representative of the Secretary, 

William E. Wilson, upon an agent of the Respondent at 

the date, time, and place stated therein. 

5. The Respondent demonstrated good faith in the 

abatement of the citation. 

6. Payment of the proposed Civil Penalty of $445 

will not affect Respondent's ability to continue in 

business. 

7. The appropriateness of the Penalty, if any is 

affirmed, to the size of the coal operator's business, 

should be based on the fact that, (a) the Respondent 

company's annual_productlon tonnage is 10,349,448 and, 

(b) the u. s. Steel Mining Company, Inc.•s, Cumberland 

Mine had an annual production tonnage of 2,530,694. 

8. Respondent was assessed 796 violations over 

879 inspection days during the 24 months preceding the 

issuance of the subject citation. 

9. The parties stipulate to the authenticity of 

each other's exhibits, but not necessarily to the 

relevagce·or the matters asserted therein. 

lOo Citation No. 3089547 was issued at 

Respondent 1 s Cumberland Mine on September 19, 1990p by 

Inspector William Ee Wilsono 

11. The citation alleges a violation of 30 C.F.R. 

§ 75.1403. The citation is based on a valid safeguard, 

that is Safeguard Number 234407 issued April 27, 1978. 

120 Respondent did violate 30 C.F.R. § 75.1403 as 

alleged in the citation. Respondent does dispute, 

however, the gravity and negligence finding set forth 

in Section 2, paragraphs 10 and 11 of the citation. 

Respondent specifically disputes the characterization 

of the violation as significant and substantial. 

1104 
DISCUSSION AND FINDINGS 

Citation No. 3089547 alleges a "significant and substantial" 

violation of the regulatory standard at 30 C.F.R. § 75.1403 and 

charges as follows: 

The 5 ton Greensburg personnel carrier being used 

to transport the 27 Butt crew to No 3 air shaft portal bottom was not provided with a lifting bar for the 

track jack. Mantrip 110. ML-116, Sr 3324." 

Safeguard No. 234407 mandates that a lifting jack and bar be 

kept on all self-propelled personnel carriers. A lifting bar is 

used with a lifting jack to rerail a mantrip if there is a 

·derailment. · 

The inspector found that the lifting bar in this case was 

missing from a mantrip that had just arrived at the bottom, 

transporting a crew from a section. The operator admits this 

fact and thus the violation of 30 C.F.R. § 75.1403. 

The Secretary maintains that in the absence of the actual 

bar during a derailmerit/rerailment scenario, a miner would be 

sorely tempted to use a substitute bar. I concur with the 

inspector that using a substitute coul~ be unsafe and increases 

the likelihood of injury because the substitute would not provide 

a good fit between itself and the jack. It is certainly a 

credible claim that the use of many imaginable substitute devices 

could result in serious injuries to a miner. 

However, in our case there was no derailment. The missing 

lifting barr in and of itself, does not create any safety hazard. 

Something more is required. That "something more" is that the 

miner in charge of the derailed mantrip will act improperly to 

rerail it. The inspector had to assume that the hypothetical 

miner involved would elect to use some improper substitute device 

because the required bar was not immediately available to him. I 

do not believe that assumption will carry the Secretary's burden 

of proof on the issue. One could perhaps make an equally likely assumption that the miner would obtain the correct bar before 

proceeding with the rerailmento 

A violation is properly designated as significant and 

substantial 11 if, based on the particular facts surrounding that 

violation, there exists a reasonable likelihood that the hazard 

contributed to will result in an injury or illness of a 

reasonably serious nature." Cement Division, National Gypsum 

Co., 3 FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 

6 FMSHRC 1, 3-4 (January 1984), the Commission explained: 

1105 
In order to establish that a violation of a 

mandatory standard is significant and substantial under 

National Gypsum the Secretary must prove: (1) the 

underlying violation of a mandatory safety standard; 

(2) a discrete safety hazard -- that is, a measure of 

danger to safety -- contributed to by the violation; 

(3) a reasonable likelihood that the hazard contributed 

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

likelihood that the injury in question will be of a 

reasonably serious nature. 

The third element of the Mathies formula "requires that the 

Secretary establish a reasonable likelihood that the hazard 

contributed to will result in an event in which there is an 

·injury" (U. s. Steel Mining Co., 6 FMSHRC 1834, 1836 (August 

1984)), and also that the likelihood of injury be evaluated in 

terms of continued normal mining operations (U. S. Steel Mining 

Co., Inc., 6 FMSHRC 1573, 1574 (July 1984); see also Halfway, 

Inc., 8 FMSHRC 8, 12 (January 1986). 

With respect to the first Mathies element, a violation of 

30 C.F.R. § 75.1403 has been established by stipulation, which I 

have previously accepted. 

With respect to the second element, a discrete safety hazard 

contributed to by the violation, I find none. The violation here 

is simply the missing bar, and the missing bar, standing alone, 

does not create a safety hazard. There must additionally be a 

derailment, which is not unknown in this mine, but was not a part 

of this particular incident. Thirdly, even if there.was a 

derailment or there might be one tomorrow, a safety hazard would 

be created 9l!lY, if the miner on the scene at the time acted 

improperly and attempted to rerail the mantrip by some unsafe 

methodologyo There is no evidence in the record that this 

heretofore and still unknown miner would do so. And I don 1 t 

believe you can assume all these necessary facts that are 

otherwise not in evidence. 

Accordingly, finding that the Secretary has failed to prove 

that there was a discrete safety hazard contributed to by the 

violation, I find that the violation was not 11 significant and 

substantial 0 iq 

Moderate negligence may reasonably be inf erred from the 

circumstances. These mantrips are frequently inspected and 

management knew or at least should have known of the missing 

equipment before the mantrip was operated. 

Considering the statutory criteria contained in 

Section 110(i) of the Act, I find that a civil penalty of $50 is 

warranted and appropriate for these circumstances. 

1106 
ORDER 

Citation No. 3089547 is AFFIRMED as a non-"significant and 

substantial" violation of 30 C.F.R. § 75.1403, and respondent is 

hereby ORDERED to pay a civil penalty of $50 within 30 days of 

the date of this Decision. 

Law Judge 

Distribution: 

H. P. Baker, Esq., Office of the Solicitor, U. s. Department of 

Labor, Room 14480-Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

Billy M. Tennant, Esq., United States Steel Company, 

Incorporated, 600 Grant Street, Pittsburgh, PA 15219-4776 

(Certified Mail) 

dcp 

1107 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 15 \99\ 

SECRETARY OF LABOR, . 

. CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. SE 90-120 

A.C. No. 40-02368-03527 

v. Beechgrove Prep. Plant 

BEECHGROVE PROCESSING CO., 

Respondent . 

. 

Appearances: 

Before: 

DECISION 

Joseph B. Luckett, Esq., Office of 

the Solicitor, U.S. Department of 

Labor, Nashville, TN, for the 

Petitioner; 

Martin J. Cunningham, III, Esq., 

London, Kentucky, for the 

Respondent. 

Judge Fauver 

The Secretary of Labor seeks civil penalties for alleged 

violations of safety standards, under the Federal Mine Safety and 

Health Act of 1977g 30 u.s.c. § 801 et §.filL. 

Having considered the hearing evidence and the record as a 

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

and probative evidence establishes the following Findings of Fact 

and further findings in the Discussion below~ 

FINDINGS OF FACT 

1. Respondent operates a coal preparation plant, known as 

Beechgrove Preparation Plant, where it processes coal for sale or 

use in interstate commerce. It employs about 17 employees and 

processes about 2,000 tons of coal per day. 

Citation 3174032 

2. On April 26, 1990, Federal Mine Inspector Don McDaniel, 

an electrical inspector, inspected the plant and observed 

accumulations of float coal dust in a two-storey building into 

which coal is dumped before it is conveyed to the cleaning plant. 

He observed float coal dust in the air, on electrical boxes, on 

1108 
belt frames, and on the walls. The accumulations were as much as 

a quarter-inch thick. 

Citation 3174033 

3. On April 26, 1990, Inspector McDaniel inspected a 

building used to store materials and to grease equipment. He 

observed 50 to 75 bales of hay, an air compressor which operated 

a grease gun, and about 20 gallons of grease spillage on the 

floor and walls. He also observed an accumulation of about one 

gallon of grease on the air compressor equipment. He observed 

that, although the floor was wet, the float coal dust was dry. 

Citation 317034 

4. On April 26, 1990, Inspector McDaniel observed a fuel 

storage tank near the preparation plant. It held 150 to 200 

gallons of kerosene, and was about half full. A fire 

extinguisher near the fuel tank had the safety pin pulled out and 

the discharge lever pushed in,c indicating that the fire 

extinguisher had been ,discharged. · · 

citation 3174035 

5. on April 26, 1990, Inspector McDaniel observed that the 

V-belt and pulleys on the No. 1 raw coal belt were not properly 

guarded. The guard provided was secure at the top, but two bolts 

were missing from the bottom, and the bottom of the guard had 

swung out three inches, exposing the moving parts. 

DISCUSSION WITH FURTHER FINDINGS 

citation 3174032 

The float coal dust accumulations found by the inspector 

were in a building in which there were various possible ignition 

sources, e.g., rollers on belt conveyors, bearings, electrical 

boxes, and energized electrical wires. Float coal dust presents 

a serious hazard of an explosion or propagation of fire. The 

cited condition presented a reasonable likelihood of resulting in 

serious injuryv and therefore was a significant and substantial 

violation of 30 C.F.R. § 77.202. 1 See my decision in 

Consolidation Coal Company, 4 FMSHRC 748-752 (1991). 

30 C.F.R& § 77.202 provides: 

"Dust Accumulations in surface installation. Coal dust 

in the air of, or in, or on the surfaces of, 

structures, enclosures, or other facilities shall not 

be allowed to exist or accumulate in dangerous 

amounts." 

1109 
The fact that the floor was wet did not remove the danger, 

because float coal dust will float on a wet or damp surf ace and 

still remain capable of propagating an explosion or fire. The 

condition was obvious and should have been detected and corrected 

before the inspection. The facts thus show moderate negligence. 

Citation 3174033 

The accumulations of grease presented a serious fire hazard. 

The flammability level of the grease was not high. Respondent 

states that it was not higher than hay, paper or wood. But it 

could propagate a fire and, with the presence of 50 to 75 bales 

of hay in the same enclosed area, could contribute to a major 

• The condition presented a reasonable likelihood of injury 

and was therefore a significant and substantial violation of 30 

C.F.R. § 77.1104. 2 The condition was obvious and should have 

been detected and corrected before the inspection. The facts 

thus show moderate negligence. 

Citation 3174034 

The fire extinguisher near the kerosene fuel tank showed 

clear physical evidence of being discharged. The safety pin had 

been pulled and the discharge lever had been pushed in. This 

condition warranted a finding by the inspector that the fire 

extinguisher had been discharged. If the operator wanted to 

dispute this finding at the time the inspector issued the 

citation, it had the opportunity to demonstrate to the, inspector 

that the fire extinguisher was operative. Failing such a 

demonstration by the operator, the facts sustain the inspector's 

finding that the extinguisher was in violation of 30 C.F.R. 

§ 77.lllOp which requires that "Firefighting equipment shall be 

maintained in a usable and operative 

Alsov maintaining a fire extinguisher in a 

ical condition that indicates that it has been discharged 

would not comply with the standard. Such a condition could 

easily mislead a firefighter into going to a more distant fire 

extinguisher to fight a fire. Reasonable and substantial 

compliance with the safety standard requires that fire 

extinguishers be maintained in proper condition with the safety 

place and the discharge lever in the non-discharged 

cited condition presented a reasonable likelihood of 

contributing to a serious injury, and therefore constituted a 

2 30 c.F.R. § 77.1104 provides: 

"Accumulation of combustible materials. Combustible 

materials, grease, lubricants, paints, or flammable 

liquids shall not be allowed to accumulate where they 

can create a fire hazard." 

1110 
significant and substantial violation. 

The condition was obvious and· should have been detected and 

corrected before the inspection. The facts thus show moderate 

negligence. 

Citation 3174035 

The guard for the V-belt and pulley on the belt head drive 

was missing bolts on the bottom and had swung out about three 

inches. The guard was about four feet from the walking surface, 

and on a walkway. This condition presented a serious hazard of 

someone coming into contact with moving machinery parts and 

sustaining a serious injury. If someone fell near the guard 

opening, he or she could accidently move a hand through the 

opening while trying to break the fall. The facts showed a 

significant and substantial violation of 30 C.F.R. 

§ 77.400(a)o 3 

The condition was obvious and should have been detected and 

corrected before the inspection. The facts show moderate 

negligence. 

Considering all the criteria for civil penalties in § llO(i} 

of the Act, I find that the following civil penalties are 

appropriate: 

Citation 

3174032 

3174033 

3174034 

3174035 

Civil Penalty 

$63 

$63 

$63 

$63 

CONCLUSIONS OF LAW 

lo The judge has jurisdiction in this proceeding. 

2. Respondent violated 30 C.F.R. § 77.202 as alleged Citation 3174032. 

3 0 Respondent violated 30 C.F.R. § 77.1104 as alleged citation 3174033. 

3 30 C.F.R. § 77.400(a) provides: u

1

Mechanical equipment guards. (a) Gears; sprockets; 

chains; drive, head, tail, and takeup pulleys; 

flywheels; couplings; shafts; sawblades; fan inlets; 

and similar exposed moving machine parts which may be 

contacted by persons, and which may cause injury to 

persons shall be guarded. 11 

1111 

in 

in 
4. Respondent violated 30 C.F.R. § 77.1110 as alleged in 

Citation 3174034. 

5. Respondent violated 30 C.F.R. § 77.400 as alleged in 

Citation 3174035. 

ORDER 

WHEREFORE IT IS ORDERED that: 

1. The above citations are AFFIRMED. 

2. Respondent shall pay the above-assessed civil penalties 

of $252 within 30 days of the date of this decision. 

Distribution: 

tJ!.J.dtlm 7-Q.A,c VeA..-

William Fauver 

Administrative Law Judge 

Joseph B. Luckett, Esq., U.S. Department of Labor, Office of the 

Solicitor, 2002 Richard Jones Road, $uite B-201, Nashville, TN 

37215 (Certified Mail) 

Martin Cunningham, Esq., 400 South Main Street, P. o. Drawer 

5087, London, KY 40740 (Certified Mail) 

/fas 

1112 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

JUL 151991 

FRANCIS A. MARIN, 

Complainant 

v. 

ASARCO, INCORPORATED, 

Respondent 

. . 

. . 

DISCRIMINATION PROCEEDING 

Docket No. WEST 91-161-DM 

WE MW 90-14 

Ray Unit 

ORDER OF DISMISSAL 

Before: Judge Morris 

This case is a discrimination. complaint arising under Section lOS(c) of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 801, et ~ 

On June 3, 1991, Complainant moved to withdraw her complaint 

pursuant to Commission Rule 11, 29 C.F.R. § 2700.11. 

In support of her motion, Complainant states that, while 

appearing pro se, she filed a complaint with FMSHRC. The gravamen of her complaint was that she had been terminated by Respondent because of her seniority, sex, and national origin. At that 

time, she also filed charges with the Equal Employment Opportunity Commission (EEOC) and the State of Arizona Civil Rights ~ivision CACRD} intending to pursue her remedies under State and 

Federal anti-discrimination lawso 

Complainant further states her deposition was scheduled for 

May 29, 1991. On that date, she appeared and the motion was made 

to withdraw her complaint. 

Complainant now believes that her complaint arising out of 

sexual harassment can be properly addressed under the State and 

Federal anti-discrimination laws. Accordingly, she desires to 

withdraw her complaint now pending herein. 

Respondent opposes Complaina~t's motion and moves to impose 

sanctions and seeks an order dismissing the complaint herein with 

prejudice .. 

In support of its motion, Respondent states that on May 14, 

1990, Complainant, appearing pro se, filed a discrimination report, which was followed by a discrimination complaint filed on 

May 3 0, 1990. 

1113 
Complainant later withdrew her complaint for lack of a protected activity. 

On September 4, 1990, Complainant filed an additional discrimination complaint stating she believed that her termination 

was for refusal to perform work which she deemed to be unsafe. 

After conducting an investigation, MSHA concluded the facts 

disclosed during the investigation did not constitute a violation 

of Section l05Cc) of the Mine Act. 

On January 7, 1991, Complainant requested a hearing under 

the Mine Act. 

On January 7, 1991, Chief Administrative Law Judge Paul 

Merlin ordered Complainant to forward her complaint to 

Respondent. 

The complaint, when filed, was 10 days overdue. 

On March 13, 1991, Respgndent filed a motion to dismiss for 

failure to timely file her complaint. 

On April 26, 1991, Mary Judge Ryan notified FMSHRC that she 

had been retained to represent Complainant. 

Respondent's motion to dismiss was denied by the Presiding 

Judge on May 14, 1991. 

Respondent's Counsel asserts he first became aware that Complainant was represented by Mary Judge Ryan through a distribution notation contained in a notice dated May 14, 1991. 

A deposition was scheduled in Tucsonff Arizona, for May 29q 

19910 Counsel for both parties appeared butq on the instruction 

of her counselu Complainant refused to be deposed on the grounds 

that Complainant would be moving to withdraw the Complaint before 

FMSHRC. 

On May 3lu 199lu Complainant formally moved to withdraw her 

complaint hereina 

Respondent asserts Complainant's counsel has abused the discovery process and filed frivolous claims and documents which 

have amounted to harassment and needless increase in the cost of 

litigation& 

1114 
Finally, Respondent asserts Complainant and Complainant's 

counsel are in violation of Rules 11 and 37(b)(2) of the Federal 

Rules of Civil Procedure and merit sanctions, pursuant to Commission Rules 80(a) and l(b), 29 C.F.R. § 2700.BO(a), l(b). 

Accordingly, Respondent seeks an order dismissing the complaint wth prejudice and granting sanctions, including costs and 

attorneys' fees. 

DISCUSSION 

The Commission has previously ruled that it lacks jurisdiction to impose sanctions. Rushton Mining Company, 11 FMSHRC 759 

{1989). See also Beaver Creek Coal Company, 10 FMSHRC 758 (1988) 

(Morris, J) and Rushton Mining Company, 9 FMSHRC 392 (1987) 

(Broderick, J) • 

. Based on the rationale of the above cases, I enter the 

following: 

ORDER 

1. Respondent's motion to impose sanctions is DENIED. 

7o Complainant's motion to dismiss this case is GRANTED 

and the case is DISMISSED WITHOUT PREJUDICE. 

Law Judge 

stributiong 

Mary Judge Ryan, Esq., STOMPOLY & STROUD, P.C., 1600 Citibank 

Tower, One South Church Avenue, Tucson, AZ 86702-3017 (Certified 

Mail) 

Henry Chajetu Esqou and Laura E. Beverage, Esq.u JACKSON & KELLY, 

PoOo Box 553u Charlestonu WV 25433 (Certified Mail) 

ek 

1115 
_\ 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 171991 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

DON FRAZE, Employed by 

LITER'S QUARRY OF INDIANA, 

INCORPORATED, 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

RANDEE LANHAM, Employed by 

LITER'S QUARRY OF INDIANA 

INCORPORATED, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 91~63-M 

A.C. No. 12-00004-05530-A 

Atkins Plant 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 91-73-M 

A.C. No. 12-00004-05529-A 

Atkins Plant 

DECISION 

Appearances: Robert Cohen, Esq., Office of the Solicitor, u.s. 

Department of Labor, Arlington, Virginia, for the 

Petitioner; 

Before~ 

Robert Liter, Liter 1 s Quarry, Inc., Louisville, 

Kentucky, on behalf of the Respondentso 

Judge Melick 

These consolidated cases are before me upon the petitions 

for civil penalties filed by the Secretary, pursuant to section 

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

30 u.s.c. § 801 et seq., the "Act, 11 charging Don Fraze and Randee 

Lanham, as agents of a corporate mine operator, Liter's Quarry of 

Indiana, Inc., (Liter's Quarry) with knowingly authorizing, 

ordering, or carrying out a violation of the mandatory safety 

1116 
standard at 30 C.F.R. § 56.11001 by the named mine operator. 1 

A motion for settlement filed in these proceedings on June 5, 

1991, was denied by order issued the same date and the cases 

proceeded to trial as scheduled on June 12, 1991. 

At hearing, Robert Liter, the Respondents representative 

acknowledged that the alleged violative condition existed as 

charged. Moreover, it has never been denied that both 

Respondents were agents of the named mine operator, knew of the 

existence of the cited condition and knowingly authorized and 

ordered that condition. Liter argued only that the corporate 

operator had already paid a penalty of $800 for the violation and 

that it was an improper interference into the operator's 

management function to also subject its former employees to 

additional civil penalties. In essence, this argument is against 

the enacted statutory provisions of section llO(c) and, as such, 

can be redressed only through the legislative process. 

Regardless of the merits, vel non, of the argument, I am bound in 

this proceeding to follow the statutory provisions of section 

llO(c). 

The violative condition ~s described in the underlying 

citation as follows: -

A safe means of access was not provided for travel 

around the primary crusher or travel to its booth. The 

floor covering for the V-belt drive & counter balance 

of the jaw crusher was not in place with the crusher in 

operation. Two employees were observed traveling from 

the crusher booth back to their pit haul units without 

the flooring in place. On the way back to the trucks 

they passed within about 2-1/2 foot of this opening on 

the counter balance side. Reportedly the crusher had 

been used two shifts without the flooring in place. 

The drop off by the crusher was about 12 ft. deep. 

Also the two steps leading from the outside to the 

booth area sloped toward these openings and were 

covered with spilled rock & dust. 

1 Section llO(c) of the Act reads as follows~ 11Whenever a corporate operator violates a mandatory health 

or safety standard or knowingly violates or fails or refuses to 

comply with any order issued under this Act or any order 

incorporated in a final decision issued under this Act, except an 

order incorporated in a decision issued under section (a) or 

section 105(c), any director, officer, or agent of such corporate 

who knowingly authorized, ordered, or carried out such violation, 

failure, or refusal shall be subject to the same civil penalties, 

fines, and imprisonment that may be imposed upon a person under 

subsection (a) and (d)." 

1117 
According to the undisputed testimony of MSHA Inspector 

Jerry Spruce, the absence of floor boards and guard rails along 

the walkway over an opening in the crusher, created an "imminent 

danger" of fatal injuries to miners. In addition, it is 

undisputed that both Respondents had authorized and ordered that 

the cited floorboards and railings remain removed while miners 

proceeded along a narrow passageway adjacent to an opening into 

the crusher below ostensibly for easier observation and 

adjustment of newly replaced bearings in the crusher unit. No 

evidence has been presented that either Respondent has any 

history of violations under the Act or regarding their ability to 

pay civil penalties. Under the circumstances, and considering 

the seriousness of the violation and the egregious negligence 

involved, I find the Secretary's proposed penalties to be 

appropriate. The penalty against Lanham is greater inasmuch as 

he had supervisory authority, as general manager, over Fraze and 

directed Fraze to continue operations without the floorboards and 

guardrails. 

ORDER 

I find that Don Fraze and Randee Lanham acting as agents of 

the corporate mine operator, Liter's Quarry of Indiana, 

Incorporated, knowingly authorized, ordered, or carried out a 

violation of the mandatory safety standard at 30 C.F.R. 

§ 56.11001 on March 26, 1990, and they are directed to pay civil 

penalties of $500 and $600, respectively, for he aforesaid 

violations within 30 days of the date of this 

Law Judge 

Distribution~ 

Robert Cohen, Esq.p Office of the Solicitor, U.S. Department of 

Laborp 4015 Wilson Boulevard, 4th Floor, Arlington, VA 22203 

Certified Mail) 

Mro Robert Liter, Liter's Quarry, Inc., 6610 Haunz Lane, 

Louisville, KY 40241 (Certified Mail) 

/fb 

1118 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

THOMAS D. SHUMAKER, 

DISTRICT NO. 4, UNITED 

MINE WORKERS OF AMERICA 

on behalf of 

MICHAEL KELECIC 

EDWARD YANIGA 

DONALD STEVENSON, 

Complainants 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

JUL 171991 

DISCRIMINATION PROCEEDING 

Docket No. PENN 90-202-D 

MSHA Case No. PITT CD 90-20 

MSHA Case No. PITT CD 90-21 

MSHA Case No. PITT CD 90-22 

Dilworth Mine 

ORDER LIFTING STAY AND DISMISSING PROCEEDING 

Before: Judge Melick 

Complainants request approval to withdraw t 

in the captioned case. Under the circumstances 

request is granted. 29 C.F.R. § 27 0.11. The s 

eir complaints 

erein, the 

previously issued is according~y lifted and 

therefore dismissed. II 

~ I 

I 

" '.I 

~ 1.1 

/

Gary M 

Admin· u 

Distribution~ 

ay Order 

his case is 

' \ 

\ 

\ 

'1 

Thomas D. Shumaker, District No. 4, UMWA, 32 South Main Street, 

Masontown, PA 15461 (Certified Mail) 

Walter J. Scheller III, Esq., Consolidation Coal Company, Consol 

Plaza, 1800 Washington Road, Pittsburgh, PA 15241 

(Certified Mail) 

Larry E. Swift, Chairman, UMWA, Local Union 1980, District No. 4, 

Health & Safety Committee, 206 s. Walnut Street, Masontown, PA 

15461 (Certified Mail) 

/fb 

1119 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

JUL 171991 

ENERGY WEST MINING COMPANY, 

Contestant 

CONTEST PROCEEDING 

v. 

Docket No. WEST 91-406-R 

Order No. 3582410; 5/1/91 

SECRETARY OF LABOR, Deer Creek Mine 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

Mine I.D. 42-00121 

and 

UNITED MINE WORKERS OF AMERICA 

(UMWA) 

Intervenor 

DECISION AFTER EXPEDITED HEARING 

ORDER MODIFYING CITATION 

ORDER DISMISSING CONTEST PROCEEDING 

Appearances: Thomas c. Means, Esq., Crowell & Moring, 

Washington, DC, 

for Contestants; 

Robert J. Murphy, Esq., Office of the Solicitor, 

UoS. Department of Labor, Denver, Cclorado, 

for Petitioner/Respondentu 

Robert Lo JenningsQ Representative of United Mine 

Workers of AmericaQ PriceQ Utaho 

Before Judge Cettig 

Pursuant to the request of Respondentff this matter came on 

for an expedited hearing before me at Grand Junctionp Coloradop 

on May 23q 19910 Documents and testimony from numerous witnesses 

were introduced and the matter fully litigated by the parties. 

At the conclusion of the hearing, there was a ruling from the 

bench on some issueso 

The proceeding was initiated by Contestant's filing a Notice 

of Contest pursuant to section 105(d) of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 815(d) challenging the captioned citation issued by MSHA. 

After the hearing and receipt of the transcript, the parties 

filed and requested approval of a proposed settlement agreement. 

The proposed agreement provides that the 104(d)(l) order be redesignated a section 104(a) citation, that it retain its 

1120 
characterization of "significant and substantial" and that the 

negligence factor be characterized as "moderate" rather than 

"high". Contestant agrees to withdraw its contest to the enforcement document as amended, with the withdrawal to be effective upon approval of the settlement. 

After due consideration of the evidence and arguments presented in support of the proposed settlement of the contest proceeding, I conclude and find that the settlement is reasonable 

and in the public interest. The motion is GRANTED, and the 

settlement is APPROVED. 

ORDER 

Order No. 3582410 is modified to a 104(a) citation with a 

significant and substantial designation and the characterization 

of its negligence factor is modified to "moderate". Contestant 

having agreed to withdraw its contest to the enforcement document 

as modified by this Order, this proceeding is DISMISSED. 

Distribution~ 

Au ust F. Cetti 

Administrative Law Judge 

Thomas Co Meansv Esgau CROWELL & MORINGv 1001 Pennsylvania Avenue 

NoWou Washingtonv DC 20004-2505 (Certified Mail) 

Robert Jo Murphy, Esq., Office of the Solicitor, U.S. Department 

of Laboru 1585 Federal Office Building, 1961 Stout Street, 

Denveru CO 80294 (Certified Mail) 

Robert Lo Jenningsu UMWA Representativeu Post Off ice Box 783, 

Priceu UT 84501 (Certified Mail) 

sh 

1121 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 171991 

RONNIE E. PRICE, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

. 

. 

DECISION 

Docket No. WEVA 90-308-D 

MORG CD 90-10 

Blacksville No. 1 Mine 

Appearances: James B. Zimarowski, Esq., Morgantown, 

West Virginia, for the complainant; 

Before: 

Walter J. Scheller III, Esq., Consolidation 

Coal Company, Pittsburgh, Pennsylvania, for the 

Respondent. 

Judge Weisberger 

Statement of the Case 

This CC!!'69"' before me based upon a complaint of 

discrimination filed by Ronnie Eo Price (Complainant) on 

August 10, 1990 0 alleging that Consolidation Coal Company 

(Respondent) discrimi~ted against him in violation of 

section 105(c) of the Act. 1

/ Pursuant to notice, the case was 

scheduled for hearing on January 15, 1991. Subsequently, in a 

telephone conference call between Counsel for both Partiesv 

Counsel for Complainant indicated that Complainant saw him for 

the first time on January 11, 1991v and accordingly requested an 

adjournment to prepare for the hearing. The request was not 

opposed and was granted. The case was rescheduled for March 5 1 

1991. On February 25, 1991 1 in a telephone conference call with 

Counsel for both Parties 1 Counsel for Complainant requested a 

further adjournment in order to effectively prepare for hearing. 

This request was not objected to and the case was adjourned and 

rescheduled for April 30 and May 1, 1991. The case was heard at 

1

/ Pursuant to the agreement of the parties at the hearing, 

the Complaint which was submitted at the hearing, shall be deemed 

to have been filed on August 10, 1990. 

1122 
that time in Morgantown, West Virginia. At the hearing, Ronnie 

Price, John Mason, Terry G. Collins, and Charles Edward Haun 

testified for Complainant. Francis Pethtel, Peter Yost Turner, 

Ronald Darrah, Paul J. Borchick, Jr., and J. Robert Levo 

testified for Respondent. Complainant filed proposed Findings of 

Fact and Conclusions of Law on June 17, 1991. Respondent filed a 

Posthearing Brief on July 1, 1991. 

Findings of Fact and Discussion 

Ronnie Price is a roof bolter employed by Respondent, and 

during the relevant times at issue, worked in the P-9 Section on 

the midnight shift. In the middle of March 1990, a new foreman 

Donald Darrah was assigned to the section. The first day that 

Darrah was on the section, Price, along with John Mason, Terry G. 

Collins, and Doug Harper, brought a complaint to Darrah that he 

did not sign the date board. Also on another occasion, Price 

informed Darrah and Paul J. Borchick, Jr., the shift foreman, 

that the former had not properly ventilated the belt area when it 

was moved. On another occasion, Price told Borchick that Darrah 

had wanted to tram a miner in order to get rid of gas. According 

to Price, at the end- of the shift on April 17, he obtained a 

methane reading of one percent, whereas Darrah had reported a 

reading of .02 percent across the face. Price informed MSHA 

Inspector Dale Dinning of this problem. Price was asked on 

cross-examination if he told Darrah about it, and he said "yes, 

he was told about it" (Tr. 66). Darrah denied that Price made 

this complaint to him. However, Borchick indicated that Price 

informed him that Darrah had called the section safe in spite of 

the fact that one percent of methane was found at the heading. I 

conclude that Price, in voicing safety concerns to either Darrah 

or Borchick,.was engaged in protected activities. 

Essentiallyv in order to establish that he has been 

discriminated against~n violation of Section 105(c) of the Actv 

Complainant herein ha~~the burden of establishing a prima facie 

case by proving that he engaged in protected activities and that 

adverse action taken against him was motivated in any part by the 

protected activity. (Fasula, 2 FMSHRC at 2797-2800; Secretary on 

behalf of Robinette Vo United Castle Coal Company, 3 FMSHRC 803, 

817-81 (April 198l)o The prima facie case may be rebutted by the 

Operator by showing either that no protected activity occurred, 

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

protected activity (See Robinette, supra, at 818 n.20; see also 

Baich Vo FMSHRCv 719 F.2d 194, 195-96 (6th Cir. 1983)). 

Essentially, it is Complainant's position that adverse 

action in the form of harassment was taken against him which was 

wotivated in any part by his protected activities. 

From the middle of March when Darrah became the foreman of 

the section, through April 18, Price had made various safety 

1123 
complaints directly to Borchick, and to Darrah directly or 

indirectly through Borchick. According to Barchick and Darrah, 

the day after Price made a complaint about the methane gas 

readings, Darrah changed his location from bolting on the right 

to bolting on the left side. 2

/ According to Price, when 

Darrah made this switch he (Darrah) "had a very bad attitude" 

(Tr. 44). He was asked to describe this attitude and answered as 

follows: 

A. Well, just, you know, you're going to do it that 

way, you know. You're going to do as I said, I'm the 

foreman here which Mr. Levo told me the same thing. 

Darrah is the foreman on that section. 

Q. Okay. Did Mr. Darrah use the words that he's the 

foreman and you're going to do it his way? 

A. Well, yeah and a few others that I don't use. 

Q. All right. Now, is that just his way of conversing 

with his crew or does he single out you in particular 

to talk to you that way?'-

A. Well, yeah, pretty well just not me, but me and two 

or three other ones. You know, some of the others he 

don't get along with (sic). 

Q. Which two or three others did he kind of act very 

combative to? 

A. Well, John Mason, Terry and his very best friend 

John Keener. I mean they don't even get along now. 

Qo And these individuals have also raised safety 

issues - - - .~ 

Darrah testified essentially that bolting from either the 

right or the left side requires the use of identical controls 

although their order is reversed" He indicated further that 

although the section 1 s two bolters usually work out between 

themselves the side they work on, he decided to switch Price in 

order to remove him from working close to the miner operator, 

2

/ I find the testimony of Borchick and Darrah with regard 

to the specific dates involved more reliable as it was consistent 

with their contemporaneous notes. 

1124 
located on the right side~ inasmuch as Price is a "talker." (Tr. 

228). According to Darrah he thought such a move would increase 

production. 

Although the performance of the task of bolting appears to 

be the same whether performed from the right or left side, the 

bolter working on the left side in the P-9 Section would also 

have to tug and pull the ventilation tube located on that side. 

According to Price, bolters are usually rotated between the right 

and left sides, and he would not be able to work on the left side 

and pull and tug the tube all the time. Darrah indicated that 

although he had an extra man placed on the left side who does all 

the tugging and lugging, he agreed that a bolter working on the 

left side would be required to do a 11 little" more physical labor 

(Tr. 256). Accordingly, I find that, to some degree, the 

switching by Darrah of Price to the left side of the bolter 

constituted an adverse action. Further, inasmuch as this action 

was taken the day following Price's complaints about methane 

readings, and following Price's other complaints made within the 

preceding approximately 30 days, I conclude that this adverse 

action was motivated in part ... by Pr.ice's complaints. 

Essentially, according to Complainant, Darrah not only took 

adverse action against him for voicing complaints, but also 

manifested animus towards Collins and Mason, who also had made 

safety complaints. Mason had complained to Darrah about the 

latter having required him to continue to load coal behind the 

miner to such an extent, that he (Mason) was concerned that there 

would be inadequate space for sufficient air to provide adequate 

ventilation. He also was concerned that there would be 

inadequate room for miners to escape in the event of an 

emergency. ~he following day, on April 18, Mason was transferred 

from the section to a position as a bolter. However, he received 

the same wages and did not suffer any loss of pay as a 

consequence of the trapsfero Barchick said he removed Mason from 

the section because be~felt that Mason had difficultly operating 

the satellite minerv and that another person was available who 

had more experience operating such a miner. According to 

Borchick, the switch was made to increase production. 

Collins also had complained to Darrah about his methane 

checkso He also had raised concerns about the safety of certain 

cablesr and the need for bolting. Collins was transferred off 

the section to another section, but was given the same job at the 

same rate of payo Thus, the evidence is inadequate to establish 

that in general Respondent has responded to protected activities 

by taking adverse action. 

When Darrah decided to shift Price to the left side to 

prevent him from talking to the miner operator, the latter had 

been in that position for only 1 day, and had replaced Mason a 

close friend of Price. According to Price, he had told Darrah at 

1125 
the end of the prior shift that his (Price's} methane reading was 

two percent (Tr. 66, 68). However, neither Collins nor Mason who 

were with Price when he obtained the 2 percent methane reading, 

corroborated the testimony of Price that he directly informed 

Darrah of the reading. On cross-examination Collins indicated 

that when the methane was found, Darrah was at the belt heading, 

and that when the crew picked Darrah up at the mouth of the 

section, no one told him of the methane readings (Tr. 132}. 

Based on my observation of his demeanor, I find the testimony of 

Darrah reliable, that he first found out about Price's methane 

reading when informed by Barchick at the end of the shift at 

approximately 8:30 a.m. According to Darrah it bothered him that 

the problem with the methane was not brought to his attention by 

Price, but was instead told to him by his supervisor. In this 

connection, I note that Darrah had been promoted from an hourly 

worker to a foreman only a few weeks before, and was younger and 

far less experienced in the mines than Price, Mason, and Collins. 

Accordingly, and taking into account the slight degree of adverse 

action in switching Price to the left side, I conclude that the 

action would have been taken in any event, based on Price's 

unprotected activities alone, i.e., having made the complaint to 

Darrah's supervisor rather than.Darrah. 

According to Price, he is required to take medication twice 

a day, 12 hours apart, a half hour before a meal, as "its the 

only way it would work in my system" (Tr. 30) • He also testified 

that "it would make me sick if I take it and then didn't eat" 

(Tr. 41). Essentially it was Price's testimony that aside from 

Darrah, "all" of his foremen brought him his medication at three 

o'clock (Tr. 28}. He also said that "most foremen would come up 

and say, hey, we're going to move this and we're going to do that 

and we'll do.this. We'll have it done by such and such a time. 

You go take your medicine and be ready to eat at that time." 

(Tro 55)o This was confirmed by Collins who indicated that if a 

belt was downv the foreman would inform Price that they would be 

eating early and would bring him his medication. Otherwise, if 

the belt was not downv the crew would eat at 4~00 o 9 clocko Price 

also said that there were times when he had to work through 

lunch. He said he did not do so "willingly" and that "most" 

foremen advised him in advance that he would be working through 

lunch and eating later, so he was able to take his medication and 

then grab a sandwich or cup of coffee. (Tr" 55)o He said that 

if a breakdown occurred at 3 o'clock and the crew was sent to 

eat, he did not take his medication, and did not eato He said 

that he was able to take his medication when he was told that 01we 1 re going to be down for a half hour" (Tr. 57)" 

Francis Pethtel who, was Price's foreman from October 1989 

through March 15, 1990, indicated that normally the crew would 

eat at 4:00 o'clock, but that there was no set time, and "quite 

often," the crew would not eat at 4:00 o'clock. (Tr. 187). He 

indicated that he did not inform Price daily that he would be 

1126 
eating in a half hour. However, on cross-examination he 

indicated that if he knew in advance that the crew would not be 

eating at 4:00 o'clock, he would inform Price of this fact. He 

indicated that if the belt was down at 3:00 o'clock, Price then 

went to the dinner hole, took his medicine, and then ate on the 

way back to the working area. Price did not rebut this 

statement. 

Price indicated that the first week that Darrah took over as 

foreman, the crew ate at 4:00 o'clock, unless there was a 

breakdown. If this occurred, he went to take his medicine at 

3:30. Darrah essentially indicated that prior to April 18, the 

lunch time varied, but that if he did not specify the time, the 

crew ate at 4:00 o'clock, and he indicated that three out of five 

times the crew ate at 4:00 o'clock. 

According to Price, on April 16 or 17, a miner had to be 

moved, and as a consequence he worked through lunch. He 

indicated that he spoke to Darrah, and told him that he would 

like to know what time he would eat so he could take his 

medicine. He indicated that all he needed was to be notified a 

half hour before lunch regardless of the time of lunch. 

According to Price, Darrah asked for a slip from his doctor, but 

subsequently did not want to accept the slip. Price indicated 

that he did not tell Darrah that he needed a designated time to 

eat lunch. He said that Darrah told him that lunch time is 

between 3 and 5, and that he is to eat when he is told to. He 

indicated that Darrah did not make any effort to communicate to 

him and inform him a half hour before eating time. 

Subsequently, according to Price, he spoke with Jay Robert 

Levo the superintendent of the mine, and did not ask for a 

designated time to eat, but he repeated his request to be 

notified a half hour before lunch time. According to Price, Levo 

informed him that he will have 30 minutes before lunch to take 

his medicinev and that he did not need a medical slip. Price 

said that Levo told him that he could either continue with his 

past practice or he could submit the medical slip. Price said 

that Levo told him that if the company accepts the slip, he is no 

longer needed, as it is company policy not to have someone work 

with limitationso Charles Edward Haun, a miner who is a member 

of the Union Safety Committee, was with Price when he spoke with 

Levo, and confirmed Price 1 s version of the conversation with 

Levo. 

Collins testified that Price asked Darrah to inform him a 

half hour before the time to eat, and that this conversation 

occurred at the beginning of the shift, before any mining had 

taken place. He said that Price did not ask for a designated 

time, and th~t Darrah "snapped" at him and asked him to obtain a 

doctor's slip. (Tr. 122). According to Collins, the following 

day Price asked Darrah if he would let him know a half hour 

1127 
before lunch time and Darrah indicated that he would eat between 

3 and 5, and he said it "just like being a smart aleck" (Tr. 

127). 

Price indicated that he filed a grievance on April 26, and 

that subsequently the lunch time was changed, but that Darrah did 

not let him take his medicine and told him he could not take his 

medicine. He said at times he worked through lunch and 

accordingly, did not eat. 

According to Darrah, on April 19, 1990, when he first came 

on the section, he informed Price that he was transferring him to 

the left side of the bolter. He then firebossed for 15 minutes 

and upon completion of that task, Pr.ice requested of him a "set," 

"designated" time for dinner (Tr. 218). According to Darrah, 

Price told him he wanted to eat at the same time every day. 

Darrah stated that Price did not request a half hour notice prior 

to eating and that nothing preceded the request by Price. He 

indicated that the tenor of the discussion with Price was 

"conversational," rather than "confrontational" (Tr. 271), and 

that he (Darrah) said that the only way he could accommodate 

Price was if the latter would'-bring a doctor's note indicating 

that he was required to eat at a set time daily. 

According to Borchick, on April 19, 1990, Price asked for a 

"designated" eating time. (Tr. 30, 51). Barchick stated that 

Price used that term "numerous times." (Tr. 51). Barchick 

stated that when Price told him that Darrah indicated that he 

could not give him a designated eating time with out a doctor's 

slip, he told him that such a slip is not necessary, but that he 

would check with Levo. Levo and Barchick both testified, in 

essence, tha1:. Levo told Price that a note is not necessary. Levo 

further told Price that if he submits a note that indicates that 

a set time for lunch is needed, the note may be considered 

documentation of rest~~cted duty which is not allowed by the 

companyc 

Despite the conflict in the testimony between the witnesses 

for Complainant and Respondent as to what was requested by Price, 

it is clear that there is no evidence that Respondent treated 

Price differently than other miners. There is no evidence that 

any miner had a set time to eat lunch. Nor is there any evidence 

that any other miners were given advance notice by their foreman 

of the time that a lunch break would be given. In essence, both 

Collins and Price indicated that prior to Pricevs request of 

Darrah, the crew had lunch at 4:00 oiclock, unless work had 

stopped before that time due to a breakdown of equipment. 

According to Price, after he brought in a note from his doctor, 

the time for lunch was changed, Darrah told him he could not take 

his medicine; and Darrah did not let him take the medicine. I do 

not place much weight on this testimony. Price did not provide 

any specifics regarding any details as to exactly what occurred 

1128 
when Darrah did not let him take his medicine. He did not 

provide any specifics regarding the circumstances of this action, 

nor did he indicate when it occurred. Neither did he describe 

the context and content of any specific statement Darrah made in 

telling him that he could not take his medicine. Also, having 

observed the demeanor of Darrah, I find his testimony credible 

that, prior to April 19, there was no set time for lunch, and 

that although three out of five times, lunch was at 4:00 o'clock, 

the time did vary. This is consistent with the testimony of his 

predecessor Pethtel, whose testimony I found credible. In this 

connection, Collins indicated that the day after Price made his 

initial request, he again asked Darrah if he would let him know 

what time he would eat. According to Collins, Darrah told him 

"you eat between 3 and 5. 11 (Tr. 125}. Collins was asked to 

describe the manner in which Darrah responded, and he indicated 

that he was "just like being a smart aleck. 11 (Tr. 127). 

However, on cross-examination, he indicated that Darrah did not 

change the routine as to lunch. 

According to Price, Darrah requested him to bring in a note 

from his doctor. Even if this request is interpreted as an act 

of harassment, the evidence 'fails to establish a causal nexus 

between it and Price's safety complaints. I accept the testimony 

of Darrah, as it was corroborated by Collins, that the 

conversation regarding a medical slip occurred at the beginning 

of the shift. Although the evidence is in conflict with regard 

to the exact request made by Price of Darrah, the testimony is 

consistent in establishing that Darrah's remarks about the need 

for a medical note came after and in response to Price's request. 

I find that it was Price, not Darrah, who initiated any change in 

status quo with regard to lunch time. Darrah's comments with 

regard to the submission of documentation from Price's doctor 

were made the day following Price's complaints about methane 

readingso Howeveru since these comments were made solely in 

response to a request .. ittade by Priceu I conclude that there is no 

nexus between these comments and Price's complaints the previous 

eveningo 

Taking all the above into account, I conclude that the 

evidence establishes that any adverse action taken by Respondent 

against Price would have been taken in either event, based on 

unprotected activities aloneo Henceu Complainant has failed to 

establish that he was discriminated against in violation of 

Section 105(c) of the Act. 3

/ 

3; In his Brief, Complainant alleges that "as a direct and 

proximate result" of Darrah's discriminatory and retaliatory 

action against him, Complainant "lost three (3) days work." The 

only testimony on this point is Price's statement that he was off 

from April 20 to April 23 "with my heart due to harassment" (Tr. 

37) (sic). Complainant also offered as evidence a note from his 

1129 
ORDER 

It is ORDERED that the Complaint herein be DISMISSED. 

g~ Administrative Law Judge 

Distribution: 

James B. Zimarowski, Esq., 204 High Street, Suite 203, 

Morgantown, WV 26505 (Certified Mail) 

Walter J. Scheller, III, Esq., Consolidation Coal Company, 

1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

dcp/fb 

footnote 3 (continued) 

physician, John Manchin II, D.O. which states that he was absent 

from work on these dates 10 o due to anxiety and nervousness 

caused by a situation at work in which he was not permitted to 

take his medication. 00 I find this evidence insufficient to 

establish a good faith reasonable belief that continued work 

involves a hazardous condition. Further, there is no evidence of 

any communication made by Price to management concerning any 

refusal to work on the dates in question. As such, it has not 

been established that Price had a right not to work on the dates 

in question, and that Respondent is responsible for his wages on 

those dates (See, Secretary on behalf of Keene v. s & M Coal 

Company, Inc., 10 FMSHRC 1145, 1150 (1988)). 

1130 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 171991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. WEVA 91-92 

A.C. No. 46-01433-03953 

v. 

Loveridge No. 22 Mine 

CONSOLIDATION COAL COMPANY, 

Respondent Docket No. WEVA 91-102 

A.C. No. 46-01318-03975 

Appearances: 

Before~ 

Robinson Run No. 95 Mine 

DECISION APPROVING SETI'LEMENT 

Charles 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 Melick 

These cases are before me upon petitions for assessment of 

civil penalty under section 105(d) of the Federal Mine Safety and 

Health Act of 1977 (the Act)o At hearings, petitioner filed a 

motion to approve a settlement agreement which was supplemented 

post-hearing. A modification of Citation Nos. 3308698 and 

3309261 to delete the "significant and substantial" findings and 

a reduction in penalties from $1,722 to $1,400 has been proposed. 

I have considered the representations and documentation submitted 

in this case, and I conclude that the proffered settlement is 

appropriate under the criteria set forth in section llO(i) of the 

AcL 

WHEREFORE, the motion for approval 

and it is ORDERED that Respondent pay a/ 

30 days of this order. L·/ f settleme~t is GRANTED, 

enalty of ~1,400 wfthin 

\ (i 'IL, 

i I \ !

' \./ " v 

Gary Mell k 

Administration 

1131 

\ / I fr 1 7 \_-"\ L/ \J~w' ~-

Law e 
Distribution: 

Charles 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, Legal 

Department 1800 Washington Road, Pittsburgh, PA 15241 (Certified 

Mail) 

/fb 

1132 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 17199\ 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

. 

. CIVIL PENALTY PROCEEDING 

Docket No. WEVA 91-181 

A. C. No. 46-01452-03770 

Arkwright No. 1 Mine 

DECISION APPRdVINGSETTLEMENT 

Appearances: Charles M. Jackson, Esq., U. s. Department of 

Labor, Office of the Solicitor, Arlington, 

Virginia, for the Petitioner; 

Walter J. Scheller III, Esq., Pittsburgh, 

Pennsylvania, for the Respondent. 

Before: Judge Maurer 

This case is before me upon a petition for assessment of 

civil penalty under Section 105(d) of the Federal Mine Safety and 

Health Act of 1977 (the Act). At the hearing, the parties 

jointly moved to settle this case. A reduction in penalty from 

$953 to $783 was proposed. I have considered the representations 

and documentation submitted in this case, and I conclude that the 

proffered settlement is appropriate under the criteria set forth 

in Section llO(i) of the Act. 

WHEREFORE, the motion for approval of settlement is GRANTED, 

and it is ORDERED that respondent pay a penalty of $783 within 

30 days of this order. Upon payment in full, this case is 

DISMISSED. 

urer 

ative Law Judge 

1133 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 191991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. LAKE 90-87 

A.C. No. 33-01314-03519 

v. Island Creek # 43 strip Mine 

ANTHONY MINING COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION 

Kenneth Walton, Esq., Office of the Solicitor, 

U.S. Department of Labor, Cleveland, Ohio, for the 

Petitioner; 

Gerald P. Duff, Esq., HANLON DUFF & PALEUDIS CO., 

LPA, St. Clairsville, Ohio, 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 for 

three alleged violations of certain mandatory safety standards 

found in Part 77v Title 30; Code of Federal Regulations. The 

respondent filed an answer contesting the alleged violations, 

and a hearing was held in Steubenville, Ohio. The parties did 

not file posthearing briefs, but I have considered their oral 

arguments in the course of my adjudication of this matter. 

Issues 

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

respondent has violated the standards as alleged in the proposal 

for assessment of civil penalties, (2) whether the violations 

were "significant and substantial," and (3) the appropriate civil 

penalties that should be assessed based on the civil penalty 

criteria found in section llO(i) of the Act. Additional issues 

raised by the parties are identified and disposed of in the 

course of this decision. 

1134 
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 110(i) of the 1977 Act, 30 u.s.c. § 820(i). 

3. 30 C.F.R. § 77.1605(b) and§ 77.1606(c). 

4. Commission Rules, 20 C.F.R. § 2700.1 et seq. 

Stipulations 

The parties stipulated to the following (Exhibit AIJ-1): 

1. The Federal Mine Safety and Health Review Commission 

has jurisdiction over this proceeding. 

2. The Anthony Mining Company is an "operator" as defined 

in § 3(d) of the Federal Mine Safety and Health Act of 

1977 (the "Mine Act'.'), 3.0 u.s.c. § 802(d). 

3. The Anthony Mining Company is a small operator. 

4. The Island Creek #43 Strip Mine of the Anthony Mining 

Company is a mine as defined in § 3{h) of the Mine Act, 

30 u.s.c. § 802(h). 

Discussion 

The alleged violations in this case all concern one piece of 

equipment; a Willys jeep with a water pump mounted on the cargo 

bed behind the driver's cab. Two of the three section 104(a) 

vns&s 11 citations issued on February 15, 1990, were issued for 

violations of mandatory safety standard § 77ol605(b), because the 

service brakes and parking brake were not maintained in good 

operating condition in that the service brakes would not stop the 

jeep and the parking brake could not be applied. The third 

citation was issued for a violation of mandatory safety standard 

§ 77ol606(c) because the windshield wiper arms and blades were 

missing and the wiper motors were inoperative. The inspector 

noted that it was raining at the time the violative conditions 

were observed and cited. 

Petitioner's Testimony and Evidence 

MSHA Inspector B. Ray Marker testified that he inspected the 

jeep in question on February 15, 1990, in the course of his 

inspection of the respondent's strip mine. He stated that the 

jeep was located in the pit area where coal was being loaded. A 

water pump used to pump water from the pit was mounted on the 

jeep, and he was informed that the pump had a defective seal 

1135 
(Tr. 9-13). He observed an employee walking towards the jeep, 

and when he asked him what he was going to do, the employee 

advised him that he was going to move it out of the way because 

another pump was being brought to the pit. Mr. Marker then 

decided to inspect the jeep, and when he asked the employee to 

try the brakes, "the brake pedal went to the floor and there was 

no indication of any service brake whatsoever" (Tr. 14). He then 

asked the employee to apply the parking or emergency brake and 

"for some reason the park brake could not be applied". 

Mr. Marker then looked at the windshield and observed that the 

wiper blades and arms were missing from the motor and that the 

wiper motors would not work. He then issued a section 107(a) 

closure order to prevent anyone from moving the vehicle (Tr. 14, 

Exhibit P-1). 

Mr. Marker stated that the jeep key was in the ignition and 

that the jeep could be driven and it was available for use. He 

spoke with pit foreman John Sperlaza who acknowledged that he was 

aware of the brake problems. Mr. Marker confirmed that another 

pump was brought to the pit, and the cited jeep was towed away 

(Tr. 14-15). Mr. Marker confirmed that he issued the citations 

in question because o,f the conditions which he observed (Tr. 16, 

20, 23; Exhibits P-2 through P-4). 

On cross-examination. Mr. Marker stated that he has never 

observed the jeep in operation anywhere at the mine site, and he 

confirmed that the pump was attached to the jeep and that "the 

purpose of the piece of equipment was for the water pump" 

(Tr. 26). He identified the employee that he spoke with as 

Denver Ray, and he confirmed that Mr. Ray did not start the 

vehicle until he (Marker) approached it. He stated that he has 

no evidence to contradict the fact that the jeep may have been 

towed to the pit, rather than being driven, and he confirmed that 

he never observed the jeep in any accident at the mine (Tr. 28). 

Mr. Marker stated that the violations in question would be u

1 significant and substantial 11 only if the jeep were operated out 

of the pit area and on the haul road leading in and out of the 

pit. There was no probability of any accident occurring in the 

pit area where the pump would normally be located (Tr. 28). He 

stated that the jeep had three forward and one reverse gears, 

that it would not be driven at much of a speed, and if driven in 

low gear it would be operated in a relatively slow powered gear. 

Under normal conditions, the jeep could be reasonably driven 

slowly by using the clutch and low gear (Tr. 29). Mr. Marker had 

no reason to believe that the jeep was driven on the day of his 

inspection (Tr. 30). Mr. Ray and one other individual were the 

only people in the pit. There would be no need for windshield 

wipers if the vehicle was not going to be operated, and he did 

not personally test the brakes, and simply visually observed them 

(Tr. 31) • · 

1136 
In response to further questions, Mr. Marker stated that he 

assumed that the jeep would be driven out of the pit because the 

key was in the ignition and Mr. Ray started it as he (Marker) 

walked toward the jeep. Mr. Ray told him that the pump was going 

to be moved out of the pit, but he did not say that the jeep was 

going to be driven out (Tr. 32-33). Mr. Marker stated that the 

pump occupied most of the jeep cargo space, and with the 

exception of some additional water hose, he did not believe that 

the jeep could be used for hauling supplies. He confirmed that 

the jeep would be a "fixed object" in the pit while the pump was 

being operated and until it was relocated to another area. He 

did not know how long the brake conditions had existed and he 

checked no records or inspection reports (Tr. 35-37). 

Mr. Marker believed that Mr. Ray moved the jeep forward a 

few feet when he asked him to test the brakes, and 11 it came to a 

coasting stop on its own". Mr. Marker also stated that "the 

brake went clear to the floor and that was enough for me" 

(Tr. 38). He confirmed that other than moving the jeep from one 

pit area to another over the haul road, the jeep would not 

normally be operated on the haul road (Tr. 39). If the jeep were 

parked with a workable pump, 'he would have only inspected the 

pump engine guarding.- However, since the pump could not be used, 

he was concerned that the jeep would be used for transporting 

that pump (Tr. 40). 

Mr. Marker confirmed that the jeep had a tow bar attached to 

the front bumper, and he indicated that Mr. Ray and another 

individual (Brown) told him that they did drive the jeep. He 

(Marker) also confirmed that the pit terrain was reasonably 

level with a grade 300 to 400 feet long coming out of the pit. 

The only occasion for using the parking brake would be for an 

emergency, and the jeep was towed from the premises and 

dismantled (Tr. 42,44). Mr. Marker also confirmed that he had no 

reason to believe that the jeep was used routinely for anything 

other than pumping water (Tro 43). When he initially spoke with 

Mro Ray, he saw no other vehicle present which would have been 

used to tow the jeep, but after speaking with Mr. Sperlaza a 

vehicle was brought in to tow the jeep (Tr.46). 

Respondent 1 s Testimony and Evidence 

Pit foreman and heavy equipment operator Denver o. Ray, Jr., 

testified that his job on February 15, 1990, was to take care of 

the water pump mounted on the jeep and to insure that it was 

pumping water o He stated that the jeep was initial.ly towed to 

the pit area by mine foreman J. C. Schiappa with his pickup and 

parked at the location where it was observed by the inspector. 

He confirmed that the jeep was equipped with a tow bar, and he 

denied that he ever drove or intended to drive the jeep that day. 

He explained that prior to the inspector's arrival, the back hoe 

operator informed him that the pump seal was defective and that 

1137 
the pump was not operating. He then made preparations to bring 

in another pump and arranged for Mr. Schiappa to bring in his 

pickup so that the jeep could be towed out of the pit and the 

pump taken to the machine shop to be repaired (Tr. 52-54). 

Mr. Ray denied that he intended to drive the jeep out of the 

pit, and he stated that he told Inspector Marker that the jeep 

was going to be towed out. He further stated that he started the 

jeep after the inspector told him to start it, and that he did so 

because he believed the inspector wanted to inspect it (Tr. 55). 

He stated that the jeep was not used to transport men or material 

that day and that it was towed out with a tow bar with 

Mr. Schiappa's pickup. The jeep had been parked in the pit for a 

week or two pumping water so that the main coal seam could be 

tapped and loaded out (Tr. 56). · 

On cross-examination, Mr. Ray admitted that he had 

previously driven the jeep approximately two weeks prior to the 

inspection by Mr. Marker. He stated that he had brakes when he 

drove it and that the brake pedal went about "halfway down". He 

was the only person to drive the jeep and he has never hit 

anything while driving it. He stated that the jeep ·only served 

as a stand for the pump because the jeep wouldn't start and 

Mr. Schiappa had to push it into position with his truck 

(Tr. 59). He asserted that he only started it after the 

inspector told him to get in and start it (Tr. 59). He confirmed 

that the brake pedal "went to the floor" and the parking brake 

and windshield wipers did not work (Tr. 60). 

In response to further questions, Mr. Ray stated that he 

usually drove the jeep in first gear no more than five miles an 

hour and that he drove it from where it is usually parked "at the 

top of the hill" to the pit. The jeep was only used in the pit 

area to pump water and it was never used to transport men or 

materialso The jeep is usually blocked by placing rocks under 

the wheels when it is parked (Tro 61-63)0 

Foreman John c. Schiappa testified that he was informed 

sometime between 9:00 a.m., and 9:30 a.m., on February 15, 1990, 

that the pump in question had quit pumping. He issued 

instructions to have another pump taken to the pit, and he 

assigned employee Bill Weaver to drive his pickup truck to the 

pit to tow out the jeep with the defective pump. The pump had 

been pumping water for 10 to 12 days before the inspection and it 

had not been moved from its location in the pit. The jeep was 

equipped with a tow bar and it was customarily towed in and out 

of the pit at times (Tr. 65-67). 

On cross-examination, Mr. Schiappa stated that the jeep was 

originally driven to the pit, and that "at times" the jeep was 

driven and towed to the pit area. He stated that in the winter 

season the jeep wouldn't start, and that when it was driven to 

1138 
the pit prior to the inspection, "the brakes were in good shape", 

and there were "no problems as far as stopping". However, he 

acknowledged that he did not know how far the brake pedal went 

down because he did not drive the jeep, and he had no personal 

knowledge of the condition of the brakes. He confirmed that 

there were no windshield wipers on the jeep (Tr. 68-69). 

In response to further questions, Mr. Schiappa stated that 

when the jeep was driven it was only driven for a distance of 

one-tenth to two-tenths of a mile, and then towed into the pit. 

The pump would only leave the pit area when it was in need of 

repair and it was always towed to the repair shop. He considered 

the jeep to be a stand for the pump rather than a piece of mobile 

equipment. The pump was bolted to the bed of the jeep and it 

could be unbolted and removed from the jeep. If this were done, 

the jeep would be used as a standby for another pump (Tro 70-73}. 

Findings and Conclusions 

Fact of Violation - citation Nos. 3130674 and 3130675 

The respondent is charged with·two violations of mandatory 

safety standard 30 C.F.R. § 77.1605(b), because of its failure to 

maintain the jeep service brakes and parking brake in good 

operating condition. Section 77.1605(b), provides as follows: 

Mobile equipment shall be equipped with adequate 

brakes, and all trucks and front-end loaders shall also 

be equipped with parking brakes. 

During the course of the hearing, respondent's counsel 

advanced an argument that the cited jeep was not a vehicle which 

was normally operated in the pit, that it was not being used as a 

mobile piece of equipment 1 and that it simply served as a stand 

for the water pump (Tr. 50-51). Notwithstanding his statement 

that "obviously a Willys jeep is mobile", counsel argued that 

section 77 o 1605 (b) 0italks basically about trucks, front-end 

loaders, and rock trucks out on the haulageway1u (Tr. 80). Since 

the jeep traveled at most a tenth of a mile to two-tenths of a 

mile, and was generally towed into and out of the pit 1 counsel 

characterized the j as na glorified platform stand the 

pump 0", and he concluded that within the express language of 

regulation, or the spirit of the regulation, the jeep was not 

used as a piece of mobile equipment (Tro 80)c 

The term "'mobile equipment 11 is not defined in Part 77 of the 

regulationso However, it is defined in the Dictionary of Mining, 

Mineral, and Related Terms, U.S. Department of the Interior, 

1968, at page 719, as follows: 

Applied to all equipment which is self-propelled or 

which can be towed on its own wheels, tracks, or skids. 

1139 
The respondent's suggestion that the cited jeep was not a 

piece of mobile equipment subject to the requirements of 

section 77.1605(b) is rejected. Apart from the modification made 

to the jeep to accommodate the water pump in the cargo area 

behind the driver, there is no evidence that the jeep was other 

than a self propelled vehicle which was sometimes driven and 

sometimes towed to and from the pit area. Although it may have 

been driven a relatively short distance from the area where it 

was normally parked to the pit area, it did travel over the 

regular haulage road used by other vehicles. Further, although 

the jeep may have been parked at the pit site for as much as ten 

days while the pump was pumping water, there is no evidence that 

the jeep was a permanent fixture at any one location in the pit. 

Indeed, the evidence shows that the jeep was moved in and around 

the pit area as needed so that the pump could pump water, and 

when it was moved from place to place it usually traveled over 

portions of the haul road. 

Contrary to the respondent's assertion in its answer of 

July 3, 1990, that the jeep was never driven, both Mr. Ray and 

Mr. Schiappa admitted that the jeep was sometimes driven, and 

sometimes towed, to and from the pit area. Further, if the pump 

were unbolted and removed from the rear of the jeep, the jeep 

could be used as a "standby" vehicle for another pump, and I find 

nothing to suggest that it could not be used for other purposes. 

Under all of these circumstances, I conclude and find that the 

cited jeep was a piece of "mobile equipment" within the scope and 

intent of section 77.1605(b), and that the brake requirements 

found in this regulation applied to the jeep. 

The uncontroverted and credible testimony of Inspector 

Marker establishes that at the time of his inspection of the 

jeep, and after requesting Mr. Ray to depress the service brake, 

the brake pedal went all the way to the floor and the inspector 

found no indication that the brakes were operational. The 

inspector's belief that Mr. Ray may have moved the jeep forward 

a few feet while testing the service brake and that the jeep 11 came to a coasting stop on its own" is unrebutted. In fact, 

Mr. Ray testified that "after he made me start it up and take off 

with it, the pedal went to the floor 11 (Tr. 60). This corroborates the inspector 1 s testimony that after Mr. Ray started the 

jeep, he moved and depressed the brake pedal, and that the pedal 

went to the floor and the jeep coasted to a stop. 

Although Mr. Ray testified that the jeep "had brakes" when 

he drove it approximately two weeks prior to the inspection, and 

that the brake pedal went "halfway down", the fact remains that 

at the time the inspector observed the brakes with Mr. Ray behind 

the wheel, the brake pedal went to the floor and would not stop 

the vehicle when Mr. Ray moved it forward. Further, although 

Mr. Schiappa testified that the jeep brakes were in "good shape" 

and that there were "no problems as far as stopping" when the 

1140 
jeep was originally driven to the pit prior to the inspection, he 

conceded that he did not drive the jeep, did not know how far the 

pedal went to the floor, and that he had no personal knowledge of 

the condition of the brakes. 

The evidence in this case establishes that the jeep was 

equipped with a parking brake, but for some unexplained reason 

the brake could not be activated. Although section 77.1605(b), 

only requires mobile equipment to be equipped with a parking 

brake, and has no specific requirement that the brake be adequate 

or serviceable, I conclude and find that the intent of the 

standard is to insure the margin of safety intended by the 

installation of the parking brake on the equipment, and that any 

reasonable application of the standard requires that a parking 

brake be maintained in serviceable ahd functional condition. 

See: Thompson Coal & Construction, 8 FMSHRC 1748 (November 1986); 

Turner Brothers, Inc •. 6 FMSHRC 1219, 1253 (May 1984). Further, 

in Wilmot Mining company, 9 FMSHRC 684 (April 1987), in affirming 

a judge's finding of a violation of section 77.1605(b), the 

Commission stated as follows at 9 FMSHRC 688: 

To prove a violation of this standard, however, the 

Secretary is not'required to elaborate a complete 

mechanical explanation of the inadequacy of the 

brakes. A demonstrated inadeguacy itself may be 

sufficient. * * * Whatever the precise cause of the 

braking defect, the evidence amply supports the judge's 

finding that the Terex was not "equipped with adequate 

brakes, " in violation of the cited standard (emphasis 

added). 

In view of the foregoing, and based on a preponderance of 

all of the testimony and evidence adduced in this case, I 

conclude and find that the petitioner has established that the 

cited jeep service brakes and parking brake conditions 

constituted violations of the cited mandatory safety 

section 77.1605(b)o Accordinglyp the citations issued by 

Inspector Marker ARE AFFIRMED. 

Fact of Violation - Citation No. 3130676 

The respondent here is charged with a violation of mandatory 

safety standard 30 C.F.R. § 77.1606(c), because of the missing 

jeep windshield wipers and inoperative wiper motors. 

Section 77.1606(c), states that "Equipment defects affecting 

safety shall be corrected before the equipment is used 11 o 

The respondent has not rebutted the uncontroverted evidence 

that the jeep windshield wiper arms and blades were missing and 

that the wiper motors were inoperative. However, during the 

course of the hearing the respondent's counsel argued that there 

is no evidence that the jeep was going to be driven in the rain 

1141 
on the day of the inspection (Tr. 79). Petitioner's counsel 

argued that the jeep was available for use because the keys were 

in the ignition and that it was in fact started. Counsel further 

asserted that it was obvious that Mr. Ray was going to move the 

jeep because he was inside it for the purpose of moving it in 

order to make room for another pump. Under these circumstances, 

counsel concluded that that there is an inference that the jeep 

was driven (Tr. 78-79; 81). 

Although the jeep was "used" in the sense that it was parked 

and blocked at the location where the pump was pumping water 

until it stopped pumping and Mr. Ray and Mr. Schiappa were 

preparing to tow it away, there is no evidence that the jeep was 

ever driven with the missing windshield wipers and inoperative 

wiper motors. I conclude and find that the missing windshield 

wipers and inoperative motor "defects" would only "affect 

safety11 while the jeep was being driven with reduced visibility 

in inclement weather or during a rain, rather than while it was 

parked and blocked for any length of time while the pump was 

operating. I further conclude and find that in order to 

establish a violation there ,,must be some credible evidence to 

establish; or at least to support a reasonable inference, that 

the jeep was driven with defective equipment which affected 

safety; and that the respondent failed to correct the defective 

conditions before allowing the jeep to be driven. On the facts 

and evidence presented in this case, I conclude and find that 

there is insufficient evidence to establish that this was the 

case. 

There is no evidence as to how long the windshield wiper 

condition had existed prior to the inspection, and Mr. Marker 

confirmed that he did not check any maintenance or other records, 

and he apparently did not pursue this issue further. He stated 

eep were not driven there would be no need for 

; w ·- Iii.Ir o Marker confirmed that Mr. Sperlaza 

:::~~~J~now~cedged th.at he was aware of the brake problem, but there 

~~ to indicate that Mr. Sperlaza was aware of the 

windshield condition. 

Although the evidence establishes that the jeep was driven 

two weeks days prior to the inspection, there no 

that the windshield wipers were defective when it was 

c:r3_ven. The inspector's assumption that the jeep was going to be 

jriven out of the pit was based on the fact that the keys were in 

However, the respondent 1 s witnesses testified 

that the jeep was going to be towed and not driven out 

of :che pit area. The inspector conceded that Mr. Ray never told 

him that he was going to drive the jeep out, and he also 

confirmed that the jeep had a tow bar attached to the front 

bumper and that it was in fact towed away. 

1142 
The petitioner's conclusion that Mr. Ray was going to move 

the jeep to make room for another pump is based on counsel's 

assertion that Mr. Ray was inside the jeep. Counsel's 

conclusion that this supports an inference that the jeep was 

driven is also based on this asserted fact (Tr. 78-79; 81). 

However, after reviewing the testimony in this case, I cannot 

conclude that it clearly establishes that Mr. Ray was inside the 

jeep preparing to drive it out of the pit area at the time the 

inspector first observed the vehicle. 

Inspector Marker testified that he was sitting in his car 

watching the mining operation when he first observed Mr. Ray 

walking towards the jeep, and that when he (Ray) "went to get 

in 11 , Mr. Marker asked him what he was going to do, and Mr. Ray 

told him that he was going to move the jeep out of the way 

because another pump was being brought to the pit (Tr. 13). At 

that point, Mr. Marker advised Mr. Ray that he wanted to inspect 

the jeep, and Mr. Marker conducted his inspection of the brakes 

while "the employee was in the jeep" (Tr. 13). Mr. Marker later 

testified that the jeep was not started until he approached it 

(Tr. 27; 31) . Viewed in this, :Light, I cannot conclude that 

Mr. Marker's testimony establishes that Mr. Ray in fact drove 

the jeep, or that it supports any reasonable inference that the 

jeep was driven. Even if one could conclude that Mr. Ray 

intended to drive the jeep, there is absolutely no credible 

evidence that he did, and the inspector conceded this fact. 

In view of the foregoing findings and conclusions, I cannot 

conclude that the petitioner has established a violation of 

section 77. l606(c). Accordingly, the citation issued by 

Inspector Marker IS VACATED. 

Size of Business and Effect of Civil Penalty Assessments on the 

Respondent 1 s Ability to Continue in Business 

The parties stipulated that the respondent is a small mine 

operator and I find nothing to suggest that the payment of the 

civil penalty assessments for the violations which have been 

affirmed will adversely affect the respondent's ability to 

continue in business. 

History of Prior Violations 

The petitioner submitted a computer summary of assessed and 

paid violations for the period February 15, 1988, through 

February 14u 1990, and prior to February 15, 1988. The 

information reflects that the respondent paid civil penalty 

assessments in the amount of $1,634, for 24 violations issued 

during the 2-year period in question, and that prior to 

February 15, i988, the respondent paid $989 for 20 violations. 

There is no evidence that the respondent has been cited for prior 

violations of the same standards cited in this case. Based on 

1143 
the information provided, I cannot conclude that the respondent's 

compliance history is such as to warrant any additional increases 

in the civil penalties which I have assessed for the violations 

which have been affirmed. 

Good Faith Compliance 

The evidence establishes that the cited jeep was immediately 

removed from the mine site and scrapped. I conclude and find 

that the respondent rapidly abated the violations in good faith. 

Negligence 

Citation No. 3130674 (service brakes) 

Inspector Marker confirmed that he based his "high 

negligence" finding on the fact that pit foreman Sperlaza 

admitted that he was aware of the brake problem (Tr. 20). I take 

note of the fact that in its answer of July 3, 1990, the 

respondent admitted that the pit foreman was aware of the brake 

problem, but took the position.that the vehicle was always towed 

to the pit and never-driven. However, the evidence shows that 

the jeep was at times driven as well as towed, and Mr. Schiappa 

admitted that it was driven to the pit before the inspection. 

Under the circumstances, I agree with the inspector's high 

negligence finding, and it IS AFFIRMED. 

Citation No. 3130675 (parking brake) 

Inspector Marker testified that he based his "moderate 

negligence" finding on the fact that pit foreman Sperlaza had no 

knowledge that the jeep parking brake could not be engaged. 

However, he believed that the respondent, as the mine operator, 

was responsible for having the equipment checked by a competent 

personv and that all defects found are required to be reported so 

that they may be corrected (Tr. 22) o I conclude and find that 

the violation resulted from the respondent 1 s failure to exercise 

reasonable care. I agree with the inspector's negligence 

finding, and IT IS AFFIRMED. 

Significant and Substantial Violations 

A 91 significant and substantial 11 violation is described in 

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

as could significantly and substantially contribute to the cause 

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

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

significant and substantial "if, based upon the particular facts 

surrounding the violation there exists a reasonable likelihood 

that the hazard contributed to will result in an injury or 

illness of a reasonably serious nature." Cement Division, 

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

1144 
In order to establish that a violation is significant and 

substantial, the petitioner must prove the following: (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. Mathies Coal Co •. 6 FMSHRC 1, 3-4 

(January 1984}; United States Steel Mining Company, 7 FMSHRC 

1125, 1129 (August 1985), and the cases cited therein. The 

operative time frame for determining whether a reasonable 

likelihood of injury existed "must take into account not only the 

pendency of the violative condition prior to the citation, but 

also continued normal mining operations". Halfway. Incorporated, 

8 FMSHRC 8, 12 (January 1986). 

The respondent's counsel argued that the brake violations 

were not significant and substantial because there was a minimal 

mobile use of the jeep, it was unlikely that the parking brake 

condition would result in an accident, the jeep was driven no 

more than five miles an hour, at most for a distance of tenth of 

a mile, and only two people were working in the pit area. 

Counsel further pointed out that the evidence establishes that 

the jeep was not going to be driven, that it was towed, and that 

the chances of anything happening "were certainly more than 

remote" (Tr. 81). The petitioner's counsel took.the position 

that the inspector's 11 S&S" findings were appropriate (Tr. 82). 

citation No. 3130674 (service brakes) 

Inspector Marker believed that a "permanently disabling" 

injury was "highly likely" because he observed several large "off 

road" haulage and dump trucks in operation at the time of his 

inspection and if the jeep were taken out of the pit "with all of 

this activity going on" it was highly likely that there would be 

an accident due to the defective brake problems and lack of 

control in stopping the jeep (Tr. 18). The defective brake 

condition would contribute to "the severity of the event" because 

the vehicle could not be stopped, and if an accident were to 

occur, it was reasonably likely that it would result in a 

permanent disabling injury. For these reasons, he believed that 

the violation was 11 significant and substantial" (Tr. 19). 

Citation No. 3130675 (parking brake) 

Inspector Marker believed that the inability to activate the 

parking brake would "reasonably likely" result in an accident and 

injury because of the inability to control or stop the vehicle. 

However, he believed that the lack of a parking brake would only 

involve the cited jeep rather than other vehicles because the 

jeep could be stopped by running it into a berm provided on the 

haul road or in the spoil area (Tr. 21). He did not believe that 

1145 
this violation was as serious as the service brake violation 

because the vehicle backing into a berm or spoil pile without a 

parking brake would probably or possibly only result in a "lost 

work day or restricted duty" injury (Tr. 22). He believed the 

violation was "significant and substantial" because "we have a 

control problem which increases the possibility of something 

happening" (Tr. 22). 

The credible testimony of the respondent's witnesses 

establishes that the jeep in question was used to transport the 

water pump to and from the pit, and that while the jeep was 

parked the wheels were blocked with rocks. Although the jeep 

could have been used to transport men and materials, I find that 

this could only happen if the pump were unbolted and removed from 

the cargo area. However, there is no evidence that the jeep was 

ever used for anything other than transporting the pump, and the 

inspector had never observed the jeep being driven, and he had no 

reason to believe that the jeep was used routinely for anything 

other than pumping water. 

The inspector confirmed that there was no probability of any 

accident occurring in the pit area where the jeep and pump would 

normally be located. He believed that the violations would be 

significant and substantial only if the jeep were operated out of 

the pit area and driven over the haul road. He confirmed that 

the jeep would not normally be operated on the haul road, and it 

would only be on the haul road when it was moved from one pit 

area to another. However, the evidence establishes that the jeep 

was equipped with a tow bar on the front bumper, and I am 

persuaded that the evidence supports a reasonable conclusion that 

although the jeep was driven to the pit area approximately two 

weeks before the inspection, it was not routinely or regularly 

driven on the haul road. 

The respondent 0 s credible and unrebutted testimony, which is 

supported in part by the inspector, establishes that if the truck 

were driven, it was only driven a very short distance and at a 

very slow rate of speed utilizi~g the low gear and clutch. 

Further, when the jeep was parked, it was blocked with rocks, and 

Mr" Schiappa's testimony that the jeep was always towed from the 

pit to the shop if the pump were in need of repairs is 

unrebutted" Mr" Ray's testimony that he had brakes when he last 

drove the jeep two weeks before the inspection is also 

unrebutted. 

Although the inspector observed other vehicular traffic on 

the haul road at the time of the inspection, he had no reason to 

believe that the jeep was driven on the haul road that day, and 

there is no evidence that the jeep was exposed to any traffic 

hazards that day. Based on the evidence presented, I can only 

conclude that when the jeep was last driven, it was driven no 

more than a tenth of mile at a speed of approximately five miles 

1146 
an hour. There is no evidence as to what the road or traffic 

conditions may have been at that time, and given the fact that 

water must obviously be pumped from the pit before the coal can 

be extracted and hauled away, I believe one can reasonably 

conclude that if the jeep is driven to the pit area this is done 

early in the morning before full mining operations begin, and 

before there is any other traffic on the road. I also believe 

that it is reasonable to conclude that once the jeep reaches the 

pit area, it remains in place for a relatively long period of 

time while the pump is pumping water. 

In view of the foregoing, and after careful review and 

consideration of all of evidence and testimony adduced in this 

case, I cannot conclude that the petitioner has established by a 

preponderance of the evidence that ih the normal course of mining 

operations it was reasonably likely that the cited brake 

conditions would reasonably likely result in an accident or 

injury of a reasonably serious nature. Under the circumstances, 

the inspector 11 s "S&S" findings with respect to these violations 

ARE VACATED. 

Gravity 

Although I have concluded that the violations were not 

significant and substantial, since the jeep was a piece of mobile 

equipment which was sometimes driven, and readily available to be 

driven, I believe that the respondent had an obligation to 

maintain the service brakes in an operable condition to preclude 

any potential accident in the event the jeep were driven. Under 

the circumstances, I conclude and find that the service brake 

violation was serious. 

With respect to the parking brake violation, the inspector 

conceded that the parking brake condition was not as serious as 

the service brakes problem and he indicated that the terrain in 

the pit area was levelo I find no evidence that the jeep was 

ever parked on an incline or that an emergency could develop over 

the short distance that the jeep may have on occasion been 

driven. Further, the evidence establishes that the jeep wheels 

were blocked with rocks when it was parked" Under all of these 

circumstances! I conclude and find that the parking brake 

violation was non-seriouso 

Civil Penalty Assessments 

The petitioner 9 s 11 specia1ga civil penalty assessments are 

based on certain "narrative findings 11 made by MSHA's assessments 

office, including findings which stated that the cited jeep was a 

"water truck being used along the haul roads of the pit area" and 

"around the strip area"; that the violations 11 contributed to an 

imminent danger of a serious haulage-equipment accident" because 

"the truck was being used during rainy weather"; and that the 

1147 
defective parking brake "increases the likelihood of a runaway of 

mobile-equipment accident". However, it is clear that I am not 

bound by MSHA's proposed assessments, nor am I persuaded by 

proposed assessment "findings" which have no evidentiary support. 

on the basis of the evidence adduced at the hearing in this 

case, my findings and conclusions based on that evidence, and 

taking into account the six satutory civil penalty assessment 

criteria found in section llO(i) of the Act, I conclude and find 

that the following civil penalty assessments are reasonable and 

appropriate for the violations which have been affirmed: 

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

3130674 

3130675 

2/15/90 

2/15/90 

77.1605(b) 

77.1605(b) 

ORDER 

1. Citation No. 313067"~' February 15, 1990, 

citing an alleged violation of 30 C.F.R. 

§ 77.1606(c) IS VACATED. 

2. The respondent IS ORDERED to pay civil 

penalty assessments in the amounts shown 

above for the two citations which have been 

affirmed. Payment is to be made to MSHA 

within thirty (30) days of the date of this 

decison and order, and upon receipt of 

payment, this matter is dismissed. 

$150 

$75 

/ JI d:i/t;JtA. J.l k~dt~as /,,~ Administrative Law Judge 

Distribution: 

Kenneth Walton, Esq., Office of the Solicitor, U.S. Department of 

Labor, 881 Federal Office Building, 1240 East Ninth street, 

Cleveland, OH 44199 (Certified Mail) 

Gerald P. Duff, Esq., HANLON DUFF & PALEUDIS CO., LPA, 46457 

National Road West, St. Clairsville, OH 43950 (Certified Mail) 

/ml 

1148 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 191991 

SOUTHERN OHIO COAL COMPANY, 

contestant 

. . CONTEST PROCEEDINGS 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

. . 

DECISION 

Docket No. LAKE 91-650-R 

Citation No. 3329922; 

6/11/91 

Docket No. LAKE 91-664-R 

Citation No. 3329504; 

7/16/91 

Meigs No. 2 

Mine ID 33-01173 

Appearances: David M. Cohen, Esq., Electric Power Service 

Corporation, Lancaster, Ohio for Contestant; 

Maureen M. Cafferkey, Esq., U.S. Department of 

of Labor, Office of the Solicitor, Cleveland, 

Ohio for Respondent. 

Before~ Judge Weisberger 

STATEMENT OF THE CASE 

on July 3, 1991;~· the Operator (Contestant), filed a Notice 

of Contest contesting the issuance of Citation No. 3329922 which 

alleges a violation of 30 C.F.R. § 75.1704-2(a). Also on 

July 3v 1991v Contestant filed a Motion to Expedite. 

On July 3u 199lp in a telephone conference call initiated by 

the undersigned with counsel with both parties, it was agreed 

that a hearing in this matter shall be held on July 11, 1991, in 

Columbus, Ohio. 

At the hearing on July 11, 1991, Charles Jones and Edwin P. 

Brady testified for Respondent, and Nelson Kidder testified for 

Contestant. Both parties waived their right to submit a post 

hearing brief, but in lieu thereof each presented a closing 

argument. 

On July 11, 1991, at the hearing, Contestant filed an 

Application for Temporary Relief, and the Secretary (Respondent) 

reserved its right to file a reply to this application. The 

1149 
Secretary's Reply was filed July 16, 1991. On July 16, 1991, 

Contestant filed a Reply to Secretary's Response. Both parties 

waived their right to an additional hearing on the issues raised 

by the Application for Temporary Relief. 

FINDINGS OF FACT AND DISCUSSION 

In Contestant's Meigs No. 2 Mine, prior to April 25, 1991, 

the primary designated escapeway from the 3 South Longwall 

Section, ran a distance of 16,200 feet to the No. 1 intake air 

shaft, (air shaft No. 1) from which point miners exited 

underground and went to the surface. In May 1990, Contestant 

decided to install a new intake air shaft (air shaft No. 2), in 

order to better ventilate the working sections in the southwest 

area, and to ventilate the gob situated north of the southwest 

working sections. Air Shaft No. 2 was placed on a ventilation 

map in July of 1990, and was placed in operation on February 23. 

1991. An escape capsule (hoist) was approved by MSHA on April 

25, 1991. Hence on April 25, 1991, air shaft No. 2, became a 

mine opening suitable for the safe evacuation of miners. 

Upon the approval of the' ·escape capsule, Contestant 

designated a new primary escapeway to air shaft No. 2 to replace 

the 16,200 foot escapeway to air shaft No. 1. The new designated 

escapeway, on June 11, 1991, ran straight north from the face 

approximately 2,500 feet to the mouth (neck). From that point it 

ran approximately 2,000 feet east parallel and two entries south 

of the entry containing the trolley and belt lines. It then 

travelled 4 Entries North, and then turned west at the 4th entry 

and travelled approximately 2,000 feet to air shaft No. 2. The 

total distance the escapeway travelled from the mouth to the Air 

Shaft No. 2~was 4,800 feet. The total distance of the escapeway 

from the longwall face on June 11, 1991 to air shaft No. 2 was 

7r700 feeto 

On June 11, 1991~ Charles Jones an MSHA Inspector walked the 

escapeway from the mouth of the 3-South longwall section to air 

shaft No" 2o He said that the escapeway was in good condition 

except for its distance. He estimated that took 25 minutes to 

walk from the mouth to air shaft No. 2. 

The mouth is approximately 200 to 300 feet south of air 

shaft No. 2. It is physically possible to traverse this distance 

from the mouth by taking a route which runs one crosscut through 

a track-doorp then goes diagonally to the north east one 

crosscut, and continues west one crosscut through a man-door, 

then goes west one crosscut to air shaft No. 2 (See joint Exhibit 

1). Another path from the mouth to air shaft No. 2 covering 

approximately the same distance and located in approximately the 

same area is illustrated in Joint Exhibit No. 2. These paths are 

in intake air. However, the air in these paths mixes with air 

from the belt entry that also contains trolley wires. 

1150 
Jones issued Citation No. 3329922 alleging a violation of 

section 75.1704-2(a) supra. This Citation as pertinent, provides 

as follows: 

The most direct practical route to the nearest 

mine opening was not provided from the 3rd South 

Longwall section in that miners were required to travel 

an additional 4,800 feet by traveling outby from the 

mouth of the section for 2,300 feet and traveling inby 

for about 2,500 feet. The emergency escape shaft is 

located at the mouth of the 3 south Longwall section 

(across the track and belt entry). 

Section 75.1704-2(a) supra, provides as follows: 

In mines in working sections opened on and after 

January 1, 1974, all travelable passageways designated 

as escapeways in accordance with section 75.1704 shall 

be located to follow, as determined by an authorized 

representative of the Secretary, the safest direct 

practical route to the nearest mine opening suitable 

for safe evacuation of miners. Escapeways from working 

sections may be located through existing entries, 

rooms, or crosscuts (.emphasis added) . 

Section 1704-2(a) supra, thus provides that a designated 

escapeway shall be located to follow the route determined by the 

Secretary's representative to be the "safest direct practical 

route". Hence, section 1704-2(a) is violated where the 

operator's designated escapeway is located along a route that has 

not been determined by the Secretary representative to be the 

safest direot practical route. 

The cited escapeway, designated by Contestant in accordance 

with 30 CoFoRo § 1704~_was determined by Jones 1 the Secretary 1 s 

authorized representative to not have been the safest direct 

practical routeo Henceu the utilization by Contestant of its 

designated escapeway a violation of Section 75.1704, supra, if 

it is established that Jones' determination was proper i.e., that 

the designated route was not the safest direct practical route. 

Inasmuch as the escapeway in question turns east for 31 

crosscuts 1 then makes a 90 degree turn to go north for 4 

crosscutsv then makes another 90 degree turn and goes east for 23 

crosscutsv then makes another 90 degree turn to go south for 1 

crosscut, then makes another 90 degree turn for 9 crosscut 

through air shaft No. 2, it clearly cannot be found to be a 11 direct 11 routeo As was stated in Rusthon Mining Co. 10 FMSHRC 

713, 716 (aff 'd on other grounds) 11 FMSHRC 1432 (1989) "To find 

otherwise would violate the clear meaning of the word "direct" as 

defined in Webster New Collegiate Dictionary, {1979 Edition), as: 

la: proceeding from one point to another in time or space 

1151 
without deviation or interruption: straight b: proceeding by 

the shortest way .•. " Hence, the record establishes that Jones 

properly determined that the designated escapeway was not 

"direct". 

Essentially, according to Jones he "suggested" to Respondent 

that an overcast be constructed in the "area" of the mouth, to 

allow miners to continue the escape from that point directly to 

the air shaft No. 2, utilizing a path that would be in intake air 

separated from the belt and track haulage entries. It appears to 

be Contestant's position that section 75.1704-2(a) supra, does 

not require an operator to engage in any construction in order to 

have an escapeway in conformity with its provisions. Contestant 

also argues that it is not "practical" for the overcast to be 

constructed, as miners engaged in the construction would be 

exposed to the hazards inherent in the construction and its 

attendant clean up. In addition, construction of the overcast 

requires excavation of a supported roof which could weaken the 

roof in other areas. Contestant also asserts that construction 

of the overcast requires interruption of cable, telephone, belt 

and trolley service inby. Contestant argues that, accordingly, 

construction of an ov~rcast would· curtail production at Meigs No. 

2 Mine to a significant degree, as 50 percent of its production 

occurs in the southwest portion inby the overcast. All of these 

allegations of Respondent are borne out in the testimony of its 

witness Nelson Kidder an engineering superintendent for the Meigs 

division. However, the ultimate issue before me is not the 

property of a "suggested" abatement, but rather whether the 

record supports a determination that the cited escapeway was not 

the safest direct route. 1 I find that the record establishes 

that the escapeway was not "direct". Accordingly Jones' 

determinatiQil. is supported by the record. since Contestant 

designated an escapeway which was determined by Jones to not be 

direct, I conclude that Contestant herein did violate Section 

75ol704-2(a) a In ligl),.t of this conclusion Contestant 1 s ·, ""~ 

1

According to Jones' uncontradicted testimony, in discussing 

abatement he 11 suggested11 that an overcast to constructed in the 

area between the mouth and air shaft No. 2. Neither Jones nor 

any other representative of the Secretary mandated a specific 

route that shall be designated on escapeway, in order to abate 

the violation cited herein. Nor has the Secretary expressly 

designated any route as the safest direct practical route from 

the mouth to air shaft No. 2. Accordingly, it is beyond the 

scope of these proceedings to resolve the issues raised by 

Contestant i.e., whether an escapeway route requiring the 

construction of an overcast is "practical". 

1152 
Application for Temporary Relief must be denied. 2 

According to Jones and Edwin P. Brady an MSHA Chief of the 

Off ice of the Engineering Service, the violation herein is 

significant and substantial. According to Jones fire is always 

possible in a coal mine, and, given the added distance of the 

cited escapeway, and the fact that it parallels and surrounds a 

belt entry which also contains trolley wires, smoke could get 

into the escapeway. However, he agreed on cross examination 

that, essentially, there were no particular conditions in the 

area in question that would make it reasonably likely for the 

hazard of smoke to exist, but that there was a "general concern" 

about airtightness of stoppings. 

In Rusthon Mining Co., 11 FMSHRC 1432 (1989), the Commission 

held that the length of a mine escapeway in and of itself is not 

dispositive of the existence of a discrete safety hazard." 

(Rusthon supra. at 1436). Here, as in Rusthon, I conclude that 

Contestant has failed to show that the length of the cited 

escapeway and its non direct route per se posed a threat 

involving a reasonable likelihood of a reasonably seriously 

injury in the event of a fire. Nor has the Respondent shown that 

the occurrence of a fire and smoke was reasonably likely to have 

occurred, as its witnesses have not indicated the existence of 

any specific conditions that would have been likely to have 

caused a fire, or leakage of smoke into the escapeway. For all 

these reasons I conclude that the violation herein has not been 

established to be significant and substantial. (See Mathies coal 

Co., 6 FMSHRC 1 (1984). 

ORDER 

It is ORDERED that Docket No. LAKE 91-664-R be consolidated 

with Docket No. LAKE 91-650-Ro 

2

0n July 16 1 1991, the Operator filed a Notice of Contest 

and Application of Temporary Relief seeking the vacation and 

dismissal of a Section 104(b) order issued on July 16, 1991, 

which alleges that since the last extension "little effort" has 

been made to abate Citation Noo 3329922v which is the subject of 

the Contest Proceeding which was heard on July 11, 1991. (Docket 

Noo LAKE 91-664-R) It is ordered that Docket No. LAKE 91-664-R be 

consolidated with Docket No. LAKE 91-650-Ro 

It appears that Contestant 1 s basis for the Notice of Contest 

and the Application for Temporary Relief is its position, in 

essence, that the cited escapeway was not violative of Section 

75.1704-2(a) supra. Inasmuch as it has been found infra that 

Citation No. 3329922 was properly issued, the Notice of Contest 

and Application for Temporary Relief filed ·July 16, 1991 are 

denied and ordered dismissed. 

53 
It is ORDERED that the Notice of Contests filed July 3 and 

July 16, be DISMISSED, and the Applications for Temporary Relief 

filed July 11 and July 16 be DENIED. 

It is further ORDERED the Citation No. 3329922 be Amended to 

reflect the fact that the violation cited therein is not 

significant and substantial. ~ ~ 

~eisberger Administrative Law Judge 

David M. Cohen, Esq., Electric Power Service Corporation, Fuel 

Supply Department, P.O. Box 700, Lancaster, OH 43130-0700 

(Certified Mail) 

Maureen M. Cafferkey, Esq., Office of the Solicitor, U.S. 

Department of Labor, 881 Federal Office Building, 1240 East Ninth 

Street, Cleveland, OH 44199 (Certified Mail) 

nb 

1154 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

JUL 22 1991 

KELLY L. DIEDE, 

Complainant 

DISCRIMINATION PROCEEDING 

v. . . 

Docket No. CENT 90-160-DM 

RM MD-90-09 

SUMMIT INCORPORATED, 

Respondent 

Anne Creek Mine 

DECISION 

Appearances: Kelly L. Diede, Pro Se 

for Complainant; 

Before: 

Ronald W. Banks, Esq., Banks, Johnson, Johnson, 

Colbath & Huffman, P.C. 

for Respondent. 

Judge Cetti 

This case is before me upon the Complaint by Kelly L. Diede 

under section 105(c)(3) of the Federal Mine Safety and Health Act 

of 1977, 30 u.s.c. § 801 et~ (the "Act"), alleging discrimiinatory discharge on June 9, 1990, by Surrunit Incorporated 

("Summit") in violation of Section 105(c)(l) of the Act. 1 

l Section 105(c)(l) of the Act provides as follows~ 

No person shall discharge or in any manner 

discriminate against or cause to be discharged 

or cause discrimination against or otherwise 

interfere with the exercise of the statutory 

rights of any miner, representative of miners 

or applicant for employment in any coal or other 

mine subject to this Act because such miner, representative of miners or applicant for employment, has filed or made a complaint under or 

related to this Act, including a complaint notifying the operator or the operator's agent, or 

the representative of the miners at the coal or 

other mine of an alleged danger or safety or 

health violation in a coal or other mine or because such miner, representative of miners or 

applicant for employment is the subject of medical evaluations and potential transfer under a 

standard published pursuant to section 101 or 

1155 
I 

Mr. Diede was hired by Summit on June 2, 

discharged eight days later, on June 9, 1990. 

was doing a small project for Wharf Resources 

Creek Mine. 

1990, and was 

At the time Summit 

at their Annie 

Mr. Diede, in pertinent part in his complaint, alleges as 

follows: 

I went to work for Summit Construction. I 

worked a week and one day. I had been putting 

down on my time card that the emergency brakes on 

my loader didn't work. I told Loyd they didn't 

work. He did nothing about it. They had to shut 

the loader down to fix the boom cylinder because 

it was leaking. I told Loyd I would like to get 

the brakes fix at that time. They did not get 

fixed. On my last sift (sic) Loyd told me that 

he would not be needing me on Monday. I asked 

why, he did not say anything, but that I was laid 

off 

I called later in Rapid City I asked him where 

he needed me Monday. He said he did not need me 

at all. I asked why he said there were problems 

with my work. I asked what was wrong he said he 

couldn't say just that he didn't need me. So I 

started looking for another job right away. So 

the Tuesday after my laioff (sic) I went to 

Summit Construction to find out a little more 

about what was going on. Tom Lester said he 

didn't have to give a reason for firing me, at 

that time a (sic) said I have a right to now 

because such representative of miners or applicant for employment has instituted or caused to 

be instituted any proceedings under or related 

to this Act or has testified or is about to testify in any such proceeding, or because of the 

exercise by such miner v representative of miners 

or applicant for employment on behalf of himself 

or others of any statutory right afforded by this 

Act. 

1156 
(sic) why I was let go. He said it was because 

I was unsafe in the loader. I said if I was so 

unsafe then why was the company running that 

loader without brakes. He asked me if I put 

that on my time card. I said Yes. I also told 

the sift (sic) boss nothing was done about the 

brakes. 

At the hearing Mr. Diede admitted that he was told at the 

outset when he was interviewed for the job at Summit, that his 

"hire was going to be temporary." On the last day he worked for 

Summit, the Mine Superintendent, Mr. Nordstrom told him that the 

other loader operator was coming back to work and that they 

didn't need him (Diede) anymore. After telling him that he was 11 laid off, 11 the Superintendent suggested he call the main office 

and see whether or not they could use him at "another place. 11 

(Tr. 13) 

Mr. Diede testified that when he operated the loader for 

Summit he "noticed that the brakes weren't all that good." He 

started putting down on his ,time c.ard that "the brakes needed to 

be looked at." After he was laid off, Mr. Diede called MSHA regarding the brakes on the loader. 

After Mr. Diede's phone call (made after his discharge), 

MSHA in response to the call sent a Federal mine inspector to 

inspect the loader and specifically its brakes. The inspector 

found that no work had been done on the brakes but nevertheless 

found that the brakes of the loader were not in violation of any 

safety standard. The inspector filed a Notice of Negative Findings {Ex. R-1) which stated in relevant part: "Application of 

braking power was demonstrated to be sufficient .••• " The 11 alleged hazard did not exist." 

Mro Diede stated that he asked Tom Lester (Summit 1 s present 

Superintendent) why he nwas let goon Diede testified that 11 basically he (Lester} really couldn't tell me." (Tr. 13).. 

Mr. Diede testified as follows (Tr. 14): 

He (Lester) had told me at one time after I 

kind of pinned him down he says, well, you were 

unsafe in the loader and we don't think that 

you've got any experience. At that time I 

asked him if he had called any of the people 

on the application and he said no, that it's 

not a practice at Summit Construction to do 

that. 

1157 
Mr. Diede continued as follows (Tr. 15): 

I had asked Tom Lester why they took the man 

that was running the loader out of the loader 

and put me in it. Tom Lester said that he 

wasn't running the loader to production standards. At that time I asked him, I says, well, 

why didn't you let him go? Well, at that time 

he said well, we had another job for him and 

they put him in the roller. And I thought, 

well, that's fine and dandy. And then I asked 

him why I wasn't given the jobs that the other 

two guys that had just been hired, why I wasn't 

let to at least try those jobs. And at that time 

he told me that I was too inexperienced to do 

those jobs. Well, one the jobs is shoveling and 

stemming. Now I don't know how many people are 

dumb enough not to know how to run a shovel, but 

apparently I am. And one of the other people 

that was hired was put on the loading crew for 

loading the rounds. I asked him at that time 

why I wasn't at least given the chance to do that. 

He also saia I was inexperienced. At that time 

I asked him if he did any follow-up on it, on 

my application, and he said no. And that's when 

I explained to him that I'd been mining for 

eight and a half years. 

* * * 

I asked Tom Lester. I believe the safety man 

was in the off ice and so was Chuck Rounds at 

the time when I was talking to all of them. 

At that time I had given them basically a way 

out of thisu and that was to put me back on in 

one of those jobs or that we were going to go 

to court because they tried to tell me that I 

was unsafe in the loader. Well, I don 1 t doubt 

that. Anybody would have been unsafe in a 

loader without any brakes on it. After I was 

let gou I called MSHAo 

On cross-examination, Mr. Diede again admitted that when he 

was hiredv he was told that his "hire was going to be temporary'1l and admitted that he anticipated that he 11wouldn 't be there 

longo'1l But that after he found out Summit had hired two other 

people after they terminated his employment "he kind of wondered 

what the reason was." He stated "most companies would hire back 

1158 
whoever they had laid off before they are going to hire anybody 

else." Asked if that would be true "if they were not satisfied 

with your work performance,'' Diede replied "I guess the only 

question that I had on that was that I was wondering why they 

weren't satisfied." (Tr. 27). 

Mr. Diede also stated "when I worked for Homestake there was 

a production standard, but it was never shoved down your throat 

like supposedly these people tried to do to me, saying that that 

was the reason I was let go was because I couldn't meet production standards." 

II 

Mr. Thomas Lester, General Superintendent for Summit, testified he observed Mr. Diede operating the loader in a 11 jerky erratic manner. 11 He had heard reports of Mr. Diede' s "bumping the 

trucks, dumping in a jerking motion into the trucks, which is 

hard on equipment, and hard on truck drivers also, and trucks. 11 

Mr. Lester, who was pr~~ent during Mr. Diede's exit interview, testified as to what occurred at the interview as follows 

(Tr. 72-73): 

A. It got quite heated about mid-point. Kelly was using quite extreme language and our secretary was 

seated in the next room and taking all of this in. 

And John Ross told him several times to hold it 

down, knock off the profanities, and John even got 

up once and closed the window between the off ices. 

And Kelly promptly rose and opened it back up in a 

forceful manner and continued his spiel of profanities, and said I'm going to sue you for everything 

you got! 

Qo Did he say what he would use as a basis for the suit? 

A. Discrimination, which I found to be unbelievable. 

Q. Did he ever define what discrimination was? Did he 

have any definition in mind? 

Ao Yeah. I guess the way Kelly thinks he was discriminated against because he was not given a job that 

someone else--some other new hire had. 

Qo Did he explain to you that it was the law that you 

had to take him back rather than to hire new hire? 

1159 
A. Well, yes, but we don't interpret the law that way. 

Q. But did he tell you that? 

A. Yes. 

Mr. Diede in cross-examining Mr. Lester asked him "Was there 

a reason given to me why I was discharged?" Mr. Lester replied, "I told you that we didn't find your performance adequate 

for our company. 11 Mr. Diede then asked Mr. Lester why he was not 11 £ ired sooner" if management was "fearful that I was going to 

hurt myself or somebody else if I was supposedly a safety 

hazard?" 

Mr. Lester replied as follows (Tr. 74): 

A. I suppose at that time I was looking at things from 

a production standpoint. we were short on help, 

which is the reason that you were hired in the 

first place, the reason for several hires right 

then. Don't get me wrong, right then, in the first 

place, I knew that our loader operator would be back 

Monday. We figured that if you were watched close 

enough and talked to enough, we were hopeful that 

there wouldn't be an accident between Wednesday and 

Friday, Saturday. 

Lloyd Nordstrom called by Summit stated he was Summit's 

Superintendent in charge of construction at the time Diede was 

employed by Summit. On the day he hired Diede, his main loader 

operator just left for a vacation. He put Diede on the loader 

more or less on a trial basis to see how he worked out. He 

observed that Diede had trouble keeping his loading area (pad) 

level enough so he could speed up his production. Diede started 

improving u nbut he was awful wild with the loader Q he was caress o He would jerk and jam and then when he'd dump his bucket 

heud always try to catch the load instead of letting it try to 

drop into the truck. He would always stop the bucket. And I was 

on him, I think I told him about that every day, sometimes three 

times a day that that was hard on those load cylinders,, 11 

Mr. Nordstrom explained that when the operator stops the 

bucket abruptly from tilting, it builds up tremendous pressure in 

the hydraulic cylinder which causes the weakest point, the sealsf 

to go outo The cylinders went out twice the week Diede operated 

the loadero Respondent had repacked one cylinder once and replaced that same cylinder later on in that week. 

1160 
Mr. Nordstrom testified that he heard complaints from truck 

drivers that Diede in loading a truck was "awful rough on the 

truck." (Tr. 98) It got to the point that the three truck operators that hauled for Respondent didn't want to continue hauling 

because of the way Diede operated the loader while loading the 

trucks. 

On cross-examination by Mr. Diede, Mr. Nordstrom stated: "I 

really wasn't happy with your performance. And talking it over 

with Tom, we decided to let you finish out the week, hoping that 

your performance would get better, which it didn't, and your 

attitude seemed to be getting worse." (Tr. 99) 

Mr. Nordstrom concluded from what he considered Mr. Diede's 

inadequate performance in operating the loader that Mr. Diede had 

falsified his experience on his job application and for this reason alone he would not want to keep Mr. Diede on the job. He 

admitted, however, he had no proof of such falsification other 

than his observation of Mr. Diede's inadequate performance in 

operating the loader. 

Two truck drivers, Charles White and Bill Shepperson, testified on behalf of Summit. Mr. White testified he observed 

Mr. Diede continue to load wet material even though he had been 

specifically instructed by Mr. Nordstrom not to do so. 

Bill Shepperson testified that he observed Mr. Diede load 

his truck many times each day. Mr. Diede's operation of the 

loader was 11 jerky," he didn't keep his pad level and he ran into 

his truck frequently. 

On cross-examination by Mr. Diede, Mr. Shepperson testified 

as follows (Tr. 136-137): 

Shepperson~ The pad wasn 1 t levelu you ran into my truck 

frequentlyu not with the loaderv with the bucket, not only hooking the tooth on the tire but 

then when you'd pull into the truck you'd hit 

the truck. And you'd hit the truck with the 

bucket on the loader I would say at least once 

in the five dumps that was thereu on the averageo I don 1 t mean just touch the trucku I 

mean hit the truck enough so it jarred it and 

shook the truck arounde 

1161 
Diede: 

Shepperson: 

Diede: 

Shepperson: 

As far as bumping into a piece of equipment down 

there when you had been operating that truck before, was there ever a time that the loader 

operator ever even came close to your truck at 

all? 

It happens occasionally. 

So it can happen. Not everybody is perfect is 

what I'm trying to get at, right? 

In the ordinary course of a week of work maybe a 

loader operator will bump the bucket against the 

truck box once. And that's somewhere around 200 

load. (Tr. 136-137) 

FINDINGS AND CONCLUSION 

It is undisputed that Mr. Diede was told at the time he was 

hired that he was a "temporary hire;" that the job would be a 

temporary one. It is also undisputed that Mr. Diede was laid off 

at the end of the eighth day 'fie worked for Summit. The crucial 

question is whether Mr. Diede was let go on the eighth day he 

worked in retaliation for having engaged in protected activity or 

because Summit management believed that he lacked the skills and/ 

or attitude needed to perform the work in a competent manner. 

There is no question that a miner's safety complaints, such as a 

reasonable good faith safety complaint of inadequate brakes on a 

loader, are a protected activity. The fact that there may have 

been no objective underlying safety problem would not invalidate 

a miner's good faith reasonable safety complaint. 

If Mr. Diede had proved his employment was terminated in 

some part because he engaged in protected activityv a prima facie 

case for unlawful discharge in violation of 105Cc) of the Act 

would have been establishedo If on the other handu Surnmi t 

discharged Mro Diede because of management's belief that he 

lacked the skills needed to competently perform the work in a 

satisfactory manner, his discharge would not constitute a violation of 105(c) of the Acto 

Mro Diede has the burden of proofo Upon careful evaluation 

of all the evidenceu I find that he failed to establish the necessary causal connection between his discharge and his safety 

complaintso I find no persuasive evidentiary support for 

Mro Diedeus contention that his termination was motivated in any 

part by the operators intention to retaliate against him for any 

safety complaints. I credit the testimony of Respondent's wit1162 
nesses and find that Mr. Diede was 11 let go" solely because management believed he did not have the skill to competently perform the job. I do not find that Mr. Diede was or was not a competent miner. That is not the question before me. Neither is 

the question of whether Summit was fair or accurate in its evaluation or its perception of Mr. Diede's skill or competence in 

performing the work. I find only on the basis of the evidence 

presented that it was management's honest belief that he did not 

have the ability to perform the work that was available in a competent manner and for this reason alone terminated his employment. 

In sum, Mr. Diede failed to carry his burden of proof that 

his discharge was motivated in any part by his protected 

activity. 

ORDER 

Based on the foregoing findings and conclusions, and on the 

preponderance of the evidence adduced in this case, I conclude 

and find that the Complainant has failed to establish a violation 

of section 105(c) of ,the Act:~ He has not proven a discriminatory 

discharge within the meaning of section 105(c) of the Act. 

Accordingly, the complaint is DISMISSED. 

Distributiong 

August F. Cetti 

Administrative Law Judge 

Mro Kelly Lee Diedeq 268 No Mears, Shadron, NE 69337 

(Certified Mail) 

Mro Chuck Rounds, Vice Presidentu SUMMIT 0 INC. 0 Box 1716u Deadwood Avenueu Rapid City, SD 57709 (Certified Mail) 

Ronald Wo Banks, Esqou BANKS1 JOHNSONu COLBATH & HUFFMAN, PoCou 

3202 West Main Streetu Rapid Cityu SD 57702-2398 

(Certified Mail) 

sh 

1163 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

JUL 22 199'! 

ENERGY WEST MINING COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

Before: Judge Lasher 

CONTEST PROCEEDING 

Docket No. WEST 91-83-R 

Citation No. 3413924; 11/1/90 

Deer Creek Mine 

Mine I.D. 42-00121 

DECISION 

This matter arose upon the filing of a Notice of Contest on 

November 13, 1990, pursuant to Section 105Cd) of the Federal Mine 

Safety and Health Act of 1977 (the "Act") wherein Contestant 

seeks review of Citation Noo 3413924 charging a violation of 30 

C.F.R. § 50.20 which was issued by MSHA Inspector Robert L. Huggins at Contestant's Deer Creek Mine on November 1, 1990, and 

which in pertinent part alleges as follows: 

A [sic] accident occurred to Donald Hammond on 

10-3-90 and a 7000-1 report form was not submitted to the MSHA Health and Safety Analysis Center in Denveru Coloradoo Mro Hammond was involved 

in an automobile accident that occurred on mine 

property and Mro Hammond f led to report to his 

next shift of work$ Mr. Hammond returned to work 

on 10-8-900 

By agreementg the parties have submitted this matter for 

decision on the basis a stipulation of fact (with exhibits 

attached) and bri s. 

Stipulated Facts 

la The Deer Creek Mine is owned by Contestant Energy West 

Mining Company ("Energy West"). 

2. The Deer Creek Mine is subject to the jurisdiction of 

the Federal Mine Safety and Health Act of 1977. 

3. The presiding Administrative Law Judge has jurisdiction 

over this proceeding pursuant to § 105 of the Act. 

1164 
4. Citation No. 3413924 (Joint Ex. 1) was issued on November 1, 1990, by Inspector Robert L. Huggins, alleging that Energy 

West violated 30 C.F.R. § 50.20 by failing to report an injury 

sustained by employee Donald Hammond in an automobile accident on 

mine property on Wednesday, October 3, 1990. 

5. The subject Citation and termination were properly 

served by a duly authorized representative of the Secretary of 

Labor upon an agent of Energy West on the date, time, and place 

stated therein, and may be admitted into evidence for purposes of 

establishing their issuance without admitting the truthfulness or 

relevance of any statement therein. 

6. At the time of the accident, Mr. Hammond was driving his 

own personal car on his way to work. He was injured when, after 

passing through the gate onto company property and driving uphill 

towards the parking lot, the engine of his car stalled and his 

brakes failed. The car rolled backwards down the road approximately 150 feet (see Joint Exs. 3, 4) and turned on its side into 

a drainage ditch on the side of the road(~ Joint Exs. 5, 6). 

7. The accident occurred at 7:30 a.m. as Mr. Hammond was on 

his way to report for his 8 a.m. shift at the time. Mr. Hammond 

sustained a strained neck. 

8. After the accident, Mr. Hammond did not report to the 8 

a.m. shift on Wednesday, October 3, 1990. He returned to work on 

Monday, October 8, 1990. 

9. At the time of the accident and at all times relevant to 

the subject Citation, the road was paved, in good repair with 

guard rails on one side and a hillside on the other, and in substantially the same condition as the publicly maintained road 

leading to the entrance of the company propertyo 

lOo The accident occurred in daylight during good weather 

conditions and clear visibility. 

llo The condition of the road was not the cause of the 

accidento 

120 Inspector Huggins was present at the Deer Creek Mine on 

the day of the accident and visited the accident site. He asked 

Deer Creek Safety Engineer Kevin Tuttle whether Energy West 

planned to report the injury to the Mine Safety and Health Administrationo In response, Mr. Tuttle stated his belief that the 

injury was not reportable, because it occurred while Mr. Hammond was on his way to work, not while he was on the job, and 

1165 
involved Mr. Hammond's personally owned vehicle. Inspector 

Huggins informed Mr. Tuttle that he would check to see whether 

MSHA thought the injury was reportable. 

13. Shortly thereafter, Inspector Huggins informed Mr. Tuttle that the injury was reportable. On November 1, 1990, Inspector Huggins issued the subject Citation when no accident report 

was forthcoming. To abate the alleged violation, Mr. Tuttle then 

completed MSHA Form 7000-1 (Joint Ex. 2) on November 1, 1990, and 

mailed it to the MSHA Health and Safety Analysis Center, and 

Inspector Huggins terminated the Citation. 

Exhibits 

As part of their stipulation, the parties submitted the following exhibits: 

Exhibit 

l 

2 

3 

5 

Description 

ReproducE:d copy of Citation No. 3413924, 

f ssued 11-1-90 

MSHA Form 7000-1, filed 11-1-90, completed 

by Kevin Tuttle, Chief Safety Engineer 

Enlargement of Polaroid photograph (taken 

April 1991) looking downhill from approximate 

point at which car stalled and brakes failed: 

car rolled downhill and to the left around 

curve at conveyor facility shown in center of 

picture. 

Enlargement of Poloraid photograph (taken 

April 1991) looking downhill and showing road 

further downhill and around curve from Joint 

Ex. 3~ conveyor belt in center of Jt. Ex. 3 

feeds into yellow loadout shown in Jt. Ex. 4. 

Enlargement of Polaroid photograph (taken on 

day of accident, Oct. 3, 1990) looking uphill 

and showing where car came to rest below 

loa~out pictured in Jt. Ex. 4. 

Enlargement of Polaroid photograph (taken on 

day of accident, Oct. 3, 1990) looking across 

the road and showing car at rest behind berm. 

1166 
Contentions of the Parties 

Contestant contends that: 

1. This case involves an operator's obligation to report 

"occupational" injuries pursuant to Section 103 of the Mine Act 

and Section 50.20-l of the Secretary's regulations. 

1 30 C.F.R. § 50.20 pertaining to "Preparation and Submission 

of MSHA Report Form 7000-1--Mine Accident, Injury, and Illness Report," appears in Subpart C under the heading "Reporting of Accidents, Injuries, and Illnesses" and provides 

as follows: 

(a) Each operator shall maintain at the mine 

office a supply of ,MSHA Mine Accident, Injury, 

and Illness-Report Form 7000-1. These may be obtained from MSHA Metal and Nonmetallic Mine 

Health and Safety Subdistrict Offices and from 

MSHA Coal Mine Health and Safety Subdistrict 

Off ices. Each operator shall report each accident, occupational injury, or occupational illness at the mine. The principal officer in 

charge of health and safety at the mine or the 

supervisor of the mine area in which an accident or occupational injury occurs, or an occupational illness may have originated, shall 

complete or review the form in accordance with 

the instructions and criteria in §§ 50.20-1 

through 50020-70 If an occupational illness is 

diagnosed as being one of those listed in 

§ 50.20-6Cb}(7) u the operator must report it 

under this part. The operator shall mail completed forms to MSHA within ten working days 

after an accident or occupational injury occurs or an occupational illness is diagnosed. 

When an accident specified in § 50.10 occurs, 

which does not involve an occupational injury, 

sections A, B, and items 5 through 11 of section c of Form 7000-1 shall be completed and 

mailed to MSHA in accordance with the instructions in § 50.20-1 and criteria contained in 

§§ 50.20-4 through 50.20-6. 

1167 
2. Inspector Huggins "issued the instant citation ••• 

charging Energy West with violating 30 C.F.R. § 50.20 by failing 

to report an "occupational injury." 

3. The "sole issue in this proceeding is whether Section 

50.20 requires Energy West to report a nonwork injury such as 

Mr. Hammond's, which occurred prior to the injured employee's 

shift and involved only the failure of the brakes on the employee's own. private car as he drove to work." 

Respondent MSHA contends that the injury to miner Hammond on 

mine property was required to be reported pursuant to 30 C.F.R. 

§ 50.20 since it was an "occupational injury" within the meaning 

of the standard. 

Discussion, Findings, and Conclusions 

Preliminarily, it is useful to determine whether the Hammond 

injury is reportable as an "accident," whether or not such injury 

be considered as "occupational." 

30 c.F.R. § 50.20 expressly requires a mine operator to 

report three categories of events: (1) accidents, (2) occupational injuries, and (3) occupational illnesses. It is significant that the word "occupational" does not precede or modify the 

word "accident" in view of the way "accident" ·is defined in the 

preceding regulation [Section 50.2l(h)] which governs its usage 

in Section 50.20, to wit: 

contud fno l 

(b) Each operator shall report each occupational injury or occupational illness on one 

set of forms. If more than one miner is injured in the same accident or is affected simultaneously with the same occupational illnessu an operator shall complete a separate 

set of forms for each miner affected. To the 

extent that the form is not self-explanatory, an 

operator shall compl.ete the form in accordance 

with the instructions in § 50.20-1 and criteria 

contained in§§ 50.20-2 through 50.20-7. 

1168 
Ch> "Accident" means, 

Cl) A death of an individual at a mine; 

(2) An injury to an individual at a mine which 

has a reasonable potential to cause death; 

(3) An entrapment of an individual for more 

than thirty minutes; 

(4) An unplanned inundation of a mine by a 

liquid or gas; 

(5) An unplanned ignition or explosion of 

gas or dust; 

(6) An unplanned mine fire not extinguished 

within 30 minutes of discovery; 

C7l An unplanned ignition or explosion of a 

blasting agent or a11 ... explosive: 

(8) An unplanned roof fall at or above the 

anchorage zone in active workings where roof 

bolts are in use; or, an unplanned roof or rib 

fall in active workings that impairs ventilation 

or impedes passage; 

(9) A coal or rock outburst that causes withdrawal of miners or which disrupts regμlar mining 

activity for more than one hour. 

ClO) An unstable condition at an impoundment, 

refuse pilev or culm bank which requires emergency action in order to prevent failure, or 

which causes individuals to evacuate an area; 

oru failure of an impoundment, refuse pile, or 

culm bank; 

(11) Damage to hoisting equipment in a shaft 

or slope which endangers an individual or which 

interferes with use of the equipment for more 

than thirty minutes; and 

(12) An event at a mine which causes death 

or bodily injury to an individual not at the 

mine at the time the event occurs. 

1169 
An accident is thus reportable, whether or not it can be 

said to be "occupational," if it is, in the language of 

§ 50.2(h)(2), 2 (a) an injury to an individual Cb) at a mine 

which (3) has a reasonable potential to cause death. 3 Here, the 

accident caused an injury to an individual at the mine and did 

cause a minor injury. But did it have "a reasonable potential to 

cause death?" I conclude that it did not. The accident occurred 

when the miner, Hammond, while driving to work on mine property, 

had the unusual event of his engine stalling and his brakes failing while he was traveling uphill. 4 His personal vehicle then 

rolled backwards downhill approximately 150 feet and turned on 

its side into a drainage ditch on the side of the road. Scrutiny 

of the primary piece of evidence bearing on the potential severity of any injury--the photograph of the overturned vehicle 

(Joint Ex. 5)--reveals that the vehicle was not demolished or, in 

the vernacular of the auto insurance industry, "totaled out." In 

other words, the damage to the vehicle does not warrant an inference that there was a reasonable potential to cause death. While 

the degree of the grade of the road was not stipulated, the vehicle rolled only 150 feet before coming to rest and from this I 

infer that the speed at which. it was traveling when it impacted 

the ditch was not such to have severely damaged either the vehicle or its occupant. 5 Finally, the minor injury actually 

sustained by Hammond is some evidence of the magnitude of bodily 

harm one might reasonably expect of the accident. The injury in 

and of itself has no reasonable potential to ultimately result in 

death. 

2 

5 

The other 11 categories of "accident" are not applicable 

here. 

Review the other 11 categories of "accident" reveals that 

any such event covered by the definition carries with it the 

potential for severe injuries or fatalities. The focus of 

the specific categories appears to be on the high degree of 

seriousness of potential injuries to individuals endangered 

by the event at the mine rather than whether the event occurred in the context of a work-related activity by the endangered individualo 

No other causal factors, including weather 6 road condition 6 

or negligence on the part of the driver or the mine operator u were involved. 

The test here, of course,· is "reasonable potential to cause 

death, 11 .not "reasonable likelihood11 to cause serious injury. 

1170 
It is therefore concluded, that the event, as an "accident," 

was not required to be reported by the standard. 

The question remains whether Hammond's neck strain (Stipulation; Joint Ex. 2) was reportable as an "occupational injury." 

Hammond was off work two workdays because of the injury. (Joint 

Ex. 2) • 

"Occupational injury" is defined in the pertinent regulation 

[30 C.F.R. § 50.2Ce)] as follows: 

Ce) "Occupation! injury" means any injury to 

a miner which occurs at a mine for which medical 

treatment is administered, or which results in 

death or loss of consciousness, inability to 

perform all job duties on any day after an injury, temporary assignment to other duties, or 

transfer to another job. 

The circumstances of Hammond's neck strain meet the definition of "occupational injury" set forth in 30 C.F.R. § 50.2Ce). 

Each element thereof ,is established in this matter: 

"Any injury": Hammond suffered a strained neck as a result 

of the accident. Part 50 explicitly includes sprains and strains 

as a type of injury which my be reportable. (See 30 C.F.R. 

§ 50.20-3, which distinguishes first aid and medical treatment of 

various injuries.} 

"To a miner": Hammond was a roof bolter at Energy West's 

Deer Creek mine. Since he works in a coal mine, his position 

clearly qualifies him as a "miner" under the definitions set out 

under the Act (30 u.s.c. § 802(g) (1988) and Part 50 (30 C.F.R. 

§ 50o2(d) (1988)0 

Q'For which medical treatment is administered, or which 

results in ooo inability to perform all job duties on any day 

after an injury o••" Hammond's accident occurred on October 3, 

1990, and he didn't return to work until October 8. 6 The MSHA 

form (Jt. Ex. 2) shows that he missed two days of work, not 

counting inability to return to full duty right away" 

6 See also Respondent's Brief, fn.l, pg. 2. 

1171 
Contestant argues, however, that the Secretary's (MSHA's) 

interpretation of these reporting requirements for an injury not 

having a causal nexus to actual mining work at a mine is wrong 

since such is contrary to the Mine Act itself, the legislative 

history and "immediate predecessors" to the current reporting 

regulations. Contestant also maintains that requiring reporting 

for non-work related injuries would be burdensome. 7 Finally, 

Contestant does concede that there is Commission precedent 

(Freeman, infra) to the contrary of its position. 8 

The Commission has indeed resolved the issue in this matter 

previously in Secretary of Labor v. Freeman United Coal Mining 

Company, 6 FMSHRC 1577 (July 1984). That precedent governs. 

In Freeman, a plant cleaner who was putting on his boots in 

the mine's wash house an hour before his shift commenced experienced back pain. At the hospital he was diagnosed as having back 

strain and he subsequently missed 13 days' work. The administrative law judge found a "failure to report" violation under Section 50.2(e) because Cl) there was an injury to a miner1 (2) it 

occurred at a mine; and (3) ~medical treatment was required and it 

caused disability. On appeal to the Commission, Freeman argued 

that Section 50.2Ce) contemplated a "causal nexus" between the 

miner's work and the injury. The Commission rejected this contention, stating: 

7 

8 

••• sections 50.2Ce) and 50.20(a), when read 

together, require the reporting of an injury if 

the injury--a hurt or damage to a miner--occurs 

at a mine and if it results in any of the specified serious consequences to the miner. These 

regulations do not require a showing of a causal 

nexuso 

However, if there were so many accidents or injuries at a 

mine as to then the need of the regulating agency to have 

them reported - to enable investigation and exercise of 

judgment - would necessarily outweigh the mine operatorijs 

attendant paperwork problem. Further, as forms go, MSHA 

Form 7000-1 (Gov 1 t Ex. 2) consists of one page and is not 

particularly elaborate whether completed for statistical 

purposes or for starting the process of notification, inspectionu and enforcement action if called for. 

Contestant's Brief, p. 16. Contestant's Reply Brief makes 

no further mention of the Freeman precedent. 

1172 
The Commission also determined (1) that the regulatory history of the occupational injury - reporting requirement does not 

show any intent to require such a specific causal connection and 

(2) that Section 50.20(a) is consistent with and reasonably related to the statutory provisions (Mine Act) under which it was 

promulgated. 

Accordingly, despite the quality and thoroughness of Contestant's arguments, it is concluded that the position of Respondent MSHA (which is incorporated herein by reference) is 

meritorious and that the neck injury to Hammond was an occupational injury for reporting purposes in mine safety enforcement 

and was required to be reported pursuant to 30 C.F.R. § 50.20. 

Since it wasn't, the violation charged in Citation No. 3413924 

is found to have occurred. 9 

ORDER 

Contestant's Notice of Contest is DENIED; Citation No. 

3413924 is AFFIRMED; this proceeding is DISMISSED. 

;Jμ .. e a ~~~ ;t - Michael A. Lasher, Jr. 

Administrative Law Judge 

Distribution: 

Thomas C. Means, Esq., J. Michael Klise, Esq., CROWELL & MORING, 

Energy West Mining Company, 1001 Pennsylvania Avenue, N.W., 

Washington, DC 20004-2505 (Certified Mail) 

Tina Gorman 8 Esg. 9 Office of the Solicitor, U.S. Department of 

Labor" 4015 Wilson Boulevard 0 Room 400u Arlington VA 22203 

(Certified Mail) 

Representative of Miners, ENERGY WEST MINING COMPANY, Deer Creek 

Mine, P.O. ·Box 310, Huntington, UT 84528 {Certified Mail) 

ek 

9 I am unaware of any related penalty case and none has been 

mentioned by the parties in their stipulation or otherwise. 

(See Contestant's "Filing of Subsequent Modification and 

Motion for Leave to File Same Out of Time" dated June 21, 

]991, ! 5, pg. 2). 

1173 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 2 3 1991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BILLY R. SIPPLE, Employed by 

SHILLELAGH MINING COMPANY, 

Respol'}dent 

Docket No. WEVA 90-177 

A.c. No. 46-03875-03547-A 

N·o. 5 Mine 

DECISION 

Appearances: Edward H. Fitch, Esq., Office of the Solicitor, 

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

for the Petitioner; 

Before: 

Billy R. Sipple, Logan, West Virginia, pro se, 

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(c) of the Federal Mine Safety and Health Act of 

1977, seeking civil penalty assessments in the amount of $4,800, 

for eight (8) alleged violations of certain mandatory safety 

standards found in Part 75, Title 30, Code of Federal 

Regulationso The respondent is charged with "knowingly 

authorizing, ordering, or carrying out" the alleged violations. 

The respondent filed an answer contesting the alleged 

violations and a hearing was convened in Charleston, West 

Virginia on June 5, 1991. The parties appeared and presented 

testimony and evidence in support of their respective positions. 

In the course of the hearing, the petitioner withdrew its 

proposals for assessment of civil penalties for two of the 

alleged violations (Citation/Order Nos. 2745972 and 2745973) and 

these alleged violations were dismissed from the bench. 

Subsequently, on June 19, 1991, petitioner's counsel advised me 

that the parties reached a settlement of the case, and the 

petitioner has now filed a motion pursuant to Commission Rule 30, 

29 C.F.R. § 2700.30, seeking approval of the proposed settlement. 

1174 
The alleged violations, initial assessments, and the proposed 

settlement amounts are as follows: 

30 C.F.R. 

Order No. Date Section Assessment Settlement 

2745972 5/30/89 75.1317(a) $ 400 Withdrawn 

2745973 6/1/89 75.13ll(a) (1) $ 400 Withdrawn 

2745974 6/1/89 75.13ll(b) (3) $ 400 $ 200 

3235730 6/1/89 75.202(b) $1,200 $ 850 

3235731 6/1/89 75.213 (d) (1) $1,200 $ 850 

3235732 6/1/89 75.202(b) $ 400 Withdrawn 

3235733 6/1/89 75.202(b) $ 400 Withdrawn 

3235737 6/1/89 75.220 $ 400 $ 100 

$4,800 $2,000 

The petitioner has withdrawn two additional alleged 

violations (Order Nos. 3235732 and 3235733) on the ground that 

insufficient evidence exists to establish that the respondent 

knowingly allowed the alleged violative conditions to exist. 

With regard to the four remaining alleged violations, the 

petitioner has submitted information pertaining to the civil 

penalty criteria found in section llO(i) of the Act and states 

that the reduced settlement amounts are based on the respondent's 

financial hardship as testified to at the hearing. 

The parties have agreed that the settlement payment of 

$2,000, will be paid by the respondent in monthly installment due 

on the 10th of the month and in accordance with the following 

installment schedule: 

$150 per month from July through December 1991 

$300 per month for January, February, and March 1992 

$200 final payment due April 1992 

The parties also agreed that the payment checks or money 

orde.rs shall be made payable to the "Mine Safety and Health 

Administrationn 1 shall include Docket No. WEVA 90-177 and 

Assessment No. 46-03875-03547-A, and shall be mailed to MSHA at 

PoOo Box 360250M, Pittsburgh, Pennsylvania 15251. 

Conclusion 

After careful review and consideration of the pleadings, 

arguments 1 and submissions in support of the motion to approve 

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

the proposed settlement disposition is reasonable and in the 

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

the motion filed by the petitioner IS GRANTED, and the settlement 

IS APPROVED. 

1175 
ORDER 

The respondent IS ORDERED to pay the agreed-upon civil 

penalty assessments in the aforementioned amounts and in 

accordance with the aforementioned payment schedule agreed to by 

the parties. This decision will not become final until such time 

as full payment is made by the respondent to the petitioner, and 

I retain jurisdiction in this matter until payment of all 

installments are remitted and received by the petitioner. 

In the event the respondent fails to make full payment, or 

otherwise fails to comply with the terms of the settlement, 

petitioner is free to file a motion seeking appropriate sanctions 

or further action against the respondent, including a reopening 

of the case. 

'" 4-~~ Administrative Law Judge 

Distribution: 

Edward H. Fitch, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203 

(Certified Mail) . 

Mr. Billy R. Sipple, 49 Godby Street, Logan, WV 25601 

(Certified Mail) 

/ml 

1176 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

OLD BEN COAL COMPANY, 

Respondent 

July 25, 1991 

. . CIVIL PENALTY PROCEEDING 

Docket No. LAKE 91-59 

A.C. No. 11-00590-03815 

Mine 26 

ORDER APPROVI~G PARTIAL SETTLEMENT 

Before: Judge Weisberger 

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 partial settlement agreement. A reduction in penalty 

from $440 to $180 is proposed. On June 25, 1991, a hearing was 

held on this Motion. 

I have considered the representatives 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 partial settlement is 

GRANTED, and it is ORDERED that Respondent pay a penalty of $180 

within 30 days of this order. 

JZWe~ Administrative Law Judge 

Distribution~ 

Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department of 

Labor, 230 South Dearborn Street, Bth Floor, Chicago, IL 60604 

{Certified Mail) 

Gregory s. Keltner, Esq., Old Ben Coal Company, 50 Jerome Lane, 

Fairview Heights, IL 62208 (Certified Mail) 

ml 

1177 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

OLD BEN COAL COMPANY, 

Respondent 

July 25, 1991 

CIVIL PENALTY PROCEEDINGS 

Docket No. LAKE 91-44 

A.C. No. 11-00590-03766 

: Docket No. LAKE 91-45 

A.C. No. 11-00590-03767 

Docket No. LAKE 91-69 

A.C. No. 11-00589-03770 

Docket No. LAKE 91-113 

A.C. No. 11-00589-03774 

Docket No. LAKE 91-121 

A.C. No. 11-00589-03778 

: Docket No. LAKE 91-442 

A.C. No. 11-00589-03782 

1178 

Docket No. LAKE 91-486 

A.C. No. 11-00589-03783 

Noo 24 Mine 

Docket No. LAKE 91-27 

A.C. No. 11-02392-03818 

Docket Noo LAKE 91-131 

AoCo NO. 11-02392-03829 

No. 25 Mine 

Docket No. LAKE 91-24 

A.C. No. 11-00590-03805 

Docket No. LAKE 91-28 

A.C. No. 11-00590-03806 

Docket No. LAKE 91-46 

A.C. No. 11-00590-03810 

Docket No. LAKE 91-47 

A.C. No. 11-00590-03812 
1179 

: Docket No. LAKE 91-68 

A.C. No. 11-00590-03813 

. . 

Docket No. LAKE 91-71 

A.C. No. 11-00590-03817 

Docket No. LAKE 91-78 

A.C. No. 11-00590-03818 

Docket No. LAKE 91-79 

: A.C. No. 11-00590-03819 

. . . 

Docket No. LAKE 91-100 

A.C. No. 11-00590-03820 

Docket No. LAKE 91-108 

A.C. No. 11-00590-03821 

Docket No. LAKE 91-110 

A.C. No. 11-00590-03823 

Docket No. LAKE 91-114 

A.C. No. 11-00590-03824 

Docket No. LAKE 91-115 

A.C. No. 11-00590-03825 

Docket No. LAKE 91-116 

A.C. No. 11-00590-03826 

Docket No. LAKE 91-122. 

A.C. No. 11-00590-03827 

Docket Nao LAKE 91-128 

AoCo No. 11-00590-03829 

Docket No. LAKE 91-129 

A.C. No. 11-00590-03830 

Docket No. LAKE 91-417 

A.c. No. 11-00590-03832 

Docket No. LAKE 91-427 

A.C. No. 11-00590-03833 

No. 26 Mine 
DECISION APPROVING SETTLEMENT 

Appearances: Rafael Alvarez, Esq., U. s. Department of Labor, 

Office of the Solicitor, Chicago, Illinois, for 

the Secretary; 

Gregory s. Keltner, Esq., Fairview Heights, 

Illinois, for the Respondent. 

Before: Judge Weisberger 

These cases were consolidated and set for hearing on 

June 25, 1991, in St. Louis, Missouri. At that time, Petitioner 

made a series of Motions to approve settlements that had been 

entered into between the Parties in these cases. Petitioner, had 

initially sought penalties totaling $11,656, and the Parties have 

proposed in their settlements, that the total penalties should be 

reduced to $6,079. 

At the hearing, the Parties made extensive and thorough 

representations and proffered documentary evidence with regard to 

the facts relating to each of the Citations and Orders at issue 

in these cases, and the fact6is set forth in Section llO(i) of 

the Federal Mine Safety and Health Act of 1977 (the Act). I have 

considered these representatives as well as the factors set forth 

in Section llO(i) of the Act, and I find that the settlements and 

the proposed penalties are appropriate, and I approve the 

settlements presented at the hearing. 

It is ORDERED that the above docket numbers be severed from 

the docket numbers they were consolidated within an Order issued 

June 25, 1991, (Docket No. LAKE 91-15 et al). 

It is further ORDERED that, within 30 days of this Decision, 

Respondent shall pay penalties totali $6,079. 

Distribution~ 

L--

Avram ei berger 

Administrative Law Judge 

Rafael Alvarez, Esq., Office of the Solicitor, U. s. Department 

of Labor, 230 South Dearborn Street, 8th Floor, Chicago, Il 60604 

(Certified Mail) 

Gregory s. Keltner, Esq., Old Ben Coal Company, 50 Jerome Lane, 

Fairview Heights, IL 62208 (Certified Mail) 

nb 

1180 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 2 5 1991 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ALOE COAL COMPANY, 

Respondent 

Before: Judge Maurer 

DECISION 

CIVIL PENALTY PROCEEDINGS 

Docket No. PENN 91-40 

A. C. No. 36-00799-03533 

Docket No. PENN 91-41 

A. C. No. 36-00799-03534 

Aloe Strip Mine 

These consolidated proceedings concern five citations issued 

by an MSHA Inspector pursuant to Section 104(a) of the Federal 

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

the respondent, Aloe Coal Company, with various violations of the 

mandatory standards found in 30 C.F.R., Part 77. 

The parties have agreed to submit the matter to me for summary disposition based on a stipulation of facts and supporting 

memoranda. •!"'agree that the material facts necessary to decide 

these cases are not in dispute and have been stipulated by the 

parties to my satisfaction. Thus, the matter is a proper one for 

summary decision pur~pant to 29 C.F.R. § 2700.64. 

STIPULATION OF FACTS 

Aloe Coal Company (Aloe) and the Secretary of Labor 

(Secretary) stipulated to the following facts with regard to the 

above-captioned matter~ 

1. These cases involve five citations issued against Aloe. 

2. Aloe operates a bituminous coal strip mine in Allegheny 

and Washington Counties, Pennsylvania. 

3. On July 10, 1989, Aloe's employees, who were represented 

by the United Mine Workers of America and its District 5 (UMWA) 

for purposes of collective bargaining, commenced a strike which 

is still in progress. Shortly after the strike began, Aloe 

resumed mining operations with 13 replacement workers and 

6 striking employees who had crossed the picket line and returned 

to work. 

1181 
4. On August 17, 1990, two of the UMWA strikers designated 

the UMWA as their miner's representative. 

5. The citations in these cases resulted directly from an 

inspection conducted on August 21, 23, 24, 27, 31, 1990, and 

September 4 and 6, 1990, pursuant to Section l03(g) of the 

Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 113(g). 

6. When the inspector first appeared to conduct the 

Section 103(g) inspection, a dispute arose concerning the UMWA 

strikers' right to designate a walkaround representative. 

7. In Aloe Coal Company v. Secretary of Labor and United 

Mine Workers of America, 12 FMSHRC 2113 (1990) (AIJ), the 

Honorable Avram Weisberger ruled that the UMWA strikers at the 

Aloe Mine were not miners as defined in the Act and had no right 

to designate a walkaround representative. 

8. During the course of the hearing before Judge 

Weisberger, on September 28, 1990, Aloe learned that UMWA 

Representative Ken Horcicak was the individual who had requested 

the Section 103(g) inspection, 

9. The conditions identified in the five subject citations 

in fact existed and the amounts of the proposed penalties set 

forth in the Secretary's petitions are reasonable. 

DISCUSSION 

Aloe's Arguments 

The inQpector who issued the citations at bar did so pursuant to a Section 103(g) complaint filed by an individual who it 

turns out was not a miner's representative, and therefore, had no 

right to request an ipspection under Section 103(g) of the Act. 

The line of argument then goes on that if Mr. Horcicak (the UMWA 

representative who requested the inspection) had no right to 

request a Section 103(g) inspection, then the inspector had no 

right under Section l03(g) to conduct it. And since the inspection was not authorized by Section 103(g), it was an unreasonable 

one in violation of Aloe 0 s Fourth Amendment rights and the evidence obtained during the inspection must be excluded as "fruit 

of the poisonous treeo" Ultimately then the upshot of the whole 

evolution that the citations are null and void and cannot form 

the basis for the assessment of a civil penalty. 

FINDINGS 

I agree with the Secretary that the Fourth Amendment's 

exclusionary rule does not extend to these civil proceedings. 

Along that same line, I also concur that mining is a type of 

1182 
business that historically has been subject to extensive 

government regulation, and therefore, such a business has no 

reasonable expectation of privacy~ 

But the rationale for my decision to uphold the citations in 

these cases is simply the broad power granted by the Act generally to MSHA inspectors to inspect and/or investigate, and to 

issue citations and orders relating to violative conditions they 

should find existent at a mine. 

Section 103(a) of the Act provides in pertinent part that: 

"Authorized representatives of the Secretary • • • shall make 

frequent inspections and investigations in • • • mines each year 

for the purpose of ••• (4) determining whether there is 

compliance with the mandatory health or safety standards ••. " 

Section 104{a) authorizes the Secretary, upon either 

inspection or investigation, to issue a citation if he believes 

the operator has violated a mandatory standard. 

Section 103(g) (1) appears to me to be but a subset of the 

broader substantive provisionof Section 103(a) that merely 

provides a procedure'for the representative of miners to obtain 

an "immediate inspection" by giving notice to the Secretary of 

the occurrence of a violation or imminent danger. This section 

does not in any way limit the MSHA inspector's broader authority, 

granted under Section 103(a), to conduct an inspection or issue 

citations should any violative conditions be found, whether or 

not the technical requirements of Section 103(g) are met. 

In the cases at bar, the operator concedes the violations 

found at it• mine did in fact exist, and I find that the technical defect cited by the operator concerning the Section 103(g) 

complaint did not hinder Aloe's ability to defend itself in these 

proceedingso 

I therefore conclude that given an MSHA inspectoris broad 

authority to inspect mines and issue citations for violative 

conditions, when he observes a violation at a mine, regardless of 

the manner in which he was made aware of the same, the resulting 

citation he issues is valid. 

Accordingly 1 the five citations at bar will be affirmed and 

the Secretary 1 s proposed civil penalties assessed by me herein. 

1183 
ORDER 

Citation Nos. 3092488, 3092401, 3092493, 3099500, and 

3092491 are AFFIRMED, and Aloe Coal Company is DIRECTED TO PAY a 

civil penalty of $625 within 30 days of the date of this 

Decision. 

Law Judge 

Distribution: 

Anthony G. O'Malley, Jr., Esq., Office of the Solicitor, U. s. 

Department of Labor, Room 14480-Gateway Building, 3535 Market 

Street, Philadelphia, PA 19104 (Certified Mail) 

David J. Laurent, Esq., Polito & Smock, P.C., Four Gateway 

Center, Suite 400, Pittsburgh, PA 15222-1207 {Certified Mail) 

dcp 

1184 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

JUL 2 5 1991 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), · Petitioner 

v. 

JET CONCRETE INCORPORATED, 

Respondent 

. . 

. . 

. . 

. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 90-273-M 

A.C. No. 26-02153-05501 

Docket No. WEST 90-274-M 

A.C. No. 26-02153-05502 

Docket No. WEST 90-347-M 

A.C. No. 26-02153-05503 

: Docket No. WEST 91-6-M 

: A.C. No. 26-02153-05504 

Jet Concrete Inc. 

DECISION APPROVING SETTLEMENT 

Before: Judge Morris 

These cases are civil penalty proceedings initiated by Petitioner against Respondent in accordance with the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. § 801, et ~ The 

civil penalties sought here are for the violation of mandatory 

standards promulgated pursuant to the Act. 

The parties reached an amicable settlement prior to a 

hearingo 

In WEST 90-273-Mu the parties seek to settle 20 citations 

with assessments of $1024 for the sum of $802. 

In WEST 90-274-Mv the parties seek to settle 7 citations for 

the assessments totaling $2480 

In WEST 90-347-MQ the parties seek to settle 10 citations 

with assessments of $3000 for the sum of $17400 

In WEST 91-6-Mu the parties seek to settle 1 citation with 

an assessment of $400 for the sum of $247. 

In connection with the motion, the parties have further 

submitted information relating to the statutory criteria for 

assessing civil penalties as contained in 30 U.S.C. § 820(i). 

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: 

1185 
ORDER 

1. The settlement agreement is APPROVED. 

2. The citations and penalties, as provided in the 

settlement agreement, are AFFIRMED. 

3. Respondent is ORDERED TO PAY to the Secretary of 

Labor the sum of $3037 within 30 days of the date of this 

decision. 

Law Judge 

Distribution~ 

Catherine Ro Lazuran, Esqov Office of the Solicitoru U.So Department of Labor, 71 Stevenson Street, Suite 1110, San Francisco, CA 

94105-2999 (Certified Mail) 

Mro Duane So Frehner 9 JET CONCRETE INCop 112 West Brook, North 

Las Vegas, NV 89030 (Certifed Mail) 

ek 

1186 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE. loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 2 9 1991 

PYRO MINING COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PYRO MINING COMPANY 7 

Respondent 

. . 

CONTEST PROCEEDINGS 

Docket No. KENT 90-340-R 

Order No. 3421655; 6/9/90 

Docket No. KENT 90-341-R 

Order No. 3421656; 6/9/90 

Docket No. KENT 90-343-R 

!. Citation No. 3419883; 

6/12/90 

Pyre No. ·9 Slope, Wheatcroft 

Mine 

Mine ID 15-13920 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 91-66 

A. C. No. 15-13~20-03684 

Pyro No. 9 Wheatcroft 

DECISION APPROVING SETTLEMENT 

Appearances: W. F. Taylor, Esq., u. s. Department of Labor, 

Office of the Solicitor, Nashville, Tennessee, 

for the Secretary; 

Robert I. Cusick, Esq., Louisville, Kentucky, 

for the Company. 

Before~ Judge Maurer 

At the hearing, in Owensboro, Kentucky, on July 9, 1991, the 

parties jointly moved to settle these cases. They proposed to 

leave Order No. 3421655 (Docket No. KENT 90-340-R) as it is, and 

increase the assessed civil penalty from $2000 to $2500. The 

Secretary also moved, unopposed, to vacate Order No. 3421656 and 

Citation No. 3419883. I have considered the representations and 

1187 
documentation submitted in these cases, and I conclude that the 

proffered settlement, including the proposed vacation of the 

aforementioned order and citation is appropriate under the 

criteria set forth in Section llO(i) of the Act. 

WHEREFORE, the motion for approval of their settlement is 

GRANTED, and it is ORDERED that the Pyro Mining Company pay a 

penalty of $2500 within 30 days of this Decision. Order 

No. 3421656 and citation No. 3419883 are hereby VACATED. The 

above captioned contest proceedings have accordingly been 

rendered moot and are therefore DISMISSED. Upon payment of the 

civil penalty in full, the above captioned civil penalty 

proceeding is likewise DISMISSED. 

Distribution: 

~ 4if 1 t(,VvvvJ 

Roy ';J M~urer Administrative Law Judge 

Robert I. Cusick, Esq;, Wyatt, Tarrant & Combs, Citizens Plaza, 

Louisville, KY 40202 (Certified Mail) 

w. F. Taylor, Esq., Office of the Solicitor, U. s. Department of 

Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 37215 

(Certified Mail) 

dcp 

118B 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 3 0 1991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. KENT 90-338 

A. C. No. 15-13362-03571 

v. Mine No. 3 

RB COAL COMPANY, INC., 

Respondent 

Appearances: 

Before: 

DECISION 

Mary Sue Taylor, Esq. , Office of the 

Solicitor, u. s. Department of 

Labor, Nashville, TN, for the 

Petitioner; 

Susan C. Lawson, Esq., Harlan, KY, 

for the Respondent. 

Judge Fauver 

The Secretary of Labor seeks a civil penalty for an alleged 

violation of a safety and health standard, under the Federal Mine 

Safety and Health Act of 1977, 30 Uo So C. § 801 et~ 

Having considered the hearing evidence and the record as a 

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

and probative evidence establishes the following Findings of Fact 

and further findings in the Discussion below: 

FINDINGS OF FACT 

1. Respondent operates R B Coal Company No. 3 Mine, an 

underground coal mine, in Harlan County, Kentucky, where it 

produces coal for sale or use in or affecting interstate commerce. 

2. On February 23, 1990, Federal Mine Inspector Robert Rhea 

issued § 104(d) (1) Citation No. 3392184 at the No. 3 Mine for a 

violation of 30 C.F.R. § 75.517, because the trailing cable for the 

Gallis roof bolting machine contained four temporary splices that 

were worn through and exposed live wires. These four worn and 

exposed places, located in well traveled areas, presented a serious 

danger, particularly to the roof bolter helper who regularly 

handled the cable. The inspector found that the cable's condition 

had existed for at least one to two weeks. Section Foreman Earl 

1189 
Hensley told Inspector Rhea that Respondent had not repaired the 

cable because it was behind in roof-bolting. 

3. Inspector Rhea found that this was an unwarrantable 

violation because Section Foreman Hensley and Mine Superintendent 

Phillips knew or should have known of the condition, the damage was 

located in a highly visible area, and the cable had been in a 

damaged condition for a substantial period. 

4. The roof bolter helper, who frequently handled the cable, 

depended on a sound outer jacket of the cable for protection from 

electrical shock. Because of the frequency and manner in which the 

cable was moved by the roof bolter helper, Inspector Rhea found 

that the violation was reasonably likely to result in a fatal 

accident involving the helper. He found that the violation was 

significant and substantial. The operator abated the violation 

within 45 minutes. 

5. No clean inspection of the mine was conducted between 

February 23, 1990, and March 20, 1990. 1 

6. Ventilation,, methane and dust control plans for 

underground coal mines are required to provide for water 

application at the face, in order to control coal dust, float coal 

dust and respirable dust. The heal th risk in overexposure to 

respirable dust is the development of pneumoconiosis or black lung 

disease. There are also important safety reasons for using water 

to control dust, to dilute the dust at the face, and to prevent 

float coal dust from accumulating in the return airways and belt 

entry airways. Float coal dust creates a serious hazard of a mine 

explosion or fire. Coal dust is a serious fire hazard. 

7o Water sprays on Respondent's continuous miners are on a 

spray bar or a spray block with as many as six to eight sprays on 

the block or baro Water is conveyed to the spray block through a 

plumbing system pipes and hoses. 

80 On January 14, 1990, Inspector Calvin Riddle issued § 

104{d) (1) Citation No. 2996545 to Tommy Phillips at No. 3 Mine for 

a violation of 30 C.F.R. § 75.316, for having only 20 water sprays 

on the continuous miner, and § 104(d) (1) Citation No. 2996546, for 

having zero psi water pressure on the miner. Respondent 1 s 

ventilation, methane and dust control plan required that 75 psi of 

water be maintained on the sprayer system for the continuous miner 

when the machine was running, and that the continuous miner have 

31 operational water sprays. 

A clean inspection is one in which the entire mine or the 

sum of its parts has been inspected without a finding of an 

unwarrantable violation. 

1190 
9. Inspector Riddle returned to the mine on February 2 and 

7, 1990, to check on the abatement of citations issued in January. 

On February 2, the water pressure was 80 psi: the operator 

achieved this figure by increasing the pressure from the sump pump. 

Inspector Riddle noticed some leaks in the hoses when the operator 

increased the pressure. He did not stay to see how long the 

operator could maintain the increased water pressure. 

10. On February 7 and 8, while conducting a respi+able dust 

survey, Inspector Riddle again tested the continuous miner to see 

if the operator had sufficient water pressure. He found that the 

operator could not maintain any water pressure. The operator 

worked on the pumps and was not able to maintain water pressure 

sufficiently to make production, so Inspector Riddle discontinued 

the dust survey and left the mine. · 

11. Inspector Riddle returned to the mine on March 19, 1990, 

for a follow-up inspection prompted by citations issued for 

excessive dust violations. After laboratory analysis, Inspector 

Riddle's dust survey had shown that there was excessive respirable 

dust in the mine. The March 19 inspection was to check on controls 

the operator had installed to correct the excessive dust levels. 

12. Mine No. 3 was operating on an adjusted (higher) 

respirable dust standard because of the quartz level in the coal. 

If airborne dust contains more than five per cent quartz, the 

regulations require that there be less respirable dust present in 

the mine environment to compensate for the presence of the quartz. 

Excessive quartz in the dust increases the danger of contracting 

pneumoconiosis. 

13. Inspector Riddle arrived at the mine on March 19 at about 

10:00 or 11:00 a.m. When he arrived on the surface, he sat in his 

vehicle for about 15 - 20 minutes and observed coal flowing from 

the mine on the surface belt, indicating that the continuous miner 

was producing coalo Mine management indicated to the inspector 

that they were having problems with the jeep used to transport 

miners underground and that they did not know if they would be able 

to transport the inspector underground that day. Inspector Riddle 

accepted this explanation and, since he had other appointments, 

left the mine at 12:30 p.mo that dayo He observed a regular flow 

of coal on the surface belt while he was there. 

14 o On March 2 o 1 Inspector Riddle returned and saw coal 

coming out of the mine for a sufficient time to indicate that coal 

was being produced at that time. The operator stopped production 

between the time the Inspector left the off ice to go underground 

and the time he arrived at the face. When he arrived at the face, 

the continuous miner had been pulled back from the face waiting for 

him to make a water pressure check. Inspector Riddle found that 

the operator was producing coal on March 20 based on the continuous 

flow of coal on the surface beltline, the appearance of the coal, 

1191 
and the time he observed the loaded belt running. 

15. Inspector Riddle went underground with Tommy Phillips on 

March 20. When they arrived at the section, the continuous miner 

was 50 to 100 feet outby the face, which was the normal position to 

check the water pressure considering mine conditions. The miners 

were preparing the miner for the inspector to check the water 

pressure. He saw no indication that the men were working on repairs 

(of the water system or anything else). The inspector used a water 

gauge to check the water pressure. He found 50 psi when he took 

the first reading, but the continuous miner could not sustain this 

level for more than 15 minutes. Each time the operator attempted 

to raise the water pressure, the continuous miner's water supply 

system would blow a hose outby after 5-15 minutes. The hose was 

worn and had the appearance of being old. It appeared to the 

inspector that the hose had been in a deteriorated condition for 

more than a week and possibly more than a month. Based on his 

observations, the inspector believed that even if the satellite 

pump had been 100% operational, the hose would not have been able 

to maintain 75 psi. The hose had been stretched and pulled along 

the ribs and was worn showing a lot of age and wear and tear. 

During the inspector's test of the.water pressure, the operator's 

representatives tried to maintain water pressure but would lose it. 

They checked both inby and outby the continuous miner motor. When 

the pressure got to 50 psi the system would blow a hose and they 

could not maintain water pressure even at 50 psi. The dust control 

plan required 75 psi of water pressure. 

16. On March 20, 1990, Inspector Riddle issued § 104(d) (2) 

Order No. 2996559 for the failure to follow its ventilation, 

methane and dust control plan, which required 75 psi of water 

pressure when the continuous miner was running. He had been at the 

continuous miner for two hours before writing the order, and the 

operator could not maintain the system at or above 50 psi the 

entire time he was thereo It was evident that the hose could not 

withstand a pressure of 75 psi" This condition had existed for 

some timeu at least a week 1 and the general condition of the 

continuous miner was poor. On March 21, 1990, Inspector Riddle 

modified the order to be a § 104(d) (1) order, and to allege high 

negligence instead of moderate negligence. 

17 To abate the condition cited, the operator replaced the 

hose to the miner and ran an independent water system to the block 

of water sprays and replaced 250 feet of main supply hose. The 

abatement involved the modification of the water line on the 

continuous miner. At the place where water came to the miner, the 

operator installed a "T" joint, which bypassed a major part of the 

system including a choke point where only a certain amount of water 

would pass through the orifice and go into the motor. The operator 

also adjusted the main pump down the line to increase the water 

pressure on the booster pump {piston pump) on the continuous miner. 

1192 
18. At all relevant times, Tommy Phillips and Carson Shepherd 

were supervisors at Respondent's No. 3 Mine, Lick Branch No. 1 Mine 

and Lick Branch No. 2 Mine. Each man simultaneously held a 

supervisory position in each mine. 

19. Before March 20, 1990, Respondent, through its 

supervisors, had direct and thorough knowledge of a number of 

violations of operating a continuous miner without adequate water 

pressure. Citations for this kind of violation were served on 

Tommy Phillips on March 28, 1989 (only 10 psi), January 24, 1990 

(only 20 water sprays when 31 sprays were required), January 24, 

1990 (zero psi); on Robert Stanley on October 11, 1988 (only 20 

psi); and on Carson Shepherd on February 6, 1990 (zero psi). 

DISCUSSION WITH FURTHER FINDINGS 

As amended, § 104(d) (1) Order No. 2996559 charges a violation 

of Respondent's ventilation, methane and dust control plan, for 

inadequate water pressure on the continuous miner as follows: 

The operator was not following his approved 

ventilation, methane and respirable dust 

control plan in that, the water pressure was 

measured at 50 psi at the sprays. The plan 

requires 75 psi. 

Respondent contends that the order is invalid because it does 

not allege that the continuous miner was running or producing coal 

when the water pressure was only 50 psi. However, by charging a 

violation of Respondent's ventilation, methane, and dust control 

plan, the order implies, and reasonably puts Respondent on notice, 

that the continuous miner was running without required water 

pressure. 

The order charges a violation of 30 C.F.R. § 75.316, which 

provides that a ventilation, methane, and dust control plan 

approved by the secretary shall be adopted by the operator. The 

evidence establishes that on March 20, 1990, the continuous miner 

did not have 75 psi and in fact had much less than 50 psi on a 

sustained basis. The operator contends that the miner was not in 

operation on March 20 and that the order must therefore fail. The 

Secretary contends that coal was produced on March 19 and 20. I 

find that the reliable evidence shows that coal was being produced 

by the continuous miner when the inspector observed coal flowing 

out of the mine for more than 15 minutes on March 19 and 20, 1990. 

In addition, the reliable evidence demonstrates that the water 

system for the continuous miner was mechanically unable to sustain 

75 psi for at least one week prior to March 19, and the evidence 

shows coal production during that week. 

An inspector may use his judgment to find a violation based on 

circumstantial evidence. It is not necessary that the inspector be 

1193 
present when the violation occurs to issue a citation or order 

under§ 104(d). Florence Mining Co .. 11 FMSHRC 747, 751 (1989); 

Emerald Mines Corp .. 9 FMSHRC 1590 (1987), aff'd sub D.QilL:.. Emerald 

Mines Corporation v. FMSHRC, 863 F.2d 51 (D.C. Cir. 1988). A mine 

inspector may make unwarrantable failure findings under§ 104(d) of 

the Mine Act for violations that have been abated before the 

inspector arrives at the mine. Emerald, supra, 863 F.2d at 59. 

Unwarrantable Failure to Comply 

Section 104(d) (1) of the Act provides that: 

If, upon 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 hazard, and if 

he finds such violation to be caused by an 

unwarrantable failure of such operator to 

comply with such mandatory health or safety 

standards, he shall include such finding in 

any citation given to the operator under this 

Act. If, during the same inspection or any 

subsequent inspection of such mine within 90 

days after the issuance of such citation, an 

authorized representative of the Secretary 

finds another violation of any mandatory 

health or safety standard and finds such 

violation to be also caused by an 

unwarrantable failure of such operator to so 

comply, he shall forthwith issue an order 

requiring the operator to cause all persons in 

the area affected by such violation, 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. 

The Commission has held that an "unwarrantable" failure to 

comply means 11 aggravated conduct constituting more than ordinary 

negligence." Emery Mining Corp., 9 FMSHRC 1997, 2004 (1987); 

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

defined in the legislative history, an "unwarrantable" failure is 

"the failure of an operator to abate a violation he knew or should 

have known existed, or the failure to abate a violation because of 

a lack of due diligence, or because of indifference or lack of 

1194 
reasonable care on the operator's part. " Senate committee on Labor 

and Public Welfare, 94th Con., 1st Sess., Part I Legislative 

History of the Federal coal Mine Health and Safety Act of 1969, at 

1512 (1975); see also id, at 1602; and see: Senate Subcommittee on 

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

Legislative History of the Federal Mine Safety and Health Act of 

1977, at 620 (1978). A continuing safety or health problem places 

on the mine operator the need for heightened scrutiny to assure 

compliance with the Act. Eastern Associated Coal Corp., 13 FMSHRC 

178,187 (1991). 

Prior to March 20, 1990, Respondent had continuing problems 

and violations concerning its water supply system to the continuous 

miner. supervisors Shepherd and Phillips were served citations (to 

Respondent) for the same or similar violations at this mine and at 

other mines operated by the company in the year prior to this 

citation. The operator did not take adequate action to remedy the 

problem at Mine No. 3 when it received the citations, but took 

only such minimal action as was needed to abate the citations 

temporarily. It did not address the overall water system at the 

mine which demanded greater ,~epair and attention. 

Respondent's conduct in mining coal without regard for the 

deteriorated condition of its water system, despite numerous prior 

violations involving lack of water pressure, extensive respirable 

dust, and excessive float coal dust, shows a disregard for the 

requirements of the dust control plan and high negligence in 

operating the miner without the required water pressure. The 

violation found on March 20, 1990, was due to high negligence and 

an unwarrantable failure to comply with its methane, ventilation, 

and dust control plan. 

A Significant and Substantial Violation 

The Commission has held that a violation is nsignif icant and 

substantial nu there is 19 a reasonable likelihood that the hazard 

contributed to will result in an injury or illness of a reasonably 

serious nature." U. s. Steel Mining Co., Inc., 7 FMSHRC 327, 328, 

(1985); Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 

1981}; Mathies Coal Co., 6 FMSHRC 1, 3-4 (1984). This evaluation 

made in terms of vvcontinued normal mining operations. uu U. s. 

Steel Mining Co., Inc. 6 FMSHRC 1573, 1574 (1984). 

Analysis of the statutory language and the Commission 1 s 

decisions indicates that the test of an S&S violation is a 

practical and realistic question whether, assuming continued mining 

operations, the violation presents a substantial possibility of 

resulting in injury or disease, not a requirement that the 

Secretary of Labor prove that it is more probable than not that 

injury or disease will result. See my decision in Consolidation 

Coal Company, 4 FMSHRC 748-752 (1991). The statute, which does not 

use the phrase "reasonably· likely to occur" or "reasonable 

1195 
likelihood" in defining an S&S violation, states that an S&S 

violation exists if "the violation is of such nature as could 

significantly and substantially contribute to the cause and effect 

of a coal or other mine safety or health hazard" (§ 104(d) (1) of 

the Act: emphasis added). Also, under the statute, (1) an 

"imminent danger" is defined as "any condition or practice ••• 

which could reasonably be expected to cause death or serious 

physical harm before [it] can be abated " 2 and (2) an S&S 

violation, is less than an imminent danger.3 It follows that the 

Commission vs use of the phrase "reasonably likely to occur" or 

"reasonable likelihood" does not preclude an S&S finding where a 

substantial possibility of injury or disease is shown by the 

evidence, even though the proof may not show that injury or disease 

is more probable than not. 

Black lung disease is one of the most crippling occupational 

health hazards facing a coal miner. Health violations exposing 

miners to respirable dust, even though black lung may take years to 

develop, are significant and substantial violations of the Act. 

Consolidation Coal Co., .§. FMSHRC 890 (1986), aff 'd sub nom. 

Consolidation Coal Co., v. FMSHRC 824 (F.2d) 1071 (D. C. Cir. 

1987) . In affirming the c·ommission' s presumption that such 

violations are S&S, the Court stated: 

The legislative history of the [Act] suggests 

that Congress intended all except "technical 

violations" of mandatory standards to be 

considered significant and substantial. 

***.[824 at 1085.] 

The Court also recognized that "the determination of the likelihood 

of harm from a violation of an exposure-based heal th standard 

necessarily rests on generalized medical evidence concerning the 

effects of exposure to the harmful substance r rather than on 

evidence specific to a particular violation" 00 ~ at 1084" 

In additionr the dust in Respondent 1 s mine contains an 

excessive amount of quartz, which is more 1 ikely to lead to 

development of the disease. Respondent's violation also involved 

a clear safety hazard from float coal dust accumulations in active 

workings" The mine has a history of excessive dust violations, 

including violations for excessive float coal dust. The presence 

of excessive dust presents a serious danger of a mine explosion or 

fire. 

2 Section 3(j) of the 1969 Mine Act, unchanged by the Federal 

Mine Safety and Health Act of 1977; emphasis added. 

3 Section 104(d) (1) limits S&S violations to conditions that 

"do not cause imminent danger •o••" 

119 6 
The evidence demonstrates that, assuming continued mining 

operations, the cited violation presented a substantial possibility 

of resulting in black lung disease as well as a mine explosion or 

fire. 

The inspector• s finding of a significant and substantial 

violation is sustained. 

Considering all the criteria for a civil penalty in § llO(i) 

of the Act, I find that a civil penalty of $1,000 is appropriate 

for this violation. 

CONCLUSIONS OF LAW 

1. The judge has jurisdiction in this proceeding. 

2. Respondent violated 30 C.F.R. § 75.316 as alleged in 

Order No. 2996559. 

ORDER 

-,. ·~"· 

Respondent shall pay the above civil penalty of $1,000 within 

30 days of the date of this decision. 

Distribution: 

w~~ ~~V-0- William Fauver 

Administrative Law Judge 

Mary sue Taylor, Esq., Office of the Solicitor, u. s. Department of 

Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 37215 

Certi Mail 

Susan Co Lawson, Esq", Forester, Buttermore, Turner & Lawson, PSC, 

Forester Building-First Street, P. o. Box 935, Harlan, KY 40831-

0935 (Certified Mail) 

fas 

1197 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

July 31, ·1991 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

JAMES D. MCMILLEN, EMPLOYED 

BY SHILLELAGH MINING 

COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 90-200 

A. C. No. 46-03875-03546 A 

No. 5 Mine 

DECISION APPROVING SETTLEMENT 

ORDER TO PAY 

Before: Judge Merlin 

The parties now advise that they have agreed to settle this 

matter for $3,000. Upon review of the matter I determine that 

the settlement is entitled to approval under the provisions of 

the Act. 

Accordingly, it is ORDERED that the settlement be APPROVED. 

It is further ORDERED that the operator, if it has not already 

done so, pay $3,000 within 30 days from the date of this decision 

and order. 

~~---...... 

~~ Paul Merlin 

Chief Administrative Law Judge 

Distribution~ 

J. Philip Smith, Esq., Office of the Solicitor, U. s. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified 

Mail) 

J. Randolph Query, Esq., 5130 MacCorkle Avenue, S.E., Charleston, 

WV 25304 (Certified Mail) 

Mr. James D. McMillen, P. o. Box 2852, Chapmanville, WV 25501 

(Certified Mail) 

/gl 

1198 
ADMINISTRATIVE LAW JUDGE ORDERS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 201991 

ASARCO, INCORPORATED, 

contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ASARCO, INCORPORATED, 

Respondent 

Before~ Judge Weisberger 

CONTEST PROCEEDINGS 

Docket No. SE 88-82-RM 

Citation No. 3252969; 

7/16/88 

Docket No. SE 88-83-RM 

Citation No. 3252970; 

7/16/88 

Immel Mine 

Mine ID 40-00170 

CIVIL PENALTY PROCEEDING 

Docket No. SE 89-67-M 

A. C. No. 40-00170-05520 

Immel Mine 

ORDER ON REMAND 

On December 26, 1990, the Commission vacated an Order I had 

issued dated September 22, 1989, in which it was held that 

various excised portions of six documents were not protected by a 

privilege as alleged by the Secretary of Labor (Secretary), but 

should be produced as requested in Discovery Motions filed by 

Asarco, Inc. (Asarco). (Secretary v. Asarco, Inc., 12 FMSHRC 

2548 (Dec 1990)). In essence, the Commission remanded for 

further consideration, the issues of the applicability of 

informant's attorney-client, and work product privileges. 

In a telephone conference call with Attorneys for both 

Parties, Counsel indicated that they would not seek an 

evidentiary hearing pursuant to the Commission's remand, but, 

instead, sought to file B'riefs. Asarco filed its Brief on Remand 

on March 14, 1991. The.Secretary had requested an extension of 

1199 
time to file its~ief and the request, not opposed by Asarco, 

was granted. T~e Secretary filed a Reply Brief on Remand on 

April 24, 1991. I 

II. 

Disposition of Issues 

a. Informer's Privilege 

1. Exhibit B 

Exhibit B attributes a statement to an individual 

identified by his job category and the fact that he was not 

present at the time of the accident. In the Secretary on Behalf 

'of George Roy Logan v. Bright Coal Company, Incorporated and Jack 

Collins, 6 FMSHRC 2520, at 2523 (1984), the Commission indicated 

as follows: "The burden of proving facts necessary to support 

the existence of the informers' privilege rests with the 

Secretary. Secretary of Labor v. Stephenson Enterprises, 

Incorporated, 2 BNA OSHC 1080,, 1082n (1974), 1973-74 CCH OSHD 

par. 180277 at 22, 401, aff'd, 578 F.2d 1021 (5th Cir. 1978)." 

In meeting this burden the Secretary has not proffered any 

evidence, but has merely asserted, in its Brief before the 

Commission, that the identity of an informer can be provided by 

the content and context of the statement, and that this is 

especially so in the instant case "· •. where the universe of 

persons with knowledge about relevant events is relatively 

small." 

The statement does not indicate whether the person who made 

it is a present or former employee of Respondent, or whether the 

individual rs ·an independent contractor. Petitioner has not 

alleged; nor does the record contain any indication of the number 

persons in the job category of the person who made the 

statement at issue. Nor is there any indication of the number of 

persons who performed the same task. Hence, I conclude that it 

has not been established that the informer's identity would be 

revealed by allowing discovery of the statement at issue. Hence, 

the Secretary shall divulge paragraph 1 on page 2 of Exhibit B. 

1 /Petitioner also filed a Motion to Strike Proffered 

Evidence to strike the affidavits marked Exhibits 1 and 2 

attached to its Brief, and "other matters cited or referenced in 

the Brief which are not part of this remand." None of this 

material was relied on by me in making any of my rulings, infra, 

and did not form the basis for any of my rulings. Accordingly, 

the Motion is DENIED. 

1200 
2. Exhibit I 

With respect to Exhibit I, on its face, an informer is 

clearly identified by name. The Commission, in its Decision, 

supra, at 2555, referred to Bright, supra, at 2526, wherein the 

Commission stated that "· .. important factors to be considered 

when evaluating whether the documents sought are essential 

include, whether the Secretary is in sole control of the 

requested material or whether the material which Respondent seeks 

is already within their control, and whether Respondents other 

avenues available from which to obtain the substantial equivalent 

of the requested material." (emphasis added). Expanding on this 

direction, the commission in remanding this issue for further 

consideration, stated as follows: "One of the factors that the 

judge should consider in balancing the interests of the Parties, 

should be whether Asarco could obtain substantially similar 

information from other sources. The judge should determine 

whether the information excised by the Secretary is essential to 

a fair determination of the issues and he should clearly 

articulate the basis for his conclusion." (Asarco, 12 FMSHRC 

supra, at 2556). 

In reconsidering Exhibit I, based upon the above directive 

from the Commission, I find that the excised statements describe 

the event, which apparently gave rise to the Citations at issue. 

As such, these statements are essential to a fair determination 

of the issues. 

Respondent does not argue either that the Secretary is in 

sole control of the requested material, or that it does not have 

any other avenue available to obtain the requested material. 

Indeed, although it is reasonably likely that the informer could 

give relevant~testimony, it would appear that there are no facts 

alleged to indicate that the class of persons having personal 

knowledge of the event that gave rise to the Citations at issuep 

is so large and unidentifiable as to preclude Respondent from 

taking statements from its own employees who witnessed the event 

at issue" Accordingly, inasmuch as there are no facts alleged to 

establish a hardship on Asarco's part in taking statements from 

those of its employees who had personal knowledge of the events 

at issuep in this context it is clear that the Secretary's 

interest in maintaining the secrecy of the informer outweighs 

Asarco's need to obtain this information from the Secretary. 

Accordinglyu Respondent does not have a right to discover the 

fourth page of Exhibit Io 

3. Exhibits E, F, and G 

Exhibits E, F, and G contain detailed, extensive 

statements provided to MSHA personnel by miners employed by 

Respondent who are identified by name. As such, the statements 

are to be considered given by informers and as such, subject to a 

1201 
qualified privilege. The Conunission, in its Decision, Asarco, 

12 FMSHRC supra, at 2556-2557, stated that on remand I 

" .•• should consider whether Asarco could obtain substantially 

similar information from other sources, and whether these 

documents are essential to a fair determination of the issues." 

The Conunission, in Bright, supra, elaborated on these 

factors as follows: "Some of the factors bearing upon the issue 

of need include whether the Secretary is in sole control of the 

requested material or whether the material which Respondents seek 

is already within their control, and whether the Respondents had 

other avenues available from which to obtain the substantial 

equivalent of the requested material." (Bright, supra, at 2526). 

(Emphasis added). Although the individuals whose statements are 

·the subject of Exhibits E, F, and G, are employees of Asarco, and 

presumably under its control, and hence subject to questioning 

and the taking of depositions, the material consisting of a 

transcription of their detailed extensive statements, is unique, 

closely related in time to the instance at issue, and within the 

sole control of the Secretary. Although Asarco might, by way of 

a deposition, have access to ,!nformation within the knowledge of 

these persons, it does not have another avenue available to 

obtain the transcripts of the detailed statements which is the 

material that is the subject matter of Exhibits E, F, and G. 

Hence, access to the transcription of these statements would 

enable Asarco to use the material to refresh the recollection of 

a witness or to attempt to impeach the credibility of a witness 

by way of a prior inconsistent statement. 

In further evaluating whether these documents a~e essential 

to a fair determination of the issues, as required by the 

Conunission'a Remand, I considered the circumstances involved 

herein as well as the violation charged and possible defenses 

(Seer Bright 1 supra, at 2526, quoted by the Conunission in 

Asarco, 12 FMSHRC supra at 2553)0 One of the Citations in issue 

herein? Citation 3252969p alleges a violation of 30 C.F.R. 

§ 57.12017. Section 57.12017, supra, in essence, provides that 

power circuits shall be deenergized before work is done on such 

circuits. It also requires that switches shall be locked out, or 

other measures taken to prevent power circuits from being 

energized without the knowledge of the individuals working on 

them. SpecificallYu the issued Citation alleges that an employee 

was electrocuted while cleaning insulators on a disconnect, and 

that the top terminals on the disconnect were not deenergized. 

In the narrative findings for a special assessment, appended to 

the petition for assessment of the civil penalty, it is alleged 

that the violation resulted from Asarco's negligence, in that the 

foreman had discussed the job with the victim before he started 

to work, and gave no safety instructions. It further is alleged 

1202 
that "Evidence gathered during the investigation of the fatal 

accident indicated that similar work on energized equipment was 

the common practice at this mine." 

Petitioner also issued a citation alleging a violation of 

30 C.F.R. § 57.12019, which requires that suitable clearance is 

to be provided at stationary electrical equipment or switch gear. 

Specifically, the issued citation alleges that suitable clearance 

was not provided at the rear of the mine feeder transfer switch 

cabinet where the decedent had been working " ... in that the 

bottom off the access panel was setting against the bottom of the 

transfer cabinet with the top leaning against the rib." (Sic.) 

The narrative findings allege that " •.• the safety director was 

present and saw the violation, but took no action." In its 

Answer, Asarco asserts that it provided suitable clearance and 

followed proper procedures, and "did not know and had no reason 

to believe that a trained and experience election, fully aware of 

the circumstances and hazards, would work on or contact the 

energized components of the equipment involved." Asarco also 

argues that any violation did not result from negligence on the 

part of Asarco. 

Exhibit E contains statements with regard to instructions, 

if any, given the decedent. In addition, the statement discusses 

past work practices. As such, it has a significant bearing on 

the issues raised by the pleading. In the same fashion, 

Exhibit F contains statements as to what was stated on the 

morning of the accident by a supervisor, as well as statements 

made by the miner who had been electrocuted with regard to his 

knowledge of hot contacts. This exhibit also contains statements 

relating to the removal of the panel in question. similarly, 

Exhibit G c2n~ains statements with regard to location of the 

panel and whether it should have been completely removed. Also, 

Exhibit G contains the opinion of the informerv as to how the job 

should be done safely and to the degree of supervision provided 

workers in similar situations. 

Hence, Exhibits E, F, and G contain statements that have a 

crucial bearing on issues raised by the citations at issue and 

possible defenses. As suchv it is concluded that Asarco has a 

high degree of need to discover these exhibitso 

Thus, considering all of the above, I conclude that Asarco's 

need for Exhibits E, F, and Gout weighs the Secretary's need to 

maintain the informer's privilege. 

4o Exhibit K 

The second and third paragraphs on page 4 of Exhibit K 

contain statements attributed to two persons, one of whom is 

identified by name, and the other by a description that could 

easily lead to his identification. The statements themselves 

1203 
were not deleted from the documents served on Asarco by the 

Secretary. Considering the factors set forth in Bright, supra, I 

note that Asarco, in its Brief, does not allege that it has any 

need for the name of the declarant in each incident to prepare a 

possible defense, nor does it argue that the release to it of the 

declarant's name is essential to a fair determination of the 

issues. Accordingly, Asarco is not entitled to discovery of the 

excised names on pages 4 and 5 of Exhibit K. 

The deleted material on page 8 of Exhibit K, subsequent to 

the words "1556 hrs telephoned" contains a discussion that the 

interviewer had with a miner, but the essence of the conversation 

did not involve discussion of any issues relating to the alleged 

violations herein or the negligence, if any, of Asarco in 

connection with these violations. Accordingly, applying the 

balancing test set forth in Bright, supra, I conclude that these 

statement do not relate to any possible defense, and as such 

Asarco need to obtain such information is outweighed by the 

informer's privilege, and hence Asarco does not have any right to 

discover this material. 

Page 9 of Exhibij: K contains· information relating to 

attempts by a special investigator to contact various 

individuals. Asarco, in its Brief, has not alleged any need to 

obtain this information, or specifically how it would relate to 

the preparation of any possible defense. Thus, considering the 

factors set forth in Bright, supra, and applying the balancing 

test described therein, it is concluded that the release of these 

deletions is not required. 

The first three lines in the second paragraph, page 9, 

following the words "at motel. Spoke," do set forth any 

statement m~de by either the interviewer or the two miners named 

therein, but indicate where they will be the following nighto 

Such information would not appear to be helpful in any possible 

defense and would not be of assistance in resolving the issues 

hereino As such, applying the balancing in the test set forth in 

Bright, supra, it is concluded that these lines were properly 

deleted. 

The first word on the next line is to be deleted, as it 

identifies an informero However, the balance of that line and 

the next three lines contain a statement with regard to the 

reaction of miners to statements of MSHA officials, and there is 

no indication that this information is available to Asarco by 

other sources. Hence discovery is allowed. 

Deleted material under the heading "10/26/88" on pages 9, 

10, and 11 contain names of informers, as well as the 

arrangements the interviewer made to interview them and the 

interview procedure. This information alone is not necessary for 

possible defense, nor is it essential for a fair determination of 

1204 
the issues. Accordingly, applying the principles annunciated 

Bright, supra, the Secretary's need to insure the informer's. 

privilege outweighs Asarco's need for this information, and hence 

discovery is not allowed. 

The deleted material under the heading 10/27/88 on page 10, 

is a notation of a contact the interviewer had with an 

individual, and that the interviewer decided not to met with this 

individual. Inasmuch as no information was solicited from this 

individual, it can not be seen how the deleted material would be 

of assistance to Asarco in any possible defense regarding the 

issues framed by the pleadings. Accordingly, utilizing the 

balancing test set forth in Bright, supra, discovery of this 

material is denied. 

The first four lines that are deleted on page 12, refers to 

an inquiry by Mr. Chajet, as to whether the interviewer wanted 

talk to "X", and the interviewer's response. This excised 

statement lists the name of a possible informer, but does not 

indicate the substance of any conversation. As such, the only 

purpose of disclosure would J>e to compel the Secretary to reveal 

the name of a possiDle witness or informer. It has not been 

established that Asarco's need for this information outweighs the 

Secretary's interest in maintaining the privilege. Hence, this 

material was properly deleted. 

On page 12, the deleted material after the words "2025 hrs 

telephoned," contains the name of an informer, but does not 

contain any information relevant to the issues framed by the 

pleadings. However, the first six words of the seventh line of 

that paragraph, as well as the quoted phrase at the end of this 

paragraph contain information that might lead to a possible 

defense, without identifying the source of this information. It 

difficult to see how Asarco could obtain this information 

without discoveryo Hence, applying the factors enunciated in 

Bright; supra; discovery of this deleted material, is to be 

allowed to the extent set forth above. 

Material excised from the middle of page 23 contains a list 

of questions prepared for an informer. These relate to the event 

gave rise to the issuance of one of the citations in issue. 

The deleted statements on page 24 and the first two lines on 

page 25 contain the informer's responses. In order for Asarco to 

be able to discover these specific statements, it would need not 

only the identity of the informer, but also the specific 

questions asked. Hence, the responses to these specific 

questions are only be in the custody of the Secretary, and not 

obtainable by Asarco without discovery. Further, inasmuch as the 

information relates to the circumstances surrounding the 

violative condition alleged in Citation 3252970, the information 

1205 
would be relevant in resolving the issues and might lead to a 

possible defense. Accordingly, applying the criteria set forth 

in Bright, supra, this information is subject to discovery. 

The deleted material on page 23, after the words "1915 hrs 

telephoned," and the last three lines of this page contain the 

name of an informer whom the interviewer attempted to contact. 

There was no contact made at the time and hence, this information 

is not relevant to any possible defense, and is not essential to 

any determination of the issues, and hence under the criteria set 

forth in Bright, supra, is not subject to discovery. 

The deleted material at the bottom of pages 25, 26, and 27 

identifies individuals who were interviewed by an investigator, 

but does not give any facts concerning either questions to them 

or their responses. Asarco has not alleged that it has any need 

for the names of the Secretary's informers. Divulging this 

material would only provide their names, and no other information 

which would be helpful in preparing a possible defense or in 

determining the issues presented herein. Accordingly, this 

material was properly deleted. 

b. Work Product Rule 

The deleted material on pages 3 and 4 of Exhibit K are notes 

that MSHA Special Inspector Robert Evert made while interviewing 

MSHA Supervisory Inspector Craig concerning the Asarco latter's 

conversations about this case with one of the Secretary's 

attorneys. The Commission, in its Decision, 12 FMSHRC supra, 

applied Fed. R. Civ. P. 26(b)(3), and held that the material in 

question is a document which was prepared by a Party or its 

representat.ive, i.e., Evert. It further found as follows: "The 

record appears to us to reveal that the disputed portions of the 

special investigator 1 s notes were prepared in anticipation of 

litigation.'q Asarcov 12 FMSHRC supra, at 2559. The Commission 

indicated that it would thus appear that the excised portions of 

Craig's statements met the immunity tests set forth in Rule 26, 

supra. In vacating the portion of my Order of September 22, 

1989, that held that the excised portions were not within the 

scope of the work product rule, the Commission stated as follow: 

"However? the judge may have considered relevant factors or the 

nuances not fully reflected in his prior order. 1

' (Asarco, 

12 FMSHRC supra, at 2559). The Commission remanded the issue for 

"further consideration consistent with this Decision." 

(12 FMSHRC, supra, at 2559.) 

Upon further consideration, I concur in the findings of the 

Commission that the immunity tests set forth in Rule 26, supra, 

have been met. Any relevant factors or nuances that I considered 

in my original Order are, upon reconsideration, of a lesser 

significant than the Commission's rationale for its holding that 

the various criteria set forth in Rule 26(b)(3) have been met. 

1206 
Accordingly, it is concluded that the excised portions in 

Exhibit K are within the work product rule, and not subject to 

discovery. 

c. Attorney - Client Privilege 

On remand of this issue and upon further consideration, I 

note that the solicitor related to Craig what another individual 

had told him, and the Solicitor also asked a question of Craig. 

Neither of these communications are mental impressions, 

conclusions, opinions, or legal theories. As such these 

communications are in confidence and protected. (See, Hickman v. 

Taylor 329 U.S. 495 (1947). 

Inasmuch as the material excised from pages 3 and 4 consist 

of statements covered by the attorney-client privilege and 

passages protected by the work product rule, they were properly 

excised and not subject to discovery. 

ORDER 

""··~ 

It is ORDERED that, within 10 days of this Order, the 

Secretary shall serve the Operator with the following: 

(a) Paragraph 1 on page 2 of Exhibit B; (b) ·Exhibits E, F, and G; 

(c) the last four lines of the second paragraph of page 9, 

Exhibit K, with the exception of the first word in the fourth 

line of this paragraph which is to be deleted; (c) the list of 

questions deleted from page 23, the responses on page 24, and the 

first two lines on page 25; (d) the first six words of the 

seventh line of the third paragraph of page 12 Exhibit K and the 

phrase quoted at the end of that paragraph; and (e) the list of 

questions deleted from page 23, and the responses on page 24, and 

the first two lines on page 25. 

Distribution~ 

~eisberger I} ~ 

Administrative Law Judge 

(703) 756-6210 

FAX (703) 756-6201 

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) 

Henry Chajet, Esq., Jackson & Kelly, 1701 Pennsylvania Avenue, 

NW, Suite 650, Washington, DC 20006 (Certified Mail) 

dcp 

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