JANUARY 1993 

COMMISSION DECISIONS AND ORDERS 

01-14-93 

01-25-93 

01-25-93 

Ramblin coal COmpany, Inc. 

Aloe coal company 

Cyprus Empire Corporation 

ADMINISTRATIVE LAW JUDGE DECISIONS 

01-04-93 

01-05-93 

01-28-93 

01-05-93 

01-06-93 

01-07-93 

01-07-93 

01-07-93 

01-08-93 

01-11-93 

01-13-93 

01-15-93 

01-19-93 

01-21-93 

01-21-93 

01-21-93 

01-21-93 

01-21-93 

01-21-93 

01-25-93 

01-25-93 

01-27-93 

01-28-93 

01-28-93 

01-28-93 

McElroy coal company 

Homestake Mining Company (Amended) 

Homestake Mining Company (Amended) 

Consolidation Coal company 

Dotson & Rife Coal Company 

Pontiki Coal Corporation 

Raven Mining Company 

Consolidation Coal Company 

Jewell Smokeless Coal Corp. 

Consolidation Coal Company 

Arch of Kentucky Inc. 

Little Rock Quarry Company 

Martinka Coal Company 

Price construction Inc. 

Young Brothers Incorporated 

Peabody Coal Company 

Ford Construction Company 

Magma Copper Company 

Consolidation Coal Company 

Asarco, Incorporated 

Harman Mining Corp. (not final) 

Mid-Continent Resources, Inc. 

Consolidation Coal Company 

sec.Labor for Daniel Baker v. 

Newmont Gold Company 

C. vJ. Mining Company 

ADMINISTRATIVE LAW JUDGE ORDERS 

12-21-92 Laurel Coal Corporation 

KENT 90-429 

PENN 91-40 

WEST 91-454-R 

WEVA 

CENT 

CENT 

WEVA 

KENT 

KENT 

KENT 

WEVA 

VA 

PENN 

KENT 

CENT 

WEVA 

CENT 

CENT 

KENT 

WEST 

WEST 

WEVA 

SE 

VA 

WEST 

PENN 

WEST 

92-749 

91-217-RM 

91-217-RM 

92-884 

91-670-R 

91-97-R 

92-434 

92-1043 

92-82 

91-147-R 

92-350 

92-202-M 

93-45-R 

92-33-M 

92-46-M 

92-223 

90-346-M 

92-98-M 

92-793 

88-82-RM 

92-132 

91-168 

92-502-R 

92-665~DM 

WEST 92-210 

WEVA 92-1282 

Pg. 

Pg. 

Pg. 

1 

4 

10 

Pg. 17 

Pg. 26 

Pg. 30 

Pg. 34 

Pg. 46 

Pg. 48 

Pg. 56 

Pg. 58 

Pg. 60 

Pg. 82 

Pg. 90 

Pg. 97 

Pg. 99 

Pg. 109 

Pg. 111 

Pg. 113 

Pg. 125 

Pg. 128 

Pg. 130 

Pg. 141 

Pg. 143 

Pg. 149 

Pg. 172 

Pg. 177 

Pg. 178 

Pg. 189 

JANUARY 199 3 

The following cases were GRANTED review in the month of January: 

Secretary of Labor, MSHA v. Pittsburg & Midway Coal Mining Company, Docket Nos. 

CENT 91-196, CENT 91-197, CENT 91-202. (Judge Morris, November 27, 1992) 

Vincent Braithwaite v. Tri-Star Mining Company, Docket No. WEVA 91-2050-D. 

(Judge Fauver, December 1, 1992) 

Keystone Coal Mining Company v. Secretary of Labor, MSHA, Docket Nos. PENN 91-

1480-R, PENN 91-1454-R, PENN 92-54-R. (Judge Weisberger, December 7, 1992) 

There were no cases filed in which review was DENIED. 

COMMISSION DECISIONS AND ORDERS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K Street NW, 6th Floor 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

RAMBLIN COAL COMPANY, INC. 

Washington, D.C. 20006 

January 14, 1993 

Docket Nos. KENT 90-429 

KENT 90-430 

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

ORDER 

BY THE COMMISSION: 

This civil penalty proceeding arises under the Federal Mine Safety and 

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

1, 1991, Administrative Law Judge William Fauver entered an unpublished order 

staying further proceedings in this case on various citations for which the 

Secretary of Labor had proposed civil penalties in accordance with her 

"excessive history" program set forth in Program Policy Letter No. P90-III-4 

(May 29, 1990)(the "PPL"), pending this Commission's decision in Hobet Mining 

Inc., No. WEVA 91-65. Hobet involved the validity of the excessive history 

program. On June 22, 1992, the judge issued a decision lifting that stay and 

dismissing "the citations charging excessive history violations .... " 

14 FMSHRC 1025, 1032 (June l992)(ALJ). On July 6, 1992, before the judge's 

decision became final, the Secretary filed with the judge a motion for 

reconsideration, which asserted that the Commission's decision in Drummond 

Co., Inc., 14 FMSHRC 661 (May 1992), required remand of the penalty proposals 

to the Secretary for recalculation. The record indicates that the judge did 

not rule on the Secretary's motion. 

The judge's jurisdiction terminated when his decision to dismiss the 

citations was issued. 29 C.F.R. § 2700.65(c). Although the Secretary filed a 

motion for reconsideration with the judge, she did not file a petition for 

discretionary review of the decision within the 30-day period prescribed by 

the Mine Act. 30 U.S.C. § 823(d)(2)(A)(i); ~also 29 C.F.R. § 2700.70(a). 

Nor did the Commission l'irect review on its own motion. 30 U.S.C. 

§ 823(d)(2)(B). Thus, the judge's decision became a final decision of the 

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

The Secretary's counsel sent to the judge a letter dated December 15, 

1992, inquiring as to status of the Secretary's motion for reconsideration. 

Under the circumstances, we consider this letter to be a request for relief 

from a final Commission decision incorporating by implication a late-filed 

l 
petition for discretionary review. ~.Transit Mixed Concrete Co., 13 

FMSHRC 175, 176 (February 1991). Relief from a final judgment or order of the 

Commission is available to a party under Fed. R. Civ. P. 60(b)(l) & (6) on the 

basis of inadvertence, mistake, surprise, excusable neglect, or any other 

reason justifying relief. See 29 C.F.R. § 2700.1 (Federal Rules of Civil 

Procedure apply, "so far as practicable" and "as appropriate," in the absence 

of applicable Commission rules). See,~. Klamath Pacific Corp., 14 FMSHRC 

535, 536 (April 1992). 

In both Drummond, 14 FMSHRC at 692, and Habet, 14 FMSHRC 717, 721 (May 

1992), the Commission remanded to the Secretary for recalculation civil 

penalties that had been initially proposed in accordance with the PPL. It 

appears that the judge may have erred in failing to remand the subject civil 

penalties to the Secretary for recalculation. The judge did not set forth a 

rationale for his dismissal of "the citations charging excessive history 

violations." 14 FMSHRC at 1032. Accordingly, we conclude that this case 

should be reopened and remanded to the judge for his determination of whether 

final relief from the decision to dismiss the citations is warranted. If the 

citations were dismissed solely because the penalty proposals were made in 

accordance with the excessive hist'()ry pro8ram set forth in the PPL, the judge 

is directed to remand the penalty proposals to the Secretary for recalculation 

in accordance with Drummond. 

For the foregoing reasons, we grant the Secretary's petition for 

discretionary review, reopen this matter, vacate the judge's dismissal of the 

previously stayed citations, and remand this matter to the judge for further 

consideration. 

Arlene Holen, Chairman 

~~~/iJ~ Richard V. Backley, Commissioner f7 

L. Clair Nelson, Commissioner 

2 
Distribution 

Joseph B. Luckett, 

Office of the Solicitor 

U.S. Department of Labor 

2002 Richard Jones Rd. 

Suite B-201 

Nashville, TN 37215 

R. Shelton, Esq. 

Baird, Baird, Baird & Hones, P.S.C. 

P.O. Box 351 

Pikeville, KY 41502 

Administrative Law William Fauver 

Federal r1ine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, VA 22041 

3 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K Street NW, 6th Floor 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

ALOE COAL COMPANY 

Washington, D.C. 20006 

January 25, 1993 

Docket Nos. PENN 91-40 

PENN 91-41 

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

'·DECISION 

BY THE COMMISSION: 

This civil penalty proceeding arises under the Federal Mine Safety and 

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

issue presented is whether citations issued by an inspector of the Department 

of Labor's Mine Safety and Health Administration ("MSHA") to Aloe Coal Company 

("Aloe"), pursuant to an inspection requested under section 103(g)(l) of the 

Mine Act, 1 are invalid because the inspection was requested by a 

Section 103(g)(l) states: 

Whenever a representative of the miners or a miner 

in the case of a coal or other mine where there is no 

such representative has reasonable grounds to believe 

that a violation of this Act or a mandatory health or 

safety standard exists, or an imminent danger exists, 

such miner or representative shall have a right to 

obtain an immediate inspection by giving notice to the 

Secretary or his authorized representative of such 

violation or danger. Any such notice shall be reduced 

to writing, signed by the representative of the miners 

or by the miner, and a copy shall be provided the 

operator or his agent no later than at the time of 

inspection, except that the operator or his agent shall 

be notified forthwith if the complaint indicates that an 

imminent danger exists. The name of the person giving 

such notice and the names of individual miners referred 

to therein shall not appear in such copy or 

notification. Upon receipt of such notification, a 

(continued ... ) 

4 
representative of striking employees of Aloe. Commission Administrative Law 

Judge Roy J. Maurer concluded that the citations were valid and assessed the 

civil penalties proposed by the Secretary. 13 FMSHRC 1181 (July 199l)(ALJ). 

We granted Aloe's petition for discretionary review. For the reasons that 

follow, we affirm. 

I. 

Factual and Procedural Background 

The salient facts of this case were stipulated by the parties. Aloe 

operates a surface coal mine located in Allegheny and Washington Counties, 

Pennsylvania. On July 10, 1989, Aloe's miners, represented by the United Mine 

Workers of America ("UMWA") for collective bargaining purposes, went on 

strike. Aloe continued mining operations with 13 replacement workers and six 

union employees who crossed the picket line to return to work. Stip. 3. 

Two of the strikers attempted to designate the UMWA as their miners' 

representative on August 17, 1990, and filed their designation with the local 

MSHA district manager in accordance with 30 C.F.R. § 40.2(a). 2 Stip. 4. 

Following receipt of a request subm_:i,tted byUMWA representative Ken Horcicak, 

pursuant to section 103(g)(l) of the Mine Act, an MSHA inspector conducted an 

inspection of the mine. Stips. 5 & 8. The request for an inspection stated 

that employees at the mine were not wearing required safety equipment, 

inadequate berms were present along haulage roads, and electrical equipment 

was not being properly maintained and inspected. Id. Five citations were 

issued alleging violations of safety standards, including citations relating 

to the conditions described in the inspection request. Stip. 1. 

Horcicak's identity as the individual who requeste4 the inspection was 

not known to Aloe at the time of the inspection. 3 Aloe discovered at another 

1 ( ... continued) 

special inspection shall be made as soon as possible to 

determine if such violation or danger exists in 

accordance with the provisions of this title. If the 

Secretary determines that a violation or danger does not 

exist, he shall notify the miner or representative of 

the miners in writing of such determination. 

30 u.s.c. § 813(g)(l). 

2 

3 

Section 40.2(a) provides: 

A representative of miners shall file with the 

Mine Safety and Health Administration District Manager 

for the district in which the mine is located the 

information required by § 40. 3 of this part. 

Concurrently, a copy of this information shall be 

provided to the operator of the mine by the 

representative of miners. 

Under 30 C.F.R. § 43.4(c), the name of the person making the 

inspection request is not to be given to the operator. 

5 
Commission hearing on September 28, 1990, that it was HorQicak who had 

requested the section 103(g) inspection. ~Aloe Coal Co., 12 FMSHRC 2113 

(October 1990)(ALJ). Stips. 7 & 8. 

Aloe contended, in this proceeding before the judge, that Horcicak did 

not have the authority to request the inspection because he was neither a 

miner nor a representative of miners under the Mine Act. It argued that the 

inspection was outside MSHA's authority and that, as a consequence, the 

citations should be vacated. 

Judge Maurer affirmed the citations and assessed the civil penalties 

proposed by the Secretary. 13 FMSHRC at 1183. The judge determined that the 

Mine Act grants the Secretary broad authority to inspect and investigate mines 

under section 103(a) of the Mine Act, 30 U.S.C. § 813(a), 4 and to issue, 

pursuant to section 104 of the Act, 30 U.S.C. § 814, citations and orders 

relating to violative conditions existing at a mine. Id. He reasoned that 

section 103(g)(l) is "a subset of the broader substantive provision of section 

103(a) that merely provides a procedure for the representative of miners to 

4 Section 103(a) states: 

Purposes: advance notice; frequency: guidelines; right 

of access 

Authorized representatives of the Secretary ... 

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 

[Act] .... 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 this [Act], and his experience under 

this [Act] and other health and safety laws. For the 

purpose of making any inspection or investigation under 

this [Act], the Secretary ... with respect to fulfilling 

his responsibilities under this [Act] ... shall have a 

right of entry to, upon, or through any coal or other 

mine. 

6 
obtain an 'immediate inspection' by g~v~ng notice to the Secretary of the 

occurrence of a violation or imminent danger." Judge Maurer concluded 

that section 103(g)(l) does not limit the MSHA inspector's broader authority 

granted under section 103(a) to conduct inspections or issue citations where 

violative conditions are found. Id. Judge Maurer agreed with the Secretary 

that mine operators historically have been subject to extensive government 

regulation and therefore have no reasonable expectation of privacy under the 

Fourth Amendment. 13 FMSHRC at 1182-83. 

II. 

Disposition of Issues 

Aloe argues that, because the inspection was requested under section 

103(g)(l) by an individual who was not a miner's representative or a miner, 

the MSHA inspector had no right under the Mine Act to conduct the inspection 

or issue the citations. Aloe further characterizes the inspection as an 

unreasonable search in violation of its Fourth Amendment rights. 

Under section 103(g)(l), a representative of miners has "a right to 

obtain an immediate inspection of a"rnirte" if such individual has reasonable 

grounds to believe that a violation of the Act or a mandatory health or safety 

standard exists or an imminent danger exists. Section 103(g)(l) was included 

in the Mine Act because Congress determined that the safety and health of 

miners would be improved "to the extent that miners themselves are aware of 

mining hazards and play an integral part in the enforcement of the mine safety 

and health standards." S. Rep. No. 181, 95th Gong., 1st Sess. 29-30 (1977) 

reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 95th 

Gong., 2d Sess., Legislative History of the Federal Mine Safety and Health Act 

of 1977 617-18 (1978). 

We first address whether striking employees of a mine operator or a 

representative of these individuals may request an inspection under section 

103(g)(l). In Cyprus Empire Corporation, 15 FMSHRC ____ ,No. WEST 91-454-R, 

et al. (January 1993), we concluded that striking employees of a mine operator 

are not miners entitled to have their previously designated walkaround 

representative accompany an MSHA inspector, pursuant to section 103(f) of the 

Mine Act, 30 U.S.C. § 813(f), during the inspection of the mine. Slip. op. at 

6. We stated that the term "miner" is defined in section 3(g) of the Act, 

30 U.S.C. § 802(g), as "any individual working in a coal or other mine" and 

held that individuals on strike are not working in a mine. We emphasized that 

an individual's status as a miner is determined by whether he works in a mine 

and not by whether he is employed by a mine operator. Slip op. at 4. We also 

noted that the Commission has already determined who is a "miner" entitled to 

the training rights under section 115 of the Act, 30 U.S.C. § 825. The 

Commission has previously held that job applicants and former miners on layoff 

do not qualify as "miners" under the Act and, hence, are not entitled to 

training rights. Slip op. at 4-5. (case citations omitted). Finally, we 

noted that the safety purposes of section 103(f) are not diminished because 

striking employees are not exposed to the hazards of mining, and thus do not 

require a walkaround representative. Slip. op. at 6. 

Our reasoning set forth in Cyprus Empire applies with equal force with 

7 
respect to requests for an inspection under section 103(g)(l). Individuals on 

strike at a mine are not working in the mine. Accordingly, we hold that 

striking individuals are not miners for purposes of section 103(g)(l). Indeed, 

the Secretary does not dispute Aloe's position that a representative of 

striking individuals is not a representative of miners under section 

103(g)(l). SeeS. Br. at 1, 4. We therefore agree with Aloe that Horcicak 

was not a representative of miners and consequently did not have a right to 

obtain an immediate inspection of Aloe's mine under section l03(g)(l). 

We do not conclude, however, that the five citations issued during the 

inspection and the resulting civil penalties are invalid. We agree with the 

judge that the inspection was proper under section l03(a) of the Act and 

affirm the judge's finding sustaining the citations and his assessment of 

civil penalties. 

Section 103(a) of the Mine Act expressly grants authorized 

representatives of the Secretary a right to enter all mines for the purpose of 

performing inspections under the Act. ~. United States Steel Corp., 6 

FMSHRG 1423, 1430-31 (June 1984). As a general proposition, all inspections 

of mines under section 103 are co~~~cted pursuant to the basic authority of 

section 103(a). Tracey & Partners. Randy Rothermal. Tracey Partners, 11 

FMSHRC 1457, 1464 (August 1989). Section 103(a) specifically authorizes 

"frequent inspections and investigations" for the purpose of "determining 

whether an imminent danger e~ists and ... whether there is compliance with the 

mandatory health or safety standards or with any citation, order, or decision 

issued under [the Act]." The Secretary has the authority under section 103(a) 

to conduct "spot" inspections of Aloe's surface coal mine as well as the 

required semi annual inspections. See United Mine Workers v. FMSHRC, 671 F.2d 

615, 623-24 (D.C. Cir. 1982); Consol. Coal Co. v. FMSHRC, 740 F.2d 271, 273 

(3rd Cir. 1984); Monterey Coal v. FMSHRC, 743 F.2d 589, 593 (7th Cir. 1984). 

The Supreme Court has affirmed the Mine Act's broad grant of authority to the 

Secretary under section 103(a) by upholding the constitutionality of 

warrantless inspections. Donovan v. Dewey, 452 U.S. 594, 598-608 (1981). 

The Secretary possessed the authority to conduct the inspection at issue 

under section 103(a), even though that inspection ensued from a request from 

an individual who did not have the right to obtain an immediate inspection. 

An inspector has broad discretion to gain entry and to inspect a mine. An 

inspector also may inspect a mine based on information he receives from others 

that leads him to believe there may be safety or health violations at the 

mine. The fact that the information that prompted the inspection was provided 

to MSHA by someone who did not "have a right to obtain an immediate 

inspection" under section 103(g)(l) does not invalidate the inspection or the 

citations and orders issued during the inspection. 

Section 103(g)(l) is intended to encourage miners to become involved in 

identifying hazards, and to afford them an active role in correcting those 

hazards by providing the right to request an inspection whenever miners 

reasonably believe that a violation or a danger exists. Nowhere in section 

103(g)(l) or the legislative history is there any indication that the section 

was meant to limit the Secretary's broad authority to inspect mines under 

section 103(a). Although Horcicak did not have a "right to obtain an 

8 
immediate inspection" under section 103(g)(l), the MSHA inspector did have the 

authority to inspect Aloe's mine under section 103(a) of the Act. Because the 

inspector had the right under section l03(a) of the Act to enter the mine to 

conduct the inspection, Aloe's argument that the inspection was unreasonable 

and in violation of Aloe's Fourth Amendment rights is without merit. See 

Donovan v. Dewey, supra. 

Aloe stipulated that the violations existed as alleged and that the 

penalty assessments proposed by the Secretary were reasonable. We therefore 

affirm the judge's finding that the citations and civil penalties are valid. 

III. 

Conclusion 

Based on the foregoing conclusions, we affirm the judge's decision. 

Distribution 

David J. Laurent, Esq. 

Polito & Smock, P.C. 

Suite 400, Four Gateway Center 

Pittsburgh, PA 15222 

Colleen A. Geraghty, 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Administrative Law Judge Roy J. Maurer 

· Ar~~. c~f?1 

Richard 

.~&A V. Backley, Commiss~~ 

L. Clair Nelson, Commissioner 

Federal Hine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, VA 22041 

9 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K Street NW, 6th Floor 

Washington, D.C. 20006 

January 25, 1993 

CYPRUS EMPIRE CORPORATION 

v. 

SECRETARY OF LABOR, MINE SAFETY 

& HEALTH ADMINISTRATION (MSHA) 

and 

UNITED MINE WORKERS OF AMERICA 

Docket Nos. WEST 91-454-R 

WEST 91-455-R 

WEST 91-456-R 

BEFORE: Holen, Chairman; Backley,-·Doyle and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

This contest proceeding arises under the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"). The sole 

issue is whether the striking employees of Cyprus Empire Corporation 

("Cyprus") were "miners" within the meaning of the Mine Act, for purposes of 

being entitled to have their previously designated walkaround representative 

accompany an inspector from the Department of Labor's Mine Safety and Health 

Administration ("MSHA") during a mine inspection. Commission Administrative 

Law Judge John J. Morris concluded that Cyprus' striking employees were not 

miners because they were not working in the mine at the time of the 

inspection. Consequently, he vacated two citations and an order of withdrawal 

alleging violations of section 103(f) of the Mine Act, 30 U.S.C. § 813(f), 

which authorizes designated walkaround representatives to accompany 

inspectors. Cyprus Empire Corp., 13 FMSHRC 1040 (June 199l)(ALJ). For the 

reasons set forth below, we affirm the judge's decision. 

I. 

Factual and Procedural Background 

The collective bargaining agreement between Cyprus and the United Mine 

\.Jorkers of America ("UMWA") at Cyprus' Eagle No. 5 Mine expired on May 12, 

1991. The parties failed to reach a new agreement and the miners, represented 

by the UMWA, went on strike the next day. Cyprus halted the production of 

coal but continued to operate the mine on a standby basis with management 

employees. Cyprus did not hire replacement workers. 

On May 30, 1991, while the strike was ongoing, MSHA Inspector Ervin St. 

Louis arrived at the mine to conduct a regular inspection under section 103(a) 

10 
of the Mine Act, 30 U.S.C. § 813(a). None of the miners' representatives 

previously des by the striking employees were at the mine or in the 

picket line on that day and Inspector St. Louis conducted his inspection 

without a miners' representative. At that time, he asked the mine manager 

whether Cyprus would permit one of the previously designated miners' 

representatives to act as a walkaround representative if such a request were 

made. Cyprus subsequently informed the MSHA district office that it would 

object to a UMWA walkaround representative. Thereafter, the miners then 

working at the mine, who were all management employees, selected James A. 

Shubin, a company safety inspector, to act as their representative for 

walkaround purposes. 

Inspector St. Louis returned to the mine on June 3, 1991, for the second 

day of his inspection, accompanied by Dean Carey, a striking employee who had 

previously been designated as a miners' representative under 30 C.F.R Part 40, 

and informed mine management that Carey wished to accompany him during his 

inspection. 1 Carey was a bargaining representative of the UMWA local and 

chairman of its safety committee, and had been a walkaround representative at 

the mine for nine years. All of the employees he represented were also on 

strike. 

Mine William Ivy discussed the matter with Inspector St. Louis 

and informed him that Cyprus refused to permit Carey or any other UMWAdesignated representative to act as a walkaround representative. Ivy told the 

inspector that Shubin had been selected as the representative of the miners 

currently working at the mine and that Cyprus would challenge any citations 

issued to it as a result of its refusal to allow Carey to act as a walkaround 

representative. 

Inspector St. Louis issued to Cyprus a citation under section 104(a) of 

the Hine Act, 30 U.S.C. § 814(a), alleging a violation of section 103(f) of 

·the Act. 2 Section l03(f), entitled "Participation of representatives of 

operators and miners in inspections," states, in pertinent part: 

1 

section 

2 

30 C.F.R. Part 40 contains the Secretary's regulations implementing 

103( of the Act. 

The "condition or " section of the citation states: 

The representative of the miners requested at the mine 

office the right to accompany an MSHA authorized representative of the during an MSHA AAA inspection. 

Mine management refused entry to mine property. The miners 

are on strike and have pickets on the road to the mine 

outside of mine property. Mine management denied the 

representative of the miners entry on mine property to 

accompany the authorized representative during pre- inspection 

conference. 

Exh. S-1. 

ll 
Subject to regulations issued by the Secretary, 

a representative of the operator and a representative 

authorized by his miners shall be given the 

opportunity to accompany the Secretary or his 

authorized representative during the physical 

inspection of any coal or other mine pursuant to the 

provisions of subsection (a) of this section, for the 

purpose of aiding such inspection and to participate 

in pre- or post-inspection conferences held at the 

mine. Where there is no authorized miner 

representative, the Secretary or his authorized 

representative shall consult with a reasonable number 

of miners concerning matters of health and safety in 

such mine. 

30 u.s.c. § 813(f). 

Within an hour after issuance of this citation, Inspector St. Louis 

issued to Cyprus an order of withdrawal under section 104(b) of the Mine Act, 

30 U.S.C. § 814(b), for failure to abate the citation. 3 After issuing this 

order, St. Louis inspected the mine accompanied only by Shubin. 

The inspection continued the next day. When Cyprus again refused to 

admit Carey, the inspector issued another section 104(a) citation for a 

violation of section 104(b) of the Act. Inspector St. Louis completed his 

inspection accompanied only by Shubin. 

Cyprus filed notices of contest of the citations and order and an 

expedited hearing was held before Judge Morris on June 11, 1991. The UMWA 

intervened in the proceeding. Following an evidentiary hearing, the judge 

found that Cyprus had not violated section 103(f) of the Mine Act and vacated 

the citations and the order of withdrawal. 13 FMSHRC at 1049. The judge 

noted that the term "miner" is defined in section 3(g) of the Mine Act, 30 

U.S.C. § 802(g), as "any individual working in a coal or other mine" and that 

it is uncontroverted that "no union miners had worked underground since the 

strike had begun." 13 FMSHRC at 1047. 

The judge found that Cyprus' striking employees were not "working in a 

coal or other mine." 13 FMSHRC at 1049. He concluded that, because the 

Commission and Courts of Appeal have not "gone beyond the plain meaning of the 

statutory words in section 3(g)," Cyprus' striking employees did not qualify 

as miners under section 103(f). Id. The judge vacated the two citations and 

the order. The Commission granted the UMWA's petition for discretionary 

review. The Secretary did not seek review of Judge Morris' decision. 

3 Inspector St. Louis did not order the actual withdrawal of miners. The 

order stated that it was "a nonclosure order" that did not affect any area of 

the mine. Exh. S 2. 

12 
II. 

Disposition of Issues 

On review, the UMWA argues that the Commission should construe the 

term miner broadly to include employees who are on strike. Specifically, the 

UMWA contends that the strikers' previously designated walkaround 

representative should be entitled to accompany an MSHA inspector on an 

inspection during the strike. The UMWA maintains that, since strikers remain 

the employees of an operator, they should, by analogy, remain the miners of 

the operator. For the reasons stated below, we reject the UMWA's arguments 

and affirm the judge. 

The "primary dispositive source of information [about the meaning of 

statutory terms] is the wording of the statute itself." Wyoming Fuel, 14 

FMSHRC 1282, 1286 (August 1992). Neither party disputes that only miners are 

entitled to des a walkaround representative to accompany an MSHA 

inspector. Miner is defined in the Act as "any individual working in a coal 

or other mine." 30 U.S.C. § 802(g). The legislative histories of the Federal 

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

(1976) (amended 1977), and the MineJ~.ct provide no background to the language 

of this definition. Under the definition, an individual need not be an 

employee of an operator to qualify as a miner under the Mine Act. Likewise, 

an individual who is employed by a mine operator is not necessarily a miner 

under the Act unless he or she is working in a mine, as that term is defined 

in section 3(h). Thus, a person's status as a miner is determined not by the 

fact that he is employed by an operator, but rather by whether, as the statute 

provides, he works in a mine. 

While the issue in this case is one of first impression, the Commission, 

as noted by the judge, has previously examined the term "miner" in the 

context of training under section 115 of the Act, 30 U.S.C. § 825. 

Finding the section 3(g) definition of "miner" determinative, the Commission 

held that, for section 115 purposes, job applicants and former miners on 

did not qualify as "miners" under the Act and, hence, were not entitled 

to training rights under section 115. Emery Mining Corp., 5 FMSHRC 1391 

(August 1983), 783 F.2d 155 (lOth Cir. 1986)(job 

applicants); UMWA on behalf of James Rowe et al., etc. v. Peabody Coal Co., 7 

FMSHRC 1357 (September 1985), Secretary on behalf of I.B. Acton, et al. v. Jim 

7 FMSr*C 1348 (September 1985), aff'd sub nom. Brock v. 

822 F.2d 1134 (D.C. Cir. 1987) Secretary on behalf of Jerry 

Dale Aleshire et al. v. \.Jestmoreland Coal Co. , 11 FMSHRC 960 (June 

1989)(individuals on laidoff ). 

In the Commission reasoned: 

Underlying our holding is our belief that the 

Mine Act is not an employment statute. The Act's 

concerns are the health and the of the nation's 

miners. 

* * * * * * 

13 
We are not prepared to interpret the rights and 

obligations mandated by the Act through interpretation 

of a private contractual agreement unless required to 

do so by the Act itself. See Local Union No. 781. 

District 17. United Mine Workers of America v. Eastern 

Associated Coal Corp., 3 FMSHRC 1175, 1179 (May 1981). 

* * * * * * 

We recognize that under the National Labor Relations 

Act and the Railway Labor Act, statutes governing labormanagement relations, laid-off employees in general and 

laid-off employees with a right to reinstatement based upon 

seniority have been held to be entitled to certain rights 

granted by those acts .... However, these [principles] arise 

under statutes whose very purpose is the governance of 

labor-management relations .... The entirely discrete 

purpose of the Mine Act, and the nature of the rights 

granted by section 115, prevent us from transferring this 

reasoning to the Mine Act. 

7 FMSHRC at 1364-65. These same general principles apply in this case. 

There is no dispute that, for purposes of the National Labor Relations 

Act, 29 U.S.C. § 151 et seq. (1988) ("NLRA"), the strikers in this case were 

"employees" of Cyprus at the time of the inspection. Section 2(3) of the 

NLRA, 29 U.S.G. § 152(3), defines the term "employee" to include "any 

individual whose work has ceased as a consequence of, or in connection with, 

any current labor dispute or because of any unfair labor practice." In the 

Mine Act, however, which is the proper focus of our inquiry, Congress chose to 

define miners as individuals who work in a mine, rather than as employees of 

an operator. The Mine Act's defLnition of "miner" is not grounded in the 

rights of employees under the NLRA or under private collective bargaining 

agreements. See Peabody, 7 FMSHRC at 1364-65. We perceive no statutory 

warrant in the Mine Act for treating an operator's striking employees as 

"miners." 

The courts also have analyzed the Mine Act's definition of miner in the 

context of training rights. In National Industrial Sand Ass'n v. Marshall, 

601 F.2d 689, 704 (3rd Cir. 1979), a case involving challenges by operators to 

the Secretary's training regulations, the court stated that "the statute looks 

to whether one works in a mine, not whether one is an employee or nonemployee 

or whether one is involved in extraction or nonextraction activities." 

(emphasis in original). In Peabody, the D.C. Circuit, in affirming the 

Commission, held that laid-off individuals are not miners for purposes of the 

training rights granted under section 115 of the Act because such individuals 

are not working in a mine, exposed to the hazards of mining, or employed by a 

mine operator. 822 F.2d at 1147-49. Finally, in Emery Mining, the court held 

that individuals who had obtained safety training at their own expense in 

order to be eligible for employment by the operator were not entitled to 

compensation for such training because they were not miners as defined in the 

Act. 783 F.2d at 157-59. These decisions are consistent with the result we 

14 
reach herein. 

The UMWA argues that the Commission must defer to the Secretary's 

interpretation of the term "miner" as applied to walkaround The 

Secretary's analogous construction of the term "miner," however, was rejected 

as unreasonable by the Peabody court. 822 F.2d at 1151. Moreover, the 

Secretary has not appealed the judge's adverse decision in the present case or 

otherwise in this appeal. She may well have abandoned her 

position that striking miners have the right under section l03(f) to designate 

a walkaround representative. In any event, the wording of the statute sets 

forth Congress' intent as to the definition of "miner." Even if there were 

remaining ambiguity, the Secretary has presented no position to which the 

Commission could accord weight. 

Contrary to the contentions of the UMWA (UMWA Br. at 4-5), the right of 

miners to refuse to work in the face of hazardous conditions, as set forth in 

section l05(c) of the Act, 30 U.S.C. § 815(c), and to file for compensation 

under section 111, 30 U.S.C. § 821, will not be affected by our affirmance of 

the judge's decision. Miners do nq.t: lose their status as miners by exercising 

their right under the Mine Act to refuse to work in the face of hazardous 

conditions or their right to compensation when they are withdrawn from the 

mine by order of the Secretary. These are rights specifically provided under 

the Mine Act. The term "miner" must be interpreted in the context of the 

particular Mine Act section in which it appears in order to effectuate the 

safety purposes of each section. Furthermore, the safety purposes of section 

103(f) were not dimished in this instance because the striking employees were 

not exposed to the hazards of mining and, thus, did not require a walkaround 

representative. Those miners who were working in the mine at the time were 

represented by their chosen walkaround representative. When striking~ 

employees return to work, they once again have the right to designate a 

walkaround representative. If they believe that violations or imminent 

dangers exist, their representative can "obtain an immediate inspection by 

giving notice to the or his representative of such violation[s] or 

danger[s]" under section 103(g)(l), 30 U.S.C. § 813(g)(l). 

In conclusion, we hold that the striking employees of Cyprus were not 

entitled to have their previously designated walkaround representative 

accompany the MSHA inspector during his inspection of the mine. 

15 
III. 

Conclusion 

For the foregoing reasons, we 

Arlene Holen, Chairman 

Joyce A. Doyle~Dfllissione 1 

I ! , 

vll_l~ 

L'. Clair Nelson, Commissioner 

Distribution 

Mary Lu Jordan, Esq. 

United Mine Workers of America 

900 15th St., N.W. 

Washington, D.C. 20005 

R. Moore, 

Buchanan Ingersoll 

58th Floor 

600 Grant Street 

Pittsburgh, PA 15219 

Christian Schuman, 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Administrative Law Judge John Harris 

Federal Mine Safety & Health Review Commission 

280 Federal Bldg. 

1244 Speer Blvd~ 

Denver, CO 80204 

16 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1 Oth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 4 1993 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. WEVA 92-749 

Petitioner A. c. No. 46-01437-03770 

v. 

McElroy Mine 

MCELROY COAL COMPANY, 

Respondent 

DECISION 

Appearances: Patrick L. DePace, Esq., Office of the Solicitor, 

u. s. Department of Labor, Arlington, Virginia, for 

the Secretary; 

Daniel E. Rogers, Esq., CONSOL, Inc., Pittsburgh, 

Pennsylvania, for Respondent. 

Before: Judge Maurer 

STATEMENT OF THE CASE 

In this docket, the Secretary of Labor seeks a civil penalty 

of $1300 for a single alleged violation of 30 C.F.R. § 75.403 

cited in section l04(d) (2) Order No. 3331715. Pursuant to 

notice, a hearing was held on the alleged violation in Wheeling, 

West Virginiau on September 9v 1992. Both parties have filed 

posthearing briefsv which I have duly considered in making the 

following decision. 

STIPULATIONS 

The parties stipulated to the following, which I accepted 

Tr. 6-8) ~ 

:. McElroy Coal Company is the operator of the McElroy 

Mineu which is the subject of this proceeding. 

2. Operations at the McElroy Mine are subject to the Mine 

Safety and Health Act. 

3. The undersigned Administrative Law Judge has 

jurisdiction to decide this case. 

17 
4. MSHA Inspector Charles J. Hall was acting in an official 

capacity as a duly authorized representative of the Secretary of 

Labor when he issued Order No. 3331715 on October 31, 1991. 

5. A true copy of Order No. 3331715 was properly served on 

the operator. 

6. The proposed penalty will not adversely affect 

respondent's ability to continue in business. 

7. Respondent is a large operator and has an average 

history of prior violations for a mine operator of its size. 

DISCUSSION 

Section 104{d) (2) Order No. 3331715 was issued by MSHA 

Inspector Charles J. Hall on October 31, 1991. The inspector 

cited a violation of the mandatory safety standard found at 

30 C.F.R. § 75.403 1 and the q!ted condition or practice is 

described as follows: 

The floor of the numbers 1, 2 and 3 entries and 

connecting crosscuts in the 8 left off 4 south section 

was not adequately rock dusted in the following 

locations. The No. 2 {intake) entry from plus 35+50 to 

39+50, a distance of 400 feet. No. 1 entry '(return) 

from 34+50 to 38+50, a distance of 400 feet. No. 3 

entry (intake) from 35+20 to 39+50, a distance of 

430 feet. Eight rock dust samples were collected to 

substantiate this order. This was unwarrantable on 

part of the operator because the section foreman should 

have observed the black bottom area throughout the 

section" From 10-1-90 to 10-1-91, there have been 

41 violations of 75.400 cited at this mine. 

1/ 30 C.F.R. § 75.403, entitled "Maintenance of incombustible content of rock dust, 91 provides in pertinent part: 

Where rock dust is required to be applied, it shall be 

distributed upon the top, floor, and sides of all 

underground areas of a coal mine and maintained in such 

quantities that the incombustible content of the 

combined coal dust, rock dust, and other dust shall be 

not less than 65 per centum, but the incombustible 

content in the return aircourses shall be no less than 

80 per centum. . • • 

18 
On October 31, 1991, Inspector Hall was conducting a weekly 

ABC spot inspection of respondent's McElroy Mine. Such an 

inspection is required for all mines which, on average, liberate 

more than one million cubic feet of methane gas within a 24 hour 

period, and McElroy Mine is such a mine. He was accompanied that 

day by Thomas Stern, a union safety committeeman, Thorn Biega, a 

company safety inspector and training instructor, and also a 

regional safety inspector for the company, Pat Korsnick. 

Inspector Hall observed that the floor of the mine in the 

cited areas was black, indicating to him that the area had not 

been adequately rock dusted. Mr. Stern corroborated the 

inspector's testimony that the floor of the cited areas was 

black. Various witnesses presented by the operator testified 

that the floor in the cited areas was grey, not black, and that 

these areas were adequately rock dusted. However, these 

witnesses also acknowledged that certain places in the cited 

areas were not adequately rock dusted. Section Foreman Corley 

testified that the No. 3 entr,Ydidrteed dusting, and that he had 

planned to rock dust that area prior to the issuance of the order 

by Inspector Hall. In addition, Thorn Biega, a safety inspector 

for the respondent, acknowledged that there were several areas in 

the No. 2 entry which needed to be rock dusted. Finally, Jim 

Siko, Superintendent of the McElroy Mine, admitted that prior to 

abatement of the order issued by Inspector Hall, rock dusting was 

needed in at least one area in the No. 1 entry. It should also 

be noted that it is undisputed that the areas which Inspector 

Hall cited were in an active area of the mine. 

Opinion evidence aside, Inspector Hall also obtained eight 

spot samples off the floor throughout the cited areas, using a 

so-called rock dust kit. He used a scoop, 6 inches long and 

inches wide to collect the dust. The technique he used was to 

scoop down an inch deep and from rib to rib across the floor, to 

collect the accumulated dust mixture. He acknowledges that in 

scooping up the sample, he had to avoid wet material because it 

would not go through the 20 mesh screen that is used to strain 

out lumps of coal and rock. 

After the samples were collected, they were secured in 

separate plastic bags and each individually collected sample was 

marked with an identification tag. Inspector Hall then placed 

the eight plastic bags into a larger canvas bag, which he then 

inadvertently left in Mr. Biega's office when he left the mine 

that day. The samples were returned to Inspector Hall by another 

MSHA inspector who visited the McElroy Mine early the following 

week. Although the samples were·left unattended at the mine site 

19 
over a weekend, when they were returned to Inspector Hall, they 

were in the same condition as when he had placed them in 

Mr. Biega's office. He then prepared and sent the samples to the 

MSHA laboratory at Mt. Hope, West Virginia for analysis. 

Results from the laboratory analysis of the samples 

collected and submitted by Inspector Hall revealed the following: 

SAMPLE NO. 

1 

2 

3 

4 

5 

6 

7 

8 

INCOMBUSTIBLE CONTENT 

41% 

46% 

37% 

48% 

43% 

32% 

29% 

24% 

None of the samples collected were in compliance with the 

requirements of 30 C.F.R. § 75.403 because the incombustible 

content of the material collected in each sample was below 

65 percent. Furthermore, the samples taken by Inspector Hall in 

the No. 1 return (Sample Nos. 4 and 5) were further out of 

compliance inasmuch as the regulation requires that the 

incombustible content in the return entry shall be at least 

80 percent. 

Inspector Hall further opined that these eight samples 

provided a representative sample of the dry material on the mine 

floor in the cited area. Mr. Stern again concurs with the 

inspector 1 s opinion. Respondent, on the other hand, objects to 

methodology of the inspectorgs sampling technique. 

Respondent alleges that the material in the dust samples 

lected by Inspector Hall were selectively, rather than 

randomly, chosen for collection based upon Inspector Hall's 

judgment as to whether certain areas were too wet to sample. Wet 

material was admittedly intentionally excluded by Inspector Hall 

from the materials he collected for sampling because it would not 

go through the mesh screen. But, I note that any wet material 

would very likely contain the identical percentage of combustible 

content as dry material adjacent to it as soon as it dried out, 

which it would subjected to heat and flame. 

20 
In any event, it is well settled by Commission precedent 

that accumulations of coal and coal dust, even when wet or damp, 

are combustible, and do pose an explosion or ignition hazard if 

an ignition source is present. Utah Power and Light Company v. 

Secretary of Labor, 12 FMSHRC 965, 969, (May 1990); Black Diamond 

Coal Mining Company, 7 FMSHRC 1117, 1120-1121 (August 1985). 

Respondent also objects because Inspector Hall took none of 

the eight samples he did take from the roof or ribs in the cited 

area, but I note that band sampling of an entry is not required. 

An administrative appellate decision with respect to this 

issue can be found at North American Coal Corporation, 

1 MSHC 1130, 1134 (1974). It is a decision of the Interior Board 

of Mine Operations Appeals, the predecessor to the Federal Mine 

Safety and Health Review Commission in which the Board held: 

With respect to Order 3 TJD, August 16, 1971; 1 JF, 

September 3, 1971, and 1 TJD, September 16, 19'71, North 

American challenges the f1hdings of violation on the 

ground that the samples relied on reflected only the 

incombustible content of the floor. North American 

urges that the samples should have reflected the 

combined incombustible content of the roof and ribs, as 

well as the floor, at the cited locations. 

Section 304(d) 2 was designed to prevent the occurrence 

of conditions which could lead to a fire, or still 

worse, an explosion. The floor samples in the instant 

case, falling as they.did within the proscribed area 

indicated a dangerous condition because a spark might 

very well have led to at least a fire. We hold 

therefore that a floor sample standing alone may be the 

basis of a finding that a section 304(d) violation has 

occurred. 

Therefore, I find the sample collected by Inspector Hall 

provided a representative sample of the conditions of the floor 

in the cited areas because they were collected in eight widely 

scattered locations throughout the cited areas and because his 

collection methods were allowable, reasonable, and produced a 

reliable and representative result. 

2/ Section 304(d) of the 1969 Coal Act is identical in 

language to 30 C.F.R. § 75.403. 

21 
Inspector Hall also determined that the violation for which 

he issued Order No. 3331715 was significant and substantial 

(S&S); because the area cited was a very large, active area of 

the mine, there was electrical equipment operating in the area 

which could provide an ignition source, and the mine is gaseous. 

A "S&S'' 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 825 

(April 1981). 

In Mathies Coal Co., 6 fMSHRC 1, 3-4 (January 1984), the 

Commission explained its interpretation of the term "significant 

and substantial" as follows: 

In order to establish that a violation of a mandatory 

safety standard is significant and substantial under 

National Gypsum the Secretary of Labor must prove: 

(1) the underlying violation of a mandatory safety 

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

measure of danger to safety--contributed to by the 

violation; (3) a reasonable likelihood that the hazard 

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

reasonable likelihood that the injury in question will 

be of a reasonably serious nature. 

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

2129 (August 1985), the Commission stated further as follows~ 

We have explained further that the third element of the 

Mathies formula ~requires that the Secretary establish 

a reasonable likelihood that the hazard contributed to 

will result in an event in which there is an injury. 00 

U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August 

1984). We have emphasized that, in accordance with the 

language of section 104(d) (1), it is the contribution 

of a violation to the cause and effect of a hazard that 

must be significant and substantial. u.s. Steel Mining 

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

Steel Mining Company, Inc., 6 FMSHRC 1573, 1574-75 

(July 1984). 

22 
Government Exhibit No. 4, the Dust Sampling Lab Report, by 

itself, establishes that the eight dust samples submitted had 

incombustible contents less then the required percentages by a 

substantial margin in each instance. This evidence, alone, 

without more, establishes a violation of 30 C.F.R. § 75.403 to my 

satisfaction. 

The area which Inspector Hall observed as being inadequately 

rock dusted totalled approximately 1800-1900 linear feet of mine 

floor located within the three entries and various crosscuts 

constituting the Eight Left off Four South section of the mine. 

At the time the order was issued, respondent was producing coal 

and roof bolting in the cited area. This activity involved 

several pieces of mining equipment which could have provided an 

ignition source. This mine is also a gaseous mine which 

liberates more than one million cubic feet of methane in a 

24 hour period. The presence of methane at these levels 

increases the hazard created by inadequate rock dusting in that 

any ignition or explosion and resultant fire could be spread more 

quickly and become a very serlous incident/accident. 

Because the cited area which was inadequately rock dusted 

was active and a relatively large area which also contained 

multiple ignition sources, in addition to potentially high levels 

of methane, it was at least reasonably likely that in the course 

of normal continued mining operations, a serious injury resulting 

in lost workdays or restricted duty would occur. 

In the event an ignition occurred, the loose coal and coal 

dust which had not been properly neutralized by rock dust could 

contribute to the hazard of fire or further explosion or at least 

propagate the results of an otherwise unrelated explosion andjor 

fire which could in turn spread throughout and even beyond the 

cited areaso Consequentlyr the individuals working in the area 

could be burned 0 overcome by smoke or seriously injured by the 

force of the explosion. I therefore conclude that the violation 

was S&S. 

The Secretary also urges that I find this S&S violation to 

be an ouunwarrantable failure. ug 

The Commission has held that an 11 unwarrantable failure" to 

comply with a mandatory standard means "aggravated conduct, 

constituting more than ordinary negligence, by a mine operator in 

relation to a violation of the Act." Emery Mining Corporation, 

9 FMSHRC 1997 (December 1987); Youghiogheny & Ohio Coal Company, 

23 
9 FMSHRC 2007 {December 1987); Secretary of 

Mining Company, 10 FMSHRC 249 (March 1988). 

prior holding in the Emery Mining case, the 

follows in Youghiogheny & Ohio, at 9 FMSHRC 

Labor v. Rushton 

Referring to its 

Commission stated 

2010: 

We stated that whereas negligence is conduct that is 

"inadvertent," "thoughtless" or "inattentive," 

unwarrantable conduct is conduct that is described as 

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

unwarrantable failure by a mine operator as aggravated 

conduct constituting more than ordinary negligence, do 

unwarrantable failure sanctions assume their intended 

distinct place in the Act's enforcement scheme. 

as 

I concur with the inspector that the violation occurred as a 

result of a high degree of negligence on the part of respondent 

as the conditions were readily observable and because it is 

undisputed that Inspector Hall had personally discussed proper 

rock dusting procedures with mine management on several previous 

occasions. , · 

Inspector Hall testified that the floor was black in the 

cited areas. The Union Safety Committeeman, Mr. Stern, also 

testified that it was obvious upon entering the cited area that 

the floor was black-- "real black" (Tr. 123). And he also 

confirmed that no rock dusting had been done on the floor in 

these areas. Moreover, there was no rock dust beneath the 

surface according to this witness. 

As I noted above, Inspector Hall has discussed rock dusting 

requirements previously with management officials at the mine, 

including Mr" Corley, the section foreman on the cited section. 

Mr" Stern also has had discussions with mine icials concerning 

~ock dusting practices. Additional f the company has been cited 

for failing to adequately rock dust on a number of previous 

occasions, and Mr. Stern reports that he has personally been 

prevented from adequately rock dusting on occasion. 

The obviousness of the condition visually combined with ·the 

laboratory results on the analysis of the samples taken by 

Inspector Hall demonstrate to me that the operator was way out 

compliance with the cited mandatory standard and should have 

known that these cited areas were not adequately rock dusted. In 

additionu the prior discussions and previously issued citations 

should have alerted the company to the need for heightened 

scrutiny to assure compliance. consequently, the company's 

failure to heed the warnings given them through discussions and 

previous citations, as well as the failure to correct an 

obviously violative condition, combined with the results of the 

24 
laboratory analysis, which showed that the conditions were far 

out of compliance, establish that the company's action was 

clearly the result of aggravated conduct indicating an 

unwarrantable failure to comply with the cited mandatory safety 

standard. 

With regard to the assessment of a civil penalty for the 

violation, respondent has an average history of violations, is a 

large operator, and demonstrated good faith by promptly abating 

the violation at bar. Furthermore, as more fully discussed 

above, I concur in the inspector's high negligence and "S&S" 

findings. I also find the violation to be a serious one. 

On the basis of the foregoing findings and conclusions, and 

taking into account the six statutory civil penalty assessment 

criteria found in section 110(i) of the Act, I conclude and find 

that a civil penalty of $1300 is reasonable and appropriate. 

,ORDER 

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

IT IS ORDERED THAT: 

1. Section 104(d) (2) Order No. 3331715 IS AFFIRMED. 

2. McElroy Coal Company is ORDERED TO PAY the sum of $1300 

within 30 days of the date of this decision as a civil penalty 

for the violation found herein. 

&~~- AdmiiJstfative Law Judge 

Distribution~ 

Lo DePace 9 Esqo 9 Office of the Solicitorv 

uo So Department of Labor, 4015 Wilson Boulevard, Room 516, 

Arlington, VA 22203 (Certified Mail) 

Eo Rogers; Esq. 9 CONSOLv Inc. 9 Consol Plaza, 

1800 Washington Road, Pittsburgh, PA 15241-1421 (Certified Mail) 

dcp 

25 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

(303) 844-5266/FAX (303) 844-5268 

JAN 5 1993 

HOMESTAKE MINING COMPANY, 

Contestant, 

CONTEST PROCEEDINGS 

v. 

Docket No. CENT 91-217-RM 

Citation No. 2653241; 8/8/91 

Homestake Mine 

Docket No. CENT 91-226-RM 

Order No. 2653196; 8/23/91 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINIS'rRATION (MSHA) 

Respondent 

Lead Mine 

Mine I.D. 39-00055 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. CENT 92-344-M 

A.C. No. 39-00055-05681 

v. 

Homestake Mine - Lead 

HOMESTAKE MINING COMPANY OF 

CALIFORNIA, 

Appearancesg 

Beforeg 

Respondent 

AMENDED DECISION 

Henry Chajet 0 Esq. 0 Ann Simmons, Esq., JACKSON & 

KELLY, Washington~ DC, 

for Contestant/Respondent; 

Robert J. Murphy, Esq., Kristi Floyd, Esq., Office 

of the Solicitor, U.S. Department of Labor 1 

Denver, Colorado, 

for Respondent/Petitioner; 

Gene Ruff, President, Local 7044 1 United Steelworkers of America, Lead, South Dakota, 

for United Steelworkers of America. 

Judge Morris 

These consolidated cases are contest proceedings and a civil 

penalty proceeding arising pursuant to the Federal Mine Safety 

26 
and Health Act of 1977, 30 u.s.c. S 801, et ~(the "Act"). 

The civil penalty proceeding herein is for the alleged violations 

of mandatory regulations enacted pursuant to the Act. 

An expedited hearing commenced in Docket No. CENT 91-217-RM 

on September 17, 1991. At the hearing held in Denver, Colorado, 

the United steelworkers of America were granted leave to 

intervene. 

After an extensive conference, Contestant Homestake Mining 

Company of California ("Homestake") was granted leave to withdraw 

its motion for an expedited hearing. The case was further stayed 

until the Secretary proposed a civil penalty. 

On November 5, 1991, the Judge vacated Closure Order No. 

3630266. 

On July 16, 1992, Docket Nos. CENT 91-217-RM and CENT 91-

226-RM were consolidated. 

On October 21, 1992, Docket No. CENT 92-344-M was assigned 

to the Presiding Judge. 

On October 27, 1992, Docket Nos. CENT 91-217-RM, CENT 91-

226-RM, and CENT 92-344-M were consolidated. 

On November 6, 1992, a settlement motion, executed by Contestant and Secretary, was filed. The motion was also served on 

Cathy M. Dupree, the Miners' Representative of Homestake Mining 

Company. 

No objection has been filed to the settlement motion" 

In support of the motion, Contestant and Secretary state as follows~ 

order No. 3909125 

(a) A section 104(g) (1) 

Homestake by the Secretary on 

tion of 30 C.F.Ro § 48.7(c). 

penalty of $20,000. 

Order No. 3909125 was issued to 

March 25, 1991, alleging a violaThis order was later assessed a 

On the basis of information supplied by Homestake, the 

Secretary agreed to reduce the proposed penalty on this Order 

from $20,000 to $10,000. 

27 
Citation No. 3909122 

{b) A Section 104{a) Citation No. 3909122 was issued to 

Homestake by the Secretary on March 16, 1992, alleging a violation of 30 C.P.R. § 57.14205. This order was later assessed a 

penalty of $9,000. 

On the basis of information supplied by Homestake, the 

Secretary agreed to reduce the proposed civil penalty on this 

Citation from $9,000 to $6,000. 

Citation No. 3901926 

(c) A Section 104(a) Citation No. 3909126 was issued to 

Homestake by the Secretary on Mary 25, 1991, alleging a violation 

of 30 C.P.R. § 48.7(c). Thi~ Citation was later assessed a penalty of $20,000. · 

On the basis of information supplied by Homestake, the 

Secretary agreed to reduce the proposed civil penalty on this 

Citation from $20,000 to $15,000. 

I have reviewed the proposed settlement and I find it is 

reasonable and in the public interest. It should be approved. 

ORDER 

The stay of proceeding is LIFTED. 

2. The settlement agreement is APPROVED. 

3. Order No. 3909125 and the amended penalty of $10,000 

are AFFIRMED. 

4. citation No. 3909122 and the amended penalty of $6,000 

are AFFIRMED. 

5. Citation No. 3901926 and the amended penalty of $15,000 

are AFFIRMED. 

6. Contestant/Respondent Homestake Mining Company is 

ORDERED TO PAY to the Secretary of Labor the sum of $31,000 

within 40 days of the date of this amended decision. 

28 
7. Contest proceedings CENT 91-217-RM and ·cENT 91-226-RM 

are DISMISSED. 

Law Judge 

Distribution: 

Henry Chajet, Esq., Mark N. Savit, Esq., JACKSON & KELLY, 1701 

Pennsylvania Avenue, NW, Suite 650, Washington, DC 20006 

(Certified Mail) 

Ms. Cathy 'M. Dupree, Miners 9 Representative, Mr. Gene Ruff! 

Presidentu Local 7044p United Steelworkers of America, cjo 

HOMESTAKE MINING COMPANY OF CALIFORNIA, 215 West Main Street, 

P.O. Box 875, Lead, SD 57754-1603 (Certified Mail 

Robert J. Murphy Esq. 1 Kristi Floyd, Esq., Office of the Solicitor, u.s. Department of Labor, 1585 Federal Office Building, 

1961 stout Street, Denver, Colorado 80294 (Certified Mail) 

ek 

29 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

(303) 844-5266/FAX (303) 844-5268 

January 28, 1993 

HOMESTAKE 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. 

HOMESTAKE MINING COMPANY OF 

CALIFORNIA, 

Respondent 

and 

UNITED STEELWORKERS OF 

AMERICA, LOCAL 7044, 

Intervenor 

: 

. . 

: 

CONTEST PROCEEDINGS 

Docket No. CENT 91-217-RM 

citation No. 2653241; 8/8/91 

Homestake Mine 

Docket No. CENT 91-226-RM 

Order No. 2653196; 8/23/91 

Lead Mine 

Mine I.D. 39-00055 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 92-344-M 

A.C. No. 39-00055-05681 

Homestake Mine - Lead 

AMENDED DECISION 

~ppearances~ 

Before: 

Henry Chajet, Esq., G. Lindsay Simmons 1 Esq., 

JACKSON & KELLY, Washington, D.C. 5 

for Contestant/Respondent; 

Robert J. Murphy, Esq., Kristi Floyd, Esq., Office 

of the Solicitor, u.s. Department of Labor, 

Denver, Colorado, 

for Respondent/Petitioner; 

Gene Ruff, President, Local 7044, United Steelworkers of America, Lead, South Dakota, 

for United Steelworkers of America. 

Judge Morris 

30 
These consolidated cases are contest proceedings and a civil 

penalty proceeding arising pursuant to the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. S 801, et ~ (the "Act"). 

The civil penalty proceeding herein is for the alleged violations 

of mandatory regulations enacted pursuant to the Act. 

An expedited hearing commenced in Docket No. CENT 91-217-RM 

on September 17, 1991. At the hearing held in Denver, Colorado, 

the United Steelworkers of America were granted leave to 

intervene. 

After an extensive conference, Contestant Homestake Mining 

Company of California ("Homestake") was granted leave to withdraw 

motion for an expedited hearing. The case was further stayed 

until the Secretary proposed a civil penalty. 

On November 5, 1991, the Judge vacated Closure Order No. 

3630266. 

On July 16, 1992, Docket Nos. CENT 91-217-RM and CENT 91-

226-RM were consolidated. 

On October 21, 1992, Docket No. CENT 92-344-M was assigned 

to the Presiding Judge. 

On October 27, 1992, Docket Nos. CENT 91-217-RM, CENT 91-

226-RM, and CENT 92-344-M were consolidated. 

On November 6, 1992, a settlement motion, executed by Contestant and Secretary, was filed. The motion was also served on 

Cathy M. Dupree, the Miners' Representative of Homestake Mining 

Company. 

No objection has been fi to the settlement motion. 

In support of the motion, Contestant and Secretary state as 

follows~ 

Order NOn 3909125 

a) A section 104(g) (1) 

Homestake by the Secretary on 

tion of 30 C.F.R. § 48.7(c). 

penalty of $20,000. 

Order No. 3909125 was issued to 

March 25 1 1991, alleging a violaThis order was later assessed a 

On the basis of information supplied by Homestake, the 

Secretary .agreed to reduce the proposed penalty on this Order 

from $20,000 to $10,000. 

31 
citation No. 3909122 

(b) A Section 104(a) Citation No. 3909122 was issued to 

Homestake by the Secretary on March 16, 1992, alleging a violation of 30 C.F.R. § 57.14205. This order was later assessed a 

penalty of $9,000. 

On the basis of information supplied by Homestake, the 

Secretary agreed to reduce the proposed civil penalty on this 

Citation from $9,000 to $6,000. 

Citation No. 3901926 

(c) A Section 104(a) Citation No. 3909126 was issued to 

Homestake by the Secretary on May 25, 1991, alleging a violation 

of 30 C.F.R. § 48.7(c). Thi,s citation was later assessed a penalty of $20,000. 

On the basis of information supplied by Homestake, the 

Secretary agreed to reduce the proposed civil penalty on this 

Citation from $20,000 to $15,000. 

citation and Order No. 2653196 

(d) A section 104(a)/107{a) Citation and Order No. 2653196 

were issued to Homestake on August 23, 1991, alleging a violation 

of 30 CoFoR. § 57.1410l(a) (3)o The Citation and Order were later 

assessed with a penalty of $20 OOOo 

On the basis of information supplied by Homestake, the Secretary agreed to reduce the proposed penalty from $20,000 to 

$15u000o 

I have reviewed the proposed settlement and I find it is 

reasonable and in the public interest. It should be approved. 

ORDER 

1. The stay of proceeding is LIFTED. 

2. ·The settlement agreement is APPROVED. 

3. Order No. 3909125 and the amended penalty of $10,000 

are AFFIRMED. 

32 
4. Citation No. 3909122 and the amended penalty of $6,000 

are AFFIRMED. 

5 .. Citation No. 3901926 and the amended penalty of $15,000 

are AFFIRMED. 

6. Citation/Order No. 2653196 and the amended penalty of 

$15,000 are AFFIRMED. 

7. Contestant/Respondent Homestake Mining Company is 

ORDERED TO PAY to the Secretary of Labor the sum of $46,000 

within 40 days of the date of this amended decision. 

8. Contest proceedings CENT 91-217-RM and CENT 91-226-RM 

are DISMISSED. 

Law Judge 

Distribution~ 

Henry Chajetu Esq.u Mark N. Savit 1 Esq., JACKSON & KELLY, 2401 

Pennsylvania Avenue, NW, Suite 650, Washington, DC 20037 

(Certified Mail) 

Ms. Cathy M. Dupree, Minersu Representative, Mr. Gene Ruff, 

President, Local 7044, United Steelworkers of America, cjo 

HOMESTAKE MINING COMPANY OF CALIFORNIA, 215 West Main Street, 

P.O. Box 875, Lead, SD 57754-1603 (Certified Mail) 

Robert J. Murphy, Esq., Kristi Floyd, Esq., Office of the Solicitor, U."S. Department of Labor, 1585 Federal Office Building, 

1961 Stout Street, Denver, Colorado 80294 (Certified Mail) 

ek 

33 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH fLOOR 

WASHINGTON. D.C. 20006 

January 5, 1993 

SECRETARY OF LABOR, . . CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. WEVA 92-884 

A. C. No. 46-01455-03886 

v. Osage No. 3 Mine 

CONSOLIDATION COAL COMPANY, 

Respondent 

DECISION 

Appearances: Roberts. Wil~on, Esq., Office of the Solicitor 

u. s. Department of.Labor, Arlington, Virginia, 

for Petitioner; 

Before: 

Daniel E. Rogers, Esq., Consolidation Coal 

Company, Pittsburgh, Pennsylvania, for 

Respondent .. 

Judge Merlin 

This case is a petition for the assessment of civil penalties filed by the Secretary of Labor against Consolidation Coal 

Company under section 110 of the Federal Mine Safety and Health 

Act of 1977 1 30 u.s.c. § 820. 

Order Nos. 3716170p 3716171" and 3716172 were issued pursusection 104(d) (2} of the Actf 30 u.s.c. § 814(d) (2)Q for 

leged violations of 30 C.F.R. § 75.1105. A hearing was held on 

November 16, 1992, the transcript has been received and the 

parties have filed post hearing briefs. 

Section 104 (d) of ·the Actp supra, provides as follows~ 

(d) (1) Ifu upon any inspection of a coal or 

other mineu 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 cause 

by an unwarrantable failure of such operator to 

comply wi~h such mandatory health or safety standards, he shall include such finding in any cita34 
tion 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. 

(2) If a withdrawal order with respect to any 

area in a coal or other mine has been issued pursuant to paragraph (1), a withdrawal order shall 

promptly be issued by an authorized representative 

of the Secretary who finds upon any subsequent 

inspection the existence in such mine of violations similar to those that resulted in the issuance of the withdrawal order under paragraph (1) 

until such time as an inspection of such mine 

discloses no similar violations. Following an 

inspection of such mine which discloses no similar 

violations, the provisions of paragraph (1) shall 

again be applicable to that mine. 

30 C.F.R. § 75.1105, which restates section 311(c) of the 

Act, 30 U.S.C. § 871{c) sets forth the following: 

Underground transformer stations~ batterycharging stations, substations, compressor stations, shops, and permanent pumps shall be housed 

in fireproof structures or areas. Air currents 

used to ventilate structures or areas enclosing 

electrical installations shall be coursed directly 

into the return. Other underground structures 

installed in a coal mine as the secretary may 

prescribe shall be of fire proof construction. 

Order No. 3716170 dated August 27, 1991, and challenged 

herein, charges a violation for the following alleged condition 

or practice: 

The #17 thro mor pump operating at #24 block 

along the 15 south haulage is not ventilated with 

a current of air that is coursed directly to the 

return. The 1011 vent tube provided has fallen 

down and separated 3 different places on the other 

35 
side of the 15 south escapeway and the air current 

at this location is leaking into the escapeway as 

cited on citation #3716169. 

When this area was traveled on 8-8-91 this 

same vent tube was found to be leaking and in need 

of extra support. The condition was discussed 

with the company representative at that time. The 

company has failed to take adequate measures to 

prevent this condition from occurring even though 

they had knowledge of the area and condition. 

This is a repeat violation of standard 

75.1105, as 11 citations were issued for violations of 75.1105 during the last quarters (sic} 

inspection and this is the 3rd time this quarter 

that 75.1105 has been cited. 

The problems o.Lthe. fire proofing and ventilation of the electrical installations at this 

mines (sic) were discussed at length with 

management at both the last quarter close out and 

R.V.R.P. meeting. 

Two other orders (#3716171 and #3716172) were 

issued today for similar conditions at other electrical installations inspected. 

Order No. 3716171 dated August 27, 1991, also challenged 

herein, charges a violation for the following alleged condition 

or practice: 

The #20 thro mor pump located at #27 block 

along the 15 south haulage is not ventilated with 

a current of air that is coursed directly to the 

return. The 10" vent tube used to ventilate this 

pump has fallen down in the intake escapeway so 

that any smoke from a fire on this pump would 

polute {sic) both the track and escapewayo 

The vent tube has not been knocked down by 

fallen material or any abnormal roof condition but 

looks as if the support wires have rusted and the 

spads pulled out of the head coal. 

This is a repeat violation of standard 

75.1105, as 11 citations were issued for violations of 75.1105 during the last quarters (sic) 

inspection and this is the 4th time this quarter 

that 75.1105 has been cited on the electrical 

installations. 

36 
Two other orders (#3716170 and #3716172) were 

issued today for similar conditions at other electrical installations inspected. 

The problems of the fire proofing and ventilation of the electrical installations at this 

mines '(sic) were discussed at length with management at both the last quarter close out and 

R.V.R.P. meeting, and the company has failed to 

take adequate steps to correct their problem. 

Order No. 3716172 dated August 27, 1991, similarly challenged herein, charges a violation for the following alleged 

condition or practice: 

The #160 rectifier located at #29 block of 

the 15 south haulage is not ventilated with a 

current of air that is coursed directly to the 

return. 

When tested no air is being pulled into the 

vent tube provided in the area and air is leaking 

from the area into the track entry thru (sic) 

holes in the frontwall. After examination the 

vent tube was found to be down in the old belt 

entry so that smoke from a fire on this rectifier 

would quickly polute (sic) both the track and belt 

air used to ventilate the 6 Butt and 7 Butt sections. 

The vent tube does not look to have been torn 

down by abnormal roof conditions but looks to have 

down because of rusty wires and spads that 

pulled out of the top. 

This is a repeat violation of 75.1105, as 11 

citations were issued for violations of 75.1105 

during the last quarters (sic) inspection and this 

is the 5th time this quarter that 75.1105 has been 

cited on the electrical installations. 

Two other orders (#3716170 and #3716171) were 

issued today for similar conditions at other electrical installations inspected. 

The problems of the fire proofing and ventilation of the electrical installations at this 

mines (sic) were discussed at length with management at the last quarter close out and R.V.R.P. 

meeting and the company has failed to take adequate steps to correct their problem. 

37 
The inspector found that the foregoing violations were 

significant and substantial and that they resulted from an 

unwarrantable failure on the part of the operator. 

Prior to going on the record, the parties agreed to the 

following stipulations (Tr. 4-6): 

(1) the operator is the owner and operator of the subject 

mine; 

(2) the operator is subject to the jurisdiction of the Mine 

Act; 

(3) I have jurisdiction in this case; 

(4) the inspector who issued the subject orders was a duly 

authorized representative of the Secretary; 

(5) true and correct copies of the subject orders were 

properly served upon the operator; 

(6) copies of the subject orders and terminations thereof 

at issue in this proceeding are authentic and may be admitted 

into evidence for purposes of establishing their issuance, but 

not for the purpose of establishing the truthfulness or relevancy 

of any matters asserted therein; 

(7) payment of any penalty will not affect the operator's 

ability to continue in business; 

(8) the operator demonstrated good faith abatement; 

{9) the operator has an average history of prior viola-

"cions 

(10) the operator is large in size; 

(11) a section 104(d) chain has been established; 

(12) the fact of the violation is not contested in any of 

<these orders' 

Without objection, the stipulations were accepted (Tro 6)o 

In addition, it was agreed that the three orders would be tried 

as a group (Tro 20-21)o 

Not only are the violations admitted, but there is no 

dispute with respect to the conditions described by the inspector 

in the orders and at the hearing (Tr. 31-32, 38-40, 44-47, 142-

143, 147-149). 

38 
The first issue to be resolved then is whether the violations were significant and substantial. The Commission has held 

that a violation is properly designated as S&S "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. 11 Cement 

Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). 

In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission further explained: 

In order to establish that a violation of a 

mandatory safety standard is significant and substantial under National Gypsum, the Secretary of 

Labor must prove: (1) the underlying violation of 

a mandatory safety standard; (2) a discrete safety 

hazard -- that is, a measure of danger to safety -- contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to 

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

likelihood that the .. irijury in question will be of 

a reasonably serious nature. 

The first element of the Commission's test is satisfied 

because the violations are admitted. The second element also is 

satisfied because the evidence demonstrates that should a fire 

occur in the installations and the air not be vented directly to 

the return, noxious air or smoke would travel to the faces where 

men were working (Tr. 68-69). The violation thus presented a 

discrete safety hazard. The fourth test is likewise met since 

individuals could inhale polluted air or become trapped by it 

(Tr. 71). It is with respect to the Commission's third requirement that the findings of significant and substantial herein, 

like those in many prior cases, founder. As the inspector 

ac~,owledgedu the cited pumps and rectifiers were operating 

properly and had no permissibility defects (Tr. 33, 73-74 1 76). 

Nothing else was cited with respect to the electrical equipment 

(Tr. 74). The inspector agreed that the potential danger would 

arise from a malfunction in the subject electrical equipment. 

Howeveru on the day in question he saw no malfunction in the 

equipment (Tr. 76). This being so, it cannot be found that the 

Secretary has proved there was a reasonable likelihood that the 

hazard would result in injury. 

I reject the Secretary 1 s contention that in determining 

whether or not there was a reasonable likelihood that the hazard 

would result in injury, the emergency (in this case a fire in the 

electrical installation), must be presumed to have occurred 

(Secretaryas brief p. 10). The Secretary does not define "emergency", or in any way indicate what standards in addition to 

§ 75.1105 would qualify under the "emergency" umbrella. The 

scope of what she proposes, is therefore, unexplained. Admittedly, § 75.1105 is designed to prevent the serious effects that 

39 
could arise from a fire in an electrical installation. This does 

not, however, mean that the standard presupposes the likelihood 

of the occurrence of the hazardous situation. What the standard 

does is set forth the ventilation requirements for electrical 

installation which must be followed in all instances. The 

standard is silent on likelihood or possibility or probability or 

any like inquiry. Degrees of chance are relevant to evaluation 

of gravity, of which S&S is a particular variant. Nowhere in the 

standard or elsewhere is there any basis for adopting a presumption that would do away with the commission's requirements of 

proof. The inevitable consequence of giving the Secretary the 

benefit of the proposed presumption would be to render this 

violation and whatever other ones qualify as emergencies, per se 

significant and substantial. By so doing, the third step of the 

Commission's test for S&S would be vitiated, because the very 

facts which the Commission in Mathies required the Secretary to 

prove would be assumed to have happened without reference to what 

actually transpired in the case. The Commission's conclusion 

that a confluence of factors must exist in order to establish S&S 

is premised upon a case by case evaluation of the particular 

circumstances as adduced through the evidence of record. 

Texasgulf, Inc., 10 FMSHRC 498, 500-501 (April 1988). 

Also without merit is the Secretary's assertion that the 

subject violation is S&S, because if there were an immediate risk 

of fire, the violation would constitute an imminent danger rather 

than just being S&S {Secretary's brief p. 10). The Secretary has 

misframed the issue. A reasonable likelihood of fire can exist 

without there being an immediate danger. Consideration of 

imminent danger involves analysis of the facts pursuant to 

precepts and rules laid down by the Commission for that purpose. 

Wyoming Fuel Co.v 14 FMSHRC 1282 {August 1992}; Utah Power & 

Light Co.u 13 FMSHRC 1617 (October 1991); Rochester & Pittsburgh 

Coal Co.c 11 FMSHRC 2159 (November 1989). The Secretary submits 

no such analysis of imminent danger. She cannot make out her 

case by confusing the concepts of imminent danger and significant 

and substantial, because under governing law they are separate 

and distinct. It is recognized that in several recent decisions 

·the Commission declined to rule on the propriety of the presump-

~ion advanced by the Secretary herein, because in those cases the 

issue had not been presented at the trial level. Shamrock Coal 

Company« Inc.v 14 FMSHRC 1300 (August 1992); Shamrock Coal 

Company, Inc., 14 FMSHRC 1306 (August 1992); Beech Fork Processing Inc., 14 FMSHRC 1316 (August 1992}. For the reasons set 

forth herein, I have no difficulty in declining to accept and 

apply a presumption which I perceive to constitute a material and 

unsupported departure from current Commission interpretation and 

practice. 

The fact that the violations in this case do not meet all 

the tests required to support a finding of S&S does not however, 

mean that they were not serious. The Commission has recognized 

40 
that S&S and gravity are not identical, although·they are frequently based upon the same or similar factual considerations. 

Quinland Coals, Inc. 1 9 FMSHRC 1614, 1622 n.11 (September 1987). 

Following Commission precedent, I have previously held that 

although they may have common elements, the term "significant and 

substantial" is not synonymous with gravity. consolidation Coal 

Company, 10 FMSHRC 1702, 1706 (December 1988); Columbia Portland 

Cement Company, 10 FMSHRC 1363, 1373 (September 1988), See also, 

Energy West Mining Company, 14.FMSHRC 1595, 1611 (September 

1992). In this case the dangers posed by smoke and contaminated 

air reaching men at the face, where mining was going on at the 

time, were grave {Tr. 74). On the basis of such proof I find the 

violations were serious. 

The remaining issue is whether the violations resulted from 

an unwarrantable failure on the part of the operator. The 

Commission has determined that unwarrantable failure means 

aggravated conduct constituting more than ordinary negligence. 

Emery Mining Corporation, 9 FMSHRC 1997, 2004 (December 1987); 

Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007, 2010 (December 

1987). The Commission has also stated that this determination is 

derived, in part, from the plain meaning of "unwarrantable" ("not 

justifiable" or "inexcusable"), "failure" ("neglect of an assigned, expected or appropriate action"), and "negligence" ("the 

failure to use such care as a reasonably prudent and careful 

person would use, characterized by "inadvertence," "thoughtlessness," and "inattention"). Emery, 9 FMSHRC at 2001. 

The evidence shows that prior to 1990 the operator used 

plastic tubing to vent air from electrical installations to the 

returns (Tr. 122, 136-137, 149-150). When the Mine Safety and 

Health Administration no longer accepted plastic tubing due to 

hazard it presented, the operator over a three month 

removed the plastic and replaced it with metal tubing (Tr. 

37 98 123)" The galvanized metal tubing came in 10 foot 

sect1ons and was 10 inches in diameter (Tr. 37 1 150). Spads 15 

or 20 or more feet apart were driven into the coal roof attached 

wrapped around the tubing (Tr. 38-39). As demonstrated 

the orders issued in air was not being vented from 

·the installations to the return because the 

metal had fallen down. Spads coming loose from roof and 

caused the tubing to fall (Tr. 37-38 1 45-46, 137, 

143). Due to changing climatic conditions the roof was flaky, 

sloughing and deteriorating over time, making the spads fall out 

of the roof (Tr. 39, 44, 137-138). Also, wires just rusted and 

fell down (Tr. 44). 

A conflict exists over when the operator learned of the 

tubing's inadequacies. On August 8, 1991, the inspector found 

ventilation tubing that had fallen down from a broken wire and 

spads that had come loose from a roof deteriorating from climatic 

changes (Tr. 40-41). Because the operator's escort accompanying 

41 
the inspector temporarily fixed the tubing before the inspector 

reached the pump, the inspector did not issue a citation on that 

occasion (Tr. 40-41, 43). The inspector did discuss the matter 

with the company escort and told the escort that precautions 

should be taken to insure the tubing was properly repaired and 

secured or else it would fall down again (Gov't. Exh. 5; Tr. 42-

43). However, three weeks later the inspector found the tubing 

down again at the same location and issued the first of the three 

withdrawal orders at issue herein (Tr. 32). 

According to the operator's safety supervisor, the operator 

only became aware of tubing problems from the deteriorating roof 

on August 8, 1991, when the inspector found tubing down at the 

location he subsequently cited on the 27th {Tr. 150-152, 155-156, 

161-163). The supervisor testified that between August 8 and 

August 27 the operator instituted a program of reinforcing the 

tubing which took about two and a half months to complete (Tr. 

152, 167-168). In his view citations issued by the inspector 

prior to the subject orders did not put the operator on notice of 

deteriorating roof and climatiC::con:ditions as a cause of tube 

falls because the earlier citations concerned situations where 

the tubing had been dislodged by pieces of falling rock and roof 

(Tr. 151) . 

Upon review I find more persuasive the evidence of the 

Secretary which clearly shows that the operator had knowledge 

sufficient to enable it to take action which would have rendered 

unnecessary the issuance of the subject orders. I accept the 

inspector's testimony that the operator attempted to address the 

August 8 situation merely by putting up one wire with no evidence 

of support anywhere (Tr. 179). I, therefore, approve the inspector's opinion that no one paid attention to that area (Tr. 179-

180) o 1 Under the circumstancesv it was all but inevitable that 

tubing would fall again in the same and at other locations, as it 

fact did, leading to issuance of the subject withdrawal 

orders. Had the operator heeded the advice of the inspector on 

August 8, the situation would have been remedied. The information which the operator received on August 8 put it on notice 

that immediate and wholesale corrective action to resupport the 

1 The operatorvs safety escort testified that an entry in the 

fireboss book that the ventilation tubing was rehung, referred to 

the August 8 condition involved in this case (Tr. 114, 126-127). 

This testimony is rejected because it is not based on first-hand 

information and because it is directly contradicted by the 

inspector who did have direct knowledge that the fireboss entry 

dealt with a different situation concerning inadequate examinations of intake escapeways (Tr. 178-179). 

42 
tubing was necessary to prevent the possibility of miners at the 

face being exposed to smoke and polluted air. The operator's 

inception of a program which took 2~ months to complete was an 

inadequate response to a potentially dangerous situation of which 

it had actual knowledge. Such conduct can be fairly characterized as "aggravated" within the purview of commission precedent. 

A finding of unwarrantability is further supported by 

evidence that for some months before the August 8 incident the 

operator knew it had problems with falling ventilation tubes, 

calling for remedial action. In this connection, I accept the 

inspector's testimony that during the second quarter of 1991 he 

had a number of meetings with mine management pursuant to the 

operator's Repeat Violation Reduction Program (R.V.R.P.) at which 

ventilation problems under § 75.1105 were talked about (Tr. 52-

60). The operator's safety escort who with the inspector initiated these meetings, stated that ventilation tubing was identified as a problem at the meetings (Tr. 132-133). According to 

the inspector, beginning in April the deterioration of the spads 

and wires was visible and was'·pointed out during inspections (Tr. 

176). At the final R.V.R.P. meeting with the general mine 

foreman at the end of June, the inspector highlighted problems 

with the ventilation of electrical installations (Tr. 52-53, 61-

62, 175-176). In particular, the inspector called attention to 

the fact that tubes and the wires supporting them were rusting 

and that spads were pulling out of the top (Tr. 62). At this 

meeting all conditions and suggestions about the tubing were 

noted {Tr. 175-176). Insofar as deterioration of the roof due to 

climatic conditions was concerned, the inspector testified that 

the company was well aware of changing weather conditions which 

occur every year (Tr. 180). 

The foregoing evidence is compelling and based upon it, I 

conclude that prior to the issuance of the subject orders, the 

operator had known for some months that it had an ongoing problem 

with ventilation tubing for electrical installations. I further 

conclude that the operator was conversant with climatic conditions and changes which caused deterioration in the roof, 

loosening the spads and rusting the wires which held the tubing 

I also determine that it is not necessary that the fallen 

tubing in the prior citations have resulted from exactly the same 

cause as the three orders involved herein. Nor is it necessary 

for a finding of unwarrantability that the tubes repeatedly fall 

down at the same location. The operator 1 s suggestions to this 

effect is rejected (Operator 1 s brief pp. 8-9). What matters is 

that for a long period of time the operator not only understood 

it was having difficulty regarding the ventilation tubing, but 

also was apprised of all the various circumstances which caused 

the problem. The operator's failure to remedy the situation 

despite continual suggestions from the inspector can only be 

characterized as aggravated conduct. The inspector's findings of 

unwarrantable failure are affirmed. 

43 
Based upon the foregoing evidence I further find the operator is guilty of high negligence. 

Since the inspector's findings of violations and of unwarrantability are valid, the requirements of section 104(d) (2) are 

satisfied and the subject orders are upheld. UMWA v. Kleppe, 532 

F.2d 1403 (D. C. Cir. 1976); Old Ben Coal, 1 FMSHRC 1954, 1959 

(Dec. 1979); Eastern Associated Coal Corp., 13 FMSHRC 902, 911 

(June 1991) • 

It is well established that hearings before the administrative law judges of this Commission are de novo and that the 

judges are not bound by penalty assessments proposed by the 

Secretary. Sellersburg Stone Co. v. Federal Mine Safety and 

Health Review Commission, 736 F.2d 1147 (7th Cir. 1984); Consolidation Coal Company, 11 FMSHRC 1935, 1939 (Oct. 1989). In 

determining the appropriate penalty amounts for these orders, I 

bear in mind that the findings of significant and substantial 

have been deleted. However, ,.:t:he violations were serious and 

resulted from high negligence. Taking into account these criteria and the others to which the parties have stipulated, I find 

that a penalty of $900 is justified for each of the subject 

withdrawal orders. 

The post-hearing briefs filed by the parties have been 

reviewed. To the extent the briefs are inconsistent with this 

decision, they are rejected. 

ORDER 

It is ORDERED that the findings of significant and substantial for Order Nos. 3716170v 3716171u and 3716172 be VACATED. 

It further ORDERED that the findings of unwarrantable 

failure for Order Nos. 3716170, 3716171f and 3716172 be AFFIRMED. 

It is further ORDERED that Order Nos. 3716170, 3716171, and 

3716172 be AFFIRMED. 

It further ORDERED that a penalty of $2,700 be ASSESSED 

and that the operator PAY $2,700 within 30 days of the date of 

this decision. 

Paul Merlin 

Chief Administrative Law Judge 

44 
Distribution: 

Roberts. Wilson, Esq., Office of the Solicitor, U. s. Department 

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

(Certified Mail) 

Daniel E. Rogers,·Esq., Consol Inc., Consol Plaza, 1800 Washington Road, Pittsburgh, PA 15241-1421 (Certified Mail) 

Mr. Robert C. Moore, UMWA, Rt. 5, Box 207, Morgantown, WV 26505 

(Certified Mail) 

jgl 

45 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1Oth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DOTSON & RIFE COAL CO., INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA}, 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA}, 

Petitioner 

v. 

DOTSON & RIFE COAL CO., INC., 

Respondent 

1qcn 

J '- '1../ "v• 

CONTEST PROCEEDINGS 

Master Docket No. 91-1 

Docket No. KENT 91-670-R 

through KENT 91-678-R 

Citation Nos. 9858724 

through 9858732; 4/4/91 

Mine No. 1 

Mine ID 15-05417 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 91-1200 

A.C. No. 15-05417-03532D 

Mine No. 1 

ORDER OF DISMISSAL 

Before~ Judge Broderick 

On December 8v 1992 1 the Secretary filed a motion to dismiss 

these proceedings on the grounds that on August 12, 1991, the 

Respondent Dotson & Rife Coal Company and Jimmy Dotson, principal 

of Respondent entered into plea agreementsu agreeing to plead 

guilty to charges of conspiracy to defraud an agency of the 

United States in connection with the civil violations charged 

herein. Respondent contracted with Triangle Research to handle 

its dust sampling program. Triangle 0 s principal and agent 

admitted falsifying the samples submitted to MSHA and admitted 

that on numerous occasions they blew air on the filtered surfaces 

of manufactured dust samples. Harry White and Ronald Ellis of 

Triangle have been convicted of defrauding the Government and 

have received prison sentences. 

On May 8, 1992, Judge Joseph M. Hood, of the Eastern 

District of Kentucky, sentenced Dotson & Rife Coal Company to pay 

a fine of $25,000 and to 2 years probation. Jimmy Dotson was 

sentenced to 2 years probation, 3 months home detention, and 

3 months community service. As part of the plea agreement the 

Secretary agreed to move to dismiss pending civil penalty 

46 
proceedings against Respondent for violations of the laws 

governing the dust sampling program. 

I conclude that under the circumstances, dismissal of these 

proceedings effectuates the purposes of the Mine Act. 

Accordingly, these proceedings are DISMISSED. 

Distribution: 

~~~.5 t413~7/L4M!~ ames A. Broderick 

Administrative Law Judge 

Douglas White, Esq., Mark R. Malecki, Esq., Office of the 

Solicitor, u.s. Department of Labor, 4015 Wilson Boulevard, 

Suite 400, Arlington, VA 22203 (Certified Mail) 

Ronald L. King, Esq., Robertson, Cecil, King & Pruitt, 237 Main 

Street, Drawer 1560, Grundy, VA 24614 (Certified Mail) 

Hand delivered to Lead Defense Counsel Committee 

/fb 

47 
PBDBRAL Jll:IIB SAPBTY U'D BDLD llBVJ:BW COIIXISSIOB 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, ~Otk flOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 7 1993 

PONTIKI COAL CORPORATION, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 6 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Vo 

PONTIKI COAL CORPORATION, 

Respondent 

. 

$ 

0 

0 

0 

Q 

0 

0 

0 

. 

. . 

. 

0 

0 

0 

CONTEST PROCEEDING 

Docket No. KENT 91-97-R 

Citation No. 3516447; 

11/14/90 

Pontiki No. 2 Mine 

Mine ID 15-09571 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 92-305 

A.C. No. 15-09571-03604 

Pontiki No .. 2 Mine 

DECISION 

Appearances~ Joseph J?L 

UoSo Department 

Timothy Mo 

Washingtonu DC; 

0 Esq.v Office of the Solicitoru 

Labor 0 Washville 0 Tennesseet 

0 Esq"o Crowell~ Moring 0 

Susan E .. Chetlinu Esq. 0 

Lexingtonu Kentucky .. 

Pontiki Coal Corporation, 

Judge Weisberger 

At issue in this consolidated notice of contest and civil 

penalty proceeding are the an Order issued under 

Section 107(a) of the Federal Mine Safety and Health Act of 1977 0 

("the Act 0 °

0 ) and a Citation leging a violation of 30 C.F.R. § 

.1725( .. Pursuant to notice 0 a hearing was held in 

Huntington, West Virginia on August 11, 1992. At the hearing, 

Harold Yates testified for the Secretary (Petitioner). The 

Operator (Respondent) did not call any witness on its behalf. 

48 
Findings of Fact and Discussion 

In the main, the relevant facts have been stipulated to by 

the Parties, and I accept these stipulations. These stipulations 

are as follows: 

1. Pontiki is the owner and operator of the Pontiki 

No. 2 Mineu located approximately 15 miles from Inez, 

Kentucky. 

2. At the relevant times, Pontiki and the Pontiki No. 

2 Mine were subject to the jurisdiction of the Federal 

Mine Safety and Health Act of 1977 (the "Act"). 

3@ The Administrative Law Judge has jurisdiction over 

these proceedings pursuant to S 105 of the Act. 

4. Inspector Harold L. Yates, who issued S 107(a) 

Order No. 3516447 and S 104(a) Citation No. 3516448, is 

an authorized representative of the Secretary. 

5. The order and Citation were properly served upon an 

agent of Pontiki at the P.ontiki No. 2 Mine on November 

14u 1990, at 8:00a.m., and 8:10a.m., respectively. 

6o The Pontiki No. 2 Mine mines coal in the Pond Creek 

coal seam using Joy continuous mining machines operated 

by remote control. Shuttle cars carry the coal from 

the· continuous mining machine to the mine's belt 

conveyor system which carries the coal out of the mine. 

7o On November 12, 1990, Pontiki mined coal on two 

sections underground and employed 81 people. 

8o On November 12, 1990, the day shift crew for the 

002-0 section arrived on the section at approximately 8~10 a.m. 0 as the third shift maintenance crew was 

leaving. 

9o The third shift maintenance crew informed the 

foreman malfunctions on one of the Joy 14-10 

~~ continuous machines; machine would only 

'tram in slow speed and the water sprays would not 

operate by remote control. 

10. The section foreman assigned two electricians -- Argel Bowen and Russell Maynard 0 Jr. -- to repair the 

continuous miner. 

11. The continuous miner was moved into an 

intersection for repairs. 

12o Bowen repaired the tram controls while Maynard went to 

&eoair a shuttle car cableo 

13: After Maynard repaired the shuttle car cable, he 

informed the section foreman that he would repair the 

eolenoid valves controlling the water sprays. These 

valves were located on the off operator side of the 

continuous miner. 

l4o Maynard prepared to troubleshoot the problem with 

the solenoid valves by cleaning coal off of the 

solenoid valve covers. 

15. At the same time, two miners and the section 

49 
foreman walked to the front of the continuous miner to 

inspect the cutting drum for worn bits. 

16. As the section foreman walked by the continuous 

miner, he observed Maynard sitting on top of the 

continuous miner in front of the operator's deck. 

Maynard asked the section foreman to hand him the 

remote control box and then move the switch in the 

operator's deck to the remote position. 

17 •. Section 75.509 requires that electric equipment be 

deenergized when repairs are being made, "except when 

necessary for trouble shooting or testing." 30 C.F.R. 

S 75.509. See also 30 C.F.R. S 75.1725(c). Maynard 

had to first troubleshoot the solenoid valves before he 

could repair them. 

18. When troubleshooting malfunctions on continuous 

mining machines, it is standard practice for mechanics 

and electricians at Pontiki to switch the miner 

controls to remote and to keep the remote control box 

with them at all times. This-precaution is necessary 

to prevent another person from accidentally operating the machine with the remote control or from the 

operator's deck while troubleshooting is taking place. 

19. Since Maynard had the remote box with him, the 

section foreman asked Maynard if he could bump (rotate 

slightly) the cutting head, so the head could be 

inspected for worn bits. The cutting head on the Joy 

14-10 CM continuous miner must be bumped with the power 

on, because the ripperjveyor chain connected to the 

ripper head makes it impossible to bump the head 

manually. 

20. Maynard told the section foreman that he would 

rotate the cutting head using the remote control boxu 

but he inadvertently activated the conveyor chain 

instead of rotating the cutting head. 

21. The activated conveyor chain pulled Maynard from 

his work position and trapped him beneath the conveyor 

chain guard~ resulting in fatal injuries. 

22. MSHA conducted an investigationu which was 

concluded on November 13 9 1990. 

23. Two days after the accident occurred, MSHA issued 

imminent danger Order No. 3516447 which is at issue in 

this proceeding. Copies of the Order and subsequent 

modifications are attached to Pontiki•s Application for 

:Review. 

24. MSHA also issued S 104(a) Citation Nos. 3516448 

and 35164.49. 

25. Citation No. 3516448, at issue here, alleged a 

violation of S 75.1725{c), as follows: 

Evidence obtained during a fatal accident 

investigation revealed that Russell Maynard 

Jr. placed himself in the conveyor boom of an 

energized JOY 14-10 continuous miner on the 

50 
002-0 working section while working on the 

water spray system. The electrician had with 

him the operative remote control unit for the 

miner. This citation is a contributing 

factor to imminent danger order #32516447 

dated 11-14-90. Therefore no abatement time 

is set. 

26. citation No. 3516449 also alleged a violation of S 

75.1725(c) as follows: 

Evidence obtained during a fatal accident 

investigation revealed that three men were 

setting bits on the cutting head of an 

energized JOY 14-10 continuous miner on the 

002-0 working section. The electrician 

victim was in the conveyor boom area of the 

miner and had the operative remote control 

unit with him. This condition is a 

contributing factor to the issuance of the 

imminent danger order#3516447 dated 11-14-

90. Therefore no abatement time is set. 

27. On December 11, 1990, Citation No. 3516449 was 

vacated for the following reasons: 

This violation is being vacated for the 

following reason(s). 

Evidence obtained during a safety and health 

conference reveals bits were not being set in 

the 14-10 continuous miner head on the 002 

working section. At the time of the fatal 

accident three men were observing the cutting 

head of the continuous miner to determine if 

bits were needed while the victim was 

Totating {bumping) the cutting head. 

Violation of 30 C.F.R. $ 75ol725(c) 

The parties stipulated that on November 12, 1990, an 

@lectrician Russell Maynard 8 Jr.u was sitting on top of a 

continuous miner 0 and had in his possession a remote control box 

switched to the remote position. Maynard was to trouble shoot 

the solenoid valves controlling the water sprays before he could ~epair them. At the same timeu two miners and the section 

foreman walked to the front of the miner to inspect the cutting 

drum for worn bits. The foreman asked Maynard to bump the ~utting head so could be inspected for worn bits. Maynard 

inadvertently activated the conveyor chain instead of rotating 

the cutting head, and was caught by the conveyor chain and 

trapped beneath the chain guard. He received a fatal injury. 

MSHA Inspector Harold Yates issued a citation alleging a 

violation of 30 C.F.R. S 75.1725(c) in that Maynard " ••• placed 

himself in the conveyor boom of an energized joy 14-10 continuous 

miner on the 002-0 working section while working on the water 

51 
spray system. The electrician had with him the operative remote 

control unit for the miner." 

In essence, as pertinent, Section 75.1725(c), supra, 

provides as follows: "Repairs or maintenance shall not be 

performed on machinery until the power is off and the machinery 

is blocked against motion, except where machinery motion is 

necessary to make adjustments." 

Petitioner apparently concedes that there was no violation 

for Maynard to be located on top of the mining machine with the 

power on trouble shooting the solenoid valves. However, 

Petitioner argues that when Maynard activated the controls "as 

part of the Act of changing bits on the cutting head" (emphasis 

added)q a violation of Section 75.1725(c) supra occurred. 

Considering the record as a whole, I do not find support for 

Petitioner 8 s position that there was herein a violation of 

Section 1.725(c) supra. In e~~ence, the Citation at issue sets 

forth two assertions as the bases for a violation herein of 

Section 1725(c) supra. The Citation alleges that (1) Maynard was 

placed in the boom of the energized miner while working on the 

water spray system and (2) that he had with him the remote 

control unit for the miner~ Neither of these activities are 

prohibited by the clear language of Section 75.1725(c) supra. 

Indeed, as pointed out by Respondent, Yates conceded on crossexamination that, in essence, neither of these activities 

violates a regulatory standard. 

In his direct testimony, Yates asserted that the basis for 

the violation was the fact that Maynard was on the miner when he ~ttempted to bump the miner head by remote controlo In essence 0 

Section 75o 25(c) provides that 0 in making repairs or 

maintenance 0 power must be offu and the machinery is to be ~locked against motiono As correctly pointed out by Respondent, 

Section 75.1725u supra, contains no requirement concerning a 

personas position while repairs are being made. 

The Commission has noted that the purpose of Section 

75o1725(c} is to prevent 9'to the greatest extent possiblen 0 

~ccidents in the use of equipment and that "the manifest intent 

the regulation is to restrict repair of machinery while the ~ower is ono 00 (Arch of Kentucky, Inc.u 13 FMSHRC 753, 756 

«1991))o Howeverv in evaluating the scope to be accorded the 

language of a regulatory standard, the Commission, in Southern 

Ohio Coal co. 0 14 FMSHRC 978 (June 1992), reiterated its test of 

whether the regulation gives a reasonably prudent person notice 

that it prohibits the cited conduct. Section 75.1725(c) supra, 

does not give any notice that it prohibits persons from being on 

energized miners with remote control equipment. Its plain 

language expressly sets forth requirements for blocking and 

turning off power to machinery, but does not contain any words 

52 
that could reasonably be interpreted as governing a person's 

position vis a vis a piece of equipment that is being repaired or 

maintained. 

Therefore for the all the above reasons I conclude that it 

has not been established that there was a violation herein of 

Section 75.1725(c) as alleged in the citation at issue. 

Therefore, the citation must be dismissed. 

II. The Validity of the Section 107Cal Withdrawal Order. 

As a consequence of the fatal accident which had occurred on 

November 12, 1990, MSHA Inspector Harold L. Yates issued a 

Section 107(a) withdrawal order two days later on November 14, 

1990. It appears to be the position of Petitioner, that the 

Section 107(a) order was properly issued because the underlying 

hazard remained. In this connection, Petitioner refers to the 

parties' stipulation that it was standard practice for mechanics 

and electricians at Pontiki to switch the miner controls to 

remote, and to keep the remote control box with them at all 

times. Hence, it is Petitioner's argument that the underlying 

hazard remained in that "there was clearly a very definite chance 

for this tragic occurrence to be duplicated." In support 

thereof, Petitioner also refers to the fact that the abatement of 

the section 107(a) order at issue indicates that Pontiki's 

employees were "retrained on the use of a remote control unit and 

work while trouble shooting, and that this retraining eliminated 

the hazard which had remained present." I find Petitioner's 

arguments to be without merit for the reasons that follow. 

The Order at issue alleges the existence of an "imminent 

dangernu as per section 107(a) of the Act. Section(3) (j) of the 

Act defines an imminent danger as ~ooothe existence of any 

condition or practice in a coal or other mine which could ~easonably be expected to cause death or serious physical harm 

before such condition or practice can be abated." 

In Utah Power and Light Co.Q 13 FMSRHC 1617 (1991) the 

Commission reviewed the Legislative History of this definition, 

and concluded as followsg e'Thus the hazard to be protected 

against by the withdrawal order must be impending so as to ~equire the immediate withdrawal of miners." (13 FMSHRC supra at 

162l}o (Emphasis added) 

The Commission rejected an interpretation of the imminent 

danger provision of the Act which includes " ••• any hazard that 

has the potential to cause a serious accident at some future 

time.o, o 11 (Utah Power and Light, supra. at 1622). The 

Commission future explained its holding as follows: 

To support a finding of imminent danger, the 

inspector must find that the hazardous condition has a 

53 
reasonable potential to cause death or serious 1n)ury 

within a short period of time. An inspector, albeit 

acting in good faith, abuses his discretion in the 

sense of making a decision that is not in accordance 

with law when he orders the immediate withdrawal of 

miners under section 107(a) in circumstances where 

there is not an imminent threat to miners". (Utah 

Power and Light supra, at 1622.) 

In the instant case, when the Section 107(a) Order was 

issued two days after the accident no one was working on the 

miner in question, and, according to Yates, it was "sitting by 

itself" (Tr. 52). Yates testified that the reason that he issued 

the order was that "the same accident could happen again if they 

[the miners] were not retrained in performing this type of work" 

(Tr. 36). However, there is no indication in the record that the 

lack of retraining had a reasonable potential to cause a serious 

injury "within a short period of time" (c.f., Utah Power and 

Light, supra at 1622). To the contrary, when Yates was· asked on 

cross-examination, "But you will agree with me, we don't have any issue over the fact that there was nothing happening at that time 

[when the Order was issued] which caused you to issue the order," 

Tr.52 (emphasis added), the inspector replied, "There was no 

action being done, the mine[r] was sitting by itself." 

In addition, on direct examination, the inspector testified 

that the reason he issued the Order was that "the same accident 

could happen again if [the miners] were not retrained in 

performing this type work." Tr.36 (emphasis added). Absent from 

the inspector's description, however, is any reference to the 

immediacy of the potential harm. Rather the inspector issued the 

Order because he 81 thought it might occur sometime in the future 

that somebody would have that same set of circumstances and do 

ithe same thingo uv Tro 51-52 (emphasis added) o 

Although there was a chance for the fatal occurrence to be 

duplicated, as argued by Petitioner, I find this not sufficient ~o sustain an imminent danger order 0 under the rationale of Utah ~ower and LightQ suprao 

I conclude that it has not been established that when Yates 

issued the Section 107(a) order there was any condition constitu~ing an imminent danger. Accordinglyu the order at issue 

is to be vacated. 

54 
It is 

DISMISSED. 

Docket No. 

that Order 

ORDER 

hereby ORDERED that Docket No. KENT 92-305 be 

It is further ordered that the Notice of Contest, 

KENT 91-97-R, be sustained. It is further ordered 

No. 3516447 and Citation No. 3516448 be DISMISSEQ. 

Avram -~~ Weisberger 

Administrative Law Judge 

Distribution: 

Joseph B. Luckett, Esq., Office of the Solicitor, u.s. Department 

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

37215 (Certified Mail) 

Timothy M. Biddle, Esq., Crowell & Moring, 1001 Pennsylvania 

Avenue, NW, Washington, DC 20004-2595 (Certified Mail) 

Susan E. Chetlin, Esq., Pontiki Coal Corporation, 2525 

Harrodsburg Road, Suite 300, Lexington, KY 40504 (Certified 

Mail) 

nb 

55 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. KENT 92-434 

A.C. No. 15-16743-03509 

v. 

No. 3 Mine 

RAVEN MINING COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION APPROVING SETTLEMENT 

Darren L. Cou~tney, Esq., Office of the 

Solicitor, u.s. Department of Labor, 

Nashville, Tennessee, for the Petitioner; 

Billy R. Shelton, Esq., Baird, Baird, Baird, 

and Jones, P.s.c., Pikeville, Kentucky, 

for the Respondent 

Judge Melick 

This case is before me upon a petition for assessment 

of civil penalty under Section 105(d) of the Federal Mine 

Safety and Health Act of 1977 (the Act). Following hearings 

on October 23v 1992v Petitioner filed a motion to approve a 

settlement agreement and to dismiss the case. A reduction in 

penalty from $1,000 to $500 was proposed. I have considered 

representations and documentation submitted in this caser 

as well as proceedings at trialp and I conclude that the 

proffered settlement is appropriate under the criteria set 

forth in Section llO(i) of the Act. 

\~FOREP -'che motion for approval 

GRANTED, and it is ORDERED that Respondent $500 within 30 days of this order. ,, /v 

( 

Gary Mel' 

Administ 

56 
Distribution: 

Darren L. Courtney, Esq., Office of the Solicitor, 

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

Nashville, TN 37215 (Certified Mail) 

Billy R. Shelton, Esq., Baird, Baird, Baird and Jones, P.s.c., 

415 Second Street, P.O. Box 351, Pikeville, KY 41502 (Certified Mai~) 

/lh 

57 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 7 199.3 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. WEVA 92-1043 

Petitioner A.C. No. 46-01452-03861 

v. 

Arkwright No. 1 Mine 

CONSOLIDATION COAL COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION APPROVING SETTLEMENT 

Roberts. Wil,t;on, Esq., Office of the 

Solicitor, u.s. Department of Labor, 

Arlington; Virginia, for Petitioner; 

Daniel E. Rogers, Esq., Consolidation 

Coal Company, Pittsburgh, Pennsylvania, 

for Respondent 

Judge Melick 

This case is before me upon a petition for assessment 

of civil penalty under Section 105(d) of the Federal Mine 

Safety and Health Act of 1977 (the Act). During hearings 

Petitioner noted that the parties had reached a settlement 

agreement and Petitioner subsequently filed a motion to 

approve agreemento Petitioner has vacated Order 

Noo 37 881 and proposes a reduction in penalty from $6v000 

·to $3 u 500 for the remaining two orders. I have considered 

the representations and documentation submitted in this 

casev and I conclude that the proffered settlement is 

appropriate under the criteria set forth in Section llO(i) 

·the Acto 

WHEREFOREv the motion for approval of 

~RANTEDF and it ORDERED that Respondent 

of $3 7 500 within 30 days of rder. 

58 

ment is 

penalty 

Law Judge 
Distribution: 

Roberts. Wilson, Esq., Office of the Solicitor, u.s. Department 

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

(Certified Mail) 

Daniel E. Rogers, Esq., Consolidation Coal Company, Consol Plaza, 

1800 Washington Road, Pittsburgh, PA 15241-1421 (Certified Mail) 

/lh 

59 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE. lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 8 1993 

SECRETARY OF LABOR I CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. VA 92-82 

A.C. No. 44-00649-03541 

v. 

Coronet Jewell Prep Plant 

JEWELL SMOKELESS COAL 

CORPORATION, 

Appearances: 

Before: 

Respondent 

DECISION 

Tina Mullins, Esq., Glenn M. Loos, Esq., Office of 

the Solicitor, U.S. Department of Labor, 

Arlington, Virginia, for the Petitioner; 

CharlieR. Jessee, Esq., Jessee & Read, Abingdon, 

Virginia, for the Respondent. 

Judge Koutras 

Statement of the Case 

This is a c 1 penalty proceeding initiated by the 

petitioner against the respondent pursuant to section llO(a) of 

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

§ 820(a}. Petitioner seeks a civil penalty assessment in the 

amount of $58, for an alleged violation of mandatory safety 

standard 30 C.F.R. § 77.1607(v). The respondent filed a timely 

answer contesting the alleged violation, and a hearing was held 

Grundyu Virginia. The parties filed posthearing argumentsu 

and I have considered them in my adjudication of this matter. 

Issues 

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

respondent has violated the cited standard as alleged in the 

proposal for assessment of civil penalty; (2) whether the alleged 

violation was significant and substantial (S&S); and (3) the 

appropriate civil penalty that-should be assessed for the 

violation based upon the civil penalty assessment 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. 

60 
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 

2. Section 110(i) of the 1977 Act, 30 u.s.c. § 820(i). 

3. 30 C.F.R. § 77.1607(v). 

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

Stipulations and Admissions CTr. 5-9). 

1. The respondent is the owner and operator of the Coronet 

Jewell Preparation Plant, and its operations at that plant 

are subject to the jurisdiction of the Mine Act. 

2. The Commission and the presiding judge have jurisdiction 

to hear and decide this matter. 

3. The inspector who issued the contested citation was 

acting in his official capacity as an authorized 

representative of the Secretary of Labor. 

4o True copies of the citation were served on the 

respondent or its agent. 

5. Assuming a violation is established, the payment of the 

proposed civil penalty assessment will not adversely affect 

the respondent's ability to continue in business. 

6o The cited condition or practice was timely and 

immediately abated by the respondento 

7o The preparation plant annual coal production in 1991 was 

two-million tons, and the plant is a medium sized operation. 

8o The respondent's history of prior violations is shown in 

an MSHA computer print-out covering the period October 1, 

1989 through September 30, 1991 (Exhibit P-S)o 

Discussion 

Section 104(a) "S&S" Citation No. 3507478, issued on 

October 17, 1991, by MSHA Inspector Robert P. Davis, cites an 

alleged violation of mandatory safety standard 30 C.F.R. 

§ 77.1607(v), and the cited condition or practice states as 

follows: · 

Railcars were not being kept under control at the raw 

coal shakeout area on 10-1-91, when the car hoist cable 

hook slipped out of the hook eye on railcar and two 

61 
loaded and one empty car got away (Run Away), and one 

employee was injured while making an attempt to stop 

the cars. The run away cars rammed loaded cars and 

threw the employee against the end of the cars causing 

injury to the employee's ribs. 

Petitioner's Testimony and Evidence 

Gary R. Buckland, employed by the respondent as a utility 

person, testified as to his training and seventeen years of 

experience on the job, and he confirmed that he worked at the 

shake out area of the plant. He described his duties and the 

procedures for shaking and dropping the railroad cars from the 

shake out area to the load out area. He stated that the cars are 

dropped by hand, and one person is on the car operating the hand 

brake while it is dropping down to the load out area after it has 

been emptied at the shake out area. He confirmed that he was 

aware of the accident of October 1, 1991, which resulted in an 

injury to Mr. Benny Shook. Mr •. Buckland stated that a trip of 

two loaded cars and an empty car became unhooked from a cable and 

hook apparatus which holds the cars in place during the shake out 

and they began rolling freely towards the load out area. 

Mr. Buckland described what he was doing at the time he was 

positioning the cars at the shake out area, and he stated that 

while he was in the process of pulling one of the cars into 

position he observed that the cable hook was still on the car, 

and that "it must have rolled another foot on farther backwards 

when I quit looking at it 11 • He then proceeded to attend to 

another car and that when he "turned around and looked, two loads 

and an emptyu I guess,v about a car length past the shake out or 

farther they came off the hook and started rolling freely 

t.hemsel ves 11 ~ Tr 0 2 5) • 

Mr. Buckland stated that he ran after the cars and climbed 

on one of the loaded cars and tried to tighten the brake. 

Howeveru the car had no brakes and he climbed down the ladder and 

jumped off. The cars continued to roll as he chased after them, 

and they collided with three other cars at the load out areav and 

this slowed them down. As the cars proceeded under the tipple, he 

imbed on one of the cars that had escaped from the shake out 

area and attempted to set the brake, and Mr. Shook climbed on one 

of the cars that had broken free at the load out area after the 

initial collision. However, the two trips came together and 

collided with other loaded cars parked on the tracks below the 

tipple, and Mr. Shook was thrown off and injured his ribs, 

(Tr. 20-28). 

Mr. Buckland disagreed with the respondent's contention that 

no "runaway" occurred, and he did not believe that the cars that 

got away drifted slowly. However, he did not know how fast the 

cars were moving, and he stated that "they had to start out slow 

62 
to get fast" (Tr. 29}. He stated that two people are used to 

shake each car and that one person is always on the car 

tightening the brakes to stop it. He confirmed that prior to the 

accident, the hook that attaches to the car to hold it in place 

"would come out sometimes three times a day, sometimes three 

times a week", but that since a chain has been installed on the 

hook, it does not slip free anymore (Tr. 29-31). 

Mr. Buckland explained the safety procedures for runaway 

cars, including the use of warning sirens, oral instructions to 

try and catch and stop the cars if they get away, and the use of 

a safety belt while on the car (Tr. 32-33). He stated that there 

were occasions when the cars had no brakes, but that this was 81 very seldom" and that "you can run into that" (Tr. 34). He 

stated that if a car gets away and causes some damage it is 

reported to a supervisor, but if he catches up to a car and gets 

it under control, and no damage has occurred, it is not reported 

(Tr. 34) • 

On cross-examination, Mr. Buckland stated that during his 

17 years with the company there have been no other incidents such 

as the one which occurred on October 1, 1991. He confirmed that 

Mr. Shook had his safety belt on at the time of the accident. 

He also believed that the respondent is a safety conscious 

company and he confirmed that it received the corporate 

president's safety award and numerous other safety commendations. 

Mr. Buckland further explained how he attempted to stop the cars 

which had moved away from the shake out area at the time of the 

accident, and he confirmed that when he tightened the brake down 

it failed. If the brake had not failed, there would have been no 

accident (Tr. 40). Mr. Buckland could not recall any conversations that he-may have had with Inspector Davis in Octoberu 

~~991 (Tr. 41). He confirmed that he has never reported a 

disengaged car hook to foreman (Tr. 38). 

Benny H. Shook, testified that he has been employed by the 

respondent for approximately 15 years, and that he has worked as 

a railroad car dropper for the past four years. He confirmed 

that he has received safety training from the respondent and that 

he has 36 years of preparation plant experience. He described 

work the load out area and he explained how the empty cars 

are dropped from the shake out area to the load out area for 

loading. He explained that there is always someone on one of the 

three-car trips that are dropped, and that this person operates 

the brake wheel which is tightened by hand to control the cars 

(Tr. 46-47) •. 

Mr. Shook stated that the accident happened after a trip of 

two loaded and one empty railroad cars "got loose at the shake 

out", but he did not see them come loose and had no first hand 

63 
knowledge as to how they got away. He described what occurred as 

follows at (Tr. 48): 

A. And the three cars came down and there was a young man 

on them, Gary Buckland, trying to stop them. They hit the 

cars that we had on our load out rope. It broke that rope 

and they started running away. So, I got one car and set a 

brake. Got off of it and got on another car and set a 

brake. Now, by this time I •.• we had somewhere between three 

and five cars on our rope and them the three that he come 

with down, with, the empty and two loads. And by the time 

we got the brakes set on them again, they hit cars that were 

already parked out on the lower yard ready for shipment. 

When they hit, then I hit against the side of the car like 

against here, broke my ribs. 

Mr. Shook could not estimate how fast the cars were 

travelling, and he confirmed that he had time to catch up to the 

first car and set the brake,,and then step off and get on the 

next car and set that brake. He confirmed that he wore and used 

a safety harness while doing this. When asked if he believed 

that the cars which carne down from the shake out area were "under 

control", he responded "No, the boy was trying to get them under 

controlp but they weren't under control or he would have stopped 

themn (Tr. 50). He confirmed that those cars were stopped after 

the cars that he was on hit the loaded cars and threw him against 

the end of a car (Tr. 50). 

Mr. Shook stated that he was treated at a hospital emergency 

room where he was x-rayed and given a complete physical examination by a doctor. He was diagnosed as having broken ribs, wore 

2 rib cage protective device for three weeksv but returned to 

day after he was treated, and was assigned less 

iSt.renuous 'C10rk until he was able to resume his car dropping 

a week or so later (Tr. 51-52). 

Mr. Shook was of the opinion that a "runaway" occurred and 

'that he cars that carne from the shake out area nran awayn f and he ~xplained as follows at (Tr. 53) 

A. Well 9 there is a restraining rope on those cars with a hoo1~ on it and the hoo1<. fell off the cars and they were 

below the shake out before Gary got on them to get them 

stopped. And he couldn 9 t get them stopped until they hit 

the ones that we were on. So, I consider that to be a 

runaway. Yes, I do. 

Q. Is a person supposed to be on the cars before they are 

released from the cable? 

A. Yeso 

64 
Q. And they were not? A person was not on the cars? 

A. Well, they weren't released purposely, so there wasn't 

anyone on it. 

Q. Would you agree that the cars drifted slowly? 

A. Probably when they first ... when the hook first came off 

of them. But, then after they cleared the shake out they 

picked up speed. 

Mr. Shook confirmed that the respondent had established 

procedures to be followed in the event a car gets away, and these 

include the use of warning devices, safety harnesses, and 

instructions not get on a runaway car (Tr. 54-55). He believed 

that chains have been installed in conjunction with the use of 

eye hooks to keep the hook from falling off, and he confirmed 

that prior to the accident, a hook had never come off a car in 

the loading area where he worked (Tr. 56). Mr. Shook explained 

the car dropping procedures, 'and he confirmed that the loaded 

cars are brought in by theN & W Railroad (Tr. 57-61}. 

On cross-examination, Mr. Shook confirmed that he missed no 

work as the result of the accident, and he believed that the 

respondent is safety conscious and has received safety awards at 

its preparation plant. In the 15 years that he has been employed 

by the respondent, he was not aware of any prior similar 

accidents with personal injury (Tr. 62). He confirmed that the 

plant and shake outs have been inspected on numerous occasions by 

state and Federal inspectors with the same steel rope cable and 

hook in use and he believed that the respondent was doing what 

thought was safe by using the steel rope and hook assembly 

0 64) 0 

MSHA Inspector Robert D. Davis, testified that he has served 

as an inspector for 17 years and he confirmed that he visited the 

respondent's preparation plant on October 17 9 l99lv as a followto an accident report filed by the respondent. He stated that 

spoke with plant superintendent Bill Lipps and plant foreman 

Jessie Williams, and they bas ly told him what had been 

written up accident report. He was told that ~the rail 

cars had runaway or broke loose from the shake out area and one 

man was injured trying to stop the cars" {Tr. 69). He was also 

informed that a safety or slack chain was installed in place of 

the cable that was previously used and that this chain served to 

keep the cable tight (Tr. 70). 

Mr. Davis stated that based on what was reported to him by 

Mro Lipps and Mr. Williams, and the company accident report, he 

issued the citation in question. He confirmed that the citation 

was not issued because of the accident, but that it was issued 

65 
because the railroad cars were not under control, and it was his 

opinion that this constituted a violation of section 77.1607(v) 

(Tr. 70-71). He confirmed that he made a finding of "moderate" 

negligence because "I felt that management should keep a 

better • . . if this had happened before, then something should 

have been done before" (Tr. 72). He also believed that the 

violation was "significant and substantial", and he explained as 

follows at (Tr. 71-72): 

A. Well, it met the criteria of and s & S citation. 

Q. What is that? 

A. Condition existed, if not corrected, it reason ••• likely 

cause an accident. 

Q. Now, what kind of accident would occur? 

A. And if it did occur,''it wOuld cause serious injury. 

Q. What kind of accident can you envision with the cars 

getting away? 

A. Well, get caught in the cars, throw their feet under the 

track and get their leg cut off or crushed, fatal injuries. 

Q. And those would be more serious than the accident that 

occurred in this case? 

A. Yeah. 

How likely do you think it is that an injury ..• that 

uries would occur because of rail cars getting away? 

A. It would be reasonably likely that, you know, over a 

period of time this keep happening, maybe. 

Inspector Davis agreed that his citation only makes 

&eference to one set of cars 7 two loaded and one empty, when in 

fact the testimony of the prior witnesses that two sets of cars 

were out of control is correct. However 7 he did not believe that 

this made any difference and that a violation still existed. He 

also believed that appropriate safety procedures were not being 

followed because the cars would not have gotten away if the 

employees were more alert. He confirmed that there are no MSHA 

safety standards covering the use of car hooks or protective 

devices to prevent the hooks from coming off (Tr. 73-76). 

On cross-examination, Mr. Davis stated that he based his 

"significant and substantial" finding on the fact that the cars 

were not being controlled at the time of the accident. He 

66 
confirmed that the likeliness of an occurrence is to be 

considered when making such a finding, and the fact that such an 

incident may have occurred in the past is part of the criteria 

for an "S&S" finding (Tr. 76-77). He conceded that at the time 

he made his finding he had no knowledge as to whether any 

accidents of the kind in question had occurred in the past, and 

stated that "anytime the railroad cars get away, there is a 

chance that someone could get hurt" (Tr. 78). He further 

conceded that he did not determine whether the kind of injury 

suffered by Mr. Shook had ever occurred in the past, and he 

disagreed that one incident or injury in the past 15 years would 

constitute an unlikely event because "you just heard those two 

fellows say those hooks come out often" (Tr. 81). 

Mr. Davis denied that he had the citation prepared when he 

visited the plant on October 17, 1991, or that he had previously 

discussed what he would write with his supervisor before going to 

the mine site. He confirmed that he did not speak with Mr. Shook 

or Mr. Buckland prior to issuing the citation, and although he 

actually observed no violatio:h taking place, he went to the area 

where the accident occurred and took some notes (Tr. 85-87). He 

further explained the basis for his 11 S&S11 finding as follows at 

(Tr. 90-91). 

Q. It 1 s not. What parameters do you use then, to determine 

that an injury is likely? 

A. If this condition would reasonably cause ... if it 

occurred, it would cause an accident and if that .. if those 

rail cars are not under control, it could reasonably cause 

an accident. 

Q. But what did you use to determine what 

was reasonably likely to have occurred? 

A. To people at work? 

Qo Do you not have to ... let me help you a little bit. An 

injury s has to be reasonably likely to occur, 

before you can write a S&S violation, does it not, sir? 

Mr. Davis confirmed that he is required to substantiate an 

"S&S" violation, and that he made notes and relied on the 

information given him by Mr. Lipps and Mr. Williams. Mr. Davis 

conceded that he did not bother to determine whether Mr. Buckland 

had applied the car brakes, where Mr. Shook was located when he 

was injured, or the extent of his injuries, and that he "just 

tried to determine if the cars were under control at the time of 

the accident" (Tr. 94). Mr. Davis stated that an S&S violation 

could be issued even if there were no injury, but that the 

67 
potential for an injury may be considered, and if an injury did 

in fact occur, he may consider the seriousness of the injury as 

part of his finding (Tr. 95). 

Mr. Davis confirmed that prior to issuing the citation he 

made no determination as to whether or not mine management had 

any indication of prior problems with the car hook. He explained 

that he based his negligence finding on the fact that the hook 

did come out, and that "if somebody wasn't negligent, the hook 

wouldn't have come out. It would have been a better system" 

(Tr. 97). He agreed that there was no regulatory safety standard 

concerning car hooks, and he confirmed that he had inspected the 

shake out area on prior occasions and has observed cars being 

pulled by the hooks that were used at the time of the accident. 

He was not aware of any prior violations concerning car hooks or 

the shake out area (Tr. 98-99). He agreed that the use of a 

hook, or a chain which is presently in use, does not in and of 

itself constitute a violation. He also agreed that an accident 

would not have occurred if the car brakes had worked 

(Tr. 99-100). 

Mr. Davis reiterated that he issued the citation because the 

cars were out of control, and not because an accident occurred. 

He stated that the cars were out of control because "the hook had 

come out of the eye", and that "the brake did have a bearing on 

it. I don't know if he could get there in time to apply the 

brake or not" (Tr. 100). Mr. Davis believed that a "reasonably 

serious accident" is "one that could cause an accident if not 

corrected" (Tr. 101). He did not personally know that Mr. Shook 

had a broken rib at the time he wrote the citation on October 17, 

1991, and he agreed that the accident would not have occurred if 

Mr. Bucklandq the car dropper, had been paying attention 

(Tr. 105). since the cars were not under control, a violation 

had to exist, and it was the result of moderate negligence on the 

part of the respondent (Tr. 105-106). 

Mr. Davis agreed that the respondent has a good safety 

record, and in response to a question as to whether the 

respondent 11was really negligent", Mr. Davis responded nr think 

they could have through training, they could have been more alert 

on what 1 s going on over there, the employees, I think". He 

explained that the employees on the job should have been more 

alert, and if they had been watching the eye hook, they could 

have prevented it from coming out (Tr. 108). He confirmed that a 

car dropper has a duty to keep an eye on the hook (Tr. 112). 

Respondent's Testimony and Evidence 

Jessie Ray Williams stated that he has served as plant 

foreman for the past 11 years, that the shake out area has 

existed for 14 years, and that the cable hook configuration at 

68 
the car spotter hoist has been in use during this entire time. 

He confirmed that there have been no prior incidents, accidents, 

or injuries involving cars drifting down to the plant because of 

a car hook coming loose. He stated that the car hooks in use at 

the time of the accident were especially designed to be handled 

safely, and no one ever informed him that there was a hook 

problem prior to that incident. He believed that the hook that 

was being used at that time was "state of the art" and standard 

for the industry (Tr. 117). 

Mr. Williams stated that Mr. Buckland admitted that the 

accident would not have happened if he had been paying attention, 

and also informed him that the cars would not have collided if 

the brakes had worked. Mr. Williams confirmed that Mr. Shook 

missed no work because of the accident, and that he and 

Mr. Buckland were wearing safety belts. He confirmed that the 

respondent is a safety conscious company, and that the plant has 

recently received safety awards, including the company 

president's award and an honor?tble mention from the State of 

Virginia. He confirmed that the shake out area and hook 

arrangement have been inspected may times by MSHA, that no 

violations have ever been previously issued because of that 

arrangement, and that no inspectors have ever suggested any 

better method of hooking cars (Tr. 119). 

Mr. Williams described the yard grade from the shake out 

area to the preparation plant 575 feet away as one percent, and 

less in places, and he did not believe that this was a very steep 

grade. He confirmed that the cars will roll freely from the 

shake out area to the plant, starting at a gradual speed, and 

building up speed if they are let go, and depending on whether 

they are empty or loaded. He stated that some impact is 

desirable order to facilitate the closing of the car couplings 0 121) 0 

On cross-examination, Mr. Williams stated that he has never 

observed the car hook come out of the eye, and that none of his 

employees have ever informed him of such an occurrence. Although 

Mr. Shook and Mr. Buckland were wearing safety belts at the time 

the accident~ he did not know if they were using them, and he 

did not ask them about it when he spoke with them during his 

accident investigation. He confirmed that it was not uncommon 

for railroad car brakes to il as the cars travel from the shake 

out area to the load out area. He stated that "you get quite a 

few railroad cars with bad brakes on it", and that the Norfolk 

Southern Railroad, and not the respondent, owns the cars and 

maintains the brakes (Tr. 123). 

In response to further questions, Mr. Williams stated that 

he was familiar with an accident and a violation at the Bedrock 

Pocahontas Company, similar to the one in this case, and that no 

violation was issued by MSHA (Tr. 124). He stated that the 

69 
respondent cannot maintain the railroad cars which it does not 

own, and it cannot determine whether a car brake is defective 

before it comes on mine property (Tr. 126). He explained the 

operation of the car hook, and confirmed that three cars are 

coupled together when they are at the shake out area, and that 

the hook is attached to a cable that is attached to a car hoist. 

The chain which was attached after the accident has slack in it 

to keep the hook in place and to prevent it from being pushed out 

of the eye hole when a car is pulled back (Tr. 131-135). 

Findings and Conclusions 

Fact of Violation 

The respondent is charged with a violation of mandatory 

safety standard 30 C.F.R. § 77.1607(v), for failure to keep 

certain railcars under control at the raw coal shake out area of 

the preparation plant. A trip of three cars got away after the 

car hoist cable hook slipped out of the hook eye on one of the 

railcars, and the cars collided with another trip of cars 

resulting in injuries to an employee who was attempting to stop 

the cars. The cited standard section 77.1607(v), states as 

follows: 

Railroad cars shall be kept under control at all times 

by the car dropper. Cars shall be dropped at a safe 

rate and in a manner that will insure that the car 

dropper maintains a safe position while working and 

traveling around the cars. 

In support of the violation, the petitioner argues that Car 

Dropper Buckland's testimony clearly establishes that the 

railroad cars were out of control, and that the respondent's own 

accident report states that "two loaded and one empty railroad 

cars had gotten away from shakeout 11 , and that mine superintendent 

Lipps and Foreman Williams acknowledged to Inspector Davis that 

the railroad cars had gotten away. Further, another eyewitness, 

car dropper Shook, corroborated the fact that the railroad cars 

coming from the shake out area were not under control. Under all 

of these circumstances, the petitioner concludes that the failure 

of the car dropper to keep the railroad cars under control 

constitutes a violation of section 77.1607(v), and that the cause 

or reasons for the cars being out of control, and the car 

dropper 1 s inability to stop the cars, are irrelevant to the issue 

of whether a violation occurred. 

The respondent argues that the cited regulatory 

section 77.1607(v), does not define "under control" or "safe 

rate", and is therefore void for vagueness. Respondent also 

maintains that the regulation does not provide a remedy to the 

mine operator should the car dropper by reason of his own 

70 
negligence, fail to maintain proper control of the equipment to 

which he is assigned. 

The respondent argues that but for the negligence of Car 

Dropper Buckland, who was admittedly inattentive, the incident in 

question would not have occurred. The respondent asserts that 

the fact that an accident occurred does not give rise to an 

inference of a violation, and it cites the testimony of foreman 

Williams that in the 14 years that he worked at the plant a 

similar incident had never occurred; that no railroad cars had 

ever gotten loose because of the hook coming undone; that the 

shakeout area had been inspected many times by MSHA and no 

violations had ever been issued because of the hook arrangement; 

that no inspector had ever suggested a better method for 

attaching the hook; that he had never observed the hook come out 

of the cable eye; that no employee had ever told him that the 

hook had come out of the eye; and that the hook arrangement as it 

existed at the time of the incident was the standard of the 

industry. 

The respondent also relies on the testimony of plant 

employees Buckland and Shook who testified that no similar 

incidents had ever occurred at the plant in the past 17 to 

36 years; that Mr. Shook missed no work because of his injury; 

that the respondent is a safety-conscious company; and that 

Mr. Shook and Mr. Buckland were wearing safety belts at the time 

of the incident. 

In Harman Mining Corporation v. Secretary of Labor CMSHA), 

3 FMSHRC 45, 62 (January 1981), a railroad employee suffered 

fatal injuries after he was struck by a runaway trip of loaded 

coal carso The-facts established that after a trip of two cars 

was loaded at the preparation plant, a car dropper employed by 

Harman Mining proceeded to drop the cars into position to be 

coupled with another trip of parked loaded cars and hauled away 

by a locomotiveo The car dropper started the two cars down the 

tracku and after picking up speed, he applied pressure to the car 

brakeso Howeverv the brakes would not hold, and when the car 

dropper was unable to control the cars, he jumped to the ground 

and the cars continued on and collided with the parked carsv one 

of which ran over and fatally injured the employee who was 

engaged in coupling two of the cars. I affirmed a violation of 

section 77ol607(v), after concluding that the failure of the car 

dropper to maintain control of the cars constituted a violation. 

My decision in the Harman Mining case, supra, was affirmed 

by the u.s. Fourth Circuit Court of Appeals on December 24, 1981 

2 MSHC 1551. The Court rejected Harman Mining's argument that it 

would have been more appropriate for MSHA to cite the railroad 

company, as an independent contractor, since it supplied the 

railroad cars with faulty brakes and therefore caused Harman's 

car dropper to lose control of the cars. The Court held that 

71 
even if the railroad has some degree of culpability, MSHA had 

discretionary authority to cite Harman for the violation. Citing 

its decision in Bituminous Coal Operators' Ass'n v. Secretary of 

the Interior, 547 F.2d 240 (4th Cir. 1977), the Court ruled that 

mine operators are absolutely liable for violations regardless of 

who violated the Act or created the danger. Subsequent court 

decisions have ruled that the Mine Act is a strict liability 

statute, and the courts have upheld the mine operator's liability 

for violations which resulted from unpreventable and 

unforeseeable employee conduct. Western Fuels-Utah. Inc. v. 

FMSHRC, 870 F.2d 711 (D.C. Cir. 1989), aff'g 10 FMSHRC 256 

(March 25, 1988); Asarco, Inc.-Northwestern Mining Department v. 

FMSHRC, 868 F.2d 1195 (lOth Cir. 1989), aff'g 8 FMSHRC 1632 

(November 10, 1986). 

The Commission has consistently rejected arguments advanced 

by mine operators that they should escape liability for a 

violation because of unauthorized or careless actions by a miner. 

See: A.H. Smith Stone company, 5 FMSHRC 13 (January 1983); 

Southern Ohio Coal Company, '4 FMSHRC 1459, 1462-64 (August 1982); 

Sewell Coal Co. v. FMSHRC, 686 F.2D 1066, 1071 (4th Cir. 1982); 

Allied Products Co. v. FMSHRC, 666 F.2d 890, 893-94 (5th Cir. 

1982). 

The respondent's "void for vagueness" defense IS REJECTED. 

The first sentence of section 77.1607(v), requires a car dropper 

to keep control of railroad cars at all times. I find nothing 

vague about this requirement. I agree with the petitioner's 

position with respect to the fact of violation, and I take note 

of the fact that the respondent conceded that the car dropper 

ollallowed three ( 3) railroad cars to drift free from the shakeout 

and roll down the grade (approximately 1%) to the preparation 

9 striking cars located at the preparation plant and causing ~he same to drift away from him because of his inattentiveness" 

(pagso 2q6q posthearing brief). 

On the facts and evidence presented in this case, it seems 

clear to me that the railroad cars in question were out of 

control and that the car dropper could not maintain control of 

the cars as they drifted and travelled from the shake out area 

immediately before they collided with the other cars at the load 

out area, causing those cars to drift free and out of controlo I 

reject the respondent's arguments that it should not be held 

liable for the violation because of the negligence of the car 

dropper, the absence of similar incidents in the past, or the 

lack of prior violations for the same cited condition. These are 

matters that may be considered in mitigating the respondent's 

negligence, but they may not serve as a basis for absolving the 

respondent of liability for the violation. I conclude and find 

that the petitioner has established a violation by a 

preponderance of the credible testimony and evidence adduced in 

72 
this case. The failure by the car dropper to ma~ntain control of 

the loaded cars in question constituted a violation of 

section 77.1607(v), and the citation IS AFFIRMED. 

Significant and Substantial Violations 

A "significant and substantial" violation is described in 

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

as could significantly and substantially contribute to the cause 

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

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

significant and substantial "if, based upon the particular facts 

surrounding the violation there exists a reasonable likelihood 

that the hazard contributed to will result in an injury or 

illness of a reasonably serious nature." Cement Division, 

National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). 

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

Commission explained its interpretation of the term "significant 

and substantial" as follows:'· 

In order to establish that a violation of a 

mandatory safety standard is significant and 

substantial under National Gypsum the Secretary of 

Labor must prove: (1) the underlying violation of a 

mandatory safety standard; (2) a discrete safety 

hazard--that is, a measure of danger to safetycontributed to by the violation; (3) a reasonable 

likelihood that the hazard contributed to will result 

in an injury; and (4) a reasonable likelihood that the 

injury in question will be of a reasonably serious 

nature. 

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

ll29c {August 1985) the Commission stated further as follows~ 

We have explained further that the third element 

of the Mathies formula "requires that the Secretary 

establish a reasonable likelihood that the hazard 

contributed to will result in an event in which there 

an injury." u.s. Steel Mining Co. 1 6 FMSHRC 1834, 

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

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

is the contribution of a violation to the cause and 

effect of a hazard that must be significant and 

substantial. u.s. Steel Mining Company, Inc., 6 FMSHRC 

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

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

The question of whether any particular violation is 

significant and substantial must be based on the particular facts 

surrounding the violation, including the nature of the mine 

73 
involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498 

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

(December 1987). Further, any determination of the significant 

and substantial nature of a violation must be made in the context 

of continued normal mining operations. National Gypsum, supra, 

3 FMSHRC at 825; U.S. Steel Mining Company, 6 FMSHRC 1573, 1574 

(July 1984); U.S. Steel Mining Co., Inc., 7 FMSHRC 327, 329 

(March 1985). Halfway, Incorporated, 8 FMSHRC 8, (January 1986). 

Citing the applicable case law concerning significant and 

substantial violations, the petitioner argues that the evidence 

in this case clearly establishes the four-prong test enunciated 

by the Commission in Secretary of Labor CMSHA) v. Mathies Coal 

Company; supra, for determining whether a violation is 

significant and substantial. 

With respect to the underlying violation, the petitioner 

asserts that the uncontradicted evidence in this case establishes 

that the car dropper failed to keep the railroad cars under 

control on October 1, 1991, and that this establishes a violation 

of section 77.1607(v). Petitioner argues that the hazard 

presented by the violation is the railroad cars being out of 

control and subjecting workers to serious injuries, and it cites 

the inspector's testimony that he considered the violation to be 

significant and substantial because it was reasonably likely that 

the railroad cars would become out of control and cause a 

reasonably serious injury. Petitioner also cites the testimony 

of car droppers Buckland and Shook that the restraining hooks 

often came out of the eye of the railroad cars allowing the cars 

to come out of control. Petitioner concludes that the frequency 

with which the book slipped out of the eye increased the 

likelihood that the cars would come out of control and cause a 

serious injuryo and it points out that a serious injury actually 

occurred in this case as a result of the railroad cars being out 

of control. Conceding that the inspector believed that the cars 

may not have gotten away if the employees had been more alert, 

the petitioner points out that the inspector did not state that 

such human error could be avoided, and citing Secretary of Labor 

!MSHAi Vo Eagle Nest, Inc., 7 FMSHRC 1119 (July 1992)v petitioner 

concludes that the likelihood of an injury continues to exist 

regardless of whether the miners exercise caution. 

Finally 9 petitioner concludes that it was reasonably likely 

that a reasonably serious injury would occur if the railroad cars 

were not kept under control by the car dropper. In support of 

this conclusion, petitioner cites the testimony of the inspector 

that railroad cars which are not kept under control can cause 

serious injuries such as being caught between cars, crushing or 

cutting off a foot or leg, and fatalities. Petitioner also 

relies on the inspector's testimony that in issuing the citation, 

he considered the seriousness of any potential injury rather than 

74 
only the injury that actually occurred, and the inspector's 

belief that fractured ribs, which is the injury sustained by 

Mr. Shook, was a reasonably serious injury. 

The respondent maintains that the inspector issued the 

citation without consulting the MSHA Program Policy Manual 

guidelines for determining significant and substantial violations 

(Exhibit R-7). Citing the applicable manual guidelines, the 

respondent asserts that the inspector did not evaluate the actual 

circumstances surrounding the purported violation; did not 

evaluate the nature of the injury; did not include in his notes 

all of the factors he relied upon to make a judgment that the 

violation was significant and substantial or that the respondent's negligence was moderate; and did not interview the injured 

employee (Shook) or the shake out operator Buckland. Further, 

the respondent asserts that the inspector did not know whether 

Mr. Shook and Mr. Buckland were wearing safety belts at the time 

of the incident in question, and he did not know whether any 

other violations were ever written pursuant to section 77.1607(v) 

in Southwest Virginia withirithe·last 10 years. Respondent 

maintains that such determinations are mandatory in considering 

whether or not to label a violation "significant and 

substantial", and it concludes that in light of the admitted 

failure by the inspector to follow the manual guidelines, his 

"S&S" finding cannot stand and should be vacated. 

Although it is true that Inspector Davis admitted that he 

did not read the MSHA policy manual "just before" he wrote the 

citation (Tr. 110), I cannot conclude that his failure to do so 

is grounds for vacating his "S&S" finding. The commission has 

held that the MSHA Manual guidelines and instructions are not 

officially prom~lgated regulatory rules binding on the Commission 

or its Judges. Old Ben Coal Company, 2 FMSHRC 2806, 2809 

(October 1980)~ King Knob Coal Company, Inc., 3 FMSHRC 1417, 1420 

(June 1981); United States Steel Corp., 5 FMSHRC 3, 6 (January 

1983). 

The respondent's suggestions that the absence of prior 

accidents involving a car hook slipping out and causing a car to 

get out of control, the lack of any evidence that the respondent 

and other mine operators in Southwest Virginia have ever been 

previously cited for violations of section 77.1607(v), and the 

fact that Mr. Shook and Mr. Buckland were wearing their safety 

belts, support a finding of a non-"S&S" citation ARE REJECTED. 

These are matters that may or may not mitigate the respondent's 

negligence and its history of prior compliance. 

The term "significant and substantial", in the context of a 

violation within the meaning of section 104(d) (1) of the Act, has 

been interpreted by the Commission in the principal cases 

enumerated earlier in this decision. In the instant case, the 

critical question presented is whether or not the evidence 

75 
presented by MSHA in support of the inspector's "S&S" finding, 

which is essentially the same information that he had at his 

disposal and considered at the time he issued the citation and 

made that finding on October 17, 1991, meets the "S&S" criteria 

enunciated by the Commission. 

The evidence in this case reflects that the citation was 

issued more than two weeks after the October 1, 1991, accident. 

The inspector went to the mine on October 17, 1991, as a followup to the accident report that was filed by the respondent. The 

inspector's credible and unrebutted testimony reflects that he 

spoke with the plant superintendent and plant foreman (Williams 

and Lipps), who corroborated the information supplied by the 

respondent in the accident reports (Secretary's Exhibits 2 and 

3), did not contradict that information. In fact, they confirmed 

and agreed that the cars in question had gotten away. 

Mr. Williams did not dispute the inspector's testimony, and 

Mr. Lipps did not testify in this matter. Under these circumstances, it seems clear to me.that the inspector relied on the 

information supplied by the respondent's accident reports, made 

some notes, and considered the information from the 

superintendent and foreman to support his finding that a 

violation had occurred and that it was significant and 

substantial. 

On the facts and evidence adduced in this case, it seems 

clear to me that the failure of the car dropper to keep the cars 

under control, a condition which I have found constituted a 

violation of section 77.1607(v), contributed to the cause and 

effect of a discreet safety hazard, namely the real potential of 

a car drifting or travelling out of control and striking other 

cars or miners working the area" Once a car is out of controlu 

particularly in a situation where the car has bad brakes that are 

subject to failure, I believe that one can reasonably conclude 

that miners working in the area would be exposed to the hazard. 

In this case, not only was there a reasonable likelihood that the 

hazard contributed to would result in an injury, the hazard came 

to fruition when the cars got away and caused or contributed to 

the accident that resulted in an injury to Mr. Shook 1 s ribs. The 

fact that Mr. Shook did not suffer more serious injuries and lost 

no time from work is not determinative, Secretary v. OzarkMahoning Company, 8 FMSHRC 190 (February 1986). I take note of 

the fact that Mr. Shook 1 s unrebutted testimony reflects that he 

was assigned to less strenuous duties, had to wear a rib cage 

protective device for three weeks, and did not resume his normal 

car dropper 1 s duties until a week or so after returning to work a 

day after the accident. 

After careful review and consideration of all of the 

evidence in this case, including the arguments advanced by the 

parties in support of their respective positions, I conclude and 

find that the petitioner has the better part of the argument and 

76 
that it has established by a preponderance of the evidence that 

the cited violative conditions in question constituted a 

significant and substantial violation of mandatory safety 

section 77.1607(v). Accordingly, the inspector's "S&S" finding 

IS AFFIRMED. 

Negligence 

Inspector Davis testified that he based his moderate 

negligence finding on what he was told by Mr. Lipps and 

Mr. Williams with respect to how the accident occurred. 

Mr. Davis conceded that prior to issuing the citation he made no 

determination as to whether or not mine management had any 

indication that the car hook had been a problem, and he stated 

that "if somebody wasn't negligent, the hook wouldn't have come 

out. I would have a better system" (Tr. 96-96). 

In support of the inspector's moderate negligence finding, 

the petitioner relies on the t.~stimony of car dropper Buckland 

who estimated that prior to the accident, the hook came out of 

the railroad cars between three times a day and three times a 

week, that co-workers had reported this problem to their 

supervisor, and that since the respondent installed a slack 

chain, the hook no longer slips out of the car. Conceding the 

fact that there is no statutory or regulatory requirement 

regarding the type of cable system used, the petitioner concludes 

that the cable system in use at the time of the accident left 

room for improvement, and that the installation of the slack 

chain was not a difficult or time-consuming procedure. Under all 

of these circumstances, the petitioner further concludes that the 

respondent was ~oderately negligent by failing to ensure that the 

railroad cars did not become out of control. 

In reply to the respondent 9 s assertion that was not 

negligent because MSHA had inspected the shake out area may times 

before but had never issued a citation for using the cable hoist 

system without a slack chain, the petitioner points out that the 

inspector explained that the hoist system itself did not 

constitute a violation, and the violation occurred when the hook 

slopped out of the eye of the railroad car allowing the cars to 

become out of control. Since MSHA had never observed the cars 

out of control, and had not otherwise been informed that they had 

become out of control, petitioner maintains that no basis existed 

for issuing prior citations for such an occurrence. 

Regarding the respondent's contention that the cable hoist 

system in use at the time of the accident was "state of the art", 

and the."industry standard", petitioner suggests that even if 

this were true, the industry standard is unsafe and subject to 

failure, and the fact that the respondent quickly and easily 

installed a slack chain shortly after the accident to prevent the 

hook from slipping out of the eye of the cars shows that the 

77 
system in use allowed room for improvement. Further, since the 

cars often got away, petitioner concludes that the respondent 

should have taken corrective action sooner to prevent an accident 

from occurring. The petitioner further concludes that the fact 

that no prior accidents had occurred due to the hook slipping out 

of the eye does not excuse the respondent's failure to take 

corrective action sooner, particularly in light of the evidence 

that the hook often slipped out of the eye and caused the cars to 

get away, and that this condition previously had been reported to 

the supervisor. Petitioner believes that the fact that the 

respondent has been lucky and has avoided prior accidents by 

stopping the cars quickly does not support a reduction in the 

degree of negligence. 

In reply to the respondent's suggestion that the accident 

would not have occurred if the railroad car brakes had worked, 

petitioner concedes that the inspector acknowledged that properly 

functioning brakes may have prevented the accident, but it cites 

the inspector's testimony th;:;t .. the .. cars were out of control 

before the car dropper ever applied the brakes. Consequently, 

regardless of whether the brakes functioned properly, and in 

light of foreman Williams' testimony that the respondent was 

aware of the bad brake problem and received quite a few railroad 

cars with bad brakes, petitioner concludes that the respondent's 

knowledge of the brake problem also supports a finding of 

moderate negligence. 

Aside from the respondent's liability for the violation, the 

conduct of an employee may mitigate the degree of negligence, if 

any, of the mine operator for the violation. A.H. Smith Stone 

Company, 5 FMSHRC 13, 15 (January 1983). In cases of this kind, 

the judge may consider the foreseeability of the miner's conductu 

the risks involved 7 and the operator's supervisingu training 9 and 

disciplining of its employees to prevent a violation. Southern 

Ohio Coal Co.r 4 FMSHRC 1459, 1463-64 (August 1982); Nacco Mining 

Co. 0 3 FMSHRC 848, 850-51 (April 1981), Western Fuels-Utah, Inc., 

10 FMSHRC 256, 259-60 (March 1988). 

Mr. Shook testified that prior to the accident, he was not 

aware of a hook ever coming off a car in the area where he 

workedu and there no evidence that the ever reported such an 

incident to mine management. Although Mr. Buckland testified 

that the hook came out rather often, he admitted that he had 

never reported this to management, and while he also testified 

that 91 other men" had reported it to their supervisor u none of 

these unidentified individuals were called to testify, and I have 

given Mr. Buckland's hearsay testimony in this regard no weight. 

Plant Foreman Williams' testimony that no one had ever previously 

reported a hook slipping out of the car stands unrebutted, and I 

find no credible evidence to support any conclusion that the 

respondent was previously aware of the problem. 

78 
Mr. Buckland and Mr. Shook confirmed that the respondent had 

safety procedures in effect to deal with runaway cars, that they 

were wearing safety belts at the time of the incident, and there 

is no evidence that they were not adequately trained by the 

respondent to perform their respective job tasks. However, I 

take note of Mr. Shook's testimony that the respondent's safety 

procedures include instructions prohibiting anyone from getting 

on a runaway car, and Mr. Buckland's contradictory testimony 

concerning "oral instructions" that he is to attempt to "catch 

and stop the cars if they get away", and that "get away" cars are 

not reported to management unless some damage has occurred 

(Tr. 34, 54-55). The respondent may wish to reexamine its safety 

procedures in light of this testimony. 

I find no evidence to support any reasonable conclusion that 

the respondent could have foreseen the lack of attention on the 

part of Mr. Buckland which initially resulted in the first trip 

of cars drifting away from the shake out area and rolling freely 

towards the load out area. HoY.Jever '· on the facts of this case, 

one of the contributing factors to the accident was the failure 

of the brakes on the trip of railroad cars that got away from 

Mr. Buckland. If the brakes had not failed, I believe that it is 

reasonable to conclude that Mr. Buckland could have brought the 

cars under control and the initial collision with the other cars 

may have been avoided. However, the brakes did fail, and foreman 

Williams candidly admitted that the respondent accepted railroad 

cars with bad brakes for use at the plant, and that it was not 

uncommon for car brakes to fail as the cars travelled from the 

shake out area to the load out area. Under the circumstances, 

and notwithstanding the lack of knowledge by the respondent that 

car hooks have come loose in the past, I conclude and find that 

the respondent should have foreseen that the acceptance and use 

railroad cars with faulty brakes at its preparation plant 

property posed a potential accident hazard. Under the 

circumstancesp the moderate negligence finding by the inspector 

IS AFFIRMED. 

Size of Business and Effect of Civil Penalty Assessment on 

the Respondent•s Ability to Continue in Business 

The parties have stipulated that the Coronet Jewell 

Preparation Plant is a medium-sized operation, and the unrebutted 

information found in an MSHA computerized "Proposed Assessment 

Data Sheet 11 (Exhibit P-6), reflects that the respondent's overall 

corporate mine production was in excess of twenty-three (23) 

million tons in 1990. This same production information is also 

reflected in the Proposed Assessment (Exhibit A}, which is part 

of the initial civil penalty assessment pleading served by the 

Secretary on the respondent. I conclude and find that the 

respondent is a large mine operator, and the parties have 

stipulated that the payment of the proposed civil penalty 

79 
assessment for the violation in question will not adversely 

affect the respondent's ability to continue in business. 

History of Prior Violations 

An MSHA computer print-out (Exhibit P-5), reflects that for 

the period October 1, 1989, to September 30, 1991, the respondent 

paid civil penalty assessments for twenty-two (22) violations 

issued at the plant. None of these prior violations involved the 

same safety standard in issue in this case, and the petitioner 

believes that the respondent has a low history of violations. I 

agree with the petitioner in this regard, and for an operation of 

its size, I conclude and find tht the respondent has a good 

compliance record, and I have taken this into consideration in 

assessing the civil penalty for the violation which has been 

affirmed. 

Good Faith Compliance 

The parties stipulated that the respondent timely and 

immediately abated the violation, and I adopt this as my finding 

on this issue and have taken it into consideration in this case. 

Gravity 

Based on all of the evidence adduced in this case, including 

my 11 S&S" findings, I believe that Mr. Shook was fortunate in 

avoiding more serious injuries, and I conclude and find that the 

violation was serious. 

Civil Penalty Assessment 

Taking into consideration all of the civil penalty 

assessment criteria found in section llO(i) of the Actu I 

conclude and find that the petitioneris proposed civil penalty 

assessment of $58, for the violation in question is reasonable, 

and IT IS AFFIRMED. 

ORDER 

The respondent IS ORDERED to pay a civil penalty assessment 

$58u for the section 104(a) "S&S" Citation No. 3507478, 

October 17u 1991, 30 C.F.R. § 77.1607(v). Payment is to be made 

to MSHA within thirty (30) days of this decision and Order, and 

upon receipt of payment, this matter is dismissed. 

~Kru:~- Administrative Law Judge 

80 
Distribution: 

Tina Mullins, Esq., Office of the Solicitor, u.s. Department of 

Labor, 4015 Wilson Blvd., Room 516, Arlington, VA 22203 

(Certified Mail) 

CharlieR. Jessee, Esq., Jessee & Read, P.C., 200 w. Valley 

Street, Abingdon, VA 24210 (Certified Mail) 

/ml 

81 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1Oth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

CONSOLIDATION COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

JAN 11. 1993 

. . 

0 

. 

. 

e 

. . 

0 

e 

. 

0 

: 

. .. 

. 

e 

. 

0 

. 

• 

. " 

CONTEST PROCEEDINGS 

Docket No. PENN 91-147-R 

Citation No. 3701661; 1/17/91 

Docket No. PENN 91-148-R 

Citation No. 3701662; 1/17/91 

Docket No. PENN 91-149-R 

Citation No. 3701663; 1/18/91 

Robena Preparation Plant 

Mine ID 36-04175 

CIVIL PENALTY PROCEEDING 

: Docket No. PENN 92-391 

A.C. No. 36-04175-03557 

0 

0 

Robena Preparation Plant 

DECISION 

Appearancesg Daniel E. Rogere Esq., Consolidation Coal Company, 

Pittsburgh, Pennsylvania for Consol; 

Richard Rosenblitt 8 Esq. 8 U.So Department of Laboru 

Office the Solicitoru Philadelphiau 

Pennsylvaniau for the Secretary of Labor. 

Beforeg Judge Weisberger 

At issue in these consolidated cases is the validity of a 

withdrawal order issued under Section 107 of the Federal Mine 

Safety and Health Act of 1977 ("the Act"). Also at issue are 

citations alleging violations of 30 C.F.R. S 77.1605(k), and 

30 C.F.R. § 77.1713(a). Subsequent to notice, the cases were 

scheduled and heard in Washington, Pennsylvania, on 

September 22, 1992. At the hearing, George Rantovich, Robert w. 

Newhouse, and Robert L. Campbell testified for the Secretary 

(Petitioner). Edward F. Bodkin, Jr., testified for the Operator 

(Respondent). Also, subsequent to the hearing, Petitioner 

offered in evidence Government Exhibit No. 7 which was not 

82 
objected to by Respondent. 

Noc 7 is hereby admitted. 

hearing briefs on December 

respectively. 

Accordingly, Government Exhibit 

Petitioner and Respondent filed post 

7, 1992 and December 16, 1992, 

Findings of Fact of Discussions 

Xo Citation No. 3701662 (Violation of 30 C.F.R. S 77.1605(k)) 

On January 17, 1991, MSHA inspector George Rantovich issued 

Citation No. 3701662 alleging a violation of 30 C.F.R. S 

77.1605(k) in that at various locations along both sides of the 

elevated haulage road at Respondent's Robena preparation plant 

( "Robena") 1 adequate berms were not provided. 2 Section 

77 .. 1605(k) supra, provides as follows "Berms or guards shall be 

provided on the outer bank of elevated roadways". 

The terrain at the Robena-facility is hilly. A haulage road 

traverses this terrain from the plant to a refuse dump. The 

haulage road is at a 10 degree incline from the plant to a point 

where the road crosses railroad tracks. From there to a "Y" 

intersection the slope of the grade is 5 degrees. Terex haulage 

trucks regularly travel from the plant to the refuse dump and 

back. 

On January 17, 1991, George Rantovich, an MSHA inspector, 

inspected Robena along with Robert campbell, Robert w. Newhouse, 

and Edward F. Bodkin, Jr. Rantovich walked on the haulage road 

from the plant to the "Y" intersection. Rantovich testified that 

there was a "definite drop offlt on both sides of the roadway up ~:c 3 ~:.o f' eet. in some areas ( Tr o 2 6) . 

"Robena is a facility that cleans coal. It is not 

physically connected to an underground mine, nor it is dedicated 

to one¢ The Dilworth Mineu ("Dilworth") operated by Respondent 

located approximately eight miles away. Coal is normally ~ransported from Dilworth mine to RobenaQ by way of barges that ~ravel a ~iver route. Dilworth and Robena have separate mine 

identification numbers and are required to maintain separate ~ecords. 

~he citation issued by Rantovich alleges that adequate ~eams were not provided on the haulage road from the preparation 

yplantu 00 •• to the slate dump11 • Newhouse and Rantovich conceded 

that they walked on the haulage road only as far as the "Y" 

intersection and did not reach the slate dump. I find that the 

error in the citation with regard to the extent of the area cited 

is not fatal, inasmuch as Bodkin indicated that Newhouse had 

pointed out to him the area of inadequate berms, and Respondent 

does not allege any prejudice as a result of the error in the citation. 

83 
Newhouse, an MSHA supervisory inspector testified that he 

measured a 32 degree drop off on the left side of the roadway. He 

indicated that there was a zero to 20 degree drop off on the 

right side from the roadway to a ditch which ran alongside the 

roadway from the plant area up to the intersection with the 

railroad track. He said that from the railroad track to the "Y" 

intersection, the bed of the roadway was raised up to 20 to 25 

feet above the natural terrain. Respondent did not impeach or 

rebut the testimony of Newhouse and Rantovich in these regards. 

Hence I conclude that the roadway was elevated. 

Newhouse estimated that 50 percent of the berms on both 

sides of the road between the plant and the Y intersection were 

inadequate as they were only 25 to 26 inches high. In essence, 

Rantovich and Newhouse both indicated that the road was muddy and 

slipperyu and that berms less than 42 inches high, the height of 

the axles of the terex vehicles in question, are not adequate to 

stop these vehicles from going over the embankment. Newhouse 

said that Bodkin, Robena plant foreman, agreed that there was an 

inadequate berm. Bodkin did not contradict the testimony of 

Rantovich and Newhouse with regard to the existence of areas 

where the berms were less than the axle height of 42 inches. Nor 

did Bodkin impeach or contradict the testimony of Newhouse that 

he (Bodkin) said that the berm was inadequate. Also, Respondent 

did not impeach or contradict the testimony of Petitioner's 

witnesses that the road was elevated in relation to the adjacent 

land. 

Pursuant to Section 77.1605(k), supra berms must be provided 

on the outer bank of elevated roadways. A "berm" is defined in 

30 c.F.R. § 70.2(d)u as ••• "a pile or mound of material capable 

restraining vehicle;" 

In Vo U.S. Steel Corpou 5 FMSHRC 3 (1983)u the 

Commission addressed what is meant by ~restraining a vehiclev9 • 

Restraining a vehicle does not mean • • • absolute 

prevention of over travel by all vehicles under all 

circumstances. Given the heavy weights and large sizes 

of many mine vehiclesu that would probably be an 

unattainable regulatory goal. Ratheru the standard 

requires reasonable control and guidance of vehicular 

llilotion. 

The Commission in u.s. Steel, supra, at 5 held as follows; 

We hold that the adequacy of a berm or guard under 

section 77.1605(k) is to be measured against the 

standard of whether the berm or guard is one a 

reasonably prudent person familiar with all the facts, 

including those peculiar to the mining industry, would 

have constructed to provide the protection intended by 

84 
the standard. 

Newhouse testified, in essence, that the protection intended 

by Section 77.1605(k) supra requires berms to be at least the 

height of the axle of the largest vehicle normally using the road 

in question. Rantovich measured a terex•s axle height and noted 

it was 42 inches. MSHA has in the past notified operators of 

this height requirement. 

Robert L. Campbell, Chairman of the Union's Health and 

Safety Committee, and an employee of the operator, testified 

that, for the last six years, during monthly inspections the 

union and the operator measure the berms to determine whether 

they are at least 42" high. According to Campbell, if a section 

of the berm is less than 42 11 , the operator immediately builds the 

berm to at least the 42" level. This testimony was not inspected 

or contradicted by Respondent. 

I conclude, considering all the above, that the berms less 

than 42" high were not adequate under Section 77.1605(k}, supra, 

as they were not capable of restraining the vehicles in question. 

Also, according to Rantovich, at 3 to 4 locations on both 

sides of the haulage road for distances between 15 to 20 feet, 

there were no berms at all. He indicated that in all these areas 

the roadway was elevated. He indicated that near the railroad 

track crossing and for approximately 15 feet there were no berms, 

there was an immediate drop off of 2 to 3 feet which tapered off 

towards the ditch. Newhouse estimated that 10 percent of the 

roadway did not have any berms. 

Bodkin indicated thatu for purposes of drainageu a bulldozer 

had cut through and eliminated approximately 12 to 15 feet of the 

berms on the right side of the roadway approximately 20 to 30 

feet from the intersection with the railroad track in the 

direction the "Y" intersection. 

Although the testimony of Bodkin is not congruent with that 

Rantovichqs testimony with regard to the area where there were ~o bermsu his testimony does not contradict that of Rantovich and 

Wewhouse with regard to the existence of at least one elevated 

area where there were no berms. 

Based on all the aboveu I find that on elevated portions of 

the roadwayu there were areas without berms, and other areas 

where the berms were not adequate. Therefore, it has been 

established that Respondent violated Section 77.1605(k) supra. 

II. Order No. 3701661 (imminent danger withdrawal order) 

Rantovich indicated that when he walked the haulage road at 

approximately 11:00 p.m., on January 17, 1991, it was slippery 

85 
and some of the mud on the road was ankle high. Rantovich 

stopped a terex driver who was coming down the haulage road 

toward the plant, and asked him if he had any problems. 

Rantovich said that the driver told him that he had problems 

controlling the vehicle as it was fish tailing. Rantovich had 

the terex driver turn around and head back up the roadway so that 

the roadway could be closed. According to Rantovich as the terex 

went back up the hill, its traction was "a little slippery but he 

(the driver} turned around and got started up once he got started 

up he was alright" (Tr. 41) 

Bodkin indicated that he had been on the premises since 

approximately 2:30p.m., and had not received any complaints with 

regards of the condition in the road. He indicated that, 

specifically, neither of the terex operators who were on duty 

during the night shift had complained of any problems with the 

roadway. I do not find this testimony sufficient to rebut the 

testimony of Rantovich as to what was told to him by one of the 

terex operators. Further, Bodkin did not specifically rebut the 

testimony of Rantovich as to his having observed that the 

traction of the terex vehicle was "slippery". According to 

Newhouse, if a vehicle would leave the road due to not being 

stopped by a berm, it could travel 20 to 25 feet on the right 

side before it hit something. In contrast, Bodkin testified that 

if a truck fell over the hill in the area where there was a cut 

in the berm it would only go 5 to 8 feet. He also said that 

vehicles travel on the left side of any 5 to 10 m.p.h., and that 

any danger is further minimized by the fact that the "bowl" of 

the terex can be dropped and "that would be like a brake" 

(Tr.154). 

Rantovich took into account the muddyu slippery condition of 

road as well as the inadequate bermsu and issued a section 

withdrawal order. 

The Commission, in Rochester & Pittsburgh Coal Co., 11 

FMSHRC 2159 (November 1989)u the Commission, at 2164 noted the 

recognition the seventh circuit accorded to the importance of the 

inspectorgs judgment as follows~ 

Clearly 9 the inspector is in a precarious position. He 

is entrusted with the safety of miners 1 lives,and he 

must ensure that the statue is enforced for the 

protection of these lives. His total concern is the 

safety of life and limb •••• We must support the 

findings and the decisions of the inspector unless 

there is evidence that he has abused his discretion or 

authority. (emphasis added) Old Ben Coal Corp. v. 

Interior Bd of Mine, Op. App., 523 F.2d 25, at 31 (7th 

Cir. 1975) 

Recently, the commission in Utah Power and Light Company, 

86 
13 FMSHRC 1617 at 1627 affirmed its holding in Rochester and 

Pittsburgh supra. that ".o.an inspector must have considerable 

discretion in determining whether an imminent danger exist." In 

its analysis of whether an inspector's discretion has been 

abused, the Commission, in Utah Power and Light Company, supra, 

at 1622 set forth as follows: "To support a finding of imminent 

danger, the inspector must find that the hazardous condition has 

a reasonable potential to cause death or serious injury within a 

short period of time". 

Taking into account the slippery condition of the road, its 

grade, the degree of drop off at either side, the lack of 

adequate berms for significant distances, and the fact that the 

road had two curves, I conclude that Rantovich did not abuse his 

discretion in finding an imminent danger herein, and that his 

conclusion in this regard is affirmed. 

IIIo Citation No. 3701662 

AG Significant and Substantial 

I find that the record establishes that, as alleged by 

Rantovich in the Citation that he issued, the violation was 

significant and substantial. Clearly, the lack of adequate berms 

contributed to the hazard of a truck leaving the slippery 

roadway, and sliding off the road. For the reasons set forth 

above in the discussion of the issue of imminent danger, II, 

infra, I conclude that there was reasonable likelihood that the 

hazard contributed to by the lack of adequate berms would result 

in a injury. Respondent did not impeach or contradict the 

testimony of Petitioner's witnesses that, in essence, there was a 

&easonable likelihood that the resulting injury will be of a 

zeasonably serious nature. Thus I accept their testimony in this 

Tegard. For these reasons I conclude that the violation herein ~as significant and substantial (See Mathies Coal Company, 6 

FMSHRC lu J-4 (January 1984). 

lB\. }Penalty 

considering all the factors discussed in the analysis of the 

imminent danger issue infra, II 0 I conclude that the violation 

herein was of a high level of gravity. According to Bodkin he 

had been at the site since approximately 2:30 in the afternoon 

and no one had complained to him about the conditions of the 

berms. Also he indicated that the two terex operators on the ~ight shift indicated that they were not having any problems 

traveling the roadwayo On the other hand, Newhouse testified 

that on January 17, at approximately 9:30p.m., he received a 

telephone call from a miner at the mine alleging a possible 

imminent danger in the haulage road. He then called Respondent's 

plant foreman and advised him of the same. Bodkin testified 

Newhouse called and advised him that a 103(g) inspection was 

87 
going to be made on the haulage way. According to Bodkin, 

Newhouse told him that the area in issue was "where the Terexes 

start up the hill" (Tr.140). Bodkin indicated that he was aware 

of the problem in that area, and had assigned persons to clean it 

up. Taking into account the phone call from Newhouse alerting 

Bodkin to possible problems in the haulage road, as well as the 

slippery conditions of the road, Bodkin was clearly moderately 

negligent in not inspecting the roadway at that point for 

adequate berms. Such an inspection would have revealed 

inadequate berms as per the testimony of Petitioner's witnesses 

and not rebutted by Bodkin. 

Taking all the above into account, and considering the 

statutory factors set forth in Section 110(i) of the Act as 

stipulated to by the parties, I conclude that a penalty of $1,200 

is appropriate for the violation cited in Citation No. 3701662. 

!V. Citation No. 3701663 

On January 18, 1991, Rantovich issued Citation No. 3701663 

alleging a violation of 30 c.F.R. S 77.1713 in that an 

examination during the last shift was not conducted on the 

haulage road for hazardous conditions. 

On the night' of January 17, 1991, the muddy nature of the 

road, and lack of adequate berms road, and created a hazardous 

condition as discussed above, infra, II. According to Rantovich, 

he asked Bodkin to provide him the record book wherein the 

examinations are noted. Rantovich testified that the record book 

did not indicate any inspection of the haulage road on 

January 17o Rantovich then looked at the records for the 

preceding Gicouple~ of weeks or months" (Tro47) u and there was no 

indication of an inspection of the haulage road. Rantovich said ~hat no one explained to him why there was no indication in the 

record book of any inspection. Rantovich said that he asked 

Bodkin if an inspection was made of the roadway that day, and he 

said that he did not make one and that he was not aware of one. 

Based on the above 0 I conclude that there was no indication 

in the Respondentis record book that the haulage road at issue 

had been inspected for hazardous conditions on or about January 

0 1991. I thus find that Petitioner has established a prima 

facie case of a violation (See L.J.'s Corporation, 14 FMSHRC 1278 

(August 26u 1992)). I also find that Respondent has not 

established that indeed the roadway had been inspected on or 

about January 17, 1991. I thus find that Section 77.171~ was 

violated by Respondent. 

Bodkin testified, as noted above, that, in essence, on 

January 17, Newhouse had advised him of a possible imminent 

danger in the area where the terex trucks start their trip up the 

haulage road, and that he was actively engaged in cleaning up the 

88 
slippery road at that point. He also testified that no employee including the two terex operators on the evening shift had told 

him of any problem with the road condition. However, taking into 

account the muddy slippery conditions of the roadway, the fact 

that Bodkin had been advised as of 9:30p.m., of a possible 

hazardous condition with regard to the roadway, I conclude that 

Respondent's negligence herein was more than ordinary negligence 

and constituted unwarrantable failure. 3 (See, Emery Mining Corporation, 9 FMSHRC 1997 (1987). 

I conclude that a penalty of $1,000 is appropriate for the 

violation cited in this order. 

ORDER 

It is ORDERED that: (1) the Stay Order previously issued in 

Docket No. PENN 91-147-R is hereby lifted; (2) Respondent shall, 

within 30 days of this decision pay $2,200 as a civil penalty for 

the violations found herein; (.3) Order No. 3701661 be affirmed; 

and (4) Docket Nos. PENN 91-147-R, PENN 91-148-R, and 

PENN 91-149-R, be DISMISSED. 

Lwei~ Administrative Law Judge Distribution: 

Daniel E. Rogers, Esq., Consolidation Coal Company, 1800 

Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

Richard RosenblH:.t 9 Esq. v Office of the Solicitor 0 Uo S. 

Department of Labore Room 14480 Gateway Building0 3535 Market 

Street 9 Philadelphia 9 PA 19104 (Certified Mail) 

nb 

appears to the Respondent 9 s position, as set forth in ~~s brief 9 that the management of Robena did not consider that 30 

CoWoRo Part 11 was applicable to the facility. Respondentvs 

position appears to be based on its assertions in its brief, that 

there is ;'confusion" in the Act concerning MSHA Jurisdiction over 

preparation plants not located at mine sites and the "confusing" 

lack of a definition in Part 77 regarding the applicability of 

that Part. As such, Respondent argues that its failure to 

inspect does not justify a findings of "unwarrantable failure". 

I do not accept this argument. Respondent has not proffered any evidence that its agents were "confused" as to the applicability of Part 77. I do not assign any probative weight in this regard 

to the arguments of counsel, as such are not evidence. 

89 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1Oth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 13 1993 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

. . 

. . 

. 

0 

Docket No. KENT 92-350 

A. C. No. 15-04670-03673 

: No. 37 Mine 

ARCH OF KENTUCKY INCORPORATED, 

Respondent 

0 

. 

e 

. 

Appearances: 

DECISION 

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

u.s. Department of Labor, Nashville, Tennessee, 

for Petitioner; 

MarcoM. Rajkovich, Esq., Wyatt, Tarrant, & Combs, 

Lexington, Kentucky, for Respondent. 

Before: Judge Weisberger 

Statement of the Case 

This civil penalty proceeding is before me based upon a 

petition for assessment of civil penalty filed by the Secretary 

Labor (Petitioner) leging a violation by the Operator ~Respondent} of 30 CoF.R. § 75.326. Pursuant to notice the case 

was scheduled and heard in Johnson City 9 Tennessee on October 22u 

1992. James w. Poynter testified for Petitioner, and Don 

Hendericksono and Benny Dixon, testified for Respondent. 

Petitioner and Respondent filed post-hearing briefs on December 

9 @nd December 28 0 respectivelyo 

Findings of Fact and Discussion 

~0 Introduction 

The G-4 Longwall Panel at Respondent's Karst Mine is located 

under another coal mine, and has experienced pressure from both 

the roof and the mine floor. Subsequent to the opening of the 

section on February 28, 1991, due to continuing roof control 

problems Respondent had to have the area re-bolted with super 

bolts. Additional supports in the forms of cribs, and donut 

cribs with beams on top, were also installed. 

On July 15, 1991, a roof fall approximately 120 feet long, 

and the full width of the 18 foot wide entry, occurred in the 

90 
belt entry between crosscuts 6 and 8. Additional cribbing was 

again installed in the G-4 North Panel, and the area was 

rebolted. The following day, another roof fall occurred in the 

belt entry on top of the first fall, and it was decided to 

abandon the area and remove all equipment. As a consequence of 

the roof falls and deteriorating roof condition, stoppings were 

removed in the 6 and a crosscuts in order to installed additional 

support around the fall. The belt line was re-routed to detour 

the area of the fall, and new stoppings were installed to isolate 

the re-routed belt line from the intake entry. Subsequent to the 

roof fall on July 15, supplies were continuously brought to the 

area in question, in order to provide additional support which 

was being done on an on going basis. Subsequent to the roof 

fall, nothing was done to intentionally alter the ventilation as 

required by Respondent's ventilation plan. 

Once supplies were brought onto the section, they had to be 

hand carried either through a door in the third crosscut between 

the belt and intake entry, or'·between the doors built into the 

stoppings in crosscut No. 8 between the belt and intake entries, 

and in the intake entry just inby crosscut No. a. 

In normal operation, the doors separating the belt from the 

intake entries are kept closed in order to prevent air in the 

belt from going to the face. However, subsequent to the roof 

falls on July 15, the doors were opened in order to allow the 

transfer of material to the belt entry, as there was no other 

access. None of the doors were kept open for the purpose of 

having air go from the belt entry to the face. 

A few days after July 15, another roof occurred in the No. 1 

crosscut to the track entryo The fallu 8 to 10 feet highu 

covered the width of the entry and extended 100 feeto 

IIo Violation of 30 C.P.R. § 75.326 

On July 3lu 1991 0 James W. Poynter, an MSHA Inspectoru 

inspected the area in question. According to Poynteru at 

approximately 10~30 a.m. 0 while in the belt entry between 

crosscuts 5 and 6 0 he felt movement of air in the beltway which 

was a

1very perceptible 19 (Tr. 65). He picked up a hand full of 

zock dustu tossed it in the air, and it "easily showed the 

direction of the air current travel" (Tr. 65) inby. The active 

working place was a little more than four crosscuts inby. 

According to the ventilation plan, air in the belt entry is to 

course outby to a regulator located at the intersection of the 

G-4 Beltline and the return entry of the G-North Panel. Poynter 

issued a section 104(d)(2) order alleging a violation of 30 

C.F.R. S 75.326, which, as pertinent, provides that intake 

entries shall be separated from the belt entry and that air 

coursing the belt entry " ••• shall not be used to ventilate" 

active working places. 

91 
Respondent has not rebutted or impeached the testimony by 

Poynter with regard to the flow of air inby as observed by him in 

the belt entry. As conceded by Benny Dixon, who was Respondent's 

day shift supervisor on July 31, if air is going inby in the belt 

entry it is "likely" that some will go across the face (Tr. 305) 

It is Respondent's position that Section 75.326 supra, which 

precludes air in the belt entry from being used to ventilate the 

working place, is violated only when an operator has "employed 

belt air for the given purpose of ventilating the working face". 

I do not accept Respondent's argument. There is nothing in the 

plain language of section 75.326 supra, to support the 

interpretation urged by Respondent. There is no language 

indicating that only a planned or intentional use by an operator 

by air from the belt entry to ventilate the working face is 

prohibited. Nor does the legislative history of the statutory 

provision which has been repeated in section 75.326 supra, allow 

for the interpretation urged by Respondent. In this connection, 

I take cognizance of the Senate Report of the Committee on Labor 

and Public Welfare accompanying s ... 2917, regarding the purpose of 

Section 204(y) whose pertinent language was continued in the 

Federal Mine Safety and Health Act of 1977, "the Act," and 

reiterated in Section 75.326 supra. (S. Rep. No. 91-411, 91st 

Cong., 1st Sess. (1969), reprinted in Legislative History of the 

Federal Coal Mine Health and Safety Act of 1969. ("Legislative 

History")) The Senate Report provides as follows: 

The objective of the section is to reduce high air 

velocities in trolley and belt haulageways where the 

coal is transported because such velocities fan and 

propagate mine fires, many of which originate along the 

haulagewayso Rapid intake air currents also carry 

products of the fire to the working places quickly ~efore the men know of the fire and lessen their time 

escape. they use the return aircourses to 

escape 0 the coursed through may contain these 

products and quickly overtake them. Also, the 

objective is to reduce the amount of float coal dust 

along belt and trolley haulageways. (Senate Report ~upra 64 0 Legislative Historyv supra at 190)o 

Henceu the expressed intention of Congress in enacting the 

language found in Section 75.326 0 was to reduce the hazards of 

the propagation of mine fires and the carrying of fire products 

the working places. In order to interpret Section 75.326 

supra consistent with Congressional intent, i.e. to minimize the 

hazards which formed the basis of Congressional concern, I 

conclude that Section 75.326 supra has been violated where the 

proscribed condition, i.e. air in the belt entry used to 

ventilate the working place, has arisen even inadvertently and 

92 
without the expressed intent of the operator. 1 To accept 

Respondent's position, would be in conflict with Commission 

authority holding that because the purpose of the Act is the 

protection of miners, the regulatory scheme of mandatory safety 

standards contemplates the strict liability of an operator. (See 

Western Fuels-Utah, 10 FMSHRC 256 (1988); Asarco, Inc, FMSHRC 

1632 (1986)) 

III. Unwarrantable Failure 

According to Poynter, when he observed the flow of air from 

the belt entry inby, he went to examine the cause for the 

direction of air flow. He indicated that he observed four 

conditions which could have given rise to the violative change in 

air flow. In the No. 3 crosscut, the double doors were partially 

open, a car was parked in the opening, and a curtain had been 

draped across the car but did not extend to the floor. Also, at 

a point where the belt in question went over an overcast, two 

doors at the inby wall of the,gyercast were closed. At a head 

drive (headdrive C) a door was open in the stopping isolating the 

belt from intake air. Lastly, at a point approximately 120 feet 

outby the working face where the belt was separated from the 

intake entry, a curtain was hung "very loosely". (Tr.60) 

According to Poynter, these conditions were "easily observed" 

(Tr.67) 0 and the improper direction of the flow of air could have 

been remedied by tightening the curtain that was loosely hung, 

closing the mandoor, and properly closing off the two supply 

doors. He also indicated that as soon he entered the belt entry, 

"instantaneously" (Tr. 68), he could feel that the air direction 

was wrong. In essence, none of this testimony by Poynter in 

these regards was rebutted or impeached by Respondent. Indeed, 

Benny Dixon 0 Respondents day shift supervisor conceded that the 

four factors referred to by Poynter could possibly have caused ~he air go the wrong wayo In essenceu this testimony of 

Poynter appears to provide the basis for the argument of 

Petitioner that the violation herein was as a result of 

Respondent's "unwarrantable failure 11 o 

In order to find that a violation resulted from the 

Respondent g s QQunwarrantable failurevv it must be established that 

there existed e

1aggravated conduct" u on the part of the Respondent 

i.e. more than ordinary negligence (Emery Mining Co.u 9 FMSHRC 

19 ~December 1987))o 

I findu based on Poynter 1 s testimonyq that the improper 

direction of the air in the belt entry was obvious. Also, I 

find 8 based on Poynter's testimony, that once a change in a 

1

to the extent that American Coal Company, 1 FMSHRC 1057 

(August 17, 1979, Judge Michels) relied on by Respondent, is 

inconsistent with this decision, I choose not to follow it. 

93 
direction in the air flow was noted, a search for its cause 

should have been made, and such a search would have revealed the 

conditions observed by Poynter as, according to his testimony, they were obvious. Also unchallenged are Poynter's assertions 

with regard to the steps that should have been taken to remedy 

the reversal in air flow. I thus find that Respondent herein was 

negligent to a moderate degree with regard to the violation 

herein. 

However, there is no evidence as to when the change in air 

flow first became perceptible. Nor is there any evidence as to 

how long the conditions observed by Poynter, which could have 

caused the reversal in air flow had been in existence. Neither 

the pre-shift examination report of July 31, nor the report of 

two other examinations made on July 30 and July 31 (Exhibits R-1 

and R-2), note any abnormality in the direction of air flow in 

the beltline. According to Poynter, he spoke with Ben Rhymer, 

the foreman of the shift that had begun at 8:00a.m., and asked 

him if he "made the belt", a'nd Rhymer indicated that he did, but 

he did not recall the direction of the air. Further, a finding 

of a degree of negligence more than ordinary i.e. aggravated 

conduct, is mitigated by the fact that, as indicated by Dixon, 

the doors were left open, as they were the only means of access 

for equipment to brought to the area in question. The equipment 

was being brought to the area in question on a continuous basis 

in order to provide critical support to an unstable roof that had 

already fallen three times, and had experienced numerous bumps. 

It also is noted that the doors were normally closed, and 

employees were instructed at weekly meetings with regard to the 

closing of doors. Further, although a car had been parked in the 

doorway which apparently resulted in a curtain being draped over 

t. did not reach the floorv according to the uncontradicted ·~astimony of Dixon there was no other area for the car to be ~toredo ~He indicated that such storage was necessary in order to 

allow other equipment to go inby to facilitate the supporting of 

the roof. For these reasons, and taking into account the 

priority placed by Respondent on working on a continuous basis to ~upport the hazardous roofu X find that it has not been ~stablished that the violation herein was as the result of 

Respondent 0 s unwarrantable failure. (See, Emery, supra)o 

:E:Vo Significant and Substantial 

Petitioner also takes the position that the violation herein 

has set forth by Poynter is significant and substantial. A 

(}jjsignificant and substantial" violation is described in section 

104(d)(l) of the Mine Act as a violation "of such nature as could 

significantly and substantially contribute to the cause and 

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

30 C.F.Ro S 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 

94 
that the hazard contributed to will result in an injury or 

illness of a reasonably serious nature." Cement Division. 

National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). 

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

Commission explained its interpretation of the term "significant 

and substantial" as follows: 

In order to establish that a violation of a 

mandatory safety standard is significant and 

substantial under National Gypsum the Secretary of 

Labor must prove: (1) the underlying violation of a 

mandatory safety standard; (2) a discrete safety hazard--that is, a measure of danger to safetycontributed to by the violation; (3) a reasonable 

likelihood that the hazard contributed to will result 

in an injury; and (4) a reasonable likelihood that the 

injury in question will be of a reasonably serious 

nature. 

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

1129, the Commission stated further as follows: 

We have explained further that the third element 

of the Mathies formula "requires that the Secretary 

establish a reasonable likelihood that the hazard 

contributed to will result in an event in which there 

is an injury." u.s. Steel Mining Co., 6 FMSHRC 1834, 

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

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

is the contribution of a violation to the cause and 

effect of a hazard that must be significant and 

substantial" u.s. Steel Mining Company, Inc.u 6 FMSHRC 

1866 9 1868 (August 1984); U.S. Steel Mining Company. 

Inc.u 6 FMSHRC 1573 0 1574-75 (July 1984). 

The question of whether any particular violation is 

significant and substantial must be based on the particular facts 

surrounding the violation9 including the nature of the mine 

involved 0 Secretary of Labor v. Texasgulf. Inc. 0 10 FMSHRC 498 ~April 1988); Youghiogheny & Ohio Coal Companyu 9 FMSHRC 2007 ~December l987)o 

As discussed above infra, IIu the record establishes a 

violation of a mandatory.standard i.e. Section 75.326 supra. I 

also find that the flow of air from the beltline toward the 

working place clearly contributed to the hazard of an injury to 

miners working inby as a consequence of a fire. Hence, the first 

two elements of Mathies have been met. The key issue herein is 

the existence of the third element of Mathies. In order for this 

element to be met, Petitioner must establish a reasonable 

likelihood of the existence of an injury producing event i.e., 

95 
herein, a fire. In this connection, Poynter testified that the 

drives contained electrical installations and drive motors which 

are known to cause fires. Further, in the event of a fire the 

hazards are exacerbated by the fact that the deluge system is not 

present at the drives of the belts. However, Poynter did not 

indicate the existence of any defects in any of the electrical 

equipment. Also, he indicated on crosss-examination, that from 

the new belt drives to the section it was very wet. According to 

the uncontradicted testimony of Dixon, the belt was 5 1/2 feet 

off the bottom of the floor, and hence there were no friction points~ Also, according to the uncontradicted testimony of 

Dixon, although the deluge system was not present, the co Censor 

was in operation, there were four fire extinguishers at the head 

drives, as well as a 2,000 foot fire hose at a power center in 

the area, as well as 4 inch water lines. Also mitigating against 

likelihood of a fire is the fact that no methane was indicated to 

be present. 

Therefore, for all these reasons I conclude that there was 

not a reasonable likelihood of an injury producing event, i.e. a 

fire, contributed to by the violation herein. Thus, I find that 

it has not been established that the violation was significant 

and substantial (See Mathies and u.s. Steel). 

Considering all the statutory factors set forth in Section 

llO(i) of the Act, I find a penalty of $700 to be appropriate. 

ORDER 

It is ORDERED that Citation No. 3834380 be amended to 

reflect the fact that the violation therein was not significant 

substantial and was not the result of the Operator 8 s 

unwarrantable failureo It is further ORDERED that the citation 

amended to a Section 104(a) citation" It is further 

ORDERED that within 30 days of this decision Respondent pay a 

civil penalty of $700 for the viol n found herein. 

Administrative 

Avram i~ Law Judge 

IDJistributiong 

Wary Sue Taylorv Esq.u Office of the Solicitoru U.S. Department 

©f Laboru 2002 Richard Jones Road, Suite B-201, Nashville, TN 

J7215 (Certified Mail) 

MarcoM. Rajkovich, Jr., Esq., Wyatt, Tarrant & Combs, Lexington 

Financial Center, 250 West Main Street, Lexington, KY 40507 

(Certified Mail) 

nb 

96 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

(303) 844-5266/FAX (303) 844-5268 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

LITTLE ROCK QUARRY COMPANY, 

INCORPORATED, 

Respondent 

. . . 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 92-202-M 

A.C. No. 03-01475-05526 

Docket No. CENT 92-204-M 

A.C. No. 03-01475-05528 

Docket No. CENT 92-205-M 

A.C. No. 03-01475-05529 

De Roche Creek Quarry 

DECISION AND ORDER DISMISSING PROCEEDING 

Before: Judqe Lasher 

Petitioner MSHA, by my Order to Show Cause dated December 3, 

1992, and subsequent Order of December 11, 1992, was given until 

December 31r 1992, to show good cause for its failure to comply 

with the Prehearing Order of September 14; 1992. As I have repeatedly advised and explained to counsel in the Solicitor 1 s Dallas fice over the past two years, one of the purposes of this 

Prehearing Order is to screen cases to determine they are 

going to settle before setting them for hearing. Setting cases 

for hearing requires a great deal of time and work on the part of 

our limited secretarial staff. Administrative law judges who approach ·their docket by automatically setting their cases without 

screening them do so selfishly both as to the secretaries and 

fellow judges. Our office would not function efficiently if we 

all did it. This has been explained at length to the Secretary's 

counsel. 1 

The Commission has set some form of time limitations for its 

judges. Handling cases out of the Dallas office makes it imposThe Secretary is not being required to settle the cases by my Prehearing Order. It is required, as the party initiating the proceeding before the 

Commission, to initiate discussion and communication with the Respondent to determine if the matter will settle. Normally, a large percentage of cases do 

settle if the Secretary's Solicitor proceeds responsibly and in good faith. 

97 
sible to comply with such. Over the past two years, I have found 

it necessary to plead with several of the attorneys--not all--in 

this office to get some kind of feedback on the status of cases. 

As I pointed out in the Order to Show Cause: 

The situation has matured to the point that it is 

impossible to process proceedings, in many of which 

there is not even a minimum level of response. This 

is necessary for the Commission's work to be done. 

In view of the continuing failure of the Petitioner, I conclude 

that Petitioner has abandoned its prosecution in these three 

docket and these proceedings are DISMISSED. 

,;.J)-:7. ,;< /~ ~~;-A:~ 0 .;./#. ·k.c C~ Cf : <.:~!'a£/ /-r, Michael A. asher, Jr. 

Administrative Law Judge 

Distribution~ 

Michael H. Olvera, Esq., Office of the Solicitor, u.s. Department 

of Laboru 525 Griffin StreetQ Suite 501u Dallas~ TX 75202 

(Certified Mail) 

Mr. Ike Carter, Jr.u President, LITTLE ROCK QUARRY, P.O. Box 548, 

Benton AR 72015 (Certified Mail) 

ek 

98 
:I'BDBRAL JD:BB SAI'BTY UD HEALTH JlBVJ:D COIIXISS:IOII 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

"JAN 1 9 1993 

MARTINKA COAL COMPANY, 

Contestant 

0 

. 

. . CONTEST PROCEEDINGS 

v. .. 

. Docket No. WEVA 93-45-R 

Order No. 3720402; 10/26/92 

SECRETARY OF LABOR, Docket No. WEVA 93-46-R 

MINE SAFETY AND HEALTH Order No. 3720403; 10/26/92 

ADMINISTRATION (MSHA), 

Respondent 0 

0 Tygart River Mine 

Appearances: 

Mine ID 46-03805 

DECISION 

Thomas L. Clarke, Esq., Charleston, West Virginia, 

for Contestant; 

Glenn Loos, Esq., u.s. Department of Labor, Office 

of the Solicitor, Arlington, Virginia, for 

Respondent. 

Before: Judge Weisberger 

Statement of the Case 

These cases are before me base on an Application for Review 

and Motion to Expedite filed by Martinka Coal Corporation 

(Operator) on November 12v 1992 9 challenging the issuance of a 

Section 104(b) Withdrawal Order. The Secretary (Respondent) 

opposed the Motion to Expedite and in a telephone conference call 

on November '13u 1992, with the undersigned and counsel for both 

partiesu argument was heard regarding Contestant 1 s Motion to 

Expedite. The Motion was granted and the case was set for 

hearing on November 24r 1992u in Morgantownu West Virginia. At 

the hearing Robert A. Blair 0 and David Kenneth Kincellv testified 

the Secretary. John Metzu David Kevin Conawayu and Joseph 

l%nthony Keeneru testified for the Operator. After the hearing ~as concluded the parties requested the opportunity to file 

proposed findings of fact and memorandum of law two weeks after ~eceipt of the transcript of the hearing. This request was 

granted and it was so ordered. The parties further indicated 

that they did not wish to file any reply briefs. 

The transcript was received in the Office of the 

Administrative Law Judges on December 3, 1992. On December 23, 

1992, counsel for Contestant called the undersigned with the 

permission of counsel for Respondent and advised that both 

counsel had agreed to file briefs by December 31, if it was 

99 
amendable to the undersigned. The request was granted. 

Respondent filed a post hearing brief on December 24, 1992, 

Contestant filed its brief on January 8, 1993. 

Findings of Facts and Discussion 

1. Introduction 

on October 21, 1992, Mine Safety and Health Administration 

(MSHA) Inspector Robert A. Blair inspected the four flyte belt 

line at the Operator's Tygart River Mine. He observed an 

accumulation of coal dust and float coal dust that had 

accumulated under the belt, belt drive, belt rollers and on the 

belt structure along the entire belt line. He also noted the 

existence of haystack forms, and the fact that at several points 

rollers were running in the accumulation. He issued a citation 

alleging a violation of 30 C.F.R. S 7~.400 which in essence, 

provides that, "coal dust, including float coal dust deposited on 

rock-dusted surfaces, loose coal and other combustible materials 

shall be cleaned up and not be permitted to accumulate in active 

workings, or on electric equipment therein." The Operator 

indicated at the hearing that it does not contest the fact of the 

violation as well as the allegations set forth in paragraph 8 of 

the citation. 

Blair discussed with Daniel Kevin Conaway, the Operator's 

Safety Manager for the Tygart River Mine, the time to be allowed 

for the Operator to abate the violative conditions. Blair 

allowed until October 26, 1992, for abatement. In essence, 

Conaway and Wesley Dobbs who works for Conaway, indicated that it 

would take about two days to clean and fix the beltline. On that 

date 0 Blair returned to the belt line in question. He indicated 

that although the most serious conditions were cleaned up, there ~as an accumulation of combustible material in the same location 

as was observed on october 21, 1992. He issued a Section 104(b) 

order which states as follows: 

An effort to totally abate the citation No. 

3107658 was not made. Conditions that still exist 

include was combustible materials still under the No. 4 

flyte tail piece area under the belt, also the 

combustible materials was still on the belt top rollers 

and bottom rollers in several locations along the belt 

outby 151, inby 145 8 inby 148 to 149 and 145 block 

outby their was haystack forms under the belt, at 139 

block inby the bottom rollers was running in muck, inby 

124 block bottom roller was running in muck. At No. 

133 block the belt was rubbing against the structure of 

the bottom roller. The belt is operating and no one 

was observed working on the condition this shift. [sic] 

100 
In addition, on October 21, 1992, Blair observed several 

rollers missing as well as several broken roller~, and that the 

belt was rubbing against the belt structure. He concluded that 

the belt was not maintained in a safe condition and issued a 

Citation No. 3107659 alleging a violation of 30 C.F.R. 

S 75.1725(a). When Blair returned on October 26, 1992, the date 

set for abatement of Citation No. 3107659, he observed frozen 

rollers. He noted that there were hangers missing. He also 

observed the belt rubbing against the belt structure. 

He issued a Section 104(b) order which states as follows: 

An effort to totally abate the Citation No. 

3107659 was not made. Conditions that still exist 

include frozen roller was still existing at the tail 

piece. 151 block outby to 152 top rollers was still 

bad. Inby 146 block the bottom roller was stuck, and 

the belt hanger was missing. 139 block inby belt 

hanger missing, 133 block inby the belt was rubbing the 

bottom roller structure,'·outby 124 block a frozen 

roller, the belt is operating and no one was observed 

working on the condition this shift. [sic] 

None of Contestant's agents stated that the abatement time 

for either citation previously issued on October 21, 1992, was 

too short. Nor did any of Contestant's agents request an 

extension of time to abate the violative conditions. Blair 

indicated he did not consider extending the abatement time, 

"Because I gave them adequate time in the beginning" (Tr.51) 

Ilo Extension of the Time for Abatement 

Essentially is Contestantgs argument that Blair did not 

consider extending the abatementu and that there were no hazards 

posed to miners by the granting of an extension. Contestant 0 in 

arguing that the 104(b) order was improperly issued, also refers 

to its abatement efforts. Contestant cites the fact that 40 manshifts were expended in abatement efforts, and 60 tons of rock 

dust were applied. I do not accept Contestantus argument for 

t.he reasons that follow o 

section 104(b) of the Federal Mine Safety and Health Act of 

1977 ("the Act") providesu in essence, that a withdrawal order 

shall be issued if an inspector finds that a violation described 

in a previous citation has not been totally abated within the 

period set for abatement, and "that the period of time for the 

abatement should not be further extended". 

In issuing the two Section 104(b) orders at issue, Blair 

indicated he did not consider extending the abatement time, 

"Because I gave them adequate time at the beginning" (Tr.51). 

The critical issue is thus whether Blair acted reasonably in not 

101 
extending the time for abatement (Peabody Coal Company, 11 FMSHRC 

2068, 2100 (October 27, 1989) (Judge Koutras)). 

At the time the citations were written on October 21, 1992, 

Blair asked the mine management how long they needed to abate the 

violations. Management stated that two days should be enough time. Blair then allowed five days, including a weekend, for 

abatement. 

In addition, the Contestant's failure to timely correct the 

violations posed hazards to miners. The combination of 

combustible accumulations together with possible ignition sources 

such as frozen rollers and the belt rubbing the structure of the 

belt line, producing heat and friction, created a fire hazard 

which could send smoke down onto the sections and trap men 

working inby the fire. Dry and drying coal, and coal dust 

present behind the tail roller and on the center rollers of the 

belt line was in contact with the belt and rollers, and presented 

a fire hazard. 

Hence, for all the above reasons, I conclude that Blair 

acted reasonably in determining not to extend the time to abate 

the violations previously cited on October 21. 1 

II. The validity of the Section 104Cbl orders 

The Commission, in Mid-Continent Inc., 11 FMSHRC 505, at 

509u held that when an operator challenges the validity of a 

section 104(b) order, 

o •• it is the Secretary, as the proponent of the order, 

who bears the burden of proving that the violation 

described in the underlying citation has not been 

abated within the time period originally fixed or as 

subsequently extended. We holdu thereforeu that the 

Secretary establishes a prima facie case that a section 

104(b) order is valid by proving by a preponderance of 

the evidence that the violation described in the 

underlying section 104(a) citation existed at the time ~he section 104(b) withdrawal order was issued. The 

operator may rebut the prima facie case, by showing, 

for exampleu that the violative condition described in 

the section 104(a) citation had been abated within the 

time period fixed in the citation, but had recurred. 

1

The case cited by Contestant did not adjudicate the 

specific issue presented herein, i.e., whether considering the 

set of facts in this record the inspector's decision not to 

extend the time for abatement was reasonable. Thus, to the 

extent that these cases decided by Commission Judges are 

inconsistent with my decision, I choose not to follow them. 

102 
A. Order No. 3720402 

1. The Secretary's prima facie case 

As set forth by the Commission in Mid-Continent Resources. 

supra, at 509, the Secretary has the burden of proving that the 

"violation described in the underlying citation has not been 

abated within the time period originally fixed, or as 

subsequently extended." 

The "violation described" in the underlying citation was an 

accumulation of coal dust and float coal that was combustible. 

According to Blair, on October 21, 1992, there was loose coal, 

dry loose coal, and dust that was "not wet" packed under the tail 

piece (Tr. 25). Also, Donald Keith Kincell, a union walk around 

who accompanied Blair, indicated the presence of dry material at 

the back of the tail piece. 

On October 26, 1992, Blair returned to reinspect the area. 

He indicated that he noted the·continued presence of combustible 

material at the tail such as loose coal, and coal dust, which was 

packed and "dull", and had been there for "a while" (Tr.44). 2 

He also observed dry loose coal and dust on top of the rollers at 

the tail. He indicated that the material was shiny but 

underneath it was dull. Kincell testified that at the back end 

of the tail there was still a build-up that was dry to partially 

wet. He indicated it was in contact with the back rollers, and 

was approximately 8 inches deep by 15 inches wide. He said that 

it was damp to dry and was "drying out" (Tr. 85). He was asked 

whether he observed this same material on October 21, and he 

said: "Yes,·basically all of it was still there" (Tr. 85). He 

said that behind the tail piece "the coal was more of in the dry 

stagegQ (Tr.96). He indicated that under the tail piece the 

material was in contact with the belt and with the rollers where ~he belt rubbed the structure. 

John Metz, the manager of the mine, indicated that every 

shift subsequent to October 21 6 men were assigned to clean the ~tructure 8 rock dust 8 and wet the area. According to his 

testimony approximately 60 tons of rock dust were used. He 

indicated that on October 26u the material at the tail was ~extremely wetn (Tr. 136} and not in contact with either the 

belting or any rollers. 

Contestant does not challenge validity of the citation 

issued on October 21, 1992, i.e., the presence of an accumulation 

of combustible material. The testimony of Blair and Kincell 

2In general, according to the uncontradicted testimony of 

Blair, a fresh spill of coal is "shiny", whereas an "old" 

accumulation is "dull" {Tr.40). 

103 
indicates that the violative condition at the tail i.e., coal 

that was not wet under the tail piece and the back of the tail, 

was in existence on October 26. I find that the testimony of 

Metz that the material at the tail was "extremely wet", 

insufficient to rebut the more specific testimony of Blair that 

the coal in the tail area was dull, and the testimony of Kincell 

which in essence indicates the existence of the same conditions 

noted by Blair on October 21. I thus find, that, at the tail, 

the Secretary has established a prima facie case that the 

violative conditions there had not been abated. I find the 

Operator's evidence inadequate to defeat this prima facie case. 

According to Blair, on October 21, he observed loose coal 

dust all along the belt line, and haystacks. Also, at several 

locations he observed that the belt and rollers were in contact 

with material. He said that the material consisting of loose 

coal, was dry, and was not muck. According to Kincell along the 

entire length of the beltway there was a build-up of coal between 

the rollers and the structure, and the rollers were running in 

haystacks. 

Metz indicated that he walked from the head to the tail on 

October 21, and that he did not observe any dry material. He 

described the material he observed in as being non-combustible, 

wet, mucky, and watery. However, it is significant to note that 

the operator has not contested the fact of the violation i.e. in 

accumulation of combustible material, as set forth in the 

citation initially issued. 

Further, in this connection, Blair's notes, taken on October 

22 9 1992, indicate an accumulation on the belt top roller and 

bottom roller at several locations outby block 151, inby block 

l45 0 inby block 148 to 149 0 and that outby block 145 there were 

haystacks under the belt. The notes also indicate that at the 

139 block inbyu rollers were running in muck which was described 

as being wet to dry and inby block 145 the bottom was running in 

muck. Due to the fact that these notes were written contemporarious with the issuance of the 104(b) order, I accord them 

considerable weighto 

According to Blairu on October 26 6 in general, the area was 

cleaned up, haystacks were removed, and the walkside of the 

beltway was cleared. However 0 he indicated that accumulations ~ere the same as on October 21, in the same locations, and were 

dull not shiny9 indicating an accumulation which was not fresh. 

Kincell indicated that on October 26, there was fine coal in 

contact with the belt for the full length of the beltway. He 

further indicated that under the center rollers, there was the 

same accumulation that had existed on October 21. He indicated 

the center roller "was drying material out" (Tr. 86). He said 

the accumulations in the area of the bottom roller were, "more to 

the dry stage" (Tr. 95). He also indicated that "The build-up on 

104 
the structure, the center roller or the towing roller was dry" 

(Tr.101), and for the entire of the belt length there was an 

accumulation under the center rollers. 

Based on the above, I conclude that the Secretary has 

established a prima facie case that at least some of the 

violative conditions described in the 104(a) citation, as 

elaborated upon in the testimony of Blair and Kincell, existed at 

the time the 104(b) order was issued. 

2. The Operator's Rebuttal 

It appears to be Operator's position that: (1) on 

October 23, 1992 the violative conditions were abated; and (2) 

any accumulations of materials present on October 26, 1992, were 

not combustible, and thus their accumulation does not constitute 

a failure to abate. 

Metz testified that on October 23, 1992, he examined the 

entire belt structure, although-not each individual piece. He 

said that the material that was present was wet, and not capable 

of being burnt. He said that he examined the material with his 

hand, and in some location it ran through his fingers. He said 

that at other locations he was able to squeeze water out of the 

accumulation, and no accumulation was any dryer. According to 

Metz, _on October 23, 1992, no material was in contact with the 

belt roller or any moving parts. He also said that at the tail 

piece there was no material in contact with any moving parts, and 

there was no accumulation at the tail. 

At best, Metz' testimony tends to establish that the 

material observed by him on October 23, was wet and noncombustibleo Howeverv Metz did not compare the conditions that 

he observed on October 23 0 to that to which he had observed on 

October 2lu shortly after the initial citation was issued. I 

accordingly find that his testimony is insufficient to predicate 

a finding that as of October 23, 1992, the violative conditions 

set forth in the citation and elaborated upon in the testimony of 

Xincell and Blairo were no longer in existence. 

Metz indicated, in essence, that the material that he 

observed on the belt line on October 26, was muddy and wet. He 

said that he touched haystacks a couple of times and the material 

ran through his fingers. He also said that a couple of times he 

picked up material from the floor under the belt. He said he 

made mud balls, and as he squeezed them the material oozed 

through his hand. He described this material as non-combustible. 

According to Blair, he did not observe Metz picking up any 

material in his presence, and that although he was walking in 

front of Metz "when I walk I constantly turn my head" (Tr. 265). 

Due to the fact that Blair was walking in front of Metz, and thus 

had his back to Metz, I find Blair's testimony insufficient to 

105 
contradict the testimony of Metz with regard to his having felt 

the material in issue. 

It is clear that on October 26, 1992, there still was an 

accumulation of material. The issue from the operator's perspective, appears to be whether that material still be 

considered combustible. However, according to Mid-Continent, 

supra, the key issue is whether the violative conditions which 

were initially cited continued in existence when the 104(b) order 

was issued i.e. on October 26. Clearly, by all accounts, on 

October 26, 1992, there continued to be an accumulation of coal 

in the belt line. Only the Secretary's witnesses compared the 

accumulations on October 26, 1992, to that which were in 

existence on October 21. Their testimony indicates, in essence, 

that in some respects, the accumulations were the same. The fact 

that some of the accumulations on October 26, were very wet does 

not negate the existence of the conditions initially cited by 

Blair on october 21, to be violative of Section 75.400 and not 

contested by the Operator. It would appear to be the thrust of 

the Operator's case to challenge·determination by Blair that the 

accumulations were "combustible". It would appear that such a 

challenge is germane to a contest of the initial citation. 

However, such a challenge does not appear relevant when the only 

issue is the validity of 104(b) order, which in turn depends upon 

a resolution of only whether the conditions originally cited were 

still in existence at the time of the issuance of the 104(b) 

order (See Mid-Continent, supra). In this connection I find that 

the weight of the evidence establishes that the cited violative 

conditions were still in existence on october 26, and that this 

conclusion has not been rebutted by the Operator. For these 

reasons I conclude that Order No. 3720402 was properly issued, 

and the contest to its issuance is to be dismissed. 

~0 Order No. 3720403 

1. The SecretaryQs prima facie case 

Essentially, according to Blair, on October 21, 1992, the 

conditions that he observed which caused him to issue the initial ~itation consisted of several missing bottom rollers, a 100 foot 

length of the belt where roller were missing, and that the fact 

that several frozen rollers were observed. In addition, he noted 

that some bearings were bad, and the belt was rubbing against the 

structure causing rubber to flake. 

Blair indicated that on October 26, the same rollers that 

were frozen on October 21, were also frozen on October 26, 

although he did not know how many were frozen. He also said that 

although some of the bottom rollers at the head were repaired, 

the bottom rollers that were missing on October 21, were still 

missing on October 26. In this connection, he indicated that 

along 100 foot area all bottom rollers were still missing. 

106 
Kincell indicated that the rollers that he observed missing on 

october 26, were also missing on October 21. He thought that 

they were in the area of blocks 137 to 138. Notes taken by Blair 

on October 26, indicate that the top roller 151 outby to 152 is 

still bad. Kincell indicated that October 26, within 25 feet of 

the tail piece on he observed two stuck rollers, one on top and 

one on the bottom. He said that these were among those that he 

bad observed on october 21. 

Metz indicated that on October 23, he spent "probably" two 

hours looking for frozen rollers (Tr.1BO). He said he inspected 

all the rollers, i.e. 2,800, and did not observe any frozen 

rollers along the belt line. He said that there were no frozen 

rollers at the tail piece. It was further Metz' testimony that 

between October 21 and October 26, 15 to 18 rollers were 

replaced. 

According to Metz, on October 26, Blair pointed out to him 

rollers that he (Blair) said were frozen. Metz indicated that 

some of the rollers Blair had"pointed to were not in contact with 

the belt, and the others which were in contact with the belt did 

turn when Metz reached in and turned them. Blair, in rebuttal, 

indicated that on October 26 when he pointed out frozen rollers 

to Metz, Metz did not demonstrate that they were not frozen, and 

instead said they were trying to change them. In this 

connection, Blair testified that after the two 104(b) orders in 

question were issued, Daniel Kevin Conaway the safety manager at 

the Tygart Mine to whom he spoke, said "we just failed to correct 

them more properly" (Tr. 60). Conaway, who testified, did not 

specifically rebut this testimony. 

I concludeu based on all the above, that the Secretary has ~stablished ~ prima facie case that some of the rollers that were 

©bserved missing on October 2lu were still missing on October 26. 

ied that 15 to 18 rollers were replacedu however there 

no evidence in the record as to the locations where these were 

replacedo Nor is there any evidence as to the total number of 

rollers that had been observed missing on October 21, aside from 

the testimony of Blairu that for 100 feet rollers were missingu ~nd the testimony of Kincell that at a point 10 feet removed from 

block Noo 133 for a distance of 120 feet, there were no rollers. 

Accordinglyu I find that based on the testimony of Blair and 

Kincell that the Secretary has established a prima facie case 

that some the rollers observed missing on October 26 0 were the 

same that had been missing on october 21. 

2. The Operator's Rebuttal 

There is not any specific testimony to rebut the specific 

testimony of Kincell that two of the rollers that he observed 

frozen or not turning on October 21, where in that same condition 

on October 26. I thus conclude that a prima facie case has been 

107 
established that some of the violative conditions cited on 

October 21 continued to exist on October 26 with regard to 

defective or inoperative rollers. The operator has not 

introduced any specific evidence to rebut this prima facie case 

such as evidence of missing rollers which had been replaced. Nor 

is there any evidence that any missing rollers which had been 

replaced after October 21, subsequently were no longer in place. 

(See Mid-Continent, supra). Therefore I find the Operator's 

challenge to this order to be without merit. 

Therefore for all the above reasons, I order that these 

cases be DISMISSED. 

Distribution: 

Avram Weisberger 

Administrative Law Judge 

Thomas L. Clarke, Esq., 800 Laidley Tower, P.O. Box 1233, 

Charleston, WV 25324 (Certified Mail} 

Glenn Loos, Esq., Office of the Solicitor, u.s. Department of 

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

(Certified Mail) 

nb 

108 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

(303) 844-5266/FAX (303) 844-5268 

JAN 2 1 1993 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PRICE CONSTRUCTION INC., 

Respondent 

Docket No. CENT 92-33-M 

A.C. No. 41-02926-05515 

Crusher #2 

DECISION 

Appearances: 

Before: 

Nancy B. Carpentier, Esq., Office of the Solicitor, U.S. Department of Labor, Dallas, Texas 1 

for Petitioner; 

Bob Price, President, PRICE CONSTRUCTION, INC., 

Big Spring, Texas, 

for Respondent. 

Judge Lasher 

This proceeding was iated by the filing of a Complaint 

Proposing Penalty Petitioner on December 20R 1991R pursuant to 

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

30 U.S.C. § 820(a) seeking assessment of a penalty for a violation described in Citation No. 3448774 issued April 2, 1991. 

At commencement of hearing in Abilene Texasv on November 

19u 1992v the parties conferred and reached an amicable resolution of this matter. The parties agreed that the "Significant 

and Substantial" designation of the violation should be deleted 

and that an appropriate penalty should be $25.00. This settlement was approved from the bench by my order on the record 

(T. 5-6) and such is here AFFIRMED and the penalty stipulated is 

here ASSESSED. 

ORDER 

1. Citation No. 3448774 is MODIFIED to delete the "Significant and Substantial" designation thereon and is otherwise 

AFFIRMED. 

109 
2. Respondent, if it has not previously done so, SHALL PAY 

to the Secretary of Labor within 40 days from the date hereof the 

sum of $25.00. 

Distribution: 

t/il 'l '/ (- A' • ././ . <~..- / '?//-'"""~4--'"- · ,?f • V i{L1- U '-

Michael A. Lasher, r. 

Administrative Law Judge 

Nancy B. Carpentier, Esq., Office of the Solicitor, u.s. Department of Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202 

(Certified Mail) 

Mr. Bob Price, President, PRftE CONSTRUCTION, INC., Snyder 

Highway, P.O. Box 1029, Big Spring, TX 79721-1029 {Certified 

Mail) 

ek 

110 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

(303) 844-5266/FAX (303) 844-5268 

JAN 211993 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

YOUNG BROTHERS INCORPORATED, 

Respondent 

Docket No. CENT 92-46-M 

A.C. No. 41-03142-05522 

Atkins Pit 

DECISION 

Appearances: Nancy B. Carpentier, Esq., Office of the Solicitor, u.s. Department of Labor, Dallas, Texas, 

for Petitioner;-

Before: 

Richard C. Baldwin, Risk Manager, Waco, Texas, 

for Respondent. 

Judge Lasher 

This proceeding was initiated by the filing of a Complaint 

Proposing Penalty by Petitioner on February 3, 1992, pursuant to 

Section 110(a) of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 820(a) seeking assessment of a penalty for a violation described in Section 107(a) Withdrawal Order No. 3895378 

issued May 29, 1991. 

At commencement of hearing in this matter in Abilene 1 Texas, 

on November 17, 1992, the parties conferred and reached an amicable resolution of the litigation wherein Respondent agreed to 

pay a penalty of $250 for the violation described in the Withdrawal Order. This settlement was approved by my bench order on 

the record (T. 4) and such is AFFIRMED here, and the penalty 

agreed to is here ASSESSED. 

ORDER 

Respondent, if it has not already done so, SHALL PAY to the 

Secretary of Labor within 40 days from the issuance date of this 

decision the sum of $250.00. 

~~d;.e~·:c?<;4i£d:~ ,~ . /2.- M1chael A. Lasher, Jr. 

Administrative Law Judge 

111 
Distribut:i,on: 

Nancy Carpentier, Esq., Office of the Solicitor, U.S. Department 

of Labor, 525 Griffin Street 1 suite 501, Dallas, TX 75202 

(Certified Mail) 

Mr. Richard c. Baldwin, Risk Manager, P.O. Drawer 1800, Waco, TX 

76703 (Certified Mail) 

ek 

112 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 1 

Petitioner 

v. 

PEABODY COAL COMPANY 1 

Respondent 

. . 

: Docket No. KENT 92-223 

A.C. No. 15-14074-03601 . . 

. . 

. . 

Docket No. KENT 92-635 

A.C. No. 15-14074-03608 

: Martwick Mine 

DECISION 

Appearances: MaryBeth Bernui, Esq., Office of the Solicitor, 

u.s. Department of Labor, Nashville, Tennessee, 

for the Petitioner; 

Before: 

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

Peabody Coal Company, Henderson, Kentucky, 

for Respondent. 

Judge Melick 

These consolidated proceedings are before me upon the 

petitions for civil penalties filed by the Secretary of 

Labor pursuant to Section 105(d) of the Federal Mine Safety 

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

charging the Peabody Coal Company (Peabody) 1 in two citations 

and two withdrawal ordersu with four violations of mandatory 

standardso In these cases Peabody challenges only certain 00 significant and substantial" and "unwarrantable failure" 

findings made by the Secretary. 

Docket Noo KENT 92-223 

In this case Peabody is charged, in Citation No. 3548378 0 

with one violation of its ventilation plan under the standard 

at 30 CoF.Ro Section 75.316o The citation alleges as follows: 

The old Noo 4 unit return was not separated 

from the track and belt entry at the second 

cross-cut from the mouth of the unit. The 

return stopping was knocked out in this location. 

At hearing the issuing inspector for the Mine Safety 

and Health Administration (MSHA), Keith Ryan, testified that 

he issued the citation at bar upon what he considered to be 

113 
violations of the mine operator's approved ventilation 

plan (Government Exhibit No. 1), and, in particular, page 1, 

paragraph 4, of that plan under the description of "Permanent 

Stoppings." Those provisions read as follows: 

Stoppings shall be erected between the intake 

and return aircourses in entries and shall be 

maintained to and including the third connecting 

crosscut outby the faces of the entries on the 

return side, and shall be maintained to the unit 

tailpiece on the intake side. 

In addition, Inspector Ryan maintains that paragraph 8 on page 3 

of the plan was violated. Those provisions read as follows: 

All ventilation controls shall be installed 

in workman-like manner and maintained in a 

condition to serve the purpose for which it 

was intended. 

It is, of course, established law that once a ventilation 

plan is approved and adopted its provisions are enforceable 

at the mine as mandatory safety standards. Zeigler Coal Co. 

v. Kleppe, 536 F.2d 398 (D.C. Cir. 1976); Carbon County Coal 

Co., 6 FMSHRC 1123 (1984); Carbon County Coal Co., 7 FMSHRC 

1367 {1985), Jim Walter Resources, Inc., 9 FMSHRC 903 (1987). 

Inasmuch as Peabody admits the violation charged in 

the citation, the only issues remaining are whether the 

admitted violation was "significant and substantial" and 

the appropriate penalty to be assessed. Inspector Ryan 

has 6-1/2 years experience as a federal mine inspector and 

6 years prior experience working in the coal mining industryo 

He was at the Martwick Underground Mine on October lu 199lu 

performing a regular inspection in the old No. 4 Unit off of 

the south submain. It is not disputed that at the time of 

this inspection the old No. 4 Unit was being sealed and equipment and materials were being reclaimed from the unit. Seals 

had been built across the two intake entries to the unit 

blocking one entry completely and the other "3 14 of the wayve 

leaving a 2- by -3 foot opening. A stopping had also been 

constructed at the belt entry to the unit. 

Ryan attempted to take an air reading with his 

anemometer in the old No. 4 Unit but there was insufficient 

airo He then used a smoke tube and calculated the flow at 

6,100 cubic feet per minute {at the red 11 x 11 on Joint Exhibit 

No. 4). Ryan also noted that, while taking an air reading in 

the return, his "270" monitor sounded indicating the presence 

of low oxygen. Ryan also noted that miners were working at 

114 
this time in the track entry. The violation, according to 

Ryan, consisted of the removal of one of the permanent 

stoppings separating the track and belt entries from the 

return. It had been located in the first cross cut outby 

the line of pillars in which the seal were being constructed. 

Ryan testified that the danger or threat to safety 

contributed to by the violation was low oxygen. In 

this regard he testified as follows: 

It was reasonably likely if it was 

continued to allow the stopping to be out, 

possible chances of low oxygen coming back 

onto these men anywhere on this area on the 

track entry to old No. 4, allowing them to 

become unconscious or even to die from it (Tr. 48). 

He also believed that the absence of the stopping affected 

the overall ventilation of the oldNo. 4 Unit: 

It was short-circuiting what little bit of 

air was coming up the trackage into the belt 

area, not allowing enough ventilation being 

established up the track and belt which would 

have been short-circuited back in the return 

here. 

He further expressed concern with explosions. In 

this regard the following colloquy occurred: 

When you have possible chance of low oxygen, 

which it was in this case 1 people can't come 

overcome and die from lack of oxygen, possible 

methane content that might be up in the airo 

In this case with battery motors and power 

center all in the track entry inby the doors, 

this allowed the equipment to -- it could cause 

a spark or even cause an explosion" 

* * * 

[Government counsel] How can a spark occur 

=-- or how can a sparking cause an explosion 

in this area? 

Ao When you have low oxygen, a lot of the time 

it's being replaced by either methane or 

carbon monoxide, CO2, [sic]. 

115 
Not knowing what conditions were inby these 

seals on old No. 4 where the old work 

worked out area out -- inby, I had no idea 

what kind of a methane content was up in that 

area. 

Q. All right. And if injury occurred based on 

the things that you've noted, would it be a 

reasonably serious injury? 

A. Yes, sir. Any time it's -- you've got below 

19-1/2 percent, there's reasonable likelihood 

if something was to happen, it'd be highly 

likely to happen. (Tr. 49-50) 

Inspector Ryan illustrated the intended airflow through 

the old No. 4 Unit on Joint Exhibit No. 4 with pink arrows, 

using a single arrow for intake and a double arrow for return. 

He indicated the "short circuiting" effect on the exhibit 

with orange arrows. The difference between normal airflow 

(pink) and "short circuited" airflow (orange) is illustrated 

by an arrow showing airflow from the belt and track entries, 

through the missing stopping, into the return. 

It is not disputed that airflow in the neutral entries 

is normally in an outby direction from intake regulators. 

Ryan did not take any measurements of airflow or direction 

in the belt or track entry. He took a smoke tube measurement 

in the return which showed little movement, but in an outby 

direction. 

The inspector also obtained an oxygen level reading of 

19o4 percent in the return with his hand held detector 

(marked on Joint Exhibit No. 4 with a green "X"). He took 

a bottle sample at the same location which, on analysis, 

showed 19.36 percent oxygen (Government Exhibit No. 3). 

His detector showed 0.4 percent methane and the bottle 

sample 0.38 percent. The explosive range of methane is 

from 5 to l5 percent. The bottle sample also showed 

.36 percent carbon dioxide. 

Inspector Ryan testified at one point that the low 

oxygen the old No. 4 Unit return was actually caused by 

the restriction of intake airflow by the partial seals 

built across the panel's intake entries. Later, Ryan opined, 

however 9 that the missing stopping exacerbated the panel's 

ventilation problems by short-circuiting the airflow to the 

panel by allowing the restricted intake air to follow another 

path. 

116 
MSHA Health and Safety Officer Robert Phillips testified 

that oxygen levels below 16.5 percent, the level at which a 

flame safety lamp is extinguished, represents an immediate 

threat to individuals. He further explained that at that 

level it may take a period of time for there to be an adverse 

effect. Phillips admitted that the subsequent ventilation plan 

approved for the Hartwick Mine after October 1991 allowed 

stoppings to be taken out when seals were being constructed. 

A violation is properly designated as "significant and 

substantial" if, based on the particular facts surrounding 

that violation, there exists a reasonable likelihood that 

the hazard contributed to will result in an injury or illness 

of a reasonably serious nature. Cement Division, National 

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

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

In order to establish that a violation of 

a mandatory standard is significant and substantial under National Gypsum the secretary 

must prove (1) the underlying violation of a 

mandatory safety standard, (2) a discrete 

safety hazard -- that is, a measure of danger 

to safety -- contributed to by the violation, 

(3) a reasonable likelihood that the hazard 

contributed to will result in an injury, and 

(4) a reasonable likelihood that the injury in 

question will be of a reasonably serious nature. 

See also Austin Power Co. v. Secretary, 861 F.2d 99, 

103-04 (5th Cir. 1988), aff'd 9 FMSHRC 2015, 2021 

(December 1987) (approving Mathies criteria)). 

The third element of the Mathies formula 8 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., Inc., 6 FMSHRC 1573, 1574 (July 1984); 

see also, Halfway. Inc., 6 FMSHRC 1573 1 1574 (July 

1984); see also, Halfway. Inc., 8 FMSHRC 8, 12 

January 1969} o 

Respondent argues that the instant violation was not 00 significant and substantial" for three reasons. It first 

argues that there is no credible explanation in the record 

as to how the cited hazards in the return entry could have 

affected the safety of the miners who were working in the 

belt/track entries. However, even assuming arguendo, that 

just as Respondent claims that the miners' working in the 

belt/track entries, so long as they remained in the same 

117 
location, may not have been exposed to the oxygen deficiency 

hazards alleged by the Secretary, it fails to account for 

exposure to the described hazards by others, including the 

inspection party itself. 

Respondent next claims that the issuing inspector 

himself acknowledged that the real cause of the low oxygen 

and lack of airflow in the return were the partial seals 

built across the intakes, which was not a violation and 

not the condition cited. 

Inspector Ryan did in fact testify that the reason 

for the alleged hazard of inadequate ventilation in the 

old No. 4 unit was the substantial obstruction of the 

intake entries by the partially built seals, which completely blocked one entry and left only a 2' X 3' opening 

in the other. However, Ryan also testified that the missing 

stopping exacerbated the ventilation problems by short 

circuiting the air flow to the panel thereby allowing the 

restricted intake air to follow another path. Under the 

Mathies test, the Secretary need prove only that the 

violative condition contributed to the discrete safety 

hazard, not that the condition was the sole cause, or even 

the major cause, of the hazard. Accordingly, I reject 

Respondent's argument in this regard. 

Finally, Respondent argues that since MSHA subsequently approved a revision to the ventilation plan for 

the subject mine allowing stoppings to be removed during 

the sealing of panels, MSHA does not in fact believe 

that removal of the subject stopping in fact created any 

health or safety hazard. While it appears to be true 

that a revision of this nature was subsequently made in 

the ventilation planu this evidence is not sufficient in 

itself to permit the inference suggested by Respondent. 

The ventilation plan must be reviewed in its entirety and 

there may very well have been other corrective procedures 

required or implemented along with the noted revisions 

and mining conditions may have changed subsequent to the 

violation cited herein. 

Under the circumstances I find that the cited violation 

was indeed 11 significant and substantial" and of high gravity. 

Considering all of the available evidence in reference to the 

criteria set forth in Section llO(i) of the Act, including the 

Inspector's undisputed negligence findings in his citation, I 

conclude that the proposed civil penalty of $227 is appropriate 

for the instant violation. 

118 
Docket No. KENT 92-635 

This case involves one citation (No. 3417070) and 

two withdrawal orders {Nos. 3417071 and 3417072) issued 

pursuant to Section 104(d){1) of the Act. 1 The citation 

and orders were initially issued as citations under 104(a) 

of the Act on October 2, 1991. They were modified on 

November 20, 1991, based upon subsequent findings by the 

Secretary of unwarrantable failure. Peabody does not 

dispute the violations nor that those violations were 

"significant and substantial" and challenges in these 

proceedings only the Secretary's findings that the 

violations were the result of its "unwarrantable failure." 

citation No. 3417070 alleges a "significant and 

substantial" violation of the mandatory standard at 

30 C.FcR. Section 75.301 and charges as follows: 

Obvious violations were,observed and present 

in the 4 east sub main entries, in that the 

ventilating current of air was not sufficient 

to dilute, render harmless, and carry away 

harmful gases and the air quality was less 

than the required oxygen content 19.5 volume 

per centum of oxygen required, air samples 

collected in the No. 2 entry (intake) and the 

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

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

authorized representative of the Secretary finds that there 

has been a violation of any mandatory health or safety 

standardv and if he also finds thatu while the conditions 

created such violation do not cause imminent dangeru 

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 

standardsu 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. 

119 
No. 5 entry (return) of the east sub main 

entries, citations issued in conjunction 

with 107(a) Order No. 3417069 therefore no 

time was set. 

The cited standard, 30 C.F.R. Section 75.301, provides, 

in relevant part, as follows: 

All active workings shall be ventilated by 

a current of air containing not less than 

19.5 volume per centum of oxygen, not more 

than 0.5 volume per centum of carbon dioxide, 

and no harmful quantities of other noxious or 

poisonous gases; and the volume and velocity 

of the current of air shall be sufficient to 

dilute, render harmless, and to carry away, 

flammable, explosive, noxious, and harmful 

gases, and dust, and smoke and explosive fumes. 

Order No. 3417071 alleges a "significant and substantial" 

violation of the standard at 30 C.F.R. Section 75.305, for 

failure to conduct adequate weekly examinations for hazardous 

conditions, and charges, as follows: 

The weekly examinations for hazardous conditions 

were not adequate in the 4 east sub main entries 

and seals in that obvious violations were present. 

6 man doors were open in the permanent stopping 

line between the Nos. 4 and 5 entries return side 

that was a short circuit to the ventilating air 

current to the seals and permanent stoppings 

between Nos. 2 and 3 entries. Intake side to 

the seals had been removed and replaced with 

curtains in 6 crosscuts short circuit in air 

current that ventilated the seals, the air 

quality and quantity were not sufficient to 

dilute harmful gases as to properly ventilate 

the area where persons were required to work. 

Citation issued in conjunction with 107(a) 

Order No. 3417069. 

FinallYu Order No. 3417072 alleges a "significant and 

substantialn violation of the mine operator's ventilation 

plan under the standard at 30 C.F.R. Section 75.316 and 

charges as follows: 

The approved ventilation plan dated 

February 14, 1991 was not being followed 

in the 4 east sub main entries off the 

south west sub mains, in that 6 man doors 

120 
were open to short circuit the air current, 

this being ventilation controls not maintained 

in a condition to serve the purpose for which 

they were intended (ventilating the 4 east 

sub main seals) creating a hazardous condition 

low oxygen at the seals page (3) Statement (8) 

of the approved plan citation issued in 

conjunction with 107a order No. 3417069. 

More particularly, the Secretary maintains that in 

the above order Peabody violated page 3, paragraph 8, of 

its ventilation plan (Government Exhibit No. 1) which 

provides that "all ventilation controls shall be installed 

in a work-manlike manner and maintained in a condition to 

serve the purpose for which it was intended." 

The evidence is essentially undisputed that during the 

course of an inspection by MSHA Inspector Darold Gamblin 

at the old No. 4 Unit of the subject Martwick Mine on 

october 2, 1991, a hand held detector carried by Peabody 

Safety Supervisor Paul Cotton sounded a low oxygen alarm, 

indicating oxygen levels below 19~5 percent. Gamblin marked 

the location (on Joint Exhibit No. 4 with a pink "X") at 

approximately the same location Inspector Ryan bad found low 

oxygen the previous day. Gamblin took two bottle samples 

at that same location and the test results showed 19.12 and 

19.06 percent oxygen. Gamblin then proceeded up the track 

entry and found 6 man doors open in the return stopping line. 

He considered this to be a violation of paragraph 8, page 3, 

of the approved ventilation plan noted above and the condition 

was accordingly cited in Order No. 3417072. Inspector Gamblin 

also considered that the weekly examination of the area 

(which was performed shortly after midnight on the morning 

of October 2, 1991) was inadequate because those hazards were 

not reportedo (See Joint Exhibit Noo 2). 

As previously noted 1 Peabody challenges only the '

2unwarrantable failure" findings made by the Secretary. 

Unwarrantable failure has been defined by the Commission 

as 1vaggravated conduct, constituting more than ordinary 

negligenceu by a mine operator in relation to a violation 

of the Act. 00 Emery Mining Corp., 9 FMSHRC 1997 (1987)u 

Youghiogheny and Ohio Coal Co., 8 FMSHRC 2007 (1987). 

In the latter decision the commission further stated 

that whereas negligence is conduct that is "inadvertent 1 

thoughtless, or inattentive, unwarrantable conduct is 

conduct that is described as not justifiable or inexcusable." 

121 
In its post-hearing brief, the Secretary, in support 

of her finding that these violations were the result of 

"unwarrantable failure" stated only as follows: 

It is clear from the testimony of Inspector 

Ryan, Mike Abney, Health and Safety Conference 

Officer Bob Philips, Inspector Gamblin, and 

Kenneth Baggarly that the operator was fully 

aware of the fact that there was a problem with 

low oxygen on the old No. 4 Unit on October 1, 

1991. Nevertheless, when the area was inspected 

24 hours after the operator was made aware of low 

oxygen on the section, the problem of low oxygen 

still existed. Not only did the problem still exist, 

but the area had been examined for weekly hazardous 

conditions and the presence of low oxygen was not 

noted on the examination book. Additionally, the 

operator continued to send miners into the area to 

work, knowing that there was a problem with low 

oxygen that had not yet''been· corrected. 

While the evidence is undisputed that indeed there was 

an oxygen deficiency in the old No. 4 Unit on October 1, 

1991, as the Secretary alleges, the fact that low oxygen 

also existed 24 hours later in the same general area which 

was the result of new violative conditions (the fact that 

6 man doors had been left open in the return stopping line) 

not cited on October 1, does not, however, necessarily lead 

to the inference the Secretary suggests. The citation and 

orders now at issue admittedly arose out of an interrelated 

set of facts, commencing with the fact that 6 man doors had 

been left open in the return stopping line, admittedly a 

the ventilation plan and as charged in Order 

It:. is alleged by the Secretary that this 

violation t.urn caused the low oxygen in the return in 

violation of 30 C.F.R. Section 75.301 and as charged in 

Citation No.3417070. It is further alleged that since the 

weekly examination conducted on the morning of October 2, 

1991 failed to disclose these open man doors, the examination 

was therefore also purportedly inadequateo The latter 

violation was charged in Order Noo 341707lo 

The Secretary has failed, howeveru to sustain her 

burden proving that these violations were the result of 

Peabodyus svunwarrantable failure." There is no evidence 

as to when the man doors were opened or by whom. More 

specifically, there is no direct nor adequate circumstantial 

evidence that the doors were open in the early morning of 

October 2u 1991, at the time the weekly examination was 

conducted. Accordingly, there is no evidence to support a 

122 
conclusion that Respondent knew or even should have known 

that the 6 man doors had been opened in the return stopping 

line of the old No. 4 Unit. 

While the Secretary also apparently claims that the 

examination was inadequate in that the examiner failed to 

note low oxygen on the weekly examination performed on the 

morning of october 2, 1992, there is again no direct or 

adequate circumstantial evidence as to what the oxygen level 

actually was during that examination. The oxygen levels 

measured on October 1 and 2, 1992 were only slightly below 

the required 19.5 percent and it may just as reasonably be 

inferred that the oxygen levels were at or above 19.5 percent 

during the examination. It cannot reasonably be inferred 

therefore that the examiner had knowledge of an any oxygen 

deficiency during his examination on October 2, 1991. 

In addition, while MSHA Supervisor Charges Dukes 

concluded that the violationS'·Were the result of "unwarrantable failure," his testimony cannot be credited because 

it was based upon erroneous assumptions of fact. Nothing in 

the two citations issued by Inspector Ryan on October 1, 

1991, could be deemed to have given notice of the specific 

violations charged on October 2, 1991, regarding the open 

man doors inby the panel mouth. 

Under the circumstances, I conclude that the Secretary 

has failed to sustain her burden of proving such a level of 

aggravated conduct or omissions that constitutes more than 

ordinary negligence. The "unwarrantable findings" in Citation 

No. 3417070 and Order Nos. 3417071 and 3417072 are therefore 

unsupportedQ and, accordingly 0 they are modified to citations 

under Section 104(a) of the Act. Considering the lower level 

of negligence therefore associated with these violationsu but 

also considering the admitted nsignificant and substantiaruu 

nature of these violations and the remaining criteria under 

Section llO(i) of the Act 1 I find that civil penalties of $500 

for each of the above three violations are appropriate. 

ORDER 

Docket No. KENT 92-223 

Citation No. 3548378 is affirmed with its "significant and 

substantial" findings and Peabody Coal Company is directed to 

pay a civil penalty of $227 for the violation charged therein 

within 30 days of the date of this decision. 

123 
Docket No. KENT 92-635 

Citation No. 3417070 and Order Nos. 3417071 and 

3417072 are hereby modified to citations under Section 104(a) 

of the Act and Peabody Coal Company is directed to pay 

civil penalties of $500 for each violat n for a total of 

$1500 within 30 days of the ate of this decision. 

Distribution: 

Melick 

'nistrati 

756-6261 

MaryBeth Bernui, 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., Peabody Coal Company, 

1951 Barrett Court, P.O. Box 1990, Henderson, 

KY 42420-1990 (Certified Mail) 

/lh 

124 
FEDERAL KINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

(303) 844-5266/FAX (303) 844-5268 

· r: ~J 0 1 19 03 .... . ,(, J_ i"" "" 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. WEST 90-346-M 

v. 

FORD CONSTRUCTION COMPANY, 

Respondent 

DECISION AFTER REMAND 

Before: 'Judqe Morris 

On December 2, 1992, the commission remanded the above case. 

In its decision the Commission concluded Respondent's scraper (Co 

#8-7) and its bulldozer (Co #5-l) were within the coverage of 30 

C.F.R. § 56.14130(g). The Commission further directed the Judge 

to determine whether the scraper citation was properly designed 

as being S&S. The Commission also directed the Judge to assess 

civil penalties for both Citations. 

In connection with the scraper Citation, the evidence shows 

that MSHA Inspector James Alvarez observed an employee of Ford 

Construction company ("FCC") operating a CAT 637D scraper without 

wearing a seat belt. Inspector Alvarez described the scraper as 

a large piece of mobile equipment approximately 49 feet long, 13 

feet wide~ and 14 feet high. The equipment operator was sitting 

in the cab that had no door on it. It was approximately five-anda-half to six feet from the operator's position to the ground. 

The scraper was being operated on a steep, declining road which 

was in poor condition? with pot holes, bumps, and loose material 

(Tr. 17). After speaking to management Inspector Alvarez issued 

a Section ,104(a), S&S Citation in which he stated: 

The operator of the CAT-637-D (Co. No. 8-7) 

scraper was observed driving this vehicle on 

steep, up and down grades on a bumpy roadway, 

which could easily cause him to be knocked or 

bumped out of the driver's seat because he 

was not wearing his seat belt as required. 

125 
Significant and substantial 

A violation is properly designated as being of an S&S nature 

"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 (January 1984), 

the Commission further explained: 

In order to establish that a violation of a 

mandatory standard is significant and substantial under National Gypsum the Secretary 

must prove: {1) the underlying violation of 

a mandatory safety standard; {2) a discrete 

safety hazard--that 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. 6 FMSHRC at 3-4. See also Austin 

Power Co. v. Secretary, 861. F.2d 99,104-05 

(5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021 

(December 1987) (approving Mathies criteria). 

Follqwing the Mathies formulation, the record here establishes (1) an underlying violation of the seat-belt regulation, 

30 C.FoR. § 56.14130(g) t (2) a measure of danger to the CAT 

operator was contributed to by the violation; (3) The steep declining road and the lack of a door subject the CAT operator to 

falling approximately five-and-a-half to six feet to the ground--

the condition of the road would render the CAT unstable; (4) if 

the driver fell from the CAT, there is a reasonable likelihood 

~hat such a fall itself could cause an injury of a reasonably 

serious nature. In addition, a fatality could result if the 

driver fell under the wheels of the equipmento 

For the foregoing reasons, the S&S allegations should be 

affirmed. 

Civil Penalties 

Section 110(i) of the Mine Act mandates consideration of 

certain criteria in assessing approximate civil penalties. 

126 
There is no evidence of the size of FCC's business, nor the 

effect the imposition of penalties would have on that business, 

nor FCC's prior history. FCC abated the violations and, accordingly, it is entitled to statutory good faith. 

FCC was negligent as to both seat belt citations. A cursory 

check by the company would have shown the equipment operators 

were not wearing their seat belts . • 

The gravity of the situation involving the CAT operator 

driving the scraper (Citation No. 3458357) was discussed under 

the S&S designation. The gravity of the situation involving the 

DH8 dozer (Citation No.3458425) was less than in the previous 

citation. Specifically, the dozer was not moving over five miles 

per hour. In addition, it was being operated on level ground. 

Considering the statutory criteria for assessing civil penalties, the penalties set forth in the order of this decision are 

appropriate. 

Accordingly, I enter the following: 

ORDER 

1. A civil penalty of $75 is ASSESSED for the violation of 

30 C.F.R. § 56.14130(g) and the S&S findings are AFFIRMED as to 

Citation No. 3458357. 

2. 'A civil penalty of $20 is ASSESSED for the violation of 

30 C.F.R. § 56.14130(g) as to Citation No. 3458425. 

Law Judge 

Distribution~ 

Tina Gormang Esq., Office of the Solicitorr U.S. Department of 

Laborf 4015 Wilson Boulevard, Arlington, VA 22203 {Certified 

Mail) 

Susan Lewald, Esq. 1 Office of the Solicitorr U.S. Department of 

Laboru 71 Stevenson Street, Suite 1110, San Francisco, CA 94105-

2999 (Certified Mail) 

Robert D. Peterson, Esq., 3300 Sunset Boulevard, Suite 110, 

Rocklin, California 95677 (Certified Mail) 

ek 

127 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

(303) 844-5266/FAX (303) 844-5268 

JAN 21 1993 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA}, 

Petitioner 

v. 

MAGMA COPPER COMPANY -

PINTO VALLEY DIVISION, 

Respondent 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 92-98-M 

A.C. No. 02-01049-05530 

Docket No. WEST 92-313-M 

A.C. No. 02-01049-05531 

Pinto Valley Operations 

DECISION APPROVING SETTLEMENT 

Before: Judge Morris 

These cases are consolidated civil penalty proceedings 

initiated by Petitioner against Respondent pursuant to the 

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

~ (the "Act"). The civil penalties sought here are for the 

violation of mandatory regulations promulgated pursuant to the 

Act. 

Prior to a hearingp the parties filed a motion seeking to 

settle the cases. The Citationsp proposed penaltiesp and dispositions are as follows: 

Citation Noa 

3925620 

3925619 

Assessments 

$ 20.00 

$2000.00 

Disposition 

Vacate 

$600.00 

In connection with the motion, the parties further amended 

Citation No. 3925619 and submitted information relating to the 

statutory criteria for assessing civil penalties as contained in 

30 u.s.c. § 820{i). 

I have reviewed the settlement and I find it is reasonable 

and in the public interest. It should be approved. 

Accordingly, I enter the following: 

128 
ORDER 

1. The settlement is APPROVED. 

2. Citation No. 3925620 is VACATED. 

3. The remaining citation and amended penalty are 

AFFIRMED. 

4. Respondent is ORDERED TO PAY to the Secretary of Labor 

the sum of $600.00 within 30 days of the date of this decision. 

Law Judge 

Distribution~ 

Jeanne M. Colby, Esq. 1 Marshall P. Salzman, Esq., Office of the 

Solicitorf u.s. Department of Labor, 71 stevenson street, Suite 

lllOu San Franciscou CA 94105-2999 (Certified Mail) 

Thad S. Huffman, Esq., Mark N. Savit, Esq., JACKSON & KELLY, 2401 

Pennsylvania Avenue, N.W., 1701 Pennsylvania Avenue, N.W., Suite 

650, Washington, DC 20006 (Certified Mail) 

ek 

129 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

Docket No. WEVA 92-793 

A.Co No. 46-01438-03932 

: Ireland Mine ~ '• . 

0 

DECISION 

Appearances~ Patrick DePace, Esq., u.s. Department of Labor 

Office of the Solicitor, Arlington, Virginia 

for Petitioner; 

Before~ 

Daniel Rogers, Esq., Consolidation 

Coal Company, Pittsburgh, Pennsylvania, 

for Respondent. 

Judge Feldman 

This case is before me as a result of a petition for civil 

penalty filed by the Secretary of Labor pursuant to Section 

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

30 u.s.c. § 801 et seq., (The Act). The petition charges 

Consolidation Coal Company 1 pursuant to 104(a) of the Act, with 

four nonsignificant and substantial violations of certain 

mandatory safety standards specified in 30 C.F.R. Part 75. 

This matter was heard in Wheeling, West Virginia, at which 

time Lyle R. Tipton testified for the petitioner and Hestle B. 

Riggle Jr.u and Steven Perkins testified on behalf of the 

respondent. The partiesu stipulations concerning the pertinent 

jurisdictional issues and the relevant civil penalty criteria 

found in section 110(i) of the Act are of record. The general 

issue for determination is whether the respondent violated the 

cited safety standards and, if so, the appropriate civil penalty 

to be assessed. The parties filed post-hearing briefs which I 

have considered in my disposition of this matter. 
At the hearing the secretary moved to settle two of the 

citations in issue. In this regard, the respondent stipulated 

that it had agreed to pay the $20 assessed penalty for Citation 

No. 3331974. 1 The remaining part of the settlement ~greement 

concerned the Secretary's reqUest to vacate Citation No. 3331975 

because of her inability to establish that the unreported 

presence of water in an escapeway existed at the time of a preshift examination. As noted at the hearing, the parties' 

settlement agreement was approved and will be incorporated as 

part of this decision. 

PRELIMINARY PINDINGS OP PACT 

Lyle Robert Tipton is an experienced Federal Coal Mine 

Inspector with specialized training as a mine ventilation expert. 

on January 14, 1992, during an inspection of the respondent's 

Ireland Mine, Inspector Tipton issued 104(a) Citation No. 3331969 

for a nonsignificant and substantial violation of the mandatory 

safety standard found in 30 C.F.R. § 75.1707. 2 Citation 

No. 3331969 noted: 

At the conclusion of a verbal request for an 

Inspection/Investigation it has been 

determined that 34 out of 40 Kennedy type 

stoppings each identified to management, that 

are used to separate the No. 3 conveyer belt 

entry from the No. 2 track intake air 

escapeway entry, did not effectively separate 

the two entr(ies] due to cracks in the 

stopping sealant which allows air to travel 

between the two entries on the 5 right off 3 

north 3 entry development section. Pressures 

were positive track to belto 

Inspector Tipton returned to the Ireland Mine on January 22u 

1992u which time he issued Citation No. 3331973 for a similar 

1 At the hearing the Secretary amended the proposed civil 

penalty assessments for each of the four citations from $50 to 

$20 because they were issued prior to the modification of the 

Secretaryvs single penalty assessment criteria. 

2 30 C.F.R. 75.1707 provides, in pertinent part, that 11 • 

the escapeway required by this section to be ventilated with 

intake air shall be separated from the belt and trolley haulage 

entries of the mine for the entire length of such entries to the 

beginning of each working section ..• " (Emphasis added). 

131 
nonsignificant and substantial violation of 30 C.F.R. 

§ 75.1704. 3 Citation No. 3331973 noted: 

The No. 2 designated track intake air 

escapeway servicing-the 5 right off 3 nor~h 

section, was not ·adequately separated from 

the No. 1 return secondary escapeway entry 

where the sealant on the Kennedy Stopping 

separating these entr[ies] had cracked and/or 

fell off causing the two entries not to be 

adequately separated in this three entry 

development section. Twelve stoppings were 

leaking and all were marked for 

identification. 4 

This case involves the condition and resultant effectiveness 

of the Kennedy type stoppings observed by Inspector Tipton on 

January 14, and January 22, 1992, in the respondent's three entry 

development section at its Ireland Mine. Stoppings are erected 

between entries to adequately·separate the air courses in those 

entries. Stoppings serve the dual purpose of 1) providing 

discrete airways for ventilation of the mine face and 

2} maintaining the integrity of escapeways to prevent smoke in 

one escapeway from contaminating the adjoining escapeway in the 

event of evacuation due to fire. Kennedy stoppings are a recent 

development in the mine industry. Conventional stoppings are 

constructed of masonry block. A Kennedy stopping is comprised of 

3 Section 75.1704 provides, in pertinent part, that "· .• 

at least two separate and distinct travelable passageways which 

are maintained to insure passage at all times of any personu 

including disabled personsu and which are to be designated as 

escapewaysu at least one of which is ventilated with intake airu 

shall be provided from each working section continuance to the 

surface escape drift opening, .•. shall be maintained in safe 

condition and properly marked. Mine openings shall be adequately 

protected to prevent the entrance into the underground area of 

the mine of surface firesp fumes, smoke, and flood water. Escape 

facilities ..• properly maintained and frequently tested 1 shall be 

present at or in each escape shaft or slope to allow all persons, 

including disabled persons, to escape quickly to the surface in 

the event of an emergency. 18 (Emphasis added). 

4 Citation No. 3331973 was issued on January 22, 1992, for a 

violation of 30 C.F.R. § 75.1704. It was subsequently modified 

to a Section 75.316 violation as a result of a Health and Safety 

Conference on January 26, 1992. At the hearing the Secretary 

moved to modify this citation back to a Section 75.1704 violation 

as initially issued. The respondent had no objection. (Tr.16). 

The motion was granted as it was unopposed and there was no 

allegation of any prejudice on the part of the respondent. 

132 
steel panels strapped to two steel cross beams erected across 

each entry. The steel panels extend from the cross beams at the 

mine roof to the mine floor. These steel panels, which must be 

installed by trained personnel, are pressurized against the mine 

roof and floor and locked into position. Foam is idstalled at 

the top and bottom of the panels to prevent against air leakage 

and to allow for some flexibility in the event of roof sagging or 

floor movement. Finally, sealant is applied in an approximate 

four inch bead at the connecting seams between each panel and 

around the roof, rib and floor; 

As in the instant case, Kennedy stoppings are frequently 

used in three entry development sections for longwall panel 

operations. As the longwall advances, the Kennedy stoppings can 

be recovered and reused as a cost effective measure. (Tr.61). 

Use of Kennedy stoppings in the three entry development of the 

respondent's mine, a short life area, complies with the 

respondent's approved ventilation plan. In long life areas, such 

as the main entry and main return airways, the respondent's 

ventilation plan requires use' ·of permanent block stoppings. When 

properly installed and maintained Kennedy stoppings are as 

effective as masonry block stoppings. (Tr. 87). 

The Kennedy stoppings in issue are located between the 

No, 1 secondary escapeway and No. 2 intake air primary escapeway 

and between the No. 2 intake air escapeway and the No. 3 conveyer 

belt entry. The stoppings are erected in the crosscuts 

separating these three entries at approximately 180-foot centers. 

Each entry is approximately 15-1/2 feet wide by seven feet in 

height. Therefore, each Kennedy stopping installed in each 

crosscut is comprised of numerous vertical steel panels totalling 

the approximate 15-1/2 foot width by 7 foot height of each 

crosscut entry. 5 

FURTHER FINDINGS AND CONCLUSIONS 

citation No. 3331969 

On January 14u 1992 9 Inspector Tipton conducted a spot 

inspection the respondent's Ireland Mine. 6 Tipton was 

accompanied by the respondent 1 s Safety Director Hestle B. Riggle 

5 These stoppings are pictured in the manufacturers" 

pamphlet detailing the Kennedy stopping specifications. (Ex.7). 

Inspector Tipton described the extensive presence of the sealant 

in issue by annotating an exhibit at the hearing. (See ex.9). 

6 Under section 103(i) of the Act, a spot inspection is 

required once in every five working days for any mine which 

liberates more than one million cubic feet of methane in a 24 

hour period. 

133 
and hourly employee William Keller. During the inspection, 

Tipton was approached by a member of the United Mine Workers' 

Safety Committee who complained that the stoppings in the 5 right 

off 3 north, 3 entry development section were not being 

adequately maintained. 

Tipton, accompanied by Riggle, inspected the three entry 

development section. The inspection was accomplished with Riggle 

in the No. 3 conveyer belt entry while Tipton stood in the No. 2 

intake escapeway entry. Each individual proceeded to shine his 

cap lamp across the stoppings. Tipton observed the amount of 

light shining through the stoppings to evaluate the effectiveness 

of the sealant and to determine whether the stoppings were 

adequately maintained. Tipton described his observations as 

uro 0 • a field with a bunch of automobiles in it with their 

lights turned on, that would be an example of how much light I 

could see shining through the stoppings through the [sealant] 

being cracked." (Tr.27). Of the forty stoppings observed in 

this area, Tipton observed thirty-four that had excessive cracks 

in the sealant between the vertical steel panels. The cracks 

observed by Tipton varied in size from the width of a piece of 

paper to one quarter inch in diameter. Tipton also observed 

cracks in the remaining six stoppings. However, these stoppings 

were determined to be in compliance because the cracks were minor 

and the stoppings remained effective. 

Tipton testified that he was "absolutely positive" that he 

determined that the air current traveled from the No. 2 intake 

entry to the No. 3 conveyer belt entry because air pressure was 

positive in the No.2 entry. (Tr.Bl}. Although Tipton did not 

recall doing any formal smoke test to determine the airflow 

directionu he stated that the air current direction could be 

eas ascertained by something as simple as opening a man door ~oetween the entries" (TR" 81)" 

On cross examination Tipton conceded that he did not perform 

any testing to determine the quantity of airflow that was 

infiltrating through the stoppings. Tipton testified that such 

testing could be accomplished only in a laboratory setting and 

Bas not feasible in a mine environment, particularlyu in this 

case involving air infiltration through a multitude of cracks in 

numerous stoppingso However, Tipton opined that it is undisputed 

that there is greater air pressure in an intake entry, 

particularly in a three entry development system, which would 

increase the rate of air infiltration from the No. 2 intake entry 

to the adjacent entries through the defective stoppingse 7 

1 on cross-examination Riggle conceded that the direction of 

air flow was out from the No. 2 entry given the positive pressure 

in that entry. (Tr.137). 

134 
The respondent called Hestle B. Riggle, Jr., to testify with 

regard to his recollection of the inspection in question. 

Although Riggle testified that it was Tipton who predominantly 

shined the light on the stoppings, thus purportedly preventing 

Tipton from observing the light through the cracks, ~iggle 

ultimately admitted on cross examination that he also shined his 

light toward Tipton. (Tr.125). Although Riggle stated that he 

could not feel air through the cracks, he corroborated Tipton's 

testimony that the air pressure was positive from the No. 2 

intake escapeway to the No. 3 conveyer belt entry. He admitted 

that the direction of air flow could be easily determined by 

opening any man door which was present at approximately every 

third stopping. Riggle also corroborated Tipton's testimony with 

regard to previous discussions between the respondent's mine 

management and the manufacture of the Kennedy stoppings 

concerning several different kinds of sealant that could be used 

to counteract the deterioration of the stoppings. In fact, 

Riggle testified that he had met with representatives of the 

manufacture to discuss problems with the sealant. (Tr. 140). 

citation No. 3331973 

On January 22, 1992, Inspector Tipton returned to the 

respondent's Ireland Mine. Tipton once again examined the three 

entry development section in issue. Tipton was accompanied by 

safety department representative Steven Perkins and hourly 

employee Rich Baker. Tipton again determined the effectiveness 

of the sealant by observing the amount of light which could be 

seen through the stoppings. This was accomplished by repeating 

the procedure performed the previous week with Riggle. 

Specifically, he examined the Kennedy stoppings used to separate 

the Noo 2 track intake air primary escapeway from the Noo 1 

return secondary escapewayo Of the stoppings observed between 

these two entries 9 Tipton noted twelve stoppings where the 

sealant between the panels had cracked or fallen off" He cited 

these twelve stoppings because of the multiple cracks which he 

believed rendered the stoppings ineffective. 

Perkins testified that he did not feel air moving through ~ne stoppingso Perkins opined that the difference in air 

pressure between the two entries would not effect the movement of air~ a conclusion that was contradicted by both Tipton and 

Riggleo Perkins corroborated the methodology described by Tipton 

in that it was he who shined his light toward Tipton so that 

Tipton could evaluate the condition of the sealant. (Tr.l45)o 

DISCUSSION AND EVALUATION 

The fundamental issue is whether the conditions cited by 

Inspector Tipton resulted in violations of sections 75.1704 and 

75.1707. These mandatory safety standards require intake primary 

135 
escapeways for m1n1ng sections to be kept "separate" from the 

belt and trolley haulage entries. 

The respondent, in its brief, asserts that the stoppings 

fulfilled the functions for which they were erected,! i.e., to 

promote positive pressure in the intake escapeway so as to 

provide an abundance of fresh air to the working face. 

Consequently, the respondent maintains that the evidence, which 

establishes positive pressure in the intake escapeway and a high 

volume of air reaching the working section, demonstrates that the 

intake escapeway was adequately "separated" from the adjacent 

entries. In this regard, the respondent argues that although the 

regulations require the entries be kept separate, they do not 

require the "· •• intake escapeway to be absolutely, 

hermetically sealed off from other entries." (Respondent's Brief, 

P.4). 8 

The petitioner, on the other hand, relies on the MSHA 

Program Policy Manual which interprets the separation standard in 

section 75.1707 as: 

Separation of the escapeway from belt and 

trolley haulage entries shall be made with 

substantially built, permanent-type 

stoppings, such as concrete blocks, brick, 

tile, or metal, and they shall be reasonably 

airtight (emphasis added). See exhibit no. 8. 

In support of MSHA's interpretation the petitioner points to 

a holding by Judge Melick involving application of section 

75.1707 wherein he noted that it is understood in the mining 

industry that nreasonably airtight" is the applicable separation 

standard. However; Judge Melick also acknowledged widespread 

disagreement over what constitutes a 81 reasonably airtight" 

separation. See Rochester & Pittsburgh Coal Company 10 FMSHRC 

1576 (November 1988). 

Resolution of this case requires placing the term 00 separation19 in the proper perspective. Thus 8 11 separation11 must 

be viewed in the context of the hazards that the mandatory safety 

standards in section 75.1704 and 75.1707 are intended to prevent. 

8 In support of this proposition the respondent relies on a 

recent decision by Judge Weisberger that entries were adequately 

separated as contemplated by section 75.1707 despite an 8 x 16 

inch hole in a cement block. See consolidation Coal Company 

14 FMSHRC 1450 (August 1992), appeal pending. I do not view my 

decision in this case as inconsistent with Judge Weisberger's 

finding in that I do not equate widespread deterioration of 

sealant on numerous stoppings with one 8 x 16 inch hole in a 

single stopping. 

136 
Significantly, these regulatory prov~s~ons conce+n escapeway 

rather than ventilation safety standards. Therefore, the 

respondent's reliance on the apparent effectiveness of its 

Kennedy stoppings in ventilating the working face a~ required by 

the mandatory ventilation safety standards in 30 C.P.R. § 75.301 

et seq. is not in issue and is, therefore, not dispositive of 

this matter. 9 

I credit Tipton's unrebutted testimony that failure to have 

reasonably airtight separation between each entry could result in 

smoke contamination of an escapeway effectively eliminating a 

possible escape route for miners, who for whatever reason, do not 

have the benefit of self-contained breathing apparatus. 

Moreover, a fire in the primary intake escapeway with ineffective 

stoppings would result in smoke contamination in the secondary 

return escapeway in advance of the escaping miners. Thus, while 

I am not bound by MSHA's "reasonably airtight" interpretation, I 

conclude that it is entitled to deference and that it is the 

reasonable and proper standardto be applied. See Emery Mining 

Corp. v. Secretary of Labor, 744 F.2d 1411 {lOth Cir. 1984); 

Bowles v. Seminole Rock Co., 325 u.s. 410, 414 (1945). 

The Commission has recognized that many safety and health 

standards must be broadly adaptable to a myriad of circumstances. 

See Kerr McGee Corp., 3 FMSHRC 2496, 2497 (November 1981). The 

"reasonably airtight" requirement is one such broad standard. 

The application of broad standards is committed to the 

inspector's discretion which should be exercised in a reasonable 

manner. In exercising his discretion, Tipton acknowledges that 

air infiltration through conventional block or Kennedy stoppings 

is not 6 in and of itself, a violation of the escapeway mandatory 

safety standards. Moreoveru Tipton's testimony reflects that 

masonry block stoppingsu by nature are porous and permit some air 

infiltration. Similarlyv Inspector Tipton testified that minor 

cracks in the sealant of Kennedy stoppings do not warrant a 

citation. 

To support his judgment that the cited stoppings were 

defectivev Tipton testified that he found 34 Kennedy stoppings 

between the No. 2 and No. 3 entries (Citation No. 3331969) and 

twelve Kennedy stoppings between the No. 2 and No. 1 entries 

(Citation No. 3331973) that were not adequately separating the 

9 The respondent has relied on the stoppings' role in 

ventilation rather than escapeway safety throughout this 

proceeding. At trial Riggle testified that ••• " you just have 

to check [the stoppings] periodically to make sure that the 

stoppings are in the condition to put ventilation where you want 

it. " ( Tr. 12 9) . 

137 
entries because of cracks in the sealant measuring up to one 

quarter inch in diameter. 10 Tipton attributed these cracks to 

mine roof and floor movement and to a lack of durability of the 

Kennedy stopping sealant applied in numerous four inch beads 

approximately seven feet in height between the steel panels from 

floor to roof. 

The testimony of Tipton is essentially corroborated by the 

two witnesses called upon by the respondent. Significantly, 

Tipton's testimony that the manufacturer of the Kennedy stoppings 

is aware of sealant problems related to durability and fitness 

was confirmed by Riggle. (Tr.59-60, 87). In fact, Riggle 

testified that the respondent's management has had several 

meetings with the manufacturer concerning sealant problems (Tr. 

139-140). In addition, Riggle conceded that some of the sealant 

in question had in fact deteriorated. (Tr. 126-127). Finally, 

the respondent failed to call any representative of the 

manufacturer to attest to the performance of the sealant in 

question. Therefore, I conclude that the evidence supports 

Tipton's observations of widespread cracking as a result of 

extensive sealant deterioration. 

Having determined that there was widespread cracking in the 

Kennedy stoppings, I must address the effect of such cracking 

with regard to direction of air loss and the magnitude of such 

loss. The respondent takes issue with Tipton's alleged failure 

to ascertain the direction of air flow and the magnitude of air 

infiltration. With respect to air direction, the testimony of 

both Tipton and Riggle indicates that air pressure was positive 

in the No. 2 intake entry as compared with the No. 1 and No. 3 

entries. In fact, in its post hearing brief, the respondent 

prides itself on the pressure in the No. 2 entry. Therefore, it 

is reasonable to conclude that the direction of air flow 1 which 

could be determined by opening any man door between the entries~ 

was from the No. 2 intake entry into the lower pressured No. 1 

and Noo 3 entries as stated by Tipton and confirmed by Riggle. 

With respect to the extent of air loss, Tipton testified 

that he knew of no method to quantify the air loss due to the 

t-:ridespread nature of the cracking. Nor has the respondent 

offered any means of measurement. While the magnitude of 

escaping air could not be determined, it is clear given the 

nature and extent of the cracking and the higher pressure in the 

No. 2 intake entryu particularlyu in a three entry development 

systemu that significant air flow in the direction of the No. 1 

10 Tipton characterized these stoppings as only approximately forty percent effective. (Tr. 105). 

138 
and No. 3 entries occurred. 11 Consequently, the Secretary 

established violations of sections 75.1704 and 75.1707 as the 

cited Kennedy stoppings were not reasonably airtight in that they 

did not effectively "separate" this three entry section. 

Having determined that these violations occurred, I wish to 

emphasize that the evidence reflects that Kennedy stoppings are 

as effective as conventional masonry block stoppings when 

adequately maintained. These stoppings are apparently a cost 

effective alternative to block stoppings in that they can be 

recovered for reuse as the longwall advances. However, the 

benefit of the flexibility of design of the Kennedy stoppings 

which facilitates their removal and reuse imposes a corresponding 

obligation on the mine operator to monitor the condition of the 

sealant to ensure that these stoppings continue to create an 

effective barrier which maintains the integrity of the escapeway. 

In this regard, it is noteworthy that the violations in issue 

were abated by the application of additional sealant. 

ULTIMATE CONCLUSIONS 

Based on Tipton's testimony that the circumstances 

surrounding these violations constituted best case scenarios 

because the primary intake escapeway could not to be contaminated 

from adjacent entries because of its higher pressure, I conclude 

that the violations in issue were nonsignificant and substantial. 

I also concur with the opinion of Tipton that the respondent's 

underlying negligence associated with these violations was 

moderate and that these violations were of low gravity. 

Considering the non S&S nature of the violations as well as 

the remaining statutory factors stipulated to by the parties, I 

conclude that a penalty of $20 is appropriate for Citation I~oo 3331969 which was issued on January 14 u 1992. Although 

No. 3331973 9 issued on January 22 0 1992 0 is similar in 

natureu I am assessing a penalty of $100 because the respondent 

failed to service the sealant on these Kennedy stoppings despite 

the fact that it was placed on notice by the earlier citation 

that these stoppings may also be in need of maintenance. Thus, 

negligence associated with this citation is higher in degree 

and justifies a higher penalty. I am also incorporating the 

previously noted settlement agreement in this decision which 

1 Tipton testified that pressures are higher in a three 

entry development section in order to maintain sufficient 

quantities of air to the last open crosscut. The integrity of 

these entries is critical in view of the reduced number of 

entries. A fire in the number 2 intake track primary escapeway 

with defective stoppings could subject personnel in the No. 3 

belt entry to smoke inhalation and impede evacuation through the 

No. 1 secondary escapeway (Tr. 38,46-47,63). 

139 
requires the respondent to pay a penalty $20 for Citation 

No. 3331974 and which results in vacation of Citation No. 

3331975. 

ORDER 

Based upon the above findings of fact and conclusions of 

law, IT IS ORDERED that: 

1. Citation Nos. 3331969 and 3331973 ARE AFFIRMED. 

2. The proposed settlement agreement concerning Citation 

No. 3331974 IS APPROVED. 

3. Citation No. 3331975 IS VACATED. 

4. The respondent shall PAY a civil penalty of $140 within 

30 days of the date of this decision • 

.. 

Jerold Feldman 

Administrative Law Judge 

Distribution: 

Patrick DePace, Esq., u.s. Department of Labor, Office of the 

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

(Certified Mail) 

Daniel E. Rogers, Esq., Consolidation Coal Company, 1800 

Washington Roadf Pittsburgh 5 PA 15241 (Certified Mail) 

vmy 

140 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1Oth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

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 

JAN 2 51993 

CONTEST PROCEEDINGS 

Docket No. SE 88-82-RM 

: Citation No. 3252969; 7/16/88 

. . 

: 

Docket No. SE 88-83-RM 

Citation No. 3252970; 7/17/88 

.Immel Mine 

Mine ID 40-00170 

CIVIL PENALTY PROCEEDING 

Docket No. SE 89-67-M 

A. C. No. 40-00170-05520 

Immel Mine 

DECISION APPROVING SETTLEMENT 

Before~ Judge Weisberger 

These cases are before me upon a Petition for Assessment of 

Civil Penalty under Section 105(d) of the Federal Mine Safety and 

Health Act of 1977 (the Act). Petitioner has filed a Motion to 

approve a settlement agreement and to dismiss these cases. A 

reduction in penalty from $16,000 to $9,180 is proposed. I have 

considered the representations and documentation submitted in 

these cases 1 and I conclude that the proffered settlement is 

appropriate under the criteria set forth in Section 110(i) of the 

Act. 

WHEREFORE, the Motion for Approval of Settlement is GRANTED. 

It is ORDERED that the hearing on February 23-25, 1993 is 

cancelled. It is further ORDERED that Respondent pay a penalty 

of $9,180 within 30 days of this Order. It is further ORDERED 

that the Notices of Contest, Docket Nos SE 88-82-RM and 

SE 88-83-RM are DISMISSED. 

Administrative 

r welsb~ Law Judge 
Distribution: 

Mark N. Savit, Esq., Jackson and Kelly, 2401 Pennsylvania Avenue, 

N.W., Washington, DC 20037 (Certified Mail) 

Thomas A. Grooms, Esq., u.s. Department of Labor, Office of the 

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

37215 (Certified Mail) 

nb 

142 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

'JAI 2 5 19g3 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner . . Docket No. VA 92-132 

A.C. No. 44-06259-03565 

v. . . Greenbrier Mine No. 1 

HARMAN MINING CORPORATION, 

Respondent 

DECISION 

Appearances: Patrick L. DePace, Esq., Office of the 

Solicitor I u.s.~ Depa.rtment of Labor I 

Arlington, Virginia, for Petitioner; 

Thomas c. Means, Esq., Crowell and Moring, 

Washington, D.C., for Respondent 

Before: Judge Melick 

This case is before me upon the petition for civil 

penalties filed by the Secretary of Labor pursuant to 

Section 105(d) of the Federal Mine Safety and Health Act 

of 1977, 30 u.s.c. 801, et seq., the "Act," charging the 

Harman Mining Corporation (Harman), in its original form, 

with two violations in a citation and order issued pursuant 

to Section 104(d)(l) of the Acto 1 The mandatory standard 

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

If, upon any inspection of a coal or 

other mineu 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 

dangeru 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 such violation 

143 
originally charged in both the citation and order, 

30 C.F.R. §75.520, requires that "all electric equipment 

shall be provided with switches or other controls that 

are safely designed, constructed, and installed. 11 

The citation at issue (No. 3783586) charges as follows: 

The 240 volt pump cable supplying power to the 

water pump on the 5th Right Section did not 

have a plug-in installed on the end of the cable. 

The bare wires were stuck into the receptacle 

on the power center. 

The order at issue (No. 3783587) charges as follows: 

The 240 volt pump cable supplying power to the 

water pump at the mouth of 5th right did not 

have a plug-in installed on the end of the cable. 

The bare wires were stuckintothe receptacle on 

the belt transformer box. 

On July 24, 1992, the Secretary moved to amend her 

petition in this case to charge, based on the same alleged 

facts, that a different standard, 30 C.F.R. §75.514, had 

been violated in the citation and order. 2 The standard 

at 30 C.F.R. §75.514 provides as follows. 

All electric connections or splices in 

conductors shall be mechanically and 

electronically efficient, and suitable 

fno 1 continued) 

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 the area affected by such violationu 

except those persons referred to subsection (c) 

be withdrawn from, and to be prohibited from 

entering such area until an authorized representative of the Secretary determines that such 

violation has been abated. 

2 It appears that the issuing inspector had attempted 

to make the same modifications on June 16, 1992, prior to the 

filing with the Commission on July 24, 1992, of the instant 

petition for civil penalty. The Commission noted in Wyoming 

Fuel Company, 14 FMSHRC 1202 (1992), that such attempted 

modifications are actually proposed amendments to the initial 

citation similar to an amendment of pleadings under the 

Federal Rules of Civil Procedure. 

144 
connectors shall be used. All electrical 

connections or splices in insulated wire . shall be insulated at least to the same degree 

of protection as the remainder of the wire. 

Harman opposes the Secretary's motion and, in a motion 

to dismiss, argues that it would suffer legal prejudice 

by the amendments.· 

Regarding the Secretary's authority to modify or amend 

charging documents such as citations, the Commission recently 

stated in Secretary v. Wyoming Fuel Company, 14 FMSHRC 1282 

(1992), as follows: 

Section 104(a) citations are essentially 

'complaints' by the Secretary alleging 

violations of mandatory standards. The 

Secretary's attempted modifications, 

alleging, based on the same facts, that 

a different standard had been .. violated, are 

essentially proposed "amendments" to the 

initial complaints, i.e., citations. The 

Commission has previously analogized the 

modification of a citation to an amendment 

of pleadings under Fed. R. Civ. P. 15(a) 

[Footnote omitted]. Cyprus Empire Corp., 

12 FMSHRC 911, 916 (May 1990). In Cyprus 

Empire, where the operator conceded that it 

was not prejudiced thereby, the Commission 

affirmed the trial judge's modification of a 

terminated citation to allege violation of a 

different standard. ID. 

In Federal civil proceedings 0 leave for amendment 00 shall be freely given when justice so 

requires. n~ Fed. R. civ. P. 15(a). The weight 

of authority under Rule 15(a) is that amendments 

are to be liberally granted unless the moving 

party has been guilty of bad faithu has acted 

for the purpose of delayu or where the trial of 

the issue will be unduly delayed. See 3 J. Mooreu 

R. Freer 0 Mooreus Federal Practice, Par. 15.08[2] 0 

15-47 to 15 49 (2d ed 1991) ( 91Moore 1 s 11 ). And, as 

explained in Cyprus Empireu legally recognizable 

prejudice to the operator would bar otherwise 

permissible modification. 

It is not argued in this case that the Secretary has 

been guilty of bad faith or that she has acted for the 

purpose of delay, nor is it alleged that the trial of the 

issue would be unduly delayed by the proposed amendments. 

Harman maintains, however, that it would suffer legal 

145 
prejudice if the proposed amendments (modifications) 

were permitted. Under the unique facts of this case I agree. 

It is undisputed that when the citation and order 

were issued the mine was no longer in production and 

was already in the process of permanent abandonment. 

Subsequently, after the termination of the original 

citation and order, the cited pump, power center, and 

electrical connecting cables were disassembled and the 

pumps and power centers sent to an off-sight storage 

location in furtherance of the planned abandonment. 

On May 9, 1992, the mine fan was turned off, the mine 

openings were fenced off, and by May 16, 1992, the 

mine was physically sealed. Since then the mine has 

been inaccessible with the cited electrical connecting 

cables sealed inside. 

It is further undisputed that on or about May 11, 

1992, the Mine Safety and Health Administration (MSHA) 

was informed that the mine had been closed as of May 9, 

1992, and permanently abandoned. The first modification 

of the citation and order was not attempted by MSHA 

until June 16, 1992, more than one month after the 

sealing and permanent abandonment of the mine. 

Harman supports its claims of prejudice in this 

case in large part on the testimony of Harman's highly 

qualified expert witness, Larry Hambrick. Hambrick, 

a graduate electrical engineer, is a former assistant 

professor of electrical engineering technology and chief 

electrical engineer for the Island Creek coal Company. 

He is presently a senior project engineer for the 

Westinghouse Electric Corporation. 

Hambrick opined that the original charges in the 

citation and order under 30 C.F.R. § 75.520 could readily 

be defended without the need for testing or investigation. 

According to Hambrick, cable termination plugs are not in 

fact switches or controls within the meaning of that 

section. Hambrick testified that if faced with charges 

under 30 C.F.R. § 75.514 0 howeveru further investigation 

and testing would be necessary. In particular, he opined 

that it would be necessary to study the connection that 

was made and examine any exposed conductors to determine 

how far the conductors were stripped and how far the 

conductors were inserted into the connection -- questions 

relevant to the efficiency and suitability of the connection 

and exposure to a hazard and critical to the "significant 

and substantial" and gravity issues. 

146 
Hambrick further noted that to defend against 

charges under section 75.514, he would have performed infra-scanning tests to determine whether any "hot spotsn 

or inefficient connections existed. He observed that it 

was possible that the wires inserted in the receptacle 

were indeed efficient and that it would have been possible 

to fasten the wires inside the receptacle to make good 

contact. Accordingly, he noted that it would also be 

essential to have examined the power center and the wire 

cable that was actually in use. 

Hambrick further noted that to properly defend 

against charges under section 75.514, it would also be 

essential to examine the circuit breaker to determine, 

among other things, whether the equipment had a ground 

fault device and the size of the circuit breaker to 

determine what, if any, hazard might have existed under 

the circumstances. Hambrick indicated that he would also 

have tested and examined the--cable, including the stranding, 

to determine its flexibility. He opined that it would have 

also been important to not only test the circuit breaker 

and ground fault capabilities of the power center but also 

determine access to the receptacle, i.e., was it in a 

location where people could come into contact with it. 

Regarding the issue of mechanical efficiency, 

Hambrick opined that it would also have been important 

to know what, if any, strain relief was provided on the 

cable. Hambrick noted that whether a chained device or 

kellem grips were used would be relevant to this question. 

Finallyu Hambrick opined that "plug-ins" are distribution 

devices and not control devices and thatu indeed, there 

such a separation in the field of electrical engineering 

between power controls and power distribution that they 

are separate disciplines of study into which 

electrical engineers may specialize. 

Within this framework of evidenceu I conclude that 

indeed Harman Mining Corporation would suffer legally 

cognizable prejudice if the Secretary was granted her 

motion to amend the petition for civil penalty in this 

case to change the charges in the citation and order 

from those under the standard at 30 C.F.R. § 75.520 

to charges under the standard at 30 C.F.R. § 75.514. 

From the essentially undisputed evidence it is clear 

that Harman could reasonably have believed that charges 

under the standard at Section 75.520 could have readily 

been defended on the grounds that the plug-in device was 

not a control or switch within the meaning of that standard. 

147 
Harman would therefore not have found it necessary to 

perform any tests, or, for that matter, pay any particular 

attention to the specific facts surrounding the alleged 

violation. Upon the subsequent sealing and abandonment 

of the mine and the undisputed inability to reconstruct 

the cited equipment, power center, cables, and other 

conditions critical to issues that clearly would become 

relevant to new charges under Section 75.514, Harman would 

be at extreme disadvantage in attempting to defend itself. 

It would indeed suffer legal prejudice by the proposed 

amendment. 

Under the circumstances, the Secretary's motion to 

amend is DENIED. In light of this determination the 

Secretary is directed to notify the undersigned and counsel 

for Harman Mining Corporation, in W+iting, within 1 days 

of the date of this Decision, whether s intends proceed 

on the original charges under 30 C.F.R. §520 in ci~ tion 

No. 3783586 and Order No. 37835 / 

Distribution: 

Patrick La DePaceu Esq.v Office of the Solicitoru U.S" Department 

4015 Wilson Boulevard, Room 516u Arlingtonu VA 22203 

Mail) 

Thomas c. Means, Esq., Crowell and Moring, 1001 Pennsylvania 

Ave.u N.W. Washingtonu D.C. 20004-2595 (Certified Mail) 

148 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

(303) 844-5266/FAX (303) 844-5268 

JAN 271993 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MID-CONTI~ENT RESOURCES INC., 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

THOMAS SCOTT, employed by 

MID-CONTINENT RESOURCES INC., 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA)v 

Petitioner 

v. 

TERRANCE J. HAYES, employed by 

MID-CONTINENT RESOURCES INC.v 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

WILLIAM M. PORTER, employed by 

MID-CONTINENT RESOURCES INC., 

Respondent 

. . . 

. 

Q 

149 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 91-168 

A.C. No. 05-00301-03764 

Docket No. WEST 91-421 

A.C. No. 05-00301-03765 

Dutch Creek Mine 

CIVIL PENALTY PROCEEDING 

Docket No~ WEST 91-594 

A.C. No. 05-00301-03785 A 

Dutch Creek Mine 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 91-626 

A.C. No. 05-00301-03784 A 

Dutch Creek Mine 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 91-627 

A.C. No. 05-00301-03787 A 

Dutch Creek Mine 
DECISION 

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

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

Before: 

for Petitioner; 

Edward Mulhall, Jr., Esq., Glenwood Springs, 

Colorado, 

for Respondent. 

Judqe Morris 

These cases are civil penalty proceedings initiated by Petitioner, the Secretary of Labor, against Respondents, Mid-Continent Resources, Inc. ("MCR") and three supervisors, pursuant to 

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

et ~(the "Act"). The civil penalties sought here are for the 

violation of mandatory regulations promulgated pursuant to the 

Act. 

Evidentiary hearings were conducted on April 15 and 16 and 

June 16 and 17, 1992, in Glenwood Springs, Colorado. 

The parties filed post-trial briefs. 

WEST 91-168, WEST 91-594 and WEST 91-626 

The narrative allegations of Order No. 3410351 is the subject matter of Docket Nos. WEST 91-168 (MCR), WEST 91-594, 

(Scott), and WEST 91-626, (Hayes). The order issued by MSHA 

Inspector Frank Carver under section 104{d) (2) alleges a violation of 30 C.F.R. § 75.400 1 and states: 

Coal fines and lump coal 9 from damp to 

extremely dry to the touch was [sic] stored 

in the downdip crosscut, adjacent to the 

number 18 crosscut on the 211 Longwall intake 

roadway. Plus very dry coal fines, float 

coal dust and lump coal was (sic) stored in 

the first crosscut inby the longwall face in 

the number 2 entry on the right hand side 

facing inby. In the outby crosscut the 

accumulations were 21 feet in length, 18 feet 

in width and 6 feet in height. Power cables 

were approximately 20 feet from the 

's 75.400 Accumulation of combustible materials. 

[STATUTORY PROVISION] 

Coal dust, including float coal dust deposited on 

rock-dusted surfaces, loose coal, and other combustible 

materials, shall be cleaned up and not be permitted to 

accumulate in active worlri.ngs, or on electric equipment 

therein. 

150 
accumulations and a diesel Ford tractor was 

parked in the roadway adjacent to the accumulations. In the most inby crosscut the 

accumulations were 24 feet in length, 30 feet 

in width 1 and 6 feet in height. A diesel 

scoop was parked 40 feet outby the accumulalations. No work was being done to remove 

the accumulations from either crosscut. The 

accumulations could of been transported 

approximately 3-400 feet inby and dumped onto 

the face conveyor from the most outby crosscut and the accumulations from the most inby 

crosscut could have been transported approximately 75 feet and dumped onto the face 

conveyor. (Ex. M-1). 

WEST 91-421 and WEST 91-627 

103 Longwall Headgate 

The evidence in the above two cases is initially considered 

as the events occurred on May 1, 1990. The events in the later 

cases occurred May 29, 1990. 

Summary of Evidence 

In the 103 longwall there were heavy loose coal accumulations observed by the inspector. MCR's evidence shows the acculations occurred because the 103 strike conveyor belt broke. 

order No. 3412700 

The narrative allegations of Order No. 3412700 are the 

subject matter of Docket No. WEST 91-421 (MCR) and WEST 91-627 

{Porter . The orderp issued by MSHA Inspector James Kirk under 

section 104(d) (2) r alleges a violation of 30 C.F.R. § 75.400 and 

states: 

The operating 103 longwall belt had 

accumulations of loose coal beginning at the 

belt drive and extending into the stage 

loader. The accumulations were at varies 

[sic] locations: [sic] Approximately 100 feet 

cutby stage loader (from stage loader 100 

feet outby)[.] Belt & rollers in contact 

with coal[.] Also just out-by shark pump. 

outby crosscut 11, by crosscut 9 for a distance of 260 feet, crosscut 8 1 cross (sic] 7 

& 6. The coal in these areas were [sic] up 

to 18 inches deep. The area around the drive 

takeup were also built up. In general the 

entire belt were [sic] in need of clean up & 

151 
rock dusting. Belt was operating [.] The 

distance from drive stage 1dr[.] 4000 feet. 

(Ex. M-2) . 

Issues 

The issues are whether the two section 104(d) (2) orders are 

violations of the cited regulation; whether individuals Porter, 

Scott and Hayes, the MCR supervisors, violated section 110(c) of 

the Act. Alternately, further issues involve special findings of 

significant and substantial ("S&S'') and unwarrantable failure. 

Finally, if violations occurred, what penalties are appropriate. 

In connection with this order, I find that a preponderance 

of the substantial, reliable and probative evidence establishes 

the following: 

Findings of Fact 

1. MCR is an underground bituminous coal mine located in 

Pitkin County, Colorado. (Tr. 10). 

2. During an MSHA inspection on May 1, 1990, James Kirk, a 

federal coal mine inspector, issued Order No. 3412700. At the 

time he was accompanied by Don Rippy of MCR's safety department. 

(Tr. 11, Ex. M-2). 

3. The two men proceeded to the 103 longwall, an active 

advancing mining section. (Tr. 11). 

4. Exhibit M-14 shows the direction the coal would normally 

move from the face to the stage loader and crusher. (Tr. 13u 

16) 0 

5. The 103 strike belt is a conveyor belt from the face 

area that normally transports coal from the face outby to the 

drive and dumps it onto the B-2 belt which moves it out of the 

mine. (Tr. 16 c 17) . 

6. Mr. Kirk estimated the conveyor belt measured 3,000 to 

4pOOO feet from the drive area to the tailpiece. (Tr. 17, 18). 

7. Mr. Kirk saw accumulations of coal at the belt tailpiece, the stage loader area and up to the end of the conveyor 

belt. Outby coal was compacted underneath the belt. The belt 

rollers and belt were in contact with the coal. (Tr. 18, 19). 

8. Mr. Kirk marked the coal accumulations on Exhibit M-14 

in orange. The accumulations, mostly compacted under the conveyor, ranged up to 12 inches high; the coal was dry. (Tr. 19). 

152 
9. At the shark pump, located outby the drive area, there 

were some 50-foot accumulations. (Tr. 19-20). · 

10. There were accumulations between crosscut 10 and 11, as 

well as at the 10 and 11 doors. The belt rollers and belt were 

in contact with the coal. (Tr. 21, 22). 

11. At the number 9 door, outby there was a windrow of coal 

approximately 260-foot long, up to 18 inches deep. (Tr. 22). 

12. It took the inspector approximately three to four hours 

to travel from the tailpiece to the drive examining for accumulations. (Tr. 22). 

13. There was coal at number 6, 7 and 8 doors. 

lations ranged at various heights. One section was 

another was 40 feet long. At the number 6 door the 

in contact with the coal. (Tr. 23). 

The accumu20 feet long, 

rollers were 

14. The coal, beginning at the tailpiece and going outby, 

was moist to extremely dry. (Tr. 24). 

15. The coal within the takeup area was pretty much dry. 

From the takeup by the number 6 door out to the drive area there 

were accumulations. As they approached the drive area, the 

accumulations became very wet. (Tr. 23, 24). 

16. Mr. Kirk marked on Exhibit M-14 the "mostly dry" and 

"wet" areas. (Tr. 24, 25). 

17. Accumulations were concentrated around the drive area of 

the strike belt and the tailpiece of the B-2 belt. (Tr. 25). 

18. The accumulations by the tailpiece of the B-2 belt were 

almost l a slurry. (Tr. 25, 26, 27). 

19. The accumulations were mostly dry from the number 6 door 

inby to the tailpiece of the conveyor. (Tr. 24). Outby from the 

number 6 door towards the belt drive area the accumulations were 

moist or wet. (Tr. 25). 

20. There were a lot of accumulations ranging up to two feet 

deep around the drive area of the strike belt and around the 

tailpiece of the B-2 belt. (Tr. 25). 

21. Mr. Sam Salaz, the outby foreman, stated that occasionally the coal was so wet water would run off the belt when 

the coal landed on it. Mr. Salaz stated it was extremely 

difficult to maintain the area free of accumulations. (Tr. 27}. 

22. On May 1st Mr. Kirk did not see anyone cleaning up the 

accumulations. (Tr. 27). 

153 
23. Fire is one of the hazards of coal accumulations. (Tr. 

2 8) • 

24. The Dutch Creek Mine is a gassy mine subject to five-day 

spot inspections. (Tr. 28). 

25. Potential ignition sources included the area where the 

rollers rubbed on the coal as well as where the conveyor belt 

rubbed the framework of the conveyor. MSHA also found one area 

in the longwall that was not maintained. That area could also be 

considered as an ignition source. (Tr. 29}. 

26. Accumulations could be ignited by frictional contact. 

The amount of coal along the conveyor could be introduced into an 

ignition causing a more severe ignition. (Tr. 30). 

27. Injuries from the described hazard could be serious and 

possibly fatal. (Tr. 30). 

28. Prior to his inspection Mr. Kirk reviewed the mine file 

and learned MCR was on the D series. 

29. In issuing the (d) (2) Order, Mr. Kirk considered the 

dryness and the amount of accumulations as well as their length, 

the area involved and the friction points. (Tr. 32). 

30. Normally the 103 longwall produced coal on the graveyard 

shift. (Tr. 32). 

31. The drier the coal, the more likely it will burn. (Tr. 

34) . 

32. There were electrical cables for the shark pump and the 

normal electrical devices for the longwall. In addition, on May 

1st there was a permissibility violation. (Tr. 42). 

33. Mr. Kirk identified the pre-shift, on shift daily examination referring to the 103 longwall. (Tr. 43, Ex. M-11). The 

examinationso as reported 9 listed accumulations on the 103 longwall from April 25, 1990 to May lu 1990. (Tr. 43-52). The conditions were reported and on one occasion the report noted that 

shoveling was undertaken. (Tr. SOu 51). 

34. In Mr. Kirk's opinion, the fire boss and the pre-shift 

inspection noticed that there were accumulations on the 103 longwall belt at the drive and in-by. This was the area Mr. Kirk 

cited. (Tr. 52}. 

Discussion and Further Findings 

MCR states the principal issues are whether Inspector Kirk 

properly issued the 104(d) (2) order since he failed to determine 

154 
the combustibility or ignitability of the Coal Basin Coal; further, Mr. Kirk failed to establish if there were ignition sources 

in the area of the "accumulations." (MCR brief at 21, 23). 

It is clear that there were accumulations along the 103 

longwall strike belt. Inspector Kirk marked these accumulations 

in orange on Exhibit M-14. (The exhibit was received in evidence 

to illustrate the inspector's testimony). As hereafter noted, 

MCR agrees accumulations existed and the operator's evidence further identified the cause of the accumulations. 

It is uncontroverted that Inspector Kirk did not test the 

combustibility or ignitability of the coal accumulations. However, the regulation does not require that such a determination 

be made. In addition, the Commission has stated that 30 C.F.R. 

§ 75.400 "is violated when an accumulation of combustible materials exists." Old Ben I, 1 FMSHRC 1954, at 1956. Further, 

"[i]t is clear that those masses of combustible materials which 

could cause or propagate a fire or explosion are what Congress 

intended to proscribe" Old Ben Coal Co., 2 FMSHRC 2806, 2808 

(October 1980) ("Old Ben II"). 

"Loose coal" is one of the combustibles prohibited by 

30 C.F.R. § 75.400. 

I agree that due to its low-oxygen, high-ash content MCR's 

coal burns only with great difficulty. (Reeves, Tr. 359, 411-

412, 471, 750). However, burning "with difficulty" is not a 

factor considered by 30 c.F.R. § 75.400. 

Ignition sources: The record establishes such sources. One 

location was where the conveyor rollers rubbed against the coal 

and also where the conveyor belt rubbed on the framework of the 

conveyor" Additional ignition sources could also include the 

electrical cables required to run the conveyor, the impermissible 

condition he cited as well as the electrical cables for the shark 

pump. The conveyor itself could contribute as an ignition source 

since it was noperating" when Mr. Kirk entered in the section. 

( , Tr. 28) but not continually as it would only "start and 

stop.•• (Rippy, Tr. 508). No ignition sources could arise from 

the mining of coal since production took place on the graveyard 

shift before Mr. Kirk arrived on the premises. Mr. KL-:-k confirmed that the stage loader, the face conveyor and th~ shearing 

machine were not running while he was in the mine. (K. ,-k, Tr. 

69) • 

Ken Abbott, the 103 longwall foreman, told Mr. Kir~>: he 

wanted to nrun coal" off the face. I believe Mr. Kirk misinterpreted Mr. Abbott's statement to mean MCR was intending to 

mine coal from the face. (Kirk, Tr. 34). Actually, the foreman 

was stating he wanted to run coal off the face chain conveyor. 

When Mr. Abbott ran the face chain conveyor it would intersect 

-

155 
the 103 longwall strike belt in close proximity to the coal 

accumulations. 

MCR's principal contentions have been discussed. However, 

it is necessary to consider MCR's evidence as to whether a break 

in the belt occurred during the regular production (graveyard) 

shift for the 103 longwall. 

Witnesses Reeves (Tr. 338), and Porter (Tr. 578, 580) were 

confirmed by Mr. Kirk's notes of May 1st that "Belt had operated 

on graveyard and had broken." (Kirk, Tr. 66). Mr. Kirk made no 

further inquiries and issued his order based on the assumption 

that there had not been a belt break. (Kirk, Tr. 89). 

Mr. Kirk properly issued his order since there were accumulations in the section. The order as to MCR should be affirmed 

since the Commission and various courts recognize that the Mine 

Act (as well as its predecessor, the Coal Act) impose liability 

without fault. Asarco, Inc.-Northwestern Mining v. FMSHRC and 

AMC, 8 FMSHRC 1632 (1986), 8GB F.2d 1195, 1197-98, lOth Cir. 

1989i Western Fuels Utah, Inc. v. FMSHRC 870 F.2d 711, D.C.C.A. 

1989; Bulk Transportation Services, 13 FMSHRC 1354, (September 

1991). 

However, evidence of the belt break will impinge on other 

issues in .these cases and it is appropriate to enter the following additional: 

Findings of Fact 

35. on May 1, 1990, WILLIAM PORTER, an experienced miner, 

arrived at work at 6:20 a.m. The lampman advised him that the 

bel~ had broken. Production had been shut down for 1 1/2 to 2 

hours to repair the belt. Excluding clean-up timeu it normal 

takes between two and four hours to resplice the 103 longwall 

strike belt. (Porter, Tr. 550, 553, 578). 

36. The strike belt had broken on the "C" shiftu a regular 

production shift. Porteru Tr. 578}. 

37. On March 1990u the 3,000 foot 103 longwall strike belt 

was in poor condition with 117 previous splices. The 42 inch 

belt (doubled for both sides) was 6000 feet long. (Tr. 542 8 

555) 0 

38. If the belt breaks, it will scatter coal off on the 

sides and dump it on the bottom belt. (Tr. 544, 545). 

39. If the belt breaks, production is shut down. (Tr. 549-

550). No cleanup can be started until the belt is spliced and 

ready to run. (Tr. 553). 

156 
40. Mr. Porter described in detail how the belt is spliced. 

( Tr . 54 8-5 53 ) . 

41. The estimated load on the strike belt at any one time is 

50 tons of coal. (Scott, Tr. 642). 

In his testimony Mr. Kirk opined that the strike belt conveyor had not broken but was spilling coal in its normal operations. Further, the accumulations were scattered the entire 

distance of the conveyor. · 

I am .not persuaded. MCR's witnesses Reeves and Porter 

testified the belt had broken on the graveyard shift. Further, 

Mr. Kirk's own notes taken on May 1, 1990 state: "Belt had 

operated on graveyard and had broken." (Tr. 66). Mr. Kirk's 

testimony that the accumulations were scattered the entire 

distance of the conveyor conflicts with his drawing (Ex. M-14) 

placing the accu-mulations at five principal places. It further 

conflicts with other portioni 6f his testimony. 

MCR established that the conveyor belt broke but as previously stated the defense cannot prevail. 

103 Strike Belt Transfer Point (Drive Area) 

The parties offered extensive evidence as to the coal 

accumulations in the drive area. This area (See Exhibit M-14) is 

where the 103 strike belt intersects the B-2 belt. The accumulations were described as being "like a slurry" and about two feet 

deep. 

As to the drive areap it is necessary to consider several 

points of critical evidence. 

I credit the testimony of MCR's geologist, Bruce Collins. 

Mr. Collins with a mining degree in geology has done field work 

at MCR. • 514p 516). He identified a piece of carbonaceous 

siltstone taken from the roof of the transfer point. (Tr. 522). 

After describing the siltstonef Mr. Collins indicated it is 

vuvirtually incombustible. oo (Tr o 524) o Further 1 when material 

falls to the floor in flakes and become wet: its color turns 

"absolutely black." (Tr. 523)o I find that Mr. Collins as a 

geologist has more knowledge than the Secretary's witness as to 

the rock composition of the material in the slurry. Although it 

appeared to be coal at least a part of it was virtually incombustible siltstone. (Tr. 514-530, Ex. R-22, R-23). 

Additional critical uncontroverted evidence is that the 

drive area, at the intersection of the belts, normally builds 

some coal accumulations. In fact, an MCR employee was grading 

the area when Mr. Kirk was in the section. 

157 
In short, the material in the drive area and the slurry were 

at best incombustible rock and some coal. The evidence fails to 

convince the writer that the drive area material was combustible. 

The Judge is aware of the testimony of MSHA Supervisor Lee 

Smith to the effect (with Ex. M-12} that water can cause coal 

mine fires to burn more intensely and therefore, water saturation 

of coal does not inert it. (Tr. 746-747). The evidence in M-12 

applies to the explosibility and ignitability of coal dust, not 

siltstone. It is accordingly not persuasive to the issues involved in the drive area. 

For the above reasons, that portion of the order citing the 

drive area is stricken. 

Significant and Substantial 

MCR contends Mr. Kirk's ... order should not be designated as 

"S&S." 

A violation is properly designated as being S&S "if, based 

on the particular facts surrounding the violation, there exists a 

reasonable likelihood that the hazard contributed to will result 

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

Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). 

In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission explained: 

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 

question will be of a reasonably serious 

nature. 

See also Austin Power Co. v. Secretary, 861 F.2d 99, 103-04 (5th 

Cir. 1988), aff'g, 9 FMSHRC 2015, 2021 (December 1987) (approving 

Mathies criteria). The question of whether any specific violation is S&S must be based on the particular facts surrounding the 

violation. Texasgulf, inc., 10 FMSHRC 498, 500-01 (April 1988}; 

Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2011-12 (December 

1987). 

On the S&S issue as to the ignitability of MCR's coal I 

enter the following: 

158 
Findings ot Fact 

42. Due to its low oxygen, high ash content MCR's coal burns 

only with great difficulty and will not spontaneously combust. 

(Reeves, Tr. 411-412). 

43. MCR must add diesel oil to its coal, the fuel to keep 

its coal-fired thermal dryers at the coal preparation plant 

burning. (Reeves, Tr. 410). 

44. A major methane fire in the roof of the tailgate of the 

211 advancing longwall section in the summer of 1990 failed to 

ignite adjacent coal pillars. (Reeves, Tr. 359). 

45. The coal in the B-seam (1-Mine) contains 23.5 percent 

volatile matter while the M-seam (2-Mine) contains 27 to 28 

percent vqlatile matter. (Reeves, Tr. 337). 

"·~·· 

Mr. Kirk confirms MCR's evidence as to the ignitability of 

the MCR coal. He testified that while the coal was in contact 

with the conveyor belt at four places, he didn't recall any hot 

areas. He also tested the friction points for heat. {Tr. 76, 

88). Mr. Kirk testified the usual scenario is that the more 

friction the greater the heat. Thus, a smoldering fire then goes 

to full fire. {Tr. 98). However, Mr. Kirk agreed that if 

contact fails to heat the coals and the contact remains minimal, 

there would probably be no injury to an individual miner. (Tr. 

100). Mr. Kirk describes the friction in four places as "light 

to heavy." (Tr. 104). 

The Judge is aware of the testimony of MSHA's Lee A. Smith. 

He testified that at one point in his career at MCR he smelled 

smokeo When he located its source he found a roller turning in 

coal. Th hot coal readily went out when he crushed it. (Tr. 

742, 743) 0 

I am not persuaded by the described event that occurred at 

some undisclosed time. The testimony weighs for naught since Mr. 

Smith agreed he had not seen any fires at MCR. Further, he did 

not even know of any coal fires at MCR. (Tr. 748, 750). 

on the S&S issue, the record here does not satisfy paragraph 

(3) of the Mathies formulation. Due to the lack of ignitability 

of the loose coal I conclude there was not a reasonable likelihood that a fire would occur. 

In support of her position the Secretary relies on Consolilidation Coal Corp. v. FMSHRC, 824 F.2d 1071 (D.C. Cir. 1987) and 

Coal Mac, Inc., 13 FMSHRC 1600, 1601. 

In Consolidation Coal Co., the appellate court affirmed the 

Commission's presumption that the Secretary's respirable dust 

159 
regulation was S&S. In the instant case the Commission's precedent is set forth in the Mathies formulation. 

In the second cited case the Secretary relies on Judge 

Fauver's rationale dealing with "substantial possibility" rather 

than "reasonable likelihood" as mandated in Mathies. I declined 

to follow Judge Fauver's reasoning in FMC Wyoming Corporation, 14 

FMSHRC 14~2, 1497 (August 1992) and I adhere to that view. 

The S&S allegations should be stricken. 

unwarrantable Failure 

"Unwarrantable failure" means "aggravated conduct constituting more than ordinary negligence, by a mine operator in 

relation to a violation of the Act" Emery Mining Corporation 

9 FMSHRC 1997, 2004 (December 1987); Youghiogheny & Ohio coal 

Company, 9 FMSHRC 2007, 2010 (December 1987). An operator's 

failure to correct a hazard 'about which it has knowledge, where 

its conduct constitutes more than ordinary negligence can amount 

to unwarrantable failure. Secretary v. Quinland coals, Inc. 10 

FMSHRC 705 (June 1988). While negligence is conduct that is 01 thoughtless", "inadvertent" or "inattentative" conduct constituting an unwarrantable failure is "not justifiable" or is 91 inexcusable". 

The Secretary asserts unwarrantable failure is established 

by MCR's adverse history. In the period beginning October 1, 

1988 and ending March 18, 1992, MCR was cited 215 times for 

violations of§ 75.400 (Ex. M-3). I agree that such a large 

number of citations establish unwarrantable failure by MCR and 

for that reason such allegations should be affirmed. Peabody 

14 FMSHRC 1261 (August 1992). 

The Secretary's additional reasons to assert unwarrantable 

failure have been examined and found to be without merit. 

civil Penalties 

as to MCR 

Section llO(i) of the Act mandates consideration of the 

criteria to assessing appropriate civil penalties. 

MCR is in Chapter 11 Bankruptcy (Case No. 92-11658 PAC, 

District of Colorado). The penalty herein is appropriate 

considering the company has virtually shut down at this time. 

MCR is only a debtor-in-possession and is no longer mining 

coal. 

MCR's prior adverse history is not favorable: from October 

1, 1988 to March 18, 1992, the company paid 375 violations of a 

160 
total 1,407 violations. {Ex. M-3). From May 1; 1988 to April 

30, 1990, MCR paid 604 violations of 1,436 assessed. {Ex. M-15). 

The operator was negligent since its strike belt was in poor 

condition. 

However, the gravity of the violation was low since the 

MCR's coal will not combust and does not readily burn. 

The company is entitled to statutory good faith for prompt 

abatement. The entire production crew was 1 1/2 to 2 hours into 

the 4 hour resplicing job when Mr. Kirk arrived at the mine. 

Cleanup cannot begin until the resplicing is accomplished. 

The civil penalty of $400 hereby assessed in WEST 91-421 is 

appropriate. 

William M. Porter, employed by Mid-Continent Resources Inc. 

In this case, the Secretary seeks a civil penalty and 

charges Respondent, William M. Porter, the 103 longwall foreman, 

with violating Section 110(c) of the Act in that he knowingly 

authorized, ordered or carried out the violation of 30 C.F.R. 

§ 75.400. 

Section 110(c) of the Act provides: 

(c) Whenever 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 subsection 

(a) or section 105(c), any director, officer, 

or agent of such corporation who knowingly 

authorizedu orderedu or carried out such vio- lation~ 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)o 

It has been ruled that the word "knowingly" as used in this 

section does not have any meaning of bad faith or evil purpose or 

criminal intent. Its meaning is rather that used in contract 

law, where it means knowingly or having reason to know. A person 

has reason to know when he has such informations that would lead 

a person exercising reasonable care to acquire knowledge of the 

fact in question or to infer its existence. United States v. 

Sweet Briar, Inc., 92 F. Supp. 777,779 D.S.C. 1950, quoted 

161 
approvingly in Secretary v. Kenny Richardson, 3 FMSHRC 8 (1981), 

affirmed, Richardson v. Secretary of Labor and FMSHRC, 689 F.2d 

632 (6th Cir. 1982), cert denied, 461 U.S. 928 (1983). 

As previously noted, the evidence establishes that the coal 

accumulations were caused when the 103 strike belt broke. This 

occurred on the shift before Mr. Porter carne to work. Accordingly, there is no evidence that Mr. Porter knowingly authorized, 

ordered or carried out the violation of the regulation. 

Case No. WEST 91-627 against William M. Porter should be 

dismissed. 

WEST 91-168, WEST 91-594 and WEST 91-626 

I find that a preponderance of the substantial, reliable and 

probative evidence establishes the following: 

Findings of Fact 

46. On May 29, 1990, FRANK D. CARVER, an experienced MSHA 

underground coal mine inspector issued Order No. 3410351 under 

Section 104(d) (2) of the Act. Mr. Carver has inspected MCR on an 

almost daily basis from January 1988. (Tr. 184-187). 

47. When he was proceeding towards the face of the 211 longwall Mr. Carver saw coal and timbers in crosscut 18. The crosscut itself was 20 feet wide, 6 to 7 feet high and 40 to 50 feet 

deep. (Tr. 187, 188). 

48. The crosscut was mostly full. Mr. Carver also found 

coal dust, coal fires and float coal dust as well as lump coal. 

The area was lightly salt and peppered. (Tr. 188-189). 

49. Mr. Carver at hand-depth picked up hands full of the 

material at different locations and measured the accumulations 

a 6 foot wooden ruler. (Tr. 189 7 237). 

50. Crosscut 18 was 300 feet from the face. (Tr. 191) . 

51. When Mr. Burham (MCR representative) was asked what this 

was all about merely shrugged, 11more or less. 91 (Tr. 191). 

52. In the 211 longwall gassy section ignition sources included the power cables, and a non-permissible diesel. (Tr. 193-

195) . 

53. Float coal dust and coal dust fines relate to fire and 

explosion ,hazards. (Tr. 192). 

54. Fire and explosion could cause death or serious injury. 

(Tr. 193) . 

162 
55. Mr. Carver checked the preshift and on shift books and 

except for May 28 through May 29, he was not alerted to the accumulations. Crosscut 18 should have been reported in the shift 

book. (Tr. 196). 

56. Mr Carver knew there had been an order issued due to 

coal accumulations at tailgate 211 on May 1. (Tr. 200-201, Ex. 

M-7)). He considered this factor when he issued the May 29 

order. (Tr. 201). 

57. On May 29, 1990, MCR was on the (d) series that started 

on April 20, 1990. (Tr. 209, 210). 

58. Mr. Carver did not see anyone cleaning up the accumulations in Crosscut 18. (Tr. 214). 

59. MCR was not mining when Mr. carver arrived in the section. (Tr. 216). 

60. Mr. Carver believed··the violation was S&S. (Tr. 193} . 

It was further due to the unwarrantable failure of MCR. Specifically, ~t was because of the (d) {1) citation on April 20, 1990 

and the (d) (1) order May 1. {Tr. 225). 

61. When he issued his order on May 29, Mr. Carver was aware 

of two prior orders for accumulations within the previous month. 

(Tr. 251) . 

62. Exhibit M-16 (first page) shows coal accumulation at 

Crosscut 18, low side. The book recited the condition was 

reported. (Tr. 259). 

63. Coal accumulations also shown for May 27 at Crosscut 18. 

Tr Q 2 59-2 61) • 

Discussion and Further Findings 

MCR raises the combustibility and ignitability arguments it 

raised connection with the previous order. 

Howeveru the facts are different. The record establishes 

that at Crosscut 18 there was considerably more than loose coal. 

Specificallyu the accumulations in Crosscut 18 included very dry 

coal dustu coal fines and float coal dust. I credit Mr. Carver's 

experience that these accumulations relate to fire and explosion 

hazards which could cause death or serious injury. Mr. Carver 

further identified ignition sources including power cables and a 

non-permissible diesel. An additional ignition source would be 

in Eimco used to move the power center on the Memorial Day 

weekend. (Baley, Tr. 155). 

., 

163 
It is true that MCR established by the credible evidence 

that the power in the 211 longwall was shut down over the 

Memorial Day weekend so the power center could be moved. (Hayes, 

Tr. 596). In addition, MCR was scheduling a gearbox change for 

the 211 longwall. (Hayes, Tr. 587). While some immediate 

ignition sources may have been without power other ignitions 

sources were present. In addition, fires elsewhere in the mine 

could have been propagated by the accumulations in Crosscut 18. 

A dispute exists as to the composition of the accumulations 

in crosscut 18. MCR asserts it was mostly rock from floor leave 

within the crosscut and floor material stored there from the 

power center move. MCR further cites the testimony of Bruce 

Collins, MCR's geologist who testified in connection with the 

previous order. 

I am persuaded by Mr. carver's prompt action at Crosscut 18 

as well as Mr. Buram's unresponsive reply at the same time and 

place. Mr. Bur am in describi,ng the activity at Crosscut 18 

stated "Dave [Carver) put his hands down and dug into it a little 

bit and said the section was closed down" (Tr. 267). Mr. Carver 

asked Mr. Buram what this was all about and he "got a shrug, more 

or less, and he [Buram] didn't want to discuss it." (Tr. 191). 

Bruce Collins, MCR's geologist, testified as to the rock 

material that accumulated at the 103 strike belt and the B-1 belt 

intersect. While he testified the 211 longwall was carbonaceous 

siltstone (Tr. 527), he failed to indicate how these could be an 

accumulation almost large enough to fill a single crosscut 20 

feet wide and 6 to 7 feet high. (Tr. 188). In addition, if the 

area was not combustible MCR would hardly have dusted it; or 

c:lightly salt and peppered it.~~ (Tr. 188). 

John Reeves testified that he and his son toured the mine 

over the Memorial Day weekend. He walked in the 211 headgate 

roadway and observed that the crosscuts were badly heaved but he 

did not notice any accumulation in Crosscut 18. (Tr. 360). 

Terrance Hayes also testified he did not see anything remarkable 

in Crosscut 18 during the graveyard shift preceding Mr. Culver 1 s 

order. (Tr. 601). 

Mr. Reeves and Mr. Hayes may simply have been unobservant as 

to the contents of Crosscut 18. 

I am persuaded by Mr. carver's testimony as to the 

conditions in Crosscut 18. 

Modification of Roof Control Plan 

As a further defense in the 211 longwall MCR interposes 

MSHA's modification of the operator's roof control plan. (Ex. 

164 
R-11, R-12, R-13). The modification, in April 1990, approves the 

lengthening and extension of two crosscuts to allow for advance 

of the face. 

MCR's defense is rejected. It is apparent that MSHA's modifications in the roof control plan did not directly or implicitly 

authorize MCR to violate 30 C.F.R. § 75.400. 

Significant and Substantial 

The formulation to be followed in determining whether a 

violation is S&S is set forth in connection with the previous 

order. 

Following the Mathies formulation I conclude the Secretary 

proved the underlying violation of 30 C.F.R. § 75.400. There was 

a measure of danger contributed to by the violation. Mr. Carver 

testified the lump coal, the float coal dust and the coal fines 

relate to fire and explosion,ba;z:ard$. {Tr. 188-193). MCR's 

witness Burham conceded float coal dust is a hazard. (Tr. 271, 

282). The third factor of the Mathies formulation was established by the opinion of Mr. Carver. {Tr. 193, 213). The propensities 'of a fire establish the final factor: A mine fire can 

cause serious injuries. 

For the foregoing reasons the S&S allegations should be 

affirmed. 

Unwarrantable Failure 

For the reasons previously discussed in connection with 

Order Noo 3412700 and as evidenced in Exhibit M-3 the special 

findings of unwarrantable failure should be affirmed. 

civil Penalties 

MCR's financial status and prior history have been previousreviewed. 

In connection with Crosscut 18 MCR was negligent. The accumulations were placed in Crosscut 18 because MCR was moving the 

power center and it was necessary to make additional space for it 

(Buram, Tr. 270; Baley, Tr. 155). At the time of the power 

center move, most of the power and ignition sources had been disconnected.• MCR's did not properly schedule the move of its power 

center. Better planning could have been to make room for the 

power center and remove the accumulations from the mine before 

moving the power center. In short, I reject MCR's concept that 

the accumulations were "in transit." The preshift and on-shift 

reports in Exhibit M-16 indicate other~ise. 

165 
The gravity in connection with Crosscut 16 was high. The 

ingredients involved were such that if a fire and explosion 

occurred, serious injuries or fatalities could result. 

MCR is entitled to statutory good faith as it rapidly abated 

the violative conditions. 

The civil penalty of $600 assessed in WEST 91-168 is appropriate. 

Docket No. WEST 91-594 

Thomas Scott, employed by Mid-continent Resources, Inc. 

In this case the Secretary charges Respondent, Thomas Scott, 

with violating Section 110(c) of the Act in that he knowingly 

authorized, ordered or carried out the violation of 30 C.F.R. 

§ 75.400. 

The statutory mandate andthe case law are set forth in the 

William M. Porter case, supra. 

In connection with this case I find that a preponderance of 

the substantial, reliable and probative evidence establishes the 

following~ 

Findings of Fact 

64. In May 1990 Thomas Scott was the MCR underground mine 

superintendent. (Tr. 629-630). 

65. On Friday night Mr. Scott told miner Mike Jerome that 

the face was going to be shut down. 

66. Over the Memorial Day weekend Mr. Scott was busy with 

family matters. He also went fishing at Trappers Lake. (Tr. 

63 0) 0 

67. When he returned home Monday evening he learned the 211 

gearbox was not yet ready for installation. {Tr. 633). 

68. On Tuesday Mr. Scott got the "rundown" from Terry Hayesu 

the graveyard foreman. (Tr. 631). 

69. When he got back to work Tuesday morning the surprise 

waiting for him was that Dave Carver was underground. At 

approximately 8:30 or so his phone rang and they said he had an 

order for accumulations. (Tr. 634). 

70. Mr. Scott looked at Crosscut 18 after Mr. Carver issued 

his order. 

166 
71. Mr. Scott didn't review the MCR books when he returned 

to work. (Tr. 649-650). 

72. Mr. Scott went in after Mr. Carver issued his order. He 

agreed there were accumulations to some degree in Crosscut 18 but 

he didn't feel the accumulations were all coal. (Tr. 645, 646). 

73. ~r. Carver had issued an order about a month before May 

29 for accumulations in the same crosscut. The accumulations 

came about because the stamler had to be moved. (Tr. 650}. 

Discussion and Further Findings 

If Mr. Scott had reviewed the books (Ex. M-16} he would have 

found reports of coal accumulations at Crosscut 18 on the lowside. Those accumulations are reported for May 27 at 5:45a.m., 

2:14 p.m. and 5:10 a.m. Subsequent shifts are recorded as idle. 

Since these conditions were reported to the company, Mr. Scott, 

as mine foreman should have Rnown them. 

Accordingly, the citation as to Thomas Scott should be 

affirmed and a civil penalty assessed. 

civil Penalty 

Section 110{i) of the Mine Act mandates consideration of six 

criteria to be considered in assessing civil penalties under the 

Mine Act. 

Criteria as to size, ability to continue in business and 

prompt abatement do not appear to be relevent in this 110(c) 

case. 

As to the remaining criteria: Mr. Scott has no prior adverse history. 

Mro Scott was negligent: As superintendent he should have 

known the accumulations in Crosscut 18. 

The gravity of the violation was serious even though many of 

the potential ignition sources were not operative. 

The penalty of $200 assessed in the order of this decision 

is appropriate. 

Docket No. WEST 91-626 

Terrance J. Hayes, employed by Mid-Continent Resources, Inc. 

In this case the Secretary charges Respondent, Terrance J. 

Hayes, with violating Section 110(c) of the Act in that he knowingly authorized, ordered or carried out the violation of 30 

C.F.R. § 75.400. 

167 
The statutory mandate and the case law are set forth in the 

William M. Porter case, supra. 

In connection with this case I find that a preponderance of 

the sUbstantial, reliable and probative evidence establishes the 

following: 

Findings of Fact 

74. In May 1990 Mr. Hayes was the shift foreman on the C or 

graveyard shift. (Tr. 586). 

75. 

and 28). 

Mr. Hayes was off the Memorial Day weekend. 

(Tr. 587). 

(May 26, 27 

76. He was not in touch with the Mine until he returned to 

work at 11 o'clock at night on the C shift, Monday, May 28th. 

{Tr. 587, 588). 

77. Various bullgang work were performed during the weekend. 

( Tr . 58 8 , 58 9 ) . 

78. on the holiday weekend a power center move and a gearbox 

change were scheduled. (Tr. 589). 

79. No one was present when Mr. Hayes entered the mine except Bruce Huntley who had been in charge of the power center 

move. (Tr. 595). 

80. Mr. Ben Griego asked Mr. Hayes if he could kill the 

power in the whole mine. Mr. Hayes agreed. (Tr. 596). 

81. Those present worked on the power center move except two 

men drilling the face. (Tr. 596-597). 

82. Mr. Hayes countersigned all of the books even though he 

was not present at all times. (Tr. 598-599). 

83. When Mr. Hayes saw there was an outstanding Q'ticket" on 

the 211 tailgateu he directed that the area be dusted. (Tr. 

599) . 

84. Mr. Hayes walked by the area to where the power center 

was being moved. However, he didn't observe anything unusual nor 

did he observe any coal accumulations. (Tr. 601, 604). 

85. The power center is 4 feet high by 16 feet long by 6 

feet wide. (Tr. 604). 

86. There was something in the books referring to a coal 

accumulation but the entry was before Mr. Hayes' shift. (Tr. 

605) . 

168 
87. The whole area was white from dusting. (Tr. 606) . 

88. Mr. Hayes didn't look at the accumulation referred to by 

Mr. Carver. (Tr. 606). 

89. Mr. carver wrote his order during the day of May 29th 

for the accumulation in the Crosscut 18. Mr. Hayes first became 

aware of the order when he came to work that night when he came 

on at 1 o'clock. (Tr. 614). This was the second shift after the 

Memorial Day weekend. (Tr. 618). 

90. When he heard about the order Mr. Hayes went immediately 

to the 211 longwall. They were removing the last bucket out of 

Crosscut 18. (Tr. 614) . 

Discussion and Further Findings 

Mr. Hayes was shift foreman on May 28 and on that day he 

read and signed the on-shift books. The books clearly refer to 

the accumulations in Crosscut-Is. 

One of MCR's defenses is that the power center move and the 

gear box changeover eliminated MCR's capacity to remove any 

accumulations in Cross 18. Mr. Hayes should have known of these 

circumstances. 

Mr. Carver wrote his order on May 29th and it was not until 

after Mr. Hayes learned of the order that he went to Crosscut 18. 

The above uncontroverted facts show that Mr. Hayes knew or 

should have known of the ac.cumulations yet he failed to take 

remedial action. 

The llO(c) case against Terrance Hayes should be affirmed 

and a civil penalty should be assessed. 

Civil Penalties 

As previously noted the statutory criteria as to size, 

ability to continue in business and prompt abatement do not 

appear to be relevent in a llO(c) case. 

As to the remaining criteria~ Mr. Hayes has no prior 

adverse history. 

Mr. Hayes was negligent; he read and signed the pre-shift 

and on-shift reports and should have known of the accumulations 

in Crosscut 18. 

The gravity of the violation was serious but many of the 

ignition sources were not operative. 

169 
The penalty of $200 assessed in the order of this decision 

is appropriate. 

For the foregoing reasons I enter the following: 

ORDER 

As to WEST 91-421, Order No. 3412700: 

The allegations of significant and substantial are stricken. 

Order No. 3412700 is affirmed. 

A civil penalty of $400 is assessed against Mid-Continent 

Resources, Inc. 

II 

As to WEST 91-627, William M. Porter, employed by MidContinent Resources, Inc.: 

This case is dismissed. 

III 

WEST 91-168, Order No. 3410351: 

Order No. 3410351 is affirmed and a civil penalty of $600 is 

assessed against Mid-Continent Resourcesv Inc. 

WEST 91-594, Thomas Scott, employed by Mid-Continent 

Resources, Inc. 

This petition is affirmed and a civil penalty of $200 

assessed. 

WEST 91-626, Terrance J. Hayes 1 employed by Mid-Continent 

Resources, Inc. 

170 
This petition herein is affirmed and a civil penalty of $200 

is assessed. 

Judge 

Distribution: 

Margaret A. Miller, Esq., Office of the Solicitor, u.s. Department of Labor, 1585 Federal Office Building, 1961 Stout Street, 

Denver, CO 80294 (Certified Mail) 

Edward Mulhall, Jr., Esq., DELANEY & BALCOMB, P.C., P.O. Drawer 

790, 818 Colorado Avenue, Glenwood Springs, co 81602 (Certified 

Mail) 

sh 

171 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

CONSOLIDATION COAL COMPANY, 

Contestant 

. . 

. . CONTEST PROCEEDING 

v. . 0 Docket No. PENN 92-502-R 

Order No. 3679001; 3/28/92 

SECRETARY OF LABOR, . . MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

. . 

0 

. Robena Prep Plant Mine I.D. No. 36-04172 

Appearances: 

Before~ 

DECISION 

Daniel E. Rogers, Esq., Consolidation Coal 

Company, Pittsburgh, Pennsylvania, for 

Contestant; 

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

the Solicitor, u.s. Department of Labor, 

Philadelphia, Pennsylvania, for Respondent 

Judge Melick 

This case is before me upon the notice of contest filed 

by the Consolidation Coal Company (Consol) to challenge a 

control order issued by the Secretary of Labor under Section 

103(k) of the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. Section 801 8 et seq., the "Act." 

Section 103 (k) of the Act provides that uuin the event 

accident occurring in a coal or other mineu an authorized representative of the Secretaryu when presentu may issue 

such orders as he deems appropriate to insure the safety of 

any person in the coal or other mine, and the operator of 

such mine shall obtain the approval of such representative 9 

in consultation with appropriate state representatives 0 when 

feasible 0 any plan to recover any person in such mine or 

to recover the coal or other mine or return affected areas 

of such mine to normal. uu 

The order at baru No. 3679001 0 issued March 28 9 

1992 0 states as follows~ 

A structural failure occurred when the 

600 ton coal surge bin between CC4 and 

CCS belts fell from its support tearing 

out the up-river side of the building 

structure and severing 2,300 volt power 

cables and beams supporting the building. 

This order was issued verbally by 

172 
Robert w. Newhouse at 0100 hours on 3/28/92 

to assure the safety of persons at the 

Preparation Plant and to preserve evidence 

until an examination or investigation can 

be made to determine that this area is safe. 

Only those persons selected from company 

officials, state officials, the miners' 

representatives and other persons who are 

deemed by MSHA to have information relevant to 

the investigation may enter the affected area. 

There is no dispute that the Robena Prep Plant, 

where the alleged accident occurred, was a "mine" within 

the meaning of the Act. Consol argued however, through 

a full day of evidentiary hearings, that the above order 

was invalid in that no "accident" occurred within the 

meaning of the Act. 1 The term "accident" is defined in 

Section 3(k) of the Act as including "a mine explosion, 

mine ignition, mine fire, or mine inundation, or injury 

to, or death of, any person .... · · 

Whether or not the admitted structural failure of 

the Robena Prep Plant coal surge bin itself constituted 

an "accident" within the meaning of Section 3(k) of the 

Act, the evidence that a mine ignition and mine fire 

occurred on March 27, 1992, cannot be disputed. This 

evidence confirms the information received by the issuing 

inspector on March 28, 1992, around 3:00a.m., upon which 

he relied in issuing the Section 103(k) order at bar. 

According to issuing MSHA Inspector William Wilson's 

undisputed testimonyu when he appeared at the Robena 

Prep Plant around 2:50 a.m.v on March 28u 1992, to investigate an 9

uaccidentv uu he was told by Consol Safety Director 

Jim Hunyady that the surge bin structure had failed and 

that there had been a small fire which they put out quickly. 

Bob Campbell, the mine safety committeeman, also confirmed 

to Wilson that there had been some small fires following 

the collapse the coal surge bin. Campbell himself 

recalled telling Inspector Wilson at this meeting, before 

Wilson had issued his order, that there had been some fires 

in the coal. Within this framework of undisputed evidence, 

Wilson could reasonably have concluded that an "ignition" 

and a 01mine fire 11 had occurred and that the issuance of a 

section 103(k) order was appropriate. Significantly, the 

evidence developed after the order was issued fully 

In its Post-Hearing brief Consol apparently 

now concedes the issue. So that no question remains, 

the issue is nevertheless discussed herein. 

173 
corroborates the information provided to Wilson when he 

issued the order, and confirmed that his actions were 

prudent and reasonable. These facts also clearly show 

that he did not abuse his discretion or authority. 

Riverman John Markatan testified at hearing that 

around 9:00 or 9:30p.m. on March 27, 1992, after loading 

a barge, and as he proceeded to the riverman's shanty approximately 75 yards from the surge bin, he noticed a 

sudden power loss followed by a loud 11 ripping11 sound. 

As he started toward the window of the shanty he heard 

a loud muffled explosion, saw a bright yellow flash of 

light and felt heat on his face. He jumped to the 

floor immediately. When he looked outside he saw that 

the river bank and debris in the barges were on fire. 

Flashes, sparks and fire were also coming out of the coal 

bin. The fire was one foot or less in height and lasted 

for about one and a half hours. 

Wallace Wright, a river noat pilot for Consol, was 

standing below the river tipple around 9:30 to 9:45 that 

night when he suddenly looked up and saw a large fire 

about 100 feet in height. There was fire in the bin 

itself and two small fires in the coal. 

Robert campbell, Chairman of the Mine Safety and 

Health Committee, arrived at the plant shortly after 

receiving a call about an explosion at the surge bin. 

When he arrived there was a fire on the river side of 

the bin with coal burning in several areas, including 

an area in which he thought was an acetylene tank. 

Consolus own witnessu Daniel Yancheku the Robena 

Prep Plant Superintendentu also saw the coal fires 

following the surge bin failure" When he arrived at the 

plant around 11 o'clock that night the coal fires were 

still burning in the coal spilled beneath the bin. 

Finallyu the testimony of MSHAus specialist in the 

investigation of fires and explosions, Steven Luzik, 

provides convincing corroboration that an ignition of 

coal had in fact occurred at the nexplosion" site. Luzik, 

a graduate chemical engineer who is an MSHA supervisory 

general engineer and former branch chief of its Industrial 

Safety Division, testified that he investigated the site 

on March 31, 1992, to determine whether a fire or explosion 

had in fact occurred. His observations, documented in 

photographs (see Gov't Exhibit Nos. 3.1, 3.2, and 3.3), 

showed evidence of burned material, including partly 

combusted coal dust. Comparing samples taken from the 

unburned area of coal spillage with burned samples, the 

MSHA laboratory performed proximate analysis and x-ray 

174 
spectrographic analysis test on the samples (Government 

Exhibit No. 5). Luzik was able to conclude that what 

appeared to have been burned coal had a high ash content 

thereby indicating combustion. He further concluded 

that both solid and dust coal particles had burned. 

It was Luzik's overall opinion that, while there had not 

been a large explosion, the collapse of the bin caused a 

suspension of coal dust followed by the cable rupturing 

causing an arc and ignition of the unconfined coal dust. 

Within this framework of evidence, it is clear 

beyond all doubt that indeed a mine ignition and mine 

fire had occurred at the Robena Prep Plant on the evening 

of March 27, 1992. It may be reasonably inferred from 

Yanchek's testimony in conjunction with the undisputed 

testimony of Campbell, Wright, and Markatan, that the 

fires had continued burning from at least the time of the 

"explosion" around 9:30 p.m. until after Yanchek arrived 

at 11:00 p.m. Under the circumstances there was an 

"accident" at the Robena Prep~.Plant within the meaning of 

Section 103(k) as alleged. 

Consol next makes the bald assertion that the issuance 

of the 103(k) order was precluded because the area where 

the surge bin collapsed had previously been "dangered off" 

by mine management. This contention is however without any 

legal support. The fact that management may have "dangered 

off" an area, whatever that means, may certainly be considered 

by the issuing inspector in his safety evaluations, but cannot 

bar the issuance of a section 103(k) order. 

In its post-hearing Brief, Consol, for the first time, 

also claims that Inspector Wilson was not "present" within 

the meaning of Section 103(k) when he issued the order at 

baro Consol arguesp without any citation of authority, that 

Wilsonus acknowledged presence at the mine was insufficient 

and that he must be present precisely at the accident scene 

itself when he issues such an order. It is a well-established 

ruleu howeveru that a statute should not be construed in a 

way that foreign to common sense or its legislative purpose" 

Consolidation Coal Co.v 14 FMSHRC 956 (1992); Clinchfield Coal 

Co. 1 11 FMSHRC 2120 (1989). 

If consolQs suggested interpretation of section 103(k) 

were to prevail, then many control orders under that section 

could not be issued simply because the Secretary's representative would have no access to the precise scene of an 

accident, e.g., the site of an explosion in the depths of 

an underground mine. Such a construction is both contrary 

to legislative purpose and common sense and is accordingly 

175 
rejected. It is only required that the inspector issue the 

103(k) order when present at the mine where the accident 

occurred. See also 1 coal Law and Regulation § 10.08, Vish, 

McGinley and Biddle. 

Under all of the circumstances, the issuance of Order 

No. 3679001 by Inspector Wilson in the early morning hours of 

March 28, 1992, under Section 103(k) was reasonable and in 

compliance with that section of the Act. 

Order No. 3679001 is 

said order DISMISSED. 

Distribution: 

ORDER 

I .... Gar~ Meli 

AdmJ.nistr 

703-756-6 

ij 

Daniel E. Rogers, Esq., Consolidation Coal Company, 

1800 Washington Road, Pittsburgh, PA 15241-1421 (Certified 

Mail) 

Anthony Go O'Malley, Jrou Esq.u Office of the Solicitoru 

UoSo Department of Laboru Room 14480 Gateway Building, 

3535 Market Streetu Philadelphiau PA 19104 (Certified Mail} 

/lh 

176 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

(303) 844-5266/FAX (303) 844-5268 

JAN 2 3 199? 

SECRETARY OF LABOR, MSHA, 

on behalf of 

DANIEL L. BAKER, 

Complainant, 

v. 

NEWMONT GOLD COMPANY, 

Respondent, 

. .. DISCRIMINATION PROCEEDING 

Docket No. WEST 92-665-DM 

WE MD-02-09 

South Area Quarry 

ORDER-OF DISMISSAL· 

Before: Judge Morris 

In the above case, the undersigned entered an order of 

temporary reinstatement pursuant to Commission Rule 44, 29 C.F.R. 

§ 2700.44. 

Subsequently, a discrimination complaint was filed by Complainant and docketed with the Commission as WEST 92-654-DM. 

Furtheru the case was assigned to Administrative Law Judge 

Michael Ao Lasheru Jro 

Accordinglyu the captioned case is DISMISSED without 

prejudice to Complainant to proceed in WEST 92-654-DM. 

(/Ad;ini ~. Law Judge 

Distribution: 

Susan Lewald, Esq., Office of the Solicitor, u.s. Department of 

Labor, 71 Stevenson Street, suite 1110, San Francisco, CA 94105-

2999 

Charles W. Newcom, Esq., 633 17th Street, Suite 3000, Denver, co 

80202 

ek 

177 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

(303) 844-5266/FAX (303) 844-5268 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

C.W. MINING COMPANY, 

Respondent 

JAN ~ 8 1993 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 92-210 

A.C. No. 42-01697-03635 

Docket No. WEST 92-211 

A.C. No. 42-01697-03636 

Bear Canyon No. 1 

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

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

for Petitioner; 

Carl E. Kingston, Esq., Salt Lake City, Utah, 

fpr Respondent. 

Before: Judge cetti 

These cases are before me upon the petition for civil 

penalty filed by the Secretary of Labor pursuant to Section 

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

30 u.s.c. § 801 et ~, the "Act," charging c.w. Mining Company 

(CoW. Mining) with four "significant and substantial" (S&S) 

v ations of mandatory safety standards and six non S&S 

regulatory standards found in 30 C.P.R. Part 75 entitled 

wMandatory Safety Standards -Underground Coal Mines. 91 

C.W. Mining filed a timely answer contesting the existence 

of each of the alleged violations, the significant and substantial designation of the alleged violations and the appropriateness of the proposed penalties. 

Federal coal mine inspector Donald F. Gibson was the only 

witness called to testify for the Petitioner. Messrs. Kenneth 

Defa, mine superintendent, Nathan Atwood, the mine production 

supervisor and Ted Farmer, federal coal mine inspector were 

called to testify by c.w. Mining. 

stipulations 

The parties stipulate to the following: 

178 
1. c.w. Mining Company is engaged in mining and selling of 

bituminous coal in the United States and its mining operations 

affect interstate commerce. 

2. c.w. Mining Company is the owner and operator of Bear 

Canyon No. 1 Mine, MSHA I.D. No. 42-01697 an underground coal 

mine. 

3. c.w. Mining Company is subject to the jurisdiction of 

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

("the Act"). 

4. The Administrative Law Judge has jurisdiction in this 

matter. 

5. The subject citations and orders were properly served by 

duly authorized representatives of the Secretary upon agents of 

c.w. Mining Company on the dates and places stated therein, and 

may be admitted into evidence_tor ~he purpose of establishing 

their issuance, and not for the truthfulness or relevancy of any 

statements asserted therein. 

6. The exhibits to be offered by c.w. Mining Company and 

the Secretary are stipulated to be authentic but no stipulation 

is made as to their relevance or the truth of the matters 

asserted therein. 

7. The proposed penalty will not affect C.W. Mining 

Company's ability to continue business. 

8. C.Wo Mining Company is a medium size mine operator with 

551f084 tons of production in 1990. 

9. The certified copy of the MSHA Assessed Violations 

History accurately reflects the history of this mine for the two 

years prior to the date of the citation. 

Docket No. WEST 92-210 

Citation Nos. 3582644, 3582646 and 3582650 VACATED 

This docket consists of seven citations based upon Inspector 

Gibson 1 s inspection of the mine on July 18v 1991o At the hearing 

the parties on the record advised that because of insufficient 

evidence, the Secretary was vacating three of the seven citations 

in Docket No. WEST 92-210. The vacated citations are Citation 

Nos. 3582644, 3582646 and 3582650. The proposed penalties for 

those alleged violations are also vacated. 

179 
Citation Nos. 3582540, 3582645 and 3582579 AFFIRMED 

c.w. Mining has accepted and withdraws its contest with respect 

to three of the remaining four citations. Consequently Citation 

Nos. 3582540, 3582645 and 3582579 are affirmed. 

on consideration of the statutory criteria in section 110(i) 

of the Act, I find the appropriate penalty for each of these violations is the secretary's proposed penalties which are respectively $20, $20 and $192. 

The remaining citation in this docket, Citation No. 3582643, 

was vigorously contested and is discussed below. 

Citation No. 3582643 

Federal coal mine inspector Donald E. Gibson inspected the 

Bear Canyon Mine on July 18, 1991. Based upon this inspection, 

Mr. Gibson issued Citation No~ 3582643 charging the operator of 

the mine with a 104(a) non S&S violation of 30 C.F.R. § 75.1103-

4(a) (1) for the operator's failure to have a "heat type fire 

sensor located at the end of the belt flight." 

The citation describes the violation as follows: 

The heat type fire sensors being used on 

the 2nd East South conveyor belt was not 

located at the end of the belt flight. 

The sensor was located at cross cut 27 and 

the tail piece (end of the belt flight) was 

located at cross cut 29, approximately 160-

170 feet inby the sensoro 

There was no one observed advancing the 

heat sensor when condition was observed. 

The sensor appeared to be functioningo 

The belt was suspended from the mine roof 

and was not observed rubbing against oily 

material. 

The relevant safety regulations 30 C.F.R. §§ 75.1103-4(a) (1) 

and 75ol103-4 provide for the minimum installation requirements 

for automatic fire sensor and warning devices for each belt unit 

operated by a belt drive. The relevant regulations read as 

follows: 

180 
§ 75.1103-4 Automatic fire sensor and. 

warning device systems; installation; 

minimum requirements. 

(a) Automatic fire sensor and warning 

device systems shall provide identification 

of fire·within each belt flight (each belt 

unit operated by a belt drive). 

(1) Where used, sensors responding to 

temperature rise at a point (point-type 

sensors} shall be located at or above the 

'elevation of the top belt, and installed at 

the beginning and end of each belt flight 

(tail-piece) , at the belt drive, and in 

increments along each belt flight so that the 

maximum distance between sensors does not 

exceed 125 feet, except as provided in 

paragraph (a) ( 3) o£ this section. 

* * * * * 

(3) When the distance from the tail-piece 

(end of the belt flight) at loading points to 

the first outby sensor reaches 125 feet when 

point-type sensors are used, such sensors 

shall be installed and put in operation 

within 24 production shift hours after the 

distance of 125 feet is reached •...• 

The Secretary's position is that the regulation requires 

that a sensor responding to temperature (point type sensor) must 

be place over the end (tailpiece) of the belt flight at all 

times when the belt is in service. Under the Secretary's interpretation ·and enforcement of the regulation after the belt is 

moved (extended) the operator must install a heat sensor over the 

tailpiece before the belt is operated and cannot, as the operator contends 9 legally wait and install the sensor over the tailpiece later, within 24 production shift hours. It is undisputed this case that less than 24 production hours had expired 

since the belt (including its tailpiece) had been extended inby 

over 160 feet past the last sensor. 

The secretary presented evidence that it has interpreted and 

enforced the regulation in this manner since 1969. 

Under the Secretary's interpretation of the regulation the 

exception set forth in paragraph (a) (3) of 30 C.F.R. S 75.1103-

4(a) (3) that allows sensor to be installed within 24 production 

hours, applies only to those sensors that must be installed in 

increments not to exceed 75 feet along each belt flight (belt 

haulageway) and not to the sensor that must be installed at the 

181 
beginning and end of each belt flight. Thus the Secretary's 

counsel in the post-hearing brief states the Secretary's position 

as follows: 

It is necessary to carefully examine the 

wording of both the regulation and its 

exception to understand why the heat-type 

sensor must be placed over the tailpiece 

after the belt move and not some 24 production shift hours later as c.w. Mining 

contends. Section 75.1103-4(a)(1) requires 

that sensors responding to heat be located as 

follows: 

(a) at or above the elevation of the top 

belt, and 

(b) installed at the beginning, and 

(c) end (tail piece) of each belt flight, 

(d) at the belt drive, and 

(e) in increments along each belt 

flight .•• not to exceed 125 feet. 

, Sensors are to be located over the top of 

the belt and at the beginning (belt discharge 

roller) and end (belt tail piece) of the belt 

flight and at 125 feet maximum spacings along 

the length of the belt flight. It is abundantly clear that sensors are required at the 

beginning and end of the belt prior to 

putting the belt in service. Section 

75o1103-4(a) (3) allows an Operator some 24 

production shift hours for the sensor to be 

installed over the belt when the distance 

from the tail piece at the loading points to 

the first outby sensor (i.e. 1 the sensor over 

the top of the belt) not the sensor at the 

end of the belt flight as per Section (a) (1) 

reaches 125 feet. As Inspector Gibson noted 

MSHA has enforced the regulation in this 

manner since 1969. (TR-26). See also 

Exhibit G-4. Inspector Gibson and at least 

one other inspector have informed Ken Defa, 

Mine Superintendent, previously that the 

sensor had to be placed over the tail piece 

immediately after a belt move. (TR-35). 

It is the operator's position that the last phrase of 

182 
subsection (a) (1) "except as provided in paragraph (a) (3) of this 

section," applies to each clause of subsection (a) (1) joined by 

conjunctive commas and the word "and." The operator contends 

that had the drafters intended to limit the exception in (a) (3) 

to sensors installed in increments along the belt flight, they 

would have put a period after the clause "at the belt drive" and 

begun a new sentence, thus: 

Sensors shall also be located in increments 

along each belt flight so that the maximum 

distance between sensors does not exceed 125 

feet, except as provided in paragraph (a) (3) 

of this section. 

conclusion and Rationale 

I concur and uphold the Secretary's interpretation that the 

regulation requires that a sensor must be located over the end of 

the belt flight (tail piece) as soon as the belt begins to 

operate. 

It is clear from a reading of the relevant standards that 

the purpose of the automatic fire sensor system is to give warning automatically when a fire occurs on or near the belt that 

will result in rapid location of the fire (§ 75.1103-1). The 

specific regulation in question must be construed in the light of 

its underlying purpose - the protection of miners working underground. 

It is well established that the Mine Act and the standards 

promulgated thereunder are to be interpreted to ensure, insofar 

as possible, safe and healthful working conditions for miners. 

Westmoreland Coal Co. v. Federal Mine Safety and Health Review 

Commission, 606 F2d 417 1 419-20 (4th Cir. 1979); Old Ben Coal 

, 1 FMSHRC 1954 1 1957-58 (December 1979). Section 75.1103-

4(a) (1), like most coal mine safety standards, is aimed at the 

elimination of potential dangers before they become present 

dangers. 

The regulation in question, therefore, should be construed 

a manner that is consonant with the fundamental protective 

ends of the Mine Act as set forth in section 2 of the Mine Act. 

See 30 U.S.C. § 801(a), (d) and (e). 

Logically the appropriate function of an exception in a 

regulation is to make certain the specific exception or exceptions to its general provisions. It is generally accepted that 

the exception be construed strictly and all reasonable doubts be 

resolved in favor of the general rule and against the exception. 

In this case if the construction urged by the operator is 

followed, the exception set forth in paragraph (a) (3) of the 

183 
section allowing installation "within 24 production shift hours" 

would become the general rule rather than an exception to the 

general provision of the regulation. 

Furthermore it is well established courts accord great deference to an agency's construction of regulations which it has 

drafted and continues to administer. Udall v. Tallman, 380 u.s. 

1 (1965); Sec. of Labor v. Western Fuels-Utah, Inc. 900 F.2d 318 

(D.C. Cir. 1990); Secretary of Labor v. Western Fuels-Utah, Inc., 

900 F2d 318 (D.C. Cir. 1990}. To uphold the agency's interpretation, a court need not find the agency's interpretation to be the 

only or the most reasonable one. City of Aurora v. Hunt, 749 F2d 

1457, 1462 (lOth Cir. 1984). "A regulation must be interpreted 

so as to harmonize with and further and not conflict with the 

objective of the statute it implements." Emery Mining Corp. v. 

Secretary of Labor (MSHA), 744 F2d 1411, 1414 (lOth Cir. 1~984); 

(quoting, Trustees of Indiana University v. United States, 618 

F.2d 736 (1980). 

Penalty 

This difference of interpretation of the regulation in this 

case may be due to the somewhat imprecise draftmanship of the 

regulation. With this in mind I find on considering the statutory criteria in section 110(i) of the Act that the $20 penalty 

proposed by the Secretary is the appropriate civil penalty for 

this non S&S violation. 

Docket No. WEST 92-211 

Citation Noo 3582543 VACATED 

docket consists of three citations. The Secretary has 

moved to vacate one of the citationsu Citation No. 3582543u on 

the grounds there was insufficient evidence to proceed. The 

motion was granted. The citation and its related proposed 

penalty are vacated. 

The two remaining citations in this docket were vigorously 

tried. Both of these citations allege a significant and substantial (S&S) violation of 30 C.F.R. § 75.202(a). This safety 

regulation provides as follows~ 

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 bursts. 

The two citations alleging a violation of this safety 

standard are discussed below. 

184 
citation No. 3582544 

This .citation alleges a violation of the mandatory safety 

standard 30 C.F.R. § 75.202(a) quoted above. 

The citation in question, Citation No. 3582544, under item 8 

condition or practice, reads as follows: 

The mine roof was not adequately supported 

or otherwise controlled to protect persons 

from the hazards related to falls of roof in 

the 3rd West Section. There was a slip 

located in the crosscut between the #1 and #2 

entry. Loose rocks were observed in the 

slip. These rocks were scaled down and 

measured 24-30 inches long x 4-16 inches wide 

x 1-1/2 inches thick. Another rock measured 

24-30 inches long x 18-22 inches wide x 2-3 

inches thick. These rocks were located over 

the roadway. In this condition (it) poses 

the hazard of injury related to falling 

materials. 

Inspector Donald Gibson issued this citation on September 24, 1991 after his spot inspection (CAA) of certain portions 

of the mine. Inspector Gibson testified that in the 3rd West 

Section between the No. 1 and No. 2 entry he observed a "slip" 

which he defined as a separation from the immediate roof. 

Inspector Gibson testified there were loose rocks in the 

slip. At Mr. Gibson's request, Mr. Defa, the mine superintendentf scaled down the rocks with a pry bar. After the rocks were 

scaled downff Mr. Gibson measured the rocks and obtained the measurements set forth in his citation quoted above. Inspector 

Gibson described the slip as approximately 10 to 12 feet long 

(Tr. 52) and on cross-examination as 8 feet wide and 2 feet long. 

(Tr. 71). He stated that the bulk of the slip was over the 

middle of the entry. There was conflicting testimony as to the 

time required for Mr. Defa to scale down the rocks. Mr. Defa 

said it took him one half hour of vigorous prying to scale down 

the rocks. Inspector Gibson stated that it took Mr. Defa only 

about 10 minutes to scale the rocks down. 

There was also conflicting evidence as to the height of the 

roof. Mr. Gibson testified as follows: 

"it runs in my mind that the mining height 

·or the height of the coal seam was six feet, 

seven feet high." (Tr. 55). Later on cross 

examination when asked again the height of 

the roof he testified "Well, I think I've 

stated between seven feet and eight feet. I 

185 
didn't measure it. I don't know exactly." 

(Tr. 65) . 

Mr. Defa, the mine superintendent, testified in a positive 

manner that the roof in the area in question was exactly 5 feet 8 

inches high. He measured the height on the day of inspection and 

again just the day before he testified at the hearing. 

Mr. Defa also testified that he saw a crack but did not see 

any slip. He stated that in the area in question there was a 

"laminated roof strata" which was roof bolted to hold the layers 

of rock strata together. The crack was between two layers of 

rock strata. 

Mr. Atwood, the mine production supervisor, testified that 

when he observed the roof the day before the citation was issued, 

the roof was fully bolted and adequately supported in the area 

cited and that the height of the roof in that area was five feet 

8 inches high. 

Another federal coal mine inspector, Ted Farmer, was conducting a regular full AAA inspection of the mine during the 

time, as well as before and after Inspector Gibson's spot 

inspection of the mine. Inspector Farmer's AAA inspection 

included the roof and ribs in the area spot-checked by Gibson. 

Inspector Farmer testified that he had inspected the roof area in 

question a week or two before Mr. Gibson arrived and that he did 

not issue any roof or rib control citation because he did not 

observe any roof or rib hazard. 

On evaluation of the testimony of each of the witnesses I 

find that Inspector Gibson did observe some loose rock in the 

roof in the cited area in violation of the cited standard. I am 

satisfied .from Mr. Defavs testimony that the roof in the cited 

area was five feet eight inches high, that he had to duck down to 

get into the area, and that he had to work vigorously with his 

scaling bar to bring the disputed rock down. 

Under these circumstances; summarized above, I find that 

there was a non S&S violation of 30 C.F.R. § 75.202(a) rather 

than a S&S violation. The evidence presented did not establish 

an S&S violation because the preponderance of the evidence did 

not prove a reasonable likelihood that the hazard contributed to 

would result in reasonably serious injury. 

Considering that statutory criteria in section llO(i) of the 

Act I find the appropriate penalty for this 104(a) non S&S violation under the facts established at hearing is $80. 

186 
Citation No. 3582545 

Based upon his spot roof inspection of September 24, 1991 

Inspector Gibson issued a second citation alleging a S&S violation of 30 C.F.R. S 75.202(a). Citation No. 3582545 reads as 

follows: 

The roof was not being supported or otherwise 

controlled to protect persons from hazards 

related to falls from roof in the return 

entry on the 3rd West Section beginning 80 

feet outby crosscut 16, the left rib was 

taking weight, (rib cutter) causing the rib 

to spall. The roof was tested, and when 

sounded was found to be drummy and cracked. 

The loose drummy roof was measured to be 6 

feet wide and 18 feet long. This area was in 

the designated escapeway. The area was not 

barricaded to imped·e travel. Piec~s of the 

mine roof were observed to have fallen onto 

'the mine floor. It measured 20 inches wide 

times 40 inches long times 1 to 2 inches 

thick. This condition poses the hazard of 

persons being struck by falling material. 

Inspector Gibson testified as to his observations of the 

roof in the cited area as set forth in the citation quoted above. 

He stated the roof was 6 to 6 1/2 feet high at this location and 

the roof was supported by bolting. The area first inby this 

location had already fallen and the operator had cribbed it off. 

The weekly examiner or anyone he might bring in to fix a faulty 

condition would be exposed. The area in question was not a primary entryway or exit. It was the secondary or alternate escapeway. 

On cross-examination Mr. Gibson testified that the roof area 

in question was roof bolted on five foot centers or better and 

some roof material had fallen between the last row of bolts and 

the rib and had fallen on the floor next to the rib. 

Mr. Defa testified the section in question was an inactive 

section. He was with Inspector Gibson during his inspection. He 

pointed out to Mr. Gibson that he "couldn't see a violation 

there, that the roof was bolted and there was no loose rock between the rib and the bolts." He also testified that since setting the timber to abate the alleged violation over oneyear ag-o 

the timbers are taking no weight, no material has had to be 

barred down and none has fallen. 

Federal coal mine inspector Donald Farmer testified that he 

inspected the roof and ribs of the area in question during his 

regular AAA inspection a week or two before Inspector Gibson's 

187 
spot inspection. Inspector Farmer testified that he did not see 

any conditions to cite. The day after Mr. Gibson issued the 

citation, Inspector Farmer again inspected the area to abate Mr. 

Gibson's citation. Inspector Farmer testified that at neither 

inspection did he see any rock or material that had fallen onto 

the roadway. He did see some material that had fallen on the 

floor next to the rib. It was not in an area "where you normally 

expect people to walk." The section was idle. However, he would 

expect the weekly examiner to walk through this area during their 

weekly inspection. 

Inspector Farmer further testified that he carefully inspected the cited area of the roof and stated "as I looked at it 

and observed and abated the citation, I couldn't see where it 

would have been an S&S citation." Inspector Farmer testified 

that had he seen the rib cutter described in the citation he 

would have issued a citation but he "couldn't see that it was S&S 

citation." 

I credit Inspector Farmer's testimony and concur in h 

evaluatio~ and opinion that the violation was not S&S. 

Considering the statutory criteria in section 110(a) 

of the Act I find the appropriate penalty for this non S&S 

violation is $80. 

ORDER 

1. Citation Nos. 3582544 and 3582545 are modified to delete 

the "significant and substantial" designation and, as modified, 

the citations are AFFIRMED. 

2. Citation Nos. 3582643, 3582540 1 3582645 and 3582579 are 

AFFIRMED. 

3. Citation Nos. 3582644, 3582646, 3582650 and 3582543 are 

VACATED. 

4. Co~o MINING SHALL PAY to the Secretary of Labor a civil 

the sum of $412 within 30 days of the date of 

for the violations found herein. 

Distribution: 

st F. Cetti 

1nistrative Law Judge 

Robert J. Murphy, Esq., Office of the Solicitor, u.s. Department 

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

Denver, CO 80294 (Certified Mail) 

Carl E. Kingston, Esq., 3212 South State Street, Post Off Box 

15809, Salt Lake City, UT 84115 (Certified Mail) 

188 
ADMINISTRATIVE LAW JUDGE ORDERS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

LAUREL COAL CORPORATION, 

Respondent 

LAUREL COAL CORPORATION, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

DEC 211992 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 92-1282 

A.C. No. 46-01266-03670 

No. 1 Mine 

CONTEST PROCEEDINGS 

Docket No. WEVA 91-346-R 

Order No. 3751481; 3/13/91 

Docket No. WEVA 91-347-R 

Citation No. 3751482; 3/13/91 

Docket No. WEVA 91-348-R 

Citation No. 3751483; 3/13/91 

Docket No. WEVA 91-349-R 

Citation No. 3751484; 3/13/91 

No 1 Mine 

I.D. No. 46-01266 

ORDER GRANTING LIMITED CONTINUANCE 

On October 26, 1992, hearings were scheduled in the 

captioned cases to commence on January 12, 1993, upon mutual 

agreement of counsel. On November 30, 1992, the Secretary 

of Labor filed a motion for continuance stating as grounds 

therefore, the following: 

1. The above case involves three citations 

issued by r1SHA Inspector James E. Davis and MSHA 

Inspector Herbert McKinney for violations resulting 

in a fatal roof fall. The roof fall in question 

was investigated by and the Accident Investigation 

Report authored by Investigator James E. Davis. 

For this reason, the testimony of Investigator Davis 

is extremely important to the Secretary's case. · 

189 
2. Investigator Davis has recently become 

involved in a criminal matter, however, and as a 

result, is presently on suspension and unable to 

participate in any phase of the present MSHA case. 

The hearing in the criminal matter is presently , 

scheduled for January 20, 1993. 

3. There are important enforcement goals at 

issue in the instant proceeding due to the fatal 

roof fall accident involved and the $75,000.00 

civil penalty assessment which has been proposed. 

4. Under these circumstances, the Secretary 

contends that the interests of justice require that 

the January 12, 1993, hearing date in this case be 

continued until Investigator Davis' criminal matter 

has been resolved. 

Subsequently, in a conference call with both counsel 

and the undersigned, the Secretary was directed to supplement her motion to detail in writing her specific reasons 

for seeking a continuance and the specific length of time 

requested for said continuance. It was noted in that 

conference call, however, that additional criminal charges 

had been brought against the same MSHA investigator, and 

that the charges related to his official conduct as an 

MSHA employee. Thereafter, the Secretary filed a second 

motion for continuance stating only as follows: 

Now comes the Secretary of Labor (Secretary) 

by her undersigned attorneys and for the reasons 

set forth in the Secretary's f Motion for 

Continuance, moves that the January 12, 1993 hearing 

in the above-re case be continued 

nine months or until the criminal proceeding 

involving MSHA Inspector James E. Davis is resolved 

at the trial level, whichever occurs first. 

in a response December 9, 1992, Laurel Coal 

Corporation (Laurel), while opposing a continuance for nine 

months, agreed to a continuance of "approximately three weeks. 11 

As grounds for its opposition a nine month continuance, 

Laurel stated as follows: 

Laurel Coal Corporation received the 

Secretary of Labor's Second Motion for Continuance 

in the captioned matter and wishes to register an 

objection. The roof fall accident at issue in 

this proceeding occurred over 21 months ago, on 

March 8, 1991. MSHA conducted an elaborate 

investigation at that time and prepared an investigative report which is available to all parties. 

190 
The basis of the Secretary's Motion is that 

MSHA Investigator James E. Davis is involved in a 

criminal proceeding and is unavailable to participate in a hearing for at least nine months. The 

Investigative Report indicates that MSHA employees 

John W.H. Baugh, Herbert McKinney, Ricky W. Boggs 

and Eddie White also participated in the investigation. 

Although Mr. Davis is indeed unavailable, there are 

four other MSHA investigators that have first hand 

knowledge of the roof fall fatality at issue and are 

available for testimony. 

The Secretary's Motion will also cause prejudice 

to Laurel Coal Corporation. The proposed assessments 

in this proceeding total $75,000 and this has caused 

substantial anxiety and potential hardship to the 

owners and officers of the Company. In addition, a 

continuance of nine months will lessen the recollections of the parties 'involved in this factually 

intensive case. 

Laurel Coal answered all of the Secretary's 

discovery in November and has scheduled depositions 

for January 13-15, 1993. Our client very much 

wants to resolve this matter and respectfully 

requests that the Court deny the Secretary's motion. 

Laurel will agree, however, to a continuance of the 

January 12, 1993 hearing date for approximately 

three weeks. This concession is based solely upon 

our inability to conduct pre-trial discovery due 

to the uncertain status of Mro Daviso Thank you 

for your consideration" 

Nowhere in the Secretary's motions does she state 

why the potentially unavailable witness is essential to 

her case. Based on prior experience, it would appear 

that an after-the-fact investigator, who has no firsthand 

information as to the occurrence, would be of only marginal 

value to the case in any evento It is not represented that 

he has any firsthand information regarding matters at issue. 

In addition, there is a serious question whether the current 

criminal proceedings pending against the investigator would 

be concluded in nine months. Aside from postponements, 

such proceedings could very well continue for years in the 

appellate process. On the other hand, as noted by Laurel, 

the accident giving rise to the instant cases occurred over 

21 months ago and further delays could indeed result in 

legal prejudice. I note however that Laurel has agreed to 

a continuance of approximately three weeks. 

191 
Under the circumstances and considering that the 

trial schedule of the undersigned is already full through 

the second week of March 1993, I will grant a limited continuance to March 16, 1993. Accordingly, hearings in the 

captioned cases will now commence at 9:00 a.m. on March 16, 

1993, in Charleston, West Virginia. The prehearing 

requirements must now be met on or before February , 1993. 

Distribution: 

Gary Meli 

Administr 

703-756-6 

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

u.s. Department of Labor, 4015 Wilson Boulevard, Room 516, 

Arlington, VA 22203 (Certified Mail) 

David Hardy, Esq., Jackson and Kelly, P.O. Box 553, 

Charleston, WV 25322 (Certified Mail) 

/lh 

192