JULY 1989 

Commission Decisions 

07-06-89 

07-20-89 

Local 1810, UMWA v. NACCO Mining Company 

Birchfield Mining Company 

Administrative Law Judge Decisions 

07-07-89 

07-11-89 

07-11-89 

07-12-89 

07-13-89 

07-13-89 

07-14-89 

07-14-89 

07-14-89 

07-18-89 

07-18-89 

07-18-89 

07-24-89 

07-25-89 

07-25-89 

07-27-89 

07-27-89 

07-27-89 

07-31-89 

07-31-89 

07-31-89 

Sec. Labor for Michael Albert Swinney v. 

James Hamilton Construction 

Tony Chaney employed by Morton Salt Division 

Southern Ohio Coal Company 

Smoot Coal Company 

Big Horn Calcium Company 

Davidson Mining, Inc. 

Mountain Parkway Stone Inc. 

Rushton Mining Company 

Blue Circle Atlantic Inc. 

Green River Coal Company, Inc. 

Rochester & Pittsburgh Coal Company 

Sec. Labor for Donald J. Robinette & Joey 

F. Hale v. Bill Branch Coal Co., Inc. 

Coal Junction Coal Company, Inc. 

Arthur Overgaard/Mathy Construction Co. 

Consolidation Coal Company 

Carl A. Johnson employed by Horton Salt Div. 

George's Branch Coal, Inc. 

Sec. Labor for Robert Vaughn v. Sumco, Inc. 

Green River Coal Company, Inc. 

Dillingham Construction International 

Ten-A-Coal Company 

Administrative Law Judge Order 

07-24-89 Rushton Mining Company 

LAKE 87-19-C 

WEVA 87-272 

Pg. 1231 

Pg. 1243 

WEST 89-172-DM Pg. 1245 

CENT 89-56-M 

WEVA 88-313 

WEVA 88-328 

WEST 88-67-RM 

WEVA 88-311 

KENT 89-26-M 

PENN 88-245-R 

YORK 89-2-M 

KENT 89-82 

PENN 88-164-R 

VA 87-21-D 

VA 87-22-D 

PENN 88-260 

LAKE 89-45-M 

WEVA 89-119 

CENT 89-54-H 

KENT 89-12 

KENT 89-28-D 

KENT 89-19 

SE 88-59-H 

WEVA 88-136 

Pg. 1246 

Pg. 1249 

Pg. 1256 

Pg. 1280 

Pg. 1284 

Pg. 1289 

Pg. 1301 

Pg. 1308 

Pg. 1313 

Pg. 1318 

Pg. 1324 

Pg. 1324 

Pg. 1327 

Pg. 1328 

Pg. 1330 

Pg. 1336 

Pg. 1339 

Pg. 1341 

Pg. 1343 

Pg. 1351 

Pg. 1403 

PENN 89-146-R Pg. 1419 

JULY 1989 

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

Secretary of Labor, MSHA v. Green River Coal Company, Docket No. KENT 88-152. 

(Judge Koutras, June 5, 1989) 

Paula Price v. Monterey Coal Company, Docket No. LAKE 86-45-D. (Judge 

Melick, June 19, 1989) 

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

Troy W. Conway, Jr. v. Peabody Coal Company, Docket No. KENT 88-127-D. 

(Judge Melick, June 15, 1989) 

The Direction for Review in Amax Potash Corporation, Docket No. CENT 87-72-M 

was vacated on July 24, 1989 after a motion from Amax to withdraw the 

petition for discretionary review. 

COMMISSION DECISIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 6, 1989 

LOCAL UNION 1810, DISTRICT 6 

UNITED MINE WORKERS OF 

AMERICA (UMWA) 

v. 

NACCO MINING COMPANY 

Docket No. LAKE 87-19-C 

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

Commissioners 

DECISION 

BY THE COMMISSION: 

This is a compensation proceeding arising under the Federal Mine 

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

or "Act"). The principal issue presented is whether an operator may 

challenge in a compensation proceeding the validity of a withdrawal 

order and its modification, despite the operator's failure to contest 

previously the order or the modification pursuant to section 105 of the 

Mine Act (n.4 infra). lf Commission Administrative Law Judge William 

lf Section 111 of the Mine Act provides in part: 

[1] If a coal or other mine or area of such mine 

is closed by an order issued under section [103], 

section [104], or section [107] of this Act, all 

miners working during the shift when such order was 

issued who are idled by such order shall be 

entitled, regardless of the result of any review of 

such order, to full compensation by the operator at 

their regular rates of pay for the period they are 

idled, but for not more than the balance of such 

shift. [2] If such order is not terminated prior 

to the next working shift, all miners on that shift 

who are idled by such order shall be entitled to 

1231 
Fauver held that the withdrawal order and the modification that idled 

the miners had not been timely contested by Nacco Mining Company 

("Nacco") and had become final for purposes of section 111. Finding 

that the prerequisites for compensation were met, the judge awarded the 

complainants compensation, including prejudgment interest. 9 FMSHRC 

1349 (August 1987)(ALJ); 9 FMSHRC 1671 (September 1987)(ALJ). For the 

reasons that follow, we affirm the judge's award of compensation and 

interest, but direct that the interest be calculated in accordance with 

the formula set forth at 54 Fed. Reg. 2226 (January 19, 1989). See Loe. 

U. 2274, UMWA v. Clinchfield Coal Co., 10 FMSHRC 1493 (November 1988-),~ 

pet. for review filed, No. 88-1873 (D.C. Cir. December 16, 1988). 

The material facts are not in dispute. On December 10, 1984, 

during an inspection of Nacco's Powhatan No. 6 underground coal mine, an 

inspector of the Department of Labor's Mine Safety and Health 

Administration ("MSHA") found that an intake-ventilated escapeway in the 

north mains area of the mine was not being maintained to ensure safe 

passage of mine personnel, including disabled persons. The inspector, 

citing a violation of 30 C.F.R. § 75.1704, issued Order of Withdrawal 

No. 2329934, pursuant to section 104(d)(2) of the Mine Act, 30 U.S.C. 

§ 814(d)(2). ~/ The cited conditions consisted of a failure to maintain 

full compensation by the operator at their regular 

rates of pay for the period they are idled, but for 

not more than four hours of such shift. (3] If a 

coal or other mine or area of such mine is closed by 

an order issued under section (104] or section (107] 

of this [Act], for a failure of the operator to 

comply with any mandatory health or safety standard, 

all miners who are idled due to such order shall be 

fully compensated after all interested parties are 

given an opportunity for a public hearing, which 

shall be expedited in such cases, and after such 

order is final, by the operator for lost time at 

their regular rates of pay for such time as the 

miners are idled by such closing, or for one week, 

whichever is the lesser. 

30 U.S.C. § 821 (sentence numbers added for convenience). 

~/ Section 75.1704, which substantially repeats section 317(f)(l) of 

the Mine Act, 30 U.S.C. § 877(f)(l), provides: 

Except as provided in §§ 75.1705 and 75.1706, at 

least two separate and distinct travelable 

passageways which are maintained to insure passage 

at all times of any person, including disabled 

persons, and which are to be designated as 

escapeways, at least one of which is ventilated with 

intake air, shall be provided from each working 

section continuous to the surface escape drift 

opening or continuous to the escape shaft or slope 

facilities to the surface, as appropriate, and shall 

be maintained in safe condition and properly marked. 

1232 
appropriate height and width in "many locations" in the escapeway and 

the presence of obstructions in the escapeway. The withdrawal order 

closed all areas in the north mains of the mine inby the two main east 

junction. 

The inspector permitted the mine to reopen about 30 minutes after 

its closure when he modified the order for the first time. The modification required Nacco to devote at least 25 manshifts per week to 

rehabilitating the escapeway until the work was completed. }/ The 

modification allowed Nacco to continue its usual mining operations in 

the north mains while the work of rehabilitating the intake escapeway 

was being conducted. After the issuance of this modification, normal 

mining operations resumed, all previously withdrawn miners returned to 

work, and Nacco thereafter devoted at least 25 manshifts per week to 

rehabilitating the escapeway. MSHA modified the order for the second 

time on December 11, 1984, to add an additional thousand feet to the 

length of escapeway needing rehabilitation. On January 18, 1985, MSHA 

modified the order for the third time to reduce its estimate of the 

number of workers affected by its issuance. 

On January 25, 1985, the State of Ohio Department of Mines 

conducted an inspection of the mine, found that the escapeway violated 

Ohio's mining laws, and issued an order to Nacco requiring that Nacco 

continue to devote the MSHA-imposed 25 manshifts per week to the 

rehabilitation efforts. On March 22, 1985, the state issued another 

order to Nacco, requiring some relocation of the route of the escapeway 

and continuance of the rehabilitation effort. 

On October 2, 1986, about 22 months after the initial issuance of 

the withdrawal order, different MSHA inspectors determined that the 

violation of section 75.1704 had not been abated and that the time for 

abatement should not be further extended. (MSHA inspection responsibility for the Powhatan No. 6 Mine had been transferred as of April 1, 

1986, from MSHA's Vincennes, Indiana, office to its Morgantown, West 

Virginia, office.) At this time, MSHA issued a fourth modification of 

the order to Nacco requiring that the intake escapeway and all active 

sections inby be closed and ordering the withdrawal of miners because 

the escapeway was alleged to still be in violation in several locations. 

Nacco was able to continue mining operations without idling any 

Mine openings shall be adequately protected to 

prevent the entrance into the underground area of 

the mine of surface fires, fumes, smoke, and 

floodwater. Escape facilities approved by the 

Secretary or his authorized representative, properly 

maintained and frequently tested, shall be present 

at or in each escapeway shaft or slope to allow all 

persons, including disabled persons, to escape 

quickly to the surface in the event of an emergency. 

'1_/ "Manshift" is defined in part as, "The ... work done by a man in 

one shift." Bureau of Mines, U.S. Dep't of the Interior, A Dictionary 

of Mining, Mineral, and Related Terms 679 (1968). 

1233 
miners during the shift on which the modification was issued and for the 

rest of that work week by relocating the affected workforce to another 

area of the mine. However, during the following work week, on 

October 6, 7 and 8, 1986, Nacco laid off the 87 complainants as a result 

of the idling effect of the modification. On October 8, 1986, MSHA 

determined that the violative conditions had been corrected to a degree 

that would allow mining to resume, and it again modified the order to 

provide that the escapeway and the north mains could be reopened. At 

that time the miners were recalled. 

Section 105(d) of the Mine Act provides that an operator or 

representative of miners may contest the issuance or modification of an 

order issued under section 104 of the Act within 30 days of receipt of 

the order or modification and that an operator may also contest the 

Secretary's proposed assessment of a civil penalty within 30 days of 

receipt. 4/ Neither Nacco nor the United Mine Workers of America 

("UMWA"),-the representative of the miners at the Powhatan No. 6 Mine, 

contested the initial issuance of the withdrawal order or any of the 

subsequent modifications of the order. Further, on May 7, 1985, Nacco, 

without contest, paid the civil penalty of $500 proposed by MSHA for the 

violation of section 75.1704 alleged in the withdrawal order. 

~/ Section 105(d) states in part: 

If, within 30 days of receipt thereof, an operator 

of a coal or other mine notifies the Secretary that 

he intends to contest the issuance or modification 

of an order issued under section [104] of this 

[Act], or citation or a notification of proposed 

assessment of a penalty issued under subsection (a) 

or (b) of this section, or the reasonableness of the 

length of abatement time fixed in a citation or 

modification thereof issued under section [104] of 

this [Act], or any miner or representative of miners 

notifies the Secretary of an intention to contest 

the issuance, modification, or termination of any 

order issued under section [104] of this [Act], or 

the reasonableness of the length of time set for 

abatement by a citation or modification thereof 

issued under section [104] of this [Act], the 

Secretary shall immediately advise the Commission of 

such notification, and the Commission shall afford 

an opportunity for a hearing (in accordance with 

section 554 of title 5, but without regard to 

subsection (a)(3) of such section), and thereafter 

shall issue an order, based on findings of fact, 

affirming, modifying, or vacating the Secretary's 

citation, order, or proposed penalty, or directing 

other appropriate relief. Such order shall become 

final 30 days after its issuance .... 

30 u.s.c. § 815(d). 

1234 
On December 8, 1986, the United Mine Workers of America ("UMWA") 

filed the subject compensation complaint against Nacco to obtain 

compensation under the third sentence of section iii for the complainants. The complaint alleged that the 87 complainants were idled on 

October 6, 7, and 8, as the result of the October 2, 1986, modification 

of the withdrawal order and, therefore, were entitled to compensation. 

Nacco answered, admitting that the order and modification were issued 

but denying that the complainants were entitled to compensation. In a 

motion for summary decision and in oral argument before the administrative law judge, Nacco asserted that section ]l] does not provide a 

right to compensation for miners idled by a modification of a withdrawal 

order and, in any event, that the order and the modification requiring 

closure of the intake escapeway were invalid. Responding with acrossmotion for summary decision, the UMWA contended that the requirements 

for an award of compensation under the third sentence of section iii 

were met because the withdrawal order had been issued under section 104 

of the Act for a violation of a mandatory safety standard and the order 

and modifications were final because of Nacco's failure to contest them 

in a timely manner. 

The judge granted summary decision for the complainants. The 

judge observed that in compensation cases arising under the first or 

second sentences of section iii (n.1 supra), a compensation claim can 

proceed to hearing immediately because the miners' rights to compensation are independent of any subsequent review of the validity of the 

order upon which the claim is based. 9 FMSHRC at 1352-53. In contrast, 

a compensation claim under the third sentence of section iii may not be 

heard until the order upon which the compensation claim is based has 

become final. (The third sentence of section iii states, "all miners 

who are idled due to ... [an] order [issued under section I04] shall be 

fully compensated after all interested parties are given an opportunity 

for a public hearing .. and after such order is final.") 9 FMSHRC at 

1353. The judge reasoned that under the Act an order issued pursuant to 

section 104 becomes final either upon being upheld in a contest 

proceeding under section 105(d) of the Act or upon the operator's waiver 

of its section 105(d) contest rights. Id. The judge stated, "If the 

... order [is] not challenged it is, as a matter of law, final and not 

subject to further review." Id. He determined that the finality of the 

violation of section 75.1704 was established when Nacco paid the civil 

penalty for the violation of section 75.1704 and that the order and 

modifications became final when neither Nacco nor the UMWA contested 

them within 30 days of their issuance. Id. 

The judge concluded that in the compensation proceeding Nacco was 

"statutorily barred from contesting the validity of the order, its four 

modifications, and the charge of a violation of 30 C.F.R. 75.1704" and, 

therefore, that its arguments attacking the validity of the October 2, 

1986 modification could not be heard. 9 FMSHRC at 1353. The judge 

noted that Nacco had conceded that the miners were laid off as a result 

of the October 2, 1986, modification. Accordingly, he awarded compensation to the miners for wages lost on October 6, 7 and 8, 1986, and he 

also awarded interest, to be computed from October 8, 1986, until paid. 

9 FMSHRC at 1353-54. In a Supplemental Decision, he awarded the 

complainants $30,424.08 in compensation plus interest. 9 FMSHRC 

1235 
at 1671-74. 

We granted Nacco's petition for discretionary review. 5/ At 

Nacco's request, we stayed briefing pending our resolution of two cases 

posing similar or related issues, Loc. U. 2333• UMWA v. Ranger Fuel Co., 

i0 FMSHRC 612 (May 1988) and Clinchfield Coal, supra. Following 

issuance of Clinchfield, we dissolved the stay and the parties filed 

briefs. On review, Nacco reiterates the arguments that it made to the 

judge that a modification of an order does not entitle miners to 

compensation under section iii of the Act and that, in any event, the 

order and modification in this case are invalid and cannot support a 

compensation award. 

We reject Nacco's contention that a modification of a withdrawal 

order may never support a compensation claim under section iii. The 

third sentence of section iii states that the right to compensation 

arises when a mine or an area of a mine is closed by an "order" issued 

under sections 104 or 107 of the Act. The Act expressly contemplates 

that such orders may be modified: all citations and orders issued by the 

Secretary under section 104 are subject to modification by the 

Secretary, the Commission, or the courts. 30 U.S.C. §§ 814(h) & 815(d). 

Depending upon the nature of the modification, the substantive effect of 

the underlying enforcement action may or may not be changed but the 

enforcement action nevertheless remains in effect as modified. See 

m 

e.g., Southern Ohio Coal Co., i0 FMSHRC 138, 143-144 (February 1988). 

Section 104(h) of the Act provides that any citation or order 

issued under section 104 shall "remain in effect until modified, 

terminated or vacated by the Secretary ..., 

the Commission or the 

courts 

.... 

" 30 U.S.C. § 814(h). Modification differs from termination 

or vacation. Termination occurs when the Secretary determines that the 

condition cited has been abated; vacation occurs when either the 

Secretary, the Commission, or a court concludes that the citation or 

order as issued or modified is null and void. Thus, the language of 

section 104(h) that states that a citation or order issued under section 

104 "shall remain in effect until modified" does not necessarily mean 

that the original citation or order ceases to have any effect following 

modification, as Nacco suggests. Rather, the original citation or order 

remains in effect, as modified. 

Nacco contends that the lack of mention of "modification" in 

section iii is not an oversight but rather is reflective of MSHA's lack 

of authority to close mines or idle miners by issuing modifications of 

extant orders. Nacco notes that Webster's New Collegiate Dictionary 763 

(1986) defines "modify" as "i: to make less extreme 

... moderate; 2: to 

5/ Subsequent to our direction for review, the Powhatan No. 6 Mine 

was acquired by Ohio Valley Coal Company. In its brief, the operator 

states that Ohio Valleynow "carries on the litigation as the 

responsible operator." Op. Br. 1 n. i. In the absence of any formal 

request for substitution and amendment of the case caption, we retain 

the existing caption and continue to refer to the operator as "Nacco" in 

this decision. 

1236 
limit or restrict the meaning of .... " Nacco further argues that in Dart 

v. United States, 848 F.2d 217 (D.C. Cir. 1988), the Court determined in 

an analogous context that the term "modify" refers to a narrowing, not a 

broadening, effect. Thus, according to Nacco, MSHA was not authorized 

to modify the withdrawal order in issue, which had not been idling 

miners, to provide that miners would be withdrawn. 

This case does not require us to decide whether all instances of 

modification of withdrawal orders leading to the idling of miners can 

support compensation under section 111. However, in general, we reject 

Nacco's restrictive interpretation of the power of modification under 

the Mine Act and the operator's correspondingly technical interpretation 

of section 111. Modifications of citations or withdrawal orders often 

expand the scope of the original enforcement action. For example, the 

second modification of the original withdrawal order here, of which 

Nacco does not complain, enlarged the order's scope to cover an 

additional one thousand feet of escapeway requiring rehabilitation. 

Further, in ordinary usage, the word "modify" includes not only a 

sense of moderation (as Nacco would circumscribe the term) but also a 

sense of alteration -- including basic or important amendments not 

necessarily confined to moderating change. See, ~· Webster's Third 

New Int'l Dictionary (Unabridged) 1452 (1986 ed.)(definition of modify). 

Similarly, a standard legal dictionary defines "modify" as meaning: 

To alter; to change in incidental or subordinate 

features; enlarge, extend; amend; limit, reduce. 

Such alteration or change may be characterized, in 

quantitative sense, as either an increase or 

decrease. 

Black's Law Dictionary 905 (5th ed. 1979). This accepted usage is 

consistent with a broad, rather than constrictive, view of the 

modification power under the Mine Act. We find nothing in the Act's 

language or legislative history indicating that Congress intended to 

confine modification only to a narrowing sense. 

The D.C. Circuit's opinion in Dart, supra, upon which Nacco 

relies, does not contradict this conclusion. In that case arising under 

the Export Administration Act ("EAA"), the Court overturned the 

Secretary of Commerce's reversal of an administrative law judge's export 

licensing decision on the grounds that the Secretary's act of reversal 

was not authorized by the EAA's administrative review provisions, which 

permitted the Secretary only to affirm, modify, or vacate such orders. 

848 F.2d at 227-30. In reaching this conclusion, the Court stated: 

It is clear that the common usage of the word 

"modify" does not describe the Secretary's action in 

this case. The dictionary's first meaning of 

"modify" is "to make more temperate and less 

extreme." Webster's Third New International 

Dictionary 1452 (Merriam-Webster ed. 1981). At 

most, the word means "to make a basic or important 

change in." Id. (fourth definition). In this case, 

1237 
the Secretary did not "temper" or even "make a basic 

change in" the ALJ's decision. Rather, he 

completely overturned the ALJ's conclusion •... 

848 F.2d at 228 (emphasis added). The Court expressly acknowledged the 

alternative sense of modification. In the present proceeding, the 

underlying withdrawal order was not "overturned" or "reversed" but was 

altered to require further rehabilitation work. 

As relevant here, we hold that, in general, withdrawal orders may 

be modified by the Secretary to expand, as well as contract, their scope 

and their terms. Whether a particular modification is proper must be 

determined on a case-by-case basis under the enforcement review 

provisions of the Act. 

Furthermore, we agree with the judge that having failed to contest 

the validity of the order and its modifications pursuant to section 

lOS(d), Nacco is barred from raising such challenges in this 

compensation proceeding. Section 105 of the Act establishes a 

comprehensive scheme for the review of citations and orders issued 

pursuant to section 104 of the Act. Section lOS(d) (n.4 supra) provides 

operators with the opportunity to contest the validity of a withdrawal 

order or modification of a withdrawal order issued under section 104 

within 30 days of receipt thereof and to request a hearing. In 

addition, after a civil penalty is proposed for any violation cited in 

such order, section lOS(a) allows operators 30 days to contest the 

citation or proposed assessment of civil penalty. £/ 

£/ Section lOS(a) of the Act provides: 

If, after an inspection or investigation, the 

Secretary issues a citation or order under section 

104, he shall, within a reasonable time after the 

termination of such inspection or investigation, 

notify the operator by certified mail of the civil 

penalty proposed to be assessed under section llO(a) 

for the violation cited and that the operator has 30 

days within which to notify the Secretary that he 

wishes to contest the citation or proposed 

assessment of penalty. A copy of such notification 

shall be sent by mail to the representative of 

miners in such mine. If, within 30 days from the 

receipt of the notification issued by the Secretary, 

the operator fails to notify the Secretary that he 

intends to contest the citation or the proposed 

assessment of penalty, and no notice is filed by any 

miner or representative of miners under subsection 

(d) of this section within such time, the citation 

and the proposed assessment of penalty shall be 

deemed a final order of the Commission and not 

subject to review by any court or agency. Refusal 

by the operator or his agent to accept certified 

mail containing a citation and proposed assessment 

1238 
Section 105(a) specifically provides that if an operator fails to 

contest a citation or proposed penalty within 30 days, it shall be 

deemed a final order of the Commission not subject to review by any 

court or agency. Further, payment of a proposed civil penalty (except 

by genuine mistake) extinguishes an operator's right to contest the 

underlying citation or withdrawal order. See Old Ben Coal Co., 7 FMSHRC 

205, 209 (February 1985). See also Ranger Fuel, supra, 10 FMSHRC at 

617-18; Pocahontas Fuel Co., 8 IBMA 136, 143 (1977). By viewing the 

contest provisions of section 105 as an interrelated whole, the 

Commission has consistently construed section 105 to permit substantive 

review. See~·~ Energy Fuels Corp., 1 FMSHRC 299, 308-309 (May 1979). 

The compensation provisions of section 111, however, stand apart from 

the interrelated structure for reviewing citations, orders and penalties 

created by section 105. 

The distinct purpose of section 111 is to determine the compensation due miners idled by certain withdrawal orders, not to provide 

operators with an additional avenue for review of the validity of the 

Secretary's enforcement actions. That section 111 does not provide the 

basis for collaterally attacking the validity of an order that underlies 

a compensation claim is plainly revealed by the language of section 111, 

which, in its first two sentences, affords compensation "regardless of 

the result of any review" of an order and in its third sentence affords 

compensation "after such order is final." Thus, the Act contemplates 

that, for compensation purposes, the validity of the enforcement action 

upon which a compensation claim is based is either irrelevant or has 

already been otherwise established. 

In Ranger Fuel, supra, we concluded that payment of a proposed 

civil penalty for an alleged violation precludes an operator from 

contesting the validity of the violation in a compensation proceeding. 

10 FMSHRC at 617-20. We stated that permitting a challenge to the 

violation "could not be reconciled with the statutory framework of 

section 105 and 111 of the Mine Act ..•. " 10 FMSHRC at 617. Underlying 

our decision in Ranger Fuel was a recognition that, in contest 

proceedings under section 105 of the Act, the Secretary is a party, 

whereas in compensation proceedings under section 111, only the miners, 

or their representative, and the operator are parties. We concluded 

that allowing an operator to challenge in a compensation proceeding the 

fact of violation despite having paid the resulting civil penalty would 

improperly place miners and their representatives in a prosecutorial 

role of establishing the violation. 10 FMSHRC at 619. Accord: Int'l U. 

UMWA v. FMSHRC, 840 F.2d 77, 81-82 (D.C. Cir. 1988). 

In like manner, we conclude here that allowing Nacco to challenge 

in this compensation proceeding the validity of the Secretary's action 

in modifying the withdrawal order 22 months after its original issuance 

so as to cause a further idling of miners necessarily would place miners 

of penalty under this subsection shall constitute 

receipt thereof within the meaning of this 

subsection. 

30 U.S.C. § 815(a). 

1239 
and their representatives in the role of defending, in the Secretary's 

absence, the validity of the Secretary's enforcement actions. We 

conclude that under the Mine Act that burden is appropriately imposed on 

the Secretary in a proceeding triggered by an operator's timely contest 

of an enforcement action by the Secretary. 

Nacco also asserts that the disparity in the time periods allowed 

for an operator to contest an order or modification under section 105(d) 

of the Act (30 days) and the time provided under Commission Procedural 

Rule 35 (30 C.F.R. § 2700.35) for claimants to file compensation claims 

under section lll (90 days) offends the public's interest in avoiding 

enforcement disputes. Op. Supp. Br. 5. Nacco further asserts that the 

"practical effect of this disparity is simple -- operators often must 

decide whether to contest an order without notice of whether they will 

face a compensation claim." Id. We disagree. Section 105(d) and 

Commission Rule 35 specify the times for requesting a hearing and, 

although the time frames are different, Nacco had ample notice of its 

possible section 111 exposure from the fact that miners were withdrawn 

who lost pay as a result of MSHA's enforcement actions. 

Nacco further contends that it had the right to wait to contest 

the modification until a civil penalty was assessed. Here, however, the 

civil penalty for the violation alleged in the order had been assessed 

and paid before the modification was issued. Op. Br. 6. Section 105(d) 

of the Act (n. 4 supra) provides operators with the opportunity to 

contest and request a hearing concerning an order of withdrawal or 

modification of an order issued under section 104 within 30 days of 

receipt thereof. In addition, after a civil penalty is proposed for any 

violation cited in such order, section 105(a) (n. 6 supra) allows the 

operator 30 days to contest the citation or proposed assessment of 

penalty. Section 105(a) specifically states that if an operator fails 

to contest a citation or proposed penalty within 30 days, it shall be 

deemed a final order of the Commission not subject to review by the 

court or agency. In the present case, Nacco was assessed a penalty of 

$500 for the violation of 30 C.F.R. § 75.1704, which it paid on May 7, 

1985, without contest. As penalties are assessed for violations, and 

the alleged violation had occurred on December 10, 1984, no new penalty 

was to be forthcoming for the October 2, 1986, modification as no new 

violation was alleged in the modification. Since a civil penalty cannot 

be assessed without a violation, Nacco could not wait for a civil 

penalty assessment before initiating a contest of MSHA's modification 

action. Thus, if Nacco truly expected the issuance of another civil 

penalty assessment in conjunction with the modification, it erred and 

forfeited its right to contest the modification by failing to file for 

review in a timely manner under section 105(d). See Old Ben, 7 FMSHRC 

at 209. Therefore, we hold that because Nacco did not avail itself of 

the opportunities to contest in a timely manner pursuant to section 105 

either the validity of the section 104(d)(2) order, or the penalty 

proposed for the violation, or the validity of any of the subsequent 

modifications, it is precluded from raising such challenges here. We 

emphasize that we do not reach the validity of the Secretary's 

enforcement actions at the Powhatan No. 6 Mine. The steps taken by the 

Secretary to achieve compliance with section 75.1704 were, at least, 

1240 
open to question. ZI We are troubled that the operator and the miners 

allowed such an oscillatory enforcement policy to persist. Nevertheless, there being no dispute in this compensation proceeding 

concerning the "nexus" between the modified order and the complainants' 

idlement, we affirm the judge's award of compensation. See, e.g., 

Ranger Fuel, 10 FMSHRC at 620-21. 

Finally, we turn to the question of interest. The judge ordered 

Nacco to pay a total of $30,424.08 in compensation to the complainants, 

plus interest computed in accordance with our decision in Secretary on 

behalf of Bailey v. Arkansas-Carbona Co., 5 FMSHRC 2042 (December 1983). 

Although Nacco asserts that complainants awarded compensation under 

section 111 are not entitled to prejudgment interest, or that if they 

are so entitled, it is error to compute the interest according to the 

"quasi-punitive" Arkansas-Carbona formula, it also acknowledges that our 

Clinchf ield decision determines these issues for purposes of this 

proceeding. Op. Br. at 2 n.2. 8/ 

In Clinchfield, we concluded that interest may properly be 

included in a compensation award and that it should accrue from the date 

that the compensable pay would have been paid but for the idlement until 

it is tendered. 10 FMSHRC at 1501, 1503. We also approved, effective 

January 1, 1987, use of the short-term Federal rate applicable to the 

underpayment of taxes as the rate for calculating interest, discarding 

ZI In other cases pending before the Commission, the Secretary has 

recognized the significance of escapeways: 

"The presence of adequate escapeways for use by all miners in an 

emergency is one of the most important of the mandatory safety standards 

under the Mine Act." Secy. 's Br., Utah Power and Light Co., Docket Nos. 

WEST 87-211-R, WEST 87-224-R, at 8. 

"An adequate escapeway system is crucial for miner safety, and 

violations involving the maintenance of escapeways thus are extremely 

serious." Id. 11. 

"The statutory standard requiring adequate escapeways from 

underground coal mines ... and the implementing mandatory standards 

are fundamental safety standards necessary to help prevent injuries and 

fatalities in the event of underground emergencies. Violations of such 

standards can have disasterious (sic) results should such an emergency 

occur." Secy. 's Pet. for Discr. Rev., Rushton Mining Co., Docket No. 

PENN 88-99-R, at 3. 

~/ The judge directed the parties to confer as to the amount of 

interest owed. The parties, however, could not agree as to whether 

interest was owed and they offered to submit briefs on the interest 

issues. The judge did not entertain the parties' offers to submit 

briefs but, instead, rendered his supplemental decision fixing the 

amount of the compensation award and interest in accordance with 

Arkansas-Carbona. Nacco argues that the judge erred in awarding 

interest without the benefit of the parties' memoranda of law on the 

subject. Although allowing the briefs may have been the preferred 

procedure, we see no error on the judge's part and note that Clinchfield 

resolves the substantive interest issues. 

1241 
for periods conunencing after December 31, 1986, use of the adjusted 

prime rate previously approved in Arkansas-Carbona. 10 FMSHRC at 1504-

06. Therefore, while we affirm the judge's awa~d of compensation and 

interest, we modify his order regarding the computation of interest by 

directing that interest be computed as provided in Clinchfield, and 54 

Fed. Reg. 2226, supra. 

For the foregoing reasons, we affirm the judge's grant of the 

complainants' motion for sununary decision and his award of compensation 

and prejudgment interest, but we modify the judge's order regarding 

computation of interest. 

Distribution 

Thomas C. Means, Esq. 

Timothy M. Biddle, Esq. 

Crowell & Moring 

1001 Pennsylvania Ave., N.W. 

Washington, D.C. 20004 

Mary Lu Jordan, Esq. 

UMWA 

900 15th St., N.W. 

Washington, D.C. 20005 

~~? /j' J // cz_~--L -e~--C'c~ L.!~/t't-~_ .. Richard V. Backley, Conunission~~ 

~~ t(, ~,,Lz__ oyce A. Doyle, Commissi<Sner 

a,VYVI~ James A. Lastowka, Conunissioner 

,'l-fL~ L. Clair Nelson, /i1~-"J Conunissioner 

Administrative Law Judge William Fauver 

Federal Mine Safety and Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Skyline 2 Center 

Falls Church, Virginia 22041 

1242 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

and 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

July 20, 1989 

UNITED MINE WORKERS OF AMERICA 

v. Docket No. WEVA 87-272 

BIRCHFIELD MINING COMPANY 

ORDER 

By order dated July 6, 1989, the Commission granted the Secretary 

of Labor and the United Mine Workers of America until July 14, 1989, 

within which to respond to the renewed motion to dismiss and offer of 

judgment of Birchfield Mining Company ("Birchfield") or to submit with 

Birchfield a joint motion for approval of settlement. On July 17, 1989, 

the Secretary's Joint Motion for Approval of Settlement was handdelivered to the Commission along with the Secretary's Motion for Leave 

to File Joint Motion One Day Out of Time. Upon consideration of the 

latter motion, it is granted and the Joint Motion for Approval of 

Settlement is accepted for filing this date. 

For the Commission: 

4::~~~ Commissioner 

1243 
Distribution 

Anthony J, Cicconi, Esq. 

Shaffer & Shaff er 

300 State Street 

P.O. Box 38 

Madison, West Virginia 25130-0038 

William D, Stover, Esq, 

MAE Services 

40 Eagles Road 

Beckley, West Virginia 25801 

Mary Lu Jordan, Esq, 

United Mine Workers of America 

900 15th Street, N.W. 

Washington, D.C. 20005 

Henry Chajet, Esq, 

Doyle & Savit 

919 18th Street, N,W. 

Suite 1000 

Washington, D,C, 20006 

Willam E, Hynan, Esq. 

National Coal Association 

1130 17th Street, N,W, 

Washington, D.C. 20036 

Michael T. Heenan, Esq, 

Smith, Heenan & Althen 

1110 Vermont Avenue, N,W. 

Suite 400 

Washington, D.C. 20005 

Edward M. Green, Esq. 

Mark G, Ellis, Esq. 

American Mining Congress 

1920 N Street, N.W., Suite 300 

Washington, D.C. 20036 

Dennis Clark 

U.S. Department of Labor 

Off ice of the Solicitor 

4015 Wilson Boulevard 

Arlington, VA 22203 

1244 
ADMINISTPATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

rJUL 7 1989 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

MICHAEL ALBERT SWINNEY, 

Complainant 

v. 

JAMES HAMILTON CONSTRUCTION, 

Respondent 

DISCRIMINATION PROCEEDING 

Docket No. WEST 89-172-DM 

MD 88-51 

Morenci Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Lasher 

The parties have reached an amicable resolution of this 

matter. The terms of the agreement are that Complainant, in 

return for the payment of $1,000.00, agrees to dismiss this 

matter. Complainant also waives civil penalties. 

In the premises, the settlement appears appropriate and 

is approved. Accordingly, if it has not previously done so, 

Respondent is ordered to pay Complainant the sum of $1,000.00 

in accord with the settlement agreement immediately upon receipt 

of this decision. It is further ordered that upon such payment 

these proceedings be deemed dismissed with prejudice with each 

party to bear his(its) own costs. 

Distribution: 

vf/!:!-<k·-/ ct: r:,~£.~.'Jl - Michael A. Lasher 

Administrative Law Judge 

Patricia Jeanne Howze, Esq., Office of the Solicitor, U.S. 

Department of Labor, 71 Stevenson Street, Suite 1020, P.O. 

Box 3495, San Francisco, CA 94119-3495 (Certified Mail) 

Mr. Michael Albert Swinney, P.O. Box 26391, TUcson, AZ 85706 

(Certified Mail) 

Jeffrey A. Dahl, Esq., Lamb, Metzgar & Lines, P.O. Box 987, 

Suite 3000, Third Central Plaza, 300 Central Avenue, s.w. 

Albuquerque, NM 87103 (Certified Mail) 

James Hamilton Construction, P.O. Box Drawer 1287, Silver City, 

NM 88602 (Certified Mail) 

1245 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

~JUL 111989 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

TONY CHANEY, Employed by 

MORTON SALT DIVISION/ 

MORTON THIOKOL INC., 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 89-56-M 

A.C. No. 16-00970-05614-A 

Morton Salt Weeks Island Mine 

DEFAULT DECISION 

Before: Judge Koutras 

Statement of the Case 

This proceeding concerns a proposal for assessment of civil 

penalty filed by the petitioner against the respondent Tony 

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

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

civil penalty assessment in the amount of $400, against the 

respondent for an alleged knowing violation of mandatory safety 

standard 30 C.F.R. § 57.9003, as noted in a section 104(d) (2) 

Order No. 2866484, issued on August 25, 1987, at the Weeks Island 

Mine operated by Morton Thiokol, Inc., in New Iberia, Iberia 

Parish, Louisiana. According to the proposal filed by the 

petitioner, the respondent was employed at this mine as a mine 

maintenance supervisor, and was acting in that capacity at the 

time the order in question was issued. 

The pleadings in this case reflect that copies of the 

petitioner's proposed civil penalty assessment were served on the 

.respondent by certified mail on March 16, and 24, 1989, and the 

return certified mailing receipt from the U.S. postal service 

reflects that the respondent received the proposed civil penalty 

assessment notification on March 27, 1989. However, the 

respondent failed to file an answer to the civil penalty 

assessment proposal as required by Commission Rule 28, 29 C.F.R. 

§ 2700.28. 

In view of Mr. Chaney's failure to file an answer, I issued 

an Order to Show Cause on May 22, 1989, directing him to explain 

why he should not be held in default and immediately ordered to 

pay the proposed civil penalty assessment for his failure to file 

an answer to the civil penalty assessment proposal filed against 

1246 
him by the petitioner. The order further directed Mr. Chaney to 

respond within ten (10) days. The return certified mailing 

receipt from the U.S. Postal Service reflects that Mr. Chaney 

received my order on May 24, 1989. However, as of this date, he 

has not responded. 

Discussion 

The applicable Commission Rules in this case provide as 

follows: 

29 C.F.R. § ·2700.28 

§ 2700.28 Answer. 

A party against whom a penalty is sought shall 

file and serve an answer within 30 days after service 

of a copy of the proposal on the party. An answer 

shall include a short and plain statement of the 

reasons why each of the violations cited in the 

proposal is contested, including a statement as to 

whether a violation occurred and whether a hearing is 

requested. 

29 C.F.R. § 2700.63 

§ 2700.63 Summary disposition of proceedings. 

(a) Generally. When a party fails to comply with 

an order of a judge or these rules, an order to show 

cause shall be directed to the party before the entry 

of any order of default or dismissal. 

(b) Penalty proceedings. When the judge finds 

the respondent in default in a civil penalty 

proceeding, the judge shall also enter a summary order 

assessing the proposed penalties as final, and 

directing that such penalties be paid. 

The record in this case establishes that the respondent was 

served with copies of the petitioner's proposal for assessment of 

civil penalty for the alleged violation in question and that he 

has failed to file a timely answer. In addition, he has failed 

to avail himself of an opportunity to explain why he did not file 

a timely answer, and he was advised of the consequences of his 

failure to do so. He has also failed to respond to my show cause 

order where he was specifically advised that his failure to 

respond and file an answer would place him in default. Under the 

circumstances, I conclude and find that the respondent Tony 

Chaney is in default and has waived his right to be further heard 

in this matter. I see no reason why the petitioner's proposed 

civil penalty assessment of $400 should not be affirmed and a 

1247 
final order entered assessing this penalty against Mr. Chaney as 

the final order of the Commission. 

ORDER 

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

judgment by default is herewith entered in favor of the 

petitioner, and the respondent Tony Chaney IS ORDERED to 

immediately pay to MSHA the sum of $400, as the final civil 

penalty assessment for the violations in question. 

Distribution: 

A. tff 1--~ , t1,t;.:.,,~,;t.-- q·ez>rge f.- Koutras 

~Administrative Law Judge 

J. Philip Smith, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

(Certified Mail) 

Mr. Tony Chaney, 4121 Hill Top, Brunswick, OH 44212 

(Certified Mail) 

1248 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

· 2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041. 

JUL 111989 

SECRE:'rARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SOUTHERN OHIO COAL COMPANY, 

Respondent 

. . 

DECISION 

Docket No. WEVA 88-313 

A~C. No. 46-03805-03863 

Martinka No. 1 Mine 

Appearances: Covette Rooney, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania, for Petitioner; 

David M. Cohen, Esq., American Electric Power 

Service Corporation, Lancaster, Ohio, for 

Respondent. 

Before: Judge Maurer 

This case is 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 

seq., the "Act," for alleged violations of regulatory standards. 

The general issues before me are whether the Southern Ohio 

Coal Company (SOCCO) has violated the cited regulatory standards 

and, if so, what is the appropriate civil penalty to be assessed 

in accordance with section llOCi> of the Act. Additional issues 

are also addressed in this decision as they relate to specific 

citations or orders. 

The case was heard in Morgantown, West Virginia on 

February 2, 1989. Both parties have filed post-hearing proposed 

findings of fact and conclusions of law which I have considered 

along with the entire record in making this decision. 

Prior to the hearing, petitioner filed a motion for partial 

decision and order approving settlement that would dispose of 

four out of the five citations/orders involved in this docket. A 

reduction in penalty from $4,050 to $3350 is proposed for those 

four only. I have considered the representations and 

documentation submitted by motion in this case, and have 

concluded that the proffered settlement is appropriate under the 

statutory criteria set Earth in section llOCi) of the Act. 1 so 

1249 
approved the petitioner's motion from the bench at the hearing. 

Pursuant to the Rules of Practice before this Commission, this 

written decision confirms the bench decision I rendered at the 

hearing, approving the partial settlement of this case. 

The aforementioned partial settlement did not include Order 

No. 2895785, which alleges a violation of 30 C.F.R. § 75.220 and 

proposes a civil penalty of $500. That alleged violation and 

"unwarrantable failure" special finding were tried before me at 

the hearing on February 2, 1989. 

STIPULATIONS 

The parties stipulated to the following (Tr. 7-9): 

1. The Martinka Number 1 Mine is owned and 

operated by Respondent, Southern Ohio Coal 

Company. 

2. The Martinka Number 1 Mine is subject to the 

jurisdiction of the Federal Mine Safety and 

Health Act of 1977. 

3. The Administrative Law Judge has jurisdiction 

over these proceedings. 

4. The subject order was properly served by a duly 

authorized representative of the Secretary of 

Labor upon an agent of the Respondent at the 

date, time and place stated therein and may be 

admitted into evidence for the purpose of establishing its issuance, but not for the truthfulness or relevance of any statements asserted 

therein. 

5. The assessment of a civil penalty in this 

proceeding will not affect the Respondent's 

ability to continue in business. 

6. The appropriateness of the penalty, if any, 

to the size of the coal operator's business 

should be based upon the fact that the 

Respondent's mine size is large and the 

Respondent's company size is large. 

7. Martinka Number 1 Mine's history of 

violations was 946 violations over 1062 

1250 
inspection days at the time the instant order 

was issued. 

8. The parties stipulate to the authenticity of 

their exhibits but not to their relevance nor 

the truth of the matters asserted therein. 

9. The parties stipulate that the violation 

existed as described in Order ~umber 2895785, 

which is the subject of this hearing. 

10. The part and section of Federal Regulations, 

which was violated, is 30 C.F.R, Section 

75.220, as opposed to 75.200, which was 

originally cited. This modification was 

issued by MSHA.on 1/31/89. 

11. With reference to the gravity of the instant 

violation, the parties stipulate that the 

gravity as indicated within the order was --

the injury or illness was unlikely but the 

injury or illness, which might have occurred 

anyway as a result of this violation, was no 

lost work days. The parties also stipulate 

that the violation was not significant and 

substantial in nature. 

Order No. 2895785, issued pursuant to section 104{d) (2) of 

the Act alleges a violation of the regulatory standard at 

30 C.F.R. § 75.220 and charges as follows: 

The following unused intersections along the mainline 

haulage are not timbered or posted along the rib lines 

according to the approved roof control plan no. 26 page 

14 of the safety precautions to be taken. The 

intersections are No. 169 and 168 outby the 17 left 

track switch and 2 cribs at station ~o. 18906 are 

incomplete on the walkway side in that they are from 4" 

to 10" away from the mine roof and examination date on 

one of the crib ties is 12/22/87 initial SW 1:55 p.m. 

MSHA Inspector Frank Bowers issued the instant order during 

a regular inspection of the Martinka Wo. 1 Mine on April 14, 

1988. 

At that time, the roof control plan required that "[a]long 

mainline track, all unused intersections ••• be timbered or 

posted along rib lines". Subsequent to the issuance of the order 

herein the requirement for additional support along the mainline 

1251 
haulage was deleted from the roof control plan as no longer being 

necessary. 

The inspector testified that the roof was good in these 

areas and that the violative conditions he cited were not likely 

to result in injury. However, he had spotted what perhaps could 

be characterized as "technical" violations of the roof control 

plan and he was not getting the kind of cooperation and 

corrective acti6n he thought appropriate from mine management. 

He testified that he first brought the subject to the attention 

of mine foreman Metz on January 11, 1988, when he cited the 

operator for several loose cribs between the 15 and 17 Left 

sections along the North Main's haulage. He also specifically 

mentioned the missing cribs at intersection No. 168 and 169 to 

Metz at that time, as well as the incomplete cribs at station 

No. 18906. In fairness to Metz, however, the inspector did not 

tell him of those exact locations, but only the general area 

involved. Mr. Metz recalls their conversation as well, but only 

in general. Mr. Pastorial, who is Chairman of the UMWA Health 

and Safety Committee, was accompanying Inspector Bowers on 

January 11, 1988, and he also recalls Bowers' conversation with 

Metz. He testified that Metz assured them (he and Bowers) that 

these conditions would be taken care of. Metz, however, was 

apparently unsure of exactly what conditions the inspector was 

ref erring to. 

Inspector Bowers was next back in the North Main's section 

on March 9, 1988. This time he was making a respirable dust 

inspection and Peggy Kaham of the operator's Safety Oepartment 

was with him. Once again, he spotted the missing supports -- the 

same ones he had told Metz about or at least thought he had. He 

states he told Ms. Kaham to have those supports installed. She 

recalls no such conversation nor do her notes for that date 

mention that any crib work was necessary. She maintains that if 

he would have told her that such work was necessary, she would 

have put it in her notes. 

The inspector was next on the North Main's haulage on 

April 6, 1988. At that time, he told Wes Hough, the mine 

superintendent, about the same area outby 17 Left. He informed 

Mr. Hough that there were six crosscuts which had no cribbing and 

that there were also two incomplete cribs. He states that 

Mr. Hough indicated that these conditions would be taken of. The 

inspector also reiterated that these conditions were readily 

observable from the mantrip. However, similarly to the 

conversation the inspector had with Metz, he did not tell 

Mr. Hough the particular intersection numbers in which crosscuts 

had not been timbered or the station number in which the two 

cribs did not go all the way to the roof. 

1252 
When the inspector returned again on April 14, 1988, four of 

the six crosscuts had been cribbed but two still had not. 

Additionally, there were still the two incomplete or loose cribs 

he had previously alluded to in his discussions with management. 

He issued the admitted violation as an unwarrantable order 

because he felt he had brought this matter to the attention of 

management in January and now it was April and still the 

condition had not been completely corrected. 

The problem here as I see it is one of perception and 

communication. The inspector knew exactly which particular 

crosscuts and cribs he was speaking to mine management about and . 

he wanted to see those specific cribs installed or tightened, as 

the case may be. However, when he spoke to management 

personnel, he spoke only in very general terms about the location 

of the missing and incomplete cribs he was concerned about. 

Meantime, management knew there were loose cribs and new cribs to 

be installed all over the mine for which they had an ongoing 

program that would tighten and install cribs over a 3-4 month 

period. No special urgency was assumed by management to attach 

to the specific cribbing needs spotted by the inspector. 

Management could have interrogated the inspector more closely on 

exactly which cribs he was talking about or the inspector could 

have volunteered the exact locations he wanted to see properly 

cribbed immediately. However, as a matter of fact, neither did 

much of anything with regard to specifics. 

The inspector did not cite the operator when he observed 

these admittedly violative conditions on January 11, 1988, 

March 9, 1988, or April 6, 1988, relying instead on general 

statements to the effect that they (management) would take care 

of it. Here again, the operator was speaking of the general 

winter program of tightening and installing cribs all over the 

mine, but he understood it to be a pledge that they would 

forthwith install and/or adjust "his" cribs. He understood this 

to be the case in spite of the fact that he had never identified 

to anyone with any ascertainable degree of specificity exactly 

which cribs were "his". There was testimony that there are some 

1400 cribs existant in this mine along the main haulageway and 

perhaps 100 crosscuts in the area of the North Mains described by 

the inspector. 

I should point out here the obvious fact that it is the duty 

of the operator to locate and correct violations of their roof 

control plan on their own. They cannot rely on the inspectors to 

ferret out all their loose and missing cribs and report the 

locations to them. In this case, however, I am satisfied that 

the operator had an ongoing, even if somewhat sporadic program, 

of locating cribbing problems and correcting them throughout the 

mine in an organized fashion. 

1253 
Everyone agrees the roof in the North Main's area was good 

and bolted according to the roof control plan. The cited 

conditions created no hazard and was a non-significant and 

substantial violation of the roof control plan. This was another 

reason mine management attached no particular urgency to the 

inspector's information that he had found some cribbing work that 

needed to be done in this area. In fact, poorer roof conditions 

were more likely to be found in the older portions of the mine 

and thus those areas were scheduled for earlier attention. The 

last area of the mine to be done was the 17 Left section because 

this was the newest area of the mine and the roof was known to be 

good. 

In Emery Mining Corp., 9 FMSHRC 1997 (1987), the Commission 

held that unwarrantable failure means aggravated conduct, 

constituting more than ordinary negligence, by a mine operator in 

relation to a violation of the Act. 

While I find that the violation was obvious, and readily 

observable from the main line haulage track that was frequently 

traveled by management personnel, I do not find the operator's 

conduct to be unwarrantable in this instance. 

Nor do I find the inspector's three conversations with mine 

management personnel generally concerning missing and incomplete 

cribs particularly helpful to anyone. Management was already 

generally knowledgeable about the cribbing problem along the 

mainline haulageway and was taking steps to correct the problem. 

Finally, at the time of the inspector's earlier visits in 

January, March and on April 6, I don't sense any urgency or 

serious concern conveyed by the inspector to the operator that 

would have reasonably led them to believe that immediate 

attention was required in the subsequently cited area. 

For all the foregoing reasons, I find the operator to be 

guilty of only ordinary negligence with regard to the instant 

violation. Accordingly, the section 104(d)(2) order at bar will 

be modified herein to a citation issued pursuant to section 

104(a) of the Act and affirmed as such. 

Considering the statutory criteria contained in 

section llO(i) of the Act, I find that a civil penalty of $250 is 

warranted in these circumstances for this violation. 

1254 
ORDER 

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

and on the motion to approve settlement, IT IS ORDERED THAT: 

1. Order No. 2895764 IS AFFIRi.~ED and a civil penalty 

of $700 assessed. 

2. Order No. 2895768 IS AFFIRMED and a civil penalty of 

$500 assessed. 

3. Order No. 2895770 IS AFFIRMED and a civil penalty of 

$950 assessed. 

4. Order No. 2895789 IS AFFIRMED and a civil penalty of 

$1200 assessed. 

5. Order No. 2895785 is modified to a Section 104(a) 

citation and a civil penalty of $250 assessed. 

6. The Southern Ohio Coal Company pay civil penalties of 

$3600 within 30 days of the date of this decision. 

Ro urer 

JM~ Adm ative Law Judge 

Distribution: 

Covette Rooney, Esq., Office of the Solicitor, U.S. 

Department of Labor, 3535 Market St., Philadelphia, 

PA 19104 (Certified Mail) 

David~. Cohen, Esq., American Electric Power Service Corp., 

Fuel Supply Department, P.O. Box 700, Lancaster, OH 

43130-0700 (Certified Mail) 

/ml 

1255 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 121989 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

Docket No. WEVA 88-328 

A.c. No. 46-06686-03590 

v. 

SMOOT COAL COMPANY, 

Respondent 

Docket No. WEVA 88-329 

A.C. No. 46-06686-03591 

Appearances: 

Before: 

Smoot Mine 

DECISIONS 

Mark Malecki, Esq., Office of the Solicitor, U.S. 

Department of Labor, Arlington, Virginia, for the 

Petitioner; 

Mike Carpenter, Mining Engineer, Fork Lick Coal 

Processors, Webster Springs, West Virginia, for 

the Respondent. 

Judge Koutras 

Statement of the Proceedings 

These proceedings concern proposals for assessment of civil 

penalties filed by the petitioner against the respondent pursuant 

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

1977, 30 U.S.C. § 820(a), seeking civil penalty assessments for 

eleven alleged violations of certain mandatory safety standards 

found in Part 75, Title 30, Code of Federal Regulations. The 

respondent filed timely answers and requested a hearing. A 

hearing was conducted in Charleston West Virginia, and the 

parties waived the filing of any posthearing briefs. However, I 

have considered all of the arguments made by the parties in their 

pleadings, including their oral arguments on the record during 

the hearing in my adjudication of these cases. 

Issues 

The issues presented in these proceedings are (1) whether 

the conditions or practices cited by the inspector constitute 

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

appropriate civil penalties to be assessed for the violations, 

taking into account the statutory civil penalty criteria found in 

1256 
section llO(i) of the Act; and (3) whether the violations were 

"significant and substantial." Additional issues include the 

inspector's "unwarrantable failure" findings with respect to one 

contested section 104(d) (2) order. 

App~icable Statutory and Regulatory Provisions 

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

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

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

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

Stipulations 

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

1. The respondent is subject to the Act. 

2. The respondent agrees that the conditions 

or practices cited by the inspector in the contested 

citations and order are true, and the respondent 

does not dispute the fact that the violations occurred· 

as stated therein. 

3. The issues presented in these proceedings 

concern the inspector's negligence and gravity 

findings. 

Discussion 

Docket No. WEVA 88-328, concerns six section 104(a) 

citations, with special "S&S" findings, and one section 104(d) (2) 

order, with special "S&S" and "unwarrantable failure" findings, 

and they are as follows (exhibits P-1 through P-12): 

Section 104(a) S&S Citation No. 2724242, April 6, 1988, 

cites a violation of 30 C.F.R. § 75.403, and the condition or 

practice states as follows: 

Based on the results of a rock dust survey taken on 

3-3-88 in the 3rd right entries 004-0, beginning inby 

for approximately 1,000 feet, in the No. 1 thru 6 

entries, the laboratory analysis showed that 19 of the 

40 samples collected were less than the required 

incombustible contest. 

_Section 104(d) (2) S&S Order No. 2724637, May 17, 1988, cites 

a violation of 30 C.F.R. § 75.1722(b), and the condition or 

practice states as follows: 

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The guards that were provided for both sides of the 

head roller on the mains (005-0) section belt conveyor 

#10, were not installed and maintained and did not 

extend a distant sufficient to prevent a person from 

reaching behind the guard and becoming caught between 

the belt and the pulley. You could easily reach ihto 

the pinch point between the belt and the head roller on 

both sides. 

Section l04(a) S&S Citation No. 2727872, June 6, 1988, cites 

a violation of 30 C.F.R. § 75.316, and the condition or practice 

states as follows: 

The approved ventilation plan was not being followed on 

the 3rd right (004-0) section, three permanent 

stoppings on the intake and three stoppings on the 

return side of the section belt conveyor, were not 

constructed so as to prevent and minimize leakage and 

loss of air in that the stoppings were not plastered, 

and large openings permitting excessive leakage were 

present and also one stopping on the intake side was 

crushed to the extent that it was not solid and 

substantial. 

Section 104(a) S&S Citation No. 2727873, June 8, 1988, cites 

a violation of 30 C.F.R. § 75.517, and the condition or practice 

states as follows: 

The high voltage 12,400 volts alternating current, 

transmission cable providing power for the mains 

(005-0) section contained one location (splice) where 

the outer insulation was damaged for approximately 

24 inches. This splice was located in the neutral 

entry just outby the section. Ground wire and metallic 

shields were exposed. 

Section 104(a) S&S Citation No. 2727874, June 18, 1988, 

cites a violation of 30 C.F.R. § 75.2ll(c), and the condition or 

practice states as follows: 

Two overhanging coal ribs (corners), ranging up to 

48 inches in length, 18 inches thick, and undercut 

30 inches (sloughing), were present on the mains 

(005-0) section. The mining height in this area is 48 

to 50 inches. The area is traveled by mobile equipment 

and persons on foot. 

Section 104(a) S&S Citation No. 2727875, June 8, 1988, cites 

a violation of 30 C.F.R. § 75.503, and the condition or practice 

states as follows: 
The continuous-mining machine SN 7725, approval 

2G-3182A, used in the face areas of the mains (005-0) 

section was not maintained in permissible condition in 

that one bolt was missing from the plane flange joint 

of one head light lens in front of the operator's deck. 

Methane detection ranges from 0.2 to 0.3 percent in 

these faces at any given time. 

Section 104(a) S&S Citation No. 2727876, June 8, 1988, cites 

a violation of 30 C.F.R. § 75.1704-2(e), and the condition or 

practice states as follows: 

The practice escapeway drills and fire drills at this 

mine did not ensure that each miner travel the 

escapeways through the working sections up to the main 

escapeway at least once every 90 days and that at least 

two miner's including the supervisors travel through 

the main escapeways up to the portal at least once 

every six weeks, on all shifts. 

Docket No. WEVA 88-329, concerns four section 104(a) 

citations, with special "S&S" findings, and they are as follows 

(exhibits P-13 through P-20): 

Section 104(a) S&S Citation No. 2127863, May 24, 1988, cites 

a violation of 30 C.F.R. § 75.1722(b), and the condition or 

practice states as follows: 

The guard provided for the tail pulley of the No. 3 

belt conveyor was loose and open away from the frame 

and the belt roller could easily be contacted by 

persons. 

Section 104(a) S&S Citation No. 2727864, May 24, 1988, cites 

a violation of 30 C.F.R. § 75.400, and the condition or practice 

states as follows: 

Quantities of loose coal wet to damp to dry was 

accumulated under the No. 1 belt conveyor on the (off) 

side at several locations, this material ranged up to 

6 ft. in length, 12 inches in depth and 18 inches in 

width and was accumulated up around the bottom idler 

rollers and against the bottom belt at several 

locations. 

Section 104(a) S&S Citation No. 2727869, May 27, 1988, cites 

a violation of 30 C.F.R. § 75.2ll(c), and the condition or 

practice states as follows: 

Loose broken, (broken between roof bolts) (area showing 

signs of pressure) mine roof was present outby the 3rd 

right (004-0) pillar section, in the No. 6 intake entry 

1259 
one crosscut inby survey station 2128 for one crosscut 

and also one crosscut to the left of this survey 

station. Roof bolts were the sole means of roof 

support in these two areas. 

Section 104(a) S&S citation No. 2727870, June 6, 1988, citesa violation of 30 C.F.R. § 75.400, and the condition or practice 

states as follows: 

Quantities of loose coal, ranging 36 inches wide, up to 

18 inches in depth and 25 feet in length was 

accumulated under the 3rd right section (004-0) belt 

conveyor drive. 

Petitioner's Testimony and Evidence 

MSHA Inspector John Dotson testified as to his background 

and experience, and he confirmed that he issued all of the 

violations which are the subject of these proceedings in the 

course of his inspections at the mine. He also testified with 

respect to his special "S&S" findings, the gravity of the 

violations, his unwarrantable failure order, and the respondent's 

negligence in connection with each of the violations (Tr. 8-115). 

Respondent's Testimony and Evidence 

Although the respondent's representative cross-examined the 

inspector who issued the violations, and presented oral arguments 

on the record during the course of the hearing, he presented no 

independent sworn testimony or other evidence with respect to any 

of the contested violations in issue in these proceedings. 

Findings and Conclusions 

Inspector Dotson's testimony, which I find reliable and 

probative, establishes that all of the conditions and practices 

which he observed at the time of his inspections, and which 

prompted him to issue the citations and order, clearly support 

violations of the cited mandatory safety and health standards. 

Further, the respondent agreed and stipulated that all of the 

conditions and practices cited by the inspector did in fact 

constitute violations of the cited standards, and it offered no 

testimony or evidence to rebut the inspector's findings. 

Accordingly, I conclude and find that all of the violations have 

established by a preponderance of the credible and probative 

evidence adduced in these proceedings, and they are all 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 

1260 
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., 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., 6 FMSHRC 

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

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

The question of whether any particular violation is 

significant and substantial must be based on the particular facts 

surrounding the violation, including the nature of the mine 

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

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

(December 1987). 

Citation No. 2724242 

Inspector Dotson stated that rock dust samples were taken on 

March 3, 1988, and that the laboratory test results reflected 

that 19 of the 40 samples collected contained less than the 

1261 
required incombustible content. He confirmed that he based his 

S&S finding on the fact that the mine has a problem with rib 

sloughing which causes an accumulation of combustible coal on the 

mine floor, particularly in the area at the third right entrance 

which liberates a considerable amount of methane. He stated that 

on the day the rock dust samples were taken, air samples 

indicated that the mine liberated in excess of one million cubic 

feet of methane in a 24-hour period, and he produced copies of 

the air samples reflecting the amounts of methane accumulated 

from the No. 4 entry along the belt line, belt drive, main return 

inby the fan, and the right side of the No. 3 entry. He believed 

that the amounts of methane detected in these areas presented a 

possible ignition and explosion hazard, and that the areas 

contained electrical ignition sources such as energized cables 

and belt drives. In view of the fact that mining machines, roofbolting machines, and shuttle cars operated in these areas while 

coal was being mined, any electrical faults or machine sparks 

would provide ignition sources, and in the event of an explosion 

or ignition in the areas of insufficient rock dusting, the face 

areas would be affected, and these conditions would contribute to 

the severity of any ignition (Tr. 11-17). 

Mr. Dotson confirmed that seven to nine miners working in 

the section would be exposed to a hazard, and in the event of an 

ignition, they would be exposed to disabling and possible fatal 

injuries resulting from burns, low oxygen, and bad air (Tr. 17). 

Since the mine liberated excessive methane, an MSHA inspector is 

required to check it every 10 days, and he confirmed that MSHA 

closed the mine in 1988 because of excessive methane buildup on 

two sections (Tr. 22). 

Mr. Dotson confirmed that he found no methane in any 

explosive ranges on the day of his inspection, and that he was 

not aware of any methane ignitions at the mine (Tr. 20) . He 

confirmed that the air ventilation was approximately 34,000 cubic 

feet per minute (Tr. 19). He also confirmed that methane could 

rapidly accumulate in the working section due to interruptions of 

ventilation in the face area caused by torn ventilation curtains, 

or curtains which are not up and torn down, and damaged stoppings 

resulting in the short circuiting of the air. He confirmed that 

such conditions had occurred at the mine where ventilation line 

curtains are continuously moved as the equipment moved through 

them, and concrete stoppings have crushed out due to pressures 

(Tr. 21-22). 

The respondent asserted that the violation is not S&S 

because there have been no known ignitions in the mine, and the 

amount of liberated methane was .2, or two-tenths of one percent, 

which is well below the explosive range of 5 percent (Tr. 20). 

The respondent also asserted that the inspector confirmed that he 

found no interruptions to the ventilation on the day of his 

inspection, that the closure of the mine earlier in the year had 

1262 
nothing to do with the cited conditions, and that the amount of 

available air ventilation on the day in question was more than 

adequate to dispel any accumulations of methane (Tr. 23-25). 

Order No. 2724637 

Inspector Dotson stated that he based his S&S finding on the 

fact that the mining height in the area where he found inadequate 

guarding on both sides the belt head roller was 60 inches, and 

the guards were "hanging there and loose." He believed that the 

guards were in such condition that anyone could reach into the 

pinch point and get caught between the head roller and conveyor, 

and that in the event anyone were to stumble, they would come in 

contact with the pinch point. He confirmed that belt cleaners, 

greasers, belt shift examiners, and electricians travelled the 

belt, and they would be exposed to the hazard and disabling 

injuries of a reasonably serious nature (Tr. 25-27). 

Mr. Dotson confirmed that guards were installed, but were 

partially bolted to the belt structure and "were hanging loose 

away from the head." They were not secured, and even if they 

were, he believed that were not of sufficient size to prevent 

anyone from contacting the exposed pinch point, and that this is 

contrary to the intent of the cited standard (Tr. 33-34). 

Mr. Dotson described the height of the belt as "chest high," and 

in view of the height of the mine, anyone walking by the area 

would be bent over, and if he were to stumble, he could easily 

come in contact with the pinch points which were totally exposed 

(Tr. 26-37). 

Citation No. 2727872 

Inspector Dotson confirmed that he considered the 

ventilation violation to be S&S because the cited stoppings were 

crushed "to the extent that it had a large opening near the top," 

and "it was possible for it to collapse at any time." Three 

other cited stoppings had holes in them caused by the lack of 

mortar or sealing materials which resulted from installing them 

"dry" without the use of sealing materials to prevent ventilation 

leakage. The stoppings on the intake side were installed to 

maintain air separation for the belt conveyor and intake air, and 

the return stoppings were installed to separate the return air 

entries from the belt. In the event of a belt fire, smoke could 

find its way through the openings in the stoppings into the 

intake air which is used as the intake escapeway out of the mine. 

The conditions of the stoppings could also contribute to a loss 

of air at the face area. Although the required amount of air was 

present, persons in the belt conveyor area would be exposed to 

smoke inhalation in the event of a belt fire, and if the 

stoppings had crushed out, the intake air would have short 

circuited into the return. If this had occurred, ventilation 

1263 
would be interrupted, and a possible buildup of methane would 

result (Tr. 40-43). 

On cross-examination, Mr. Dotson confirmed that at the time 

of the inspection coal was being run, and although ventilation 

leakage may be common, he stated that such leakage is a problem 

in the mine in question because of past ventilation problems. He 

confirmed that no such problems were present on the day of his 

inspection and that he found no buildup of methane (Tr. 48). 

Resondent asserted that the S&S finding is not justified 

because the inspector made a finding of "moderate negligence," 

found no excessive levels of methane, and the ventilation was 

adequate (Tr. 48-49). 

Citation No. 2727873 

Mr. Dotson confirmed that he based his S&S finding on the 

fact that the cited 12,400 volt current transmission cable had 

sustained damage to its outer insulation for a distance of 

approximately 24 inches, and the interior ground wire, monitor 

wire, and metallic shields were exposed. Any moisture in the 

area would contribute to the deterioration of the metallic shield 

conductor, and could effect the cable safeguard short circuit 

protection. Mr. Dotson confirmed that the area was travelled by 

mine examiners and other miners, and although he observed no 

miners in the area at the time of his inspection, the mantrip 

travelled through the area, and mine sampling and supply 

personnel would have occasion to travel the area where the cable 

was located. If anyone were to come in contact with the cable, 

Mr. Dotson believed that electrocution would result (Tr. 51-53). 

On cross-examination, Mr. Dotson confirmed that the cable 

was hung and laying to the side of the travelway, and was not on 

the mine floor. It was not located at a designated "crossunder," and the outer mechanical splice had been damaged 

"completely into the inner conductors," and he believed it had 

been damaged when it was moved up and reconnected (Tr. 54, 58). 

He conceded that a mantrip would not likely run over the cable, 

unless it were struck and knocked down to the floor, and that it 

was not possible that the mantrip would have run over it the way 

it was installed on the day of his inspection (Tr. 55). He 

believed that it was possible for someone sitting in the mantrip 

to contact the cable, but only if the mantrip had gotten close 

enough to it, but conceded that this would not occur if the 

mantrip stayed on its normal route and the individual was seated 

at his normal position in the mantrip (Tr. 56-57). 

Citation No. 2727874 

Mr. Dotson confirmed that he considered the overhanging coal 

rib conditions to be S&S because they were located on an active 

1264 
section where the coal height was 48 to 50 inches, and seven to 

nine miners travelled the area during the course of a shift 

either by walking bent over, crawling, or on mobile equipment. 

In the event of a rib roll, they could strike these individuals 

and cause injury. The ribs are normally cut down by the miner or 

pushed and pryed down with bars. The ribs were heavy enough to 

break a bone if they were to fall on anyone (Tr. 59-60). 

Mr. Dotson identified copies of two MSHA accident reports 

concerning coal rib rolls which had occurred in the working face 

area of the mine, and he conceded that the cited ribs in question 

were not directly in any face area. The prior accidents resulted 

in facial lacerations, and a possible concussion or facial · 

fractures sustained by one miner, and back injuries to another 

miner (Tr. 61). Mr. Dotson also stated that the mine has "a 

sloughing of ribs problem" (Tr. 63). 

The respondent pointed out that the prior rib roll accidents 

occurred on sections other than those where the citation in 

question was issued, that the mining height in these areas was 6 

to 7 feet where there is a more frequent opportunity for ribs to 

roll if the coal had just been cut, and that under the approved 

mine roof-control plan, roof bolts are not required in areas 

where the mine height is less than 6 feet, because "in the lower 

heights it doesn't slough as bad" (Tr. 66). The respondent also 

pointed out that the accident which occurred on November 18, 

1987, involved a roof bolter who was struck by a rib while 

installi~g roof bolts in higher coal, and that in the cited area 

where the height was 48 to 50 inches, "we very rarely have rib 

problems in that height because the coal is strong up there where 

it doesn't slough as bad." Since MSHA does not require bolting 

or "rib boards" in heights under 6 feet, respondent suggested 

that MSHA agreed that there are little problems in areas under 

6 feet in height (Tr. 67). 

Citation No. 2727875 

Inspector Dotson stated that he based his S&S finding with 

respect to the cited continuous miner permissibility violation on 

the fact that the failure to maintain the machine in a 

permissible condition while it is operating at the coal face 

could contribute to a possible face ignition while the machine is 

in operation. He further stated that the permissibility 

requirement for this equipment is to prevent the entrance of 

methane into the enclosure of the permissible machine component, 

and that the machine operator and any helper present while the 

machine is being operated would be exposed to a hazard (Tr. 

68-69) . 

Mr. Dotson explained that one of the four bolts on the 

machine headlight was missing, and with the "shaking, jamming, 

and tramming" of the machine, the missing bolt could contribute 

1265 
to the weakening deterioration of the flame path joint, and in 

the event of any interruption of the ventilation at the face in 

the presence of an explosive mixture of methane, a spark from the 

head light connector could ignite the methane (Tr. 70). The 

function of the flange joint "is to kill the flame before it gets 

to the outside atmosphere," and he conceded that he found no 

''opening" in this instance (Tr. 72). He explained further that 

the bolts serve to hold the plane flange joint together where the 

head light is secured to the machine, and that the purpose of the 

plane flange joint is to prevent an ignition should methane get 

inside the permissible light component (Tr. 75). 

Mr. Dotson confirmed that 5,000 cubic feet of air per minute 

is required to be maintained at the end of the ventilation line 

curtain where the miner machine and roof bolter are working, and 

at any given time, with this amount of air, .2 to .5 percent 

methane will be present (Tr. 69). He confirmed that he had no 

knowledge of any prior mine face ignitions, and that on the day 

of his inspection he found .2 to .5 percent methane present in 

the area where the machine was working. This is not an explosive 

mixture, and the air ventilation was adequate (Tr. 71). He 

confirmed that an explosion or ignition hazard would be present 

if the flange joint had shaken loose, a spark had occurred, and 

the right amount of methane and/or coal dust were present to 

cause an ignition (Tr. 72). 

The respondent did not deny that the bolt was missing, but 

argued that "several things had to be happen before we could have 

an ignition," and that given the fact that there was adequate 

air, no explosive mixtures of methane present, and the absence of 

any opening or loosening of the flange joint to allow any methane 

to find its way into the component, the respondent did not 

believe that the violations was S&S (Tr. 72-73). 

Citation No. 2727876 

Inspector Dotson stated that he issued the citation after 

finding no record that the required escapeway drills were being 

conducted, and the admissions by mine management and some of the 

miners that the drills were not conducted. He based his S&S 

finding on the fact that the mine is approximately three and 

one-half miles deep, has two working sections operating on two, 

and sometimes three shifts, and is a hazardous mine because of 

its high methane levels. Escapeway drills are necessary to 

familiarize all miners on the working shifts with the mine 

escapeways, and a foreman cannot be relied on to show the miners 

the way out of the mine in an emergency because he may one of the 

injured persons (Tr. 77-79). 

On cross-examination, Mr. Dotson stated that there is no 

requirement for recording the fact that the required drills were 

made (Tr. 84). He confirmed that his review of the mine records 

1266 
established that the required fire boss examinations were being 

conducted on the escapeways, and that escapeway maps were posted 

on each of the working sections. He also confirmed that the 

respondent conducts safety meetings at the mine, but he has never 

attended any (Tr. 80-82). 

Mr. Dotson stated that escapeway drills are necessary in 

order to that newly hired miners, or miners shifted from one 

section to another, know of the escapeways, and to insure that at 

least one person bn each shift, other than a supervisor, knows 

how to exit the mine in the event of an emergency. Mr. Dotson 

confirmed that if each of the miners knew the escapeway routes, 

he would not consider the violation to be S&S (Tr. 82). He 

believed that in the event of a methane ignition, every person in 

the mine would be affected, and depending on the work shift, at 

least 30 miners would be exposed to hazards, including 

entrapment, a possible mine fire, and smoke inhalation (Tr. 87). 

Citation No. 2127863 

Mr. Dotson stated that he considered the failure to 

adequately guard the No. 3 belt conveyor tail pulley to be an S&S 

violation because the existing guard had been pulled away from 

the frame, leaving an unguarded opening of approximately 8 by 

12 inches through which someone could easily reach and contact 

the moving tail pulley. In addition, given the fact that the 

belt tail piece is located at a place where the mine bottom dips 

and a step was cut with a continuous miner, he believed that a 

person could easily stumble while stepping down into the area and 

come in contact with the moving belt. He confirmed that belt 

examiners and cleaners travel the area, and if they came into 

contact with the moving belt they could sustain permanent 

disabling injuries. Mr. Dotson confirmed that the belt is 

normally shut down when any cleaning is done (Tr. 88-92). 

Citation No. 2727864 

Mr. Dotson stated that he considered the cited loose coal 

accumulations located at the "off side" of the number 1 belt 

conveyor to be S&S because they were packed around and against 

the bottom of the belt and roller, and if these conditions were 

allowed to continue the roller would have frozen and resulted in 

the heating of the rollers due to the friction of the belt 

rolling across them. He believed that this condition could have 

contributed to a mine fire exposing a belt examiner or belt 

cleaner who is the area on a regular basis to a smoke inhalation 

hazard (Tr. 93-95). 

Mr. Dotson confirmed that the accumulations were not noted 

in the belt examiner's book, but based on the appearance of the 

coal packed around the roller and belt, he believed the 

conditions had existed for "over a period of several shifts" (Tr. 

1267 
95) . Mr. Dotson described the accumulations as coal spillage 

located at approximately five different locations along the belt 

line, and that each accumulation was 6 feet long, 18 inches wide, 

and 12 inches deep. He confirmed that the accumulations were not 

rock dusted, and were "dark black" and combustible, and he 

characterized the spillage as "just plain raw coal spills'' (Tr. 

103). Although the belt was running when he observed the 

conditions, he could not recall whether coal was being 

transported on the belt (Tr. 100). He also confirmed that he 

observed no stuck rollers, but stated that "it probably wouldn't 

have been too long and it would have been frozen" (Tr. 97}. 

The respondent's representative asserted that the third 

shift is normally a maintenance shift, and that he was told by 

people on the shift that rock dust bags were scattered in the 

area and that they were in the process of cleaning the belt on 

the production shift when beltmen were available. However, he 

conceded that he was not present during the inspection, and that 

"they do maintenance part of the shift and run coal part of the 

shift" (Tr. 99-100} . 

Citation No. 2727869 

Mr. Dotson stated that he considered the cited loose broken 

roof conditions to be S&S because there was evidence of roof 

pressure and weight shifting just outby the pillar section. The 

roof had broken down the center in the No. 6 entry and "dropped 

down to a large crack" and mantrip vehicles and mine examiners 

travelled the cited areas which included a designated escapeway. 

Mr. Dotson described the roof as "sagging," and he found it very 

likely that a roof fall would occur, and that in the event of a 

massive fall, fatal injuries would result. He stated further 

that adverse roof conditions were present in the areas inby the 

locations which he had cited, and two roof falls had occurred in 

other entries. He believed that roof weight shifting had 

occurred after pillaring had begun more than a week earlier (Tr. 

104-106) . 

Mr. Dotson could not recall whether coal was being mined on 

the day of the inspection, and although some work was being 

performed in the cited areas, he did not believe that any work 

was being done on the roof. He confirmed that miners would be 

present in the cited areas at least once a day or more (Tr. 107). 

On cross-examination, Mr. Dotson agreed that the sagging 

roof conditions could have occurred after the section was 

preshifted, and that the conditions did not obstruct travel 

through the area. He stated that the cited roof locations 

definitely needed additional support and that the respondent's 

safety inspector who was with him during his inspection "agreed 

whole heartedly with my opinion" (Tr. 108). Mr. Dotson confirmed 

1268 
that the area was dangered off and arrangements were made to have 

the roof supported (Tr. 109). 

Citation No. 2727870 

Inspector Dotson confirmed that he considered this coal 

accumulations violation to be S&S because "pure, black, dry, 

loose coal" was accumulated and packed tight underneath the 

bottom belt and appeared to have been there for several shifts. 

He believed that the accumulations, which he described as ranging 

from 36 inches wide, 18 inches deep, and 25 feet long, could 

contribute to a source of heat in the event they froze and caused 

friction between the belt and roller. The accumulations were 

located close to the belt drive which had a power source (Tr. 

110). In the event of a fire, seven miners on the section would 

be exposed to a smoke inhalation hazard (Tr. 111-112). 

On cross-examination, Mr. Dotson confirmed that he did not 

check the belt conveyor drive for permissibility, and while water 

sprays were installed on the belt head, he did not observe any of 

them working at the time of the inspection, nor did he observe 

any sprays on the belt (Tr. 113). 

Based on the credible testimony of the inspector, I conclude 

and find that the two equipment guarding citations (2724637, 

2127863) were significant and substantial. The guarding on the 

cited belt conveyor head roller was loose and hanging away from 

the area which should have been guarded, thereby exposing a pinch 

point between the head roller and conveyor. The guarding on the 

cited No. 3 belt conveyor tail pulley had been pulled away from 

the frame exposing an opening through which anyone could have 

easily reached the moving belt pulley while the belt was running. 

In both instances, the evidence establishes that miners would be 

in the area of the unguarded equipment in the normal course of 

their work shifts cleaning, or examining the belts, and in the 

event of a stumble or other inadvertent contact with the exposed 

pinch points, they would likely suffer injuries of a reasonably 

serious nature. Under the circumstances, the inspector's S&S 

findings with respect to both citations ARE AFFIRMED. 

With regard to the overhanging coal ribs and loose and 

broken roof conditions (2727874, 2727869), I agree with the 

inspector's S&S findings. The inspector's unrebutted testimony 

establishes that the mine had a rib sloughing problem, and 

although most of the problems were at the face areas, two prior 

rib rolls resulted in injuries to miners, and the overhanging 

ribs in question were in a low area of the mine where miners 

travelled. The loose roof conditions were in an area of the mine 

where the roof was taking pressure and sagging, and the inspector 

observed one area where the roof had broken and cracked, and he 

confirmed that roof falls had previously occurred in other areas 

of the mine. I conclude and find that the cited rib and roof 

1269 
conditions posed a discrete roof fall and rib roll hazard, and 

that a potential accident hazard was present. In the event of 

any such occurrence, I conclude that it would be reasonably 

likely that the miners working in those areas would likely suffer 

fatal injuries or injuries of a reasonably serious nature. The 

inspector's S&S findings with respect to both citations ARE 

AFFIRMED. 

With respect to the two citations for coal accumulations 

along the belt conveyors (2727864, 2727870), the evidence 

establishes that significant amounts of dry, loose, and black 

coal dust was packed around and against the conveyor belts and 

head rollers in areas where miners would normally be working 

during the course of mining coal while the belts were in 

operation. The inspector's unrebutted credible testimony 

establishes that these coal accumulations, which one may 

reasonably assume were combustible, posed a discrete fire hazard 

in that any frozen or stuck rollers would provide a source of 

heat and friction to ignite the coal and propagate a fire. In 

the likely event of a belt fire, the miners in the area would be 

exposed to burn and smoke inhalation hazards of a reasonable 

serious nature. Under the circumstances, the inspector's S&S 

findings with regard to both citations ARE AFFIRMED. 

I conclude and find that the cited damaged splice in the 

12,000 volt transmission cable (2727873) was a significant and 

substantial violation. The inspector's unrebutted credible 

testimony reflects that the outer insulation of the cable was 

damaged for a distance of approximately 2 feet and that the 

interior ground wire, monitor wire, and metallic shields were all 

exposed and posed an electrocution hazard. Although it was 

unlikely that the cable would be run over by a mantrip or 

contacted by anyone sitting in the mantrip, the inspector 

confirmed that the damage occurred while the cable was advanced 

and hung in the location where he observed it. In the event the 

cable were again moved and advanced, I believe that anyone doing 

that work would likely be exposed to a serious shock and probable 

electrocution hazard in the event he inadvertently handled the 

cable, and that injuries of a reasonably serious nature would 

result. Accordingly, the inspector's S&S finding IS AFFIRMED. 

With regard to the ventilation citation concerning the 

condition of the cited ventilation stoppings (2727872), I agree 

with the inspector's S&S finding. Although the inspector found 

no excessive levels of methane present and found the air to be 

sufficient, the fact remains that the condition of the stoppings, 

some of which were crushed and contained holes and lacked 

adequate sealing, posed a discrete air leakage hazard which in 

time could have caused further deterioration resulting in the 

likely short circuiting of the air ventilation and lack of air 

separation in the intake and returns. Further, the inspector's 

unrebutted credible testimony reflects that in the event some of 

1270 
the cited stoppings had crushed out, ventilation would be 

interrupted, and a possible buildup of methane would occur, and 

would contribute to the loss of air at the working faces. In 

this event, miners working in the affected areas would be exposed 

to the hazards associated with a loss of adequate air 

ventilation, including smoke inhalation in the event of a belt 

fire. The inspector's S&S finding is therefore AFFIRMED. 

With regard to the inadequate rock dusting citation 

(2724242), I agree with the inspector's S&S finding. The 

evidence establishes that a significantly large area of the mine 

was inadequately rock dusted, and notwithstanding the fact that 

the inspector found adequate air and no explosive levels of 

methane at the time of the inspection, the mine does liberate 

excessive levels of methane at any given time, has had past 

problems with methane, and was apparently being monitored and 

spot checked for methane. The obvious intent of the cited safety 

standard is to insure that the incombustible content of coal dust 

is maintained at the required levels to preclude fires and 

explosions. The inspector's credible testimony reflects the 

presence of methane at levels which presented a potential 

ignition and explosion hazard, and given the fact that potential 

ignition sources were present while coal was being mined, and 

miners were working in the affected areas, the presence of 

inadequate rock dusting presented a discrete fire and explosion 

hazard in the likely event of an ignition or interruption to the 

ventilation while mining was being accomplished. If this were to 

occur, one can reasonably conclude that the miners working 

underground would be exposed to the hazards associated with lack 

of inadequate air, burns, and inadequate oxygen during any 

attempts to exit the mine, and would sustain injuries of a 

reasonable serious nature. Under the circumstances, the 

inspector's S&S finding IS AFFIRMED. 

With regard to the permissibility violation for the missing 

flange joint on a continuous miner headlight (2727875), I cannot 

conclude that this condition was a significant and substantial 

violation. The inspector confirmed that no opening was present 

in the flange and that it had not loosened to the point of 

presenting an opening for methane to find its way into the 

component. The inspector confirmed that the machine was equipped 

with a methane detector device to automatically shut down the 

machine, and I assume that it was operable and would have 

deenergized the machine if high levels of methane were 

encountered. Considering the lack of any significant levels of 

methane at the face area, the presence of sufficient air at the 

face, and the inspector's testimony that .2 and .5 percent of 

methane will normally be present at the face with the amount of 

air being used to ventilate the face, and the fact that several 

variables would have to present any hazard, I cannot conclude 

that the violation was significant and substantial. Accordingly, 

the inspector's finding in this regard IS VACATED. 

1271 
With respect to the citation for the failure to conduct 

practice escapeway drills (2727876), I conclude and find that the 

evidence does not support a finding of a significant and 

substantial violation. The inspector confirmed that in his 

inspection experience other mines "generally" complied with the 

escapeway drill requirements of section 75.1704-2(a), and that 

experienced miners would have knowledge of the escapeways. In 

the instant case, there is no evidence that any of the miners in 

question were new miners or were inexperienced and did not know 

where the escapeways were located. The evidence establishes that 

escape maps were posted on each of the working sections, that 

safety meetings are conducted at the mine, and that the required 

fire boss examinations were being conducted on each of the 

escapeways. Under the circumstances, I find no evidence to 

support any conclusion of the presence of any discrete hazard 

associated with the failure to conduct the drill in question~ and 

the inspector's S&S finding IS VACATED. 

Unwarrantable Failure Violation 

The governing definition of unwarrantable failure was 

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

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

295-96: 

In light of the foregoing, we hold that an 

inspector should find that a violation of any mandatory 

standard was caused by an unwarrantable failure to 

comply with such standard if he determines that the 

operator involved has failed to abate the conditions or 

practices constituting such violation, conditions or 

practices the operator knew or should have known 

existed or which it failed to abate because of a lack 

of due diligence, or because of indifference or lack of 

reasonable care. 

In several recent decisions concerning the interpretation 

and application of the term "unwarrantable failure," the 

Commission further refined and explained this term, and concluded 

that it means "aggravated conduct, constituting more than 

ordinary negligence, by a mine operator in relation to a 

violation of the Act." Energy Mining Corporation, 9 FMSHRC 1997 

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

(December 1987); Secretary of Labor v. Rushton Mining Company, 

10 FMSHRC 249 (March 1988). Referring to its prior holding in 

the Emerv Mining case, the Commission stated as follows in 

Youghiogheny & Ohio, at 9 FMSHRC 2010: 

We stated that whereas negligence is conduct that 

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

unwarrantable conduct is conduct that is described as 

1272 
"not justifiable" or "inexcusable." Only by construing 

unwarrantable failure by a mine operator as aggravated 

conduct constituting more that ordinary negligence, do 

unwarrantable failure sanctions assume their intended 

distinct place in the Act's enforcement scheme. 

In Emerv Mining, the Commission explained the meaning of the 

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

We first determine the ordinary meaning of the 

phrase "unwarrantable failure." "Unwarrantable" is 

defined as "not justifiable" or "inexcusable." 

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

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

International Dictionary (Unabridged) 2514, 814 (1971) 

("Webster's"). Comparatively, negligence is the 

failure to use such care as a reasonably prudent and 

careful person would use and is characterized by 

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

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

that is not justifiable and inexcusable is the result 

of more than inadvertence, thoughtlessness, or 

inattention. * * * 

Inspector Dotson testified that he issued the section 

104(d) (2) Order No. 2724637 on May 17, 1988, for the lack of 

adequate belt conveyor guarding, because of "aggravated 

circumstances" on the part of the respondent. He explained that 

during prior inspections he had issued other guarding citations 

pursuant to section 75.1722, and had discussed with mine 

management the requirements for the proper installation of 

guards. He confirmed that these prior citations were issued for 

guards which did not extend for sufficient distances to comply 

with the standard, and that he had spoken to the company safety 

inspector, and the mine foreman, section foreman, and 

superintendent (Tr. 27-28). 

Mr. Dotson confirmed that there was nothing unusual about 

the cited belt which was cited for inadequate guarding, and that 

it had only been installed on the day prior to his inspection of 

May 17, 1988. He also confirmed that the cited belt in question 

was not the same belt that he had previously cited or discussed 

for inadequate guarding, and although the cited belt had a guard 

installed, it was hanging loose and was not securely bolted to 

the belt structure. Even if the guard had been tightly secured, 

he did not believe that it was of sufficient size to prevent a 

person from reaching behind the guard and contacting the pinch 

point between the belt or the roller. Abatement was achieved by 

installing additional guards rather than extending the existing 

guards (Tr. 28-32). 

1273 
Exhibit P-4(a) consists of three prior guarding citations 

issued by Mr. Dotson on February 1, 19, and 25, 1988. One of the 

citations is for inadequate guarding on the head and drive 

rollers of a belt conveyor (75.1722(b), one is for inadequate 

guarding on a take-up roller of a conveyor belt (75.1722(a), and 

one is for missing guards on the cutting head drive shaft and 

coupling on a continuous-mining machine (75.1722(a)). All of 

these citations were section 104(a) citations, and in each 

instance Mr. Dotson made findings of "moderate negligence." 

Exhibit P-13 is a copy of the guarding citation issued by 

Mr. Dotson on May 24, 1988, a week after he issued the 

unwarrantable failure order, and it was issued because the guard 

provided for the tail pulley of a belt conveyor was loose and 

pulled open exposing the pinch point which "could easily be 

contacted by persons." In this instance, Mr. Dotson again made a 

negligence finding of "moderate negligence." Given the theory 

and rationale for his unwarrantable failure finding with respect 

to the contested order, I find these moderate negligence findings 

for essentially the same kind of conditions to be contradictory 

and inconsistent. 

The contested order charges the respondent with a violation 

of the equipment guarding requirements of section 75.1722(b), 

which provides as follows: 

(b) Guards at conveyor-drive, conveyor-head, and 

conveyor-tail pulleys shall extend a distance 

sufficient to prevent a person from reaching behind the 

guard and becoming caught between the belt and the 

pulley. 

The regulatory language found in the standard in question 

provides no guidance as to what may be considered a "sufficient 

distance" for the extension of guards to prevent persons from 

contacting a potential pinch point. What may be sufficient for 

one inspector may not be sufficient for another, and Inspector 

Dotson agreed that these differences of opinion can possibly 

occur. In fact, most of the litigation resulting from 

applications and interpretations of this particular standard 

attests to the fact that reasonable persons can differ as to the 

meaning of the term "sufficient distance" in the context of 

equipment guarding, and each case must necessarily be considered 

on its own facts. 

I reject any notion that simply because a mine operator has 

been previously cited with a guarding standard in the past, he 

may be considered per se guilty of "aggravated conduct" for any 

repeat citations. Further, I find no credible evidence here that 

the inspector previously instructed the respondent as to any 

particular or specific way for providing guards for its 

equipment. Although the cited standard addresses guards which 

1274 
have already been installed on the equipment, two of the prior 

violations were abated by the installation of additional guards, 

rather than extending the existing ones, and one citation 

concerned a violation of subsection (a) of section 75.1722, 

rather than subsection (b), and it concerned a guard which was 

missing from the cutting head of a continuous-mining machine 

rather than a belt conveyor. 

In view of the foregoing, I find no credible evidence to 

support the inspector's opinion that the violation in question 

resulted from "aggravated circumstances." The evidence 

establishes that in all of these instances of inadequate 

equipment guarding, with the exception of the missing guard on 

the mining machine, guards were in fact provided, but were 

inadequate in the judgment of the inspector. Under the 

circumstances, the inspector's unwarrantable failure finding IS 

REJECTED AND VACATED, and the contested order is modified to a 

section 104(a) citation, with S&S findings. 

Size of Business and Effect of Civil Penalty Assessments on the 

Respondent's Ability to Remain in Business 

The parties agreed that the respondent is a small mine 

operator, and the respondent's representative stated that at the 

time of the inspections the mine employed 90 to 100 miners, and 

that the annual coal production for the mine was approximately 

351,422 tons (Tr. 117-118). I conclude and find that the 

respondent is a small mine operator. 

The respondent's representative stated that the Smoot Coal 

Company is no longer in operation and has ceased to exist (Tr. 

117). He confirmed that the company went out of business 

sometime in August 1988, has no assets and owns none of the mine 

equipment, and that another contractor has taken over the mine 

and the mine permit has been changed to the new company (Tr. 

119). He explained that the Spring Ridge Coal Company owned the 

mine property and hired several contractors to mine the coal, and 

that the respondent Smoot Coal Company was one of the contractors 

mining the coal. He confirmed that Spring Ridge still owns the 

mine assets, including the equipment, and still controls the mine 

leases, and that Smoot Coal has no employees and does not mine 

any of the coal. However, he confirmed that Smoot Coal is still 

in existence as a corporation, but that its attorneys are taking 

steps to revoke its corporate charter in the State of 

West Virginia (Tr. 120-122). 

The petitioner takes the position that the fact that Smoot 

Coal Company is no longer active in business, is irrelevant and 

that MSHA can seek payment of any civil penalty assessments for 

the violations in question in these proceedings from the 

corporate successor (Tr. 120). The respondent confirmed that at 

the time the violations were issued, Smoot Coal Company was in 

1275 
fact mining the coal as a contractor, and that no other 

contractors were engaged in the mining of the coal at that time 

(Tr. 122). 

MSHA Suoervisorv Inspector Francis Nutter testified that "I 

have spent a considerable amount of time in the mine in view of 

the paperwork." He stated that Smoot Coal Company had previously 

leased the mine to another contractor, the D.C. & M Coal Company, 

and that during the operation of the mine by this contractor MSHA 

issued an imminent danger order at the mine "for ventilation and 

methane accumulations," and D.C. & M then went out of business. 

Smoot Coal then filed to have the mine legal identity changed 

back to Smoot Coal so that it could continue working to abate the 

conditions which resulted in the imminent danger closure order. 

Mr. Nutter stated that the respondent's representative, 

Mr. Carpenter, served as the chief engineer and "probably the 

superintendent" for Smoot Coal, and also submitted some 

engineering maps for D.C. and M, and that some of the supervisors 

and employees remained in the employ of Smoot Coal (Tr. 122-125). 

Mr. Nutter confirmed that at the time the violations were 

issued, Smoot Coal Company operated the mine. He had no 

knowledge that Smoot Coal was no longer in business and that 

MSHA's current legal identity number still reflects that Smoot 

coal is the operator of the mine, and that Smoot Coal filed the 

necessary MSHA paperwork to reflect its operation of the mine in 

order to correct the conditions resulting in the closure order 

(Tr. 127-128). 

Respondent's representative Carpenter confirmed that the 

mine is still in the legal name of Smoot Coal Company, and that 

Smoot Coal took the mine back from D.C. and M Coal Company, but 

that Smoot has no employees and "is financially broke" (Tr. 

130-131). He asserted that Spring Ridge Coal still controls all 

of the mine assets, and stated that Smoot Coal assumed the 

operation of the mine "just to protect the mine, from shutting 

the mine down, keep the mine open at the present" (Tr. 132). He 

further confirmed that while coal is not being mined at the 

present time, the mine is still "active" and has not been sealed 

or abandoned, but that in order to resume mining, Smoot Coal 

would have to abate the MSHA closure order (Tr. 132). 

After careful consideration of all of the testimony and 

available evidence with respect to the status of the respondent 

Smoot Coal Company, I find no credible or probative information 

or evidence to establish that the payment of the civil penalty 

assessments for the violations in question in these proceedings 

will adversely affect the respondent's ability to continue in 

business. The record establishes that the respondent is the 

legal operator of the mine, that it is still a viable corporate 

entity, and that the mine is still an active mine. Further, the 

record is clear that all of the violations occurred at a time 

1276 
when Smoot Coal Company was operating the mine, and that the only 

impediment to its continued operation of the mine is the 

outstanding closure order which apparently has not been abated or 

lifted. 

History of Prior Violations 

Exhibit P-21, is a summary of the respondent's assessed 

violations history for 1987 and 1988, and it reflects that the 

respondent received 111 violations, excluding timely paid 

"single-penalty'' assessments, over a period of 197 inspection 

days. Exhibit P-22, is an MSHA computer print-out reflecting 

that the respondent paid $20,089, in civil penalty assessments 

for 163 violations, 151 of which are S&S violations during the 

period July 27, 1987 through June 8, 1988. This history includes 

25 prior violations of mandatory safety standard section 75.400 

(coal accumulations), 15 violations of section 75.503 

(permissible face equipment), and 14 violations of section 75.316 

(ventilation and methane) . For an operation of its size, I 

conclude and find that the respondent has an average to less than 

average history of prior compliance, particularly with respect to 

the permissibility, ventilation, coal accumulations standards. 

Good Faith Compliance 

The parties agreed that all of the violations were timely 

abated by the respondent in good faith, and I conclude and find 

that this is the case, and I have taken this into consideration 

in the civil penalty assessments which have been made for the 

violations in question. 

Gravity 

In light of my s&s·findings and conclusions, and on the 

basis of the inspector's credible testimony with respect to the 

hazards connected with each of the violations, I conclude and 

find that they were all serious. 

Negligence 

With regard to Citation No. 2727875, the inspector found a 

low degree of negligence on the part of the respondent, and the 

parties stipulated that this was the case (Tr. 70). With regard 

to nine additional violations, the inspector found that they were 

the result of moderate negligence (Tr. 17-21, 44, 52-53, 58, 62, 

79, 89-90, 95-97, 106, 111). I adopt these findings as my 

findings on this issue, and I conclude and find that the 10 

violations in question were the result of the respondent's 

failure to exercise reasonable care, and that they all constitute 

ordinary negligence by the respondent. 

1277 
With regard to the modified section 104(a) Citation 

No. 2724633, and in light of my rejection of the inspector's 

unwarrantable failure finding, I conclude and find that this 

violation also resulted from the respondent's failure to take 

reasonable care, and that this constitutes ordinary negligence. 

Civil Penalty Assessments 

On the basis of the foregoing findings and conclusions, and 

taking into account the requirements of section llO(i) of the 

Act, I conclude and find that the following civil penalty 

assessments for the violations which have been affirmed are 

reasonable and appropriate in the circumstances of these 

proceedings: 

Docket No. WEVA 88-328 

citation No. 

2724242 

2724637 

2727872 

2727873 

2727874 

2727875 

2727876 

04/06/88 

05/17/88 

06/06/88 

06/08/88 

06/18/88 

06/08/88 

06/08/88 

Docket No. WEVA 88-329 

Citation No. 

2127863 

2727864 

2727869 

2727870 

05/24/88 

05/24/88 

05/27/88 

06/06/88 

30 C.F.R. Section 

75.403 

75.1722(b) 

75.316 

75.517 

75.2ll(c) 

75.503 

75.1704-2(e) 

30 C.F.R. Section 

75.1722(b) 

75.400 

75.211(c) 

75.400 

ORDER 

Assessment 

$200 

$175 

$150 

$150 

$105 

$ 30 

$ 35 

Assessment 

$125 

$105 

$168 

$168 

The respondent IS ORDERED to pay civil penalty assessments 

in the amounts shown above within thirty (30) days of the date of 

these decisions, and upon receipt of payment by the petitioner, 

these proceedings are dismissed . 

.,, / ___ .....-~ .. --· 

-/,··..--·~~~-· .::. ,,,.rf..., ,. ".· ·~--~·t'"':,.~~ .:... _"(.._,,.._: 

./ George· A. :Koutras 

Administrative Law Judge 

1278 
Distribution: 

Mark R. Malecki, Esq., Office of the Solicitor, U.S. Department 

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

(Certified Mail) 

Mr. Mike Carpenter, Smoot Coal Company, Inc., P.O. Box 1400, 

Webster Springs, WV 26288 (Certified Mail) 

/fb 

1279 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280. 1244 SPEER BOULEVARD 

DENVER, CO 80204 

BIG HORN CALCIUM COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BIG HORN CALCIUM COMPANY, 

Respondent 

JUL 13 1989 

. . 

. . 

128Q 

CONTEST PROCEEDINGS 

Docket No. WEST 88-67-RM 

Citation No. 3065941; 12/5/87 

Docket No. WEST 88-68-RM 

Citation No. 3065942; 12/5/87 

Docket No. WEST 88-69-RM 

Citation No. 2648962; 12/9/87 

Docket No. WEST 88-70-RM 

Citation No. 2648963; 12/9/87 

Docket No. WEST 88-71-RM 

Citation No. 2648964; 12/10/87 

Docket No. WEST 88-72-RM 

Citation No. 2648965; 12/10/87 

Docket No. WEST 88-73-RM 

Citation No. 2648966; 12/10/87 

Docket No. WEST 88-74-RM 

Citation No. 2648967; 12/10/87 

Docket No. WEST 88-75-RM 

Citation No. 2648968; 12/10/87 

Docket No. WEST 88-76-RM 

Citation No. 2648970; 12/10/87 

Docket No. WEST 88-78-RM 

Citation No. 2648971; 12/10/87 

Warren Quarry & Mill 

Mine ID No. 24-00006 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 88-203-M 

A.C. No. 24-00006-05513 

Docket No. WEST 88-204-M 

A.C. No. 24-00006-05514 

Docket No. WEST 88-205-M 

A.C. No. 24-00006-05515 

(And Related Contest Dockets) 

Warren Quarry & Mill 
DECISION APPROVING SETTLEMENT 

Before: Judge Lasher 

Upon motion for approval of a proposed settlement of the 22 

alleged violations in these 3 dockets and the same appearing 

proper and in the full amount of the initial assessments for 21 

of the 22 alleged violations, the settlement is approved. 

As reflected in the caption, this matter resolves a total of 

11 contest dockets and 3 related penalty dockets. The three 

related penalty dockets involve a total of 22 enforcement 

documents (Citations and Orders). The settlement disposes 

completely of these 22 proposed penalty assessment as well as an 

additional Citation which is the subject of Contest Docket No. 

WEST 88-75-RM but which was not, apparently due to administrative 

oversight, made the subject of a proposal for penalty, all of 

which is reflected below. Big Horn Calcium Company, upon 

approval of this settlement, agrees to withdraw its contest 

proceedings herein. 

1. Docket No. WEST 88-203-M 

Citation No. 

2645747 

2645748 

2645749 

2645750 

2645753 

2645754 

2645755 

2645756 

2645757 

2645763 

2645764 

2645765 

2645766 

2645767 

Proposed 

Penalty 

$ 20.00 

20.00 

20.00 

68.00 

68.00 

20.00 

20.00 

20.00 

20.00 

20.00 

20.00 

20.00 

20.00 

20.00 

Related Contest 

Proceeding 

( 88-70-RM) 

(88-71-RM) 

(88-72-RM) 

(88-73-RM) 

(88-74-RM) 

Big Horn Calcium Company agrees to pay the above penalties 

and such are here assessed. 

2. Docket No. WEST 88-204-M 

Proposed . Related Contest 

Citation No. Penalty Proceeding 

3065941 $1,000.00 (88-67-RM) 

Order No. 

3065942 $1,000.00 (88-68-RM) 

Citation No. 

2648962 300.00 (88-69-RM) 

1281 
Ca) Pursuant to the agreement reached, Citation No. 3065941 

is modified from Section 104(d)(l) to Section 104(a) since 

pretrial preparation disclosed that the violation was not the 

result of an unwarrantable failure on the part of the mine 

operator. Likewise, the negligence showing on the Citation is 

reduced from "reckless disregard" to "high". The proposed 

penalty of $1,000.00 and the designation of the violation as 

significant and substantial shall remain unchanged. 

Cb> Order No. 3065942 is also modified from Section 

104(d)(l) to Section 104(a). Again, pretrial preparation 

disclosed that the violation was not the result of an unwarrantable failure on the part of the operator and, accordingly, 

the negligence shall also, as agreed, be reduced from "reckless 

disregard" to "high". The proposed penalty of $1,000.00 and the 

designation of the violation as significant and substantial shall 

remain unchanged. 

(c) Citation No. 2648962 and its $300 proposed penalty shall 

remain unchanged. 

(d) Big Horn Calcium Company agrees to withdraw its contest 

to the citations and order as amended herein and to pay the 

penalties above reflected. such are here assessed. 

3. Docket No. WEST 88-205-M 

Citation No. 

2645752 

2645758 

2645759 

2648970 (Vacated) 

2648971 

Proposed 

Penalty 

$20.00 

Related Contest 

Proceeding 

20.00 

20.00 

(20.00>CWithdrawn) 

20.00 

(88-76-RM) 

( 88-78-RM) 

(a) The Secretary having moved to vacate Citation No. 

2648970 and to withdraw her proposed penalty therefor on the 

basis of insufficient evidence, such motion is approved and 

Citation No. 2648970 is VACATED. 

Cb) Big Horn Calcium Company agrees to withdraw its contest 

to the other four (4) citations in Docket No. WEST 88-205-M and 

to pay the above penalties which are here assessed. 

4. Docket No. WEST 88-75-RM 

A civil penalty proceeding was never• filed by MSHA with 

respect to this Citation (No. 2648968). While a civil penalty 

has not been proposed, the parties agree that a $20.00 penalty is 

1282 
appropriate. This agreement is approved as part of this overall 

settlement. Big Horn Calcium Company agrees to withdraw its 

contest to Citation No. 2648968 and to pay the agreed penalty 

which is here assessed. 

In consenting to this settlement agreement, the parties have 

agreed Cl) that nothing therein shall be deemed an admission by 

Big Horn Calcium Company of a violation of the Federal Mine 

Safety and Health Act, or regulation or standard thereof, in any 

judicial or administration forum other than an action brought by 

the United States Government under the Federal Mine Safety and 

Health Act, and (2) that by entering this settlement agreement, 

Big Horn Calcium Company does not admit to a violation of the 

Federal Mine Safety and Health Act, or regulation or standard 

thereof, for the purpose of any- judicial or administrative 

proceeding which directly or indirectly concerns the civil or 

criminal liability of any or all directors, officers and agents 

of Big Horn Calcium Company regarding the subject matter, 

allegations and issues related to Citation No. 3065941 and Order 

No. 3069542 [Docket No. WEST 88-204-M]. 

In the premises, the amicable resolution reached by the 

parties appears appropriate and is approved with the parties to 

bear their own fees and expenses. 

ORDER 

1. Citation No. 2648970 is VACATED. 

2. Citation No. 3065941 and Order No. 3065942 are MODIFIED 

as specified hereinabove. 

3. The 11 Contest proceedings listed in the Caption are, 

based on this approval of settlement, DISMISSED. 

4. Big Horn Calcium Company, if it has not previously done 

so, is ordered to pay to the Secretary of Labor within 30 days 

from the date hereof the sum of $2,776.00 as and for the civil 

penalties hereinabove assessed. 

Distribution: 

tp;;dr./-·ff ~~~~ ;r~ Michael A. Lasher, Jr. 

Administrative Law Judge 

James J. Gonzales, Esq., and Jeffrey T. Johnson, Esq., Holland & 

Hart, 555 Seventeenth Street, Suite 2900, P.O. Box 8749, Denver, 

CO 80201 (Certified Mail) 

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

of Labor, 1585 Federal Building, 1961 St~ut Street, Denver, CO 

80294 (Certified Mail) 

1283 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRE'rARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINIS'rRATION (MSHA), 

Petitioner 

v. 

DAVIDSON MINING, INC., 

Respondent 

J'Ji j ') ~r•gg l 1... • .J IJ 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket ~o. WEVA 88-311 

A.C. No. 46-06898-03538 

No. 1 Mine 

Appearances: Page H. Jackson, Esq., Office of the Solicitor, 

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

for Petitioner; 

William D. Stover, Esq., M.A.E. Services, Inc., 

Beckley, West Virginia, for Respondent. 

Before: Judge Maurer 

This case is 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", for alleged violations of regulatory standards. 

The general issues before me are whether Davidson Mining, Inc. 

has violated the cited regulatory standards and, if so, what is 

the appropriate civil penalty to be assessed in accordance with 

section llO(i) of the Act. 

Prior to the commencement of testimony at the hearing, the 

parties advised me that they had a proposed settlement of three 

of the four citations at issue. Citation Nos. 9959649, 9959659 

and 9959660 were each assessed at $227 for violations of 30 C.F.R. 

§ 70.101 and Davidson has agreed to pay the full assessed amount 

of $227 each in settlement of that portion of this case. I 

approved that settlement from the bench, and confirm it herein. 

The remaining section 104(a) citation; Citation No. 2904279 

alleges a violation of 30 C.F.R. § 75.200, and proposes to assess 

a civil penalty of $168. 

The respondent's portion of the case was heard in 

Huntington, West Virginia, on February 7, 1989. The Secretary's 

case was submitted by documentary evidence and the affidavit of 

Inspector James E. Davis, which was filed on April 3, 1989. 

1284 
Citation No. 2904279 alleges a "significant and substantial" 

violation of the roof control standard and alleges in particular 

as follows: 

The investigation of a non-fatal fall of roof material 

accident that occurred on 3/3/88, at approximately 

1:30 p.m., in the last open crosscut of the No. 5 entry 

intersection, on the No. 008-0 unit, revealed that the 

roof was inadequately supported, in that a piece of 

roof measuring approximately 90 inches in width, 

87 inches in length and 0 to 3 inches in thickness fell 

around and between three roof bolts, struck a miner, 

resulting in serious injuries, the injured miner 

becoming hospitalized and disabled for an extended 

period of time. 

On March 3, 1988, a serious, non-fatal roof fall accident 

occurred in the intersection of the last open crosscut in the 

~o. 5 entry on the Jim Hazel Mains supersection (008-0) of the 

No. 1 Mine. David McKinney, a roof bolter, was seriously injured 

when he was struck by a large rock which fell around and between 

three roof bolts. The rock measured approximately 90 inches in 

width, 87 inches in length and up to 3 inches in thickness. 

MSHA Inspectors Dooley and Davis investigated this accident 

and Davis authored the Report of Investigation which was received 

into evidence as Government Exhibit No. 2. During his 

investigation, Inspector Davis encountered drummy roof conditions 

indicative of a separation in the overlying strata of the roof in 

several areas outby the accident scene. These conditions were 

detected in areas where the continuous miner had left draw rock 

on the roof as the coal was mined. At the accident s6ene, Davis 

found additional areas of drummy roof in the vicinity of the 

prior roof fall, but in his opinion, these areas all seemed to be 

adequately supported. He also took a look at the three roof 

bolts that had been present when the roof fell between and around 

them and was satisfied that there was no evidence that these roof 

bolts had been damaged or improperly installed. 

While standing in the area where the roof fall had occurred, 

he heard a noise from an outby area which sounded like rock 

falling. He asked what that noise was and someone responded that 

that noise was the roof falling around and between roof supports 

and that such falls were not unusual on the section. He does not 

know the identity of the person who made the statement, but 

everyone in the group present heard it and no one, including 

management personnel present disagreed with it. 

1285 
Inspector Davis stated that the section was being developed 

in accordance with the approved roof control plan then in effect. 

The company was using 4 foot fully grouted resin bolts and 6 by 

16 inch bearing plates. These measures exceeded the minimum 

requirements of the roof control plan. The roof supports were 

being installed on spacings of 4 to 5 feet along the length of 

the entries and 4 foot spacings across the width of the entries. 

In the immediate area of the roof fall, the bolts were installed 

on spacings that varied from 3 feet 1 inch to 4 feet 11 inches. 

The investigation, in Inspector Davis' opinion, did not disclose 

any violations of the roof control plan, nor is the operator 

being charged with any violation of the roof control plan. 

Several witnesses were interviewed by the two inspectors and 

they stated that in this mine it was not uncommon to have the 

roof fall between and around the roof bolts as it did in this 

case. 

Inspector Davis, while acknowledging that the operator has 

made some efforts above and beyond the requirements of the roof 

control plan, still felt that management was aware of the hazard 

created by leaving areas of uneven draw rock in the roof that can 

and do separate from the main roof and which often ultimately 

results in draw rock falling out between the bolt patterns, as it 

did in the instant case. The inspector further opined that since 

management was aware of this fact, it was incumbent on them to 

take additional measures necessary to adequately support the roof. 

He suggested straps be installed to adequately support the areas 

between the roof supports which.are not directly supported by the 

bearing plates. In a nutshell, he wrote the citation at bar 

because he believed the roof was inadequately supported and 

commonly fell out between the roof supports installed by the 

operator. 

At the hearing, witnesses called by Davidson confirmed that 

draw rock commonly fell between and around the roof bolts. 

Mr. Vance testified that draw rock as large as the rock in the 

instant case had been known to fall out prior to the accident. 

David McKinney, the injured miner, stated that he had observed 

draw rock fall out between and around the roof bolts as well. In 

response to a question as to whether or not it was an unusual 

occurrence, McKinney responded "[n]o, sir. It happens. ~ot 

often, but it has happened". 

The fact that Davidson did not violate its roof control plan 

is not controlling for purposes of determining the existence of 

the violation at issue. Section 75.200 requires both compliance 

with a roof control plan approved by the Secretary and that the 

roof be supported or otherwise controlled adequately. An 

1286 
operator's failure to comply with either requirement violates the 

standard. 

Here, the violation of section 75.200 is predicated upon the 

standard's requirement that the roof and ribs be supported or 

otherwise controlled adequately. Liability under this part of 

the standard is resolved by reference to whether a reasonably 

prudent person, familiar with the mining industry and the 

protective purpose of the standard, would have recognized that 

the roof or ribs were not adequately supported or otherwise 

controlled. Specifically, the adequacy of particular roof 

support must be measured against what the reasonably prudent 

person would have provided in order to afford the protection 

intended by the standard. Quinland Coals, Inc., 9 FMSHRC 1614, 

1617-18 (September 1987); Canon Coal Co., 9 FMSHRC 667, 668 

(Apr i 1 1 9 8 7 ) • 

The respondent urges that the roof in the immediate accident 

area gave no warning nor had any physical appearance of being 

unstable prior to the accident. The section foreman had made a 

visual inspection of the section before starting work at the 

beginning of the shift and had made periodic examinations of the 

mine roof during the shift, including using the sound and 

vibration method to check for drummy roof. Despite these 

efforts, the unstable roof in the immediate area of the roof fall 

was unfortunately not detected. 

I agree with respondent that there has been no showing that 

there were any objective signs that this particular piece of rock 

was going to fall out of the roof when it did. However, the 

evidence of record clearly demonstrates that draw rock commonly 

fell between and around the roof support being routinely used by 

Davidson in this mine and on this section, and that is sufficient 

in my opinion to prove up the violation. 

Inspector Davis has been an MSHA Coal Mine Inspector since 

May of 1971 and prior to that had an additional 18 years of coal 

mining experience. Therefore, I credit his knowledge of standard 

mining practice a great deal. He based his decision to cite the 

respondent on what he personally observed in the mine during the 

accident investigation process and the statements of the miner 

witnesses who related the relevant history of what had been going 

on with the mine roof. 

Accordingly, I conclude that the roof support in the area 

cited was inadequate to prevent draw rock, of sufficient size to 

injure a miner, from falling out of the roof. ~dditionally, I 

find that the Commission's "reasonably prudent person" would 

have, by the time of the accident involving Mr. McKinney, 

recognized that something more in the way of roof support was 

1287 
needed to prevent the continuing falls of draw rock between and 

around the existing roof support, and p~ovided it. Citation 

No. 2904279 is therefore affirmed. 

Finally, it is undisputed that the injuries that 

Mr. McKinney sustained in the roof fall in March of 1988 have 

continued to prevent his returning to work at least through the 

date of the hearing. Therefore, I believe it can be inferred 

from the circumstances that the violation was serious and 

"significant and substantial". Secretary v. Mathies Coal 

Company, 6 FMSHRC 1 (1984). 

In view of the foregoing findings and conclusions, and 

taking into account the requirements of section llOCi) of the 

Act, I conclude that a civil penalty assessment in the amount of 

$168, as proposed, is reasonable for the violation which has been 

found herein. 

ORDER 

Davidson Mining, Incorporated is directed to pay civil 

penalties of $849 within 30 days of the date of this decision. 

Distribution: 

Page H. Jackson, Esq., Office of the Solicitor, U.S. Department 

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

(Certified Mail) 

William D. Stover, Esq., M.A.E. Services, Inc., 41 Eagles Road, 

Beckley, WV 25801 (Certified Mail) 

/ml 

1288 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 14 1989 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY .AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MOUNTAIN PARKWAY S'rONE, 

INCORPORATED 

Respondent 

. . 

. . 

DECISION 

Docket No. KENT 89-26-M 

A. C. No. 15-15676-05510 

Docket No. KENT 89-27-M 

A. C. No. 15-15676-05511 

Staton Mine 

Appearances: Michael L. Roden, Office of the Solicitor, u. s. 

Department of Labor, Nashville, Tennessee, for 

the Secretary; 

Jeffrey T. Staton, Vice President, Mountain Parkway 

Stone, Incorporated, Stanton, Kentucky, for 

Respondent. 

Befor.e: Judge Weisberger 

Statement of the Case 

In the above captioned cases, the Secretary (Petitioner) 

seeks Civil Penalties for alleged violations by the Operator 

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

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

cases ~ere heard in Lexington, Kentucky, on May 16 - 17, 1989. 

Ecic Shanholtz and Vernon Denton testified for Petitioner, and 

Charles Williams, Teddy Combs, Vernon Denton, and Jeffrey T. 

Staton testified for Respondent. Both Parties waved their right 

to present closing oral arguments or to submit Post-hearing 

Briefs and Proposed Findings of Fact. 

Stipulations 

The following stipulations were agreed to by both Parties: 

1. Mountain Parkway Stone, Incorporated, is a Kentucky 

corporation which produces limestone for rasale in interstate 

commerce and thus is subject to the jurisdiction of the Federal 

Mine Safety and Health Review Commission and its administrative 

law judges. 

1289 
2. As of June 1988, Mountain Parkway Stone, Incorporated 

produced approximately 172 tons of limestone per day (45,000 

annually) at its sole underground mine site, the Staton Mine in 

Powell County, Kentucky, and employed six full time employees in 

June 1988. At the date of the Hearing Respondent had five 

employees. 

3. J. T. Staton is, and was in June through August 1988, 

the President of Mountain Parkway Stone, Incorporated, and the 

supervisor of the Staton Mine. 

Findings of Fact and Discussion 

Docket No. KENT 89-26-M. 

Citation No. 3253127. 

Eric Shanholtz, an MSHA Inspector, essentially testified 

that on June 16, 1988, when he inspected Respondent's mine, he 

measured the level of noise while standing below the level of the 

bin and to the front of Respondent's primary crusher. He said 

that he measured the noise for 2 and 1/2 hours until the crusher 

broke down. He indicated that there was an over exposure of 135 

percent to the employee in the control booth. He issued a section 

104(a) Citation asserting a violation of 30 C.F.R. § 57.5050(b). 

30 C.F.R. § 57.5050(a) as pertinent, provides that noise 

level measurements "shall" be made using a meter " ••• meeting 

specifications for Type 2 Meters contained in American National 

Standards Institute (ANSI) Standard Sl.4-1971 general purpose 

sound level meters." The record does not contain any evidence as 

to the type of meter, if any, used by Shanholtz •. Further, section 

57.5050, supra, sets forth various permissible dBA levels relating 

to duration per day of hours of exposure. Aside from the conclusional statement of Shanholtz that the levels resulted in an over 

exposure of 135 percent, the record does not contain any evidence 

of any dBA level. 

Also, section 57.5050Cb), supra, provides, in essence, that 

if there is a noise level exposure which has not been reduced by 

administrative or engineering controls, " ••• rsonal protection equipment shall be provided and used to reduce sound level 

to within the levels of this table. According to Shanholtz, the 

primary crusher operator was wearing ear plugs, but would still 

be subject to a permanent disability. There is no evidence that 

the ear plugs did not reduce the sound levels for the wearer, 

within the levels set forth in subsection a, supra. 

1290 
Accordingly, it is concluded that the evidence fails to 

establish that the Respondent herein violated section 57.5050, 

supra. Accordingly, Citation 3253127 shall be dismissed. In 

light of this Decision, it is further concluded that the subsequently issued Citation No. 2861249, alleging a violation of 

section 104(b) of the Act, was improperly issued and shall be 

dismissed. 

Citation 3253323. 

Shanholtz testified that on July 20, 1988, he was told by 

some of Respondent's employees that an employee had been off from 

work with a pulled muscle in his back, which had been sustained on 

the mine property on June 27. Shanholtz indicated that Staton told 

him that Respondent did not have any MSHA Accident Report Forms, 

and these were subsequently provided to him by Shanholtz. Shanholtz 

further indicated that the accident was not reported to MSHA on 

its forms although the accident was reported in Respondent's 

records. A Citation was issued alleging a violation of 30 C.F.R. 

§ 50.20. 

Section 50.20, supra, provides, in essence, that an operator 

shall maintain a supply of MSHA Mine Accident Report Forms, and 

shall report accidents on such forms to be submitted to MSHA. 

Inasmuch as the uncontroverted evidence indicates that at the 

time of the accident in question, Respondent did not have any of 

the proper MSHA Forms, and did not report this accident to MSHA 

on its forms, a violation of section 50.20 has occurred as 

alleged. Taking into account the fact that this accident was 

recorded by Respondent in its records, and there was no evidence 

that this accident was caused by Respondent's negligence or caused 

by any instrument, property or condition under its control, it is 

concluded that a penalty herein of $20 is appropriate. 

Citation 3253324. 

Shanholtz testified that on July 21, 1988, he observed one 

of Respondent's employees lying under an axle of a dump truck 

with his shoulder on the ground, using a sledge hammer to knock 

tires off the vehicle. He indicated that the axle and the truck 

were above the employee and that the truck was "suspended" by a 

front-end loader bucket (Tr. 160). He said that the supporting 

unit was being used beyond its capacity, as its hydraulic system 

was less than adequate for what it was being used. Accordingly, 

Shanholtz issued a citation under sections 107(a) and 104(a) of 

the Act alleging a violation of 40 C.F.R. § 57.16009. 

Section 57.16009, supra, provides that "Persons shall stay 

clear of suspended loads." (Emphasis added.) Weoster'3 New 

Collegiate Dictionary (1979 edition) defines suspend, as pertinent, as " ••• a: HANG; esp: to hang so as to be free on all 

sides except at the point of support . b: to keep from falling 

or sinKing by some invisible support . . • " Although Shanholtz 

1291 
testified that the truck, under which the employee was observed 

working, was "suspended" by a front-end loader bucket, (Tr. 160), 

there is no evidence that the truck, under which the employee was 

working, was in any way hanging from or free on all sides except 

for a point of support. It appears from Shanholtz' testimony that 

the truck was raised off the ground by the front-end loader bucket, 

but there was not any evidence that it was hanging free from the 

bucket except for the point of support. Accordingly, it is concluded that there was no violation herein of section 57.16009, 

supra, and the Citation must be dismissed. 

Citation No. 2861250. 

In essence, Shanholtz testified that on August 17, 1988, he 

observed Respondent's haulage road which he indicated as being 

approximately half a mile long, and at a 12 degree slope. He 

indicated that the outer edge of the roadway was exposed. He 

said that some of the berm had deteriorated "over a period of 

time" and that "the berms in this area probably washed away and 

weathered" (Tr. 481). (sic.) He issued a section 104(a) Citation 

alleging a violation of 30 C.F.R § 57.9022. 

Section 57.9022 provides that "Berms or guards shall be provided on the outer bank of elevated roadways." On cross-exami~ 

nation Shanholtz revealed that he had not measured the berm, and 

that only some areas did not have a berm. According to 30 C.F.R. 

§ 57.2 a berm is defined as " ••• a pile or mound 0£ material 

capable of restraining a vehicle." The record does not contain 

any evidence of the type of berm in question, or its detailed 

description. Nor is there in the record any measurement of the 

areas of the roadway that allegedly did not have a berm. Thus, 

it is concluded that it has not been establiBhed by the weight or 

the evidence that the roadway did not have a berm capable of 

restraining a vehicle. Accordingly, it is concluded that it has 

not been established that Respondent herein violated section 

57.9022, and accordingly, Citation 2861250 must be dismissed. 

Docket No. KENT 89-27-M. 

Citation No. 3253179. 

Shanholtz testified, in essence, that on June 16, 1988, he 

observed smoke and exhaust fumes coming out of the portal of 

Respondent's mine. He said that he went approximately 600 to 700 

feet underground using a drager pump and a sorbet tube. He said 

that the testing device has a scale which can be read, and the 

results indicated "extreme high" levels of nitric oxide and nitrogen dioxide, and "high" levels of carbon monoxide (Tr 33). He 

said that the nitrogen dioxide was an extremely dangerous contaminant, and blackened the tubes so that it could not be measured. 

He indicated that nitrogen oxide has a threshold level of 25 

parts per million, and carbon monoxide has a threshold level of 

50 parts per million. He indicated that nitrogen dioxide has a 

1292 
ceiling level of 5 parts per million. Shanholtz issued a section 

107(a} Withdrawal Order and a 104(a} Citation alleging a violation of 30 C.F.R. § 57.500l(a}. 

Section 57.5001, supra, in essence, provides that exposure 

to airborne contaminants shall not exceed" ••• on the basis of -

a time weighted average, the threshold limit values adopted by 

the American Conference of Governmental Industrial Hygienists and 

contained in the 1973 edition of its publication entitled 'TLV'S 

Threshold Limit Values for Chemical Substances in Workroom Air 

Adopted by AGGIH for 1973,' • • • " Shanholtz indicated that 

the "contaminants" blackened the tube and could not be measured 

(Tr. 35). However, he offered no explanation as to the manner in 

which the testing device operated. Thus, I do not have any 

evidentiary basis to evaluate the observation that the tube was 

blackened. Similarly, Shanholtz' comments that the contaminants 

could not be measured in the tube was not explained, and hence I 

can not evaluate its significance. Further, the best evidence, 

of threshold limit values for various substances, as required by 

section 75.5001, supra, is the publication of the American 

Conference of Governmental Industrial Hygienists, referred to 

above. Neither that publication, nor any part thereof, was 

offered in evidence. Nor did Shanholtz make reference to that 

publication as the basis for his testimony as to various threshold values. Further, there is no evidence in the record that 

any contaminants in question exceed any threshold values " ..• on 

the basis of a time weighted average." (Section 57.5001, supra.} 

Indeed, no evidence was presented as to any time weighted average. 

Thus, I conclude that the Petitioner has not adduced sufficient 

evidence to establish that the Respondent herein violated section 

57.5001, supra. Accordingly, Citation No. 3253179 is dismissed. 

Citation No. 3253131. 

Shanholtz indicated that on June 17, 1988, he observed 

sparks, which he described as hot carbon sparks, corning out of 

the exhaust of a diesel engine which was located on the rear of a 

boom truck. He indicated that the sparks were hitting the rear 

of the boom truck or the hydraulic reservoir. He further indicated that the situation was dangerous, as there was leakage and 

spillage from the hydraulic reservoir, and also the "presence" of 

ammonia nitrate, which he described as a blasting agent, and 

explosives being loaded (Tr. 113). He issued a section 107(a} 

Withdrawal Order and a section 104(a) Citation citing a violation 

OL 30 C.F.R. § 57.6250. 

Section 57.6250 indicates, as pertinent, that "Smoking and 

open flames, ... shall not be permitted within 50 feet as 

measured by the line of sight of explosives, blasting agents, 

. . . ." The sparks coming out of the diesel engine exhaust, on 

a "continuous" basis as described by Shanholtz (Tr. 126), would 

not appear to be within the purview of section 57.6250, which 

prohibits smoking and open flames. The record does not contain 

any evidence of the distance between the sparks and the ammonia 

1293 
nitrate, referred to as the blasting agent, or between the sparks 

and explosives. Also, there is no evidence of the distance 

between the sparks and the hydraulic leakage or spillage observed 

by Shanholtz. It is clear that there has not been a violation of 

section 57.6250, which prohibits flames "within 50 feet" of explosives and blasting agents. Further, aside from the opinion of 

Shanholtz that the hydraulic fluid was combustible, there is no 

evidence that such was either an explosive or a blasting agent. 

For these reasons, I find that Petitioner has failed to establish 

that the conditions observed constitute a violation of section 

57.6250. Therefore, Citation 3253131 is dismissed. 

Citation No. 3253336. 

Shanholtz indicated that on August 17, 1988, he pumped the 

brake pedal of an idle boom truck "several times" (Tr. 200) without starting the engine. He said that the brake pedal went to 

the floor. Also, he indicated that the hydraulic reserves were 

empty and dry, and that there was evidence of leakage at the 

wheels. He also indicated that two of Respondent's employees 

told him that the truck did not have brakes, and that Gary Parks 

told him that he stopped the truck by running it into a large 

rock rib or muck pile. Charles Williams, a mechanic working for 

Respondent, indicated that he had operated the truck in question, 

stopped it with the brakes, and he had not seen other employees 

stop it by running it into something. He also indicated that the 

truck is equipped with vacuum hydraulic brakes, and the engine 

has to run in order to apply the brakes so that the booster can 

work. 

I do not accord much probative value to the testimony of 

Williams with regard to his experience operating the truck and 

being able to stop it~- as his testimony did not establish that he 

actually had driven the truck on the day it was testea by 

Shanholtz, nor at any time in reasonable proximity to Shanholtz' 

inspection. Based on Shanholtz' testimony that the brake pedal 

went all the way to the floor and, importantly, that the hydraulic 

reserves were empty and dry with evidence of hydraulic leakage at 

the wheels, I find sufficient evidence to conclude that the vehicle 

in question did not have "adequate brakes." Accordingly, I conclude that Respondent did violate 30 C.F.R. § 57.9003. 

The only evidence with regard to the likelihood of the occurrence of a reasonably serious injury, consists of Shanholtz' 

testimony that it is "MSHA's experience," (Tr. 188) that operating a vehicle without brakes will result in a fatality. I find 

this conclusion insufficient to establish a finding that there 

was any imminent danger involved. Further, considering the 

unrebutted testimony of Williams that the vehicle had two braking 

systems, and considering the lack of detailed testimony concerning 

the terrain in which the vehicle operated, i.e., whether the area 

1294 
was level, and whether there were drop-offs or obstacles in the 

vicinity, it must be concluded that it has not been established 

that there was any reasonable likelihood of an occurrence of a 

reasonably serious injury. Accordingly, I conclude that it has not 

been established that the violation herein was significant and 

substantial (Mathies Coal Co., 6 FMSHRC 1, (January 1984)). 

Although Williams indicated, in essence, that he did not 

have any difficulty stopping the vehicle in question, his testimony does not establish when he last was able to drive the truck 

and stop it. According to Shanholtz, the brake pedal went down 

to the floor, and it would appear that this condition would be 

obvious to any one driving the truck. Further, Shanholtz testified that two employees told him that the vehicle did not have 

brakes and it was stopped by driving into an obstruction. Thus, 

I find that the negligence of Respondent herein was relatively 

high. Further, I find that Respondent has not adduced any 

evidence to establish that its operation would be aaversely 

affected by the imposition by any fine herein. As noted above, I 

find that the record does not establish a description of the 

terrain in which the vehicle in question was operated. As such, 

I conclude that it has not been established that the gravity of 

the violation herein was of a nigh degree. I have taken into 

account the remainder of the statutory factors of section 110 of 

the Act, as stipulated to by the Parties, as well as the history 

of violation as indicated by Exhibit 1. Taking into account all 

these factors, I conclude that a penalty herein of $200 is appropriate for the violation found herein. 

Citation No. 325338. 

Shanholtz testified that he observed various safety defects 

with regard to a boom truck. He indicated that there was no 

stability jacks to support the truck when the boom was in the 

air, and therefore there was a possibility of the trucK overturning if it was used in the wrong capacity. He said he also 

observed hydraulic leaks at the cylinder, which created a danger 

of a fire or a slipping hazard. He also indicated that the doors 

were missing, there were no lights, and there was a rag in the 

gas tank which acted as a wick for the gas, causing a danger of 

ignition. Shanholtz issued a 104(a) Citation alleging a violation 

of 30 C.F.R. § 57.9002. 

Section 57.9002, supra, provides that "Equipment defects 

affecting safety shall be corrected before the equipment is used." 

The record does not establish that the truck in question was 

being used. Inasmuch as section 57.9002, requires safety defects 

to be corrected as a condition precedent to the use of the equipment, it is clear that there is no violation in the absence of 

evidence of the equipment being used. Since there is no evidence 

that the truck in question was being used, the Citation herein is 

dismissed. 

1295 
Citati6n No. 3253340. 

Shanholtz indicated that on October 17, 1988, one of 

Respondent's employees, Raymond Patton, told him that the previous day he had to throw rocks under the wheel of a compressor 

truck in order to stop it, as the brakes did not hold. He also 

indicated that another employee had told him that he had trouble 

with brakes the day before. Shanholtz said that he did not start 

the truck, but applied the brake with his foot and there was no 

resistance as the pedal went to the floor. He said he checked 

for hydraulic fluid, but did not find any. 

Teddy Combs testified on behalf of Respondent and indicated 

that he operated the truck in question and stopped it by applying 

the brakes. 

I do not place much weight on Combs' testimony, as his testimony did not establish that he was able to stop the truck the 

same date as Shanholtz' inspection, or at some time in close 

proximity to that day. Based on the testimony of Shanholtz, I 

conclude that the brakes on the truck in question were not 

adequate, and as such Respondent violated 30 C.F.R. § 57.9003. 

According to Shanholtz, the violation herein was significant 

and substantial based on the experience of MSHA that operating a 

vehicle without brakes is highly likely to result in a fatality 

or serious injury. In the absence of specific testimony with 

regard to the specific terrain on which the vehicle in question 

traveled, and the circumstances under which it was operated, I 

find the testimony of Shanholtz insufficient to support a conclusion that the violation herein was significant and substantial. 

According to the uncontradicted testimony of Shanholtz, he 

was told by two employees that they had driven the truck in 

question the previous day and the brakes did not work. Further 

it is clear that one operating the truck would have noticed that 

the brake pedal did not have any resistance. Hence I find the 

Respondent herein acted with a relatively high degree of negligence in not having the brakes repaired. Taking this into 

account, as well as the remaining statutory factors, I find that 

a penalty herein of $200 is appropriate for the violation herein. 

Citation No. 2861242. 

Shanholtz indicated that on August 17, 1988, he inspected an 

''old" truck which had a mobile drill placed on it (Tr. 277). He 

said that the foot brake pedal went to the floor, and that 

although the truck had an air braking system, there still should 

have been some resistance to the brake pedal. He indicated that 

he did not start the truck, but the brake lines were "deteriorated," bent and broken, and "nonfunctional" (Tr. 280). He 

indicated that although there was a parking brake handle which he 

1296 
applied, he looked and to the best of his knowledge there was no 

cable . He also indicated that Respondent's employees told him 

that they had to drive the truck into a stock pile or rib to stop 

it whenever they used it. 

Combs indicated that he had operated the drill prior to 

August 17, and that the brakes did operate. He said that the 

engine must operate before the hydraulic system can function. He 

also said that the parking brake worked. Williams indicated that 

he used the truck once or twice and the parking brake did work. 

I do not place much weight on the testimony of Combs and 

Williams with regard to the functioning of the brakes on the subject truck, as Williams indicated that he used it only once or 

twice and did not indicate the time period in which he used it, 

and how close that period was to the inspection by Shanholtz. 

Combs indicated that he last ran the truck 3 weeks to a month 

prior to the inspection. I find this too remote in time to be 

probative of the condition of the brakes at the date of 

inspection. 

Based on the testimony of Shanholtz, I find that the truck 

did not have adequate brakes. The truck clearly is a power 

mobile piece of equipment, in spite of the fact that at the time 

of the inspection it had flat tires. As such, I find that there 

has been a violation herein of section 57.9003, supra, as cited 

by Shanholtz. The testimony of Shanholtz and the balance of the 

evidence with regard to the issue of significant and substantial, 

is essentially the same as was presented in Citation No. 3253340. 

For the reason that I discussed, infra, P. 6, I find that it has 

not been established that the violation herein was significant 

and substantial. I find that a penalty herein of $200 is appropriate, based on the same reason set forth in Citation Nos. 

3253336 and 3253340, infra, P. 6, 7. 

Citation No. 2861244. 

Shanholtz, in essence, indicated that on August 17, 1988, he 

observed a lot of large overhanging trees (Tr. 330) which he 

described as an extremely dangerous situation. He also said 

"There was loose ground there. It was obvious, large slabs." 

(Tr. 331). According to notes he had made on August 17, 1988, he 

indicated that the material he observed was above and to both 

sides of the portal. Shanholtz issued a citation alleging violation of 30 C.F.R. § 57.3200, which, as pertinent, provides that 

"Ground conditions that create a hazard co persons shall be taken 

down or supported before ocher work or travel is permitted in the 

affected area." 

Respondent presented testimony from Denton and Williams. I 

do not place much weight on their testimony with regard to the 

conditions in question as neither of them observed the conditions 

on the date in question, and their testimony was limited to 

interpreting photographs (Exhibits 26, 28, 29, and 37). 

1297 
Based on Shanhotz' testimony I find that on the date of the 

Citation there were certain conditions that created a hazard. 

However, on the date in question, there is no evidence that there 

was any work or travel in any area affected by the observed conditions. Denton and Williams preferred their opinions, based 

solely on their examinations of the photographs, Exhibits 26, 28, 

29, and 37, as to the time sequence of various shots. I do not 

find any of this testimony helpful in resolving the issues herein. 

I find that Petitioner has failed in its burden in establishing 

by competent evidence that any work or travel was permitted by 

Respondent in any area affected by the conditions he observed 

that he termed to be dangerous. Indeed, there is no evidence 

whatsoever which delineates the "affected area." (Section 

57.3200, supra). Hence I must conclude that it has not been 

established that there has been any violation of section 57.3200, 

supra. Accordingly, I find that Citation No. 2861244 shall be 

dismissed. 

Citation No. 20612147. 

Shanholtz indicated that on August 17, 1988, he observed a 

front-end loader operating in "uneven terrain" (Tr. 406). He 

said that Raymond Parks was operating it and that he (Shanholtz) 

noticed that Parks was using the reverse gear to stop the loader 

when it was going forward, and using the forward gear to stop it 

when it was going backwards. Shanholtz said that he asked Parks 

to back it up and stop it, and Parks backed the vehicle up at 

5 to 10 miles an hour, put the brake on, pumped the brakes three 

times and it traveled approximately 100 feet before it stopped. 

He said that the vehicle stopped when Parks dropped the bucket. 

Shanholtz said that he asked Parks if there were problems with 

the brakes, and Parks said that he "didn't have any" (Tr. 408). 

Shanholtz indicated that he did not check the hydraulic system 

reservoir, and said that the backup system can only be used 

4 or 5 times. Shanholtz issued a Citation alleging a violation 

of 30 C.F.R. § 57.9003. 

Williams testified that at approximately 6 a.m. on the day 

of the inspec~ion, August 17, he loaded the above vehicle and it 

stopped "real fast" (Tr. 425). He said that after the inspection 

the booster system was checked with a gauge, and it read 300 

pounds which @eant it was not depleted. He indicated that to 

abate the Cit3tion a hydraulic system pump was replaced, but that 

the old one was "operating good" (Tr. 431). In essence, he 

indicated that the reason why the pump was replaced was "because 

he had to try and fix it whatever was wrong with it" (Tr. 428). 

Although ~he brakes may have operated satisfactorily when 

Williams drove the vehicle in question at 6 a.m., I find nothing 

in the record ~o contradict the observations of Shanholtz at 

approximately 2:30 p.m., with regard to Parks' inability to stop 

the vehicle in question. I find Shanholtz' testimony with regard 

to nis observ~~ions sufficient to establish a viol3tion of 

1298 
section 57.9003, supra, which, in essence, requires mobile equipment to have "adequate brakes." Shanholtz• testimony with regard 

to the issue of significant and substantial was essentially the 

same as presented in Citation Nos. 3253336, 3253340, and 2861242, 

1nrra. Aside from Shanholtz• indication that the vehicle was 

being operated over uneven terrain, there was insufficient 

evidence presented as to the speed at which the vehicle was 

operated, the presence of dangerous obstructions or drop-offs, 

nor was there presented any detailed description of the terrain. 

Further, I note that Shanholtz did not check the brake reservoir, 

and Williams testified that after the Citation the booster system 

still contained 300 pounds, which indicates that it was not 

depleted. This testimony has not been contradicted. Hence, I 

must conclude that it has not been established that a reasonably 

serious injury was reasonably likely to occur as a consequence of 

the impaired braking of the vehicle in question. Accordingly, it 

has not been established that the violation herein was signif icant and substantial. Essentially for the reasons I discussed in 

Citation Nos. 3253336, 3253340, and 2861242, I find that a 

penalty herein of $200 is appropriate. 

Citation No. 2861248. 

Shanholtz indicated that access to a clutch on the crusher 

used to energize a diesel drive, was only by crawling under a 

V-belt which would subject one to being immediately killed, or 

coming behind the crusher where one would be exposed to unsure 

footing and V-belts. Shanholtz indicated that, on August 17, 

1988, two employees were present, one whose first name was 

identified as Arnold, and Parks. Shanholtz indicated that Arnold 

demonstrated for him access to the clutch by crawling under the 

belt, and that Parks demonstrated access by going behind the 

crusher. Neither Shanholtz, nor Denton, who was present, recalled 

seeing any steps going up to the platform where the clutch was 

located. Denton indicated that, on August 17, he was on the 

platform. He indicated he did not go up any steps to reach it and 

did not recall seeing any steps. He indicated he got off the 

platform by jumping off. Shanholtz issued a Citation alleging a 

violation of 30 C.F.R. S 11081 which provides that "Safe access 

shall be provided and maintained to all working places." 

Exhibit B, which, according to Respondent's Vice President 

Jeffrey T. Staton, indicates the crusher in question, clearly 

depicts steps going up to the platform on which the clutch was 

located. According to Staton•s testimony the crusher was 

installed in 1984, and always had steps on it. Staton indicated 

that Exhibit B depicts steps the same way they were located on 

August 17, 1988. 

1299 
Based on observations of Staten's demeanor, I find, that as 

depicted on Exhibit B, there were steps on August 17,1988, leading 

to the platform on which a clutch was located. There is no 

evidence that this means of access was not safe. Accordingly, I 

find that it has not been established that there has been a violation herein of section 57.11001, supra. For these reasons 

Citation No. 2861248 should be dismissed. 

ORDER 

It is ORDERED that Citation Nos. 3253179, 3253131, 3253338, 

2861244, 2861248, 3253127, 2861249, 3253324, and 2861250 be 

DISMISSED. It is further ORDERED that Citations 3553336, 3253340, 

2861242, and 20612147 shall be amended to reflect the fact that 

the violations cited therein are not significant and substantial. 

It is further ORDERED that, within 30 days of this Decision, 

Respondent pay $820 as a civil penalty for the violations found 

herein. 

Distribution: 

A am Weisberger 

Administrative Law Judge 

Michael L. Roden, Esq., Office of the Solicitor, U. S. Department 

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

37215 (Certified Mail) 

Mr. Jeffrey T. Staton, Vice President, Mountain Parkway Stone, 

Incorporated, Rt. 1, Box 309-B, Stanton, KY 40380 (Certified Mail) 

dcp 

1300 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041. 

JUL 14 \989 

RUSHTON MINING COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Respondent 

. . 

CONTEST PROCEEDING 

Docket No. PENN 88-245-R 

Citation No. 2885765; 6/2/88 

Rushton Mine 

DECISION 

Appearances: Joseph A. Yuhas, Bsq., Ebensburg, Pennsylvania, 

for Contestant, Rushton Mining Company (Rushton); 

Anita Eve, Esq., Office of the Solicitor, U.S. 

Department of Labor, Philadelphia, Pennsylvania, 

for Respondent, the Secretary of Labor (Secretary}. 

Before: Judge Broderick 

STATEMENT OF THE CASE 

Rushton filed a notice contesting the issuance of a citation 

on June 2, 1988, under section 104(a) of the Federal Mine Safety 

and Health Act of 1977 (Act), charging a violation of 30 C.F.R. 

§ 75.305. It also contests the designation of the violation as 

significant and substantial. The time for abatement was 

originally established at June 3, 1988, but this date was 

extended by a series of continuation orders to March 31, 1989. 

The record does not show whether the citation has been terminated. 

A penalty had not been asesssed for the alleged violation as of 

the hearing date. Pursuant to notice, the case was called for 

hearing in Bellefonte, Pennsylvania on April 12, 1989. Inspector 

Donald Klemick testified on behalf of the Secretary. 

Raymond G. Roeder, James A. Strenke, Charles Hockenberry and 

Robert Supco testified on behalf of Rushton. The parties were 

afforded the opportunity to file posthearing briefs. Rushton 

filed such a brief; the Secretary did not. I have considered the 

entire record and the contentions of the parties and make the 

following decision. 

1301 
FINDINGS OF FACT 

1. Rushton is the owner and operator of an underground coal 

mine near Johnstown, Pennsylvania, known as the Rushton Mine. 

Rushton is a subsidiary of Pennsylvania Mines Corporation. 

2. The Rushton Mine is a very wet mine and has always had 

water problems. Approximately 6 million gallons of water are 

pumped out daily, and in very wet weather as many as 12 million 

gallons are pumped out. 

3. The return air courses in the subject mine contained at 

least three "water holes," i.e., areas where the mine floor was 

covered with water. The air courses had been mined between 1977 

and the early 1980's. 

4. The area marked as water hole No. 1 on the mine map 

(Joint Ex. 1) was covered with water approximately 16 inches deep. 

The water in the area of water hole No. 2 was somewhat more than 

16 inches deep. At water hole No. 3, the water was approximately 

4 feet deep. 

5. The length of the area covered by water hole No. 1 was 

approximately 40 feet; that covered by water hole ~o. 2 

approximately 40 feet; and that covered by water hole No. 3 

approximately 150 to 180 feet. 

6. The subject mine liberates methane, but there is no 

evidence in the record as to the amount. Since 1981, there has 

been one methane ignition at the mine, in July 1981. 

7. The return air course is normally examined weekly by 

Rushton, using two examiners, each examining one portion of the 

air course. The area including water holes 1 and 2 is examined 

by one examiner; that including water hole 3, by another. 

8. On May 30, 1988, 1/ mine examiner Charles Hockenberry 

examined the return air course from the West Main hill (near 

water hole No. 1) to the Two North Area (beyond water hole No. 2). 

The area that he examined covered four bleeder evaluation points 

(BE's). 

1/ Hockenberry testified that he performed the examination on 

June 30, 1988, but the context makes it clear that he meant 

May 30, 1988. 

1302 
9. Hockenberry recorded his initials, the date and time at 

date boards located at BE 20, BE 21, BE 3, BE 4, and at an old 

regulator at or near water hole No. 2. All of these locations 

were in the return air course, and the initials, date, and time 

were intended to show that he examined the return air course and 

the bleeders. 

10. Hockenberry was able to walk through water hole No. 1 

which was of a depth that it reached the top of his boots. He 

walked into water hole No. 2 and examined the roof and ribs 

visually across the water hole. From where he stood, it was 

approximately 20 feet to the far water's edge. He examined the 

other side of the water hole at the water's edge. 

11. On June 2, 1988 (during the midnight shift), mine 

examiner James Strenke examined the return air course from the 

Two North Switch to an area beyond water hole No. 3. 

12. Strenke walked into the water at water hole No. 3, but 

the water was too deep to traverse the area. He tested the roof, 

did ventilation and methane tests, and checked for oxygen 

deficiency. He could see part of the way across the water 

(approximately 200 feet) and thought he could see across the 

entire surf ace. 

13. Strenke failed to record his initials, the date and 

time at the No. 3 waterhole. He travelled around the area, came 

back to the return entry, and examined the other side of the 

water hole at the water's edge. He did not record his initials, 

the date and time at that side of the water hole. 

14. On June 2, 1988, Federal Coal Mine inspector 

(ventilation specialist) Donald J. Klemick was assisting in the 

AAA inspection of the entire Rushton Mine. He was accompanied by 

Kent Fenush, company Safety Inspector and Greg Archer, 

representative of the miners. The inspection team proceeded down 

the return air course past three or four bleeder evaluation 

points to water hole No. 1. Fenush had been with Rushton only a 

short time. He was not familiar with the areas inspected. 

Neither Fenush nor Archer were called as witnesses. 

15. Inspector Klemick found examiner's initials dated 

May 23, 1988, but did not find any initials dated after May 23, 

1988. Nor were Fenush or Archer able to find any more recent 

initials. No initials were seen at the water's edge of water 

hole No. 1. 

16. After by-passing the water hole, Klemick came back to 

the return air course. He found no initials at the other edge of 

the water. He did find a date, May 30, 1988, at bleeder 

1303 
evaluation point No. 4, but no initials. Bleeder evaluation 

point 4 is between water holes 1 and 2. The inspection team 

proceeded to water hole 2 which they found impassible, filled 

with water and "yellow boy." They went around the area and 

reentered the return proceeding to water hole No. 3. 

17. Water hole No. 3 was very deep and extended a distance 

of about 180 feet. 

18. After exiting the mine, Inspector Klemick checked the 

examination records at the mine office. These showed that the 

examinations had been made May 30, 1988, by Hockenberry. 

19. After Klemick left, Rushton's Superintendent, 

Robert Supko, had his third shift foreman check for the initials. 

He was accompanied by a UMWA belt examiner. Five locations were 

found containing date boards with Hockenberry's initials, the 

date May 30, 1988, and the time written on them. The 

Superintendent had one board brought out of the mine to show 

Klemick when he returned. 

DISCUSSION 

Although the inspector did not find any evidence (initials, 

date and time}, that the return air course had been inspected 

within the prior seven days, I accept the testimony of 

Hockenberry and Strenke that such inspections were actually made, 

Hockenberry's on May 30, 1988 and Strenko's before 8 a.m., on 

June 2, 1988. I further accept the testimony of Hockenberry, 

corroborated by Superintendent Supko, that he placed his 

initials, the date and time at five locations along the return 

aircourse on May 30, 1988. Strenke was uncertain as to whether 

he placed his initials and the date and time of his examination 

on June 2, 1988. I find that he did not. 

20. On October 29, 1987, MSHA Administrator for Coal Mine 

Safety and Health issued a memorandum to MSHA District Managers 

which, among other things, stated: 

Section 75.305 requires weekly examinations of air 

courses and other areas by a certified person. 

Modification of these requirements where a roof fall 

has occurred, or where an area is unsafe for travel, 

can be achieved only through the petition for 

modification procedures . • • (GX 2). 

21. Inspector Klemick issued a citation alleging a 

violation of 30 C.F.R. § 75.305 because the West Mains return 

air course was not being examined in its entirety. The citation 

charged that there were three areas of standing water and that 

1304 
the evidence indicates they were being by-passed. In addition 

there was no evidence of dates, times, and initials present to 

indicate that the return aircourse was being examined at 

intervals not exceeding seven days. 

22. The citation was continued while water was being 

removed from water hole 1 and 2 and a bridge was constructed over 

a portion of water hole 2. Rushton filed a petition for 

modification with respect to the area covered by water hole 3. 

REGULATION 

30 C.F.R. § 75.305 provides in part as follows: 

In addition to the preshift and daily examinations ••• , 

examinations for hazardous conditions, including tests 

for methane, and for compliance with the mandatory 

health or safety standards, shall be made at least once 

each week by a certified person ••• in the return of 

each split of air where it enters the main return ••• , 

at least one entry of each intake and return aircourse 

in its entirety •••• The person making such 

examinations and tests shall place his initials and the 

date and time at the places examined, and if any 

hazardous condition is found, such condition shall be 

reported to the operator promptly. 

* * * 

ISSUES 

1. Whether, within seven days of June 2, 1988, examinations 

by certified persons were made in the return air course of the 

west Mains of the Rushton Mine? 

2. Whether, if such examinations made, the person(s) making 

the examinations placed their initials, and the date and time at 

the places examined? 

3. Whether, if a violation is established, it was 

significant and substantial? 

CONCLUSIONS OF LAW 

1. Respondent is subject to the provisions of the act in 

the operation of the Rushton Mine. I have jurisdiction over the 

parties and subject matter of this proceeding. 

2. The required weekly examinations of return air courses 

do not mandate that the examiner walk the entire area, but he 

1305 
must be able to adequately examine the entire area for hazardous 

conditions and for compliance with mandatory health and safety 

standards. 

3. With respect to the water holes involved in this 

proceeding, 1 conclude that the examiner adequately examined the 

area of water hole No. 1 Che walked through the water hole) and 

water hole No. 2. In the latter instance, he made methane tests 

at the water's edge and was able to adequately examine the roof 

and ribs by sighting over the water--a distance of about 20 feet. 

I further conclude that the examiner was unable to adequately 

examine the area of water hole No. 3. The water hole was 

impassible, and it was not possible to adequately examine the 

roof and ribs by sighting over a distance of 180 feet. 

4. I conclude, based on my finding of fact No. 9, that the 

examiner placed his initials and the date and time at the places 

examined in the areas covering water holes 1 and 2. 

5. I conclude, based on my finding of fact No. 13, that the 

examiner did not place his initials and the date and time at the 

places examined in the area covering water hole 3. 

6. Therefore, I conclude that a violation of 30 C.F.R. 

§ 75.305 has been established to the extent that an adequate 

examination was not made of the area covered by water hole 3 and 

the examiner failed to place his initials and the date and time 

of the examination in that area. 

7. There is no evidence in the record that the violation 

was reasonably likely to result in an injury of a reasonably 

serious nature. Therefore, the citation was improperly 

designated as significant and substantial. 

ORDER 

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

IT IS ORDERED: 

1. Citation 2885756 issued June 2, 1988, is AFFIRMED to the 

extent that it charges a violation of 30 C.F.R. § 75.503 for 

failure to examine that portion of the return air course which 

includes water hole No. 3, and failure to cecord the examiner's 

initials and the date and time of examination at that area. 

2. The citation is MODIFIED to eliminate the designation of 

the violation as significant and substantial. 

1306 
3. The Notice of Contest is therefore GRANTED in part and 

DE"NIED in part. 

Distribution: 

,, ·/ 

1:1~·u,s ~1-vfc~1e/_ ___ James A~ Broderick 

Administrative Law Judge 

Joseph A. Yuhas, Esq., P.O. Box 367, Ebensburg, PA 15931 

(Certified Mail) 

Anita Eve, Esq., U.S. Department of Labor, Office of the 

Solicitor, 3535 Market Street, Philadelphia, PA 19104 (Certified 

Mail) 

slk 

1307 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 14 1989 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND rlEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. YORK 89-2-M 

A.C. ~o. 30-00006-05525 

v. Blue Circle Atlantic, Inc. 

BLUE CIRCLE ATLANTIC, 

INCORPORATED, 

Respondent 

DECISION 

Appearances: ,Jane Snell Brunner, Esq., Office of the 

Solicitor, U.S. Department of Labor, New York, 

New York for Petitioner; 

Paul Gardner, Labor Relations/Safety Manager, 

Blue Circle Atlantic, Inc., Ravena, New York, and 

Mark A. Lies, II, Esq., Seyfarth, Shaw, 

Fairweather & Geraldson, Chicago, Illinois for 

Respondent. 

Beiore: Judge Melick 

This case is 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 seq., the "Act," charging Blue 

Circle Atlantic, Incorporated (Blue Circle) with one 

violation of the regulatory standard at 30 C.F.R. S 56.14006. 

The general issue before me is whether Blue Circle violated 

the cited regulatory standard and, if so, the appropriate 

civil penalty to be assessed in accordance witn section 

llO(i) of the Act. 

The citation at bar, No. 2630320, issued pursuant to 

section 104(a) of the Act, alleges a "significant and 

substantial" violation and, as amended, charges as follows: 

An employee was required to apply 

take-up pulley drive on the ~o. 1 

~Jrevent. the pulley from slippin9. 

open and the conveyor was running 

1308 

speedi-dry to d 

main conveyor to 

The guard was 

w.iririg the 
application process which occurred at 4:05 pm, 

6-30-88 on the second shift. 

The cited standard requires that "[e]xcept when 

testing the machinery, guards shall be securely in place 

while the machinery is being operated." 

At hearing Blue Circle conceded that a violation 

occurred but maintained that it was caused by the 

unauthorized actions of a non-supervisory employee, 

Michael Carrano and, presumably, that it was accordingly 

without negligence. 

Former Blue Circle employee Michael Carrano testified 

that before his retirement on March 31, 1989, he had worked 

more than 23 years for Blue Circle. At the time of the 

alleged violation he was working as a utility man, cleaning, 

aligning and maintaining the No. 1 belt. Carrano described 

the belt, which transports rock and stone, as 3 to 4 feet 

wide and running about 3,000 feet in each direction. 

Carrano testified that on June 30, 1988, a "spin-out" 

occurred on the No. 1 belt caused by wet conditions. A 

"spin-out" results from slippage between the drive pulley and 

the belt causing the belt to slow down or stop. Spin-outs 

are corrected by feeding scoops of a substance known as 

''speedi-dry" onto the pulley as it rotates thereby providing 

friction' between the pulley and the belt. 

~ccording to Carrano it had been the established 

procedure for as long as 20 years to correct a spin-out by 

first removing the guard surrounding the belt pulley and then 

calling the crusher operator by mine telephone to stop the 

belt. An initial quantity of speedy-dry would then be 

scooped onto the pulley and the belt started. Additional 

speedy-dry would then thrown onto the rollers as the pulley 

is rotated. Since the wire mesh on the guard was too fine to 

enable any significant application of speedi-dry to the 

rollers it was found to be necessary to remove the guard 

before application. Carrano testified that he had been 

taught this procedure by his foreman Ray Shove. Other Blue 

Circle employees including union committeeman Richard Boice, 

crusher operator Arnold Schieren, Jr., Martin Powell, and 

crusher operator Edward Smith, confirmed that these 

procedures had been followed at the plant for years. The 

testimony of Boica is also undisputed that he warned Lloyd 

Shove within six months before the incident at issue and also 

the current superintendent about the inability to a9ply 

speedi-dry through the exi.3ting mesh 9uard. iie inr~r;ned oath 

that it was thererore necessary for the employee3 to open the 

1309 
guard and apply the speedi-dry onto the moving belt. It is 

further undisputed that these officials admitted to Boice 

they knew they had a problem and were planning on correcting 

it in September 1988. 

According to Carrano, several months before June 30, 

1988, the Blue Circle employees were warned by company 

officials to no longer remove the guard. On June 30, 1988, 

another spin-out occurred because of rain. Carrano's 

foreman, John Zubris, told Carrano by telephone to get the 

belt running. What happended next was described at hearing 

by Carrano in the following colloquoy: 

Q [By Government Counsel] Now, on June 30th, 1988 

after the belt spun out, tell us precisely what 

happened. 

A [By Carrano] Well, at this time the belt spun 

out -- this happend after we had orders not to open 

that guard, and not to open that guard under no 

circumstances, you'll be fired. So, the belt spun 

out and I realized I couldn't get speedi-dry in 

there. So I called my foreman, John Zubris, told 

him I can't*** 

And I told him I can't feed speedi-dry in cause I 

can't take the guard off. He said, "Well, I want 

the belt running." I said, "I can't." He said, 

Mikey, get that belt running." I said John, I 

can't." I said, "I can't take the guard off because 

I'll be fired." 

So, he says, "Mike, get your wrench, take that nut 

off there." He said, "Don't let me colile up those 

"f-ing" stairs and have to do it. Get that belt 

running." 

So meanwhile I got my wrench -- well, I did ask 

him, I 3aid, "If I take this guard off, would you 

back me up on this?" He said, "yep." I took the 

guard off. He come up while I was taking the guard 

off, and before I fed speedi-dry on the belt he 

left. 

Then I proceeded to throw speedi-dry on there, and 

I had the crusher operator on the phone and I told 

him to start it, and as he started I ~ept feeding 

it, and we got the belt running. So, I didn't 

thin~ this ~as a very good idea, so I told Dick 

1310 
Boice [the union representative] about it. 

(Tr. 16-18). 

Boice recalled that on June 30, 1988, Carrano indeed 

called him on the mine telephone. Carrano had been 

confronted by Zubris and was agitated. Boice overheard 

Zubris "screaming at the top of his lungs" on the phone 

ordering Carrano "you'll do what I tell you, when I tell you, 

and I don• t care if you like it or not". 

Inspector William Prehoda of the Federal Mine Safety and 

Health Administration (MSHA), issued the citation at bar 

based upon Carrano's statements that Zubris directed him to 

perform the cited procedure. Prehoda described the hazard as 

follows: 

by putting speedi-dry on with the scoop -- and this 

is what Mike Carrano stated he had the guard open 

and he was putting speedi-dry on with a scoop, 

and •.. the conveyor was running, and this by being 

the pinch points it could have caught his arm and 

probably pulled his arm off, or even himself got 

thrown into the pulleys so, in other words, it was 

an unsafe act .•. 

This unchallenged testimony is minimally sufficient to 

support an inferential finding that the violation was 

"significant and substantial" and serious. See Secretary v. 

Mathies Coal Co., 6 FMSHRC 1 (1984). 

Prehoda also opined that the operator was highly 

negligent because "it was done quite frequently and it should 

have been corrected"._ In this regard Prehoda credited 

Carrano's statement that he had been directed to perform the 

violative act by his foreman John Zubris. Prehoda therefore 

necessarily discredited Zubris' statement to him that while 

he had directed Carrano to throw the material onto the pulley 

he also told Carrano to close the guard before running the 

belt. However upon close examination of the testimony of 

Carrano and Zubris and of those additional persons present at 

the meeting on July 1, 1988, i.e. Boice and Schucker, I am 

satisfied that Zubris did not in fact instruct Carrano 

specifically to throw speedi-dry onto the belt with the guard 

open while the belt was moving. Zubris' instructions were of 

course admittedly in violation of the company's March safety 

directive against opening the guard without the belt being 

locked-out. Carrano may have accordingly been seriously 

concerned by Zubris' order b~t I do not find that Zubris 

directly ordered Carrano to violate the cited standard. 

1311 
Blue Circle is not however without negLigence. The 

evidence shows the existence of a long standing practice of 

many years during which speedi-dry was applied to a moving 

pulley with its guard open. In spite of the company memo 

issued in March 1988 ostensibly prohibicing the practice, 

management knew that the only effective application of 

speedi-dry was with the guard open. It is undisputed that 

Boice so informed several company of£icials and was toid only 

that the problem would not be corrected until September 1988. 

Thus while Car~ano may not have been directly ordered to 

perform the cited violative act, he was nevertheless placed 

in a position by Zubris' orders (to get the belt running) of 

being compelled to commit the violative act because it was 

within the knowledge of management that the only way to get 

the belt running under the circumstances was to apply the 

speedi-dry onto the moving belt with the guard open. This 

compulsion under the circumstances constitutes high 

negli9ence. 

Considering the criteria under section llO(i) of the Act 

I find that a civil penalty of $400 is appropriate. 

ORDER 

Blue Circle Atlantic, Inc. is hereby direc~ed to pay a 

civil penalty of $400 within 30 days of the dat~ of this 

decision. 1 

. -",\\ ,r , \ \ I '-·· 

/ 

I I . ·,_,· \, )·~ \.-/

. .. "--'"'--

Distribution: 

I . ,__, 

Gary Me ·ck 

Adminis drati ve 

( 703) 75~-6261 

j 

,I 

~-

\ 

Law \ujge 

\ 

\j 

.• 

Jane Snell Brunner, Esq., U.S. Depart~~nt of Labor, Office of 

the Solicitor, 201 Varick Street, New ~ork, NY 10014 

(Certified Mail) 

Mr. Paul W., Gardner, Labor Relations/Safety Manager, P.O. 

Box 3, Ravena, NY 12143 (Certified Mail) 

~ark A. Lies, II, Esq., Seyfarth, Shaw, Fairweather & 

Gearaldson, 55 East Monroe Street, Chicago, IL 60603 

(Certified Mail) 

nt 

1312 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRE'rARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRA'rION (MSHA), 

Petitioner 

v. 

GREEN RIVER COAL CO., INC., 

Respondent 

JUL 18 1989 

. . 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 89-82 

A.C. No. 15-13469-03696 

No. 9 Mine 

Appearances: Joseph B. Luckett, Esq., Office of the Solicitor, 

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

the Secretary of Labor (Secretary); 

Mr. William Craft, Madisonville, Kentucky, for 

Green River Coal Co., Inc. (Green River). 

Before: Judge Broderick 

STATEMEN~ OF THE CASE 

The Secretary seeks civil penalties for two alleged 

violations of mandatory safety standards: one charges a 

violation of 30 C.F.R. § 75.1710 because a scoop allegedly used 

inby the last open crosscut was not provided with a canopy; the 

other charges a violation of 30 C.F.R. § 75.503 because of a 

permissibility violation on a loading machine. Pursuant to 

notice the case was heard in Owensboro, Kentucky on June 7, 1989. 

George Newlin testified on behalf of the Secretary. Mike 

McGregor testified on behalf of Green River. The parties waived 

their right to file post hearing briefs. I have considered the 

entire record and the contentions of the parties and make the 

following decision. 

FINDINGS OF FACT 

FINDINGS RRLATING TO BOTH CITATIONS 

Green River is the owner and operator of an underground coal 

mine in Hopkins County, Kentucky, known as the ~o. 9 Mine. The 

mine is moderately large: it produces over one million tons of 

coal annually, and employs approximately 200 workers. During 

the 24 month period from October 28, 1986 to October 27, 1988, 

the mine was cited for 1,057 violations of inandatory safety and 

1313 
health standards; 10 of these were for violations of 30 C.F.R. 

§ 75.1710; 74 were for violations of § 75.503. This is a 

substantial history of prior violations, and if violations are 

found herein, the penalties will be increased because of it. The 

violations cited herein was promptly abated in good faith after 

the citations were issued. 

CITATION 3297516 

On October 28, 1988, at about 5:25 a.m., Federal Coal Mine 

Inspector George Newlin issued the subject citation while making 

a regular inspection of the ~o. 9 Mine. The mine was not 

producing coal during the midnight shift, and only maintenance 

work was being performed. The inspector came upon a scoop in the 

No. 2 unit, about three crosscuts outby the face. The scoop was 

at the charging station being charged. Since it was being 

charged, it was deenergized. The canopy had been removed from 

the scoop. The height of the coal was approximately 50 inches. 

The roof condition in the subject mine is not good. The mine has 

experienced a large number of unexpected roof falls. 

The scoop was not locked or tagged out. Inspector Newlin 

was accompanied by company safety inspector (now safety director) 

Mike McGregor, and Union representative Jarvis. Both McGregor 

and Jarvis said the scoop was a unit scoop and was used for 

cleanup at the coal face. McGregor said he was surprised that it 

did not have a canopy. 

Green River has a number of scoops, all of them electric 

powered. Those used at the face are provided with canopies; 

those used outby are not. I find as a fact that the scoop cited 

herein was regularly used at the face. Its canopy had been 

removed and not replaced. The next production shift was to begin 

work at about 8:25 a.m. on October 28, 1988. 

The violation was abated by replacing the canopy on the 

scoop in question. The citation was terminated October 31, 1988. 

CITATION 3297518 

On October 28, 1988, at about 6:00 a.m., Inspector Newlin 

found an opening in a control panel of a loading machine to be in 

excess of the permissibility limit (the opening was .005 inch; 

.004 inch is the limit permitted). The loader was not energized, 

the mine was on the maintenance shift and not producing coal. 

The loading machine was in the entry at the last open crosscut. 

It had a permissibility plate or label and had been used and was 

intended to be used in the production of coal. The subject mine 

liberates in excess of 700,000 cubic feet of methane per day. At 

1314 
the time the citation was issued, the inspector found between .2% 

and .3% methane. The air was good. 

The violation was abated by tightening the bolts on the 

control panel and closing the gap to within .004 inch. The 

citation was terminated at 6:30 a.m., October 28, 1988. 

REGULATIONS 

30 C.F.R. § 75.1710 provides as follows: 

An authorized representative of the Secretary may 

require in any coal mine where the height of the 

coalbed permits that electric face equipment, including 

shuttle cars, be provided with substantially 

constructed canopies, or cabs, to protect the miners 

operating such equipment from roof falls and from rib 

and face rolls. 

30 C.F.R. § 75.503 provides as follows: 

The operator of each coal mine shall maintain in 

permissible condition all electric face equipment 

required by §§ 75.500, 75.501, 75.504 to be permissible 

which. is taKen into or used inby the last open crosscut 

of any such mine. 

ISSU~S 

1. Whether the Secretary can cite an operator for failure 

to have a canopy on electric face equipment without observing the 

equipment being operated at the coal face? 

2. Whether the facts establish a violation of 30 C.F.R. 

§ 75.1710? 

3. Whether the Secretary can cite an operator for a 

permissibility violation at a time when the cited electric face 

equipment is not being operated, i.e., when the section is idle? 

4. Whether the facts establish a violation of 30 C.F.R. 

§ 75.503? 

5. If the violations are established, whether they were 

significant and substantial? 

6. If the violations were established, what are the 

appropriate penalties? 

1315 
CONCLUSIONS OF LAW 

JURISDICTION 

Green River is subject to the provisions of the Mine Act in 

the operation of the subject mine. I have jurisdiction over the 

parties and subject matter of this proceeding. 

CANOPY ON SCOOP 

Section 104(a) of the Act provides that if upon inspection 

an authorized representative of the Secretary believes that an 

operator of a coal mine has violated the Act or any mandatory 

safety stadard, he shall issue a citation to the operator. The 

statute does not require that the authorized representative 

observe the violative condition; he need only believe that a 

violation occurred. In the present case, I have found as facts 

(1) the scoop was present in the section and did not have, as the 

regulations required, a canopy to protect the scoop operator; (2) 

the inspector was informed by representatives of the miner and by 

a union miner that the scoop was a "unit scoop used on the unit 

for cleanup." (Tr. 11); (3) the mine produced coal on the shift 

prior to the inspection and expected to produce coal on the 

shift subsequent to the inspection. Based on these facts, the 

inspector reasonably believed that a violation occurred. I 

conclude that the scoop was an item of electric face equipment 

and required a substantially constructed canopy. A violation of 

30 C.F.R. § 75.1710 has been established. 

The subject mine has a history of roof falls. The roof is 

not a stable roof. The operation of electric face equipment 

without a canopy is reasonably likely to result in serious injury. 

I conclude that the violation was significant and substantial. 

The absence of the canopy on the scoop was obvious. It had been 

removed for some unknown reason. I conclude that the violation 

resulted from Respondent's negligence. Based on the criteria in 

section llOCi) of the Act, I conclude that an appropriate penalty 

for the violation is $250. 

PERMISSIBILITY VIOLATION 

30 C.F.R. § 75.503 requires an operator to maintain in 

permissible condition all electric face equipment which is taken 

into or used inby the last open crosscut. Neither the Act nor 

the regulations require that the inspector observe the equipment 

actually being operated inby the last open crosscut. Such a 

requirement would defeat the whole purpose of the regulation. 

There is no question that the loader was electric face equipment. 

There is no question that it had been operated in~ the last open 

crosscut. It was in fact in the entry at the last open crosscut 

1316 
when cited. It was not contested that the equipment was not 

permissible. I conclude that a violation of 30 C.F.R. § 75.503 

was established. 

Because the subject mine liberated considerable methane the 

violation was serious. It was reasonably likely to cause serious 

injury to miners. Therefore the violation was significant and 

substantial. The condition could have been found on weekly 

examination, but there is no evidence that it existed at the time 

of prior weekly exam: it could have resulted at any time from 

vibrations, etc. Therefore, I cannot conclude that it resulted 

from Green River's negligence. Based on the criteria in section 

llO(i) of the Act, I conclude that an appropriate penalty for the 

violation is $150. 

ORDER 

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

IT IS ORDERED: 

1. Citations 3297516 and 3287518 are AFFIRMED. 

2. Respondent shall within 30 days of the date of this 

decision pay $400 as civil penalties for the violations found 

herein. 

Distribution: 

Joseph B. Luckett, Esq., u.s. Department of Labor, Office of the 

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

37215 (Certified Mail) 

Mr. William Craft, Green River Coal Company, Rt. 3, P.O. Box 

284-A, Madisonville, KY 42431 (Certified Mail) 

slk 

1317 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

ROCHESTER & PITTSBURGH 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. 

ROCHESTER & PITTSBURGH COAL 

COMPANY, 

Respondent 

JUL 18 1989 

. . 

DECISION 

CONTEST PROCEEDING 

Docket No. PENN 88-164-R 

Citation No. 2879230; 3/7/88 

Greenwich Collieries No. 2 

Mine 

Mine ID 36-02404 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 88-288 

A. C. No. 36-02404-03723 

Greenwich Collieries No. 2 

Mine 

Appearances: Joseph A. Yuhas, Esq., Rochester & Pittsburgh Coal 

Company, Ebensburg, Pennsylvania, for the Operator; 

Mark D. Swartz, Esq., Office of the Solicitor, 

u. s. Department of Labor, Philadelphia, 

Pennsylvania, for the Secretary. 

Before: Judge Weisberger 

Statement of the Case 

In these consolidated cases the Secretary (Petitioner) seeks 

a civil penalty for alleged violations by the Operator 

(Respondent) of 30 C.F.R. § 75.301, and the Respondent has contested the violation, and alleges that the underlined citation be 

vacated. Subsequent to notice, these cases were scheduled and 

heard on March 1, 1989, in Bellefonte, Pennsylvania. At the 

hearing, Samuel J. Brunatti and James E. Biesinger testified for 

the Petitioner, and Mike A. Ondecko testified for Respondent. 

The Petitioner filed Proposed Findings of Fact and Supporting 

Memorandum on June 21, 1989, and Respondent filed a Post-Hearing 

Brief on June 20, 1989. 

1318 
On June 21, 1989, Petitioner filed a Motion to Amend the 

Transcript. This Motion was not opposed and it is GRANTED. 

Stipulations 

The Parties have agreed to the following stipulations: 

1. Greenwich .Collieries is owned by Pennsylvania Mines 

Corporation, and managed by Respondent, Rochester and Pittsburgh 

Coal Company. 

2. Greenwich Collieries is subject to the jurisdiction of 

the Federal Mine Safety and Health Act of 1977. 

3. The Administrative Law Judge has jurisdiction over these 

proceedings. 

4. The subject citation was properly served, by a duly 

authorized representative of the Secretary of Labor, upon an 

agent of the Respondent at the dates, times, and places stated 

herein, and may be admitted into evidence for the purpose of 

establishing their issuance, and not for the truthfulness or 

relevancy of any statements asserted therein. 

5. The Respondent demonstrated good faith in the abatement 

of the citation. 

6. The assessment of a civil penalty in this proceeding 

will not affect Respondent's ability to continue in business. 

7. The appropriateness of the penalty, if any, to the size 

of the coal operator's_business, should be based on the fact 

that: 

a. The Respondent company's annual production tonnage 

is 10,554,743. 

b. The Greenwich Collieries No. 2 Mine's annual production tonnage is 1,195,419. 

8. That Greenwich Collieries No. 2 mine was assessed 1,013 

violations over 1,053 inspection days during the 24 months preceding the issuance of the subject violation. 

9. The Parties stipulate to the authenticity of their 

exhibits, but not their relevance, nor to the truth of the 

matters asserted therein. 

10. On March 7, 1988, MSHA Inspector Samuel J. Brunatti took 

air bottle samples at bleeder evaluation point No. 35, and at a 

crosscut outby bleeder evaluation point No. 35 at Greenwich 

Collieries No. 2 Mine. 

1319 
11. On March 30, 1988, MSHA Inspector, Nevin J. Davis took 

air bottle samples at bleeder evaluation point Nos. 4, 16, 17, 

and 19 at Greenwich Collieries No. 2 Mine. 

12. The air samples taken by Inspectors Brunatti and Davis 

were analyzed at the MSHA Laboratories at Mt. Hope, West Virginia. 

13. The Parties stipulate to the following with respect to 

the analyses of the air samples at the MSHA Laboratories: 

a. The analyses were in accordance with proper scientific protocol. 

b. The samples were not altered in any way from the 

times they were taken through the end of their analyses. 

c. The results obtained accurately reflect the volume 

per centum of carbon dioxide in the air at the respective sampling 

locations on March 7 and 30, 1988. 

14. The Parties stipulate to the authenticity and admissibility of the two documents entitled Table-1 Analyses of Air 

Bottle Samples collected on March 7, 1988, and Table-1 Analyses 

of Air Bottle Samples collected on March 30, 1988. 

Findings of Fact and Discussion 

On March 7, 1988, air bottle samples taken by MSHA Inspector 

Samuel J. Brunatti at bleeder evaluation point No. 35, at a crosscut at approximately 20 to 30 feet outby bleeder evaluation point 

No. 35, bleeder evaluation point No. 17, and bleeder evaluation 

point No. 19, all revealed carbon dioxide levels in excess of the 

maximum of 0.5 volume percent permitted by 30 C.F.R. § 75.301. 

The critical issue presented before me is whether § 75.301, 

supra, is applicable to the cases at bar. 

30 C.F.R. § 75.301, is applicable to "all active workings." 

Petitioner makes reference to 30 C.F.R. § 75.2, which, for proposes of part 75 of 30 C.F.R., defines "active workings," as 

•••• "any place in a coal mine where miners are normally 

required to work or travel." In this connection, Petitioner, in 

arguing that the cited areas were active workings, refers to 

stipulation No. 16, which indicates that the evaluation points in 

question were examined weekly by a certified person in accordance 

with 30 C.F.R. § 75.305 and 75.316. Petitioner further refers to 

the opinion of Brunatti and James Biesinger, an MSHA Supervisory 

Inspector, that in certain circumstances, an operator may need to 

monitor bleeder evaluation points more frequently than once a 

1320 
week, sometimes even continuously. In addition, Petitioner 

refers to the testimony of its witnesses that, if in the area 

water accumulates or the roof deteriorates or the wall crushes, 

conditions termed by Brunatti to be not unusual to Respondent's 

method of extracting coal by retraction, workers would have to 

travel to the areas in question to repair these conditions. 

Also, Brunatti indicated that on quarterly and 103Ci) spot 

inspections, inspectors are accompanied by miners who are Union 

Representatives, and might also be accompanied by miners who are 

company representatives. As such, Petitioner contends that 

miners are required to travel and work in the cited areas and 

hence these areas should be considered "active workings," and be 

subject to the terms of § 75.301, supra. For the reasons that 

follow, I do not find merit in Petitioner's arguments. 

I find, based on Brunatti's testimony and the ventilation 

map (Exhibit J-2B), that air coming off the gob goes outby down a 

bleeder entry to the various bleeder evaluation points. The air 

in this entry then continues outby the gob until it meets and 

mixes with the return air that has flowed into this entry. The 

entries in which the bleeder evaluation points were located are 

perpendicular to the return entries, and appear to deliver air 

from the gob to the return air entries. Thus these entries, at 

least until the bleeder evaluation points, are to be considered 

bleeder entries within the purview of 30 C.F.R. § 75.316-2Ce){l) 

whicn defines bleeder entries as " ••• special air courses 

developed and maintained as part of a mine ventilation system and 

designed.to continuously move air-methane mixtures from the gob, 

away from active workings, and deliver such mixtures to the mine 

return air courses." Indeed, Brunatti indicated on cross-examination that th2 bleeder evaluation point No. 35 was in the bleeder 

entry. It would appear that this comment would also be appropriate to the other bleeder evaluation points in issue, as they are 

part of the same ventilation scheme. 

Brunatti indicated that the area from which he took the 

sample from outby bleeder evaluation point No. 35, was not in a 

bleeder entry. However, he indicated that this site was the 

mixing point between air coming off the gob and air entering from 

the return entries. As such, it would appear that this testing 

point is to be considered part of the bleeder system within the 

purview of 30 C.F.R § 75.316-2(e)(2) which, in essence, includes 

in the bleeder system any combination of bleeder entries and 

bleeder entry connections " .•. to any area from which pillars 

are wholly or partially extracted • . . " Section 

75.316-2(e)(2), supra, continues to provide that the bleeder 

systems extend" .•. to the intersection of the bleeder split 

with any other split of air." Accordingly, I conclude that both 

the bleeder evaluation points and the area tested by Brunatti 

1321 
20 to 30 fe~t outby bleeder evaluation point No. 35, are all part 

of the bleeder system. Inasmuch as I have found the bleeder 

evaluation points and the other area tested by Brunatti to be 

part of the bleeder system, I must conclude that they are not 

active workings, as section 75.316-2Ce)(2) indicates that the 

bleeder systems " ••• shall not include active workings." 

In U.S. Steel Corporation 6 FMSHRC 291 (1984), Judge Koutras 

was presented with the issue as to whether carbon dioxide 

readings in excess of .5 percent taken at a bleeder evaluation 

point, were violative of section 75.301, supra. Judge Koutras, 

at 307, supra, concluded that Contestant's argument was sound and 

logical that 11 ••• when read together with the other standards 

found in part 7S, a bleeder entry is not active workings • • • 

Further, Judge Koutras found, in essence, the fact that a 

certified examiner must travel to the bleeder evaluation points 

once a week to make an inspection, does not place these points 

within the purview of section 75.301, supra. I believe that 

Judge Koutras' decision is well founded and choose to follow it. 

Petitioner's witnesses testified that it would not be 

unusual for conditions to occur in the bleeder entries requiring 

miners to enter those entries to perform the repair work. In the 

absence of evidence as to the specific practice of Respondent, in 

the sections at issue, in requiring miners to work in the areas 

in question, I find the testimony to be insufficient to establish 

that miners are "normally" required to work or travel in those 

areas. (c.f. Secretary v. Jones and Laughlin Steel Corporation 

8 FMSHRC 1058, 1063-1064 (1986)). 

Therefore, based upon all of the above, I conclude that the 

location at which the samples in question were taken were not 

active workings, and as such are not within the purview of 

section 75.301, supra.~/ Accordingly, it has not been established that section 75.301, supra, has been violated by 

Respondent herein. 

1/ I do not find merit in Petitioner's argument that, in 

essence, if section 75.301, supra, is applied to the areas in 

question, the reault will be the protection of the health of 

examiners and other miners who visit bleeder evaluation points on 

a normal basis. It has not been established, aside from the 

opinions of two MSHA Inspectors who testified for Petitioner, 

that miners are assigned duties in these areas (See, Jones v. 

Laughlin Steel corp., 8 fMSHRC 1058 at 1063 (1981). Also it can 

not be the intent or section 75.301, supra, to protect examiners. 

To do so would require the evaluation points to be preshifted 

prior to an examiner's inspection. Even Brunatti has indicated 

that the area in question need not be preshifted before an 

examiner enters the area. 

1322 

" 
ORDER 

It is hereby ORDERED that Citation No. 2879230 be VACATED, 

Docket No. PENN 88-288 be DISMISSED, and the Notice of Contest, 

Docket No. PENN 88-164-R is GRANTED. 

It is further ORDERED that the transcript of the Hearing be 

AMENDED as set forth in paragraphs 1 - 4 of Petitioner's Motion 

to Amend the Transcript. 

Avram / 

f~ Weis . b erger k~-- Administrative Law Judge 

Distribution: 

Joseph A. Yuhas, Esq., Rochester & Pittsburgh Coal Company, 

P. o. Box 367, Ebensburg, PA 15931 (Certified Mail) 

Mark D. Swartz, Esq., Office of the Solicitor, u. S. Department 

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

Philajelphia, PA 19104 CCertif ied Mail) 

dcp 

1323 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY. AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

DONALD J. ROBINETTE, 

Complainant 

v. 

BILL BRANCH COAL COMPANY, 

INC., 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF JOEY F. HALE, 

Complainant 

v. 

BILL BRANCH COAL COMPANY, 

INC., 

Respondent 

DISCRIMINATION PROCEEDING 

Docket No. VA 87-21-D 

NORT CD 87-5 

Mine No. 8 

DISCRIMINATION PROCEEDING 

Docket No. VA 87-22-D 

t\TORT CD 8 7-7 

Mine No. 8 

ORDER 

Subsequent to a hearing on the merits in these cases, a 

Decision was issued on September 29, 1988, finding that Respondent 

discriminated against Complainants in violation of section 105(c) 

of the Federal Mine Safety and Health Act of 1977. The Decision 

further ordered as follows: "Complainants shall file a statement, 

within 20 days of this Decision, indicating the specific relief 

requested. The statement shall be served on Respondent who shall 

have 20 days, from the date service is attempted, to reply 

thereto." 

On November 1, 1988, the Secretary filed a statement pursuant 

to this Order. On November 14, 1988, Respondent filed a statement 

which indicated that discovery was needed to attempt to resolve the 

issues of relief. On November 21, 1988, in a telephone conference 

call both Parties indicated that dispositions would be taken on 

January 2, 1989. On January 31, 1989, in a conference call with 

both Parties, the attorney for the Secretary advised that Respondent 

1324 
had filed, in u. S. Bankruptcy Court, for ieorganization pursuant to 

Title 11 of the U. s. Code. On February 22, 1989, proceedings 

before the Commission in the instant cases were stayed, pending a 

determination by the U. S • Bankruptcy Court that the automatic stay 

therein does not apply. Subsequently, the U. S. Bankruptcy Court 

issued an order relieving the Secretary from the provisions of the 

automatic stay. In a conference call on April 16, 1989, between the 

undersigned and attorneys for the Secretary and Respondent, the 

Parties agreed to discuss settlement of the issues of Complainants' 

relief. On April 24, 1989, the attorney for the Secretary advised 

that a settlement had been arrived at, and that a signed stipula~ion 

would be submitted within 30 days. On June 27, 1989, the attorney 

for the Secretary advised the undersigned that it had not yet 

received from Respondent a stipulation regarding back pay, although 

Counsel for Respondent had assured him that the stipulation would be 

mailed June 17, 1989. 

In a telephone conference call between the undersigned and 

the attorneys for the Secretary and Respondent, it was indicated 

that Respondent mailed the stipulation to the attorney for the 

Secretary on June 29, 1989, and the latter indicated the stipulation would be filed on July 10, 1989. 

The attorney for the Secretary filed the stipulation on 

July 13, 1989. The stipulation provides a fair resolution of the 

amount of Respondent's financial obligation to Complainants pursuant to my Order of September 29, 1988, contained in the Decision 

filed that date, and I adopt it herein. 

It is therefore ORD~RFO that: 

1. The Stay Order of February 22, 1989, is hereby lifted. 

2. The liability of Respondent to Complainants is set forth 

in the stipulation filed July 13, 1989, and it ORDERED that the 

Parties shall abide by all its terms. 

3. The Decision in this matter issued September 29, 1988, 

is now FI~AL. 

Avram Weisberger 

Administrative Law Judge 

1325 
Distribution: 

Mark Malecki, P.sq., Office of the Solicitor, u. S. Department of 

Labor, 4015 ~ilson Boulevard, Room 516, Arlington, VA 22203 

(Certified Mail) 

Robert J. Breimann, Esq., Street, Street, Street, Scott & Bowman, 

P. o. Box 2100, Grundy, VA 24614 (Certified Mail) 

Robert Copeland, Esq., U.S. Bankruptcy Court, Western District 

of Virginia, Office of the Clerk, P. o. Box 2390, Roanoke, VA 

24010 (Certified Mail) 

dcp 

1326 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 24, 1989 

Sl?CR.E'Y'ARY OF LABOR, 

MINE SAFRTY AND HEAL~H 

ADMTNISTRA~ION CMSHA), 

Petitioner 

v. 

COAL JUNCTION COAL COMPANY, 

INC., 

Respondent 

CIVIL PBNALTY PROCF.F.DING 

Docket No. PENN 88-260 

A. C. No. 36-02685-03506 

Coal Junction Coal Company 

ORDER OF DISMISSAL 

Before: Judge Merlin 

Based _upon the Solicitor's motion, this case is hereby 

DISMISSED. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Therese I. Salus, Esq., Office of the Solicitor, U. s. 

Department of Labor, ~oom 14480-Gateway Building, 3535 Market 

Street, Philadelphia, PA 19104 (Certified Mail) 

Leo M. Stepanian, F.sq., Stepanian & Muscatello, 228 South 

Main Street, Butler, PA 16001 (Certified Mail) 

Mr. ~obert G. Buchleitner, President, Coal Junction Coal 

Company, Inc., R.D. #1, Creekside, PA 15732 (Certified 

Mail) 

/gl 

1327 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

July 25, 1989 

SFCRF.TARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRA~ION (MSHA), 

Petitioner 

v. 

ARTHUR OVBRGAARD-DIV./MA~HY 

CONSTRUCTION COMPANY, 

Respondent 

. . 

CIVIL PBNALTY PROCBEDING 

Docket No. LAKF 89-45-M 

A. C. No. 47-02651-05501 

: Portable Perz Plant 

. . 

DECISION APPROVING SETTLEMENT 

ORDER TO PAY 

Before: Judge Merlin 

The parties have submitted a motion to approve settlement of the one violation involved in this case. The penalty 

was originally assessed at $5,000 and the proposed settlement 

is for $3,700. 

The parties' motion discusses the violation in light of 

the six statutory criteria set forth in section llO(i) of the 

Federal Mine Safety_and Health Act of 1977. The subject citation was issued for a violation of 30 C.F.R. § 56.14001 

because the 52-inch, self-cleaning tail pulley, on the 

crusher discharge belt conveyor, had not been guarded. An 

employee became entangled at the tail pulley and received 

fatal injuries. ~he parties represent that the penalty reduction is warranted because negligence which originally was 

rated as high, is less than originally thought. According to 

the Solicitor the operator demonstrated a moderate degree of 

negligence because it should have known the pulley area of 

the rock crusher was not guarded properly. However, employees had been directed by the operator not to work or 

enter the cited area. It is not known why this employee was 

working in this area. ~he operator promptly abated the violation. In addition, this is a small operator with no prior 

history of violations for the preceding two years. Based 

upon the foregoing representations, I approve the recommended 

settlement. 

1328 
Accordingly, the motion to approve settlement is GRAN~ED 

and the operator is ORDP.RED ~O PAY $3,700 within 30 days from 

the date of this decision. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Susan J. Bissegger, Esq., Office of the Solicitor, U. S. Department of Labor, 230 South Dearborn Street, Chicago, IL 

60604 (Certified Mail} 

James Naugler, ~sq., Moen, Sheehan, Meyer & Henke, Ltd., 

Arthur Overgaard-Div./Mathy Construction Company, First Bank 

Place, Suite 700, Post Office Box 786, La Crosse, WI 

54602-0786 <Certified Mail} 

Ms. Carol Jensen, Office Manager, P. o. Box 128, Elroy, WI 

53929 (Certified Mail) 

/gl 

1329 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 25, 1989 

SECR~TARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. Wf.'VA 89-119 

A. C. No. 46-01433-03863 

v. Loveridge No. 22 Mine 

CONSOLIDATION COAL COMPANY, 

Respondent 

Docket No. WEVA 89-120 

A. C. No. 46-01453-03845 

Appearances: 

Before: 

. . 

. . 

Docket No. WEVA 89-121 

~. C. No. 46-01453-03846 

Humphrey No. 7 Mine 

Docket ~o. WEVA 89-122 

A. C. No. 46-01968-03794 

Blacksville No. 2 Mine 

Docket No. WFVA 89-132 

A. C. No. 46-01867-03789 

Blacksville No. 1 Mine 

: Docket No. WEVA 89-133 

A. C. No. 46-01454-03771 

Pursglove ~o. 15 Mine 

Docket No. WEVA 89-136 

A. C. No. 46-01318-03866 

Robinson Run No. 95 Mine 

DECISION 

Nanci A. Hoover, Esq., Office of the Solicitor 

u. 8. Department of Labor, Philadelphia, 

Pennsylvania, for the Petitioner; 

Michael R. Peelish, Bsq., Consolidation Coal 

Company, Pittsburgh, Pennsylvania, for the 

Respondent. 

Judge Merlin 

~he above-captioned cases were the subjects of prehearing 

and hearing orders. Preliminary statements were filed and a 

1330 
prehearing conference was held on July 10, 1989. When the cases 

came on for hearing on July 11, 1989, counsel for both parties 

advised that in one instance the citation was being vacated and 

that in the others approval for recommended settlements was being 

sought. Cases other than those captioned above were heard on the 

merits at the same time. 

WFVA 89-119 

Section 104(d)(2) Order No. 3106488 was issued for a violation of 30 C.F.R. § 75.303. A preshift examination of a belt 

conveyor was inadequate. ~t the hearing the Solicitor advised 

that evidence at trial would support the MSHA evaluation of high 

gravity and negligence. ~he Solicitor further advised that the 

proposed settlement was for the original assessment of $1,000. 

Operator's counsel did not object. The settlement was approved 

from the bench. 

Section 104(d)(2) Order No. 3105859 was issued for a violation of 30 C.F.R. § 75.202. A utility man was observed under 

unsupported roof in the 4 left longwall section. The original 

assessment was $900 and the recommended settlement was $500. ~he 

Solicitor explained that the order was being modified to a 104(a) 

citation and that negligence was reassessed as moderate. According to the Solicitor she could not prove the existence of aggravated conduct as required by Commission precedent :tor "unwarrantable failure". Quinland Coals, Inc., 10 FMSHRC 705 (June 1988), 

Southern Ohio Coal Co., 10 FMSHRC 138 (Feb. 1988), Youghiogheny & 

Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987), Frnery Mining Co., 

9 FMSHRC 1997 (Dec. 1987). The operator's foreman had given the 

utility man instructions regarding his work and had left the 

area, for a few minutes, which was when the inspector arrived. 

The foreman's instructions were general in nature, but could have 

been carried out by the utility man without exposing himself to 

the unsupported roof. In light of the foregoing circumstances 

and mindful of Commission precedent regarding "unwarrantable 

failure", the recommended settlement was approved from the bench. 

WBVA 89-120 

Section 104(d)(2) Order No. 3113143 was issued for a violation of 30 C.F.R. § 75.1403. Intermittent locations between 

shields of a longwall face where men traveled were not kept free 

of obstructions. Gravity and negligence were rated as high. At 

the hearing the Solicitor advised that the proposed settlement 

was for the original assessment of $850. Operator's counsel did 

not object. ~he settlement was approved from the bench. 

Section 104(d)(2) Order No. 3103486 was issued for a violation of 30 C.F.R. § 75.220(a)(l). The approved roof control 

plan was violated because supplemental supports were not installed where bad roof conditions were present at a return entry. 

1331 
The original assessment was $750 and the recommended settlement 

was $550. The Solicitor explained that the reduction from the 

original assessment was justified because evidence at trial might 

not support the inspector's initial evaluation of high operator 

negligence. The inspector thought that chalk marks on broken 

timbers in the area indicated the preshift examiner's knowledge 

of the missing supports, but other individuals also had chalk and 

the examiner_ denied making these marks on the broken timbers. 

Based upon the foregoing, I approved the recommended settlement 

from the bench. 

Section 104(d)(2) Order No. 3103488 was issued for a violation of 30 C.F.R. § 75.1103-4(a)(l). Automatic fire sensors 

were not provided on the 7 North belt for a length of about 450 

feet. The original assessment was $750 and the recommended 

settlement was $170. The Solicitor explained that the order was 

being modified to a 104(a) citation and that negligence was reassessed as moderate. Further investigation disclosed that the 

sensors had been deliberately removed from their locations above 

the belt line and thrown into adjacent crosscuts by unknown persons. ~he inspector could not establish how long the sensors had 

been missing and the operator was prepared to off er the testimony 

of the preshift examiner that all fire sensors were in place when 

the preshift examination was performed. Accordingly, negligence 

was less than initially thought and "unwarrantable failure" could 

not be found in accordance with Commission precedent. Tn 

addition, gravity was somewhat less than the inspector first 

estimated because the operator had in place another system which 

could detect the by-products of combustion in very small quantities and give a warning to miners working inby the location of 

the combustion. Based upon the foregoing, I approved the 

recommended settlement_from the bench. 

WEVA 89-121 

Citation No. 3103498 was issued for a violation of 30 C.F.R. 

§ 75.1403-lO(e). This section provides that positive-acting 

stopblocks or derails should be used where necessary to protect 

persons from the danger of run-away haulage equipment. Pursuant 

to an underlying Notice to Provide Safeguards first issued in 

1972, MSHA declined to allow a skid to be used as a positive-acting stopblock. In the cited condition three mine cars parked in 

the fire spur at portal bottom area were blocked with a skid. ~t 

the hearing the Solicitor pointed out that a series of administrative law judge decisions over the last several years have been 

adverse to MSHA on the way it issues safeguards. Beth Energy 

Mines Inc., 11 PMSRRC 942 (May 1989), Southern Ohio Coal Co., 10 

FMSHRC 963 (Aug. 1988), U.S. Steel Mining Co., 4 FMSHRC 526 

(March 1982). The Solicitor stated that as a result MSHA is reexamining its policy in this area. Tn light of the foregoing, 

the citation was vacated from the bench. The penalty petition is 

dismissed insofar as this item is concerned. 

1332 
WF.VA 89-122 

Section 104Cd>C2> Order ~o. 2708034 was issued for a violation of 30 C.F.R. § 75.1105. ~he air ventilating the energized 

power center on an old longwall section was not coursed directly 

into the return. Gravity and negligence were rated as high. At 

the hearing the Solicitor advised the proposed settlement was for 

the original assessment of $950. Operator's counsel did not 

object. ~he settlement was approved from the bench. 

Section 104(d)(2) Order ~o. 2944372 was issued for a vio-. 

lation of 30 C.F.~. § 75.400. ~loat coal dust had accumulated on 

a belt structure and on the water line, and fine coal and dust 

had accumulated under the bottom belt of the automatic take up 

unit. ~he original assessment was $950 and the recommended 

settlement was $400. ~he Solicitor explained that the reduction 

was justified because although the inspector estimated that the 

conditions took over a month to develop, the operator was prepared to of fer evidence that the condition was not present during 

the preshift and that several MSHA personnel recently had been in 

the immediate area. ~he Solicitor did not agree with all the 

operator's assertions, but she stated she could not dispute the 

fact that several inspectors had passed through the area within 

the proceeding few weeks. In addition, the Solicitor could not 

dispute that the operator was able to abate the violation within 

25 minutes of the issuance of the order. Operator's counsel advised that the case was essentially a factual judgment call and 

not of any precedent-setting nature. In light of the foregoing, 

the settlement was approved from the bench. 

WEVA 89-132 

Section 104(d)(2)-0rder ~o. 2943736 was issued for a violation of 30 C.F.R. § 75.316. A bleeder evaluation point on a 

longwall previously approved by a district manager had been 

changed and relocated by the operator approximately 1000 feet 

inby. ~he original assessment was $700 and the recommended 

settlement was $500. ~he Solicitor advised that she probably 

could not prove that the violation was significant and substantial. She stated that the evidence at trial would demonstrate that the district manager eventually approved the new location used by the operator as the bleeder evaluation point. 

Although there is uncontroverted evidence that the gob on the 

longwall was not being ventilated as intended by the ventilation 

plan and that the direction of the airflow had reversed, the 

Solicitor stated she could not demonstrate the failure of the 

operator to obtain the district manager's approval for the new 

bleeder evaluation point resulted in a reasonable likelihood of 

the hazard resulting in an injury. Tn light of the foregoing, 

the settlement was approved from the bench. 

1333 
WEVA 89-133 

Section 104(d)(2) Order ~o. 3103459 was issued for a violation of 30 C.F.R. § 75.400. Combustible material in the form 

of loose coal, coal dust, and float coal dust had accumulated 

under the bottom belt between the tension rollers and under the 

drive unit of a drive belt. Gravity and negligence were rated as 

high. At the hearing the Solicitor advised that the proposed 

settlement was for the original assessment of $900. Operator's 

counsel did not object. ~he settlement was approved from the 

bench. 

Section 104Cd)(2) Order No. 3103460 was issued for a violation of 30 C.F.R. § 75.303. Adequate preshift examinations had 

not been made on certain belts. ~he original assessment was 

$1,000 and the recommended settlement was $700. ~he Solicitor 

advised the reduction was justified because evidence at trial 

might not support the inspector's evaluation of the operator's 

negligence. Although there is no doubt that there were hazardous 

conditions and violations, MSHA's witness had no first hand 

knowledge of the extent of these hazardous conditions during the 

preshift examination and could only have expressed the opinion 

that the conditions were obvious at the time of the preshift 

examination. ~he operator would offer testimony of the preshift 

examiner to controvert the Secretary's opinion evidence. In 

light of the foregoing, the settlement was approved from the 

bench. 

WEVA 89-136 

Section 104(d)(2) Order No. 3119427 was issued for a violation of 30 C.F.R. § 75.202(b). According to the Solicitor the 

approved roof control plan was not being complied with because 

supplies were being stored in the face of the heading by persons 

who traveled under unsupported roof. Operator's counsel 

expressed the view that miners were not under unsupported roof 

but he did not believe this case was an appropriate vehicle to 

test this issue which is being presented in other cases. The 

Solicitor advised that the proposed recommended settlement was 

for the original assessment of $1,000. Operator's counsel did 

not object. The settlement was approved from the bench. 

ORDER 

Tt is ORDFRFO that Order ~os. 3105859 and 3103488 be 

MOD1FIFD to 104(a) citations. 

Tt is further ORDRRFD that Citation ~o. 3103498 be VACA~~D. 

1334 
tn light of the foregoing, it is further ORDBRFD that the 

proposed settlements be APPROVBD and the following amounts be 

ASSF.SSF'D: 

Citation or Order No. 

3106488 

3105859 

3113143 

3103486 

3103488 

3103498 

2708034 

2944372 

2943736 

3103459 

3103460 

3119427 

A.mount 

$1,000 

$ 500 

$ 850 

$ 550 

$ 170 

VACATED 

$ 950 

$ 400 

$ 500 

$ 900 

$ 700 

$1,000 

$7,520 

Tt is further ORD~RED that the operator PAY $7,520 within 30 

days from the date of this decision. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Nanci A. Hoover, Bsq., Office of the Solicitor, U. s. Oepartment 

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

Philadelphia, PA 19104 (Certified Mail) 

Michael R. Peelish, Fsq., Consolidation Coal Company, Consol 

Plaza, 1800 Washington Road, Pittsburgh, PA 15241 (Certified 

!\iail > 

Basil Callen, UMWA, 309 Wagner Road, Morgantown, WV 26505 

(Certified Mail) 

Robert Strapp, Esq., UMWA, 900 15th Street, N.W., Washington, DC 

20005 (Certified Mail) 

/gl 

1335 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 2 7 1989 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CARL A. JOHNSON, Employed by 

MORTON SALT DIVISION/ 

MORTON THIOKOL INC., 

Respondent 

Docket No. CENT 89-54-M 

A.C. No. 16-00970-05610-A 

Docket No. CENT 89-60-M 

A.C. No. 16-00970-05613-A 

Morton Salt Weeks Island Mine 

DECISIONS APPROVING SETTLEMENTS 

Before: Judge Koutras 

Statement of the Proceedings 

These proceedings concern proposals for assessment of civil 

penalties filed by the petitioner against the individually named 

respondent pursuant to section llO(c) of the Federal Mine Safety 

and Health Act of 1977, for allegedly "knowingly" authorizing, 

ordering, or carrying out, two alleged violations of certain 

mandatory safety standards found in Part 57, Title 30, Code of 

Federal Regulations. The respondent has filed answers to the 

proposals, and the petitioner has filed a settlement motion 

pursuant to Commission Rule 30, 29 C.F.R. § 2700.30, seeking 

approval of a proposed settlement of the cases. The violations, 

initial assessments, and the proposed settlement amounts are as 

follows: 

Docket No. CENT 89-54-M 

Order No. 

2866484 08/25/87 

Docket No. CENT 89-60-M 

Order No. 

2866117 08/25/87 

30 C.F.R. 

Section 

57.9003 

30 C.F.R. 

Section 

57.11050 

1336 

Assessment Settlement 

$400 $200 

Assessment Settlement 

$400 $200 
Discussion 

In support of the proposed settlement disposition of these 

cases, the petitioner has submitted information pertaining to the 

civil penalty criteria found in section llO(i) of the Act. 

Additional information provided by the petitioner reflects that 

the respondent is no longer employed by Morton Thiokol, Inc., and 

has moved from LaFayette, Louisiana, to Butte, Montana. The 

respondent states that he is unemployed. Under these circumstances, the petitioner submits that the proposed settlement 

disposition of these cases is fair and reasonable, fully takes · 

into consideration the criteria under section llO(i) of the Act, 

and is in the public interest. 

The petitioner states that the respondent proposes to pay 

the settlement amount of $400 in monthly installments, and has 

tendered the first installment of $135 with his settlement letter 

of July 13, 1989, a copy of which is included with the petitioner's settlement motion. The remaining two installments of 

$132.50 each will be paid over the next 2 months. 

Conclusion 

After careful review and consideration of the pleadings, 

arguments, and submissions in support of the motion to approve 

the proposed settlement of these cases, I conclude and find that 

the proposed settlement dispositions are reasonable and in the 

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

the motion filed by the petitioner IS GRANTED, and the settlements ARE APPROVED. 

ORDER 

The respondent IS ORDERED to pay the agreed-upon civil 

penalty assessments in the aforementioned amounts, and in accordance with the aforementioned payment schedule agreed to by the 

parties. This decision will not become final until such time as 

full payment is made by the respondent to the petitioner, and I 

retain jurisdiction in this matter until payment of all installments are remitted and received by the petitioner. 

In the event the respondent fails to make full payment, or 

otherwise fails to comply with the terms of the settlement, 

petitioner is free to file a motion seeking appropriate sanctions 

or further action against the respondent, including a reopening 

of the cases. 

/ 

,/{i/1/ (/,/;'-· -/ .. · /;, ,/'/.// it';,.(:"';'-~ ~~ -[7,~ ._Geo·rg~l'A. Koutras 

' Administrative Law Judge 

1337 
Distribution: 

J. Philip Smith, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

(Certified Mail) 

Mr. Carl A. Johnson, 3335 Keokuk Street, Butte, MT 59701 

(Certified Mail) 

/fb 

1338 
FEDERAL MINE SAFETY AND HEALTH .REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

SECR~TARY OF LABOR, 

MINE SAFE~Y AND H~ALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

GEORGE'S BRANCH COAL, 

Tl'JCORPORAT~D, 

"R.espondent 

July 27, 1989 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 89-12 

A. C. No. 15-16216-03502 

No. 1 Mine 

ORDF.R OF DEFAULT 

On October 11, 1988, you signed a notice of contest (blue 

card) telling the Mine Safety and Health ~drninistration (MSHA) 

that you wanted a hearing on the penalty which MSHA proposed. 

~he Secretary of Labor has certified that the Proposal in this 

case was mailed November 14, 1988. 

Subsequent to filing the Proposal, the Solicitor in a letter 

dated February 1, 1989, stated tnat based on a January 31, 1989, 

telephone conversation with you she was forwarding a draft of a 

Joint Motion to Approve Settlement formalizing your negotiated 

settlement. You were to review this document and then return a 

signed copy to the Secretary. On April 13, 1989, the Solicitor 

orally advised she had not received the signed copy or heard 

from you since the January 31, telephone conversation. 

Thereafter, on May 12, 1989, you were ordered to answer or 

show cause for your failure to do so. You were told that if you 

did not comply you would be held in default. 

~he Solicitor has now filed a motion for default. In her 

motion the ~olicitor states that on July 12, 1989, MSHA advised 

that they had received a check from you in the amount of $441.33. 

However, the Solicitor states that this represents payment of 

only one-third of the originally assessed amount and that no 

settlement was entered into reducing the original penalty. You 

cannot resolve this matter by deciding on your own initiative 

what amount you wish to pay without agreement by the Solicitor 

and approval by the Commission. Pinally, you have not complied 

with the May 12 show cause order. Consequently, the Solicitor 

and this Commission have been forced to spend an inordinate 

amount of time on this matter. 

1339 
Accordingly, judgment by default shall enter in favor of the 

Secretary. As a result, you are hereby ORDFR~D ~O PAY the sum of 

$882.67 immediately. 

\ 

\ 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Ann T. Knauff, Esq., Office of the Solicitor, U. s. Department of 

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

(Certified Mail) 

Mr. David s. Strong, owner, General Delivery, Whick, KY 41390 

(Certified Mail) 

/gl 

1340 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 2 7 1989 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION. (MSHA), 

ON BEHALF OF ROBERT VAUGHN, 

Complainant 

v. 

SUMCO, INC. AND R.E. SUMMERS, 

Respondents 

Docket No. KENT 89-28-D 

SUPPLEMENTAL DECISION AND ORDER 

Appearances: Mary K. Spencer, Esq., Office of the Solicitor, 

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

on behalf of Complainant; Rodney E. Buttermore, 

Jr., Esq., Forester, Buttermore, Turner & Lawson, 

Harlan, Kentucky, on behalf of Respondents. 

Before: Judge Broderick 

On June 2, 1989, I issued a Decision on the merits in the 

above proceeding. I directed the parties to attempt to 

stipulate as to the monetary amount due complainant Vaughn 

under the decision. Should they fail to stipulate, I directed 

the Secretary to submit a statement of the amount claimed due. 

Respondents were given ten days to respond to the statement. 

On July 7, the Secretary filed a statement of the amount 

she contends is due under the decision with interest to 

July 15, 1989. Respondents did not reply to the statement. 

Consioering the entire record and the parties contentions, 

Respondents are ORDERED: 

1. To pay to Complainant Vaughn within 30 days of the 

date of this order the sum of $4470.93, representing back 

wages from June 30, 1988 to December 4, 1988, which amount 

includes interest to July 15, 1989. 

2. To pay interest at the rate of 1.38 per day after 

July 15, 1989, until the total amount due is paid. 

3. To pay to the Secretary, within 30 days of the date 

of this order, a civil penalty in the amount of $100. 

1341 

.
4. This order supplements the decision issued June 2, 

1989, and with that decision represents my final decision and 

order in this proceeding. 

Distribution: 

James A. 

~~ Broderick 

Administrative Law Judge 

Mary K. Spencer, Esq., U.S. Department of Labor, Office of the 

Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 {Certified 

Mail) 

Rodney E. Buttermore, Jr., Esq., Forester, Buttermore, Turner & 

Lawson, P.S.C., P.O. Box 935, Harlan, KY 40831 {Certified Mail) 

Mr. Robert Vaughn, P.O. Box 273, Kenvir, KY 40847 {Certified Mail) 

slk 

1342 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRE'r AR.Y OF .LABOR, 

MINE SAFETY AND HEALTH 

A.DMINISTRATI01\J (MSHA) , 

Petitioner 

v. 

G~EF.N RIVBR COAL CO., INC., 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. KBNT 89-19 

A.C. 1\Jo. 15-13469-03687 

Docket No. KBNT 89-76 

~.c. No. 15-13469-03693 

DF.CISION 

Appearances: Joseph B. Luckett, Bsq., Office of the Solicitor, 

U.S. Department of Labor, ~ashville, Tennessee, 

for the Secretary of Labor (Secretary); 

B. R. Paxton, Esq., Paxton & Kusch, Central City, 

Kentucky for Green River Coal Co., 1nc. (Green 

River). 

Before: Judge Broderick 

STATEMBNT OF THE CAS"P 

The Secretary seeks civil penalties for six alleged 

violations of mandatory safety standards contained in the above 

dockets. The alleged violations involve the same mine and were 

consolidated for the purposes of hearing and decision. Pursuant 

to notice, the consolidated cases were heard in Owensboro, 

Kentucky on June 7, 1989. Lewis Stanley, James l?. Ranks, 

Michael V. Moore, and Bobby Clark testified for the Secretary • 

. Jessie W. Campbell and Mike McGregor testified for Green River. 

Both parties filed post hearing briefs limited to the legal 

question whether order ~o. 3227685 was properly modified after 

its termination. I have considered the entire record and the 

contentions of the parties in making this decision. 

FI~DINGS OF FACT 

FINDINGS COMMON TO ALL VIOLATIONS 

1. Green River is the owner and operator of an underground 

coal mine in Hopkins County, Kentucky known as the No. 9 Mine. 

2. Green Piver employs approximately 200 miners, and 

produces approximately one million tons of coal annually. 

1343 
·f.' :' .,_r. 

3. The subject mine liberates in excess of one million 

cubic feet of methane in a 24 hour period. 

4. During the 24 month period from June 23, 1986 to 

June 22, 1988, Green River had 1,059 paid violations of mandatory 

standards. Of these, 80 were violations of 30 C.F.R. § 75.301, 

13 were violations of 30 C.F.R. § 75.302, 8 were violations of 30 

C.F.R. § 75.1710, and 73 were violations of 30 C.F.R. § 75.503. 

This is a substantial history of prior violations, and penalties 

otherwise appropriate will be increased because of it. 

5. All of the violations charged in these proceedings were 

abated promptly in good faith. 

CITATIONS 3228886 A~D 3228887 

An explosion occurred in the subject mine at about 10:30 

a.m., on June 23, 1988, at the crosscut right off the Wo. 2 entry 

in the 003 section, while coal was being loaded. The ignition 

was of short duration and self-extinguishing. It resulted in 

first and second degree burns to the loader operator. 

When the Federal mine inspector arrived at the scene at 

about noon, he discovered that the line curtain for the crosscut 

was installed 22 feet from the toe of the coal. The section 

foreman was present. He testified at the hearing that a line 

curtain had been installed about 7 or 8 feet from the coal face 

but apparently had been removed prior to the explosion. 

The mine has a history of methane liberation and has 

experienced prior ignitions or explosions at the face. Many 

citations for ventilation violations had been issued to the mine. 

Methane was found at the site of the explosion ranging from 1.6 

to 2 percent. 

The approved ventilation plan for the subject mins requires 

that in working faces there shall be a minimum of 3000 cubic feet 

of air in each working face where coal is being cut, mined or 

loaded. 

The inspector checked the air flow at about 12:15 p.m. on 

June 23, 1989, and found only 1800 cubic feet a minute of air 

reaching the end of the line curtain in cross cut right off the 

No. 2 entry in 003 section. 

The inspector issued a section 107(a) imminent danger 

closure order and two section 104(a) citations, charging 

violations of 30 C.F.R. § 75.302-1 and § 75.301-1. 

1344 
The order and the citations were terminated the same day 

they were issued, when a line curtain was installed to the toe of 

the coal, the air increased to 3825 cubic feet a minute, and the 

methane reduced to .2 percent. 

CITATION 3228988 AND ORDERS 3228563 AND 3228564 

The coal seam height in the subject mine varies from 54 

inches to about 60 inches. Therefore it has been required since 

January 1, 1975, to have substantially constructed canopies or 

cabs on all self propelled electric face equipment employed in 

active workings. 

The subject mine has a generally poor roof condition. It 

has had 88 reported roof falls. 

On March 18, 1988, a Federal coal mine inspector saw a 

cutting machine being operated without a canopy over the operator. 

The canopy was loose--the bolts holding it were backed off and 

the hudraulic mounting alignment brackets were broken off •. The 

machine operator stated that he did not use the canopy because of 

the danger that it would fall on him. In the inspector's 

judgment, the condition had existed for a considerable period of 

time--certainly for more than one shift. The roof in the .area 

was in good condition. 

The inspector issued a section 107(a) imminent danger 

closure order and a section 104(a) citation (3228988) charging a 

violation of 30 C.F.R. § 1710. He had issued another citation 

for a cutting machine without a canopy only a short time prior to 

this. 

The citation was terminated the same day when the bolts on 

the canopy were tightened, the brackets were welded back on, and 

the canopy positioned over the operator. 

On August 22, 1988, a Federal mine inspector observed a 

loading machine being operated at or near the last open crosscut, 

with its canopy swung around over the tram motor. It was not 

over the operator of the loader. The pin which held it from 

swinging away from the operator had been removed. ~o roof 

problems were noted in the area at the time. The insoector 

issued a section 104(d)(l) order at 9:40 a.ill., chargi~g a 

violation of 30 C.F.R. § 75.1710. The order was terminated at 

10:15 a.m. the same day when the canopy was moved back over the 

operator, and the pin replaced. 

At 10:25 a.m. the same day, the same inspector noticed a 

cutting machine in the ~o. 5 entry of the No. 5 unit, on which 

the canopy was swung away from the operator and positioned over 

1345 
the wheel of the cutter. Order 3228563 was issued charging a 

violation of 30 C.F.R. § 75.1710. The order was terminated at 

about 11:00 a.m. the same day when the canopy was placed over the 

cutter operator and the pin put in place. 

~espondent has regular safety meetings with its employees, 

and has instructed them of the requirements for maintaining 

canopies on electric face equipment when operating inby the last 

open crosscut. 

ORDF.R 3227686 

On August 12, 1988, a Federal coal mine inspector was in the 

No. 3 Unit of the subject mine when the power was shut off 

because of a ventilation problem. He noticed four 110 volt pumps 

pumping water inby the last open break. These were 

nonpermissible pumps, and were pumping water to a 480 volt 

permissible pump. Coal was being produced until the power was 

shut off. The highest methane reading in the area was .4%. The 

inspector issued a section 104(d)(l) order (3227686) charging a 

violation of 30 C.F.R. § 75.507. A citation had been isued about 

two months previously, and an order about six weeks previously 

for essentially the same conditions. The order was terminated at 

10:30 a.m. the same day when the pwnps were removed outby the 

last open crosscut. 

The order was modified on April 24, 1989, to correct the 

standard allegedly violated from § 75.507 to § 75.503. 

REGULATIONS 

30 C.F.R. § 75.302-1 provides in part: 

§ 75.302-1 Installation of line brattice and other 

devices. 

Ca) Line brattice or any other approved device used to 

provide ventilation to the workin3 face from which coal 

is being cut, mined or loaded and other working faces 

so designated by the Coal Mine SaEety Manager, in the 

approved ventilation plan, shall oe installed at a 

distance no greater than 10 feet from the area of 

deepest penetration to which any portion of the face 

has been advanced unless a greater distance is approved 

by the Coal Mine Safety District Manager of the area in 

which the mine is located. 

30 C.F.R. § 75.301-1 provides: 

§ 75.301-1 Quantity of air reaching working face. 

1346 
A minimum quantity of 3,000 cubic £eet a minute of air 

shall reach each working face from which coal is being 

cut, mined or loaded and any other working face so 

designated by the District Manager, in the approved 

ventilation plan. 

30 C.F.R. § 75.1710 provides in part: 

An authorized representative of the Secretary may 

require in any coal mine where the height of the 

coalbed permits that electric face equipment, including 

shuttle cars, be provided with substantially 

constructed canopies, or cabs, to protect the miners 

operating such equipment from roof falls and from rib 

and face rolls. 

§ 75.1710-1 Canopies or cabs; self-propelled electric 

face equipment; installation requiraments. 

(a) Except as provided in paragraph Cf) of this 

section, all self-propelled electric face equipment, 

including shuttle cars, which is employed in the active 

workings of each underground coal mine on and after 

January 1, 1973, shall, in accordance with the schedule 

of time specified in paragraphs (a)(l), (2), (3), (4), 

(5), and (6) of this section, be equipped with 

substantially constructed canopies or cabs, located and 

installed in such a manner that when the operator is at 

the operating controls of such equipment he shall be 

protected from falls of roof, face, or rib, or from rib 

and face rolls. the requirements of this paragraph (a) 

shall be met as follows: 

Cl) On and after January 1, 1974, in coal mines 

having mining heights of 72 inches or more; 

(2) On and after July 1, 1974, in coal mines having 

mining heights of 60 inches or more, but less than 72 

inches; 

(3) On and after January 1, 1975, in coal mines 

having mining heights of 48 inches or more, but less 

than 60 inches; 

(4) On and after July 1, 1975, in coal mines having 

minihg heights of 36 inhes or more, but less than 48 

inches; 

30 C.F.R. § 75.507 provides in part: 

Bxcept where permissible power connection units are 

used, all power-connection points outby the last open 

crosscut shall be in intake air. 

1347 
§ 75.507-1 Electric equipment other than 

power-connection points; outby the last open crosscut; 

return air; permissibility requirements. 

(a) All electric equipment, other than 

power-connection points, used in return air outby the 

last open crosscut in any coal mine shall be 

permissible except as provided in paragraphs (b) and 

(c) of this section. 

30 C.F.R. § 75.503 provides: 

§ 75.503 Permissible electric face equipment; 

maintenance. 

[STATUTORY PROVISIONS] 

The operator of each coal mine shall maintain in 

permissible condition all electric face equipment 

required by §§ 75.500, 75.501, 75.504 to be permissible 

which is taken into or used inby the last open crosscut 

of any such mine. 

CONCLUSIONS OF LAW 

JURISDICTION 

Respondent Green River is subject to the provisions of the 

Federal Mine Safety and Health Act of 1977 (the ~ct) in the 

operation of the No. 9 Mine. I have jurisdiction over the 

parties and subject matter of this proceeding. 

VENTILATION VIOLATIONS 

Green River does not seriously contest the violations 

charged as a result of the investigation of the explosion on 

June 23, 1988. It suggested that the line curtain might have 

come down as a result of the explosion, but its own witness, the 

section foreman, did not support this suggestion. The evidence 

clearly establishes that the line curtain was not hung to within 

10 feet of the face, and that the airflow at the end of the line 

curtain was substantially less than required. Violations of 30 

C.F.R. § 75.302-1 and § 75.301-1 were clearly established. 

Because the mine liberates ~ore than one million cubic feet of 

methane in a 24-hour period, and has a history of face ignitions, 

the viol:itions were extre~ely serious. In fact, they resulted in 

an explosion and an injury to a miner. Both conditions should 

have been ascertained by management, especi:illy given the mine's 

history. I conclude that they resulted from Green River's 

1348 
negligence. Considering the criteria in section llO(i) of the 

~ct, the proposed penalties of $1400 for each violation are 

appropriate. 

CANOPY VIOLATIONS 

The roof in the subject mine is unstable. Eighty eight roof 

falls have been reported to MSHA. The canopy requireinent has 

applied to the subject mine since 1975. The three alleged 

violations were clearly established: the equipment involved, 

all items of electric face equipment, were used inby the last 

open crosscut. The violations were all very serious: that 

involving the cutting machine (Citation 3228988) was especially 

aggravated, since the operator was in jeopardy if he used the 

canopy or if he did not use the canopy. All of the violations 

were ~nown or should have been known to mine management. They 

resulted from Green River's negligence. Considering the criteria 

in section llO(i) of the Act, $1,000 for the violation cited in 

citation 3228988 and $800 for each of the violations cited in 

orders 3228563 and 3228564 are appropriate penalties. 

PERMISSIBILITY VIOLATION 

Respondent does not contest the facts that on August 12, 

1988, there were four 110 volt nonpermissible pumps pumping water 

inby the last open crosscut. Neither does it deny that these 

facts establish a violation of 30 C.F.R. § 75.503. Rather, it 

argues the modification of the citation on April 24, 1989, was 

improper and that it does not coinport with the mandate of the 

statute that a copy of the order be given promptly to the mine 

operator. 

There was no question at the time the order 3227686 was 

issued that Green River was being charged with operating 

nonpermissible electric face equipment in and inby the last open 

crosscuts (a violation of 30 C.F.R. § 75.503). It was not 

charged, nor did it offer evidence to indicate that it believed 

it was charged with operating nonpermissible electric face 

equipment in return air~ourses (a violation of 30 C.F.R. 

§ 75.507-1). The violation was abated by removing the pumps 

outby the last open crosscut. Respondent was not misled. See 

Secretary v. U.S. Steel Mining Co., Inc., 6 FMSHRC 722 (1984) 

(ALJ). I conclude that a violation has been established, and the 

modification of the order does not vitiate it. 

The violation was serious. Green River ~o. 9 is a gassy 

mine, and an arc from one of the oumos could cause an ignition or 

explosion if it contacted a metha~e buildup. The violation was 

obvious and Green ~iver was aware or should have been aware of it. 

I conclude that it resulted from Green River's negligence. 

1349 
Considering the criteria in section llO(i) of the Act, $1500 is 

an appropriate penalty for the violation. 

ORDBR 

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

IT IS ORDERED: 

1. Citations 3228886, 3228887 and 3228988 are AFFIRMED. 

2. Orders 3228563, 3228564 and 3227686 are AFFIRMED. 

3. Respondent shall within 30 days of the date of this 

decision pay the following civil penalties for the violations 

found: 

CITATION OR ORDER 

3228886 

3228887 

3228988 

3228563 

3228564 

3227686 

Distribution: 

TOTAL 

PENALTY 

$1400 

1400 

1000 

800 

800 

1600 

$7000 

d~dvt~~ es A. Broderick 

.Administrative Law Judge 

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

Solicitor, 2:002 "Richard Jones R.oad, Su1te B-201, ~ashville, T'N' 

37215 (Certified Mail) 

B. R. Paxton, ~sq., Paxton & Kusch, P.S.C., 213 East Broad 

Street, P.O. Box 655, Central City, KY 42330 (Certified Mail) 

slk 

1350 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 311989 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. SE 88-59-M 

A.C. No. 54-00289-05503 

v. 

DILLINGHAM CONSTRUCTION 

INTERNATIONAL, 

Respondent 

Docket No. SE 89-23-M 

A.C. No. 54-00289-05504 

Cerrillos Dam Project 

Appearances: 

Before: 

DECISIONS 

William G. Staton, Esq., Office of the Solicitor, 

U.S. Department of Labor, New York, New York, for 

the Petitioner; 

Anibal Irizarry, Esq., McConnell, Valdes, Kelley, 

Sifre, Griggs & Ruiz-Suria, San Juan, Puerto Rico, 

for the Respondent. 

Judge Koutras 

Statement of the Proceedings 

These proceedings concern proposals for assessment of civil 

penalties filed by the petitioner against the respondent pursuant 

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

1977, 30 U.S.C. § 820(a), seeking civil penalty assessments for 

nine alleged violations of certain mandatory safety standards 

found in Part 56, Title 30, Code of Federal Regulations. The 

respondent filed timely contests and answers, and hearings were 

held in San Juan, Puerto Rico. The parties filed posthearing 

briefs, and their respective arguments have been considered by me 

in the course of my adjudication of the cases. I have also 

considered the oral arguments made by the parties at the 

hearings. 

Issues 

The respondent takes the position that it is a construction 

contractor, who at the time of the MSHA inspections in question, 

was engaged in the process of constructing a dam pursuant to an 

agreement with the Government of Puerto Rico and the U.S. Corps 

of Engineers. Respondent denies that it operates a "mine" within 

the jurisdiction of the Act, and asserts that its work associated 

with the dam project in question is within the enforcement 

1351 
jurisdiction of the Commonwealth of Puerto Rico Occupational 

Safety and Health Administration (hereinafter PR-OSHA). 

The respondent maintains that any minerals taken and used in 

the construction of the dam have been "excavated" rather than 

"extracted," and that it does not engage in any "mining or 

milling" activities which would bring its construction activities 

within the jurisdiction of the Act, and within MSHA's mine 

enforcement jurisdiction. In support of its position, the 

respondent relies on an MSHA/OSHA Interagency Agreement, and 

several MSHA policy directives issued with respect to this 

agreement. 

Assuming that the respondent is subject to the Act and to 

MSHA's enforcement jurisdiction, the additional issues presented 

are (1) whether the respondent violated the cited standards, and 

if so, the appropriate civil penalties which should be assessed 

taking into account the civil penalty assessment criteria found 

in section llO(i) of the Act; and (2) whether several of the 

alleged violations were "significant and substantial" (S&S). 

Applicable statutory and Regulatory Provisions 

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

30 u.s.c. § 801 et seq. 

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

3. Part 56, Title 30, Code of Federal Regulations. 

Stipulations 

The parties stipulated to the following: 

1. The respondent's size consists of 102,559 manhours worked per annum. 

2. The respondent's history of prior violations 

consists of 10 assessed civil penalty assessments made 

by MSHA in 1987. 

3. Payment of the proposed civil penalty 

assessments for the violations in issue in these 

proceedings will not adversely affect the respondent's 

ability to continue in business. 

Discussion 

All of the contested section 104(a) citations in these 

proceedings were issued by MSHA Inspector Roberto Torres Aponte, 

after the completion of his inspection of the dam site in question on August 31 and September 1, 1987. Although the citations 

1352 
are dated September 1, 1987, Inspector Torres confirmed that he 

actually wrote them on September 2, 1987, the day following his 

inspection, and that he served them on respondent's representative Ike Tabor during a close-out conference held that day. 

Mr. Torres further confirmed that during the course of his 

inspection he discussed each of the cited conditions with 

Mr. Tabor and informed him of the violations and the fact that he 

would issue the citations. Mr. Torres further explained that his 

normal procedure is to write up and serve any citations on the 

mine operator at the conclusion of his inspection and during the 

close-out conference. The citations issued by Mr. Torres are as 

follows: 

Docket No. SE 88-59-M 

Non-"S&S" Citation No. 2858999, 30 C. F.R. 57 .14001. "The 

No. 3 feeder motor belts were not guarded, maintenance is done in 

the area where the equipment is shutted (sic) off." 

"S&S" Citation No. 2859000, 30 C.F.R. § 56.11002. "The 

walkway around the No. 3 feeder was not provided with hand rails 

around it exposing maintenance employees to fall from approx. 

12 ft. to the lower level. Three employees were working in the 

area." 

"S&S" Citation No. 2859001, 30 C.F.R. § 56.14001. "The 

No. 5 conveyor belt counterweight pulley was not guarded. It is 

located 'near the walkway where persons walk and are exposed to 

become caught between the belt and pulley." 

Non-"S&S" Citation No. 2859002, 30 C.F.R. § 56.11002. "The 

No. 6 feeder platform was not provided with handrails. The area 

is not used on a regular basis." 

Non-"S&S" Citation No. 2859003, 30 C.F.R. § 57.14001. "The 

No. 7 conveyor belt tail pulley was not guarded. Cleaning and 

maintenance is done in the area when the equipment is 

shutted (sic) off." 

"S&S" Citation No. 2859004, 30 C.F.R. § 56.9007. "The No. 8 

conveyor belt emergency stop cord was broken loose exposing the 

persons who walk in the walkway to the hazard. The walkway is 

used on a regular basis by employees." 

Non-"S&S" Citation No. 2859005, 30 C.F.R. § 56.14001. "The 

No. 9 conveyor belt tail pulley was not guarded. Cleaning and 

maintenance is done in the area when the equipment is 

shutted (sic) off." 

Non-"S&S" Citation No. 2859006, 30 C.F.R. § 56.14001. "The 

No. 10 conveyor belt counterweight pulley was not guarded. 

1353 
Cleaning and maintenance is done in the area when the equipment 

is shutted (sic) off." 

Docket No. SE 89-23-M 

"S&S" Citation No. 2859007, 30 C.F.R. § 56.15003. "Several 

employees were not wearing safety shoes in the rock plant, being 

exposed to have feet injuries or fractures." 

Petitioner's Testimony and Evidence 

Inspector Torres testified with respect to his training and 

experience, and he confirmed that he has served as an inspector 

for 11 years, and was previously employed at a cement plant for 

8 years. He confirmed that in response to a September 22, 1986, 

letter from the respondent's Project Manager Lars Johansson, 

requesting a "CAV" or compliance assistance visit, he visited the 

"extraction area" at the dam construction site on November 4, 

1986. Mr. Torres explained that such visits are normally made 

while an operator is making equipment adjustments, but before the 

start of any full production. During the visit in question, 

Mr. Torres inspected all of the equipment at the site, and discussed with mine management several violative conditions concerning equipment guarding, berms, safe access, walkways, safety 

shoes, and handrails, and made recommendations concerning 

corrective action. 

Mr. Torres stated that the conditions he found during his 

initial CAV inspection were "Non-civil penalty violations" for 

which the respondent was given a reasonable time to correct 

before an MSHA inspector returns to the site for a regular 

inspection. 

Mr. Torres stated that during his CAV inspection he found 

that limestone was being extracted by the respondent by blasting. 

The limestone was then trucked to the primary crusher and screening plant where it was sized or separated into smaller rock by 

means of two grizzles. The processed materials were then used in 

the construction of the dam. Mr. Torres stated that the primary 

crusher operation and extraction area were located approximately 

1,500 feet from the actual dam construction site, and that the 

screening station was approximately 200 feet from the primary 

crusher. 

Mr. Torres stated that the respondent used explosives, 

bulldozers, front-end loaders, haulage trucks, primary crusher 

and screening conveyor belts, and two grizzles during the limestone extraction and processing activity. He stated further that 

a conveyor belt located at the primary crusher transferred the 

excavated limestone and rock to the screening station where four 

screens were used to separate small stones from the larger ones, 

and that the resulting crushed rock was used in "layers" to 

1354 
construct the dam. He also confirmed that some of the processed 

materials were used to produce concrete or sand, and that all of 

the materials were ultimately used for in the construction of the 

dam. 

In addition to the excavated rock and limestone which was 

processed at the dam construction excavation area, Mr. Torres 

stated that the respondent used raw materials which it purchased 

from other area quarries for the construction of the dam. He 

described this material as "white marble-like stone" which was 

not excavated at the same site, and he confirmed that it was 

"trucked in." He determined that these other materials were 

brought to the site through visual observation of the material 

which was stockpiled at the excavation area of the dam construction site. 

Mr. Torres characterized the work being performed at the 

excavation area in question as a milling operation, and he confirmed that according to an MSHA report which was filed by the 

respondent, 32 of the respondents' employees were engaged in work 

connected with this milling operation. He did not know the total 

number of employees who were working at the site. 

Mr. Torres identified the bulldozers used by the respondent 

as Caterpillar "cats" or "dozers," and he confirmed that the 

other equipment which he previously identified, including the 

bulldozers, were all manufactured outside of Puerto Rico in "the 

states." 

Mr. Torres stated that subsequent to his initial CAV inspection, he next visited the dam construction excavation area on 

February 9 and 10, 1987, to conduct a regular inspection. The 

first day he was alone, and the second day he was accompanied by 

MSHA Inspector Augusto Perez. During these visits, Mr. Torres 

confirmed that he observed the same milling activities, i.g., 

limestone extraction, crushing, and screening, and they were 

similar to the activities taking place during his prior CAV 

inspection. 

Mr. Torres stated that during his inspection of February 9 

and 10, 1987, he issued several citations to the respondent, and 

after proposed civil penalty assessments were made by MSHA for 

these violations, the respondent paid the assessments and the 

citations were terminated. 

Mr. Torres stated that his next visit to the dam excavation 

area took place on June 29, 1987, when he went there for a "compliance follow-up inspection" to ascertain whether the prior 

violative conditions were corrected by the respondent. At this 

time only the primary crusher was in operation, but a new secondary crushing plant was being constructed by the respondent in 

1355 
order to produce finer rock material to be used in the construction of the darn. 

Mr. Torres stated that he next visited the darn excavation 

area on August 31, and September 1, 1987, when he conducted 

another regular inspection. He inspected the primary crusher and 

screening plant, and conducted noise sampling surveys on some of 

the equipment. Since the secondary crushing plant was still 

under construction, he did not inspect it. Mr. Torres confirmed 

that Mr. Ike Tabor, the respondent's "excavation area" manager, 

accompanied him during the inspection and that he discussed each 

of the citations which he issued with Mr. Tabor. 

Mr. Torres confirmed that subsequent to his inspections of 

August 31, and September 1, 1987, he held a "closing conference," 

with Mr. Tabor, Mr. Johansson, MSHA Inspector Brian Smith, and 

the respondent's project safety engineer Gerald R. Fulghum, and 

that Mr. Fulghum advised him that the equipment guards which were 

the subject of Citation Nos. 2858999, 2859003, 2859005, and 

2859006, had been removed in order to be repaired, but that the 

repair work had not been completed and the guards were not 

replaced. Mr. Fulghum subsequently mailed in a "note" to his 

off ice explaining the circumstances under which the guards had 

been removed. 

Citation No. 2858999 

Mr. Torres stated that the cited feeder motor belts were 

located at the third level of the primary screen station. The 

motor is used for the vibrating screens, and employees need to be 

there on a daily basis to clean any spillage from the floors. 

Access to the cited location is by means of a ladder way. 

Mr. Torres confirmed that he observed the condition at 8:30 a.rn., 

on September 1, 1987, and that the plant was not in operation at 

that time, and the motor was shutdown. The plant was put in 

operation between 11:00-11:30 a.rn. 

Mr. Torres stated that he made a gravity finding of 

"unlikely" because the plant is shutdown and locked out when 

clean-up or maintenance work is performed. Although he observed 

no one at the cited location, Mr. Torres believed that at least 

one individual would be in the area for inspection once the plant 

was started up. In the event someone were to be caught in the 

unguarded motor belts, they could lose a finger or an arm or 

suffer disabling injuries. 

Mr. Torres confirmed that he made a negligence finding of 

"moderate" because he believed that a supervisor should have been 

aware of the unguarded belts, and similar belts in the plant were 

guarded. Mr. Torres did not believe the violation was "significant and substantial" because the plant was shutdown when cleanup 

1356 
or maintenance was performed. He also confirmed that the citation was terminated at a later time by another inspector. 

Citation No. 2859000 

Mr. Torres stated that the cited feeder walkway was located 

at the third level of the screening station tower, and that it 

was elevated approximately 12 feet above the next lower level. 

Mr. Torres stated that plant manager Ike Tabor, who accompanied 

him during his inspection, informed him that the platform where 

the walkway was located was constructed for the purpose of main--

taining the No. 3 feeder, but that handrails were not installed. 

Mr. Torres confirmed that when he observed the condition at 

8:10 a.m., the plant was down and the feeder was not in 

operation. He observed three employees in the area performing 

clean-up and maintenance work, and Mr. Tabor informed him that 

they were employees of the respondent. 

Mr. Torres confirmed that he made a gravity finding of 

"reasonably likely" because someone could fall off the elevated 

unguarded platform at any time, and if they did, they would 

likely suffer fatal injuries. He believed the violation was 

"significant and substantial" because of the high probability of 

an accident which could result in a fatality. 

Mr. Torres confirmed that he made a negligence finding of 

"moderate" because similar platform areas were guarded with 

handrails and this should have alerted a supervisor of the need 

to provide the required handrails. 

Citation No. 2859001 

Mr. Torres stated that the cited No. 5 conveyor belt counterweight pulley was not guarded when he observed it at 8:30 a.m. 

The belt was used to transport material and it was elevated and 

located approximately 20 to 25 feet above ground. A walkway was 

next to the unguarded pulley, and the unguarded area was approximately 8 inches from the edge of the walkway. Employees would 

regularly walk by the unguarded pulley because the walkway provided an access way to the transfer point behind the pulley. 

Mr. Torres confirmed that the plant was shutdown and the 

belt was not in operation when he observed the condition. However, once the plant is put into operation at approximately 

11:00 a.m., employees would regularly be using the walkway adjacent to the unguarded pulley. Given the fact that the pulley was 

36 inches long and 12 to 15 inches wide, experience has shown 

that accidents have occurred when employees are caught in an 

unguarded pulley of that size. 

1357 
Mr. Torres stated that he made a gravity finding of "reasonably likely" because of the likelihood of an accident and injury 

once the equipment was put in operation, and at least one person 

who regularly travels the walkway from one side of the pulley to 

the other would be exposed to the hazard. Mr. Torres also confirmed that he made a finding that the violation was "significant 

and substantial" because someone could have been caught in the 

pulley, and if this occurred, a fatality would occur. 

Mr. Torres stated that the plant area was "practically new," 

and that Mr. Tabor informed him that a guard had previously been 

provided for the pulley in question, but that it was removed for 

some reason. Mr. Torres stated that he based his "moderate" 

negligence finding on the fact that similar equipment parts in 

the area were guarded, and a supervisor should have known that 

the cited pulley in question needed to be guarded. 

Citation No. 2859002 

Mr. Torres stated that the No. 6 feeder platform located at 

the second level of the secondary crusher plant was not provided 

with handrails. The platform was approximately 10 feet above the 

second level floor, and it was used to provide maintenance for 

the shakers located on the platform. He stated that the shakers 

were located in the middle of the platform area, and that any 

employee performing maintenance on the shakers would be "far 

away" from the edge of the perimeter of the unguarded platform. 

Mr. Torres stated that employees would not normally be on 

the platform on a regular basis, and although the platform was 

located in a new plant area which had not been totally completed, 

the cited area was located in a plant area which was in 

production. 

Mr. Torres confirmed that he made a gravity finding of 

"unlikely" because of the low probability of an accident. He 

explained that any maintenance work on the feeder would be performed in the middle of the platform where the feeder was 

located, and that the feeder was approximately 10 feet from the 

edge of the platform. The only reason for anyone going to the 

platform would be to perform maintenance work, and even if someone were to fall from the platform, they would fall into the 

"soft" material below and would not likely be injured. 

Mr. Torres believed that the violation.was not ''significant 

and substantial" because it was not probable that anyone performing maintenance work on the platform would fall off, and it was 

unlikely that an accident or injury would occur. He confirmed 

that he made a negligence finding of "moderate" because similar 

platform areas were provided with handrails. 

1358 
Citation No. 2859003 

Mr. Torres stated that the No. 7 conveyor belt tail pulley 

located at the secondary crusher plant was not guarded. He 

explained that the pulley was located approximately 1 foot from 

the floor level and under the No. 6 feeder which discharged 

material on the No. 7 belt conveyor. A guard had previously been 

provided, but it had been removed and not replaced. The plant 

was shutdown when he observed the condition, and he confirmed 

that employees are not regularly in the area, except when the 

belt is shutdown for maintenance work such as alignment or 

greasing. 

Mr. Torres stated that he based his gravity finding of 

"unlikely" on the fact that the plant equipment is shutdown when 

maintenance or cleaning work is performed. However, if someone 

were to be caught in the unguarded pulley, which was 36 inches 

long and 10 to 12 inches in diameter, they would suffer fatal 

injuries, and past experience with similar unguarded pulleys 

attest to this fact. He believed that "sooner or later" someone 

would have to go to the area while the equipment is running, and 

they would be exposed to a hazard of being caught in the pulley. 

One maintenance person would be exposed to the hazard. 

Mr. Torres confirmed that the violation was not "significant 

and substantial," and that he based his negligence finding of 

"moderate" on the fact that a supervisor should have noticed the 

unguarded pulley during the preshift examination. 

Citation No. 2859004 

Mr. Torres stated that the broken No. 8 conveyor belt stop 

cord was located at the secondary plant. There were two conveyor 

belts at the cited location, the No. 7 and No. 8, and the No. 8 

belt was on the left side. The stop cord was approximately 

100 feet long, and it was broken in the middle and lying on the 

walkway which was adjacent and parallel to the belt. Both the 

belt and walkway were inclined, and the walkway was regularly 

used by employees to go from ground level to the crusher. 

Mr. Torres stated that the belt was in operation when he 

observed the broken stop cord, but that no employees were in the 

area. However, he believed that prior to the start of the operation, one person had walked by the cited area while going to the 

cone crusher. 

Mr. Torres stated that he based his gravity finding of 

"reasonably likely" on the fact that the walkway was used regularly when the plant was in operation and the broken stop cord 

would not allow the conveyor belt to be shutdown in the event of 

an emergency or breakdown. If this were to occur, employees 

would be exposed to a hazard from the materials on the belt. 

1359 
Mr. Torres believed the violation was "significant and substantial" because of the likelihood of an accident resulting from the 

inability to stop the conveyor because of the broken cord. 

Employees would normally use the walkway to check on the 

equipment. 

Mr. Torres confirmed that he based his negligence finding of 

"moderate" on the fact that the supervisor should have been aware 

of the broken stop cord, and as he previously stated, someone 

walked by the area prior to the start of the operation. 

Citation No. 2859005 

Inspector Torres stated that the cited unguarded No. 9 

conveyor belt tail pulley was located at the secondary crusher 

plant. The belt was under the cone crusher at ground level, and 

Mr. Tabor advised him that a guard had been in place but that it 

had been removed. 

Mr. Torres confirmed that employees would be in the area for 

clean-up and maintenance work, but that the belt would be shutdown when this work was being done. He observed no employees in 

the area, and never observed any maintenance or clean-up work 

being performed. 

Mr. Torres described the pulley as 24 inches long and 10 to 

12 inches in diameter. He did not believe that the violation was 

"significant and substantial" because the equipment was shutdown, 

and he made a gravity finding of "unlikely" because maintenance 

and clean-up work is performed only when the plant and equipment 

is shutdown. 

Mr. Torres confirmed that he made a negligence finding of 

"moderate" because he believed that a supervisor should have been 

aware of the fact that the belt pulley was not guarded. 

Mr. Torres also indicated that past experience has shown that 

fatalities have occurred when anyone is caught in such an 

unguarded pulley. 

Citation No. 2859006 

Mr. Torres stated that the cited unguarded No. 10 conveyor 

belt counterweight pulley was located at the secondary plant and 

that the belt travelled from the feeder hopper to the washing and 

screening station. There was a walkway next to the belt and 

employees would use it while performing maintenance work. 

Mr. Torres stated that the equipment was shutdown when he 

observed the condition, and that it is shutdown when clean-up or 

maintenance work is performed. Mr. Torres stated that he made a 

gravity finding of "unlikely" because the equipment is shutdown 

when work is being performed, and the walkway is not used on a 

1360 
regular basis. ·He also indicated that if anyone were caught in 

such an unguarded belt pulley, a fatality could occur. 

Mr. Torres did not believe the violation was "significant and 

substantial," and he based his "moderate" negligence finding on 

the fact that similar equipment was guarded. 

Citation No. 2859007 

Mr. Torres stated that he issued the citation after observing that three employees at the primary rock plant screening 

tower, and three employees at the secondary plant, were not 

wearing hard-toed safety shoes. Mr. Torres stated that one 

employee was wearing tennis shoes, but he did not inspect the 

shoes, nor did he speak to any of the employees. He confirmed 

that the employees were wearing hard hats, and that he observed 

three employees cleaning up under the screening tower. 

Mr. Torres also stated that Mr. Tabor informed him that the 

respondent required its employees to wear safety shoes, but that 

they did not wear them. Mr. Torres was of the opinion that the 

cited standard required all plant employees to wear safety shoes 

and that this is the policy interpretation of the standard which 

is followed in his office. 

Mr. Torres stated that he based his gravity finding of 

"reasonably likely" on his belief that an employee could be 

struck on 'the foot by falling rock or material while cleaning up, 

or by a tool or other equipment while he was performing maintenance work. 

On cross-examination, and in response to further questions 

concerning guarding Citation Nos. 2859001, 2859003, 2859005, and 

2859006, Mr. Torres confirmed that at the time he observed the 

conditions, the equipment was shutdown and not in operation, and 

he observed no employees who were exposed to any hazards at that 

particular time. Mr. Torres also confirmed that the plant is 

shutdown for maintenance at 8:30 a.m., and that production begins 

at approximately 11:00 a.m. Although the main plant generator 

was deenergized at the time of his inspection, Mr. Torres did not 

believe that all of the equipment motors were locked out. 

With regard to guarding Citation No. 2858999, Mr. Torres 

confirmed that he saw no employees in the area. He could not 

name the employees who were not wearing safety shoes, or the 

employees who he observed on the walkway of the No. 3 feeder, but 

he stated that Mr. Tabor informed him that ·they were employees of 

the respondent. Mr. Torres also stated that three of the 

employees without safety shoes were cleaning up, and that the 

other three were maintenance personnel. 

Mr. Torres conceded that the cited standard does not contain 

the words "safety shoes," and that he assumed that the phrase 

"suitable protective footwear" means "safety shoes." He also 

1361 
confirmed that his inspector's manual interpretation of the 

standard provides that safety shoes means "hard toe shoes" (Tr. 

96-97). 

With regard to guarding Citation Nos. 2859001, 2859003, 

2859005, and 2859006, Inspector Torres confirmed that the plant 

was not in operation when he viewed the conditions, and he 

observed no employees in the area of the unguarded equipment. He 

also confirmed that he did not return to those areas after the 

plant began operating at 11:00 a.m. (Tr. 106-107). 

Mr. Torres confirmed that Plant Manager Tabor informed him 

that the generator supplying power to the plant was shutdown so 

that the equipment could not be energized. Mr. Torres also 

confirmed that the equipment breakers were not locked out (Tr. 

121) . 

With regard to citation No. 2858999, Mr. Torres confirmed 

that he observed no employee exposed to any hazard, and he 

explained that the "persons affected" by the citation were those 

employee cleaning or performing maintenance, and that "maybe" one 

of them "could go to that area and injured there" (Tr. 122}. 

Mr. Torres conceded that except for Citation Nos. 2859000 and 

2859007, he did not actually observe any employees exposed to any 

hazards at the time of his inspection, and while he did not know 

the identity of any of the employees, Mr. Tabor advised him that 

they were employed by the respondent (Tr. 125-126). Mr. Torres 

confirmed that all maintenance is performed when the equipment is 

shut off (Tr. 127), but he believed that safety shoes were still 

required because employees handle tools and work with heavy 

machinery, and it could fall on their feet (Tr. 127). He confirmed that Mr. Tabor advised him that the respondent's policy 

required its employees to wear safety shoes, but that Mr. Tabor 

did not specify the type of shoes, but did confirm that the shoes 

the employees in question were wearing were not in compliance 

with company policy (Tr. 154). 

Mr. Torres confirmed that during his close-out conference of 

September 2, Mr. Johansson and Mr. Tabor did not mention that the 

equipment guards were being repaired, and would be replaced. 

Mr. Torres stated that this information came from Mr. Fulghum 

after the meeting by means of a note which he sent to his off ice 

(Tr. 158-161). 

MSHA Supervisory Inspector Juan Perez, confirmed that he 

supervises the MSHA office in Puerto Rico, including all mine 

inspectors assigned to his office. He stated that he visited the 

dam site in question as a follow-up to an inspection conducted by 

Mr. Torres on February 5, 1988, to determine whether the cited 

conditions were corrected. Mr. Perez further stated that the 

site was not in operation because of an impending expansion, and 

1362 
the abatement periods for the citations were extended to May 1, 

1988, the date that he was informed the operation would again 

start. Mr. Perez stated that he next returned to the site on 

April 21, 1988, and found that most of the citations, except for 

the safety shoes, were abated. He also confirmed that he had 

visited the site in September, 1987 (Tr. 177-182). 

Mr. Perez stated that during his visits to the site he 

observed two crusher operations or "plants," one of which he 

identified as the primary crusher, and one of which he identified 

as the secondary crusher. In addition to the crushers, he 

observed a screen, vibrator, and conveyor, and indicated that the 

secondary plant could be fed by a front-end loader or a conveyor 

which connected both operations. He also observed materials 

which had been brought in from other quarries, and these materials were stockpiled between the two plants. He identified the 

material as a "fixer" which was washed, and ground to produce 

different sizes, and stated that some of the material was used 

for the concrete plant (Tr. 184). 

Mr. Perez stated that shortly after Mr. Torres' inspection 

of September 1, 1987, he had a conference with Mr. Fulghum on 

September 8, at his MSHA office. He stated that Mr. Fulghum 

questioned the issuance of the citations when the plant was not 

in operation, and also questioned MSHA's jurisdiction to inspect 

the dam project (Tr. 185). Referring to his conference report, 

Mr. Perez stated that Mr. Fulghum agreed with all of the citations except for those pertaining to the lack of guards, and that 

he stated that the guards were in the machine shop for repairs 

(Tr. 187). 

Mr. Perez stated that he later met with respondent's counsel 

Irizarry, Mr. Fulghum, and the director of the local OSHA office, 

Filiberto Cruz, on February 8, 1988. The question of enforcement 

jurisdiction was discussed at this meeting, and Mr. Perez stated 

that he placed a phone call to his supervisor, Mr. Claude 

Narramore, MSHA District Manager in Birmingham, Alabama, and that 

Mr. Narramore spoke with Mr. Irizarry and informed him that he 

agreed with Mr. Perez' position that MSHA did in fact pave 

enforcement jurisdiction at the respondent's dam construction 

site. Mr. Perez stated that he suggested that the respondent put 

its jurisdictional position in writing in order to submit it to 

Mr. Narramore, but that this was not done (Tr. 188-194). 

Mr. Perez alluded to a call that he received from the Corps 

of Engineers when the dam project was started inquiring whether 

or not MSHA had jurisdiction. Mr. Perez stated that he gave an 

opinion that if the project entailed construction only, MSHA 

would not have jurisdiction, but if involved milling, it would 

have jurisdiction (Tr. 194). 

1363 
Mr. Perez stated that he provided Mr. Irizarry and Mr. Cruz 

with copies of MSHA Policy Memorandum No. 87-2N-MSHA-OSHA 

Interagency Agreement, and that he also discussed the memorandum 

with Mr. Narramore. He confirmed that he advised Mr. Narramore 

that the respondent was crushing material and buying it from 

other plants, and that both he and Mr. Narramore agreed that MSHA 

had jurisdiction in the matter (Tr. 196). Mr. Perez explained 

Mr. Narramore's position as follows at (Tr. 197): 

Q. Now, did he explain to you, you know according to 

this memo what would fall under MSHA's jurisdiction and 

what would not fall under MSHA's jurisdiction? 

A. Yes. 

Q. And do you recall what he told you about that? 

A. Well, in general, we were discussing and he 

presented an example, like a tunnel, when they building 

a tunnel, they take the material and they dispose of 

that material, you know; we don't have any jurisdiction 

on that. A dam is similar too, if they take the 

material, the material they have to remove and they 

dispose of that material, we don't have jurisdiction on 

that. 

Q. OK, now did he explain situations like that where 

MSHA would have jurisdiction? 

A. Yes, he said anything that falls on VHl, milling, 

it's our jurisdiction. 

Mr. Perez confirmed that after the aforesaid meeting, he 

received nothing further from the respondent regarding the jurisdictional question, and it was not further discussed in his 

office. He confirmed that his office initially exercised its 

enforcement jurisdiction after the respondent filed for a mine 

legal identity number on February 9, 1986, and that he assigned 

the number to the respondent. The "courtesy inspection" conducted by Mr. Torres followed after the request was received from 

the respondent (Tr. 202). 

Mr. Perez confirmed that his inspectors do not inspect "key 

cuts," and that the inspectors only inspect the crushing and 

milling areas. He explained further as follows (Tr. 204): 

A. That is our jurisdiction. I think that in the CAV 

Roberto went to the extraction area, but the extraction 

area was in a different place and it was not ... , 

extracted from the key cut, that was our information, 

that it was off side to the area. That was the key and 

then we have jurisdiction but due to the definition of 

1364 
key cut, we're supposed to inspect only the primary 

crusher and down to the final product. 

Mr. Perez stated further that on the morning of the hearing 

in this case he contacted the local OSHA office in Ponce, and 

spoke with the director, a Mr. Artmayer, who informed him that 

his office does not inspect the dam project, but that it has 

visited the site in response to complaints. Mr. Perez stated 

that Mr. Artmayer informed him that his office does not inspect 

the respondent's crushers. Mr. Perez produced a copy of his 

notes with respect to his conversation with Mr. Artmayer, and 

respondent's counsel Irizzary produced copies of OSHA citations 

served on the respondent by the Ponce OSHA office (Tr. 207-208). 

On cross-examination, Mr. Perez confirmed that MSHA's contact with the dam project resulted from a telephone call in 1985 

from the Corps of Engineers inquiring as to MSHA's jurisdiction. 

Mr. Perez stated that he informed the Corps that MSHA only had 

jurisdiction over milling, and that after the project began, he 

determined that MSHA had jurisdiction and suggested that the 

respondent file for a mine ID number (Tr. 214). 

Mr. Perez stated that while on an inspection at the respondent's new Number 2 plant, he observed materials brought from 

other areas being processed at the plant. He confirmed that this 

"process" involved "washing, classifying and they were grinding 

too" (Tr .. 215). Mr. Perez stated that the respondent was a 

responsible employer in terms of safety, and has reasonably 

complied with the safety regulations and maintained a safe place 

for employees (Tr. 221). 

Respondent's Testimony and Evidence 

Gerald R. Fulghum, respondent's Project Safety Engineer, 

Cerrillos Dam Project, Ponce, Puerto Rico, testified with respect 

to his education and mining experience, and he confirmed that the 

respondent was engaged to construct the Cerrillos Dam Project in 

accordance with the specifications and requirements of the U.S. 

Army Corps of Engineers. He confirmed that he holds a degree in 

mining engineering, and stated that the project is a seven 

million cubic yard dam with a coffer dam and spillway excavation, 

and he explained the scope of the project by reference to several 

documents, including the dam contract specifications. He confirmed that the dam in question is part of the Portugues and 

Bucana Flood Control Plan authorized pursuant to section 201 of 

the Flood Control Act of 1970, Public Law 91611 (Tr. 229-235). 

Mr. Fulghum stated that in the process of constructing the 

dam in question, the respondent is engaged in the excavation of 

limestone, rather than extraction, and that the two terms specifically differ in their respective definitions. He explained that 

1365 
"extraction" is a mining term, and includes "extracting a particular constituent in preference over other," or "a mining 

process in which you're separating one material from another, 

from a host." "Extraction," on the other hand, takes place "when 

the limestone, the principal purpose of the excavation is to 

procure limestone" (Tr. 235-236). 

Mr. Fulghum confirmed that the situs of the dam was determined by the location of the Cerrillos River and the topographical features of the location, which included several varieties of 

limestone which is used in bulk to form the dam. He stated that 

all of the limestone materials which are found at the dam site 

are totally excavated, and there is no stripping of overburden, 

and no selection process takes place. He further confirmed that 

the excavated material goes through the plant in its entirety to 

be used as dam embankment material, and that the respondent is 

not interested in any mineralization, and that the overriding 

criteria in the construction of dams is the particle size stability of the material (Tr. 237-239). 

Mr. Fulghum stated that the only stripping which takes place 

is done to remove loose dirt and vegetable matter which causes 

problems in the final product stability as it is used for the dam 

construction. Referring to the dam spillway design specifications, Mr. Fulghum made reference to "the blasting of material 

excavated from the spillway to insure breakage of fractured rock 

into stable particle sizes." He also stated that the limestone 

rock can also be ripped with a D-9 ripper, and that any materials 

used must meet the particle stability criteria for an earth 

filled dam. He also stated that "a grizzly will be used to 

process all rockfill and separate it into oversize rock, 3-inch 

to 20-inch rock and minus 3-inch rock sizes" (Tr. 240). 

Mr. Fulghum stated that the respondent must follow the Corps 

of Engineers instructions and criteria for the construction of 

the dam, and he confirmed that previously excavated materials has 

been stockpiled "to be run through our plant." Although the 

spillway is the major source for the materials used to construct 

the dam, other associated excavations are used to satisfy the 

bulk and particle stability sizes for the dam (Tr. 242). 

Mr. Fulghum further explained the dam construction criteria, 

including the ''stripping of intensely weathered rock from the 

surface," and the blasting, excavation, and grizzling of other 

rock materials (Tr. 242). He stated that materials excavated 

from the spillway are processed through both of the plant facilities, and while it changes form, "we make no selection process" 

(Tr. 243). 

Mr. Fulghum further explained the criteria for processing 

coarse filter fill, which he described as "crushed firm and/or 

sound limestone," and he explained that the processed limestone 

1366 
must meet the sieve analysis requirements established by the 

Corps of Engineers contract specifications (Tr. 245). 

Mr. Fulghum confirmed that all of the firm limestone rock excavated from the spillway must be processed to maintain its 

particle stability at the sizes in which a core filter or a fine 

filter is manufactured (Tr. 246). 

Mr. Fulghum stated that due to diminishing sources of 

on-site limestone~ the respondent found it necessary to bring in 

additional materials from off-site. Aggregates such as sand, 

quarter-inch, half-inch, three-quarter-inch, and 3-inch aggregates is brought to the site, and used to produce concrete for 

use in the construction of the dam (Tr. 247). 

Mr. Fulghum characterized the respondent's plant as "a fill 

processing plant" and denied that it was a "rock plant," although 

"in all appearances, shapes and forms it looks like a rock plant" 

(Tr. 247). He further explained as follows at (Tr. 248, 250): 

The Corps of Engineers, finding that they're 

running out of limestone rapidly and that two diamond 

drill studies were not sufficient, says "We would like 

you to go out to the local quarries and we want you to 

process their product," and we went to local quarries 

and said, "We would like to buy your three inch minus," 

which is a common request of a quarry. "We want 

... ,"and I ... , more than 50,000 yards, I can't 

remember the specific amount. This material is brought 

on-site and further processed by our filter plant which 

is also called the terciary plant to make filter. 

Once again, everything that goes in that plant, 

even though it came from outside sources, when it goes 

into that plant, there is no separation. What goes in 

the end, comes out the back in one way or another. 

Mr. Fulghum stated that the dam site consists of a spillway, 

a rock plant, and the main dam embankment (Tr. 251). He contended that the respondent is engaged in excavating and processing limestone material which is incidental to the construction of 

the dam, rather than the dam being incidental to the excavation 

and processing activity (Tr. 252). 

Mr. Fulghum confirmed that MSHA's position is that "because 

our plant looks like a rock plant it is" (Tr. 254). He agreed 

that the respondent is excavating the materials to construct the 

dam, but before using the materials as part of the dam construction, the materials are processed to meet the Corps of Engineers 

specifications, and he stated further as follows at (Tr. 

255-258) : 

1367 
JUDGE KOUTRAS: The application seems to be here, at 

least from MSHA's point of view, is that you're 

excavating this material to build the dam, but before 

you take it from pit to dam, you do something with it. 

WITNESS: Yes, sir. 

JUDGE KOUTRAS: And you do what you do to it, is you do 

what the Corps of Engineers teils you to do with it. 

You . ., you subject it to some kind of a process to 

get these specifications, don't you? 

WITNESS: Yes, sir, but Your Honor, in the act itself 

and in the ... , the memorandums of understanding, 

just because we're processing rock doesn't make us a 

miner, doesn't make us a miller. There are exceptions 

to that, Gypsum. Gypsum is milled at a plant in which 

Gypsum board is fabricated. Is that a mill? No, 

they've already found that that's not a mill, Your 

Honor. 

We process material~ Because we process material 

from the earth does not necessarily mean that we're 

milling. You could ... , you could make that argument 

but I think we have to rely on the definitions as we 

have them before us. 

* * * * * * * 

JUDGE KOUTRAS: But then when you look over here at 

milling it's clearly said that MSHA has authority if 

following, there is a list of general definitions of 

milling, to which MSHA has authority to regulate, and 

it says "crushing, sizing," among other things. 

WITNESS: Your Honor, we would agree that in order to 

mill something you must do one of those processes. 

JUDGE KOUTRAS: Don't you crush and size? 

WITNESS: You crush, size, wash, float, center, 

benification, solvent extraction, retorting, those are 

all milling processes, Your Honor. But there's one 

essential element to milling, milling by technical and 

legal definition, Your Honor. 

JUDGE KOUTRAS: It's what? 

WITNESS: You must be separating something valuable 

from something that's not valuable, and we do not do 

that. 

1368 
JUDGE KOUTRAS: But ... , 

WITNESS: Isn't that what it says, Your Honor? Isn't 

it essential . 

JUDGE KOUTRAS: What do you mean of value? You know, 

when you do ... , when you get a specification that 

says that the rock for rockf ill shall be rock well 

graded from 100 percent passing a 20-inch-square screen 

to not more than 5 percent passing a 3-inch screen, 

aren't you •.. , isn't that the value that you ... , 

isn't that what you're getting out of it? You're just 

not up there ripping stuff out of the earth and piling 

it against the dam, you're doing something to that 

under these specifics . . 

WITNESS: We're screening and sizing, Your Honor. 

JUDGE KOUTRAS: That's what I'm saying. Does 

this .. 

WITNESS: But screening and sizing is a •.. , is a 

milling operation. 

JUDGE KOUTRAS: Then if it's a milling operation, 

according to this, it's subject to MSHA's jurisdiction? 

WITNESS: No, but that ... , just because this milling 

does ... , just because there's sizing it does not 

make it a milling operation. Just because you're 

grinding it doesn't make it a milling operation. Those 

are elements that are required to be a mill. But, if I 

could refer and the best definition, I totally concur 

with the definition in the inter-agency agreement, 

which I don't have the Federal Register copy, but 

"milling is the art of treating the crude crust of the 

earth to produce therefrom a primary consumer derivative. The essential operation in all such processes is 

a separation of one or more valuable considered constituents of the crude from the undesired contaminants 

from which it is associated." 

Referring to topographical photographs of the dam facilities, Mr. Fulghum identified the location of the "rock plant" 

used for the processing of dam embankment material, and the 

"terciary plant" used to produce dam filer material, and he 

confirmed that these are the two plants described by Inspector 

Torres during his testimony (Tr. 260-261). He confirmed that the 

excavated materials which are "run through our processing facility" end up in the dam, and that the processed rock is further 

processed when it is crushed further by passing through a 45-ton 

1369 
vibratory roller in order to insure stable particle size (Tr. 

262) . 

In response to his interpretation as to what constitutes 

milling and mining under the Act, and the definition of the term 

"mill" as found in 30 C.F.R. § 56.2, Mr. Fulghum responded as 

follows at (Tr. 264-266): 

JUDGE KOUTRAS: Well, let me ask you this, if you look 

at Section 56.2 of the regulations, you know, in 

Title 30, the definition of a mill here, that's all on 

page 305, Mr. Irizarry, I see you've got the green 

book, it's 56.2. 

WITNESS: Uhum? 

JUDGE KOUTRAS: 56.2, definitions, I'll give you a 

minute to find "milling." 

WITNESS: I think I need this. Thank you. 

Definitions, yes Your Honor? 

JUDGE KOUTRAS: Yes, look up a mill. 

WITNESS: Includes any ore mill ... 

JUDGE KOUTRAS: Yes, let me highlight this for you, 

"Mill includes any crushing, grinding or screening 

plant used in connection with excavation." Let's skip 

all the other words. "Mill includes any crushing, 

grinding or screening plant used in connection with an 

excavation." 

WITNESS: OK, Your Honor. 

JUDGE KOUTRAS: Is that . 

that you're doing? 

., does that fit anything 

WITNESS: That would fit anybody subject to this Act, 

yes, Your Honor. 

JUDGE KOUTRAS: Would it fit what you're doing at the 

... , leave the question of being subject. You have a 

screening plant, don't you? 

WITNESS: Yes, Your Honor. 

JUDGE KOUTRAS: You have a crushing plant, don't you? 

WITNESS: Yes, Your Honor. 

1370 
JUDGE KOUTRAS: And you 

going on, don't you? 

WITNESS: Yes, Your Honor. 

., you have an excavation 

JUDGE KOUTRAS: Does that fit the definition of mill? 

WITNESS: As I'm reading . 

JUDGE KOUTRAS: In and of itself? 

WITNESS: As I'm reading it from here, yes Your Honor. 

But this is not a complete definition, no. For miller. 

JUDGE KOUTRAS: But it's a definition, it's in 56.2? 

WITNESS: It is a definition, that's contained in 56.2, 

yes Your Honor. 

JUDGE KOUTRAS: OK. 

WITNESS: I don't believe it's applicable. 

JUDGE KOUTRAS: OK. 

WITNESS: But we do. ., we do have the same 

characteristic similarities which we don't deny. 

Mr. Fulghum took the position that the respondent does not 

extract minerals, but is simply excavating rock {Tr. 267). In 

his opinion, the respondent's dam construction site is not a 

mine, and the respondent has never developed a mine and has no 

intentions of doing so (Tr. 268). 

Mr. Fulghum characterized the respondent as a "worldwide 

recognized constructor of dams," and he alluded to an analogous 

dam construction project at the respondent's Warm Springs Dam 

project which is located within the enforcement jurisdiction of 

MSHA's Alameda, California Field Office. He also alluded to 

several other dam projects where the respondent excavated similar 

materials used in dam construction, and stated that when 

inquiries were made of MSHA with respect to its jurisdiction over 

these activities, no responses were forthcoming {Tr. 269). 

Mr. Fulghum stated that the CAL-OSHA Office has issued 

citations at the aforementioned dam projects, but that MSHA has 

never inspected those sites or recognized those operations as 

mines or milling operations {Tr. 270). Mr. Fulghum was of the 

opinion that the language contained in the April 17, 1989, 

MSHA-OSHA Agreement excludes the respondent's Cerrillos Dam 

Construction activities from coverage under the Mine Act {Tr. 

271). He believes that the definition of milling, and MSHA's 

1371 
authority with respect to milling operations, as discussed in the 

memorandum, are general definitions, but conceded that "sizing 

and crushing" does define a milling process which is subject to 

MSHA's jurisdiction (Tr. 275). 

Mr. Fulghum confirmed that the dam spillway is part of the 

dam, and that a "spillway" is a "water diversion" within the 

meaning of the October 23, 1986, MSHA Memorandum clarifying "key 

cuts and dam construction" (Tr. 276). He stated that a "key cut" 

of a dam is an excavation that's necessarily a component of the 

dam (Tr. 2 7 6) . 

Mr. Fulghum confirmed that the respondent's dam construction 

operations have been inspected by the local Puerto Rico OSHA 

Office, which has issued citations. Copies of some of these 

citations were received for the record, and Mr. Fulghum reviewed 

and explained them (Tr. 283-289; exhibits R-2 and R-3). 

Mr. Fulghum testified with respect to the guarding citations 

issued pursuant to mandatory standard section 56.14001, Citation 

Nos. 2558999 through 2559007, September 1, 1987, and he confirmed 

that they were discussed with Inspector Torres during his inspection closing conference. Mr. Fulghum took the position that it 

was necessary to remove the equipment guards in order to do 

maintenance work on the equipment. He explained that the respondent's operation at the dam project was a 7-day a week, 24-hour a 

day operation, and that production ceases at given times in order 

to perform maintenance. He took the position that the cited 

standard only applies when there are moving machine parts which 

may be contacted and subsequently lead to an injury (Tr. 

292-293) . 

Mr. Fulghum stated that the equipment guards require fabrication and repairs at the shop facility, and once the plant was 

locked out and shutdown for regular scheduled maintenance, the 

guards were "removed and improved upon." He stated that he 

explained this to Inspector Torres and that he responded "if it's 

not there, regardless, it's a citation" (Tr. 294). 

Mr. Fulghum was of the opinion that the cited guards could 

be removed, and that pursuant to section 56.14006, guards are 

required to be in place while the equipment is running, unless 

they are removed to test the equipment. He also pointed out that 

in order to stay in compliance with section 56.14007, which 

requires that guards be substantially constructed and maintained, 

the most common and expeditious manner of doing this is to remove 

them during the shutdown procedure (Tr. 294-295). Mr. Fulghum 

further pointed out that the respondent complied with section 

56.14029, and that at the time Mr. Torres observed that the 

guards were missing from the equipment, the power was off and no 

moving machine parts existed since the equipment was not in fact 

moving (Tr. 296). 

1372 
Mr. Fulghum confirmed that the respondent had an established 

equipment lock-out and tag-out procedure in effect at the time 

the citations were issued, and that pursuant to the contractual 

stipulations with the Corps of Engineers, it has submitted Job 

Hazard Analysis reports for the rock, terciary, and test plants 

(Tr. 296-298) . 

Mr. Fulghum confirmed that there is a scheduled time period 

for equipment maintenance, and that at the time of the inspection 

by Mr. Torres, the plant was not in operation and was down for 

maintenance. He confirmed that the production shift began at 

11:30 a.m., and that when Mr. Torres was there at 8:00 to 

8:30 a.m., everything was shutdown, and it had been shutdown 

since 4:00 a.m. (Tr. 299-300). 

Mr. Fulghum stated that the missing guards were in the shop 

for repairs at the time Mr. Torres inspected the plant, and that 

the shift superintendent informed him that they were replaced at 

11:30 a.m. He was also informed that they were removed that same 

morning and reinstalled, and that Mr. Tabor explained this to 

Inspector Torres during the closing conference (Tr. 300-302). 

Mr. Fulghum stated that if Mr. Torres had returned at 11:00 a.m., 

when the plant was in production, he would have seen that the 

guards were replaced (Tr. 305). 

Witq regard to the walkway Citation No. 2859000, Mr. Fulghum 

stated that Mr. Tabor informed him during the closing conference 

that the three individuals exposed to the hazard were employees 

of MES Services, and not rock plant or terciary plant employees. 

Mr. Fulghum confirmed that he was not present when the citation 

was issued and that the cited walkway or platform was part of the 

Number 3 feeder which is part of the respondent's plant (Tr. 

306). Mr. Fulghum did not deny that persons were on the walkway 

or platform, nor did he deny that it was unguarded (Tr. 308). 

With regard to Citation No. 2859002, concerning the lack of 

handrail's on the No. 6 feeder platform, Mr. Fulghum did not deny 

that it lacked handrails, and he pointed out that the area was 

not used on a regular basis. He also pointed out that a gate 

which had been provided at the cited location was removed because 

the material would not pass through the plant as quickly as 

required and that he removed the gate and separated it, and could 

not find it (Tr. 311). 

With regard to the broken conveyor emergency stop cord 

Citation No. 2859004, Mr. Fulghum conceded that the cord was 

broken, but he pointed out that the plant was locked down and 

that in the course of routine maintenance someone would have 

found the condition and repaired the cord before production was 

started. Mr. Fulghum stated that Mr. Tabor informed him that he 

1373 
knew about the broken cord and that it was repaired before production began (Tr. 312). 

With regard to the safety shoes Citation No. 2859007, 

Mr. Fulghum stated that the respondent provides steel protective 

footwear to its employees at no cost, and that adequate supplies 

of "dock stoppers" which slip over the feet to protect them in 

the toe and metatarsal areas are also available for the 

employees. Mr. Fulghum believed that the cited standard does not 

require steel toe caps, and that leather boots are "suitable 

footwear" within the meaning of the standard (Tr. 318). 

Mr. Fulghum conceded that some employees do not always wear 

steel toed boots because they work in the field and are not 

always assigned to the plant, but he reiterated that employees 

are supplied with "dock stoppers" and that the respondent 

subsidizes the purchase of steel toed shoes for its employees 

(Tr. 319) . 

Mr. Fulghum stated that the respondent has a strict and 

aggressive safety and loss control program, and that it complies 

with all MSHA, OSHA, MSCE, NFPA, and Corp of Engineers Safety 

requirements (Tr. 324-325). He also confirmed that the respondent complies with the annual training and retraining requirements of the law (Tr. 327). 

On cross-examination, Mr. Fulghum stated that one of the 

criteria used for the selection of the location of the dam in 

question was the availability of the limestone materials that 

were present in that location (Tr. 331, 335). He confirmed that 

there are several excavation areas at the dam site, and that all 

of the excavated materials that are suitable and meet the dam 

construction criteria are used in the construction of the dam 

(Tr. 340). Some of the excavated materials which may not be 

suitable for the construction of the dam are used in other areas, 

such as access roads, and large boulders and oversized materials 

are stockpiled as riprap (Tr. 343). 

Mr. Fulghum described the materials used for the construction of the dam as "highly altered fibroplastic metal, semimetal, marine metisetal," commonly referred to as limestone, 

siltstone, fractured limestone, and hard and soft dirt and rock. 

He confirmed that all of these materials, with the exception of 

clay core and riprap, is processed in either the primary or 

secondary rock plant. As a general rule, all of the material is 

processed through the primary plant, and he described the nature 

of the process as follows (Tr. 348-350): 

Q. What determines whether something is sent to the 

primary plant as opposed to the secondary plant? 

1374 
A. Everything goes through the primary plant, with the 

exception of the material I've mentioned earlier, that 

we brought in from outside. Everything has to go 

through the rock plant. 

Q. OK. And does it all start at the primary plant or 

is some of it only processed at the secondary plant? 

A. I believe they all go through the primary plant. 

There may be exceptions, but as a general rule they all 

go through the primary plant. 

Q. And in the primary plant, what is the nature of the 

process? 

A. The material is ... , is taken from the designated 

spillway excavation, it's brought down in triple seven, 

hauled in trucks, down hydraulic drove, they reverse 

into a dump station which contains a radio gate and 

grizzler. There is a feed apron, with grizzlies and 

oversized material that's too large to handle is 

crushed at the general crusher. This material then 

goes to a screening court where it's segregated according to size, in different sizes. 

The product of the screening decks are basically 

drove through and some oversized returns to a cone 

crusher, back up to the screening deck to get the right 

proportion of the sizes together to make a dam. It 

then leaves that area and it goes along the product 

belts. Two of the products really have nothing done, 

the rock product, the 20-inch product, it comes ... , 

as soon as it comes off the grizzly and goes through 

the first selection, it's sent out into a dump pile as 

a rock zone. The second is a product called transition 

and that's just everything else in between. But it is 

screened and it is crushed. But not to the specifications of a normal aggregate. 

Q. Not to what? 

A. The specifications of a normal aggregate. 

Q. OK. 

A. In fact, you couldn't sell this aggregate to anybody as an aggregate or in its current form. 

Q. And after these materials come out of the primary 

plant, is there any further processing or are they 

eventually used . . 

1375 
A. No, sir, those are in place materials. 

Q. So they . . . , they come out . 

A. Well, they do have another process which affects 

the size, it's anticipatory in the design engineer's 

mind that one of the criteria is not only the particular size, but they have to have a pack, in other words, 

we take big rollers to make sure that they meet maximum 

density and there is an anticipated further crushing 

action by these large rollers that roll back that is 

also taken in the design criteria. So that would be 

the last of the process, it's when it's rolled in place 

on the embankment. But other than that, as far as 

going through the plant, those two products, transition 

and rock, come right off the plant. And the stockpiles, these stockpiles you see around the photographs 

are that rock. 

Q. OK and what is the end product used for? 

A. The end product is used for embankment material on 

the dam. 

Mr. Fulghum described the process which takes place at the 

secondary crusher or rock plant as follows (Tr. 350-352): 

Q. In terms of the secondary crusher or rock plant, 

what process is performed there? 

A. That takes material either out of the transition 

stockpile and as I said in the past, well, it would be 

the same process. We had to reset our entire plant. 

Well, let's ... , let me take it one step at a time. 

Let us assume that it comes from the excavations that 

are required on the project, that material will be 

taken out of the transition stockpile. It would go 

into a feed hopper with the primary feed. Then it goes 

through a screen deck, a wet screen deck. And this is 

filtered, it has to be free of all dirt. 

It goes through the screen deck and the product 

comes out and it goes through I believe two giratory 

crushers there. We also have a large hydrocone there. 

These break it down into particle sizes and the proportions of the particles we need to make in the filter 

blanket. They then go up into a replane, to a second 

screen deck which, most of this. ., this is not the 

original plant, but as the plant is being modified in 

its current state, to match the material, we now have 

the screen deck with the second screen plane that goes 

out. 

1376 
Currently and I doubt if it's completed today, we 

also have the third process in which to break it down 

into size and where we're going to use a hammerlock, an 

impact, an impact crusher is what you call it. That 

product is either refined or coarse. The coarse goes 

to the coarse filter, the fine goes to the fine filter. 

Q. And in terms of the product that is processed in 

the secondary plant, what is that useq for? 

A. That is the product, sir, that is the filter. 

Q. For the filter? 

A. Yes, sir. 

Q. What is a filter? 

A. In order for a dam to maintain a stability, it has 

to have someway for the water to relieve itself without 

becoming a massive herd as I mentioned earlier in the 

morning. * * * We put the clay down and the filter 

lays against the clay in order that we don't get a 

massive saturation in which the rock fill dam cannot 

drain as quick as the water level comes down and that's 

the function of the filer, sir. 

Mr. Fulghum confirmed that the respondent purchased limestone aggregate from outside sources, and that it was processed 

through the filer plant. He also confirmed that aggregate, sand, 

and cement was purchased and used to batch or make concrete in 

the batch plant (Tr. 353-355). The only outside purchased material processed in the primary or secondary plant was the 3-inch 

minus product used in a pilot test program processed for the 

Corps of Engineers (Tr. 356). 

Mr. Fulghum confirmed that the prior OSHA inspection's 

resulted from employee complaints and two fatalities which 

occurred at the dam embankment, and he had no knowledge as to 

whether or not OSHA inspected the project as part of any general 

inspection (Tr. 358-360). 

Mr. Fulghum confirmed that all of the equipment used in the 

rock plant facilities originated from sources outside of 

Puerto Rico, and that it was brought in from the Warm Springs Dam 

located near San Luis, California (Tr. 361). 

Mr. Fulghum stated that he was not present at the project on 

August 31, 1987, during the first inspection conducted by 

Mr. Torres (Tr. 362). He was present late in the evening of 

September 1, 1987, but had no direct knowledge of any statements 

1377 
that Mr. Tabor may have made to Mr. Torres with respect to his 

inspection (Tr. 363). He also confirmed that he had no personal 

knowledge concerning the missing guards cited on August 31 or 

September 1, and that records concerning guards removed for 

maintenance are not made because "we do it every day." He 

assumed that the plant or lead foreman would have knowledge of 

those matters (Tr. 370). 

Mr. Fulghum confirmed that he had no personal knowledge that 

the guards which were removed and not in place on September 1, 

were replaced before the plant went into production at 

11:00 a.m., or 11:30 a.m., and that his knowledge of this was 

based on what he was told by Mr. Tabor and Mr. Johansson (Tr. 

374-375). However, Mr. Fulghum stated that he saw the guards in 

place later in the evening at approximately 5:00 p.m. when the 

plant was in operation (Tr. 376). 

Mr. Fulghum stated that the employees cited for not wearing 

suitable protective footwear were engaged in shovelling and 

cleaning up under the plant screen tower, and that the only type 

of "sneaker" that an employee may wear is one that has steel 

shank inserts (Tr. 376, 380). 

Mr. Fulghum stated that the rock plants are mobile, and he 

described their locations at this project site by reference to 

certain photographs (Tr. 394-396). 

Inspector Torres was recalled as the court's witness, and he 

denied that Mr. Tabor ever informed him on August 31 or 

September 1, 1987, that the cited guards had been removed from 

the equipment to be repaired. He also stated that with respect 

to two of the guarding citations, Mr. Tabor informed him that the 

guards had been on the equipment but were removed, but that he 

did not offer any reason for their removal (Tr. 399-400). 

Mr. Torres confirmed that even if Mr. Tabor had informed him 

that the equipment was locked out and the guards removed for 

maintenance, he would still have issued the citations because 

there would have been insufficient time to replace all of the 

cited guards before the plant went into production (Tr. 400-401). 

With regard to the safety shoe citation, Mr. Torres confirmed that he simply observed one employee wearing ordinary 

tennis shoes and did not speak to him or examine the shoes. 

Mr. Torres confirmed that the employee was cleaning material from 

under the screening station and he was concerned that 4 or 5 inch 

rock materials would fall from the upper levels of the plant, and 

if he were a maintenance employee, a heavy tool could fall on his 

foot. Mr. Torres also confirmed that the cleaning took place 

while the equipment was shutdown (Tr. 401-403). 

1378 
Mr. Torres confirmed that according to his interpretation of 

the safety shoe standard, all employees working in the plant need 

to wear safety shoes, and that according to his inspector's 

manual, safety shoes are considered to be hard-toe shoes. 

Mr. Torres stated that if anyone had informed him that the 

guards had been replaced prior to leaving the plant site at 

2:00 p.m., on September 1, he would have gone back and checked 

them and terminated the citations. He stated further that the 

replacement of the guards was only mentioned during the close-out 

conference (Tr. 407). He also confirmed that Mr. Fulghum never 

informed him that the guards had been removed for maintenance or 

repairs, but that Mr. Tabor informed him that this was the case 

at the end of the close-out conference (Tr. 412-413). 

An MSHA Mine Identification Form filed by the respondent's 

project manager Lars Johansson on February 19, 1986, contains the 

following information (Exhibit ALJ-2): 

1. The assigned MSHA Mine ID for the respondent's 

Cerrillos Dam Project is shown as 54-00289, and the 

facility is identified as a "Rock Quarry-Surface." 

2. The mine location address is shown as 

Dillingham Construction, Inc., P.O. Box 7430, Ponce, 

Puerto Rico 00732. 

3. The respondent's corporate name is shown as 

Dillingham Construction International, Inc., a State of 

Nevada Corporation. 

4. The corporation identified in item #3 above is 

identified as a subsidiary of Dillingham Construction 

Corporation, 7100 Johnson Drive, Pleasaton, California 

94565, the parent corporation. 

A copy of an MSHA computerized "Mine Inspection and 

Violation History" for the period January, 1986 through October, 

1987, reflects the following information: 

1. The Cerrillos Dam Project is identified as a 

"Sand & Grav" operation employing 36 individuals. 

2. Two "regular" MSHA inspections were conducted 

at the facility during the periods August 31 to 

September 2, 1987, and February 9, 1987 to February 10, 

1987. 

One MSHA compliance (CFI) inspection was conducted 

on June 29, 1987. 

1379 
One MSHA "Compliance Assistance visit" (CAV) 

inspection was conducted during the period November 3 

to November 4, 1986. 

3. During the period November 3, 1986, through 

September 1, 1987, the respondent was issued a total of 

52 citations for alleged violations of various mandatory safety and health standards found in Part 56, 

Title 30, Code of Federal Regulations. 

Twenty-eight (28) of the total violations noted 

were issued during a CAV inspection conducted on 

November 3 and 4, 1986. 

Fifteen (15) of the total violations noted were 

issued during a regular inspection conducted on 

February 9 and 10, 1987. 

Nine (9) of the total violations noted were issued 

during a regular inspection conducted on September 1, 

1987, and they are the contested citations in issue in 

the instant proceedings. 

Findings and Conclusions 

The Jurisdictional Question 

Section 4 of the 1977 Mine Act, 30 u.s.c. § 803, provides 

that "Each coal or other mine, the products of which enter 

commerce, or the operations or products of which affect commerce 

... shall be subject to the provisions of this Act." 

Section 3(h) (1) of the Act, 30 u.s.c. § 802(h) (1) (c), 

defines "coal or other mine" in pertinent part as "an area of 

land from which minerals are extracted ... and lands, excavations, . . . facilities, equipment, machines, . used in, or 

to be used in, the milling of such minerals .... " 

The definition of "coal or other mine" is further clarified 

by the Legislative History of the Act. The Senate Report 

No. 95-181 (May 16, 1977) provides that: 

Finally, the structures on the surface to be used in or 

resulting from the preparation of the extracted 

minerals are included in the definition of "mine." 

... [B]ut it is the Committee's intention that what 

is considered to be a mine and to be regulated under 

the Act be given the broadest possibly (sic) interpretation, and it is the intent of this Committee that 

doubts be resolved in favor of inclusion of a facility 

within the coverage of the Act. 

1380 
S. Rep, No. 181·, 95th Cong., 1st Sess. 602, reprinted in [1977] 

U.S. CODE CONG. 7 ADMIN. NEWS 3401, 3414. 

MSHA's Part 56 mandatory safety and health standards for 

surface metal or nonmetal mines, define the term "Mill" as 

including, inter alia, "any crushing, grinding, or screening 

plant used at, and in connection with, an excavation or mine." 

The term "mill" is defined by the Dictionary of Mining, 

Mineral, and Related Terms, U.S. Department of the Interior, 

1968, in pertinent part as follows at page 706: 

[T]he whole mineral treatment plant in which crushing, 

wet grinding, and further treatment of the ore is 

conducted. 

In mineral processing, one machine, or a group, 

used in comminution. This older limitation of the term 

has today been broadened to cover the whole mineral 

treatment plant in which crushing, wet grinding, and 

further treatment of the ore is conducted. By common 

usage, any establishment for reducing ores by other 

means than smelting. More strictly, a place or a 

machine. in which ore or rock is crushed. 

The term "milling" is defined in part at page 707 as "The 

grinding or crushing of ore. The term may include the operation 

of removing valueless or harmful constituents and preparation for 

market." 

The thrust of the respondent's jurisdictional argument, as 

expressed through the testimony of its Project Safety Engineer, 

Gerald Fulghum, is that it "excavates" limestone and siltstone 

materials and does not engage in an "extraction" of these materials, or in any activities associated with the extraction of 

such materials. The respondent further relies on Mr. Fulghum's 

assertion that the term "milling" involves the separation of a 

valuable ore from undesirable contaminants, and that since the 

respondent performs no such separation, it cannot be considered 

to be engaged in a milling operation. In support of his 

arguments, Mr. Fulghum relies on an MSHA/OSHA Interagency 

Agreement, published in the Federal Register on April 17, 1979, 

44 Fed. Reg. 22827-22830 (Exhibit ALJ-1), and in particular, the 

definitions of "Mining and Milling" found in Appendix A to the 

agreement, at page 22828, which defines these terms as follows: 

Mining has been defined as the science, technique, 

and business of mineral discovery and exploitation. It 

entails such work as directed to the severence of 

minerals from the natural deposits by methods of underground excavations, opencast work, quarrying, 

hydraulicking and alluvial dredging. Minerals so 

1381 
excavated usually require upgrading processes to effect 

a separation of the valuable minerals from the gangue 

constituents of the material mined. This latter 

process is usually termed "milling" and is made up of 

numerous procedures which are accomplished with and 

through many types of equipment and techniques. 

Milling is the art of treating the crude crust of 

the earth to produce therefrom the primary consumer 

derivatives. The essential operation in all such 

processes is separation of one or more valuable desired 

constituents of the crude from the undesired contaminants with which it is associated. 

The respondent further argues that its principal business is 

that of dam construction, and that it is not engaged in the 

normal business of mining as a means of selling any of its 

excavated materials on the open market. Respondent maintains 

that the processing of any excavated limestone is incidental to 

its dam construction activities, and it suggests that if 

jurisdiction attaches under the Act, the enforcement of its 

activities should lie with OSHA, and not with MSHA. In support 

of this argument, the respondent relies on MSHA Policy Memorandum 

No. 88-2M, dated October 23, 1986, which "clarified" the 

MSHA/OSHA Agreement, and it states in pertinent part as follows 

{Exhibit AIJ-1): 

Recently, several inquiries regarding questions of 

jurisdiction indicate the apparent need to further 

clarify the Interagency Agreement between the Mine 

Safety and Health Administration {MSHA) and 

Occupational Safety and Health Administration {OSHA}. 

Especially of concern are those areas in which a 

mineral is extracted for purposes other than its 

intrinsic value as a commodity. The operations listed 

below delineate some of these types of facilities but 

are not limited to the following: 

* 

(a) key cuts in dam construction (not on 

mining property or used in mining) ; 

* * * * * * 

The question of jurisdiction in these and similar 

types of operations is contingent on the purpose and 

intent for which the facility is being developed. The 

mineral extracted incidental to the primary purpose of 

the activity may be processed and disposed of however 

the operator may choose. At these types of operations, 

MSHA would not have jurisdiction since they would not 

be functioning solely for the purpose of producing a 

mineral. 

1382 
The respondent further relies on an MSHA Program Policy 

Manual provision published on July 1, 1988, Release I-1, 

Volume I, Section 4, page 3, concerning the MSHA/OSHA Agreement, 

which states in pertinent part as follows: 

MSHA and OSHA have entered into an agreement to 

delineate certain areas of inspection responsibility, 

to provide a procedure for determining general jurisdictional questions, and to provide for coordination 

between the two agencies in areas of mutual interest. 

MSHA has jurisdiction over operations whose purpose is 

to extract or to produce a mineral. 

MSHA does not have jurisdiction where a mineral is 

extracted incidental to the primary purpose of the 

activity. Under this circumstance, a mineral may be 

processed and disposed of, and MSHA will not have 

jurisdiction since the company is not functioning for 

the purpose of producing a mineral. Operations not 

functioning for the purpose of producing a mineral 

include, but are not limited to, the following: 

* 

1. Key cuts in dam construction (not on 

mining property or used in mining) ; 

* * * * * * 

The question of jurisdiction in these and similar 

types of operations is contingent on the purpose and 

intent for which the facility is being developed. 

Finally, the respondent asserts that its dam project in 

Ponce, Puerto Rico, is within the jurisdiction of the local 

Puerto Rico Occupational Safety and Health Administration which 

has exercised its mandate for the health and safety oversight of 

the respondent's employees under rules and regulations promulgated by the OSHA Act of 1970, and that neither MSHA or the 

Commission has jurisdiction in these matters. 

In Marshall v. Stoudt's Ferry Preparation Company, 602 F.2d 

589 (3d Cir. 1979), cert. denied, No. 79-614 (January 7, 1980), 

the State of Pennsylvania dredged a river and deposited the 

material into a nearby basin. The operator purchased this material, and through the use of a front-end loader and conveyor 

belts transported the material to its plant where, through a 

sink-and-float process, a low-grade fuel was separated from the 

sand and gravel. The court held that the operator was engaged in 

the preparation of minerals within the jurisdiction of the Mine 

Act, and that the work of preparing minerals is included with the 

Act whether or not extraction is also being performed by the 

operator. The court stated as follows at 602 F.2d 592: 

1383 
Although it may seem incongruous to apply the 

label "mine" to the kind of plant operated by Stoudt's 

Ferry, the statute makes clear that the concept that 

was to be conveyed by the word is much more encompassing than the usual meaning attributed to it--the word 

means what the statute says it means. 

Donovan v. Carolina Stalite Company, 734 F.2d 1547 

(Ct. App. D.C. Cir.), decided May 15, 1984, concerned a slate 

gravel processing facility operated by Stalite adjacent to a 

stone quarry independently owned and operated by another company. 

Approximately 30 percent of the stone quarried at this operation 

was delivered to Stalite by a conveyor system, and Stalite 

"bloated" the slate in a rotary kiln with intense heat, and 

produced a light-weight material called "stalite" which was 

crushed and sized and sold to be used in making concrete masonry 

blocks. Addressing the question as to whether Stalite was 

engaged in mineral milling and preparation, subjecting it to MSHA 

jurisdiction, or whether its operation was "primarily manufacturing in nature," subjecting it to OSHA jurisdiction, a 

Commission Judge found that Stalite was engaged in milling subject to MSHA's jurisdiction. In view of the fact that mineral 

milling and preparation are not specifically covered in the Act, 

the judge relied on three of the specific examples found in 

Appendix A to the interagency agreement - heat expansion, crushing, and sizing--in concluding that Stalite was engaged in milling subject to MSHA's jurisdiction. 

On appeal of the judge's decision, the Commission took a 

narrow view of the term "milling" to include only facilities that 

engage in the "extraction, milling, and preparation of minerals," 

and concluded that Stalite did not engage in mining "in its 

classic sense." Relying on the fact that Stalite did not do the 

actual extraction of the slate and that its only contact with the 

mineral occurred after it had been extracted and crushed at the 

quarry, the Commission considered Stalite's treatment of the 

mineral to be "a manufacturing process" that results in a product, rather than a "milling" process under the Act, and reversed 

the judge's decision. The Commission gave no weight to the 

judge's reliance on the interagency agreement, and ruled that the 

question of MSHA's regulatory authority is to be determined by 

the scope of the Mine Act's coverage, and not by the agreement. 

The court reversed the Commission, and relying on the 

statutory definition of a mine and the legislative history of the 

Act reflecting an intent by Congress that the Act be broadly 

construed, it held that Stalite was subject to the Act. Although 

agreeing that the interagency agreement "suffers from a degree of 

internal inconsistency,'' the court found the examples of milling 

processes detailed in the agreement to be of particular 

relevance, 734, F.2d 1552-1553. The court also took note of the 

1384 
agreement by other circuit courts with its interpretation of the 

Act, and the "sweeping definition" of the definition of a mine 

found in section 3(h) of the Act. Marshall v. Stoudt's Ferry 

Preparation Co., supra; Cyprus Industrial Minerals Co. v. FMSHRC, 

664 F.2d 1116 (9th Cir. 1981); Harman Mining Corp. v. FMSHRC, 

671 F.2d 794 (4th Cir. 1981). 

Erie Blacktop, Inc., 3 FMSHRC 135 (January 1981), concerned 

an operator who was engaged in a road paving and blacktopping 

operation which was not subject to MSHA's enforcement jurisdiction. However, the operator simultaneously utilized front-end 

loaders, a secondary crusher, and other equipment while engaged 

in a limestone mining operation which mined, crushed, and 

processed limestone, some of which was sold to and used by the 

Corps of Engineers for certain lake erosion projects, as well as 

for road and paving projects. I found that the respondent's 

limestone operation constituted a mining operation subject to the 

Act, as well as to MSHA's enforcement jurisdiction and the mandatory safety and health standards found in Part 56 of Title 30, 

Code of Federal Regulations. 

San Juan Cement Company, Inc., 2 FMSHRC 2602 (September 

1980), concerned an open pit limestone quarry which extracted 

limestone for use in the production of cement. The limestone was 

crushed to produce a finely ground power used in the finished 

product,. and the judge held that this was a crushed stone operation subject to the requirements of Part 56 of Title 30, Code of 

Federal Regulations. 

Nevada Mineral Processing, Docket No. WEST 88-273-M, decided 

by Judge Lasher on May 24, 1989, concerned a small gold and 

silver milling operation which did not extract the minerals, but 

did process and assay them using conveyors, a crusher, and a 

pulverizer. Judge Lasher concluded that the facilities and 

equipment were used in the work or milling or preparing the 

minerals, and that the operation clearly fell within the definition of a mine found in section 3(h) (1) of the Act, and was 

subject to the standards found in 30 C.F.R., Part 56. 

In National Cement Company, Inc., 3 FMSHRC 1951 (August 

1981), I rejected an operator's contentions that it was not 

operating a "mine" within the meaning of the Act, or conducting a 

"milling operation" within MSHA's jurisdiction. The plant in 

question was located 7 miles from a quarry where limestone was 

mined and transported by trucks to the plant for screening and 

crushing. Another quarry located closer to the plant supplied 

limestone by means of conveyor belts. I found that the plant 

constituted a mining operation within the statutory definition 

found in section 3(h) (1) of the Act, and I stated as follows at 

3 FMSHRC: 

1385 
It seems clear to me that the statutory definition 

of a mine establishes that it was Congress' intent that 

MSHA regulate any milling activity which is an integral 

part of a mine, since mines fall within the specialized 

jurisdiction of MSHA and since mine employees typically 

operate such facilities. On the facts of this case, it 

also seems amply clear to me that the respondent's 

cement plant, even if it can be classified as a milling 

operation, is still an integral part of its limestone 

mining operation. Without the raw mineral material 

(limestone) respondent could not produce cement. 

Therefore, it seems further clear to me that respondent's operations, whether they be characterized as a 

crushed stone operation or a milling operation, are 

both subject to the Act as well as to MSHA's enforcement jurisdiction, and my conclusions in this regard 

are based on the statutory aforementioned definition of 

the term "mine" as well as the MSHA-OSHA memorandum of 

understanding. 

The facts in the instant proceedings establish that MSHA has 

exercised its enforcement jurisdiction and authority over the 

respondent's rock plants since November, 1986, when it first 

visited the site at the respondent's invitation to conduct a CAV 

consultation visit which resulted in the issuance of non-penalty 

notices of violations. Regular inspections followed which 

resulted in the issuance of several non-compliance violations. 

All of these inspection activities have been limited to the 

respondent's rock plants, and did not include the actual dam 

construction work. 

The local Puerto Rico OSHA (PROSHA) has also conducted 

inspections at the worksite, but apparently only pursuant to 

specific complaints. After the issuance of the contested citations in these proceedings, respondent's safety engineer Fulghum 

asserted that MSHA lacked jurisdiction over the rock plants, and 

a subsequent meeting between MSHA and local PROSHA representatives did not result in any agreement to consolidate jurisdiction 

with one agency. I take note of the fact that although the 

interagency agreement in question provides that where questions 

of jurisdiction cannot be resolved at the local level, they shall 

be.submitted to the National Offices of the agencies and, if 

still unresolved, to the Secretary of Labor, the respondent has 

not sought such advise or rulings from these National Offices, 

and raised the jurisdictional issue after the inspection which 

resulted in the contested citations. 

With regard to the interagency agreement, the respondent has 

obviously seized on the definition of "milling" and has focused 

on that definition to support its argument that it is not engaged 

in a mining activity. However, respondent has conveniently 

1386 
overlooked th~ fact that its limestone rock crushing and processing activities fall precisely within the examples cited in the 

agreement of identical mineral and mining operations which MSHA 

has authority to regulate. The court in the Carolina Stalite 

Company case, supra, found these examples to be of particular 

relevance in finding that Stalite's activities were subject to 

the Act and MSHA's regulatory authority. 

The respondent's narrow view that milling is limited to the 

separation of valuable ore from undesirable contaminants for its 

intrinsic value for sale or use in the general market place is 

rejected. I believe the term milling, as used in the Mine Act, 

has a broader definition which is in keeping with the intent of 

Congress that the Act be broadly construed with respect to any 

regulatory enforcement, and that any jurisdictional doubts be 

resolved in favor of including a facility within the coverage of 

the Act. While it may be true that any typical milling operation 

may involve some separation of the valuable ore from the contaminants, I find no such requirement in the Act or MSHA's 

regulatory standards, and I agree with the petitioner's argument 

that the interagency agreement cannot supercede the language 

found in the Act. 

The respondent's reliance on the language found in the MSHA 

policy manual of July 1, 1988, which states that MSHA has jurisdiction only over operations whose purpose is to extract or to 

produce a mineral, and does not have jurisdiction where a mineral 

is extracted incidental to the primary purpose of the activity is 

rejected. In the first place, such policy memorandums are not 

binding on the Commission and may not supercede the plain jurisdictional language found in the Act, and the controlling case 

precedents. Brock v. Cathedral Bluffs Shale Oil Co., BNA 4 MSHC 

1033 (D.C. Cir. 1986). Further, as correctly pointed out by the 

petitioner, the limestone material extracted by the respondent is 

extracted for its intrinsic value as a commodity, and then 

processed and used in the construction of the dam (Tr. 279, 

brief, at pg. 9). Further, as noted earlier, the dam was located 

at the site in question because of the availability of the limestone, and when the on-site deposits were being depleted, the 

respondent had to look to other sources to continue with the 

project. In short, the availability, extraction, processing, and 

use of the limestone is a critical part of the dam construction 

activity. 

The credible testimony and evidence reflects that the location of the dam site was selected because of the projected availability of calciferous rock, mostly limestone and siltstone, 

which is desirable for producing coarse and fine filter material 

for the dam embankment. The limestone is blasted and/or excavated by a D-9 ripper from the dam spillway area and it is processed at the primary and/or secondary rock plants where it is 

crushed, screened, sized, and stockpiled for use in the dam I 

1387 
construction. The processing includes the sizing of the rock 

materials to meet the rock size and stability criteria established by the Corps of Engineers. While it is true that the 

respondent does not extract any particular mineral from the 

excavated rock, the excavated material which is processed at 

these rock plants is used in some phase of the construction 

project. Limestone materials purchased from nearby quarries are 

bought on-site and are processed at the respondent's filter or 

terciary plant, and they are also used for the project, including 

the production of cement for use in the dam construction. 

Inspector Torres confirmed that he has observed the extraction and processing of limestone at the site, and that this 

included the use of explosives, bulldozers, front-end loaders, 

haulage trucks, grizzles, screens, and primary and secondary 

crushers and conveyor belts. Inspector Perez confirmed that he 

has observed materials being processed at the plant, and that it 

included "washing, classifying, and grinding." 

The respondent agrees that the term "Mill," as defined in 

30 C.F.R. § 56.2, includes the excavation of minerals, including 

limestone, and any crushing, grinding, or screening plant used in 

connection with such excavation, and concedes that its activities 

have these same similarities and characteristics, and fall within 

the definition of "Mill" as stated in section 56.2. The respondent acknowledged that it engaged in excavation work, and operates a screening and crushing plant that fall within this 

definition (Tr. 265-266). It also conceded that the sizing and 

crushing of limestone defines a milling process which is subject 

to MSHA's jurisdiction (Tr. 275). 

In view of the foregoing findings and conclusions, and after 

careful consideration of all the arguments and evidence adduced 

in these proceedings, I agree with the petitioner's position in 

this case, and I conclude and find that the respondent's rock 

processing plants constitute a "mine" within the meaning of 

section 3(h) (1) of the Act, and that its facilities, equipment, 

and machines in these plants are used for mineral milling within 

the meaning of the Act and MSHA's definition of "mill" found in 

30 C.F.R. § 56.2. I further conclude and find that MSHA has 

inspection and enforcement jurisdiction and authority over these 

rock processing activities. The respondent's arguments to the 

contrary ARE REJECTED. 

Interstate Commerce Issue 

Section 4 of the Act provides as follows: 

Each coal or other mine, the products of which 

enter commerce, or the operations or products of which 

affect commerce, and each operator of such mine and 

1388 
every miner in such mine shall be subject to the 

provisions of this Act. 

"Commerce" is defined in section 3(b) of the Act as follows: 

Trade, traffic, commerce, transportation or communication among the several states, or between a place 

in a state and any place outside thereof, or within the 

District of Columbia, or a possession of the United 

States, or between points within the same state but 

through a point outside thereof. 

The use of the phrase "which affects commerce" in Section 4 

of the Act, indicates the intent of Congress to exercise the full 

reach of its constitutional authority under the commerce clause. 

See: Brennan v. OSHA, 492 F.2d 1027 (2nd Cir. 1974); U.S. v. Dye 

Construction Co., 510 F.2d (10th Cir. 1975); Polish National 

Alliance v. NLRB 332 U.S. 643 (1977); Godwin v. OSHRC, F.2d 1013 

(9th Cir. 1976). 

Perez v. United States, 402 U.S. 146 (1971), held that 

Congress may make a finding as to what activity affects 

interstate commerce, and by doing so it obviates the necessity 

for demonstrating jurisdiction under the commerce clause in 

individual cases. Thus, it is not necessary to prove that any 

particular intrastate activity affects commerce if the activity 

is includ~d in a class of activities which Congress intended to 

regulate because that class affects commerce. 

Mining is among those classes of activities which are 

covered by the Commerce Clause of the United States Constitution 

and thus is among those classes which are subject to the broadest 

reaches of Federal regulation because the activities affect 

interstate commerce. Marshall v. Kraynak, 457 F. Supp. 907, 

(W.D. Pa. 1978), aff'd, 604 F.2d 231 (3d Cir. 1979), cert. 

denied, 444 U.S. 1014 (1980). Further, the legislative history 

of the Act, and court decisions, encourage a liberal reading of 

the definition of a mine found in the Act in order to achieve the 

Act's purpose of protecting the safety of miners. Westmoreland 

Coal Company v. Federal Mine Safety and Health Review Commission, 

606 F.2d 417 (4th Cir. 1979). See also: Godwin v. Occupational 

Safety and Health Review commission, 540 F.2d 1012 (9th Cir. 

1976), where the court held that unsafe working conditions of one 

operation, even if in initial and preparatory stages, influences 

all other operations similarly situated, and consequently affect 

interstate commerce. 

The courts have consistently held that mining activities 

which may be conducted intrastate affect commerce sufficiently to 

subject the mines to Federal control. See: Marshall v. Kilgore, 

478 F. Supp. 4 (E.D. Tenn. 1979); Secretary of the Interior v. 

Shingara, 418 F. Supp. 693 (M.D. Pa. 1976); Marshall v. Bosack, 

1389 
463 F. Supp. 800, 801 (E.D. Pa. 1978). Likewise, Commission 

judges have held that intrastate mining activities are covered by 

the Act because they affect interstate commerce. See: Secretary 

of Labor v. Rockite Gravel Company, 2 FMSHRC 3543 (December 

1980); Secretary of Labor v. Klippstein and Pickett, 5 FMSHRC 

1424 (August 1983); Secretary of Labor v. Haviland Brothers Coal 

Company, 3 FMSHRC 1574 (June 1981); Secretary of Labor v. Mellott 

Trucking Company, 10 FMSHRC 409 (March 1988). 

A state highway department operating an intrastate open pit 

limestone mine, the product of which is crushed, broken and used 

to maintain county roads was held to be subject to the Act. Ogle 

County Highway Department, 1 FMSHRC 205 (January 1981). 

A crushed stone mine operation that had an MSHA "Mine ID" 

number and was inspected by MSHA was held to be subject to the 

Act because the sales of rock products, as well as the use of 

equipment manufactured out of state, affected commerce within the 

meaning of the Act's jurisdictional language. Tide Creek Rock 

Products, 4 FMSHRC 2241 (December 1982). See also: Southway 

Construction Co., 6 FMSHRC 174 (January 1984). 

A gravel mine operator conducting activities solely within a 

state was held to be subject to the Act because its local mining 

activity had an impact on interstate market. Rockite Gravel Co., 

2 FMSHRC 2543 (December 1980) , Commission Review Denied 

January 13, 1981; Scoria Products Branch, Ultra, Inc.~ 6 FMSHRC 

788 (March 1984); Southway Construction Co., supra. 

N.Y.S. Department of Transportation, 2 FMSHRC 1749 (July 

1980) ; Island County Highway Department, 2 FMSHRC 3227 (November 

1980); and County of Ouray. Colorado, 9 FMSHRC 1205 (July 1987), 

all held that products affect commerce where they have an 

intrinsic value as a commodity which would have to be purchased 

elsewhere if not produced by the operator. 

In the instant case, Inspector torres confirmed that most of 

the respondent's equipment, such as the Caterpillar haulage 

trucks, and bulldozers, crushers, etc., were shipped to 

Puerto Rico from the states (Tr. 165-166). Mr. Fulghum confirmed 

this and stated that all of the equipment used at the rock plant 

facilities in question originated from sources outside of 

Puerto Rico and was brought in from another dam site located in 

California (Tr. 361). He also confirmed that the respondent's 

parent company, Dillingham Construction International, is a 

Nevada Corporation, that the Cerrillos Dam Project is one conducted by Dillingham Construction, a Delaware Corporation, and 

that Dillingham North America, which has constructed dams in 

California, is a California corporation (Tr. 219-220). Use of 

equipment that has moved in interstate commerce affects commerce. 

See United States v. Dye Construction Co., 510 F.2d 78 (10th Cir. 

1975). In addition, although it may be true that the limestone 

1390 
excavated and processed by the respondent at the dam site was 

used intrastate, given the broad interpretation and coverage of 

the Act as intended by Congress, and as construed by the courts, 

it may reasonably be inferred that such use of the mined product 

would necessarily impact upon interstate commerce. See Fry v. 

United States, 421 U.S. 542, 547 (1975). 

I conclude and find that the respondent's limestone rock 

processing activities and plants, including the facilities, 

equipment, and machines used in the processing of the limestone 

for use in the construction of the dam, which I have concluded 

constitutes a mining operation covered by the Act, affect 

commerce within the meaning of the Act, and that the respondent 

is within its reach. 

Federal Pre-Emption 

The respondent's assertion that since the enforcement of its 

dam construction activities has been delegated to the local 

Puerto Rico OSHA department, MSHA's regulation of these 

activities at the site is improper, is rejected. The same argument has been raised in cases in which Commission judges have 

consistently held that state and federal OSHA statutes do not 

preempt the 1977 Mine Act. See: Brubaker-Mann, Inc., 2 FMSHRC 

227 (January 1980) ; Valley Rock and Sand Corporation, 4 FMSHRC 

113 (January 1982); Black River Sand and Gravel, Inc., 4 FMSHRC 

743 (April 1982); San Juan Cement Company, Inc., 2 FMSHRC 2602 

(September 1980); Sierra Aggregate Co., 9 FMSHRC 426 (March 

1987). I agree with these holdings, and take note of the fact 

that section 506 of the 1977 Mine Act permits concurrent state 

and federal regulation, and that under the federal supremacy 

doctrine, a state statute is void to the extent that it conflicts 

with a valid federal statute. Dixie Lee Ray v. Atlantic 

Richfield Company, 435 U.S. 151, 55 L.Ed.2d 179 (1978); Bradley 

v. Belva Coal Company, 4 FMSHRC 982, 986, (June 1982). 

Fact of Violations 

The respondent is charged with five violations of the equipment guarding requirements of 30 C.F.R. § 56.14001, which 

provides as follows: 

Gears, sprockets; chains; drive, head, tail, and 

takeup pulleys; flywheels; couplings; shafts; sawblades; fan inlets; and similar exposed moving machine 

parts which may be contacted by persons, and which may 

cause injury to persons, shall be guarded. 

In Secretary of Labor v. Thompson Brothers Coal Company, 

Inc., 6 FMSHRC 2094, (September 24, 1984), a case involving the 

guarding requirements of section 77.400(a), a surface mining 

standard containing language identical to section 56.14001, Judge 

1391 
Broderick rejected an operator's contention that it was virtually 

impossible for a person not suicidally inclined to contact the 

unguarded moving parts in question. In affirming the violation, 

Judge Broderick accepted the testimony of the inspector that the 

unguarded parts were accessible and might be contacted by persons 

examining or working on the equipment. In affirming Judge 

Broderick's decision, the Commission interpreted the application 

of the guarding standard as follows at 6 FMSHRC 2097: 

The standard requires the guarding of machine 

parts only when they "may be contacted" and "may cause 

injury." Use of the word "may" in these key phrases 

introduces considerations of the likelihood of the 

contact and injury, and requires us to give meaning to 

the nature of the possibility intended. We find that 

the most logical construction of the standard is that 

it imports the concepts of reasonable possibility of 

contact and injury, including contact stemming from 

inadvertent stumbling or falling, momentary inattention, or ordinary human carelessness. In related 

contexts, we have emphasized that the constructions of 

mandatory safety standards involving miners' behavior 

cannot ignore the vagaries of human conduct. See, 

g.g., Great Western Electric, 5 FMSHRC 840, 842 (May 

1983); Lone Star Industries, Inc., 3 FMSHRC 2526, 2531 

(November 1981). Applying this test requires taking 

into consideration all relevant exposure and injury 

variables, g.g., accessibility of the machine parts, 

work areas, ingress and egress, work duties, and as 

noted the vagaries of human conduct. Under this 

approach, citations for inadequate guarding will be 

resolved on a case-by-basis. 

The reliable and probative unrebutted testimony of the 

inspector establishes that guards were not provided or in place 

on the cited equipment in question. With respect to four of the 

citations, the inspector confirmed that maintenance is only 

performed when the equipment is shutdown, and this obviously 

served as the basis for his non-S&S findings as to those citations. In my view, the fact that the equipment was not in operation at the time of the inspection, or the fact that it is 

shutdown when serviced, may serve to mitigate the gravity or 

seriousness of the violation, but may not serve as an absolute 

defense to the requirement of the standard that the equipment 

components detailed therein be guarded. The intent of the 

standard is that exposed moving machine parts which may be contacted by persons in the normal course of mining activity and in 

the normal course of their work duties in or around such equipment be guarded to prevent contact, either inadvertently, or from 

inattention or carelessness. As stated in the Thompson Brothers 

case, any determination as to whether or not a reasonable 

possibility of contact with unguarded machine parts will occur 

1392 
must be considered in the context of the criteria stated in that 

decision, including the fact that once normal plant production 

operations begin, miners may be exposed to hazards resulting from 

unguarded equipment. 

With regard to the lack of guarding on the feeder motor 

belts, the inspector stated that employees would be in the area 

on a daily basis to clean spillage, and that at least one person 

would be present for inspection once the plant started up. He 

believed that anyone caught in the unguarded motor belts could 

lose a finger or an arm, or suffer disabling injuries. Access 

was provided to the plant third level primary screening station 

where the unguarded equipment was located by means of a 

ladderway. 

With regard to the unguarded conveyor belt counterweight 

pulley, although it was located 20 to 25 feet above ground level, 

the inspector confirmed that it was located next to a walkway and 

that the unguarded area was approximately 8 inches from the 

walkway. He stated that the walkway provided an access way to 

the transfer point behind the pulley, and that employees would 

regularly walk by the unguarded pulley. Given the size of the 

pulley, and his past experience that accidents have occurred by 

employees being caught by an unguarded pulley of this size, he 

believed.that anyone caught in the unguarded pulley in question 

would suffer fatal injuries. 

With respect to the unguarded belt tail pulley at the 

secondary crusher plant, the inspector confirmed that it was 

located approximately 1 foot from the floor level, and while a 

guard had previously been provided, it had been removed and not 

replaced. This pulley was about the same size as the previously 

cited counterweight pulley, and the inspector believed that at 

least one maintenance man would be exposed to the hazard of being 

caught in the unguarded pulley. 

With regard to the unguarded belt tail pulley located in the 

secondary crusher plant at ground level under the cone crusher, 

the inspector stated that he was advised that a guard had been 

provided, but had been removed. He confirmed that employees 

would in the area for clean-up and maintenance work, and would be 

exposed to a hazard. 

The respondent's testimony and evidence does not rebut the 

inspector's findings that at the time of his inspection and 

observation of the equipment, guards were not provided or in 

place on the cited equipment in question. The respondent's 

defense is that no employees were exposed to any hazard because 

the plant was not in operation at the time of the inspection and 

that the equipment was shutdown and locked out for maintenance. 

Mr. Fulghum, the only witness presented by the respondent, was 

1393 
not with the inspector at the time of his inspection and observations, and he maintained that section 56.14001, only applies when 

the equipment is in operation and there are moving parts which 

may be contacted and result in injuries. Mr. Fulghum asserted 

that he was informed by the shift superintendent Ike Tabor, that 

the guards had been removed on the morning of the inspection and 

were in the shop for repairs, and had been replaced by the time 

the plant had started up later that same day. Mr. Fulghum further asserted that Mr. Tabor explained this to the inspector at 

the time of the· close-out conference on the day following the 

inspection. 

Inspector Torres testified that when he left the site no one 

said anything to him about the guards being replaced before the 

plant started operation, and if they had, he would have gone back 

to terminate the citations (Tr. 407). He also confirmed that no 

one called him back to terminate the citations, and that during 

the close-out conference, Mr. Fulghum arrived late at the end of 

the conference, and said nothing to him about the guards being 

removed for repair (Tr. 409-410). Mr. Torres stated that 

Mr. Fulghum advised him that he would take the matter up with his 

supervisor, and that after Mr. Fulghum met privately with 

Mr. Tabor at the end of the conference, Mr. Tabor informed him 

for the first time that the guards had been removed and were in 

the shop for repairs. Mr. Torres believed that it would have 

been impossible to reinstall all of the missing guards prior to 

the time production resumed on the day of his inspection (Tr. 

401) . 

Mr. Tabor was not called to testify in this case, and I find 

Mr. Fulghum's testimony as to what Mr. Tabor purportedly told him 

with respect to the removal and replacement of the guards in 

question to be less than credible. I find Mr. Torres to be a 

credible witness and I believe his version of the events in 

question. 

Mr. Fulghum also defended the violations on the ground that 

section 56.14006, permits the removal of equ'ipment guards when 

the equipment is being tested, and that in order to comply with 

section 56.14007, which requires that guards be of substantial 

construction and properly maintained, the most common way of 

doing this is to remove them during the shutdown procedure. 

These defenses are rejected. I find no credible evidence that 

the equipment in question was being tested at the time of the 

inspection, nor do I find any credible evidence that the guards 

were removed for maintenance or repair. With respect to 

Mr. Fulghum's argument that the respondent was in compliance with 

section 56.14029, because the equipment was shutdown when maintenance was performed, while this may true, I find it irrelevant. 

The respondent is not charged with violations of any of these 

other standards. It is charged with failing to provide guards on 

the cited equipment as required by section 56.14001. 

1394 
I conclude and find that the credible testimony of the 

inspector establishes that the cited unguarded equipment constituted violations within the meaning and intent of section 

56.14001, and that it supports each of the violations. 

Accordingly, the citations ARE AFFIRMED. 

Citation Nd. 285900 - 30 C.F.R. § 56.11002 

The respondent is charged with a violation of section 

56.11002, which provides as follows: 

Crossovers, elevated walkways, elevated ramps, and 

stairways shall be of substantial construction provided 

with handrails, and maintained in good condition. 

Where necessary, toeboards shall be provided. 

The inspector's unrebutted credible testimony establishes 

that the feeder walkway or platform located at the third level of 

the screening plant which was elevated approximately 12 feet from 

the next lower level was not provided with handrails. The 

elevated walkway was constructed and maintained to provide access 

to the number three feeder which was in the process of being 

modified. I conclude and find that the intent of the cited 

standard is to provide handrails at such locations in order to 

provide employees performing work with some means of protection 

against potential falls. 

Respondent's witness Fulghum confirmed that the cited platform or walkway was part of the respondent's plant, and he did 

not deny the absence of handrails. Mr. Fulghum took the position 

that the three employees observed by the inspector on the elevated platform cleaning up and performing maintenance work were 

not employees of the respondent, but were employed by a contractor. Mr. Fulghum had no personal knowledge of this, and simply 

stated that Mr. Tabor told him during the closing conference that 

the employees worked for a contractor. Mr. Tabor did not testify 

in this case, and the inspector testified that Mr. 1~bor confirmed to him that the employees worked for the respondent. 

The respondent's defense is rejected. I accept the inspector's testimony as credible, and find that the three employees 

who were working on the platform in the respondent's plant and 

which was used to access the feeder owned by the reipondent were 

exposed to a hazard of falling, and that the respondent is properly accountable for the violation. I conclude and find that the 

failure by the respondent to provide the required handrails 

constitutes a violation of section 56.11002, and the citation IS 

AFFIRMED. 

1395 
Citation No. 2859002 - 30 C.F.R. § 56.11002 

The respondent is also charged with a second violation of 

section 56.11002, for failure to provide handrails on the No. 6 

feeder platform located at the second level of the secondary 

crusher plant. The inspector's credible testimony establishes 

that the platform was located approximately 10 feet above the 

second level floor and that it was used to provide maintenance 

for the shakers located on the platform. The inspector's 

unrebutted testimony also establishes that no handrails were 

provided, and Mr. Fulghum did not deny the absence of the handrails. Under the circumstances, I conclude and find that a 

violation has been established, and the citation IS AFFIRMED. 

Citation No. 2859004 - 30 C.F.R. § 56.9007 

The respondent is charged with a violation of section 

56.9007, which provides that "Unguarded conveyors with walkways 

shall be equipped with emergency stop devices or cords along 

their full length." The inspector's unrebutted testimony establishes that the cited No. 8 belt conveyor located in the 

secondary plant had an adjacent walkway which was parallel to the 

belt, and that the belt and walkway were inclined. The inspector 

confirmed that the walkway was regularly used by employees as a 

means of access from ground level to the crusher, and that the 

emergency stop cord, which was approximately 100 feet long, was 

broken in the middle and lying on the walkway. 

Mr. Fulghum conceded that the stop cord in question was . 

broken, and his defense is that the plant was shutdown and locked 

out, and that in the course of routine maintenance, someone would 

have found the broken cord and repaired it before production 

began. He confirmed that Mr. Tabor informed him that he was 

aware of the broken cord, and that it was repaired before production began. This defense is rejected. I conclude and find that 

a violation has been established, and the citation IS AFFIRMED. 

Citation No. 2859007 - 30 C.F.R. § 56.15003 

The respondent is charged with a violation of section 

56.15003, which states that "All persons shall wear suitable 

protective footwear when in or around an area of a mine or plant 

where a hazard exists which may cause an injury to the feet." 

The inspector's belief that the standard requires employees to 

wear "steel-toed safety shoes" is incorrect. The standard only 

requires the wearing of "suitable protective footwear" without 

further elaboration. What may be suitable in one instance may 

not be suitable in another, and each situation must be addressed 

on a case-by-case basis. 

In this case, Mr. Fulghum's credible testimony establishes 

that the respondent supplies steel protective footwear for its 

1396 
employees, and he believed that leather boots are "suitable 

footwear" within the meaning of the standard~ While this may be 

true, the credible testimony of the inspector reflects that one 

of the individuals who he observed cleaning up under the plant 

screening station was wearing ordinary tennis shoes of the 

"basketball variety." The inspector believed that this employee 

was exposed to a hazard of being struck on the foot by large 

rocks falling from the belt or from some of the upper levels of 

the plant. with regard to the other individuals, the inspector 

could offer no credible testimony or evidence as to the kinds of 

shoes they were wearing, and he did not speak to any of these 

individuals, nor did he inspect their footwear. Under the circumstances, I conclude and find that the one individual who was 

wearing tennis shoes did not comply with the cited standard in 

that ordinary tennis shoes are not "suitable" within the meaning 

and intent of the standard, and to this extent, a violation has 

been established. With respect to the other individuals, I 

conclude and find that there is insufficient evidence to estab1 ish any violation on their part. Under the circumstances, with 

respect to the employee who was wearing tennis shoes, the citation is limited to that one individual, and it 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 safety-contributed to by the 

violation; (3) a reasonable likelihood that the hazard 

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

reasonable likelihood that the injury in question will 

be of a reasonably serious nature. 

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

1129, the Commission stated further as follows: 

1397 
We have explained further that the third element 

of the Mathies formula "requires that the Secretary 

establish a reasonable likelihood that the hazard 

contributed to will result in an event in which there 

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

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

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

is the contribution of a violation to the cause and 

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

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

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

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

surrounding the violation, including the nature of the mine 

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

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

(December 1987) . 

Citation No. 285900, 30 C.F.R. § 56.11002 

Based on the credible testimony of the inspector, I conclude 

and find that the violation concerning the lack of handrails on 

the walkway around the No. 3 feeder located on the third level of 

the screening station tower was significant and substantial. 

Three employees were observed performing clean-up and maintenance 

work on the walkway which was elevated some 12 feet above the 

next lower level. In the event of a fall, I conclude and find 

that the employees would likely suffer injuries of a reasonable 

serious nature. Under the circumstances, the inspector's S&S 

finding IS AFFIRMED. 

Citation No. 2859001, 30 C.F.R. § 56.14001 

With regard to the violation concerning the unguarded No. 5 

conveyor belt counterweight pulley, I agree with the inspector's 

S&S finding. The evidence establishes that the guard usually 

provided for this large pulley had been removed and that the 

unguarded pulley area was approximately 8 inches from the edge of 

the adjacent walkway which was regularly used by employees as an 

access way to the transfer point behind the pulley. I conclude 

and find that in the event of a stumble or other inadvertent 

contact with the exposed and unguarded pulley while the belt was 

in operation, one would likely sustain injuries of a reasonably 

serious nature. Accordingly, the inspector's S&S finding IS 

AFFIRMED. 

1398 
Citation No. 2859004, 30 C.F.R. § 56.9007 

With regard to the violation concerning the broken conveyor 

belt emergency stop-cord, the inspector confirmed that the belt, 

which was used to convey stone materials from the ground level up 

the inclined belt to the stone crusher, was running at the time 

of his inspection. Although the inspector observed no one on the 

walkway adjacent to the belt at the time of his inspection, he 

confirmed that the walkway was used on a regular basis by 

employees who would walk along the walkway from ground level up 

to the cone crushers at the top level, and in the event someone 

were to fall into the moving conveyor, the inspector believed 

that he would likely suffer injuries and the belt could not be 

stopped because the emergency stop cord was broken. However, 

there is no evidence or testimony from the inspector from which 

one can conclude that it was reasonably likely that someone 

walking along the walkway adjacent to the belt would fall into or 

onto the moving conveyor belt. There is no evidence that 

employees ride the belt, nor is there any evidence with respect 

to whether the belt was elevated above the walkway, or whether it 

was recessed below the walkway in such a manner as to allow 

someone to readily fall into it. In short, I find no credible 

evidentiary support for the inspector's belief that someone 

simply walking along the walkway would likely fall into or onto 

the belt, or be exposed to any hazard from the materials on the 

belt. Under the circumstances, I cannot conclude that the evidence advanced by the petitioner in this instance supports the 

inspector's S&S finding. Accordingly, his finding IS VACATED, 

and the citation is modified to a non-S&S citation. 

Citation No. 2859007, 30 C.F.R. § 56.15003 

With regard to the violation concerning the employee who was 

wearing tennis shoes, the inspector conceded that he was wearing 

a hard hat, that the equipment was shutdown while the individual 

was cleaning up around it, and that cleaning and maintenance work 

is only performed when the equipment is shutdown. Although the 

inspector believed that someone could sustain a foot injury by 

rock falling off the conveyor belt (Tr. 95), I have difficulty 

comprehending how this would occur if the conveyors are shutdown 

while clean-up is being performed. Further, although the inspector also believed that an injury could occur if a heavy tool or 

equipment fell on someone's foot, there is no evidence that the 

employee wearing tennis shoes used any such tools or handled any 

heavy equipment which would likely fall and strike him on the 

feet. As for the inspector's belief that the employee could have 

been struck from a rock falling from an unspecified location 

above where he was working, I find his testimony to be speculative at best, and lacking in credible and probative value. Under 

the circumstances, I cannot conclude that the evidence advanced 

1399 
by the petitioner supports the inspector's S&S finding. Accordingly, IT IS VACATED, and the citation is modified to a non-S&S 

citation. 

Size of Business and Effect of Civil Penalty Assessments on the 

Respondent's Ability to Continue in Business 

The evidence establishes that approximately 32 to 36 

employees out of a total employment compliment of 332 employees 

working in the dam project in question were engaged in the 

respondent's limestone processing operations (Tr. 148, 156). 

While there is no direct evidence as to the amount of limestone 

materials actually processed by the respondent, the information 

which appears in MSHA's proposed civil penalty assessments pleadings with respect to the respondent's size reflects an annual 

production tonnage or manhours worked as 102,559, and the parties 

stipulated that this was the case. I conclude and find that the 

respondent is a small operator. I also conclude and find that 

the civil penalty assessments for the violations which have been 

affirmed will not adversely affect the respondent's ability to 

continue in business. 

History of Prior Violations 

The parties stipulated that the respondent's history of 

prior assessed violations consists of ten (10) civil penalty 

assessments made by MSHA in 1987. I cannot conclude that the 

respondent's history of prior violations is such as to warrant 

any additional increases in the civil penalty assessments which I 

have made for the violations in question in these proceedings. 

Good Faith Compliance 

The record establishes that on February 5, 1988, MSHA 

extended all of the abatement times until May 1, 1988, because 

the respondent's plant facilities were non-operational due to an 

expansion. All of the citations which are the subject of Docket 

No. SE 88-59-M, were terminated on April 21, 1988, and the citation in issue in Docket No. SE 89-23-M, was terminated on 

September 7, 1988. All of the terminations were based on the 

fact that the respondent corrected the cited conditions, and 

Inspector Perez confirmed that all of the citations were terminated on schedule (Tr. 181). Further, the parties agreed that 

all of the citations were timely abated in good faith by the 

respondent. Under the circumstances, I conclude and find that 

the respondent timely abated all of the violations in good faith. 

Negligence 

The inspector's moderate negligence findings as to each of 

the violations ARE AFFIRMED, and I conclude and find that all of 

1400 
the violations resulted from the failure by the respondent to 

exercise reasonable care. 

Gravity 

On the basis of the inspector's testimony and findings with 

respect to each of the violations, including my findings and 

modifications with respect to the inspector's S&S findings, I 

conclude and find that Citation Nos. 2859000 and 2859001 are 

serious, and that the remaining citations are non-serious. 

Civil Penalty Assessments 

On the basis of the foregoing findings and conclusions, and 

taking into account the requirements of section llO(i) of the 

Act, I conclude and find that the following civil penalty assessments for the violations which have been affirmed are reasonable 

and appropriate in the circumstances of these proceedings: 

Docket No. SE 88-59-M 

Citation No. Date 

2858999 09/01/87 

2859000 09/01/87 

2859001 09/01/87 

2859002 09/01/87 

28590'03 09/01/87 

2859004 09/01/87 

2859005 09/01/87 

2859006 09/01/87 

Docket No. SE 89-23-M 

Citation No. Date 

2859007 09/01/87 

30 C.F.R. Section 

56.14001 

56.11002 

56.14001 

56.11002 

56.14001 

56.9007 

56.14001 

56.14001 

30 C.F.R. Section 

56.15003 

ORDER 

Assessment 

$ 20 

$350 

$250 

$ 20 

$ 20 

$ 20 

$ 20 

$ 20 

Assessment 

$ 20 

The respondent IS ORDERED to pay civil penalty assessments 

in the amounts shown above within thirty (30) days of the date of 

these decisions, and upon receipt of payment by the petitioner, 

these proceedings are dismissed. 

1401 
Distribution: 

William G. Staton, Esq., Office of the Solicitor, U.S. Department 

of Labor, 201 Varick Street, Room 707, New York, NY 10014 

(Certified Mail) 

Anibal Irizarry, Esq., McConnell, Valdes, Kelley Sifre, Griggs & 

Ruiz-suria, G.P.O. Box 4225, San Juan, PR 00936 (Certified Mail) 

/fb 

1402 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

::-~ ·.~ ~. c~ . •. ,.. ·i ....... 

SECRETARY OF LABOR~ CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

Docket No. WEVA 88-136 

A.C. No. 46-05682-03502 

v. 

Ward Mine 

TEN-A-COAL COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION 

Anita D. Eve, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania, for the Petitioner; 

Patrick H. Cunningham, Partner, Ten-A-Coal 

Company, Clarksburg, West Virginia, pro se, for 

the Respondent. 

Judge Koutras 

Statement of the Case 

This is a civil penalty proceeding initiated by the petitioner against the respondent pursuant to section llO(a) of the 

Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 820(a), 

seeking civil assessments in the amount of $504 for three alleged 

violations of certain mandatory safety standards found in 

Part 77, Title 30, Code of Federal Regulations. The respondent 

filed an answer denying the alleged violations, and a hearing was 

held in Clarksburg, West Virginia. The petitioner filed a 

posthearing brief, but the respondent did not. I have considered 

the petitioner's arguments, as well as the oral arguments made on 

the record by the parties during the hearing in my adjudication 

of this case. 

Issues 

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

respondent has violated the provisions of the Act and implementing regulations as alleged in the proposals for assessment of 

civil penalties and, if so, (2) the appropriate civil penalty 

that should be assessed against the respondent for the alleged 

violation based upon the criteria set forth in section llO(a) of 

the Act. Additional issues include the question of whether the 

violations are "significant and substantial," and the effect of 

1403 
any assessed civil penalties on the respondent's ability to 

continue in business. 

Applicable Statutory and Regulatory Provisions 

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

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

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

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

Stipulations 

The parties stipulated to the following (Tr. 5-7): 

1. The respondent is the owner and operator of 

the Ward Mine, a strip mine located in Clarksburg, 

West Virginia. 

2. The respondent and the mine are subject to the 

jurisdiction of the Act, and the presiding Judge has 

jurisdiction to hear and decide this matter. 

3. The contested citations were properly served 

on the respondent by Frank J. Cervo, a duly authorized 

representative of the Secretary of Labor. 

4. The respondent is a small operator, and its 

annual company coal production for the year 1988 was 

90,569 tons. The Ward Mine had an annual production of 

37,544, for this same time period. 

5. The respondent's history of prior violations 

consists of two violations issued during four inspection days during the 24-months prior to the date of the 

issuance of the contested citations. 

Discussion 

All of the citations in this case are section 104(a) "S&S" 

citations issued by MSHA Inspector Frank J. Cervo during the 

course of an inspection conducted on November 16, 1987, and they 

are as follows: 

Citation No. 2944563, cites a violation of 30 C.F.R. 

§ 77.410, and the condition or practice states as follows: 

The audible warning device provided for the 

Fiat-Allis dozer in service was inoperative in that 

when put in reverse the device would not give an alarm. 

1404 
Citation No. 2944565 cites a violation of 30 C.F.R. 

§ 77.410, and the condition or practice states as follows: 

The audible warning device provided for the 400 

payloader in service was inoperative, when the 

payloader was put in reverse the device would not given 

an alarm. 

citation No. 2944564, cites a violation of 30 C.F.R. 

§ 77.1605(a), and the condition or practice is described as 

follows: 

The windshield provided for the Fiat-Allis 

31 Dozer in service was cracked at several locations. 

Petitioner's Testimony and Evidence 

MSHA Inspector Frank J. Cervo, testified as to his background and experience, and he confirmed that he issued Citation 

No. 2944563 (exhibit P-1), after determining that a bulldozer 

which was pushing spoil, or dirt, against a bank so that the coal 

could be removed, and the dirt replaced, had an audible warning 

device which was inoperative. Although the device was on the 

equipment, it did not work. He was informed that it was working 

when it was checked several hours prior to his inspection (Tr. 

7-10). 

Mr. Cervo stated that the mine is located between two public 

and busy highways, and the equipment was operating approximately 

400 feet from the road. He estimated that the bulldozer had to 

travel approximately 200 feet while pushing the spoil material, 

and other than the three pieces of equipment which were operating 

in close proximity to each other, he observed no one on foot in 

the area where the bulldozer was operating. Mr. Cervo stated 

that the visibility to the rear of the bulldozer was very poor 

because it is high, and if someone had ventured on the property 

and walked behind the machine while it was in reverse, it would 

be highly unlikely that the operator would see him. He confirmed 

that the machine would likely operate in first or second gear, 

and he estimated the speed at 3 or 5 miles an hour. The weather 

was ~lear and sunny, and other than the noise from the equipment 

being operated at the same time, there were no other noise 

sources present (Tr. 11-13). 

Mr. Cervo stated that he was concerned that curiosity 

seekers using the public highway, salesmen, or job applicants 

could have come on the mine property without the knowledge of the 

equipment operators. He believed that it was reasonably likely 

that anyone could be in the area at any given time, and that 

given the fact that there have been serious haulage accidents in 

the past at other mines involving people "wandering around" mine 

property, he believed it was reasonably likely that an accident 

1405 
would occur, and that is the reason he considered the violation 

to be significant and substantial. He also believed that one 

individual would be affected by any accident or injury, and 

stated that "S&S is negligence on the part of the operator" 

because the foreman examined the equipment before it started in 

operation, but 3 or 4 hours had passed since the initial examination, and the operators of the equipment should have been trained 

to be alert for inoperative audible warning devices. It was the 

equipment operator's responsibility to stop the equipment and 

make the necessary repairs as the need occurs (Tr. 16). 

Mr. Cerva believed that a prior violation for inoperative alarms 

was issued during a prior inspection, but he was not sure (Tr. 

17) . 

Mr. Cerva confirmed that it is not unusual for a backup 

alarm to malfunction because of vibration, weather, or normal 

wear and tear, but he did not know what caused the problem in 

this particular instance. He confirmed that the condition was 

corrected within a half hour. Mr. Cerva agreed that the equipment which was operating in the pit stripping coal would not be a 

hazard to any automobiles or people using the highway, and that 

any hazard would be confined to the pit area. He confirmed that 

the mine office is located in a garage, which is kept locked, and 

which was located 2,000 feet from the pit. The garage door has a 

sign on it which identified it as the mine office, and he did not 

believe that anyone would be in the office after work starts in 

the pit. He confirmed that the mine has two entrances along the 

roadway, and while there are no signs identifying the mine at 

those locations, there are stop signs present (Tr. 20). 

Mr. Cerva confirmed that he has observed salesmen at the 

mine, and he believed that it was possible for a salesman to 

venture into the pit and walk behind a bulldozer while it was 

operating in reverse. He also confirmed that he has observed 

general curiosity seekers at other mines wandering around mine 

property observing coal extraction (Tr. 21). Although he was 

generally aware of prior accidents involving bulldozers backing 

over people, he could not recall any specific cases where this 

has happened (Tr. 22). 

Mr. Cerva confirmed that an endloader and shovel were also 

operating in the pit area where the cited bulldozer was operating, and he estimated that they operated within 20 to 25 feet of 

each other, and if an accident did occur, it would involve one 

piece of equipment colliding with another. He also indicated 

that "it could very well be that an operator would get off his 

piece of equipment for some reason." He conceded that he issued 

the citation "to cover all eventualities" (Tr. 23). 

Mr. Cerva stated that when he stopped the bulldozer and 

cited it, the other two pieces of equipment stopped operating 

within 2 minutes, and the operators got off their equipment to 

1406 
see what the problem was, and he explained the situation to them 

(Tr. 25). Mr. Cerva believed that more than one piece of equipment operating without workable audible backup alarms would 

present a collision hazard, and he believed that the equipment 

operators were experienced individuals (Tr. 26). 

Inspector Cerva confirmed that he issued Citation 

No. 2944565 (exhibit P-2), after finding an inoperative backup 

alarm on a payloader which was also pushing dirt. His inspection 

notes reflect that the payloader was not "surrounded by any other 

piece of equipment" (Tr. 28). Since the payloader is high, and 

the operator looks through the back window when he is backing up, 

Mr. Cerva believed that anyone on the property who may be walking 

or wandering through the area could have been run over. He 

believed that the operator's negligence was moderate because the 

equipment operators should take care of such problems as they 

arise (Tr. 29). He believed the violation was "S&S" because "if 

any employee got off his piece of equipment for any purpose and 

go walking across the roadway where this piece of equipment was 

operating, he could very well be ran over" (Tr. 30). Mr. Cerva 

confirmed that the violation was abated within a half hour, and 

he believed that the inoperative alarm condition may have been 

caused by a wire which may have loosened due to vibration (Tr. 

3 0) • 

Inspector Cerva confirmed that he issued Citation 

No. 2944564 (exhibit P-2), after observing that the windshield of 

the cited bulldozer was cracked in several locations. He 

believed that the operator's visibility would be impaired because 

"the cracks were so designed and with the weather being a nice 

sunny day you get a rainbow effect" (Tr. 32). Mr. Cerva did not 

know how long the condition had existed, and he confirmed that 

the bulldozer was the same one he cited for an inoperative alarm 

(Citation No. 2944563). Mr. Cerva stated that the cracked windshield was obvious, and "anytime a windshield gets broken during 

the day in such a manner that it affects visibility this is the 

time to park it" (Tr. 32). He confirmed that section 77.1605(a) 

requires that all windshields be maintained in a safe and clean 

condition. 

Mr. Cerva stated that the windshield in question was cracked 

in several locations near the center, and that any cracks started 

on the edge would work their way up near the center. He believed 

that the cracks in question would be in the line of vision of the 

equipment operator, and this would affect his safety because 

impaired visibility from shattered or cracked glass would not 

allow the operator to see anyone because the machine is high, and 

"it only takes a split second. You cold be on top of somebody" 

(Tr. 34). He explained further at (Tr. 32-34), as follows: 

Q. At what point do cracks in the windshield become 

severe enough to be considered not in good condition? 

1407 
A. Cracks in safety glass will spre~d due to the 

stress of the machine, the vibration. Just a very 

small crack. However, there were several cracks in 

this one. For example, if it is in the center or 

around the edges that is pointing away from the corner 

it is subject to crack at any given time. And in 

addition to that, it has been known that glass, the 

machine gets on a stress and the glass kind of rubs 

where the crack is and can throw a little bit of debris 

back on the operator. 

Q. But at what point would you say that a windshield 

is not in good condition, when it has a few cracks or 

what? 

A. If a crack is from the edge like the corner and it 

goes from one corner to the other, a small crack of 

that nature, it makes like a half circle. It is very 

unlikely that will spread. But if it doesn't go from 

corner to corner then it will spread. 

In addition to that, once a crack appears with the 

strain that the machine gets on and the stress and 

vibration with a very small crack even, it is subject 

to throw a piece of glass out because it is the weakest 

part of that glass now where the crack is. 

* * * * * * * 

Q. How would this cracked windshield affect the equipment operator himself, if at all? 

A. It could possibly be since it is cracked even 

though there is no big sharp edges, if there were sharp 

edges it would be different. But since it is cracked 

at several places and you get on a strain from stress 

it could throw out a piece of glass between the cracks 

and strike the operator. 

Mr. Cerva believed that the respondent was negligent for not 

ordering a new windshield when the crack first appeared (Tr. 35). 

Mr. Cerva confirmed that he permitted the respondent to remove 

the windshield in order to have time to order a new one, and that 

the equipment was allowed to continue in operation without a 

windshield (Tr. 36). Mr. Cerva confirmed that a windshield is 

not required, but if it is installed on the equipment, it must be 

maintained in good condition (Tr. 37). He agreed that it was not 

unusual to have cracks in windshields on equipment operating in 

pits (Tr. 38). He also agreed that the phrase "being in good 

condition" is subject to different interpretations, and that 

depending on the location of a crack, an operator is required to 

1408 
replace cracked· windshields as they occur. Impairment of vision 

and possible shattering would be two factors to be considered in 

making any determination as to whether or not a windshield is in 

"good condition" (Tr. 39). 

On cross-examination, Mr. Cervo could not recall whether or 

not the cited windshield was installed in three sections, i.g., 

one big glass in the center and two smaller ones on each side of 

the back. He confirmed that he did not climb into the bulldozer 

for a view from the operator's compartment to determine whether 

the operator's visibility would be affected by the cracks in 

question. He also confirmed that the windshield glass is safety 

glass which is designed so that it will not shatter and fly (Tr. 

41). When asked how he could determine that the operator's 

visibility would be impaired without his getting into the equipment and looking out from the operator's seat, Mr. Cervo stated 

"because if I have difficulty distinguishing, looking from the 

ground up, I am sure sitting in that seat you would have equal or 

greater visibility impairment than I do looking up there. If I 

had to look up and see, I kept watching to get the operator's 

attention" (Tr. 41). Mr. Cervo believed that the bulldozer in 

question was a second-hand piece of equipment purchased by the 

respondent at a sale (Tr. 41). 

Mr. Cervo confirmed that when he was attempting to get the 

operator's attention by signalling to him, he was standing to the 

side of the machine, and that the operator could see him if he 

looked out of the side of the machine because there was no glass 

there and the windshield would not have impaired his vision (Tr. 

43). When asked how he determined that the line of vision of the 

operator was impaired, Mr. Cervo responded as follows at (Tr. 

44-45): 

A. I went around to the front of the machine after he 

had parked it and turned it off. I went around to the 

front of the machine and I looked up to see if I could 

see inside from the ground and it was difficult for me 

to look up to make any distinguishment of anything 

being in there. 

MS. EVE: Thank you. 

JUDGE KOUTRAS: That would be virtually impossible. 

This machine sets up pretty high, doesn't it? 

THE WITNESS: Yes. That machine sets up pretty high. 

JUDGE KOUTRAS: You could not very well see what was in 

there? 

THE WITNESS: Well, you can see the seats, you can see 

the steering wheel. You can see the operator. 

1409 
JUDGE KOUTRAS: Did you have any difficulty seeing the 

operator or the seats or the steering wheel? 

THE WITNESS: As well as I can remember, Your Honor, I 

had to, after he stopped I looked and looked and yes, 

there was a little impairment for me to look up in 

there from the ground and I am sure if I had been in 

the seat looking out it would have been the same thing. 

JUDGE KOUTRAS: But you didn't sit in the seat? 

THE WITNESS: No. I did not. 

JUDGE KOUTRAS: You just did not think of it? 

THE WITNESS: No. It is not that I did not think of 

it. I go up in the cab on a lot of occasions to check 

for other things. But like seat belts, if they are in 

a position where they required to wear them and the 

cleanliness of the machine, the fire extinguisher and 

things of that nature. 

Respondent's Testimony and Evidence 

Patrick H. Cunningham, the respondent owner and operator of 

the mine, testified that his foreman Bob G. Eubanks informed him 

that he had checked the cited audible backup alarms on the 

morning of the inspection, and that they were operating properly. 

Mr. Cunningham stated that the alarms are difficult to maintain 

because of the vibration of the equipment, and his equipment 

operators are instructed to check them in the morning and at noon 

to make sure they are operating. With more than one piece of 

equipment operating, the noise is such that equipment operators 

"get kind of immune to the warning devices and they don't hear 

them unless it is for an inspection" (Tr. 48). He confirmed that 

he has operated the equipment and may not hear the alarms except 

for periods when he stops to check them (Tr. 48). 

With regard to the cracked windshield, Mr. Cunningham conceded that he was aware that it was cracked, but he did not 

believe it was cracked enough to cause it to be removed or 

replaced. In his opinion, the cracks did not hamper the visibility of the operator, and that given the fact that it was safety 

glass, he did not believe that it was likely that the glass would 

be fractured. He also stated that equipment vibration causes 

cracks and that "it is tough to keep windshields in this equipment because of the vibration" (Tr. 49). 

On cross-examination, Mr. Cunningham stated that he has 

experienced cracking in safety glass, but when this occurs, the 

glass breaks into small fine pieces, and he has never seen it 

1410 
"fly at any distance." He confirmed that he probably last 

inspected the windshield a few days before the inspection, and 

that the cracks in question were down low and would not hamper 

vision. He confirmed that the cracks could possibly have 

travelled in the line of vision of the operator between the time 

he observed the windshield and the time Mr. Cervo observed it on 

the day of his inspection (Tr. 51). He confirmed that he did not 

observe the windshield after it was removed because it was broken 

up during the process of removing it (Tr. 51, 53-54). 

Mr. Cunningham confirmed that he operated the cited bulldozer 2 or 3-days prior to the inspection and that his vision was 

not impaired by the cracks in the windshield (Tr. 51). He 

believed that the cracks were present when he purchased the 

machine 3 or 4-months prior to the inspection (Tr. 53). 

Mr. Cunningham stated that he has posted "no trespassing" 

signs at the entrance to the mine pit, and that he does not 

permit anyone on his operation unless one of his men are with 

them. He believed that it was unlikely that anyone could drive 

down to the pit area without one of his operators observing him 

and stopping him to determine his reason for being on the 

property (Tr. 54). 

Mr. Cunningham confirmed that he employs three full-time 

employees consisting of a working foreman and two equipment 

operators (Tr. 6-7). He also indicated that his current mine 

production is down from past years, and that he averages 1,200 to 

1,500 tons a month, and that he is behind in his taxes, and that 

his financial condition "is real bad" (Tr. 58). He believes that 

the proposed civil penalty assessments for the citations in 

question "would hurt us real bad, possibly cause me to have to 

close the mines down. It doesn't seem like a big amount to some 

people but a small operator with all the other expenses that we 

have, it means quite a bit to us" (Tr. 56). Mr. Cunningham 

confirmed that in addition to the pit in question, he operates 

two other pits which "are bad" in terms of being profitable (Tr. 

57). He conceded that the cited windshield was cracked, and that 

the cited backup alarms were inoperative (Tr. 57). 

Findings and Conclusions 

Fact of Violations 

Citation Nos. 2944563 and 2944565 

The respondent is charged with two violations of mandatory 

safety standard 30 C.F.R. § 77.410, because the warning devices 

which were installed on the cited bulldozer and payloader were 

inoperative when the equipment was operated in reverse. The 

standard requires that such devices give an audible alarm when 

operated in reverse. The respondent admitted that the alarms 

1411 
were inoperative, and the evidence presented in support of the 

violations establishes that this was the case. Accordingly, the 

violations ARE AFFIRMED. 

Citation No. 2944564 

The respondent is also charged with a violation of mandatory 

safety standard 30 C.F.R. § 77.1605(a), because of a cracked 

windshield on a bulldozer. The cited standard, which covers 

loading and haulage equipment, states that "Cab windows shall b~ 

of safety glass or equivalent, in good condition, and shall be 

kept clean." The inspector testified that he cited the condition 

after observing several cracks near the center of the windshield 

which he believed would impair the operator's visibility. He 

also believed that the cracked windshield was subjected to stress 

through machine vibration while it was in operation, and that a 

piece of glass could be dislodged and thrown back in the direction of the operator from the area where it was cracked. 

The inspector conceded that he did not enter the cab to sit 

behind the operator's controls in order to determine whether the 

cracks would affect the operator's visibility. He contended that 

he had difficulty in getting the operator's attention while 

waving to him from the ground, and implied that this was due to 

the operator's impaired visibility due to the cracks. However, 

given the fact that the inspector confirmed that he was standing 

to the side of the machine while attempting to signal the operator, and conceded that the operator could clearly see him from 

the side of the machine from where he was standing, I find the 

inspector's testimony to be lacking in credibility. 

The inspector also testified that after the machine was 

parked, he went to the front and looked up and found it difficult 

to see inside of the cab from the ground. However, he confirmed 

that even though the machine is "pretty high," he could see the 

seats, the steering wheel, and the operator, and that "there was 

a little impairment for me to look up in there from the ground 

and I am sure if I had been in the seat looking out it would have 

been the same thing." I find nothing in this testimony to 

establish that the windshield cracks impaired the inspector's 

ability to see into the cab from his position on the ground. 

Mine operator Cunningham testified that he operated the 

cited piece of equipment 2 or 3-days prior to the inspection, and 

that his vision was not impaired. He believed that the windshield was cracked when he purchased the equipment 3 or 4-months 

prior to the inspection, and he did not believe that the glass 

would fracture because it was safety glass. The inspector confirmed that the windshield was constructed of safety glass, and 

that such glass is designed so that it will not shatter or fly. 

Further, the inspector agreed with Mr. Cunningham that it was not 

1412 
unusual to have cracks in windshields of the equipment operating 

in the pits due to the vibration of the equipment. 

The inspector confirmed that windshields are not per se 

required to be on the equipment. However, if a windshield is 

provided, it must be kept in "good condition." The standard 

contains no guidance as to what constitutes "good condition," and 

the inspector conceded that this phrase is subject to different 

interpretations, and that depending on the location of a crack, 

windshields are required to be replaced as they occur. He 

believed that impairment of vision and possible shattering were 

two factors to be considered in making any determination as to 

whether or not a windshield is in "good condition." 

I agree with the inspector's opinion that impaired vision 

and the possibility of shattering are determining factors in any 

assessment as to whether a windshield is in good condition. 

However, based on the evidence adduced in this instance, I conclude and find that it is insufficient to establish that the 

cracks observed by the inspector impaired the operator's visibility or presented a possible shattering hazard. I find 

Mr. Cunningham's testimony that his vision was not impaired when 

he operated the machine with cracks in the windshield to be 

credible, and I find it highly unlikely that the safety glass, 

which is designed to preclude shattering, would shatter because 

of the cracks. I also take note of the fact that the inspector 

permitted the respondent to remove the windshield and to continue 

to operate the machine with the windshield completely removed 

while a new one was on order. Under all of these circumstances, 

I conclude and find that the petitioner has not established that 

the cited windshield was not in "good condition." Accordingly, I 

cannot conclude that a violation has been established, and the 

citation IS VACATED. 

Significant and Substantial Violation 

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 reasonably 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: 

1413 
In order to establish that a violation of a mandatory safety standard is significant and substantial 

under National Gypsum the Secretary of Labor must 

prove: (1) the underlying violation of a mandatory 

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

a measure of danger to safety-contributed to by the 

violation; (3) a reasonable likelihood that the hazard 

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

reasonable likelihood that the injury in question will 

be of a reasonably serious nature. 

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

1129, the Commission stated further as follows: 

We have explained further that the third element 

of the Mathies formula "requires that the Secretary 

establish a reasonable likelihood that the hazard 

contributed to will result in an event in which there 

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

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

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

is the contribution of a violation to the cause and 

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

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

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

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

surrounding the violation, including the nature of the mine 

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

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

(December 1987). 

Inspector Cerva confirmed that his significant and substantial finding was based on his general awareness of prior accidents at other mines involving people "wandering around" the mine 

and placing themselves in a position of being run over by an 

equipment operator who may not see them while backing up his 

machine with an inoperative backup alarm. Although Mr. Cerva 

could not cite any specific cases where this has occurred, he was 

concerned that "curiosity seekers" using the adjacent highway, 

salesmen, or job applicants, may venture onto the respondent's 

property without the knowledge of the equipment operators, and 

place themselves in a position of being run over by one of the 

machines. Mr. Cerva stated that he has observed salesmen visiting the respondent's mine, and has observed "curiosity seekers" 

"wandering around" other mines observing coal extraction. He 

also stated that he based his significant and substantial finding 

on his belief that an equipment operator leaving his machine ·and 

walking in the proximity of another operating piece of equipment 

could be run over, expressed a concern over a possible equipment 

1414 
collision, and confirmed that he issued the citations "to cover 

all eventualities." 

The evidence in this case establishes that the respondent's 

mining operation is very small and that the work force consists 

of two equipment operators, and a working foreman. The inspector 

conceded that any hazards would be confined to the mine pit area, 

and he agreed that the equipment operators were experienced 

miners, and that the normal operating speed of the equipment in 

question was 3 to 5 miles an hour in first or second gear. The 

inspector observed no one on foot, and there is no evidence that 

any salesmen, job applicants, or trespassers were on the 

property, or that such visitations occurred rarely or frequently. 

Although the inspector believed that an equipment operator would 

have reason to leave his machine, he apparently made no inquiries 

of the equipment operators as to whether or not they had any 

reason to leave their equipment and be on foot during the course 

of their normal work shift. Aside from the cited inaudible 

backup alarms, there is no evidence that any of the equipment was 

otherwise defective or had inoperable or defective brakes. 

Although one of the machines was cited for a cracked windshield, 

the inspector allowed it to continue to operate with the windshield removed, and there is no evidence that this condition 

impacted on the operator's view to the rear of the machine. 

While the inspector believed that the height of the equipment 

created poor visibility to the rear of the machines, the inspector did not climb into the machines to determine whether this was 

true or not, and none of the equipment operators were called to 

testify in this case. 

With regard to the presence of any invitees or trespassers 

on the property, Mr. Cunningham's credible testimony reflects 

that "no trespassing" signs are posted at the entrance to the 

mine, and that the mine office was located 2,000 feet from the 

pit, and a sign was posted identifying it as the mine office. 

Although Inspector Cerva believed that no one would be at the 

mine office during the work shift, I find no credible evidence to 

support that conclusion, and Mr. Cunningham's unrebutted credible 

testimony reflects that no one is permitted on the site unless he 

is accompanied by one of his employees, and Mr. Cunningham found 

it highly unlikely that anyone would be in the pit area without 

being observed or stopped by one of the equipment operators. 

Under these circumstances, I conclude and find that any salesmen 

or job applicants would likely go to the mine office to state 

their business, and I find it unlikely that they would venture 

2,000 feet into the pit area and place themselves in close 

proximity to a piece of equipment operating in reverse without 

being observed. 

With regard to any equipment collision hazard, given the 

size of the equipment, and the fact that it is normally operated 

at very slow speeds by experienced operators, and in the absence 

1415 
of any past accidents or incidents of this kind, I find it 

unlikely that such an accident would occur, and if it did, I find 

it unlikely that it would result in any serious personal injury 

to the operator of the equipment. 

I take particular note of the inspector's admission that he 

issued the citations to cover "all eventualities." Although I 

agree that a surface pit mining operation such as the one operated by the respondent generally involves a working environment 

exposing miners to potential hazards, the question of whether any 

particular violation is significant and substantial must be based 

on credible evidence as to the existence of a hazard rather than 

on assumptions and speculation. On the facts of this case, and 

after careful review and consideration of Inspector Cervo's 

testimony in support of his "S&S" findings, I conclude and find 

that they were based on general and speculative assumptions with 

respect to any hazards exposure, rather than on any specific 

prevailing mining conditions from which one could reason~bly 

conclude that the equipment operators or anyone else were in fact 

exposed to mine hazards likely to result in injuries of a reasonably serious nature. I further conclude and find that the petitioner has failed to establish by a preponderance of the credible 

and probative evidence adduced in this case that the violations 

were significant and substantial. Accordingly, the inspector's 

findings in this regard are rejected, and they ARE VACATED. 

Size of Business and Effect of civil Penalty on the Respondent's 

Ability to Continue in Business 

The respondent is a very small mine operator, and although I 

have taken into consideration Mr. Cunningham's assertion that his 

operations may be marginally profitable, I conclude and find that 

the payment of the civil penalties assessed for the violations 

which have been affirmed will not adversely affect his ability to 

continue in business. 

History of Prior Violations 

The parties stipulated that the respondent's history of 

prior violations consists of two violations issued during the 

course of four inspection days in the 24-months prior to the 

issuance of the contested citations in this case. I conclude and 

find that the respondent has a good compliance record, and I have 

taken this into consideration in the assessment of the civil 

penalties for the violations which have been affirmed. 

Good Faith Compliance 

The inspector confirmed that the respondent took immediate 

steps to repair the equipment backup alarms, and that the violations were abated within a half hour. I conclude and find that 

1416 
the respondent exercised rapid good faith compliance, and I have 

taken this into consideration. 

Negligence 

The inspector made a finding of "moderate" negligence for 

both violations, and he believed that the equipment operators are 

responsible for stopping the equipment and having it repaired as 

the need arises. He also agreed with Mr. Cunningham that the 

backup alarms could become inoperative at any time due to the 

vibration of the equipment. I conclude and find that the violations resulted from the respondent's failure to exercise reasonable care and that this constitutes ordinary negligence. 

Gravity 

On the facts of this case, and for the reasons stated in my 

"S&S" findings, I conclude and find that the violations were 

non-serious. 

Civil Penalty Assessments 

On the basis of the foregoing findings and conclusions, and 

taking into account the requirements of section llO{i) of the 

Act, I conciude and find that the following civil penalty assessments are reasonable and appropriate for the violations which 

have been affirmed: 

Citation No. 

2944563 

2944565 

11/16/87 

11/16/87 

30 C.F.R. Section 

77.410 

77.410 

ORDER 

Assessment 

$ 25 

$ 25 

Section 104(a) "S&S" Citation No. 2944564, November 16, 

1987, 30 C.F.R. § 77.1605{a), IS VACATED. The respondent IS 

ORDERED to pay civil penalty assessments for the two remaining 

violations in the amounts shown above within thirty (30) days of 

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

petitioner, this matter is dismissed. 

' , .• /('..,)· './·? -,L-,---

1 -17' , . A· ' ,d ,·, ~ 1 GeofgJ A. ,~utr~~ '-' v..., \./ ---=-''" .... 

Administrative Law Judge 

1417 
Distribution: 

Anita D. Eve, Esq., Office of the Solicitor, U.S. Department of 

Labor, Room 14480 Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

Mr. Patrick H. Cunningham, Partner, Ten-A-Coal Company, Route 4, 

Box 253, Clarksburg, WV 26301 (Certified Mail) 

/fb 

1418 
ADMINISTRATIVE LAW JUDGE ORDER 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

RUSHTON MINING COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

July 24 ,1989 

CONTEST PROCEEDING 

Docket No. PENN 89-146-R 

Citation No. 2889705; 3/20/89 

Rushton Mine 

Mine ID #36-00856 

DECISION AND ORDER DENYING MOTION FOR SUMMARY DECISION 

Rushton Mining Company (Rushton) has filed a Motion for 

Summary Decision in the captioned case pursuant to Commission 

Rule 64, 29 C.F.R. § 2700.64, seeking to vacate the 

challenged citation. The citation at issue, No. 2889705, 

alleges a violation of the standard at 30 C.F.R. § 

70.510(b)(2) and charges as follows: 

A plan for the administration of a continuing 

effective hearing conservation program was not 

submitted for approval within 60 days following the 

issuance of the notice of violation that was issued 

on 1/17/89. The plan had not been submitted as of 

this date, 62 days after the issuance. 

There appears to be no factual dispute that indeed a 

notice of violation was issued on January 17, 1989, under 

section 104(a) of the Act for a violation of 30 C.F.R. § 

70.501 under "subpart F-Noise Standard. It is also 

undisputed that the citation on its face stated that a 

hearing conservation plan must be submitted to the Federal 

Mine Safety and Health Administration (MSHA) within 60 days 

of the issuance of that citation. It also appears to be 

undisputed that such a plan for a hearing conservation 

program was not submitted for approval within 62 days of the 

issuance of that citation. 

Rushton argues however that the Secretary's regulations 

do not in fact require the submission of a hearing 

conservation plan upon a single showing of excessive noise 

levels during a periodic noise survey but rather only upon a 

subsequent showing of excessive noise levels during a 

supplemental noise survey conducted as required by 

30 C.F.R. § 70.509. 

The Secreary's regulations provide in relevant part as 

follows: 

1419 
§ 70.507 - Initial Noise Exposure Survey 

On or before June 30, 1971, each operator shall: 

(a) Conduct, in accordance with this subpart, 

a survey of the noise levels to which each miner in 

the active workings of the mine is exposed during 

his normal work shift. 

* * * 

§ 70.508 - Periodic Noise Exposure Survey 

(a) At intervals of the least every 6 months 

after June 30, 1971, but in no case shall the 

interval be less than 3 months, each operator shall 

conduct, in accordance with this subpart, periodic 

surveys of the noise levels to which each miner in 

the active workings of the mine is exposed and 

shall report and certify the results of such 

surveys to the Mine Safety and Health 

Administration, and the Department of Health and 

Hu~an Services. 

* * * 

§ 70.509 - Supplemental Noise Exposure Survey; Reports 

and Certification 

(a) Where the certified results of an initial 

noise exposure survey conducted in accordance with 

§ 70.507, or a periodic noise exposure survey 

conducted in accordance with § 70.508, show that 

any miner in the active workings of the mine is 

exposed to a noise level in excess of the 

permissible noise level prescribed in Table I, the 

operator shall conduct a supplemental noise 

exposure survey with respect to each miner whose 

noise exposure exceeds this standard. This survey 

shall be conducted within 15 days following 

notification to the operator by the Mine Safety and 

Health Administration to conduct such survey. 

* * * 

; 70.510 - Violation of Noise Standard; Notice of 

Violation; Action Required By Operator 

(a) Where the results of a supplemental noise 

exposure survey conducted in accordance with § 

70.5Li9 show that any miner in the active workings 

of the mine is exposed to noise levels which exceed 

1420 
the permissible noise levels prescribed in Table I, 

the Secretary shall issue a notice.to the operator 

that he is in violation of this subpart. 

(b) Upon receipt of a Notice of Violation 

issued pursuant to paragraph (a) of this section, 

the operator shall: 

(1) Institute promptly administrative 

and/or engineering controls necessary to assure 

compliance with the standard. Such controls may 

include protective devices other than those devices 

or systems which the Secretary or his authorized 

representative finds to be hazardous in such mine. 

(2) Within 60 days following the issuance 

of any Notice of Violation of this subpart, submit 

for approval to a joint Mine Safety and Health 

Administration-Health and Human Services committee, 

a plan for the administration of a continuing, 

effective hearing conservation program to assure 

compliance with this subpart. 

The problem in this case arises from inartful 

draftmanship of the regulations. If subsection 70.510(b)(2) 

is read separate from and independent of the other provisions 

in the section it is clear that there was a violation as 

charged since it is undisputed that no hearing conservation 

plan was submitted within the 60 day period established by 

that regulation. 

Indeed unless subsection (b)(2) is read in such a 

separate and independent manner it is in irreconcilable 

conflict and becomes nonsensical. It is of course a basic 

rule of construction that the interpretation that produces 

the greatest harmony and the least inconsistency ought to 

prevail. Sutherland Stat Const§ 46.05 (4th Ed.) 

Subsection 70.510(b)(2) must therefore be read separate 

and independent of the remainder of the section. It is in 

itself unambiguous in requiring the submission of a hearing 

conservation plan "within 60 days following the issuance of 

any Notice of Violation of this suboart" (Emphasis added). 

This interpretation is of course also consistent with that 

taken by the Secretary in this case and in her Policy Manual. 

Under the circumstances the Motion for Summary Decision 

must be denied. The operator has not shown as a matter of 

law that it is entitled to such a decision. Commission 

Rule 64. Accordingly this case along with its related civil 

penalty proceeding (Docket No. PENN 89-197) will be set for 

hearing on the merits. While the Secretary has not filed a 

Motion for Summary Decision in this case it would appear, 

1421 
based upon the undisputed evidence, that a violation of the 

cited standar~ did in fact exist and that such a Motion would 

be granted concerning the existence at the violation. A 

hearing would nevertheless be necessary on the remaining 

issue of whether the violation was "significant and 

substantial". In addition, issues under section llO(i) of 

the Act must be addressed in determining the appropriate 

penalty to be assessed in the related civil penalty 

proceeding~ 1 

Distribution: 

If 

: I l/ 

Gary Mel· ck 

Administ ative 

(703) -6261 

i 

; 

Judge 

Joseph A. Yuhas, Esq., Rushton Mining ompany, P.O. Box 367, 

Ebensburg, PA 15931 (Certified Mail) 

Anita D. Eve, Esq., Office of the Solicitor, U.S. Department 

of Labor, 14480 Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

nt 

1422 »U. S.GOVERNl!IENT PRINTING Off!CE:1989-241-155:04758