MAY 1996 

COMMISSION DECISIONS AND ORDERS 

05-03-96 

05-03-96 

05-22-96 

05-23-96 

05-28-96 

Broken Hill Mining Company, Inc. 

Faith Coal Company 

Peabody Coal Company 

Lion Mining Company 

General Chemical Corporation 

ADMINISTRATIVE LAW JUPGE DECISIQNS 

05-02-96 

05-02-96 

05-02-96 

05-02-96 

05-07-96 

05-07-96 

05-1.0-96 

05-10-96 

05-1.3-96 

05-13-96 

05-15-96 

05-15-96 

05~15-96 

05-20-96 

05-21-96 

C.W. Mining Company 

FMC Wyoming Corporation 

FMC Wyoming Corporation 

C.W. Mining Company 

Cyprus Cumberland Resources 

Ross Stewart v. Twentymile Coal Co. 

Major Tony Thompson v. Aero Energy, Inc. 

A.M. Welles, Inc. 

Amax Coal Company (orig. & amended) 

FMC Wyoming Corporation 

Beck Materials Company 

Peabody Coal Company 

Lance A. Paul v. Newmont Gold Co. 

Aggregate Products Inc. 

Sec.Labor on behalf of William 

Kaczmarczyk v. Reading Anthracite 

05-22-96 Jim Walter Resources, Inc. 

05-24-96 Lehigh Portland Cement Company 

05-28-96 Contractors Sand & Gravel Supply 

ADMINISTRATIVE LAW JUPGE ORDERS 

05-15-96 Coal Miners Incorporated 

05-24-96 S.M. Lorusso & Sons, Inc. 

05-31-96 Newmont Gold Company 

i 

KENT 94-972 

SE 91-97 

KENT 91-179-R 

PENN 94-71-R 

WEST 95-95-M 

WEST 94-452 

WEST 94-560-M 

WEST 94-699-M 

WEST 95-193 

PENN 95-75 

WEST 95-27-D 

KENT 94-1.1.91.-D 

WEST 95-220-M 

LAKE 96-17 

WEST 95-188-M 

CENT 95-203-M 

KENT 93-318-R 

WEST 95-228-DM 

WEST 95-201-M 

PENN 95-1-D 

SE 95-339 

YORK 95-1.15-M 

WEST 93-62-M 

LAKE 96- ~9 YORK 95-74-M 

WEST 95-434-M 

Pg. 679 

Pg. 683 

Pg. 686 

Pg. 695 

Pg. 704 

Pg. 709 

Pg. 712 

Pg. 714 

Pg. 716 

Pg. 718 

Pg. 732 

Pg. 744 

Pg. 756 

Pg. 762 

Pg. 769 

Pg . 772 

Pg . 784 

Pg. 792 

Pg . 794 

Pg. 802 

Pg. 804 

Pg. 821 

Pg. 824 

Pg. 827 

Pg. 829 

Pg . 832 
MAY 1 99 6 

Review was granted in the following case during the month of May; 

Secretary of Labor, MSHA v. DCL Construction Inc., Docket No. WEST 95-189-M. 

(Chief Judge Merlin, unpublished Default decision issued August 3, 1995). 

Review was · d.enied in the following cases during the month of May; 

Secretary of Labor, MSHA v. James Yancik, Neal Merrifield & Freeman United 

Mining Co., Docket Nos. LAKE 95-262, etc. (Judge Fauver, March 29, 1996). 

Secretary of Labor, MSHA v . Doss Fork Coal Company, Docket No. WEVA 93-129. 

(Judge Melick, April 5, 1996). 

Secretary of Labor, MSHA v. Wallace Brothers, Inc., Docket No. WEST 94-710-M. 

(Judge Amchan, April 12, 1996}. 

ii 
COMMISSION DECISIONS AND ORDERS 

FEDERAL MINE SAFETY AND HEALTH REVIEW C.OMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEAL TH 

ADMINISTRATION (MSHA) 

V. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

May 3 , 1996 

Docket No. KENT 94-972 

BROKEN HILL fytINING COMPANY, INC. 

BEFORE: Jord.an, Chairman; Holen, Marks and Riley, Commissioners 

ORDER 

BY THE COMMISSION: 

This civil penalty proceeding arises under the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act'} On October 11, 1995, the Commission 

granted the petition for discretionary review filed by Broken Hill Mining Company, Inc. 

("Broken Hill"). Pursuant to Commission Procedural Rule 75, 29 C.F.R. § 2700.75 (1995),

1 

Broken Hill's opening brief was due to be filed by November 13, 1995. Broken Hill has not 

filed its brief and has proffered no reason for its failure to do so. 

1 Rule 75 provides, in part: 

(a) Time to file. (1) Opening and response briefs. 

Within 30 days after the Commission grants a petition for 

discretionary review, the petitioner shall file his opening brief. If 

the petitioner desires, he may notify the Commission and all 

other parties within the 30-day period that his petition and any 

supporting memorandum are to constitute his brief. . . . 

679 
On January 26, 1996, the Secretary of Labor filed a Motion to Dismiss for Want of 

Prosecution pursuant to Commission Procedural Rule 75(e), 29 C.F.R. § 2700.75(e).

2 The 

Secretary states that Broken Hill failed to file its opening brief or designate its petition as such. 

Mot. at 1. The Secretary notes that he has not been able to reach Broken Hill by telephone or 

facsimile. Id. at 2 & n.2. He asserts that no injustice would result from the dismissal of Broken 

Hill's petition. Id. at 2. The Secretary requests that the petition be dismissed with prejudice. Id. 

at 3 .. Broken Hill has not filed an opposition to·the motion. 

On March 14, 1996, the Commission issued an order directing Broken Hill to show cause 

within 14 days why its appeal should not be dismissed. The file contains the return receipt 

showing that Broken Hill received the show cause order on March 22, 1996. Broken Hill has not 

responded to the show cause order. The Commission may vacate its direction for review if a 

petitioner fails to file an opening brief in accordance with Rule 75. See 29 C.F.R. § 2700.75(e). 

2 Rule 75(e) provides: 

Consequences of petitioner's failure to file brief. If a 

petitioner fails to timely file a brief or to designate the petition as 

his brief, the direction for review may be vacated. 

680 
In light of the foregoing considerations, we grant the Secretary's motion. Accordingly, 

the direction for review is vacated and this proceeding is dismissed. 

Arlene Holen, Commissioner 

Marc Lincoln Marks, Commissioner 

c.2.:-

681 
Distribution: 

Hobart W. Anderson, President 

Broken Hill Mining Company, Inc. 

P.O. Box 356 

Sidney, KY 41564 

(Certified Mail) 

Cheryl C. Blair-Kijewski, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd., Suite 400 

Arlington, VA 22203 

(Certified Mail) 

Administrative Law Judge T. Todd Hodgdon 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, VA 22041 

682 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABO~ 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

FAITH COAL CO. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 3, 1996 

Docket Nos. SE 91-97, etc. 

BEFORE: Jordan, Chairman; Holen, Marks and Riley, Commissioners 

ORDER 

BY THE COMMISSION: 

These civil penalty proceedings arise under the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act"). On August 28, 1995, the Commission 

granted the cross-petitions for discretionary review filed by Faith Coal Company ("Faith") and 

the Secretary of Labor. Pursuant to Commission Procedural Rule 75, 29 C.F.R. § 2700.75 

(1995), 1 Faith's opening brief was due to be filed by September 27. 1995. Faith, however, failed 

to file its brief. 

1 Rule 75 provides, in part: 

(a) Time to file. (1) Opening and response briefs. 

Within 30 days after the Commission grants a petition for 

discretionary review. the petitioner shall file his opening brief. If 

the petitioner desires, he may notify the Commission and all 

other parties within the 30-day period that his petition and any 

supporting memorandum are to constitute his brief. . . . 

683 
On January 26, 1996, the Secretary filed a Motion to Dismiss for Want of Prosecution 

pursuant to Commission Procedural Rule 75(e), 29 C.F.R. § 2700.75(e).2 The Secretary states 

that Faith failed to file its opening brief or designate its petition as such. Mot. at 1. The 

Secretary notes that he has not been able to reach Faith by telephone, facsimile, or mail. Id at 2 

& n.2. He asserts that no injustice would result from the dismissal of Faith's petition. Id at 2-3. 

The Secretary requests that the petition be dismissed with prejudice. Id at 3. Faith has not filed 

an opposition to the motion. 

On March 14, 1996, the Commission issued an order directing Faith to show cause 

within 14 days why its appeal should not be dismissed. The file contains the return receipt 

showing that Faith received the show cause order on April 1, 1996, 18 days after its issuance. 

On April 8, 1996, Faith filed a response to the show cause order stating that, as a prose 

operator, it was unaware that a written statement was required to designate the petition as its 

brief. Faith requests that the Commission accept its late correspondence as its motion to 

designate the petition as such. Faith also states that it opposes the Secretary's motion to dismiss 

because it "should not be penalized nor denied the privilege of due process of appeal because of 

financial poverty and lack of knowledge" of the Commission's rules. The Secretary has not filed 

an opposition to Faith's motion to designate the petition as its brief. 

Whether the Commission vacates its direction for review due to a petitioner's failure to 

file an opening brief in accordance with Rule 75 is a matter within the Commission's discretion. 

See 29 C.F.R. § 2700.75(e). Faith has proffered a reason for its failure to file its brief, i.e., as a 

prose operator, Faith was unaware of the filing requirement. Under the circumstances, we 

excuse Faith's late-flied resp0nse to the show cause order and grant its motion to designate the 

petition as its brief. 

2 Rule 75(e) provides: 

Consequences of petitioner's failure to file brief. If a 

petitioner fails to timely file a brief or to designate the petition as 

his brief, the direction for review may be vacated. 

684 
For the foregoing reasons, we deny the Secretary's motion. 

Distribution 

Lonnie Stockwell 

Faith Coal Company 

Route I, Box 196 

Palmer, TN 37365 (Certified) 

Cheryl C. Blair-Kijewski, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Administrative Law Judge David Barbour 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite l 000 

Falls Church, VA 22041 

Marc Lincoln Marks, Commissioner 

James C. Riley, Commissioner 

685 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEAL TH 

ADMINISTRATION (MSHA) 

v. 

PEABODY COAL COMP ANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

May 22, 1996 

Docket No. KENT 91-179-R 

BEFORE: Jordan, Chairman; Holen and Marks, Commissioners• 

DECISION 

BY THE COMMISSION: 

This contest proceeding arises under the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"). At issue is a citation,2 issued by the 

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

Peabody Coal Company ("Peabody") violated 30 C.F.R. § 75.316 (1991) by operating a mine 

without an approved ventilation plan.

3 The Commission previously remanded this matter to the 

1 Commissioner Doyle participated in the consideration of this matter but resigned from 

the Commission before its final disposition. Commissioner Riley assumed office after this case 

had been considered and decided at a Commission decisional meeting. A new Commissioner 

possesses legal authority to participate in pending cases, but such participation is discretionary. 

Mid-Continent Resources, Inc., 16 FMSHRC 1218 n.2 (June 1994). In the interest of efficient 

decision making, Commissioner Riley has elected not to participate in this matter. 

2 Originally, this proceeding involved a second citation at another of Peabody's mines, 

the Camp No. 2 Mine (15 FMSHRC 381, 382 (March 1993)); however, that mine is no longer 

operating and the Secretary has withdrawn the citation against it. S. Br. at 4 n.3. 

3 Former 30 C.F.R. § 75.316 implemented section 303(0) of the Mine Act, 30 U.S.C. 

§ 363(0), and provided: 

A ventilation system and methane and dust control plan and 

revisions thereof suitable to the conditions and the mining system 

of the coal mine and approved by the Secretary shall be adopted by 

686 
administrative law judge to determine whether a disputed ventilation plan provision was 

''suitable" to the conditions at Peabody's mines. Peabody Coal Co., 15 FMSHRC 381, 388 

(March 1993) ("Peabody f'). The Commission stated that the Secretary of Labor bears the 

burden of proving the suitability of a disputed plan provision. Id. On remand, Administrative 

Law Judge Gary Melick concluded that the Secretary established that the disputed plan provision 

was suitable. Peabody Coal Co., 15 FMSHRC 1703 (August 1993) (ALJ). The Commission 

granted Peabody's petition for discretionary review ("PDR"). For the reasons that follow, we 

affirm the judge. 

I. 

Procedural and Factual BackfUound 

A. Peabody! 

The background facts in this proceeding are fully set forth in Peabody I, 15 FMSHRC at 

382-85, and are summarized here. Peabody's Martwick Mine utilizes a method of continuous 

mining known as "deep cut" or "extended" mining that involves making cuts deeper than 20 feet 

from the last full row of permanent roof supports. Id. at 382 & n.2. In January 1991, as a result 

of its regular 6-month review of Peabody's ventilation plan at the mine, MSHA insisted that 

Peabody include in the plan a deep cut ventilation provision applicable to the roof bolting stage 

of the mining cycle. The new provision required Peabody to extend the line curtain during roof 

bolting in deep cut entries to within 10 feet of the last row of bolts being set and to supply 3,000 

cubic feet per mi.nute ("cfm") of air at the inby end of the curtain. In Peabody's previously 

approved plan, the line curtain was not placed in deep cuts until completion of roof bolting and 

there was no prescribed minimum air volume during roof bolting. Id. at 15 FMSHRC at 382-83; 

15 FMSHRC at 1703 (ALJ decision on remand). 

Peabody objected to inclusion of the new provision. After unsuccessfully negotiating 

with Peabody, the Secretary refused to approve a revised ventilation plan that did not contain the 

the operator and set out in printed form on or before JWle 28, 1970. 

The plan shall show the type and location of mechanical 

ventilation equipment installed and operated in the mine, such 

additional or improved equipment as the Secretary may require, the 

quantity and velocity of air reaching each working face, and such 

other infonnation as the Secretary may require. Such plan shall be 

reviewed by the operator and the Secretary at least every 6 months. 

When MSHA revised and renumbered its ventilation plan standards in 1992, 30 C.F .R. § 75.316 

was superseded by 30 C.F.R. § 75.370 (1995), 57 Fed. Reg. 20,868, 20,910-12, 20,924 (May 15, 

1992). 

687 
disput.::d provision and issued a citation to Peabody alleging a violation of section 7 5 .316 for 

operating without an approved plan. Peabody submitted, under protest, a plan containing the 

provision required by the Secretary. Peabody I, 15 FMSHRC at 382-84. 

Peabody filed a notice of contest and a hearing was held. In his first decision, Judge 

Melick concluded that the new deep cut ventilation provision was mine-specific and not a 

standard of general application that was subject to rulemaking requirements. He determined that 

Peabody had failed to negotiate with the Secretary in good faith over the provision and affirmed 

the citation. 13 FMSHRC 1332, 1335-37 (August 1991) (ALJ). On review, the Commission 

affirmed the judge's finding that the deep cut ventilation provision was mine-specific but, 

contrary to the judge, found that Peabody had negotiated in good faith. 15 FMSHRC at 385-88. 

The Commission remanded the case to the judge with the following instruction: 

Id. at 388. 

We remand to the judge to decide whether the disputed provision 

was "suitable" to Peabody's mineO, as contemplated by 30 U.S.C. 

§ 863( o ). The Secretary bears the burden of proving that the plan 

provision at issue was suitable to the mineO in question. 

Peabody filed a petition for reconsideration with the Commission requesting clarification 

that the Secretary's burden of proof included a showing that Peabody's previously approved 

ventilation plan was unsuitable in addition to demonstrating that the disputed plan provision was 

suitable. The Secretary responded that, because he sought to have Peabody make changes in a 

previously approved plan, he had no objection to bearing the burden of proving both the 

uns~itability of the previously approved plan and the suitability of the new plan provision. The 

Commission denied the petition and ordered that the issues raised by Peabody be determined in 

the first instance by the judge on remand. Peabody Coal Co., 15 FMSHRC 628 (April 1993) 

("Peabody II"). 

B. Present Proceeding 

On remand, the judge took further evidence on the issues of the unsuitability of the 

previously approved ventilation plan and the suitability of the new plan provision the Secretary 

had proposed. Tr. III. 3-4.4 At the hearing, the Secretary modified the proposed plan provision 

because further testing revealed that, with airflow of 3,000 cfm at the inby end of the line curtain, 

there was sufficient ventilation to the face areas with a shorter line curtain. Under the modified 

4 The judge conducted two hearings in this matter, the first on August 7 and 8, 1991, and 

the second, after remand, on June 17, 1993. "Tr. I" refers to the transcript volume of the hearing 

on August 7; "Tr. II" to the August 8 hearing transcript; and "Tr. III" to the June 17 hearing 

transcript. 

688 
plan provision, the line curtain was to be extended only to the fourth row of roof bolts outby the 

row being installed (about 20 feet from the last row of roof bolts); Wlder the earlier proposed 

provision, the line curtain was extended to the second row of roof bolts outby the row being 

installed (about 10 feet from the last row of roof bolts). 15 FMSHRC at 1704 n.2; Tr. III 19-21; 

Gov't Ex. 6A. The Secretary presented testimony and test results to support his position that the 

purpose of the new ventilation provision was to remove methane, respirable dust, and fumes 

from the face area during roof bolting and that, without such ventilation, an ignition was possible 

because of the presence of the roof bolter. Peabody introduced the results of its own ventilation 

studies regarding the sources and quantities of methane released in the mine. 15 FMSHRC at 

1703-05. 

The judge concluded that the Secretary met his burden of proving that the prior plan was 

no longer suitable to the mine and that the proposed plan provision was suitable. 15 FMSHRC at 

1705-06. The judge found that the mine liberates large amounts of methane and is subject to 15-

day spot inspectfons under section 103(i) of the Mine Act, 30 U.S.C. § 813(i), for mines 

liberating more than 200,000 cubic feet of methane during a 24-hour period. He also found, 

based on Peabody's tests, that methane is liberated from the working faces of the mine. 15 

FMSHRC at 1703-05. The judge relied on the Secretary's tracer gas tests', which showed that, 

Wlder the previously approved ventilation plan, little or no methane present in unventilated deep 

cut areas would be diluted or removed and that methane would accumulate in increasing 

concentrations while the roof bolting machine was in operation. 15 FMSHRC at 1704-05. He 

noted that the roof bolting machine could at any time become an ignition source. Id. at 1705. 

Finding the prior plan unsuitable to address this safety hazard, he determined that the new plan 

provision addressed the hazard because "the ventilating air clearly sweeps the face area." Id at 

1704. Accordingly, he affirmed the citation and dismissed the contest. id at 1706. 

II. \ 

Disposition 

A. Position of the Parties 

Peabody argues that the judge's formulation of the test for suitability was erroneous. 

PDR at 2; P. Br. at 16. Peabody asserts that the judge permitted the Secretary to articulate only a 

"possible hazard, without making any showing that the hazard exists or is reasonably likely to 

occur at Martwick .... " P. Br. at 16. Peabody also argues that the Martwick Mine has operated 

safely for years without the provision in question. P. Br. at 17. Peabody further asserts that: the 

showing the judge imposed on the Secretary was inconsistent with the Commission's remand 

instructions; the judge's suitability determination was premised on the incorrect assumption of a 

requirement that there be adequate ventilation to the face during roof bolting; evidence was 

lacking that methane accumulated at the face during roof bolting; and the previous plan provision 

required adequate ventilation of face areas during active mining. P. Br. at 18, 20, 27, 29-31. 

689 
The Secretary argues that substantial evidence supports the judge's determination that 

the previously approved plan was unsuitable and the proposed plan provision was suitable. S. 

Br. at 9-19. The Secretary further argues that plan provisions should be given the same legal 

effect as a mandatory standard adopted through rulemaking and should therefore be reviewed 

under an arbitrary and capricious standard of review. S. Br. at 26-34. In response, Peabody 

contends that, because the procedural safeguards of notice-and-comment rulemaking are absent 

in the plan approval context, the arbitrary and capricious standard of review is inappropriate. 

P. Reply Br. at 17-20. 

B. Analysis 

Section 303( o) of the Mine Act, the statutory sponsor of the ventilation plan regulation at 

issue, provid~s: 

A ventilation system and methane and dust control plan and 

revisions thereof suitable to the conditions and the mining system 

of the coal mine and approved by the Secretary shall be adopted by 

the operator .... 

30 U.S.C. § 863(0) (emphasis added). As the Commission noted in Peabody I, "[M]ine 

ventilation or roof control plan provisions must address the specific conditions of a particular 

mine." 15 FMSHRC at 386. See UMWA v. Dole, 870 F.2d 662, 669 (D.C. Cir. 1989). While 

the contents of a plan are based on consultation between the Secretary and the operator (see, e.g., 

Penn Allegh Coal Co., 3 FMSHRC 2767, 2773 (December 1981)), "the Secretary must 

independently exercise his judgment with respect to the content of such plans in connection with 

his final approval of the plan." UMWA v. Dole, 870 F.2d at 669 n.10, quoting S. Rep. No. 181, 

95th Cong., 1st Sess. 25 (1977), reprinted in Senate Subcommittee on Labor, Committee on 

Human Resources, 95th Cong., 2nd Sess., Legislative History of the Federal Mine Safety and 

Health Act of 1977, at 613 (1978). 

We reject Peabody's proposal that the Secretary be required to prove the hazard 

addressed by a new plan provision either exists or is reasonably likely to occur. Section 303(0), 

in setting forth the requirement that a ventilation plan be suitable to mining conditions, does not 

require that plan provisions be based on the existence of specific hazards or the likelihood that 

specific hazards may occur. In the absence of a statutory definition or a technical usage of the 

term "suitable," we apply the ordinary meaning of the word. See Thompson Brothers Coal Co., 

6 FMSHRC 2091, 2096 (September 1984). "Suitable" is defined as "matching or 

correspondent," "adapted to a use or purpose: fit," "appropriate from the viewpoint of ... 

convenience, or fitness: proper, right," "having the necessary qualifications: meeting 

requirements." Webster's Third New International Dictionqry 2286 (1986). We conclude that 

the Secretary carried his burden of proving the unsuitability of the former plan and the suitability 

of the new provision once he identified a specific mine condition not addressed in the previously 

approved ventilation plan and addressed by the new provision. 

690 
In order to establish that, under former section 75.316, Peabody improperly refused to 

include a provision in its ventilation plan, the Secretary agreed for purposes of this litigation to 

assume the burden of proving: (1) the previously approved plan is no longer suitable to the 

conditions and the mining system of the coal mine, and (2) the new plan provision is suitable. 

Peabody II, 15 FMSHRC 628. The Commission is bound by the substantial evidence test when 

reviewing an administrative law judge's factual determination. 30 U.S.C. § 823(d)(2)(A)(ii)(I). 

"Substantial evidence" means "such relevant evidence as a reasonable mind might accept as 

adequate to support a conclusion." See, e.g., Rochester & Pittsburgh Coal Co., 11 FMSHRC 

2159, 2163 (November 1989), quoting Consolidation Edison Co. v. NLRB, 305 U.S. 197, 229 

(1938). We are guided by the settled principle that, in reviewing the whole record, an appellate 

tribunal must also consider anything that "fairly detracts" from the weight of the evidence that 

may be considered as supporting a challenged finding. Universal Camera Corp. v. NLRB, 340 

U.S. 474, 488 (1951). 

The Secretary's concern ·with ventilation of deep cuts during roof bolting originated with 

a report by MSHA's Pittsburgh Safety and Health Technology Center, "Ventilation 

Requirements and Procedures for Extended (Deep) Cuts with Remote Controlled Continuous 

Miners." Tr. I 26-31; Gov't Ex. 2. In response to that report, the Secretary began reviewing 

plans to determine whether and how deep cuts should be ventilated. Tr. I 48-49. The Secretary 

concluded that Martwick's previous plan requiring no ventilation during the roof bolting stage 

was inadequate. Tr. II 14-15, 82-84; Tr. III 71. 

Further, Peabody's own ventilation study revealed that methane was released at faces 

following deep cuts. The Martwick Mine liberates large amounts of methane and is subject to 

15-day review under section 103(i) of the Mine Act. 15 FMSHRC 1703-04. The record 

confirms the inherently unpredictable nature of methane liberation. Tr. III 28, 41-42, 71, 215-17, 

224-25. Additionally, as the judge found, the roof bolter presented an ignition source and posed 

an "extreme potential hazard" under the prior plan if methane were to accumplate at dangerous 

levels. 15 FMSHRC at 1705. The Secretary's tracer gas tests also demonstrated that, without 

the recommended provision, sufficient air to dilute methane concentrations did not reach the 

face. Concerning the suitability of the new provision, the Secretary's tracer gas tests showed that 

the new provision would adequately ventilate the face and dilute any methane concentrations 

present. 

Accordingly, we find that substantial record evidence supports the judge's finding that 

the previously approved plan was unsuitable and the new provision was suitable to conditions at 

the Martwick Mine. 

We reject Peabody's assertion that the judge based his decision, in part, on a mistaken 

belief that the Secretary's regulations require a certain level of ventilation during roof bolting. 

PDR at 8; P. Br. at 21-22. We agree with the Secretary (S. Br. at 19 n.9) that the judge did not 

rest his determination on an assumption that ventilation of deep cuts during roof bolting was 

691 
required by mandatory standards. Rather, the judge concluded that the Secretary had presented 

sufficient evidence to prove that such ventilation was suitable to the Martwick Mine. 15 

FMSHRC at 1705.

5 

Peabody also asserts that its prior plan required a deflector curtain in deep cuts. PDR at 

13; P. Br. at 27-28. If this is an argument that t~e prior plan contained the same line curtain 

requirement as the proposed provision, we reject it. The prior plan did not require installation of 

curtain before completion of roof bolting and did not specify minimum airflow or a particular 

length of line curtain, the requirements that the Secretary sought to impose in the new provision. 

We need not reach the Secretary's argument that, because a plan provision once approved 

by the Secretary has the same legal effect as a mandatory standard, he is to be accorded deference 

and the plan provision is to be reviewed under an arbitrary and capricious standard of review. S. 

Br. 26-28. The Secretary's position on this issue was rejected by the judge (see Order Denying 

Motion for Summary Decision, May 22, 1991) and the Secretary did not seek review. The issues 

on review were defined by the Commission's remand order and are narrowly focused--whether 

the Secretary carried his burden of proving that the previously approved plan was unsuitable and 

that the new plan provision was suitable to the conditions at the Martwick Mine. While we note, 

as did the court in UMWA v. Dole, 870 F. 2d at 669 n.10, that the plan approval process involves 

an element of judgment on the part of the Secretary,6 when that judgment is challenged, the 

Secretary must sustain his burden of proof with regard to suitability. 

5 Given our conclusion, we need not rule on Peabody's assertion that no minimum level 

of ventilation is required during roof bolting. However, we note that section 303(b) of the Mine 

Act, 30 U.S.C. § 863(b), requires delivery of a minimum quantity of3,000 cfm of ventilating air 

at each "working face." 

6 See also Monterey Coal Co., 5 FMSHRC 1010, 1019 (June 1983) (withdrawal of 

approval of water impoundment plan was not arbitrary or capricious where MSHA' s conduct 

throughout the process was reasonable). 

692 
III. 

Conclusion 

For the foregoing reasons, we affirm the judge's decision. 

Arlene Holen, Commissioner 

Marc Lincoln Marks, Commissioner 

693 
.. : 

·, Distribution 

David R. Joest, Esq. 

Peabody Coal Company 

1951 Barrett Court 

P.O. Box 1990 

Henderson, KY 42420 

Jerold S. Feingold, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd., Suite 400 

Arlington, VA 22203 

Administrative Law Judge Gary Melick 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, VA 22041 

694 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

LION MINING COMPANY 

1730 K STREET N.W. 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 23, 1996 

·Docket No. PENN 94-71-R 

BEFORE: Jordan, Chairman; Holen, Marks, and Riley, Commissioners' 

DECISION 

BY THE COMMISSION: 

This contest proceeding arising under the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § ·801 et seq. (1994) ("Mine Act" or "Act"), involves a citation issued to Lion Mining 

Company ('~Lion") alleging a violation of 30 C.F.R. § 75.220(a)(l) (1995) for failure to comply 

with its approved roof control plan.2 Administrative Law Judge T. Todd Hodgdon concluded 

that Lion violated the standard, but that the violation was not significant and sμbstantial ("S&S") 

and was not the result of Lion's unwarrantable failure. 16 FMSHRC 641(MMch1994) (ALJ). 

The Commission granted the Secretary of Labor's petition for discretionary review, which 

challenges the judge's S&S and unwarrantable failure determinations. For the reasons that 

follow, we vacate those determinations and remand. 

1 Commissioner Doyle participated in the consideration of this matter but resigned from 

the Commission before its final disposition. 

2 Section 75.220(a)(l) provides in pertinent part: 

Each mine operator shall develop and follow a roof control 

plan, approved by the District Manager, that is suitable to the 

prevailing geological conditions, and the mining system to be used 

at the mine .... 

695 
I. 

Factual and Procedural Background 

On November 17, 1993, Inspector Kenneth Fetsko of the Department of Labor's Mine 

Safety and Health Administration ("MSHA") inspected the four and one-half right pillar section 

("4Yi section") at Lion's Grove No. I underground coal mine near Jennerstown, Pennsylvania 

16 FMSHRC at 641; Gov't Ex. 9. He was accompanied by Lion's safety director, Mike Bittner. 

Tr. 32-33. At the 37/44 crosscut, between Pillar Block ("Block") 37 and Block 44, Fetsko 

observed a continuous miner loading coal into three or four shuttle cars in the roadway between 

Blocks 37 and 38. 16 FMSHRC at 641-42. Fetsko also saw Mine Superintendent Arthur Jones 

and Section Foreman Ted Marines across the roadway in the crosscut between Blocks 38 and 39. 

Id. The 38/39 crosscut had been roof bolted and breaker posts and radius tum posts had been 

installed, but roadway posts had not. Id. at 642, 646. Fetsko then observed the continuous miner 

make a notch cut from the right side of Block 37. Id at 642; Joint Ex. 1; Tr. 71. Marines left 

for a short time and, upon returning, ordered roadway posts delivered to the crosscut. 16 

FMSHRC at 647. Fetsko issued a citation to Lion under section 104(d)(l) of the Act, 30 U.S.C. 

§ 814(d)(l), for violating its roof control plan by failing to install roadway posts in the 38/39 

crosscut before making the notch cut.3 16 FMSHRC at 642; Gov't Ex. 1. Fetsko designated the 

violation S&S and alleged that it was the result of Lion's \J.nwarrantable failure. Id Lion abated 

the violation by installing four roadway posts in.the crosscut. 16 FMSHRC at 642; Gov't Exs. 1, 

4; Tr. 74, 86-87. 

Lion conceded the violation but contested the S&S and unwarrantable failure 

designations. 16 FMSHRC at 643. Accordingly, the judge found a violation. Id The judge 

concluded, however, that the violation was not S&S. Id. at 645-46. He found that the Secre~ 

failed to establish that a serious injury was reasonably likely to have resulted from Lion's failure 

to install the roadway posts. Id at 645. The judge determined that Lion~ fit the time, had several 

other means of preventing a roof fall. Id. at 646. He emphasized that the ill-ea in question had 

been completely roof bolted and that breaker posts and radius turn posts had also been installed. 

Id. Additionally, the judge stated it was not clear that the sole, or even the primary function, of 

roadway posts was roof support. Id. at 645. The judge also concluded Inspector Fetsko was 

mistaken in believing Block 37 had been mined previously, before the notch was cut. Id. at 646 

&n.4. 

The judge additionally concluded the violation did not result from Lion's unwarrantable 

failure, but rather resulted from moderate negligence. Id. at 647-48. He concluded record 

evidence was insufficient to demonstrate either that the mine superintendent or the section 

3 Lion's roof control plan requires that roadway posts be installed in roof bolted entries, 

rooms, and crosscuts to limit the roadway width to 18 feet. Gov't Ex. 2, note 7 to Drawing A 

(Plan for Installing Roof Supports for Pillar Recovery). 

69 6 
foreman "deliberately and consciously failed to act or engaged in aggravated conduct." Id. at 

647. Furthermore, he found that additional mining of Block 37 would not have taken place until 

after the roadway posts were installed. Id 

II. 

Disposition 

A. Sianificant and Substantial 

The Secretary argues the judge erroneously determined the violation was not S&S 

because he failed to find that the function of roadway posts was roof support and because he 

improperly gave weight to Lion's compliance with other parts of the roof control plan. S. Br. at 

5, 7-8. The Secretary also argues that the judge failed to consider adequately the history of roof 

falls in the 4Yz section and roof conditions at the time of the citation and that he failed to consider 

general evidence that roof falls are the leading cause of fatalities in mines. Id. at 5-6. 

In response, Lion submits that substantial evidence supports the judge's finding that the 

violation was not S&S. L. Br. at 7-16. Lion points to other roof support in the ·area. Id. at 10. It 

also argues that, at the time of citation, only a small part of the pillar had been mined and that 

further mining would not have taken place until .after roadway posts were installed. Id at 10-11. 

The S&S terminology is taken from section 104(d)(l) of the Act and refers to more 

serious violations. A violation is S&S if, based on the particular facts surrounding the violation, 

there exists a reasonable likelihood that the hazard contributed to will result in an injury or 

illness of a reasonably serious nature. Cement Div., Nat 'l Gypsum Co., 3 FMSHRC 822, 825-26 

(April 1981). In Mathies Coal Co., 6 FMSHRC l (January 1984), the Commi~sion further 

explained: ' 

In order to establish that a violation of a mandatory safety 

standard is significant and substantial under National Gypsum, the 

Secretary of Labor must prove: ( 1) the underlying violation of a 

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

measure of danger to safety--contributed to by the violation; (3) a 

reasonable likelihood that the hazard contributed to will result in 

an injury; and ( 4) a reasonable likelihood that the injury in question 

will be of a reasonably serious nature. 

Id. at 3-4~footnote omitted). See also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 135 (7th 

Cir. 1995); Austin Power, Inc. v. Secretary of Labor, 861F.2d99, 103 (5th Cir. 1988) (approving 

Mathies criteria). 

697 
Substantial evidence does not support the judge's S&S detennination.4 The judge's 

approach to weighing record evidence was unduly restrictive and reflects a misunderstanding as 

to the purpose of roadway posts. In concluding that the Secretary had not satisfied the third 

Mathies element, the judge emphasized that the area was completely roof bolted and contained 

breaker and radius posts. 16 FMSHRC at 646. Under the roof control plan, however, Lion was 

required to install roadway posts before it could commence mining Block 37, which would cause 

a reduction in roof support. Id. at 643; L. Posthearing Br. at 6; S. Posthearing Br. at 4-5. The 

judge failed to recognize that roof bolting and other posts were adequate support for roof 

conditions only before mining of the pillar. Thus, we conclude the judge erred in placing undue 

weight on the operator's compliance with the applicable roof bolting, breaker, and radius post 

requirements. · 

The judge also failed to understand that the function of required roadway posts was to 

provide roof support. The judge stated: 

[A ]ccording to the Dictionary of Mining, Mineral, and Related 

Terms 931 (1968) ["DMMRT'], roadway supports, which include 

roadway posts, serve two functions, to: "(I) ensure safety by 

preventing falls of ground, and (2) maintain the maximwn possible 

roadway size by resisting the tendency of the roadway to contract 

and distort." It is not at all clear from Lion Mining's roof control 

plan that the sole, or even the primary, function of the roadway 

posts in this case was to serve as roof support. 

16 FMSHRC at 645 (footnote omitted). The judge erred in failing to find that a principal 

function of roadway posts is roof support. He apparently did not realize that "falls of ground," 

cited by the DMMRT as a hazard against which roadway supports protect, refers to "[r]ock 

falling from the roof into a mine opening." DMMRT at 410. He also ndted that section 

75.207(c), 30 C.F.R. § 75.207(c), does not require installation of roadway posts until mining on 

4 The Commission is bound by the substantial evidence test when reviewing an 

administrative law judge's factual determinations. 30 U.S.C. § 823(d)(2)(A)(ii)(I). "Substantial 

evidence" means "such relevant evidence as a reasonable mind might accept as adequate to 

support [the judge's] conclusion." Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 

(November 1989), quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). While 

we do not lightly overturn a judge's factual findings and credibility resolutions, neither are we 

bound to affirm such determinations if only slight or dubious evidence is present to support 

them. See, e.g., Krispy Kreme Doughnut Corp. v. NLRB, 732 F.2d 1288, 1293 (6th Cir. 1984); 

Midwesf Stock Exchange, Inc. v. NLRB, 635 F.2d 1255, 1263 (7th Cir. 1980). We are guided by 

the settled principle that, in reviewing the whole record, an appellate tribunal must also consider 

anything in the record that "fairly detracts" from the weight of the evidence that supports a 

challenged finding. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951). 

698 
the final stump commences, which had not occurred here. 16 FMSHRC at 645 n.3. The judge's 

reliance upon section 75.207(c) is misplaced. That standard specifies procedures for pillar 

recovery that are required "unless otherwise specified in the roof control plan. "5 Lion concedes 

that its plan required roadway posts to be installed before pillars are mined in order to provide 

additional roof support. See Tr. 26, 38, 129; L. Br. at 4. 

We agree with the Secretary that the judge also erred in failing to consider the history of 

roof falls in the section. The area experienced roof falls on five occasions within two years prior 

to the instant violation. Gov't Exs. 3, 5, 6; Tr. 43; S. Br. at 6-7. Indeed, the previous day a roof 

fall occurred only two pillar blocks away from Block 37.6 Tr. 43, 50-51; Gov't Exs. 3, 5, 6. We 

reject the Secretary's argument, however, that the judge erred in failing to consider general 

evidence on the danger of roof falls. The Commission has held that an S&S determination must 

be based on the particular facts surrounding the violation, including the nature of the mine. See 

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

For the foregoing reasons, we vacate the judge's S&S determination and remand for 

further analysis. 

B. Unwarrantable Failure 

The Secretary argues that the judge failed to address adequately evidence that Lion had a 

history of roof falls and roof control plan citations in the section, including several for failing to 

install roadway posts. S. Br. at 9-11 . The Secretary also notes that both the mine superintendent 

and the section foreman observed the continuous miner removing coal from the pillar in violation 

of the roof control plan without ordering mining to cease. Id. at 9-12. 

Lion avers that, as soon as the section foreman became aware of the cited condition, he 

immediately ordered cessation of mining and the delivery of posts to the area. L. Br. at 18. Lion 

5 Section 75.207 provides in pertinent part: 

Pillar recovery shall be conducted in the following manner, 

unless otherwise specified in the roof control plan: 

( c) Before mining is started on a final stump .... 

6 -Inspector Fetsko testified that, between Blocks 38 and 39, he observed that the "rib was 

rolling," i.e., that pieces of the rib were breaking off. Tr. 39, 65-66. While the judge generalJy 

referred to this testimony in his decision, 16 FMSHRC at 645, he apparently did not consider it 

in his S&S analysis. On remand, he should do so. 

699 
also submits that the mine superintendent was not negligent because he had only recently been 

employed at the mine and was not familiar with all details of the roof control plan. Id at 18-19. 

Lion further argues that the violation existed for only the last ten seconds of the 20- to 30-minute 

period the inspector observed the continuous miner working. Id. at 20. 

The unwarrantable failure terminology is taken from section 104(d)(l) of the Act and 

refers to more serious conduct by an operator in connection with a violation. In Emery Mining 

Corp., 9 FMSHRC 1997 (December 1987), the Commission detennined that unwarrantable 

failure is aggravated conduct constituting more than ordinary negligence. Id. at 2001. 

Unwarrantable failure is characterized by such conduct as " reek.less disregard," "intentional 

misconduct," "indifference" or a "serious lack of reasonable care." Id. at 2003-04; Rochester & 

Pittsburgh Co.al Corp., 13 FMSHRC 189, 193-94 (February 1991); see also Buck Creek Coal, 

Inc. v. FMSHRC, 52 F.3d at 136 (approving Commission's unwarrantable failure test). 

In Mullins and Sons Coal Co., 16 FMSHRC 192, 195 (February 1994), the Commission 

set forth factors to be considered in making an unwarrantable failure analysis: "the extensiveness 

of the violation, the length of time the violative condition has existed, the operator's efforts to 

eliminate the violative condition, and whether an operator has been placed on notice that greater 

efforts are necessary for compliance." The Commission has also examined conduct of 

supervisory personnel in determining unwarrantable failure. A heightened standard of care is 

required of such individuals. See Youghiogheny.& Ohio Coal Co., 9 FMSHRC 2007, 2011 

(December 1987); S&H Mining, Inc., 17 FMSHRC 1918, 1923(November1995). 

The judge erroneously determined that Lion had never been cited for failing to install 

roadway posts. See 16 FMSHRC at 647. Lion received two such citations within two months of 

the subject citation for violations on the same section. Gov't Ex. 8. In addition, during the 

preceding nine months, MSHA cited Lion for four other roof control violations in the section. 

Id There were also five roof failures in the section within two years of the citation, including 

one roof fall the day before the citation. Gov't Exs. 3, 5, 6; Tr. 43; S. Br. at 6-7. This history of 

roof violations and roof falls should have placed Lion on notice that greater efforts were 

necessary for compliance. See Youghiogheny & Ohio, 9 FMSHRC at 2010-11; Peabody Coal 

Co., 14 FMSHRC 1258, 1261 (August 1992). 

The judge also observed that record evidence was not sufficient to establish that Mine 

Superintendent Jones and Section Foreman Marines "deliberately and consciously failed to act or 

engaged in aggravated conduct."7 16 FMSHRC at 647. Superintendent Jones saw the notch 

being mined and did not order mining to be stopped. Tr. 125, 128. The judge, however, noted 

~A "deliberate and conscious failure to act" is not determinative of an unwarrantable 

finding. See S&H, 17 FMSHRC at 1923. The judge, however, references and applies the 

correct test for determining unwarrantability. 16 FMSHRC at 646-47. See Emery, 9 FMSHRC 

at 2003-04; Roche.ster & Pittsburgh, 13 FMSHRC at 193-94. 

700 
Jones' testimony that he did not know about the roof control plan provisions concerning roadway 

posts and was not required to know all provisions of the plan. 16 FMSHRC at 647, citing Tr. 

124. Accordingly, the judge found that, even if Jones had a duty to know the roof control plan 

and breached that duty, the breach was "not necessarily an 'unwarrantable failure."' 

16 FMSHRC at 647. The judge did not consider that Jones had approximately 21 years of 

mining industry experience, had been employed by Lion as mine superintendent for eight 

months, and was in charge of safety and health at the mine. Tr. 121-22, 125. Jones also 

conceded that erecting roadway posts was "a common part of the roof control plan." Tr. 127. In 

addition, the judge should consider Jones' testimony that he believed the roof control plan 

allowed roadway posts to be erected after pillar extraction began (Tr. 128-29) and whether that 

interpretation was reasonable. See Cyprus Plateau Mining Corp., 16 FMSHRC 1610, 1615 

(August 1994). Consideration should also be given to the Secretary's admission that the plan did 

not expressly require that roadway post installation should occur before commencement of pillar 

extraction. S. Br. at 8 n.5. 

With respect to Foreman Marines, the judge found that Marines "left [the] area for a short 

time ... and that when he returned the last shuttle car was being loaded, including coal from the 

notch" and that "he told the shuttle car operator to return with timber to install the roadway 

posts .... " 16 FMSHRC at 647. ·Marines testified that he saw the notch being cut and did not 

order mining to cease "till [the continuous miner operator] finished that shuttle car." Tr. 134, 

135, 137. The judge should have considered in his analysis that Marines observed the violation 

in progress and failed to immediately order cessation of mining. The continuous miner operator 

also testified that he intended to continue mining at the time in question. Tr. 112. The judge 

should reconsider his findings in light of this testimony. 

The judge did not determine whether Inspector Fetsko's presence served as the impetus 

for ordering the roadway posts. Although he relied on Marines' testimony that tpe inspector did 

not explicitly remind him to install the posts, 16 FMSHRC at 647, the judge did not evaluate the 

potential influence of the inspector's presence. Moreover, the inspector had conversations with 

other management officials in which he pointed out the lack of roadway posts. 8 In reconsidering 

his finding that "further mining of Pillar Block 37 would not have taken place until after the 

roadway posts were installed/' the judge should take into account the inspector's presence and 

the conversations between the inspector and mine officials. Id. 

We vacate the judge's determination and remand for further analysis of whether the 

violation resulted from Lion's unwarrantable failure. Clarification by the judge of the 

8 According to the inspector's notes and testimony, immediately after he pointed out the 

problem to one of the management officials, that official looked over to where Jones and Marines 

were in the crosscut and then went over and started measuring for posts. Gov't Ex. 5; Tr. 34-36. 

During the time Inspector Fetsko observed the area, he could see that Jones was in the crosscut 

between Blocks 38 and 39 the entire time, while Marines left the area and returned. Tr. 40. 

701 
chronology of events will be relevant to his analysis. A judge must analyze and weigh the 

relevant testimony of record, make appropriate findings, and explain the reasons for his decision. 

Mid-Continent Resources, Inc., 16 FMSHRC 1218, 1222 (June 1994). 

HI. 

Conclusion 

For the foregoing reasons, we vacate the judge's determinations that the violation was not 

S&S and not the result of unwarrantable failure. We remand for analysis consistent with this 

opinion. 

Marc Lincoln Marks, Commissioner 

runes C. Riley, Commissioner 

702 

' 
Distribution 

Susan E. Long, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd., Suite 400 

Arlington, VA 22203 

Joseph.A. Yuhas, Esq. 

1809 Chestnut A venue 

P.O. Box25 

Bamesboro, PA 15714 

Administrative Law Judge T. Todd Hodgdon 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, VA 22041 

70 3 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEAL TH 

ADMINISTRATION (MSHA) 

V. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 28, 1996 

.. 

Docket Nos. WEST 95·95-M 

WEST 95-1 12·M 

GENERAL CHEMICAL CORPORATION WEST 94-583·RM through 

WEST 94-591·RM 

BEFORE: Jordan, Chairman; Holen, Marks and Riley, Commissioners 

ORDER 

BY THE COMMISSION: 

These civil penalty and contest proceedings arise under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seq. (1994). In June and July 1994, the Secretary of 

Labor issued nine citations to General Chemical Corporation ("General Chemical") alleging 

insubstantial stoppings in violation of 30 C.F.R. § 57.22218(a) (1995) and.a citation alleging a 

failure to report an accident in violation of 30 C.F .R. § 50.10 (Citation No. 4338810). In August 

1994, General Chemical filed notices of contest for all the citations except Citation No. 4338810. 

The nine citations became the subject of contest and civil penalty proceedings, while Citation 

No. 4338810 became the subject of only a civil penalty proceeding. On November 29, 1995, the 

Secretary filed a motion to vacate the civil penalty and contest proceedings. On December 12, 

1995, Administrative Law Judge August Cetti issued an Order of Dismissal. 

On March 18, 1996, the Commission received an Unopposed Motion for Amended Order 

of Dismissal from General Chemical. General Chemical states that, although Citation No. 

4338810 was part of the civil penalty proceeding that was dismissed, it was not specifically 

referenced in the dismissal order. Mot. at 3. It asserts that confusion may exist as to whether the 

dismissal order includes Citation No. 4338810. Id at 2. It therefore requests that an amended 

dismissal order be issued, specifically referencing Citation No. 4338810. Id at 3. 

The judge's jurisdiction over this case terminated when his dismissal order was issued on 

December 12, 1995. 29 C.F.R. § 2700.69(b) (1995). Relief from a judge's decision may be 

sought by filing a petition for discretionary review within 30 days of its issuance. 30 U.S.C. 

704 
§ 823(d)(2); 29 C.F.R. § 2700.70(a). If the Commission does not direct review within 40 days of 

a decision's issuance, it becomes a final decision of the Commission. 30 U.S.C. § 823(d)(l). 

General Chemical's motion was received by the Commission on March 18, after the judge's 

dismissal order had become a final decision of the Commission. Under these circumstances, we 

shall treat General Chemical's motion as a late-filed petition for discretionary review requesting 

amendment of a final Commission decision. See Transit Mixed Concrete Co., 13 FMSHRC 175, 

176 (February 1991). 

A final Commission judgment or order may be reopened under Fed. R. Civ. P. 60(b)(l) 

& (6) in circumstances such as mistake, inadvert~nce, excusable neglect, or other reasons 

justifying relief. 29 C.F.R. § 2700.l(b) (Federal Rules of Civil Procedure apply "so far as 

practicable" in the absence of applicable Commission rules); e.g., Lloyd Logging, Inc., 13 

FMSHRC 781, 782 (May 1991 ). The judge did not directly refer to Citation No. 4338810 in the 

caption or the body of the dismissal order. General Chemical asks that the order be amended to 

specifically reference Citation No. 4338810. The Secretary does not oppose the motion. 

Accordingly, we reopen these proceedings, grant the motion, and issue an Amended Order of 

Dismissal. See Martin Marietta Aggregates, 16 FMSHRC 189, 190 (February 1994). 

M ~.Li~ L~dan, Chai~an 

Marc Lincoln Marks, Commissioner 

705 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 28, 1996 

SECRETARY OF LABOR, 

MINE SAFETY AND HEAL TH 

ADMINISTRATION (MSHA), 

Petitioner 

GENERAL CHEMICAL CORPORATION, 

Respondent 

GENERAL CHEMICAL CORPORATION, 

Contestant 

V. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEAL TH 

ADMINISTRATION (MSHA), 

Respondent 

CIVIL PENAL TY PROCEEDINGS 

Docket No. WEST 95-95-M 

MSHA Case No. 48-00155-05644 

Citation Nos. 4338810, 4338812, and 

4338820 

Docket No. WEST 95-112-M 

MSHA Case No. 48-00155-05643 

Citation Nos. 4338813 through 4338819 

General Chemical Mine 

Mine I.D. 48-00155 

CONTEST PROCEEDINGS 

Docket Nos. WEST 94-583-RM through 

WEST 94-591-RM 

Citation Nos. 4338812 through 4338820 

General Chemical Mine 

Mine l.D. 48-00155 

BEFORE: Jordan, Chainnan; Holen, Marks and Riley, Commissioners 

AMENDED ORDER OF DISMISSAL 

BY THE COMMISSION: 

General Chemical Corporation ("General Chemical") has filed a Motion for Amended 

Order of Dismissal and the motion is unopposed by counsel for the Secretary of Labor, Mine 

Safety and Health Administration ("MSHA"). The motion having been considered, and good 

cause appearing: 

706 
Wherefore, it is ordered that the Order of Dismissal issued December 12, 1995, be 

amended to reflect that Citation No. 4338810 was included therein and is therefore dismissed. 

Arlene Holen, Commissioner 

Marc Lincoln Marks, Commissioner 

707 
Distribution: 

Matthew F. McNulty, III 

General Chemical Corporation 

50 South Main Street 

Suite 1600 

P.O. Box 45340 

Salt Lake City, UT 84145 

Chris Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Kristi Floyd, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1999 Broadway, Suite 1600 

Denver, Colorado 80202-5716 

Administrative Law Judge August F. Cetti 

Office of the Administrative Law Judges 

Colonnade Center, Room 280 

1244 Speer Boulevard 

Denver, Colorado 80204 

708 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, co 80204-3582 

303-844-5266/FAX 303-844-5268 

MAY 2 1996 · 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

C.W. MINING COMPANY, 

Respondent 

.. . 

. . 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 94-452 

A.C. No. 42-01697-03669 

Bear Canyon No. 1 

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

U.S . Department of Labor, Arlington, Virginia, 

for Petitioner; 

Carl E. Kingston, Esq., Salt Lake City, Utah, 

for Respondent. 

Before: Judge Cetti 

This case is before me upon a petition for assessment of 

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

and Health Act of 1977, 30 U.S.C. § 801 et seq. the "Act." The 

Secretary of Labor on behalf of the Mine Safety and\ Health Administration, (MSHA), charges the Respondent, c.w. Mining Company, 

the operator of the Bear Canyon No. 1 Mine with four regulatory 

safety violations found in Part 57 Title 30 Code of Federal 

Regulations. 

Respondent filed a timely answer denying each of the alleged 

violations. Pursuant to notice to the parties, this matter came 

up for hearing in Salt Lake City on April 2, 1996. 

At the hearing, counsel for the Secretary stated that Citation No. 3588363 is a 104(d)(l) citation for an alleged inadequate preshift examination for the second east pillar section of 

the mine. As part and reason for the inadequate preshift examination this citation mentions two other citations, Nos. 35883 61 

and 3588362, not in this docket which describe the actual conditions that were cited but allegedly were not observed in the 

preshift examination. These two underlying citations were in 

another docket heard by a different judge, i.e. Docket No. WEST 

94-380. With respect to the instant Citation No. 3588363, counsel for the Secretary stated: 

709 
That based on the decision in WEST 94-380 we 

reviewed again the instant citation for inadequate preshift examination and "because 

the two underlying citations have been 

changed now, and the (other) Judge held that 

the loose coal dust violation was a Non s and 

s violation, we felt that we should reduce 

this particular (d) (1) citation to a 104(a) 

citation and remove the S and S findings and 

reduce the penalty from $2,800.00 to $200.00, 

and that's what the parties have agreed to." 

The remaining three violations issued for a violation of 

sections 75.400, 75 . 1725(a} and 75.512 were discussed and reevaluated. After speaking to the inspector, a more accurate 

picture of the conditions stated in the citations was obtained. 

The parties agreed to modify Citation No. 3588365 from a 

104(d) (1) order to a 104(d) (1) citation and reduced the penalty 

to $1,000.00 pointing out that the underlying 104(d} (1) citation 

for the order no longer existed. 

The parties agreed on a penalty of $500.00 for Citation No. 

3588367 and $500.00 for Citation No. 3588367. 

Upon review of the record, including the information given 

at the hearing, I conclude the settlement agreed upon on the 

record at the hearing is consistent with the criteria in section 

llO(i} of the Act. 

ORDER 

In view of the foregoing it is ORDERED: 

1. Citation No . 3588363 is modified to a 104(a) citation 

with the S&S finding deleted and as so modified is AFFIRMED and a 

penalty of $200.00 is assessed for this violation. 

2. Order No. 3588365 is modified to a 104(d) (1) citation 

and as so modified is AFFIRMED and a penalty of $1,000.00 is 

assessed for the violation. 

3. Citation No. 3588366 is AFFIRMED as written and a penalty of $500.00 is assessed for this violation. 

4. Citation No. 3588367 is AFFIRMED as written and a penalty of $500.00 is assessed for this violation. 

710 
It is further ordered that c.w. Mining Company is shall PAY 

the Secretary of Labor civil penalties in the sum of $2,200.00 

within 30 days of this decision. 

Distribution: 

Aug t F . Cetti 

Administrative Law Judge 

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

Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

(Certified Mail) 

Carl E. Kingston, Esq., C.W. MINING COMPANY, 3212 South State 

Street, P.O. Box 15809, Salt Lake City, UT 84115 \ 

(Certified Mail) 

/sh 

711 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

303-844-3993/FAX 303-844-5268 

MAY 2 1996 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

FMC WYOMING CORPORATION, 

Respondent 

. . 

. . . 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 94-560-M 

A.C. No. 48-00152-05636 

: FMC Trona Mine . . 

. . 

DECISION 

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

U.S. Department of Labor, Arlington, Virginia, 

for Petitioner; 

Matthew F. McNulty, III, Esq., Van Cott, Bagley, 

Cornwall & McCarthy, P.C., Salt Lake City, Utah, 

for Respondent. 

Before: Judqe Cetti 

This case is before me upon a petition for assessment of 

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

and Health Act of 1977, 30 u.s.c. § 801 et seq. the "Act." The 

Secretary of Labor on behalf of the Mine Safety and Health 

Administration, (MSHA}, charges the Respondent,\ FMC Wyoming 

Corporation (FMC), the operator of the Trona Mirte with two 

violations of 30 C.F.R. ·s 57.14213 which require use of arc 

shields when arc welding is performed where persons could be 

exposed to the arc flash. 1 

Respondent filed a timely answer contending there was no 

violation. Pursuant to notice to the parties, the matter was set 

for hearing on April 2, 1996, at Salt Lake city. 

During the hearing, the parties on the record entered into a 

settlement agreement. It is undisputed that the inspector came 

by and saw a momentary arc flash that was promptly abated in each 

case. The operator, explaining why the matter had not been setoriginally this docket included 2 other citations charging 

violations involving methane monitoring and methane levels. Those 

citations were bifurcated into Docket No. WEST 94-560-M-A and previously resolved by my Decision Approving Settlement. 

712 
tled prior to hearing; stated that representatives of the local 

union felt the pnion welders involved were not violating the 

standard and were urging the operator not to settle the case. 

The operator requested the record to reflect that it is not admitting a violation but for "litigation purposes" is agreeing to 

a settlement of the issues involved in this case. Under the 

proffered agreement, FMC will pay a $50.00 civil penalty for each 

of the alleged violations. 

Upon review of the record, including the information given 

at the hearing, I conclude the settlement agreed upon on the 

record at the hearing is consistent with the criteria in section 

llO{i} of the Act. 

ORDER 

Accordingly, Citation No. 3906527 is AFFIRMED as written and 

a penalty of $50.00 is assessed. 

Citation No. 4405824 is AFFIRMED as written and a penalty of 

$50.00 is assessed. 

It is further ORDERED that FMC Wyoming Corporation PAY the 

approved civil penalties in the sum of $100.00 to the Secretary 

of Labor within 30 days of this decision. Upon receipt of paypayment, this case is dismissed. 

Distribution: 

Aug t F; Cetti 

Administrative Law Judge 

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

Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

(Certified Mail) 

Matthew F. McNulty, III, Esq., VAN COTT, BAGLEY, CORNWALL & 

McCARTHY, P.C. , 50 South Main Street, Suite 1600, P.O . Box 45340, 

Salt Lake City, UT 84145 {Certified Mail) 

/sh 

713 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

303-844-3993/FAX 303-844-5268 

MAY 2 1996 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA}, Docket No. WEST 94-699-M 

Petitioner A.C. No. 48-00152-05639 

v. 

FMC WYOMING CORPORATION, 

Respondent 

FMC Trona Mine 

DECISION 

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

U.S. Department of Labor, Arlington, Virginia, 

for Petitioner; 

Matthew F. McNulty, P.C., Salt Lake City, Utah, 

for Respondent. 

Before: Judqe cetti 

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

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

and Health Act of 1977, 30 u.s.c. § 801 et seq. the "Act." The 

Secretary of Labor on behalf of the Mine Safety · and Health Administration, (MSHA), charged the Respondent, FMC Wyoming Corporation (FMC}, the operator of the Trona Mine with the violation 

of two regulatory safety standards set forth in Part 57 Title 30 

Code of Federal Regulations. 

The operator filed a timely answer contending there were no 

violations of the cited safety standards. Pursuant to notice to 

the parties, the matter came up for hearing at Salt Lake City on 

April 2, 1996. 

Citation No. 4405834 alleges a violation of 30 C.F.R. 

§ 57.14107(a) which requires the guarding of moving machine 

parts. At the hearing, counsel for the Secretary, after viewing 

pictures of the affected area, stated for the record that Citation No. 4405834 was being vacated. He explained on the record 

the reason why it was determined that the citation should be 

vacated. 

The coupling and drive shaft between the motor and the hoist 

was indeed guarded but there was a close question whether it was 

adequately guarded. At the hearing, after viewing the picture of 

714 
the guard and its related drive shaft and the coupling, the parties agreed the citation should be vacated. 

Originally this docket included Citation No. 4125239 which 

charged the operator with the violation of 30 C.F.R. § 57.5050 

involving exposure limits for noise·. This citation was vacated 

by MSHA. 

ORDER 

Both Citation Nos. 4405834 and 4125239 are VACATED and this 

case is DISMISSED. 

Distribution: 

Au st F. Cetti 

Administrative Law Judge 

Robert Cohen, Esq., Office of the Solicitor, U.S. D~partment of 

Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

(Certified Mail) 

Matthew F. McNulty, III, Esq., VAN COTT, BAGLEY, CORNWALL & 

McCARTHY, P.C., 50 South Main Street, Suite 1600, P.O. Box 45340, 

Salt Lake City, UT 84145 (Certified Mail) 

/sh 

715 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMI'.SSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

303-844-3993/FAX 303-844-5268 

MAY 2 l996 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. WEST 95-193 

Petitioner A.C. No. 42-01697-03675 

v. 

C.W. MINING COMPANY, 

Respondent 

. . Bear Canyon #1 

DECISION 

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

U.S. Department of Labor, Arlington, Virginia, 

for Petitioner; 

Carl E. Kingston, Esq., Salt Lake City, Utah, 

for Respondent. 

Before: Judge cetti 

This case is before me upon a petition for assessment of 

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

and Health Act of 1977, 30 u.s.c. § 801 et seq. the "Act." The 

Secretary of Labor on behalf of the Mine Safety. and Health Administration, (MSHA), charges the Respondent, c~w. Mining Company, the operator of Bear Canyon #1 Mine, with the violation of 

a respirable dust violation of the regulatory safety standard 30 

C.F.R. § 70.lOO{a). 

The single citation at issue describes the violation as 

follows: 

Based on the results of five valid dust samples collected by the operator, the average 

concentration of respirable dust in the working environment of the designated occupation 

code 036 in mechanized mining united 003-0 

was 1.9 milligrams which exceeded the applicable limit of 1.2 milligrams. Management 

shall take corrective actions to lower the 

respirable dust and then sample each production shift until five valid samples are taken 

and submitted to the Pittsburgh Respirable 

Dust Processing Laboratory. Approved respiratory equipment shall be made available to 

all persons working the area. 

716 
At the hearing, counsel for the Secretary stated that an 

older continuous miner, MMU 003-0, was operating under a reduced 

respirable dust level of 1.2 milligrams of respirable dust per 

cubic meters of air. The operator placed this older machine in a 

non-producing status and it was later scrapped. A new continuous 

miner was purchased and the new machine was also designated as 

MMU 003-3. MSHA inadvertently assigned the reduced standard of 

the old machine, MMU 003-0, to the new machine. The new machine 

should have been operating on a 2.0 milligrams or respirable 

level per cubic meters of air and not on the old reduced standard 

of 1.2 milligrams applicable to the old machine. When the 

operator sent in his samples on th~ new mechanized unit 003-3, 

the average concentration of respirable dust was 1.9 milligrams 

which was above the 1.2 milligrams standard which had erroneously 

been assigned . to the new machine but within the correct 2.0 

milligrams standard. 

Thus, it was clear that the citation was issued in error. 

Consequently Citation No. 9997061 is vacated. 

ORDER 

Citation No. 9997061 is VACATED and this case, Docket No. 

WEST 95-193 is DISMISSED. 

Distribution: 

Aug st F. Cetti 

Administrative Law Judge 

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

Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

(Certified Mail) 

Carl E. Kingston, Esq., C.W. MINING COMPANY, 3212 South State 

Street, P.O. Box 15809, Salt Lake City, UT 84115 

(Certified Mail) 

/sh 

717 
FEDERAL MINE SAP'ETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PllCf 

FALLS CHURCH, VIRGINIA 22041 

MAY 7 1996' 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. PENN 95-75 

A.C. No. 36-05018-04044 

v. 

Cumberland Mine 

CYPRUS CUMBERLAND RESOURCES 

CORPORATION, 

Appearances: 

Before: 

Respondent 

DECISXQN 

Joseph T. Crawford, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania, for the Petitioner; 

R. Henry Moore, Esq., Buchanan Ingersoll, P.C., 

Pittsburgh, Pennsylvania, for the Respondent. 

Judge Feldman 

This matter is before me as a result of a petition for civil 

penalty filed by the Secretary of Labor pursuant to section 

105 (d) of the Federal Mine Safety and Health Ac.t of 1977, 

(the Act), ·30 u.s.c. § 601 et seq. The petition seeks a civil \ 

penalty of $2800.00 for an alleged violation of a notice to 

provide safeguard that had been issued pursuant to section 

75.1403, 30 C.F.R. § 75.1403. The subject safeguard violation 

was designated as significant and substantial (S&S), and 

allegedly was attributable to the unwarrantable failure of Cyprus 

Cumberland Resources Corporation (Cumberland) . 

This case was heard on the merits on February 28, 1996, in 

Washington, Pennsylvania. The parties' posthearing briefs are of 

record. For the reasons discussed below, the safeguard violation 

shall be affirmed. However, the Secretary has failed to carry 

his burden of establishing that the violation was properly 

characterized as S&S, or, attributable to the respondent's 

unwarrantable failure. Consequently, a nominal civil penalty of 

$100.00 shall be imposed. 

718 
Background 

Section 75.1403 authorizes a Mine Safety and Health 

Administration (MSHA)Inspector to issue safeguards that, in the 

inspector's judgement, are necessary to "minimize hazards with 

respect to transportation of men and materials .... " In 1980, 

CUmberland voluntarily installed ~ signal block light system to 

control traffic on its track haulage at the Cumberland Mine. 

Under this system, a track section, of varying length, is 

designated as a "block" by installation of a red light at each 

end. The red light at both ends of the block can be turned on or 

off from either end. The operator of a transport vehicle turns 

on the block lights upon entering the block, and turns off the 

block lights upon leaving the block. The block lights signal 

would-be operators seeking to enter a block whether the track in 

the block is in use. 

Over the last 15 years, since the installation of 

CUmberland's signal block system, MSHA has issued numerous 

safeguards at the Cumberland Mine. These safeguards include a 

safeguard requiring Cumberland to maintain its signal blocks, and 

a safeguard requiring a distance of 300 feet between vehicles 

traveling in the same block. 

Cumberland communicates information to personnel about its 

haulage system by various methods, including safety messages . On 

September 27, 1993, Cumberland issued the following safety 

message concerning use of its signal block system: · 

1. Stop before pulling onto the main line from any 

switch. Make sure nothing is coming before 

pulling out. Remember there may be more than one 

piece of equipment in a block light. Just because 

a block light isn't on, doesn't give you the 

right-of-way . Don't just pull onto the haulage. 

It's possible the power is off, the block light 

doesn't work or the operator of the on-coming 

vehicle missed the block light. If a block light 

is on, wait for a reasonable length of time, then 

proceed with caution. 

719 
2 . Block lights must be used by everyone as they 

trav.el the haulage. If a light doesn't work, you 

should proceed with caution. Report any lights 

that don't work. (Ex. R-4). 

MSHA Supervisor Robert Newhouse and M~HA Inspector 

Robert Santee testified the safety procedures outlined above were 

acceptable to MSHA. Cumberland disciplines employees who fail to 

follow proper haulage procedures. 

Preliminary Findings 

On October 25, 1993, MSHA Inspectors Frank Terrett and 

Robert Santee were inspecting the CUmberland facility. On that 

day, as Terrett was waiting to enter the mine in a mantrip, a 

crew exiting the mine in their mantrip was traveling too fast and 

bumped the vehicle in which Terrett was sitting. As a result of 

this incident, Terrett issued a safeguard, not in issue in this 

proceeding, requiring vehicles to be operated at speeds 

consistent with the conditions and the equipment used. 

Later that day, on October 25, 1993, Santee encountered a 

signal block light that had apparently been left on after the 

vehicle had left the block. Given this condition, and the 

previous incident involving Terrett, Santee issued Safeguard 

No. 3655478. This safeguard provided: 

The operator has installed signal block lights 

along the track haulage at several different locations 

to be used by track haulage equipment operators to assure 

such operators that a clear road exists. The signal 

block lights installed for the 60 Mains to "0" Butt 

switch were left on. 

This is a notice to provide safeguard requiring track 

haulage equip. operators to use the block lights installed 

along supply track haulage at the mine, to clear such 

lights (turn off after use} in order to assure approaching 

haulage equipment a clear road exists and also only l piece 

of haulage equipment shall be operated in the same block 

light except trailing locomotives that are an integral part 

of a trip may be operated the same block light. (Joint 

Stip. 2) 

720 
On November ·1, 1993, after discussions between Cumberland 

and MSHA, Santee, under the direction of his supervisor, modified 

the safeguard as follows: 

Safeguard No . 3655478 is hereby modified to delete 

the wording on the last 4 lines in the body of this 

notice to provide safeguard beginning after the word 

"and" which is the 8th word on line 9, and to be 

replaced with the following wording to read as: haulage 

equipment operating in the same block light, shall 

maintain a safe distance which will allow them to 

stop within the limits of visibility, but at no time 

shall they be closer than 300 feet. Haulage equipment 

operating in the same block light shall communicate, by 

some means, to be assured the signal block light will 

be turned off after the last haulage equipment exits 

the last block. (l.d ... J 

Thus, the modified safeguard removed the prohibition of more 

than one vehicle in the same block, and, substituted the 

requirement that vehicles in the same block must maintain a 

minimum distance of 300 feet. The modified safeguard also 

required operators of equipment in the same block to communicate 

(by hand signals) to ensure that the operator of the last vehicle · 

turns off the block light as he exits the block. 1 

Cumberland transports material and miners in t~o different 

varieties of battery powered mantrips called duckbil\J.s and 

crickets. Generally speaking, mantrips are personnel carriers 

with covered compartments on either end for passengers. Mantrips 

are operated from a position between the two passenger 

compartments. Duckbills are similar to mantrips except the cover 

for one of the compartments is removed to enable supplies to be 

transported in the open end. Crickets are small, slow-moving 

personnel carriers that hold four persons. Duckbills are faster 

than crickets, but travel only 5 to 8 miles per hour. 

1 Inspector Santee and MSHA Supervisory Inspector 

Robert Newhouse testified that Cumberland's haulage car operators 

relied on verbal communication or hand signals. MSHA does not 

require the haulage vehicles to be equipped with two-way radios. 

(Tr. 74-75, 86, 112, 158-59). 

721 
On July 14, 1994, maintenance foreman Doug Conklin and 

hourly mechanic Mark Zuspan were entering the mine in a duckbill 

operated by Zuspan. Zuspan was an experienced operator. He 

frequently used the haulage track, and he was familiar with the 

signal block system. Zuspan and Conklin traveled in the duckbill 

down the 57 Mains ·Haulage to where the 55 North haulage turns to 

the left . The lA block (first block} on the 55 North haulage off 

the 57 Mains is 1,200 feet long. There is a curvature in the 

track entering the 55 North haulage that obscures visibility down 

the full length of the track. Conklin and Zuspan testified that, 

as they. approached the signal switch for the lA block in the 

SS North haulage, they observed the lA block lights were 

illuminated. 

A motor attached to two rockdust tanks and a trailing.motor 

were coming out of the SS North haulage and about to enter the 

57 Mains. Conklin exited the duckbill to throw the track switch 

so Zuspan could pull the duckbill past the SS North haulage. 

This permitted the rockdust cars to turn right on the 57 Mains to 

continue out of the mine. As the dustcars passed the duckbill, 

Zuspan and the operator of the first motor signaled to each other 

that they could "have" the others' block light. However, due to 

a curvature in the track, the operator of the second motor could 

not see Zuspan's signal to the first motor operator. As Zuspan 

was moving his duckbill inby on the 57 Mains to clear the way for 

the outby route of the dustcars, the second motor operator 

apparently turned off the lA block light. Both Zuspan and 

Conklin lost sight of the lA block because of Zuspan's 

maneuvering of the duckbill and Conklin's switching of the track 

to allow the duckbill to turn onto the 55 North haulage . 

During the interim period when the second motor operator 

turned off the signal lights and Conklin had switched the 

57 Mains track back to the direction of the 55 North haulage, a? 

inspection party in a cricket turned on the signal lights as it 

entered the lA block in the North haulage 1200 feet from the 

intersection with the 57 Mains. The inspection party consisted 

of Inspector Santee, CUmberland's representative Mike Konosky, 

and UMW representative David Chipps. After Conklin reentered the 

duckbill, Zuspan entered the 55 North haulage under the mistaken 

belief that the lights activated by the inspection party were 

left on by the dustcar motorman. 

722 
As Zuspan came out of. the curve at the beginning of the 

lA Block, he observed the lights from the inspection party's 

cricket at the other end. The track was straight, visibility was 

good, and the cricket was slow moving. Zuspan had plenty of time 

and pulled into the 55 North switch and waited for the cricket to 

pass. While Zuspan and Conklin were waiting, Conklin exited the 

duckbill to check on a nearby belt drive. 

The inspection party had also observed the duckbill from the 

other end of the block. As they ·traveled down the 1A Block, 

Santee informed Konosky that he was issuing a citation for 

violation ot the signal block safeguard. Santee testified that 

the first conversation he had with Zuspan upon arriving at the 

lA switch was about Zuspan's assumption that the block lights had 

been left on by the motor crew. (Tr. 99, 226). When Conklin 

returned from the belt drive, Santee learned that Conklin was a 

foreman who had accompanied Zuspan in the duckbill. 

Consequently, Santee informed Konosky that the citation "just 

became an unwarrantable failure.μ (Tr. 238, Gov. Ex. 5, p.17-

18). Santee testified Conklin "confirmed" Zuspan's statement 

concerning the block lights and the motor crew. (Tr. 99). 

As a result of Santee's observations and discussions with 

Zuspan and Conklin, Santee issued 104(d) (2) Order No. 3672055 

alleging the following safeguard violation: 

The ML204 motor being operated by Mark Zuspan\ under the 

supervision of Doug Conklin (Maint. Foreman) entered the 

signal block lights off 57 Main East Supply truck haulage 

onto 55 Face North signal track haulage between 1A junction 

as such lights had been turned on by the operator of the 

ML408 crickett which was traveling outby towards 57 Face 

North area 57 Main East junction. The ML 204 motor entered 

such signal block light without assuring that a clear road 

exists and the Maint. [F]oreman is an acting agent of the 

operator. There were 16 violations issued during the last 

inspection period from 04-01-94 to 06-30-94 of 30 CFR 

75.1403. (G-1). 

723 
Further Findings and Conclusions 

a. The Validity of the Safeguard 

The threshold issue in this proceeding is whether Safeguard 

No . 3655478, issued by Santee on October 25, 1993, as amended, is 

valid. The Commission has noted that section 314(b) of the Act, 

30 U.S.C. § 874(b), commits to the Secretary, through his MSHA 

inspectors, broad discretion to issue safeguards, without 

operator consultation, in orde'r "to guard against all hazards 

attendant upon haulage and transport[ation] in coal mining . " 

Southern Ohio Coal Company, 14 FMSHRC l, 8 (January 1992); 

Jim Walter Resources. Inc., 7 FMSHRC 493, 496 (April 1985) . 

In order to issue a notice to provide safeguards, an 

inspector must: (l) determine that there exists at the mine an 

actual transportation hazard not covered by a mandatory standard; 

(2) determine that a safeguard is necessary to correct the 

hazardous condition; and (3) specify the corrective measures that 

the safeguard should require. 14 FMSHRC at 8 . 

In considering Cumberland's obligations to maintain and use 

its block light system, it is axiomatic that one who chooses to 

act although there is no duty to act, must act prudently to avoid 

exposing others to harm. Thus, although CUmberland was not 

required to install its signal block system, having elected to do 

so, CUmberland is resposible for maintaining th~ system and 

ensuring that its personnel comply with its block light safety 

procedures. Cumberland recognized this responsibility in its 

September 27, 1993, safety message which reminded its personnel 

that "[b]lock lights must be used by everyone as they travel the 

haulage." (Ex. R-4) . 

Santee's testimony that he observed a block light on when he 

issued the subject safeguard on October 23, 1993, is 

uncontradicted . Although the circumstances surrounding this 

condition are unknown, this condition manifested a failure to 

adhere to Cumberland's block light procedures. Thus, it was 

within Santee's discretion to conclude that the failure to follow 

cumberland's block light safety policy posed a transportation 

hazard at the Cumberland Mine, and that a safeguard notice was 

necessary to ensure compliance. As noted below, the safeguard, 

as amended,. adequately set forth the corrective measures 

724 
required. Consequently, I conclude that Safeguard No. 3655478 

was validly issued . 

b. Fact of violation 

The subject safeguard, as amended, established four things 

that operators of haulage equipment must do. They are: 

1. Equipment operators are to use the signal block lights 

installed along supply •track haulage at the mine. 

2 . Equipment operators are to clear such lights (turn off 

after use) in order to assure approaching haulage 

equipment a clear road exists. 

3 . Haulage equipment operating in the same block light, 

shall maintain a safe distance which will allow them to 

stop within the limits of visibility, but at no time 

shall they be closer than 300 feet . 

4. Haulage equipment operating in the same block light 

shall commu~icate, by some means, to be assured the 

signal block light will be turned off after the last 

haulage equipment leaves the light block. (J-3) 

In applying the safeguard requirements to the facts in this 

case, it is necessary to rule on the credibility of Zuspan and 

Conklin concerning their testimony that they mistakenly assumed 

the dustcar motor operators had left the block lights on for 

them. While self-serving exculpatory statements must be viewed 

cautiously, such statements are entitled to greater weight if 

they were made spontaneously to the on-site inspector, rather 

than if the explanation was first presented at trial. 

In this case, Santee's testimony is entirely consistent with 

the testimony of Zuspan and Conklin concerning the exculpatory 

statements they made to Santee when the 104(d) (2) Order was 

issued on July 14, 1994. Moreover, although given the 

opportunity at trial, Santee did not discredit the story related 

to him by Zuspan and Conklin . In fact, Santee testified that, 

although he did not recall seeing any motors in the lA block, he 

had no reason to doubt Zuspan's story. (Tr. 135-36). 

Accordingly, I conclude that Zuspan maneuvered the duckbill into 

725 
the 55 North haulage under the mistaken belief that the block 

lights had be~n left on by the dustcar motorman. 

Under this scenario, the first three requirements of the 

safeguard were not violated in .that the block lights were used, 

they were turned off by the rear motorman, and, there was no 

operation of vehicles in the same block within 300 feet of each 

other (in the same direction). However, the Secretary has 

prevailed in establishing a violation of the safeguard's fourth 

requirement. By Zuspan and Conklin's own admissions, there was a 

failure of communication between them and the dustcar motormen to 

assure t~at there was no misunderstanding concerning the status 

of the block lights as Zuspan's duckbill entered the lA block of 

the 55 North haulage. Consequently, the record supports the fact 

of the violation of the safeguard in question. 

c. Significant and Substantial 

A violation is properly designated as S&S in nature if, 

based on the particular facts surrounding that violation, there 

exists a reasonable likelihood that the hazard contributed to [by 

the violation] will result in an injury or an illness of a 

reasonably serious nature. Cement Division. National Gypsum, 

3 FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1 

(January 1984) the Commission explained: 

In order to establish that a violation of a mandatory 

safety standard is significant and substantial under 

National Gypsum, the Secretary of Labor must prove: 

(1) the underlying violation of a mandatory safety 

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

measure of danger to safety -- contributed to by the 

violation; (3) a reasonable likelihood that the hazard 

contributed to [by the violation] will result in an 

injury; and (4) a reasonable likelihood that the injury 

in question will be of a reasonably serious nature. 

6 FMSHRC at 3-4. 

See also Austin pqwer Co. y. Secretax:y, 861 F.2d 99, 104-05 

(5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021 (December 1987) 

(approving Mathies criteria) . 

726 
As noted above, it is crucial that resolution of whether a 

particular viol~tion is S&S must be based "on the particular 

facts surrounding the violation .... " Texasgulf. Inc., 10 FMSHRC 

498, 501 (April 1988). With the exception of respirable dust 

violations that are presumed to be S&S because of the cumulative 

effects of respirable dust inhalation, issues concerning S&S and 

unwarrantable failure must be decided on a case-by-case basis. 

S.e.e Consolidation Coal Co., 8 FMS~C 890, 898 (June 1986), aff'd 

824 F.2d 1071 (D.C. Cir. 1987). In fact, the Commission has 

recently rejected the concept of relying on rebuttable 

presumptions ·to resolve questions of unwarrantable failure. 

Peabody Coal Company, 18 FMSHRC ~i slip op . at 5 (April 19, 

1996). 

Thus, although violations may appear to be S&S and/or 

unwarrantable, an examination of the particular facts surrounding 

the violation may preclude such characterizations. For example, 

although mining a pillar in violation of a roof control plan 

would ordinarily manifest an unwarrantable failure, the violation 

is not unwarrantable where the facts of the particular violation 

support the operator's contention that contact with the pillar by 

the continuous miner operator was inadvertent . s & H Mining. 

ln.c....., 18 FMSHRC SO (January 1996) (ALJ). 

In the instant matter, this violation of the ~afeguard 

did not occur because of a conscious, reckless, or ~ven careless, 

disregard of the operational block lights. Such conduct 

surrounding a violation would justify an S&S designation, 

particularly when viewed in the context of continued normal 

mining operations. Halfway Incox:porated, 4 FMSHRC 8, 12-13 

(January 1986). 

Here, this violation occurred because of Zuspan's mistaken 

belief that the block light was left on intentionally by the 

motorman who had just exited the block. Under such 

circumstances, it was highly unlikely that a haulage vehicle 

would be trailing closely behind the dustcars, and pose a hazard 

to occupants in Zuspan's duckbill. In other words, Zuspan was 

provided with cover by entering the SS North haulage track 

immediately after the dustcars exited the track. 
In the final analysis, the Secretary has the burden of 

proving that a violation is S&S. Union Oil of Cal., 11 FMSHRC 

289, 298-99 (March 1989). Give·n the 1200 foot length of straight 

track in the lA block immediat~ly after the initial curve off the 

55 Mains, the good visibility, the slow speed of haulage 

vehicles, and the protection from other vehicles provided by the 

exiting dustcars, the Secretary has failed to satisfy the third 

element of Mathies that there was a reasonable liklihood that the 

hazard contributed to by this, violation would result in an 

accident causing injury. Accordingly, the S&S designation shall 

be deleted. 

d. Unwarrantable Failure 

Unwarrantable failure is 11 aggravated conduct, constituting 

more than ordinary negligence, by a mine operator in relation to 

a violation of the Act." Emery Mining Cm:;poration, 9 FMSHRC 1997 

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

(December 1987); Secretary of Labor y. Rushton Mining Company, 

10 FMSHRC 249 (March 1988). In distinguishing aggravated conduct 

from ordinary negligence, in Youghiogheny & Ohio the Commission 

stated: 

We stated that whereas [ordinary] negligence is conduct 

that is 'inadvertent,' 'thoughtless,' or 'inattentive,' 

unwarrantable conduct is conduct that is described as 

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

unwarrantable failure by a mine operator as aggravated 

conduct constituting more than ordinary negligence, do 

unwarrantable failure sanctions assume their intended 

distinct place in the Act's enforcement scheme. 

9 FMSHRC at 2010. 

Under the Act, an operator is liable for its employees' 

violations of the Act and the mandatory standards. Western 

Fuels-Utah. Inc., 10 FMSHRC 256, 260-61 (March 1988), aff'd on 

other grounds, 870 F.2d 711 (D.C. Cir. 1989); Asarco. Inc., 

8 FMSHRC 1632, 1634-36 (November 1986), aff'd, 868 F.2d 1195 

(10th Cir. 1989}; Southern Ohio Coal Co. ("SOCCO"}, 4 FMSHRC 

1459, 1462 (August 1982). Once liability is determined, the 

728 
negligent actions of an operator's "agent" 3 are imputable to the 

operator for the purpose of· assessing civil penalties. Mettiki, 

13 FMSHRC at 772; E..&.£, 13 FMSHRC at 194-98; socco, 4 FMSHRC at 

1463-64. However, "[t]he conduct of a rank-and-file miner is not 

imputable to the operator in determining negligence for penalty 

purposes." Fort Scott Fertilizer-Culler. Inc., 17 FMSHRC 1112, 

1116 (July 1995} (citing SOCCO, 4 FMSHRC at 1464). "Rather, the 

operator's supervision, training, and disciplining of [rank-andfile] miners is relevant." .I.d.... {citing socco, 4 FMSHRC at 1464; 

Western Fuels, 10 FMSHRC at 261) . . 

The evidence reflects Santee initially was inclined to issue 

a 104(a) citation that did not charge CUmberland with an 

unwarrantable failure. Significantly, Santee did not view 

Zuspan's conduct as aggravated conduct. (Tr. 134-35). It was 

only after Santee learned that Foreman Conklin accompanied Zuspan 

in the duckbill that Santee charged the violation was 

unwarrantable. (Tr. 138-40). As noted above, Zuspan's 

negligence, as a rank-and-file employee, normally cannot not be 

imputed to Cumberland even if Zuspan's conduct was aggravated 

conduct. Only if Conklin engaged in aggravated conduct, or, if 

Conklin failed to adequately supervise Zuspan, can the 

unwarrantable failure charge be affirmed. 

In the first instance, the Secretary has failed to persuade 

me that either Zuspan or Conklin's conduct manifested more than 

ordinary negligence. As I noted at trial, it is difficult to 

imagine what would motivate ~ Zuspan and Conklin \o recklessly 

or consciously turn on to a single track with block lights 

reflecting that a vehicle was proceeding down the track in the 

opposite direction. (B.e..e. Tr. 206-09) . 4 The futility of two 

vehicles heading in opposite directions on a single haulage track 

3 Section 3(e} of the Mine Act defines "agent" as "any 

person charged with responsibility for the operation of all or a 

part of a ... mine or the supervision of the miners in a ... mine 

" 30 u.s.c. § 802(e). 

• The Secretary conceded the only reason Zuspan and Conklin 

would enter the block with the light on was if they believed the 

light was left on for them and no other traffic was coming in the 

opposite direction. (Tr. 208-09). 

729 
supports Cumberland's assertion that this incident occurred 

because of a misunderstanding between Zuspan and Conklin, and the 

dustcar motormen . This misunderstanding, while unfortunate, 

cannot be characterized as aggravated conduct. In addition, 

Zuspan's failure to wait a reasonable period of time before 

entering the block is not indicative of high negligence given his 

mistaken belief that the block lights had been left on for him. 

Having concluded that there was a simple miscommunication, 

the record does not reflect a +ack of supervision or training by 

Conklin with respect to his oversight of Zuspan. Santee also 

agreed that Zuspan's conduct was not attributable to a lack of 

training. · (Tr. 138). Although it is true that a foreman is held 

to a higher standard of care given his management role, a 

violation is not unwarrantable per se simply because it occurred 

in the presence of supervisory personnel. ~ S&H Mining. Inc., 

17 FMSHRC 1918, 1923 (November 1995), citing Youghiogheny & Ohio, 

9 FMSHRC at 2011. Accordingly, Order No. 3672055 shall be 

modified to a 104(a} citation to reflect the cited violation of 

the safeguard was not attributable to Cumberland's unwarrantable 

failure. 

e. Ciyil Penalty 

Section llO(i) of the Mine Act requires the consideration of 

six penalty criteria in assessing the appropriate civil penalty. 

30 U.S.C. § 820(i}; see generally Sellersburg Stone Co .. y. 

FMSHRC, 736 F.2d 1147, 1150-51 (7th Cir. 1984). ·Significant 

considerations among these statutory penalty criteria are the 

gravity of the violation and the degree of the operator's 

negligence . 

Having determined that it was unlikely, given the 

circumstances of this case, that the hazard contributed to by the 

instant safeguard violation would result in an injury related 

accident, the gravity of the violation is most appropriately 

characterized as non-serious. Although Order No. 3672055 

specified the degree of Cumberland's negligence as "high," as 

discussed above neither Zuspan nor Conklin's conduct was 

indicative of more than ordinary, moderate negligence, and there 

is no basis for imputation of zuspan's negligence to cumberland. 

730 
The remaining criteria in section llO(i) are not 

particularly meaningful in assessing the appropriate civil 

penalty in this matter. The prior notice provided by MSHA's 

issuance of 16 citations citing alleged safeguard violations in 

the two year period preceding the issuance of the subject 

citation is not material because this violation resulted from a 

misunderstanding rather than a disregard of the block light 

procedures. 

Given the reduction in gravity from serious to non-serious, 

and the reduction in the degree of negligence from high to no 

more than moderate, consistent with the llO{i) penalty criteria, 

I am assessing a civil penalty of $100.00 for modified 104(a) 

Citation No. 3672055. 

ORDER 

Accordingly, 104(d) (2) Order No. 3672055 IS MODIFIED to a 

l04(a) citation to reflect that the cited violation was not 

attributable to Cypress Cumberland Resources Corporation's 

unwarrantable failure. In addition, l04(a) Citation No. 3672055 

IS FURTHER MODIFIED to delete the significant and substantial 

designation. 

IT IS ORDERED that Cypress Cumberland Resources Corporation 

pay a civil penalty of $100.00 in satisfaction of Citation 

No. 3672055. Upon timely receipt of payment, this do.,cket . \ proceeding IS DISMISSED. • 

Administrative Law Judge 

Distribution: 

Joseph T. Crawford, Esq . , Office of the Solicitor, 

U.S. Department of Labor, 3535 Market Street, Room 14480, 

Philadelphia, PA 19104 (Certified Mail) 

R. Henry Moore, Esq., Buchanan Ingersoll, One Oxford Centre, 

301 Grant Street, 20th Floor, Pittsburgh, PA 15219-1410 

(Certified Mail) 

/mca 

731 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

303-844-3577/FAX 303-844-5268 

MAY 7 1996. 

ROSS S. STEWART, DISCRIMINATION PROCEEDING 

Complainant 

v. . .. Docket No. WEST 95-27-D 

TWENTYMILE COAL COMPANY, 

Respondent 

Foidel creek Mine 

Appearances: 

. Before: 

DECISION 

Brian L. Lewis, Esq., Denver, Colorado, for 

Complainant; 

R. Henry Moore, Esq., Buchanan Ingersoll, 

Pittsburgh, Pennsylvania for Respondent. 

Judge Manning . 

This case is before me on a complaint of discrimination 

brought by Ross s. Stewart against 1'wentymile Coal Company 

("Twentymile") under section 105(c) of the Federal Mine Safety 

and Health Act of 1977, 30 U.S . C. § 815(c)(1988) ("Mine Act"). 

For the reasons set forth below, I find that Mr. Stewart did not 

establish that his discharge by Twentymile was motivated by his 

protected activity. Accordingly, I find ~hat Mr. Stewart was not 

discriminated against by Twentymile in violation of the Mine Act. 

Mr. Stewart filed a discrimination complaint with the 

Department of Labor's Mine Safety and Health Administration 

("MSHA") pursuant to section 105(c)(2) of the Mine Act, 30 u.s.c. 

§ 815(c) (2). MSHA concluded that the facts disclosed during its 

investigation did not constitute a violation of section 105(c). 

Mr. Stewart then instituted this proceeding before the Commission 

pursuant to section lOS(c) (3), 30 u.s.c. § 815(c) (3). A hearing 

was held in Steamboat Springs, Colorado. The parties presented 

testimony and documentary evidence, and filed post-hearing 

briefs. 

FINDINGS OF FACT 

Mr. Stewart was employed by Twentymile at the Foidel Creek 

Mine for about ten years. During that period, he held a number 

of positions with Twentymile and was a shuttle car operator at 

the time of h~s discharge. The Foidel creek Mine is an underground coal mine in Routt County, Colorado, and employs about 280 

people. 

732 
on the day shift of May 16, 1994, Mr. Stewart was operating 

a shuttle car in a continuous miner section. The section was 

developing entries in preparation for longwall mining. Two 

shuttle cars were transporting coal from the continuous mining 

machine to the belt. The shuttle cars dumped the coal at the 

feeder breaker for the belt. In a typical shift, Mr. Stewart 

would make about 50 trips from the continuous miner to the feeder 

breaker. A shuttle car is a large piece of mobile mining equipment. The operator sits in a small compartment and faces the 

opposite side of the shuttle car .. He can see to the front and 

back of the shuttle car through openings in the operator's 

compartment. 

Allen Meckley was Mr. Stewart's supervisor from late September 1993 through May 16, 1994. on May 16 Mr. Meckley was in the 

vicinity of the feeder breaker when he observed Mr . Stewart dump 

several loads of coal. On one trip Mr. Meckley noticed that the 

conveyor on the shuttle car continued to operate after all of the 

coal was dumped. (Tr. 41~ ) . Because Mr. ·Stewart did not back 

away from the feeder breaker after the coal was dumped, Mr. Meckley was concerned that Mr. Stewart was asleep. (Tr. 431, 499}. 

Meckley approached the shuttle car and stood to the side of the 

operator's compartment. Mr. Stewart did not react to his presence. (Tr. 500). Mr. Stewart's head was down, his hands were 

in his lap, and Mr. Meckley believed that his eyes were closed. 

(Tr. 30, 154-55, 430, 500-01). The conveyor of the shuttle car 

was still running. (Tr. 27, 154). Meckley tapped Stewart on the 

shoulder. When Stewart looked up, Meckley said, "Ross, are you 

sick? 11 (Tr. 28, 419,· 501). Mr. Stewart replied, 11 No." Id. 

Meckley told Stewart to park his shuttle car and get his lunch. 

They then proceeded out of the mine. On the way out Meckley 

said, "I think you know why we are going outside, I told you the 

next time I caught you sleeping we were going out." (Tr. 32-33, 

157, 435, 501-02). Mr. Stewart replied, "Yeh, I know" or "If 

that's what you want to call it." {Tr. 33, 435). 

At the surface, Mr. Stewart was advised that he was suspended pending an investigation as to the appropriate discipline. 

Mine management conducted an investigation into the matter, met 

with Mr. Stewart to obtain his views, and reached the conclusion 

that he should be terminated for sleeping .on the job. In reaching this conclusion, management took into consideration Mr. Meckley's belief that he caught Mr. Stewart sleeping underground in 

October 1993 and in December 1993. Mr. Stewart admits that he 

was drowsy when Mr. Meckley observed him in December 1993, but 

denies that he was asleep on May 16, 1994. {Tr. 143-44). 

Mr. Stewart maintains that he was terminated for engaging in 

activities that are protected under section 105(c) (1) of the Mine 

Act. 30 U.S.C. § 815(c) (1). First, he contends that he complained to management that Mr. Meckl"ey and other members of the 

crew reported to work with the smell of alcohol on their breath. 

733 
Second, he argues that he complained about the safety of the 

wheel rims on his shuttle car. Third, he maintains that he 

testified at a hearing before former Administrative Law Judge 

John A. Morris in a discrimination proceeding brought by Fred 

Peters against Twentymile. Mr •. Stewart contends that these 

activities were protected under the Mine Act and that he was 

terminated, at least in part, because of these activities. 

SUMMARY OF THE LAW 

Section lOS(c)(l) of the Mine Act protects miners from 

retaliation for exercising rights protected under the Mine Act. 

The purpose of the protection is to encourage miners "to play an 

active part in the enforcement of the Act" recognizing that, "if 

miners are to be encouraged to be active in matters of safety and 

health, they must be protected against any possible discrimination which they might suffer as a result of their participation." 

s. Rep. No. 181, tb Cong., 1st Sess. 35 (1977), reprinted in 

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

Cong., 2d sess., Legislative History of the Federal Mine Safety 

and Health Act of 1977, at 623 (1978). 

A miner alleging discrimination under the Mine Act establishes a prima facie case by proving that he engaged in protected 

activity and that the adverse action complained of was motivated 

in any part by that activity. Secretary on behalf of Pasula v. 

Consolidation Coal Co., 2 FMSHRC 2786, 2799-2800 (October 1980), 

rev'd on other grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981). The mine operator may rebut 

the prima facie case by showing either that no protected activity 

occurred or that the adverse action was in no way motivated by 

the protected activity. Secretary on Behalf of Robinette v. 

United Castle Coal Co., 3 FMSHRC 803, 817-18 (April 1981). If an 

operator cannot rebut the prima facie case in this manner, it may 

nevertheless affirmatively defend by proving that it was also 

motivated by the miner's unprotected activity and would have 

taken the adverse action in any event for the unprotected activity alone. Haro v. Magma Copper Co., 1935, 1937 (November 1982). 

Because direct evidence of actual diicriminatory motive is 

rare, illegal motive may be established through circumstantial 

evidence or a reasonable inference of discriminatory intent. 

Secretary on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 

2508, 2510-11 (November 1981), rev'd on other grounds sub nom. 

Donovan v. Phelps Dodge corp . , 709 F.2d 86 (D.C . cir. 1983). 

Examples of circumstantial evidence that tend to show discriminatory intent on the part of the mine operator include: (1) knowledge of the protected activityi (2) hostility or animus towards 

the protected activity; (3) coincidence in time between the protected acti~ity and the adverse action; and (4) disparate treatment of the complainant. Chacon, 3 FMSHRC at 2510. 

734 
DISCUSSION WITH FURTHER FINDINGS OF FACT 

AND 

CONCLUSIONS OF LAW 

There is no doubt that Mr. Stewart had a statutory right to 

voice his concerns about the safety of his workplace without fear 

of retribution by management. I find that Mr. Stewart's complaints about alcohol use and the safety of the wheel rims of the 

shuttle car, and his testimony at the Peters hearing were protected under the Mine Act. The issue.is whether his discharge was 

motivated in any part by this protected activity. 

1. Testimony at the Peters Hearing 

Mr. Stewart was subpoenaed to testify at a hearing before 

former Administrative Law Judge John A. Morris in Fred L. Peters 

v. Twentymile Coal Company. Mr. Stewart contends that Twentymile's decision to terminate him was motivated, at least in part, 

by the fact that he testified in this proceeding. The hearing 

was held on December 8, 1992. The adverse action in that case 

was a letter of discipline that was placed in Mr. Peters' file. 

In his decision, Judge Morris dismissed the discrimination complaint because he determined that the adverse action was not 

motivated in any part by Mr. Peters' protected activity. 15 

FMSHRC 704, 734 (April 1993). Stewart believes that his participation in the hearing angered mine management. He points to the 

fact that other employees were allowed to carry over vacation 

time from one year to the next and that he lost vacation days 

because he did not use them by a certain date. (Tr. 60-63). He 

attributes this disparate treatment to the fact that he testified 

at the Peters hearing. {Tr. 61). 

I find that Mr. Stewart's termination was not motivated in 

any part by the fact that he testified at the Peters hearing. 

First, it is worth noting that Mr. Peters, the complainant in 

that case, is still employed by Twentymile. It is highly unlikely that Twentymile would be motivated, in whole or in part, to 

terminate an employee because he testified under subpoena in a 

Commission proceeding while retaining the employee who brought 

the case in the first place. Other miners were subpoenaed to 

testify in that case and did not suffer any adverse consequences. 

(Tr. 105-07). It does not appear from the judge's decision that 

Mr. Stewart's testimony was particularly important in that case. 

Mr. Stewart lost his vacation days well before the Peters 

hearing. The record demonstrates that a number of employees 

including Mr. Stewart were allowed to carry over 1991 vacation 

leave into early 1992. He lost the vacation days that he carried 

735 
over because he did not use them by March 31, 1992. 1 The Peters 

hearing was held on December s, 1992. Thus, he did not lose 

vacation days in retaliation for his testimony. 

Finally, I credit the testimony of the applicable management 

witnesses that they did not consider the fact that he testified 

in the Peters case when they determined that Stewart should be 

terminated. Mr. Meckley was not involved in the Peters case and 

was an hourly employee at the time of the hearing. Ronald K. 

Spangler, Twentymile's manager ·of human resources, was a key 

player in the decision to terminate Mr. Stewart. · He was not 

employed by Twentymile at the time of the Peters hearing. 

Mr. Spangler testified that, during his investigation of the 

Stewart matter, the Peters hearing was only mentioned once. He 

was told by Daryl Firestone that Mr. Stewart was under the mistaken belief that Twentymile management was mad at him for testifying at the Peters hearing. (Tr. 298, 350-51). Mr. Firestone 

was Peters' supervisor who issued the disciplinary letter that 

was the subject of that case. Mr. Spangler further testifi~d 

that Firestone told him that Stewart's testimony was "more in 

favor of the Company." Id. Mr. Firestone testified that he was 

present when Stewart testified at the Peters hearing and believed 

that his testimony supported the company. (Tr. 634, 636). I 

conclude that Mr. Spangler did not consider Stewart's participation at the Peters hearing when he recommended to the. general 

manager that Stewart be terminated. William Ivy, general manager 

at Twentymile, made the ultimate decision to terminate 

Mr. Stewart and he testified that Stewart's participation in the 

Peters hearing was not a factor in his decision to terminate 

Mr . Stewart. (Tr. 595). 

2. Split Rim Complaint 

In May 1991, Mr. Stewart refused to operate his shuttle car 

because he believed it to be unsafe. (Tr. 97-98; Ex. R-4) . Specifically, he complained about the split rim wheel assembly on 

the shuttle car. He contends that the rim exploded and a nearby 

miner could have been injured. (Tr. 54-55). Each wheel rim on 

his shuttle car consisted of two pieces that were designed to be 

held together by the air pressure in the tire. Mr. Stewart believed that the rims were faulty and created a safety hazard. 

There is no question that this complaint was protected under the 

Mine Act . 

Other employees who were allowed to carry over vacation 

days from 1991 to 1992 d i d not lose any of this leave because 

they used it before the deadline of March 31, 1992. Mr . Stewart 

lost 10 days of vacation because he failed to use them in time, 

rather than in retaliation for protected activity under the Mine 

Act . 

736 
I find, however, that Mr. Stewart's termination was not 

motivated in any part by his complaint. The split rim incident 

was remote in time from the events in May 1994 that resulted in 

his termination. Mr. Meckley was not his supervisor in May 1991, 

but was an hourly employee on his crew. He has no recollection 

of the complaint. (Tr. 468-69). Mr. Spangler did not work for 

Twentymile at the time of the split rim complaint and did not 

learn about it until after Mr. Stewart was terminated. (Tr. 

323). Mr. Stewart did not raise this issue with Mr. Spangler 

during their meeting of June 2, 1994, when he was given the 

opportunity to present his views. (Ex. R-18). Mr. Ivy, the 

general manager, testified that he remembers hearing that about 

problems with· the rims but he does not recall any of the details. 

(Tr. 602). 

When Mr. Stewart complained about the safety of the wheel 

rims, his supervisor, Mr. Firestone, looked into the matter. 

(Tr. 637-38). Mr. Stewart's complaint was that the locking ring 

tab was not connected on the wheel rim. (Tr. 88, 539, 637-38, 

656). Mr. Firestone discussed the matter with the shift foreman. 

ML_ Joseph F. Hampton, a maintenance supervisor, and William G. 

Kendall, the manager of maintenance for Twentymile, called the 

company that supplied tires and rims for the mine. (Tr. 540, 

656-57). The supplier replied that the locking tabs are necessary only when the tire is being inf lated and that they were not 

necessary after that. (Tr. 540, 659-62). Mr. Kendall met with a 

representative of the rim supplier to discuss the split rim issue. He circulated a memorandum on May 24, 1991, explaining why 

the locking tabs are not necessary after the tire is inflated. 

(Tr. 658-59; Ex. R-4). Mr. Hampton also discussed the matter 

with Stewart. (Tr. 541-42). ' 

Mr. Stewart relies heavily on the fact that Twentymile had 

to scrap the wheel rims on his shuttle car as a result of his 

complaint, at a cost of up to $24,000.00, 2 and that the shuttle 

car was shut down for several hours. The record reveals that the 

rims had to be replaced because Frank Pavlisick, a maintenance 

foreman, welded the two parts of the wheel rims together without 

consulting his supervisors. (Tr. 662-63). The welding was unsafe and damaged the wheel rims. Id. It is apparent that mine 

management was concerned about the welding rather than Mr. Stewart's safety complaint. (Tr. 663). There is no credible evidence that the company held Mr. Stewart accountable for this 

matter. In addition, I cannot draw a reasonable inference of 

discriminatory intent. Management handled his complaint with the 

same degree of concern that it does all safety complaints. The 

record makes it clear that employees frequently shut down equip2 It is not clear from the record how many of the rims had 

to be replaced. For the purposes of Mr. Stewart's argument, I 

assume that all four were replaced. 

737 
ment for safety reasons and that employees are not disciplined 

for such conduct. Mr. Stewart did not have a history of shutting 

down equipment for safety reasons. (Tr. 98). He was not disciplined at the time of these events and I find that his termination 

was not motivated, directly or indirectly, by this safety 

complaint. 

3. Alcohol Use Complaints 

Mr. Stewart complained to management that miners were coming 

to work with the smell of alcohol on their breath. His concern 

was that the miners' judgment could be impaired and that mine 

safety was affected. Mr. Stewart testified that about four or 

five miners would come to work with the smell of alcohol on their 

breath; (Tr. 42-43). One of these miners was Allen Meckley, who 

was a bolter on his crew at the time. Stewart contends that when 

Meckley became his supervisor in September 1993, Meckley set out 

to get him fired in retaliation for his protected activity. He 

believes that Meckley harbored a grudge against him because of 

these complaints. 

All of the evidence relied upon by Mr. Stewart is circumstantial. Mr. Stewart maintains that Mr. Meckley was overtly 

hostile from the moment he became his supervisor. He argues that 

the issue of whether Twentyrnile had cause to discharge him "boils 

down to a 'swearing contest' between Mr. Stewart and Mr. Meckley." (Br. at 5). Stewart contends that because Meckley had an 

ulterior motive for alleging that he was sleeping, Meckley's 

testimony should not be credited. Mr. Stewart points to the fact 

that Meckley admitted that Stewart did not get along well with 

his fellow crew members. (Br. 7; Tr. 475). Stewart contends 

that the crew had a grudge against him because he was a "snitch". 

He points to the testimony of Charles L. Moss to support his 

position. Moss testified that when he was the crew's foreman, 

one of the crew members complained to him that Stewart was a 

snitch. (Tr. 180). In addition, Stewart testified that Hansel 

Burum, a former member of the crew, told him that he was a 

snitch. (Tr. 66). Finally, Stewart heard rumors in Craig, 

Colorado, where he lived, that "Allen [Meckley] finally got me." 

(Tr. 7 3) . 

Mr. Stewart discussed his concern about alcohol use with 

several of the mine's supervisors. When Mr. Moss was his supervisor, he complained that members of the crew had alcohol on 

their breath. (Tr. 182-83). On at least one occasion, Mr. Moss 

checked it out and could not detect any alcohol on the individual's breath. (Tr. 190-91). Around February 1993, Stewart complained to Mr. Ivy about alcohol abuse at the mine. (Tr. 47-49, 

112, 389, 595-99). He did not name any particular individuals. 

Mr. Ivy discussed the issue in a general manner at a crew meetting. Apparently several members of the crew made snide comments 

to Stewart about this. Mr. Meckley, who was a bolter at the 

738 
time, did not make any comments. (Tr. 118). Stewart also 

testified that he complained to Meckley, when Meckley was his 

supervisor. {Tr. 42-47). Stewart said that Meckley did not 

have any particular response. Meckley could not recall any 

such discussion. (Tr. 469). 

There is no direct evidence linking Mr. Stewart's termination with his complaints about alcohol use. Mr. Stewart maintains that there is "ample circumstantial indicia of discriminatory intent ••• . " (Reply Br. at 4). I used a two-step process 

to analyze this issue. First, I considered the guidelines set 

forth by the Commission in Chacon, 3 FMSHRC at 2510, to determine 

whether I could draw a reasonable inference of discriminatory 

intent. Second, I examined the facts surrounding Mr. Stewart's 

termination to determine whether his termination appeared to be 

internally consistent with Twentyrnile's position. 

The first factor set forth in Chacon is whether the company 

had knowledge of the protected activity. I find that there is 

sufficient circumstantial evidence to establish that Meckley had 

knowledge of Mr. Stewart's complaints about alcohol use, despite 

the fact that he could not recall such complaints at the hearing. 

Mr. Spangler testified that he did not know that Mr. Stewart had 

complained about alcohol use at the time he recommended that 

Mr. Stewart be terminated for sleeping on the job. (Tr. 323). 

He was not employed at Twentyrnile at the time of the complaints. 

Mr. Hampton could not recall that Mr. Stewart complained about 

alcohol use. (Tr. 554). Mr. Ivy remembers meeting with Stewart 

at the end of a shift in February 1993, but could not recall the 

contents of the discussion. (Tr. 595-96). Mr. Ivy stated that 

they may have discussed alcohol and he may have raised it at a 

crew meeting. (Tr. 596-97). Accordingly, I find that mine management had knowledge of the protected activity. 

The next factor is whether there was hostility or animus 

towards the protected activity. I find that circumstantial evidence does not establish such hostility or animus. Management 

witnesses testified that they would not tolerate miners coming to 

work under the influence of alcohol or drugs. (Tr. 182, 595-96). 

I credit this testimony. There is no evidence, other than the 

testimony of Mr. Stewart, that anyone came to work with alcohol 

on his breath or was under the influence of alcohol at the mine. 3 

Mr. Meckley denied that he ever came to work with alcohol on his 

breath and does not remember the issue being raised. (Tr . 469-

70). Mr. Moss testified that when he was the crew's supervisor, 

3 Mr. Peters, however, had been in alcohol abuse counseling 

and Mr. Fires~one smelled alcohol on his breath on one occasion. 

(Tr. 639-40; 15 FMSHRC at 721). 

739 
Meckley never came to work with alcohol on his breath. (Tr. 

182). Some of Stewart's fellow crew members mocked him about his 

complaints in 1993 but I cannot draw an inference that this was a 

factor in his termination. Mr •. Stewart relies on the fact that 

he did not get along with the other members of the crew to establish that there was hostility towards his protected activity. · I 

find that the animus directed towards Mr. Stewart by the crew and 

his immediate supervisors was the result of the fact that they 

believed that he did not pull his weight on the crew. (Tr. 179-

181, 183-84, 187-89, 193, 195~6, 207-08, 211-12, 322-23, 465, 

475-76, 488-89, 544-46, 554, 641, 647). I cannot ascertain 

whether or not Mr. Stewart was a hard worker, but the evidence 

shows that he was perceived as someone who was reluctant to help 

others on the crew and the crew sometimes gave him a hard time as 

a result. Id. 

The third Chacon factor is the coincidence in time between 

the protected activity and the adverse action. Mr. Stewart's 

complaints about alcohol use occurred well before his termination. He was very vague about when he made these complaints, but 

it is clear that the complaint to the general manager was made 

around February 1993, about 15 months before his discharge. 

Mr. Meckley was his supervisor for about eight of these months. 

While it is certainly possible for a supervisor to hold a grudge 

for 15 months and take action in retaliation in the manner described by Mr. Stewart, I cannot make such an inference in this 

case. The linkage is simply too tenuous to reach such a 

conclusion. 

The final factor is whether there was disparate treatment of 

the complainant. This factor is difficult to analyze because 

there is no evidence that other employees complained that miners 

were coming to work with the smell of alcohol on their breath. 

As stated above, however, I credit the testimony of management 

witnesses that the company would not tolerate employees coming to 

work under the influence of alcohol. In addition, other employees who were caught sleeping at work were terminated unless management determined that there were mitigating circumstances. One 

employee was discharged for sleeping underground. (Tr. 395-96). 

Two other employees were caught sleeping in a truck on the surface and were given a two-week suspension, lost all bonus pay, 

and were placed on probation for a year . . (Tr. 224, 393). 

Mr. Spangler determined that they should not be terminated because it was a first offense, they were not operating equipment 

at the time, their supervisor was against termination, and they 

cooperated during Twentymile's investigation of the incident. 

(Tr. 391-94). I credit Mr. Spangler's testimony describing the 

reasons. why Mr. Stewart was terminated and these other two miners 

were not. I find that Mr. Stewart failed to establish disparate 

treatment . . I cannot draw a reasonable inference that he was 

740 
treated differently because of his safety complaints.• 

Twentymile's stated reason for terminating Mr. Stewart is 

consistent with the evidence. The testimony about the events of 

May 16, 1994, differ in some of the details. Stewart testified 

that Meckley approached him from the left and tapped him on his 

left shoulder, while Meckley testified that he observed Stewart 

from the right side and tapped his right shoulder. {Tr. 423-26, 

693). Stewart testified that Meckley could not have determined 

that his eyes were closed or that he was sleeping because of the 

design of the cab on the shuttle car'. {Tr. 22) He further 

stated that Meckley's testimony that he tapped Stewart on the 

right shoulder is not credible because the right side of the 

shuttle car was against the coal feeder. {Tr. 693-94). Meckley 

testified that there was enough space for him to stand to the 

right of the cab. {Tr. 422-24; Ex. R-39). Stewart testified 

that his eyes were open and that he kept the conveyor on his 

shuttle car running to make sure that all of the coal was discharged onto the feeder breaker. {Tr. 29-31). He testified that 

he had on his ear plugs and did not see or hear Meckley until he 

tapped him on his shoulder. Id. He stated that he immediately 

turned to Meckley and asked him what he wanted. Id. 

These discrepancies are not as significant as Mr. Stewart 

believes and do not provide a basis for discrediting Meckley's 

testimony. I find that Mr. Meckl~y had an honest, good faith 

belief that Mr. Stewart was asleep on May 16, 1996. I also find 

that Meckley believed that Stewart was asleep in his shuttle car 

at the feeder in October 1993. (Tr. 445-47). Meckley verbally 

warned him not to sleep underground. Id. Meckley also believed 

that Stewart was asleep on December 21, 1993. In that incident, 

the operator of the continuous miner and Meckley signaled Stewart 

to tram his shuttle car forward to be loaded with coal. (Tr. 448-

49). Stewart did not respond to the signal. Meckley approached 

Stewart and said, "Ross, Ross, you need to. get a load." (Tr. 

449). 

Mr. Spangler had worked at Twentymile for about six weeks 

when Stewart was suspended on May 16. As the human resources 

manager, he was responsible for investigating the incident. He 

performed a thorough, independent and professional investigation 

4 Mr. Stewart also contends that there were other instances 

where he was mistreated because of his safety complaints. He 

states that he was temporarily transferred to another crew, temporarily removed from his position as shuttle car operator, and 

lost some vacation leave because of his protected activity. He 

did not lose any pay or benefits because of these transfers. 

Based on the record, I find that the temporary reassignments and 

loss of vacation time were unrelated to any of his protected 

activities. 

741 
into the matter. I find his testimony to be particularly persuasive and credible. He made several attempts to get Stewart's 

position on the incident. Mr. Spangler believes that Stewart was 

uncooperative and evasive during the investigation. As discussed 

above, Spangler knew very little about any of Stewart's protected 

activities and knew nothing about his complaints concerning the 

smell of alcohol. I credit his testimony that Stewart's protected activities were not a factor he considered in recommending 

that he be terminated. I believe that if Meckley had set Stewart 

up in retaliation for his safety complaints, it is likely that 

Spangler would have uncovered it. 

Mr . Stewart contends that Twentymile's hostility toward him 

can be inferred because of its "irregular handling of [his] termination." (Br. at 9). He bases this argument on the fact that 

Mr. Meckley's notes regarding the sleeping incidents were not 

kept in Stewart's personnel file and the company failed to follow 

its own internal disciplinary procedures. Twentymile's disciplinary system is rather informal and subjective. It has a set of 

procedures known as the Green Answer Book, that it follows when 

dealing with personnel issues. (Ex. R-28). I find that Twentymile generally followed its procedures and Mr. Spangler gave 

Mr . Stewart an opportunity to present any mitigating factors. 

The Mine Act does not mandate any particular type of disciplinary 

system. I do not have the authority to determine whether 

Mr. Stewart's discharge was fair or reasonable. The "Commission 

does not sit as a super grievance board to judge the industrial 

merits, fairness, reasonableness, or wisdom of an operator's 

employment policies except insofar as those policies may conflict 

with rights granted under section 105(c) of the Mine Act . " 

Delisio v. Mathies Coal Co., 12 FMSHRC 2535, 2544 (December 1990) 

(citations omitted) . ' 

I conclude that Mr. Stewart's discharge did not violate 

section 105(c) of the Mine Act . I find that Mr. Stewart engaged 

in protected activity but that his termination was not motivated 

in any part by his protected activity. I also find that, even if 

his protected activity were a factor, he would have been terminated in any event for his unprotected activity alone. 

ORDER 

Accordingly, the complaint filed 

Twentymile Coal Company under se · 

DISMISSED. 

Richard w. Manning 

Administrative Law Judge 

742 
Distribution: 

Brian L. Lewis, Esq., 10200 E. Girard Avenue, No. B-233, Denver, 

Colorado 80231-5508 (Certified Mail) 

R. Henry Moore, Esq., BUCHANAN INGERSOLL, One Oxford Tower, 20th 

Floor, 301 Grant Street, Pittsburgh, PA 15219-1410 (Certified 

Mail) 

RWM 

\ 

743 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

.MAY 1 0 1996. 

MAJOR TONY THOMPSON, 

Complainant 

DISCRIMINATION PROCEEDING 

v. Docket No. KENT 94-1191-D 

PIKE CD 94-13 

AERO ENERGY, INCORPORATED, 

Respondent Mine No. 1 

Appearances: 

Before: 

DECISION 

Herbert Deskins, Jr., Greg Bentley, and Robert 

Wright, Esqs., Pikeville, Kentucky, for the 

Complainant; 

Michael Heenan, Esq.; William I . Althen, Esq . , 

Smith, Heenan, and Althen, Washington, D.C., 

for the Respondent. 

Judge Weisberger 

Statement of the Case 

This case is before me based upon a Complaint filed by Major 

Tony Thompson alleging that he was discriminated against by Aero 

Energy Incorporated (Aero) in violation of Section 105 of the 

Federal Mine Safety and Health Act of 1977 (The Act) . Pursuant 

to notice, the case was heard in Louisa, Kentucky on January 29 

and 30, 1996. 1 

1 Initially the case was scheduled for hearing on 

December 20, 1994. Based upon the parties' agreement, an 

order was issued on January 3, 1995, continuing the hearing due 

to a pending parallel proceeding in the Pike Circuit Court in 

Kentucky. On May 4, 1995, an order was issued granting 

Complainant's Motion to Continue and Staying Proceedings for 

60 Days. On October 6, 1995, an order was issued lifting the 

744 
Findings of Fact and Discussion 

I. Complainant's Case 

A. Complainant's Work History at Aero 

Aero operates the Aero Energy Mine No. 1, an underground 

coal mine, which it had acquired . in March 1989. In March 1989, 

Major Tony Thompson was hired as mine superintendent by Rex 

Fought, Aero's President, for whom he had previously worked. 

Fought made -Thompson responsible for the overall operation of the 

mine. Once the mine became operational, production increased, 

production per man hour increased, and miners were given bonuses 

based on increased production usually three to four times a week. 

Thompson also received production bonuses through the end of 

1993, and received a Christmas bonus in 1993. He received 

increases in salary during the term of his employment with Aero. 

B. Complainant's Activities and Aero's Responses 

According to Thompson, in August 1989, he reported to Fought 

a methane reading of between four and six percent. Fought told 

him to "be sure that I don't put it in the book because it was 

over two percentu (Tr. 30). Thompson indicated that in September 

1995, Fought was very upset at a withdrawal order ~ssued by an 

MSHA inspector who had found methane. 

On November 3, 1993, Thompson indicated that he learned that 

a methane reading of seven to nine percent had been found in the 

old works of the mine, which was not an active section. Thompson 

said that he notified Fought who told him to be sure not to 

report it. According to Thompson, on November 4 : he was inf~rmed 

by a belt attendant, Harold Baisden, that he had overheard the . 

Footnot~ 1 cont'd. 

stay, and scheduling the case for hearing on November 13, 1995. 

On October 23, 1995, an order of continuance was issued based 

upon Respondent's request that was not opposed by Complainant, 

and the case was rescheduled for hearing on January 29. 

745 
fireboss, Bob Boyd, report a methane reading of between seven to 

nine percent in the old works. Thompson then went underground, 

and testing by him indicated a methane reading of one and a half 

percent. Thompson then reported to Fought and told him that the 

methane reading should be reported in the preshift book, and 

Fought told him not to report it. 

On November 5, Thompson talked to MSHA inspector Arlie Webb. 

On November 8, 1993, the site was inspected by MSHA inspectors 

but no citations were issued for any methane accumulations. 

On November 9, 1993, five MSHA inspectors inspected the site 

to check for methane. The inspectors reported that they had 

received a complaint about methane in the old works. Thompson 

testified that at approximately 12:30 p.m., he had a conversation 

with Fought, and told him that he thought that the inspectors 

were present because of a complaint . At about 3:30 in the 

afternoon, in Thompson's office, Fought informed him that there 

was reason to believe that he (Thompson} had called the 

inspectors. According to Thompson, Fought informed him that he 

talked to the foremen, and they did not trust him "for calling 

the inspectors" (Tr. 75}. Thompson stated that he informed 

Fought that he had not called the inspectors. According to 

Thompson, Fought told him that the foremen could not trust him 

anymore, and that he was going to have to let him go "for calling 

the inspectors" (Tr. 76). Thompson maintained that the methane 

problems that had been observed on November 3 and 4, were taken 

care of shortly after the methane had been discovered by shifting 

the ventilation in the area, and accordingly, there was no need 

to call the inspectors on November 8 and November 9. Thompson 

indicated that Fought told him that he was going to send him home 

until he had time to investigate . According to Thompson, Fought 

told him to take the rest of the week off. Thompson stated that 

he thought that Fought was sending him home because he had called 

the inspectors. 

On Tuesday November 16, at 6:00 p.m., Thompson returned to 

the mine, and Fought informed him that he was still investigating, and trying to find out if he (Thompson) had called the 

inspectors, and that he (Fought) would get back to him. Between 

November 16, 1993, and January 7, 1994, Thompson tried to call 

Fought eight or nine times, and talked to him three four times . 

746 
On January 7, 1994, Thompson received a letter from Fought. 

In the · letter, Fought indicated that he had discussions with 

Thompson concerning Thompson's job performance, lack of interest, 

and lack of commitment to the job. The letter further accused 

Thompson of having "a major problem of substance abuse . " 

On January 10, 1994, Thompson confronted Mr . Fought about 

the letter, and Fought insisted on him undergoing drug 

rehabilitation. Thompson refused because he maintained 

that he had no drug problem. 

It was Thompson's testimony that prior to November 9, he had 

never been reprimanded or suspended by Fought. Nor did Fought 

indicate that he was dissatisfied with his· work . Thompson 

maintained that he had not been insubordinate to Fought . 

Thompson indicated that prior to receipt of Fought's letter on 

January 7, Fought had never discussed with him his lack of 

commitment. According to Thompson, Fought had never told him 

that his job was suffering because of drug abuse, and that Fought 

had never suggested that he take any drug test . Thompson 

indicated that prior to November 9, 1993, he underwent drug 

testing on one occasion, and it was negative. According to 

Thompson, he was never arrested for drugs or alcohol, and has 

never had a substance abuse problem. He also maintained that 

there were no problems with morale at the site. 

According to Thompson, he had a good relationship with 

Fought through November 1993. He was not reprimanded by him 

during that time and followed whatever Fought told h\m to do. 

According to Thompson, he saw his foremen daily, and had safety 

talks with them weekly. Thompson stated that he never refused to 

go underground at the request of Fought, or at a foreman's 

request. 

Walter Thomas Kirk, a miner employed by Double Construction 

Company, (Double C), to work at the subject mine as a general 

laborer, testified for Complainant . Kirk, who is a personal 

friend of Thompson, indicated that on November 9, 1993, at 

approximately 3:45 in the afternoon, he was walking toward 

Thompson's office and the door was open. 2 Kirk indicated that 

2Records kept in the ordinary course of business by Double C 

indicate that Kirk did not work on November 9 . 

74 7 
no one else was in the area. According to Kirk, he was six to 

eight feet away from the door, and overheard a conversation 

between Thompson and Fought that was "pretty loud" (Tr. 104). 

Kirk testified that he heard F~ught say as follows: •Tony you 

know we had eight and nine percent methane, and you had no right 

to call the federal men or inspectors in at no time" (Tr. 105). 

According to Kirk, Thompson said that he did not call the 

inspectors, and Fought said "I have reason to believe you called 

them Tony and I'm going to ha~e to let you go" (Tr. 105) . 

Acc~rding to Kirk, about a week and a half or two weeks 

later, Fought met with all first and second shift employees in 

the shower house. Kirk indicated that Fought was "in an 

outrage," and stated that ·"[t]hese rumors going around is going 

to stop. Now, I don't know who is spreading them but they're 

going to stop· and whoever spread this rumor about methane, they 

ain't no methane up there. And another thing ... it's none of 

your god dam business . .. If this don't stop, I will fire every 

one of you . . . " (Tr. 107) . 

II. Respondent's Case 

Fought indicated that sometime toward the end of the winter 

of 1993, he began to get concerned about Thompson, as he did not 

feel that Thompson was communicating as much as he had done in 

the past. Fought indicated that John Ratliff, . a shift foreman, 

and Steven Cordial, the maintenance chief, com~ented to him that 

Thompson was not helping them as much as he used to. According 

to Fought, there was general talk in the mine that Thompson was 

not going underground to help out. Fought indicated that in the 

last two or three months prior to November 1993, he felt that 

Thompson was "ignoring some things I would tell him or finding 

excuses not to do them" (Tr. 140). 

Fought stated that Thompson was authorized to order 

materials. He was responsible for checking invoices in the 

bookkeeping off ice in order to see if Aero was being properly 

charged. Fought stated that Thompson had stopped checking the 

invoices, and had to be reminded to do this task. He also 

indicated that Thompson was no longer getting to work prior to 

the commencement of the shift, as he had been doing for the last 

couple of years. 

748 
Fought stated that some:time in the late summer or early fall 

1993, Cordial informed him that occasionally it appeared as if 

Thompson was under the influence of some substance. According to 

Fought, on three occasions between the early summer of 1993 and 

November 9, 1993, Thompson was listless, and exhibited slurred 

speech, and uncoordinated movements. In the summer of 1993, on 

one occasion, Fought sent Thompson home because he had placed his 

head on the desk, and his speech was slurred. 

According to Fought, in August 1993, he spoke to Thompson 

and told him that he did not seem to be going underground as much 

as he should, .that supplies were disappearing, and that it 

appeared that, in general, he had lost interest. According to 

Fought, he asked Thompson whether he realized that mine personnel 

were of the opinion that he was taking drugs. According to 

Fought, sometime around October 1993, he had the same converversation with Thompson who responded that he did not see what 

the problem was, and that he was doing a good job. Fought 

testified that on the first Wednesday in November, he told 

Thompson as follows: "[i]f you don't do another thing tomorrow, 

go to the office and okay your invoices" (sic) (Tr. 155). 

According to Fought, Thompson did not work the next day. Fought 

indicated that two days later he told Thompson that he "wasn't 

going to put up with it anymore," and that Thompson should take 

off the next week and think about it, "and then when he came 

back, see if we could figure out someway that we both could stay 

there and work together" (Tr. 156). The following M~nday when 

Fought called the mine, Thompson answered the telephone. Fought 

concluded that Thompson had ignored him by coming to work. 

According to Fought, on November 9, at approximately 4:30 in 

the afternoon, he and Thompson had the same conversation they had 

on the previous Friday. According to Fought, Thompson told him 

that the inspectors had come to the mine because there was a 

complaint about methane. Thompson said that he thought he was 

doing a good job. Fought indicated that he told Thompson that he 

was not satisfied, and that Thompson must satisfy him before he 

could come. back. Fought indicated that he did not think that 

Thompson could work at the mine anymore. Fought indicated that 

he told Thompson to go home and to think about what they had 

talked about, a.nd to see if he could conclude that there was a 

problem. Fought did not make a notation in Thompson's personnel 

file concerning the conversation he had with him about his "bad 

749 
performance" (Tr. 180). He could not remember any specific 

problem that Thompson "didn't help them or look at" (Tr. 197). 

Fought said that he did not discuss methane at a meeting 

with all personnel subsequent to November 9 . Instead, he told 

the assembled personnel that he wanted to stop the·rumors as to 

why Thompson was no longer at the mine. According to Fought, he 

told them that Thompson was off on personal leave. 

Fought indicated that on 'or about January 7, 1994, he sent 

Thompson a disciplinary letter, (Defendant's Ex . 5) because he 

needed to bring the matter to an end. 

Fought maintained that it is not true that he told Thompson 

not to report methane. Fought said that on November 3, and 

November 4, 1993, Thompson had not complained to him about 

methane. He also indicated that he did not receive any report 

that the fireboss, Boyd, had found methane in the explosive range 

or at three, four, or five percent. Fought stated that it is not 

true that he told Thompson not to put methane readings more than 

two percent in the preshift book. He indicated that there was no 

problem controlling methane in the mine. 

On cross-examination it was elicited that Fought never saw 

Thompson take drugs, and did not ask whether anyone else saw him 

take drugs. Fought also indicated that he had never smelled 

alcohol on Thompson's breath. 

John Ratliff, who was the day shift mine foreman for the 

period in question, stated that in 1992, Thompson went 

underground every two to three weeks. Ratliff indicated that 

in the last six months prior to November 1993, Thompson went 

underground only one time. Ratliff indicated that he would have 

benefited from more underground visits by Thompson, as there were 

matters that could have been resolved more efficiently had the 

latter gone underground and observed the situation. He noted 

that in 1993, Thompson stopped asking about what was going on in 

the mine. According to Ratliff, Thompson's speech was slurred, 

he stayed in the office by himself a lot, and took no interest in 

the mine. Ratliff said that five or six miners told him that 

they thought that Thompson was on dope or drugs. Ratliff also 

noted that morale was down, and that in general his relations 

with Thompson had deteriorated. 

750 
According to Ratliff, on November 8, a~ approximately 

8:00 a .m., Thompson told him as follows: "John, there's all kind 

of talk on the bottom about a high methane build up in the old 

works ... You know they'd be all ·kinds of inspectors here 

before the day's out" (sic) (Tr. 230-231). He indicated that 

Thompson kicked the wall and a chair, and slapped the wall. 

Ratliff corroborated Fought's version of the meeting that 

was held in the shower house some~ime after November 9. 

According to Boyd, testing at the old works on November 4, 

indicated a methane reading of nine-tenths of one percent which 

he entered in the preshift examination book. He said that 

methane had not been found at that site before. Boyd indicated 

that no one told him not to report methane, and no one told him 

not to enter any methane readings. He corroborated Fought's 

version of the meeting held with the miners after Thompson had 

left the mine. 

Cordial indicated that he told Fought that Thompson showed 

favoritism, and that some men were resentful and thinking of 

quitting. He indicated that when he started to work at the mine 

in 1991, Thompson was going underground four to five times a 

week, ''[a]nd it would be probably ninety percent of the time he 

was underground." (Tr. 347) Cordial indicated that starting 

around March 1993, Thompson "wasn't going undergroU:x:.id as much" 

(Tr. 347). According to Cordial, miners made comments to him as 

follows: "Tony's on his stuff today." {Tr.348) According to 

Cordial, on several occasions, Thompson evidenced slurred speech, 

and "would seem either completely down or really hyper" {Tr.348). 

Cordial indicated that he discussed these problems with Fought in 

October or September 1993, and the latter was "really concerned 

about it" (Tr . 3 4 9 ) . 

Cordial also corroborated Fought's version of the meeting in 

the shower room. 

III. Analyeais 

The principles governing analysis of a discrimination case 

under the Mine Act are well established. A miner establishes a 

751 
prima facie case of prohibited discrimination by proving that he 

engaged in protected activity and that the adverse action 

complained of was motivated in any part by that activity. 

Secretax:y on behalf of Pasula y. Consolidation Coal Co., 2 FMSHRC 

2786, 2797-2800 (October 1980),. rev'd on other grounds. sub nom. 

Consolidation Coal Co. y. Marshall, 663 F.2d 1211 (3d Cir. 1981); 

Secretary on behalf of Robinette y. United Castle Coal Co., 

3 FMSHRC 803, 817-18 (April 1981). The operator may rebut the 

prima facie case by showing either that no protected activity 

occurred, or that the adverse•action was in no part motivated by 

protected activity. Pasula, 2 FMSHRC at 2799-2800. If the 

operator. cannot rebut the prima facie case in this manner, it 

nevertheless may defend affirmatively by proving that it also was 

motivated by the miner's unprotected activity and would have 

taken the adverse action in any event for the unprotected 

activity alone. Pasula, 2 FMSHRC at 2800; Robinette, 3 FMSHRC at 

817-18; see also Eastern Assoc. Coal Cox:poration. y. United 

Castle Coal Co., 813 F.2d 639, 642 (4th Cir. 1987). 

A. Protected Actiyities 

At a minimum, Thompson engaged in protected activities when 

he spoke to an inspector on the evening of November 5, 1993. The 

actions that he took in response to reports of various methane 

readings, and his comments to Fought that excessive methane 

readings should be recorded in the preshif t reports are all 

protected. 

B. Motivation 

According to Thompson, he was sent home by Fought on 

November 9, because Fought thought he had complained to MSHA 

inspectors about methane at the mine, and had requested an 

inspection which resulted in the inspection on December 8 and 9. 

In Thompson's version of relevant events, Fought (1) never 

expressed any dissatisfaction with his work prior to March 9; (2) 

manifested an animus toward his activities in reporting methane 

findings, and (3) told him expressly on November 9, that he was 

being let go "for calling the inspectors" (Tr. 76). I find 

Thompson's version to be ~ithout merit for the reasons that 

follow. 

752 
1 . .Thompson' s Performance Prior to November 9 

Fought was generally satisfie~ with Thompson's work until 

about six months prior to November 1993. He increased his 

salary, and had given him bonuses based upon production. 

According to Thompson, he had never been reprimanded by Fought 

prior to November 9, and Fought had never expressed any 

dissatisfaction with his work. 

On the other hand, Fought referred to four specific 

instances prior to November 9, 1993, wherein he expressed 

dissatisfaction with various aspects of Thompson's work. 3 It is 

significant that Thompson did not testify on rebuttal to rebut or 

contradict this specific testimony. Therefore, I accept Fought's 

testimony in these regards. 

In general, Fought's version that he had been dissatisfied 

with Thompson prior to November 9, as the latter had exhibited 

various behavioral problems, is corroborated by Ratliff, and 

Cordial, who noted that Thompson exhibited slurred speech, and 

in his last six months at the mine, did not go underground as 

frequently as he had in the past. In this connection, Thompson 

did not rebut Fought's testimony that in the summer of 1983 he 

had suggested to Thompson to go home because he was exhibiting 

slurred speech, and had placed his head on the desk, and the 

former complied. For these reasons, I accept Fought's version. 

2. Fought's Animus Regarding Reports of Methane 

According to Thompson, in September 1989, after an MSHA 

inspector issued a withdrawal order based upon finding the 

presence of methane, Fought was "very upset" and "very irate" 

(Tr. 34). Fought did not rebut or impeach this testimony. 

According to Thompson, when he reported to Fought methane 

readings in excess of two percent in August 1989, November 3, 

3Some corroboration for Fought's testimony in this regard is 

found in the testimony of Cordial, whom I found to be a very 

credible witness, that in October and September 1993, he 

discussed Thompson's problems with Fought, and the latter was 

"really concerned about it" (Tr. 349). 

753 
and November 4, Fought told him not to enter the findings in the 

preshift examination books. On the other hand, Fought denied 

that he had told Thompson not to report methane, and not to put 

methane readings more than two percent in the examination book. 

Fought also indicated that Thompson did not report to him that 

Boyd had found methane in an explosive range, or more than three 

percent. I observed the witnesses' demeanor, and found Fought to 

be more credible in these regards. 

I also find that Fought's v~rsion finds corroboration in the 

testimony of Boyd that no one told him not to report methane 

findings, . and not to enter methane readings. Indeed the 

examination book indicates that methane readings were noted by 

Boyd (Defendant's Ex. 4). 

3. The November 9 Conyersation Between Fought and 

Thompson 

According to Thompson, on November 9, the date of the MSHA 

inspection of the mine, Fought told him he was going to let him 

go "for calling the inspectors" (Tr. 76). In support of his 

version, Thompson offered the testimony of Kirk. Kirk testified 

that at 3:45 p.m., on November 9, he overheard Fought telling 

Thompson that he was going to let him go because he had called 

the inspectors. 

I discount Kirk's testimony. Based upon my observations of 

his demeanor, I find Fought the more credible witness. I ·also 

note that records kept by Kirk's employer in the ordinary course 

of business indicate that Kirk did not work in the mine on 

November 9. 

Further, since I find more credible Fought's version of 

Thompson's work history prior to November 9, (.s.w;,, (I) (C) (2) (b) 

infra,), it follows that Fought's version of the November 9 

conversation is more credible. I therefore accept Fought's 

testimony that on November 9, he expressed his dissatisfaction 

with Thompson, and told him to go home to think about their 

conversation, and to acknowledge there were problems. 

For all the above reasons, I conclude that Fought's actions 

in sending Thompson home on November 9, and sending him a 

disciplinary letter (Defendant's Ex. 5) were motivated solely by 

754 
Thompson's unprotected activities which Fought was dissatisfied 

with. I thus find that Thompson has failed to establish that he 

was discriminated against in violation of Section l05(c) of the 

Act. 

ORDER 

It is ORDERED that this case be DISMISSED. 

~~ Avram Weisberger 

Administrative Law Judge 

Distribution: 

Herbert Deskins; Jr., Esq., P.O . Box 1199, 105 ~Division Street, 

Pikeville, KY 41501 (Certified Mail) 

Michael T. Heenan, Esq., and William I. Althen, Esq., Smith, 

Heenan & Althen, 1110 Vermont Avenue, N.W., Suite 400, 

Washington, DC 20005-3593 (Certified Mail) 

/ml 

755 
FEDERAL MINE S~ETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

303-844-3577/FAX 303-844-5268 

MAY 1 0 \996 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. WEST 95-220-M 

A.C. No. 24-01951-05508 

v. Red Pioneer Portable Crusher 

A.M. WELLES, INC., 

Respondent 

DECISION 

Appearances: Kris~i Floyd, Esq., Office of the Solicitor, U.S. 

Department of Labor, Denver, Colorado, 

Before: 

for Petitioner; 

Alfred Hokanson, President, A.M. Welles, Inc., 

Norris, Montana, for Respondent. 

Judge Manning 

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

civil penalty filed by the Secretary of Labor, acting through the 

Mine Safety and Health Administration ("MSHA"), against A.M. 

Welles, Inc. ("A.M. Welles"), pursuant to sections 105 and 110 of 

the Federal Mine Safety and Health Act of 1977, 30 u.s.c. §§ 815 

and 820. The petition alleges two violations of the Secretary's 

safety regulations. Orders of withdrawal were issued under section 104(b) of the Mine Act alleging that A.M. Welles failed to 

timely abate the cited conditions. For the reasons set forth 

below, I affirm the citations and orders, and assess penalties 

in the amount of $330.00. 

A hearing was held in Butte, Montana. The parties presented 

testimony and documentary evidence, but waived post-hearing 

briefs. 

I. DISCUSSION WITH FINDINGS OF FACT AND CONCLUSIONS OF LAW 

A.M. 

is a very 

in 1993. 

preceding 

Welles operates the Red Pioneer Portable crusher. It 

small operation that recorded about 4,360 hours worked 

It has a history of four citations in the two years 

the inspection in this case. 

756 
A. Citation No. 4405454 

On May 12, 1994, MSHA Inspector Ronald Goldade inspected the 

Red Pioneer Portable Crusher. At the time of his inspection the 

crusher was at the Belgrade Pit near Bozeman, Montana. He issued 

citation No. 4405454 alleging that ·the guard on the fin type tail 

pulley on the product discharge conveyor system needed to be 

extended on the sides of the conveyor frame. The citation states 

that the existing guard needed to be extended about ten inches to 

provide sufficient coverage of the moving machine parts. The citation alleges a violation of 30 C.F.R. § 56.14107(a). Inspector 

Goldade determined that it was unlikely that anyone would be 

injured and that the violation was not of a significant and substantial nature ("S&S"). A guard was present at the time of the 

inspection, but the inspector did not beli~ve that it provided 

sufficient protection against the moving parts. The safety 

standard states that "moving machine parts shall be guarded to 

protect persons from contacting .•. head, tail, and takeup pulleys, ... and similar moving parts that can cause injury." 

The tail pulley was about two feet above the ground. (Tr. 

12; Ex. G-2). Inspector Goldade testified that he was concerned 

that someone could inadvertently come in contact with the moving 

pulley when cleaning around the area. (Tr. 13) . He determined 

that the negligence was moderate because the violation was obvious. (Tr. 14). The conveyor had been recently purchased and the 

existing guard was installed by the manufacturer. (Tr. 14; 

Ex. G-2). 

Inspector Gol dade discussed the condition with William Haugland, the crusher superintendent, and told him that it should be 

abated by 8:00 a.m. on May 16, a period of four days. (Tr. 15). . \ . . The inspector also wrote that abatement date on the 'citation. 

The. condition could have been abated by welding or wiring old 

screening material over the open area. (Tr. 16). He estimated 

that it would take an hour to abate the condition. Neither 

Mr. Haugland nor anyone else from A. M. Wel.les told the inspector 

that the time set for abatement was too short. 

on August 1, 1994, MSHA Inspector Seibert Smith inspected 

the crusher, which had been moved to a pit near Big Sky, Montana. 

He issued Order No. 4410028 under section l04{b) of the Mine Act 

because he believed that the condition described in Citation No. 

4405454 had not been abated. The order states that no apparent 

effort was made by the operator to extend the guard to cover the 

moving parts of the fin type tail pulley on the product discharge 

conveyor unde r the pioneer crusher by the termination due date of 

May 16, 1994. He issued the order to Mike Nunn, who did not know 

anything about the citation. (Tr. 32). Inspector Smith left the 

mine shortly thereafter. When he returned on August 5 a guard 

made of solid m~tal and screening was in place, so he terminated 

the order. (Tr. 33}. 

757 
A.M. Welles contends that the conveyor pulley observed by 

Inspector Smith on August 1, was not the same pulley that Inspector Goldade cited on May 12. (Tr. 46-50, 60). It states that it 

abated the citation issued by Inspector Goldade and that the 

withdrawal order issued by Inspector smith was for a different 

conveyor at the crusher. Id. Mr. Haugland and Alfred Hokanson, 

President of A.M. Welles, believe that they abated the condition 

cited by Inspector Goldade before August 1, 1994. 

I credit the testimony of .Inspectors Goldade and Smith, and 

find that the condition cited on May 12 had not been abated on 

August 1. Inspector Smith testified that the tail pulley he 

observed was the same pulley that was cited by Inspector Goldade 

and that no abatement effort had been made. (Tr. 63). 

An MSHA inspector is authorized to issue an order under 

section 104(b) of the Mine Act if he determines on a subsequent 

inspection that: (1) the violation described in the citation has 

not been totally abated within the period of time originally 

fixed in the citation; and (2) the period of time for abatement 

should not be further extended. Upon discovering a failure to 

abate, an inspector must apply a rule of reason in determining 

whether to issue a section 104(b) order or to extend the abatement time. Martinka Coal Co., 15 FMSHRC 2452 (December 1993). 

I find that Inspector smith did not abuse his discretion in 

issuing the order. Accordingly, I affirm the citation and the 

order. 

Ordinarily, an operator's failure to timely abate a citation 

warrants a substantially greater penalty than the citation . An 

unabated violation presents a potential threat to the safety and 

health of miners. When an inspector does not require that the 

condition be abated on the day of the inspection, it is important 

for the mine operator to abate it within the reasonable period of 

time set forth in the citation. If the operator fails to do so a 

significantly higher penalty is warranted. 

With respect to this violation, however, I believe that 

there are several mitigating circumstances that compel a reduction in the penalty. I find that A.M. Welles genuinely believed 

that it corrected the condition cited by Inspector Goldade within 

the time set for abatement. A number of other guarding citations 

were issued during the same inspection and A.M. Welles believed 

that it abated all of them. I credit the .testimony of Mr. Haugland that it is the practice of A.M. Welles to immediately correct conditions found by MSHA inspectors. (Tr. 50, 70). I 

believe that this citation inadvertently fell between the cracks, 

in part because of the fact that different names are often used 

for the same conveyor. Apparently, A.M. Welles often refers to 

the conveyor cited by Inspector Goldade as the "stacking conveyor" rather than the product discharge conveyor. (Tr. 46). 

758 
MSHA proposed a penalty of $1,500.00. The commission is not 

bound by the MSHA's penalty assessment regulations or practices. 

The commission assesses penalties de novo by applying the statutory criteria set forth in section llO(i) of the Mine Act to the 

evidence of record. Sellersburg Stone Co., 5 FMSHRC 287, 292 

(March 1983), aff'd 736 F.2d 1147, 1151-52 (7th Cir. 1994). I 

agree with Inspector Goldade that the vioiation was not S&S. 

There is no dispute that A.M. Welles is a small operator and that 

it has a history of only four prior violations. I find that the 

gravity was low. With respect to·the citation, I find that the 

negligence of A.M. Welles was not as great as the inspector believed. The cited equipment was new, had been recently purchased, and was extensively guarded by the manufacturer. It was 

not unreasonable .for A.M. Welles to have relied on this guarding. 

Based on the criteria in section llO(i), I find that a penalty of 

$130.00 is appropriate. 

B. Citation No. 4405457 

On May 12, 1994, Inspector Goldade issued citation No. 

4405457 to A.M. Welles at the Red Pioneer Portable Crusher alleging that a guard was not provided around the alternator and Vbelt drive for the cooling drive motor on the Caterpillar generator. The citation was issued at the Belgrade Pit and charged a 

violation of 30 C.F.R. S 56.14107(a) The citation states that 

the height of the contact area is between two and five feet above 

the ground, and the pinch point was within four inches of the 

motor frame and two feet of the throttle control. The citation 

further alleges that employees are exposed to the hazard on a 

daily basis. 

Inspector Goldade testified that he measured the distances 

set forth in the citation with a tape measure. (Tr. 20). He 

testified that an employee would have to start and stop the generator at least once a day and would be exposed to the hazard 

created by the pinch points of the V-belt drives if he were to 

trip or stumble. (Tr. 21-22). The only guard present on the 

generator was around the fan blades. (Tr. 23; Ex. G-4). The 

inspector determined that the violation was S&S because, based on 

his experience, it was reasonably likely that someone wou l d eventually be injured by the unguarded V-belt drives. (Tr. 23). He 

determined that the violation was caused by A.M. Welles' moderate 

negligence because the condition was clearly visible. 

Inspector Goldade discussed the citation with Mr. Haugland 

and required abatement by May 16. (Tr. 24). The inspector believed that the condition could be abated with a fabricated guard 

in a couple of hours. Id. Mr. Haugland did not tell the inspector that the time for abatement was too short. Id. 

759 
On August 1, 1994, Inspector Smith inspected the crusher after it had been moved to another pit near Big Sky, Montana. He 

issued Order No. 4410029 under section 104(b) of the Mine Act because he believed that the condition described in Citation No. 

4405454 had not been abated. The order states that a guard was 

not installed on the alternator and V-belt drive system by the 

termination due date of May 16. The generator was running and 

Mike Nunn did not know anything about the citation. (Tr. 36) . 

When Inspector Smith returned on August 5 a guard made of solid 

metal and screening was in place, so he terminated the order. 

(Tr. 36-38: G-5). . 

A.M . . Welles contends that it abated the citation before the 

generator was moved from Belgrade to Big Sky by installing a 

solid metal guard .in front of the cited ar.ea. (Tr. 41, 45, 51-

52, 70-72). It contends that it merely added some screening 

material after Inspector Smith issued the order on August 1. 

(Tr. 45, 51-54). 

I credit the testimony of Inspectors Goldade and Smith, and 

I find that the condition cited on May 12 had not been totally 

abated on August 1. Inspector Smith testified that he did not 

observe any guard on August 1. (Tr. 63, 65-66). Messrs. Haugland and Hokanson testified that part of the guard was installed 

prior to the time the generator was moved to Big Sky. In any 

event, there is no question that additional guarding material was 

installed after August 1 and the order was terminated on August 5. I find that Inspector Smith did not abuse his discretion 

in issuing the order. Accordingly, I affirm the citation and the 

order. 

I also affirm that the violation was seriou ~ and S&S. The 

evidence establishes that there was a reasonable likelihood that 

the hazard contributed to would result in an injury of a reasonably serious nature. Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 

1984). 

MSHA proposed a penalty of $2,200.00. As stated above, an 

operator's failure to abate a citation generally mandates a high 

penalty. In this instance, however, I believe that there are 

mitigating circumstances. With respect to the citation, I find 

that the negligence of A.M. Welles was not as great as the inspector believed. The record as a whole makes clear that A. M. 

Welles tries in good faith to quickly abate all citations. I ts 

managers genuinely believed that they had abated the cited c ondition. I have also taken into consideration that the violation 

created a serious safety hazard and A.M. Welles is a small operator with a history of four previous violations. Based on the 

civil penalty criteria, I assess a penalty of $200.00 for this 

violation. 

760 
II. ORDER 

Accordingly, the citations and section 104{b) orders of 

withdrawal are AFFIRMED and A.M. Welles, Inc. is ORDERED TO PAY 

the Secretary of Labor the sum of $330~00 within 40 days of the 

date of this decision. 

Judge 

' 

\ 

Distribution: 

Kristi Floyd, Esq., Office of the Solicitor, U.S. Department of 

Labor, 1999 Broadway, Suite 1600, Denver, co 80202-5716 

(Certified Mail) 

Alfred Hokanson, President, A.M. WELLES, P.O. Box 8, Norris, MT 

59745 (Certified Mail) 

RWM 

761 
PEDERAL MINE SAPETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH , VIRGINIA 22041 

May 13, 1996 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. LAKE 96-17 

A.C. No. 11-00877-04131 

v. : 

: Wabash Mine 

AMAX COAL COMPANY, 

Respondent 

. . 

Appearances: 

Before: 

AM,ENJ)ID DECISION 

Ruben R. Chapa, Esq., Office of the Solicitor, 

u.s. Dept. of Labor, Chicago, Illinois for 

Petitioner; 

R. Henry Moore, Esq., Buchanan Ingersoll P.C., 

Pittsburgh, Pennsylvania for Respondent. 

Judge Melick 

Pursuant to Commission Rule 79, the attached corrected page 

in the decision made May 2, 1996, is hereby substituted. 

i 

I 

· Gary 

Admin s w Judge 

Distribution: 

Ruben R. Chapa, Esq., Christine M. Kassak, Esq., Office of the 

Solicitor, U.S. Dept. of Labor, 230 s. Dearborn street, 8th 

Floor, Chicago, IL 60604 (Certified Mail) 

R. Henry Moore, Esq., Buchanan Ingersoll, 301 Grant Street, 20th 

Floor, Pittsburgh, PA 15219-1410 (Certified Mail) 

\jf 

76 2 
FEDERAL MINE SAJ'BTY AND BEALTB REVIEW COMMISSION 

OFFICE OF ADM INISTRATIVE LAY JUDGES 

2 SKYLINE , 10th FLOOR ~203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

May 13, 1996 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

AMAX COAL COMPANY, 

Respondent 

. . Docket No. LAKE 96-17 

: A. C. No. 11-00877-04131 

•. 

. Wabash Mine 

DECISION 

Appearances: Ruben R. Chapa, Esq., Office of the Solicitor, 

U.S. Dept. of Labor, Chicago, Illinois for 

Petitioner; 

R. Henry Moore, Esq., Buchanan Ingersoll P.c . , Pittsburgh, Pennsylvania for Respondent. 

Before: 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 the Amax Coal Company (Amax) with two 

violations under the Act and proposing civil penalties of $2,809 

for those violations. 

Order No. 4263998 \ 

At hearing petitioner filed a motion to approve a settlement 

agreement as to this order. A reduction in penalty from $2,500 

to $2,000 was proposed. Based on the representations and 

documentation submitted I concluded that the proffered settlement 

was acceptable under the criteria set forth in Section llO(i) of 

the Act. That determination is here reconfirmed and an order 

directing payment of the penalty is incorporated herein. 

Citation No. 4264052 

This citation charges as follows: 

wThe 25/3W haulageway was not kept free of wet and 

muddy conditions. At No. 29 and from 10 to 12 crosscuts 

mud and water up to 24 inches in depth affected the 

control of equipment." 

This citation was issued by MSHA Inspector Robert Stamm on 

September 5, 1995, based upon Safeguard No. 3536015 issued 

76 3 
PEDER.AL MINE. SAFETY AND JIEAL'l'B REVXEW COMMISSION 

OFFICE Of ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG Pit(£ 

FALLS CHURCH, VIRGINIA 22041 

MAY .2 1996 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

AMAX COAL COMPANY, 

Respondent 

. . 

: Docket No. LAKE 96-17 

: A.C. No. 11-00877-04131 . . 

: Wabash Mine . . 

. . DECISION 

Appearances: Ruben R. Chapa, Esq., Office of the Solicitor, 

U.S. Dept. of Labor, Chicago, Illinois for 

Petitioner; 

R. Henry Moore, Esq., Buchanan Ingersoll P.c., 

Pittsburgh, Pennsylvania for Respondent. 

Before: 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. S 801, et 

seq., the •Act," charging the Amax coal Company. (Amax) with two 

violations under the Act and proposing civil penalties of $2,809 

for those violations. 

Order No. 4263998 \ 

At hearing petitioner filed a motion to approve a settlement 

agreement as to this order. A reduction in penalty from $2,500 

to $2,000 was proposed. Based on the representations and 

documentation submitted I concluded that the proffered settlement 

was acceptable under the criteria set forth in Section 110(i) of 

the Act. That determination is here reconfirmed and an order 

directing payment of the penalty is incorporated herein. 

Citation No. 4263995 

This citation charges as follows: 

•The 25/3W haulageway was not kept free of wet and 

muddy conditions. At No. 29 and from 10 to 12 crosscuts 

mud and water up to 24 inches in depth affected the 

control of equipment." 

This citation was issued by MSHA Inspector Robert Stamm on 

September 5, 1995, based upon Safeguard No. 3536015 issued 

764 
April 27, 1992. The safeguard had been issued pursuant to the 

criteria set forth in the standard at 30 C.F. R. S 75.1403-10(i) . That standard provides that *[o]ff-track haulage roadways should 

be maintained as free as practicable from bottom irregularities, 

debris, and wet or muddy conditions that affect the control of 

equipment. " · 

The underlying safeguard provided as follows : 

*The haulage road in the Number 3 entry on the 1st S/1st W/ 

MWS entries was not being ~aintained free of wet 

and muddy conditions that affected the control of the 

Gettman tractor(oil car) from spad number 35170 to 200 

feet ~utby. This is a notice to provide s~feguards 

requiring this roadway and other roadways at this mine to be 

maintained free as practical from wet or muddy conditions 

that affect the control of equipment." 

The Secretary's general authority to. issue safeguards is 

derived from Section 314(b) of the Act. This Commission has held 

that the language of that section is broad and •manifests a 

legislative purpose to guard against all hazards attendant upon 

haulage and transport [ation] in coal mining." Jim Walter 

Resources, Inc., 7 FMSHRC 493, 496 {April 1985). The Commission 

has also observed that while other mandatory safety and health 

standards are adopted through the notice-and-comment rulemaking procedures of Section 101 of the Act, Section 314(b) extends 

authority to the Secretary to create on a mine-by-mine basis what 

are, in effect, mandatory standards, without the formalities of 

rulemaking. Southern Ohio Coal Company, 7 FMSHRC 509, 512 

(April 1985). The Commission bas recognized that •this unusually 

broad grant of regulatory authority must be boun~ed by a rule of 

interpretation more restrained than that accorded ,promulgated standards.~ Id. 

The Commission also held in BethEnergy Mines, Inc., 14 

FMSHRC 17 (January 1992) that a safeguard must be based upon the 

specific conditions at a mine. Further, in Southern Ohio c oal 

Company, 14 FMSHRC l (January 1992), the Commission held that the 

Secretary has the burden of proving that the inspector evaluated 

the specific conditions at the particular mine at issue and 

determined that a safeguard was warranted in order to address a 

transportation hazard. The safeguard notice must also identify with specificity the nature of the hazard at which it was 

directed and the conduct of the operator necessary to remedy such 

hazard. 

The initial question presented in this case, theref ore, is 

whether the instant safeguard was validly issued. I find, upon 

the credible testimony of the issuing inspector, that it was. 

765 
According to the undisputed testimony of the issuing inspector, 

Wilbur Deuel, he observed on April 27, 1992, a Gettman diesel 

tractor which was unable to climb a hill in the mine because of 

•slick" conditions, described in his safeguard as wet and muddy. Deuel was concerned that the Gettman could lose control on the 

slick incline, which he noted was one of the steepest in the 

mine . This evidence adequately establishes that the inspector 

evaluated specific conditions at the mine in determining that 

this safeguard was warranted. 

The identification of th~ nature of the cited hazard was 

also made in the notice to provide safeguard with the requisite 

specificity. It is not material to this issue that the wet and 

slippery . conditions may have been found in a different location 

in the mine or on an incline. Although the wet and slippery 

conditions may have been aggravated by the incline, the 

underlying hazard was wet and slippery conditions on a 

haulageway. The criteria for a valid issuance of the safeguard 

have, therefore, been met. 

The issue then, is whether Amax violated the safeguard in 

this case. The evidence is overwhelming that it did. According 

to MSHA Inspector Robert Stamm, on September 5, 1995, during the 

course of his inspection, he discovered standing water and mud at 

two locations. At crosscut No. 29 there was 30 feet of water 

along the 15-foot-wide entry and at the No. 15 to 20 crosscuts 

the body of water was 150 feet long, 15 feet wide and up to 24 

inches deep. At the time he issued the citation a Gettman 

tractor was also stuck· in the mud. Stamm noted that the hazard 

was from the mud itself and he observed that the Gettman tractor 

had been sliding toward the rib. This was evident from its tire 

tracks. According to Stamm, the condition should have been known 

to the operator as the section foreman must travel this area each 

day. He also observed that pumps had been installed in the area 

but they were not then operating. Amax representative Ray Evans 

told Stamm that in any event it would be difficult to pump mud 

with these pumps. 

Stamm believed that the violation was "significant and 

substantial" and of high gravity because of the possibility of 

running into a rib and passengers being thrown around. He also 

observed that material falling into the water, such as cement 

blocks and roof bolts, could be hit by vehicles, thereby causing accidents. · 

Mine examiner and United Mine Workers of America (UMWA) 

safety committee chairman, Joe Hoover, testified that he saw 

these conditions on September s, 1995, and noted that the water 

extended from rib to rib. The Gettman tractor was also •hung up" 

with the oil and fuel cars it was pulling. Hoover noted that 

pickup trucks also traveled through the cited area and that he 

76 6 
had seen such trucks drive up to 30 miles per hour. He noted 

that it was not uncommon for wet conditions to exist at the face 

areas and in the returns_ and primary intakes. He further 

observed that the cited area was a secondary escapeway and that 

employees passed through this area to get to the working section. 

Within this framework of evidence, it is clear that the 

violation has been proven as charged, that the violation was 

•significant and substantial• and the violation was the result of 

negligence. A violation is properly designated as •significant 

and substantial• if, based on the particular facts surrounding 

that violation, there exists a reasonable likelihood that the 

hazard contributed to will result in an injury or illness of a 

reasonably ·serious nature. Cement Division, National Gypsum Co., 

3 FMSHRC 822, 825 (1981). In Mathies Coal Co., 6 FMSHRC 1, 3-4 

(1984), the Commission explained: 

In order to establish that a violation of a 

mandatory standard is significant and substantial 

under National Gypsum the Secretary must prove: 

(1) the underlying violation of a mandatory safety 

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

measure of danger to safety -- contributed to by the 

violation, (3) a reasonable likelihood that the hazard 

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

reasonable likelihood that the injury in question will 

be of a reasonably serious nature. 

See also Austin Power Co. v. Secretary, 861, F. 2d 99, 

103-04 (5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021 (1987) 

(approving Mathies criteria. 

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 (1984), and 

also that the likelihood of injury be evaluated in terms of 

continued normal mining operations. U.S. Steel Mining co., Inc., 

6 FMSHRC 1473, 1574 (1984); see also Halfway, Inc., 8 FMSHRC 8, 

12 (1986) and southern Oil coal Co., 13 FMSHRC 912, 916-17 

(1991). It may reasonably be inferred from the record herein 

that large vehicles such as diesel tractors and pickup trucks 

driving through muddy, wet and slick conditions would likely skid 

into other equipment or vehicles, a miner or a rib thereby 

causing serious injuries. The operator's negligence may also be 

inferred from the evidence that the cited area was traveled by foremen each shift who would thereby necessarily have observed 

the cited violative conditions. 

7 6 7 
Under the circumstances and considering the criteria under 

Section llO(i) of the Act, I find that the penalty proposed by the Secretary is reasonable. 

OBDEB 

Order No . 4263998 and Citation No. 4264052 are affirmed. 

Amax Coal Company is directed to pay a civil penalty of $2,309 . 00 

within 30 days of the date of this decision. 

Distribution: 

Ruben R. Chapa, Esq., Christine M. Kassak, Esq., Office of the 

Solicitor, U.S. Dept. of Labor, 230 s. Dearborn Street, 8th 

Floor, Chicago, IL 60604 (Certified Mail) 

R. Henry Moore, Esq., Buchanan Ingersoll, 301 Grant Street, 20th 

Floor, Pittsburgh, PA 15219-1410 (Certified Mail) 

\jf 

76 8 
PEDERAL MINE SAPETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

303-844-3993/FAX 303-844-5268 

MAY 1 3 1996 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA), 

Petitioner 

v. 

FMC WYOMING CORPORATION, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 95-188-M 

A.C. No. 48-00152-05644 

·FMC - Trona Mine 

DECISION 

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

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

for Petitioner; 

Matthew F. McNulty, III, Esq., 

Salt Lake City, Utah, 

for Respondent. 

Before: Judge Cetti 

This case is before me upon a petition for assessment of 

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

and Health Act of 1977, 30 u.s.c. § 801 et~ the., "Act." The 

Secretary of Labor on behalf of the Mine Safety and \ttealth Administration, {MSHA), charged the Respondent, the operator of 

Trona Mine, with a permissibility violation of mine safety 

standards set forth in 30 C.F.R. § 57.22305. 

The operator filed a timely answer cqntesting the alleged 

violation and the amount of the proposed penalty. This matter, 

originally noticed for hearing to be held on April 3, 1996, but 

was by oral stipulation of the parties and consent of the Judge, 

it was heard on April 2, 1996, in Salt Lake City where other 

cases involving the same parties were heard. 

The Trona mine is a large underground mine. The mine has a 

level horizontal body of ore with approximately 1,500 to 1,600 

feet of cover. MSHA charged that the proximity switches for the 

number 4 hoist located at the top of the number 4 shaft were not 

maintained in permissible condition as required by 30 C.F.R. 

§ 57.22305. 

769 
At the hearing, counsel for the Secretary stated the issues 

with respect to the permissibility violation alleged in Citation 

No. 4338843, were (1) whether or not there was a violation of the 

safety standard and (2) if there was a violation, whether or not 

the violation was significant and substantial and (3) the appropriate penalty. 

The Secretary presented the testimony of the MSHA mine inspector, Danny Frey, who issued the citation in question. He 

testified the Trona mine was a large underground mine. The mine 

releases some methane gas during the mining process. Frey stated 

if the methane is not properly controlled, there can be an explosion hazard. To have an explosion, there must be 5 to 15 percent 

methane in the mine atmosphere and the oxygen content can be as 

low as 12 percent and of course, there must be an ignition 

source. The mine is a gassy mine that liberates more than one 

million cubic feet of methane in 24 hours and is subject to spot 

inspection on a five day interval under § 103(i) of the Act. The 

mine has a forced air ventilation system. The shaft, in question, is used for hoisting muck from the mine. It's not a man 

hoist and is not used to transport miners. It is used to expel 

the return (exhaust) air from the mine. This shaft extended from 

the surface of the mine to the mine workings some 1,500 to 1,600 

feet below. The return air enters the No. 4 shaft at the bottom 

of the shaft and goes straight up through ~he vertical shaft, in 

question, into the atmosphere at the surface. The switches, in 

question, are located above ground level. The switches, nevertheless, are required to be permissible because the exhaust air 

as it comes out of the shaft has the potential of containing 

methane. Since the switches were not permissible, there was a 

violation of 30 C.F.R. § 57.22305. The primary question remaining was whether the violation was properly designated S&S. 

The inspector took readings of the methane. content of the 

exhaust air as it entered the bottom of the No. \ 4 shaft approximately 1,500 to 1,600 feet below the location of the proximity 

switches. The inspector on cross-examination testified that 

using the methane readings obtained, there was not enough methane 

content in the return air at the proximity switches to have an 

ignition or explosion. There would have to be a minimum of 5 

percent methane content to have an explosion and the methane 

readings obtained shows the methane content of the exhaust air to 

be less than 1 percent. (Govt. Ex. 1 & 2). Consequently, the 

likelihood of an explosion was remote rather than reasonably 

likely. 

After all the evidence was presented, there was an off the 

record discussion of the evidence and it was agreed and stated 

for the record that based upon the evidence presented at the 

hearing that Citation No. 4339843 should be classified as non 

S&S. This conclusion was based on the lack of evidence of 

770 
sufficient methane in the -area of the proximity switches to 

create a reasonable likelihood that the hazard contributed would 

result in an injury of a reasonable serious nature. Mathies Coal 

co . , 6 FMSHRC 1, 3-4 (January 1984). 

Upon consideration of the statutory criteria in section 

110(i) of the Mine Act, the appropriate penalty of this violation 

of the cited safety standard is $100. 

Order 4338895 issued September 9, 1994, is vacated at the 

request of Petitioner as it is now believed an extension of the 

abatement period should have been issued rather than a 104(b) 

order since the operator was moving towards compliance. 

ORDER 

In view of the foregoing, Order No . 4338893 is VACATED; 

Citation No. 4338834 is modified to delete the S&S finding and as 

so modified the citation is AFFIRMED. FMC .shall pay a civil 

penalty of $100 to the Secretary of Labor within 30 days of the 

date of this order. Upon receipt of payment, this case is 

dismissed. 

Distribution: 

st F. Cetti 

nistrative Law Judge 

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

Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

{Certified Mail) 

Matthew F. McNulty, III, Esq., Eric E. Vernon, Esq . , 50 south 

Main Street, Suite 1600, P.O. Box 45340, Salt Lake City, UT 84145 

{Certified Mail) 

/sh 

771 
FEDERAL MINE .SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

6203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY l 5 .1996. 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

BECK MATERIALS COMPANY, 

Respondent 

DECISION 

Docket No. CENT 95-203-M 

A. C. No. 23-02086-05503 

HWY 54 South Quarry 

Appearances:. Margaret A. Miller, Esq., Office of the Solicitor, 

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

the Secretary; 

Keith A. Wenzel, Esq., Inglish & Monaco, P.C., 

Jefferson City, Missouri, for Respondent. 

Before: Judge Maurer 

\ 

STATEMENT OF THE CASE 

This case is before me upon the petition for assessment of 

civil penalty filed by the Secretary of Labor (Secretary) against 

the Beck Materials Company {Beck Materials) pursuant to 

section 105 of the Federal Mine Safety and Health Act of 1977, . 

30 U.S.C. § 815. The petition charges Beck Materials with three 

violations of the mandatory standards found in 30 C.F.R. Part 56 

and seeks civil penalties of $3500, as a result of a serious 

injury accident which occurred on December 7, 1994, at Beck 

Materials' Highway 54 South Quarry. 

Pursuant to notice, this case was heard at Columbia, 

Missouri, on December 5, 1995. Both parties have subsequently 

filed written proposed findings of fact and conclusions of law, 

which I have considered along with the entire record in this case 

in arriving at the following decision. 

772 
STIPtlLATIONS 

At the commencement of the hearing, the parties proffered a 

si~ned set of stipulations, dated December 5, 1995, which I 

accepted into the record (Tr. 5-6) as follows: 

1. Beck Materials Company is engaged in mining and selling 

of limestone in the United States~ and its mining operations 

affect interstate commerce. 

2. Beck Materials Company is the owner and operator of 

Highway 54 South Quarry Mine, MSHA ID No. 23-02086. The 

Highway 54 South Quarry Mine is a limestone mine using 

conventional mining methods to drill and blast limestone. 

3. Beck Materials Company is subject to the jurisdiction 

of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. 

§ 801 .e..t. ~· ("the Act"). 

4. The administrative law judge has jurisdiction in this 

matter. 

5. The subject citations were properly served by a duly 

authorized representative of the Secretary upon an agent of 

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

admitted into evidence for the purpose of establishing their 

issuance, and not for the truthfulness or relevancy of any 

statements asserted therein. 

6. Doug Laird, Plant Foreman, was seriously injured at 

approximately 4:30 p.m., on December 7, 1994, when he slipped or 

tri~ped and fell onto a moving conveyor belt. His right arm was 

pulled between the drive pulley and the moving conveyor belt. 

7. Mr. Laird had 1 year and 1 month total mining 

experience, all at the Beck Materials Mine. 

8. The exhibits to be offered by respondent and the 

Secretary are stipulated to be authentic but no stipulation is 

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

therein. 

773 
9 . The proposed penalties will not affect respondent's 

ability to continue in business. 

10. The operator demonstrated good faith in abating the 

violations. 

ll. Beck Materials Company is a limestone mine operator 

with 98,214 production hours worked in 1994. The mine employs 

about 10 miners who work 9 ~ hour shifts each day, 5 days per 

week. 

12. The certified copy of the MSHA Assessed Violations 

History accurately reflects the history of this mine for the 

2 years prior to the date of the citations. 

PlNPIHGS. CQNCLUSlQNS AND DISCUSSlQN 

On January 31, 1995, MSHA Inspector Robert D. Seelke, 

subsequent to an accident investigation, issued section 104(d) (1) 

Citation No. 4329266 to Beck Materials for a violation of 

30 C.F.R. § 56.120161 alleging that: 

At approx {sic) 4:30 pm on Dec. 7, 1994, plant foreman, 

Doug Laird, who was filling in as the plant operator, 

was seriously injured when ·his right arm was pulled 

between the drive pulley and the moving conveyor belt 

of the under scalping screen conveyor . Th . injured 

1 / 30 C.F.R. § 56.12016 provides: "Electrically powered 

equipment shall be deenergized before mechanical work is done on 

such equipment. Power switches shall be locked out or other 

measures taken which shall prevent the equipment from being 

energized without the knowledge of the individuals working on it. 

Suitable warning notices shall be posted at the power switch and 

signed by the individuals who are to do the work. Such locks or 

preventive devices shall be removed only by the persons who 

installed them or by authorized personnel." 

774 
employee elected to make adjustments to the tracking of 

the belt without deenergizing the conveyor system. 

While checking the adjustments the employee slipped or 

tripped while walking on the framework of the screen, 

bin, conveyor system and fell over the top of the side 

guard on the drive pulley. His right hand & arm 

contacted the moving conveyor which pulled his right 

arm into the pinch point of the drive pulley & conveyor 

belt. This is an unwarrant&ble failure. 

On that same date, Inspector Seelke also issued 

section 104(d) (1) Order No. 4329267 to Beck Materials for a 

violation of 30 C.F.R. § 56.110012 alleging that: 

At approx (sic) 4:30 pm on Dec. 7, 1994, plant foreman, 

Doug Laird, who was filling in as the plant operator, 

was seriously injured when his right arm was pulled 

between the drive pulley & the moving conveyor belt of 

the under scalping screen conveyor. The employee was 

not using a safe means of access to check the 

adjustments he had made on the belt. The injured 

elected to walk the 9" I-beam, that is part of the 

scalping screen and conveyor frame, to check the belt 

movement after making adjustments. While attempting to 

step from the 9 11 I-beam to the tail pulley guard of the 

#1 product belt he slipped or tripped and fell causing 

his right arm to contact the moving under scalping 

screen conveyor, which pulled his arm into the pinch 

point between the drive pulley and the belt. This is 

an unwarrantable failure. 

2 / 30 C.F.R. § 56.11001 provides: "Safe means of access 

shall be provided and maintained to all working places." 

775 
Additionally, the inspector issued section l04(a) Citation 

No. 4329268 to· Beck Materials for a violation of 30 C.F.R. 

§ 56.14107(a) 3 alleging that: 

At approx (sic) 4:30 pm o~ Dec. 7, 1994, plant foreman, 

Doug Laird, who was filling in as the plant operator, 

was seriously injured when his right arm was pulled 

between the drive pulley and the moving conveyor belt 

of the under scalping screen conveyor. Upon 

investigation of the accident site it was concluded 

that the drive & the tail pullies (sic) of the conveyor 

wer~ not sufficiently guarded to prevent contact with 

the pinch point. 

On December 7, 1994, the date of the accident, the plant had 

crushed rock until early afternoon when due to rain, they ran out 

of dry material in the pit and had to shut the plant down. Danny 

Foster, the plant superintendent, sent some of the men home at 

that time, but kept Doug Laird, a plant foreman and the accident 

victim, there to do some work on the plant. More specifically, 

Laird was adjusting the under scalping screen conveyor belt4 when 

he was injured. 

Earlier that day, Laird and Andrew Mitchem, a loader 

operator, had attempted to make tracking adjustments to the belt, 

but were unable to get it to track properly. After the plant 

' \ 

3 / 30 C.F.R. § 56.14107(a) provides in pertinent part that: 

"Moving machine parts shall be guarded to protect persons from 

contacting gears, sprockets, chains, drive, head, tail, and 

take up pulleys .. . that can cause injury." 

4 / The under scalping screen conveyor is a horizontal inhouse manufactured conveyor· that Beck Materials Company 

manufactured in approximately 1989. The conveyor belt is 

30-inches wide and the conveyor measures approximately 20-feet 

from the head pulley to the tail pulley. It is electrically 

powered and travels at approximately 250 feet per minute. The 

top of the conveyor belt is approximately 6 ~ feet above ground 

level. 

776 
., 

shut down, Laird testified that he went back to this task. He 

started just that one belt back up, went to the south side of the 

plant and got up on the framework where he could reach the 

adjustment screws and bolts. In order to climb up there, he 

utilized the wheels and axles that run underneath the plant and 

climbed from there to a 9-inch wide I-beam rail from where he 

could reach the adjustment screws and bolts. He testified that 

there was no ladder available to climb up there to make these 

adjustments. 

He adjusted the belt several times, but he stated that the 

belt was not responding so he went back around to the other side 

of the plant to see if the belt was hanging up on anything but 

could not locate any problem. At this point, he climbed up onto 

the I-beam framework again and looked to see what might be 

holding the belt up. Not seeing anything blocking the conveyor 

belt, he was moving back along the I-beam framework of the bin 

and conveyor on the north side, getting ready to go back around 

to the other side and make further adjustments when he fell. His 

right hand was pulled up into the head pulley of the still 

running belt. As a result of the accident, his right shoulder 

and arm were amputated and he sustained a severe injury to his 

spinal cord which causes him chronic and severe pain. He is 

disabled from further employment. 

Inspector Seelke issued Citation No. 4329266 because Laird 

had been making mechanical adjustments to the electrically 

powered equipment without deenergizing and locking out that 

equipment, all in violation of 30 C.F.R. § 56.12016. 

It is beyond dispute that the cited conveyor belt was in 

fact running and therefore llQt. deenersized and locked out at the 

time of the accident, and it is also undisputed that Laird was 

performing mechanical work on it. Accordingly, that, without 

more, is. sufficient to find that a violation of 30 C.F.R. 

§ 56.12016 occurred and I do so find. 

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." 

777 
30 U.S.C. § 814 (d) (1). A violation is properly designated 

significant and substantial 11 if based upon the particular facts 

surrounding the violat ion there exists a reasonable likelihood 

that the hazard contributed to will result in an injury ~r 

illness of a reasonably serious nature. 11 Cement Division. 

National Gypsum Co., 3 FMSHRC 825 (April 1981} . 

In Mathies Coal Co., 6 FMSHRC l, 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 

injμry in question will be of a reasonably serious 

nature. 

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

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

We have explained further that the third e.lement of the 

Mathies formula "requires that the Secretary establish 

a reasonable likelihood that the hazard contributed to 

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

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

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

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

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

must be significant and substantial . U. S . Steel 

Mining Company. Inc., 6 FMSHRC 1866, 1868 (August 

1984 ) ; U. S . Steel Mining Company . Inc., 6 FMSHRC 1573, 

1574-75 (July 1984 ) I 

In this case we do not have to deal with likelihoods, 

possibilities or probabilities. A serious injury accident did in 

fact occur, as a direct result of this violation and as a result 

778 
of that accident, Laird was permanently disabled from gainful 

employment. I therefore find this cited violation to be 

significant and substantial ("S&S" ) and· serious. 

The Secretary also alleges the violation was the result of 

the respondent's "unwarrantable failure" to comply with the cited 

standard. 

In Emery Mining Corp., 9 FMSHRC 1997, 2004 (December 1987), 

the Commission determined that unwarrantable failure is aggravated conduct constituting more than ordinary negligence. This 

determination was derived, in part, from the plain meaning of 

"unwarrantable" ( 11 not justifiable" or "inexcusable" ) , "failure" 

("neglect of an assigned, expected or appropriate action"), and 

"negligence" (the failure to use such care as a reasonably 

prudent and careful person would use, and is characterized by 

"inadvertence," "thoughtlessness," and "inattention" ). 9 FMSHRC 

at 2001. Unwarrantable failure is characterized by such conduct 

as "reckless disregard, 11 11 intentional misconduct," "indifference" 

or a "serious lack of reasonable care . 11 9 FMSHRC at 2003-04; 

Rochester & Pittsburgh Coal Co., 13 FMSHRC at 189, 193-94 

(February 1991 ) . The Commission has also stated that use of a 

"knew or should have known" test by its.elf would make unwarrantable failure indistinguishable from ordinary negligence, and 

accordingly, the Commission rejected such an interpretation. A 

breach of a duty to know is not necessarily an unwa+rantable 

failure. The thrust of Emery was that unwarrantabl , failure 

results from aggravated conduct, constituting more than ordinary 

negligence. Secretary v . .Virginia Crews Coal Co., 15 FMSHRC 

2103, 2107 (October 1993}. 

Respondent's defense to the "unwarrantable failure" charge 

contained in this citation is basically that Laird did not follow 

established company procedures in attempting to adjust the 

conveyor belt tracking. Several witnesses testified to the 

effect that respondent has a lock-out procedure in place and it 

has been addressed repeatedly over the years at safety meetings. 

However, that testimony aside, I find that that "official" policy 

was not actually being observed in practice. Mr. Laird very 

credibly testified that he was performing the tracking 

77 9 
adjustments in the manner that he had been taught personally by 

Mr. Foster, the superintendent, that is, with the belt running. 

I therefore find and conclude that this violation ·occurred as a 

result of the aggravated negligence of the operator. 

Ac~ordingly, Citation No. 4329266 will be affirmed herein, as 

issued, in its entirely. 

On the basis of the foregoing findings and conclusions, and 

taking into account the civil penalty assessment criteria found 

in section llO(i) of the Act, I conclude and find that a civil 

penalty of $1500, as proposed by the Secretary for this citation, 

is a reasonable and appropriate civil penalty that will serve to 

satisfy the public interest in this matter. 

Inspector Seelke issued section 104(d) (1) Order No. 4329267 

on January 31, 1995. He testified that Laird did not use a safe 

means of access to make or check the adjustments he had made on 

the belt . Several times Laird climbed up on or walked along the 

I-beam of the framework of the machinery to make adjustments to 

the belt or check those adjustments. In Seelke's opinion, which 

I accept, a secured ladder should have been used to make and 

check the adjustments on both sides of the equipment. This 

becomes even more obvious when you consider that the belt was 

running at the time Laird was attempting to adjust the tracking 

on it. If Laird had used a safe means of access, such as a 

secured ladder, he· would not have fallen onto the running belt. 

There was testimony to the effect that ladders were 

available on the premises, but they were inside a trailer rather 

than in place on the equipment. Mr. Laird testified that no 

ladder was available to him, and he saw no other way to access 

the belt to make the needed adjustments other than to climb up 

onto the I-beam. 

I find that there was a violation of the cited standard 

since no safe means of access was readily available and in any 

case, no safe means of access was used by Laird in this instance, 

even if one could argue that he should have gone wherever he had 

to to locate a suitable ladder. 

780 
Applying the Mathies test, I find that the violation is a 

significant arid substantial one given that the lack of a safe 

means of access contributed to the serious injury sustained by 

Mr. Laird. 

I also find that the negligence involved in this violation 

demonstrates aggravated conduct on the part of the operator and 

it is properly designated as an "unwarrantable failure" order. 

Mr ~ Foster, the mine superintendent, who did not appear to 

testify in this case, was on the premises at the time, knew that 

Laird was working alone and in fact, had personally instructed 

Laird at an earlier date regarding the procedure for adjusting 

the tracking· on these belts, including making the adjustments 

without a ladder or other safe means of access to do so. 

Furthermore, on many previous occasions, Laird had observed 

Foster, and others, adjust the belts without deenergizing the 

equipment and without using a safe means of access to reach the 

adjustments on the equipment. Accordingly, Order No. 4329267 

will be affirmed herein, as issued, in its entirety. 

On the basis of the foregoing findings and conclusions, and 

taking into account the civil penalty assessment criteria found 

in section llO(i) of the Act, I conclude and find that a civil 

penalty of $1000, as proposed by the Secretary for this order, 

will serve to satisfy the public interest in this matter. 

Inspector Seelke also issued a section 104(a) citation on 

January 31, 1995, to Beck Materials (Citation No. ~29268). This 

was basically a guarding violation. Allegedly, the \drive pulley 

on the under scalper conveyor was not sufficiently guarded . 

The equipment was in fact guarded sufficiently for anyone 

approaching the pinch point from the ground, the more foreseeable 

hazard. The problem in this case and the reason that the 

inspector issued the citation was that an employee, Laird, found 

a way, by using the I-beam as a walkway, to get into the pinch 

point between the conveyor belt and the drive pulley of the under 

scalping screen conveyor despite the existing guarding. 

The finding of violation follows from the fact that Laird 

did in fact make contact with the unguarded moving parts from 

above, no matter how difficult it might have been to foretell 

781 
that occurrence beforehand. Likewise, the violation is 

significant and substantial ("S&S") simply because of the gravity 

of the occurrence and the resultant very serious injury to 

Mr. Laird. 

The only issue I take with .the inspector who wrote the 

instant citation is that of the negligence factor contained in 

Block No. 11 of the citation . I am going to modify that 

negligence factor from "moderate" to "low," based on what I 

perceive to be the relative unforseeability of contact with the 

pinch point from above the pu£ley as opposed to from the 

direction of the ground, from whence it was adequately guarded. 

With that modification, Citation No. 4329268 will be affirmed 

herein . 

On the basis of the foregoing findings and conclusions, and 

taking into account the civil penalty assessment criteria 

contained in section llO(i) of the Act , I conclude ·and find that 

a civil penalty of $300 is a reasonable and appropriate civil 

penalty that will serve to satisfy the public interest in this 

matter. 

ORDER 

1 . Citation No. 4329266 and Order No. 4329267 ARE AFFIRMED . 

2. Citation No. 4329268, as modified herein, IS AFFIRMED . 

3. The Beck Materials Company IS ORDERED TO PAY the 

Secretary of Labor a civi l penalty of $2800 wi thin 30 days of the 

date of this decision. 

hthA/l~-- · J l ·' J Roy 1 J, .j Maurer 

Adm.\jifstrative Law Judge 

782 
Distribution: 

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

u. S. Department of Labor, 1999 Broadway, Suite 1600, Denver, CO 

80~02-5716 (Certified Mail) 

Keith A. Wenzel, Esq., Inglish & Monaco, P.C., 237 East High 

Street, Jefferson City, MO 65101 (Certified Mail} 

dcp 

783 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFJCE OF ADKIN1STRATJVE LA~ JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 2Z041 

MAY 1 5 1996' 

PEABODY 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. 

PEABODY COAL COMPANY, 

Respondent 

CONTEST PROCEEDINGS 

Docket No. KENT 93-318-R 

Citation No. 3551261; 1/6/93 

Docket No. KENT 93-319-R 

Order No. 3551262; 1/6/93 

Docket No. KENT 93-320-R 

Order No. 3551263; 1/20/93 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 93-437 

A.C. No. 15-02709-03840 

Camp No. l Mine 

Mine ID No. 15-02709 

DECISION ON REMAND 

Before: Judge Arnchan 

The Commission Decision and Remand Order 

On April 19, 1996, the Commission reversed and remanded my 

January 5, 1994 decision in these matters. I had found Peabody:s 

violations of the respirable dust limit in 30 C.F.R. §70.lOO(a) 

with regard to three of its six mechanized mining units to be due 

to an "unwarrantable failure" to comply the standard and due to 

high negligence. This Commission concluded: 

. . . Peabody's remedial measures clearly demonstrate a 

good faith, reasonable belief that it was taking steps 

necessary to solve its dust problems and this record 

cannot support a finding of high negligence or 

unwarrantable failure. (Slip opinion at page 6.} 

784 
This matter is now before me to reassess the civil penalties 

with regard to. these violations. 

Findings of Fact 

Violative conditions and prior-respirable dust violations 

in the two years before the instant citation and orders 

On January 6, 1993, MSHA inspector Arthur Ridley reviewed 

the results of Respondent's bimonthly sampling for respirable 

dust for the period of November-December 1992 (Tr. 16-18). These 

records indicated that for the five samples taken in the sampling 

period, the .average exposure of the continuous miner operator on 

mechanized mining unit (MMU) 044 was 2.4 mg/m3 (Jt. Exh. 4). 

Ridley therefore issued Citation No. 3551261, alleging a 

violation of 30 C.F.R. § 70.lOO(a), which requires that: 

Each operator shall continuously maintain the average 

concentration of respirable dust in the mine atmosphere 

during each shift to which each miner in the active 

workings of each mine is exposed at or below 2.0 milligrams of respirable dust per cubic meter of air .... 

The citation was issued pursuant to section 104(d} (1) of the 

Act in that it alleged that the violation was "significant and 

substantial" (S&S) and due to the "unwarrantable failure" of 

Peabody to comply with the standard. A $4,000 civi~ penalty was 

proposed for this alleged violation. · 

On January 6, 1993, the inspector also reviewed the results 

of the November-December 1992 sampling of the continuous miner 

operator on MMU 056. The five samples also averaged 2 . 4 mg/m3 

(Tr. 58-59, 63). Ridley issued section 104(d) (1) Order 

No. 3551262. The Secretary subsequently proposed a $6,000 civil 

penalty. 

Ridley returned to Camp 1 on January 20, 1993 and reviewed 

samples taken between January 4 and 6, 1993, on MMU 047 for the 

January-February 1993 bimonthly sampling period. These averaged 

2 . 2 mg/m3. The inspector issued section 104(d) (2) Order 

No. 3551263. The proposed penalty for this order was $6,000. 

78 5 
While Peabody conceded that the violations were "S&S," it 

challenged the allegations of unwarrantable failure and high 

negligence. These allegations were predicated on the number of 

citations issued within the prior two years for violations of the 

respirable dust standard on each on the mechanized mining ·units 

-cited in January~ 1993 (Tr. 34-39, 65, 74-75, 83-85, 100-102) . 1 

These violations were considered only on a MMU-by-MMU basis; the 

Secretary did not consider Respondent's compliance record as a 

whole {Tr. 74-75, 100-102). 

In the two years prior to January 1993, Unit 044 had been 

sampled in 10 of the 12 bimonthly sampling periods. Respondent 

had been .out of compliance with the respirable dust standard on 

four of these occasions. On February 8, 1991, Respondent 

received a citation because the samples on Unit 044 averaged 

3.3 mg/m3 for the January-February 1991 bimonthly sampling period 

(Exhibit G-1). On March 28, 1991, a section 104{b) order was 

issued because the samples for the March-April 1991 bimonthly 

period averaged 2.2 mg/m3. On December 2, 1991, a section 104(a) 

citation was issued because the samples for the November-December 

1991 bimonthly period averaged 2.7 mg/m3 (Exhibit G-2, page 2). 

On February 11, 1992, another citation was issued because the 

samples for the January-February 1992 bimonthly period averaged 

2.8 mg/m3 (Exhibit G-2, page 3). 

In the 12 bimonthly sampling periods during calendar year 

1991 and 1992, mechanized mining Unit 056 was out of compliance 

with the respirable dust standard five of the ~ times it was \ 

sampled. In February 1991, Respondent was cited because the 

January-February samples averaged 2.2 mg/m3 (Exhibit G-2). In 

July 1991, Peabody was cited again because the May-June samples 

averaged 2.7 mg/m3. In February 1992, another citation was 

issued because the January-February samples averaged 2.9 mg/m3 

(Exhibit G-2, page 3). In April 1992, MSHA cited Peabody again. 

because the samples for the March-April period averaged 

2 . 6 mg/m3. The fifth violation during 1991-1992 occurred in the 

November-December 1992 sampling period and is addressed by Order 

No. 3551262. 

At the time of the January 1993 citation and orders, 

Peabody had six mechanized mining units in operation at the 

Camp No. 1 mine. 

786 
Mechanized mining Unit 047 was available for sampling in 

only four of the 12 bimonthly sampling periods of 1991-1992. In 

May 1991, a citation was issued because the March-April samples 

averaged 3.0 mg/m3. The next time Unit 047 was sampled was for 

the July-August 1992 sampling perio~ when it was barely in 

compliance at 1.9 mg/m3 (Exhibit G-3, page 4}. For the 

September-October sampling period the average concentration was 

2.4 mg/m3, precipitating another citation (Exhibit G-3, page 4). 

MMU 047 was in compliance for the November-December 1992 sampling 

period, then out of compliance again for the January-February 

1993 period, which is covered by Order No. 3551263. 

Measures Taken Prior to January 1993 to improye 

dust control 

Beginning in January 1992, Peabody implemented a number of 

measures to increase the water supply to its MMUs and thereby 

improve dust control. In January 1992, it began a 6-month 

project to install water flow gauges on its continuous miners. 

This allows the operator of the machine to monitor the amount of 

water. coming through his machine (Tr. 179). 

In February, Respondent began a six to seven month project 

to increase the size of the fittings on the water lines leading 

to the continuous miners from ~ inch to 2 inches (Tr. 181 - 82}. 

In March 1992, Peabody increased the water volume on its 

four continuous miners that are shuttle car units by 25 percent. 

The water volume of its two continuous miners that a~e continuous 

haulage units was increased by SO percent (Tr. 182-83}. 

Beginning in February 1992, Respondent replaced the 2-inch 

plastic pipe in its water lines with 2-inch metal pipe, thus 

allowing it to use greater water pressure (Tr. 183). In March 

1992, Peabody increased the size of the water lines going to the 

miners from 1 inch to 1 ~ inche.s (Tr. 184) . 

In July 1992, the company replaced its water pumps with 

pumps that allowed for increased water pressure {Tr. 188). 

Finally, over a six-week period in November and December, 1992, 

Peabody installed water sprays inside the ductwork of the 

scrubbers on the continuous miners to improve scrubber efficiency 

78 7 
(Tr. 185). Peabody also began working with the manufacturer of 

its continuous miners to reduce restrictions in the water line of 

these machines (Tr. 187). 

Assessment of Civil Penalties 

In my prior decision I assessed a $5,000 civil penalty for 

each of the three respirable dust violations cited by Inspector 

Ridley in January, 1993. Given the fact that the Commission 

has concluded that the record.does not support a finding of 

"unwarrantable failure" or high negligence upon which these 

assessments were predicated, penalties of substantially less than 

$5,000 are clearly indicated by the remand order. 

The Six Statutox:y Criteria for Assessins Civil Penalties 

The effect on the operator's ability to stay in business: 

The parties stipulated that penalties of the magnitude of those 

proposed would not effect Peabody's ability to stay in business. 

Size of the operator: Peabody produces in excess of 

10,000,000 tons of coal a year and is thus a relatively large 

operator. Other things being equal, this would indicate that 

a somewhat larger penalty is more appropriate than for a smaller 

operator. 

Good faith in attemptins to achieve rapid compliance after 

notification of the violation: Peabody immedia~ely acted upon 

Inspector Ridley's suggested method to terminate (or abate) 

the violations. It assigned additional supervisory personnel 

to monitor its employees while they were being sampled for 

respirable dust exposure (Tr. 72-73, 96, 190). These supervisors 

insured that miners positioned themselves where they would minimize dust. exposure and checked on ventilation and water pressur~ 

(Tr. 191). Respondent should be given credit for exercising good 

faith in terminating the citations even though implementation of 

the inspector's suggestions may violate 30 C.F.R. § 70.207, which 

requires that sampling be taken during a normal production shift. 

Sampling results obtained under conditions that are abnormal are 

likely to be unrepresentative of the miners' regular, daily 

exposure to respirable dust. 

788 
Gravity of the violations: The gravity of the violations is 

quite high. The parties have stipulated that the violations are 

~s&S." The record also suggests that Respondent's miners have 

been regularly exposed to respirable dust levels above those 

allowed by the standard for a 2-year period. 

Prior History and Negligence: These factors must be 

considered in unison when assessing a civil penalty in these 

matters. Citation No. 3551261 was the fifth respirable dust 

violation on MMU 044 in a 2-year period. Order No. 3551262 was 

the fifth on MMU 056. Order No. 3.551263 was the third violation 

out of five sampling periods on MMU 047. Although MSHA appears 

to have considered each MMU in isolation, I believe one must 

consider that in January 1993, after numerous prior respirable 

dust violations, three of Respondent's six mechanized mining 

units were in violation of the respirable dust standard. 

Although it is true that two of these violations were for one 

bimonthly sampling period and one was for another, I deem it 

significant that in the same month MSHA cited Respondent for 

respirable dust violations on half of its production units. 

The Commission has found that this record does not support a 

finding of high negligence. Thus, the question becomes whether 

the violations were the result of negligence at all, or simply 

bad luck2 • Since January 1993, Respondent's management has 

watched its continuous miner operators while their dust exposure 

is being sampled (Tr. 214-15). Miner operators have been 

observed on several occasions improperly positioning the curtain 

or line brattice to direct air towards the working f~ce, and 

positioning themselves in the exhaust current, rather than the 

intake current (Tr. 215-16). 

The Commission noted that employee work practices wer~ also 

addressed before the issuance of the instant citations (slip 

2 The Commission concluded that "Peabody's remedial 

measures clearly demonstrate a good faith, reasonable belief 

that it was taking the steps necessary to solve its dust problems 

and this record cannot support a finding of high negligence or 

unwarrantable failure . " Slip opinion at page 6. I infer that 

the record may support a finding of ordinary negligence; otherwise the Commission would have concluded that it did not do so. 

789 
opinion at page 6). The contents of the approved dust control 

plan were covered in annual refresher training and at least at 

some unspecified number of recurring safety meetings (Tr. 213). 

Additionally, in May, 1992, the Superintendent and chief mine 

manager of Camp No. 1 Mine went to employees in each working 

.section and explained in detail Respondent's dust control program 

(Tr. 213). 

I conclude that the instant violations were the result of 

Respondent's "ordinary" negligence . Sampling by MSHA in 1991 

and 1992 indicated that compliance with the standard was 

achievable with the equipment already on site, thus putting 

Peabody ~n notice that something else, such as improper work 

practices, was partially the cause of its excessive respirable 

dust readings (Tr. 48, 89). Moreover, the results of the 

company's sampling in the latter part of 1992 was not such that 

it should have led Respondent to believe that it had solved the 

problem. For the three bimonthly sampling periods May-October 

1992, the results of Peabody's sampling on the three cited 

machines was as follows: 

Sampling MMU 044 MMU 056 MMU 047 

Period 

May-June '92 l.Smg/m3 1..3mg/m3 Non Producing 

July-Aug '92 Non Producing l.2mg/m3 l.9mg/m3 

Sept. -Oct. '92 Non Producing 1. 6mg/rn3 2.4mg/rn3(viola \ 

\ ti on) " 

I conclude that these results were insufficient to give a 

reasonably prudent operator assurance that it had solved its 

respirable dust problem, and should have put it on notice that 

greater attention to employee work practices was necessary. 

Thus, I conclude that the violations found in the NovemberDecember 1992 sampling period on MMU 044 and 056, and the 

violation found on MMU 047 in the January-February 1.993 sampling 

period, were the result of some degree of negligence. 

Considering all six criteria in section llO(i) of the Act in 

unison, I conclude that a penalty of $1,500 is appropriate for 

each section 104(a) citation in this case. 

790 
ORDER 

1. Citation Nos . 3551261, 3551262 and 3551263 are affirmed 

as section 104(a) viol ations. 

2. Peabody Coal Company shall, withing 30 days of the dat e 

of this decision, pay to the Secretary $4,500 for the violations 

found herein. 

Qaq...~ Administrative Law Judge 

Distribution: 

Anne T. Knauff, Office of the Solicitor, U.S . Department of 

Labor, 2002 Richard Jones Rd., Suite B-201, Nashville, 

TN 37215 (Certified Mail) 

David R. Joest, Esq. , 1951 Barrett Court, P.O. Box 1990, 

Henderson, KY 42420- 1990 (Certified Mail) 

/lh 

79 1 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

LANCE A. PAUL, 

v. 

OPFICB OF AJ»UNISTRATIVJ: LAW JUDOBS 

2 SJCYLINB, 10th PLOOR 

5203 LKBSBtJRG l'IltB 

PALLS CBORCB, VIRGINIA 22041 

MAY 1 5 1996 

Complainant 

DISCRIMINATION PROCEEDING 

Docket No. WEST 95-228-DM 

MSHA Case No. WE MD 95-04 

NEWMONT GOLD COMPANY, 

Respondent Gold Quarry 

Mine ID 26-00500 

DECISION APPROVING PROPOSED CIVIL PENALTY 

Before: Judge Feldman 

This matter is before me based upon a discrimination 

complaint filed on March 1, 1995, pursuant to section 105(c) (3) 

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

30 U.S.C. § 815(c) (3) by the complainant, Lance A. Paul, against 

the respondent, Newmont Gold Company (Newmont). On February 22, 

1996, a decision on liability was released wherein it was 

determined that Newmont's November 10, 1994 discharge of 

Lance Paul was discriminatorily motivated and in violation of 

section lOS(c) of the Mine Act. 18 FMSHRC 181. A Supplemental 

Decision approving the parties' Joint Stipulation for Settlement 

awarding Lance Paul economic reinstatement in li°~u of 

reemployment was issued on April 11, 1996. 18 FMSHRC 

The February 22, 1996 decision on liability, citing 

Commission Rule 44(b), 29 C.F.R. § 2700.44(b), requested the 

Secretary to consider filing with this Commission an appropriate 

petition for the purpose of ~reposing a civil penalty for 

Newmont Gold Company's violation of section lOS(c) of the 

Mine Act. 

On March 18, 1996, the Secretary filed a Petition for 

Assessment of Civil Penalty proposing imposition of a civil 

penalty of $9,000.00 in this matter. On May 7, 1996, Newmont, 

through counsel, filed a response to the Secretary's Petition 

stating that, uin the interests of completing this matter without 

further cost and expense of litigation, [it] does not contest the 

proposed pen~lty assessment." I construe the respondent's 

decision to pay the proposed civil penalty as a motion to approve 

settlement. 

792 
ORDER 

I have considered the record in this case, and I conclude 

that the proffered settlement is appropriate under the criteria 

set forth in Section llO(i) of the Act . WHEREFORE, IT IS ORDERED 

that Newmont Gold Company tender payment of a civil penalty of 

$9,000.00 to the Mine Safety and He~lth Administration in 

satisfaction of the subject violation of section lOS(c) of the 

Mine Act. Payment shall be made within 30 days of this decision. 

Upon timely receipt of this civil penalty, and Newmont's timely 

payment to Paul of the stipulated relief as specified in the 

April 11, 1996, decision on damages, this case XS DISMISSED . 

... 

Law Judge 

Distribution: 

Lance A. Paul, P.O. Box 21115, Crescent Valley, NV 89821 

(Certified Mail) 

Lance A. Paul, c/o Operating Engineers Local 3, 1094 Lamoille 

Highway, Elko, NV 89801 (Certified Mail) 

Charles W. Newcom, Esq., Sherman & Howard L.L.C., First 

Interstate Tower North, 633 Seventeenth Street, Suite 3000, 

Denver, CO 80202 (Certified Mail) 

Don R. Hullinger, Director, Human Resources, Newmont Gold 

Company, P.O . Box 669, Carlin, Nevada (Certified Mail) 

Mark R. Malecki, Esq., U.S . Department of Labor, 

Office of the Solicitor, 4015 Wilson Boulevard, Arlington, 

VA 22203 (Certified Mail) 

/mca 

793 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

303-844-3577/FAX 303-844-5268 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA}, 

Petitioner 

v. 

AGGREGATE PRODUCTS INC., 

Respondent 

Before: Judge Manning 

MAY 2 0 1996-

. . 

. . . 

. . 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 95-201-M 

A.C. No. 04-04678-05522 

Docket No. WEST 95-496-M 

A.C. No. 04-04678-05523 

API Pit & Plant 

DECISION 

These cases are before me on petitions for assessment of 

civil penalties filed by the Secretary of Labor, acting through 

the Mine Safety and Heal th Administration · ( "MSHA") , against 

Aggregate Products, Inc. ("API''), pursuant to sections 105 and 

110 of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. 

§ 801 et seq. (1988) ("Mine Act"). The petitions allege seven 

violations of the Secretary's safety regulations. 

The parties filed a joint stipulation of fa,cts in lieu of 

presenting evidence at a hearing. The only issue in the case is 

whether MSHA has jurisdiction over API's screening plant. This 

issue was fully briefed by the parties. For the reasons set 

forth below, I find that MSHA does have jurisdiction over the 

screening plant. Accordingly, I assess penalties in the amount 

of $380.00. 

I. STIPULATED FACTS 

The parties presented the following stipulated facts: 

1. The citations in this proceeding are true and accurate 

in their statement of conditions existing at Aggregate Products 

Inc., screening plant. 

2. The said proposals were duly filed against Respondent in 

accordance with the Rules of the Federal Mine Safety and Health 

Review Commi$sion published in Title 29, Code of Federal Regulations, Section (2700.25) and duly contested. 

794 
3. Respondent has contested the instant violations on the 

basis of MSHA's alleged lack of jurisdiction over the Screening 

Plant operated by API, and in the context of said contest has 

sought a formal legal opinion to that effect. 

4. OSHA is not asserting jur~sdiction over the subject 

screening plant, and has not issued citations or inspected API's 

screening plant. 

5. The Civil Penalties as proposed will not adversely 

affect the operator's ability to remain in business. 

6. The citations in this proceeding were timely abated by 

the respondent in good faith. 

7. John Corcoran, President of Aggregate Products, Inc., 

owns the property on which the extraction, milling, and asphalt 

operations are situated. 

8. The contractor, DCL hired and paid by API, is responsible for the initial extraction process of the material. DCL 

operates its own equipment including front-end loaders, crusher, 

and conveyors. 

9. DCL produces crushed sand and gravel for API according 

(to) size specifications mandated by API. DCL employs approximately three to four employees in this operation. The material 

produced by DCL is stockpiled for use by API. 

10. API employs approximately 15 to 20 employees in its 

operation which consists of a screening plant and asphalt plant. 

11. API, using API employees and equipment, tr~nsports the 

crushed material by use of a front-end loader from the stockpile 

provided by DCL to the Screening Plant feed bin operated by API. 

The screening plant is located approximately 300 feet from the 

DCL stockpile. The material is then conveyed approximately 80 

feet to the top of the Screening Plant where it is processed into 

the size necessary for the production of Asphalt. 

12. The screening plant owned and operated by API screens 

the crushed sand and gravel into specific sizes required for the 

Asphalt operation. The Screening Plant is. a 6' X 16' "Simplicity" Screening Plant consisting of three screening decks for the 

required size and several conveyors which transport the sized 

rock to their respective stockpile. Normally, there are four 

separate stockpiles consisting of 3/8, 1/2, 3/4 inch size rock 

for use in the Asphalt Plant (for) the production of asphalt. 

13. API collects the appropriate sized rock and deposits the 

rock in the required cold feed bin for mixing with the Asphalt 

Operation. 

795 
14. Approximately 1% to 4% of the material from these specific stockpiles is sold to the consuming public. The remainder 

is sold to other contractors or used within the asphalt 

operation. 

rr. SUMMARY OF THE PARTIES' ARGUMENTS 

A. Secretary of Labor 

The Secretary argues that the definition of the term "coal 

or other mine" in section 3 (h).(l) of the Mine Act should be 

broadly construed to include Respondent's screening plant. He 

argues that Respondent's screening plant is a mill that sizes the 

material mined by DCL. He contends that a screening plant need 

not be owned by the same firm that extracts the minerals for Mine 

Act jurisdiction to attach. In making its arguments, the Secretary relies upon the Interagency Agreement between the Occupational Safety and Health Administration ("OSHA") and MSHA. 44 

Fed. Reg. 22827 (April 17, 1979) and several court decisions that 

discuss Mine Act jurisdiction. 

B. API 

API contends that the mining and milling cycle consists of 

the extraction of the material, the crushing and screening of the 

material by DCL, and the storage of the crushed and screened 

product by DCL in a stockpile. It believes that the hot-mix 

asphalt cycle begins when the previously milled material arrives 

at API's hot-mix screening facility for refining to the grade 

necessary for asphalt. Thus, it contends that Mine Act jurisdiction ends at DCL's stockpile of crushed aggregate. API argues 

that its screening plant is incident to and par~, of its manufacture of hot-mix asphalt and is not subject to MSHA jurisdiction. 

III. DISCUSSION WITH FINDINGS OF FACT AND CONCLUSIONS OF LAW 

The starting point for any analysis of Mine Act jurisdiction 

is the definition of coal or other mine. A coal or other mine is 

defined, in pertinent part, as: "(A) an area of land from which 

minerals are extracted ... , (B) private ways and roads appurtenant to such area, and (C) lands, excavations .. . structures, 

facilities, equipment, machines, tools, or other property ... 

used in, or to be used in the work of milling of such minerals, 

or the work of preparing ... minerals." 30 u.s.c. § 802(h) (1). 

The Senate Committee that drafted this definition stated its 

intention that "what is considered to be a mine and to be regulated under this Act be given the broadest possible interpretation, and ... that doubts be resolved in favor of inclusion of a 

facility within the coverage of the Act." s. Rep. No. 181, 95th 

796 
Cong., 1st Sess. 14 (1977), reprinted in Senate Subcommittee on 

Labor, Committee on Human Resources, 95th .Cong., 2d Sess., Legislative History of the Federal Mine Safety and Health Act of 1977, 

at 602 (1978) (Legis. Hist.). 

The issue is whether API is milling minerals at its screening plant in Imperial county, California. The term "milling" is 

not defined in the Mine Act and the parties base their arguments, 

in part, on the MSHA-OSHA Interagency Agreement ("Interagency 

Agreement"). It is important to understand that in some respects 

the Interagency Agreement is not applicable to API's facility. 

API's screening plant is not subject to inspection by OSHA because the State of California has assumed responsibility for 

occupational safety and health inspections under its own program 

("Cal/OSHA"). In California, mines are subject to periodic inspection by Cal/OSHA despite the fact that MSHA also inspects 

these facilities. See generally, Cal. Lab. Code § 6303.5; 30 

u.s.c. § 955(a). Thus, there is overlapping safety and health 

jurisdiction at mines in California. The Interagency Agreement 

is relevant in this case only as it describes the Secretary's 

interpretation of the boundaries of MSHA jurisdiction, not the 

limits of OSHA jurisdiction. 

The Inter agency Agreement provides, i .n pertinent part, that 

"milling consists of one or more of the following processes: 

crushing, grinding, pulverizing, sizing, concentrating, washing, 

drying ••.. " 44 Fed. Reg. at 22829 (emphasis added). Sizing is 

defined as "the process of separating particles of mixed sizes 

into groups of particles of all the same size, or into groups in 

which particles range between maximum and minimum sizes." Id. 

The Interagency Agreement further states that "OSHA jurisdiction 

includes .•. , whether or not located on mine property: ... 

asphalt batch, and hot-mix plants." Id. at 22827. Finally, the 

Interagency Agreement provides that OSHA authority commences at 

an asphalt-mixing plant "after arrival of sand and gravel or 

aggregate at the plant stockpile." Id. at 22829-30. These 

prov_isions of the Interagency Agreement provide an appropriate 

guideline for analyzing this case. The Commission is required to 

give "weight" to the "Secretary's interpretations of the law." 

Leqis. Hist. at 637. 

All of the citations were issued at API's screening plant. 

If the screening plant is part of the milling process then MSHA 

has jurisdiction over it. If, on the other hand, the screening 

plant is part of API's hot-mix plant, MSHA does not have jurisdiction over it. API contends that it takes finished product 

from DCL and uses this product in connecti'on with its production 

of hot-mix asphalt. It maintains that it "uses its screening 

facility solely for the purpose of separating gravel into various 

sizes which in turn is used by API itself to manufacture hot-mix 

asphalt." (Br. at 5). According to API, its screening of gravel 

is part of the manufacturing process. 

797 
I conclude that the screening plant is subject to MSHA jurisdiction. I have analyzed this case without regard to ownership or control. The facts show that DCL owns equipment at this 

facility and controls part of the operation, API owns equipment 

and controls other parts of the operation, and Mr. Corcoran, 

President of API, owns the real _property on which the extraction, 

milling, and hot-mix production takes place. The issue of jurisdiction in this case does not hinge on questions of ownership and 

control. See, e.g. United Engineering Services, Inc. v. FHSHRC, 

35 F.3d 971, 975 {4th cir. 1994). The result would be the same 

if one individual or corporation owned and controlled the entire 

facility. The key to this case is what happens at each stage of 

the operation as the material flows through the facility. 

The first stage is the extraction of material from the 

ground. This function is clearly subject to MSHA jurisdiction. 

Next, the material is crushed. This stage is part of the milling 

process and all agree that it is under MSHA's jurisdiction. The 

third stage is the initial screening. TWo piles are produced by 

this screening, a product stockpile and a waste stockpile. The 

parties do not dispute that this initial screening is under MSHA 

jurisdiction. Next, a front-end loader takes the material from 

the product stockpile and transport it about 300 feet to a hopper. The material is then transported on a conveyor belt to the 

top of the screening plant that is the subject of this case. As 

described in the stipulation, this screening plant separates the 

material by size. Three or more stockpiles are generally created, each with its own distinct mix of material. It is this 

material that is deposited in the cold feed bin of the hot-mix 

asphalt plant for use in the production of asphalt. 1 

API's screening plant sizes the material fqr use in the 

asphalt plant. Sizing is included in the defini~ion of milling 

in the Interagency Agreement. This plant takes particles of 

mixed sizes that are present in DCL's product stockpile and separates the particles into groups of particles of the same size or 

range of sizes. This screening process fits precisely into the 

Secretary's definition of sizing in the Interagency Agreement. 

As stated above, the fact that API performs this function rather 

than DCL is irrelevant in this case. DCL's initial screening to 

remove waste material occurs about 300 feet from the screening 

that sizes the material. I find that both screening facilities 

are part of the milling operation despite the fact that two different companies accomplish these tasks. 

In addition, under the Interagency Agreement, OSHA's authority at asphalt mixing plants "commences after arrival of sand and 

gravel or aggregate at the plant stockpile." 44 Fed. Reg. at 

The parties agree that th~ hot-mix plant is not subject 

to MSHA jurisdiction. 

798 
228830. In this case, I find that API's stockpiles containing 

the screened material is t~e "plant stockpile" for purposes of 

the Secretary's interpretation. Although Cal/OSHA has jurisdiction over the entire operation, this portion of the Interagency 

Agreement still provides guidance as to the boundaries of MSHA's 

jurisdiction. MSHA's jurisdiction ends upon arrival of the sized 

material at API's stockpiles. 

API asserts that neither the courts nor the commission has 

"asserted jurisdiction over a facility that handles and/or processes minerals in connection with its manufacturing operations." 

(Br. at 2}. API distinguishes the facts of a number of Commission and court cases and states that these cases held that an 

employer is subject to MSHA jurisdiction ".where the employer is 

only engaged .in the transportation and processing of raw materials." (Br. at 8) (emphasis in original). It states that the 

decision in Donovan v. Carolina Stalite Co., 734 F.2d 1547 (D.C. 

Cir. 1984), is not applicable because the Stalite facility processed slate and sold its raw slate product to other companies 

that manufactured masonry blocks. API believes that it is significant that the employer in that case did not manufacture 

masonry blocks. API also believes that the decision in United 

Engineering, 35 F.3d 971, does not apply because the employer 

handled and processed raw coal as an end product. API believes 

that Mine Act jurisdiction attached to the employer's facilities 

because the coal it transported and processed was not used in any 

manufacturing process or incorporated into some other product. 

Rather, the coal was consumed in its raw state at the employer's 

power plant. 

API contends that its activities are analogous to the situation that existed in Oliver M. Elam, 4 FMSHRC 5 (January 1982}. 

The Commission determined that MSHA did not have jurisdiction 

over the employer in that case because it crushed and conveyed 

coal solely to load it for shipment and not to meet customer 

specifications or to render the coal fit for any particular use. 

API maintains that it does not operate its· screening plant to 

meet customer specifications or to render the product fit for any 

particular use, but rather it operates the plant as part of its 

hot-mix asphalt plant. 2 

2 The parties dispute the meaning of paragraph 14 of their 

stipulated facts. Apparently, some of the material in API's 

stockpiles is sold to the public, but the parties disagree as to 

the amount that is sold. API contends that the amount sold is 

insignificant while the Secretary maintains that API is in the 

business of selling screened sand and gravel. Because of this 

dispute, I have assumed that all of the material screened by API 

is used in its hot-mix asphalt plant. 

799 
I disagree with API's arguments. First, contrary to API's 

position, API does not take "finished" product from the DCL 

product stockpile. API screens this material to produce stockpiles of different-sized rock. The material in DCL's stockpile 

is not a finished product but is raw material. Second, API 

screens the material to render it fit for a particular use, the 

production of asphalt. The material is not sized to make it 

easier to handle or to ship, as in Elam, it is sized so that it 

can be used to make asphalt. Thus, it is sized to meet customer 

specifications. The fact that API is also the customer is not 

important. The material is sized to meet the specifications of 

API's asphalt plant. 

Final~y, the fact that the sized rock is ultimately used in 

a manufacturing process does not change the result. The material 

produced by the employer in Carolina Stalite was used to manufacture masonry blocks. The employer did not own the manufacturing 

plant and such a plant was not located at the site, but those 

facts do not change the result. There is no indication in 

Carolina Stalite that the court would have reached a different 

conclusion if the employer also operated a masonry block plant on 

the same site. In addition, United Engineering cannot be distinguished on the basis that the coal was burned "in its raw 

state" at a power plant rather than incorporated into a product. 

In the case of coal, it is crushed, sized, and prepared for use 

in a particular power plant. The crushed material that API obtained from DCL was sized for use in a particular asphalt plant. 

In United Energy, the fact that the prepared coal was a fossil 

fuel that was consumed as it was used is not determinative. 

IV. CIVIL PENALTY ASSESSMENT 

API did not contest the specific allegations, set forth in 

the seven citations. Accordingly, I affirm the citations. MSHA 

proposed a penalty of $380.00 for the citations. I have considered the representations and documentation submitted in these 

cases, and I conclude that the proposed penalty is appropriate 

under the criteria set forth in section l l O(i) of the Mine Act . 

V. ORDER 

Accordingly, the citations in these 

AFFIRMED, and Aggregate Products Inc. 

Sec retary of Labor the sum of $380.00 

of this decision. · 

Richard w. Manning 

Administrative Law 

800 

date 
Distribution: 

Paul A. Belanger, Conference and Litigation Representative, Mine 

Safety and Health Administration, 3333 Vacavalley Parkway, #600, 

Vacaville, CA 95688 (Certified Mail) 

Gregory D. Wolflick, Esq., WOLFLICK & SIMPSON, 130 N. Brand 

Boulevard, Suite 410, Glendale, CA 91203 (Certified Mail) 

Armida Castro, Safety Director, AGGREGATE PRODUCTS INC., P.O . Box 

5215, Salton City, CA 92275-5215 (Certified Mail) 

RWM 

801 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 2-1 1996 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

on behalf of 

WILLIAM KACZMARCZYK, 

Complainant 

v. 

READING ANTHRACITE COMPANY, 

Respondent 

DISCRIMINATION PROCEEDING 

Docket No. PENN 95-1-D 

MSHA Case WILK CD 94-01 

Ellangowan Refuse Bank 

No. 45 

DECISION ON REMAND APPROVING SETTLEMENT 

Before: Judge Amchan 

On March 15, 1996, t.he Commission remanded this case to me 

to apportion the stipulated damages between lost overtime wages, 

which are subject to Federal Income Tax withholding and past-due 

workers compensation benefits, which are not subject to 

withholding. Pursuant to my order after the ~emand, the parties 

have entered into a joint stipulation that accomplishes this 

apportionment. The parties have agreed as follows: 

1. Complainant sustained damages in the amount of $4,225.92 

for bQ.t.h lost overtime and additional worker's compensation 

payments. 

2. A reasonable approximation of the amount of money 

Mr. Kaczmarczyk would have earned in over-time compensation had 

he been actively employed by Respondent between October 15, 1993 

and September 18, 1994, is $1,630 1 • 

1 On. May 24, 1995, I concluded that Complainant's transfer 

from light duty to workers compensation status during this period 

violated section 105(c) of the Act, 17 FMSHRC 784 (ALJ May 1995). 

802 
3. Complainant would have received $2,595.92 in worker's 

compensation.payments between October 15, 1993 and September 18, 

1994, had he earned $1, 63.0 in overtime. 

4. While Complainant may attempt to recover monies withheld 

by Respondent from the Internal ~evenue Service, or other taxing 

authority, Reading Anthracite Company is not liable to 

Complainant for any payment that may be associated with overwithholding on monies paid as damages in this matter. 

ORDER 

I have considered the parties' stipulations in this matter 

and conclude that they are consistent with the Federal Mine 

Safety and Health Act. Therefore, I approve the stipulation as a 

settlement of this matter and DISMISS this case. 

Distribution: 

(1,.A (L_ J_ ~~-. 

A~hM J. Amchan 

Administrative Law Judge 

Stephen D. Turow, Esq., Office of the Solicitor, 

U.S. Department of Labor, 4015 Wilson Blvd . , Suite 400, 

Arlington, VA 22203 (Certified Mail} 

\ 

Martin J. Cerullo, Esq., Cerullo, Datte & Wallbillich, 

P.C., Second Street & Laurel Blvd., P.O. Box 450, Pottsville, 

PA 17901 (Certified Mail) 

/lh 

80 3 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 2204 1 

MAY 2 2 1996 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

JIM WALTER RESOURCES, 

Respondent 

Docket No. SE 95-339 

A.C. No. 01-01401-04078 

Docket No. SE 95-344 

A. C. No. 01-01401-04080 

Docket No. SE 95-367 

A.C. No. 01-01401-04086 

Do cket No. SE 95 - 369 

A. C. No . 01-01401-04089 

Dock et No. SE 95-476 

A.C. No. 01-01401-04 1 03 

No. 7 Mine 

\ 

Docket No. SE 95-358 

A.C. No . 01 -01322-04013 

No. 5 Mine 

DECISION 

Appearances : William Lawson, Esq., U. S. Department of Labor, 

Office of the Solicit or, Birmingham, Alabama, for 

the Petitioner; 

R. Stanley Morrow, Esq., Jim Walters Resources, 

Inc., Brookwood, Alabama, for the Respondent. 

Before: Judge Weisberger 

804 
Statement of the Case 

These cases are before me based upon several Petitions for 

Assessment of Civil Penalty filed by the Secretary (Petitioner) 

alleging violations by Jim Walter Resources (Respondent) of 

various mandatory safety standards_ set forth in Title 30 of 

the Code of Federal Regulations. Pursuant to Notice, Docket 

No. SE 95-369 was heard in Hoover, Alabama on January 17 and 18, 

1996, and February 27, 1996. The parties settled four of the six 

orders at issue , 1 and the two remaining orders were litigated. 

The parties each waived the opportunity to file a post 

hearing brief, and in lieu thereof, presented a closing oral 

argument. 

Findings of Fact and Discussion 

I. Order No. 3192511 

A. Petitioner's Case 

On April 10, 1995, at approximately 11:00 p.m., Keith 

Plylar, Chairman of the UMWA safety committee, performed a 

bimonthly examination of the East A and B belts. At approximately 12:30 a.m. , he observed float coal dust in the air, 

several "bad" top and bottom rollers (Tr. 24), and several bottom 

rollers turning in coal on the floor2 • He indicated that the 

belt was not aligned, the tail roller was running .in an 

accumulation of coal that was twenty four to thirty six inches 

deep, and coal dust was being blown in the air. Plylar also 

1

0n February 27, 1996, Respondent , with the concurrence of. 

Petitioner, presented motions to approve settlements regarding 

these four orders, and the remaining docket numbers (infra, .I.I.I 

and .no. 

2

The rollers are metal and are approximately four feet long. 

Sets of three top rollers were located about five feet apart 

along the length of the belt. A single bottom roller was located 

about every ten feet . 

805 
noted that the belt was cutting into the belt frames 3 which were 

hot to the touch. He also noted accumulations under the rollers, 

and on the roof and ribs of the entry. 

Plylar indicated that the conditions that he observed 

presented a hazard in that friction could be created, and 

additional coal dust could be thrown into the air. 

Plylar opined, based upon fifteen years experience working 

underground in coal mines, that the amount of the accumulations 

of coal that he observed, and its black color indicated a 

"continuing buildup" over a "[m]atter of days" (Tr. 33). In 

this connection, he noted that the coal accumulations varied 

between three inches and twenty-four inches deep, and extended 

for the entire length of the belt from the header inby to the 

tailpiece. He opined that due to the extensive amount of float 

dust on the roof, ribs, and floor, the material had not 

accumulated "within a matter of hours" of his examination 

(Tr. 79). 

At 1:45 a.m., Plylar pointed out the above conditions to 

Bobby Taylor, Jim Walter's ·Safetyman, and asked him to shut down 

the belt in order to clean it, as there was a "severe hazard'; to 

miners working near the belt line (Tr. 24) . According to Plylar, 

Taylor told him that he agreed that the condition was bad enough 

to shut down the belt, but that he did not have any authority to 

do so. Plylar suggested that Taylor get i n touch with someone 

who did have this authority. Taylor called Trert~ Thrasher the 

shift foreman. Plylar indicated that after Taylor talked to 

Thrasher, he (Taylor) informed him (Plylar) that " . .. they 

didn't have anyone to put on this belt line at this time" 

(Tr. 26) . 

Plylar indicated that on "several occasions," {Tr. 45) he 

had observed "smoldering" or "glowing spots" {Tr. 43, 44), and 

smoke on the belt line . He opined that these conditions were 

caused by the belt not being aligned properly, and the belt 

3The terms "belt frames," "belt stands," and "belt 

structures," are all synonymous. 

806 
"cutting into the belt stands" (Tr. 45). Also he indicated that, 

"pretty frequently11 , (Tr. 45) miners had reported fires to him 

that they had seen in the mine. 

Plylar came out of the mine at approximately 4:30 a.m. At 

that time, no one was cleaning the· belt line. Plylar called the 

MSHA office at approximately 7:00 a.m., to report the conditions 

that he had observed, and to request a section 103(g) inspection. 

John Thomas Terbo, an MSHA inspector, testified for 

Petitioner. On April 11, 1995, at approximately 9:45 a.m., 

Terbo inspected the East B-belt in the presence of Larry 

Morgan, the ·day shift mine foreman and Larry Spencer, the union 

representative. He indicated that he commenced his examination 

of the outby and of the B-belt, and continued inby down to the 

tail roller, a distance of approximately 5 , 000 feet. Terbo 

indicated that to the best of his recollection the belt was 

running when he arrived at the site.• According to Terbo, he 

observed coal dust in the atmosphere. Also, he noted that the 

floor, ribs, and roof, including the cross cuts, were black for 

the entire length of the belt. He indicated that since normally 

these areas are white due to the presence of rock dust, the black 

color was "very obvious" (Tr. 94). He also observed an 

accumulation of coal dust on the starter box. Terbo testified 

that there was float dust, black in color, on top of all 

components inside the starter box. 5 He noted that opening and 

closing of electrical contacts in the box, which occurs when 

power to the belt is turned on and off, can cause arcing. He 

opined that the coal dust "[a]bsolutely" did not result from 

spillage (Tr. 100). 

4Keith Wayne Ely, an MSHA supervisory ventilation 

specialist, indicated that at 10:07 a.m., the A-belt was not 

running. He indicated that, in general, if the A-belt is not in 

operation, then the B-belt is not in operation. It is not 

necessary to make a finding as to whether the belt was operating, 

when the order at bar was issued. The issues presented by the 

order will be resolved based on a consideration of continued 

normal operations which includes activation of the belt line. 

son cross examination, it was elicited that dust in the 

starter box can only be seen when the cover is removed. 

807 
According to Terbo, the tail roller and "numerous" (Tr. 101) 

metal belt rollers were turning in coal dust on the floor . He 

indicated that the eventual grinding of the coal dust caused by 

these conditions can result in the production of fine dust which 

could become airborne, and provide fuel for a fire. Terbo noted 

that some rollers were hot, and the belt stands were ~extremely 

hot" (Tr. 106). Also, the belt was cutting into the stands, and 

there were accumulations on the stands. Terbo indicated that 

with continued normal operations, it was "highly likely" that 

these conditions would contribute to a fire hazard (Tr. 105). 

Terbo opined that, in the event of a fire, injuries to miners 

at the face as a result of smoke inhalation would have occurred, 

inasmuch· as the belt entry was ventilated by intake air which 

flowed inby to the face. 

Access to the face was by way of vehicles that traveled on 

a track located next to, and parallel to the belt. According to 

Terbo, "[i)t was very obvious if you traveled this track entry, 

and supervisors travel this track entry on a shift by shift 

basis, that you could see these conditions were there" (Tr. 111). 

He also noted that the accumulations extended 5,000 feet, and 

that "these conditions" (Tr. 111), were noted in the fire boss 

book "dating back to April 4th of '95 11 (Tr. 109). He opined that 

the accumulations he observed did not occur in one day, and that 

they had existed "[f]or days" (Tr. 115). He based this opinion 

upon the extent of the totally black accumulations that extended 

for 5,000 feet, and covered the roof, ribs, and floor. 

Terbo issued an order alleging a violation of 30 C.F.R. 

§ 75.400 which provides that "coal dust, . . . shall be cleaned 

up and not be permitted to accumulate in active workings, ... " 

B. Respondent's Case 

David Gable, the assistant mine foreman at the No. 7 Mine, 

has sixteen years experience as a miner. He did not observe the 

belt in question on April 11, prior to its inspection by Terbo. 

Gable first observed the belt on April 11, around noon. He 

indicated that there was not an "inordinate amount of spillage" 

on the belt line (Tr. 156) . 

Gable testified that Morgan, who was present when the area 

was inspected by Terbo, told him that he (Morgan) did not feel 

808 
that the spillage was enough to warrant an order, and "[t]hat we 

had people working in the area trying to take care of this 

problem . .. " (Tr. 198). 

Gable indicated that, in general, coal normally slips off 

from the ribs, and that spillage from belts is an everyday 

occurrence. According to Gable, when he observed the entry at 

issue it was "[b]lack to gray" (Tr. 188). He also indicated that 

he did not see the tail roller, or other rollers turning in coal 

dust. 

C. Analysis 

1. violation of 30 C.F.R. § 75.400 

Respondent did not prof fer the testimony of Morgan or other 

eyewitness to the conditions observed by Terbo on April 11. 

Hence, there is no eyewitne·ss testimony to contradict Terbo' s 

testimony regarding his observations on April 11. In this 

regard, I note that Gable testified that the entry was black to 

gray when he observed it a few hours after Terbo's inspection, 

and that he did not see the tail roller or other rollers turning 

in coal dust. I find this testimony insufficient to rebut 

Terbo's testimony as to what he observed during his inspection. 

I thus accept Terbo's testimony. I find that there was an 

accumulation of coal dust in the B-belt entry to the extent and 

degree testified to by Terbo. (See, Old Ben Coal Company, 

1 FMSHRC 1954 (December 1979 )) . 

Plylar testified that, as observed by him at approximately 

12:30 a.m., on April 11, there was an accumulation of coal, black 

in color, between three inches and twenty-four inches deep, for 

the entire length of the belt at question . There is no evidence 

that the material observed by Plylar had been cleaned prior to 

Terbo's inspection, and that the coal dust observed by Terbo had 

just accumulated. There is no evidence to establish specifically 

when the coal dust observed by Terbo had been deposited in the 

areas noted by him. I discount entirely Morgan's hearsay opinion 

that the spillage was an everyday occurrence, and was not enough 

to warrant a section 104(d} order. I find that hearsay opinion 

is inherently unreliable, and hence this testimony is 

disregarded. 

809 
Gable indicated that spillage from belts is a "common 

occurrence" (Tr. 154), and that what he observed midday on 

April 11, was not "an inordinate amount of spillage" (Tr. 156 ) . 

However, taking into account the black color, depth, and extent 

of the coal dust accummulations, 6 I find that the coal dust had 

been "permitted to accumulate" in the entry at issue, and in the 

starter box. I thus find that it has been established that 

Respondent did violate section 75.400 supra. 

2. Significant and pubstantial 

A "significant and substantial 11 violation is described in 

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

as could significantly and substantially contribute to the cause 

and effect of a coal or other mine safety or health hazard. 11 

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 s~fety 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. 

6 I find that the accumulations covered the roof, floor and 

ribs of the entry at issue for the entire length of the entry. 

810 
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 "requi!es 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 . 

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

As set forth above, (I) (C) (1) infra, the evidence clearly 

establishes a violation of section 75.400 supra. Based upon the 

testimony of Terbo, as corroborated by Plylar, I find that due to 

the extensive presence of coal dust, fine coal dust in the air, 

and rollers turning in dust, the violation contributed to the 

hazard of a fire or explosion. The belt may not have been 

running when initially observed by Terbo. However, taking 

cognizance of the extent of the violative conditions herein, 

I find that the hazard of a fire or explosion woul~ have 

been contributed to given the continuation of normal mining 

operations, i.e., the mining of coal and the runni~g of the belt. \ 

In analyzing the third element set forth in Mathies, supra, 

i.e., the likelihood of an injury producing event, I note that 

carbon monoxide sensors were placed at intervals along the entry, 

the belt was flame retardant and resistant, and no injuries had 

been reported at Respondent's mines due to the type of conditions 

observed by Terbo. However, I place more weight on the existence 

of the following: the extent and depth of the coal dust 

accumulations, the presence of float coal dust in suspension, the 

presence of coal in a starter box where arcing is possible, the 

presence of hot rollers and stands, the fact that the belt was 

cutting into some stands, the accumulation of coal on and around 

the stands, and the presence of rollers turning in dust. 

I conclude, based on all these circumstances, that given 

continued mining operations, the hazard of a fire or explosion 

was reasonably likely to have occurred. Further, based upon the 

811 
uncontradicted testimony of Terbo, I conclude that should this 

event have occurred, it was reasonably likely to have resulted in 

an injury of a reasonably serious nature. For these reasons, I 

conclude that the violation was significant and substantial . 

3. Unwarrantable Faiiure 

In essence, it appears to be Respondent's position, as 

articulated by Gable, that spillages are common, and that the 

conditions observed by Terbo ~ere not out of the ordinary and did 

not have to be cleaned up. Also, it appears to be Respondent's 

position that, in general, extensive accumulations can occur in a 

short time. 7 However, the record clearly establishes that 

accumulations had existed as early as midnight April 11, and had 

been reported to management at approximately 1:45 a.m. , on 

April 11 . Terbo indicated that two persons were observed 

cleaning at the tail of the B-belt. However, there is no 

evidence of any other efforts made to clean the extensive 

accumulations that extended for 5,000 feet. I thus find that the 

record fails to establish that significant efforts were made to 

clean the accumulations until Terbo's inspection. In addition, 

taking into account the depth of the accumulations, their extent, 

and their obvious black color, I conclude that the violation 

herein was the result of more than ordinary negligence and 

constituted aggravated conduct. I thus find that the violation 

resulted from Respondent's unwarrantable failure (see, Emery 

Mining Corp., 9 FMSHRC 1997 (1987)). 

\ 

4. Penalty 

I find, consistent with the discussion above, (I) (C} (3) 

infra,) that Respondent's negligence was more than ordinary. I 

also find that the violation herein was reasonably likely to have 

resulted in a fire or explosion causing a serious injury. I thus 

find that the level of gravity was high. Further, taking into 

7 In this connection, I note the testimony of Plylar, on 

cross examination, wherein he indicated that if a belt is out of 

alignment, large accumulations, black in color, can result in a 

"short amount of time" (Tr. 63) . He also indica.ted that this can 

occur if the header becomes "jammed up with rocks" (Tr. 62) . 

812 
account the history of section 75.400 violations at this mine, I 

find that a penalty of $6,500 is appropriate. 

II. Order No. 3194841. 

A. violation of 30 C.F.R. § 75.1725 

1. Petitioner's Case 

Plylar inspected the A-belt on April 10, at approximately 

11:30 p .m. At that time, he observed that the belt was out of 

alignment, and was cutting into the belt stands. He testified, 

in essence, ~hat the belt was running on top of some rollers that 

were partially lying on the floor, as l.2Qth ends of these rollers 

were no longer attached to the stand. Plylar noted that several 

rollers were missing, and several top rollers were "jammed up 

together" (Tr. 238). He indicated that the belt frame was hot to 

the touch. According to Plylar, there was an accumulation of 

coal under the belt drive and the take-up rollers, which extended 

the entire length of the belt line. 

Plylar indicated that the accumulations had been covered by 

rock dust, and extended for the entire belt length which was more 

than 4,000 feet . According to Plylar, he had seen the conditions 

that he had testified to in the past, and that "several of these 

conditions" had been written up in the fire boss book "for the 

last several days." {Exh . G-1, Par. 10). Plylar noted that he 

had never seen a belt line " . . . with this extent of damage to 

it or this extent of belt cutting into the frames ... " 

(Tr. 246) . 

At approximately 12:35 a.m., Plylar recommended to Taylor to 

turn off the be:-1.t. Taylor responded that he did not have the 

authority to shut it down. According to Plylar, he requested of 

Taylor to shut the belt down because of the hazard resulting from 

the belt cutting into the frames which could cause the belt to 

smolder. 

On April 11, Keith Wayne Ely, an MSHA supervisory 

ventilation specialist, inspected the East A-belt, and walked 

the entire length of the belt inby to the B-belt. According to 

Ely's contemporaneous notes, (Exh. G-6), at the first· crosscut 

inby the take-up roller, a roller was lying on the floor, but was 

813 
not rubbing against any material on the floor, as the belt was 

not in operation. At a half crosscut outby brattice No. 138 , 

one end of a roller had come loose from where it was suspended by 

a hanger, and was lying on the floor . At brattice No. 14, a 

bottom roller was missing which allowed the belt to rub against 

the belt stand. At brattice Np. 16, two stands were being rubbed 

by the belt. At brattices Nos. 21 and 22, there were rollers on 

the bottom. At brattice No. 24, there was a roller with one end 

on the floor. At brattices Nos. 29, 31, 32, and 38, the belt was 

rubbing against the belt stand. A roller was missing at brattice 

No. 38. At brattice No. 42, ·there was an accumulation of coal 

that was eight inches deep, ten inches wide, and extended for 

twenty-four inches. At brattice No. 44, the stands were too hot 

to touch. 

Ely noted that the belt was rubbing against the belt stand 

causing grooves up to one inch deep . 9 According to Ely, at one 

location the belt structure had worn to the point where it was no 

longer solid, but had been cut into two pieces. Ely indicated 

that he had touched the belt structure with the back of his hand, 

and it was so hot that he had to remove his hand. 

Ely indicated that if one end of a roller had become 

detached, and was lying on the floor, the end that was still 

attached and not rotating could become heated by the belt rubbing 

against it. Also, the movement of the belt could cause the 

roller end that was on the floor to rub against the floor, and 

create friction and heat. According to Ely, i f the belt is not 

aligned properly, and travels from side to sid , it can rub 

against the metal belt stands, and cause the belt to become 

frayed. Should this occur, the frayed ends can get wrapped up 

around the bearings resulting in an "embers" type condition 

(Tr. 34 7) . 

1Ely had identified the various brattices as brattice 13, 

etc. In the test of this decision, the brattices are identified 

as brattice HQ. 1.3_, etc. 

9

0n cross examination it was elicited that only nine stands 

were damaged. 

814 
Ely indicated, in general, that the conditions that he 

observed would lead directly to a fire. He explained that this 

conclusion was based upon the presence of coal which was a fuel 

for the fire, along with an ignition source i.e., friction along 

the belt caused by the rubbing of the belt against the stands, 

and some rollers rolling in coal dμst. According to Ely, since 

the cited entry was in intake air, and the working section was 

located inby, it was highly likely that the resulting fire would 

cause injuries due to smoke inhalation. 

Ely opined that the violation resulted from Respondent's 

unwarrantable failure. In this connection, he indicated that the 

belt was examined each shift, and that the cited conditions 

could be seen from the track which ran alongside ninety percent 

of the belt line . He noted that the black discoloration of the 

stands was "very evident" (Tr. 310). 

the rollers as "obvious" (Tr. 310). 

He termed the condition of 

He stated that the ignition 

sources, i.e., the coal accumulations, were "obvious" (Tr. 310). 

Further, because the belt traveled from one side to another and 

was not aligned properly, he concluded that it had not been well 

maintained. 10 Ely concluded that the cited conditions had not 

been created within one shift, and that it took several days for 

the conditions to have developed. His conclusion was based on 

the large number of missing rollers, the existence of grooves in 

the metal stands, and the observation that a number of rollers 

were connected to the stand on only one end, leaving the other 

end lying on the floor. 

Ely issued a section 104(d) (2) order alleging a violation of 

30 C.F.R. § 75.1725(a) which provides as follows: "Mobile and 

stationary ma~hinery and equipment shall be maintained in safe 

operating condition and machinery or equipment in unsafe 

condition shall be removed from service immediately." 

10 Ely also indicated that entries in the fire boss book 

confirmed that the cited conditions existed for some time. I do 

not place any weight on this testimony. The fire boss book is 

the best evidence of its contents. However, the fire boss book 

was not offered in evidence. 

815 
2. Respondent's Eyidence 

On April 11, Gable accompanied Ely was during the entire 

inspection of the East A-belt, which was approximately one mi le 

long, and contained 4,000 to S,000 rollers. Gable indicated, in 

response to a leading question, · that it is "not uncommon" for 

eleven rollers to be missing (Tr. 387-388). Gable opined, i n 

essence, that the conditions cited by Ely did not present any 

safety hazard to miners. 

Gable indicated that the belt, and cords contained in it, 

are rubber, and fire resistant. Gable indicated that, in normal 

operations, spillages are cleaned by twenty-five miners whose 

sole task is to clean the belt line. 

Bill Woodward, a self employed consultant, who has designed 

and helped install belt lines in underground mines, testified for 

Respondent. Woodward indicated that as a consultant, he visits 

an underground mine five or six times a month, and inspects belt 

lines. Woodward opined that if bottom rollers are making contact 

with the belt stands, the belt would not be unsafe to people. He 

opined that the main problem with missing rollers is damage to 

the belt. He indicated that if eleven rollers were bad or 

missing along a one mile long belt line, the belt would become 

unsafe if the problems with the rollers existed for "[p]robably 

four or five days a week" (Tr. 40) (February 27, 1996) . 11 He 

opined that should this occur, " ... that would be more damage 

to the belt than anything else" (Tr. 40) (February 27, 1996). \ 

According to Woodward, if a belt is rubbing against a stand, 

it can take two to three days, or "weeks," "months," or "a few 

days," for the belt to cut into the stand {Tr. 42) (February 27, 

1936). He explained that it depends upon how hard the belt is 

rubbing against the stand, and the type of belt involved. 

Woodward stated that, in essence, stuck rollers, and belts not 

being aligned properly are "very common" conditions {Tr. 47) 

(February 27, 1996). He said that it is "[v]ery, very common" 

for belts to be frayed at their edges, and it is "common" for 

11 The transcript of the continued hearing on Februray 27, 

1996, is cited by reference to the page of the transcript and the 

date i.e., February 27, 1996. 

816 
belts to come in contact with the stands {Tr. 47) {February 27, 

1996). Woodward opined that the conditions listed in the order 

at issue were not unsafe for miners. 

3. Analysis 

In essence, it appears to be Respondent's position that the 

belt was not unsafe to miners, since less than two tenths of a 

percent of the rollers on the belt were bad, and only nine 

stands, i.e., less than nine tenths of a percent of the stands, 

were damaged. I reject this argument for reasons that follow. 

I accept Ely's opinion that the belt in question was not 

maintained in a safe condition. Respondent did not rebut or 

impeach Ely's testimony regarding the following conditions: the 

belt was not in alignment and was contacting some belt stands, 

ten rollers were missing, and at three locations one end of a 

roller was lying on the floor. These condition~ cause heat 

and friction which ~ lead to smoke or a fire. 12 I reject 

Gable's opinion that the belt was safe, as the record does not 

set forth in sufficient detail the facts that he took into 

account which formed the basis for this opinion. I also reject 

Woodward's _opinion that the cited conditions were not unsafe to 

miners. On cross-examination, Woodward was asked to explain why 

the following conditions do not p~esent any hazards to miners: 

the belt being out of alignment, the belt running into the 

stands, and the presence of stuck rollers. His response is as 

follows: "[i] t just don't" {Tr. 67) {February 27, 1996) . The 

only other expressed basis for his opinion was his reliance on 

the assumption that the belt in question satisfied MSHA 

requirements, and would not burn. There is insufficient evidence 

in the record 'to predicate a finding regarding the composition of 

the belt, and the degree to which it was flamable . Further, as 

set forth in Ely's credible testimony, other conditions were 

present which could have caused a fire. I thus find that there 

is an insufficient basis to put any reliance upon Woodard's 

opinion. 

12 See, Exs. G-13, G-14 {Par 2.13), and G-15 . 

817 
For the above reasons, I find that the belt was in "unsafe 

condition", and no unsafe components had been removed when cited. 

I thus find that it has been established that Respondent did 

violate section 75.1725(a) supra. 

4. Significant and SUbstantial 

There is no evidence in the record that there have ever been 

any injuries to miners at the subject mine, resulting form the 

cited conditions. Also, carb~n monoxide monitors were in place 

along the belt line . Further, there is no evidence that there 

was any violative coal accumulation along the belt line. Nor is 

there any evidence that the belt material did not meet MSHA 

specifications. 

However, I note the following: The combination of the 

violative conditions, the presence of coal, the presence of 

friction as testified to by Ely and not contradicted or 

impeached, the uncontradicted testimony of Ely that the stands 

were hot to the touch, and the fact that the entry was ventilated 

by intake air which would have carried any smoke generated by the 

friction resulting from the violative conditions down to the 

working section. Based on these factors, I conclude that the 

violation was significant and substantial {~, Mathies, supra). 

5. Unwarrantable Failure 

Respondent did not impeach or contradict El\}'' S testimony 

that the violative conditions observed by him were obvious, and 

would have been noted by a person traveling alongside the beltway 

performing an inspection . There is no evidence as to how long in 

~ the violative conditions noted by Ely had existed . However, 

I take cogr1izance of the following: the extent of the conditions 

observed by Ely, the fact that grooves had been cut into a stand 

to a depth of one inch, the fact that the belt was out of 

alignment and not corrected, the fact that conditions had been 

observed by Plylar the shift before, the lack of evidence that 

these conditions were corrected between the time observed by 

Plylar and reported by him to Taylor, and subsequently observed 

by Ely the following shift, and the lack of evidence that 

Respondent made any significant attempt to correct these 

818 
conditions. Based on all .these factors, I conclude that the 

violation herein resulted .from more than ordinary negligence, and 

reached the level of aggravated conduct. I thus find that the 

violations resulted from Respondent's unwarrantable failure (~, 

Emery, supra) . 

6. Penalty 

Considering the factors set forth in section llO(i) of the 

Act, I find that a penalty of $6•, 500 is appropriate. 

III. Orde~ Nos. 3016179. 3192505. 3021493. and 3192465 

At the hearing, Respondent, with the concurrence of 

Petitioner, made a motion to approve the settlement the parties 

arrived at regarding these orders. It is proposed to reduce the 

total penalty from $13,000 to $8,600. I have considered the 

representations and documentation submitted, and I conclude that 

the proffered settlement is appropriate under the criteria set 

forth in section llO(i) of the Act. 

IV. Docket Nos. SE 95-358. SE 95-339. SE 95-367. SE 95-344 

and SE 95-476 

At the hearing, Respondent, with the concurrence of 

Petitioner, made a motion to approve the settlement the parties 

arrived at regarding these cases. It is proposed· to reduce the 

total penalty from $41,289 to $14,621. I have considered the 

representations and documentation submitted, and I conclude that 

the proffered settlement is appropriate under the criteria set 

forth in section llO{i) of the Act. 

ORDER 

It is ORDERED that, within 30 days of this decision, 

Respondent shall pay a total penalty of $36,221. 

be~ Administrative Law Judge 

819 
Distribution: 

William Lawson, Esq., Office of the Solicitor, U.S. Department 

of Labor, Suite 150, Chambers Bldg., Highpoint Office Center, 

100 Centerview Drive, Birmingham, AL 35216 (Certified Mail) 

R. Stanley Morrow, Esq., Jim Walter Resources, Inc., 

P.O. Box 133, Brookwood, AL 35444 (Certified Mail) 

/ml 

820 
FEDERAL MINE SAFETY /4ND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

LEHIGH PORTLAND CEMENT 

COMPANY, 

Respondent 

May 24, 1996 

CIVIL PENALTY PROCEEDING 

Docket No. YORK 95-115-M 

A. C. No. 18-00017-05551 

Union Bridge Maryland 

QECISION APPRQVING SETTLEMENT 

ORDER TO PAY 

Before: Judge Merlin 

This case is before me upon a petition for assessment of 

civil penalties under section 105(d) ·of the Federal Mine Safety 

and Health Act of 1977. The Solicitor has filed a motion to 

approve settlements for the two violations in this case. A 

reduction in the penalties from $7,000 to $3,500 is proposed. 

Citation No. 3591774 was issued for a violation of 30 C.F.R. 

§ 56.5002 which requires that dust, gas; mist, and fume surveys 

be conducted as frequently as necessary to .determine the adequacy 

of control measures. The inspector issued the citation because 

two miners became ill in the area around the mill feed control 

center and kiln stack where he believed toxic gases· had accumulated. It appeared to the inspector that the gases came from the 

stack of the kiln, which was in the process of being preheated by 

three oil torches. According to the inspector's description on 

the citation, statements obtained from company personnel at the 

scene indicate that the torches may not have been burning properly. Shortly after the first miner became ill, a company 

foreman measured greater than 2 ppm of sulfur dioxide and ·19% 

oxygen between the 4th and 5th pier on the south side of the 

kiln . The citation was designated significant and substantial 

and negligence was rated as high. The originally assessed 

penalty was $5,000 and the proposed settlement is $2,500. 

Tne Solicitor represents that the reduction is warranted 

because negligence and gravity are less than originally thought. 

According to the Solicitor, the allegation in the citation that 

the two employees suffered headaches due to exposure to sulphur 

dioxide is not fully supported by available evidence. The 

Solicitor states that six gas readings were taken by the foreman 

921 
immediately prior to the display of symptoms. Only one of these 

readings revealed a measurable quantity of sulphur dioxide but 

that reading was unreliable because radio frequency interference 

from the foreman's portable radio may have triggered a false 

reading. According to the Solicitor, although the symptoms 

displayed indicated exposure to . some gas accumulation, identification and quantity cannot factually be established. 

It appears from his motion that the Solicitor will be unable 

to prove the degree of gravity or even the correctness of evidence regarding the gas readings • However, since readings were 

taken, the degree of negligence is lessened. Accordingly, I 

accept the Solicitor's representations, and approve the proffered 

settlement which remains a substantial amount. 

Citation No. 3591775 was issued for a violation of 30 C.F.R. 

§ 56.4330(a) which requires operators to establish emergency 

firefighting, evacuation, and rescue procedures and directs that 

these procedures be coordinated in advance with available 

firefighting organizations. This citation was issued at the same 

time as the one d i scussed above . A Lehigh Cement Management 

employee entered a taped off area despite a request from a fire 

department officer to wait for properly equipped and trained 

personnel. The inspector stated on the citation that the management employee wanted to remove an employee of an independent 

contractor from the area. 

The violation was designated significant and substantial and 

negligence was rated as moderate. The originally assessed 

penalty was $2,000 and the proposed settlement ~s $1,000. The 

Solicitor represents that the reduction is warra'nted because 

negligence is not as high as originally thought. According to 

the Solicitor, the management official who had just monitored the 

area, found no problem with excess gas levels and did not experience any physical symptoms. The Solicitor states that the 

official only entered the area in order to evacuate the employee 

of a contractor. In addition, my review of the file shows that 

on the day after the citation was issued, the inspector modified 

it by reducing the likelihood of injury from occurred to highly 

likely and the · number of miners affected from two to one . 

Finally, I note that no mention was made in the narrative findings tq the effect that this violation caused an injury. In 

light of the foregoing, I approve the proffered settlement which 

remains a substantial amount and find it is appropriate under 

section llO(k) of the Act, 30 U.S.C. § 820(k) . 

822 
I note that these violations do not represent t he first time 

the operator has encountered problems like those described in the 

subject citations. The operator should consider itself on notice 

that if violations like these occur in the future, I will not 

approve penalty reductions of this magnitude. 

WHEREFORE, the motion for approval of settlements is 

GRANTED, and it is ORDERED that the operator PAY a penalty of 

$3,500 within 30 days of this decision. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Joseph T. Crawford, Esq. , Office of the Solicitor, U.S. Department of Labor, Gateway Bldg., Rm. 14480, 3535 Market St. , Philadelphia, PA 19104 

Dennis J. Morikawa, Esq., Morgan, Lewis & Bockius, LLP, 2 000 One 

Logan Square, Philadelphia, PA 19103-6993 

Mr . Walter E. Smith, Mine Representative , 601 S. Springdale Road, 

New Windsor, MO 21776 

/gl 

823 

• 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

303-844-3993/FAX 303-844-5268 

MAY 2 8 1996 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONTRACTORS SAND & GRAVEL 

SUPPLY, · INCORPORATED, 

Respondent 

.. . 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 93-62-M 

A.C. No. 04-03404-05509 

Docket No. WEST 93-406-M 

A.C. No. 04-03404-05510 

Docket No. WEST 93-407-M 

A.C. No. 04-03404-05511 

Docket No. WEST 93-463-M 

A.C. No. 04-03404-05512 

Scott River Plant 

Docket No. WEST 93-117-M 

A.C. No. 04-04679-05506 

Docket No. WEST 93-141-M 

A.C. No. 04-04679-05507 

Docket No. WEST 93-408-M 

A.C. No. 04-04679-05508 

Docket No. WE-ST 93-409-M 

A.C. No. 04-0~p79-05509 

Docket No. WEST 93-462-M 

A.C. No . 04-04679-05510 

Montague Plant 

DECISION AFTER REMAND APPROVING SETTLEMENT 

Before: Judqe cetti 

These consolidated civil penalty proceedings are before me 

upon petitions for assessment of civil penalty under section 

lOS(d) of the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. § 801 et seq., (Mine Act}. The Secretary of Labor on behalf of the Mine Safety and Health Administration, charged the 

operator of the Scott River Plant and Montague Plant with 

numerous violations of safety standards set forth in Part 56, 

Title 30, Code of Federal Regulations. 

824 
A Default Decision was issued July 21, 1994, when there was 

no response to my Show Cause order. Thereafter, the commission 

reopened the matter and vacated the Default Decision and remanded 

the matter to this Judge. 

Respondent then obtained counsel who filed a timely answer 

contesting the alleged violations. · The matter was set for hearing which had to be canceled because of the medical condition of 

the principal witness. The parties then filed cross motions for 

summary decision. On March 25, 1996, I issued a Summary Decision 

vacating Citation No. 3911909 in Docket Nos. WEST 93-462-M and 

WEST 94-409-M and dismissing WEST , 94-409-M. 

At this time, the remaining consolidated cases are before me 

on petitions· for assessment of civil penalties under section 

105(d) of the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. S 815(d). The parties, by counsel, filed an amended 

motion to approve a settlement agreement of all the remaining 

citations. Under the proffered settlement there is a reduction 

in the amount of the proposed penalties for 12 of the citations 

and no changes in the original proposed penalties for 15 of the 

citations as follows: 

Health and Safety Original Proposed 

standard Cited Proposed Amended 

Citation No. CCFR Title 30) Penalty Penalty 

3911911 56.14107(a) $3,000.00 $ 100.00 

3636680 56 . 12013 267.00 100.00 

3911916 56.12013 1,457.00 100.00 

3911919 56.14132(b) (1) 987.00 100.00 

3636674 56.14109(b) 168.00 100.00 

3636675 56.14107(a) 220.00 100.00 

3636676 56.14109 168.00 100.00 

3914031 56 . 5050(b) 50.00 50.00 

3911912 56 . 4200 50.00 50.00 

3911914 56.4402 50 . 00 50.00 

3911917 56.12013 50.00 50.00 

3913895 56.12028 382.00 100.00 

3913890 56 . 14112 147.00 100.00 

3913891 56.14112{a) 147.00 100.00 

3913892 56.15001 50.00 50.00 

3913893 56.18002 50.00 50.00 

3913894 56.14100 50.00 50.00 

3913897 56.14107 50 . 00 50.00 

3913883 56.15001 50 . 00 50.00 

3911799 56.12041 50.00 50.00 

3911903 56.12032 50.00 50.00 

3911907 56 . 14107(a) 119.00 100.00 

3911901 56.4200 50.00 50.00 

3911904 56.14107(a) 50.00 50.00 

3911905 56.14109{b) 50.00 50.00 

825 
3911902 

3911906 

56.12013 

56.12020 

50.00 

337.00 

TOTAL 

50.00 

100.00 

$1,950.00 

Under the proffered settlement agreement it is also agreed 

that, with the exception of those claims for fees and expenses 

set forth in Docket No. EAJ 96-3 filed with the Commission on 

April 24, 1996, each side shall bear its own costs and legal 

fees. 

I have considered the representations and documentation including the pleadings, the detailed responses to the prehearing 

orders, the affidavits and various transcripts of the depositions 

submitted in this case, and I conclude that the proffered settle- ment is appropriate under the criteria set forth in section 

llO(i) of the Act. 

WHEREFORE, the motion for approval of settlement is GRANTED, 

and it is ORDERED that Respondent, Contractors Sand and Gravel 

Supply, Inc., PAY a penalty of $1,950.00 to the Secretary of 

Labor within 30 days of this decision. 

Payment shall be made to the Office of Assessments, Mine 

Safety and Health Administration, P.O. Box 160250-M, Pittsburgh, 

Pennsylvania 15251. Upon receipt of payment, the above-captioned 

proceedings are dismissed. 

Distribution: 

Augu t F. Cetti °' 

Administrative Law 'Judge 

Steven R. Desmith, Esq., Office of the Solicitor, U.S. Department 

of Labor, 71 Stevenson Street, Suite 1110, San Francisco, CA 

94105 

C. Gregory Ruffennach, Esq., RUFFENNACH LAW OFFICES, 1675 Broadway, Suite 1800, Denver, CO 80202 

\sh 

826 
ADMINISTRATIVE LAW JUDGE ORDERS 

FEDERAL M INE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA), 

Petitioner 

v. 

COAL MINERS INCORPORATED, 

Respondent 

May 15, 1996 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 96-69 

A. C. No. 11-02846-03710 

Eagle Valley Mine 

ORPER DISAPPROVING SETTLEMENT AGREEMENT 

This case is before me on a Petition for Assessment of Civil 

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

Health Act of 1977, 30 U.S . C. § 815(d). The Secretary, by 

counsel, has filed a motion to approve a settlement agreement. A 

reduction in penalty from $1,298.00 to $649.00 is proposed. 

The citati on alleges a violation of section 75.517 of the 

Regulations, 30 C. F.R . § 75 . 517, because a shuttle car cable had 

damaged splices and was not insulated in two place~. The 

violation is alleged to be "significant and substantial" and of 

"moderate" negligence. As justification for the settlement, the 

agreement provides that: " The penalty is reduced in recognition 

of Respondent's efforts in abating the cited condition within the 

time granted by the MSHA inspector. Further, the Respondent is 

strongly committed to enforcing compliance more strenuously in 

the future . " 

The Mine Act was passed with the intention that the 

Commissi on 11 assure that the public interest is adequately 

protected before approval of any reduction in penalties. 11 

S. Rep. No. 95-181, 95th Cong., 1st Sess . 45 (1977), reprinted in 

Legislative History of the Federal Mine Safety and Health Act of 

1977, at 633 {1978). In this connection, it is the judge's 

independent responsibility to determine the appropriate amount of 

penalty, in accordance with the six criteria set out in Section 

llO(i) of the Act, 30 U. S.C. § 820(i) . Sellersburg Stone Company 

827 
v. Federal Mine Safety and Health Review Commission, 736 F.2d 

1147, 1151 (7th Cir. 1984); Wallace Brothers, Inc., 18 FMSHRC 481 

(April 1996) . 

For this reason, Commission Rule 31(b) (3), 29 C.F.R. 

_§ 2700.31(b) (3), requires that a motion to approve a settlement 

include "[f]acts in support of the penalty agreed to by the 

parties" so that the judge can confirm that the reduced penalty 

is appropriate. No such facts are provided with this agreement. 

The Respondent's abatement efforts were presumably considered, as 

required by section 100.3(f) of the Regulations, 30 C.F.R. 

§ 100.3(f), when the penalty was originally assessed. Likewise, 

a commitm~nt to comply with the law in the future is one of the 

desired results of assessing a penalty. 

Neither reason provides a basis for reducing the penalty. 

Consequently, having considered the representations and 

documentation submitted, I am unable to approve the proffered 

settlement. 

ORDER 

Accordingly, it is ORDERED that the motion for approval of 

settlement is DENIED. The parties have 15 days from the date of 

this order to submit additional information to support the motion 

for settlement. Failure to submit additional information, or to 

resubmit a new agreement, within the time provided will result in 

the case being scheduled for hearing. 

t1.~k~ T. Todd H=~" - Administrative Law Judge 

Distribution: 

Gay F. Chase, Esq., Office of the Solicitor, U.S. Department of 

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

(Certified Mail) 

Mr. James A. Tabor, Coal Miners, Inc., 999 Barrett Cemetery Rd., 

Equality, IL 62934 (Certified Mail) 

828 
FEDERAL MINE SAFETY :AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, 0.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

S. M. LORUSSO & SONS, 

INCORPORATED, 

Respondent 

May 24, 1996 

CIVIL PENALTY PROCEEDING 

Docket No. YORK 95-74-M 

A. C. No. 19-00371-05505 

West Sand and Gravel 

DECISION DISAPPROVING SETTLEMENT 

ORDER TO SUBMIT INFORMATION 

Before: Judge Merlin 

This case is a petition for assessment of civil penalties 

filed under section 105(d) of the Federal Mine Safety and Health 

Act of 1977 . 30 U.S .C. § 815(d) . On June 13, 1995, I issued an 

order directing the parties to confer and advise with respect to 

possible settlement or hearing. On July 27, 1995, upon a motion 

of the Solicitor, the matter was stayed pending completion of a 

special investigation under Section 110(c) of the -.~ct. On 

October 26, 1995, an order was issued continuing the stay. 

On April 25, 1996·, the Solicitor filed a motion to approve 

settlements in this case. A reduction in the penalties from 

$17 , 000 to $5,500 is proposed. The ·motion is wholly inadequate 

and must be denied. 

This case contains two violations which were issued in 

connection with an accident at the operator's mine. The accident 

resulted in an injury to the operator of a haul truck. Citation 

No. 4424827 was issued pursuant to 104(d) (1) of the Act, 30 

U.S.C. § 814(d) (1), for a violation 30 C. F . R. § 56 . 9301 because a 

berm or other restraint was not provided at the dump site. 

According to the citation, the haul truck traveled onto unstable 

ground and overturned, causing serious injury to the driver. The 

originally assessed penalty was $9,000 and the proposed settlement is $2,912 . Order No. 4424828 was issued pursuant to 

104(d) (1) of the Act for a violation of 30 C.F.R. § 56 . 9304(a) 

because an adequate visual inspection of the dumping location was 

not conducted prior to the commencement of work at this location . 

829 
The citation recites that ground conditions are constantly 

changing when the plant is in operation and blasting operations 

are taking place. The originally assessed penalty was $8,000 and 

the proposed settlement is $2,588. 

In her motion the Solicitor states that she is submitting 

the proposed assessment of penalty prepared by MSHA which she 

asserts contains findings concerning the six criteria specified 

in section llO(i) of the Act, 30 U.S.C. § 820(i), as the basis 

for determining an appropriate penalty amount . However, the 

proposed assessment contains no such data except for two unexplained numbers regarding prior history. Information regarding 

the criteria are provided on the sheet for regular assessments. 

This case however is a special assessment and the Solicitor has 

even faiied to provide the narrative findings MSHA prepares for 

special assessments. The only other materials furnished by the 

Solicitor are the citation and order which contain findings of 

very high gravity, significant and substantial, unwarrantable 

failure, and high negligence. 

As a further basis for the proposed settlement, the Solicitor alleges the employee in the accident was not following work 

procedures which the operator had instructed its employees to 

follow. But the Solicitor offers no facts or analysis to support 

her statements. What were the procedures? How were they communicated to the employee and others? Who was the injured employee 

and what was his position? In what ways did he fail to follow 

prescribed procedures? Most importantly, how does the employee's 

conduct relate to the violations described in the citation and 

order? None of these questions have been answ~red. Therefore, I 

have no information · that would permit assessmen~ of appropriate 

penalties and reductions from the original amounts. 

The Solicitor's representations that the operator has a good 

prior history and that it abated the violations promptly are 

insufficient to justify the % reduction she seeks in the penalty 

assessments. What the Solicitor must bear in mind is that an 

injury occurred and that the alleged violations are contained in 

a citation and order issued under section 104(d). Although the 

Solicitor suggests extremely large reductions, she fails to 

recommend any modifications to the high negligence, high gravity, 

significant and substantial, and unwarrantable failure findings. 

Such modifications would be necessary to support the proposed 

penalty reductions and provide a basis for penalty assessments at 

the Commission level. 

830 
The Solicitor is reminded that pursuant to section 110(k) of 

the Act Commission judges bear a heavy responsibility in settlement cases. 30 U.S.C. § 820(k); See, s. Rep. No. 95-181, 95th 

C~ng., 1st Sess. 44-45, reprinted in Senate Subcommittee on 

Labor, Committee on Human Resources, 95th Cong., 2d Sess., 

Legislative History of the Federal Mine Safety and Health Act of 

1977, at 632-633 (1978); Sellersburg Stone Company v. Federal 

Mme Safety and Health Review Commission, 736 F.2d 1147 (7th Cir. 

1984). 

I previously granted the Solicitor's request for a stay in 

this case. The stay lasted almost a year. After this long delay 

I find submission of this motion particularly egregious. 

Wherefore, it is ORDERED that the motion for approval of 

settlements be DENIED. 

It is further ORDERED that within 30 days of the date of 

this order the Solicitor submit appropriate information to 

support her settlement motion. Otherwise, the case will be set 

for hearing. 

It is further ORDERED that within 30 days the Solicitor 

submit the narrative findings for special assessment. 

\ 

\ 

Distribution: (Certified Mail) 

Paul Merlin 

Chief Administrative Law Judge 

Gail E. Glick, Esq., Office of the Solicitor, U.S. Department of 

Labor, One Congress Street, 11th Floor, P.O. Box 8396, Boston, MA 

02114 

Douglas White, Esq . , Counsel, Trial Litigation, Office of the 

Solicitor, U.S. Department of Labor, 4015 Wilson Blvd., Suite 

414, Arlington, VA 22203 

Thomas E. Nannicelli, Esq., Nannicelli & Woods, P. 0 . Box 68, 470 

Washington Street, Suite 30, Norwood, MA 02602 

/gl 

831 
FBDBRAL ---- JUBB SAFBTY DID BBALTJI REVIEW COJOo:SSl:Olf 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

303-844-3577/FAX 303-844-~268 

May 31, 1996 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. WEST 95-434-M 

A. C. No. 26-00500-05542 

v. Docket No. WEST 95-467-M 

A.C. No. 26-00500-55443 

NEWMONT GOLD COMPANY, 

Respondent South Area Gold Quarry 

ORDER DENYING MOTION FOR SUMMARY DECISION 

PREHEARING ORDER 

Newmont Gold Company ("Newmont") filed a motion for summary 

decision in these cases pursuant to Commis·sion Rule 67, 29 c.F.R. 

§ 2700.67. The Secretary of Labor opposes Newmont's motion. For 

the reasons set forth below, I deny Newmont's motion. 

Commission Rule 67(b) sets forth the grounds for granting 

summary decision, as follows: 

A motion for summary decision shall be 

granted only if the entire record, including 

the pleadings, depositions, answers to 

interrogatories, admissions, and affidavits, 

shows: 

( 1 ) That there is no genuine issue 

as to any material fact; and .. (2) That the moving party is enti~ 

tled to summary decisi on as a 

matter of law. 

On March 13 and 14, 1995, MSHA Inspector Michael Drussell 

issued two citations and two orders at Newmont's South Area Gold 

Quarry in Eureka County, Nevada. One citation and one order 

allege violations of 30 C.F.R. § 56.20011 and the other citation 

and order allege violations of section 56 . 20014. All four 

enforcement actions relate to alleged mercury contamination at 

the mine. 

832 
I. BACKGROUND INFORMATION 

A. Alleged Violations of Section 56.20011 

Section 56.20011 provides: 

Areas where health or safety hazards 

exist that are not immediately obvious to 

employees shall be barricaded, or warning 

signs shall be posted at all approaches. 

Warning signs shall be readily visible, 

legible, and display the nature .of the hazard 

and any protective action required . 

Citation No. 4140248, issued under section 104{a) of the 

Mine Act, alleges that: 

The old screen removed from the ZADRA 

was placed near the containment area at the 

AARL Building, visible mercury was on the 

screen. No warning signs were posted warning 

of the hazard. 

Order No. 4140247, issued under section 104{d) {l) of the Mine 

Act, alleges that: 

The old scrubber removed from the AARL 

was cleaned then tested for mercury 

contamination. This scrubber was stored at 

the boneyard. Mercury contamination test 

results received in Nov. 1994 showed mercury 

contamination. The scrubber was not removed 

from the boneyard or marked of the hazard. 

When the scrubber was inspected .to show 

visible mercury, Jerome reading showed 

mercury vapors present. 

It is undisputed that (1) the old screen referenced in the 

citation was outdoors in a "containment area;" (2) visible 

mercury was on the •screen; and (3) there is no proof that the 

threshold limit value ("TLV") for mercury adopted by MSHA was 

exceeded in the area around the old screen. The Secretary 

alleges that the "containment area" was not completely enclosed. 

or barricaded. The citation alleges that warning signs were not 

posted to advise miners of the hazard. 

It is also undisputed that when the old scrubber referenced 

in the order was removed from the AARL, it was cleaned by a 

contractor, wipe samples were obtained which showed that mercury 

was present, and the scrubber was placed in the outdoor "boneyard." Newmont contends that the boneyard is a "fenced and 

833 
signed restricted area used for storage of old equipment, old 

spare parts, and waste." (Motion at 6). It also alleges that it 

is "an isolated and barricaded area, where there is no routine 

personnel exposure." (Id. at 7). The Secretary alleges that the 

boneyard was "fenced on three sides with a sign prohibiting 

unauthorized entry, not a sign that displayed the nature of the 

hazard and required protective action." (Opposition at 6). The 

wipe samples were taken by Newmont to help it determine how it 

should dispose of the old scrubber. There is no proof that the 

TLV for mercury was exceeded in the area around the old scrubber. 

B. Alleged Violations of' Section 56.200014 

Section 56.20014 provides: 

No person shall be allowed to consume or 

store food or beverages in a toilet room or 

in any area exposed to a toxic material. 

Citation No. 4140245, issued under section 104(d) (1) of the 

Mine Act, alleges that: 

The off ice in the AARL building 

contained mercury vapor as measured with a 

Jerome mercury vapor analyzer. The average 

reading was 23 . 2 ug/m3 • The company routinely takes 6 Jerome readings a day in this 

office as part of their mercury monitoring 

program. These readings show mercury has 

been present in this office. Visible mercury 

was found on the desk top on Feb. 28, 1995. 

The AARL operator was required to use ~his 

off ice for eating lunch. No person sh~ll be 

allowed to consume food or beverages in any 

area exposed to a toxic· material. 

Order No. 4140246, issued under section 104(d) (1) of the Mine 

Act, alleges that: 

The lunchroom for the ZADRA employees 

contained mercury vapors as measured with a 

Jerome mercury vapor analyzer. The average 

reading was 23.2 ug/m3 • The company routinely takes 6 Jerome readings a day in this 

lunchroom as part of their mercury monitoring 

program. These readings showed mercury 

vapors have been present in this lunchroom. 

The ZADRA employees were required to use this 

lunchroom for eating their lunch. No person 

shall be allowed to consume food or beverages 

in any area exposed to a toxic material. 

834 
It is undisputed that :the Jerome readings obtained by the 

inspector indicate that the mercury levels were less than 50 

percent of that allowed under the MSHA's TLV. MSHA has adopted 

the TLV established by the American Conference of Governmental 

Industrial Hygienists ("ACGIH"), as set forth in 30 C.F.R. 

§ 56.5001. 

II. SUMMARY OF THE PARTIES' ARGUMENTS 

A. Newmont Gold Company 

Newmont argues that, as a matter of law, 30 C.F.R. 

§§ 56.20011 -and 56.20014 must be read in conjunction with 30 

C.F.R. § 56.5001, which establishes MSHA's TLV for mercury and 

other substances. It contends that section 56.5001 is the only 

regulation applicable to surface metal and nonmetal mines that 

provides guidance for safe mercury exposure levels. It states 

that the Secretary has not defined the terms "health or safety ·hazard" or "toxic," as those terms are used in the cited 

standards. It contends that those terms must be defined in 

connection with the TLV standard, section 56.5001. It argues 

that unless sections 56.20011 and 56.20014 are interpreted with 

section 56.5001, they are too vague to be enforceable. 

There is no dispute that in order to establish that a TLV 

has been exceeded, air quality measurements satisfying the timeweighted average requirements must be taken. It is also undisputed that such time-weighted air quality readings were not taken 

by Inspector Drussell when he issued the citations and orders in 

these cases. · For that reason, Newmont contends that the citations and orders must be vacated. 

Newmont uses silica as an example of a substance that is 

"toxic" if the TLV is exceeded. It contends that, under the 

Secretary's interpretation, a mine operator could be in violation 

of section 56.20014 if there is silica dust in a lunchroom even 

though the TLV has not been exceeded. Under such circumstances, ·the operator would be forced to prohibit miners from eating at 

the mine because silica is .found virtually everywhere on earth. 

It argues that without reference to the TLV, the standards do not 

have a concrete meaning and there is no objective standard 

against which to measure compliance. Newmont labels the secretary's enforcement stance in these cases as a "zero tolerance . policy" because it would prohibit "any mercury everywhere in the 

mine site." (Motion at 9). 

B. Secretary of Labor 

The Secretary argues that summary decision is not 

appropriate because there are genuine issues of material fact in 

dispute. For example, it disputes Newmont's claim that the bone835 
yard was barricaded. Second, the Secretary maintains that the 

cited standards are separate and independent from section 

56.5001. He contends that the cited standards provide for a 

"different independent measure of protection for workers." 

{Opposition at 11). He argues that there is no dispute that 

mercury was present at the cited locations. The Secretary 

contends that whether or not the TLV was exceeded is irrelevant 

in these cases. He maintains that mercury is toxic in all forms 

and that the cited standards are "performance oriented standards 

[that) regulate mercury whether it is visible or not, and whether 

it is above the TLV or not." (Id. at 5). He states that, while 

section 56.5001 is aimed at airborne contaminants, the cited 

standards also protect against mercury being ingested or absorbed 

into the skin through direct contact. 

The Secretary also contends that the cited standards are not 

overly vague and Newmont was not denied due process or fair 

notice of their meaning. He argues that the Commission's 

reasonably prudent person test, used when interpreting performance standards, protects mine operators against unconstitutionally broad interpretations of these standards. He maintains 

that the Secretary's application of cited standards in these 

cases does not vi0late the Commission's reasonably prudent person 

test. 

III. ANALYSIS 

I deny Newmont's motion because I find that it is not 

entitled to summary decision as a matter of law under Commission 

Rule 67{b) (2). 1 Newmont contends that there cannot be a violation of the cited standards unless the Secretary proves that the 

TLV for mercury was exceeded. Thus, the Secretary would be 

required to prove a violation of 56.5001 in this\ case before it 

could establish that either 56.20011 or 56.20014 were violated. 

I do not agree with Newmont's interpretation of these standards. 

As a general .matter, the Secretary is not required to prove 

a violation of one safety or health standard as a prerequisite to 

establishing a violation of another standard. Each standard 

generally stands on its own and is not dependent on other standards for its interpretation. Moreover, in this instance, the 

cited standards address different hazards than section 56.5001. 

That health standard is concerned solely with air quality in the 

working environment. The cited standards cover a much broader 

range of hazards. 

I also find that there are genuine issues of material 

fact. For example, it is not clear whether the boneyard was 

barricaded in compliance with section 56.20011. 

836 
In the present cases, 1t appears that the TLV for mercury 

was not exceeded. Thus, there was no violation of section 

56 . 5001. The citations and orders state that mercury was present 

at the cited locations and allege that this condition violated 

the cited standards. Under Newmont'·s interpretation there could 

be no violations of the cited standards. Yet, health hazards 

could still be present. For example, a worker could get mercury 

on his fingers, wipe his eye, and suffer ill effects as a consequence. If mercury is present in an eating area, a worker could 

get mercury in his food and ingest mercury with his meal. Section 56.5001 does not address these hazards. 2 Thus, I concl ude 

that, as a matter of law, the Secretary is not required to establish a violat~on of section 56 . 5001 in order to prove violations 

of sections 56.20011 and 56 . 20014. 

This issue was previously litigated before former Commission 

Administrative Law Judge Michael A. Lasher in FMC Wyoming Corp., 

8 FMSHRC 264 (February 1986) . In that case, the mine operator 

was cited for violating section 56.20-11, the predecessor of 

56.20011, because of an alleged asbestos hazard. The mine operator argued that the Secretary could not establish a violation of 

section 56.20-11 absent a showing of exposure to airborne contaminants at levels that violated section 56.5- 1, the predecessor of 

56 . 5001. Judge Lasher rejected the operator's argument. He held 

that neither the Mine Act nor MSHA's regulations indicated that 

the two standards should be read together. Id. at 273. He held 

that section 56.20011 "provides a different, separate, and independent measure of protection for miners . .. that is not dependent on ..• sampling ... the air in the working environment" Id. 

I agree with Judge Lasher's conclusion in this regard . 

Newmont cites the commission's decision in Aluminum Companv 

of America, 15 FMSHRC 1821 (September 1993) in support of its 

position. In that case, however, the issue was whether an 

accident control order was properly issued to Alcoa under section 

103(k) of the Mine . Act when an MSHA inspector observed mercury at 

2 The TLVs adopted by the ACGIH recognize that maximum 

ceiling standards are required for certain fast- acting 

substances. The TLVs also recognize that certain substances 

require a "skin" notation because of the "potential contribution 

to the overall exposure by the cutaneous route including mucuous 

membranes and eye, either by airborne, or more particularly, by 

direct contact with the substance." (TLVs for Chemical 

Substances in Workroom Air Adopted by ACGIH for 1973, at 4). 

Newmont contends that because mercury is not subject to a ceiling 

standard or a skin notation, MSHA has recognized that mercury 

does not constitute a "health hazard" and .is not "toxic" unless 

it is found to violate the time-weighted average set forth in the 

TLV . The position advanced by Newmont lacks merit for the 

reasons discussed herein. 

83 7 
Alcoa's plant. That case is not applicable to the facts in these 

cases. The Secretary is not alleging that the presence of mercury at the south Area Gold Quarry constituted an "accident," as 

that term is defined at seqtion 3(k) of the Mine Act. I also 

find that Newmont's reliance on ·the Commission's decision in 

Tammsco, Inc., 7 FMSHRC 2006 (December 1985) is misplaced because 

in that case the Secretary tried to establish a violation of 

section 56.5001 without sampling for airborne contaminants. 

Newmont's principal concern appears to be that without the 

guidance of section 56.5001, the cited standards become so vague 

that compliance would become impossible. It uses the silica 

example t~ support its position. It rais~s the specter of MSHA 

issuing citations because miners are eating lunch in a room that 

contains silica bearing dust. I agree with Newmont that the 

cited standards are broadly written and are capable of absurd 

interpretations, but Commission case law provides a means of 

curbing overly vague interpretations. 

The standards at issue in these cases are not detailed but 

are of a type made "simple and brief in order to be broadly 

adaptable to myriad circumstances." Kerr-McGee corp., 3 FMSHRC 

2496, 2497 (November 1981); Alabama By-Products Corp., 4 FMSHRC 

2128, 2130 (December 1982). Nevertheless, such broad standards 

must afford reasonable notice of what is required or proscribed. 

U.S. Steel Corp., 5 FMSHRC 3, 4 (January 1983). "In order to 

afford adequate notice and pass constitutional muster, a mandatory standard cannot be 'so incomplete, vague, indefinite or 

uncertain that (persons) of common intelligence must necessarily 

guess at its meaning and differ as to its application.'" Ideal 

Cement Co., 12 FMSHRC 2409, 2416 (November 1990) (citation omitted). The Commission has consistently recognized that a safety 

standard must "give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act 

accordingly." Lanham Coal Co., Inc., 13 FMSHRC 1341, 1343 

(September 1991). In this context, the Commission further 

explained: 

When faced with a challenge that a 

safety standard failed to provide adequate 

notice of prohibited or required conduct, the 

Commission has applied an objective standard, 

i.e., the reasonably prudent person test. 

The Commission recently summarized this test 

as 'whether a reasonably prudent person 

familiar with the mining industry and the 

protective purpose of the standard would have 

recognized the specific prohibition or 

requirement of the standard.' 

Id. (citations omitted). 

838 
Accordingly, the application of sections 56.20011 and 

56.20014 to the facts of these cases must ·be subjected to the 

Commission's reasonable prudent person test. This objective test 

will ensure that the application of these standards to the facts 

of these cases do not violate the due process requirements of the 

constitution. 

I agree with Newmont that it has not been shown that mercury 

is "toxic in all its forms. " (Opposition at 5, Reply at 5}. It 

may be toxic under certain circumstances. I must first determine 

if the mercury detected by the inspector created a "health or 

safety hazard" and whether persons consumed food in an "area 

exposed to a toxic material." The Secretary has the burden of 

proof with respect to these issues. If the Secretary establishes 

a prima facie case, Newmont may attempt to establish that it did 

not have fair notice of the prohibitions or requirements of 

sections 56 . 20011 and 56.20014, as those standards were applied 

by the Secretary in these cases. The record does not contain a 

sufficient factual foundation to apply the reasonable prudent 

person test at this time. 

Finally, Newmont contends that the unwarrantable failure 

allegations alleged in one of the citations and both orders 

cannot be upheld as a matter of law since Newmont was never 

informed of MSHA's new "zero tolerance policy." I cannot reach 

the unwarrantable failure issue until after I determine whether 

Newmont violated the cited standards. Accordingly, the motion is 

also denied with respect to the unwarrantable failure issue. 

For the reasons set forth above, Newmont's motion for 

summary decision is DENIED. 3 

PREHEARING ORDER 

The parties shall again confer to discuss settlement of 

these cases. If a settlement is not agreed upon, the parties, by 

August 2, 1996, shall send to each other and to me lists of witnesses who may testify (unless privileged), exhibits which may be 

introduced, matters to which they can stipulate at the h~ 

and an estimate of the time required fo aring~/ /// 

/,·'/ . 

Richard w. Manning 

Administrative Law Judge 

3 The Secretary's motion that Newmont pay the costs incurred by the Secretary in opposing this motion is also denied. 

8 39 
Distribution: 

Jeanne M. Colby, Esq., Office of the Solicitor, U.S. Department 

of Labor, 71 Stevenson St., Suite 1110, San Francisco, CA 94105-

2999 

Henry Chajet, Esq., PATTON BOGGS, 2550 M Street, NW, Washington, 

DC 20037-1350 

RWM 

84 0 

•U.S. GOVERNMENT PUNTING OFFICE: 1996-405-710/53381