SEPTEMBER 1989 

COMMISSION DECISIONS 

09-20-89 

09-25-89 

09-27-89 

09-29-89 

Local Union 1261, UMWA v. Consolidation Coal Co. 

FHC Wyoming Corporation 

Flaget Fuels, Incorporated 

Robert Simpson v. Kenta Energy & Roy 

Dan Jackson 

ADMINISTRATIVE LAW JUDGE DECISIONS 

09-01-89 

09-05-89 

09-05-89 

09-06-89 

09-06-89 

09-07-89 

09-07-89 

09-07-89 

09-07-89 

09-07-89 

09-11-89 

09-11-89 

09-12-89 

09-13-89 

09-13-89 

09-13-89 

09-14-89 

09-20-89 

09-20-89 

09-21-89 

09-21-89 

09-21-89 

09-21-89 

09-25-89 

09-25-89 

09-25-89 

09-26-89 

09-26-89 

09-27-89 

09-28-89 

09-28-89 

09-29-89 

09-29-89 

09-29-89 

09-29-89 

Local 1769, UMWA v. Utah Power & Light Co. 

Jim Walter Resources, Inc. 

Drummond Company, Inc. 

International Salt Company 

Mike Stevens, et al. v. Chaparal Coal Co. 

M.A. Walker Company, Inc. 

Consol Pennsylvania Coal Company 

Southern Ohio Coal Company 

Southern Ohio Coal Company 

Sec. Labor on behalf of Randy Varney v. 

Rose Energy, Inc., Rex Fought, Robert Curtis 

Sec. Labor on behalf of Russell Ratliff & 

Kenneth Mullins v. Inferno Coals, Inc. 

Sec. Labor on behalf of Eugene McCario v. 

Three Star Drilling & Production Corp. 

Jim Walter Resources, Inc. 

Gary Thompson v. Island Creek Coal Co. 

Vinnell Mining & Minerals Corporation 

Bull Run Mining, Inc. 

Southern Ohio Coal Company 

George Jackson, Jr. v. Nally & Hamilton Enter. 

Mid-Continent Resources, Inc. 

Linda Lester v. Garden Creek Pocahontas·Co. 

A.H. Smith Stone Company 

Ideal Cement Company 

Southern Ohio Coal Company 

Donald D. Dawson v. J.T. Dyer Quarry 

Cyprus Empire Corporation 

Laurel Run Mining Company 

Louisa Sand & Gravel Company 

Consolidation Coal Company 

Sec. Labor on behalf of Kevin Bureau v. 

Callahan Mining Corp. 

Lyon Washed Sand & Gravel 

Southern Ohio Coal Company 

Flaget Fuels Incorporated 

Jim Walter Resources, Inc. 

A.H. Smith Stone Company 

Dennis R. Hildebrandt v. Hecla Mining Co. 

WEST 86-199-C 

WEST 86-43-RM 

KENT 89-115 

KENT 83-155-D 

WEST 87-86-C 

SE 89-82 

SE 89-91 

CENT 89-16-M 

VA 89-30-C 

KENT 88-121-M 

PENN 89-111 

WEVA 88-56-R 

WEVA 88-187 

WEVA 89-224-D 

KENT 89-99-D 

Pg. 1609 

Pg. 1622 

Pg. 1635 

Pg. 1638 

Pg. 1641 

Pg. 1670 

Pg. 1673 

Pg. 1675 

Pg. 1680 

Pg. 1682 

Pg. 1690 

Pg. 1697 

Pg. 1705 

Pg. 1740 

Pg. 1741 

LAKE 89-62-DM Pg. 1746 

SE 89-12 Pg. 1747 

KENT 88-162-D Pg. 1751 

WEST 89-22-M Pg. 1754 

WEVA 89-70 Pg. 1756 

WEVA 89-81 Pg. 1758 

KENT 89-75-D Pg. 1759 

WEST 89-45-R Pg. 1760 

VA 88-59-D Pg. 1763 

VA 88-44-M Pg. 1769 

WEST 88-202-M Pg. 1776 

WEVA 89-87 Pg. 1789 

PENN 89-198-DM Pg. 1794 

WEST 88-247-R Pg. 1795 

WEVA 89-57 Pg. 1815 

KENT 88-206 Pg. 1820 

WEVA 89-96 Pg. 1826 

LAKE 89-70-DM Pg. 1831 

LAKE 89-28-M Pg. 1833 

WEVA 88-349-R Pg. 1837 

KENT 89-115 Pg. 1843 

SE 89-70 Pg. 1844 

VA 89-28-M Pg. 1850 

WEST 88-258-DM Pg. 1854 

ADMINISTRATIVE LAW JUDGE ORDERS 

09-01-89 

09-12-89 

09-20-89 

Southern Ohio Coal Company 

Eastern Associated Coal Corporation 

Jim Walter Resources, Inc. 

WEVA 88-235 

WEVA 89-192 

SE 89-16-R 

Pg. 1863 

Pg. 1868 

Pg. 1871 

SEPTEMBER 1989 

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

Secretary of Labor, MSHA v. Flaget Fuels, Inc., Docket No. KENT 89-115. 

(Judge Merlin, Order of Default, August 31, 1989.) 

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

Secretary of Labor, MSHA v. Dillingham Construction, International, 

Docket Nos. SE 88-59-M, SE 89-23-M. (Judge Koutras, July 31, 1989.) 

Secretary of Labor on behalf of Jack Winninghoff v. Black Pine Mining Co., 

Docket No. WEST 89-79-D. (Petition for Interlocutory Review of Judge 

Cetti's August 9, 1989 Order.) 

Arnold Sharp v. Big Elk Creek Coal Company, Docket No. KENT 89-70-D. 

(Judge Koutras, August 22, 1989.) 

COMMISSION DECISIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 20, 1989 

LOCAL UNION 1261, DISTRICT 22 

UNITED MINE WORKERS OF 

AMERICA (UMWA) 

v. 

CONSOLIDATION COAL COMPANY 

Docket No. WEST 86-199-C 

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

Conunissioners 

DECISION 

BY: Ford Chairman; Doyle and Nelson, Connnissioners 

In this proceeding ar1s1ng under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seq. (1982)("Mine Act" or "Act"), 

the primary issue is whether miners normally scheduled to work on a 

particular day are entitled to compensation under the first and second 

sentences of section 111 of the Mine Act, when the operator has 

voluntarily closed the mine two shifts earlier for safety reasons. l/ 

l/ Section 111 states in part: 

Entitlement of miners to full compensation 

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

is closed by an order issued under section [103] 

... , section [104] ... , or section [107] of this 

[Act], all miners working during the shift when such 

order was issued who are idled by such order shall 

be entitled, regardless of the result of any review 

of such order, to full compensation by the operator 

at their regular rate of pay for the period they are 

idled, but for not more than the balance of such 

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

to the next working shift, all miners on that shift 

who are idled by such order shall be entitled to 

full compensation by the operator at their regular 

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

1609 
The United.Mine Workers of America ("UMWA") seeks compensation from 

Consolidation Coal Co. ("Consol") for 62 miners that the UMWA alleges 

were idled by a withdrawal order issued pursuant to section 103(k) of 

the Act. ~/ Commission Administrative Law Judge John Morris held that 

the miners were entitled to compensation and granted the UMWA's 

complaint. 9 FMSHRC 1799 (October 1987)(ALJ). The judge reasoned that, 

although the miners were voluntarily withdrawn by Consol prior to 

issuance of the section 103(k) control order, the order officially 

closed the mine and idled the miners for compensation purposes. 

9 FMSHRC at 1802. For the reasons explained below, we conclude that the 

claimants are not entitled to compensation under the first and second 

sentences of section 111 since none of the claimants were "working 

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

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

an order issued under section [104] .•. or section 

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

comply with any mandatory health or safety 

standards, all miners who are idled due to such 

order shall be fully compensated after all 

interested parties are given an opportunity for a 

public hearing, which shall be expedited in such 

cases, and after such order is final, by the 

operator for lost time at their regular rates of pay 

for such time as the miners are idled by such 

closing, or for one week, whichever is the lesser. 

[4] Whenever an operator violates or fails or 

refuses to comply with any order issued under 

section [103] ... , section [104[ •.. ,or section 

[107] of this [Act], all miners employed at the 

affected mine who would have been withdrawn from, or 

prevented from entering, such mine or area thereof 

as a result of such order shall be entitled to full 

compensation by the operator at their regular rates 

of pay, in addition to pay received for work 

performed after such order was issued, for the 

period beginning when such order was issued and 

ending when such order is complied with, vacated, or 

terminated .... 

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

~/ Section 103(k), which grants the Secretary flexible authority to 

issue such orders as are necessary to insure the safety of any person in 

a mine in the event of an accident, states in part: 

In the event of any accident occurring in a coal 

or other mine, an authorized representative of the 

Secretary, when present, may issue such orders as he 

deems appropriate to insure the safety of any person 

in the coal or other mine ...• 

30 U.S.C. § 813(k). An order issued pursuant to section 103(k) is 

commonly referred to as a "control order." 

1610 
during the shift when [the] order was issued" or were on "the next 

working shift". Therefore, we reverse the judge's decision. 

I. 

The facts were stipulated by the parties. Briefly, Consol's Emery 

Mine operates three eight hour shifts per day: the daylight shift, the 

afternoon shift, and the graveyard shift. On April 16, 1986, during the 

afternoon shift, Consol voluntarily removed its afternoon shift 

employees from the mine because of rising gas levels. Consol informed 

the miners that the mine would be closed until further notice because of 

the gas levels. Immediately thereafter, Consol notified the UMWA and 

officials of the Secretary of Labor's Mine Safety and Health 

Administration ("MSHA") of its action. Consol also called miners 

scheduled to work the graveyard and daylight shifts and advised them 

that the mine would be closed until further notice. Consol paid the 

afternoon shift miners for the 4-1/2 hours that they had worked on April 

16 before being withdrawn. Consol did not pay any of the miners 

scheduled to work on April 17 who had been notified not to report. 

On the morning of April 17, MSHA personnel arrived at the mine to 

investigate the conditions that had caused Consol to remove its miners. 

Based on the analysis of the air samples taken by Consol, an MSHA 

inspector issued a section 103(k) control order at 7:14 a.m. The order, 

which did not allege that Consol had violated any mandatory safety 

standards, stated in part: 

Based on the results of air samples taken by the 

Company ..• this mine has experienced a possible 

fire, therefore, all persons has [sic] been removed 

from the mine by Company order to insure their 

safety and no person shall enter inby the mine 

portal without modification of this order, after 

consultation with appropriate persons selected from 

Company officials, State officials, the miners 

representative and other persons. 

After the withdrawal order was issued, no miners could enter the 

mine nor could mining activities resume until MSHA modified or 

terminated the order. On April 20, 1986, MSHA modified the order to 

allow mining to resume, and on May 16, 1986, MSHA terminated the order. 

9 FMSHRC at 1800-01. 

Because Consol did not pay any miners for April 17, the UMWA filed 

its compensation complaint. The complaint, as amended, requested eight 

hours of pay, pursuant to the first sentence of section 111 of the Act, 

for each of 36 miners scheduled to work the day shift on April 17 and 

four hours of pay, pursuant to the second sentence of section 111, for 

each of 26 miners scheduled to work the afternoon shift on April 17. 

Before the judge, Consol argued that the UMWA's complaint should 

fail because it did not meet the requirements of section 111. Consol 

noted that section 111 specifically provides that, if a section 103(k) 

withdrawal order has been issued, those entitled to compensation are 

1611 
" all miners working during the shift when such order was issued who 

are idled by such order ... "and, in the event the order is not 

terminated prior to" ... the next working shift, all miners on that 

shift who are idled by such order " The judge rejected Consol's 

argument and focused instead upon his conclusion that the complainants 

were "officially idled" by the withdrawal order. The judge stated that 

he was persuaded by decisions of our predecessor, the Interior Board of 

Mine Operations Appeals ("Board"), and two Commission judges holding in 

sum "that an MSHA withdrawal order is more extensive in scope than a 

voluntary withdrawal by the operator" and "regardless of the sequence of 

events or the method by which the miners were originally withdrawn" the 

withdrawal order may be the basis for compensation. 9 FMSHRC at 

1802. 11 Therefore, the judge awarded compensation to the complainants. 

Both Consol and the UMWA filed petitions for discretionary review, 

both of which the Commission granted. Consol seeks review of the 

judge's conclusion that the complainants are entitled to compensation. 

The UMWA seeks review of the judge's failure to assess prejudgment 

interest on the compensation he awarded. 

II. 

The question of the claimants' entitlement to compensation centers 

around the meaning of the phrases "working during the shift when such 

order was issued" in the first sentence of section 111 of the Act and 

the phrase "the next working shift" in the second sentence. The 

importance of the phrases as prerequisites to section 111 first and 

second sentence compensation is apparent when they_are viewed in the 

context of the Mine Act's overall scheme of compensation. Section 111 

is remedial in nature and was intended by Congress to reduce the 

economic impact on miners idled by withdrawal orders. 4/ Miners idled 

as the result of specified withdrawal orders are entitled to compensation that varies in amount according to the type of withdrawal order 

issued and the conduct of the operator giving rise to the order. The 

first and second sentences of section 111 provide that, when an order is 

issued under sections 103, 104, or 107, miners working during that shift 

are entitled to full compensation for the balance of the shift during 

}/ The judge cited UMWA, Dist. 31 v. Clinchfield Coal Co., 1 IBMA 33 

(1971); UMWA, Loe. 1993 v. Consolidation Coal Co., 1 MSHC 1668 

(1978)(ALJ Broderick); and UMWA, Loe. 2244 v. Consolidation Coal Co., 1 

MHSC 1674 (1978)(ALJ Fauver) in which complainants were awarded 

compensation despite the fact that they were voluntarily withdrawn by 

the operator prior to the issuance of the withdrawal order upon which 

compensation was based. 

!:_/ The word "idled" generally has been recognized in the statutory 

compensation context to include both a physical removal from the 

proscribed mine or area, and a prohibition from entering the proscribed 

mine or area. See UMWA, Dist. No. 31 v. Clinchfield Coal Co., 1 IBMA 

33, 41 (1971); Roscoe Page v. Valley Camp Coal Co., 6 IBMA 1, 6-7 

(1976); Loe. Un. 1670, Dist. 12, UMWA v. Peabody Coal Co., 1 FMSHRC 

1785, 1790 (November 1979). 

1612 
which the ord.er is issued and, where an order has not been terminated 

prior to the next working shift, miners on that shift are entitled to up 

to four hours compensation. First and second sentence compensation is 

commonly referred to as "shift compensation" and entitlement to shift 

compensation exists even where there is no culpability on the part of 

the operator for the conditions leading to the issuance of the order. 

The third sentence of section 111 provides that, if an order is issued 

under sections 104 or 107 "for the failure of the operator to comply 

with any mandatory standard," miners are entitled to compensation for 

the actual time that they are idled for up to one week. Finally, the 

fourth sentence of section 111 provides that, if an operator fails to 

comply with a withdrawal order issued under sections 103, 104, or 107, 

miners who otherwise would have been withdrawn are entitled to full 

compensation at their regular rates of pay, in addition to pay received 

for work performed after issuance of the order, until such time as the 

order is complied with, vacated, or terminated. This graduated scheme 

of increasing compensation commensurate with increasingly serious 

operator conduct reflects the limited nature of compensation and 

represents a careful and deliberate balancing by Congress of the 

competing interests of miners and mine operators. See Rushton Mining 

Co. v. Morton, 520 F.2d 716, 721-722 (3rd Cir. 1975). 

The facts of this case are not in dispute. We are called upon to 

decide whether, based on those facts, the claimants are entitled to 

shift compensation under the first two sentences of section 111. It is 

a fundamental rule of statutory construction that "the primary 

dispositive source of information is the wording of the statute itself." 

Association of Bituminous Contractors v. Andrus, 581 F.2d 853, 861 (D.C, 

Cir. 1978). If the meaning of that language is plain, the statute is to 

be enforced according to its terms unless it can be established that 

Congress clearly intended the words to have a different meaning. See, 

~·· Caminetti v. United States, 242 U.S. 470, 485 (1916); Chevron, 

U.S.A. v. Natural Resources Defense Counsel, Inc., 467 U.S. 837, 842-43 

(1984); Matala v. Consolidation Coal Co., 647 F.2d 427, 429-30 (4th Cir. 

1981). See also Western Fuels-Utah, Inc., 11 FMSHRC 278 (March 1989), 

appeal docketed, No. 89-1258 (D.C. Cir. April 20, 1989). 

The meaning.of the first two sentences of section 111 is clear. 

If a specified withdrawal order has been issued, "all miners working 

during the shift when such order was issued who are idled by such order" 

are entitled to compensation for the remainder of their shift. 

(Emphasis added). If the order is not terminated prior to "the next 

working shift, all miners on that shift who are idled by such order" are 

entitled to compensation for up to four hours. (Emphasis added.) The 

language is in nowise qualified. Thus, to be entitled to shift 

compensation, a miner must either be working during the shift when the 

specified order was issued and have been idled by the order or, if the 

order is not terminated prior to the next working shift, must be on the 

next working shift. 

Here, the preconditions for entitlement to shift compensation were 

not met. At the time the order was issued, no miners were working nor 

had they been since the previous evening at which time Consol had 

voluntarily withdrawn all miners in order to guarantee their safety. 

1613 
Therefore, none of those for whom compensation is claimed were "working 

during the shift when ..• [the] order was issued." Further, Consol 

advised miners on the other two shifts that 11 the mine is idie until 

further notice. 11 9 FMSHRC at 1800. Therefore, none of those for whom 

compensation is claimed were on "the next working shift." (Emphasis 

added.) 21 We therefore hold that the claimants, not having met these 

plainly stated prerequisites, were not eligible to be compensated. 

Apart from the plain wording of the statute, there are also 

practical considerations. A statute should not be construed in a way 

that is foreign to common sense or its legislative purpose. Sutherland 

Statutory Construction §§ 45.09, 45.12 (4th ed. 1985). As discussed, 

the Mine Act involves a balancing of the interests of mine operators and 

miners, with safety being the preeminent concern. Section 2 of the Mine 

Act specifies at the outset that 11 the first priority and concern of all 

in the coal or other mining industry must be the health and safety of 

its most precious resource -- the miner," and section 2(e) adds that 11 the operators of such mines with the assistance of the miners have the 

primary responsibility to prevent the existence of [unsafe and 

unhealthful] conditions and practices in such mines." The Mine Act was 

not intended to remove from an operator the right to withdraw miners 

from a mine for safety reasons. While MSHA has the authority to order 

such withdrawal, it does not have that power exclusively. 

Here, the record shows immediate action on the part of a mine 

operator to remove all afternoon shift employees from the mine because 

of rising gas levels -- clearly a threat to the health and safety of the 

miners. The wisdom of this action was attested by the action of MSHA 

inspectors who, after being summoned by the operator, issued a control 

order on the following morning, officially closing the mine and thereby 

confirming the evacuation order issued during the previous evening by 

the mine operator. Thus, apart from the fact that no miners were 

present in the mine when the MSHA closure order was issued, it is 

apparent that the safety first edict of section 2 was observed 

conscientiously by the mine operator here and that it would be a 

departure from the clear intent and purpose of the Mine Act to penalize 

the operator for voluntarily idling miners for their own protection. To 

impose such liability could conceivably encourage less conscientious 

operators in similar circumstances to continue production, at risk to 

the miners, until the MSHA inspectors arrived to issue a control order 

idling the miners. We do not believe that the Mine Act was intended to 

stifle such safety conscious actions by operators, as Consol took 

here. §_/ 

21 It should be noted that the compensation claimed by the UMWA is 

not for the remainder of the afternoon shift of April 16 (those actually 

withdrawn and sent home by Consol) and those on the next shift due at 

the mine (the graveyard shift) but rather for the day shift of April 17 

(during which time the inspector arrived and issued the order) and for 

the first four hours of the afternoon shift on that day. 

§_/ We also note that this case does not involve an attempt to avoid 

section 111 liability by withdrawing miners in anticipation of 

1614 
The purpose and scope of shift compensation can also be determined 

by another important concern expressed by Congress in adopting section 

111 in its specific terms: insulating the mine inspector from any 

repercussions that might arise from his withdrawing miners and 

temporarily depriving them of their livelihood. A key passage from the 

Report of the Senate Committee setting forth the rationale for the 

miners' compensation provision concludes by stating, "[t]his provision 

will also remove any possible inhibition of the inspector in the 

issuance of closure orders." Leg. Hist. at 635. This convinces us that 

Congress intended. shift compensation rights to arise only when the 

physical removal of miners is effectuated by the inspector himself so 

that the inspector in carrying out his enforcement duties is not 

inhibited or distracted by workplace considerations wholly extraneous to 

the protection of miners. Here, however, the operator unilaterally and 

voluntarily withdrew its own miners and notified all shifts that the 

mine would be closed until further notice. Obviously, under such 

circumstances, no inhibitions would have attached to the inspector's 

enforcement actions taken twelve hours later when the mine was empty. 

The need to insulate the inspector from any purported miner animus had 

by then evaporated. 

III. 

The Commission has previously focused on the meaning of the term 11 idled11 and has adopted the Board's interpretation (see n.4 supra) for 

Mine Act compensation purposes. It has held that a miner who has been 

previously withdrawn from a mine can still be 11 idled11 by a subsequently 

issued withdrawal order in the sense that the miner is barred by the 

order from returning to work and that miners so idled may be entitled to 

compensation. 

We do not disavow the Commission's earlier interpretation of 

"idled" and simply hold today that to be entitled to first and second 

sentence compensation, miners, in addition to being idled by an order of 

withdrawal, must also be working during the shift when the subject order 

was issued or, if the order is not terminated prior to the next working 

shift, be on that shift. Thus, in view of our disposition of this case 

by resort to the plain meaning of the first two sentences of section 

111, the claimants' and the judge's reliance upon UMWA, Dist. 31 v. 

Clinchfield Coal Co., 1 IBMA 33 (1971) and two unreviewed administrative 

law judge decisions (fn. 3, supra) is misplaced. The decisional 

rationale in those cases centered on the fact that the withdrawal orders 

at issue "officially idled" the miners but did not take into 

consideration the meaning and effect of the phrases "working during the 

shift when such order was issued" and "on [the next working] shift, 11 

Indeed, in Clinchfield, first and second sentence shift compensation was 

not even at issue. (The miners had already been paid shift compensation 

by the operator. 1 IBMA at 36). Rather, the miners were actually 

seeking the equivalent of third sentence compensation (up to one week's 

withdrawal action by MSHA. Compare UMWA, Loe. 1993 v. Consolidation 

Coal Co., 1 MSHC 1668 (October 1979)(ALJ). On the contrary, immediately 

after taking the prudent action of withdrawing the miners, Consol 

notified MSHA of the conditions it was experiencing at the mine. 

1615 
pay) by attempting to establish that the subject withdrawal order was 

based upon a violation caused by the operator's unwarrantable failure to 

comply with the standards. 7/ As discussed above, third sentence 

compensation does not invol;e "working" or "working shift" prerequisites. Likewise, the Commission's decisions in Loe. U. 1889, Dist. 

17 v. Westmoreland Coal Co., 8 FMSHRC 1317, 1327 (September 1986); Loe. 

U. 2274, Dist. 17, UMWA v. Clinchfield Coal Co., 8 FMSHRC 1310, 1313 

(September 1986); Loe. U. 1609, Dist. 2, UMWA v. Greenwich Collieries, 

8 FMSHRC 1302, 1306-07 (September 1986) are all markedly distinguishable 

because they involved claims for compensation under the third sentence 

of section 111. 

For similar reasons, we find little guidance in the Commission's 

decision in Peabody Coal Co., 1 FMSHRC 1785 (November 1979), a case 

arising under the 1969 Coal Act. In that case, the Commission concluded 

that shift compensation was properly awarded where, as the result of 

being withdrawn due to a previously issued non-compensable order, no 

miners were working when the compensable withdrawal order was issued. 

The Commission "disagreed" with Peabody's contention that since no 

miners were actually working when the second order was issued no 

compensation was due because it found that the miners were idled within 

the meaning of the compensation provision at the time the order was 

issued. 1 FMSHRC at 1790. Factually, the Peabody case was very 

different. Miners were, in fact, working at the time the initial noncompensable withdrawal order was issued. The MSHA inspector was present 

when the hazardous condition was detected and he initiated the 

withdrawal action. Further, the Commission, like the Board, did not 

address the language "working during the shift" nor did it set forth its 

reasons for not giving that statutory phrase its plain meaning. The 

Commission appears to have based its decision solely upon the fact that 

the miners were idled by issuance of the second order. 

In contrast, our decision addresses the existence of the phases 

"working during the shift when such order was issued" and "the next 

working shift" and ascribes them their intended place in the Act's 

compensation scheme. ~/ Recognition of the phrases as prerequisites for 

shift compensation eliminates the roulette wheel effect that results 

from basing shift compensation solely upon idlement, wherein shift 

compensation is awarded to those not actually working and is based upon 

the chance timing of the inspection and the order's issuance rather than 

upon the claimants' actual deprivation of work. Our decision, 

interpreting section 111 as written by Congress, corrects this 

capricious result. To hold otherwise in the face of the words of the 

first two sentences of section 111 would be to usurp the legislative 

ZI On the ground that evidence of an operator's unwarrantable failure 

to comply was inadmissible in a compensation proceeding, the case was 

ultimately dismissed. ALJ Decision on Remand, Docket No. HOPE 70-120 

(June 4, 1971). 

~/ This case does not require us to define all contours of the 

meaning of "working during the shift," and we leave such questions for 

future cases in which they are actually presented. 

1616 
function. 

Accordingly, the decision of the judge is reversed. 21 

~ 

J~~e~nun~ 

~~ L. Clair Nelson, Commissioner 

21 In view of our reversal of the judge's decision, we need not reach 

the issue raised by the UMWA of whether the judge erred in failing to 

award the complainants prejudgment interest. We note, however, that 

subsequent to the judge's decision the Commission held that interest may 

properly be included in a compensation award and that it should include 

interest accruing from the date that the compensable pay would normally 

have been paid until the date that the compensation is actually 

tendered. Loe. U. 2274, Dist. 28, UMWA v. Clinchfield Coal Co., 

10 FMSHRC 1493, 1500-03 (November 1988). 

1617 
Commissioners Backley and Lastowka, dissenting: 

In its decision, the majority denies compensation under section 

111 of the Mine Act to miners idled by a withdrawal order issued 

pursuant to section 103(k) of the Act on the basis that the mine 

operator, Consol, had itself withdrawn the miners from the mine prior to 

the MSHA inspector's issuance of the withdrawal order. Because we 

believe that Consol's withdrawal of the miners does not negate the 

effect of the withdrawal order issued pursuant to section 103(k), we 

would affirm the administrative law judge's decision awarding 

compensation. Accordingly, we dissent. 

The facts in this case were stipulated by the parties. On April 

16, 1986, Consol discovered that the level of explosive gas was rising 

behind the North seals at its Emery Mine. Out of concern for safety, 

Consol withdrew its miners from the Emery Mine at 7:00 p.m. and notified 

them that the mine was "idled until further notice because of the rising 

gas levels." 9 FMSHRC at 1801. Consol also notified miners scheduled 

to work the next two shifts that "the mine is idle until further 

notice." Id. Consol further notified MSHA and the UMWA that it had 

removed the miners from the mine. It is not disputed that Consol's 

decision to withdraw the miners in the face of the hazard was 

commendable mining practice intended to eliminate the potential of death 

or serious injury in the event the gas ignited. 

After conducting an investigation, the MSHA inspector issued a 

withdrawal order under section 103(k) closing the mine based on the 

samples taken by Consol of the air behind the seals. 1/ The withdrawal 

order, issued at 7:14 a.m. on April 17, stated that the "mine has 

experienced a possible fire," and referenced the fact that the miners 

had been removed from the mine by Consol to insure their safety. 9 

FMSHRC at 1801. The withdrawal order further prohibited any person from 

entering the mine until the order was modified by MSHA. Id. Thus, the 

effect of the order was to deny the miners entry into the mine until 

such.time as MSHA believed that the danger had been eliminated. 

There is no doubt therefore that the miners were prevented from 

working because of hazardous gas levels and that the withdrawal order 

was issued by the MSHA inspector to keep miners away from this danger. 

The majority nevertheless denies compensation because the mine operator 

had removed the miners from the hazard before the MSHA inspector arrived 

to issue the withdrawal order officially closing the mine. Our 

colleagues base their conclusion on the fact that, due to Consol's 

previous withdrawal of its miners, there were no miners "working during 

lf Section 103(k), 30 U.S.C. § 813(k), provides: 

In the event of any accident occurring in a coal or 

other mine, an authorized representative of the 

Secretary, when present, may issue such orders as he 

deems appropriate to insure the safety of any person 

in the coal or other mine .... 

1618 
the shift" at the time the withdrawal order was issued, and there was no 

"next working shift" after the order was issued because Consol had 

already advised the miners to stay home until further notice. This 

reasoning, however, is contrary to well-established precedent correctly 

relied upon by the judge in awarding compensation. 

It has long been recognized that a withdrawal order issued by a 

federal mine inspector: (1) officially closes a mine for compensation 

purposes notwithstanding a voluntary withdrawal of miners by the 

operator; (2) prohibits miners from reentering the mine until such time 

as an MSHA inspector determines that the mine is safe; and (3) 

officially idles the miners for the purposes of the compensation 

provision of the Mine Act. As early as 1971, the Department of 

Interior's Board of Mine Operations Appeals ("Board") held that an order 

of withdrawal issued by a federal inspector not only removes miners from 

a mine, but also empowers the Secretary to prohibit reentry until the 

hazardous conditions have been eliminated. UMWA, Dist. 31 v. 

Clinchfield Coal Co., 1 IBMA 33 (1971). In Clinchfield, an explosion 

had occurred and the operator had immediately withdrawn all personnel 

from the mine. Not until the following shift did a federal inspector 

arrive to issue a withdrawal order. 1 IBMA at 35. In rejecting the 

operator's argument that the miners had not been "idled" by the 

inspector's order in light of their previous withdrawal from the mine by 

the operator, the Board explained: 

... an Order of Withdrawal is more extensive than the 

mere withdrawal of miners it also confers 

jurisdiction ... to prohibit reentry until an 

authorized representative of the Secretary 

determines that' •.. imminent danger no longer 

exists' ... or' ... that the violation has been 

abated' .... Thus the purpose of a withdrawal order 

is not only to remove the miners but also to insure 

that they remain withdrawn until the conditions or 

dangers have been eliminated. Regardless of the 

seguence of events, or the method by which the 

miners were originally withdrawn, a mine ... is 

officially closed upon the issuance of [a withdrawal 

order], and the miners are officially idled by such 

order. 

1 IBMA at 41 (emphasis added)(citations omitted). Accord, Roscoe Page 

v. Valley Camp Coal Co., 6 IBMA 1 (1976). 

This Commission has also previously considered the specific issue 

raised in this case and adopted the rationale of the Clinchfield 

decision. In Loe. Un. 1670, Dist. 12, UMWA v. Peabody Coal Company, 1 

FMSHRC 1785 (November 1979), a mine fire was discovered by the operator 

and a federal inspector, who was in the mine at the time, issued a 

withdrawal order pursuant to section 103 of the Federal Coal Mine Health 

and Safety Act of 1969, 30 U.S.C. § 801 et seq. (1976)(amended 1977). 

Section 110 of the Coal Act did not provide for the compensation of 

miners withdrawn pursuant to section 103 of that Act, but it did provide 

compensation to miners "working during the shift" or "the next working 

1619 
shift" when an imminent danger withdrawal order was issued. After 

conducting an investigation, the inspector issued such an imminent 

danger order. Because of their previous withdrawal pursuant to the 

section 103 withdrawal order, no miners were working "during the shift" 

when the imminent danger withdrawal order was issued or on "the next 

working shift." The miners who had been scheduled to work those shifts 

filed for compensation under section 110 of the Coal Act. 

The Commission expressly rejected the operator's argument that the 

shift compensation provisions of section 110 of the Coal Act limited an 

award of compensation to miners who are actually "'working during the 

shift' when a withdrawal order is issued." 1 FMSHRC at 1790. The 

Commission held that the operator was required to pay compensation under 

the first two sentences of section 110 of the Coal Act to the ''miners 

normally scheduled to work" during the shift that was idled by the 

withdr~wal order despite the fact that these miners had been previously 

withdrawn and were not working during the shift when such order was 

issued. 1 FMSHRC 1790. The Commission further held that compensation 

was also due the miners normally scheduled to work the "next working 

shift" even though "the miners were notified several days beforehand not 

to report for work." 1 FMSHRC at 1791. Thus, the issue raised by 

Consol in the present case was, in fact, squarely addressed by the 

Commission in Peabody and the construction of section 111 now adopted by 

the majority was expressly rejected. Despite their insistence that 

Peabody offers "little guidance" in this case (slip op. at 7), the 

holding is squarely applicable and the majority here effectively 

overrules Peabody. 

In Loe. Un. 1889, Dist. 17, UMWA v. Westmoreland Coal Co., 8 

FMSHRC 1317, 1323 (September 1986), the Commission noted that "section 

111 is remedial in nature and was not intended by Congress to be 

interpreted and applied narrowly." The majority here ignores this 

admonition and instead narrowly interprets the phrases "working during 

the shift" and."next working shift." Miners who are scheduled to work a 

particular shift, but who are prevented from working as a result of a 

withdrawal order, are no less idled than miners who are working in a 

mine at the time a withdrawal order is issued. In both instances miners 

are prevented from working by a withdrawa1 order issued by a federal 

inspector as a result of hazardous conditions existing in ~he mine. In 

both these circumstances, the provisions of section 111 awarding limited 

compensation to idled miners were intended to be triggered. Accord, 

Loe. Un. 2274, Dist. 28, UMWA v. Clinchfield Coal, 10 FMSHRC 1493 

(November 1988), appeal docketed, No. 88-1873 (D.C. Cir., December 16, 

1988); Loe. Un. 1609, Dist. 2, UMWA v. Greenwich Collieries, 8 FMSHRC 

1302 (November 1988). 

With respect to the issue of prejudgment interest on the award of 

compensation, the Commission has held that prejudgment interest may 

properly be awarded in compensation cases and we would remand to the 

judge for consideration of this issue. Loe. Un. 2274 v. Clinchfield, 

supra, 10 FMSHRC at 1500-03. 

16 20 
In sum, we conclude that the prerequisites for shift compensation 

were met in this case because the miners were prevented from working 

their shift as a result of the closure of the mine by an order of 

withdrawal issued under section 103 of the Mine Act. We would affirm 

the administrative law judge's award of compensation and remand for 

determination of the interest due. 

Distribution 

Robert M. Vukas, Esq. 

Consolidation Coal Company 

1800 Washington Road 

Pittsburgh, PA 15241 

Mary Lu Jordan~ Esq. 

Michael Dinnerstein, Esq. 

Maureen Geraghty, Esq. 

United Mine Workers of America 

900 15th St., N.W. 

Washington, D.C. 20005 

Administrative Law Judge John Morris 

Federal Hine Safety & Health Review Connnission 

280 Colonnade Center 

1244 Speer Blvd. 

Denver, Colorado 80204 

1621 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 25, 1989 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

FMC WYOMING CORPORATION 

Docket Nos. WEST 86-43-RM 

WEST 86-45-RM 

WEST 86-110-M 

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

DECISION 

BY: Ford, Chairman; Backley, and Lastowka, Conunissioners 

At issue in this consolidated contest and civil penalty proceeding 

arising under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seg. (1982)(the "Mine Act"), is whether FMC-Wyoming 

Corporation's violation of 30 C.F.R. § 57.5002 was significant and 

substantial in nature and caused by its unwarrantable failure to comply 

with the mandatory safety standard. ll Also at issue is whether FMC 

violated 30 C.F.R. § 57.18002 by failing to designate a "competent 

person" to examine a working place at least once each shift for 

conditions which may adversely affect safety or health, or by failing to 

keep a record of such examinations. ~/ Conunission Administrative Law 

ll 30 C.F.R. 57.5002 provides: 

Dust, gas, mist, and fume surveys shall be 

conducted as frequently as necessary to determine 

the adequacy of control measures. 

~/ 30 C.F.R. § 57.18002 provides in part: 

(a) A competent person designated by the operator 

shall examine each working place at least once each 

shift for conditions which may adversely affect 

safety or health. The operator shall promptly 

initiate appropriate action to correct such 

1622 
Judge August F. Cetti answered these questions in the negative. 

10 FMSHRC 822 (June 1988)(ALJ). For the reasons explained below, we 

vacate that portion of the judge's decision concerning the significant 

and substantial nature of the violation of section 57.5002 and remand 

the matter to the judge for further consideration. In addition, we 

reverse the judge's unwarrantable failure finding and his conclusion 

that FMC did not violate section 57.18002. 

The material facts are not in controversy. FMC operates a trona 

mine located near Green River, Sweetwater County, Wyoming. At an 

adjacent plant FMC processes trona into various products. The 11Sesqui 11 

powerhouse, which is part of the processing plant, houses three turbines 

that generate electricity for the plant. FMC overhauls the turbines 

every five years. The No. 3 turbine was scheduled for overhaul in 

November 1985, and on November 4, 1985 a work crew began to dismantle 

the turbine. It took three days to remove insulation from the turbine, 

and the debris lay scattered about the immediate area and on the floors 

of the powerhouse for approximately two weeks while the overhaul was 

completed. 

To overhaul the turbine, the work crew first removed the turbine 

cover. Underneath the cover was blanket-type insulation containing 

asbestos. This insulation was removed in pieces and the blankets were 

dropped over a handrail near the turbine for temporary storage. Next, 

the crew disassembled the halves of the turbine. In order to gain 

access to the bolts holding the halves together, the workers removed two 

other types of insulation containing asbestos. The first layer of 

insulation was mortar-like and was imbedded in chicken wire. It had to 

be chipped away and the chicken wire had to be cut. As it was removed, 

pieces of the insulation fell down either side of the turbine to the 

ground floor of the powerhouse. 

Underneath this mortar-like insulation were 11 bricks 11 of additional 

insulation held in place by baling wire. The bricks were soft and 

"chalky. 11 As the baling wire was cut, the bricks fell to the ground 

floor of the powerhouse. 

When the mortar-like insulation was being removed by· the workers, 

dust was created as the workers used hammers and chisels to break up and 

loosen the material. Tr. 168, 214-216, 232, 243-44. Further, when 

pieces of the insulation fell to the floor more dust was created. In 

addition, when members of the work crew walked through the debris, dust 

was stirred up, and when the powerhouse doors were opened for 

ventilation purposes, the wind created a literal "dust storm. 11 Tr. 174, 

198, 233, 241. 10 FMSHRC at 824-25. Members of the work crew asked 

their foreman, John Wilfong, if the insulation they were handling 

contained asbestos and whether it was safe to handle. Tr. 80, 220-235, 

conditions. 

(b) A record that such examinations were 

conducted shall be kept by the operator for a period 

of one year, and shall be made available for review 

by the Secretary or his authorized representative. 

1623 
245-246. Wilfong responded that "he didn't believe there was," (Tr. 80) 

that there was "not enough to worry about," (Tr. 220) and that "there 

was no problem, there was no asbestos in it." Tr. 177. 

Previously FMC had analyzed the insulation. In July 1985, FMC had 

determined that the blanket wrap insulation contained 90 percent 

asbestos and the non-blanket wrap insulation contained 35 percent 

asbestos. Pet. Exh. M-5, Tr. 278-283. The results of this analysis 

were recorded in a memorandum dated July 1, 1985. The memorandum was 

authored by FMC's industrial hygienist, Carl Watson, and was circulated 

to FMC's supervisors, including Mike Hruska, who supervised the work 

crew's foreman, John Wilfong. Pet. Exh. M-5. In an earlier memorandum 

dated, June 11, 1985, Watson had reported similar results from analysis 

of other samples of the insulation. 

FMC did not conduct dust surveys at any time during the overhaul 

of the turbine. 10 FMSHRC at 824. Nor was an FMC industrial hygienist 

on hand to observe the work and to recommend protective equipment as 

required by FMC's policy. J/ On November 18, 1985, FMC's industrial 

hygienist, Carl Watson, visited the work area. Watson came to the 

powerhouse to check on the work of another crew removing asbestoscontaining insulation from a different area of the powerhouse. When 

Watson noticed the blanket insulation draped over the handrail and the 

other insulation lying on the floor, he gave his opinion to the crew 

foreman that the insulation could contain asbestos and that it should be 

properly bagged and protective measures taken. 

On November 19, 1985, an inspector of the Secretary of Labor's 

Mine Safety and Health Administration ("MSHA") conducted an inspection 

of the powerhouse. The inspector observed a clean-up crew at the 

turbine wearing protective clothing and masks. In addition, he observed 

Watson collecting samples of the insulation. The inspector collected 

samples of the bagged material. Subsequent analysis of the inspector's 

samples established that the insulation contained asbestos. 10 FMSHRC 

at 825. 

J/ An FMC memorandum dated May 17, 1985, states the following 

regarding degrees of exposure to asbestos and commensurate protective 

measures. 

(b) Moderate exposure. Examples would be 

grinding asbestos impregnated gaskets off pipe 

flanges, removing asbestos containing insulation 

from boilers, pipes and turbines, removing or 

installing asbestos containing packing glands, 

replacing or repairing brakes or brake drums or 

lining, and drilling or cutting transite pipe. 

Anytime these jobs are being performed, the 

Industrial Hygienist should be called to observe the 

job and to recommend protective equipment. 

Pet. Exh. 4 (emphasis added). 

1624 
On November 23, 1985, the inspector took two enforcement actions 

that are contested here. The inspector issued to FMC a citation 

pursuant to section 104(d)(l) of the Act, 30 U.S.C. § 814(d)(l), stating 

that FMC's failure to make surveys to determine if the workers were 

over-exposed to asbestos violated section 57.5002. This citation 

included the inspector's findings, made pursuant to section 104(d), that 

the violation was of a significant and substantial nature and resulted 

from unwarrantable failure by the operator. 

In addition, the inspector issued to FMC an order of withdrawal 

pursuant to section 104(d)(l) of the Act alleging that FMC violated 

section 57.18002. See n.2, supra. The order stated that FMC management 

failed to notify the workmen that they would be working with asbestos 

and that there was no record of examinations of the work area. Again, 

the inspector made associated significant and substantial and 

unwarrantable failure findings. 

FMC contested the validity of the citation and order, the special 

findings associated with the section 104(d)(l) citation, and the civil 

penalties proposed by the Secretary for the alleged violations. FMC 

argued that it had not violated section 57.5002, that the standard's 

requirement to conduct exposure surveys "as frequently as necessary to 

determine the adequacy of control measures" should be read in 

conjunction with the regulatory exposure limits for contaminants. ~/ 

FMC asserted that because the Secretary did not establish that the 

exposure limit for asbestos dust had been exceeded during the asbestos 

removal operation, the Secretary had not established the violation of 

section 57.5002. 

FMC also argued that to prove a violation of section 57.18002 the 

Secretary must establish either that no competent person inspected the 

working place or that no record of the examination was made. FMC 

asserted that the Secretary had proven neither. 

The judge concluded that FMC had violated section 57.5002. The 

judge, noting that without dust surveys having been performed while the 

work was in progress there was no way to determine whether an employee 

in the work area actually was overexposed to contaminants, rejected 

FMC's argument that proof of a violation is conditioned on establishing 

an exposure to airborne contaminants in excess of the regulatory limits. 

10 FMSHRC at 826-27. The judge found that a reasonably prudent person 

would have conducted dust surveys to determine what control measures 

would be adequate to prevent the possible overexposure of the workers to 

asbestos during the three days the maintenance crew removed the 

insulation from the turbine. 10 FMSHRC at 826. The judge further 

found, without explanation, that the violation was not of a significant 

and substantial nature. 

Regarding the inspector's unwarrantable failure finding, the judge 

concluded that because FMC had a policy at the time the citations were 

issued regarding asbestos identification and cleanup and because workers 

~/ See 30 C.F.R. § 57.5001. 

1625 
in another part of the plant had taken protective measures while 

removing asbestos-containing insulation, FMC was not indifferent to the 

hazards of airborne asbestos and its failure to comply with section 

57.5002 was due to ordinary negligence. 10 FMSHRC at 828. The judge 

therefore modified the section 104(d)(l) citation to a citation issued 

pursuant to section 104(a) of the Act, 39 U.S.C. § 814(a), and assessed 

a civil panalty of $600 for the violation. 

Finally, the judge found that FMC had not violated section 

57.18002 because the Secretary failed to prove that there was no 

examination of the working place by a competent person or that no 

records of the examinations were made. 10 FMSHRC at 830. The judge 

therefore vacated the section 104(d)(l) withdrawal order in which the 

violation was alleged. 

On review, the Secretary argues that the judge erred in three 

respects: (1) in concluding that FMC's violation of section 57.5002 was 

not of a significant and substantial nature; (2) in concluding that the 

violation was not due to FMC's unwarrantable failure to comply with the 

standard; and (3) in concluding that FMC did not violate section 

57.18002. We consider each of these challenges in turn. 

I. 

A violation is properly designated as being of a significant and 

substantial nature if, based on the particular facts surrounding the 

violation, there exists a reasonable likelihood that the hazard 

contributed to will result in an injury or illness of a reasonably 

serious nature. Cement Division, National Gypsum, 3 FMSHRC 822, 825 

(April 1981); Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984). In 

Consolidation Coal Co., 8 FMSHRC 890, 897-98 (June 1982), aff'd, 824 

F.2d 1071 (D.C. Cir. 1987), the Commission explained that adapting the 

National Gypsum/Mathies test to a violation of a mandatory health 

standard results in the following formulation of the elements necessary 

to support a significant and substantial finding: 

(1) The underlying violation of a mandatory 

health standard; (2) a discrete health hazard -- a 

measure of danger to health contributed to by the 

violation; (3) a reasonable likelihood that the 

health hazard contributed to will result in an 

illness; and (4) a reasonable likelihood that the 

illness in question will be of a reasonably serious 

nature. 

The administrative law judge cited the general applicability of 

this test, but provided no justification for his conclusion that the 

violation was not of a significant and substantial nature. Compare FMC 

Wyoming Corp., 8 FMSHRC 264, 275-276 (February 1986)(ALJ Lasher) 

(applying all elements of significant and substantial test to mandatory 

health standard involving asbestos exposure). 

Commission Procedural Rule 65, 29 C.F.R. § 2700.65, requires that 

a judge's decision include findings of fact, conclusions of law, and 

1626 
supporting reasons. ~/ Compliance with these requirements is essential 

to the fulfillment of our statutorily mandated review function. Without 

some explanation and justification for conclusions reached by a judge, 

we cannot effectively perform our function. See Youghiogheny & Ohio 

Coal Co., 7 FMSHRC 1335 (September 1985); The Anaconda Co., 3 FMSHRC 299 

(February 1981). In view of the total lack of explanation in support of 

the judge's conclusion that the violation of 30 C.F.R. § 57.5002 was not 

significant and substantial, we vacate the judge's decision with regard 

to his significant and substantial finding and remand the matter for the 

entry of a decision that accords with Commission Procedural Rule 65. In 

so doing, we express no opinion regarding the merits of the significant 

and substantial issue. 

II. 

"Unwarrantable failure" means "aggravated conduct constituting 

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

violation of the Act. 11 Emery Mining Corp., 9 FMSHRC 1997, 2004 

(December 1987); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2015 

(December 1987). In concluding that FMC did not unwarrantably fail to 

comply with section 57.5002, the judge found that FMC was not 

indifferent to the health hazards associated with airborne asbestos in 

that it had in place at the time of issuance of the citation a policy 

regarding asbestos identification and cleanup and that in another part 

of the powerplant a different work crew removing asbestos-containing 

insulation had protective clothing and equipment. 10 FMSHRC at 828. 

These facts are overwhelmed by other evidence of record 

establishing FMC's aggravated conduct regarding its failure to provide 

dust surveys during the overhaul of the turbine. FMC's written asbestos 

policy expressly identified the asbestos-containing nature of all three 

types of insulation in the turbine being overhauled, as well as the need 

to take steps to prevent workers' exposure to asbestos. Pet. Exhs. 4, 

5, 6. FMC's policy specifically called for the presence of an 

industrial hygienist and protective equipment when asbestos-containing 

insulation was removed from a turbine. Pet. Exh. 4. During the removal 

of the insulation, however, a hygienist was not present and the workers 

were afforded no protection. Watson, FMC's industrial hygienist, 

apparently did not become aware that insulation was being removed from 

the turbine until he inadvertently observed the work on Nuvember 18, 14 

days after the crew had begun dismantling the turbine. 

Further, the maintenance supervisor, Mike Hruska, stated that he 

~/ Procedural Rule 65 states in part: 

(a) Form and content of the Judge's decision. 

The judge shall make a decision that constitutes his 

final disposition of the proceedings. The decision 

shall be in writing and shall include findings of 

fact, conclusions of law, and the reasons or bases 

for them, on all the material issues of fact, law or 

discretion presented by the record .... 

1627 
had been told by the FMC maintenance superintendent to suspect that all 

insulation at the plant contained asbestos. Tr. 317; see also Pet. Exh. 

M-7 ("when in doubt, assume a material to be, or contain asbestos"). 

Yet, Hruska ordered no surveys to be taken in the work area. In 

addition, and importantly, despite the recognition by FMC of the 

potential asbestos hazard associated with the removal of the insulation 

from the turbine, the supervisor of the work crew, Wilfong, when asked 

by a member of the crew if there was asbestos in the insulation, without 

any apparent further inquiry into the legitimate and serious concerns 

raised by the work crew, erroneously responded that asbestos was not 

present. Tr. 220, 235, 246. 

In light of the egregious nature of this evidence, we find no 

substantial support for the judge's contrary conclusion that the 

violation was not the result of FMC's unwarrantable failure to comply. 

In fact, that FMC had a policy in place regarding asbestos identification and cleanup and that another crew in a different part of the 

plant was protected while engaging in similar work, in our view 

heightens, rather than excuses, FMC's lack of care with respect to this 

violation. We therefore conclude that FMC exhibited aggravated conduct 

exceeding more than ordinary negligence regarding the violation and the 

judge's finding of no unwarrantable failure is accordingly reversed. 

III. 

Finally, the Secretary asserts that the judge erred in concluding 

that she did not prove that FMC had violated section 57.18002. The 

pertinent requirements of 30 C.F.R. § 57.18002 are three-fold: 

(1) daily workplace examinations are mandated for the purpose of 

identifying workplace safety or health hazards; (2) the examinations 

must be made by a competent person; and (3) a record of the examinations 

must be kept by the operator. The judge concluded that the Secretary 

failed to prove that there was no examination of the working place by a 

competent person or that no records of the examinations were made. The 

judge noted that FMC had introduced into evidence an MSHA program 

directive clarifying the record keeping requirements of the standard and 

requiring that the record of examinations include: (a) the date and 

shift; (b) the person(s) conducting the examination; and (c) the working 

place examined. The directive states that "citations of violations of 

this standard are to be issued only where there has been a failure to 

conduct an examination of a work place or a failure to record that an 

examination was done." 10 FMSHRC at 830. The judge further noted that 

FMC also introduced into evidence a log of the examinations of the 

powerhouse for safety or health hazards during the period of the 

turbine's overhaul and that the log complied with the directive by 

showing the date and shift on which the examinations were conducted and 

the names of the persons conducting the examinations and the work places 

examined. Id. 

The Secretary contends, however, that by focusing on the directive 

and the record of the examinations, the judge ignored the question of 

whether the person conducting the examination was competent, and we 

agree. According to the Secretary, the program directive concerns the 

requirements for the recording of the examinations required by section 

1628 
57.18002; it does not concern the competence of the person designated to 

conduct the examinations. We agree. 

30 C.F.R. § 57.2 defines "competent person" as "a person having 

the abilities and experience that fully qualify him to perform the duty 

to which he is assigned." As with many safety and health standards, 

sections 57.18002(a) and 57.2 are drafted in general terms in order to 

be broadly adaptable to the varying circumstances of a mine. Kerr-McGee 

Corp., 3 FMSHRC 2496,97 (November 1981). We conclude that the term 

"competent person" within the meaning of sections 57.18002(a) and 57.2 

must contemplate a person capable of recognizing hazards that are known 

by the operator to be present in a work area or the presence of which is 

predictable in the view of a reasonably prudent person familiar with the 

mining industry. See~· Ozark-Mahoning Co., 8 FMSHRC 190, 191 

(February 1986); U.S. Steel Corp., 6 FMSHRC 1908, 1910 (August 1984); 

Compare, 29 C.F.R. § 1926.32(f). The question is whether FMC designated 

such a person to examine the turbine workplace. We find the evidence 

overwhelming in the record that it did not. 

The hazard posed by the turbine's asbestos-containing insulation 

was well known to FMC. FMC's policy stated as much. Yet, Wilbur 

Hastings, the only FMC employee designated as an examiner under this 

standard who testified, stated that he had not seen FMC's memorandum 

regarding the presence of asbestos in turbine insulation, that he was 

unaware of the presence of asbestos-containing material in the turbine, 

and that he had no training in asbestos recognition. Tr. 520-23. Thus, 

although FMC knew that asbestos was present in the turbine insulation it 

nonetheless designated as a shift examiner a person to whom this 

knowledge had not been communicated, nor had Hastings been trained to 

suspect that asbestos reasonably might be present. Without this 

knowledge, Hastings cannot be said to have had the ability and 

experience fully qualifying him to examine the work place around the 

turbine for conditions which might adversely affect safety and health. 

In sum, we conclude that Hastings was not a "competent person" 

within the meaning of section 57.18002(a), that substantial evidence 

does not support the judge's conclusion that FMC complied with the 

regulation, and that FMC, by assigning Hastings to examine the 

workplace, violated the regulation. 

1629 
IV. 

Accordingly, we vacate the judge's decision regarding the finding 

that the violation of section 57.5002 did not significantly and 

substantially contribute to a mine health hazard and we remand the 

matter for reconsideration and entry of new findings, conclusions and 

the reasons for them. In addition, we reverse the judge's conclusion 

that the violation of section 57.5002 was not the result of FMC's 

unwarrantable failure to comply and remand for reassessment of the 

penalty. Finally, we reverse the judge's conclusion that FMC did not 

violate section 57.18002 and we remand to the judge for the assessment 

of an appropriate civil penalty. ~/ 

~~ 

E-J-~ Richard 

0 

V. Backley, Commissioner 

~//~ ~ 

Commissioner 

~/ Commissioner L. Clair Nelson did not participate in the 

consideration of this matter. 

1630 
Commissioner Doyle, concurring in part and dissenting in part: 

In its decision, the majority vacates the judge's finding that 

the violation of section 57.5002 did not significantly and substantially contribute to a mine health hazard and remands the matter 

for further analysis by the judge. I concur with that part of the 

decision. 

I must respectfully dissent, however, from the majority's finding 

that FMC unwarrantably failed to comply with section 57.5002 because 

I find substantial evidence in the record to support the judge's conclusion to the contrary. In addition, I would affirm the judge's 

determination that FMC did not violate section 57.18002. 

In addressing whether FMC's conduct amounted to an unwarrantable 

failure to comply with section 57.5002's requirement that dust surveys 

be conducted as frequently as necessary in order to determine the 

adequacy of control measures, the judge took notice of and applied the 

Commission's explication of that term in Emery Mining Corp., 9 FMSHRC 

1997 (December 1987). The judge correctly concluded that indifference 

or aggravated conduct beyond ordinary negligence must be present for a 

finding of unwarrantable failure. Emery, supra, 9 FMSHRC at 2003-2004. 

The judge, in rejecting a finding that unwarrantable failure 

was involved, cited several considerations that led him to conclude 

that FMC was not indifferent to the hazard of asbestos at its plant. 

Among these considerations were the fact that FMC had shown an 

awareness and attention to the hazard and had undertaken a program 

for its identification and cleanup. FMC had analyzed various samples to determine where asbestos might exist, including samples of 

the insulation on the turbine involved in this case. The judge 

noted that FMC's industrial hygienist had distributed to senior 

management a memorandum identifying the plant's asbestos hazards. 

The judge also cited the absence of knowledge on the maintenance 

foreman's part of an asbestos hazard with respect to the turbine 

and the lack of evidence that, had the industrial hygienist been 

aware of the work being done on the turbine, the policy would not 

have been implemented. 10 FMSHRC at 828. The judge weighed the 

evidence presented and articulated his reasons for finding that 

FMC's conduct did not reach the level of unwarrantable failure. 

The Commission has· previously acknowledged that a judge's findings are not to be lightly overturned and that reversal of those 

findings requires a conclusion that there is either no evidence or 

dubious evidence to support the challenged findings. Secretary v. 

Consolidation Coal Company, 11 FMSHRC 966 at 974, (June 1989). 

In my view, the evidence cited above and relied upon by the judge 

constitutes "such relevant evidence as a reasonable mind might 

accept as adequate to support [the judge's] conclusion" and, 

accordingly, I would affirm the judge's finding that FMC did not 

1631 
unwarrantably fail to comply with the standard, See Consolidated 

Edison Co. v. NLRB, 305 U.S. 197, 229 (1938); Chaney Creek Coal 

Corp. v. FMSHRC, 866 F.2d 1424, 1431 (D.C. Cir. 1989). J:./ 

The majority also concludes that the judge erred in finding that 

FMC did not violate section 57.18002 and its requirement that a competent person examine each working place at least once each shift. 

The judge based his determination on an MSHA Program Directive dated 

November 20, 1979 (the "Program Directive"), that addresses the 

recordkeeping requirements of the standard. The Program Directive 

provides that citations were to be issued under the standard only 

where there was a failure to conduct an examination or a failure 

to record its occurrence. Significantly, the directive provides 

that violations of the standard were not to be cited where a 

hazard is already covered by another standard, thus avoiding a 

situation wherein an operator is cited for the violation of a 

safety standard and also cited for violation of section 57.18002, 

based on the examiner's failure to identify the violative condition. 

The judge found that the Secretary's Program Directive correctly interpreted the standard and that there was no failure either to make 

an examination or to record the fact thereof. Thus, he concluded 

that there was no violation of section 57.18002. 10 FMSHRC at 830. 

Because of that conclusion, the judge did not reach the question of, 

and made no findings of fact as to, the competence of any of those 

charged by FMC with making the shift examinations in question. 

The Secretary's Petition for Discretionary Review did not challenge the judge's determination that the Program Directive represents a correct interpretation of the standard. Neither did it 

challenge his conclusion, based on that interpretation, that there 

is no violation of section 57.18002 where an inspection is performed and the hazard in issue is addressed by another standard, 

as it was in this case by section 57.5002. Absent a challenge by 

the Secretary to these conclusions reached by the judge, I believe 

that the judge's decision, based on those conclusions, must 

stand. 2/ 

1/ The majority uses FMC's own company policy addressing the handling 

of asbestos hazards as a basis for heightening the degree of care FMC 

owed, thus suggesting that operators are less accountable if they do 

nothing with regard to asbestos than if they attempt to identify its 

presence and deal with it. I believe such an approach discourages, 

rather than encourages, responsible conduct. 

2/ The Commission did not order review of this determination, sua 

sponte, pursuant to section 113(d) of the Hine Act, 30 U.S.C. 823"("d) 

(1982). 

1632 
The Secretary's Petition for Discretionary Review argues only 

that FMC failed to designate a competent person to examine the work 

place. The majority addresses the Secretary's argument and makes 

its own factual determination that a competent person was not 

assigned. This finding was based, in part, on the fact that Wilbur 

Hastings testified that he had no training in asbestos recognition 

and it was made despite the testimony of the Secretary's own expert 

witness that there is no such training and that, in many instances, 

asbestos cannot be identified by visual observation alone. Tr. 1S9, 

160, SSS, SS6. 

When the dismantling of the turbine was begun, FMC's awareness of asbestos in the plant should have triggered testing by 

means of a dust survey pursuant to section S7.S002. It did not, 

and FMC was properly cited for violating section S7.S002. The 

majority concludes, however, that since "FMC knew that asbestos 

was present in the turbine insulation," it should have designated 

only examiners who were "trained to suspect that asbestos reasonably might be present .• " (slip op. at 8) (emphasis added). The 

majority's conclusion would suggest that operators could, depending 

on the type and conditions of their mine, be required to train 

pre-shift and on-shift examiners to recognize everything from 

quartz dust to radon daughters. The Mine Act and the regulations 

issued pursuant to it recognize that some hazards, such as airborne 

contaminants, are not susceptible to accurate visual identification. 

Rather than rely on examiners to recognize these hazards, specific 

technical testings requirements are set forth. I am of the opinion 

that the inability of an examiner to visually recognize those types 

of hazards does not necessarily make the examiner incompetent within 

the meaning of section S7.18002. 

For the reasons set forth above, I would affirm the judge's 

conclusions that FMC did not unwarrantably fail to comply with 

section S7.S002 and that it did not violate section S7.18002. 

Jw.-:-~. ti. ~ tz 

Commissioner 

1633 
Distribution 

Barry F. Wisor, Esq. 

Dennis D. Clark, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

James A. Holtkamp, Esq. 

Van Cott, Bagley, Cornwall & HcCarthy 

Suite 1600 

50 South Main Street 

Salt Lake City, Utah 84144 

Stan Loader, Staff Representative 

United Steelworkers of America 

District 33 

P.O. Box 1315 

Rock Springs, Wyoming 82902 

Administrative Law Judge August Cetti 

Federal Mine Safety & Health Review·Commission 

280 Colonnade Center 

1244 Speer Blvd. 

Denver, Colorado 80204 

1634 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 27, 1989 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

FLAGET FUELS, INCORPORATED 

Docket No. KENT 89-115 

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

Commissioners 

ORDER 

---

BY THE COMMISSION: 

This civil penalty proceeding arises under the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et seg. (1982). On August 31, 

1989, Commission Chief Administrative Law Judge Paul Merlin issued an 

Order of Default finding Flaget Fuels, Inc. ("Flaget") in default for 

failure to answer the Secretary of Labor's Proposal for Assessment of 

Civil Penalty and the judge's Order to Show Cause. The judge assessed a 

civil penalty of $500, the amount proposed in the Secretary's penalty 

proposal. On September 13, 1989, Flaget filed with the Commission a 

Motion to Set Aside Default Judgment asserting that on June 19, 1989, it 

had paid the Secretary's proposed penalty of $500. For t.he reasons set 

forth below, we deem this motion to constitute a timely petition for 

discretionary review, which we grant. We vacate the judge's default 

order and remand for further proceedings. 

In November 1988, an inspector of the Department of Labor's Mine 

Safety and Health Administration ("MSHA") issued Flaget ten citations 

pursuant to section 104(a) of the Mine Act, 30 U.S.C. § 814(a), alleging 

violations of various surface coal mining mandatory safety standards. 

In February 1989, MSHA notified Flaget that it proposed civil penalties 

of $500 for the alleged violations. In March 1989, in response to this 

notification, Flaget filed a "Blue Card" request for a hearing. See 29 

C.F.R. §§ 2700.25 & .26. On April 10, 1989, the Secretary filed with 

the Commission a Proposed Assessment of Civil Penalty, proposing 

assessment of a $500 penalty and certifying that a copy of the proposal 

had been mailed to the operator. 

1635 
Flaget did not file an answer to the Secretary's penalty proposal 

within 30 days, as it was required to do in order to maintain its 

contest. See 29 C.F.R. § 2700.28. However, on or about June 16, 1989, 

Flaget tendered to the Secretary payment in full of the proposed penalty 

of $500. On July 5, 1989, the Secretary submitted to the Commission a 

Motion for Default Judgment. Although the motion states that Flaget had 

tendered to the Secretary payment of the proposed $500 penalty (Motion 

at 2), it nonetheless requests entry of a default judgment on the 

grounds that no settlement agreement had been entered into by the 

parties. On July 21, 1989, the judge issued an Order to Show Cause 

directing Flaget to file its answer to the Secretary's penalty proposal 

or show cause why it should not be be found in default. No response to 

the show cause order was filed with the Commission. 

On August 31, 1989, the judge entered an order finding Flaget in 

default and ordering it to pay the penalty of $500 immediately. Neither 

the judge's show cause order nor his default order acknowledges Flaget's 

full payment of the proposed penalty. On September 13, 1989, Flaget 

filed with the Commission its Motion to Set Aside Default Judgment, 

asserting its June 16, 1989, payment of the penalty at issue. 

The judge's jurisdiction in this matter terminated when ~is 

default order was issued on August 31, 1989. 29 C.F.R. ) 2700.'.65(c). 

Under the Mine Act and the Commission's procedural rules, once a judge's 

decision has issued, relief from the decision may be sought by filing 

with the Commission a petition for discretionary review within 30 days 

of the decision. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70(a). Here, 

Flaget's September 13 motion seeks vacation of, and relief from, the 

judge's default order and we will treat it as a timely-filed petition 

for discretionary review. See, ~· L&L Gravel, 11 FMSHRC 803, 803-04 

(May 1989). 

It appears both from Flaget's present motion and from the 

Secretary's default motion that Flaget's payment of the penalty was 

tendered to MSHA prior to issuance of the judge's show cause order. 21 

Under these circumstances, we vacate the judge's default order directing 

Flaget to pay the $500 penalty and remand for appropriate proceedings. 

Cf. L&L Gravel, supra. 

*/ Under circumstances similar to those presented in this case, MSHA 

informed the Commission of an apparent post-"Blue Card" payment of a 

proposed penalty and the Commission judge entered a dismissal order. 

See Coal Junction Coal Co., 11 FMSHRC 502, 503 (April 1989). 

1636 
Accordingly, upon consideration of Flaget 1 s motion, we grant its 

petition for discretionary review and vacat~ the default order. This 

matter is remanded to the judge for further appropriate proceedings. 

Distribution 

Rick L. Thomas, Esq. 

Stephens, Thomas & Hunt 

101 East Vine Street 

Fifth Floor 

Lexington, Kentucky 40507 

Anne T. Knauff, Esq. 

U.S. Department of Labor 

Office of the Solicitor 

2002 Richard Jones Rd. 

Suite B-201 

Nashville, TN 37215 

~n 

·Richard 

.<C~dvL V. Backley, Corrnnissio~ ) 

_J_o_yt ___ L_e·-· ~--C-. -D-(6..,..1-1-~-· ·._.-c._C_.o_mm .......... ·~-~--s .... ri_o_n~ 

"(la::,~ L. Clair Nelson, Conunissioner 

Chief Administrative Law Judge Paul Merlin 

Federal Mine Safety & Health Review Commission 

1730 K Street, N.W. 

Suite 600 

Washington, D.C. 20006 

1637 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

ROBERT SIMPSON 

v. 

KENTA ENERGY, INC. 

and 

ROY DAN JACKSON 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 29, 1989 

Docket No. KENT 83-155-D 

BEFORE: Backley, Doyle, Lastowka and Nelson, Commissioners 

ORDER 

BY THE COMMISSION: 

This discrimination proceeding arises under the Federal Mine 

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

Act" or "Act"). Following remand from the United States Court of Appeals 

for the District of Columbia Circuit, the Commission issued its final 

decision on May 11, 1989, concluding, in relevant part, that respondents 

Kenta Energy, Inc., and Roy Dan Jackson had discriminatorily discharged 

and refused to rehire complainant Robert Simpson. 11 FMSHRC 770 (May 

1989). No party filed a petition for review of this decision in the 

United States courts of appeals. 30 U.S.C. § 816(a)(l). On June 16, 

1989, however, counsel for Simpson filed with the Commission a Motion to 

Remand, seeking remand to the Commission administrative law judge who 

had presided at the hearing in this matter for purposes of determining 

additional amounts of back pay and attorney's fees that counsel asserts 

are owing to Simpson. No response to this motion has been filed by 

respondents. For the following reasons, this proceeding is remanded to 

Commission Administrative Law Judge James A. Broderick. 

The relevant factual and procedural background of this matter has 

been set forth in our prior decisions and need not be repeated in detail 

here. Briefly, in his original decision on the merits and in a 

supplemental decision with respect to remedy, Judge Broderick concluded 

that Simpson had been discriminated against in violation of section 

105(c)(l) of the Mine Act, 30 U.S.C. § 815(c)(l), and ordered Simpson 

reinstated with back pay, interest, attorney's fees, and litigation 

expenses. 6 FMSHRC 1454 (June 1984)(ALJ); 7 FMSHRC 272 (February 

1638 
1985)(ALJ). Specifically, in his remedial decision, the judge awarded 

Simpson $36,557.29 in back pay and interest through December 17, 1984, 

and, in addition, back wages at the rate of $425.60 per week with 

interest, less interim earnings, from December 17, 1984, until Simpson's 

reinstatement. 7 FMSHRC at 278-80, 286. Interest was to be calculated 

according to the principles announced in Secretary on behalf of Bailey 

v. Arkansas Carbona Co., 5 FMSHRC 2042 (December 1983). 7 FMSHRC at 

278. The judge further awarded Simpson $54,462.50 in attorney's fees 

and $2,616.72 in litigation expenses. 7 FMSHRC at 280-86. 

In his present motion, counsel for Simpson alleges that Simpson 

was never offered reinstatement by respondents and "has not yet received 

any of the relief due him." Motion at 5. Counsel requests proceedings 

before Judge Broderick for purposes of determining (1) the additional 

amounts of back pay and interest owed Simpson for the period from 

December 17, 1984, to the present, based on the formula in the judge's 

remedial decision, and (2) the amount of attorney's fees due for 

counsel's representation of Simpson during the review proceedings before 

the Commission as well as during the appellate proceedings before the 

United States Court of Appeals for the District of Columbia Circuit. 

Upon consideration of the motion, we reopen this case for the 

limited purpose of disposing of the present motion. This matter is 

remanded to Judge Broderick for resolution of whether the attorney's 

fees being sought for administrative and court appeal proceedings are 

properly awardable under the Mine Act and, if so, for all appropriate 

findings of fact relevant to determination of the amount to be awarded. 

With respect to back pay and interest, in general, both are normally 

deemed due and owing under Commission precedent until time of 

reinstatement or the occurrence of an event tolling the reinstatement 

obligation. See, ~' Arkansas Carbona, supra, 5 FMSHRC at 1049-55. 

Counsel is advised that, given the back pay formula in the judge's 

remedial order and the principles announced in Clinchf ield, infra, the 

precise amounts of back pay and interest may be determined in any 

tribunal of competent jurisdiction and it is not necessary to return to 

the Commission for periodic updatings of these amounts if collection 

difficulties are encountered. In light of our remand on the attorney's 

fees issue, however, we find it appropriate also to determine at this 

time the amount of additional back pay due since December 17, 1984, with 

the amount of interest due thereon, calculated according to the 

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

U. 2274, UMWA v. Clinchfield Coal Co., 10 FMSHRC 1493 (November""""'198~ 

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

1639 
Accordingly, this proceeding is remanded to the judge. ~/ 

Distribution 

Tony Oppegard, Esq. 

Stephen A. Sanders, Esq. 

Appalachian Research & Defense Fund 

of Kentucky, Inc. 

P.O. B.ox 360 

Hazard, Kentucky 4170.1 

David T. Smorodin, Esq. 

Steven D. Cundra, Esq. 

Thompson, Hine & Flory 

1920 N Street, N.W •. 

Washington, D.C. 20036 

Dennis D. Clark, Esq. 

Vicki Shteir-Dunn, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Richard 

~~u44-L_ V. Backley, Commissioner 

J 

~;;!,~ ~ A:DOYle: CommiSSiOiler 

L. Clair Nelson, Commissioner 

Administrative Law Judge James A. Broderick 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

~/ Chairman Ford did not participate in the consideration or 

disposition of this matter. 

1640 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD SEP 1 1989 

LOCAL 1769, DISTRICT 22, 

UNITED MINE WORKERS OF 

AMERICA ( UMWA), 

Complainant 

v. 

UTAH POWER & LIGHT COMPANY, 

MINING DIVISION, 

Respondent 

DENVER, CO 80204 

COMPENSATION PROCEEDING 

Docket No. WEST 87-86-C 

Deer Creek Mine 

ORDER OF DISMISSAL 

Before: Judge Morris 

The United Mine Workers of America, (UMWA), complainant 

herein, filed a complaint against Utah Power & Light Company, 

CUP&L), seeking compensation on behalf of certain members of 

Local Union 1769 by virtue of Section 111 ~/ of the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. § 801 et~' Cthe 

"Act 11 >. 

1/ "Sec. 111. If a coal or other mine or area of such mine is 

closed by an order issued under section 103, section 104, or 

section 107, all miners working during the shift when such order 

was issued who are idled by such order shall be entitled, regardless of the result of any review of such order, to full compensation by the operator at their regular rates of pay for the 

period they are idled, but for not more than the balance of such 

shift. If such order is not terminated prior to the next working 

shift, all miners on that shift who are idled by such order shall 

be entitled to full compensation by the operator at their regular 

rates of pay for the period they are idled, but for not more than 

four hours of such shift. If a coal or other mine or area of 

such mine is closed by an order issued under section 104 or 

section 107 of this title for a failure of the operator to comply 

with any mandatory health or safety standards, all miners who are 

idled due to such order shall be fully compensated after all 

interested parties are given an opportunity for a public hearing, 

which shall be expedited in such cases, and after such order is 

final, by the operator for lost time at their regular rates of 

pay for such time as the miners are idled by such closing, or for 

one week, whichever is the lesser. Whenever an operator violates 

or fails or refuses to comply with any order issued under section 

103, section 104, or section 107 of this Act, all miners employed 

at the affected mine who would have been withdrawn from, or 

prevented from entering, such mine or area thereof as a result of 

1641 
Issues 

The issues are whether the settlement agreement entered into 

between the parties should be enforced. If so, UP&L's motion to 

dismiss the complaint should be granted. 

On the other hand, if UP&L's motion to dismiss is denied, 

and the case goes to a hearing should the miners be required to 

refund the monies UP&L paid under the terms of the settlement 

agreement? 

Evaluation of the Issues 

After the UMWA filed its complaint herein discovery followed 

and in due course the parties submitted a settlement agreement to 

the judge. ~/ In accordance with the settlement agreement UP&L 

paid in excess of $25,000 to various miners at the Deer Creek 

Mine. 

The settlement agreement included compensation for 147 

miners. However, the UMWA now seeks to abrogate the agreement 

and it claims that 14 ~/ miners were not included in the settlement. 

'Remedies Sought 

UP&L requests that the settlement agreement be enforced. It 

argues it paid the amount due under the agreement. Accordingly, 

the complaint should be dismissed. 

If the complaint is not dismissed, then UP&L contends that 

before the settlement agreement can be rescinded the miners must 

footnote #1 continued 

such order shall be entitled to full compensation by the operator 

at their regular rates of pay, in addition to pay received for 

work performed after such order was issued, for the period 

beginning when such order was issued and ending when such order 

is complied with, vacated, or terminated. The Commission shall 

have authority to order compensation due under this section upon 

the filing of a complaint by a miner or his representative and 

after opportunity for hearing subject to section 554 of title 5, 

United States Code. 

11 The extended procedural history of this case is attached to 

this order of dismissal. 

11 The file indicates possibly 15 miners may have been involved. 

(See Hanula affidavit paragraphs 16, 17). 

1642 
refund to UP&L the amounts paid by virtue of the settlement with 

interest. 

On the other hand, the UMWA argues that granting UP&L's 

motion to dismiss would result in the enforcement of a settlement agreement that would erroneously exclude fifteen miners. 

The UMWA states that some of the issues to be considered at 

an evidentiary hearing are whether the parties reached an 

agreement and whether the document as filed reflects that 

agreement and, if not, what is the appropriate remedy in the 

case. 

The UMWA opposes UP&L's position that if the settlement 

agreement is rescinded the miners must repay UP&L. In short, the 

UMWA asks that the settlement agreement be reformed to reflect 

the actual agreement reached by the parties. The UMWA claims the 

actual agreement was for UP&L to pay all idled miners 50 percent 

of their lost wages. 

If the UMWA's position is denied then the UMWA suggests the 

fifteen miners who were excluded from the settlement be allowed 

to continue to prosecute their Section 111 claims. 

Affidavits 

The affidavits of the representatives of the parties, the 

settlement agreement and certain uncontroverted evidence on file 

herein are depositive of the issues. The affidavits read as 

follows: 

AFFIDAVIT OF JOYCE A. HANULA ~/ 

Upon pain of prejury, I state the following: 

I, Joyce A. Hanula, am a paralegal at the United Mine 

Workers of America's (UMWA) Legal Department located at 900 

15th Street, NW, Washington, DC 20005. I have been employed 

as a paralegal for the UMWA for approximately 13 years. 

1. In the course of my duties, I regularly investigate 

cases and prepare pleadings in matters arising under the 

Federal Mine Safety and Health Act (the Act). On several 

occasions I have filed cases under section 111 of the Act 

and have either litigated such cases or reached settlement 

agreements. 

4/ This affidavit was filed and amended by letter on April 24, 

1989. 

1643 
2. I prepared the UMWA's Complaint for Compensation filed 

on January 27, 1987, in the above-captioned G~se. I also 

prepared the UMWA's First Set of Interrogatories to Utah 

Power & Light (UP&L) filed on February 11, 1987. 

3. Interrogatories 5a-c and 6a-c concerned the identity of 

miners scheduled to work from November 3 to 10, 1986, the 

identity of miners who reported unavailable to work during 

this period and the hourly or daily rate of pay of each 

miner. UP&L responded to these Interrogatories with lists 

identified as Exhibits A, B, and c. (See attached exhibits 

marked Exhibit A through C). 

4. Upon receipt of UP&L's answers to the Union's interrogatories, I called Tim Means, counsel for UP&L and informed 

him that the photocopy of Exhibit A attached to UP&L's 

answers was not legible. Mr. Means informed me that his 

copy of Exhibit A was in the same condition and that he 

would contact UP&L and attempt to get a clearer copy. I 

never did receive another copy of Exhibit A. Mr. Means then 

referred me to Exhibit C and stated that it was the best 

list to look at since it had the miners' names and hourly 

rates of pay. 

5. UP&L's Exhibit B is a work schedule for November 5, 6, 

7, and 10, 1986, but does not cover November 3 and 4. 

6. UP&L's Exhibit c is a payroll record covering the period 

from November 3 to 10, 1986, which is the period of time 

covered by the withdrawal order which gave rise to this 

case. 

7. On September 28, 1988, on the basis of the payroll 

record, I sent John Scott, counsel for UP&L a list of the 

names of miners employed at the Deer creek Mine in November 

1986 and their daily rates of pay. I informed Mr. Scott 

that "I cannot determine from the information obtained from 

you through discovery what shift each miner was scheduled to 

work •.• and to provide this information to me as soon as 

possible in order to calculate the amount of entitlement for 

miner." (See cover letter attached as Exhibit D and list 

identified as Exhibit E). 

8. On September 29, 1988, Mr. Scott returned the list and 

marked beside each miner's name the initial G (for graveyard 

shift), D (for day shift), and A (for afternoon shift), 

which represented what shift each individual worked. A 

note was also attached from Mr. Scott requesting that I call 

1644 
him upon receipt of the list. (See attached Exhibit E). ~/ 

I called Mr. Scott and we discussed the list and I informed 

him that the names were taken off of the payroll list and he 

agreed that the payroll list was the best list from which to. 

extract the names of each of the idled miners as well as 

their hourly rates of pay. Mr. Scott also indicated that he 

was not certain of what shifts some individuals worked and 

he would check with the company and let me know. 

9. A few days later Mr. Scott suggested that UP&L might 

offer to settle the case by compensating only the miners who 

would have been scheduled to work in the specific area 

described in the Order: the 3rd South belt entry and adjacent areas. Mr. Scott said that this was only a suggestion 

and not an offer. On October 6, 1988, I transmitted this 

information to Robert Jennings, UMWA Health & Safety Representative in Utah, along with Exhibit E which I had 

previously submitted to Mr. Scott. Mr. Jennings forwarded 

the same to George Baker, President of Local Union 1769. 

(See Exhibit F attached). 

10. On November 9, 1988, in preparation for the December 

15, 1988, hearing date, I sent Mr. Jennings a list of the 

names of miners who I believed were entitled to compensation 

should the Union prevail in the case. The list included the 

miners' daily rate of pay, the number of days each miner was 

idled and the amount of compensation due each miner. I 

also sent Mr. Jennings a photocopy of Exhibit C. (See Exhibit G and attached list).~/ 

11. Mr. Scott and I continued to discuss the list of miners 

I had sent him in September and he advised me that certain 

miners on my list would not be entitled to compensation, 

even if the Union prevailed in its claim. He supported his 

contention by directing me to UP&L's payroll list (attached 

as Exhibit C) and showing me that certain miners had been 

fully compensated during the period of time for which the 

Union was claiming compensation. That is how the list 

5/ The affidavit footnote reads: 

Exhibit E as sent to Mr. Scott included only the names of the 

employees and their hourly rates of pay. The handwritten information regarding daily rates of pay, number of days idled and 

amount due each claimant was added after Mr. Scott indicated what 

shift each miner worked. 

6/ The affidavit footnote reads: 

The attachment to Exhibit G as sent to Mr. Jennings did not 

include my handwritten figures. 

1645 
attached to the Settlement Agreement (entitled Members of 

Local Union 1769 Who Are Not Entitled to Compensation) was 

arrived at. (See Exhibit H). Both parties looked at the 

payroll list and determined who actually worked and who 

didn't during the period in question. 

12. On November 18, 1988, Mr. Scott and Ms. Chetlin came 

to the UMWA headquarters to meet with Mary Lu Jordan and 

myself, to discuss the case. Mr. Scott and Ms. Chetlin had 

a map of the mine and explained the belt system of the Deer 

Creek Mine and which areas of the mine UP&L believed were 

affected by the withdrawal order. Mr. Scott then proposed 

a settlement offer of compensating each idled miner one 

shift of pay, which he said amounted to approximately 

$20,000. I responded by saying that the offer would not be 

equitable because there were some miners who were idled for 

the week whereas others o~ly lost a shift or two of pay and 

that it might create problems if we paid everyone one shift. 

However, I told Mr. Scott that I would present the offer to 

the Local Union. 

13. After the meeting with Scott and Chetlin, I called 

Messrs. Jennings and Baker and informed them of UP&L's 

offer. With the company's permission, the Local held a 

meeting~ between shifts, at the bathhouse to discuss the 

case. It was the consensus of the Local to reject UP&L's 

offer and go for everything. Mr. Baker advised me of the 

Local's decision. Messrs. Baker and Jennings and I discussed a counter proposal. What we came up with was a counteroffer of paying each miner who was idled during the week of 

November 3-10, 1986, one-half of what they would get if they 

prevailed in the case, i.e., if a miner was idled four days 

he would get paid for two days. 

14. On December S, 1988, I sent Mr. Scott a letter outlining the Union's counter proposal and attaching a list 

of what I believed to be the names of the miners who would 

be entitled to compensation if the Union prevailed. (See 

Exhibit I). This list incorporated corrections that Mr. 

Scott and I had discussed after he had received the earlier 

list (Exhibit E) and compared it to the payroll list. Exhibit I therefore had deleted certain people who had not 

lost any wages and adjusted amounts of pay for others. Mr. 

Scott called me and we reviewed Exhibit I while we were on 

the phone, by again comparing it to the payroll record. On 

the basis of the payroll record he again pointed out that 

certain individuals should be removed, and certain information regarding rates of pay, period of idlement, and 

amount due should be adjusted. I noted the requested 

changes and, after ref erring to the payroll record, conf irrned my agreement while we were on the phone. (See handwritten changes to Exhibit I). 

1646 
15. On December 8, 1988, Mr. Scott hand-delivered a letter 

confirming UP&L's acceptance of the Union's counter 

proposal. (Exhibit H}. I signed the agreement believing 

that all miners affected by the order were listed. 

16. In late December 1988, I received a call from George 

Baker, President of Local Union 1769, informing me that 

there were four miners who were not on the list (Exhibit H} 

but who were entitled to compensation. I called Mr. Scott 

and informed him of this matter and he said "okay we will 

pay these four miners but no more." Simultaneously, George 

Baker approached Dave Lauriski, management personnel at 

UP&L, and told him four people had been omitted from the 

list. Mr. Lauriski told Mr. Baker that he would pay them 

provided he didn't come up with any other names. Mr. Baker 

informed Mr. Lauriski that he would not agree to sign anything because more names could have been left off the list. 

Later in the week, Mr. Baker discovered that 10 more names 

had been omitted and again approached Mr. Laur iski. Mr. 

Lauriski informed Mr. Baker that he would not pay any of 

them. 

17. On January 10, 1989. I informed Mr. Scott of the 

omission of the 14 miners and requested that these miners 

be paid. 21 These miners had been mistakenly omitted from 

Exhibit H because I had relied on the payroll list (Exhibit 

C} to compile the list of claimants. I had no reason to 

believe the payroll list (Exhibit C} would not provide me 

with all the names of people who would have been scheduled 

to work during the week in question. The list is not limited to people who received payment that week, it also 

contains the names of individuals who received no payment 

and were therefore idled for the week. Moreover, in our 

discussions Mr. Scott and I referred to the payroll list 

to verify whether an individual should be removed as a 

claimant, or to determine how much a particular individual 

was owed. In these discussions, Mr. Scott never mentioned 

nor referred me to Exhibits A or B. 

18. When I signed Exhibit H it was my understanding that 

all the miners who had been idled during the time the 

closure order was in effect would be compensated for one7/ The affidavit footnote reads: 

Since I informed Mr. Scott that 14 miners were omitted from the 

list, another miner informed Mr. Baker that his name was omitted 

from the Settlement Agreement. Therefore the total number of 

miners omitted from the payroll list is 15 not 14. The reason 

why Mr. Scott was not informed earlier of the omissions is that 

the UMWA headquarters were closed for the Christmas holidays from 

December 26, 1988 to January 2, 1989. 
half of the lost wages claimed. I believed UP&L was opera ting under the same assumption when we signed the agreement. 

AFFIDAVIT OF JOHN T. SCOTT, III 

JOHN T. SCOTT, III, having been duly sown, deposes and says: 

1. I am a member of the law firm of Crowell & Moring where 

I have practiced law since 1979. 

2. As of June 28, 1988, I became the lawyer at Crowell & 

Moring responsible for handling the above-captioned case. 

3. During the course of settlement negotiations, the United 

Mine Workers of America C"UMWA") was to compile a list of miner 

complainants. 

4. I told Joyce Hanula of the UMWA that, in calculating the 

amount of each miner's claim, the payroll list (Exhibit c to 

Attachment 1 to UP&L's Brief) could be used to show which miners 

had already been paid and the miners' rates of pay. 

5. Once the UMWA had complied its list, I used the payroll 

list to verify that miners identified by the UMWA had not already 

been paid in the normal course. 

6. Aside from the statement described in Paragraph 4, 

supra, I made no further representations to anyone at the UMWA 

about how the data furnished in UP&L's interrogatory answers 

(Attachment 1 to UP&L's Brief) should be evaluated, what the 

lists of names attached to those interrogatory answers (Exhibits 

A, B and C to Attachment 1 to UPL's Brief) represented, the 

interrelationship of the three lists, or whether the UMWA should 

rely on any one list as a basis for identifying claimants. 

Further aff iant sayeth naught. 

AFFIDAVIT OF THOMAS C. MEANS 

THOMAS c. MEANS, having been duly sworn, deposes and says: 

1. I am a member of the law firm of Crowell & Moring where 

I have practiced law since 1978. 

2. From the time this compensation claim was filed until 

June 28, 1988, I was the lawyer at Crowell & Moring responsible 

for handling the above-captioned case. 

3. On March 23, 1987, I served on Joyce Hanula of the 

United Mine Workers of America a copy of Respondent's Answers to 

Compl·ainants' First Set of Interrogatories. 

1648 
4. I have reviewed Attachment 1 to UP&L's Brief in Support 

of Motion to Dismiss. With the exception of the red circles 

around certain names, which have been subsequently added to 

illustrate the points made in the UP&L Brief, which this 

affidavit accompanies, Attachment 1 is a true and correct copy of 

the interrogatory responses which I served on Ms. Hanula on March 

23, 1987. 

5. Attachment 1 contains three separate lists of miners 

which were supplied to the UMWA in response to specific 

interrogatories. Beyond the terms of the interrogatory answers, 

I made no further representations to anyone at the UMWA about how 

the date should be evaluated, what these lists represented, the 

interrelationship of these lists, or whether the UMWA should rely 

on any one list as a basis for identifying claimants or 

otherwise. 

6. During the Spring of 1987, in a telephone conversation, 

I requested Ms. Hanula to identify for me the miners whom she 

claimed were entitled to compensation in order to evaluate the 

claim for settlement purposes. She advised me that she would 

have to consult with the Local and get back to me, but she never 

did. 

Further aff iant sayeth naught. 

SETTLEMENT AGREEMENT 

The settlement agreement is in the form of a letter from Mr. 

John T. Scott, III, counsel for UP&L to Ms. Joyce Hanula, 

representative of the UMWA. The letter, dated December 8, 1988, 

was signed the same date by Ms. Hanula. The letter agreement 

(filed with the Commission on December 15, 1988) reads as 

follows: 

Dear Joyce: 

This letter sets forth the terms of the agreement between 

the United Mine Workers of America C"UMWA") on behalf of Local 

Union 1769 and Utah Power & Light Company, Mining Division 

C"UP&L") to settle and terminate this compensation proceeding. 

1. Attached as Exhibit A is a list of all claimants in this 

proceeding. UP&L shall pay to each listed claimant the amount of 

compensation specified for that claimant. 

2. UP&L shall endeavor to make the payments to claimants by 

December 25, 1988, and in any event shall do so by December 31, 

1988. UP&L shall deduct from the amount paid to each claimant 

the amount UP&L is required by local, state or federal law and 

any collective bargaining agreement to withhold from such 

payment. 

1649 
3. Payments to the claimants shall terminate any 

obligations of UP&L, and the UMWA shall, after receiving notice 

from UP&L that payments have been made, immediately file a motion 

with the Commission to withdraw its complaint. 

4. This agreement is entered into for purposes of settlement, in order to permit the parties to conserve resources and to 

avoid the expense of protracted litigation. UP&L's agreement to 

make the specified payments does not constitute any admission of 

liability to the UMWA or to any claimant under Section llt of the 

Federal Mine Safety and Health Act of 1977. 

If you accept these terms, please sign this letter below and 

return it to me. I will then communicate the settlement to ALJ 

Morris, and advise UP&L to make the necessary arrangements to see 

the miners are paid. 

Sincerely, 

//s// John T. Scott, III 

Agreed:/s/ Joyce A. Hanula 

Date: 12/8/88 

Attached to the letter is a seven page list containing the 

names of 147 miners who are identified by name. Further, a daily 

rate is shown for each miner as well as the days idled (ranging 

from 1 to 5 days). A further column shows the amount due each 

miner. 

Jurisdiction 

The undersigned judge has jurisdiction to consider the 

issues presented herein by virtue of Sections 111 and 113Cd)(l) 

of the Act, 30 u.s.c. §§ 821, 823(d)(l). 

Discussion 

Pending herein is UP&L's motion for the judge to reconsider 

his ruling denying UP&L's motion to dismiss the compensation 

complaint. 

The Commission has recently restated its view that the 

oversight of proposed settlements is an important aspect of the 

Commission's adjudicate responsibilities under the Mine Act, and 

such discretion is, in general, committed to the Commission's 

1650 
sound discretion. Secretary of Labor, Mine Safety and Health 

Administration CMSHA) and United Mine Workers of America v. 

Birchfield Mining Company, WEVA 87-272, August 21, 1989 slip. op, 

at 3. 

It is apparent in this case that the dispute between the 

parties arose after a settlement agreement had been executed and 

after UP&L had paid the miners in accordance with the terms of 

the agreement. 

The UMWA argues that the parties intended that all claimants 

would receive 50 cents on the dollar in settlement of the case. 

In support of its position the UMWA relies on the affidavit of 

Ms. Hanula and supporting exhibits. 

Contrary to the UMWA's views UP&L expressly denied that any 

miner was entitled to any compensation under Section 111 

(Pleadings filed in the case and paragraph 4 of settlement 

agreement). 

According to the UMWA: the Union and UP&L realized that 

there would be a factual dispute in this case as to the area of 

the mine that was idled as a result of the order. The Union 

maintained that the order had the effect of idling the entire 

mine, while UP&L contended that any idlement under Section 111 

was limited only to the area described in the order. 

UP&L's initial approach to settling the case was to offer to 

pay only those miners who had been assigned to work in the area 

described in the Order. (Hanula affidavit at para. 9). Upon 

further discussion between the parties, however, and consideration of the payroll records, UP&L and the Union realized that 

under that approach, the people who had lost little or no wages 

as a result of the order would be the only ones to receive 

payment. 

Upon realization of that fact, the settlement discussions 

shifted toward the possibility of providing some payment to all 

the idled miners, no matter which area of the mine they had been 

assigned. UP&L proposed paying all the affected miners one shift 

of pay, which UP&L calculated would amount to approximately 

$20,000. (Hanula affidavit para. 9). The Union rejected that 

proposal and pointed out that paying everybody one shift would 

mean that some miners would be made almost completely whole, 

while some miners would receive only a small portion of the 

amount of wages they had lost. The Union proposed instead that 

everyone receive 50¢ on the dollar. CHanula affidavit at para. 

13 and 14). This was agreed to by UP&L. Unfortunately, when the 

parties reduced their agreement to writing they did not include 

14 (or 15) of the miners who would have been scheduled to work 

1651 
during the period in question, but who did not work, and were 

therefore entitled to a settlement. The UMWA asserts the 

omission of the miners was due to a mutual mistake in the 

compilation of the list of claimants. 

The UMWA argues: because the parties reached an agreement 

that all the idled miners would be paid 50 cents on the dollar, 

but failed to express it properly in the written document, the 

appropriate remedy is for the Commission to reform the document 

to express the agreement of the parties. 

In support of its position the UMWA relies on Restatement, 

Second, Contracts § 155, § 157, § 158, National Presto 

Industries, Inc., v. United States, 338 F.2d 99 (U.S. Court of 

Claims 1964, cert. denied 380 U.S. 962 (1965). 

I reject the UMWA's position. The cases relied on by the 

UMWA generally involve contract cases. However, a more specific 

body of law addresses settlement agreements. such agreements can 

only be rescinded if they are based on mutual mistake, Callen v. 

Pennsylvania R.R., 332 U.S. 625, 630 (1948). 

In this case there was no mutual mistake. If a mistake 

occurred it was unilateral on the part of Local 1769 or the UMWA. 

A unilateral mistake forms no basis for a rescission. Mid-South 

Towing Co. v. Har-Win, Inc., 733 F.2d 386 (5th Cir. 1984); 

Cheyenne-Arapaho Tribes of Indians v. United States, 671 F.2d 

1305, (Ct. Cl 1982); In Re Sand N'Surf, Inc., 13 B.R. 384 (E.D. 

Pa. 1981). 

Further, there can be no mutual mistake as to the number of 

miners entitled to compensation because on this issue the parties 

compromised. 

It has been noted by Corbin in Contracts as follows: 

[W]here the parties are consciously disputing an issue and 

agree upon a compromise in order to settle it, they are 

making no mistake as to the matter at issue and thus settled. 

There must be a mistake as to matters that were not at issue 

and were not compromised in order that the settlement may be 

avoidable on the grounds of mistake, 6 Corbin, Contracts 

§ 1292 (1963) 

Finally, compromise means that both sides make concessions 

to arrive at an enforceable agreement "without regard to what the 

result might, or would have been, had the parties chosen to 

litigate rather than settle. Swift Chemical Co. v. Usamex 

Fertilizers, Inc., 490 F. Supp. 1343, 1355-56 (E.D. La. 1980). 

The UMWA has requested that the judge hold a hearing and 

order that the 14 excluded miners be compensated. 

1652 
Even if a misrepresentation or mutual mistake occurred then 

the remedy is to rescind the settlement agreement, not rewrite it._ 

This is because the agreement is in effect nullified. See Midwest Petroleum Co., v. United States Department, 760 F.2d 2~ 

(Temp Erner. Ct. App. 1985); Saunders v. General Services Corp., ~ 

659 F.Supp 1042 CE.D. VA. 1986). 

Since UP&L has already performed its side of the agreement 

it necessarily follows that the monies it paid out would have to 

be returned with interest. Litigation could then be resumed over 

whether any miner is entitled to compensation. In short, the 

judge cannot declare the 14 (or 15) miners must be paid without 

imposing an entirely new and different settlement agreement on 

UP&L. In sum, the miners of Local 1769 cannot retain the fruits 

of the settlement agreement and at the same time seek additional 

compensation. 

The UMWA also asserts that the scope of the hearing should 

also address the issues of why UP&L failed during discovery to 

disclose the names of 14 (or 15) miners excluded from the answers 

to interrogatories. 

A strident dispute has arisen over this issue. UP&L 

vigorously asserts it properly answered the interrogatories and 

it demonstrates the veracity of its position by circling the 

names of said miners in its answers to interrogatories. 

The judge declines to convene a hearing for an irrelevant 

issue. Even if the judge assumes UP&L did not disclose the names 

of all miners it is nevertheless apparent that the UMWA did not 

rely on UP&L's answers to interrogatories. Specifically, in its 

proper representation of Local 1769 it asked the local union 

"regarding any changes, additions, etc. on the list" (See UMWA 

letter and attached list of November 9, 1988 attached to this 

order; same as Exhibit Gin Hanula affidavit). 

Prior thereto, on October 6, 1988 the UMWA also requested 

Local 1769 to verify the names of miners who worked in the 3rd 

south belt entry and adjacent areas on the date in question. (See 

letter of October 6, 1988 attached to this order; same as Exhibit 

Fin Hanula affidavit). 

Subsequently the UMWA also submitted to UP&L its list of the 

individuals entitled to compensation (See letter of September 28, 

1988 attached to this order; same as Exhibit D in Hanula 

affidavit). 

The law is clear and no citation of authorities is necessary 

to establish that the courts favor compromise of disputed claims. 

This case was settled when Ms. Hanula signed the settlement 

agreement on December 8, 1988. 

1653 
Sanctions 

UP&L asserts 8/ that the UMWA's conduct violates Commission 

Rule 6, 29 C.F.R. § 2700.6. Accordingly, UP&L seeks an award of 

expenses and attorneys fees in defending UMWA's baseless effort 

to abrogate the settlement agreement. 

UP&L's motion to impose sanctions is denied. See Rushton 

Mining Company, 11 FMSHRC 759 (May 1989). 

For the reasons stated herein the following order is 

appropriate: 

ORDER 

1. Respondent's motion to reconsider the order of May 12, 

1989 (denying respondent's motion to dismiss the complaint) is 

granted. 

2. Upon reconsideration and for the reasons stated herein 

respondent's motion to dismiss is granted. 

3. The complaint for compensation herein is dismissed. 

Law Judge 

Distribution: 

M~ry Lu Jordan, Esq., United Mine Workers of America, 900 

Fifteenth Street, N.W., Washington, D.C. 20005 (Certified Mail) 

John T. Scott, III~ Esq., Crowell & Moring, 1001 Pennsylvania 

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

/bls 

8/ The request is contained in Footnote 6 of UP&L's brief filed 

April 11, 1989. 

1654 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280. 1244 SPEER BOULEVARD 

DENVER. CO 80204 

LOCAL UNION 1769, DISTRICT 22, : COMPENSATION PROCEEDING 

UNITED MINE WORKERS OF 

AMERICA (UMWA), Docket No. WEST 87-86-C 

Complainant 

v. 

UTAH POWER & LIGHT COMPANY, 

MINING DIVISION, 

Respondent 

Deer Creek Mine 

Procedural History 

The UMWA filed this case on behalf of Local Union 1769 on 

January 29, 1987. 

A review of the history of these extended proceedings is 

necessary. 

This case was filed January 29, 1987. 

On February 12, 1987 the UMWA filed interrogatories directed 

to respondent. 

On February 27, 1987, Utah Power and Light (UP&L) Company, 

respondent filed it answer herein. 

On March 5, 1987 the case was assigned to the presiding 

judge. 

On March 13, 1987 the case was scheduled for a hearing in 

Denver, Colorado for April 21, 1987. 

On March 25, 1987 UP&L filed answers to the UMWA 

interrogatories. 

On April 6, 1987 UMWA's second set of interrogatories were 

filed. 

On April 15, 1987 the parties filed a joint motion for a 

continuance until such time as the judge ruled on two motions in 

limine (not then filed). 

On April 16, 1987 the hearing set for April 21, 1987 was 

cancelled and the hearing was rescheduled for August 11, 1987. 

1655 
On May 4, 1987 UP&L filed its response to the UMWA's second 

set of interrogatories. 

On June 18, 1987 UMWA requested the case be stayed. In 

support of the motion UMWA states that the issue controlling in 

this case was pending before the Commission in Local Union 2333 

v. Ranger Fuel Corporation, Docket No. WEVA 86-439-C. 

On July 20, 1987 the hearing previously scheduled for August 

11, 1987 was cancelled and the case was stayed pending the 

issuance of the Commission decision. 

On May 13, 1988, the Commission issued its decision in 

Ranger Fuel Corporation. 

On May 25, 1988 the presiding judge forwarded a copy of the 

Commission decision to the parties and granted them 10 days to 

state whether the pending case could be disposed of without a 

hearing. 

The parties advised the judge they needed additional time; 

they were granted an additional 10 days (Order, June 9, 1988). 

On June 14, 1988 the parties sought an indefinite stay until 

the parties reach an agreement regarding entitlement. 

On June 17, 1988 the judge denied the request for an 

indefinite stay and directed the parties to advise the judge of a 

convenient location for the hearing. 

On June 28, 1988 UP&L requested a hearing in Price, Utah. 

On July 29, 1988 UP&L moved for a summary decision. On the 

same date the judge granted UMWA 15 days to reply to UP&L's 

motion. 

On August 5, 1988 the UMWA responded to UP&L's motion. 

On August 22, 1988 UP&L filed its reply. 

On September 20, 1988 the parties moved for a continuance 

(from October 13, 1988 ·to October 27, 1988). 

On October 3, 1988 complainant moved for leave to file a 

motion for summary decision. 

On October 4, 1988 the judge denied the UMWA's motion for 

leave to file for a summary decision. 

On October 5, 1988 the judge rescheduled the location of the 

hearing on December 15, 1988 from Denver, Colorado to Salt Lake 

City, Utah. 

1650 
On November 29, 1988 the parties requested that the hearing 

of December 15, 1988 be rescheduled "to permit the parties to 

negotiate over a specific settlement proposal currently under 

consideration" CUP&L's letter of November 29, 1988). 

On December 6, 1988, the judge rescheduled the hearing date 

to March 1, 1989. 

On December 8, 1988 the hearing of March 1, 1989 was 

cancelled as the parties had reached an "amicable settlement". 

Further, they were granted 15 days to file their proposed 

settlement agreement. 

On December 12, 1988 UP&L forwarded a copy of the proposed 

settlement agreement. Under the agreement once UMWA received 

notice that the miners have been paid the UMWA would move to 

withdraw its complaint of discrimination. 

On February 6, 1989 the judge ordered the UMWA to state 

whether it had received notice in accordance with the settlement 

agreement. 

On February 23, 1989 UP&L moved to dismiss the complaint 

filed herein. 

In support of its motion UP&L states it fully complied with 

the terms of the settlement agreement and paid the miners. 

For its part the UMWA alleges 

supplied by UP&L were incomplete. 

147 miners have been paid but UMWA 

14 miners should be paid. 

that certain payroll records 

UP&L disagrees. Specifically, 

now asserts that an additional 

In its response filed March 10, 1989 to UP&L's motion to 

dismiss the UMWA requests the Commission conduct an evidentiary 

hearing to determine why UP&L failed during discovery to disclose 

the names of miners working or scheduled to work during the idled 

period. 

On May 12, 1989 the presiding judge denied UP&L's motion to 

dismiss the complaint and scheduled the case for a hearing on 

July 11, 1989 in Price, Utah. The judge's order further required 

the parties to file certain pretrial information. 

Prior to the hearing UP&L filed its motion for reconsideration and clarification of the judge's order of May 12, 1989. 

UMWA, in its motion also requested a clarification of the judge's 

order. 

On June 13, 1989 UMWA filed a response to the UP&L motion of 

May 12, 1989. 

On June 13, 1989 in order that he might have sufficient time 

to consider the pending issues the presiding judge cancelled the 

hearing of July 11, 1989. 

1657 
d -- LEGAL DEPARTMENT TELEPHONE 

ARE" CODE (202) 842-7200 

VIA HAND DELIVERY 

UNITED MINE WORKERS' BUILDING 

&00 FIFTEENTH STREET, N. W. 

~~~ . ~ooos 

·~21 

September 28, 1988 

John T. Scott, III, ·Esquire 

C:r:owell & Moring 

1001 Pennsylvania Avenue, NW 

Washington, DC 20004-2505 

Re~ Local Union 1769 v. Utah Power & L?__~ 

DP.ar John~ 

I am currently attempting to gather the names of mirl"ers 

who are entitled to compensation--in the above-captioned 

section 111 case. Attached is a list of the names of miners 

employed at the Deer Creek Mine in November, 1986, and their 

daily rate of p~y. I cannot determine from the information 

obtained from you through discovery what sh:i.ft each miner 

was scheduled to work. It would be helpful if you could 

provide this information to me as soon as possible in order 

to calculate the amount of entitlement for each miner. 

Once I receive this information I will send you the Union's 

complete list of each individual entitled to compensation 

and the amount due. 

Sincerely, 

~Cs?-- Joyce A. Hanula 

Attachment 

1658 - Exhibit D 
LEGAL DEPARTMENT TELEPHON£ 

AREA CODE (202) 842-7200 

UNITE:.D MINE wo~~ERS0 BUILDING 

qQ(.) F'IFTE..C:N7H STHEE;:i'", N, W 

, ·~}·:c.I 1~1h1i~l1l1(·J:i~(i)\111., )t)~\~~ ·1-r-~-.-1 '""'' .,,,, ~-c..~ .. .._,..~,~ 

- 2000!0 

" .. =::i!r>· 21 

October 6, 1988 

Mr. Robert Jennings 

UMWA Health & Safety Representative 

P.O. Box 783 

Price, UT 84501 

Re: Local Union 1769 v. UP&L 

Dear Bob: 

Attached is a list of the names of the miners and their 

hourly rate of pay who are entitled to compensation in the 

captioned case. Please arrange to have someone from the Local 

review the list for accuracy. A hearing has· been scheduled 

on December 15, 1988, in Salt Lake City, Utah. 

The 107{a) Order issued on November 3, 1986, which we 

are relying on in this case, idled the 3rd South belt entry 

from #20 crosscut·including crosscuts and adjacent 1st Right 

entry from #34 to 3rd West number 1 drive. ·As you know, 

in our complaint we asked for compensation for the entire mine. 

Yesterday, I spoke to UP&L's attorney who suggested that 

UP&L may offer to settle'the case by compensating the miners 

who worked on the 3rd South belt entry and adjacent areas as 

described in the Order. This is not an offer from UP&L --

it is only"a suggestion by their attorney. You should discuss 

this "possibility" with the Local and let me know what they 

think. In the meantime, let me know the· names of the miners 

who worked on the 3rd South belt entry and adjacent areas on 

November 3, 1936. Ho?efully all their names are included on 

the attached list .. 

If you have questions, call. 

Attachment 

Very truly yours, 

c-\~l-\ Joyce A. Hanula 

Paralegal 

I 

1659 -Exhibit F 
Employee 

Russell Jensen 

Reid Leamaster 

( 

LOCAL UNION 1769, DISTRICT 22, UMWA 

v. UTAH POWER & LIGHT CO., 

DOCKET NO. WEST 87-86-C 

Daily Rate Days Idled 

LSptT.) ~'411))123. 32 5 

l~.\T.) 120.50 4 

Earl Callum c... ~)Ir 'f· "\ 122.90 4 

Bryce Brashear l~At·°)W....) 122.90 2 1/2 

Amount 

616.60 

482.00 

491.60 

307.25 

~~:an 01 i "i·e:r: ~-------r10:-J·s-------- ___ Q. __________ _a_ ___ 

Glen Nelson (SAT\ 

Dewitt Cotner l~~\ 

Harold R. Hansen (~A"fl 

-Bsi;ni-e Morf' is (,~) 

123.70 

106.99 

107.45 

4 

4 

l 

~--1F~r~a~n~k~02:v~1~· a~tUt_i(.J>..t.OT~\~---:1~1ti4r.. TB/ a---·-·· .. -o-· ·· -- ·· 

Vernon Jensen 

Gary Motte 

B. Pat Allred L~"r't") 

Randy Thayn CS.I\\\ 

107.45 

114.74 

115.58 

111.38 

Mer land Jensen (..<:,r.t."\°'\ C.~""')120.00 

Larry Smith· (..C.U..tJl 107.45 

Marvin Thayn 109.21 

Kent ovia t t l ~}i('t') 112. 90 

Wi~llas Cook (~Or\) ~~tJ) 114. 74 

Thomas Rhodes 123.70 

1660 

2 

4 

3 

3 

4 

2 

2 

3 

3 

4 

494.80 

427.96 

107.45 

--{)-

214.90 

344.22 

346.74 

334.14 

Q 

480.32 

214.90 

218.42 

338.70 

344.22 

494.80 

Due 

.?D~ .! 0 

;;} '-f I 01J 

,JJ.JS. ~c,, 

! 5 3 ~3 

,; :...: 7 1-1' .: ~ 

.! ! '7 /./::; 

. ,_., 'I 

: I 7 :-> 7 

I 0 7. I./~ 

II)~_:/ 

17.J ,, 
Employee Daily Rate Days Idled Amount Due 

P. Reeve Cock 

Gerald Powe·11 

Phillip Heaps (yt.1)~\.\Nl 

-Melvin Larsen isA"t'"). 

Dennis Spensko 

Scott Mathis 

Melvin Hale 

Delmar Nilsen 

Kirk Ha.nsen 

120.08 

104.81 

123.32 

114 .721 . 

114.78 

111.38 

123.32 

123.32 

114.74 

0 

4 419.24 

4 1/2 554.94 

-----e----_____ 0~--·· 

3 "344. 34 

3 334.14 

3 369.96 

3 369.96 

2 1/2 286.85 

117 ~ 9-4 ---- __ _o __________ p 

Melvin Johnson 

Kevin Wilson lc,l'f-T\ 

Gregory Powel 1 (\Al)L~\\rJ) 

Farly c. Jones 

109.21 

120.08 

123.32 

120.92 

4 436.84 

2. 240.16 

l 123.32 

4 483.68 

'itilj 11 i p Baoa ----··- ··-· ···--- ·--1.r2·.·3-a · -- -----·--··o--------- ·--- -~ .......... 

William Heaps 120.92 l 120.92 

Jack Jone·s 123.32 4 493.28 

Larey Eric~son (..~\A...l~ 120.92 l 120.92 

Kenneth Gunter 123.32 3 369.96 

George Baker (. S~) 114. 78 l 114.78 

" .Gorgo.n Lareao ( ~'\-------rz~·.12 ---co:r---------.:e.__ ~ 

{) Sam ..... ..c..c.awf or d . _12.0_. o,a.. ..... ----·--o--------"ltl---.:... -·-··--·-·-- ··------ ···--····· 

-.J-ohn-n·i-e-Jlo.w.ti..a.r.d .. -------·- ______ J.l..'2-l.-4-·· -#---· · --o -· Cl 

Sheron Housekeeper 112.38 4 1/2 505.71 

-2-

1661 

/ 7..J. I 7 

/?, 7. ~.">7 

Id 4. ~<? 

•, •/, "'-'- ~-.I.~' 

l,D4b 

dμc_ (,,J 

:O:>-;.../'=' 

;,-' ..J. ,..,~ 

57.3 9 

;.) ~e> ff' 
Employee Daily Rate Days Idled Amount Due 

William K. Farrer 123.32 4 493.28 ·' ../ .;. l- 4 

-Ro..bert Maki 123.32 4 l/2 554.94 ~.,7 i...17 

· Da.le Christensen 117.68 1 117.68 )l'.'.~"-1 

David Johnson ~)~~~) 120.88 0 0 

Larr.y Brown ~\ '<;uiJ) 123.32 3 369.96 ! 81./. "J,r 

James Gunter C.Sllr t") 12.0. 92 2 1/2 302.30 ;~/ 1) 

Thomas Holdaway 123.32 3 369.96 ti!,,...;, 9f 

Sheldon Oviatt 120.92 3 362.76 I? I .3. .1" 

Michael Atwood 120.92 3 362.76 I>-~. l :; .. t' 

Dennis Campbell l~i~l.ltJ) 124.12 2 248.24 I .. -. . J 1_) 

Don Johnson L~iO{\) 124.12 .4 496.48 D '-I~~ '-/ 

Charles Westbrook (}>.(.\TJ 120.88 0 Q 

Stewart Foster 124.12 3 372.36 I ~c,, ii.? 

Patrick Sampien 120.92 4 483.68 r; LI! ?4 

Curtis Taylor 123.32 4 d t...!{~. ! t./ 

493.28 '.·~. 

Freddy Walters 120.92 4 483.68 ;Jt-11;? c../ 

Michael Mortensen 117.68 0 0 

Monte Tucker LS~I) 117.68 0 0 

William Leverton (.sm"'x.S"'-"") 117. 68 0 b 

Duron Hunt·er. Jr. l.~A-"t ') 120.88 0 9 

Victor Zavala 120.92 3 362.64 1&>1.3;>. 

Lawrenc-e Devereaux 124.12 2 248.24 /dL/• I~ 

Allen Hyatt 120.92 4 483.68 dt..11.d'-I 

Paul Larsen 124.12 4 496.48 JiM'·t? LJ 

-3-

1662 
Employee Daily Rate 

John Ciares 114.78 

Lloyd Huntington~~)~~)123.32 

James Pendelton 120.92 

Michael Juggert 120.88 

Steven Rowley 120.92 

Bobby Emery 124.12 

Brad Timothy 124.12 

Daniel Black 120.92 

Daniel Bit tick (~)~utJ) 114. 74 

Ron Prettyman ~)~\Le) 124 .12 

Jerry Shepher·d~'T~v..>J 123. 32 

Kenneth Kay 106.99 

Barrett Lemmon ('>~'(?u.,.)j 124 .12 

Kelly Leroy L'>4~J 120.92 

Ted Larsen E/ ft 117. 14 

Randolph Winder ~\ 114.78 

James Caye 117.68 

Mark Winn llS.58 

Brent Pietce 114.74 

Michael Shannon lSA'f)U\JtJ) 114. 74 

Thomas Ka"y (.,c;.A-"1) Csv....~\ 114. 74 

Russell Lal:5rum t~) C..~u.JJ) 

Tommy Dlxon ~T) "S ~tJ) 

Gary Stephenson l~A-t~ 

109.63 

117.68 

114.78 

-4-

1663 

Days Idled 

4 

3 

4 

0 

3 

4 1/2 

4 

3 

4 

3 

3 

0 

l 

3 

2 

3 

4 

4 

4 

l 

l 

4 

0 

't '---

Amount Due 

459.12 

369.96 

483.68 

362.76 

248.24 

558.54 

483.68 

344.22 /7;} // 

496.48 

369.96 ).f'i../. 9~ 

320.97 J :, •).-+? 

120.92 

3Sl.42 

229.56 •. :..J It? 

470.72 

462.30 -~-'I I<;'° 

4S8.96 

458. 96 ~de; '1~ 

114.74 57.37 

109.63 

470.72 

0 

• 
Employee 

Ferrill Wayman 

Kevin Tucker ( S ~} 

Ivan Anderson ( '> JllrT l . Gary Ander.son 

Jack Batt 

Robert Ll~welyn 

J. Mower 

Bob Olson 

Joe Collard 

Lennie GaI{lmon 

James G. Go.rd on t S.A r) 

Scott Johnson 

Allen Wiswell LsA-r)~\4..,l) 

Daily Rate 

114.78 

120.88 

111.38 

124.12 

117.68 

117.68 

123.32 

117.68 

117.14 

124.12 

111.38 

114.74 

120.88 

Eugene Gri~fin 112.38 

Brent Bai iey C~><t'f.J. "'~ 120. 08 

Jay Oviatt 117.14 

114.78 

Billy Dase 112.38 

Kenneth Wil~on c~-r~~J) 117. 68 

Indalesio Fruto;¢J&\ 123.32 

Edward Barnett (.s.erT)C.~w.>) 112. 38 

Floyd Anderson 117.68 

John Blackham 120.92 

Lamar Dyches 117.68 

1664 

Days Idled 

0 

0 

l 

2 

4 

4 

4 

4 

4 

1 

2 

0 

2 

3 

3 

0 

1 1/2 

2 

2 

2 

4 

4 

3 

Amount Due 

0 

0 

111.38 

248.24 

470.72 

470.72 

493.28 

470.72 

468.56 

496.48 

111.38 

229.47 

0 

224.76 

360.24 

351.42 

0 

168.57 

235.36 

246.64 

224.76 

470.72 

483.68 

353.04 

./.;! t-1. 1.) 

55" f:,9 

I I '-1-. 7~ 

/IJ..j.f 

I ? o. i.J 

'7':;-. 7/ 

!f L-/. J? 

/17. b~ 

/c}3 3.J 

I/~. jJ' 

a~<;". 5 ~ 
l:!:mployee Daily Rate Days Idled Amount Due 

Wallace Frandse~)~vi.>) 120.92 2 1/2 302.30 1·_::-1.15 

Stan Densley. <t 112.38 1 112.38 5,~ .. 1? 

Tom Gonzales 112.38 0 0 

Gerald Zabriskie cs~~) 120.92 3 1/2 423.22 J''·"' 

Robert Jensen 112.38 4 449.52 ddy/· ?Co 

Thomas Memmott 117.68 4 470.72 ;J?:·:~e:. 

Richard Richart 112.38 0 0 

Jeffrey Nielson 117.68 2 235.36 I ' 7. L',.,)j 

Max Whiting 112.38 0 0 

Don Allred c..,~ ~) 114.74 1 114.74 !~ ·, ::• 7 

Max.Nichols 112.38 0 0 

Fred sanche:l cs~)(su~} 117.68 4 470.72 d35" .3G 

Richard Rigby 120.88 4 483.52 d '"f .. .. 

I 7/ .,.,, 

David Peterson 112.38 1 112.38 'Jb· I~ 

De-nnis Peterson L<:A-t)~V.t.l) 117.68 0 0 

Elmer Jones 124.12 ~ 496.48 () ~8' . .,l l/ 

La_rry Turner t~~f')~\.4.~) 112.38 2 224.76 :) ~ .. ,,.i I '~ . ·-· -

Boyd Johnson O~t'{&u.1-lJ 120.88 2 241.76 / ,:; C) t'( ,¥ 

Jim Malmgren L~ttrt) 120.88 2 241. 76 I,..) fj ;i' '1°' 

Darrel Butler lst4rT) 124.12 4 496.48 r}-'-1?.~J 

Karl Bessey 123.32 1 123.32 ~!.{,lo 

Gary Butler C.sv..tJ) 124.12 1 124.12 t,~.Ofo 

David Monk {.,,~f.\-T) 112.38 0 0 

Samuel R. Dye l 4>Pr\) 12,4 .12 2 248.24 /.) 1-/, IJ. 

-6- \._v 

1665 
Employee Daily Rate 

Gary w. Olsen [~,"J 120.88 

Sheran Dyches 112.38 

Gary Garlick 120.88 

Kevin Wells (";>l.,ltJ) 124.12 

Kirk Chris tens en ~~T)(>..,.,')120. 92 

Don R. Jens en CS!'cl)f..:?u.. ~\ 120.92 

Harold Sparks 114.78 

Joel Erickson 120.92 

Leslie Hammond (,~A'T~ut-)J 112.38 

Guy Gordon ·Young (~A-1~1.4.J) 120.08 

David Mackay (')..trT)(S.u~) 120.88 

Brady Miller 120.92 

Ronald Nunley (?~'"t"'{iu.u) 123.32 

Jerald Schadel 109.21 

Don She 11 ey (SA·t") uu..~) 124.12 

Arnold Moosman (SAT)Ll>ui.l) 124.12 

Calvin Ross C>A-1') l.'>u.,..'.)) 124.12 

Kendall.Bartholomew 120.92 

Evan Johnson (_~~T'\ C...su.....>) 120.92 

David-Anderson (So.-T) 120.92 

Kim C{)oley 120.92 

Jimmy Nay 124.12 

Bart" Norton (..~M{sufl) 124.12 

Cha.rles Olsen 124.12 

-7-

1666 

Days 

l 

3 1/2 

0 

4 

2 

2 

3 

4 1/2 

2 

3 

2 

4 1/2 

2 1/2 

4 1/2 

0 

2 

2 

4 1/2 

0 

4 1/2 

4 

3 

4 

4 

I '-~ \. \ 

' 

Idled Amount 

120'. 8 8 

393.32 

0 

496.48 

241.84 

241.84 

344.34 

544.14 

224.75 

360.24 

241.76 

544.14 

308.30 

491.44 

0 

248.24 

248.24 

544.14 

0 

544.14 

483.68 

372.36 

496.48 

496.48 

Due 

(',,O LI t./ 

/ 11 (,.. Ir? 

; ~-? .ri I{ 

Jc} o. '1) 

IJ n ·7.). 

I 7,J.. 17 

d 7~. 0 7 

I 1.:J.. 3 i> 

I -'?D. 1..i 

1-} 0 .>f? 

J 7J a7 

I':;-.-'-/ I) 

JL-IC -,~ 

) d i-/, I :;J 

!~ 1..f • .l 

;y.. 7.:J ;;7 

c)"'?~.07 

r:J1..11. K J 

lef'b >.f 

J '-f<f',r:J Lj 

C> &.16.) tj 
f;rnp 1 oyce 

Benjamin Dicaro l~~~,J) 

Jeffrey Anderson 

Gary Birch C,~A\) 

Linda Jensen 

Robert Davis 

Randy ~ellor l ~A\) 

Keldon Mann (>A'T)(S~l'lJ 

Gary ·Boyd 

Dennis Seely LS~\} 

Jeffrey Farmer 

Kel-ly Duke c c;A--r) 

Ro.ber t Farrer (.SA-r) 

Ralph Keele 

T·. Curtis ( $.Ai"'\) 

Dee Laws (.,~~~) 

James Holt 

Rudy Metelko 

Daily Rate 

120.92 

124.12 

109.21 

120.92 

120.92 

123.32 

123.32 

123.70 

120.92 

124.12 

123.32 

123.32 

124.12 

124.12 

123.32 

120.92 

120.92 

-8-

1667 

Days 

l 1/2 

4 

l 

4 1/2 

3 

0 

4 1/2 

4 

4 

2 

2 

2 

4 

2 

2 

l 

l 

... --·~, 

j ; 

I ......_ \ - ; 

'---- ·' 

Idled Amount Due 

181. 38 /9-bq 

496.48 r;."!J..1.~ ~ .J 

109.21 :[:..' t.r.ol 

544.14 d 7J. lJ I 

362.76 1;f'J 3 p 

0 

554.94 J77 1./7 

494.82 .JLIJ.t/I 

483.68 :·, .' ·' I. ~~ ._ _.1 

248.24 _J ~ ~ :~ 

246.64 I·· "'I /.l ... ~.) 

246.64 /;}3.~~ 

496.48 ,,:> t.I i' -~ ~ 

248.24 :' :J I .l 

246.64 'J-3 :3.) 

120.92 L.:.; :../ k ...... 

. ·' . ./I 

120.92 ...... p K::J 

r- ·~ !..- ! ul 
LEGAL DEPARTMENT TELEPHONE 

AREA CODE (202) a42·7200 

UNITED MINE WORKERS' BUILDING 

·~21 

November 9, 1988 

Mr. Robert Jennings 

UMWA Health & Safety Representative 

UMWA District 22 Office 

525 East 100 South 

Price. UT 84501 

Re: Local Union 1769 v. UP&L 

Dear Bob: 

Enclosed is a photocopy of the list of the names of 

miners. his/her daily rate of pay. number of days idled 

and the amount of compensation due in the 

above-captioned section 111 compensation case. I 

gathered this information from the payroll records 

obtained from UP&L (see enclosed photocopy of payroll 

records). We are seeking compensation for the following: 

Each miner who worked the s:oo a.m. to 4:00 p.m. 

shift on November 3, 1986 -- 4 hours o~ compensation. 

Each miner who was scheduled to work the 4:00 p.m. 

to midnight shift on November 3, 1986 -- 8 hours of 

compensation. 

Each miner who was scheduled to work the midnight to 

8:00 a.m.: 8:00 a.m. to 4:00 p.m. and 4:00 p.m. to 

midnight shifts on Noveber 4. s. 6 and 7. 1986 -- 8 

hours of compensation. 

A hearing in this matter is scheduled on December 

15, 1988. in Salt Lake City. Utah. It is imperative 

that I am contacted by the Local or you by November 21. 

1668 

Exhibit G 
1988. rf!gu.L..iing any changes. additio.nb. etc. on the 

list. If. I am not contacted by you or the Local by 

November 21. 1988. I will assume the list is accurate 

and forward a copy to the company. 

If you have any questions concerning the list please 

contact me at (202) 842-7345. 

Enclosures 

1669 

sincerely. 

~e~CQ... Joyce A. Hanula 

Paralegal 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 5, 1989 

SECRETARY OF L~..BOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

JIM WALTER RESOURCES, INC., 

Respondent 

JIM WALTF.R RESOURCES, INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFP.TY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

. . 

. . 

CIVIL PENALTY PROCFFDTNGS 

Docket No. S~ 89-82 

A. C. No. 01-01401-03745 

No. 7 Mine 

Docket No. SE 89-99 

A. C. No. 01-01322-03735 

No. 5 Mine 

Docket No. SE 89-101 

A. C. No. 01-00758-03737 

1\l'o. 3 Mine 

CONTEST PROCBBDING 

Docket No. SE 89-45-R 

Citation No. 3188139; 12/20/88 

No. 5 Mine 

Mine ID 01-01322 

DECISION 

Appearances: 

Before: 

William Lawson, Esq., Office of the 

Solicitor, u. s. Department of Labor, 

Birmingham, Alabama, for Petitioner; 

Robert Stanley Morrow, Esq., Jim Walter 

Resources Tnc., Birmingham, Alabama, for 

Respondent/Contestant. 

Judge Merlin 

When the above-captioned cases came on for hearing counsel 

for both parties advised that settlements had been reached. With 

the permission of the bench these settlements were placed upon 

the record. Other cases scheduled for hearing at the same time 

were heard on the merits. 

1670 
Citation No. 3012311 was issued for a violation of 30 C.F.R. 

§ 75.203(b) because the projected direction of mining was not 

being followed. ~he painted mark on the mine roof showing the 

center of the entry was not being used resulting in some orf-site 

cuts. ~he original assessment was $311 and the proposed settlement was for this amount. ~ccording to advice received at the 

hearing the violation was serious and the operator was negligent. 

On this basis the proposed settlement was approved. 

Citation ~o. 3012027 was issued for a violation of 30 C.F.R. 

§ 75.1725(c) which directs that repairs and maintenance shall not 

be performed on machinery until the power is off and the machinery is blocked against motion. The original assessment was 

$2,000 and the proposed settlement is for $800. At the hearing 

the Solicitor advised that the longwall coordinator stepped inside a stage loader while bolts on the conveyor chain were being 

tightened by a laborer. In addition, the longwall coordinator 

failed in his responsibility to lock out the conveyor chain while 

it was being repaired. Since the lock out device was not operative, the laborer started the conveyor chain. As a result the 

longwall coordinator was caught by the chain and injured. At the 

hearing the Solicitor described the circumstances in detail. In 

particular, he advised that the longwall coordinator was fully 

trained and that his conduct in this instance was unpredictable 

and aberrational. Accordingly, the degree of negligence attributable to the operator was far less than originally thought. The 

recommended settlement was approved from the bench. 

Order No. 3188139 was issued for violation of 30 C.F.R. 

§ 75.202(a) because the operator failed adequately to support a 

rib. ~s a result a miner was injured from a rib roll. ~he 

original assessment was for $2,500 and the proposed settlement is 

for that amount. Clearly, this violation was very serious and 

the operator was negligent. I approved the recommended settlement because it is a sustantial amount suitable for the degree of 

gravity and negligence involved. In addition, I note that the 

subject order which was issued under section 104(d)(l) with its 

attendant sanctions, remains in effect. The operator's notice of 

contest with respect to the subject order is dismissed. 

ORDER 

Accordingly, it is ORDF.RFD that the operator's notice of 

contest in Docket No. SF 89-45-R is DISMISSED. 

1671 
It is further ORDBRF'D that the recommended settlements be 

APPROVED and the operator is ORDERED 'T'O PAY the following amounts 

within 30 days from the date of this decision: 

Docket No. 

SF 89-82 

SF. 89-99 

SF. 89-101 

'T'otal 

Distribution: 

Cication 'No. 

3012311 

3188139 

3012027 

Paul Merlin 

Amount 

$ 311 

$2,500 

$ 800 

$3,611 

Chief Administrative Law Judge 

William Lawson, Bsq., Office of the Solicitor, U. S. Department 

of Labor, Suite 201, 2015 Second Avenue North, Birmingham, AL 

35203 (Certified Mail) 

Harold D. Rice, Fsq., Robert Stanley Morrow, F:sq., Jim Walter 

Resources, Inc., Post Office Box 830079, Birmingham, AL 

35283-0079 (Certified Mail) 

H. Gerald Reynolds, Esq., Jim Walter Corporation, 1500 ~.Dale 

Mabry Highway, 'T'ampa, ~L 33607 (Certified Mail) 

Mr. Carl W. Poe, UMWA, Route 2, Box 793, Adger, .AL 35006 

(Certified Mail) 

Willie Jean Mccrary, UMWA, Route 1, Box 369-B, Wilsonville, AL 

35186 (Certified Mail) 

Mr. Dan Green, Local 2368, P. O. Box 578, West Blocton, AL 35184 

(Certified Mail) 

Ms. Joyce Hanula, UMWA, 900 15th Street, N.W., Washington, DC 

20005 (Certified Mail) 

Lawrence Beeman, Director, Office of Assessments, U. s. Department of Labor, 4015 Wilson Bou~evard, Arlington, VA 22203 

(Handcarried) 

/gl 

1672 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SFCRETARY OF LABOR, 

MINE SAFFTY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

DRUMMOND COMPANY, INC., 

Fespondent 

September 5, 1989 

CIVIL PENALTY PROCEEDING 

Docket No. SE 89-91 

A. C. No. Ol-00323-q3614 

Chetopa Mine 

DECISION 

Appearances: William Lawson, Esq., Office of the Solicitor, 

U. S. Department of Labor, Birmingham, 

Alabama, for Petitioner. 

Before: Judge Merlin 

This case is a petition for the assessment of civil penalcies filed by the Secretary under section 110 of the Federal Mine 

Safety and Health Act of 1977. When the matter came on for 

hearing the Solicitor advised that the parties had agreed to a 

settlement of all the violations. With approval from the bench 

the appearance of operator's counsel was excused and the Solicitor made the joint settlement recommendations upon the record. 

Other cases were heard on the merits at the same time. 

Citation No. 3015760 was issued for a violation of 30 C.F.R. 

§ 75.400 because of an accumulation of loose coal dust and float 

coal dust. The original assessment was $213 and the proposed 

settlement was $150. Gravity was less than originally thought 

because some of the cited areas were wet and the belt was touching coal in only two locations. The foregoing representations 

were accepted from the bench and the settlement was approved. 

Citation No. 3017898 was issued for a violation of 30 C.F.R. 

§ 75.1105 because metal fire proofing was missing from the right 

coal rib in a battery charging area. The original assessment was 

$119 and the proposed settleme~t was $100. The ~olicitor advised 

that the fire proofing had been in place previously but apparently had been inadvertently struck by a ram car which had 

knocked it out of position. Gravity and negligence were less 

tnan originally thought because che violation had been in existence for only a short period of time. The foregoing representations were accepted from the bench and the settlement was 

approved. 

1673 
Citation No. 3019641 was issued for a violation of 30 C.F.R. 

§ 75.400 because of an accumulation oi loose coal, coal dust and 

grease on a scoop. The original assessment was $119 and the proposed settlement was for $100. ~egligence was less than 

originally thought because the scoop which was subject to the 

operator's regular clean up program was frequently used and indications were that the condition had not existed for any appreciable period of time. ~he foregoing representations were accepted 

from the bench and the proposed settlement was approved. 

Citation No. 3019642 was issued for a violation of 30 C.F.R. 

§ 75.503 because an opening in excess of .005 inches was present 

in the cover plate of a main breaker panel. The original assessment was $119 and the proposed settlement was for $100. Negligence was less than originally thought because the condition had 

existed for a very short period of time and resulted from the 

fact that the one small bolt apparently had not been sufficiently 

tightened for permissibility purposes. ~he operator has had very 

few permissibility violations. '!'he foregoing representations 

were accepted from the bench and the settlement was approved. 

~he operator agreed to pay the original assessments for the 

remaining two violations. The circumstances of these violations 

were explained on the record and I accepted the proffered amounts 

from the bench. 

In light of the foregoing the recommended settlements are 

APPROVED and the operator is ORDERFO TO PAY $914 within 30 days 

from the date of this order. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

William Lawson, Rsg., Office of the Solicitor, U. s. Department 

of Labor, Suite 201, 2015 Second Avenue North, Birmingham, AL 

35203 (Certified Mail) 

J. Fred McDuff, Fsg., Drummond· Company, Inc., 530 Beacon Parkway 

West, Birmingham, AL 35209 (Certified Mail) 

Ms. Joyce Hanula, UMWA, 900 15th Street, N.W., Washington, DC 

20005 (Certified Mail) 

/gi 

1674 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRA'rION ( MSHA), 

Petitioner 

v. 

SEP 6 

INTERNATIONAL SALT COMPANY, 

Respondent 

1989 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 89-16-M 

A.C. No. 16-00509-05569 

Avery Island Mine 

DECISION 

Appearances: Mary Witherow, Esq., Office of the Solicitor, 

U.S. Department of Labor, Dallas, Texas for 

Petitioner; 

James M. Day, Esq., Cotten, Day & Selfon, 

Washington, D.C. for Re3pondent. 

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 International Salt Company 

(International) with one violation of the regulatory standard at 

30 C.F.R. § 57.19024(d). The general issue before me is whether 

International violated the cited regulatory standard and, if so, 

the appropriate civil penalty to be assessed in accordance with 

section llO(i) of the Act. 

Citation 3270248 issued pursuant to section 104(a) of 

the Act alleges a "significant and substantial" violation 

and charges as follows: 

The South skip rope was not removed from service at the 

product:.ion shaft. A nondestructive test was conducted 

on the 1 7/8 inch 6 by 27 Type H bright purple plus 

extra improved plow steel flattened strand right lang 

lay rope. The rope strength now showed a loss of 

10 percent. The rope along its length contained pitting 

showing advanced stages of corrosion and erosion between 

the pits. The pits could be seen with the nake<l eye. 

The type instrument:. used for the test was Model No. 

1675 
LMA-250 manufactured by NDT Technology. The employees 

on 3-shifts ride the North skip and the South skip rope 

due to its strength loss could snap exposing personnel 

to the broken rope and skip. 

The cited standard provides, as relevant herein, as follows: 

Unless damage or deterioration is removed by 

cutoff, wire ropes shall be removed from service 

when any of the following conditions occurs: 

(d) Rope deterioration from corrosion ••• Ch) Loss 

of more than 10 percent of rope strength as 

determined by nondestructive testing. 

Subsection Ch> of the above standard sets forth at 

least one purportedly objective measure to determine when a 

wire rope must be retired i.e. when there is a loss of more 

than 10 percent of rope strength as determined by 

nondestructive testing. In a nondestructive test performed 

on the subject rope including the area deemed to be in the 

worst condition by the Secretary, the Respondent's expert 

witness, David Hall, President of Halkin Services, Inc., 

found the loss of strength in the subject rope to have been 

no greater than 9.1 percent. 

The Secretary's principle expert on the issue, 

Dennis Poffenroth, an MSHA electronic engineer, also 

performed a nondestructive test on the rope and found a 

maximurn "loss of metallic cross sectional area" of 9. 7 5 

percent. According to Poffenroth however the finding of 

loss of metallic content cannot accurately be correlated to 

determine the loss of strength in a rope. Indeed, 

according to Poffenroth, loss of strength in a wire rope 

cannot, under the current state of the science, be 

accurately determined by nondestructive testing. He 

believed therefore that subsection Ch) did not provide a 

valid standard for. wire rope testing. 

In any event the Secretary does not disagree that the 

subject rope did not at any point suffer a loss of strength 

of as much as 10 percent. It is apparent from the credible 

evidence that since the Secretary could not prove under the 

objective standard of subsection Ch> that the rope should 

have been retired that she then resorted to the subjective 

and essentially arbitrary provisions of subsection (d), 

i.e. that the rope should be retired from service upon the 

existence of "rope deterioration from corrosion." 

In order to pass constitutional muster, the 

interpret~tion to be given such a vague, indefinite and 

1676 
uncertain regulation must appropriately be measured against 

the standard of whether a reasonably prudent person 

familiar with the factual circumstances surrounding the 

allegedly hazardous condition, including any facts 

particular to the mining industry, would recognize a hazard 

warranting corrective action within the purview of the 

applicable regulation. See Alabama By-Products 

Corporation, 4 FMSHRC 2128 (1982). In this case the expert 

witnesses, all of whom may be considered to be reasonably 

prudent persons familiar with the factual circumstances 

surrounding the allegedly hazardous condition, sharply 

disagreed over the extent of the alleged corrosion. 

MSHA Inspector Benny Lara testified that he observed 

pitting and erosion which he said was due to corrosion 

between the pits on the cited South rope. MSHA expert 

Dennis Poffenroth visually examined the area found to be 

the worst section of the South rope through nondestructive 

testing and observed pitting in .the outer surface of the 

crown wires and erosion between the pits evidencing, what 

he believed to .be "advanced corrosion". According to 

Pof £enroth no one can safely predict when a corroded wire 

rope will fail and in his opinion with the amount of 

pitting he found the rope should have been removed from 

service immediately. 

Poffenroth also cited texts in the subject area 

supporting his view that the pitting of wire ropes is a 

cause for immediate ce1noval from service. He also referred 

to the "Roebling Wire Rope Handbook" which at page 132 

states that "where corrosion is present all the known 

methods for estimating the remaining strength of a wire 

cope become useless." 

International's expert witnesses, not surprisingly, 

disagreed with the MSHA experts. David Hall, President of 

Hal~ins Services, Inc., disagreed with Poffenroth•s 

conclusion that y6u could not interpolate from loss of 

metallic area in a wire rope to obtain a reliable and valid 

determination of loss of rope strength. He has found his 

tormula foe determining loss of strength from loss of 

metallic area to be reliable and valid. According to 

Hall's findings of loss of metallic area and his 

computations, he found the actual maximum loss of strength 

in the cited wire rope to be 9.1 percent. Hall also found 

however "well established moderate corrosion" throughout 

the rope and found that the corrosion was "indicative of 

internal corrosion". Hall performed his test on the rope 

on June 18, 1988, and recommended on June 20, 1988, as 

follows: "due to the trend and the ELMA and loss of 

1677 
strength over the· past two tests conducted by 'Rotesco' and 

the ELMA and strength loss depicted in this test it is 

recommended that this rope be replaced within the next 30 

days following this test." (See Ex~ioit R-4). 

In his report and at hearing, Hall did not however 

find that the subject rope met any of the retirement 

criteria under 30 C.F.R. Part 57, and concluded that the 

rope was in satisfactory condition at the time of the test. 

Another expert witness for International, Dennis 

Weaver, a graduate civil engineer ana former eruployee of 

the Bethlehem Steel Wire Rope Division testified concecning 

destructive tests he performed in July 1988 on a portion of 

the subject rope. In his report Weaver stated as follows: 

The ultimate failure of the returned sample was 

356,000 pounds. The catalog rated strength ior 

new rope is 372,000 pounds. Our records show the 

as--manufacturer breaking strength was 377,000 

pounds. Therefore, it appears the actual loss of 

strength is approximately 5.5%. 

This test was allegedly performed on a section of the 

wire rope deemed worst by the MSHA inspection. According 

to Weaver there was only "scattered rust" on the outer 

surface of the wire rope and he acknowledged that this 

could have been the "moderate corrosion" that Hall had 

found. 

While the experts may have therefore disagreed over 

the extent of rope deterioration from corrosion in this 

case the Secretary did not disagree that there was no need 

to then remove the subject rope from service. Indeed I 

find that the Secretary's claim of a violation in this case 

is completely undermined by the fact that after Inspector 

Lara issued the citation at bar (charging a violation of 

the standard at 30 C.F.R. § 57.19024 which mandates that 

wire ropes be removed from service under the prescribed 

conditions} he nevertheless allowed the rope to remain in 

service for a week thereafter. In addition, in spite of 

the regulatory requirement for the mandatory retirement of 

ropes meeting the prescribed criteria another MSHA official 

granted an additional wee~'s extension of time in which to 

replace the cited rope. Thus the Secretary allowed the 

cited cope to remain in service for two weeks after the 

profferred regulation would have mandated its retirement 

and in the face of her own representations that up to 30 

miners were thereby exposed to the reasonable likelihood of 

fatal injuries., 

1678 
These actions by the Secretary are inconsistent with 

her simultaneous claim that the subject rope was so 

corroded that it met the criteria for immediate retirement. 

At the same time these actions are consistent with the 

findings of independent expert David Hall who opined that 

the cited rope would not further deteriorate to meet the 

regulatory retirement criteria, including the criteria 

under subsection (h), for another 30 days from the date of 

his test. Under these circumstances I accord the greater 

weight to the opinions of the operators' independent 

experts and conclude that the subject rope did not in fact 

on the date of this citation, June 16, 1988, meet the 

retirement criteria under the provisions of 30 

C.F.R. § 57.19024(d) or (h). Within this framework of 

evidence I conclude that the Secretary has failed to 

sustain her burden of proving the violation as charged and 

the citation must accordingly be vacated. 

ORDER 

Citation No. 3270248 is vacated. 

Distribution: 

~l Gary Mel ck 

Ad~inist~ative (703) 750-6261 

i 

" 

Judge 

Mary Witherow, Esq., Office of the Solfcitor, U.S. 

Department of Labor, 525 Griffin Street, Suite 501, Dallas, 

TX 75202 (Certified Mail) 

James M. Day, Esq., Cotten, Day & Selfon, 12th Floor, 1899 

L Street, N.W., Washington, D.C. 20036 (Certified Mail) 

nt 

1679 

) 

I 

~ 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 6 1989 

MIKE STEVENS, ET AL., COMPENSATION PROCEEDING 

Complainants : 

Docket No. VA 89-30-C 

v. 

No. 1 Mine 

CHAP ARAL COAL COMPANY, INC., 

Respondent 

DECISION AND ORDER 

On July 13, 1989, an Order was issued in this case 

finding Respondent in default and accepting the allegations 

in the Complaints herein to be true. Subsequently on July 26 

and July 31, 1989, the Complainants submitted claims of 

damages with service upon Respondent. No response has been 

filed to these claims and accordingly they are accepted as 

correct. 

Wherefore Chaparal Coal Company is directed to pay the 

following amounts of compensation to the noted miners within 

30 days of the date of this decision with interest computed 

in accordance with this Commission's decision in United Mine 

Workers of America (UMWA) v. Clinchfield Coal Co., 

10 FMSHRC 1493 (1988): 

Darrell Dotson 

Curtis Perkins 

Steve Mays 

Johny Brewster 

Marty Owens 

Leo Chap1nan 

-Barry Owens 

Danny Clevinger 

Donald Patton 

Rodney Wimmer 

Carl Rowe 

William Byrd 

Mike Stevens 

Jerry Allen 

Bernice Coleman 

Michael A. Smith 

' j 

) 

/ 

$480.00 

480.00 

480.00 

480.00 

480.00 

480.00 

480.00 

480.00 

480.00 

660.00 

480.00 

420.00 

600.00 

480.00 

480.00 

360.00 

G~ry Me 'ck 

Administl ative 

( 703) 75~ 6261 

\ 

! 

Judge 

1680 
Distribution: 

Mr. Mike Stevens, P.O. Box 653, Bi~ Rock, VA 24603 

(Certified Mail) 

Mr. ,James C. Ball, President, Chaparal Coal Company, Inc., 

Box 209, Vansant, VA 24656 (Certified Mail) 

nt 

1681 
FEDERAL MINE SAFETY AND HEALTH REVIE~ COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRE·rARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRA'fION (I"1SHA), 

Petitioner 

v. 

M. A. WALKER COMPANY, INC., 

Respondent 

~·-. ~· p ,...,.··-1 7 ~ \_.:. 1989 

DECISION 

CIVIL PENALTY PROCEEDI~G 

Docket No. KENT 88-121-M 

A. C. No. 15-00112-05516 

Docket ~o. KENT 88-123-M 

A. C. No. 15-00111-05515 

Docket No. KBNT 88-205-M 

A. C. No. 15-00112-05520 

Clover Bottom Underground 

Appearances: Mary Sue Ray, Esq., for the Secretary of Labor; 

Mr. David Riley, Office Manager, for Respondent 

Befoce: Judge Fauver 

These cases were brought by the Secretary of Labor for civil 

penalties under § llO(a) of the Federal Mine Safety and Health 

Act of 1977, 30 u.s.c. § 801 et seq. 

Based upon the hearing evidence and the record as a whole, I 

find that a preponderance of the substantial, reliable, and 

probative evidence establishes the following Findings of Fact and 

additional findings in the Discussion below. 

FINDINGS OF FACT 

1. At all times pertinent, Respondent opecated two 

underground mines, known as the Indian Creek Undergcound Mine and 

the Clover Bottom Underground Mine, which prodllced crushed 

limestone sold in or substantially affecting interstate commerce. 

Citation 2861521 

2. This citation, issued on December 2, 1987, alleges a 

violation of 30 C.F.R. § 57.12028. Respondent failed to perform 

the required annual continuity and resistance tests of the mine 

grounding system. The last tests performed by ~espondent at the 

cited mine were on November 18, 1986. 

1682 
3. This was the third year that Respondent "' failed to 

perform the required tests in a timely fashion. °Respondent did 

not have its own grounding bed at this mine until one was 

installed in 1985 by the Technical Support Unit (Tech ~upport) of 

the Mine Safety and Health Administration. The testing of the 

adequacy of the ground bed was performed for the operator by Tech 

Support as a part of the setting up of the bed. At that time, it 

was explained to the operator that the ground bed would have to 

be tested on an annual basis. After this initial setup, 

Respondent was cited in November 1986, for the failure to perform 

the required tests on the mine's grounding system. 

4. The continuity test is designed to detect any breaks in 

the grounding system, to determine whether there is a continuous 

path from the electrical equipment to the ground bed. 

5. The resistance test measures the impedance of the ground 

bed (metal rods in the earth) from one point to another. The 

integrity of the ground bed may be affected by various 

conditions, e.g., acids in the dirt, vehicles running over the 

surface, or a broken wire. If the ground bed is broken, then in 

the event of an electrical fault the current may shock any person 

who touches the equipment or is standing in close proximity to 

it. 

Citation 2861527 

6. This citation, issued on January 26, 1988, alleges a 

violation of 30 C.F.R. § 57.12016. A mine foreman, Glenn Brewer, 

and two mine employees were performing repair work on the primary 

jaw crusher, about 100 f~et underground, without locking out the 

equipment or taking other measures which would prevent the 

machine from being energized without the knowledge of the men 

working on it. The miners had removed some guards from the 

machine. One miner was down on the conveyor belt, the other was 

at the base of the crusher, and the foreman was on the landing on 

top of the jaw crusher. 

7. The power switch to energize or de-engergize the primary 

jaw crusher was in a control building above ground. No one was 

in the control building at the time. There was a lock in the 

hasp of the door to the control building, but the hasp was not 

closed and the lock was not fastened, nor did it give an 

appearance that the building was closed to personnel. When the 

mine inspector entered the building, he did not have to remove 

the lock. There was power available at the control building. 

8. There were start-stop swit~hes at the jaw crusher. 

However, these were not a reliable means of de-energizing the 

machine. 

1683 
Order-Citation 2861528 

9. This order-citation, issued on January 26, 1988, alleges 

a violation of 30 C.F.R. § 57.15002. Two employees, who were 

working under the direction of the mine foreman-and in-view of 

the foreman, were not wearing hard hats. Both miners were at the 

primary jaw crusher, below the level where tools were located and 

would be handed down. They were underground, where there was a 

danger of falling rock from the roof or sides of the pillars. 

Roof and pillar conditions in limestone mining change from day to 

day. The protection of hard hats is basic to mining as demonstrated by the dents in miners' and mine inspectors' hard hats 

caused by falling objects or bumping into objects underground. 

Order-Citation 2861529 

10. This order-citation, issued on January 26, 1988, alleges 

a violation of 30 C.F.R. § 57.4161. An open fire heater was 

burning underground on a platform at the primary jaw crusher 

where two miners and mine foreman Glen Brewer were working. 

The heater, which was a diesel fuel heater known as a 

salamander, was on the platform of the primary jaw crusher, about 

eight feet off the ground. A salamander is a metal cone-shaped 

heater. The base is 18-20 inches high, and the exhaust stack is 

about nine inches high. Salamanders can easily be turned over 

and spread a liquid fire. In addition, they emit a high level of 

carbon monoxide which may accumulate due to the confined space 

and confined ventilation underground. 

11. Respondent was cited in December 1986, for having a 

salamander burning underground at the primary jaw crusher. When 

the citation was issued, the mine inspector discussed the 

prohibition against having open flames underground with Glenn 

Brewer, mine foreman. Also, before the subject order-citation 

was issued, Vernon Denton, field office supervisor, MSHA, held a 

conference with three representatives of Respondent: Lyle Walker, 

Glenn Brewer, and Dave Riley, safety director. Mr. Den~on 

explained in detail to all three individuals the prohibition 

against the operation of a salamander underground. 

Order-Citation 2861909 

12. ~his order-citation, issued on ~pril 13, 1988, alleges 

an imminent danger and violations involving the mine exhaust fan. 

The mine fan was a mobile fan on a trailer base with rubber tire 

wheels. The fan had eight-foot propeller type blades, driven by 

a 20 horse power, 480 volt motor. The fan was sitting at ground 

level. The blades were not adequately guarded. The fan was 

behind a storage trailer and adjacent to the dump area of the 

mine. The area was well traveled by foot traffic as indicated by 

footprints around the base of the fan. ~he fan was turned on and 

off daily by a miner walking up to the fan. The order-citation 

contains four citations, each having No. 2861909, and identified 

as No. Cl), (2), (3), or (4): 

1684 
Cl) This citation alleges that the fan propeller blades 

were not adequately guarded, in violation of 30 C.F.R. 

§ 57.14001. The bottom five feet of the fan had a loosely 

constructed wire fence material as a guard. The mesh l.n the 

material was so large that someone could stick his hand through 

it. The guard had deteriorated due to the vibration of the fan 

and left exposed moving parts accessible to persons traveling in 

the area. The fan blades were completely exposed at the top 

three feet of the fan. 

(2) This citation alleges that the 480 volt motor for the 

fan was not grounded, in violation of 30 C.F.R. § 57.12025. The 

fan had three wire circuits (three phase), and a ground wire was 

not provided. 

(3) This citation alleges that the 20 horsepower motor for 

the fan was not provided with a lead make-up box cover, in 

violation of 30 C.F.R. § 57.12032. There was no cover plate on 

the lead make-up box. 

(4) This citation alleges that there were several poorly 

insulated splices in the 480 volt power cable to the fan, in 

violation of 30 C.F.R. § 57.12013. The splices in the cable wete 

not properly insulated, and left the three conductors exposed to 

contact, damage, moisture, dust, and dirt. 

Citation 286135 

At the hearing, the parties moved for approval of a 

settlement of this citation, with payment of the $85 penalty 

originally proposed. This motion was granted, and the penalty is 

included in the Order below. 

DISCUSSION WITH FURTHER FINDINGS 

Citation 2861521 

This citation marked the third year that ~espondent failed 

to perform the required continuity and resistance tests in a 

timely fashion. ~he operator did not have its own grounding bed 

until one was installed in 1985 by the Tech Support Unit of MSHA. 

The testing of the adequacy of the ground bed was performed for 

the operator by ~ech Support as a part of the setting up of the 

bed. At that time, it was explained to Respondent that the 

ground bed would have to be tested within a year. Despite this, 

Respondent was found in violation in November 1986, for failing 

to test the ground bed resistance and continuity of the grounding 

system. 

~t the hearing, Respondent did not consider the tests 

significant (Tr. 45), despite the fact that Tech Support 

instructed the operator as to the importance of maintaining a 

ground bed and performing these tests annually. 

1685 
Failure to test the ground bed annually is a serious matter. 

Even where an electrical utility company maintains its own ground 

bed outside the mine, the failure of the mine operator_ to perform 

these tests at the mine can result in a fatality. 

Respondent was highly negligent in failing to perform the 

required tests. It was given ample assistance by Tech Support in 

1985, but was cited the next year for failing to conduct the 

required tests. It was again found in violation in January 1988. 

~espondent's history shows indifference concerning the need for 

the tests and the seriousness of failing to perform them. 

Considering each of the criteria for a civil penalty in 

§ llOCi) of the Act, I find that a penalty of $300 is appropriate 

for this violation. 

Order-Citation 2861527 

The foreman and two miners were working at the primary jaw 

crusher, to do repair work, but the circuit for the machine was 

not locked out. Respondent's lockout procedure required that the 

control room, above ground, which supplied power to the primary 

jaw crusher, be locked while the machine was de-energized during 

repair work. However, the control room was not locked and the 

power circuit to the jaw crusher was not locked out. The foreman 

knew that this was the case. Failure to de-energize and lock out 

this dangerous equipment during repairs constituted aggravated 

conduct which showed an "unwarrantable" failure to comply with 

the safety standard. It was also a "significant and substantial" 

CS and S) violation. 

Considering each of the criteria for a civil penalty in 

§ llOCi) of the Act, I find that a penalty of $500 is appropriate 

for this violation. 

Order-Citation 2861528 

The inspector observed two miners. working at the primary 

jaw crusher, who were not wearing hard hats. They were working 

under the direction of their foreman, Glenn Brewer. The 

violation was obvious and serious. The two miners were below the 

level on which tools were located, and they were underground. 

There was a clear danger of being struck by falling tools or 

falling rock from the mine roof or ribs. ~he need for the 

protection of hard hats is basic to mining, as demonstrated by 

the dents commonly seen in hard hats caused by falling objects 

and bumping into objects underground. Considering the obvious 

danger and the foreman's plain view of this violation, 

Respondent's conduct rose to the level of an "unwarrantable" 

failure to comply with the standard. 

1686 
Considering each of the criteria for a civil penalty in 

§ llO(i) of the Act, I find that a penalty of $500 is appropriate 

for this violation. 

Order-Citation 2861529 

Respondent violated 30 C.F.R. § 57.4161 by having an open 

flame heater burning underground. The diesel fuel heater Ca 

"salamander") was on a platform at the primary jaw crusher where 

two miners and their foreman, Glenn Brewer, were working. This 

was a significant and substantial violation, which presented a 

clear risk of a mine fire and emission of a high level of carbon 

monoxide that could reasonably be expected to cause serious 

injuries. 

The operator was cited for this same condition a month 

earlier. When issuing the previous citation, the mine inspector 

discussed the prohibition against having open flames underground 

with Glenn Brewer, foreman, and, before the date of the subject 

order-citation (January 26, 1988), MSHA supervisor Vernon Denton 

held a conference with management representatives Lyle Walker, 

Glenn Brewer and Dave Riley; at the conference he explained in 

detail the prohibition against operation of a salamander 

underground. Respondent's rep~at of the same violation was 

flagrant, and showed an unwarrantable failure to comply with the 

safety standard. 

Considering each of the criteria for a civil penalty in 

§ llO(i) of the Act, I fipd that a penalty of $1,000 is 

appropriate for this violation. 

Order-Citation 2861909 

This order-citation was issued for an imminent danger and 

violations involving the mine exhaust fan. In conjunction with a 

§ 107(a) order, the inspector issued four 

§ 104(a) citations. Each citation has the same number as the 

order. For identification, the following citations are numbered 

in the order as (1), ( 2), ( 3) , and ( 4) . 

Cl) Respondent violated 30 C.F.R. § 57.14001 because the fan 

blades (8-feet, propeller type blades) were not adequately 

guarded and were accessible to contact by personnel. The person 

turning the fan on and off was at risk of coming in contact with 

the blades. This was an S and S violation, due to ordinary 

negligence. 

Considering each of the criteria for a civil penalty in 

§ llO(i) of the Act, I find that a penalty of $150 is appropriate 

for this violation. 

1687 
(2) The 480 volt motor for the fan was not grounded, in 

violation of 30 C.F.R. § 57.12025. This condition presented a 

serious risk of electric shock. This was an S & s violation, due 

to ordinary negligence. 

Considering each of the criteria for a civil penalty in 

§ llOCi> of the Act, I find a penalty of $150 appropriate for 

this violation. 

(3) The 20 horsepower motor for the fan was not provided 

with a lead make-up box cover, in violation of 30 C.F.R. 

§ 57.12032. The regulation requires that cover plates on 

electrical equipment and junction boxes be kept in place at all 

times except during testing or repairs. The motor was energized 

and the wire connections in the box were exposed to contact, 

moisture, damage, dust and dirt. This was an S and S violation, 

due to ordinary negligence. 

Considering each of the criteria for a civil penalty in 

§ llO(i) of the Act, I find that a penalty of $150 is appropriate 

for this violation. 

(4) The 480 volt cable to the fan had several improperly 

insulated splices, in violation of 30 C.F.R. § 57.12013. The 

splices left the conductors exposed to contact, damage, moisture, 

dust, and dirt. This was an S & S violation, due to ordinary 

negligence. 

Conside~ing each of the criteria for a civil penalty in 

§ llO(i) of the ~ct, I find that a penalty of $150 is appropriate 

for this violation. 

CONCLUSIONS OF LAW 

1. The judge has jurisdiction over these proceedings. 

2. Respondent violated the safety standards as charged in 

Citations and Order-Citations Nos. 2861521, 2861527, 2861528, 

2861529, 2861909 and 286135. 

ORDER 

Respondent shall pay the above civil penalties of $2,985 

within 30 days of this Decision. 

1688 

r);_p;_,_ ~ 1-t-Mv 11\.. 

w i11 i am Fauver 

Administrative Law Judge. 
Distribution: 

Mary Sue Ray, Bsq., Office of the Solicitor, U.S. Department of 

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

(Certified Mail) 

Mr. David Riley, Office Manager, M. A. Walker Company, Inc., P.O. 

Box 143, McKee, KY 40447 (Certified Mail) 

iz 

1689 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 7, 1989 

SECRFTARY OF LABOR, CIVTL PFNALTY PROCEEDING 

MIN'E SAFETY .A.l\TO HE.AL'l'H 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. PFNN 89-111 

A. C. ~o. 36-07230-03557 

v. Bailey Mine 

CONSOL P~NNSYLVANIA COAL 

COMPA'NY, 

Respondent 

DECISION 

Appearances: Nanci A. Hoover, ~sq., Office of the Solicitor, 

u. S. Department of Labor, Philadelphia, 

Pennsylvania, for Petitioner; 

Before: 

Michael R. Peelish, ~sq., Consol Pennsylvania 

Coal Company, Pittsburgh, Pennsylvania, for 

Respondent. 

Judge Merlin 

This case is a petition for the assessment of a civil 

penalcy for an alleged violation tiled by the Secretary of Labor 

against Consol Pennsylvania Coal Company, under the Federal Mine 

Safety and Health Act of 1977, 30 U. s. C. § 820. An evidentiary 

hearing was held on July 11, 1989. The parties have filed 

post-hearing briefs. 

Citation No. 3083738 dated January 4, 1989, charges a violation of 30 C.F.R. § 75.1100-2(e){2) for the following condition 

or practice: 

"A fire extinguisher and 240 lb of rock 

dust was not provided for an electrically 

operated water pump located 100 feet outby 

the face of the No. 1 return entry in the 5 B 

Section." 

30 C.F.R. § 75.1100-2 provides in pertinent part as follows: 

75.1100-2 Quantity and location of 

firefighting equipment. 

{a) Working sections. (1) Rach working 

section of coal mines producing 300 cons or 

1690 
more per shift shall be provided with two 

portable Eire extinguishers and 240 pounds 

of rock dust in bags or other suitable 

containers; waterlines shall extend to each 

section loading point and be equipped with 

enough £ire hose to reach each working iace 

unless the section loading point is provided 

with one of the following: 

Ci) 'T'wo portable water cars; or 

(ii) 'T'wo portable chemical cars; or 

(iii) One portable water car or one 

portable chemical car, and either (a) a 

portable foam-generating machine or Cb) a 

portable high-pressure rock-dusting machine 

fitted with at least 250 feet of hose and 

supplied with at least 60 sacks of rock 

dust. 

* * * * 

Cb) Belt conveyors. In all coal mines, 

waterlines shall be installed parallel to 

the entire length of belt conveyors and 

shall be equipped with f irehose outlets with 

valves at 300-foot intervals along each belt 

conveyor and ac tailpieces. ~t least 500 

teet of firehose with fittings suitable for 

connection with each belt conveyor waterline 

system shall be stored at strategic locations along the belt conveyor. Waterlines 

may be installed in entries adjacent to the 

conveyor entry belt as long as the outlets 

project into the belt conveyor entry. 

Cc) Haulage tracks. Cl) In mines 

producing 300 tons of coal or more per shirt 

waterlines shall be installed parallel to 

all haulage tracks using mechanized equipment in the track or adjacent entry and 

shall excend to the loading point of each 

working sectioh. Waterlines shall be 

equipped with outlet valves at intervals of 

not more than 500 feet, and 500 feet of 

firehose with tittings suitable for connection with such waterlines shall be provided 

at strategic locations. ~wo portable water 

cars, readily available, may be used in lieu 

of waterlines prescribed under this 

paragraph. 

1691 
* * * * 

Cd) ~ransportation. ~ach track or 

off-track locomotive, self-propelled 

man-trip car, or personnel carrier shall be 

equipped with one portable iire 

extinguisher. 

(e) Flectrical installations. Cl) Two 

portable fire extinguishers or one extinguisher having at least twice the minimum 

capacity speciried tor a portable iire extinguisher in § 75.1100-l(e) shall be provided 

at each permanent electrical installation. 

(2) One portable fire extinguisher and 

240 pounds or rock oust shall be provided at 

eacl},, temporary electrical installation. 

* * * * 

At the prehearing conference counsel for both parties agreed 

to several stipulations which were placed on the record at the 

hearing held the next day. ~hese stipulations are as follows: 

Cl) ~he operator is the owner and operator of the Bailey 

Mine located in Washington, Pennsylvania; 

(2) ~he operator and the mine are subject to the 

jurisdiction of the Federal Mine Safety and Health Act of 1977; 

(3) ~he administrative law judge has jurisdiction over this 

case pursuant to Section 105 of the Act; 

(4) Tn the two-year period prior to May 27, 1989, the mine 

had no known violations of the standard contested in this case; 

(5) ~he size of the operator is reflected by the following 

data: 

Ci) ~he mine employs approximately 370 

underground and service employees; 

(ii) Annual production is approximately 

4,659,479 tons; 

Ciii) ~he operator operates 33 mines; 

(iv) ~he annual production of all the operator's 

mines is approximately 49,776,000 tons. 

1692 
(6) The alleged violation was abated within the required 

time period; 

(7) Imposition of a penalty herein will not affect the 

operator's ability to continue in business; 

(8) 'T'he pump in issue was a temporary electrical 

installation within the meaning of tne mandatory standard; 

(9) Firefighting equipment at the load center satisfied the 

requirement of Section 75.1100-2(a), whicn is not at issue in 

this case. 

'T'he pertinent facts are as follows: ~he cited pump was in a 

return entry several hundred reet inby che load center ("A" on 

Joint ~xh. 1, ~r. 11-12). 'T'his location was on the working section but the pump was not within sight of the load center (~r. 

33, 71). 'T'he pump received its power from the load center and 

was used to pump water from the section which had water but was 

not especially wet (Tr. 73-75). No firefighting equipment was 

located at the pump ('T'r. 18). 'T'he pump was energized (Tr. 17). 

Tt is the operator's position that because the firefighting 

equipment at the load center satisfied the requirements for such 

equipment on the working section and because the pump was on the 

working section, there was no violation. ~he operator argues 

that having met its obligations under subparagraph (a) of 

§ 75.1100-2 which sets forth the fireiighting equipment required 

on the working section, it need do no more. The Secretary, on 

the other hand, maintains that although the operator has satisfied subparagraph (a), it must also provide the firefighting 

equipment specified by subparagraph (e) £or temporary electrical 

installations. 

I conclude the Secretary's position is correct. ~he parties 

have agreed that the pump is a temporary electrical installation 

within the meaning of the mandatory standard. Stipulation No. 

8 l/. Moreover, the stipulation accords with general practice 

and usage. 'T'hus the term "temporary installation" is defined as: 

An installation made for a limited time 

only, generally in the area between the 

loading point and the working face, but also 

in other locations where porcable or mobile 

equipment is installed for a limited time. 

ll Much oE the operator's brief appears at odds with this 

stipulation, into which it freely entered. The stipulation is 

binding in this case. 

1693 
A temporary installation is limited to a 

period of six months. BuMines. Coal-Mine 

Inspectors' Manual, June 1966, pt. 3-18e, 

p. 53. 

Dictionary of Mining ~erms, U. s. Bureau of Mines (~969), 

p. 1127. 

The various subparagraphs of § 75.1100-2 set forth requirements £or firefighcing equipment by location and type of machinery. In absence 0£ evidence to the contrary, I believe the 

health and saiecy purposes of the ~ct are best served by insisting that every requirement of the standard applicable by its 

terms to a given situation, be tuliilled. ~he operator's witnesses agreed that except for subparagraph (a) other subparagraphs of § 75.1100-2 should be read cogether in cumulative 

fashion. ~hus the mine foreman testified that if a pump such as 

the one in this case were located in the belc entry, it would 

have to satisfy not only subparagraph (b) regarding firefighting 

equipment in a belt entry, but also subparagraph (e) with respect 

to temporary electrical installations (~r. 74-75). He also 

stated the same would be true with respect to a pump in a haulageway that is governed by subparagraph (c) (~r. 74-75). The 

operator's foreman asserted that the dual requirements could be 

imposed on temporary pumps in belt entries and haulageways 

because such pumps might be iurtl1er away from firefighting equipment than they would be on a working section. I do not find this 

argument persuasive. ~he foreman himself admitted that a temporary pump on a working section could be several hundred feet from 

the firefighting equipment required by subparagraph (a) (~r. 78). 

Moreover, once certain subparagraphs of § 75.1100-2 are read and 

applied together there is no basis in the wording or structure ot 

the mandatory standard to make an exception for subparagraph (a) 

so that where it applies, nothing else does. 

~he MSHA Policy Manual is not binding but in appropriate 

instances it may serve as a guide in interpreting a mandatory 

standard. U. s. Steel, 10 FMSHRC 1138 (1988), U. S. Steel, 5 

FMSHRC 3 (1983), Alabama By-Products, 4 FMSHRC 2128 (1982). 

However, the 1988 Manual, is of no use here. The manual states 

that a permanent electrical installation referred to in section 

(i) of subparagraph (e) is electric equipment expected to remain 

in place tor a relatively long or indefinite period ot time. 

Items of electric equipment considered permanent are listed and 

those pieces which should not be considered permanently installed 

are also identified. However, the manual does not define or 

specify what equipment qualifies as a temporary electrical 

installation under section (ii). The fact that something should 

not be considered a permanent electrical installation does not 

mean it thereby becomes a temporary installation. It may be 

neither. I agree with the inspector's cestimony that certain 

types of equipment under ordinary circumstances do not qualify as 

1694 
installations <~r. 45). In any event, the parties have agreed 

thac the cited pump was a temporary electrical installation. In 

addition, the manual provides that firefighting equipment 

required ior welding under subparagraph (g) ot § 75.1100-2 may be 

satisfied by the equipment required by subparagraph (a) for the 

working section. (Solicitor's Brief p. 8). ~he manual gives no 

rationale for the exemption it allows under (g). Neither the 

Solicitor nor operator's counsel makes mention ot the fact that 

prior to 1978 the manual allowed the same exemption for temporary 

installations under (e) as for welding under (g). Since the 

mandatory standard is the same under the 1977 Act as it was under 

the 1969 Act, the reason for the manual change regarding 

subparagraph (e) is not apparent. 1n this respect also the 

manual is deficient. However, as set torth above, the decision 

in this case is based upon a schematic interpretation of the 

mandatory standard. 

1n light of the foregoing, I conclude there was a violation. 

~he evidence shows that the absence of the required 

£iref ighting equipment created the danger an individual could be 

overcome by smoke or electrical shock (Tr. 20-21). However, on 

the day in question methane was within permissible limits and 

nothing was wrong with the pump (~r. 23, 32, 41). ~herefore, I 

conclude gravity was only moderate. 

The Commission has set forth specific criteria for establisning whecher or not a violation is ~ignificant and substantial. 

Cement Division, National Gypsum Co., 3 FMSHRC 872 (1981), 

Mathies Coal Co., 6 FMSHRC 1 (1984). As set forth above, the 

violation presented a discrete safety hazard, but the evidence 

does not show a reasonable likelihood the hazard would result in 

injury. ~he inspector first testified that an injury could 

happen or was a possibility (Tr. 20, 22). When pressed about 

"reasonable likelihood" the inspector's subsequent statement that 

it was reasonably likely, is unconvincing aince he premised that 

conclusion upon methane which he admitted was not at dangerous 

levels, upon a defect in the pump when there was no defect, and 

upon dust concerning which there was no testimony (~r. 22-24). 

Tn light of the foregoing, I conclude the violation was not 

significant and substantial. 

~he inspector admitted that he had not previously discussed 

the need for firefighting equipment at temporary pumps with the 

mine foreman or the operator's safety supervisor (~r. 91). ~he 

inspector said he had talked to safety ~eople who travelea with 

him (~r. 91). In the prior two years no citations had been 

issued cor this type of violation. ~lthough MSHA is not in any 

way estopped, these circumstances do affect the degree of fault. 

I conclude negligence was minimal. 

1695 
~he post hearing responses have been reviewed. ~o the 

extent they are inconsistent with this decision they are 

rejected. 

~ penalty of $50 is assessed. 

ORDER 

It is hereby ORDFRBD that the operator pay $50 within 30 

days from the date 0£ this decision. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Nanci A. Hoover, Bsq., Office of the Solicitor, U. 8. Department 

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

Philadelphia, PA 19104 (Certified Mail) 

Michael R. Peelish, Fsq., Consol Pennsylvania Coal Company, 

Consol Plaza, 1800 Washington Road, Pittsburgh, PA 15241 

(Certified Mail) 

Michael H. Holland, Fsq., UMWA, 900 15th Street, N.W., 

Washington, DC 20005 (Certified Mail) 

/gl 

1696 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 7 

SOUTHER~ OHIO COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR 

MINE SAFETY & HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR 

MINE SAFETY & HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SOUTHERN OHIO COAL COMPANY, 

Respondent 

DECISION 

CONTEST PROCEEDING 

Docket No. wEVA 88-56-R 

Order No. 2895233; 10/21/87 

Martinka No. 1 Mine 

Mine ID 46-03805 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 88-156 

A.C. No. 46-03805-03843 

Martinka No. 1 Mine 

Appearances: B. Anne Gwynn, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania, tor the Secretary. 

David M. Cohen, Esq., American Electric Power 

Service Corp., Lancaster, Ohio for the Contestant/ 

Respondent. 

Before: Judge Maurer 

These cases are before me under section 105(d) of the 

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

~., (the "Act"), to challenge the legality of a section 

104(d)(2) order issued to the contestant at its Martinka Ko. 1 

Mine on October 21, 1987. The captioned proceedings have been 

consolidated for hearing and decision because che order contested 

in the contest proceeding charges a violation of a mandatory 

safety standard for which the Secretary seeks a penalty in the 

civil penalty proceeding. 

Pursuant to notice, the ca~es ware heard in Mprgantown, West 

Virginia, on March 2, 1989. The parties filed post-hearing 

proposed findings of fact, conclusions of law, and briefs ~hich 

llave been consideretl by rne in the course of rna:~ing this 

decision. 

1697 
Section 104(d)(2) Order No. 2895233, which is the subject of 

this proceeding, was issued by MSHA Inspector Homer W. Delovich 

on October 21, 1987. The order alleges a violation of the 

mandatory safety standard found at 30 C.F.R. § 75.1403 1/, and 

the condition or practice alleged by the inspector to-be a 

violation of that standard, which pertains to safeguards, states 

as follows: 

In the D-3 Longwall sections, the 24 inch clearance was 

obstructed on the headgate operator's side for 

approximately 120 feet along the panline and for 10 

outby the section belt tailpiece; obstructing the 

clearance was water, coal and coal dust mixed 6 inches 

to 18 inches in depth and in this accumulations were 3 

cables, coal and rocK, the accumulations existed 

between the coal rib and panline. No one working on 

conditions when observed, no pump provided for the 

water and two men were observed performing other work 

in this clearance. Condition presents a slipping and 

stumbling hazard. Safeguard issued 02-03-82, Number 863963. 

Safeguard No. 863963 had been issued by Inspector Delovich 

on February 3, 1982. That safeguard notice provided that: 

Twenty-four inch clearance was not provided along the 

stage loader and chain conveyor at the headgate on the 

C2 longwall section. Obstructing the 24-inch clearance 

was a roof crib within 4 inches of the control station, 

~arge shale roof rock walkway where persons work along 

the panline ana post iaying on the floor of the clearance. All stage loaders and panlines at headgates in 

this mine shall have 24 inches of unobstructed 

clearance. 

STIPULATIONS 

The parties stipulated to the following, which I accepted 

(Tr 10-11): 

1. The Administrative Law Judge has jurisdiction over these 

proceedings. 

1/ 30 C.F.R. § 75.1403 repeats section 314(b) of the Mine Act, 

30 U.S.C. § 874(b), and states: 

Other safeguards adequate, in the judgement of an 

authorized representative of the Secretary [of Labor], 

to minimize hazards with respect to transportation of 

men and materials shall be provided. 

1698 
2. The Martinka No. 1 Mine is owned and operated by the 

Southern Ohio Coal Company. 

3. The Martinka No. 1 Mine and the Southern Ohio Coal 

Company are subject to the jurisdiction of the Federal Mine 

Safety & Health Act of 1977. 

4. Safeguard No. 863963 was properly served by duly 

authorized representatives of the Secretary of Labor upon an 

agent of the Southern Ohio Coal Company on the date, time and 

place stated therein. 

5. Safeguard No. 863963 had not been vacated or withdrawn 

at the time Order Number 2895233 was issued. 

6. Order Number 2895233 was properly served by duly 

authorized representatives of the Secretary of Labor upon an 

agent of the Southern Ohio Coal Company on the date, time and 

place stated therein. 

7. The assessment 0£ a civil penalty in this proceeding 

will not affect Southern Ohio Coal Company's ability to stay in 

business. 

8. The annual coal production of the Martinka No. 1 Mine in 

1986 was one million one hundred seventy-seven thousand three 

~undred forty-seven tons. 

9. There ~as no intervening clean inspection between 

September 1, 1981, when Order No. 859286 was issued and 

October 21, 1987, when Ord~r No. 2895233 was issued. 

10. There were approximately 346 inspection days at the 

Martinka No. 1 Mine in the 24 month period prior to the issuance 

of Order No. 2895233. 

DISCUSSION AND FINDINGS 

On October 21, 1987, Inspector Delovich conducted a regular 

quarterly inspection of the Martinka No. 1 Mine. In the D-3 

longwall section, he found the travelway between the panline and 

the rib to be covered with water, mud, coal muck, etc. A 

"quagmire" in his words. This condition existed from 10 feet 

outby the tail piece to 120 feet inby along the panline, and 

ranged in depth from 6 to 18 inches. He issued the order at bar 

because of this condition, shutting down the longwall operation 

and withdrawing the 3 miners who had been working in this mess. 

The inspector felt this was a significant and substantial 

violation because he believed it was highly likely that a miner 

1699 
would slip, trip or fall in the muck and if a miner fell in the 

area between the panline and the rib, he could fall onto the 

illoving pauline, and serious injuries would be reasonably likely 

to occu.c. 

The inspector also determined that this condition had 

existed for two to three weeks prior to the issuance of the 

instant order and at the time of .the issuance, nothing was being 

done to correct this situation. The testimony of Messrs. 

Kirchartz and Yost established that mine management was aware of 

the condition £or the entire 2-3 weeks of its existence, and 

graphically described the unpleasantness of working in these 

messy conditions. 

It so happens that Inspector Delovich had also issued the 

underlying safeguard some five years earlier. He issued that 

safeguard in the C-2 longwall section because the travelway 

between the panline and the solid coal rib was obstructed by 

large stone and rock and had a crib built in close proximity to 

the stage loader. Miners were observed by him at that-time to be 

walking through the obstructed area between the panline and the 

solid coal rib because this was the only entrance to the longwall 

face. They also had to bring supplies in through this area 

between the rib and the panline. His purpose in issuing this 

safeguard then was to alleviate the stumbling and tripping 

hazards he found and to provide for an unobstructed travelway 

between the coal ribs and the stage loaders and panlines. 

In a previous case involving this same contestant, Southern 

Ohio Coal Co., 10 FMSHRC 963 (1988), the Commission discussed in 

general terms the safeguard issue. Therein they stated at 

966-67: 

The Com.mission has previously had occasion to examine 

the Act's safeguard provision. The Commission has 

noted that the broad language of the provision 

"manifests a legislative purpose to guard a0ainst all 

hazards attendant upon haulage and transportation in 

coal mining." Jim Walter Resources, Inc., 7 FMSHRC 

493, 496 (April 1985). The Commission has observed 

that while other mandatory safety and health standards 

are adopted through the notice and comment rulemaking 

procedures set forth in section 101 of the Act, section 

314(b) extends to the Secretary an unusually broad 

grant of regulatory power -- authority to create what 

are, in effect, mandatory safety standards on a 

mine-by-11Line basis without regard to the normal 

statutory rulemaking procedures. Southern Ohio Coal 

1700 
Co., supra, 7 FMSHRC at 512. The Commission also has 

recognized that the exercise of this unique authority 

must be bounded by a rule of interpretation more 

restrained than that accordea promulgated standards. 

Therefore, the Commission has held that ~ narrow--

construction of the terms of a safeguard and its 

intended reach is required and that a safeguard notice 

must identify with specificity the nature of the hazard 

at which it is directed and the remedial conduct 

required by the operator to remedy such hazard. Id. 

These underlying interpretive principles strike an 

appropriate balance between the Secretary's authority to 

require safeguards and the operator's right to notice of 

the conduct required of him. 

That earlier Southern Ohio Coal Company case cited in the 

above quotation is directly on point in this proceeding. In 

Southern Ohio Coal Co., 7 FMSHRC 509 (1985), the Commission held 

that notices to provide safeguards must be narrowly construed. 

In that case, the notice to provide safeguards referred to 

"fallen rock and cement blocks" in a travelway. These solid 

objects in tne travelway presented a stumbling hazard, and 

depending on the amount of material present could have prevented 

passage in the walkway altogether. Abatement of this condition 

was accomplished by simply removing the discrete objects. The 

Commission specifically opined at 7 FMSHRC 513: 

[F]urther instances of physical obstructions in 

travelways, whether rocks, cement blocks, or other 

objects such as construction materials, mine equipment 

or debris would fall within the scope of the safeguard. 

The obstruction cited as a violation of the safeguard in 

that instance, however, was not any of those objects. It was 

water, in combination with the clay bottom of this same Martinka 

No. l mine, rock dust and mud, which did create a serious 

slipping and stumbling hazard. 

The holding in that case is also set out at 7 FMSHRC 513: 

The alleged obstruction cited in this case, an 

accumulation of water, was neither specifically 

identified in the safeguard notice, suggested thereby, 

nor in our opinion even contemplated by the inspector 

when he issued his safeguard notice. The presence of 

water in an underground coal mine is not an unusual 

condition: it sometimes results from its introduction 

into the mining process, but often it is caused by 

natural ground conditions. The record in this case 

indicates that natural water seepage was common at this 

1701 
mine,· particularly at the location involved. Given the 

frequency of wet ground conditions in the mine, and the 

basic dissimilarity between such conditions and solid 

obstructions such as rocks and debris, we find that 

SOCCO was not given sufficient notice ~y .the underlying 

safeguard notice issued in 1978 that either wet 

conditions in general or the.particular conditions 

cited in 1983 by the inspector in this case would 

violate the underlying safeguard notice's terms. 

We do not hold that a safeguard notice pertaining to 

hazardous conditions caused by wetness could not be issued. 

Conditions such as those cited by the inspector here, if 

hazardous, can just as readily be eliminated by issuance of 

safeguard notices specifically addressing such conditions. 

By taking this approacn rather than bootstrapping dissimilar 

hazards into previously issued safeguard notices, the 

operator's right to notice of conditions that violate the 

law and subject it to penalties can be protected with no 

undue infringement of the Secretary's authority or loss of 

miner safety. 

Returning to the instant case, in the words of the MSHA 

inspector who issued it, he issued the notice to provide 

safeguards in February of 1982 because SOCCO had the cited 

travelway obstructed with large stones and rock and they had a 

crib block built right next to the stage loader. 

In October of 1987, the same inspector testified he found a 

"quagmire", six to eighteen inches in depth, consisting of water, 

mud, coal lumps and dust and cables running through this "muck" 

in ~he cited area. He defined "muck" to be coal dust and water 

mixed to a consistency where it forms a mud. 

Mr. Kirchartz, a safety committee member and employee of 

SOCCO at the Martinka No. 1 mine accompanied Inspector Delovich 

on October 21, 1987 during his inspection and witnessed the 

issuance of the order at bar as well as the conditions in the 

cited area. He testified that both sides of the panline were in 

a very muddy condition and that this area of the mine was a 

particularly wet one. 

Mr. Yost, another SOCCO employee was called and he testified 

that he is a shear operator on the longwall and was knowledgeable 

about the conditions in the cited area at the time the order was 

issued. He described the conditions as being muddy and mucky on 

both sides of the panline. He had previously complained about 

the mud there. He stated that to work in eighteen inches of mud 

all day was a mess and definitely no fun. 

1702 
Mr. Lane, a longwall foreman at MartinKa No. 1, also 

testified that he was familiar with the conditions in the area at 

the time the violation was written and was present when the order 

was issued. He denies that any rock or large chunks of coal were 

present in this area at the time. He admits the muc~~xisted, 

but denies that there were any cables laying in the muck on the 

operator's side of the stage loader between the face and the 

conveyor motor. The order states that there was an obstruction 

on the headgate operator's side for approximately one hundred and 

twenty feet along the panline and for ten feet outby the section 

belt tailpiece, but the cables were only involved within the ten 

feet outby the section belt tailpiece. 

Mr. David Stout, a safety assistant employed by SOCCO, was 

also with the inspector at the time the order was issued and was 

aware of the conditions in the cited area at the time. He 

observed a mixture of water, small lumps of coal, small 

gravel-sized rock and clay bottom material. Most of this fine 

mixture was water in his opinion. With regard to the cables at 

issue herein, he testified that there were three cables coming 

from the stage loader area next to the tailpiece that were looped 

out of the motor, and were on the floor within the ten feet outby 

the section belt tailpiece. 

The cited condition was abated by a dozen miners using 

buckets to put the muck onto the conveyor within the stage loader. 

Shovels were tried, but were found to be ineffective because the 

consistency of the material did not allow it to stay on the 

shovels. 

The safeguard makes no reference to mud or water or muck, 

and the inspector somewhat incongruously states that if it wasn't 

for the muck that was present, he would not have written the 

alleged violation under th~ safeguard section of the mandatory 

standar6s. He testified that in 1982 the travelway was 

obstructed; there were obstructions on the floor and in his 

words, "it wasn't meant to be specific what kind of obstructions". 

Therefore, he issued the safeguard. Subsequently, in 1987, when 

he found the "quagmire", rather then issue a new safeguard notice 

to eliminate the conditions he believed to be hazardous, he 

attempted to include muck within the prohibitions of the existing 

safeguard which referenced only large rocks, a crib block and a 

post laying on the floor. 

The order at bar which he issued in this instance alleged 

that the clearance was obstructed with a mixture of water, coal 

and coal dust (muck) in which there were located three cables, 

coal and rock. The three cables referenced in the order were 

part of the longwall unit and provide power for the longwall. 

These three cables were not on the mine floor between the panline 

1703 
and the s6lid coal block within the 120 feet next to the panline, 

but rather were on the floor next to the solid coal block within 

the 10 feet outby the section belt tailpiece. The ten feet outby 

the section belt tailpiece, not being next to the stage loader or 

panline is not included in the area covered-by the safeguard. 

That effectively eliminates the cables from any further 

consideration. 

As far as any coal and rock that existed in the "quagmire", 

I find that the consensus of the evidence is that it was very 

small lumps of coal and rock along with clay or bottom material 

which formed a muck, some six to eighteen inches deep. I also 

find that it was solely this muck, rather then any discrete 

physical objects, that resulted in the issuance of the order at 

bar. 

Commission precedent, Southern Ohio Coal Co., supra, is 

clear in tnis case. The safeguard must identify with specificity 

the class ot obstructions prohibited. The obstruction cited by 

the 1987 order in this case was essentially muck. Muck was not 

mentioned in the 1982 sareguard notice that the order purportedly 

relies on and no reasonable construction of the underlying 

safeguard notice in this case could conceivably include it. 

Accordingly, the instant order must be vacated. 

ORDER 

On the basis of the foregoing findings and conclusions, 

SOCCO's contest IS GRANTED, Order No. 2895233 IS VACATED, and 

MSHA's related civil penalty proposal IS REJECTED. The civil 

penalty proceeding IS THEREFORE DISMISSED. 

urer 

ative Law Judge 

Distribution: 

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

P.O. Box 700, Lancaster, OH 43130 (Certified Mail) 

B. Anne Gwynn, Esq., U.S. Departillent of Labor, Office of the 

Solicitor, Room 14480 Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

/ml 

1704 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 7 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. WEVA 88-187 

A.C. No. 46-03805-03846 

v. 

Martinka No. 1 Mine 

SOUTHERN OHIO COAL COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION 

Therese Salus, Esq., Office of the Solicitor, U.S. 

Department of Labor, Philadelphia, Pennsylvania, 

for the Petitioner; 

David M. Cohen, Esq., American Electric Power 

Service Corporation, Southern Ohio Coal Company, 

Lancaster, Ohio, for the Respondent. 

Judge Koutras 

Statement of the Case 

This proceeding concerns civil penalty proposals filed by 

the petitioner against the respondent pursuant to section llO(a) 

of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 820(a), seeking civil penalty assessments for two alleged 

violations of certain mandatory safety standards found in 

Part 75, Title 30, Code of Federal Regulations. The respondent 

filed a timely answer and contest, and a hearing was held in 

Morgantown, West Virginia. The parties filed posthearing briefs 

and proposed findings and conclusions, and the arguments presented therein have been considered by me in the course of this 

·decision. 

Issues 

The parties settled one of the violations, and the settlement was approved from the bench during the hearing, and my 

settlement decision has been reaffirmed. With regard to the 

remaining contested violation, the issues presented include the 

fact of violation, the appropriate civil penalty assessment for 

1705 
the violation, taking into account the civil penalty criteria 

found in section llO(i) of the Act, and whether or not the 

inspector's S&S and unwarrantable failure findings were properly 

made. Additional issues raised by the parties are identified and 

disposed of in the course of this decision. 

Applicable Statutory and Regulatory Provisions 

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

Pub. L. 95-164, 30 U.S.C. § 801 et seg. 

2. 30 C.F.R. § 75.1704. 

3. Commission Rules, 20 C.F.R. § 2700.1 et seg. 

Stipulations 

The parties stipulated to the following (Tr. 11-13): 

1. The respondent and the subject mine are 

subject to the jurisdiction of the Act, and the 

presiding judge has jurisdiction to hear and decide 

this matter. 

2. The contested order was properly served on the 

respondent by a duly authorized representative of the 

Secretary of Labor. 

3. The alleged violation was abated by the 

respondent in a timely fashion. 

4. The subject mine produced approximately 

2.8 million tons of coal as of March, 1989, and the 

respondent company produced approximately 12.2 annual 

tons as of March, 1989. 

5. The proposed civil penalty assessment will not 

affect the respondent's ability to continue in 

business. 

6. The records obtained from MSHA's Office of 

Assessments reflects that the respondent was issued 55 

section 104(a) violations citing violations of 

mandatory safety standard 30 C.F.R. § 75.1704, over the 

2-year period preceding the issuance of the contested 

order in issue in this case. 

The respondent agreed that there is no dispute with regard 

to the section 104(d) procedural "chain" concerning the preceding 

section 104(d) citation relied on by the inspector to support the 

subsequently issued section 104(d) order (Tr. 17). 

1706 
Discussion 

Section 104(d) (2) Order No. 2895079, January 6, 1988, 

30 C.F.R. § 75.1403-9(c). 

The parties agreed to settle this alleged violation, and 

they presented their oral arguments on the record in support of 

the proposed settlement, and a reduction of the initial proposed 

civil penalty assessment from $1,000 to $50.00. 

Petitioner's counsel stated that the inspector based his 

order on his belief that the respondent exhibited a high degree 

of negligence in allowing a tripping hazard to exist along a 

shelter hole for two to three shifts. However, counsel confirmed 

that there is no credible testimony to support this conclusion 

and that the order should be modified to a section 104(a) citation because the unwarrantable failure finding cannot be 

supported, and there is no support for any finding that the 

respondent exhibited aggravated conduct in connection with the 

violation. Counsel also asserted that the condition was not 

entered in any preshift examination reports, and that the respondent immediately abated the cited condition. Counsel confirmed 

that the respondent's history of prior violations includes no 

previous violations of the safeguard provisions of 30 C.F.R. 

§ 75.1403-9(c), (Tr. 5-8). 

Petitioner's counsel confirmed that she discussed the proposed settlement disposition with the inspector who issued the 

order on many occasions, and that he agreed with it (Tr. 10). 

After due consideration of the proposed settlement, it was 

approved from the bench (Tr. 10). My ruling in this regard is 

herein reaffirmed. 

The remaining contested section 104(d) (2) Order No. 2895499, 

issued on January 6, 1988, cites an alleged violation of 

30 C.F.R. § 75.1704, and the condition or practice states as 

follows: 

Additional roof supports are needed in the intake 

escapeway for the North Mine butts (031) section at 

Sta. #17845 where the roof is loose, broken and some 

spalling has occurred from around existing supports. 

The location has been reported in the examination book 

since 12/2/87 and no action has been taken to correct 

this condition since being reported. 

In her opening statement at the hearing, petitioner's counsel asserted that on January 6, 1988, MSHA Inspector Frank 

Bowers, accompanied by UMWA Fire Boss Gary Pastorial, and the 

respondent's safety representative David Stout, conducted a 

regular inspection of the mine, and in the course of the inspection walked along the North Main Butts section belt into the 

1707 
entry. At Station No. 17845, the inspector observed a danger tag 

that had been hung on or about December 2, 1987, by 

Mr. Pastorial. In the vicinity of the tag, Mr. Bowers observed 

cracked and broken roof and falling roof materials on the mine 

floor at the crosscut at the station in question. The condition 

covered an area of approximately 16 feet long and 2 to 3 feet 

wide. Based on his observations, and the fact that the danger 

tag had been placed there for more than a month prior to the 

inspection, with no indication of any remedial measures taken by 

the respondent to correct the conditions, the inspector issued 

the section 104(d) (2) order, with special S&S findings, citing a 

violation of section 75.1704. 

Counsel stated further that after the inspection was concluded, the inspector went to the surface and reviewed the 

respondent's weekly examination books which contained references 

to the cited roof conditions since early December, 1987. This 

confirmed the inspector's belief that the conditions had existed 

for more than 1 month, and supports the issuance of the order 

(Tr. 15-16) . 

Respondent's counsel agreed that the cited conditions had 

been reported in the weekly examination books since December 2, 

1987. However, he asserted that the book entries repeatedly, 

reflect that the area was "safe to travel" (Tr. 16). 

Counsel asserted that section 75.1704, requires that at 

least two separate and distinct travellable passageways be maintained in a safe condition, and since the UMWA fire boss 

repeatedly noted in the book that the cited area was safe, no 

violation has been established. Further, even if it were to be 

determined that the cited area was unsafe, since the condition 

was never reported to mine management as unsafe, the unwarrantable failure finding by the inspector is not justified (Tr. 17). 

Petitioner's Testimony and Evidence 

MSHA Inspector Frank Bowers, testified as to his background 

and experience, and he confirmed that he issued the c0ntested 

order during the course of his mine inspection on January 6, 1988 

(Tr. 24). He stated that he observed that loose and broken rock 

had fallen from the roof in and around the existing roof supports 

in the area which had been tagged by fire boss Gary Pastorial on 

December 2, 1987. Mr. Pastorial informed him that he had continued to report the condition in his examination book since that 

date but could not get anything done about it (Tr. 26). 

Mr. Bowers stated that the cited regulatory section 75.1704, 

requires that two separate and distinct escapeways be marked and 

maintained in safe condition at all times, and that one of them 

must be on the intake air. He confirmed that the cited area was 

on the intake escapeway, which was required to be isolated from 

1708 
the belt and track with permanent cinder block stoppings, and 

that the track was used as the secondary escapeway. He also 

confirmed that the danger tag had Mr. Pastorial's initials on it, 

and the tag stated that "additional roof support needed here at 

Station No. 17845" (Tr. 27). 

Mr. Bowers stated that the tagged roof area was not roped 

off or closed off in any way, and that the area was required to 

be examined weekly. He described the loose and broken roof, and 

stated that the roof materials on the floor were approximately a 

foot deep and extended across the entire entry which was approximately 16 feet wide (Tr. 28). 

Mr. Bowers stated that he cited section 75.1704, rather than 

the roof control regulatory series under 75.200, because it is 

MSHA's policy to dite roof falls in the intake escapeway under 

section 75.1704 (exhibits G-3 and G-4; Tr. 29-31). 

Mr. Bowers stated that roof "spalling" consists of rock that 

is breaking up around the existing roof bolts and plates, leaving 

the bolts and plates hanging down and no longer against the roof 

top. He confirmed that he observed the roof spalling, and also 

observed roof cracks approximately 2 feet wide and 16 feet long 

across the entry. The fallen roof materials were on the floor 

directly under the cracks, and he assumed that the conditions had 

existed since December 2, 1987, the date which was on the tag 

(Tr. 32). He described the sizes of the fallen materials, confirmed that the 4-1/2 to 5 foot spacing between the roof bolts 

was not a problem, but that the existing roof needed additional 

support "due to the roof deteriorating, broken and cracked and 

falling" (Tr. 33-34). 

Mr. Bowers confirmed that he observed no other problems with 

the roof or the width of the escapeway, and that the materials on 

the floor did not impede travel through the escapeway. He 

estimated that the cited escapeway was 2,000 feet outby the 

working section. He confirmed that abatement was achieved by 

installing roof support posts, and that this took approximately 

one-half hour to an hour, and he considered this to be prompt 

(Tr. 35). 

Mr. Bowers did not believe that his safety or health was in 

jeopardy when he walked into the cited area and stated that "it 

seemed to me it was just becoming unsafe to be traveled and the 

area needed attention. They had to install additional supports.'' 

He confirmed that the only person in the area would be the 

examiner who would be in the area once a week, and the only 

others exposed to any hazard would be miners travelling through 

the area in an emergency (Tr. 35). 

Mr. Bowers stated that after his inspection, he travelled to 

the mine surface and reviewed the weekly examination books, and 

1709 
he identified exhibit G-6 as copies of the examination records he 

reviewed with respect to Station No. 17845, and confirmed that 

from December 2, 1987 to the date of his inspection, different 

fire bosses, including Mr. Pastorial, noted that the escapeway in 

question needed additional roof support at the cited location 

(Tr. 40-42). 

Mr. Bowers stated that he was not certain why the fire 

bosses noted in the examination book that "the area can be 

traveled," or whether or not they believed it could be physically 

traveled. He believed that one could physically travel the area, 

but was not sure whether the examiners believed that it was safe 

to travel the area. It was not clear to him what specific areas 

the examiners were ref erring to since several places were 

referred to in the examiner's notations (Tr. 42). 

Mr. Bowers stated that he issued the unwarrantable failure 

order because the roof conditions he observed were a violation 

of the law, and he found that the respondent had known about the 

condition because it had been reported in the weekly examination 

book and took no action during this time to correct it (Tr. 44). 

He identified exhibit G-7, as MSHA's new policy guidelines, 

effective July 1, 1988, with respect to the issuance of unwarrantable failure orders (Tr. 45). He explained the factors he 

considered in issuing the order as follows (Tr. 46-49). 

A. One here where it includes the amount of time the 

violation has been left uncorrected. 

Q. And in this case, what facts do you feel justified 

an unwarrantable finding? 

A. I feel from January 6 through December the 2nd was 

over a month was more than enough time to correct the 

condition, especially when it comes to a roof. 

Q. How long did it take to correct it? 

A. Approximately a half hour to an hour, probably, 

after they got the material over there. 

Q. Were special materials necessary? 

A. Well, they had to bring posts over. They set 

posts. 

Q. Were they available at the site? 

A. Somewhere along in the area they've got the posts, 

yes. 

Q. The next factor, what is that? 

1710 
A. "Whether the hazard created by the violation is 

particularly serious, thus warranting increased attention from the operator to vent or correct it." 

Q. And in your opinion, what facts would support that, 

if any? 

A. Well, you have an area here that you're going to 

use in event of an emergency for people to escape. You 

may have between your weekly examination, you could 

have a roof fall in the area which would then impede 

the travel for these people to get through this entry 

br it's possible that if a person would be walking down 

through there and spalling rock would hit him, it could 

cause serious injuries. 

Q. Had a roof fall occurred or a more substantial fall 

occurred, would the operator have known about it? 

A. In weekly examination. 

Q. Only during the weekly examination? 

A. Unless someone would go down through there, chances 

are they wouldn't detect it for the following week. 

Q. And what about the next factor? 

A. Okay, that's "Whether the violation is repetitious 

of a previous violation." 

Q. And to your knowledge, was this? 

A. Yes, it is repetitious. 

Q. How do you know that? 

A. I've issued several violations and orders at this 

mine, in particular, where they had stuff in the books 

and not taking action to correct it. 

JUDGE KOUTRAS: The what? I'm sorry. I didn't hear 

that. 

THE WITNESS: I say I've issued several violations and 

orders at this mine over the years, Your Honor, where 

they hadn't taken action to correct, it had been left 

in the books. 

1711 
BY MS. -SALUS: 

Q. To your recollection were any of these conditions 

that you observed that have been left uncorrected, did 

any of them relate to intake escapeways? 

A. I can't recall if it was just on intake escapeways. 

I've had some on track. I've had some in return 

entries, different areas, I'm sure possibly if I would 

go back through the records, I may find some on 1704. 

Q. What about the next factor? 

A. That's "Whether the violation was a result of 

deliberate activities by the operator." 

Q. Did you consider that factor? 

A. No, I didn't. I don't think there was any deliberate activities there. 

Q. What about the next one? 

A. That's "Or whether the operator knew or had reason 

to know that its actions violated a mandatory 

standard." 

Q. And in your opinion, were the facts --

A. Well, I feel that they did know because it was 

being reported in their weekly examination book which 

by law the mine foreman and the superintendent or his 

assistant signs it and reads this book on a daily and 

weekly basis. 

Mr. Bowers stated that he could have issued a section 104(a) 

citation, rather than an order, but did not do so because he 

found that the condition had been reported in the examination 

books and the respondent knew about it. He did not b~lieve that 

the condition presented an imminent danger, and if he had issued 

a citation, he would have allowed the respondent an additional 

day to correct the condition (Tr. 50). 

Mr. Bowers stated that at the time he walked the area, he 

did not believe that it was likely that the roof would fall in on 

top of him, but believed that anyone making an examination in the 

area would reasonably likely sustain serious injuries if pieces 

of spalling roof rock were to hit him, and that he could suffer 

broken bones, crushing injuries, or possible death. He believed 

that this was reasonably likely because "over the years we've had 

several people that have been hurt through roof falls and rock 

that's hit them and anywhere from serious injuries to death." He 

1712 
also believed that the deteriorated top, which was "already loose 

and broken and spalling out," and the fact that the conditions 

were next to an intersection which was a bigger area and where 

the roof is weaker, were all factors contributing to the likelihood of a roof fall. He also considered the length of time that 

the conditions had existed as increasing the likelihood of a fall 

because "it's gradually going to deteriorate to where it will get 

worse" (Tr. 50-51). 

Mr. Bowers stated he based his "high negligence" finding on 

the fact that the condition was noted in the weekly examination 

books, and the mine foreman or assistant superintendent signs the 

book on a daily or weekly basis, and "he sees what is there so 

I'm taking that they did know the negligence was there and should 

have been taken care of" (Tr. 52). When asked whether mine 

management "knew" or "could have known" that the condition posed 

a hazardous or dangerous condition, Mr. Bowers responded "that I 

don't know whether they would or not" (Tr. 52). However, he 

confirmed that he observed nothing which would lead him to conclude that any remedial action had been taken. 

Mr. Bowers stated that he considered the violation to be S&S 

for the following reason (Tr. 53): 

A. Well, anywhere where you have bad roof conditions 

where people are required to work or travel in these 

areas, you have the likelihood of a person being hurt 

or injured seriously in these areas from falling rock 

or roof, and that's what I base that on to be 

significant. 

Mr. Bowers stated that the weekly examiner would be exposed 

to a roof fall hazard, and although he would be aware of the 

hazard, anytime he travels through the area, he would be exposed 

to the hazard. Although others on the section would also be 

exposed to a hazard, this would only occur if they had to use the 

entry to escape from the mine in an emergency (Tr. 55). 

Mr. Bowers confirmed that none of the respondent's representatives indicated that they had been aware of the cited conditions 

(Tr. 53). 

On cross-examination, Mr. Bowers stated that with a roof 

spalling condition, the roof would come down in pieces, rather 

than in a massive fall, and that the falling material may be from 

1 to 3 inches in thickness. He confirmed that most of the roof 

pieces he observed on the floor were broken up where they had 

fallen out between and around the bolts and plates (Tr. 56-58). 

Mr. Bowers stated that the examination book notations "can 

be traveled" may or may not mean "safe to travel," and while this 

is unclear, he believed that "anytime you have an area where you 

need additional roof support it needs immediate action" (Tr. 60). 

1713 
He confirmed that a person would not be in the area for a. long 

time, and that he issued no other violations in the intake 

escapeway at the time of his inspection (Tr. 61). 

Mr. Bowers stated that "If I find where it's being reported 

to you and you know about it and you're not taking any action to 

correct it, that to me is unwarrantable" (Tr. 62). 

In response to further questions, Mr. Bowers confirmed that 

he made no measurements of the fallen materials, that the roof 

was 6 feet high, and that the materials will break when they hit 

the ground (Tr. 64). He saw no evidence of any falls above the 

roof bolts, saw no problems with the roof bolting pattern, and 

did not believe that the spalling affected the effectiveness of 

the bolts which were in place, except that the roof was starting 

to deteriorate and needed additional support (Tr. 65). 

Mr. Bowers stated that the examination books do not indicate 

that the cited area was "safe to travel," and while the statements indicate that "it can be traveled," he was not sure what 

the examiners meant by this statement. He did not believe that 

the two statements mean the same thing, and he explained the 

difference as follows (Tr. 66): 

A. Well, like I said a while ago, you could go through 

the area, but that does not make it safe due to this 

condition that you may have throughout the area. It 

may be like I'm reading in here where they're speaking 

of excessive water and one place here where it's over 

his boots, I don't know whether this examiner this date 

was talking about the water, but he's stating -- if the 

water is over your boots and it may be that that's what 

he meant, and it needs to be taken care of, but yet you 

can go through it. 

Mr. Bowers did not know how many posts were installed to 

abate the condition, and he stated that someone walking through 

the area may never see the danger tag, which he described as 

"little," approximately 4 to 6 inches long, and 3 inches wide 

(Tr. 69). He confirmed that the roof-control plan itself would 

not require the respondent to address the spalling, loose and 

broken roof condition (Tr. 71). He could not determine why 

additional support was not installed sooner, and stated that 

Mr. Pastorial told him that he had advised the general mine 

supervisor about the condition (Tr. 72). 

Mr. Bowers confirmed that MSHA's regulations do not explain 

the kind of danger tag which was at the cited roof area, and do 

not require such a tag. He agreed that one could interpret the 

tag to mean "I can walk through this area, but I'd better be 

careful" (Tr. 74). He confirmed that the tag was not an official 

MSHA danger tag such as those used by inspectors to prohibit 

1714 
persons from walking through such an area. The tag was a company 

tag, and he could not say whether it would prohibit anyone from 

walking through the area (Tr. 75-76). He confirmed that the 

entryway was well marked and designated with reflectors. 

Joseph Gary Pastorial, confirmed that he was the union fire 

boss at the time of the inspection, that his duties include the 

examination of the intake escapeways and the return airways, and 

that this is his full time job. He confirmed that he is required 

to travel the areas in question in their entirety, once a week, 

not exceeding 7 days (Tr. 78-81). He confirmed that any observed 

conditions which need to be corrected are entered in the weekly 

examination book. If he observes a condition that does not 

pertain to his particular area, or is not a violation, or a 

hazardous condition, but has a potential to be one, he communicates it to mine management, and usually to Mr. Metz, sometimes 

in writing, and sometimes verbally. He stated that this usually 

happens "maybe a couple of times a month" (Tr. 82). 

Mr. Pastorial stated that he accompanied Mr. Bowers during 

his inspection and he confirmed that Mr. Bowers cited the "bad 

place in the roof" at Station No. 17845. Mr. Pastorial also 

confirmed that he had previously examined the area, and found 

that the roof had cracked and had loose rock, and had deteriorated to the point where it needed additional roof support to 

keep it from falling in. He tagged the area and recorded the 

condition in the weekly examination book (Tr. 84). He described 

the roof condition as a 3-foot "ripper" extending across the 

entry for approximately 16 feet. He stated that 4 to 6 inches of 

roof material had fallen from the center of the roof, and he 

estimated that it was "a couple of feet long by 2 or 3 inches 

thick and maybe 6, 8 inches wide." The roof was 6 to 6-1/2 feet 

high, and while he did not know the weight of the fallen material, he stated that "it was visible and you had to walk over it" 

(Tr. 85). He did not know the extent of the cracks, and 

described them as "gagged edges" and not smooth (Tr. 86). 

Mr. Pastorial confirmed that he posted the tag in December, 

and wrote in the date, his initials, and noted that the area 

needed additional roof support. He obtained the tag from the 

mine safety department and it was the same type that is used to 

"danger out" electrical equipment (Tr. 86). He described the tag 

as 4 inches by 6 inches, and stated that he hung it just inby the 

roof where it was deteriorated, between the working face and bad 

place in the roof, and that he attached it to a roof bolt plate 

(Tr. 87) . 

Mr. Pastorial could not recall whether he advised anyone 

about the roof conditions other than entering it in the book, and 

although he does notify mine management in "a lot of instances" 

verbally or by written memo, he could not recall whether he did 

so in this instance (Tr. 87). Mr. Pastorial stated further that 

1715 
he "sometimes" talks to Mr. Metz about the need for timbers, and 

while he thought he did in this case, he was not sure "so I don't 

want to testify yes or no" (Tr. 88). 

Mr. Pastorial identified the notation entry whicn he made in 

the examination book on December 2, 1987, and he confirmed that 

while he noted that the roof needed additional support, he did 

not make any notation that he had dangered it off, because that 

is not standard procedure, and he had never done it before (Tr. 

90) . 

Mr. Pastorial identified another entry which he made in the 

examination book on December 9, 1987, and he confirmed that he 

made a notation that the "North Main Butts Section intake 

escapeway needs additional roof support at Station No. 17845," 

and that he noted that the area "can be traveled" (Tr. 90). He 

explained that his notation "can be traveled" had the following 

meaning (Tr. 91): 

A. It was my opinion that that area needed additional 

roof support just like it needed garbage cleaned and 

all those other violations corrected, but if a person 

had to get down through there in an emergency, it may 

or may not be safety (sic) but you could travel the 

entry. 

Mr. Pastorial identified two additional examination book 

entries made by mine examiner Frank Latocha on December 17, and 

26, 1987, where he noted "escapeway roof support at station 

No. 17845" and that "intake escapeway needs additional roof 

support at Station No. 17845," and in both instances, Mr. Latocha 

noted that the area "can be traveled." When asked if he knew 

what Mr. Latocha meant by the notations "can be traveled," 

Mr. Pastorial responded "I can't speak for Mr. Latocha, but I . 

believe it meant that people could get down through there if they. 

had to" (Tr.. 92) . 

Mr. Pastorial identified an examination book entry made by 

mine examiner Richard Eddy on December 28, 1987, which reflects 

that "escapeway needs additional roof support at Station 

No. 17845 11 and that the area "can be traveled." Mr. Pastorial 

stated that "I again cannot speak for Richard Eddy, but I believe 

that he means that there is a violation existing in this entry, 

but it can be traveled in the case of an emergency" (Tr. 93-94). 

Mr. Pastorial stated that he finds nothing in the notations 

made by the other mine examiners which would lead him to conclude 

that they believed the area was safe to travel, and when asked 

whether "safe to travel" is the same as "can be traveled," 

Mr. Pastorial responded "absolutely not," and he explained his 

answer as follows (Tr. 95): 

1716 
A. Safe to travel means to me that there are no violations, that you could travel that area without any 

problems whatsoever. Can be traveled means to me that 

you can get through that entry if you have to, but the 

violations, there are violations in the area that need 

to be corrected as soon as possible. 

Mr. Pastorial stated that every entry that he has made in 

the examination books would reflect his opinion that the condition is either a hazard, or a violation, or both (Tr. 95). 

However, in response to certain bench questions, he responded as 

follows (Tr. 96-97): 

JUDGE KOUTRAS: I notice a couple of entries that don't 

say anything. For example, Mr. Eddy made a notation 

for the period ending December 19th, which is the third 

page, "Grassy Run Mains intake escapeway safe to 

travel." That's all he said. What's that mean? Does 

that mean that he inspected that particular escapeway 

and found it safe to travel? 

THE WITNESS: Which page was that, sir? 

JUDGE KOUTRAS: Page 3 of the stapled fire boss books 

for the week ending 12/19 on line 1. Mr. Eddy says, 

"Grassy Run Mains intake escapeway safe to travel." 

That's all he says. 

THE WITNESS: Okay, as far as I know, if that was my 

entry, that would mean that he didn't see anything 

wrong there. It was perfect. It was well rock dusted, 

there was no loose roof. 

JUDGE KOUTRAS: Well, why put it in there when it says 

the only thing you put in there is hazards noted. 

THE WITNESS: Well, you have to indicate in the book 

that you traveled the area so that this is a record to 

prove that you made the weekly examination of the area. 

Generally, what I do now is put in the book, if I don't 

find anything in the area, I just put none observed. 

JUDGE KOUTRAS: So it's not true that every entry 

that's made in here indicates a hazard or a violation? 

She asked you a question whether every entry that's 

made in these books indicates hazards or violations. 

Your response was yes. That's not accurate, is it. I 

mean, if someone just puts in there like he just did? 

THE WITNESS: Yeah, technically, I guess you're right. 

I didn't mean to --

1717 
And, at (Tr~ 98): 

JUDGE KOUTRAS: In other words, what you're doing, the 

intent of this is to bring to the attention of someone 

various hazards? 

THE WITNESS: Yes, sir. 

JUDGE KOUTRAS: It might turn out that those hazards 

may not be specific violations of the standards, isn't 

that true? 

THE WITNESS: That's possible, yes sir. 

Mr. Pastorial confirmed that except for the fire boss who is 

in the area once a week, the only others in the area would be the 

section crew of 10 miners and their foreman, who would have to 

travel the escapeway every 90 days, and the crew who would have 

to travel the area in the event of a possible disaster (Tr. 99). 

He stated that he usually spends about 30 minutes inspecting the 

escapeway, that it would take him less than a minute to walk 

through the cited roof area, and that anyone else in the area 

would take less than a minute to walk through that area (Tr. 

100) . 

Mr. Pastorial stated that to the best of his recollection, 

the roof condition in question had deteriorated between the time 

he tagged it on December 2, until the day of the inspection on 

January 6, because there was more spalling and more material on 

the floor. He speculated that there was some movement or shifting of the roof which was causing the material to fall. When 

reminded of the fact that examiner Eddy's notations were consistently the same, and did not indicate any worsening conditions, 

Mr. Pastorial responded "I can't speak for Mr. Eddy" (Tr. 101). 

He also stated that if he believes that an area which needs 

additional roof support is getting worse, he would normally tell 

Mr. Metz about it, but he was not sure that he informed him about 

this in this case (Tr. 102). 

Mr. Pastorial confirmed that although he was in the cited 

area several times he did not feel that his safety was at risk 

because the roof had already fallen and was not cracking, 

popping, or working, but there was an indication that it had 

been, and that it took him only a couple of seconds to travel 

under it (Tr. 103). 

Mr. Pastorial stated that he was not sure that an accident 

or injury was likely, and that it was possible that anytime a 

roof has deteriorated, a fall was possible. He did not believe 

that it was particularly likely that he would be injured "because 

I walked under it" (Tr. 103). He confirmed that he was more 

concerned that the escapeway would be blocked or would have 

1718 
restricted escape in an emergency, rather than the roof falling 

and striking someone, and he recalled three or four instances in 

his experience where roof falls have restricted an escapeway (Tr. 

104). He also believed that the intersection is the weakest part 

of the entry, and that a fall would likely occur at an intersection rather than in the entry itself (Tr. 106). He stated that 8 

to 10 posts were set on each side of the "ripper" to provide 

additional roof support, and that these materials were readily 

available in the mine (Tr. 107). 

On cross-examination, Mr. Pastorial stated that he did not 

danger the area off, and that he uses the tag "to identify the 

area and caution the people in that area." Had he dangered it 

off, he would have entered this in the book and "would have 

contacted Mr. Metz and had him withdraw his people" (Tr. 109). 

He confirmed that he has worked with Mr. Metz for 14 years and 

tries to make it a practice to see him every day (Tr. 110). 

Mr. Pastorial stated that "safe to travel" means "the people 

can go through there, but that doesn't mean -- there can still be 

a violation in the entry." He confirmed that he has never discussed this interpretation with Mr. Metz because he has had no 

occasion to do so and has never been questioned on his entries in 

the examination book (Tr. 110). 

In response to further questions, Mr. Pastorial stated that 

roof falls are required to be reported, but that he did not 

consider the cited conditions to be a roof fall (Tr. 112). He 

acknowledged that he and the other examiners have used the terms 

"can be traveled" and "safe to travel" in some of their examination book entries, but that he has rarely used the term "unsafe 

to travel" unless there is a roof fall or deep water that impedes 

travel (Tr. 112). He indicated that the phrase "can be traveled" 

means "there are violations that exist in the entry, but you 

could still get down through there if you have to" (Tr. 113). He 

confirmed that he is reluctant to danger off every area that 

needs timbering and that he uses his own judgment "on how bad or 

how serious it is" (Tr. 114). 

Mr. Pastorial confirmed that the examination book records 

which he testified about are signed daily by Mr. Metz, the mine 

foreman, and mine superintendent Wesley Hope. He commented that 

"if they read them, they'll know what's in there" (Tr. 118). He 

confirmed that while he did not inspect the cited area from 

December 9, 1987, to the day of the inspection by Mr. Bowers, he 

discovered that the area had deteriorated during the second week 

that he traveled there and when he was with Mr. Bowers (Tr. 119). 

Respondent's Testimony and Evidence 

Dave Stout, safety assistant, confirmed that he observed a 

"ripper" going across the entry at the cited intake location in 

1719 
question, and he described a "ripper" as an area where the roof 

spalls due to shifts in the laminated shell that causes it to 

break and spall out. He described the ripper as 41 inches wide, 

and 8 to 12 inches deep into the roof, and extending to within 

18 inches of the left-hand rib line. He did not consider the 

condition to be imminently dangerous because rippers are common 

in the mine, no roof bolts were disturbed, and the bearing plates 

on both sides of the ripper were "intact and tight to the top" 

(Tr. 123). The spalling which he observed was between the bolts, 

the roof had not been dislodged around the bolts, and there were 

no gaps between the plate on the roof bolt and the roof. The 

roof was broken, and there was some loose rocks within the 

immediate shell inside the crevasse or the ripper. The escapeway 

appeared to be travelable at the time of the inspection (Tr. 

124) . 

On cross-examination, Mr. Stout stated that after the order 

was issued, he informed section foreman John Bevilock to withdraw 

miner's from the face. He confirmed that he had no occasion to 

be in the cited area prior to the inspection. He confirmed that 

he observed rock materials on the floor which had fallen from the 

ripper, and that there were some big pieces of flat shale or 

slate on the floor. He also confirmed that the existing roof 

bolts were not affected by the conditions, and were not disturbed 

since materials fell from between the bolts and not from around 

them. The bearing plates were intact and tight, against the top 

(Tr. 125-127). 

Mr. Stout stated that he was with Mr. Bowers when he 

reviewed the examination.books, but that he (Stout) does not 

review the books, and that he spends most of his time accompanying mine inspectors and taking the necessary remedial action by 

contacting the appropriate foreman. His duties do not include 

the review of the examination books, and to his knowledge the 

respondent took no action to remedy the cited conditions prior to 

the inspection (Tr. 129). He stated that the roof on each side 

of the ripper was intact and that he observed no broken roof in 

these locations (Tr. 131). 

John c. Bevilock, day shift supervisor, confirmed that while 

the cited escapeway location was not an area that he generally 

inspected during his shift, he would have to travel it every 

90 days with two men. He could not recall when he was last in 

the area prior to the inspection, and he stated that it was 

located approximately 2,400 feet from the face area. He confirmed that the area is examined once a week by someone else, and 

that he never observed the cited roof conditions during December, 

1987, and no one ever advised him that additional roof support 

was required in the area. He also confirmed that he never 

observed the condition prior to the inspection by Mr. Bowers, and 

first saw it when he was called to the area to correct the 

violations (Tr. 132-134). 

1720 
Mr. Bevilock stated that he observed that the top had 

spalled out approximately 6 to 8 inches above the top and that 

"it was just a ripper running across the entry" and he did not 

consider the condition to be hazardous because the roof was 

supported with resin roof bolts and the bolts on each side of the 

ripper had not been disturbed. He did not believe that the area 

was dangerous for people to travel through in the event of an 

emergency (Tr. 135). 

On cross-examination, Mr. Bevilock stated that it took 

approximately an hour and a half to correct the conditions, and 

that support posts were available in the area. He confirmed that 

he observed approximately 6 to 8 inches of loose rock which had 

spalled out of the top on the floor, and he did not know how long 

it had been there. He considered the condition to be safe, and 

he did not feel threatened that he would be struck by falling 

roof because the roof "drips and works" before it falls, and this 

was not the case (Tr. 137). He had no indication as to when the 

roof "last worked," or when it would "next work," and he stated 

that "we usually have indications of roof falls that are major 

falls that can occur before they fall." He did not consider the 

fall to be major, and that small falls would normally be indicated by small pieces of roof falling or breaking at the top. He 

did not observe such conditions in this case (Tr. 138). 

Mr. Bevilock stated that when he observes a violation or 

hazardous conditions he takes immediate corrective action if 

materials and manpower are available, and if not, he records it 

in the preshift examiner's book which is different from the 

weekly examination book. He stated that he has no occasion to 

review the weekly examination book, and although he would not 

normally be assigned to correct the conditions, he did so because 

his section was the nearest available production section. The 

cited location is not his responsibility because he supervises 

production only from the end of the track (Tr. 140). 

Mr. Bevilock stated that he "sounded" the roof after he was 

called to the area, and that it sounded "solid on both sides of 

the ripper," and he would have been able to tell if it were 

hollow and cracked {Tr. 141). He confirmed that the roof was 

cracked and broken in parts, and although he sounded it on both 

sides of the ripper to determine if it was hollow on either side 

of the crack, he did not sound the cracked or broken area (Tr. 

142) . 

Mr. Bevilock stated that he observed the roof, and that the 

roof bolts "looked good" and he saw no indications that any 

material had fallen away from the roof bolts. The spalling took 

place 6 to 8 inches inby one set of supports and 3 to 4 inches 

from the other set of supports (Tr. 142). 

1721 
John Metz, general mine supervisor, confirmed that with the 

exception of one report ending December 28, 1987, the other 

examination book reports are signed with his signature at the 

place indicated as "superintendent or assistant." He stated that 

he countersigns approximately 30 records or books each day, and 

in most cases, the records require no less than six signatures in 

each book. He countersigns about 180 documents each day, and is 

required to read them all (Tr. 144-145). 

Mr. Metz stated that in his view, the statement "can be 

traveled" which appears in the examination books, means that the 

area "can be traveled, that there's nothing there to keep a 

person from going down that entry," and that "one would assume 

that it would be safe to travel" (Tr. 145). 

In response to questions as to whether anyone ever advised 

him that the cited area was not safe to travel, Mr. Metz 

responded as follows (Tr. 145-146): 

Q. Did anyone ever tell you that the area referenced 

in this Order 2895499, which is in front of you as 

Government Exhibit 2 was not safe to travel during 

December, 1987? 

A. I can't recall that anyone specifically said it was 

not safe to travel. 

Q. Or prior to, as I say, during 1988, the first 

6 days of 1988, did anybody ever tell that to you? 

A. No, sir. I can't say that they did or did not. 

Q. Does Gary Pastorial report to you? 

A. Yes, sir, he does. 

Q. When it is important for work to be done as a 

result of something that Mr. Pastorial has determined 

during his examination, does he generally do something 

more than write a line in the examination book? 

A. Normally, there has been opportunity and under 

normal situations when Gary encountered something in 

the mine in general or specifically in the intakes and 

returns that he feels needs immediate attention, in 

most cases he fills me out a piece of paper or calls me 

on the telephone and says, hey, you need to get jumping 

on this and take care of it, and in most cases there is 

some type of immediate communications. 

Mr. Metz confirmed that he generally speaks with 

Mr. Pastorial daily, and that if he discovers anything in the 

1722 
intake or returns that he believes needs immediate attention, in 

most cases he will put it in writing or call him on the telephone. Mr. Metz could not recall Mr. Pastorial saying anything 

to him about the cited conditions and stated that "he could have 

very easily and I'd not remember it because he does give me quite 

a few documents" (Tr. 146). Mr. Metz stated that he was not in 

the area when the order was issued, and he could not recall being 

there prior to that time (Tr. 147). 

On cross-examination, Mr. Metz confirmed that he never saw 

the cited roof conditions, and that "ripper's" involve movement 

in the roof top but do not affect the bolt itself unless the top 

moves (Tr. 148). He stated that he has known Mr. Pastorial for 

15 years, and has been his supervisor in one capacity or another. 

He also confirmed that Mr. Pastorial does a good job and that he 

respects his judgment with respect to roof conditions and "anything else that he might tell me that needs taken care of" (Tr. 

149) . 

Mr. Metz confirmed that he and Mr. Pastorial have observed 

conditions that he records in the books "hundreds of times," and 

stated that "we don't view each thing identically. I have to set 

priorities and try to determine what is put in the book as far as 

what needs to be done first, what is most important, or what is 

dangerous" (Tr. 149). He also stated that he has no reason to 

question Mr. Pastorial's entries in the examination books, and 

that entries made by the examiners in the books are matters that 

they view as necessary to be taken care of, or they know are 

violations, and that as a general rule they do not make entries 

that do not fall into these categories (Tr. 150). 

Mr. Metz stated that while Mr. Pastorial in most cases 

brings to his attention conditions that need to be taken care of 

immediately, such as an imminent danger, matters which do not 

need immediate attention, or which present a potential problem, 

are normally documented in the appropriate book. Mr. Metz could 

not recall that Mr. Pastorial directly contacted him with respect 

to the cited roof conditions (Tr. 151). 

Mr. Metz stated that based on his experience with the mine 

top, not all roof rippers are serious. Based on the fact that 

the roof bolts in this case were intact, he would not view this 

as a serious condition (Tr. 153). When asked for his reaction to 

the fact that three different examiners considered that station 

17845 needed additional roof support, Mr. Metz responded as 

follows (Tr. 154): 

A. Ma'am, at our coal mines we have over 500 miles of 

entries that we have mined. Out of these entries I 

would assume that we probably have somewhere in the 

vicinity of 60 miles of travelable entries. To get 

overly excited about a ripper, it just would indicate 

1723 
to me that there was something there that needs some 

attention. I read entries of those natures day in and 

day out and again, relying on my experiences as working 

at that mine, I don't always make the right decision or 

the proper judgment call. 

Mr. Metz confirmed that the term "ripper" is not included in 

any of the book entries, and that the time to provide additional 

support would be "as fast as possible," taking into consideration 

the other priorities noted in the 28 to 30 books which he must 

sign. He confirmed that he gave no instructions to take care of 

the cited roof conditions (Tr. 155). He also confirmed that time 

does not allow him to refer back to any particular book entry, 

and he was aware of mandatory safety section 75.323, which 

requires that hazardous conditions be corrected promptly (Tr. 

157) . 

In response to further questions, Mr. Metz stated that the 

notations "can be travelled" indicates to him that "a person 

could get down through there. In the case that they needed to 

travel, there was nothing there to totally eliminate them from 

traveling that entry." If the notations had indicated "bad top," 

he would consider this to be a more serious condition, but that 

none of the records indicated any bad top in the cited area. He 

did not consider the reported conditions to be "bad top," and the 

notations "needs additional support" describes a cure rather than 

a hazard (Tr. 162). He could not recall discussing 

Mr. Pastorial's entries concerning the roof with him. He also 

believed that the notation "needs additional support" indicates 

that the roof condition was relatively stable in the cited area 

(Tr. 163) . 

Mr. Pastorial was recalled by the court, and when asked why 

he did not include the spalling, loose roof, and broken rock on 

the ground in his entries in the books, he responded that he has 

never included a description of the particular conditions in the 

books because he assumes that management knows what "additional 

roof support" means (Tr. 164). He also indicated that he and 

Mr. Metz generally discuss the materials needed to correct a 

condition and how much timber is needed, but he did not have any 

note that he may have given Mr. Metz, and stated that "I don't 

want to say one way or another" (Tr. 165). 

Mr. Pastorial stated that if he makes a notation that additional roof support is needed, "then the top is bad," and "it 

means the same thing." He stated that in the future, he will 

include such information in his notations (Tr. 166). 

Mr. Pastorial stated that he cannot disagree with Mr. Metz's 

opinion that "can be traveled" means "its safe to travel," and he 

explained his current procedure for making book entries (Tr. 

166-168). 

1724 
Findings and Conclusions 

Fact of Violation - Order No. 2895499, 30 C.F.R. § 75.1704 

The respondent is charged with a violation of mandatory 

safety standard 30 C.F.R. § 75.1704, which requires designated 

escapeways to be "maintained to insure passage at all times of 

any person, including disabled persons" and "maintained in safe 

condition and properly marked." The evidence establishes that 

the escapeways were properly marked and identified, and that they 

were passable. MSHA's assertion at page 8 of its brief that the 

rocks which fell from the roof and were lying on the ground 

"could have impeded escape in an emergency or by disabled miners" 

is rejected. I find no such condition or practice cited in the 

order, and the inspector who issued it testified that the rock 

materials on the floor would not have impeded travel along the 

escapeway in question (Tr. 34). Therefore, the only issue here 

is whether or not the escapeway roof area cited by the inspector 

was maintained in a safe condition. 

The respondent argues that even though some spalling had 

taken place at the cited roof area, it was nonetheless maintained 

in a safe condition. In support of this conclusion, respondent 

states that all of the witnesses testified that the roof conditions did not pose an imminent danger, and that they did not 

believe that their safety was in jeopardy when they were in the 

area. The respondent further points out that the roof area was 

not closed by the fire boss to prohibit people from walking 

there, that the roof bolts and bearing plates on either side of 

the roof crack were intact, undisturbed, and snug against the 

roof, and that the section supervisor who visited the area 

sounded the roof on either side of the crack, and found that it 

was solid and "not working." 

The fact that no one considered the roof conditions to be an 

imminent danger requiring the closing of the area is immaterial. 

It is clear that a violative condition may be established regardless of the presence of any imminent danger or closure action by 

a fire boss. With regard to the condition of the roof bolts and 

bearing plates which had been installed in the roof area in 

question, while there is no credible evidence to establish that 

the bolts and plates had separated from the roof, the fact 

remains that the roof had obviously deteriorated over time, and 

spalling had recently occurred. "Spalling" is a condition caused 

by rock which is subjected to excessive tension, causing it to 

break off in pieces. See: A Dictionary of Mining, Mineral, and 

Related Terms, U.S. Department of the Interior, 1986 Edition, at 

page 1049. 

In addition to the spalling condition of the roof, the 

inspector's credible testimony establishes the presence of cracks 

in the roof, approximately 2 feet wide, and extending for some 

1725 
16 feet across the entry and next to an intersection, a 16cation 

described by the inspector "as a bigger ar.ea where the roof is 

weaker." The inspector believed that the roof was deteriorating, 

and he characterized it as "already loose and broken and spalling 

out." Although he saw no evidence of any falls above.the existing roof bolts, observed no problems with the spacing of the 

bolts, and did not believe that the spalling affected the effectiveness of the roof bolts which were in place, he nonetheless 

concluded that the roof was starting to deteriorate and needed 

immediate additional support. Additional roof supports were in 

fact installed to abate the condition. 

The inspector stated that the rock which had fallen from the 

roof area in question had fallen out between and around the roof 

bolts and plates, and he described the sizes of the rocks as 

"from small pieces, one to two inches, to three inches, maybe 

thickness, to a foot or so in diameter'' (Tr. 33). Given the 

approximate 6 foot high roof, the inspector indicated that the 

rocks may or not break up once they hit the ground, and he 

believed that any rock, which he described as slate, may weigh 

"several pounds." The inspector believed that anyone struck by a 

piece of spalling rock from the roof could suffer severe 

injuries. 

Union Fire Boss Pastorial, corroborated the inspector's 

observations of the roof conditions in question, and the respondent 1 s general mine supervisor, John Metz, confirmed that he has 

known Mr. Pastorial for 15 years and that he respected his judgment with respect to roof conditions. Mr. Pastorial confirmed 

that when he first observed and tagged the roof area in question 

on December 2, 1987, and when he visited it later, he found that 

it had cracked, had loose rock, and had deteriorated to the point 

where it needed additional support. He described some of the 

rocks which had fallen from the "center of the roof" as 2 feet 

long, 2 or 3 inches thick, and 6 to 8 inches wide, and he 

observed a crack or "ripper" approximately 3 feet wide which 

extended some 16 feet across the entry. Mr. Pastorial believed 

that during the intervening period when he first observed the 

roof, and the day of the inspection, the roof had deteriorated 

further. He observed more rock materials and evidence of further 

spalling on the mine floor, and he speculated that this was the 

result of some movement or shifting of the roof. He believed 

that a roof fall was possible anytime deteriorated roof conditions are present, and he agreed with the inspector that a roof 

fall would likely occur at an intersection because it is the 

weakest part of the entry. 

The inspector's observations with respect to the roof conditions are also corroborated by the respondent's safety assistant 

Dave Stout. Although he characterized the crack in the roof as a 

"ripper," Mr. Stout confirmed that this condition is the result 

of roof spalls due to the shifting of the laminated roof shell 

1726 
which causes it·to break and "spall out." Mr. Stout stated that 

the roof was broken, that rocks had fallen from between the 

bolts, and he observed loose rocks within the immediate "ripper" 

shell, and "big pieces of flat shale or slate" on the floor. 

Although Mr. Stout stated that the roof on either side of the 

ripper was intact and unbroken, and shift foreman Bevilock, who 

went to the area after the order was issued, stated that he 

sounded the roof on both sides of the ripper, he did not sound or 

otherwise test the roof area which was cracked and broken, 

although it was customary to do so. 

Mine Supervisor Metz, who never viewed the conditions, 

confirmed that the mine roof top is so unpredictable, that rocks 

falling from the roof top are not uncommon occurrences {Tr. 163). 

He also characterized a "ripper" as "some type of movement in the 

bolt or in the top," and stated that the roof bolt itself does 

not move unless the top moves {Tr. 147-148). 

Foreman Bevilock, who viewed the conditions for the first 

time after the order was issued, did not consider the roof to be 

hazardous because "it wasn't a place that was working at the 

time" {Tr. 137). He described the term "working" as movement 

within the roof, and he had no idea when the roof had "last 

worked" or when it would next "work." He did not consider the 

rocks which had fallen to be a "major fall," and although he 

confirmed that small pieces of rock falling or breaking off from 

the top of the roof is an indication of "falling materials," he 

did not observe any materials falling while he was there. In my 

view, the fact that Mr. Bevilock did not actually observe rocks 

falling from the roof area at the precise moment he was there is 

immaterial to any determination as to whether the roof had deteriorated to the point where it was not safe and posed a reasonable potential for additional "working'' and fall of additional 

rock materials. I venture a guess that if Mr. Bevilock had 

observed rocks falling from the roof while he was there with the 

inspector, they would have beat a hasty retreat from the area, 

and the inspector would have issued an imminent danger order. 

Section 75.1704 contains two basic requirements with respect 

to escapeways. The first requirement is that an escapeway be 

maintained to insure passage of miners at all times. The evidence in this case reflects that the escapeway was passable and 

could be travelled, and that there were no physical obstructions 

to prevent miners from using it in an emergency. The rock materials which had fallen from the roof did not block the escapeway, 

and the inspector confirmed that this would not have impeded 

travel. 

The second requirement found in section 75.1704 is that 

escapeways be maintained in a safe condition. While it is true 

that the area was not dangered off, and the witnesses all indicated that they did not believe their safety was in jeopardy 

1727 
while they were in the area during the inspection, the fact 

remains that the roof was deteriorating and was apparently shifting and taking weight, resulting in spalling and the breaking of 

rocks from around the roof bolts and plates. The roof also 

contained a "ripper" or crack which had not been tested or otherwise supported with timbers, and the credible testimony of the 

fire boss Pastorial establishes that additional rocks had fallen, 

and that the roof had deteriorated further from the time he first 

noted it and the time of the inspection. Under all of these 

circumstances, and given the existing roof conditions found by 

the inspector at the time of his inspection, I conclude and find 

that the roof area at the cited Station No. 17845, was not maintained in a safe condition as required by section 75.1704. I 

further conclude and find that a violation of this standard has 

been established by a preponderance of the credible testimony and 

evidence, and the inspector's finding in this regard IS AFFIRMED. 

Significant and Substantial Violations 

A "significant and substantial" violation is described in 

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

as could significantly and substantially contribute to the cause 

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

30 C.F.R. § 814(d) (1). A violation is properly designated significant and substantial "if, based upon the particular facts 

surrounding the violation there exists a reasonable likelihood 

that the hazard contributed to will result in an injury or illness of a reasonably serious nature." Cement Division, National 

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

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

Commission explained its interpretation of the term "significant 

and substantial" as follows: 

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

under National Gypsum the Secretary of Labor must 

prove: (1) the underlying violation of a mandetory 

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

a measure of danger to safety-contributed to by the 

violation; (3) a reasonable likelihood that the hazard 

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

reasonable likelihood that the injury in question will 

be of a reasonably serious nature. 

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

1129, the Commission stated further as follows: 

We have explained further that the third element 

of the Mathies formula "requires that the Secretary 

establish a reasonable likelihood that the hazard 

contributed to will result in an event in which there 

1728 
' is an injury." U.S. Steel Mining Co., 6 FMSHRC 1834, 

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

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

is the contribution of a violation to the cause and 

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

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

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

The question of whether any particular violation is significant and substantial must be based on the particular facts 

surrounding the violation, including the nature of the mine 

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

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

(December 1987). 

The respondent argues that the violation was not significant 

and substantial, and in support of this conclusion it cites the 

testimony of the witnesses who were of the opinion that their 

safety was not in danger in the roof area in question. It also 

cites the testimony of fire boss Pastorial who indicated that 

while it was possible, he did not feel that it was particularly 

likely that he could have been injured, and his testimony that he 

saw no reason for closing the area and only put the tag up to 

caution people to be careful, but would have closed the area if 

it were "a more dangerous situation." Respondent also cited the 

fact that the weekly examination books did not indicate that the 

roof condition had gotten progressively worse, and the testimony 

by the section foreman and Mr. Pastorial that the roof was not 

"popping or cracking," thus indicating that the condition did. not 

pose an immediate danger. 

The respondent discounts the inspector's testimony that he 

considered the violation to be significant and substantial 

because a fire boss could be hit by pieces of spalling rock while 

he walked in the area, and takes the position that such an occurrence was not reasonably likely because the weekly mine examiner, 

the only person who would have travelled the area, other than an 

inspector, was aware of the condition and would only be in the 

area "a few seconds a week." With regard to any miners using the 

escapeway in the unlikely event of a mine disaster, respondent 

asserts that they only would have been in the roof area "for less 

than a minute." 

With regard to Mr. Pastorial's testimony, while it is true 

that he did not believe he was exposed to a roof fall hazard, his 

testimony was qualified and must be considered in context. His 

belief that he was not exposed to any hazard was based on the 

fact that rock had already fallen, that the roof was not "working" when he passed under it for a few seconds, and that the roof 

had not fallen on him. He went on to state that "it could have 

fell on me," and the fact that it did not "doesn't mean that it 

1729 
couldn't have fell in between the time I did the examination and 

the next week" (Tr. 103). As for the inspector's testimony that 

a weekly examiner would have been aware of the condition, he 

further explained that notwithstanding this fact, a hazard 

exposure still existed "anytime you travel through" the area, and 

that the section work crew consisting of approximately 10 miners 

would be exposed to the hazard in the event they had to use the 

escapeway in an emergency (Tr. 54). 

The Commission has taken note of the fact that mine roofs 

are inherently dangerous and that even good roof can fall without 

warning. Consolidation Coal Company, 6 FMSHRC 34, 37 (January 

1984). It has also stressed the fact that roof falls remain the 

leading cause of death in underground mines, Eastover Mining Co., 

4 FMSHRC 1207, 1211 & n. 8 (July 1982); Halfway Incorporated, 

8 FMSHRC 8, 13 (January 1986); Consolidation Coal Company, supra. 

In the Consolidation Coal Company case, supra, the 

Commission affirmed my "S&S" finding concerning an over-wide roof 

bolting pattern which had existed along a supply track for a 

period of 6-months, and stated that "[T]he fact that no one was 

injured during that period does not ipso facto establish that 

there was not a reasonable likelihood of a roof fall." 

In U.S. Steel Mining Company, Inc., 6 FMSHRC 1369, 1376 (May 

1984), Judge Melick found that a hazardous roof condition was 

significant and substantial notwithstanding testimony from a mine 

foreman that it was unlikely that the roof would fall "right 

away," and his belief that the condition was not unsafe because 

he and the inspector were under the roof while taking certain 

measurements. In RB J Coal Company, Inc., 8 FMSHRC 819, 820 

(May 1986), Judge Melick cited Mathies Coal Company, 6 FMSHRC 1 

(1984), in support of his finding that a hazardous roof condition 

constituted a significant and substantial violation even in the 

absence of an "immediate hazard." 

In Halfway Incorporated, supra, the Commission upheld a 

significant and substantial finding concerning a roof area which 

had not been supported with supplemental support, and ruled that 

a reasonable likelihood of injury existed despite the fact that 

miners were not directly exposed to the hazard at the precise 

moment of the inspection. In that case, the Commission stated as 

follows at 8 FMSHRC 12: 

[T]he fact that a miner may not be directly exposed to 

a safety hazard at the precise moment that an inspector 

issues a citation is not determinative of whether a 

reasonable likelihood for injury existed. The operative time frame for making that determination must take 

into account not only the pendency of the violative 

condition prior to the citation, but also continued 

1730 
normal mining operations. National Gypsum, supra, 

3 FMSHRC at 825; U.S. Steel Mining Co., Inc., 6 FMSHRC 

1573, 1574 (July 1984). 

In the instant case, although Mr. Pastorial indicated that 

he was concerned that a roof fall may have impeded the exit of 

miners down the escapeway, and that roof falls have occurred on 

three or four occasions in escapeways resulting in the restriction of the escapeway, he was also aware of prior instances where 

miners have been injured by rocks falling from the roof. He also 

believed that since the intersection is the weakest part of the 

entry, any roof fall would likely occur at such a location. 

Inspector Bowers testified that it was reasonably likely 

that anyone struck by a piece of spalling or falling rock would 

suffer serious injures, and that during his experience as an 

inspector, he was aware of serious injuries and death resulting 

from people being struck by falling rocks. In making his significant and substantial finding, he confirmed that he considered 

the fact that the roof had deteriorated, and that it was loose, 

broken, and spalling. He also considered the fact that the cited 

roof area was located next to an intersection which was larger 

than the entry, and where the roof would be weaker, and the fact 

that the existence of the deteriorating roof conditions during 

the time period prior to his inspection increased the likelihood 

of further deterioration and worsening of the condition (Tr. 51). 

As noted earlier, mine supervisor Metz confirmed that the mine 

roof top is so unpredictable that rocks falling from the top are 

not uncommon occurrences, and that the existence of a roof 

"ripper" indicates that there is some type of movement in the 

roof bolt or the top. 

After careful consideration of all of the testimony and 

evidence adduced in this case, I agree with the inspector's 

significant and substantial finding. I conclude and find that 

the cited roof conditions, which clearly establish that the roof 

was deteriorating to the point where rocks had spalled or fallen 

from between the existing roof supports and/or from the "ripper" 

or crack which extended across the entry at the intersection in 

question, posed a discrete roof or rock fall hazard. I further 

conclude and find that the hazard contributed to by this hazardous roof condition would likely result in an injury, and that 

anyone struck by rock falling from the roof for an approximate 

distance of 6 to 6-1/2 feet, which was the approximate height of 

the roof area in question, would likely suffer injuries of a 

reasonably serious nature. Accordingly, the inspector's significant and substantial finding with respect to the violation in 

question IS AFFIRMED. 

1731 
The Unwarrantable Failure Issue 

The governing definition of unwarrantable failure was 

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

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

295-96: 

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

standard was caused by an unwarrantable failure to 

comply with such standard if he determines that the 

operator involved has failed to abate the conditions or 

practices constituting such violation, conditions or 

practices the operator knew or should have known 

existed or which it failed to abate because of a lack 

of due diligence, or because of indifference or lack of 

reasonable care. 

In several recent decisions concerning the interpretation 

and application of the term "unwarrantable failure," the 

Commission further refined and explained this term, and concluded 

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

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

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

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

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

Mining case, the Commission stated as follows in Youghiogheny & 

Ohio, at 9 FMSHRC 2010: 

We stated that whereas negligence is conduct that 

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

unwarrantable conduct is conduct that is described as 

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

unwarrantable failure by a mine operator as aggravated 

conduct constituting more that ordinary negligence, do 

unwarrantable failure sanctions assume their intended 

distinct place in the Act's enforcement scheme. 

In Emery Mining, the Commission explained the meaning of the 

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

We first determine the ordinary meaning of the 

phrase "unwarrantable failure." "Unwarrantable" is 

defined as "not justifiable" or "inexcusable." 

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

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

International Dictionary (Unabridged) 2514, 814 (1971) 

("Webster's"). Comparatively, negligence is the 

failure to use such care as a reasonably prudent and 

careful person would use and is characterized by 

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

1732 
Black's Law Dictionary 930-31 (5th ed. 1979). Conduct 

that is not justifiable and inexcusable is the result 

of more than inadvertence, thoughtlessness, or 

inattention. * * * 

The issue here is whether or not the respondent's failure to 

address the roof conditions in the cited escapeway location 

constituted aggravated conduct exceeding ordinary negligence. 

Inspector Bowers made a finding that the violation was the result 

of "high negligence," but did not result from any "deliberate 

activity" by the respondent. He confirmed that he based his 

negligence finding on the fact that the roof condition had been 

noted in the weekly examination books which are required to be 

read and signed by the mine foreman and superintendent. He also 

confirmed that his unwarrantable failure order was consistent 

with MSHA's recently published guidelines which became effective 

on July 1, 1988, after the order was issued. These guidelines 

are found in MSHA Program Policy Manual, Volume I, Section 104, 

pg. 6, (exhibit G-7), which state in relevant part as follows: 

* * * * * * * 

Factors to look for when making an unwarrantablefail ure-to-comply determination include the amount of 

time the violation has been left uncorrected, whether 

the hazard created by the violation is particularly 

serious thus warranting increased attention from the 

operator to prevent or correct it, whether the violation is repetitious of a previous violation, whether 

the violation was a result of deliberate activity by 

the operator, or whether the operator knew or had 

reason to know that its action(s) violated a mandatory 

standard. Citations and orders should clearly document 

the facts relied upon by the inspector in making the 

determination. Any one of the circumstances above may 

constitute sufficient grounds for an unwarrantable 

failure citation or order. 

Mr. Bowers reviewed the aforementioned "factors" which he 

believed justified the unwarrantable failure order. Since the 

condition had existed and had been noted in the examination books 

for over a month from December 2, 1987, to January 6, 1988, he 

believed that the respondent had more than enough time to take 

corrective action, and he noted that abatement was achieved 

within one-half hour to an hour after the available timbers were 

brought to the area (Tr. 47). 

Mr. Bowers stated that he also considered the fact that a 

roof fall could have occurred during the intervals in the weekly 

examinations, and in the event of such a fall, it could have 

impeded travel through the entry, and that it was possible that 

anyone walking through the area could be struck by a spalling 

1733 
rock and suffer injuries ~Tr. 47). He also considered the fact 

that the violation was repetitious, and he explained that he had 

previously issued several violations and orders at the mine 

because of uncorrected conditions which had been noted in the 

mine examination books. He was not certain that any of these 

prior citations or orders related to intake escapeways, but did 

recall that some of them were issued for uncorrected conditions 

in the track, return entries, and other different areas of the 

mine (Tr. 47-48). 

Mr. Bowers concluded that the respondent "knew or should 

have known that its actions violated a mandatory standard" 

because the roof condition had been reported in the mine examination books which are required to be read and signed by the mine 

foreman or superintendent (Tr. 49). He confirmed that while he 

could have issued a section 104(a) citation, and allowed the 

respondent at least 1 day to correct the conditions, he did not 

do so because the condition had been noted in the books and the 

respondent knew about it. He did not believe that the condition 

constituted an imminent danger because "I didn't feel that it was 

imminent at the time that I seen it" (Tr. 49). When asked 

whether or not the respondent "knew or could have known that the 

condition posed a hazard or presented a dangerous condition, 

Mr. Bowers responded "That I don't know whether they would or 

not" (Tr. 52). 

Fire boss Pastorial testified that his usual practice after 

observing further deterioration in a roof area which he had 

previously noted in the examination books as requiring additional 

support is to speak with the mine foreman and superintendent and 

ask them to take care of the matter, or write a note to Metz (Tr. 

102, 108). Mr. Pastorial could not recall that he did this and I 

find no credible evidence to support any conclusion that he 

personally contacted mine management and apprised them of the 

fact that the roof area which he had previously tagged and 

observed had deteriorated further. In hindsight, Mr. Pastorial 

commented that "when it went over a week or two weeks, I should 

have contacted MSHA and told them that I have a place that needs 

timbered and I can't get management to timber it and I didn't do 

that" (Tr. 117). 

Mr. Pastorial confirmed that it was not his usual practice 

to describe the specific roof conditions requiring additional 

support when he makes such an examination book entry because he 

assumes that mine management understands the meaning of a notation "needs additional roof support." He explained that he and 

superintendent Metz generally discuss the logistical arrangements 

and roof support materials required to correct such a recorded 

roof condition, but he could not document that this was done in 

this case (Tr. 165). He stated further that "If I indicate in 

that book that it needs additional roof support, then the top is 

bad. Why would I put in there that it needs additional roof 

1734 
support if the top wasn't bad? To me that means the same thing" 

(Tr. 166). When asked whether he disagreed with Mr. Metz' conclusion that an examination book entry "can be traveled" means 

that "it is safe to travel," Mr. Pastorial responded "No. If 

that's the way he feels and that's how he understands, that's his 

opinion and I can't disagree with that" (Tr. 166). 

Mine Supervisor Metz confirmed that he did not view the roof 

conditions at the time the order was issued, and he could not 

recall being in the area prior to the inspection. He also could 

not recall whether anyone specifically told him that the area was 

not safe to travel, or whether he ever personally discussed the 

condition with Mr. Pastorial. Mr. Metz was of the opinion that 

the phrase "can be traveled," which appeared as notations by the 

fire bosses in the mine examination books, meant that there was 

nothing to prevent anyone from travelling the escapeway, and he 

assumed that the phrase also meant "safe to travel." In commenting on the notations made by three fire bosses in the examination 

books that the cited location required additional roof support, 

Mr. Metz alluded to the many entries in the mine and the fact 

that he reviews many such notations on a day-to-day basis. He 

conceded, however, that a notation "needs additional roof 

support" would indicate to him "that there was something there 

that needs some attention." He explained that given the priorities dictated by notations in the 28 to 30 examination books 

which he must sign, corrective action to provide the additional 

roof support would be taken "as fast as possible," taking into 

account "other priorities" and his mining experience. He 

candidly conceded that he does not always make the right decision 

in addressing such matters. 

When asked about any affirmative steps he would normally 

take in response to an examination book entry that a roof area 

"needs additional roof support," Mr. Metz stated that he has had 

occasion to speak with Mr. Pastorial in such instances in order 

to seek clarification or to determine whether the condition 

needed to be addressed immediately, or whether it could "wait a 

week or ten days," but he could not recall doing that in this 

case (Tr. 163). Mr. Metz confirmed that as a norma~ practice, 

the entries made in the mine examination books by Mr. Pastorial 

and the other fire bosses with respect to any mine conditions 

only relate to conditions that they view as necessary to be taken 

care of, or conditions which they know are violations, or may 

present potential problems, and that as a general rule, they do 

not make entries which do not fall within these categories (Tr. 

150-151) . 

Mr. Metz conceded that he was familiar with mandatory standard 30 C.F.R. § 75.323, which requires that any hazardous conditions noted in the daily and weekly mine examination books be 

corrected promptly. The respondent's defense to the unwarrantable failure order is based on its assertion that Mr. Metz had no 

1735 
reason to believe that the "needs additional roof support" notations made by the fire bosses in the examination books indicated 

a hazardous roof condition requiring immediate attention, and 

that based on the fact that all of the witnesses agreed that the 

notations "can be traveled" were unclear, it was not unreasonable 

for Mr. Metz to believe or conclude that the escapeway was safe 

to travel, and that the roof area in question was not hazardous, 

and did not require further immediate attention. 

Copies of the mine examination books concerning the escapeway examinations conducted by three different fire bosses during 

the period December 2, 1987, to January 4, 1988, contain notations that additional roof support was required at the North 

Mains butts intake escapeway Station No. 17845, the identical 

location cited by the inspector in the contested order. The 

first notation was made by Mr. Pastorial on December 2, 1987, and 

subsequent identical notations were made by fire bosses Latocha 

and Eddy on December 8, 20, and 28, 1987, and January 4, 1988. 

All of the examination book pages on which these entries appear 

are signed by Mr. Metz. Mr. Metz confirmed that he is required 

to read or review all of these records, and he confirmed that he 

signed each of the pages in question. When asked whether he 

reviewed the specific pages in question, Mr. Metz responded that 

he was required to "read and countersign all books" (Tr. 145). 

Although he alluded to the fact that he is required to review 

approximately 180 examination book entries each day, I nonetheless conclude that Mr. Metz had actual or constructive notice of 

the conditions noted in the books by the fire bosses. I also 

find and conclude that from December 2, 1987, the day the roof 

condition was initially noted and tagged by Mr. Pastorial, until 

January 8, 1988, the day the order was issued, Mr. Metz was aware 

of the fact that the cited roof area was in need of additional 

roof support. 

With regard to the hazardous nature of the cited roof area, 

I have concluded and found that the conditions were unsafe, and 

that the violation was significant and substantial. I take 

particular note of the fact that Mr. Metz' opinions and conclusions concerning the hazardous nature of the roof area in question were based on his after-the-fact evaluations of the terms 

"needs additional roof support" and "can be traveled" as they 

appear in the examination books. Mr. Metz confirmed that he did 

not observe the conditions at the time the order was issued, and 

he had no recollection that he visited the area or viewed the 

conditions at any time prior to the issuance of the order. 

Although Mr. Metz indicated that he had 19 years of underground 

mining experience, he conceded that he does not always make the 

right decision, and since he did not view the roof conditions in 

question, I have serious doubts that he had any factual basis for 

making any informed judgement decision as to the actual hazards 

presented by the prevailing roof conditions without the benefit 

of personally observing the conditions. Under the circumstances, 

1736 
I have given little weight to his suggestions that the cited roof 

conditions were not hazardous. 

Although Mr. Metz was of the opinion that roof "rippers" are 

nothing "to get overly excited about" because they are common 

occurrences in the mine, he nonetheless conceded that such a 

condition would indicate to him that the roof required attention, 

and that the existence of such a condition indicates some type of 

movement of the roof top. Coupled with his admission that the 

roof is unpredictable, that rocks falling from the roof are not 

uncommon in the mine, and his knowledge that fire bosses normally 

do not make examination books entries unless they believe a 

violation has occurred, or the condition noted presented a potential problem, I have difficulty comprehending why Mr. Metz failed 

to at least visit the roof area in question at some time during 

the 30-day period that the condition existed prior to the inspection and issuance of the order, why he failed to take timely 

follow-up action to insure that the roof was provided with additional support, or why he failed to timely seek out Mr. Pastorial 

to discuss the matter with him. 

Although Mr. Metz stated that he would normally take corrective action "as fast as possible" when reviewing examination 

books entries which indicate that additional roof support was 

required in any area of the mine, he explained that any decision 

as to when such action would be taken would be based on "other 

priorities." Since he failed to elaborate further, or to explain 

what these other priorities may have been, I find nothing that 

may serve to mitigate Mr. Metz' failure to address the roof 

conditions in a more timely manner. 

MSHA's assertions that the violation was repetitious is 

unsupported by any credible evidence, and I have given it little 

weight. Although the computer print-out detailing the respondent's prior history of violations reflects 55 prior section 

104(a) citations for violations of section 75.1704, none of these 

violations were unwarrantable failure orders, and since none of 

the citations were produced, the facts and circumstances 

surrounding these violations were not forthcoming. With regard 

to the inspector's testimony that he had previously issued citations and orders to the respondent for recorded conditions that 

had been left uncorrected, no further details were forthcoming 

from the inspector, and the facts and circumstances connected 

with these allegations are not known. 

After careful consideration of all of the testimony and 

evidence in this case, I conclude and find that the inspector's 

high negligence and unwarrantable failure findings were justified. I further conclude and find that the passage of 30 days 

from the time the roof conditions were initially noted in the 

examination book until the order was issued, without any action 

1737 
whatsoever ·being taken by the respondent to address those· conditions, was an inordinate amount of time, and that Mr. Metz' 

failure to act was less than what would reasonably be expected 

from a mine supervisor, and that his failure to act was 

inexcusable and constituted a lack of due diligence and failure 

to take reasonable care. Under the circumstances, the inspector's unwarrantable failure finding IS AFFIRMED, and the contested order IS LIKEWISE AFFIRMED. 

Size of Business and Effect of civil Penaltv Assessment on the 

Respondent's Ability to Continue in Business 

Based on the stipulations by the parties, I conclude and 

find that the respondent is a large mine operator and that the 

civil penalty assessments for the violations in question will not 

adversely affect the respondent's ability to continue in 

business. 

History of Prior Violations 

The respondent's history of prior violations, as reflected 

by an MSHA computer print-out, reflects that for the period 

January 1, 1986 through December 31, 1988, the respondent paid 

$346,794, for 1,592 violations issued at the Martinka No. 1 Mine. 

One-Thousand five-hundred and fifty (1,550), of these paid violations were for violations found to be significant and substantial 

(S&S), and fifty-five (55) were for violations of mandatory 

safety standard 30 C.F.R. § 75.1704. For an operation of its 

size, the respondent does not have a very good compliance record, 

particularly with respect to the escapeway requirements found in 

section 75.1704. Although I have given little weight to these 

prior violations for purposes of my unwarrantable failure finding, I have considered them for purposes of the civil penalty 

assessment which I have made for the contested violation which 

has been affirmed. 

Good Faith Compliance 

The parties have stipulated that the violation was abated in 

good faith by the respondent, and I conclude and find that the 

respondent timely abated the violation in good faith after 

receiving notice of the violation. 

Negligence 

On the basis of my unwarrantable failure findings and conclusions, which are herein incorporated by reference, I conclude 

and find that the violation resulted from a high degree of negligence, and an unwarrantable failure by the respondent to comply 

with the requirements of the cited standard. 

1738 
Gravity 

In view of my "S&S" findings and conclusions with respect to 

the contested order, I conclude and find that the violation was 

serious. 

Civil Penalty Assessment 

On the basis of the foregoing findings and conclusions, and 

taking into account the requirements of section llO(i) of the 

Act, I conclude and find that a civil penalty assessment in the 

amount of $2,000, is reasonable and appropriate for a violation 

of mandatory safety standard 30 C.F.R. § 75.1704, as stated in 

section 104(d) (2) Order No. 2895499, January 6, 1988. 

ORDER 

The respondent IS ORDERED to pay a civil penalty assessment 

in the amount of $2,000, for the aforemention violation of 

30 C.F.R. § 75.1704, and a civil penalty assessment in the amount 

of $50, in settlement of the modified section 104(a) Citation 

No. 2895079, 30 C.F.R. § 75.1403-9(c), January 6, 1988. Payment 

of these civil penalty assessments shall be made to MSHA within 

thirty (30) days of the date of this decision and order, and upon 

receipt of payment, this proceeding is dismissed. 

Distribution: 

~f'ge // ?/'J,,£ A. 

C! 

Koutras 

~/~ Administrative Law Judge 

Therese Salus, Esq., Office of the Solicitor, U.S. Department of 

Labor, Room 14480 Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

David M. Cohen, Esq., American Electric Power Service 

Corporation, Southern Ohio Coal Company, P.O. Box 700, Lancaster, 

OH 43130-0700 (Certified Mail) 

/fb 

1739 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRA'rION (MSHA), 

ON BEHALF OF RANDY VARNEY, 

Complainant 

v. 

ROSE ENERGY, INC., 

REX FOUGHT, ROBERT CURTIS, 

Respondents 

1989 

DISCRIMINATION PROCEEDING 

Docket No. WEVA 89-224-D 

Hope CD 89-6 

Mine No. 1 

DECISION APPROVING SETTLEMENT 

On August 9, 1989, the Secretary filed a Motion to Approve 

Settlement. This Motion indicates that the above matter has been 

settled by the Parties. I have read the Settlement and Release 

attached to the Motion, and find it fairly disposes 0£ the issues 

herein. Accordingly, the Secretary's Motion is GRANTED. 

It is ORDERED that the Parties shall abide by all the terms 

of the Settlement Agreement dated July 26, 1989, and attached to 

the Secretary's Motion To Approve Settlement. It is further 

ORDERED that the above case be DISMISSED with prejudice. 

Distribution: 

Robert S. Wilson, Esq., U.S. Department of Labor, Office of the 

Solicitor, 4015 Wilson Boulevard, Room 516, Arlington, VA 

22203 (Certified Mail) 

Rose Energy, Inc., Route 6, Box 1797, Williamson, WV 25661 

(Cect.i.fied Mail) 

Mr. Rex Fought, Route 6, Box 1797, Williamson, WV 25661 (Certified Mail) 

Mr. Robert Curtis, Box 334, Switzer, WV 25647 (Certified !'1ail) 

/ml 

1740 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 11 i989 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

RUSSELL RATLIFF, and 

KENNETH MULLINS, 

Complainants 

v. 

INFERNO COALS, INC., 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

INFERNO COALS INC., 

Respondent 

DISCRIMINATION PROCEEDINGS 

Docket No. KENT 89-99-D 

MSHA Case No. PIKE CD 89-03 

Docket No. KENT 89-107-D 

MSHA Case No. PIKE CD 89-03 

MSHA Case No. PIKE CD 89-05 

No. H-8 Mine 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 89-200 

A.C. No. 15-11529-03521 

Mine H-8 

DECISIONS APPROVING SETTLEMENTS 

Before: Judge Koutras 

statement of the Proceedings 

These consolidated proceedings concern a complaint of 

alleged discrimination filed by MSHA on behalf of the complainants against the respondent pursuant to section 105(c) of the 

Federal Mine Safety and Health Act of 1977. The complaint 

alleged that the respondent discharged miners Russell Ratliff and 

Kenneth Mullins on or about December 22, 1988, for voicing their 

safety concerns to their supervisor about working alone on their 

roof-bolting machines under what they regarded as unstable roof 

conditions. MSHA subsequently amended its discrimination complaint to include a request for an assessment of a civil penalty 

in the amount of $1,800, for an alleged violation of section 

105(c) in connection with the alleged discriminatory discharge of 

both complaining miners, and it also filed the captioned civil 

1741 
penalty proceeding seeking a civil penalty assessment in the 

amount of $500, for the respondent's alleged discharge of· 

Mr. Ratliff subsequent to his reinstatement in compliance with an 

Order of Temporary Reinstatement which I issued on April 4, 1989 

(Docket No. KENT 89-99-D). 

The respondent filed timely answers denying any discriminatory actions on its part, and the cases were consolidated for 

hearing in Pikeville, Kentucky. The hearing was subsequently 

continued due .to a medical emergency of one of the parties, and 

it was rescheduled for September 11-14, 1989. However, on 

September 5, 1989, counsel for the parties advised me that they 

agreed to settle the dispute, and on September 7, 1989, they 

filed a joint motion seeking approval of their proposed settlement. Included in the motion is the settlement agreement entered 

into by the parties, and it has been signed and executed by both 

counsel, the respondent's president, and both complaining miners. 

The relevant terms of the settlement are as follows: 

1. Inferno agrees to pay Mullins the sum of five 

thousand dollars ($5,000.00) which sum represents 

payment of all claims, including lost wages in the 

amount of $4,840.00, employee benefits, and medical 

expenses. By accepting $5,000.00, Mullins agrees that 

Inferno will not have to offer reinstatement to him. 

2. Inferno agrees to pay Ratliff the sum of 

ten thousand dollars ($10,000.00) which sum represents 

payment of all claims, including lost wages in the 

amount of $5,720.00, employee benefits, and medical 

expenses. By accepting $10,000.00, Ratliff agrees that 

Inferno will not have to offer reinstatement to him. 

3. The records maintained by Inferno in Mullins' 

and Ratliff's personnel and company files shall be 

completely expunged of all information relating to the 

matters being litigated herein. 

4. In the event that Inferno is contacted by a 

prospective employer of either Mullins or Ratliff at 

any time in the future, Inferno, its owners, officers, 

agents, and those acting in concert with them shall not 

give Mullins or Ratliff a negative or unfavorable 

reference regarding their job performance while 

employed by Inferno. When contacted by a prospective 

employer of either Mullins or Ratliff, Inferno, its 

owners, officers and agents, and those acting in 

concert with them shall give such prospective employer 

only their job title(s) and dates of employment. 

5. Inferno will provide signed letters on its 

corporate stationery to Ratliff and Mullins which shall 

1742 
state the dates of each miner's employment, the jobs 

performed for Inferno, the training each received, and 

that they had no unauthorized absences from work. The 

letters will state further that Ratliff was laid off as 

part of a general workforce layoff which was necessitated by adverse economic conditions. This general 

workforce layoff was necessitated by economic factors 

affecting this mine. Further, the letter for Mullins 

will state that he left the employment of Inferno when 

he found other employment. 

6. Inferno will not be required to offer employment and/or reinstatement to either Mullins or Ratliff 

at any time in the future. 

7. In light of the difficulties and contingencies 

necessarily attendant to the litigation of the subject 

cases, the signatories to this Motion agree that the 

proposed settlement of this case is appropriate and 

fair under the circumstances. 

8. By entering into this agreement, Inferno does 

not admit that Inferno violated Section 105(c) of the 

Act or violated the Temporary Reinstatement Order 

issued on April 4, 1989, or any other provision of the 

Act. 

9. It is the parties' belief that approval of 

this settlement is in the public's interest and will 

further the intent and purpose of the Federal Mine 

Safety and Health Act of 1977. 

With regard to the proposed settlement of the civil penalty 

case, including MSHA's civil penalty proposal filed as part of 

its amended discrimination complaint, MSHA's counsel has provided 

information concerning the six statutory civil penalty criteria 

found in section llO(i) of the Act, and a discussion and disclosure as to the circumstances on which its civil penalty 

assessment proposals are based. · 

I take note of the fact that the respondent disputed the 

allegation that it had discharged the miners in violation of the 

Act, and took the position that the complaining miners voluntarily left their jobs. With regard to the alleged failure by 

the respondent to comply with my reinstatement order concerning 

Mr. Ratliff, I take note of the fact that the inspector issued 

the citation on April 26, 1989, upon instructions by his supervisor after apparently receiving information that Mr. Ratliff had 

again been discharged on April 25, 1989. The information provided by the parties as part of their motion reflects that the 

mine superintendent advised the inspector that Mr. Ratliff had 

1743 
not been discharged, and that he had quit his job on April 25, 

1989, returned to work the next day, April 26, 1988, and voluntarily left the mine again that day. On April 27, 1989, during 

the course of a regular inspection of the mine, the inspector 

observed that Mr. Ratliff was again at work underground, and he 

terminated the citation which he had issued the day before. 

Included with the proposed settlement disposition of the 

discrimination complaint is a proposed settlement of the civil 

penalty assessment initially filed and proposed by MSHA for the 

alleged violation of section 105(c) of the Act, and the alleged 

violation by the respondent for allegedly discharging Mr. Ratliff 

following his reinstatement in compliance with my reinstatement 

order. The respondent has agreed to pay a civil penalty assessment of $100 in settlement of the former alleged violation, and a 

civil penalty assessment of $50 for the latter alleged violation. 

Conclusion 

After careful consideration of the settlement terms and 

conditions executed by the parties and the complaining miners in 

this proceeding, I conclude and find that it is a reasonable 

resolution of the complaint filed by MSHA on behalf of the 

miners. It seems clear to me that all parties are in accord with 

the agreed upon settlement disposition of the dispute, and I see 

no reason why it should not be approved. With regard to the 

proposed settlement of the civil penalty proceeding, I conclude 

and find that it is reasonable and in the public interest, and I 

find ~o reason for not approving it. 

ORDER 

The joint motion IS GRANTED, and the proposed settlements 

ARE APPROVED. The respondent IS ORDERED to fully comply forthwith with the terms of the settlement, and it is expected to 

immediately pay to Mr. Mullins and Mr. Ratliff the agreed upon 

monetary settlements of their claims. The respondent IS FURTHER 

ORDERED to pay to MSHA civil penalty assessments in the amount of 

$150 in satisfaction of the alleged violations in question, and 

payment of the penalties is to be made within thirty (30) days of 

the date of these decisions and order. Upon receipt of payment 

by the complaining miners and MSHA, these proceedings are 

dismissed. 

_/ ~~ / /. . 

/ .,,, - - . /,f' / . · '/l '/-•11.(· if <.Yf/l,t:<;:; ..V 

G~orge jlL Koutras 

P Admin.:iktrative Law Judge 

1744 
Distribution: 

Anne T. Knauff, Esq., Office of the Solicitor, U.S. Department of 

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

(Certified Mail) 

Charles J. Baird, Esq., Baird and Baird, P.S.C., 415 Second 

Street, P.O. Box 351, Pikeville, KY 41501 (Certified Mail) 

Bernard F. Burdzinski II, Burdzinski and Burdzinski, 368 Nutt 

Road, Spring Valley, OH 45370 (Certified Mail) 

/fb 

1745 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 111989 

SECRETARY OF LABOR, MSHA, 

on behalf of 

EUGENE McCARIO, 

Complainants 

v. 

THREE STAR DRILLING & 

PRODUCTION CORPORATION, 

Respondent 

. . 

. . 

. . 

DISCRIMINATION PROCEEDING 

Docket No. LAKE 89-62-DM 

MD 88-08 

D.A.D. Well No. l 

DECISION APPROVING SETTLEMENT 

Before: Judge Fauver 

The parties have moved for approval of a settlement 

agreement and dismissal of this case. I have considered the 

representations and documentation submitted and I conclude 

that the proffered settlement is consistent with the purposes 

of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. 

§ 801 et seg. 

ORDER 

WHEREFORE IT IS ORDERED that the motion for approval of 

settlement is GRANTED and this proceeding is DISMISSED. 

'!JJU....:. William --::r~"~ Fauver 

Administrative Law Judge 

Distribution Certified Mail: 

Rafael Alvarez, Office of the Solicitor, U. S. Department of 

Labor, 230 South Dearborn Street, Chicago, IL 60604 

(Certified Mail) 

James B. Wham, Esq., Wham & Wham, 212 East Broadway, P.O. Box 

549, Centralia, IL 62801 (Certified Mail) 

iz 

1746 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 12 1989 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

JIM WALTER RESOURCES, 

INCORPORATED, 

Respondent 

DECISION 

Docket No. SE 89-12 

A.C. No. 01-01247-03817 

Docket No. SE 89-32 

A.C. No. 01-01247-03828 

No. 4 Mine 

Appearances: William Lawson, Esq., Office of the Solicitor, U.S. 

Department of Labor, Birmingham, Alabama, for 

Petitioner; 

Harold D. Rice, Esq., Robert Stanley Morrow, Esq., 

Jim Walter Resources, Inc., Birmingham, Alabama, 

for Respondent. 

Before: Judge Maurer 

These cases are before me upon petitions for assessment of 

civil penalty under Section 104{d) of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801, et~., {the Act). 

Pursuant to notice, a hearing was held in Birmingham, 

Alabama, on May 9, 1989. Prior to the commencement of testimony 

at the hearing, the parties advised me that they had a proposed 

settlement of one of the three citations at issue. Citation No. 

9984577 was originally assessed at $241 for a violation of 

30 C.F.R. § 70.lOO{a). A reduction in penalty to $50 is proposed 

for that respirable dust violation because further investigation 

revealed that the exposed employees were wearing personal 

protective equipment {respirators). In light of that additional 

information, MSHA agreed to delete the significant and 

substantial CS&S) characterization of the violation. I have 

considered the representations submitted by motion on the record 

in this case, and have concluded that the proffered settlement is 

appropriate under the statutory criteria set forth in Section 

llO(i) of the Act. I so approved the petitioner's motion from 

the bench at the hearing. Pursuant to the Rules of Practice 

before this Commission, this written decision confirms the bench 

decision 1 rendered at the hearing, approving the partial 

settlement of this case. 

1747 
The aforementioned partial settlement did not include 

Citation Nos. 3010179 or 3187766 which both allege identical 

violations of 30 C.F.R. § 75.1718 and propose a civil penalty of 

$20 each. Two different inspectors issued the above two 

citations, and in order to avoid having to call the second 

inspector to testify to essentially an identical fact situation, 

the parties agreed to actually try only Citation No. 3010179. 

They agreed that whatever that outcome should be, would also 

control the result concerning Citation No. 3187766. 

STIPULATIONS 

The parties stipulated to the following, which I accepted 

(Tr. 19-20): 

1. Jim Walter ~esources, Inc. is the owner and operator of 

the subject mine. 

2. The operator and the mine are subject to the 

jurisdiction of the Federal Mine Safety and Health Act of 1977. 

3. The Administrative Law Judge has jurisdiction to hear 

this case. 

4. The Inspector who issued the citation was a duly 

authorized representative of the Secretary. 

5. A true and correct copy of the subject citation was 

properly served upon the operator. 

6. The copy of the subject citation is authentic and may be 

adinitted into evidence for the purpose of establishing its 

issuance, but not for the purpose of establishing truthfulness or 

relevance of any statements found therein. 

7. Imposition of a penalty will not affect this operator's 

ability to continue in business. 

8. The operator's history of prior violations is average. 

9. The operator is large in size. 

10. The operator abated the violation in good faith. 

DISCUSSION AND FINDINGS 

Citation No. 3010179 sets forth the subject condition as 

follows: 

Potable drinking water was not provided for the active 

No. 2 Longwall Section. 

1748 
The Citation charges a violation of 30 C.F.R. ·§ 75.1718 

which provides: 

An adequate supply of potable water shall be provided 

for drinking purposes in the active workings of the 

mine, and such water shall be carried, stored, and 

otherwise protected in sanitary containers. 

Mr. David McAteer testified that he is a UMWA safety 

committeeman at the No. 4 mine. On the day of the inspection 

that culminated in the issuance of the instant citation, he told 

Inspector Meredith that they were having problems getting the 

company to provide potable water on the sections and asked for 

his help. 

Inspector Meredith testified that he issued the citation at 

bar on August 4, 1988, when he did not find a container of any 

kind with potable drinking water on the No. 2 longwall section. 

At the time he was outby the section in the area where they keep 

the emergency sled, emergency supplies, first aid equipment, and 

nor~ally, their potable drinking water. The inspector further 

testified (Tr. 32, 38-9): 

I asked Mr. Fillibaum, who is the evening shift 

assistant mine foreman at that time, if he knew where 

any potable water was, because there wasn't any on the 

sled. And Mr. Fillibaum, if I recall, he said, "Well, 

you know everybody brings their water." And I says, 

"~o, I don't know that, but you're going to have to 

provide water here," because this is normally where 

they have it, is on the emergency sled. 

I asked him where the potable drinking water was they 

were supposed to provide and he said, "We don't have 

any up here. We'll have to get some sent in from the 

outside." 

Mr. John Fillibaum testiEied on behalf of the operator. He 

stated that in his opinion there was an adequate supply of 

potable drinking water on the section, because each miner carries 

his own drink of choice. 

I find that the preponderance of the evidence demonstrates 

that there was not an adequate supply of potable drinking water 

on the No. 2 longwall section as charged by the Secretary. 

The regulation speaks of an "adequate" supply of drinking 

water. This incorporates a requirement that the water be readily 

available to the miners and I believe that the regulation also 

contemplates that the water be provided by the operator. It is 

not sufficient compliance to shift this regulatory burden to the 

individual miner to furnish his own water, even if, as a 

practical matter, most miners do furnish their own personal 

drinks. 

1749 
On this basis, I conclude that a violation existed, and I 

have considered the statutory criteria set forth in Section 

llOCi) of the Act for determining the appropriate penalty for 

this violation. Under the facts and circumstances present in 

this record, I find that the $20 penalty proposed by the 

Secretary is the appropriate penalty for the viol3tion. By 

agreement of the parties, I make the same findings with regard to 

Citation No. 3187766. 

ORDER 

Accordingly, it is ORDERED that Citation ~os. 9984577, 

3010179 and 3187766 are AFFIRMED. ~he allegation in Citation 

~o. 9984577 that the violation was significant ana substantial is 

stricken. 

It is further ORDERED that the following civil penalties are 

assessed: 

Citation No. 

9984577 

3010179 

3187766 

Penalty 

$50 

$20 

$20 

It is further ORDERED that the operator pay $90 within 30 

days from the date of this decision as civil penalties for the 

violations found herein. 

Distribution: 

William Lawson, Esq., U.S. Department of Labor, Office of the 

Solicitor, Suite 201, 2015 Second Avenue North, Birmingham, 

~L 35203 (Certified Mail) 

Barold D. Rice, Esq., Robert Stanley Morrow, Esq., Jim Walter 

Resources, Inc., Post Office Box 830079, Birmingham, AL 

35283-0079 (Certified Mail) 

/ml 

1750 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

GARY ·rHOMPSON, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DISCRIMINATION PROCEEDING 

Complainant 

v. 

ISLAND CREEK COAL COMPANY, 

Respondent 

Before: Judge Maurer 

DECISION 

Docket No. KENT 88-162-D 

MADI CD 88-05 

No. 11 Mine 

On February 11, 1988, the Complainant, Gary Thompson, filed 

a complaint of discrimination under section 105(c) of the Federal 

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

(hereinafcer referred to as the "Act") with the Secretary of 

Labor, Mine Safety and Health Administration (MSHA) against the 

Island Creek Coal Company. That complaint was denied by MSHA and 

Mr. ·rhompson thereafter filed a complaint of discr imina ti on wi t~1 

the Commission on his own behalf under section 105(c)(3) 0£ the 

Act. Mr. Thompson alleges that he was discriminated against in 

violation of section 105(c) of the Act because he was discharged 

on February 8, 1988, by Island Creek Coal Company for failing to 

report to work on February 3, 1988 and later submitting an 

admittedly invalid doctor's excuse for his absence. He had been 

working up until that time under the terms of a Last Chance 

Agreement because of excessive absenteeism. Mr. Thompson admits 

that he was actually absent on February 3, 1988 due to a personal 

bankruptcy proceeding, but asserts that another employee used on 

invalid doctor's excuse but was not fired. 

Island Creek Coal Company, by counsel, has moved to dismiss 

the subject. complaint pursuant to Rule 12(b)(6) of the Federal 

Rules of Civil Procedure for failure to state a claim upon which 

relief can be granted under section 105(c) of the Act. On 

August 14, 1989, an ORDER TO SHOW CAUSE was issued by the 

und2rsigned wherein the complainant. was ordered. to show cause 

within fifteen (15) days as to why this proceeding should not be 

dismissed for "failure to state a claim for which relief can be 

granted under section 105(c)(l) of the Act." There has been no 

response received to date. 

For the purposes of ruling on Island Creek Coal Company's 

motion to dismiss, the well pleaded material allegations of the 

complaint are taken as admit.ted. 2A Moore's Federal Practice 

1751 
~12.08. A complaint should not be dismissed for insufficiency 

unless it appears to a certainty that the complainant is entitled 

to no relief under any state of facts which could be proved in 

support of a claim. Pleadings are, moreover, to be liberally 

construed and mere vagueness or lack 0£ detail is not grounds for 

a motion to dismiss. Id. 

Section 105(c}(l) of the Act provides as follows: 

No person shall discharge or in any manner 

discriminate against or cause to be discharged or cause 

discrimination against or otherwise interfere with the 

exercise of the statutory rights of any miner, 

representative of miners or applicant for employment in 

any coal or other mine subject to this Act because such 

miner, representative of miners or applicant for 

employment has filed or made a complaint under or 

related to this Act, including a complaint notifying 

the operator or the operator's agent, or the 

representative of the miners at the coal or other mine 

of an alleged danger or safety or health violation in a 

coal or other mine or because such miner, 

representative of miners or applicant for employment is 

the subject of medical evaluations and potential 

transfer under a standard published pursuant to 

3ection 101 or because such representative of miners or 

applicant for employment has instituted or caused to be 

instituted any proceedings under or related to this Act 

or has testified or is about to testify in any such 

proceeding, or because of the exercise oy such miner, 

representative of miners or applicant for employment on 

behalf of himself or others of any statutory right 

afforded by this Act. 

In order to establish a prima facie violation of 

section 105(c)(l) the complainant must prove that he engaged in 

an activity protected by that section and that his discharge was 

motivated in any part by that protected activity. Secretary ex. 

rel. David Fasula v. Consolidation Coal Company, 2 FMSHRC 2786 

(1980) rev'd on other grounds sub nom, Consolidation Coal Company 

v. Secretary, 633 F 2d. i211(3rd Cir. 1981). In this case, 

Mr. Thompson asserts t~at he was discharged for using an invalid 

doctor's excuse to cover up an absence from work while another 

person was known by management to have done the same thing and 

was not discharged. Assuming that this allegation is true, it is 

clearly not sucficient to create a claim under section 105{c)(l) 

of the Act. That section does not provide a remedy for what the 

complainant perceives to be "discrimination" but what is in 

reality, at best, untairnes~ or inequitable treatment; it that 

conauct on the part oi the operator was not caused in any part by 

1752 
an activity protected by the Act. Violating the operator's 

personnel regulations is not activity protected by the Act. 

Therefore, I find that the complaint herein fails to state a 

claim for which relief can be granted under section 105(c)(l) of 

the Act, and this case is therefore dismissed. 

Distribution: 

Mr. Gary Thompson, Route 2, Box 253, Madisonville, KY 42431 

(Certified Mail) 

Stephen X. Munger, Esq., Jackson, Lewis, Schnitzler & Krupman, 

2400 Preachtree Center, Harris Tower, 233 Peachtree Street, N.E., 

Atlanta, GA 30303-1509 (Certified Mail) 

/ml 

1753 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

Sf P 13 i989 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA}, 

Petitioner 

Docket No. WEST 89-22-M 

A.C. No. 04-03008-05515 

v •. 

VINNELL MINING AND MINERALS 

CORPORATION, 

Respondent 

Oro Grande 

DECISION 

Appearances: Dane C. Dauphine, Esq., Office of the Solicitor, 

u.s. Department of Labor, Los Angeles, California, 

for Petitioner; 

D. McRae, General Manager, Vinnell Mining & 

Minerals Corporation, El Monte, California, 

pro se. 

Before: Judge Lasher 

Subsequent to hearing the parties reached an amicable 

resolution of all matters in dispute. 

Upon Petitioner's motion for approval of a proposed settlement of the 5 violations involved, and the same .appearing proper 

and fully supported in the record, the settlement is approved. 

The terms of the settlement are as follows: 

Citation No. 

3291321 

3291322 

3293718 

3293718 

3293720 

Original 

Proposed Penalty 

$ 46.00 

63.00 

63.00 

20.00 

20.00 

Settlement 

Amount 

$ 46.00 

63.00 

20.00 

20.00 

20.00 

Respondent, if it has not previously done so, is ordered to 

pay to the Secretary of Labor within 30 days from the date hereof 

the sum of $169.00 as and for the penalties agreed on and here 

assessed. 

#h-7'/ .~ - -//~~,,.~/ 4· ye~";( ,,;:7 ' 

Michael A. Lasher, Jr. 

Administrative Law Judge 

1754 
Distribution: 

Dane C. Dauphine, Esq., Office of the Solicitor, U.S. Department 

of Labor, Room 3247 Federal Building, 300 N. Los Angeles Street, 

Los Angeles, CA 90012 (Certified Mail) 

Mr. D. McRae, General Manager, Vinnell Mining & Minerals Corp., 

3380 Flair Drive, Suite 236, El Monte, CA 91731 (Certified Mail) 

/bls 

1755 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 13 1989 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BULL RUN MINING, INCORPORATED, 

Respondent 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 89-70 

A.C. No. 46-04266-03543 

Meredith Mine 

Appearances: Carol B. Feinberg, Esq., U.S. Department of Labor, 

Office of the Solicitor, Arlington, Virginia, for 

Petitioner. 

Before: Judge Maurer 

STATEMENT OF THE CASE 

This proceeding concerns a proposal for assessment of civil 

penalty filed by the petitioner against the respondent pursuant 

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

1977, 30 U.S.C. § 820(a), seeking a civil penalty assessment of 

$450 for an alleged violation of the mandatory safety standards 

found in 30 C.F.R. Part 75. 

The respondent contested the violation and requested a 

hearing. Pursuant to notice, a hearing was convened in 

Morgantown, West Virginia, on June 30, 1989, and while the 

petitioner appeared, the respondent did not. In view of the 

respondent's failure to appear, the hearing proceeded without 

them. For reasons discussed later in this decision, respondent 

is held to be in default, and is deemed to have waived its 

opportunity to be further heard in this matter. 

The record in this case indicates that a Notice of Hearing 

dated May 2, 1989, setting this case down for hearing in 

Morgantown, West Virginia, on June 30,1989, was received by the 

respondent on May 4, 1989. 

Subsequently, because the respondent had continued to ignore 

the petitioner's discovery requests, I issued an Order to Show 

Cause on June 9, 1989, to the respondent to show cause why it 

should not be held in default for its failure to comply with my 

discovery orders of April 25, 1989. 

1756 
Respondent has never replied to the above Show Cause Order, 

nor did any representative of respondent appear at the designated 

time and place for the hearing of this case. 

The hearing proceeded in the respondent's absence. The 

petitioner put in her prima facie case through the testimony of 

Inspector Phillips and moved for a decision affirming the order 

at bar and the proposed civil penalty by default. 

Under the circumstances in this record, I conclude and find 

that the respondent has waived its right to be heard further in 

this matter and that it is in default. Moreover, I find that the 

issuance of yet another Show Cause Order would be a futile 

gesture. 

Accordingly, I find that the respondent is in default and 

the penalty of $450 proposed by the Secretary in this case must 

be paid within 30 days of the date of this decision. 

Distribution: 

urer~ rative Law Judge 

Carol B. Feinberg, Esq., U.S. Department of Labor, Office of the 

Solicitor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203 

(Certified Mail) 

Mr. Kevin A. Mayor, Superintendent, Bull Run Mining Company, 

Inc., 2607 Cranberry Square, Morgantown, WV 26505 (Certified 

Mail) 

/ml 

1757 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE SEP J ·'1 

FALLS CHURCH, VIRGINIA . 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND hEALTn 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

SOUTHERN OHIO COAL CO., 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 89-81 

A.C. No. 46-03805-3886 

Martinka No. 1 Mine 

DECISION APPROVING SETTLEMENT 

Appearances: Mark Malecki, Esq., Office of the Solicitor, 

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

for the Secretary; Rebecca J. Zuleski, Esq., 

Furbee, Amos, Webb & Critchfield, Morgantown, 

West Virginia, for SOCCO. 

Before: Judge Broderick 

~he above case was called for hearing in Morgantown, 

West Virginia, on August 22, 1989. The Secretary moved on 

the record for approval of a settlement agreed to between 

the parties. The docket contains a single alleged violation 

originally assessed at $311. The parties propose to reduce 

the penalty to $50. Counsel for the Secretary stated that 

the gravity of the violation, and the operator's negligence 

were less than originally believed. I have considered the 

motion in the light of the criteria in section llO(i) of the 

Act and conclude that it should be approved. 

Accordingly, the settlement is APPROVED and Respondent 

is ORDERED TO PAY the sum of $50 within 30 days of the date 

of this order. 

Distribution: 

f~ A ·) / / 

7 AA,n 5 /J.--l, i, i.·''};_ , U'jt vr II'< , , . , '---

James A. Broderick 

Administrative Law Judge 

Mark Malecki, Esq., U.S. Department of Labor, Office of the 

Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail) 

Rebecca J. Zuleski, Esq., Furbee, Amos, Webb & Critchfield, 

5000 Hampton Center, Suite 4, Morgantown, WV 26505 (Certified Mail) 

slk 

1758 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE; 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 2 0 1983 

GEORGE JACKSON, JR., 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

NALLY AND HAMILTON 

ENTERPRISES, INC., 

Respondent 

Docket No. KENT 89-75-D 

BARB CD 89-03 

ORDER OF DISMISSAL 

The Parties having jointly moved the Administrative Law 

Judge to permit the Complainant to withdraw his Complaint of 

Discrimination in this case and to dismiss this case with 

prejudice and the Administrative Law Judge being fully advised 

does hereby ORDER as follows: 

1. The Complaint of Discrimination filed by Complainant 

in this action be and is hereby WITHDRAWN. 

2. This case be and is hereby DISMISSED with prejudice. 

Distribution: 

AL_ 

Avram Weisberger 

Administrative Law Judge 

R. Scott Madden, Esq., 116 Lawyer Street, Manchester, KY 

40962 {Certified Mail) 

Lloyd R. Edens, Esq., Cline & Edens, Post Office Drawer 2220, 

Middlesboro, KY 40965 {Certified Mail) 

dcp 

1759 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280. 1244 SPEER BOULEVARD 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

DENVER, CO 80204 SEP 2 0 1989 

CONTEST PROCEEDINGS 

Docket No. WEST 89-45-R 

Order No.3226175; 11/4/88 

Docket No. WEST 89-46-R 

Order No. 3223764; 11/10/88 

MID-CONTINENT RESOURCES, INC.,: Dutch Creek Mine 

Respondent Mine ID 05-00301 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 89-143 

A.C. No. 05-00301-03690 

Docket No. WEST 89-175 

A.C. No. 05-00301-03700 

MID-CONTINENT RESOURCES, INC.,: 

Respondent Dutch Creek Mine 

DECISION 

Appearances: James H. Barkley, Esq., Office of the Solicitor, 

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

Before: 

for Respondent/Petitioner; 

Edward Mulhall, Jr., Esq., Delaney & Balcomb, 

Glenwood Springs, Colorado, 

for Contestant/Respondent. 

Judge Cetti 

The above captioned contest proceedings and their related 

civil penalty proceedings are consolidated for purpose of 

decision. 

At the Glenwood Springs hearings of December 15, 16, 17, 

1988, the parties presented extensive docmuentary evidence and 

three days of testimony from numerous witnesses. A portion of 

the case was continued for further hearing. Prior to the 

continued hearing the parties negotiated proposed settlements of 

the cases. 

The parties have now filed a joint motion requesting 

approval of the proposed settlements. The settlement agreements 

provides that petitioner amend the proposed penalties in civil 

proceedings Docket Nos. WEST 89-143 and WEST 89-175 as shown 

1760 
below and Mid-Continent withdraw its Notice of Contest to all 

citations and orders contained in Docket Nos. WEST 89-45-R and 

WEST 89-46-R. 

Docket No. WEST 89-143 

Citation/Order No. 

3226053 

3226176 (89-45-R) 

Docket No. WEST 89-175 

2931141 

3226628 

3226175 (89-45-R) 

3223765 (89-46-R) 

3223771 

2876864 (89-46-R) 

Proposed Penalty 

$ 259.00 

590.00 

$1,400.00 

1,300.00 

1,300.00 

1,400.00 

1,500.00 

1,200.00 

Amended 

Proposed Penalty 

$ 155.40 

354.00 

840.00 

780.00 

780.00 

840.00 

900.00 

720.00 

In support of the proposed settlement disposition of these 

cases, the petitioner has submitted information pertaining to the 

six statutory civil penalty criteria found in Section llOCi) of 

the Act. In addition, the petitioner has submitted a discussion 

and disclosure as to the facts and circumstances surrounding the 

issuance of the citations and orders in question, and a reasonable justification of the reduction of the original proposed 

civil penalty assessments. 

Conclusion 

After careful review and consideration of the pleadings, 

arguments, and submissions in support of the motion to approve 

the proposed settlement of this case, I conclude and find that 

the proposed settlement disposition is reasonable, appropriate, 

and in the public interest. Accordingly, pursuant to 29 C.F.R. 

§ 2700.30 the motion is GRANTED, and the settlement is APPROVED. 

ORDER 

1. Contest proceedings in Docket Nos. WEST 89-45-R and WEST 

89-46-R are vacated. 

2. Respondent is ORDERED to pay civil penalties in the 

settlement amounts shown above in satisfaction of the citations 

and orders in question in the amount of $509.00 on or before 

April 1, 1990 for the penalties assessed in Docket WEST 89-143 

and in the amount of $4,860.00 on or before July 1, 1990 for the 

penalties assessment in Docket WEST 89-175. 

Augu F. Cetti 

Administrative Law Judge 

1761 
Distribution: 

Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1585 Federal Building, 1961 Stout Street, Denver, 

CO 80294 (Certified Mail) 

Edward Mulhall, Jr., Esq., Delaney & Balcomb, P.O. Drawer 790, 

Glenwood Springs, CO 81602 (Certified Mail) 

/bls 

1762 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 211989 

LINDA LESTER, 

Complainant 

v. 

GARDEN CREEK POCAHONTAS CO., 

Respondent 

DISCRIMINATION PROCEEDING 

Docket No. VA 88-59-D 

Pocahontas No. 6 Mine 

DECISION 

Appearances: Susan Oglebay, Esq., Oglebay & Graham, Damascus, 

Virginia, for Complainant; Donald D. Anderson, 

McGuire, Woods, Battle & Boothe, Richmond, 

Virginia, for Respondent. 

Before: Judge Broderick 

STATEMENT OF THE CASE 

Complainant contends that she was removed from her temporary 

roof bolting job and returned to the job of general inside 

laborer, because of safety complaints to her safety committeeman 

and a Federal inspector. She did not lose time from work, but 

claims lost wages measured by the difference in pay between the 

roof bolting job and the general inside laborer job from 

May 18, 1988 until May 1989 when she became a permanent roof 

bolter, except for the period between August 1988 and February 

1989, when she was out of work because of an employment-related 

injury. Respondent concedes that complainant made a protected 

safety complaint. It denies that she was subjected to adverse 

action because of the safety complaint. Pursuant to notice, the 

case was called for hearing in Abingdon, Virginia, on 

July 18, 1989. Linda Lester, Kenneth Lester, John Woolford and 

Ray Lester testified on behalf of Complainant. George King, Torn 

Meade and Ronald D. Coleman testified on behalf of Respondent. 

Both parties were given the opportunity to file post-hearing 

briefs. Respondent filed such a brief; Complainant did not. 

Based on the entire record, and considering the contentions of 

the parties, I make the following decision. 

FINDINGS OF FACT 

Respondent, Garden Creek Pocahontas Co. (Garden Creek), is 

the owner and operator of an underground coal mine in Oakwood, 

Virginia, known as the Pocahontas No. 6 Mine. Complainant Lester 

1763 
is employed at the subject mine as a miner. She has worked at 

the mine since February 1981. Her jobs included general inside 

laborer, miner helper, scoop operator, roof bolter, apprentice 

electrician, and beltman. She worked as a roof bolter in 

November 1981, and in May 1983 for periods of time not disclosed 

in this record. As of April 22, 1988, she was employed as a 

general inside laborer. 

In April 1988, Garden Creek was doing construction work to 

set up a new miner section. This involved cutting in a rock 

area, and necessitated bolting the rock roof. One permanent roof 

bolter, Tom.~y Proffett, was on the rock crew and a temporary roof 

bolter was assigned to work with him. After so~e days, the Union 

requested that the job be posted, and filled in accordance with 

the existing collective bargaining contract. A prior grievance 

settlement at the subject mine required the company to post a job 

vacancy whenever a temporary job existed for seven days or more. 

Garden Creek told the Union officials that the rock bolting 

project would be completed in a few days, but the Union wanted it 

posted anyway. Garden Creek agreed but informed the Union that 

"as soon as the project is completed this job will be eliminated." 

(Tr. 94) 

On April 22, 1988, a notice of Temporary Vacancy for the 

position of roof bolter was posted. (R-Ex. A) The name D. Smith 

was written on the notice. Smith was a permanent roof bolter 

working on a coal-producing section, and had been one since 1981. 

He was off work because of an injury since June 1987. In June 

1987, the mine was doing truss bolting which required six roof 

boltars on the day shift. In early 1988, the mine began using 

the super bolt system and phased out the truss bolting. In the 

super bolt system, only four roof bolters were required on the 

full-time day shift. Complainant was awarded the posted job on 

April 29, 1988. She began working on the new job on May 9, 1988, 

but was paid as a roof bolter beginning May 2, 1988. Complainant 

assumed that she was temporarily filling the job of Donnie Smith. 

Garden Creek intended that she was filling a temporary position 

doing rock bolting until the rock project was completed. On 

May 9, Complainant told her foreman that she was supposed to work 

on the coal producing section as Donnie Smith had done, rather 

than on rock work. She filed a grievance which management 

denied. 

1764 
On May 10, 1988, Complainant was told by her foreman, Ronald 

Coleman, that she would have to begin installing bolts herself 

without the assistance of the other roof bolter. She protested 

that the height of the area would require her to climb on to the 

roof bolter canopy and that she was afraid that she would be 

injured. She asked to have the safety committeeman and the 

Federal inspector who was at the mine, assess the safety of her 

work. The inspector told Complainant that he would not tell her 

the job was safe but that he could not see any other way that it 

could be done. So far as the record shows, no citations or 

orders were issued concerning the performance of the work. 

On the following day, May 11, Coleman called Complainant 

aside and told her that she should either do her work or withdraw 

from the job. He told her that her roof bolting partner had 

complained that he was doing her work as well as his own. 

Coleman also told her that she was causing problems in talking to 

the safety committeeman and the inspector. After this 

conversation, Complainant became upset. She left work, and was 

taken to a hospital for what was diagnosed as hyperventilation. 

She returned on Friday, May 13, and was assigned to a belt crew. 

She continued working on the belt the following Monday and 

Tuesday, May 16 and 17, and on May 18 was told that the roof 

bolting job had been discontinued. She was paid as a roof bolter 

through May 18, 1988. The mine superintendent testified that the 

work was completed on May 16, but Coillplainant was not informed of 

this until May 18. The Superintendent was aware of Complainant's 

safety complaints to the safety committeeman and the inspector. 

Complainant's foreman Coleman was not involved in the decision to 

eliminate or discontinue her job. 

In about March 1989, the mine added a third section crew to 

the day shift. Complainant bid for and was awarded the job of 

permanent roof bolter in April or May 1989. She has continued on 

that job to the date of the hearing. 

ISSUES 

1. Whether the tempocary roof bolter position was 

discontinued and Complainant was removed from that position 

because she made safety complaints to her safety cornmi ':.tt~eman and 

a federal inspector? 

2. If so, to what remedies is Complainant entitled? 

1765 
CONCLUSIONS OF LAW 

Respondent is subject to the provisions of the Federal Mine 

Safety and Health Act of 1977 (the Act) in the operation of the 

subject mine. Complainant is a miner protected under section 

105(c) of the Act. 

Under the Act, a complaining miner can establish a prima 

facie case of discrimination by proving that she engaged in 

protected activity and that the adverse action complained of was 

motivated in any part by that activity. Secretary/Fasula v. 

Consolidation Coal Co., 2 FMSHRC 2786 (1980), rev'd on other 

grounds sub. nom. Consolidation Coal Co. v. Marshall, 663 F.2d 

1211 (3rd Cir. 1981); Robinette v. United Castle Coal Co., 3 

FMSHRC 803 (1981). The operator may rebut the prima facie case 

by showing either that no protected activity occurred or that the 

adverse action was not motivated in any part by protected 

activity. If the operator cannot rebut the prima facie case in 

this manner, it may nevertheless defend affirmatively by proving 

that the adverse action was also motivated by other factors than 

the protected activity and that it would have taken the adverse 

action for these factors in any event. Robinette, supra. 

I 

The parties agree that Complainant made safety complaints to 

a safety committeeman and a Federal inspector, and that these 

Complaints constitute activity protected under the Act. 

II 

The action taken by Respondent in removing Complainant from 

the position of roof bolter on May 18, 1988, which resulted in a 

loss of pay, constituted adverse action. 

III 

The evidence establishes that Complainant's foreman Coleman 

reprimanded her for making safety complaints protected under the 

Act. The crucial issue is whether the safety complaints were in 

any way related to the adverse action described above. Coleman 

testified that he was not involved in the decision to eliminate 

the roof bolter position. I accept his testimony as credible. 

1766 
The Superintendent, George King, did make the decision to 

eliminate the position when the rock work was completed. King 

was aware of the fact that Complainant had made safety related 

complaints to the committeeman and the inspector. He testified, 

however, that this awareness was not related to the elimination 

of the roof bolting job. He testified that, in accordance with 

his agreement with the Union, when he was informed by the mine 

foreman that the rock project was completed, he told the foreman 

to inform Complainant that the job was eliminated. I accept the 

testimony of King as credible and consistent with the other 

evidence in the record. I conclude therefore that the adverse 

action suffered by Co~plainant was not in any way related to her 

protected safety complaints. The testimony of John Woolford and 

Ray Lester concerning their bolting activities after 

Complainant's temporary position was eliminated was explained by 

King and Coleman as related to clean up work or coal face bolting 

unrelated to the rock project. I accept their explanation as 

credible. 

Further, I conclude that even if Complainant established a 

prima facie case of discrimination, the operator has established 

that the adverse action was motivated by unprotected factors, 

namely, the completion of the rock project, and that it would 

have taken the adverse action for these factors alone. 

Therefore, Complainant has failed to establish that 

Respondent discriminated against her in violation of the 

provisions of section 105(c) of the Act. 

ORDER 

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

I'r IS ORDr~RED that Coinplainant' s complaint of discrimination is 

DISMISSED. 

, At·;; t ... i ' . /./A 1 ' ,· . (//. 1 1

:. -z.:(,"i~, ,f/J ...:; '( //v"vflV........J r· ~ - •""- -'-' ....___ 

( James A. Brodel'.'ick 

J Administrative Law Judge 

1767 
Distribution: 

Susan D. Oglebay, Esq., Oglebay & Harrison, P.O. Box 760, Beaver 

Dam Avenue, Damascus, VA 24236 (Certified Mail) 

Donald D. Anderson, Esq., McGuire, Woods, Battle & Boothe, One 

James Center, Richmond, VA. 23219 (Certified Mail) 

slk 

1768 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 21, 1989 

S~CRPTARY OF LABOR, CIVTL PENAL~Y PROCBBDINGS 

MINE SAFETY ANO H~ALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

A. H. SMITH S~ONF COMPANY, 

Respondent 

DECISION 

Docket No. VA 88-44-M 

A. C. No. 44-03995-05509 

Culpepper Plant 

Docket No. YORK 89-24-M 

A. C. No. 18-00275-05517 

Branchville Plant 

Docket No. YORK 89-35-M 

A. C. No. 18-00481-05507 

Brandywine Mine 

Docket No. YORK 89-36-M 

A. C. No. 18-00293-05504 

Clinton Mine 

Docket No. YORK 89-40-M 

A. C. No. 18-00275-05520 

Docket No. YORK 89-43-M 

A. C. No. 18-00275-05518 

Docket No. YORK 89-44-M 

A. C. ~o. 18-00275-05519 

Branchville Plant 

Appearances: Jack~. Strausman, Bsq., Office of the 

Solicitor, U. s. Department of Labor, 

Arlington, Virginia, for Petitioner; 

Before: 

Lisa M. Wolff, A. H. Smith Stone Company, 

for Respondent. 

Judge Merlin 

1769 
When the above-captioned cases came on for hearin~ 

counsel for both parc1es advised that secclements had been 

reached. With the permission of the bench these settlements 

were placed upon the record. Other cases scheduled £Or 

hearing at the same time were heard on the merits. 

VA 88-44-M 

This case involves four violations which were originally 

assessed ac $362 and the operacor agreed to pay the original 

assessments in iull. ~he circumstances of these violations 

were explained on the record and I accepted the profiered 

amounts from the bench. 

YORK 89-24-M 

~his case involves twenty violations which were originally assessed at $1,499. ~he proposed settlement is tor 

$1,460. 

Citation No. 3247135 was issued for a violation of 

30 c.w.R. § 56.14107(a) because the guard for the secondary 

crusher was inadequate. ~he penalty was originally assessed 

ac $79 and the proposed settlement is for $40. ~he ~olicitor 

represents that the penalty reduction is warranted because 

gravity is less than originally thougnt. ~he Solicitor 

advises that a guard had been in place which had a small 

opening ten inches above the floor as originally designed and 

installed. Due to the closeness of the opening to the floor 

and to the size of the opening, the probability of injury was 

less than originally thought. ~he foregoing representations 

were accepted £ram the bench and the proposed settlement was 

approved. 

~he operator agreed to pay the original assessments 

for the remaining nineteen violations involved in this case. 

~he circumstances of these violations were explained on the 

record and I accepted the proffered amounts from the bench. 

YORK 89-35-M 

This case involves two violations which were originally 

assessed at $170. The proposed settlement is for $124. 

Citation No. 3247111 was issued for a violation of 30 

C.~.R. § 56.12036 because fuse tongs were not available for 

removing and replacing electrical fuses. The penalty was 

originally assessed at $79 and the proposed settlement is for 

$60. ~he Solicitor represents that the penalty reduction is 

warranted because negligence is less than originally thought. 

This condition had not been cited in previous inspections and 

the violation was abated in good taith. The foregoing repre1770 
sentations were accepted from the bench and the proposed 

settlement was approved. 

Citation No. 3247113 was issued for a violation of 30 

C.F.R. § 56.20001 because the inspector found evidence that 

alcohol was being consumed on mine property. The penalty was 

originally assessed at $91 and the proposed settlement is for 

$64. ~he Solicitor represents that the penalty reduction is 

warranted because negligence is less than originally thought. 

~he Secretary has agreed to aajust the assessment of negligence from moderate to low due to representations by the 

operator that there have not been problems with employees 

drinking on the property previous to the time this bottle was 

discovered. Also there was no other evidence known to the 

operator of alcohol-related problems. ~he foregoing representations were accepted from the bench and the proposed 

settlement was approved. 

YORK 89-36-M 

~his case involves six violations which were originally 

assessed at $399. ~he proposed settlement is for $289. 

Citation No. 3246014 was issued tor a violation of 

30 C.F.R. § 56.14112(b) because the v-belt drive on the 

gravel shaker screen was not adequately guarded. ~he penalty 

was originally assessed at $63 and the proposed settlement is 

for $44. ~he Solicitor represents that the penalty reduction 

is warranted because negligence is less than originally 

thought. The guard was present, but, it did not extend the 

entire distance. The foregoing representations were accepted 

from the bench and the proposed settlement was approved. 

Citation No. 3247104 was issued for a violation of 30 

C.F.R. § 56.14132(a) because the automatic reverse back-up 

alarm on a loader was inoperative. The penalty was originally assessed at $79 and the proposed settlement is tor $65. 

The Solicitor represents that the penalty reduction is warranted because gravity is less than originally thought. 

Because the loader would not be moving fast, the seriousness of any injury was slightly less. The foregoing representations were accepted £rom the bench and the proposed 

settlement was approved. 

Citation No. 3247106 was issued for a violation of 30 

C.F.R. § 56.14103(c)(2) because a window on the left side of 

a loader haa been removed and a piece of solid metal had been 

used to replace it. The penalty was originally assessed at 

$79 and the proposed settlement is for $50. The Solicitor 

represents that the penalty reduction is warranted because 

gravity is less than originally thought. The loader was not 

moving fast. The foregoing representations were accepced 

from the bench and the proposed settlement was approved. 

1771 
Citation ~o. 3247108 was issued for a violation of 30 

c.~.R. § 56.12036 because £use tongs were no~ available for 

removal and replacement of fuses. 'T'he penalty was originally 

assessed at $79 and the proposed settlement is for $50. 

'T'he Rolicitor represents that the penalty reduction is 

warranted because negligence is less than originally thought. 

'T'his condicion had not been cited in previous inspections. 

'T'he foregoing representations were accepted from the bench 

and the proposed settlement was approved. 

Citation No. 3247110 was issued for a violation of 30 

C.F.R. § 56.12016 because an employee was standing on a conveyor belt that had not been locked out to keep it from being 

inadvertently energized. Locks for locking out the equipment 

were not available. 'T'he penalty was originally assessed at 

$79 and the proposed settlement is for $50. 'T'he Solicitor 

represents that the penalty reduction is warranted because 

gravity is less than originally chought. 'T'he employee was at 

the low end of the belt which was not very high off the 

ground. 'T'he foregoing representations were accepted irom the 

bench and the proposed settlement was approved. 

~he operator agreed to pay the original assessment for 

the remaining violation involved in this case. 'T'he circumstances of the violation were explained on the record and T 

accepted the proffered amount from the bench. 

YORK 89-40-M 

'T'his case involves two violations which were originally 

assessed at $1,700. 'T'he proposed settlement is for $950. 

Citation ~o. 3246302 was issued for a violacion of 30 

C.~.R § 56.14001 because a conveyor belt was not provided 

with a guard on the tail pulley. An employee was observed 

working in the area and exposed to the hazard. 'T'he penalty 

was originally assessed ac $500 and the proposed settlement 

is for $250. 'T'he ~olicitor represents that the penalty 

reduction is warranted because negligence is less than 

originally thought. 'T'he Solicitor accepted the operator's 

representacion that the guard l1ad been removed ior cleaning 

and had not been immediately replaced. 'T'he foregoing representations were accepted irom the bench and the proposed 

settlement was approved. 

Order No. 3247101 was issued for a violation of 30 

C.P.~. § 56.18006 because new workers had not been indoctrinated in che safety rules and in safe work procedures. 'T'his 

information was given to the inspector both from supervisors 

and from an interpreter who interpreted for Hispanic 

employees. 'T'he penalty was originally assessed at $1,200 and 

the proposed settlement is for $700. 'T'he ~olicitor 

1772 
represents that the penalty reduction is warranted because 

gravity is less than originally thought. Only 5 employees, 

instead of 9 as originally determined by the inspector, were 

affected. 'T'he foregoing representations were accepted irom 

the bench and the proposed settlement which is a substantial 

amount was approved. 

YORK 89-43-M 

This case involves twenty violations which were originally assessed at $2,897. 'T'he proposed settlement is for 

$2,102. 

'T'he Solicitor has advised that Citation nos. 3246731, 

3246736, 3247100, and 3247138 which were originally assessed 

at $157, $119, $400, $119 respectively were, vacated by M~HA 

on August 10, 1989, as being issued in error. 

The operator has agreed to pay the original assessments 

for the sixteen remaining violations involved in this case. 

The circumstances of these violations were explained on the 

record and I accepted the proffered amounts from the bench. 

YORK 89-44-M 

This case involves one violation which was originally 

assessed at $20 and the operator has agreed to pay the 

original assessment in full. 'T'he circumstances of this violation were explained on the record and I accepted the 

proffered amount from the bench. 

ORDFR 

In light of the foregoing the recommended settlements 

are APPROVFD and the operator is ORDBRFD ~O P~Y the following 

amounts within 30 days from the date of this decision. 

Ci ta ti on No. 

2851999 

2852000 

2852603 

2852604 

3246407 

3246303 

3246729 

3246730 

VA 88-44-M 

'T'o tal 

YORK 89-24-M 

1773 

Amount 

$ 79 

$ 79 

$ 85 

$ 119 

$ 362 

$ 20 

$ 147 

$ 20 

$ 20 
3246826 $ 105 

3246827 $ 105 

3246831 $ 20 

3247082 $ 79 

3247083 $ 79 

3247084 $ 20 

3247085 $ 20 

3247088 $ 79 

3247134 $ 157 

3247135 $ 40 

3247136 $ 79 

3247137 $ 20 

3247140 $ 20 

3246830 $ 105 

3247095 $ 147 

3247096 $ 178 

rrotal $1,460 

YORK 89-35-M 

3247111 $ 60 

3247113 $ 64 

rr:'otal $ 124 

YORK 89-36-M 

3246014 $ 44 

3247104 $ 65 

3247106 $ 50 

3247107 $ 20 

3247108 $ 60 

3247110 $ 50 

'T'otal $ 289 

YORK 89-40-M 

3246302 $ 250 

3247101 $ 700 

'T'otal $ 950 

YORK 89-43-M 

3246727 $ 20 

3246728 $ 20 

3246731 Vl\CA'T'FD 

3246732 $ 20 

3246733 $ 119 

3246734 $ 178 

3246735 $ 136 

3246736 VACA'T?l<'D 

3246739 $ 119 

3246740 $ 119 

1774 
3246824 

3246828 

3247081 

3247086 

3247087 

3247090 

3247100 

3247138 

3247139 

3246829 

3247099 

Distribution: 

'T'otal 

YORK 89-44-M 

Grand rrotal 

Paul Merlin 

$ 420 

$ 157 

$ 119 

$ 119 

$ 119 

$ 225 

VACATF.D 

VACA'T'l<'D 

$ 192 

$ 20 

$2,102 

$ 20 

$5,307 

Chief ~drninistrative Law Judge 

Jack~. ~trausman, Fsq., Office of the Solicitor, U. S. Department of Labor, 4015 Wilson Boulevard, ~rlington, VA 

22203 (Certified Mail) 

Ms. Lisa M. Wolff, Director Safety, A. H. Smith ~tone 

Company( 9101 Railroad Avenue, Branchville, MD 20740 

(Certified Mail) 

/gl 

1775 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

SEP 211989 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA}, 

Petitioner 

Docket No. WEST 88-202-M 

A.C. No. 24-00014-05513 

v. 

. . Trident Plant & Quarry 

IDEAL CEMENT COMPANY, 

Respondent 

. . 

Appearances: 

I 

I 

DECISION 

Robert Murphy, Esq., Office of the Solicitor, 

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

for Petitioner; 

James J. Gonzales, Esq., Holland & Hart, 

Denver, Colorado; 

for Respondent. 

Before: Judge Morris 

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

Health Administration CMSHA}, charged respondent, Ideal Cement 

Company, (hereafter "Ideal"}, with violating a safety regulation' promulgated under the Federal Mine Safety and Health Act, 

30 u.s.c. § 801 et~., (the Act}. 

After notice to the parties a hearing on the merits was held 

in ~elena, Montana. 

At the hearing the parties agreed the Commission has jurisdiction to hear the case (Tr. 389}. 

The parties submitted post-trial briefs in support of their 

positions. 

Summary of the Evidence 

MSHA's Evidence 

This case involves the death of miner Thomas E. Bertagnolli 

that occurred on October 19, 1987, while he was operating a 

front-end loader. The witnesses at times referred to the loader 

1776 
as a Bobcat and at other times as a Uniloader. The citation 

alleges a violation of 30 C.F.R. § 56.9002. ~/ 

MSHA's witnesses were Vincent J. Schafer, Stephen M. Carey, 

Stephen L. Livingood, Archie Huenergardt, Marvin Doornbos, 

Stanley Veltkamp, Robert E. Stinson, Eric Shanholtz and Darrell 

Woodbeck. 

Bert Todd, Gary Huls, William Fairhurst and Arlene Sherman 

testified for respondent. 

VINCENT J. SCHAFER has been employed by Ideal as a maintenance man for ten years and he was familiar with the Uniloader. 

Fifty percent of the workers at the plant have operated the 

equipment. 

The Uniloader was equipped with a seat belt and ROPS, 2/ but 

it was necessary to modify the ROPS so the equipment could fit 

in the kiln. 3/ In addition, narrower wheels had also been installed. 

The Uniloader, equipped with side screens, has been operated 

by the witness without the side screens since before October 1987. 

He did not consider it unsafe to operate without side screens. 

The bucket affixed to the equipment takes ten seconds from its 

lowest setting to an upright position. 

Schafer also installed a shield on the front of the loader. 

The shield consisted of i-inch plywood. This prevented the kiln 

bricks from falling into it. In October 1987 Schafer would enter 

the equipment by climbing over the plywood. He did not consider 

it safe to exit the Bobcat to the rear. 

ll The regulation allegedly violated here provides as follows: 

Equipment defects affecting safety 

shall be corrected before the equipment· is used. 

~/ Roll-over protective structure. 

11 The kiln is 300 feet long. The loader is 12 feet long by 3! 

to 4 feet wide with the bucket attached. 

1777 
When the loader operator exits the equipment he lowers the 

arms and turns off the equipment. He then removes the bungee 

cord holding the plywood shield. The plywood makes the equipment 

more safe as compared to less safe. 

On October 19th a cylinder popped on the loader. A new 

cylinder was not available so it was replaced by an old one. On 

the same date he had difficulty operating the loader. He turned 

it off because the ignition key had been broken off. 

At the close of his shift he met Bertagnolli coming up the 

steps. He told Bertagnolli to be careful. He made this statement because it was a dangerous piece of equipment. But after 

he had repaired it the loader was all right. 

STEPHEN CAREY, a heavy equipment operator, is familiar with 

the loader and he has operated it inside the kiln. He was a 

heavy equipment operator for over 11 years. When Bertignolli 

was killed he was operating the loader without side screens; he 

had not been required to remove the screens. However, Carey did 

kiln work with the side screens attached. When not in use the 

screens are stored in a garage. 

Carey considered himself a better loader operator than most. 

He had installed the plywood in the front. 

The loader is easier to operate with a bucket than with the 

jackhammer attachment. (The jackhammer attachment is used to 

knock down bricks in the kiln). 

Bertagnolli had sufficient training to operate the loader. 

STEPHEN LIVINGOOD, a maintenance man, indicated the 

left-hand lever on the loader would catch. The machine would 

move forward on its own although it was set in neutral gear. 

Livingood did not learn to compensate for the "creep". He did 

not ask for additional training and he had the authority to "red 

tag" any equipment he considered defective. 

The screens interfere with side vision to the rear. Since 

he couldn't see the rear tire he could not keep the loader on the 

ramp of the kiln. 

Livingood did not see Bertagnolli's accident but he found 

him lying on the side of the kiln up against the wall. There 

were no side screens on the loader. Tom said the "God-damn 

Bobcat crushed him." 

1778 
Bertagnolli expired during the 32-mile ambulance ride to the 

hospital. 

ARCHIE HUENERGARDT, an electrician, has picked up and moved 

sacks of cement with the loader bucket. He had never used the 

jackhammer attachment and he had operated the equipment without 

the screens attached. 

Huenergardt stayed by the telephone and did not directly 

participate in Bertagnolli's rescue. 

MARV DOORNBOS had been ordered to work the area at the front 

of the kiln on the night of the accident. 

He saw Bertagnolli getting ready to run the loader. There 

was a front shield but no side shields on the loader. 

It appeared to the witness that Bertagnolli was having 

trouble knocking out the first row of bricks. They appeared to 

resist the effort being made to break them loose. 

Bertagnolli was working about 40 feet past the entrance 

of the kiln. 

Doornbos went into the control room to get a welding helmet. 

When someone said Bertagnolli had been hurt, he returned to the 

kiln and found Bertagnolli standing up and leaning over. He was 

holding his side. Bertagnolli said something about the "damn 

Bobcat." 

STANLEY VELTKAMP, a maintenance man, worked in the same 

area as Bertagnolli. He observed that Bertagnolli was apparently 

having difficulty knocking out the bricks in the kiln with the 

jackhammer. 

When the machine idled down, Veltkamp, looking in the 

direction of the loader( saw Bertagnolli leaning out the right 

side of the equipment. ~/ In addition, he was "all over" the 

arms and the cylinder of the loader. Bertagnolli, who was 

buckled in by his seat belt, then moved back into the seat, shut 

off the air to the jackhammer and crawled out the left side. 

The arms of the loader were down. 

!/ At the hearing Veltkamp did not remember that he saw 

Bertagnolli leaning out the right side of the Bobcat. However, 

on this point I credit his past recollection, i.e., his written 

statement of the facts given to by MSHA on the date of the 

accident (Ex. P-21). 

1779 
As he staggered down the kiln Veltkamp rushed to him. 

Bertagnolli said he had been crushed. 

ROBERT STINSON, a person experienced in mining, issues 

safety citations.and conducts health investigations for the 

State of Montana. 

On October 20, 1987, he went to the Ideal plant when he 

learned that a man had been crushed by a loader. 

That evening he and Dr. Bertagnolli, father of the victim 

and a medical doctor, discussed the accident. The doctor indicated there was a mark across his son's back two inches wide 

as well as two parallel marks across his front down through the 

liver area. Dr. Bertagnolli said his son had been crushed 

through the liver and aorta and had "bled out." 

During his investigation, Inspector Stinson observed 

employees enter and exit the loader. Several employees entered 

over the rear and another entered over the lifting arms. He did 

not see any enter at the front. 

The ROPS had been altered by cutting and rewelding four 

posts. There were two bolts missing in each arm. On the left 

wheel there was a hose that caused a hindrance to one of the 

controls. The side screens were missing. 

When the jackhammer was raised the plate would block the 

view of the chipper point. 

Mr. Stinson identified various photographs taken at the 

scene of the accident. He also expressed his opinion that if 

the side shields had been in place Bertagnolli would not have 

been injured. The guard shields are specifically designed to 

prevent workers from getting into the arms of the loader. In 

the inspector's opinion the accident would have been prevented 

by using a different type of machine or by using side screens. 

In Mr. Stinson's view, Bertagnolli was killed when the arms 

of the loader caught him. The arms could have been going up or 

coming down. 

The specification sheet from the manufacturer shows the 

1835 Case Uniloader with the side shields in place. 

1780 
ERIC SHANHOLTZ, an MSHA inspector, cited the operator on 

December 7, 1983, for failing to have a ROPS structure on a 

front-end loader. This citation was not contested and it was 

terminated the following day (Ex. P-26}. 

DARRELL WOODBECK, an MSHA inspector for 14 years, is a 

person experienced in mining. 

On the issue of prior history Mr. Woodbeck identified 

citations issued to Ideal in the previous two years (Ex. P-27}. 

Mr. Woodbeck took part in the inspection. He also concluded that side shields would have prevented the miner from 

placing himself in a position where he could be injured. 

As a result of his inspection at the work site Woodbeck 

issued Citation No. 2649413. He also determined that the operator's negligence was moderate. He believed that Bertagnolli was 

crushed between the lifting arms of the bucket and the top of the 

rollover protection. 

Inspector Woodbeck considered that the removal of the side 

screens was a violation of MSHA regulations. 

Mr. Woodbeck also considered this was an S&S violation. 

Respondent's Evidence 

BERT TODD, a person experienced in operating small equipment, has supervised and trained Ideal employees in the use of 

such equipment. 

The Uniloader, equipped with a jackhammer on the bucket, 

knocks brick out of the kiln. 

Between 1984 and 1987 Todd has seen the equipment being 

operated without side screens. He has seen employees using the 

equipment without screens while MSHA inspectors were present. 

But he was not aware of any citations being previously issued 

for the absence of such screens. The absence of screens had 

never been previously discussed with MSHA inspectors. 

Todd trained Bertagnolli in the operation of the Uniloader. 

He was taught to exit the machine to the front and he observed 

Bertagnolli following his instructions. 

The loader was purchased with side screens. They prevent rocks from falling on the operator. Also they keep the 

operator's arms within the loader while he is operating it. 

1781 
GARY HULS, Ideal's production supervisor, accompanied an 

MSHA inspector in September 1987. On that occasion Tom Meyers 

was operating the loader cleaning up spills with the bucket. 

The inspector leaned into the loader but made no comments about 

the absence of side screens. 

Ideal has a policy of red-tagging any unsafe e::iuipment. 

The employees learn this policy from training and the company 

handbook. 

WILLIAM DOUGLAS FAIRHURST, a mill supervisor, has also 

served as a heavy equipment operator. The safety handbook 

discusses all mobile e::iuipment. It generally directs employees 

to enter the equipment through the front. After he enters the 

loader the operator sits down and buckles his seat belt. When he 

exits the equipment he leaves with the arms lowered. The loader 

involved in this accident did not have any side screens attached. 

It is the loader operator's decision whether or not he should 

use side screens. 

In the afternoon before Bertagnolli's accident, the left 

arm of the loader had to be changed. 

The safety manual also states that guards shall not be 

removed except when making repairs, cleaning, dressing, oiling 

or adjusting the equipment. In such circumstances such repairs 

can only be made by authorized personnel when the machines are 

stopped. 

ARLENE SHERMAN, a person educated and experienced in safety, 

is the Personnel and Industrial Relations Administrator at the 

Trident Plant. She is responsible for all plant safety. 

Until 1986 the Trident Plant worked 4000 days without a 

lost-time injury. This is the best safety record of all of 

Ideal's plants in North America. The company previously received an award when it reached 3000 consecutive days without 

a lost-time accident (Ex. R-7). 

The company's policy, both written and in practice, is that 

if an employee detects a hazard he can red-tag any equipment and 

refuse to operate it. An employee, without any retaliation, can 

also refuse to operate any equipment he believes is hazardous. 

Company policy also requires employees to wear seat belts 

when they are operating equipment. 

A citation received by the company in 1983 related to ROPS 

on a loader (Ex. P-26). Side screens had nothing to do with that 

citation and they were not mentioned. 

1782 
The company prepared the MSHA form and the Workman's 

Compensation forms for this case. However, there were no eyewitnesses to the accident. Company representatives can only 

speculate as to how the accident occurred. But they are testing 

several theories: Bertagnolli was crushed when the side arms came 

down or when the arms were going up. In experimenting (with the 

machine) another employee placed his upper body over the side arm 

of the loader but he wasn't able to do this while wearing his 

seat belt. 

Employees at times entered the loader through the back. 

During the operation of the equipment Ms. Sherman did not observe 

anything that she considered to be a defect. Before the machine 

was put back in operation the side screens were reinstalled. 

In the company's opinion MSHA's evaluation of negligence was 

too high in view of the investigation and the company's past 

record. 

The company had no information indicating the loader 

should not be operated without side screens in place. Further, 

the company did not have Exhibit P-25 CJ.I. Case specifications· 

re ROPS canopy) at the time of the accident. 

The gross sales of the Trident Plant exceeded $1,000,000 

last year. However, the company is presently in a severe debt 

situation. About three years ago the company was close to 

bankruptcy. 

ERIC SHANHOLTZ was called as a rebuttal witness by the 

Secretary. He testified that he had not been told by anyone 

at the plant that some unnamed safety inspector had stated 

the company did not have to use ROPS in certain positions and 

operations. Inspector Shanholtz requested the ROPS be reinstalled. They were also ret~rned with the side shields. 

Discussion 

A fatality in a case, in and of itself, does not by its 

mere occurrence prove a violation of the regulation, Lone Star 

Industries, Inc., 3 FMSHRC 2526, 2529, 2530 (1981); Texas 

Industries, Incorporated, 4 FMSHRC 352 (1982). 

The law is clear that a safety regulation that imposes 

civil penalties for its violation must give an employer fair 

warning of the conduct it prohibits or requires and must further 

provide a reasonably clear standard of culpability to circumscribe the discretion of the enforcing authority and its agents. 

1783 
Diamond Roofing v. Occupational Safety and Health Review 

Commission, 528 F.2d 645, 649-650 (5th Cir. 1976); Diebold, 

Inc. v. Marshall, 585 F.2d 1327, 1335-1336 (6th Cir. 1978); 

LOngview Refining Co. v. Shore, 554 F.2d 1006, 1114 (Temp. 

Erner. Ct. App. 1977) cert. denied, 434 U.S. 836 (1977). 

A review of the record here indicates Ideal could not 

have anticipated that MSHA would require side screens on the 

equipment. It is true that when the Uniloader was purchased 

it had side screens. It is also uncontroverted that it was 

left to the discretion of employees whether to use such screens. 

However, the Commission has specifically rejected a per se rule 

that an equipment defect automatically arises "when equipment 

is not maintained in the manner in which it is received from 

the manufacturer," Allied Chemical Corporation, 6 FMSHRC 1854, 

1857 (footnote 3). 

A majority of the cases dealing with § 56.9002 and related 

parallel regulations deal with factual situations where the 

defect affecting safety is affixed to the equipment. For 

example, see Allied Products Company, 2 FMSHRC 2517 (1980) 

(Fauver, J.) (front end loader leaking hydraulic fluid and not 

repaired); Grove Stone and Sand Company, 2 FMSHRC 1261 (1980) 

(Steffy, J.) (back-up alarm ruled not defective); Ideal Basic 

Industries, Cement Division, 2 FMSHRC 1352 (1980) (Koutras, J.) 

(hydraulic coupling inoperable); Eastern Associated Coal Corporation, 1 FMSHRC 1472 (Commission) (inoperable parking brake on 

a jitney); Massey Sand and Rock Company, 3 FMSHRC 2132 (1981) 

(Vail, J.) (emergency brake on front-end loader defective and 

leaking hydraulic fluid); Evansville Materials, Inc., 3 FMSHRC 

704 (1981) (Fauver, J.) (leaks in braking system of front-end 

loader that could have been detected from audible hissing sounds 

lasting one or two seconds); FMC Corporation, 4 FMSHRC 1818 

(1982) (Morris, J.) (idler arm, ball joint and tie rods of pickup truck were loose; linkage, which was loose, showed excessive 

wear); United States Steel Corporation, 5 FMSHRC 322 (1983), 

(Koutras, J.) (brakes defective since they would no~ hold truck 

on level incline); Walsenburg Sand and Gravel Company, Inc., 

8 FMSHRC 451 (1986) (Carlson, J.) (leaking differential fluid 

from brakes; on conflicting evidence it was held that brake's 

effectiveness was not impaired). 

However, it is not an absolute requirement that the defect 

be on the equipment. In Allied Chemical Corporation, supra, 

at 1858, the Commission held a violation existed where there 

1784 
were two missing bolts in chocks. However, the distinction is 

that in Allied Chemical the missing bolts affected the integrity 

of a roof support system. 

In contrast, in the case at bar, there is no evidence that 

the lack of side screens adversely affected the operation of 

the Uniloader, rendered it defective, inadequate, or presented 

functional problems in its operation as a loader. 

In short, respondent was not on notice that MSHA would 

require side screens on the loader. It is a fundamental 

principle of due process that regulations which purport to 

govern conduct must give an adequate warning of what they 

command or forbid, Diebold, 585 F.2d at 1335. 

If MSHA had issued a prior notice requiring the use of 

side screens then it would have remedied the deficiency in the 

regulation's present coverage. Such prior notice could have 

been given by a safeguard or an interpretive bulletin. To like 

effect, ~Peabody Coal Company, 3 FMSHRC 392 (1981) (Kennedy, 

J.). However, the record here does not disclose that Ideal was 

on notice of a requirement that side screens must be used. 

The Secretary's post-trial brief points to the fact that 

respondent violated the identical regulation contested here in 

Ideal Basic Industries, Cement Division, 3 FMSHRC 843 (1981). 

The Secretary's argument is misdirected. The cited 

Commission case involved a violation of the same regulation. 

However, the defect was an observable defective hydraulic 

coupling. In the instant case there was no defective side 

screens, observable or otherwise. In short, the 1981 Commission decision would not put Ideal on notice that side 

screens were required on its Uniloader. To reiterate, no 

evidence has been presented in this case that would cause me 

to conclude that the side screens were in any way defective. 

Further, the absence of such screens did not affect the integrity of the Uniloader. 

The Secretary also relies on the testimony of witness 

Schafer to the effect that he warned Bertagnolli "to be careful 

with it." This warning came on October 19, 1987, the night 

Bertagnolli was killed. Schafer also described the Uniloader 

in these terms: 

It's just a dangerous piece of equipment 

from word one. It's probably one of the 

most dangerous pieces of equipment we have 

out here. (Tr. 46). 

1785 
The Secretary follows with a condemnation of the company 

in failing to train and guard its employees in the operation 

of this "dangerous 11 loader. 

I reject the Secretary's view of the evidence. In actuality, Schafer is referring to his repair of the cylinder arm 

during the day shift. After the cylinder was repaired he 

didn't notice anything that needed to be repaired on the loader 

(Tr. 50). He also ran it for two or three hours until quitting 

time. It was operating normally and as he expected it to operate (Tr. 51). This was the same piece of equipment Bertagnolli 

used (Tr. 55). If there had been a defect of some sort on the 

Uniloader he would have mentioned it to Bertagnolli (Tr. 63). 

When he heard about the accident he thought it might have had 

something to do with the malfunction of the cylinder but he 

checked. The cylinder had not malfunctioned (Tr. 66). Schafer 

did not think it was unsafe to operate the Uniloader without 

side screens (Tr. 68). 

The record does not develop any reasons for Schafer's 

apparently gratuitous statement relied on by the Secretary. 

In view of his clear factual statements to the contrary, 

I do not find his statements about "dangerous" equipment to 

be credible. 

As an aside, the Secretary would have the judge conclude 

that at least Schafer thought the Uniloader was dangerous. 

But Schaf er himself operated it without screens 11 every once 

in awhile". He also operated it without screens on the shift 

prior to Bertagnolli's accident (Tr. 40, 41, 88). 

The Secretary also contends that the Uniloader operators 

had the option of using the side screens. Further, she argues 

the lack of guards violates the company's safety manual. The 

manual provides "guards shall not be removed except for making 

repairs •••• " (Ex. P-29, p. 9). 

The Secretary's arguments are rejected. The evidence 

required to sustain this citation is whether the company had 

reasonable notice of MSHA's requirements that side screens 

were to be installed on this equipment. 

The Secretary also focuses on the evidence relating to the 

lowered ROPS, the make-shift plywood screen, the probability 

1786 
that Bertagnolli leaned out and was crushed by the arms, the 

improvised jackhammer, and, in general, the restricted work 

area. 

It is apparent that none of the above conditions would 

cause Ideal to believe that MSHA would require side screens. 

Inspector Stinson and Woodbeck clearly adhered to the 

views that the absence of side screens caused Bertagnolli's 

death. But such testimony is an after-the-fact evaluation. 

If it was so obvious after the fatality then it could have 

been readily observed and their installation required by MSHA 

before the fatality. 

In support of her position that the absence of equipment such as side shields adversely affected safety within 

the meaning of the regulation, the Secretary relies on 

Jacguays Mining Corporation, 5 FMSHRC 788 (1983) (Morris, J.); 

Allied Products Company, 2 FMSHRC 2517 (1980) (Fauver, J.); 

Allied Chemical Corporation, 6 FMSHRC 1854 (1984) (Commission); 

United States Steel Corporation, 6 FMSHRC 1423 (1984) (Commission); FMC Corporation, 4 FMSHRC 496 (1982) (Broderick, J.). 

The cases relied on by the Secretary are not controlling. 

In Jacguays Mining Corporation, a Gardner-Denver mucking machine 

did not have a step plate normally used by miners to stand on 

to operate the machine. However, Jacguays has no precedential 

value since the issue of due process was not raised as a defense. 

In Allied Products Company, an oil leak existed in a 

This condition affected the Bobcat's steering. In short, 

was a defect on the equipment which affected its safety. 

defects are within the scope of § 56.9002. 

Bobcat. 

there 

Such 

Allied Chemical Corporation, has been previously discussed. 

I further recognize the Commission's statements in the case 

that "[i]n both ordinary and mining industry usage, a "defect" is 

a fault, a deficiency, or a condition impairing the usefulness of 

an object or a part", Allied Chemical, 6 FMSHRC at 1857. However, 

as previously noted, in Allied Chemical the missing bolts in two 

chocks affected the integrity of the roof support system. In the 

instant case the safety of the Uniloader itself was not affected 

by the absence of the side screens. 

1787 
In United States steel Corporation, the defect consisted 

of failed brakes and disconnected drive shafts. Again, the 

Commission reiterated its view "that use of a piece of equipment containing a defective component that could be used and 

which, if used, could affect safety, constitutes a violation 

of 30 C.F.R. § 56.9-2" (now the present regulation), 6 FMSHRC 

at 1834. 

In FMC Corporation, a front leaf spring was disconnected 

from a shackle because of a missing bolt. The described condition of the spring shackle could affect the driver's ability 

to steer and stop the vehicle. In the case Judge Broderick 

concluded that a violation of § 57.9-2 occurred. The cited case 

again involved a situation where the defect was on the equipment 

and such de_fect, in turn, affected the safety of the equipment. 

In sum, none of the cases relied on by the Secretary support 

her position. 

Inasmuch as the respondent was not on notice that side 

screens were required on its Uniloader, it follows that the 

citation should be vacated. Accordingly, it is not necessary 

to consider the remaining issues in the case. 

For the foregoing reasons I enter the following: 

ORDER 

Citation No. 2649413 and all proposed penalties therefore 

are vacated. 

Law Judge 

Distribution: 

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

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

CO 80204 (Certified Mail) 

James J. Gonzales, Esq., Holland & Hart, 555 Seventeenth Street, 

Suite 2900, P.O. Box 8749, Denver, CO 80201 (Certified Mail) 

/ot 

1788 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

f°"' ;-· ;-.. .... \~. \_i 

V"-..; 211989 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SOUTHERN OHIO COAL co. I 

Respondent 

Docket No. WEVA 89-87 

A.C. No. 46-03805-03887 

Martinka No. 1 Mine 

DECISION 

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

Department of Labor, Arlington, Virginia, for the 

Secretary of Labor (Secretary); Rebecca J. Zuleski, 

Esq., Furbee, Amos, Webb & Critchfield, Morgantown, 

West Virginia, for Southern Ohio Coal Co. (SOCCO) 

Before: Judge Broderick 

STATEMENT OF THE CASE 

The Secretary filed a Petition for the assessment of civil 

penalties for three alleged violations of mandatory safety 

standards promulgated under the Federal Mine Safety and Health 

Act of 1977 (Act). Pursuant to notice, the case was called for 

hearing on August 22, 1989, in Morgantown, West Virginia. At the 

hearing, the Secretary moved for the approval of an agreed upon 

settlement with respect to two violations, namely those charged 

in orders 3117591 and 3117599. Both citations changed violations 

of 30 C.F.R. § 75.303. Both were designated as unwarrantable 

failure violations and each was assessed at ~650. The motion 

proposes that Respondent pay $650 for each violation, but that 

the unwarrantable failure finding be withdrawn and the 104(d)(2) 

orders be modified to 104(a) citations. The basis for the 

modification is the difficulty in proving that the operator was 

aware of the locations of the violative conditions in the mine. 

I stated on the record that I would approve the settlement. In 

the hearing on the remaining alleged violation, Terry Palmer and 

Raymond Glaspell testified on behalf of the Secretary. Dan 

Conaway and Douglas McQuaid testified on behalf of SOCCO. The 

parties waived their right to file posthearing briefs and argued 

their positions on the record. I have considered the entire 

record and the contentions of the parties, on the basis of which 

I make the following decision. 

1789 
subject order, of which 20 were violations of 30 C.F.R. § 75.316. 

This history is not such that penalties otherwise appropriate 

should be increased because of it. 

ISSUES 

1. Whether the evidence establishes a violation of the 

approved ventilation plan and therefore of 30 C.F.R. § 75.316? 

2. If a violation is established, was it significant and 

substantial? 

3. If a violation is establi3hed, was it caused by SOCCO's 

unwarrantable failure to comply with the standard? 

4. If a violation is established, what is the appropriate 

penalty? 

CONCLUSIONS OF LAW 

SOCCO is 3ubject to the provisions of the Act in the 

operation of the subject mine, and I have jurisdiction over the 

parties and subject matter oi tnis proceeding. 

The evid8nce clearly establishes that SOCCO was not in 

compliance with its approved ventilation plan on 

October 12, 1988, in that it did not have coinpleted permanent 

stoppings called for in the plan in crosscuts No. 3 and No. 4 

outby the £ace, at the time the contested order was issued. 

Therefore a violation of 30 C.F.R. § 75.316 is established. 

A violation is properly designated as significant and 

substantial if there is a reasonable likelihood that the hazard 

contributed to by the violation will result in an injury or 

illness of a reasonably serious nature. Cement Division, 

National Gypsum Co., 3 FMSHRC 822 (1981); Mathies Coal Co., 6 

FMSHRC 1 (1984); U.S. Steel Mining Company, Inc., 7 FMSHRC 1125 

(1985). The in3pector was of the opinion that the violation was 

significant and substantial because it would result in a tendency 

to lose air from the intake aircourse, and because methane has 

been found in this section. However, the evidence shows that the 

air velocity was adequate and methane was negligible at the time 

the order was issued. The stoppings had been conatructed and the 

absence of plaster on the stoppings would, according to SOCCO 

production engineer McQuaid, not cause any 3ignificant 

interruption in ventilation. I conclude that the Secretary has 

not established that there was a reasonable likelihood that the 

hazard contributed to by the violation would result in inJury. 

~he violation was not properly designated as significant and 

substantial. 

1790 
FI~DINGS OF FACT 

SOCCO is the owner and operator of an underground coal mine 

in Marion County, West Virginia, known as the Martinka No. 1 Mine. 

Three shifts were working at the mine as of October 12, 1988, tne 

day shift being a maintenance shift, and the other two being 

pcoduction shifts. 

Federal mine inspector Terry Palmer conducted a ventilation 

technical inspection of the subject mine on October 12, 1988. He 

entered the mine at the beginning of the aternoon shift, and 

proceeded to the 1 North section after terminating previously 

issued violations in the 3 West section. At about 7:00 p.m. he 

issued order 2944386 charging a violation of 30 C.F.R. § 75.316 

because the approved ventilation plan was not being complied with. 

The ventilation plan required that permanent stoppings be 

maintained to and including the third crosscut outby the face. 

The miner was operating in the No. 2 entry and coal was being 

produced. The first crosscut outby was open, the second had a 

check curtain and the third and fourth had stoppings constructed 

of block, but were not plastered as the plan required. 

Plastering work had begun on the No. 4 crosscut stopping at the 

time the order was issued, but no plastering had been done on the 

No. 3 crosscut stopping. The section foreman told the inspector 

that the two stoppings were con~tructed on the afternoon shift 

the previous day. The midnight shift (a production shift) and 

the day shift (a maintenance shift) intervened before the 

inspection began. 

The ventilation on the section was measured at 10,272 cubic 

feet per minute on the left return, and 22,344 cubic feet on the 

rignt return. This was in excess of tne minimum requirement of 

9,000 cubic feet per minute. A methane re~ding Ghowed .1 percent 

in the right return, and .2 percent in the left return. 

The condition was abateu by finishing the plastering of the 

two stoppings and the order ~as terminated at 7:30 p.m. on 

October 12, 1988. 

The production records (call out sheets dnd map) indicate 

that the section had advanced to the point where a permanent 

stoppings were required in the No. 3 and No. 4 crosscut on or 

about the midnight shift on October 10, 1983 and on or about the 

midnight 5hi£t on October 11, 1988. 

Respondent is a large operator and the subject mine is a 

large mine. The history of prior violations show~ 958 paid 

violations during the 24 month3 prior tu the is3uance of the 

1791 
A finding that a violation resulted from unwarrantable 

failure to comply with the standard is established if the 

evidence shows "aggravated conduct, constituting more than 

ordinary negligence, by a mine operator in relation to a 

violation of the Act." Emery Mining Corp., 9 FMSHRC 1997, 2004 

(1987). 

The evidence shows that SOCCO had partially completed the 

required stoppings. It also shows that seven or eight shifts, 

including four or five production shifts had occurred after the 

first stopping was required. The failure to plaster the 

stoppings was evident, and should have been observed by foremen 

on each intervening shift. The plastering could have been 

completed by a crew of three in 15 or 20 minutes. I conclude 

that the violation resulted from SOCCO's aggravated conduct 

constituting more than ordinary negligence. The violation was 

properly designated as significant and substantial. 

Based on the above conclusions, I further conclude that the 

violation was moderately serious and was caused by a high degree 

of negligence. Under the criteria in section llO(i) of the Act, 

an appropriate penalty for the violation is $400. 

ORDER 

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

IT IS ORDERED: 

(1) Order 3117591 is modified to a 104(a) citation, and the 

designation of unwarrantable failure is removed: 

(2) Order 3117599 is modified to a 104(a) citation, and 

designation of unwarrantable failure is removed. 

(3) Order 2944386 is modified to remove the designation of 

significant and substantial and, as modified, is AFFIRMED 

including the designation of unwarrantable failure. 

(4) Within 30 days of the date of this decision SOCO shall 

pay the following civil penalties: 

1792 
CITATION OR ORDER 

3117591 

3117599 

2944386 

Distribution: 

TOTAL 

PENALTY 

$650 

650 

400 

$1700 

,., 

H~§ _,~l~~v(k,v~e/t{ James A. Broderick 

•· Administrative Law Judge 

Mark Malecki, Esq., U.S. Department of Labor, Office of the 

Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 {Certified 

Mail) 

Rebecca J. Zuleski, Esq., Furbee, Amos, Webb & Critchfield, Suite 

4, 5000 Hampton Center, Morgantown, WV 26505 (Certified Mail) 

slk 

1793 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

DONALD D. DAWSON, 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SEP 2 5 i989 

: Ul~CRIMINATION PROCEEDING 

complainant Docket No. PENN 89-198-DM 

MD 89-01 

v. 

J.T. DYER QUARRY, 

Respondent 

ORDER OF DISMISSAL 

Be tore: Judge Merlin 

On May 16, 1989, you tiled with this Commission a complaint 

of discrimination under section lOS(c) of the Federal Mine 

Safety and Health Act 1977. On July 18, 1989, a show cause 

order was issued directing you to provide information regarding 

your complaint or show good reason for your failure to do 

so. The show cause was mailed to you certified mail, return 

receipt requested and the file contains the receipt card 

indicating you received the show cause order. You have 

however, not responded and complied with the show cause 

order. 

Accordingly, this case is DISMISSED. 

_..... \ ~ () 

----"""',-~ Paul Merlin 

Chiet Administrative Law Judge 

Distribution: 

Donald D. Dawson, R.D. # 1, Box 333, Elverson, PA 1Y520 (Certified 

Mail) 

J.T. Dyer Quarry, P.O. Box 118,Birds Bero, PA 19508 (Certified 

Mail) 

Office of Special Investigations, MSHA-Metal, U.S. Department 

of Labor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail) 

/sc 

1794 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

. • .. ~- ,r, 

">· ~~- ~ .: 

CYPRUS EMPIRE CORPORATION, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CYPRUS EMPIRE CORPORATION, 

Respondent 

'~) r~ . ! . ' ~-

. . 

. . 

. . . 

DECISION 

CONTEST PROCEEDINGS 

Docket No. WEST 88-247-R 

Order No. 3225477; 3/4/88 

Eagle No. 5 Mine 

Mine ID 05-01370 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 89-13 

A.C. No. 05-01370-03580 

Eagle No. 5 Mine 

Appearances: Margaret A. Miller, Esq., Office of the Solicitor, 

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

For Petitioner/Respondent; 

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

Pittsburgh, Pennsylvania, 

For Contestant/Respondent. 

Before: Judge Morris 

These consolidated contest and civil penalty proceedings 

are before me pursuant to section 105(d) of the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. § 801 et seg., (the 

"Act"> • 

Contestant/Respondent Cyprus Empire Corporation (hereafter "Empire"), challenges the issuance by the Secretary 

of a citation and order involving the regulatory standard at 

30 C.F.R. § 70.100. 

After notice to the parties a hearing on the merits was 

held in Denver, Colorado. The parties filed post-trial briefs. 

1795 
Summary of the Cases 

On March 4, 1988, MSHA issued Citation Number 9996225 

under section 104(a) of the Act alleging a violation of 30 C.F.R. 

§ 70.100. 

On May 23, 1988, MSHA issued Order No. 3225447 under section 

104(b) of the Act. The order caused the production of coal to 

cease in the longwall section of the mine. 

Citation No. 9996225 reads 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 044 in mechanized 

mining unit 001-0 was 2.2 milligrams 

which exceeded the applicable limit of 

2.0 milligrams. See attached computer 

printout dated March 1, 1988. Management 

will 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 in 

the area. 

Order No. 3225447 reads as follows: 

Based on the latest block of 5 samples 

received, the average concentration of 

respirable dust was 2.9 milligrams per 

cubic meter of air on MMU 001-0. The 

concentration has increased from 2.2 

milligrams to 2.9 milligrams since the 

issuance of the citation. The operator's 

present approved respirable dust control 

plan has been unsuccessful in reducing 

the respirable dust concentrations. 

Production of coal from this section 

shall immediately close. 

1796 
The regulation allegedly violated provides, in part, as 

follows: 

§ 70.100 Respirable dust standards 

(a) Each operator shall continuously 

maintain the average concentration of 

respirable dust in the mine atmosphere 

during each shift to which each miner 

in the active workings of each mine is 

exposed at or below 2.0 milligrams of 

respirable dust per cubic meter of air 

as measured with an approved sampling 

device and in terms of an equivalent 

concentration determined in accordance 

with § 70.206 (Approved sampling devices; 

equivalent concentrations). 

Stipulations 

At the commencement of the hearing the parties stipulated 

as follows: 

1. The Eagle No. 5 mine is owned and operated by Empire. 

2. The Administrative Law Judge has jurisdiction over these 

proceedings. Both Empire and the Eagle No. 5 mine are subject 

to the jurisdiction of the Federal Mine Safety and Health Act of 

1977. 

3. The annual production of the Eagle No. 5 mine is approximately 1.7 million tons and the parties have agreed that Empire 

is a large operator. 

4. The subject Order, Citation, modifications thereto and 

termination were properly served by a duly authorized representative of the Secretary of Labor upon agents of Cyprus Empire 

on the dates 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 inserted therein. 

5. The imposition of a penalty by the Administrative Law 

Judge will not affect Empire's ability to continue in business. 

Empire does not stipulate that the imposition of any penalty is 

appropriate. 

1797 
summary of the Evidence 

Lewis Raymond and Phillip Gibson testified for the 

Secretary. 

LOUIS D. RAYMOND has been with MSHA for 27 years. He is 

the Branch Chief 1/ of the Pittsburgh Lab. The facility, with 

a capacity to process up to 500 to 600 samples per day, primarily 

weighs respirable coal dust. It also handles data transmission. 

The weighing branch of the lab has prepared an informational report in booklet form showing the entire proceedings of the 

dust samples (Ex. P-20). 

Coal mine operators are obliged to sample for respirable 

dust and to submit five valid samples every two months. The 

samples themselves are taken by attaching a cassette in the 

breaking zone of a miner. The normal sampling time is 480 

minutes which is based on an eight-hour day. 

The sample may be invalidated by MSHA if the data card 

is improperly filled out. The card itself lists certain information such as the cassette number, the mine I.D., the mine 

name, the date of the sample, the sampling time, the tonnage 

of that production shift, the type of sample, the MMU number 

and the occupational code, the certified person and the initial 

weight of the cassette. 

When the samples are received at the lab a certified person 

takes them to a separate area. The ceiling tape and plug are 

then removed. The inner portion (capsule) of the cassette is 

removed with a forceps and the material is placed in trays. ~/ 

The capsules themselves are then desiccated by being placed 

in a four-foot vacuum drier for 15 minutes. This procedure removes the surface moisture. If heat was us~d it would have a 

tendency to drive off the inherent moisture in the coal. The 

vacuum changes the water to a vapor and withdraws it. 

After 15 minutes the samples are removed and are permitted 

to acclimate in the air for one hour. The lab environment is 

controlled at 72 degrees and 50 percent humidity. 

1/ Chief, Weighing Branch, Dust Division, Pittsburgh Health 

Technology Center. 

~/ See Figure 3A and 3B of Exhibit P-20. 

1798 
The cassettes are automatically weighed (See figure 5 

of Exhibit P-20). A small printed-out sticker is attached. 

Generally the lab weighs 300 samples a day. ~/ Any excessive 

cassettes are weighed manually. Automatic weighing is more 

precise than manual weighing. 

All data cards are stamped and sequentially numbered. Every 

sample received is weighed as it is received. The computer 

selects the first five samples received to determine the average 

weight. Additional samples are voided as excess (Tr. 72-73). 

Exhibit P-18, a computer printout, illustrates how the 

samples are listed by the computer in the order of the date 

received by the computer. Certain codes indicate why a sample 

was voided or was not used. 

The lab maintains a quality control over its weighing 

system: under the system, one cassette out of eight is weighed 

twice. If the two weighs do not agree the last eight must be 

reweighed. 

The lab also checks the quality of the cassette samples 

for stability and they are compared to MSHA's weight. If any 

cassette does not agree within one milligram, then the entire 

day's production must be reweighed. MSHA technicians in the 

field also reweigh filters and send in reports. There is also 

a program to determine whether the information received is 

correctly entered into the computer. 

The main variable is .1 mg/m3; the lab records to the 

nearest .1 mg/m3. 

The method of desiccation used by the lab has been in place 

since 1970. The method used to weigh samples is an accepted 

scientific method of doing so and has been studied at this lab 

by the U.S. Bureau of Standards. 

The data cards are removed after the results are recorded. 

The sample then goes to the data transmission room. In turn, 

the data goes to the MSHA computer room in Denver. 

Mr. Raymond discussed at length the various codes used by 

the lab to designate the disposition of various samples. 

ll The correct measure of coal dust concentration is ! mg/m3. 

Occasionally, the shorthand of ! mg is used. 

1799 
After the reports are generated they 

and the MSHA field off ice. Citations are 

indicate concentrations above 2.0 mg/m3. 

own sample sheets and records the results 

from MSHA. 

go to the operator 

issued when the reports 

The operator keeps its 

as they are received 

Since coal is usually wetted during the mining process, 

the samples are dried or desiccated to be certain that the excess 

moisture is removed from the samples. (Excess moisture could 

establish excessive respirable coal dust). The lab process 

removes excess moisture but allows inherent moisture to remain. 

Any sample that appears to have excess moisture is marked as 

a contaminated sample and not tested by the lab. Also, any 

sample that contains oversized particles is marked as contaminated. The MSHA lab has determined that 15 minutes is the 

amount of time to completely dry samples in the desiccator. 

Empire requested information regarding its samples and the 

lab responded (Exhibits P-19, Ex. 27). Empire expressed concern 

about excess moisture (16% to 40% moisture content). 

With Empire's inquiry in mind, Mr. Raymond conducted a study 

to see if the lab's procedure was adequate. Empire had marked 

some cassettes as containing excessive moisture. The lab treated 

them further, using several approaches. 

One approach was a heating process to heat the samples for 

one hour at 105 degrees F. Prior to heating the samples, the 

lab heated these blank samples to study the effect. They then 

heated the 11 samples. The blank samples lost .06 milligrams 

(as indicated on page 2 of Mr. Raymond's memo, Exhibit P-19.) 

The memo lists the weights of the blanks and the samples after 

vacuum desiccation and again after heating for one hour. The 

differences in the samples was negligible. 

The eleven samples from Empire, marked "excess moisture", 

were heated for one hour and returned to the room. The 

weight difference was .07 mg/m3 and the standard deviation 

was .08 mg/m3. Mr. Raymond concluded the weight difference 

was not significant as it was only plus or minus .1 mg/m3. 

(See Exhibit P-19). 

By these tests Mr. Raymond concluded the moisture was 

being adequately removed by the MSHA vacuum system. This is 

particularly true since any weight differences are entered as 

"truncated". For example, if the cassette weighs 2.19 m:1 it 

is entered as 2.1. The truncation of weights is to avoid any 

1800 
plus or minus errors. The lab does not normally perform this 

additional heat treatment but the method had been used by 

Empire at its lab. 

In Mr. Raymond's opinion vacuum desiccation is an accurate 

way of removing moisture. 

An additional experiment confirmed Mr. Raymond's opinion: 

he retrieved a dust sample cassette and placed a 20 mg drop of 

water on it. This is 10 to 20 times the normal weight differential. The cassette was then treated normally in the vacuum 

and re-evaluated. It was found the cassette had returned to 

its initial weight. 

An additional experiment he conducted involved the use 

of 24 samples and a lot of water. The samples were initially 

weighed without vacuuming and then heated for in excess of 

16 hours at 50 degrees F. It was found that only two of the 

24 filters had an additional .1 mg weight. In short, the results 

were within the plus-minus .1 mg accuracy factor. 

Mr. Raymond expressed the opinion that the lab uses 

scientific methods. Further, the vacuum process is accurate 

to a degree of scientific certainty. 

PHILLIP R. GIBSON, JR. is an MSHA inspector experienced 

in mining. Mr. Gibson issued the failure to abate order at the 

Eagle No. 5 mine on May 23, 1988 (Exhibit P-9). 

MSHA Inspector Grant McDonald had written the original 

citation on March 4, 1988. Inspector McDonald is in charge of 

the respirable dust program for Eagle No. 5 underground coal 

mine. 

The abatement date on the original citation was extended 

several times. 

Inspector Gibson wrote the contested order on May 23, 1988. 

The order was written without an on-site inspection. The computer printout indicated high concentrations of respirable dust 

were being generated. The average concentration was going up 

instead of down. In view of the upward movement of the concentrations Inspector Gibson declined to grant any further extension 

of the abatement date. 

After he wrote the 104(b) order Inspector Gibson went underground and placed the closure order on the shear. The shear was 

tagged to indicate it was the main source generating the dust. 

1801 
Overexposure to coal dust, a serious hazard, can cause black 

lung disease, also called pneumoconiosis. 

On May 24th Inspector Gibson was advised by his superior 

that the company was in compliance. He then checked and saw that 

the perimeters of the revised dust plan were in place (as per 

Ex. P-10). He then allowed mining to be resumed. The termination was based in part on Exhibit P-13, the computer printout 

showing that the concentrations for the MMU in the longwall were 

at or below the 2.0 mg/m3 concentration required by the regulation. 

In cross-examination Inspector Gibson indicates he is essentially a safety inspector. Further, excessive dust is controlled 

by trial and error methods. Because the coal dust was increasing 

the inspector refused to grant a further extension. The concentration rose from 2.2 to 2.9 ng/m3. 

The inspector didn't look for inconsistencies in the 

sampling and he didn't have earlier printouts to be used as a 

comparison. 

Empire's Evidence 

Robert Stalter, Samuel Cario and James Dodd testified for 

Empire. 

ROBERT STALTER, a person experienced in m1n1ng, serves as 

Empire's superintendent of safety and loss control. 

Mr. Stalter described how the respirable coal dust pumps 

are calibrated and how the dust samples are taken. Basically, 

the pumps are attached to the miners and left running until the 

miner leaves his job site. 

When the sampling is completed the MSHA cards are filled out 

and the cassettes are forwarded to MSHA within 24 hours. 

Mr. Stalter is familiar with various sampling procedures 

and the protection provided for the longwall operators. All 

shear operators prefer and wear AIRSTREAM helmets. Such MSHA 

approved helmets filter the air before it enters the face piece. 

The use of such a helmet alleviates the hazard from respirable 

dust. Affidavits at the hearing indicated the operators were 

all wearing helmets when they were sampled (Exhibit E-8 through 

E-14). 

The shear operators pref er the AIRSTREAM because it is a 

full-face piece. The witness has seen only one shear operator 

1802 
without an AIRSTREAM helmet. MSHA's approval of the helmet has 

its limitations: some shear operators chew tobacco and they must 

lift the face shield to spit. 

Empire now samples its miners for respirable coal dust. 

The in-house sampling is then verified by a nearby lab known as 

CT&E, which has duplicated the MSHA lab. CT&E gives Empire the 

initial weight and the company determines the concentrations. 

Mr. Stalter agrees excessive coal dust is a hazard; however, 

he believes 2.0 mg. is not excessive. 

Mr. Stalter's work duties include taking and testing 

samples. 

MSHA samples were taken at the tailgate because the highest 

concentration was at that location. The longwall is 750 feet 

long. 

SAMUEL L. CARIO, a person experienced in mining, is Empire's 

longwall coordinator. Mr. Carie received the citation from 

Inspector McDonald. The inspector suggested the company take a 

second set of samples. 

In order to reduce the dust Mr. Carie studied changes at the 

shear. The final decision involved the use of belting. Empire 

obtained several extensions from MSHA. 

On the 20th Empire began to develop a plan (Ex. 21). The 

plan, submitted to MSHA on the 23rd, provided for the installation of a curtain on the third shield and an additional spray on 

the shear. The changes were not tested before the failure to 

abate order. After the 104Cd) order company representatives met 

with MSHA personnel in Denver. MSHA declined to approve the plan 

until additional changes were made. MSHA finally approved the 

plan (Ex. E-23). 

Mr. Carie could not evaluate the effect of the 

changes. But MSHA officials issued their approval. 

company could resume production, MSHA's approval 4/ 

plan had to be physically returned to the mine site 

required 

Before the 

and the dust 

(Ex. E-2 3) • 

Empire's program requires the shear operators to wear 

AIRSTREAM helmets. Spare helmets are kept on the section. 

Production is shutdown if helmets are not available. 

~/ As required by 30 C.F.R. § 75.316. 

1803 
JAMES B. DODD, Empire's Superintendent of Mining, develops 

methane ventilation and dust control plans. The witness submitted an amendment to the dust control and ventilation plan to 

MSHA (Ex. E-23). Originally the witness believed they would have 

time to develop a plan before a failure to abate order would 

issue. 

MSHA thought the company's initial proposal was inadequate. 

Empire agreed to MSHA's counter-proposal to increase the sprays 

and the psi pressure. 

After MSHA's approval the plan was carried back to the mine 

at Craig, Colorado. 

The implementation of the changes was not successful. MSHA 

was advised and on the 25th a new plan was submitted. MSHA 

approved the revised plan (Ex. E-25). 

There were so many changes it was difficult to see the contribution of each change. 

Correspondence from Empire to MSHA's representative, John 

M. DeMichiei 5/ addresses the issues of moisture in the cassettes 

and the requirement of numerous controls without being able to 

test the results (Ex. E-27). 

The dust control in the longwall is not an exact science and 

dust problems are solved by trial and error. 

Further Findings and Evaluation of the Evidence 

Certain threshold issues here involve whether MSHA properly 

selected Empire's respirable dust standards for sampling; 

further, whether MSHA adequately dried the respirable dust 

samples and, finally, whether the citation and order were 

properly issued under section 104(a) and 104(b) of the Act. 

The uncontroverted evidence shows that in February 1988 

Empire submitted seven respirable dust samples of the longwall 

shearer operator on the tailgate side to MSHA in compliance with 

30 CFR § 70.100. 

~/ MSHA District Manager, Denver, Colorado. 

1804 
Section 70.207 requires each operator to submit five respirable dust samples to MSHA. However, it is the usual industry 

practice to submit seven samples to avoid not having submitted 

enough if any samples are voided (Ex. E-5). 

The results of the samples as submitted were determined by 

MSHA to be as follows: 

MRE 

Cassette Date CEguivalent Concentration) 

46024406 2-12-88 3.0 mg/m3 

46024205 2-16-88 2.1 lD9' /m3 

46024403 2-17-88 2.2 mg/m3 

46024231 2-18-88 0.4 mg/m3 

46024209 2-18-88 2.5 mg/m3 

46024254 2-22-88 1. 0 mg/m3 

46024225 2-23-88 3.3 mg/m3 ( P-2 ) • 

On March 1, 1988, MSHA sent Empire an "Advisory of Excessive 

Dust." The advisory stated that cassette number 46024209 had 

been voided for insufficient production (Ex. P-2). The advisory 

did not list the sample for February 22, 1988, which showed a 

concentration of 1.0 mg/m3 (Ex. E-2, P-18). 

If the February 22 sample, rather than the later February 23 

sample, had been included in MSHA's calculations the average concentration would have been 1.7 mg/m3. On this basis the concentration would be within the limits of the regulation (Tr. 94-5, 

Ex • E-2 , P-18 ) • 

On March 4, 1988, MSHA Inspector Grant McDonald issued 

Citation No. 9996225 pursuant to section 104(a) of the Act for 

a violation of the respirable dust standard <Ex. P-1). 

The citation directed Empire to sample each production shift 

until five valid samples were taken and submitted to MSHA. 

After the citation was issued Empire raised with MSHA the 

absence of the February 22 sample. (Empire did not know of the 

exact concentration of the February 22 sample until the hearing 

(Tr. 160, Ex. E-5, P-18)). 

The Secretary's standard concerning collection of the 

samples is contained in 30 C.F.R. § 70.207. It provides, in 

part, as follows: 

Designated occupation samples shall 

be collected on consecutive normal production shifts each of which is worked 

on consecutive days. 

1805 
The thrust of Empire's argument is that if MSHA had based 

its calculations on consecutive production shifts then the 

February 22, 1988, sampling would take precedence over the later 

sampling. Given such a sequence, Empire would have been in 

compliance with the regulation. 

I reject Empire's position. MSHA's lab expert Raymond 

indicated the samples, if otherwise valid, are stamped and 

weighed in the sequence they are received. Cassettes in excess 

of the required five are automatically rejected from the computer's calculations. The operator benefits from being able 

to submit seven samples, two in excess of the required five. 

Accordingly, Empire's actions created the situation and Empire 

cannot complain of MSHA's unbiased approach, a first-come 

first-weighed basis. 

I appreciate the situation: the February 22 sample was 

not used for the initial set of results because it reached the 

computer after the February 23 sample. At the same time it 

cannot be used for abatement because it was received before the 

citation was issued. However, as noted, the paradox was caused 

by Empire's submission of excessive samples. It was not caused 

by MSHA's approach to weighing the samples. 

Empire further contends that MSHA failed to properly dry 

the samples. 

Empire's evidence that MSHA's procedures were inadequate 

arises mainly from the fact that the Occupational Safety and 

Health Administration (OSHA) requires respirable dust standards 

to be dried for 24 hours (Ex. E-30). In contrast, MSHA only 

dries the samples at its weighing branch for 15 minutes. 

On this credibility issue I credit the testimony of MSHA's 

expert Raymond. 

Mr. Raymond indicated the surface moisture is removed 

when the cassettes are placed in a four-foot vacuum drier for 

15 minutes. Several quality controls of MSHA's procedures exist 

in its lab. 

When Empire complained that excessive moisture was not 

being properly dried from its cassettes, Mr. Raymond conducted 

several experiments. The summary of the evidence sets forth in 

detail Mr. Raymond's testimony. Expert testimony is commonly 

given greater weight than lay testimony, U.S. Steel Corporation 

v. OSHRC, 537 F.2d 780, 783 (3rd Cir. 1976). In this case I 

find the expert testimony of Mr. Raymond to be credible and 

persuasive. 

1806 
Empire's evidence of OSHA's filter weighing procedures arise 

from Empire's Exhibit E-30, the OSHA Industrial Hygiene Technical 

Manual. On page II OSHA requires, in part, that it is necessary 

to "desiccate all filters at least 24 hours before pre-sample and 

post-sample weighing." 

I do not find OSHA's procedures to be controlling or persuasive. There is no reason to remove inherent moisture in 

respirable coal dust because when the standard was set it took 

in account such moisture. OSHA also tests a broader number of 

substances than respirable coal dust. Hence, by desiccating for 

an hour it may be attempting to break down the substances for 

further chemical testing. In addition, there is no evidence 

here showing the similarities, or differences, between the 

filters themselves. 

Further, as indicated, I credit the testimony of Mr. Raymond 

when he concluded that the method used at the MSHA lab in Pittsburgh is a valid scientific approach. 

At the hearing, Empire's evidence established the company 

took samples to its own lab known as CT&E. At this lab the 

company obtained different results as compared to the MSHA lab. 

I reject Empire's evidence because the Empire samples were 

taken of the headgate operator on the longwall while MSHA's 

samples were taken of the tailgate operator. 

An additional threshold issue is whether the citation and 

order herein were properly issued under section 104(a) and 104(b) 

of the Act. 

Section 104(a), under which the citation herein was issued, 

provides as follows: 

Sec. 104.Ca) If, upon inspection or investigation, the Secretary or his authorized representative believes that an operator of a coal 

or other mine subject to this Act has.violated 

this Act, or any mandatory health or safety 

standard, rule, order, or regulation promulgated 

pursuant to this Act, he shall, with reasonable 

promptness, issue a citation to the operator. 

Each citation shall be in writing and shall 

describe with particularity the nature of the 

violation, including a reference to the provision of the Act, standard, rule, regulation, 

1807 
or order alleged to have been violated. In 

addition, the citation shall fix a reasonable 

time for the abatement of the violation. The 

requirement for the issuance of a citation with 

reasonable promptness shall not be a jurisdictional prerequisite to the enforcement of any 

provision of this Act. 

Section 104(b), under which the order herein was issued, 

provides as follows: 

(b) If, upon any follow-up inspection of a coal 

or other mine, an authorized representative 

of the Secretary finds (1) that a violation 

described in a citation issued pursuant to subsection (a) has not been totally abated within 

the period of time as originally fixed therin 

or as subsequently extended, and (2) that the 

period of time for the abatement should not be 

further extended, he shall determine the extent 

of the area affected by the violation and shall 

promptly issue an order requiring the operator 

of such mine or his agent to immediately cause 

all persons, except those persons referred to 

in subsection (c), to be withdrawn from, and 

to be prohibited from entering, such area until 

an authorized representative of the Secretary 

determines that such violation has been abated. 

Section 104(f), which Empire claims to be the relevant enforcement section of the Act, provides: 

(f) If, based upon samples taken, analyzed, 

and recorded pursuant to section 202(a), or 

samples taken during an inspection by an 

authorized representative of the Secretary, 

the applicable limit on the concentration of 

respirable dust required to be maintainea 

under this Act is exceeded and thereby violated, the Secretary or his authorized representative shall issue a citation fixing a 

reasonable time for the abatement of the 

violation. During such time, the operator 

of the mine shall cause samples described in 

section 202(a) to be taken of the affected 

area during each production shift. If, upon 

the expiration of the period of time as originally fixed or subsequently extended, the 

1808 
Secretary or his authorized representative 

finds that the period of time should not be 

further extended, he shall determine the extent of the area affected by the violation 

and shall promptly issue an order requiring 

the operator of such mine or his agent to 

cause immediately all persons, except those 

referred to in subsection Cc), to be withdrawn from, and to be prohibited from entering, such area until the Secretary or his 

authorized representative has reason to believe, based on actions taken by the operator, 

that such limit will be complied with upon 

the resumption of production in such mine. 

As soon as possible after an order is issued, 

the Secretary, upon request of the operator, 

shall dispatch to the mine involved a person, 

or team of persons, to the extent such persons 

are available, who are knowledgeable in the 

methods and means of controlling and reducing 

respirable dust. Such person or team of persons shall remain at the mine involved for 

such time as they shall deem appropriate to 

assist the operator in reducing respirable 

dust concentrations. While at the mine, such 

persons may require the operator to take such 

actions as they deem appropriate to insure 

the health of any person in the coal or other 

mine. 

The Commission has generally considered the overall enforcement scheme of the Act. Nacco Mining Company, 9 FMSHRC 1541 

(1987) Cement Division, National Gypsum Company, 3 FMSHRC 822, 

828 (1981). In reviewing the structure of the Act the Commission 

noted that it provides "for increasingly severe sanctions for 

increasingly serious violations or operator behavior." Sections 

104(a) and llO(a) provide that the violation of any mandatory 

standard requires the issuance of a citation and assessment of 

a monetary civil penalty. Under section 104Cb) and llO(b), if 

the operator does not correct the violation within the prescribed period, the more severe sanctions of a withdrawal order 

is required, and a greater civil penalty is assessed. Under 

section 104Cd), if an inspector finds a violation and also finds 

that the violation is of a significant and substantial nature and 

1809 
has resulted from the operator's unwarrantable failure to comply 

with the standard, a citation noting those findings is issued. 

Section 104(d) citations carry enforcement consequences potentially more severe than "section 104(b)" sanctions. If further 

unwarrantable failure violations occur within 90 days of the 

citations issued under 104Cd), unwarrantable failure withdrawal 

orders are triggered. Issuance of the withdrawal orders does 

not cease until an inspection of the mine discloses that no unwarrantable failure violations exist. 

Only section 104(a) of the Act authorizes the issuance of 

a citation. such a citation may include any violation of a regulation or of the Act itself. In view of the established case 

law, it is apparent that MSHA properly issued its citation under 

section 104(a). For the reasons previously stated, it further 

properly issued its withdrawal order under section 104(b). 

In her citation in the instant case the Secretary could 

have alleged a violation of section 104(f) of the Act but instead 

she alleged a violation of her regulation, 30 C.F.R. § 70.100. 

Empire claims that MSHA's enforcement of the respirable dust 

standard deprived the company of certain remedies provided under 

Section 104(f). Specifically involved is a matter of assistance 

by MSHA to the operator. On this point Empire relies on that 

portion of section 104(f) which provides that: 

As soon as possible after an order [of 

withdrawal] is issued, the Secretary, 

upon request of the operator, shall dispatch to the mine involved a person, 

or team of persons, to the extent such 

persons are available, who are knowledgeable in the methods and mean of controlling and reducing respirable dust. 

Such person or team of persons shall remain at the mine involved for such time 

as they shall deem appropriate to assist 

the operator in reducing respirable dust 

concentrations. (Emphasis added) 

I agree with Empire that the requirements of the Secretary's 

regulaton must be read in conjunction with section 104(f) of 

the Act. It is a clearly established principle of statutory 

construction that specific language in one provision controls 

over general language in another provision. General Electric 

Company v. Occupational Safety and Health Review Commission, 

583 F.2d 61, 65 (2nd Cir. 1978); American Telephone & Telegraph 

Co. v. FCC, 487 F.2d 865, 877, n. 26 (2d Cir. 1973); Sutherland 

Stat. Const.§ 47, 17-20, (4th Ed). 

1810 
The issue then evolves whether Empire triggered the obliga~ 

tion of MSHA to furnish assistance to deal with the respirable 

dust concentrations. I conclude the record does not support 

Empire's claim. The conversation about assistance from~ MSHA is 

totally lacking in any reference to the statutory requirements 

of section 104(f) (Tr. 120-121, 220-223). But in any event the 

request was made on May 20, 1988 and the 104(b) failure to abate 

order was issued on May 23, 1988 (Ex. P-9). 

The obligation to furnish assistance under 104(f) can arise 

only after an order of withdrawal had been issued to Empire. 

Since Empire raises the lack of assistance from MSHA to 

defeat the citation it is obliged to prove that it fits the 

statutory requirements. It has not done so. 

Empire further contends that if a violation exists it should 

not be designated significant and substantial. 

Empire's view that the violation was not S&S is based on 

the Commission's decision in Consolidation Coal Company, 8 FMSHRC 

890 (1986), aff'd 824 F.2d 1071 (D.C. Cir. 1987). In support of 

its position Empire relies on the following portions of the 

Commission decision: 

We also find repeated observations in the 

legislative history that a respirable dust 

standard at or below 2.2 mg/m3 would produce 

no danger of miner's developing disability 

disease. 8 FMSHRC at 897. 

The Commission also commented as follows: 

With regard to its ultimate decision to adopt 

a 2.0 mg/m3 respirable dust standard, Congress 

recognized that in a dust environment below 

approximately 2.2 mg/m3, there would be virtually no probability of a miner's contracting 

complicated coal worker's pneumoconiosis, even 

after 35 years of exposure at that level. 

H. Rep. No. 563, supra, at 18, reprinted in 

1969 Legis. Hist. 1197-98. The legislative 

also reflects awareness that a standard at or 

below 2.2. mg/m3 would produce no danger of 

miners developing disability disease. Id~ 

1969 Legis. Hist. 1277. 8 FMSHRC at 89~ 

1811 
The Commission has also noted that a "significant and substantial" violation is described in section 104(d)(l) of the 

Mine Act as a violation "of such nature as could significantly 

and substantially contribute to the cause and effect of a coal 

or other mine safety or health hazard." 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., supra 

In Mathies Coal Company, 6 FMSHRC 1, 3-4 (January 1984), 

the Commission further 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: Cl) the underlying violation of a mandatory safety standard; (2) a 

discrete safety hazard--that is, a measure of 

danger to saf ety--contributed to by the violation; (3) a reasonable likelihood that the 

hazard contributed to will result in an injury; 

and (4) a reasonable likelihood that the injury 

in question will be of a reasonably serious 

nature. 

In view of case law as enumerated by the Commission it is 

apparent that Citation 9996225 was erroneously designated as an 

S&S violation. This designation should be stricken: the evidence 

indicates the respirable dust concentration was 2.2 mg/m3. such 

a concentration fails to establish elements (3) and (4) of the 

Mathis Coal formula. 

Empire also argues that it provided personal protective 

equipment to its miners and, further, it contends section 104Cf) 

does not designate a respirable dust violation as S&S. Since the 

allegations concerning S&S are to be stricken, it is unnecessary 

to consider these additional issues. 

Empire also argues the 104(b) order was improperly issued 

because Inspector Gibson made no investigation; further, an 

extended abatement time would not endanger the health and safety 

of the miners and, in addition, the inspector failed to consider 

the difficulty of abating the condition. 

These arguments are rejected. Inspector Gibson relied 

on the report from MSHA's lab in Pittsburgh. This constituted 

1812 
a sufficient investigation particularly where the respirable 

coal dust concentrations are rising rather than falling. In 

support of its position, Empire cites McCoy Elkhorn Coal Corporation, 2 FMSHRC 3196, 3207 (1980) (Steffy, J.); U.S.Steel 

Corp., 2 FMSHRC 1515, 1520 (1980) (Stewart, J.); David Cabrera, 

Inc., 2 FMSHRC 338, 341 (1980); (Merlin, J.); Old Ben Coal Co., 

~BMA 292 (1976); and Consolidation Coal Company, 2 FMSHRC 2665, 

2667 (1980) (Merlin, J.); Reliable Coal Corp., 1 IBMA 97, 113 

(1972); Freeman Coal Mining Corp, 1 IBMA 1, 27,(1970); Consolidation Coal Company, 2 FMSHRC 2665, 2667-8 (Merlin, J.); Consolidation Coal Company, 1 FMSHRC 1638, 1640-1 (Broderick, J.); 

Consolidation Coal Company, 4 FMSHRC 747, 752 (1982) (Koutras, 

J.); Youghiogheny and Ohio Coal Company, 8 FMSHRC 330, 339 

(Maurer, J. ) • 

The above cases do not cause me to conclude that Inspector 

Gibson abused his discretion. There had already been a number 

of extensions to the original abatement date as noted, infra. 

Further, the dust concentrations were obviously rising. 

Empire states it was diligent in attempting achievement. 

I conclude otherwise. 

The initial citation was issued on March 4, 1988, based on 

samples taken in February 1988. An abatement date of March 28 

was set. New samples taken March 28 indicated Empire remained 

out of compliance. The abatement date was further extended to 

April 22, 1988. A few days before April 22 the inspector had 

difficulty sampling and an extension of the abatement date was 

allowed until May 14. By May 14 additional sampling showed a 

significant increase, to an average concentration of 2.9 mg/m3 

Finally, the 104(b) order was issued some 80 days after the 

initial citation. At about this point in time Empire acted 

and presented its amended dust plan to MSHA. The changes made 

by the company were not expensive and they took approximately 

four hours to be put into place (Tr. 215). On the foregoing 

evidence,! am unable to conclude that Empire acted diligently. 

In sum, this violative condition should have been remedied 

before 80 days had expired. 

Civil Penalty 

The statutory criteria to access a civil penalty is contained in section llO(i) of the Act. 

The criterion of gravity and negligence have already been 

discussed in the context of the S&S findings and in the failure 

to abate findings. 

1813 
The parties have stipulated that Empire is a large operator 

and that imposition of a penalty will not affect its ability to 

continue in business. The operator's history is favorable to 

Empire: it paid 126 violations in the previous two years. Four 

violations of this specific regulation were paid in that period. 

On balance, I de6n that a civil penalty of $100 is appropriate. 

For the foregoing reasons I enter the following: 

ORDER 

1. The contest filed by Cyprus Empire Corporation in 

WEST 88-247-R is dismissed. 

2. The designation of Citation No. 9996225 as a significant 

and substantial violation is stricken. 

3. Citation No. 9996225, as amended, is affirmed and a 

civil penalty of $100 is assessed. 

Law Judge 

Distribution: 

R. Henry Moore, Esq., Buchanan Ingersoll, P.C., 600 Grant Street, 

58th Floor, Pittsburgh, PA 15219 

Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1585 Federal Office Building, 1961 Stout Street, 

Denver, CO 80294 

/ot 

1814 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

LAUREL RUN MINING COMPANY, 

Respondent 

,. . 't ! { 

1,·\ I. j 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 89-57 

A. C. No. 46-02~45-03621 

Portal No. 1 

DECISION 

Appearances: Nanci A. Hoover, Esq., Office of the Solicitor, 

U.S. Department of Labor, for the Secretary; 

Marshall S. Peace, Esq., for Respondent. 

Before: Judge Fauver 

The Secretary of Labor brought this case for a civil penalty 

for an alleged violation of a safety standard, under § llO(a) ot 

the Federal Mine Safety and Health Act oE 1977, 30 U.S.C. § 801 

et seq. 

Having considered the hearing evidence and the record as a 

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

and probative evidence establishes the following Findings of Fact 

and additional findings in the Discussion below: 

FINDINGS OF FACT 

1. The parties have stipulated that Respondent's Portal 

No. l Mine is subject to the Act. 

2. Prior to June 20, 1988, a two-mile overland belt 

conveyor at the mine was owned and operated by Debee Power 

Company and was treated by the United States Department of Labor 

as being subject to the jurisdiction of its Occupational Safecy 

and Health Administration, rather than it3 Mine Safety and Health 

Administration. 

3. On June 20, 1988, the owner3hip and opecation of the 

ove~land belt were taken over by Respondent without a stoppage of 

the belt operation. Under the Department of Labor's guidelines, 

the belt became subject to the jurisdiction of MSHA instead of 

OSHA on that date. Becau3e of this change, Respondent requested 

1815 
MSHA i:.o conduct a "compliance assistance inspection" (or 

"courtesy inspection") of the overland belt. Such an 

inspection, also known as a "compliance assistance visit" (CAV), 

is intended to assist an operator who is starting up new 

equipment oc a new process, by pointing out conditions that 

require correction to comply with mine safety or health standards. 

On such visits, MSHA does not issue penalty citations, but 

points out conditions that would be cited as violations in an 

ordinary inspection. 

4. Before it began operation of the overland belt on June 

20, 1988, Respondent did not conduct an electrical inspection of 

i:.he belt. 

5. An MSHA team conducted a CAV at the mine on June 23, 

1988, to inspect the overland belt. They found and pointed out 

numerous conditions that would have been cited as violations in a 

regular inspection, including the observation that, under 30 

C.F.R. § 77.502, Respondent had been required to conduct a 

complete electrical inspection of the overland belt before it 

began operation of the belt on June 20, 1988, and that, since it 

had failed to do so, Respondent was required to conduct such an 

electrical examination immediately, and to make and keep a record 

of. it. MSHA personnel also advised Respondent that t~e other 

s~ecif ic conditions found by MSHA should be abated in a timely 

manner, and that in any future inspection any violative 

conditions would be cited as violations. 

6. On June 29, 1988, MSHA In.:;pector Michael .Kalich, who had 

been part of the MSHA CAV on June 23, 1988, inspected the 

overland belt and found that a complete alectrical examination of 

the belt had still not been conducted and recorded by Respondent. 

Based upon that finding, be issued§ 102(j)(2) Order 3107213 

charging a violation of 30 C.F.R. § 77.502, alleging that the 

violation was "significant and sub~tantial" and was due to an 

"unwarrantable" failure to co1nply with the standard. 

7. MSHA Inspectors Michael Kalich and Wayne Fetty, both 

electrical inspectors from MSHA's Morgan~own District Office, 

Charles Wotring, a mine inspector from MSHA's Oakla~d Field 

Off ice, and Barry Ryan, a supervisor fro~ the Oakland Field 

Office, conducted the CAV on June 23, 1988. They found and 

pointed out Eifteen different electrical deficiencies on the 

overland belt, in addition to a number of other unsafe conditions 

on the belt, which would have been cited as violations if this 

had been a regular inspection. 

8. At the conclusion of the CAV on June 23, 1988, a 

close-out conference was held. The problems noted were gone over 

and discussed with mine management and union representatives. 

It was emphasized by the MSHA electrical inspectors that a 

complete electrical exa1ninacion of the overland belt was required 

by 30 C.F.R. § 77.502. They pointed out that part of the reaaon 

1816 
that this failure was deemed important to MSHA was the existence 

of the many electrical and other unsafe conditions on the 

overland belt. Respondent was also told that the complete 

electrical examination, which should have been performed upon 

takeover of the belt, had to be done immediately, and that all 

the other items noted must be corrected in a timely fashion. No 

particular date was given for the return inspection, but it was 

made clear by the MSHA personnel that enforcement citations and 

orders would be issued if violative conditions were found during 

the next inspection. 

9. On June 29, 1988, Inspector Kalich returned for a normal 

spot inspection. He found that a complete electrical examination 

had still not been made of the overland belt. Only four or the 

items previously noted on June 23, 1988, had been corrected. 

Inspector Kalich issued six citations and one order for the 

conditions he found to be violations of safety standards. The 

or<ler charged a violation of 30 C.F.R. § 77.502. 

DISCUSSION WITH FURTHER FINDINGS 

Section 77.502 provides that: 

Electric equipment shall be frequently examined, 

tested, and properly maintained by a qualified person 

to assure safe operating conditions. When a potentially 

dangerous condition is found on electric equipment, such 

equipffient shall be removed from service until such 

condition is corcected. A record of such examinations 

shall be kept. 

Subsections of this standard provide further clarification of 

what is required: § 77.502-1 defines who is a qualified person, 

and§ 77.502-2 states that the required examinations and tests 

"shall be conducted at least monthly." 

Respondent contends that it ~as in ita initial ''month" of 

responsibility for the overland belt and therefore had until the 

end of tne month, i.e., June 30, to complete the examination. 

The Secretary contends that the regulation requires a complete 

electrical examination before starting up a new (or newly 

acquired) conveyor belt system. 

I find that Respondent's interpretation is not a logical 

position. Upon the takeover or start up of newly acquired 

equipment, the operator must be in compliance with the laws and 

regulations. There is no grace period applicable in this type of 

situation. The purpose of the Mine Act anj it3 implementing 

regulations is to ensure the safe working conditions of those who 

work in the mining industry. To allow an operator a month in 

which to came i11 compliance with safety standards while the 

equipment is ~eing operated would th~art the strong public policy 

behind the Act. The Secretary's requirement that an operator 

1817 
conduct a complete electrical examination upon takeover of a 

conveyor belt is a logical and reasonable interpretation of 

§ 77.502. 

Respondent argues that there i3 no requirement for a 

complete electrical examination. This reading of the regulation 

is not a reasonable interpretation. If the regulation did not 

require a complete examination, the purpose behind the 

examination would be thwarted. Section 77.502 states that an 

electrical examination shall be conducted to "assure safe 

operating conditions." If the examination is not complete, there 

can be no reasonable assurance that the equipment is safe. 

The Secretary presented uncontradicted expert opinion 

testimony that this violation was "significant and substantial." 

This violation presented many risks to the rninacs' safety. 

Without an adequate electrical examination and the required 

tests, operation of the belt could result in an overload, a short 

circuit, overheating, or a fire causing serious injuries or even 

iatalities. 

In addition, the Secretary presented uncontradicted expert 

opinion testimony that the violation was an "unwarrantacle" 

failure to comply with the safety standard. In order to make a 

finding of an unwarrantable violation, aggravated conduct 

constitutin3 more than ordinary negligence must be shown. Emery 

Mining Corporation v. Secretary, 9 FMSHRC 1997 (1987). The 

operator was clearly more than just negligent in this case. On 

June 23, 1988, MSHA personnel observed the absence of the 

required electrical examination, explained what haa to be done, 

and stated that it should be done immediately. However, six days 

later, on JQne 29, 1988, Inspector Kalich found that a complete 

electrical examination had still not been made and the belt 

system was operating with numerous safety violations. In view of 

the clear prior notice by MSHA, the operator's subsequent 

operation of the belt without a complete examination constituted 

an unwarrantable failure to comply with§ 77.502. 

Considering each of the criteria for a civil penalty in 

§ llO(i) of the Act, I find that a penalty of $500 is appropriate 

for this violation. 

CONCLUSIONS OF LAW 

1. The judge has jurisdiction over this proceeding. 

2. Respondent violated 30 C.F.R. § 77.502 as alleged in 

Order 3107213. 

ORDER 

Respondent shall pay the above civil penalty of $500 within 

30 days of this Decision. 

1818 
Distribution: 

Q;J_t.;__ :r~--~ William Fauver 

Administrative Law Judge 

Nanci Hoover, Esq., Office of the Solicitor, U.S. Departillent of 

Labor, 3535 Market Street, Philadelphia, PA 19104 (Certified 

Mail) 

Marahall Peace, Esq., Laurel Run Mining Company, 250 W. Main 

Street, P.O. Box 11430, Lexin~ton, KY 40575 (Certified Mail) 

iz 

1819 
/ 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRE'raRY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

LOUISA SAND AND GRAVEL, 

COMPANY, INC., 

Respondent 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 88-206 

A. C. No. 15-12672-03510 

River Dredge 

Appearances: ~nne T. Knauff, Esq., Office of the Solicitor, 

U.S. Department of Labor, for the Secretary; 

Mr. Gene A. Wilson, Louisa, KY, for Respondent. 

Before: Judge Fauver 

This proceeding was brought by the Secretary of Labor for 

civil penalties for alleged violations of safety standards, under 

§ 110 (a) of the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. § 801 et seq. 

The case involves two citations. At the hearing the parties 

moved for approval of a settlement of Citation 2773586, for a 

civil penalty of $20. The settlement was approved, and the 

amount is included in the Order below. 

Having considered the hearing evidence and the record as a 

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

and probative evidence establishes the following Findings of Fact 

and additional findings in the Discussion below: 

FINDINGS OF FACT 

1. Respondent and its predecessors-in-interest have 

operated a river dredging operation year-round on the Big Sandy 

River, near Louisa, Kentucky, for more than eight years. Legal 

Identity Forms filed with the Mine Safety and Health 

~dministration show that the operation was called Gene A. Wilson 

Enterprises on December 22, 1980, the name was changed to Rivco 

Oredging Corporation on ~ovember 28, 1983, and changed again on 

1820 
February 1, 1988, to Louisa Sand and Gravel Company, Inc. 1/ 

Despite the name changes, the Federal rn nwnber has been the same 

since its inception, and there is a clear continuity of 

successors-in-interest at this dredging site. 

2. The Big Sandy River is the boundary between Kentucky and 

West Virginia. Respondent dredges sand, coal and debris from the 

river bottom to its processing plant on the Kentucky shore. 

Interstate sales and distribution of coal are regular. 

3. At all relevant times, near the center of Louisa's 

operations, between the preparation plant and the garage, there 

was a 3,000-gallon fuel tank used to fuel Respondent's vehicles. 

An electrical box on a utility pol2 was next to the tank. A #10 

wire ran from the pole to a fuel pump near the tank. 

4. During an electrical spot inspection on June 21, 1988, 

Federal Mine Inspector Thomas E. Goodman, an electrical 

inspector, observed that proper overload or short-circuit 

protection was not provided for the #10 wire, which transmitted 

110/220 volt single-phase power to the plugs on the utility pole 

and beyond to the fuel pump. The #10 wire was connected to a 

220-amp circuit breaker. The inspector believed that, in the 

event of a fault in the electrical current, the wire probably 

would have burned with a high danger of a fuel explosion at the 

tank. He issued Citation 2769952, under§ 104(a) of the Act, 

charging a violation of 30 C.F.R. § 77.506, which provides: 

Automatic circuit-breaking devices or 

fuses of the correct type and capacity shall 

be installed so as to protect all electric 

equipment and circuits against short circuit 

and overloads. 

DISCUSSION WITH FURTHER FINDINGS 

Respondent has challenged the jurisdiction of MSHA's 

Division of Coal Mine Safety and Health, and the characterization 

of its dredging operation as a "mine." It contends that, 

although it is subject to the Act, its operations should come 

under the Metal/~onmetal Mining regulations (30 C.F.R. Part 56) 

instead of the Coal Mining regulations (Part 77), and it should 

be investigated by MSHA's Division of Metal and ~onmetal Mine 

Safety and Health, and not the Coal Mine Division. 

1/ To conform to the evidence as to the correct corporate name, 

the name of Respondent in this Decision and in the caption is 

changed to read "Louisa Sand and Gravel Company, Inc." 

1821 
The Act has a broad definition of a "coal or other mirie" as 

follows (30 U.S.C. § 802): 

(h) (1) "coal or other mine" means (A) 

an area of land from which minerals are 

extracted in nonliquid form or, if in liquid 

form, are extracted with workers underground, 

(B) private ways and roads appurtenant to 

such areas, and (C) lands, excavations, 

underground passageways, shafts, slopes, 

tunnels and workings, structures, facilities, 

equipment, machines, tools or other property 

including impoundments, retention dams, and 

tailings ponds, on the surface or 

underground, used in, or to be used in, or 

resulting from, the work of extracting such 

minerals from their natural deposits in 

nonliquid form, or if in liquid form, with 

workers underground, or used in, or to be 

used in, the milling of such minerals or the 

work of preparing coal or other minerals, and 

includes custom coal preparation facilities. 

In making a determination of what constitutes 

minimal milling for purposes of this Act, 

the Secretary shall give due consideration to 

the convenience of administration resulting 

from the delegation to one ~ssistant 

Secretary of all authority with respect to 

the health and safety of miners employed at 

one physical establishment; 

(2) For purposes of titles II, III, and 

IV, "coal mine" means an area of land and all 

structures, facilities, machinery, tools, 

equipment, shafts, slopes, tunnels, excavations, 

and other property, real or personal, placed 

upon, under, or above the surface of such land 

by any person, used in, or to be used in, or 

resulting from, the work of extracting in such 

area bitQminous coal, lignite, or anthracite 

from its natural deposits in the earth by any 

means or method, and the work of preparing the 

coal so extracted, and includes custrnn coal 

~reparation facilities * * *· 

Respondent acknowledges that most of what it sells is coal 

and that at all times relevant it did not sell the sand dredged 

from the river. Six to eight per cent of what is dredged from 

the .river is coal and "the remainder is sand and other debris and 

stuff" (Tr. 137-138). 

1822 
In Marshall v. Stoudt's Ferry Preparation Co., 602 F. 2d 589 

(3rd Cir. 1979), the court held that the process of separating 

from dredged refuse a burnable product "akin" to coal, sold as a 

low-grade fuel, came within the Act's definition of "mining." A 

fortiori, Respondent's work of dredging material from a river and 

separating coal for sale is "mining" within the meaning of the 

~ct. As the court stated, the legislative history of the Act 

shows that "what is to be considered a mine and to be regulated 

under the Act is to be given the broadest possible interpretation 

and ••• doubts [are] to be resolved in favor of inclusion of a 

facility within the coverage of the Act." 602 F. 2d at 592. 

Respondent does not dispute that its dredging business is 

engaged in commerce and is therefore subject to the Act. If 

contends, hbwever, that it is mining sand, and the coal dredged 

is only an incidental product. It relies upon the decision in 

Kanawha Dregding and Minerals Co., Ltd. v. U.S., 47 CCH Federal 

Excise Tax Reports 7045 (U.S.D.C. S.D. WV 1987), holding that a 

coal dredging operation was not subject to the Black Lung Excise 

Tax Law and regulations. The law involved in that case imposed 

an excise tax on "coal sold by the producer from mines in the 

United States at the rate of [$1.00] per ton in the case of coal 

from underground mines" and "(50] cents per ton in the case of 

coal from surface mines." The court found that the coal dredged 

had spilled into the river in the transportation of coal produced 

by other companies, that the required tax on the coal had already 

been paid by the original coal producers, and that the dredging 

company therefore was not a "'producer' of coal from a mine 

within the meaning of the Black Lung Bxcise Tax Law and 

regulations • • " That case is not relevant to the question 

of jurisdiction in this proceeding. 

The same issue involved here was raised by ~espondent in an 

opinion request to MSHA before the instant citation was issued. 

1n a letter to Respondent dated February 11, 1987 (a copy of 

which is attached to the Secretary's posthearing brief), MSHA 

stated that Respondent's selling of clean coal processed fro1n 

material removed from the river is sufficient to bring its 

operation under the jurisdiction. of MSHA's Coal Mine Division 

rather than its Division of Metal and Nonmetal Mine Safety and 

Health. 

On September 8, 1988, in a civil penalty case against 

Respondent's predecessor-in-interest (Rivco Dredging 

Corporation), Commission Judge Maurer held that its dredging and 

preparation operations were covered by the Act. Judge Maurer 

declined to rule on the company's contention that the operations 

should be investigated ~Y MSR~'s Division of Metal and Nonmetal 

Safety and Health instead of its Division of Coal Mine Safety and 

Health. 

I hold that (1) Respondent's dredging and preparation 

operations are covered by the ~ct and (2) such operations are 

1823 
subject to 30 C.F.R. Part 77. It follows from this that MSHA's 

Division of Coal Mine Safety and Health is an appropriate agency 

to conduct safety and health inspections of Respondent's 

operations. 

Gene A. Wilson testified that he had notice of a problem 

with the wiring to the fuel tank in 1986, when MSHA's Field 

Off ice Supervisor Wayne Wefenstette inspected the area and told 

him, "I want thi~ cord off the ground. I want you to put it in 

[a] conduit •••• Somebody could get electrically shocked here." 

Tr.38. The wire was put into a conduit. 

Mr. Wefenstette testified that he conducted a courtesy 

inspection 2/ of Respondent's operations in the summer of 1986~ 

that he is not qualified to do an MSHA electrical inspection (Tr. 

7>; that he checked only the "outside areas" of electrical 

installations, not the circuit breakers (Tr. 7), and that he does 

not recall observing the electrical pump wire during his courtesy 

inspection (Tr. 54), or talking to Mr. Wilson about wiring to a 

fuel tank (Tr. 35). Mr. Wefenstette also stated that, had he 

seen the extension cord lying in the dirt with a plug nearby, he 

would have advised the operator that the cord should have been 

off the ground and in a conduit. 

Respondent contends that putting the electric cord into a 

conduit and getting it off the ground was done to comply with an 

MSHA directive and that MSHA should not be penalized for the 

the absence of a proper circuit breaker discovered in a later 

inspection. 

Protection of the cord by a conduit is unrelated to the 

safety requirements for an appropriately-sized circuit breaker. 

The two situations are covered by different sections of the Code 

of Federal Regulations. I reject Respondent's contention that a 

nonelectrical inspector's courtesy advice about the need for a 

conduit excused Respondent from having a certified electrician 

ensure that the circuit breaker was the right size for the wire 

to the fuel pump. 

I find that the violation was due to moderate n~gligence. I 

also find that it was a substantial and significant violation. 

The use of an excessive circuit breaker created a serious risk of 

an electric shock or fire causing serious injuries, with a 

reasonable likelihood that such injuries would occur if mining 

operations continued without abatement of the viol~tion. 

2/ A courtesy inspection, also known as a compliance assistance 

~isit CCAV), is like a regular MSHA inspection, but enforcement 

citations are not issued. Instead, the inspector informally 

advises to the operator of any conditions he observes that 

require correction to comply with safety or health standards. 

1824 
An updated compliance history of this mining operation 

(marked as an update of Government Exhibit 2) shows delinquent 

civil penalties of $488 out of total assessments of $1,547 in the 

two-year period before the subject citation. If the non-payment 

record is accurate, Respondent is responsible for these 

delinquencies either as the named operator or as a successor-ininterest and the delinquencies would be considered as part of 

Respondent's compliance history. However, Respondent's attorney 

states in a letter of September 11, 1989, that "all citations 

have been taken care of" and "Wo citation penalties are known to 

be outstanding." This representation has not been rebutted by 

the Secretary. Therefore, it is presllined there are no 

delinquencies of penalties due. 

Considering all of the criteria for a civil penalty in 

§ llO(i) of the ~ct, I find that a penalty of $130 is appropriate 

for the violation found herein. 

CONCLUSIOWS OF LAW 

1. The judge has jurisdiction over this proceeding. 

2. Respondent violated§ 77.506 as alleged in Citation 

2769952. 

3. Respondent violated§ 77.204 as alleged in Citation 

2773586. 

ORDER 

Respondent shall pay the above civil penalties of $150 

within 30 days of this Decision. 

Distribution: 

~~ ~~vtA... William Fauver 

Administrative Law Judge 

Anne T. Knauff, Esq., Office of the Solicitor, U.S. Department of 

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

(Certified Mail) 

Gene~. Wilson, ~resident, Louisa Sand and Gravel Company, Inc., 

101 Madison Street, Louisa, KY 41230 (Certified Mail) 

iz 

1825 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 26, 1989 

SFCRF'J:'J.\RY OF LABOR, CIVIL P~NALTY ~ROCE~DINGS 

MI~F. SAFF.'I'Y AND HFJ.\LTH 

ADMINISTRA~ION (MSHA), 

Pet:itioner 

Docket No. WEVA 89-96 

A. C. No. 46-01453-03841 

v. 

Humphrey No. 7 Mine 

CONSOLIDATION COAL CO~PANY, 

Respondent Docket No. WFVA 89-159 

A. C. No. 46-01968-03800 

Appearances: 

Before: 

. . . 

D"F.'CISION 

Blacksville No. 2 Mine 

Docket No. W~VA 89-162 

A. C. No. 46-01318-03872 

Docket No. WEVA 89-170 

A. C. ~o. 46-01318-03873 

Docket No. ~VA 89-171 

A. C. No. 46-01318-03877 

Robinson Run No. 95 Mine 

Docket No. WFVA 89-183 

A. C. No. 46-01453-03848 

Humphrey No. 7 Mine 

Ronald Gurka, Rsq., Office of the 

Solicitor, U. s. Department of Labor, 

Arlington, Virginia, for Petitioner: 

Michael R. Peelish, ~sq., Consolidation 

Coal Company, Pittsburgh, Pennsylvania for 

Respondent. 

Judge Merlin 

When the above-captioned cases came on for hearing 

counsel for both parties advised that settlements had been 

reached. With the permission of the bench these settlements 

were placed upon the record. Other cases scheduled for 

hearing at the same time were heard on the merits. 

1826 
WEVA 89-96 

~his case involves eight violations which were originally assessed at $ 6, 65 0. 'l'he proposed set:. tlement is for 

$5,800. 

Order ~o. 3106712 was issued for a violation of 

30 C.F.~. § 75.208 because a visible warning sign or a physical barrier was not installed t:.o impede travel beyond permanent roof supports in the face areas of a section. ~he 

penalty was originally assessed at $850 and the proposed 

set:.tlement is for $700. ~he Solicitor represents that the 

penalty reduction is warranted because negligence is somewhat 

less t:.han originally thought. ~he parties agree t:.hat there 

was a dispute about how this standard was to be interpreted. 

~he foregoing representations were accept:.ed trom the bench 

and the proposed settlement was approved. 

Order No. 3113111 was issued for a violation of 

30 C.F.R. § 75.400 because loose coal, coal dust and float 

coal float were permitted to accumulate in twelve different 

locations in the in take air escapeway. The penalty was 

originally assessed at $850 and the proposed settlement is 

for $650. ~he Solicitor represents that the penalty 

reduction is warranted because negligence is less than 

originally thought. Although there had been an inspection, 

there was not conclusive proof that the operator knew the 

extent of this condition immediately prior to the order being 

issued. The foregoing representations were accepted from the 

bench and the proposed settlement was approved. 

Order ~os. 3113118 and 3113119 were issued for violations of 30 C.F.R. § 75.1403-9(c) because shelter holes 

were not being maintained free of obstructions~ The 

penalties were originally assessed at:. $750 each and the proposed settlement for each is $500. ~he Solicitor represents 

that the penalty. reductions are warranted because gravity is 

less than originally thought. Only one miner would be 

affected and the hole probably· could protect:. him. ~lso the 

track was straight so there would be increased warning. The 

foregoing representations were accepted from the bench and 

the proposed settlements were approved. 

The operator has agreed to pay the original assessments 

for the remaining four violations involved in this case. The 

circumstances of these violations were explained on the 

record and I accepted the proffered amounts from the bench. 

WEVA 89-159 

This case involves one violation which was originally 

assessed at $850 and the operator has agreed to pay the 

original assessment in full. The circumstances of chis vio1827. 
lation were explained on the record and T accepted the 

proffered amount from the bench. 

WEVA 89-162 

This case involves two violations which were originally 

assessed at $2,100. The proposed settlement is for $1,850. 

Order No. 2943933 was issued for a violation of 

30 C.F.~. § 75.400 because combustible material was permitted 

to accumulate at a belt starter box. ~he penalty was 

originally assessed at $1,000 and the proposed settlement is 

for $750. The Solicitor represents that the penalty reduction is warranted because negligence is less than originally 

thought. This condition existed for only a short time before 

the order was issued. ~he foregoing representations were 

accepted from the bench and the proposed settlement was 

approved. 

~he operator has agreed to pay the original assessment 

of the $1,100 for the other violation involved in this case. ~he circumstances of the violation were explained on the 

record and T accepted the proffered amount from the bench. 

WFVA 89-170 

~his case involves two violations which were originally 

assessed at $1,900. The proposed settlement is for $1,300. 

Order No. 3119763 was issued for a violation of 

30 C.F.R. § 75.303 because an inadequate preshift examination 

was performed on a bleeder section construction area. The 

penalty was originally assessed at $900 and the proposed 

settlement is for $700. The Solicitor represents that the 

penalty reduction is warranted because negligence is less 

than originally thought. The company was uncertain whether a 

preshift examination was required because this was a construction area. The foregoing representations were accepted from 

the bench and the proposed settlement was approved. 

Order No. 3119498 was issued for a violation of 

30 c.~.~. § 75.400 because combustible material was allowed 

to accumulate on a longwall section. ~he penalty was originally assessed at $1,000 and the proposed settlement is for 

$600. ~he Solicitor represents that the penalty reduction is 

warranted because negligence is less than originally thought. 

~his condition existed for only a short time before the order 

was issued. ~he foregoing representations were accepted from 

the bench and the proposed settlement was approved. 

1828 
WEVA 89-171 

This case involves one violation which was originally 

assessed at $1,100. The proposed settlement is for $700. 

Order No. 2944262 was issued for a violation of 

30 C.F.R. § 75.400 because combustible material was allowed 

to accumulate in a section. ~he Solicitor represents that 

the penalty reduction is warranted because negligence is less 

than originally thought. ~here is some dispute, depending on 

where samples were taken, as to whether the area was adequately rock dusted. The foregoing representations were accepted 

from the bench and the proposed settlement was approved. 

WBVA 89-183 

~his case involves one violation which was originally 

assessed at $206 and the operator has agreed to pay the 

original assessment in full. "?he circumstances of this violation were explained on che record and I accepted the 

proffered amount from the bench. 

ORDER 

In light of the foregoing the recommended settlements 

are APPROVFD and the operator is ORD~R~D 'I'O PAY the following 

amounts within 30 days from the date of this decision. 

Citation No. 

3106712 

3113111 

3113114 

3113115 

3113116 

3113117 

3113118 

3113119 

3100883 

2944067 

2943933 

3119763 

WEVA 89-96 

Total 

WRVA 89-159 

WEVA 89-162 

Total 

WEVA 89-170 

1829 

Amount 

$ 700 

$ 650 

$1,000 

$ 850 

$ 750 

$ 850 

$ 500 

$ 500 

$5,800 

$ 850 

$1,100 

$ 750 

$1,850 

$ 700 
3119498 

'T'otal 

WFVA 89-171 

2944262 

WT"VA 89-183 

2943993 

Grand ~otal 

Paul Merlin 

$ 600 

$1,300 

$ 700 

$ 206 

$10,706 

Chief Administracive Law Judge 

Distribution: 

~onald Gurka, ~sq., Page H. Jackson, ~sq., ,Jack 

~sq., Office of the Solicitor, U. ~. Department 

4015 Wilson Boulevard, Room 516, Arlington, V~ 

(Certified Mail) 

Strausman, 

of Labor, 

22203 

Michael q. Peelish, ~sq., Consolidation Coal Company, Consol 

Plaza, 1800 Washington l?.oad, Pittsburgh, PA. 15241 

(Certified Mail) 

Robert Strapp, Fsq., General Counsel, UMWA, 900 15th Street, 

~.w., Washington, DC 20005 (Certified Mail) 

/gl 

1830 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 2 71989 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

DISCRIMINATION PROCEEDING 

Docket No. LAKE 89-70-DM 

ON BEHALF OF KEVIN BUREAU, 

Complainant MD 87-46 

v. 

CALLAHAN MINING CORP., 

Respondent 

Ropes Gold Mine 

DECISION APPROVING SETTLEMENT 

AND DISMISSING PROCEEDING 

Before: Judge Broderick 

On September 25, 1989, the Secretary filed a motion to 

dismiss this proceeding and to approve a settlement between 

the parties. Kevin Bureau was discharged by Respondent on 

July 1, 1989. He has worked for several other employers 

since that date and is presently employed. He does not 

wish to be reinstated to his former position or any other 

position with Respondent. 

The settlement agreement provides that Respondent will 

pay Bureau the sum of $20,000; that it will not discriminate 

against any employee who asserts rights under section lOS(c) 

of the Act; that it will post a notice at the mine for 30 days 

to that effect; that none of Bureau's personnel records refer 

to the incidents of June 30, 1987 and July 1, 1987, leading 

to his discharge. The Secretary withdraws her ptition for 

a civil penalty. 

I have considered the motion in the light of the 

purposes of section lOS(c) of the Act and conclude that the 

motion should be granted and the settlement approved. 

Accordingly, the settlement is APPROVED, the motion is 

GRANTED and this proceeding -is DISMISSED. 

_ _.:/,fl:':° , ,• , L.-~·-?"';. /7 /_.!'' , r' .: -/tz1

" "v-:? .. ~/;_, .. _,ck ..• t E 

J James A. Broderick 

· Administrative Law Judge 

1831 
Distribution: 

Miguel J. Carmona, Esq., U.S. Department of Labor, Office of 

the Solicitor, ~30 S. uearborn St., Chicago, IL 60604 (Certified 

Mail) 

Ronald D. Keefe, Esq., Kendricks, Bordeau, Adamini, Keefe, 

Smith & Girard, P.C., 128 W. Spring Street, Marquette, MI 

49855 (Certified Mail) 

slk 

1832 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINSI'rRA'rION .(MSHA)' 

Petitioner 

v. 

LYON WASHED SAND AND GRAVEL, 

Respondent 

. 

. 

. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 89-28-M 

A.C. No. 21-00562-05502 

Lyon Washed S&G 

DBCISION 

Appearances: Miguel J. Carmona, ~sq., Office of the Solicitor, 

U.S. Department of Labor, Chicago, Illinois, for 

the Secretary of Labor (Secretary); Ted Anderson, 

Owner, for Lyon Washed Sand and Gravel (Lyon). 

Before: Judge Broderick 

STATEMENT OF THE CASE 

The Secretary seeks civil penalties for five alleged 

violations by Lyon of mandatory safety standards. Pursuant to 

notice, the case was called for hearing in Marshall, Minnesota, 

on September 6, 1989. Michael Roderman testified on behalf of 

the Secretary. Ted Anderson testified on behalf of Lyon. The 

parties waived their right to file posthearing briefs, and each 

argued its case on the record. Based on the entire record and 

considering the contentions of the parties, I make the following 

decision. 

FINDINGS OF FACT AND CONCLUSIONS OF LAW 

Lyon is the owner and operator of a sand and gravel pit in 

Lyon County, Minnesota. The mine is a small mine, employing 

approximately four persons and producing approximately 60 to 80 

thousand tons of gravel per. year. During the two years prior to 

the violations alleged here, Lyon had no paid violations of 

mandatory standards. 

Three of the violations charged involve the failure to have 

cover plates on electrical equipment; the other two involve 

inadequate splices in power cables. All violations were abated 

promptly in good faith. 

1833 
COVER PLATES 

30 C.F.R. § 56.12032 provides as follows: 

Inspection and cover plates on electrical equipment and 

junction boxes shall be kept in place at all times 

except during testing or repairs. 

On July 7, 1988, Federal mine inspector Michael ~oderman 

issued citation 3078987 during a regular inspection of the 

subject mine. The citation charged that the door to an 

electrical control cabinet was left open, exposing 480 volt 

electrical circuits. The cabinet was in a trailer but access to 

it was not restricted. Neither testing nor repairs were being 

performed at the time. I conclude that a violation of the 

standard was established. It was moderately serious and, since 

it was known or should have been known to Lyon, it was the result 

of negligence. Based on the criteria in section llOCi) of the 

Act, 1 conclude that $75 is an appropriate penalty for the 

violation. 

On the same day the inspector issued Citation 3078988 

because a cover plate was missing from a 480 volt stoker conveyor 

motor. the motor was in a small metal box, about 5 or 6 inches 

square. Electrical connections were exposed. the motor was 

about 8 feet above a walkway and therefore employee exposure was 

limited. Ted Anderson testified that the cover plate was 

left off to dry the motor out, because 90 percent of motor 

failures are caused by moisture. I conclude that the evidence 

establishes a violation of the standard. Because of the location 

of the motor it was not serious and was not caused by negligence. 

An appropriate penalty for the violation is $20. 

On the same day the inspector issued citation 3078989 

because a cover plate on a rock picker motor was left off. 480 

volt electrical wires were protruding from the junction box. The 

motor was about 10 feet above the ground and was unilkely to be 

contacted by persons. I conclude that a violation of the 

standard was established, that it was not serious, but was the 

result of Lyon's negligence. $30 is an appropriate penalty for 

the violation. 

PERMANENT SPLICES 

30 C.F.R. § 56.12013 provides: 

Permanent splices and repairs made in power cables, 

including the ground conductor where provided, shall 

be: 

1834 
(a) mechanically strong with electrical conductivity as 

near as possible to that of the original; 

(b) insulated to a degree at least equal to that of the 

original, and sealed to exclude moisture; and 

(c) provided with damage protection as near as possible 

to that of the original, including good bonding to the 

outer jacket. 

On July 7, 1988, Inspector Roderman issued citation 3078990 

because a 480 volt power cable feeding the rock picker motor had 

a splice made with wire nuts, not sealed to prevent moisture. 

The splice was not mechanically strong, was not insulated to 

a degree equal to that of the original, and was not bonded to the 

outer jacket. The cable was subject to vibration and was in an 

area where it could be contacted by persons, and a serious, even 

a fatal injury could result. I conclude that a violation of the 

standard was established. It was moderately serious and was the 

result of Lyon's negligence. I conclude that $100 is an 

appropriate penalty for the violation. 

On the same day the inspector issued citation 3078991 

because a splice in a 480 volt cable leading to an electrical 

motor junction box about 12 inches from the box was made with 

wire nuts, not sealed to prevent moisture. The splice was not 

mechanically strong, was not insulated to a degree equal to that 

of the original, and was not bonded to the outer jacket. Because 

of its location, it was not normally accessible to persons, and 

was unlikely to cause injury. I conclude that a violation of the 

standard was established. It was not serious, but was caused by 

negligence. $20 is an appropriate penalty for the violation. 

ORDER 

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

IT IS ORDERED: 

1. Citations 3078987, 3078988, 3078989, 3078990 and 3078991 

are AFFIRMED. 

2. Within 30 days of the date of this decision Lyon Washed 

Sand and Gravel shall pay the.following penalties: 

CITATION 

3078987 

3078988 

3078989 

1835 

PENALTY 

$ 75 

20 

30 
3078990 

3078991 

Distribution: 

100 

20 

$245 

? 

J{l:1U--5 ~(l:f,,--vcl-v/"/ ~ 

James A. Broderick 

Administrative Law Judge 

Miguel J. Carmona, Esq., U.S. Department of Labor, Office of the 

Solicitor, 230 s. Dearborn Street, Chicago, IL 60604 (Certified 

Mail) 

Mr,. Ted Anderson, Owner, Lyon Washed Sand and Gravel, 703 South 

Bend Avenue, Marshall~ MN 56258 (Certified Mail and Regular Mail) 

slk 

1836 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FAUS CHURCH, VIRGINIA 22041 

SEP 2 8 1989 

SOUTHERN OHIO COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINIS'rRATION (MSHA) 

Petitioner 

v. 

SOUTHERN OHIO COAL COMPANY, 

Respondent 

DECISION 

CONTEST PROCEEDING 

Docket No. WEVA 88-349-R 

Order No. 3105926; 8/2/88 

Martinka No. 1 Mine 

Mine ID 46-03805 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 89-10 

A. C. No. 46-03805-03876 

Martinka No. 1 Mine 

Appearances: David M. Cohen, Esq., American Electric Power 

Service Corporation, Lancaster, Ohio, for the 

Secretary; 

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

U. S. Department of Labor, Philadelphia, 

Pennsylvania, for the Respondent. 

Before: Judge Weisberger 

Statement of the Case 

In these consolidated cases, the Secretary (Petitioner) 

seeks a civil penalty for an alleged violation of the Operator 

(Respondent) of 30 C.F.R. § 75.1003-1. Pursuant to notice, these 

cases were heard in Morgantown, West Virginia, on May 31, 1989. 

At the hearing, Homer Delovich·and Albert Kirtchartz testified 

for Petitioner, and Fred Rundle, III, and Dewey Ice testified for 

Respondent. Proposed Findings of Fact and Briefs were filed by 

Petitioner and Respondent on September 7 and 8, 1989, respectively. 

Stipulations 

1. The Administrative Law Judge had jurisdiction over this 

proceeding. 

1837 
2. The Martinka No. 1 Mine of Southern Ohio Coal Com.pany is 

atf iliated with the American Electric Power Service Corporation. 

3. Martinka No. 1 Mine and the Southern Ohio Coal Company 

are subject to the jurisdiction of the Federal Mine Safety and 

Health Act of 1977. 

4. Order ~o. 3105926 was properly served by a duly authorized representative of the Secretary of Labor upon the agent or 

the respondent on the date, time and at the place stated therein. 

5. Copies of the Order No. 3105926 are authentic and may be 

admitted into evidence tor the purpo~e of establishing the 

issuance. 

6. The Assessment of civil penalty for this proceeding will 

not affect the Respondent's ability to continue in business. 

7. The annual coal production of the Marcinka No. 1 Mine 

was 2,872,018 tons for 1988. 

8. There was no intervening inspection prior to the issuance 

of the August 2, 1988 Order No. 3105926. The printout of the civil 

penalty complaint reflects the Secretary of Labor's history of 

violations of the Martinka No. 1 Mine. 

9. There were approximately 934 inspection days of the 

Martinka No. 1 Mine in the 24 month period prior to the issuance 

of Order No. 3105926. 

Findings of Fact and Discussion 

I. 

During the weekend of July 29 - 30, 1988, two flat cars containing a 1000 foot section of belting were placed in the 13 left 

track chute, after'having been transported two miles from the 

surface of the mine on July 28, 1988. On August 1, 1988, Homer 

Delovich, an MSHA Inspector, performed an inspection of 

Respondent's Martinka No. 1 Mine in response to a request that 

has been filed for a section 103(g) inspection, alleging that the 

height of the loaded belting·was 57 inches above the track rail. 

Delovich testified that on August 1, he measured the distance 

between the track rail and the trolley wire, which was suspended 

from the roof by hangers. At five locations at the 13 left 

switch and outby and inby that location, the distance was between 

56 1/2 and 54 inches. On August 2, 1988, Delovich continued his 

inspection in the first shift (12:00 p.m. to 8:00 a.m.), and 

in1icated that, using a tape measure, he measured the distance 

1838 
from the track rail to the top of the belting at its highest 

point. This distance was 57 inches. Albert Kirtchartz, a plant 

1nechanic for Respondent, who accompanied Delovich as a member of 

the Safety Committee of the Local Union, indicated that he agreed 

with Delovich's measurements of the distance between the track 

and the trolley wire. Dewey Ice, Respondent's Accident 

Prevention Officer, essentially agreed that the belting in the 

flat cars was 57 inches hign, and the trolley wire was 56 or 

56 1/2 inches. Delovich issued a section 104(d)(2) Order 

alleging a violation of 30 C.F.R. § 75.1003-1 which provides as 

follows: "Adequate precaution shall be taken to insure that 

equipment being moved along haulageways will not come in contact 

with trolley wires or trolley feeder wires." 

Respondent, in essence, argues that the belting in question 

is not "equipment" within the purview of section 75.1003-1, supra. 

Webster's New Collegiate Dictionary, 1979 edition, defines equipment, as pertinent, as "2a: the set of articles or physical 

resources serving to equip a person or thing; as (1): the implements used in an operation or activity . • . " Accordingly, 

inasmuch as the testimony indicates that the belting is used to 

transport materials in Respondent's mining operation, it is clear 

that it comes within the definition of "equipment," and thus is 

within the purview of section 75.1003-1, suora. According to the 

uncontradicted testimony of Ice, as depicted in SOCO Exhibit 2, 

the trolley wire was 5 to 7 inches beyond the track in the direction of the rib; the flat car extended 18 inches beyond the track 

toward the rib; and the belting was 19 inches "inside the most 

outside part of the car" (Tr. 106). Thus, the wire was at least 

5 to 7 inches removed from the belt in a horizontal direction. 

Ice further indicated that he had not observed the belting 

shifting from side to side while it was being transported. 

However, the evidence unequivocally establishes that the height 

of the belting exceeded that of the trolley wire, and ~ce indicated, in essence, that, due to the shifting of the track, the 

distance between the flat car and the trolley wire could be 

further decreased. As testified to by Delovich and Kirtchartz, 

and not contradicted by Respondent's witnesses, should the 

belting come in contact with the trolley wire, it could cause a 

hanger to come loose, thus knocking the trolley wire down, 

creating a fire hazard. Respondent argues that the fact that the 

belting was transported over two miles, on July 28, without any 

problems, establishes that ·adequate precaution had been taken. 

Although the two mile trio, on July 28, might have been 

fortuitous, the record falls to indicate that Respondent took any 

1839 
precaution prior to the transporting of the belting to insure 

that it would not come in contact with the wires.~/ Accordingly, 

I find that Respondent herein did violate section 75.1003-1, 

supra. 

II. 

In essence, it was Delovich's testimony that the violation 

herein should be considered significant and substantial, inasmuch 

as the height of the belting exceeded that of the trolley wire, 

and " ••• that it did come in contact and the continuance of 

this practice with this piece of equipment, eventually lead to an 

accident" (Tr. 39). (sic). He was asked to indicate the hazards 

of this condition, and he indicated that damage of the trolley 

wire "· •• leads to a fire or electrical shock to the persons 

working" (Tr. 39). In its brief, Petitioner cites the testimony 

of Kirtchartz who indicated that if material is loaded above the 

end of the cars it "could" contact the trolley wire (Tr. 74). 

Petitioner also cites the te3timony of Ice and Fred Rundle, III, 

~eapondent's midnight shift supervisor, who indicated that if the 

belting is high enough to contact the trolley wires, there exists 

the possibility of a hazard. Although ~his testimony tends to 

establish that the hazard of contact with the trolley wire could 

occur, it does not establish that such a hazard was reasonably 

likely to occur.~/ As such, I £ind that the violation herein was 

not significant and subscantial (See, Consolidation Coal Company, 

6 FMSHRC 189, at 180, 193 (February 1984)); Mathies coal Co., 

6 FMSHRC 1 (January 1984)). 

III. 

According to the testi~ony of Delovich, when he investigated 

the section 103(g) complaints an August 1, 1988, he interviewed 

Bill Lucas and Danny Wade, who were the motormen who moved the 

belting on July 28, 1988, from outside the mine, a distance of 

2 miles to the 13 left track chute. In essence, he indicated 

!I In its brief, ~espondent argues that adequate precautions were 

taken inasmuch as Rundle, the shift supervisor, indicated that 

when belting is transported the tail motorman's job is to see if 

the belting shifts. Rundle indicated that in the event the 

belting would shift, the motorman would stop the cars and lighten 

the belt. The record does ·not· establish that the miners who 

actually transported the belting in question were specifically 

told of their duties to continuously monitor the belting to 

insure that it would not contact the trolley wire. I find that 

Rundle's testimony is insufficient to establish that "adequate'' 

pr2cautions were taken. 

2/ In concluding that the hazard of contact of the belting with 

~he trolley wira was not reasonably likely, I accorded considerable weight to the uncontradicted testimony of Ice that the 

belting was at least 5 to 7 inches removed from the trolley wire 

in a horizontal plane. 

1840 
that the latter told him that the day shift motormen, Rudy Baker 

and Larry Stafford, had questioned the height of the belting, and 

their foremen Steve Shaffer had told them not to move the belting. 

None of the sources interviewed by Delovich testified. Further, 

the record is not clear as to the source of Delovich's testimony 

witn regard to conversations Baker and Stafford had with their 

foreman with regard to the height of the belting. Accordingly, I 

do not find this testimony sufficiently reliable to support a 

finding that Respondent's managers, prior to the transporting of 

the belting, knew that it was too high. Delovich testified that 

Lucas and Wade had told him that when transporting the belting on 

July 28, they may have knocked out a trolley wire hanger. However, in a report of his investigation, Government Exhibit 3, he 

indicated that Lucas and Wade told him that in transporting the 

belting they " ••• did not observed (sic) or no happenings if 

the belting touched the trolley wire." (sic). I place more 

weight on Delovich's version of the conversation with Lucas and 

Wade as contained in the report of the investigation, rather than 

on his testimony, as the investigation report was written the 

same day or a day after his interview of Lucas and Wade. Rundle 

indicated that the belting was bound down in the flat car to keep 

it from shifting, and he asked Lucas and Wade if they had any 

problems transporting the belting, and they indicated that they 

did not. Also, I note, that the testimony of Ice has not been 

contradicted which establishes as discussed above, infra, II, 

that the belting was approximately 5 to 7 inches horizontally 

removed from the trolley wire. Thus, based on all of the above, 

I conclude that it has not been established that the violation 

herein was the result of Respondent's "unwarrantable failure," ~s 

it has not been established that it acted with any aggravated 

conduct of a degree higher than mere negligence. (See, Emery 

Mining Corp., 9 FMSHRC 1997 (1987)). 

In assessing a penalty herein, I find the violation herein 

to be of only a moderate degree of gravity, and find that 

Respondent herein acted with only a low degree of negligence. I 

have also taken into account the remaining factors set forth in 

section llOCi> of the Act as stipulated to by the Parties. Based 

upon all of the above, I conclude that a penalty herein of $200 

is appropriate for the violation of section 75.1003-1, supra. 

ORDER 

The Respondent shall, within 30 days of this Decision, pay 

$200 as a civil penalty for the violation found herein. 

1841 
It is further ORDERED that Order No. 3105926 be AMENDED to a 

Section 104(a) citation, and to reflect th~ fact that the cited 

violation was not significant and substantial 

Administrative 

L~ Law Judge 

Distribution: 

David M. Cohen, Esq., American Electric Power Service Corporation, 

161 West Main Street, P. O. Box 700, Lancaster, OH 43130 (Certified 

Mail) 

Thomas A. Brown, Esq., Office of the Solicitor, u. s. Department 

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

Philadelphia, PA 19104 (Certified Mail) 

dcp 

1842 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 29, 1989 

SFCRP.'T'A RY OF LABOR, 

MIN~ SAFF'l'Y AND HEAL~H 

.l\.DMI1'HS'T'RATTON (MSHA), 

Petitioner 

v. 

F~AGE'T' FUELS INCORPORATED, 

Respondent 

CIVIL PFNAL'l'Y PROCF~DING 

Docket ~o. KBNT 89-115 

A. C. No. 15-15180-03506 

};Jo. 2 Mine 

ORDER OF DISMISSAL 

Before: ,Judge Merlin 

~he order of default having been vacated, this case is 

hereby DISMISSFD. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Anne 'T'. Knauff, Bsq., Office of the Solicitor, u. s. Department 

of Labor, 2002 Richard Jones Road, Suite B-201, Washville, 'J'T\l' 

37215 (Certified Mail) 

Rick L. Thomas, P.sq., Flaget "Fuels, Inc., 1364 Devonport Drive, 

Suite 3, Lexington, KY 40504 (Certified Mail) 

/gl 

1843 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 29, 1989 

Sl<'CRE,.T'A RY 01'.i' LABOR, CIVIL PF~AL'rY PROCBBDING 

MIN~ SAFF'T'Y.A~D HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. SB 89-70 

A. C. ~o. 01-01401-03743 

v. 

No. 7 N!ine 

JIM WAL'T'~R RBSOURCl<'S, INC., 

Respondent 

DECISION 

Appearances: William Lawson, Bsq., Office of che Solicitor, 

U. s. Department of Labor, Birmingham, 

Alabama, for Petitioner; 

Before: 

Robert ~tanley Morrow, l<'sq., Jim Walter 

Resources, Tnc., Birmingham, Alabama, for 

Respondent. 

Judge Merlin 

'T'his case is a petition for the assessment of civil 

penalties filed by the Secrecary of Labor against Jim Walter 

~esources, Inc., under the Federal Mine Safety and Health Act 

ot 1977, 30 u.s~c. § 820. A hearing was held on August 24, 

1989, and post-hearing briefs now have been filed. 

~t issue in this case is Citation No. 3187963, dated 

~ovember 28, 1988, issued pursuant to section 104(d)(l) of 

the Act, 30 u.s.c. § 814(d)(l), and charging a violation of 

30 c.~.R. § 75.2~0 for the following condition or practice: 

"'T'he current Roof Control Plan was not 

being followed on the No. 5 section in that 

the face of the crosscut being cut from !'1o. 2 

entry to ~o. 1 entry had been mined trom 23 

feet 3 inches to 29 feet 6 inches from che 

last row of permanent roof 3Upports, or until 

the crosscut holed through into the No. 1 

entry. 'T'he controls of the continuous mining 

machine in use on this section measured 

20 teet 3 inci1es tram tl1e cutting t1ead. 'T'his 

shows that tne continuous miner opera tor was 

Erom three (3) reec to nine (9) teec chree 

(3) inches inby the last row of coot bolts 

during this cut. 'T'he current qoof Control 

Plan states thac controls of the continuous 

1844 
mining machine or loading machine shall not 

advance inby the last row of roof bolts 

except with approved extended cut plan (pages 

13 note 1, page 14, note, 1, page 15, page 16 

note 1 page 1 7 note 1) • A.n approved extended 

cut plan is not in force at this mine ac chis 

time. ~his is the second violation of this 

type since November 10, 1988, indicating that 

this problem may be a practice and indicating 

that the mining machine operator, helper and 

section foreman are not fully aware of the 

serious consequences that may result trorn 

working under unsupported roof." 

Also in issue is Order No. 3187964 dated November 28, 1988, 

issued pursuant to section 104(d)(l) of the Act, supra, and 

charging a violation of 30 C.F.R. § 75.220 for the following 

condition or practice: 

"The current Roof Control Plan was not 

being followed on the No. 5 section in that 

the face of the crosscut being cut from No. 2 

entry to No. 3 entry had been mined up to 

23 feet 6 inches inby the last row of 

permanent roof supports. ~he controls of the 

continuous miner measured 20 feet 3 inches 

trom the cutting head. ~his shows that the 

continuous miner operator was up to 3 feet 3 

inches inby the last row of roof bolts during 

this cut. ~he current Roof Control Plan 

states that controls of the continuous miner 

or loading machine shall not advance inby the 

last row of roof bolts except with an 

approved extended cue plan (pages 13-18 note 

1). ~n approved extended cut plan is not in 

force at this mine at this time. ~his is the 

third v~olation of this type since 

November 10, 1988 and the second such violation observed on this shift on No. 5 section. ~his strongly indicates that this may 

be a practice on chis section. ~his also 

shows a lack of awareness to the hazards 

involved in working under unsupported root by 

the miner operator, helper and section 

foreman." 

At a pre-hearing conference che parties agreed to the 

following stipulations. 

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

mine; 

1845 
(2) 'T'he operator and the mine are subject to the 

jurisdiction of the Federal Mine Safety and Health Act of 1977; 

(3) 'T'he administrative law judge has jurisdiction of this 

case; 

(4) ~he inspector who issued the subject citation and order 

was a duly authorized representative of the Secretary; 

(5) True and correct copies of the subject citation and 

order were properly served upon the operator; 

(6) Copies of the subject citation and order and 

' terminations thereof are authentic and may be admitted into 

evidence for purposes of establishing their issuance, but not for 

the purpose of establishing the truthfulness or relevancy of any 

statements asserted therein, except as agreed to by stipulation; 

(7) ~e operator is large in size; 

(8) Payment of any penalty herein will not affect the 

operator's ability to continue in business; 

(9) The roof control plan in effect on November 28, 1988, 

requires that the controls of a continuous mining machine shall 

not be advanced inby the last row of roof bolts; 

ClO) ~he conditions described on the face of Citation 

No. 3187963 are accepted as written therein and constitute a violation oi the operator's roof control plan pursuant to 

30 C.F.~. § 75.220; 

Cll) The conditions described on the face of Order 

No. 3187964 are accepted as written therein and constitute a violation oi tne operator's roof control plan pursuant to 30 C.F.R. 

§ 75.220; 

(12) Citation No. 3187963 and Order No. 3187964 are properly 

characterized as significant and substantial violations; 

Cl3) During the 24-month period prior to the issuance of the 

citation and order in this case, i.e., Wovember 28, 1988, the 

operator was issued 21 104(a) citations, and two 104(d)(2) orders 

for violations of its approved roof control plan. 

~he foregoing stipulations were accepted (Tr. 8). 

'T'he opera tor having stipulated to the existence of the violations and to their being significant and substantial, the 

parties agreed at the pre-hearing that the issues to be determined in this matter are the existence of unwarrantable failure 

in the subject citation and order, and the appropriate amount of 

civil penalties c~r. 8). 

1846 
'T'he Commission has defined unwarrantable failure as "aggravated conduct constituting more than ordinary negligence." 

Fmery Mining Corporation, 9 FMSHRC 1997, 2001 (December 1987), 

Youghiogheny and Ohio Coal Company, 9 FMSHRC 2007, (December 

19 8 7) . ~ou thern Ohio Coal Company, 10 FMSHRC 138 (February 

1988); Quinlanct Coals, Inc., 10 FMSHRC 705 (June 1988). The 

existence of unwarrantable failure may be adjudicated in these 

proceedings. Quinland Coals, Inc., 9 FM.S!1RC 1614 (September 

1987). 

'T'he inspector testified that the excess cuc which was from 3 

feet to 9 feet 3 inches, cited in the citation, was visibly 

oovious and that it would have taken about l! i1ours to make that 

cuc (rrr. 28). According to che inspector, ic is che practice of 

che operator's section foreman to be in the area where coal is 

being mined ('T'r. 36, 38). Tt was the inspeccor's opinion that 

the section foreman was in the cited area for at least a portion 

of che time when the excess cut was made and that he had co have 

known of it (Tr. 36, 38). Four to six cars of coal were taken 

from the excessive porcion of the cut (Tr. 45). 'T'he cue was so 

excessively deep that it penetrated through the crosscut to the 

next entry wnere the boles in that entry made it clear that the 

cut had gone much too far (Tr. 42-44). Finally, a citation had 

been issued for the same type or violation a few weeks previously 

CMSF.A Fxh. 7, Tr. 71). The inspector's testimony is · 

uncontradicted and t accept it. 

That roof falls are the leading cause of fatalities and 

injuries in underground mining, has long been recognized. See 

most recently, U.M.W. v. Dole, 870 F.2d 662 CD.C. Cir. 1989). 

Compliance with the roof control plan is therefore, a critical 

priority. In Youghiogheny and Ohio Coal Company, supra, the Commission in upholding a finding of unwarrantable iailure, held 

that the section foreman is responsible for compliance with the 

roof control plan and that in discharging this responsibility he 

is held to a deman.ding standard of care in safety matters. In 

che instant case che section £6reman fell iar short of what reasonably could have been required of him. The extent of the cut, 

the length of time taken to make it, and its visible nature 

demonstrate conduct 0£ a most aggravated nature. After 

consideration of the foregoing circumstances, T conclude that 

under applicable Commission criteria unwarrantable failure was 

present here. rrhe finding of unwarrantable failure in Citation 

No. 3187963 is Affirmed. 

The second excessive cut which was cited in Order 

~o. 3187964 was noc as deep as the tirsc one, but according to 

che inspector the foreman would have seen it any time after the 

continuous miner operator went beyond the last roof supports 

(Tr. 40). Up to four cars of coal were involved in che excessive 

portion of this cut (Tr. 46-47). Moreover the second cut was 

made immediately after che one cited in the citation (Tr. 49). 

1847 
When the inspector saw both cuts he concluded that the roof 

control plan did not mean as much to the operator as it should 

have c~r. 49). The Commission's decision in Youghiogheny and 

Ohio Coal Company, cited supra, also is in point here. Tn that 

case the Commission noted the judge's finding that the inspector 

had cited the operator for the same violation three days previously, 9 FMSHRC at 2010. Tnsofar as the element of time is 

concerned, the back-to-back cuts here are even more compelling. 

I believe the second cu~ constituted the kind and degree of 

conduct the Commission has identified as aggravated. Accordingly, it must be found that unwarrantable failure was present 

here also. ,,,he finding of unwarrantable failure in Order ~lo. 

3187964 is AFFIRMED. 

Based upon the circumstances set forth herein, I find the 

operator guilty of a high degree of negligence in both 

instances and that botn violations were very serious. ~he remaining criteria in section llO(i} are covered by the stipulations. 

The post-hearing briefs filed by the parties have been 

received. ~o the extent they are inconsistent with this 

decision, they are rejected. 

ORDl<'R 

In light of the foregoing it is O~DF:R~D that the findings of 

unwarrantable failure in Citation ~o. 3187963 and Order 

No. 3187964 be AFFIRMBD. 

It is further ORDFRFD that a penalty of $1,200 be ASSPSS~O 

for Citation No. 3187963. 

It is further ORDFRF.D that a penalty of $1,600 be ASSFSSFO 

for Order No. 3187964. 

It is further O~DRRED that the operator PAY the foregoing 

amounts within 30 ·days from the date ot this decision. 

Paul Merlin 

Chief Administrative Law Judge 

Discribution: 

William Lawson, Fsq., Office of the ~olicitor, U. s. Department 

of Labor, ~u1te 201, 2015 Second Avenue North, Birm1ngha1n, AL 

35203 (Certified Mail} 

1848 
Robert Stanley Morrow, Fsq., Harold n. Rice, F.sq., Jim Walter 

Resources, Inc., Post Otfice Box 830079, Birmingham, AL 

35283-0079 (Certified Mail) 

Ms. Joyce Hanula, Legal ~ssistant, UMWA., 900 15th Sr.reet:, N.W., 

Washington, DC 20005 (Certified Mail) 

/gl 

18'49 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 29, 1989 

SFCRR~ARY OF LABOR, 

MINE SAFETY A~D HP.AL'!'H 

ADMINISTRATION, CMSHA) 

Petitioner 

v. 

~. H. SMTTH S'J'ONB COMPANY, 

~espondent 

CIVIL PFNA L'J'Y PROCFF.'Oil\!G 

Docket No. VA 89-28-M 

~- c. ~o. 44-02965-05518 

T_,ouisa Plant 

DECISION 

Appearances: Jack Strausman, Bsq., Office of the Solicitor, 

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

for -Petitioner; 

Lisa M. Wolff, Representative for A. H. Smith 

Stone Company, Branchville, Maryland, for 

Respondent. 

Before: Judge Merlin 

This case is a petition for the assessment of a civil 

penalty filed by the Secretary of Labor against A. H. Smith 

Stone Company pursuant to the Federal ~ine Safety and Health 

~ct of 1977. ~n evidentiary hearing was held on August 30, 

1989, and post-hearing briefs have been filed. 

Order ~o. 3045441 dated July 17, 1988, alleges a 

violation of 30 C.?.R. § 56.14006 for the following 

condition: 

"'!'his is an order of withdrawal, the 

employee shoveling under the £eede£ shaker 

under the #1 jaw crusher shall be withdrawn 

immediately. 'T'he employee was ahoveling 

within a foot of the unguarded V-belt drive 

and drive motor 0£ the shocker feeder. '!'his 

is an imminent danger situation." 

30 C.F.R. § 56.14006 provides as follows: 

~xcept when testing the machinery, 

guards shall be securely in place while 

machinery is being operated. 

1850 
At the hearing the parties agreed to the following 

stipulations ('T'r. 5-6): 

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

subject mine; 

(2) the operator and mine are subject to the ~ederal Mine 

Safety and Health Act of 1977; 

(3) ~he administrative law judge has jurisdiction of this 

case; 

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

authorized representative 0£ the Secretary; 

(5) a true and correct copy of the order was served upon 

the operator; 

(6) a copy of the subject 6rder is authentic and may be 

admitted into evidence for the purpose of establishing its 

issuance, but not for the purpose of establishing the truthfulness or relevancy of any statements asserted therein; 

(7) the alleged violation was abated in good faith; 

(8) the his~ory oi prior violations is as set forth in the 

Solicitor's prehearing statement; 

(9) the operator's size is as set forth in the ~olicitor's 

prehearing statement. 

'T'he inspector testified that when he arrived, the plant was 

running (Tr. 11). He saw and heard material being dumped into 

the feeder hoppers for the crushers and then coming off at the 

end of the conveyor belts (Tr. 11-12). After greeting the foreman who was sitting on a front end loader, the inspector turnea 

and saw an employee shoveling at an unguarded belt (Tr. 13). 

This belt ran from the pulley on the motor to the pulley on the 

shaker {Tr. 16, MSHA F.xhs. 4-6). There was no guard on the drive 

or on the pulleys (Tr. 28) . 'T'he employee who was shoveling was 

within one foot of the unguarded drive (Tr. 14). The jaw crusher 

was above his head and the shaker feeder was in front of him 

(Tr. 27). ~he foregoing testimony is uncontradicted and I accept 

it. 

The inspector further stated that the belt was not being 

tested. Be explained that testing of this belt is done by 

running the belt for 10 minutes with a small amount of material 

1851 
on it ('T'r. 33, 42-43). Unlike a conveyor belt which carries 

material, the V-bel t in this case only drives machinery 

('T'r. 70-71). Tn addition, no one told the inspector the belt was 

being tes-ced and from his seat on the front-end loader the foreman was too far away to have observed whether the belt was 

operating properly ('T'r. 33-35, 41-42, 59). Finally, if -cesting 

were being done, an employee would not have been assigned to do 

the normal work of shoveling so close to the unguarded belt drive 

('T'r. 33, 41-421. T accept this uncontradicted testimony and 

based upon it find that the belt was not being tested. 

In light of the roregoing I conclude a violated existed. 

~s already set forth, the B~ployee was shoveling one foot 

away from the unguarded belt which was running. I accept the 

inspector's description of the floor as slippery due to the 

presence of dust, water, oil and grease ('T'r. 36). 'T'he inspector stated that if an employee were caught in the belt he could 

lose his t ingers, hand, arm or life ( 'T'r. 3 7) • Under the circumstances the violation presents the discrete safety hazard of 

slipping and becoming caught. Because of the proximity of the 

employee to the moving, unguarded belt a reasonable likelihood 

existed that the feared hazard of becoming caught in the 

machinery would occur. ~nd as set forth above, if an injury 

resulted it would be of a serious nature. Accordingly, under 

Commission criteria the violation was significant and substantial. 

Mathies Coal Co., 6 FMSHRC 1 (1984), Consolidation Coal Company, 

6 FMSHRC 34 (1984). For the same reasons t find the violation 

was very serious indeed. l/ 

According to the inspector, the foreman on the front end 

loader saw the employee shoveling near the unguarded belt 

< 'T'r. 38) . 'T'he foreman therefore was guilty or a high degree of 

ll 'T'he violation was cited in a 107(a) imminent danger withdrawal order/104(a~ citation. The operator has not contested the 

order. However, the record demonstrates that the inspector was 

correct in issuing it. Cf. Freeman Coal Mining co., 2 IBMA 197, 

212 (1973) aff'd, 504 F.2d 741 (7th Cir. 1974); Fastern Associated Coal Corp., 2 tBMA 128 (1973) ati'd, Fastern Associated 

Coal Corp. v. Interior Board of Mine Operations Appeals, et al., 

491 F.2d 277 (4th Cir. 1974); Cyprus Fmpire Corporation, 11 

FMSHRC 368, 374-376 (1989). 

1852 
negligence and his negligence is imputable to the operator. 

Southern Ohio Coal Company, 4 FMSHRC 1459 (1982) l/. 

~he remaining llOCi) criteria are covered by the 

stipulations of the parties. 

~he post-hearing briefs filed by the parties have been 

reviewed. ~o the extent they are inconsistent with this 

decision, they are.rejected. 

ORDER 

In light of the foregoing it is ORDF.RED that Order/Citation 

~o. 3045441 be AFFIRMED. 

It is further ORDERFD that a penalty of $1,250 be ASSFSSF.D. 

It is further ORDFRF.D that the operator PAY $1,250 within 30 

days from the date of this decision. 

Chief Administrative I.aw Judge 

2/ As set forth herein, the testimony of the inspector, who was 

the only witness to testify, was undisputed. ~t the hearing che 

operator's representative moved for a continuance and requested a 

subpoena because the foreman was not present to testify 

C~r. 72-73). However, the notice of pre-hearing and hearing was 

issued more than two months in advance 0£ the hearing, and in her 

prehearing statement t:he representative identified the foreman as 

the operator's witness who would testify at the hearing. At che 

hearing the representative did not know why the foreman, who is 

still in t:he operator's employ, did no~ appear ('T'r. 74). Her 

belated request for a continuance and subpoena was untimely and 

unt ounded and as such, it was denied from the bench ( 'T'r. 7 4) • 

Distribution: 

Jack~. Strausman, Fsq., Office of the Solicitor, U. S. Department of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 

22203 (Certiiied Mail) 

Ms. Lisa M. Wolff, Director of Safety/Government Affairs, A. H. 

~mith ~tone Company, 9101 qailroad Avenue, Branchville, MD 20740 

(Certified Mail) 

/gl 

1853 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 SEP 2 9 

DENNIS R. HILDERBRANDT, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

HECLA MINING COMPANY, 

Respondent 

Docket No. WEST 88-258-DM 

MD 87-37 

Republic Unit 

DECISION 

Appearances: Theresa D. Thompson, Esq., Maxey Law Offices, 

Spokane, Washington, 

for Complainant; 

Fred M. Gibler, Esq., Evans, Keane, Koontz, Boyd, 

and Ripley, Kellogg, Idaho, 

for Respondent. 

Before: Judge Cetti 

This case is before me upon the complaint by Dennis R. 

Hilderbrant under section 105{c){3) of the Federal Mine Safety 

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

alleging that he was constructively discharged by Hecla Mining 

Company, {Hecla) on April 17, 1987 in violation of section 

105(c)(l) of the Act.~/ 

!/Section 105{c)(l) of the Act provides as follows: 

No person shall discharge or in any manner discriminate against 

or cause to be discharged or cause discrimination against or 

otherwise interfere with the exercise of the statutory rights of 

any miner, representative of miners or applicant for employment 

in any coal other mine subject to this Act because such miner 

representative of miners or applicant for employment, has filed 

or made a complaint under or related to this Act, including a 

complaint notifying the operator or the operator's agent, or the 

representative of the miners at the coal or other mine of an 

alleged danger or safety or health violation in a coal or other 

mine or because such miner, representative of miners or applicant 

for employment is the subject of medical evaluations and 

potential transfer under a standard published pursuant to section 

101 or because such representative of miners or applicant for 

employment has instituted or caused to be instituted any proceedings under or related to this Act or has testified or is 

about to testify in any such proceeding, or because of the 

exercise by such miner, representative of miners or applicant for 

employment on behalf of himself or others of any statutory right 

afforded by this Act. 

1854 
Statement of the Case 

Complainant Dennis Hilderbrandt filed a complaint with the 

Commission under Section 105(c) of the Act on September 21, 1987, 

alleging in essence that he quit working in the mine on April 17, 

1987 because he believed that his health and safety were 

endangered by his work assignment. Complainant alleges he was 

constructively discharged. He complains that his employer the, 

Hecla Mining Company, treated him in a discriminatory manner in 

retaliation for his having engaged in protective activities. He 

also alleges that working conditions in the mine were so 

intolerable he had no alterative but to quit. Complainant seeks 

reinstatement, back pay, attorneys fees and any other allowable 

compensation that the Commission may order. 

The parties have filed post-hearing briefs and proposed 

findings and conclusions of law. At the hearing the parties 

presented oral and documentary evidence and seven stipulations as 

follows: 

Stipulated Facts 

1. The employee, Dennis R. Hildebrandt, worked for Hecla 

Mining Company since 1981 when Hecla acquired the mine from Mr. 

Hildebrandt's previous employer. Mr. Hildebrandt worked in the 

Republic mine for several years until April 17, 1987. Mr. 

Hildebrandt worked as an underground miner with his partner, 

Clarence E. Heideman. 

2. On April 3, 1987, Mr. Hildebrandt and his partner worked 

the graveyard shift and at the conclusion of the shift, he 

received a disciplinary notice for insufficient work during the 

shift. 

3. During that shift, Mr. Hildebrandt and his partner 

encountered difficulties including (a) necessary equipment was 

not at the work site (b) smoke and gas at the unventilated work 

site, and (c) two separate groups of misfires (unblasted 

explosives in drilled holes). 

4. Mr. Hildebrandt made a written hazardous condition 

complaint to MSHA alleging violations of mandatory MSHA standards 

during the April 3, 1987 shift. 

5. A federal investigator inspected the mine, spoke with a 

number of persons and issued two citations for violations of MSHA 

mandatory standards. 

6. On April 16, 1987, Mr. Hildebrandt was again working the 

graveyard shift with his partner. Following this shift, he was 

advised that he was not making sufficient work progress at his 

work station. 

1855 
7. Later that same day, April 17, 1987, Mr. Hildebrandt 

advised Hecla that he was quitting work for Hecla. 

Based upon the hearing evidence and the record as a whole, I 

find that preponderance of the substantial, reliable and 

probative evidence establishes the following: 

Findings and Conclusions 

The complainant Hilderbrandt, commenced work for Hecla 

Mining Company (Hecla) at its Republic Unit mine near Republic, 

Washington, in 1981 when Hecla acquired it from prior owners. 

Hilderbrandt had approximately 13 1/2 years experience as a miner 

at the mine. On April 17, 1987, Hilderbrandt terminated his 

employment with Hecla. 

Hilderbrandt alleges he was discriminated against because of 

his status or perceived status by Hecla as a union operative, 

because he was safety representative and because he made 

safety-related complaints to the company and to the Mine Safety 

and Health Administration between April 3 and April 17, 1987. 

Hilderbrandt contends that because of such activity on his part 

he was assigned to work in an area of the mine which was unsafe 

and in which he could not earn a production bonus. He claims 

that as a result, he was compelled to terminate his employment. 

Hecla denies that Hilderbrandt was disciplined for engaging 

in protected activity. It is Hecla's position that he 

voluntarily quit his job. Based upon the preponderance of the 

evidence and the record as a whole I find that Hilderbrant was 

not disciplined for engaging in protected activity that he 

voluntarily quit his job on April 17, 1987 and suffered· no adverse action that was motivated in any part by protected activity. 

In 1983 Hilderbrandt was elected safety representative for 

purposes of the Mine Safety and Health Act. Hilderbrandt's claim 

that he was discriminated against because of his status as safety 

representative is, however, based primarily upon events occurring 

between April 3 and April 17, 1987 (Tr. 165). It is Hilderbrandt's position that Ae made safety complaints regarding his 

work areas in the mine to MSHA and to Hecla as the safety 

representative. 

Conflicting evidence was presented by Hilderbrandt on the 

issue regarding his claim of discrimination for Union activities. 

Hilderbrandt testified at the hearing that he was not a supporter 

of the union during a certification election in May 1987, but he 

believed that Hecla thought he was a union supporter (Tr. 169). 

Hilderbrandt presented other evidence in which he stated that he 

was a supporter of the union certification in the May 1987 

election. In Exhibit 11, pages 10 and 11, Hilderbrandt told the 

1856 
MSHA special investigator investigating his discrimination claim 

that he was "one of the biggest supporters" of the union. 

The three individuals Hilderbrandt claims were responsible 

for forcing him to terminate his employment were Mine 

Superintendent Tom Graham, Supervisor Bill Greenland, and Mine 

Manager Doug Wollant. None of these three individuals had any 

involvement with union certification matters (Tr. 390). Mr. 

Greenland and Mr. Wollant had only arrived at the Republic Union 

approximately one month before Mr. Hilderbrandt terminated his 

employment (Tr. 170). Mr. Graham had arrived only shortly before 

the union certification election in 1987 (Tr. 360). No evidence 

other than Hilderbrandt's suspicion was presented to show that 

these three individuals or anyone else from Hecla believed 

Hilderbrandt was involved with union activities. 

Commencing approximately the middle of March 1987, 

Hilderbrandt and his partner, Clarence Heideman, began work in an 

area of the mine known as the GP3 drift (Tr. 456). This was an 

old area of the mine the company intended to use for future 

mining operations. In preparation for mining and development 

activities, it was necessary to rehabilitate the GP3 drift (Tr. 

4 54) • 

Hilderbrandt was a contract or "gypo" miner. This designation means the miner has the opportunity to earn a bonus based 

on work performed over and above his hourly rate, which is 

commonly known as "day's pay." The bonus is paid when mining or 

development work begins. During the rehabilitation phase, the 

employee is paid at his "day's pay" rate (Tr. 454). 

On the graveyard shift which commenced at 11 p.m. on Friday, 

April 3, 1987, Hilderbrandt and his partner were required to work 

in a area of the mine that was different from the GP3 drift in 

which they previously worked. Prior to going underground for the 

shift, Mr. Greenland, as Hilderbrandt's supervisor, instructed 

Hilderbrandt and his partner that their duties were to level off 

the muck pile which resulted from the prior crews blasting and to 

begin rock bolting the mined out area (Tr. 255). 

When Hilderbrandt and his partner arrived at the underground 

work site, it became obvious that, as a result of lack of 

necessary equipment and smoke caused by the prior shift's blasting activities, they would not be able to accomplish the work 

originally assigned (Tr. 258). 

Upon encountering these conditions, Hilderbrandt and his 

partner were instructed by their supervisor Mr. Greenland to 

begin setting up equipment for the next shift, which would have 

entailed placing rock bolts, mats, and wire in the area and to 

transport a slusher and bucket to the area (Tr. 262). They 

1857 
failed to perform these tasks by the end of the shift. This 

work, had it been completed, would have taken approximately two 

hours (Tr. 269, 461-462). 

Hilderbrandt complained during the shift to Greenland about 

the gassy conditions in the mine. He was not, however, required 

to work in the gassy conditions (Tr. 186). The mine had a gas or 

smoke problems. These conditions were the subject of frequent 

complaints by the miners and management personnel. MSHA was 

aware of the problem and was working with Hecla to correct the 

problem (Tr. 396). 

At the conclusion of the Friday, April 3 graveyard shift, 

Supervisor Greenland informed Hilderbrandt he intended to suspend 

him for two days for failing to perform adequate work during that 

shift (Tr. 274). Hilderbrandt requested a conference with the 

mine superintendent, Mr. Graham, and Graham was called to the 

work site. Following a conference between Mr. Greenland and Mr. 

Graham, Graham ordered that Hilderbrandt not be suspended but 

instead that he be issued a Step 2 Employee Improvement Act 

Report CEIAR) (Tr. 275-276). 

The Employee Improvement Action Report CEIAR) Step 2 did not 

result in any loss of work or pay to Hilderbrandt (Tr. 277). 

Under Hecla's progressive system of discipline, it would have 

been necessary for Hilderbrandt to receive a similar report for 

similar conduct during the next six-month period before he could 

have been disciplined. If he received no similar EIAR for three 

months, it would be reduced to a Step 1 Coral warning>, and if he 

received no EIAR for six months, the EIAR Step 2 would be removed 

(Tr. 279-280). Hilderbrandt worked the graveyard shift on April 

4, 1987, in the same area of the mine as on April 3, 1987, but 

never worked in that area of the mine again. 

Commencing with his next-scheduled shift on April 5, 1987, 

Hilderbrandt returned to work in the GP3 drift doing the 

identical rehabilitation work he had been performing before April 

3, 1987 (Tr. 369). He continued to work in this area of the mine 

CGP3 drift) until he voluntarily terminated his employment on 

April 17, 1987 (Tr. 369-370). 

During the week of April 5, 1987, Hilderbrandt made a 

telephone call to the Mine Safety and Health Administration 

reporting safety complaints with regard to conditions he 

encountered on April 3, 1987 graveyard shift (Tr. 90). Specifically, he claimed that smokey conditions existed in the mine and 

that misfires were not refired during the shift. As a result of 

the telephone call, MSHA investigated and issued two citations -

one for the April 3rd failure to fire the misfires and one for 

the April 3rd failure to monitor smoke in the mine. 

1858 
During the period from April 3 through April 17, 

Hilderbrandt and his partner were doing the same work as members 

of the opposite crews on other shifts in the same area of the 

mine (Tr. 457-462). 

On the shift which began at 11:00 p.m. on April 16, 1987, 

and continued over to the morning of April 17, Hilderbrandt and 

his partner had completed the rehabilitation work in the GP3 area 

and began development work (Tr. 455). Commencing with that 

shift, Hilderbrandt began to earn a production bonus, which is 

reflected on Hilderbrandt's Exhibit 16. 

Mine Superintendent Graham had expected Hilderbrandt and his 

partner to be able to complete a cycle once they completed their 

rehabilitation efforts and began extending the drift (Tr. 376). 

During the initial mining stages in the GP3 drift Hilderbrandt 

and his partner were unable to complete a full cycle (Tr. 

377-378). This was primarily because of muddy conditions in the 

area. Mr. Graham had instructed Mr. Greenland that if a full 

cycle was not completed he wanted to see Hilderbrandt and his 

partner to discuss the situation (Tr. 377). Accordingly, at the 

end of shift on the morning of April 17, Graham, Greenland, and 

Wollant met with Hilderbrandt and his partner. There was a 

discussion, the content of which is in dispute. Hilderbrandt 

claims that he stated he could not work safely and at the same 

time perform the amount of work required by Mr. Graham. Graham 

and Greenland, on the other hand, testified that Hilderbrandt 

made no complaints relating to safety. They testified that 

Hilderbrandt complained that because of the muddy conditions in 

the mine he could not complete a cycle. I credit the testimony 

of Graham and Greenland. At the end of the conversation, Greenland asked Hilderbrandt if he could commit to a half cycle. 

Hilderbrandt replied that with another 20 - 30 feet of rehabilitation work it might be possible (Tr. 121). 

Hilderbrandt received no discipline for his work performance 

during the shift of April 16, 1987, and in fact received no 

disciplinary action after the April 3, 1987 EIAR (Tr. 388-389). 

After the meeting with Hilderbrandt on the morning of April 

17, 1987, Mine Superintendent Graham went to the GP3 drift where 

Hilderbrandt had been working to experience the working 

conditions first hand to determine what amount of work could be 

performed. He concluded that because of the muddy conditions in 

the drift he had expected too much work from his employees (Tr. 

384). 

During the afternoon of April 17, 1987, Hilderbrandt and his 

partner returned to the mine (Tr. 385). When Hilderbrandt 

1859 
returned, Mine Superintendent Graham informed him that he owed 

him an apology regarding the amount of work which could be 

completed (Tr. 387). Hilderbrandt denies such a conversation. 

He testified that the only conversation was Hilderbrandt 

informing Graham that he (Hilderbrandt) quit. Other evidence 

submitted by Hilderbrandt supports the truth and accuracy of 

Graham's testimony of what was said at the meeting. In 

Hilderbrandt's Exhibit 11, page 9, Hilderbrandt informed the MSHA 

investigator investigating his discrimination claim that Graham 

stated as follows: "You guys are right. I apologize at this time 

for riding you so hard". Ed Sinner, another supervisor, overheard this conversation (Tr. 466). Although Graham apologized, 

Hilderbrandt quit without giving Graham the opportunity to explain what he intended to do with respect to Hilderbrandt's work 

area in the future. 

Hilderbrandt terminated his employment on April 17, 1987. 

He took no steps to inform the Mine Safety and Health Administration of the alleged unsafe conditions in the mine, and he did 

not, as safety representative, take any steps to protect opposite 

crews of what he contends he felt was an unsafe condition. 

Since he terminated his employment on April 17, 1987, 

Hilderbrandt has not requested employment with Hecla. He 

testified that he could not work there under the present management CTr. 143). 

The Mine Safety and Health Act, 30 u.s.c. 815(c), prohibits 

an employer from discriminating against a miner for engaging in 

protected activity. 

In a discrimination case, the burden of proof is upon the 

complainant to show that Cl) he engaged in protected activity and 

(2) that adverse action was taken against him which was motivated 

in any part by the protected activity. 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. If an operator cannot rebut the prima facie 

case in this manner, it may defend affirmatively by proving that 

it also was motivated by the miner•s unprotected activity and 

would have taken the adverse action for the unprotected activity 

alone. 

A constructive discharge can occur under the provisions of 

section 105Cc> of the Act. For a miner to sustain his claim of a 

constructive discharge, he must show that the operator created or 

maintained conditions so intolerable that a reasonable miner 

would have felt compelled to resign. Hilderbrandt failed to do 

this. 

1860 
With respect to the events of April 3, 1987, Hilderbrandt 

engaged in protected activity in making safety complaints. 

Hilderbrandt's complaints about the smokey conditions were not 

unique to him. Many employees complained about smoke in the 

mine, and MSHA was aware of the condition. Hilderbrandt was not 

required to work in the smokey area of the mine. Hecla 

reasonably determined that an insufficient amount of work was 

performed by Hilderbrandt during his April 3rd work shift. It is 

concluded that the operator had valid nondiscriminatory reasons 

for issuing the April 3rd Employee Improvement Action Report 

which cost Hilderbrandt neither time nor money. 

The complaints made by Hilderbrandt to the Mine Safety and 

Health Administration during the week of April 5, 1987, 

constitute protected activity, and if Hilderbrandt had made 

safety complaints to management on April 17, 1987, such 

complaints would also be protected activity. However protected 

activity in and of itself is not actionable. It is necessary for 

the miner to show that adverse action resulted in some part from 

that protected activity to establish a prima facie case~ 

Hilderbrandt has failed to establish a prima facie case, since he 

has not shown that any adverse action was taken against him which 

in any part was motivated by his protected activity. 

Hilderbrandt's claim that because of the events of April 3 

through April 17, 1987, he was forced to work in undesirable area 

of the mine at which he could not earn a production bonus are not 

supported by the facts. Hilderbrandt worked in the same area 

(GP3 drift) before April 3, 1987, as well as afterward doing 

theidentical work for the identical pay. Moreover, his Exhibit 

16 shows that he was able to earn a production bonus. No adverse 

action was taken against him for engaging in protected activity. 

Even if Hilderbrandt believed conditions in the mine or the 

GP3 drift, where he worked before and after April 3rd and 4th 

were so intolerable that he could no longer safely work there, 

his belief was not reasonable. The objective evidence, including 

the fact that he took no steps to protect miners on the opposite 

shift, which he had an affirmative duty to do as safety 

representative, the fact he did not report to MSHA any alleged 

unsafe conditions of the GP3 drift where he worked and the fact 

other miners worked under identical conditions, and did not feel 

compelled to resign, tend to show that Hilderbrandt did not have 

a good faith reasonable belief that the work was unsafe or 

unhealthful and I so find. Moreover, an employer is only 

required to provide a reasonable option. Although Graham on the 

afternoon of April 17, 1987 apologized for his high work 

expectations, Hilderbrandt without further discussion quit his 

job. He failed to report back to work and did not ever seek 

employment with Hecla again. 

1861 
Hilderbrandt was not discriminated ag~inst in violation of 

section 105(c) of the Act. He was not subjected to a discriminatory constructive discharge. The preponderance of the evidence 

does not establish that Hecla created or maintained conditions so 

intolerable that a reasonable miner would have felt compelled to 

resign. Accordingly, Hilderbrandt's claim is denied. 

ORDER 

Based on the above findings of fact and conclusions of law 

IT IS ORDERED that the complaint of discrimination filed herein 

is DISMISSED. 

Distribution: 

~~:Jr~ t F. Cett1 

istrative Law Judge 

Theresa D. Thompson, Esq., Maxey Law Offices, West 1303 Broadway, 

Spokane, WA 99201 (Certified Mail) 

Fred M. Gibler, Esq., Evans, Keane, Koontz, Boyd & Ripley, 111 

Main Street, P.O. Box 659, Kellogg, ID 83837 (Certified Mail) 

/bls 

1862 
ADMINISTRATIVE LAW JUDGE ORDERS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

September 1, 1989 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SOUTHERN OHIO COAL COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 88-235 

A. C. No. 46-03805-03854 

Martinka No. 1 Mine 

ORDER DENYING MOTION FOR SUMMARY DECISION 

Statement of the Case 

On February 17, 1988, Respondent was served with Order 

No. 2895699 which alleged as followd: "The 24 inches of 

unobstructed clearance is not being provided over the E2 track 

overcast where the long run coal conveyer belt cross's, (sic) due 

to no steps provided to cross safely over, concrete blocKs, empty 

can being used on the inby side and a wooden pallet on outby side 

with broKen runners being used to climb top of the overcast, 

creating a tripping, stumble or falling hazard. One person 

slipped while trying to cross this overcast on 2/16/88 also this 

has been reported for steps since 2/15/88. Safeguard issued 

5/8/87 no. 2699584." 

Safeguard No. 2699584, which was issued on May 8, 1987, and 

which was referred to in Order No. 2895699, provides as follows: 

"The clearance space along the vacuum breaker 

located near the top of the hill is restricted with 

loose rock. This creates a tripping or stumbling 

hazard. 

This is a notice to provide safeguards requiring 

that all vacuum breakers, similar equipment and where 

miners are required to work or travel to complete their 

duties, shall be provided no less than 24 inches of 

unobstructed clearancspace." 

On June 13, 1988, Petitioner filed a Petition for Assessment 

of Civil Penalty, and Respondent filed its Answer on September 19, 

1988. A Prenearing Order was issued on September 26, 1988, 

directing the Parties to confer for the purpose of discussing 

settlement. The Parties advised that the case could not be 

settled, and pursuant to notice the case was set for hearing on 

1863 
June 7 - 8, 1989. On May 18, 1989, in a telephone conference call 

with the undersigned initiated by Counsel for both Parties, it was 

indicated by Counsel that the case might be settled or submitted on 

stipulated facts or a motion for summary decision. Counsel 

accordingly requested that the hearing set for June 7 -- 8 be 

adjourned. The request was granted and tne hearing previously set 

was adjourned. 

On June 28, 1989, Respondent filed a Motion for Summary 

Decision, and Petitioner filed its Response on July 31, 1989. 

Discussion 

In order to prevail in its Motion, Respondent has the burden 

of establishing, pursuant 29 C.F.R. § 2700.64(b), that, 

considering the entire record, there is no genuine issue of any 

material fact and that it is entitled to summary judgment as a 

matter of law. 

I 

Respondent has advanced a number of argurnen~s in support of 

this Motion. It first argues that the safeguard herein is 

invalid as it is of general applicability. In essence, 

Respondent refers to the language of the safeguard requiring an 

unobstructed clearance space of not less than 24 inches with 

regard to "vacuum breakers," and "where miners are required to 

work or travel to complete their duties," and argues that all 

mines have areas where miners are required to work. Respondent 

also refers to Petitioner's admission that breakers are common in 

underground mines. 

In order to prevail, and to justify a holding that the 

safeguard herein is invalid, Respondent must establish that there 

are no material facts at issue disputing its assertions that the 

safeguard is of general applicability. In order to resolve this 

issue an inquiry must initially be made as to whethec there is 

any genuine issue ~s to the circumstances under which the 

underlying safeguard was issued, and the existence of or need for 

similar safeguards at other mines. (See Southern Ohio Coal 

Company, 10 FMSHRC 963, at 966, 967 (1988)). Peticioner in its 

response to Respondent's request for admissions, has specifically 

denied that the hazard of not having steps to the cross over at 

the overcast, was not greater at the subject mine then at other 

mines on the ground that the subject mine" .•. is known to have 

a greater a1nount of water seeping into the entries on the mine 

floor and equipment, thereoy increasing the likelihood of slip, 

trip, and fall hazards." Respondent argues that the issue of the 

presence of water at the subject mine is not material on the 

ground ti1at water is common in mines. Respondent also argues 

~hat the original safeguard was not issued because of any 

water accumulation. 

1864 
The initial sentence of the original safeguard indicates 

essentially that a "clearance space" along th~ vacuum breaker was 

restricted with loose rock thus creating a tripping or stumbling 

hazard. Nonetheless, I conclude that it would be unduly harsh at 

this juncture to deprive Petitioner of the opportunit~-to present 

evidence on the issue of the extent if any, of any water 

accumulation at the subject mine, and whether this was a factor 

peculiar to the subject mine which provided a hazard which the 

original safeguard ~as intended to cure. ' 

II 

In essence, it is Respondent's position, in the alternative, 

that if the safeguard in question is accorded a narrow 

construction, it does not encompass the conditions set forth in 

the Order. In this connection Respondent maintains that an 

overcast is clearly not a vacuum brea~er, which was admitted to 

be an electrical device approximately 19 feet in length, 

72 inches or more in width and 34 inches height. Respondent also 

argues that an overcast is manifestly not "similar equipment" as 

ref erred to in the safeguard which would relate to other 

electrical devices of the same approximate size as the breaker. 

Further, Respondent argues that the phrase in the safeguard 

"where miners are required to work or travel to complete their 

duties," cannot refer to all areas of the mine, but is to be 

limited to requiring 24 inches of clearance only in situations 

where vacuum breakers or similar pieces of equipment are placed 

in areas where miners are required to work or travel. 

Petitioner, on the other hand, has argued that there is a genuine 

issue as to whether a track overcast is "similar equipment" as 

envisioned by the safeguard. In this connection, Petitioner 

essentially indicates that the inspector who issued the safeguard 

in question will testify that the breaker in the safeguard and 

"inter alia" overcast present tripping or stumbling hazards 

unless they provide no less 24 inches of unobstructed clearance 

space. While it is clear that safeguards should be given a 

strict construction (See Southern Ohio Coal Company, 7 FMSHRC 509 

(1985); Jim Walter Resources, Incorporated, 7 FMStlRC 493), it is 

premature to dispose of this issue presently without affording 

the Petitioner the opportunity to present evidence as to the 

applicability oi the original safeguard to the cited condition.~/ 

1/ In this connection, I note that the record presently does not 

~ontain any evidence to a physical description of the o~ercast in 

question. Nor is there adequate evidence of its use and 

location. 

1865 
III 

Respondent next argues, in the alternative, that the 

safeguard should be declared to be invalid as it does not clearly 

set forth the conduct required by Respondent in order -for it to 

comply with the safeguard. In this connection it argues that the 

phrase "similar equipment" is "indeterminately vague." 

Respondent also argues that the reference in the safeguard to 

areas where men are required to work or travel "compounds the 

problem of determining what the safeguard is addressing." 

Respondent is correct that under established case law, a 

safeguard is invalid if it does not identify with specificity the 

nature of the hazard at which it is directed and the conduct 

required of the Operator to remedy such hazard. (Southern Ohio, 

supra, at 512). However, Petitioner indicates that it intends 

to call at an evidentiary hearing the inspector who issued the 

underlying safeguard, and the inspector who issued the subject 

104(d)(2) Order. Petitioner argues that the question as to 

whether the Respondent was on notice that the overcast was 

required to be maintained free of debris when miners regularly 

traveled over the overcast, is a issue that requires the taking 

of testimony with regard to conditions present at the overcast as 

well as the testimony of the inspector who issued the safeguard. 

In general, Petitioner has the burden of establishing a 

prima facie case of a violation. (Miller Mining Company 

Incorporated v. Federal Mine and Health Review Commission, 713 

F.2nd 487 (9th Cir. 1983. See also, Old Ben Coal Corporation v. 

IBMA, 523 F.2nd 25, 39 (7th Cir. 1975)). As such, Petitioner 

has the burden of establishing all elements of the Order 

including the validity of the underlying safeguard. Therefore, I 

find that it would be unfair at the juncture to deprive 

Petitioner of the opportunity to adduce evidence on the issue of 

whether the safeguard was suf £iciently clear to have put the 

Respondent on notice that the alleged violative condition with 

regard to the overcast fell within the safeguard's prohibition. 

IV 

Lastly, Respondent argues, in the alternative, that the 

subject safeguard should be deemed invalid as it is inconsistent 

with the intent of section 314 of the Federal Mine Saiety and 

Health Act of 1977 (the Act). In this connection, Respondent 

argues, in essence, that the authority to issue safeguards, 

contained in section 314Cb), suora, pertains to componentci of 

mecnanical devices similar to those enu~erated in section 314(a), 

whereas in contrast the subject safeguard pertains to clearance 

nexc to an item of equipment. Petitioner, in it3 response to 

Respondent's Motion, indicates essentially that its position on 

this issue is predicated upon its argument that ''Congress 

intended that individual inspectors would have broad autnority to 

issue safeguards addressing hazards encounter~d by miners 

entering into, traveling in, and exiting mines." Petitioner's 

Response does not allege that there is any genuine is3ue as to 

any material fact with regard to this issue. 

1866 
The safeguard at issue was based on 30 C.F.R. § 75.1403, but 

not on any of the criteria set forth in 30 C.F.R. § 75.1403-1 

through§§ 75.1403.11. (Respondent's First Set of Admission~, 

Request No. 7, admitted by Petitioner). The language in section 

75.1403 is the same as that contained in section 314(b} of the 

Act. This section provides as follows: "Other safeguards 

adequate, in the judgment of an authorized representative of the 

Secretary, to minimize hazards with respect to transportation of 

men and materials shall be provided." (Emphasis added.) 

The safeguard at issue requires that breakers, similar 

equipment "and where miners are required to work or travel" shall 

be pro~ided with proper clearance. Respondent, in Section II of 

its Memorandum asserts that the safeguard should be read as 

requiring proper clearance for breakers and similar equipment 

when these items are located where miners work and travel. 

Should the safeguard by accorded this interpretation it would 

appear to regulate the clearance next to an item in a mine. As 

such, it would not regulate transportation, and would be beyond 

the grant of authority contained in section 314(b), supra. 

Respondent, is the Party moving for Summary Decision, and as 

such has the burden of establishing its right to a summary 

decision. I find Respondent has not met this burden. The 

safeguard is somewhat ambiguous, but, on its face, relates to 

areas where miners travel, and thus might be within the grant of 

authority, set forth in section 314(b), supra, to issue 

safeguards relating to transportation of men and materials. At 

this stage of the proceedings, I can not conclude as a matter of 

law, that Respondent's interpretation of the safeguard is correct. 

Petitioner shall be allowed to present evidence on this issue. 

Therefore, for all the above reasons, Respondent's Motion 

for Summary Decision is not allowed. 

ORDER 

It is ORDERED that Respondent's Motion for Sui~ary Decision 

is DENIED. 

Avram Weisberger 

Administrative La~ Jud~e 

< 703) 756-62.Lu 

1867 

< 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE. 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

EASTERN ASSOCIATED COAL 

CORPORATION, 

Respondent 

SEP 12 1989 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 89-192 

A. C. No. 46-01456-03825 

Docket No. WEVA 89-199 

A. C. No. 46-01456-03824 

Federal No. 2 Mine 

ORDER DENYING RESPONDENT'S MOTION FOR SUMMARY DECISION 

On January 26, 1989, a Federal Mine Safety and Health 

Insoector issued Resoondent two section 104(d)(2) orders in conjun~tion with two se~tion 107Ca) orders (issued under sections 

104 and 107 of the Federal Mine Safety and Health Act of 1977 

(The Act)). On August 18, 1989, Respondent filed a Motion for 

Summary Decision and Memorandum in Support there.:>£, and on 

September 5, 1989, Petitioner filed its Reply. 

Respondent's Motion is predicated upon its assertion tnat as 

a matter of law, only a 104(a) Citation may be issued in conjunction with a 107(a) imminent danger ordec. Respondent argues that 

the plain language of section 107(a), supra, allows for only the 

issuance of a citation under section 104(a), supra, and that the 

is.suance of a 104 ( d) ( 2) ceder is i1nproper. Respondent by 

implication, refers to the following language fcom section 

107(a), supra: "The issuance of an order under this silbsection 

shall not preclude the issuance of a citation under section 104 

or the proposing of a penalty under section 110." Respondent 

argues that, inasmuch as section 104 distinguishes between ordec 

and citation, had Congress intended orders to be included in 

section 107(a), supra, it would have so stated. 

The legislative histocy of the Act does not contain any 

statement or discussion celevant as to whether the language in 

section 107(a), supra! was intended to pceclude the is3uance of a 

section 104(d) order._/ Thus, I have no basi3 to conclude, as 

l; The relevant legislative history cited by Respondent at 

pages 4 - 5 of its Memorandum merely reiterates the statutory 

language. 

1868 
argued by Respondent, that by explicitly not precluding the issuance of a citation under section 104(a), supra, Congress intended 

thereby to preclude the issuance of a section 104(d) order. Such 

a construction is not supported by the legislative history of the 

Act, nor does a plain reading of the language of section 107(a), 

supra, unequivocally dictate such a construction. 

I do not find any support for Respondent's argument that it 

is "obvious" that the language of section 104, supra, is intended 

to be mutually exclusive of section 107(a), supra. There is no 

language in section 104(d)(2), supra, which makes reference to 

section 107(a), supra. Nor is there support for Respondent's 

position in any legislative history of the Act. I do not find 

merit in Respondent's argument that inasmuch as section 

104(d)(l), citations may be issued only where there is no 

imminent danger, it follows that similarly a section 104(d)(2) 

order may not be issued in conjunction with a section 107(a) 

order. Section 104(d)(l), supra, as pertinent, provides if an 

inspector f inas a violation ot a mandatory health or safety 

standards and " •.• if he also finds that, while the conditions 

created by such violation cto not cause imminent danqer, such 

violation is ot such nature as could significantly and 

subscantially contribute to the cause of etiect ot a coal or 

other mine safety or health hazard, and it he tinds such 

violation to be caused by an unwarrantable failure of such operator 

to comply with such mandatory health or safety standards, he shall 

include sucn finding in any citation given to the operator under 

this Act." <Empnasis added). I find this language insufficient to 

base a conclusion that Congress intended that a section 104(d)(2) 

order may not be issued in conjunction with a section 107(a) order. 

A reading of the plain language of section 104(d}(l) and (2) 

indicates that, as as set forth in Petitioner's M~~ocandum: 

[I]f an inspector finds a violation constituting an 

unwarrantable failure on the part of the operator 

within ninety days after the issuance of a Section 

104(d)(l) cit~tion, the inspector "shall" issue an 

withdrawal order under Section 104(d)(l). Thereafter, 

the inspector "shall" issue a Section 104(d)(2) order 

for each violation found similar to the violation found 

in the Section 104(d)(l} order if the new violation 

also constitutes an unwarrantable failure on the part 

of the operator. This "chain" continues until a 

complete inspection of the mine reveals no further 

unwarrantable violations. 

I find, accordingly, that, as argued by Petitioner, ir 

Respondent's interpretation of the Act is adopted, it will result 

in the frustration of the statutory scheme embodied in section 

104(d}(l) and (2), supra, as an inspector would be prevented from 

issuing orders required by section 104, suora. As correctly 

argued by Petitioner in its Memorandum, ''It the Section 104(d)(l) 

1869 
or (2) order(s) constitutes an imminent danger, or a portion of 

an imminent danger, then the inspector is forced to choose which 

portion ot the scatute he will not enforce. He can issue the 

Section 107(a) oraer or the order(s) under Section 104(d), but 

not both. An interpretation forcing such a decision, which could 

result in the unjustified release of an operator from the Section 

104(d) "chain" or the unjustified failure to issue an imminent 

danger order when such a danger exists, cannot be justified." 

Thus, for all these reasons, I conclude that, as a matter of 

law, it is not true that only a 104(a) citation may be issued in 

conjunction with a 107(a) order. Hence, I find it has not been 

established, that, as a matter of law, the section 104(d)(2) 

order herein was improperly issued, and should be amended to a 

section 104(a) citation. 

ORDER 

It is ORDERED that Respondent's Motion for Surrunary Decision 

is DENIED. 

Distribution: 

/J 

Avram £~."'" Weisberger r~~ Administrative Law Judge 

(703) 756-6210 

Glenn M. Loos, Esq., Office of the Solicitor, U. S. Department of 

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

(Certified Mail) 

Eugene P. Schmittgens, Jr., Esq., Michael A. Kafoury, Esq., 

Eastern Associated Coal Corporation, P. O. Box 373, St. Louis, MO 

63166 (Certified M~il) 

dcp 

1870 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

September 20, 1989 

JIM WALTER RESOURCES, INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFE'l'Y AND HEAL'fH 

ADMINISTRATION CMSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFE"I'Y AND HEALTH 

ADMilHS'rRA'rION (MSHA), 

Petitioner 

v. 

JIM WALTER RESOURCES, INC., 

Respondent 

CONTEST PROCEEDINGS 

Docket No. SE 89-16-R 

Citation No. 3012039; 10/25/88 

No. 3 ~line 

Mine I.D. * 01-00758 

CIVIL PENALrY PROCEEDINGS 

Docket No. SE 89-42 

A.C. No. 01-00758-03732 

No. 3 Mine 

DECISION 

Before: Judge Melick 

AND 

ORDER DENYING 

MOTION TO DISMISS 

By oral motion at hearings in these consolidated cases 

and by subsequent written motion the Secretary of Labor moved 

to dismiss the "Notice of Contest". The Secretary argues in 

her motion that m~ne operator Jim Walter Resources, Inc., 

(Jim Walter) cannot obtain review of the Secretary's decision 

denying a modification to a ventilation plan for the reason 

that the proposed modification is also the subject of another 

mandatory standard. 

The pleadings show that on September 29, 1988, Jim 

Walter submitted for the Secretary's review a supplement to 

its ventilation plan in which it stated as follows: "a 

ventilation change of 25,000 cfm or greatec of any section 

split will be considered a major air change and the change 

will be made according to 75.322." The Secret-3.ry through the 

Mine Safety and Health Administration (MSHA) did not approve 

the request and Jim ~alter thereafter informed MSHA that it 

1871 
no longer adopted its existing ventilation plan under 30 

C.F.R. § 75.316. MSHA thereafter issued a citation alleging 

a violation 0£ that standard. The violation was abated when 

Jim Walter readopted its prior approved plan without 

incorporating the requested change. 

Section 303Co> of the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. § 801 et seq., the "Act," requires, in 

relevant part, that a mine operator must adopt a ventilation 

plan which has been approved by the Secretary. These 

provisions are restated in the regulatory standard at 30 

C.F.R. § 75.316 under which the subject citation was issued. 

In this case it appears that Jim Walter is seeking through 

modification of its ventilation plan to obtain clarification 

and objectivity in the application of the regulatory standard 

at 30 C.F.R. § 75.322. The latter standard provides that 

"changes in ventilation which materially affect the main air 

current or any split thereof and which may affect the safety 

of persons in the coal mine shall be made only when the mine 

is idle." 

As Jim Walter noted in its Brief it is apparent that 

ehis regulatory standard was written with the understanding 

that ventilation changes which mat materially affect the main 

air current in one mine may not have the same effect in 

another mine. As Jim Walter turther observes, whether a 

change in air quantity of, tor example, 9,000 cfm, has a 

material effect will depend upon the particular mine's layout 

and conditions, as well as upon the ventilation plan it 

adopts for meeting the requirement of the AcL. 

Jim Walter alleges in this case that it performed 

studies of changes in ventilation in the subject No. 3 Mine 

and that the resulting data demonstrated that ventilation 

changes of up to 25,000 cfm had no material affect upon the 

main air current or any split thereof, because of the 

particular ventilation syst~n and manner of ventilating that 

mine. Jim Walter·maintains that the data obtained was 

submitted to MSHA by letter dated January 19, 1988, and that 

it requested a determination by MSHA that such a change (of 

up to 25,000 cfm) was not a major change at the subject mine. 

MSHA responded to the request by letter dated 

February 11, 1988, which stated in part as follows: 

The National Coal Mine Health and Safety Inspection 

Manual for underground coal mine states, in part, 

that any ventilation change in whicn any split of 

aic is increased or decreased by an amount equal to 

or in excess of 9,000 cfm is considered a major 

1872 
change. Historically, this 9,000 cfm limit has 

been established for about 17 years; therefore this 

request is denied. 

Subsequently Jim Walter submitted a revision to its 

approved ventilatio~ plan pursuant to 30 C.F.R. § 75.316 

stating that because of the particular ventilation system 

utilized at this particular mine, ventilation changes of up 

to 25,000 cfm would be made while the No. 3 Mine was still 

operating. MSHA refused to approve the change. Jim Walter, 

nevertheless briefly adopted this change thus leading to the 

issuance of the citation by MSHA and the readoption of the 

prior approved plan. 

In her Motion to Dismiss the Secretary argues that 

Jim Walter is impermissibly attempting to expand the scope of 

its ventilation plan in this case in that ventilation plans 

may not infringe upon subject matter which could have been 

readily dealt with in mandatory standards of universal 

application" citing Zeigler Coal Company v. Kleppe, 536 F.2d 

398 at 407 (D.C. Cir. 1976). 

In the instant case Jim Walter maintains that it has 

generated data which indicate that changes in ventilation of 

up to 25,000 cfm can be made at its No. 3 mine while the mine 

is operating since such changes do not materially affect the 

main air current. Whether or not the allegation may 

subsequently be proven in this case the issue is clearly mine 

specific in that it concerns the particular conditions at the 

Jim Walter No. 3 mine and is not a matter which can be dealt 

with by a single mandatory standard applicable to all mines. 

The Secretary's argument herein is accordingly without merit. 

The Secretary also appears to claim in this case that 

because of the existence of another regulatory standard, 30 

C.F.R. § 75.322, the subject matter of that standard cannot 

be the subject of any portion of Jim Walter's ventilation 

plan. This argume.nt is without legal support and is likewise 

rejected. Under the circumstances the Secret ry's Motion to 

Dismiss is denied. 

G~ry M.' lick: I 

Admintl trative aw Judge 

( 703) \ 56-6261 

I 

' 

1873 
1874 *U.S.COUERNMENT PRiNTINC orrICE:1989-241-155104760