NOVEMBER 1991 

COMMISSION ORDERS 

11-13-91 Contests of Respirable Dust Sample Alteration Master Docket 91-1 Pg. 1781 

Citations 

ADMINISTRATIVE LAW JUDGE DECISIONS 

11-04-91 

11-04-91 

11-05-91 

11-05-91 

11-07-91 

11-08-91 

11-08-91 

11-08-91 

11-15-91 

11-18-91 

11-18-91 

11-18-91 

11-19-91 

11-20-91 

11-20-91 

11-20-91 

11-27-91 

Southern Ohio Coal Company 

Sec. Labor for Joseph Culp v. Mid-Continent 

Resources, Inc. 

Kocher Coal Company 

Sec. Labor for Joseph A. Smith v. Helen 

Mining Company 

Consolidation Coal Company 

James N. Boyd v. Trojan Mining Company 

Keith Sturgill v. South East Coal Company 

Drummond Company 

Consolidation Coal Company 

Pittsburg & Midway Coal Mining Company 

Asarco, Incorporated 

Mendisco Mining 

Consolidation Coal Company 

Lambert Coal Company 

Wyoming Fuel Company 

Koch Carbon, Inc. - Koch Raven Division 

Consolidation Coal Company 

ADMINISTRATIVE LAW JUDGE ORDERS 

11-18-91 El Dorado Chemical Company 

WEVA 91-337-R Pg. 1783 

WEST 91-160-D Pg. 1803 

PENN 91-160 

PENN 92-15-D 

WEVA 91-178 

KENT 91-239-D 

KENT 91-973-D 

SE 91-10-R 

WEVA 91-145-R 

CENT 91-12 

WEST 91-113-M 

WEST 91-230-M 

WEVA 91-109 

VA 91-565 

WEST 91-365-R 

VA 91-564 

WEVA 91-292 

Pg. 1806 

Pg. 1808 

Pg. 1811 

Pg. 1821 

Pg. 1822 

Pg. 1823 

Pg. 1826 

Pg. 1828 

Pg. 1831 

Pg. 1833 

Pg. 1835 

Pg. 1843 

Pg. 1845 

Pg. 1847 

Pg. 1849 

WEVA 91-1988 Pg. 1850 

NOVEMBER 1991 

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

Secretary of Labor, MSHA v. Cyprus Tonopah Mining Corporation, Docket No. 

WEST 90-202-M, etc. (Judge Lasher, September 23, 1991). 

Roy Farmer and Others v. Island Creek Coal Company, Docket No. VA 91-31-C. 

(Judge Melick, Interlocutory Review of September 27, 1991 Order). 

Contests of Respirable Dust Sample Alteration Citations, Docket No. 91-1. 

(Interlocutory review of Judge Broderick's October 7, 1991 Order). 

Gatliff Coal Company, Inc., v. Secretary of Labor, MSHA, Docket No. 

KENT 89-242-R. (Judge Melick, October 10, 1991). 

Air Products and Chemicals, Inc •. v. Secretary of Labor, MSHA, Docket No. 

PENN 91-1488-R. (Judge Melick, ,Qctober. 16, 1991). 

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

Secretary of Labor, MSHA v. JVAL Incorporated, Docket No. WEST 90-201-M, 

etc. (Judge Morris, October 11, 1991). 

Willie Williams, Jr. v. Jim Walter Resources, Inc., Docket No. SE 91-95-D. 

(Judge Koutras, October 16, 1991) 

COMMISSION ORDERS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

November 13, 1991 

IN RE: CONTESTS OF RESPIRABLE DUST 

SAMPLE ALTERATION CITATIONS MASTER DOCKET NO. 91-1 

DIRECTION FOR REVIEW 

ORDER GRANTING STAY 

On October 21, 1991 the Secretary of Labor filed a Petition for 

Interlocutory Review of the October 7, 1991 Order of the administrative law 

judge, insofar as it orders the Secretaryto produce six specific documents 

sought by respondents in.discovery. 

On October 25, 1991 contestants represented by Jackson & Kelly filed a 

Petition for Interlocutory Review of the September 13, 27 and October 7, 1991 

Orders of the administrative law judge, insofar as the Orders upheld the 

Secretary's claim of privilege wiLh respect to forty-eight documents sought in 

discovery. · 

Both parties assert that their respective petitions raise issues that 

satisfy the requirements of Commission Rule 74, 29 C.F.R. § 2700.74. Upon 

inspection of the petitions, we conclude that the parties have raised 

controlling questions of law, and that our review of the relevant orders may 

materially advance the final disposition of the proceeding. 

Accordingly, the petitions for interlocutory review are hereby granted. 

The parties are directed to comply with the briefing requirements set forth in 

Rule 74, 29 C.F.R. § 2700.74 with the exception that the filing time available 

to each petitioner shall be ten days after service of this order. In all 

other respects the requirements of Rule 74 obtain. 

1781 
For good cause shown, the judge's Order to produce the six documents for 

which the Secretary has sought protection is hereby stayed pending further 

notice. 

~~ ~ Richard V. Backley, Commissioner 

Arlene Holen? Co~~oner 

···~/~'--' L. Clair Nelson, Commissioner 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 4 1991 

SOUTHERN OHIO COAL CO., 

Contestant 

CONTEST PROCEEDING 

v. Docket No. WEVA 91-337-R 

Order No. 3116688; 3/18/91 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

Martinka No. 1 Mine 

Appearances: 

Before: 

DECISION 

David M. Cohen, Esq., American Electric Power 

Service Corporation, Lancaster, Ohio, for the 

Contestant; 

Glenn M. Loos, Esq., Office of the Solicitor, U.S. 

Department of Labor, Arlington, Virginia, for the 

Respondent. 

Judge Koutras 

Statement of the case 

This proceeding concerns a Notice of Contest filed by the 

contestant pursuant to section 105 of the Federal Mine Safety and 

Health Act of 1977, challenging the legality and propriety of a 

section 103(k) order issued at the mineo A hearing was held in 

Morgantown, West Virginia, and the parties appeared and participated fully therein. They waived the filing of posthearing 

briefs, but they presented oral argument at the c+ose of the 

hearing, and I have considered their arguments in the course of 

my adjudication of this mattero 

Issues 

The principal issue in this case is whether or not the 

contested order was justified and properly issued, or whether the 

inspectors acted unreasonably and arbitrarily in issuing the 

order. 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, 30 u.s.c. § 301, et seq. 

1783 
2. Section 103(k) of the Act, 30 U.S. § 813(k). 

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

Stipulations 

The parties stipulated to the following (Tr. 7). 

1. The contestant is the owner of the Martinka 

No. 1 Mine, and it is subject to the Act. 

2. MSHA Inspectors Tom May and David Workman are 

authorized representatives of the Secretary 

of Labor. 

3. The contested section l03(k) order was issued 

on March 18, 1991, and a copy was served on 

the contestant. 

Discussion 

The contested section 103(k) Order No. 3116688, issued at 

11:50 p.m., on March 18, 1991, states as follows: 

A roof fall has occurred in front of the Nos. 1-2-3-4 

and 5 shields located at the head gate of the B-12 

longwall section. The roof fell above the bolts and 

impedes passage from the stageloader area to the face. 

This order is issued for the safety of the miners. The 

following persons are allowed to enter the area; state 

mine inspectors, U.M.W.A. reps, and company reps. 

The "area or equipment" affected by the order is shown on 

the face of the order as the "B-12 longwall section", and the 

order reflects that it was terminated at 3:00 a.m., March 19, 

199le after the completion of an investigation. 

MSHA's Testimony and Evidence 

MSHA Inspector David E. Workman testified that he conducted 

a regular AAA inspection of the mine on Mondayu March 18u 1991, 

and that he arrived at 7~30 a.m., and left at 5:30 p.m. He 

confirmed that he received no reports of any roof falls on that 

day except that at approximately 4:00 p.m., while in the safety 

department office with Inspector May, and a company and union 

representative, company safety representative Dan Coneway 

informed him that a roof fall had been reported to him but that 

he did not know whether it was a "reportable fall". Mr. Coneway 

told him that he was not aware that anyone was injured and that 

he was going underground to investigate the matter. Mr. Workman 

informed Mr. Coneway that if he determined that the fall occurred 

above the anchorage zone and was impeding passage to call out and 

1784 
let him know and that he would go in and investigate the matter 

if it was a reportable fall. (Tr. 22). 

Mr. Workman stated that state inspector Albert Lacara was 

also present when Mr. Coneway informed him of the fall, and 

Mr. Lacara informed him that he would go in and look the area 

over. Mr. Workman stayed at the mine until 5:30 p.m., and no one 

provided him with further information about the fall. He left 

the mine to return to his off ice and no one from management 

called him there or at home to report any fall. However, at 

approximately nine or ten p.m. that evening he received an 

anonymous call at home informing him of "a massive roof fall" on 

the B-12 longwall headgate area. He called his supervisor and 

informed him of the call, and then proceeded to the mine. He 

also contacted Mr. May and invited him to the mine to help him 

investigate the fall (Tr. 23-25). 

Mr. Workman arrived at the mine at approximately 11:30 p.m. 

on Monday, March 18, 1991, and spoke with shift foreman Jim 

Keener. Mr. Keener confirmed that a fall had occurred on the 

longwall headgate but that he ... had not seen it, and that it was 

reportably 20 to 30 feet high. Mr. Keener also confirmed that 

the longwall was not in operation and that debris was being 

removed so that the face could be advanced to pull the shields in 

under the fall area. Mr. Workman then proceeded to interview 

three miners who had worked on the previous 12:00 a.m. to 

8:00 a.m. shift on Monday morning. 

Mr. Workman stated that stage loader operator Duke Willard 

told him that the roof was working throughout most of his shift 

in front of the No. 1 through 3 shields and that it fell toward 

the stage loader sometime between 7:30 and 8:00 a.m. on Monday 

morning, and that 2 roof bolts and fallen roof materials were 

laying in the stage loader" General laborer Roger Hutchinson 

informed him that the fall occurred in front of the shields on 

the headgate side, and that he saw roof bolts still hanging. He 

placed the fall at approximately 7:45 a.m. Mechanic Robbie 

Robinson informed him that the fall occurred in front of the 

No. 1 through 5 shields outby the stage loader at approximately 8~00 a.m, and that roof bolts and roof material fell into the 

stage loader conveyor chains. Foreman Ed Lane instructed him to 

call out and report the fall, and he did. He also reported it to 

the longwall superintendent (Tr. 26-28). 

Mr. Workman was of the view that the roof fall as described 

to him by the three miners should have been reported to him or to 

Mr. May during the day of their inspection on Monday, March 18, 

and that someone on the shift should have known whether or not 

the roof fell above the anchorage and impeded passage and 

reported it as a reportable unplanned fall. Under the 

circumstances, he notified Mr. Keener at 11:50 p.m. that he was 

under a section 103(k) order and that he would be making an 

1785 
investigation. Mr. Workman explained that he issued the order in 

order to withdraw people from the area until an investigation was 

completed to evaluate the conditions and determine the corrective 

action needed (Tr. 29). In this instance, he also found an order 

necessary to insure the safety of miners because the information 

he received from the three miners that the roof bolts came down 

would indicate that the fall was above the roof bolts and that 

the adverse roof conditions could cause injury if anyone were hit 

by the falling roof. The roof bolts laying in the stage loader 

would indicate a fall above the roof bolt anchorage zone and a 

potential hazard to miners. He confirmed that he was upset 

because the roof fall had not been reported (Tr. 30-31). 

Mr. Workman confirmed that after issuing the order he did 

not immediately go underground to the area where the fall had 

occurred. He spent time reviewing records and speaking to 

others, and management personnel were on their way to the mine. 

After Mr~ May, the company safety manager, and the mine 

superintendent arrived, they all went underground and arrived at 

the section at 2:30 a.m., Tuesday morning, March 19. All work 

had ceased and people had been.withdrawn because of the order. 

He looked over the area and observed that a fall had occurred 

rib-to-rib and approximately 20 feet to the top of the roof 

cavity. He described what he saw, confirmed a sketch of the 

scene, and indicated that the fall should have been reported as a 

reportable roof fall (Tr. 36). He discussed with management the 

corrective action required, including installing bars across the 

brow at the edge of the fall to prevent it from falling out, and 

the fall was still present (Tr. 38). The fall had existed for 

approximately 14 hours without being corrected, and the order was 

terminated at 3:00 a.m., after the area was supported and cleared 

out (Tr. 39). 

Mr. Workman confirmed that management was doing a good job 

of recovering the fallu and it was directing the work force 

properlyo Everyone was aware of the conditions and proper 

planning procedures were in place. He terminated the order after 

concluding his investigation and determining that. the health and 

safety of the miners was no longer in danger (Tr. 41). 

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

Mr. Conoway informed him about the fall he stated that he was 

unsure as to whether it was reportable or not, but that he was 

letting him know that a fall had occurred. Mr. Workman further 

confirmed that inspector May and the state inspector were also 

present at that time, but that he and Mr. May did not go to the 

section to look into the matter because "I didn't know that it 

was a reportable fall under Part 50, as to whether it would 

require an investigation under 103(k) of the Act" (Tr. 42}. The 

state inspector informed him that he would go to the area, but he 

did not call the inspector to determine what he may have found, 

and he did not know whether any state violations were issued 

1786 
(Tr. 41-45). Mr. Workman confirmed that when there is a fall 

above the anchorage area it must be reported to MSHA as a 

reportable roof fall and MSHA will then inform the operator that 

it will investigate the matter (Tr. 46). He indicated that not 

all reportable falls require the closing of a portion of the mine 

to insure the safety of miners, nor do they require the immediate 

attention of MSHA (Tr. 48). 

Mr. Workman stated that he based his order on the 

information he received from foreman Keener that a roof fall had 

occurred, and the interviews with the three miners on the 

12:00 a.m. to 8:00 a.m. Monday morning shift. He acknowledged 

that Mr. Keener told him "he didn't know that much about what was 

going on up there", and that he would not know what happened 

between 8:00 a.m. and the time he issued the order at 11:50 p.m. 

Mr. Workman confirmed that management was working during the day 

to remove the fallen roof material and was following proper 

cleanup procedures (Tr. 51). He also confirmed that the 

information from the anonymous caller that there had been "a 

massive roof fall" was exaggerated. 

Mr. Workman stated that it was necessary to issue the order 

in order to determine whether the fallen roof area was properly 

supported to prevent the fall from continuing to fall down the 

entry, whether the edge of the fall was properly supported, the 

type of supports which were present in the area, and the 

maintenance of the equipment (Tr. 57). He also considered the 

fact that the fall was still present after 14 hours after it 

happened and that it was reported to be 20 to 30 feet high, and 11 that gives me a lot of reason to go in and look at it for the 

health and safety of the people 11 {Tr. 59). 

Mr. Workman confirmed that other than speaking to shift 

foreman Keener, he did not inform the safety department that he 

was going to conduct interviews with the three miners in 

questiono However, Mr. Keener and another foreman were present 

during the interviews. Mr Workman also confirmed that he told 

the company safety representative that it was ba~ically his 

investigation and that he was not to ask any questions while he 

was interviewing the miners (Tr. 63-64)0 Mr. Workman conceded 

that he could have gone underground immediately after issuing the 

order at 11:50 p.m., and that a union and company safety 

representative were present at that time. He explained that he 

did not do so because "I didn't feel there was an imminent danger 

situationnv but that based on the information he received during 

the three interviews "I felt that a policy order, such as a 

103(k)u is issued to make an investigation, which is what I done" 

(Tr. 67). He further explained as follows at (Tr. 68): 

Q. But you didn't look at the conditions and then issue 

the order. You issued the order, then waited a few 

1787 
hours and then looked at the conditions. Is that 

correct? 

A. Yes, it is. 

Q. It appears to me that the reason why a order was issued 

was largely due to you being upset about not being told 

about the roof fall. Is that a fair statement? 

A. That is a very fair statement. Yes, sir, it is. 

Q. So then if the roof fall would have been reported, you 

may not have issued the (k) order? 

A. I would have investigated and may not have issued a (k) 

order. That is exactly right. 

Mr. Workman stated that after he and Mr. May went to the 

fall area, he found that the crosscuts had been supported 

properly and that cribs were installed in the entry. However, 

the brow at the edge of the fall needed to be supported, and 

after discussing it with management, it was supported and he was 

then able to terminate the order within a half an hour (Tr. 74). 

He agreed that the best course of action to take when there is a 

roof fall at the headgate longwall area is to mine through the 

area as quickly as possible. He conceded that his order stopped 

all mining, but since 14 hours had already been wasted, "I didn't 

think a couple more hours was going to hurt that much" (Tr. 76). 

Mr. Workman confirmed that roof falls above the anchorage 

zone have occurred in the past at the mine, and they have been 

reported by management. He did not believe that the mine has a 

history of trying to hide them from MSHA (Tr. 77). He further 

justified his order with the following explanation at (Tr. 90-

91) ~ 

After I gained the knowledge and the aspects of the 

particular occurrence of that fall on the B~12 

longwall 1 I made the determination at that time as a 

Federal Coal Mine Inspector that I needed to issue a 

103( order because of the length of time that the 

condition existed; because of the lack of 

communication 1 of properly reporting; not knowing 

whether any injuries had occurred or were reported to 

me to have occurred1 or a potential of other conditions 

existing that could have caused injuries to 

individuals. 

Mr. Workman confirmed that the fact that 14 hours had passed 

did not indicate that management was not trying to do anything 

about the roof conditions, and he explained what was being done 

(Tr. 98). 

1788 
MSHA Inspector Thomas W. May confirmed that he inspected the 

mine on March 18, 1991, with Mr. Workman and that they were there 

from 7:30 a.m. until 5:30 p.m. He stated that at approximately 

4:15 p.m., he received a report from Mr. Conoway who informed him 

and Mr. Workman that there was a roof fall at the longwall 

headgate but that he did not know whether it was reportable or 

not and that he was going to investigate. Mr. Workman informed 

Mr. Conaway to notify him if the roof fall was reportable, and if 

it was, he and Mr. May would go back underground. Mr. May stated 

that he and Mr. Workman left the mine at 5:30 p.m., and no one 

called them further about the fall (Tr. 107-111). 

Mr. May stated that Mr. Workman called him late on the 

evening of March 18, and informed him of the fall. Mr. Workman 

advised him that someone had called him and reported that the 

fall was above the anchorage level. Mr. May then went to the 

mine and arrived there shortly after l:OO a.m., Tuesday, 

March 19. Mr. Workman had already issued the section 103(k) by 

the time he arrived at the mine (Tr. 112). Workman told him he 

issued the order "for the health and safety of the miners" and 

that he had been informed that.t~e headgate had fallen in above 

the anchorage level and that there was a problem with the 

passageway to the longwall face. Mr. May confirmed that he 

signed the order and agreed with it (Tr. 113). 

Mr. May stated that upon investigation of the fall area, he 

found that the roof had fallen above the roof bolt anchorage in 

the headgate entry, and that cribs and posts were set in response 

to the fall. He stated that the operator was trying to mine out 

from under the fall, and discussions and recommendations took 

place with management in order to find a way to get the shields 

under the supports in order to mine out of the area (Tr. 113-

114). Mr. May confirmed that he spoke with the headgate operator 

(Duke Willard) who informed him that the fall occurred at 

approximately 7~00 a.m. on his previous midnight shift and that 

bolts had fallen out and were in the pan (Tr. 115). 

Mr. May believed that the order was justified to protect the 

health and safety of miners because of the roof conditions and 

impeded headgate passageway, and the fact that he and Mr. Workman 

were not modified of the fall in a timely manner so they could 

investigate it. He believed that miners faced a danger of 

additional fall of roof while going to and from the face. He 

believed that Mr. Workman had acted properly in issuing the order 

to insure that the recovery procedures were adequate to insure 

that no one was injured (Tr. 117). Mr. May stated that the 

purpose of the investigation was to find out what was going on 

underground in the section (Tr. 118). He confirmed that the 

order was in effect from approximately midnight, March 18, to 

3:00 a.m., March 19, and he did not believe that this was a long 

time for an accident investigation (Tr. 119). 

1789 
on cross-examination, Mr. May confirmed that he did not 

believe it was necessary to go back into the mine after 

Mr. Coneway initially reported the fall because a state inspector 

was there and he indicated that he would look at the fall. 

However, Mr. May did not follow up and speak with the inspector 

because he "felt no need" to do so. Mr. May also considered the 

fact that two other MSHA inspectors were in the mine and that "If 

they had a reportable fall and there was a hazard, they would 

surely have reported it to someone during the day" (Tr. 122). 

Mr. May further confirmed that if the fall were reportable under 

Part 50 of MSHA's regulations, he would have gone back into the 

mine. However, absent other circumstances, if the fall is not 

reportable, there would be no need to go back in (Tr. 122). 

Mr. May stated that he first learned that Mr. Workman had 

issued the order when he arrived at the mine, and that they did 

not previously discuss the order. Mr. May confirmed that the 

order was initially verbally issued and it was issued in writing 

"after everything was taken care of" •. Mr. May explained why the 

order was issued, and he indicated that the fall area had not 

been moved through and was not,·supported to facilitate passage. 

The area must be properly supported before it is mined through 

(Tr. 13 0-132) • 

Mr. May confirmed that he was involved in the examination 

and investigation of the fall area, including some discussions 

with miners who were working on the shift when the fall occurred 

(Tr. 137-138). MSHA's counsel pointed out that Mr. Workman 

issued the section 103(k) order verbally at 11:50 p.m., as noted 

on the face of the written order. Counsel confirmed that Mr. May 

did not participate in the miner interviews conducted by 

Mr. Workman, and that Mr. Workman made his own decision to issue 

the order based on his interviews with the miners (Tr. 137-139). 

Mr. May conceded that he did nothing about the fall from the 

time it was initially reported at 4:00 p.m, March 18, by 

Mro Conaway, and the time he went to the fall scene on the 

morning of March 19, because "it had not been reported as a 

reportable roof fall" (Tr. 139). However, he indicated that one 

of the purposes of a section 103(k) order is to "preserve the 

site 11 • He denied that doing nothing was contrary to the safety 

interests of miners. He explained that work continued for 16 

hours before the order was issued and the area still had not been 

mined through. Under the circumstances, he believed "there is 

something wrong with the procedure that they're using" (Tr. 141). 

Mr. May explained his reasons for not going to the fall area 

when it was initially reported at 4:00 p.m., March 18, by 

Mr. Coneway, and he relied on the fact that there was no report 

of any safety problem and management had not reported that the 

roof fall was in fact a reportable fall pursuant to MSHA's Part 50 

1790 
regulations (Tr. 143). He confirmed that he does not always go 

to an area first to check it out before issuing a section 103(k) 

order. He did not do so in this case because "we wanted to 

investigate the area before further work was done" (Tr. 144). 

Mr. May confirmed that within a half hour or more after he 

and Mr. Workman reached the site of the fall, "a good bit of 

work" was done so that the area could be immediately mined 

through. He also confirmed that upon reaching the scene, the 

roof had not as yet been adequately supported enough to mine 

through (Tr. 146). 

Roger D. Vandergrift, general laborer, testified that he 

worked the midnight shift which ended at s:oo a.m., on March 18, 

1991, but he did not hear any reports of any roof falls until he 

returned to work on the midnight shift on March 19. He arrived 

at work at 10:30 p.m. that evening and served as the miners• 

walkaround representative accompanying Inspectors Workman and 

May. He confirmed that Mr. Workman interviewed three miners who 

were working at the time of the roof fall trying to find out what 

had occurred. Referring to ,.hi~ notes which he made during the 

interviews (exhibit R-5), Mr. Vandergrift indicated that one of 

the miners told Mr. Workman that the top was "dripping and 

working a little bit most of the shift," and that after the roof 

fell roof bolts were observed in the pan line (Tr. 149-152). 

Mr. Vandergrift stated that a second miner told Mr. Workman 

that he wasn't sure how high the fall was and did not go under it 

to look, and that the third miner, mechanic Robbie Robinson, 

called out and reported the fall to Joe Verges, the communication 

man. Foreman Ed Lane had instructed Mr. Robinson to report the 

fall (Tr. 153). Mr. Workman also spoke with management personnel 

about the fall, but superintendent Wes Hoag was the only 

individual to say anything about the fall. Mr. Workman then 

informed shift foreman Jim Keener that he was issuing a section 

103(k) order and that there was not to be any work done until he 

arrived" Mr. Workman stated that he was issuing the order "for 

the safety of the miners" (Tr. 154-155). 

Mro Vandergrift believed that an investigation was justified 

after Mro Workman interviewed the miners because the fall 

occurred above the anchorage point and "it had to be checked to 

find out what happen" (Tr. 155). A fall above the anchorage is a 

reportable fall pursuant to the roof control plan, and "You have 

no support to hold the top" (Tr. 155). 

Mro Vandergrift confirmed that he travelled to the fall site 

with the inspectors after Mr. Workman issued his verbal order and 

he described what he observed. He stated that the area had not 

been mined through and that the only work which had been done was 

to run the pan line and clean out the rock. Mr. Workman and 

company personnel then discussed what was needed to correct the 

1791 
fall and to help work their way out of the fall area, including 

work to support the brow with crossbars and boards (Tr. 157). 

On cross-examination, Mr. Vandergrift confirmed that 

Mr. Workman did not tell him that the roof fall was an urgent 

matter, but that he did issue the order for the safety of the 

miners who were going to be in the fall area. Mr. Vandergrift 

agreed that based on the miner interviews conducted by 

Mr. Workman, the order was justified (Tr. 160). He confirmed 

that Mr. Hoag had stated that "not much work had been done since 

the midnight shift on March 18 11 (Tr. 164). Mr. Vandergrift 

stated that the additional brow supports were significant in 

allowing mining to continue and to prevent the fall from 

continuing outby (Tr. 165). 

Respondent's Testimony and Evidence 

Daniel Conaway, safety and health manager, and former 

afternoon shift foreman, stated that he first learned of the roof 

fall at 4:15 p.m., on March 18, 1991, but that superintendent 

Wesley Hoag informed him at 10:00 a.m. that morning that "we had 

some bad conditions on the B-12.headgate". Mr. Hoag also 

informed him that the fall was not reportable but that he would 

send some people in to evaluate the situation and report back to 

him. During the shift change, general superintendent John Metz 

informed Mr. Coneway that "conditions had deteriorated on the 

B-12 face and that I should report· to MSHA that we have had a 

fall" (Tr. 169). Prior to this time, Mr. Coneway knew that "we 

had some bad top conditions", but he did no know the extent of 

the fall. As soon as he received this information, Mr. Coneway 

informed MSHA Inspectors Workman, May, and state inspector Albert 

Lacara that he had received conflicting information about the 

fall, and that he was first informed in the morning about "some 

had top"u but was then notified "that we do have a reportable 

fa11uu. Mro Coneway stated that he had no knowledge of any of the 

details of the fallu but informed the inspectors that "for the 

sake of argumentu Ium reporting to you that we have a fa11n 

(Tr o 172) • 

Mr. Coneway stated that after informing the inspectors of 

the fallu Mr. Workman asked him to let him know when he found out 

more of the details, and state inspector Lacara stated that he 

would inspect the area and asked Mr. Workman if he wished to be 

called. Mr. Workman stated that he did not. Mr. Coneway then 

informed Mr. Workman that "we're going in and look at it", and 

Mr. Conaway stated that his intent was to learn the details of 

the fall and to make measurements so that he could submit the 

information on an MSHA Form 70001. Mr. Conaway confirmed that 

there was a question in his mind as to whether or not the fall 

was reportable "because I had not seen it or no one in the safety 

department had seen it", but that "for the sake of argument, I 

1792 
wanted to report it" (Tr. 173). Mr. Conoway explained the work 

that is generally done to take care of a roof fall (Tr. 174-175). 

Mr. Conoway stated that he returned to the mine at 

approximately 12:30 a.m., March 19, and Mr. Workman informed him 

that he had conducted an investigation of the fall with some of 

the people who were there and determined that it had occurred at 

7:30 or 8:00 a.m., the previous morning and that he had issued a 

section 103(k) order (Tr. 176). Mr. Coneway stated that he was 

concerned that the order was issued because "you're just setting 

there basically letting the conditions worsen and not taking any 

corrective measures" (Tr. 178). When he and the inspectors 

reached the longwall face, Mr. Coneway and the group observed the 

top from under supported roof, and Mr. Conaway believed that 

sufficient cribs had been set at the headgate entry where the 

fall had occurred. He also indicated that the fall was somewhere 

in the neighborhood of twenty feet above the mine floor, which 

made it "seven, maybe eight feet from the roof". He further 

confirmed that the fall was "from rib to rib", and that some 

shields and the pontoons were covered with "quite a bit of loose 

rock and material". No one WPS. voicing any safety concerns about 

the cleanup work, and Mr Workman made some recommendations to 

support the brow and reposition some cribs, and this was done. 

Mr. Conaway believed that the place was adequately supported 

without the additional work which was done, but he could not 

state that the additional work did not enhance safety (Tr. 181). 

Mr. Conoway stated that the operator had never been cited 

for not reporting a longwall roof fall, and that if the roof is 

broken above the bolts, it is reported. He confirmed that 

Mr. Workman's order was the first time the mine had received a 

section 103{k) order for a roof fall, and that on prior occasions 

inspectors have asked to review the operator's report of a fall, 

and that depending on the location of the fallv they would not go 

to the fall area (Tr. 182). 

On cross-examination, Mr. Coneway confirmed that he first 

learned of "bad top" at 9:30 or 10:00 a.m, March ··18, 1991, and 

that he spoke with Mr. Metz at 4:00 p.m. He stated that he did 

not know why it took six hours to determine the extent of the 

fall v and he explained that 11 part of the problem was to make sure 

the conditions were such that people could work, that we had a 

plan of attack developed" (Tr. 184). He confirmed that 

telephones are located in the underground section, and when asked 

how difficult it would be for someone underground to determine 

the extent of the fall, he stated "if they were there, it would 

not be that difficult" (Tr. 185). He confirmed that he did not 

go underground at 4:00 p.m., on March 18, but that he did go to 

the fall area with the inspectors after 11:00 p.m. {Tr. 186). 

Mr. Coneway stated that he informed the inspectors at 

4:00 p.m., March 18, that "I do not have any facts, but for the 

1793 
sake of argument, I'm telling you it's a reportable roof fall" 

(Tr. 187). He confirmed that he did not ask the inspectors to go 

to the section, that he did not definitely tell them "there is a 

reportable falln, and that he did not formally report it under 

section 50.10 of MSHA's regulations (Tr. 187). However, by 

reporting it and stating "for the sake of argument", he believed 

that he was in technical compliance with the law (Tr. 188). 

Mr. Coneway stated that he did not exactly know what 

measures were being taken during the period after the fall, and 

that he could "just speculate". He explained that the cleaning 

up of the fallen rocks and debris was a slow process, c.~1d he 

confirmed that he never informed Inspectors Workman or May at 

4: 00 p.m., about any corrective work that was being donn. 

{Tr. 190). Mr Conaway stated that "sometimes the roof begins to 

drip or work or rip down one side; conditions deteriorate rather 

slowly. However, there are other times when it drops to the 

roots" (Tr. 191). 

Ernest L. Weaver, longwall supervisor, confirmed that he was 

the supervisor on the B-12 longwall.section on March 18, 1991, on 

the 8:00 a.m. to 4:00 p.m. day shift. He stated that when he 

arrived on the section that morning the midnight shift foreman 

advised him that "the top on the headgate was getting worse", and 

that when they went to look, they observed that the top was 

deteriorating and that "parts of the roof bolts were showing 

where rock had fell out" (Tr. 200). Mr. Weaver then informed his 

crew to set additional timbers and cribs if needed to insure 

their safety to and from the face. Mr. Weaver identified certain 

"call-out sheets" (exhibits c-1 though C-3), reflecting some of 

the work done with respect to the roof fall. One of the reports 

was his call-out which reflected that "we tried to advance the 

headgate as many times as we could possible, but due to the rock 

and the bad top conditionsp we weren't able to advance like we 

wantedto10 (Tr. 204). 

Mro Weaver confirmed that after the call-outs, production 

stopped, and the section was idled. He explained the ensuing 

work to address the fall conditions (Tr. 204-205). He confirmed 

that during the attempts to advance and drop the roof support 

shieldsf Dlthe top deteriorated to the point where it fell in nn 

and as attempts were made to move the shields forward, more roof 

materials were falling between the shields. When asked if he saw 

any hazards associated with not doing anything, he responded "the 

rule of thumb is you do not let a longwall set in bad top" 

(Tr. 206). 

On cross-examination, Mr. Weaver confirmed that during the 

time measures were taken to clean out the fall area, the brow of 

the fall was not supported with bars or boards. He also 

confirmed that he did not inform any MSHA personnel of the 

measures being taken to address the fall. He stated that he 

1794 
called outside at noon during his shift on March 18, and told Pat 

Zuchowski that "it was a reportable fall" (Tr. 207). Mr. Weaver 

confirmed that he was not present with the inspectors when the 

brow was supported, and that the shields in the fall area were 

never up under supported roof during his shift (Tr. 208). 

Mr. Weaver further explained as follows at (Tr. 209): 

Now, Ed Lane encountered a bad top during this shift, 

and by us going in there and trying to advance it, we 

more or less, in a sense, made it worse. But you had 

to make it worse in order to make it better, if you can 

understand what I mean. 

simply by loading the shields up and down, that makes 

it worse, but you have to do that to try to advance 

them forward. And if you have a lot of loose material 

up above you, naturally, when you keep doing this, it's 

going to fall. And that is what happened. It finally 

did all fall in. 

Randolph K. Ice, accident prevention officer, stated that he 

worked the midnight shift of March 18, 1991, which ended at 

8:00 a.m. that morning, and that he had learned nothing about any 

roof fall on that shift by the time he left the mine at 9:00 or 

9:30 a.m. He next returned to the mine at 10:45 p.m. that same 

evening in preparation for going to work on the midnight shift of 

March 19. Upon arrival at his office he learned that Inspector 

Workman had issued a section 103(k) order. He then proceeded to 

the longwall office and found Mr. Workman interviewing a miner 

who worked on the midnight shift, and Mr. Workman confirmed to 

him that he had issued the order and was conducting an 

investigation. Mr. Workman informed him that he could stay in 

the room during the interviews, but that it was his investigationv and that miners would have to stay outside as long as he 

needed them (Tro 214-215)0 Mro Ice did not believe the order was 

justified, and it was his opinion that Mro Workman issued 

because "he was mad, very upset". Mr. Ice further stated that he 

assumed that someone had called Mr. Workman and f.iled a 

complaint. 

Contestant's Arguments 

The contestant argues that it is undisputed that the roof 

fall in question was reported to the MSHA inspectors at the end 

of the day shift at approximately 4:00 p.m., on March 18, 1991" 

However, the inspectors chose not to view the location of the 

fall, and issued the section 103(k) order at 11:50 p.m., that 

same evening without the benefit of first viewing or inspecting 

the fall location. Contestant maintains that the order forced it 

to discontinue work to alleviate the dangers associated with the 

roof fall and that it was not necessary to insure the safety of 

the miners, and in fact did not promote the safety of the miners. 

1795 
Under these circumstances, contestant concludes that the issuance 

of the order was unreasonable and an abuse of the inpsectors' 

discretion, and that it should be vacated. 

The contestant concedes that it would be appropriate to 

close down a section of the mine by issuing a section 103(k} 

order for an accident investigation when it is necessary to 

insure the safety of the miners. However, the contestant takes 

the position that the inspectors should have understood that it 

was not necessary to close the section down to insure the safety 

of miners, and that based upon what inspector Workman should have 

reasonably known at the time he issued the order, the order 

should not have been issued. The contestant points out that at 

the time the state inspector indicated that he would go to the 

fall location to determine the ·existing conditions, the MSHA 

inspectors declined to go with him. The state inspector issued 

no violations, and management was attempting to support the roof 

as necessary and to mine through the area, which everyone 

concedes is the proper procedure in the circumstances. This was 

a time consuming process, and the contestant's efforts continued 

throughout the day on March 18,. ... 

The contestant asserts that upon his return to the mine on 

the evening of March 18, Inspector Workman did not speak with the 

state inspector, and spoke to one who was really knowledgeable 

about the fall conditions, and there is no evidence that the 

three miners who he interviewed considered the conditions in the 

fall area particularly dangerous. Contestant further points out 

that Inspector Workman testified that he saw no urgency with 

regard to the roof and indicated that it had been that way for 14 

hours and that "a few more hours wouldn't hurt". Yet, he still 

issued the order without first going to the fall location to 

observe the conditions, and that by doing so, the order resulted 

an increaser rather than a decrease, of any danger resulting 

::rem the fall o 

The contestant further points out that even after he issued 

the order, Mr. Workman waited several hours before going to the 

fall locationo Contestant suggests that the obvious inference 

from this is that the inspectors knew there were no dangerous 

conditions at the fall location, and that any irritation by the 

inspectors because they were not notified earlier about the fall 

does not justify the issuance of the order. 

MSHAus Arguments 

MSHA asserts that the inspectors were first informed of bad 

top or a possible reportable roof fall at the end of the day 

shift on March 18, at approximately 4:15 p.m. The inspectors 

informed management officials that they would be at the mine for 

another hour, and invited them to inform them if further details 

were known or if the fall was a reportable fall pursuant to 

1796 
MSHA's reporting requirements. Since no further reports were 

forthcoming, the inspectors left the mine, but returned later 

that evening after Mr. Workman received an anonymous phone call 

informing him of a reportable fall. After interviewing three 

miners who had knowledge of the fall, Inspector Workman verbally 

issued the section 103(k) order and subsequently put it in 

writing, and it was co-signed by Inspector May who concurred in 

its issuance. The inspectors subsequently went to the location 

of the fall to conduct an investigation. 

MSHA agrees that the issue presented in this case is whether 

or not the inspectors abused their discretion and acted 

unreasonably in issuing the order. Rochester and Pittsburgh Coal 

company, 11 FMSHRC 2159 (November 1989). MSHA's position is that 

in determining whether or not the inspector acted reasonably, the 

only relevant fact is the knowledge available to him when he 

decided to issue the order, and not what he subsequently learned 

when he went underground to actually view and inspect the 

location of the fall. In support of this argument, MSHA cites a 

decision by former Commission Judge Virgil Vail in a compensation 

proceeding resulting from the issuance of a section 103(k) order. 

Homestake Mining Company, 4 FMSHRC 1829 (October 1982). In that 

case, in upholding the order, Judge Vail stated in part as 

follows at 11 FMSHRC 1839-1840: 

A reasonable assessment of the facts known by Homestake 

at 6:30 a.m. prompted management to withdraw the miners 

from the Ross shaft that morning. Further, as late as 

10:00 a.m. when the inspectors arrived, Homestake 

management had not made a positive determination as to 

the cause of the co and smell of wood smoke in the 

shaft. Based on these facts, it is reasonable for the 

inspectors to believe there were grounds to issue the 

103(k) order for the health and safety of the minerso 

If subsequent investigation revealed that the condition 

causing the co and smoke in the shaft had abated, this 

would not make the original decision wrong. 

* * * * * 

i~ clear to me that section 103(k) of the Act 

clearly authorized the inspectors to issue the order of 

withdrawal on June 21, 19790 The plain language of 

this provision of the Act and related regulations 

authorizes representatives of the Secretary to issue 

such orders as they deem necessary to protect the 

health and safety of the miners. As the conditions 

existed at the time of the inspectors arrival at the 

mine, a prudent reading of the potential perils 

warranted the action taken in issuing the order and 

conducting the subsequent inspection of the affected 

area. Until the inspectors could be assured there was 

1797 

* 
no further danger to the miners from a fire or co, the 

issuance of the 103(k) order was valid and proper. 

MSHA asserts that the situation presented on March 18, 

indicated that a roof fall occurred in the morning, or as late as 

the afternoon on that day, and that there was confusion among 

mine management as to what was going on. Given the variety of 

the reports communicated to the inspectors, including the lack of 

any definitive information from management regarding the fall, 

and the miscommunication as to whether or not management was 

going to investigate the fall after 4:00 p.m. when it was 

reported to the inspectors, MSHA concludes that it is difficult 

to say what the inspectors should have done at that time. 

However, after receiving the anonymous call and returning to the 

mine, the inspector spoke to miners who were working on the 

section when the fall occurred and a supervisor, and he learned 

that roof bolts were down. The inspector also knew that the fall 

had occurred 16 hours earlier, and except for the anonymous call, 

no one told him anything about the fall. In these circumstances, 

MSHA concludes that it was natural for the inspector to be 

suspicious, and at that point i:ntime, he issued the order and 

went underground to the fall location. Simply because mine 

management believes that the inspector should have done something 

else and disagrees with his decision to issue the order does not 

support any conclusion that the inspector abused his discretion. 

Findings and Conclusions 

Section 103(k) of the Mine Act authorizes a mine inspector, 

in the event of an accident which occurs in a coal or other mine, 

to 11 issue such orders as he deems appropriate to insure the 

safety of any persons" in the mine. MSHA's regulations at 

30 CoF.Ro Part 50 provides several definitions of an "accident". 

'~he relevant def ini ti on for purposes of this case is the 

found section 50.2{h) (8)v which defines an accident 

unplanned roof fall at or above the anchorage zone in 

workings where roof bolts are in use; or, an unplanned 

roof or rib fall in active workings that impairs .ventilation or 

impedes passage~. 

Section 103(k) orders are typically issued by MSHA 

_nspectors to secure the scenes of accidents, to insure the 

continued safety of mine personnel, to preserve evidence, and to 

facilitate the investigation of accidents. See: Miller Mining 

company Co., Inc., 4 FMSHRC 1509 (August 1982), aff'd at 

MSHC 1017 (9th Cir. 1983); Itmann Coal Company, 1 FMSHRC 1573 

(October 1979) ; Harman Mining Corporation, 3 FMSHRC 45 (January 

1981); Lancashire Coal Company, 12 FMSHRC 272 (February 1990; 

Homestake Mining Company, Supra. 

section 103(k) authorizes an inspector to issue such orders 

as he deems appropriate to insure the safety of miners. Thus, 

1798 
the issuance of such an order by an inspector is discretionary. 

If an inspector believes that an operator has the situation well 

in hand, and that the safety of miners is insured, he need not 

issue any orders at all. On the other hand, if the inspector is 

in doubt, or has insufficient information to enable him to make a 

judgment as to the severity of the situation, or the hazard 

exposure to miners, I believe he must be afforded the latitude to 

act according to the wisdom of his discretion and experience, 

particularly in accident situations involving an unplanned roof 

fall. In my view, in order to successfully respond to such 

situations, an inspector must be able to do what he believes is 

appropriate according the to the facts as they are known to him, 

or as they appear to exist, at the time he makes the decision to 

act. Viewed in this context, I believe that the issue in this 

case is whether the facts and circumstances known to Inspector 

Workman at the time he decided to act warranted the issuance of 

the section 103(k) order. If the order was routinely issued, 

without regard to the safety or health or miners, then I believe 

it should be vacated. If, on the other hand, it was issued in 

order to insure the safety or health of the miners, it should be 

affirmed. 

In this case, Inspector Workman testified that he issued the 

order out of consideration for the health and safety of the 

miners working in the location of the fall. He also testified 

that he decided to issue the order after he learned more about 

the fall through interviews with three miners who gave him 

information about the roof fall and roof conditions. Mr. Workman 

also took into consideration the length of time the roof 

conditions had existed, the lack of communication and more 

detailed information from mine management in properly and 

promptly reporting the fall, and his lack of any specific 

knowledge as to the existence of potentially hazardous conditions 

which could have resulted injuries to miners (Tr. 90-91) 0 

Inspector Mayv who arrived at the mine after Mro Workman had 

issued the oral order, countersigned the order when it was 

reduced to writing and he expressed agreement wi~h the order and 

Mr" Workman's reason for issuing it. Mr. May confirmed that 

Mro Workman told him that he issued the order out of concern for 

the health and safety of the miners, and that he had been 

informed that the roof had fallen above the roof bolt anchorage 

and that there was a problem with the passageway to the longwall 

faceo Mr. May believed the order was properly issued in order to 

facilitate the investigation, and to insure that proper recovery 

procedures were being followed to preclude any injuries. 

The miner 1 s walkaround representative, Rodger Vandergrift, 

testified that one of the miners who Mr. Workman interviewed 

shortly before he issued the order told Mr. Workman that the roof 

had been "dripping and working" most of the shift, and that after 

the roof fell, roof bolts were observed in the longwall pan line. 

1799 
Mr. Vandergrift indicated that when there is a roof fall above 

the roof bolt anchorage there is no support to hold the top, and 

he believed that the order and investigation which followed 

Mr. Workman's interviews with the miners was justified in order 

to check out the situation. Mr. Vandergrift also indicated that 

Mr. Workman informed shift foreman Keener that he was issuing the 

order for the safety of the miners. Mr. Keener was not called to 

testify, and Mr. Vandergrift's testimony, which I find credible, 

stands unrebutted. 

Foreman Coneway, who admitted that he knew about the bad top 

conditions early on Monday morning, March 18, but who disclaimed 

any knowledge of any of the details, nonetheless indicated that 

the roof conditions were continually deteriorating as the day 

went on before the inspectors return to the mine. He also 

indicated that a "working or dripping" roof may sometimes 

deteriorate slowly, but at other times it may "drop to the 

roots". Under the circumstances, it would appear that all of 

these potential hazards were present prior to the issuance of the 

verbal order by Inspector Workman, and the fact that the order 

may have resulted in tp.e cessation· of further work to mine 

through the area is irrelevant. Indeed, the existence of those 

hazards lends support to the action taken by the inspector. 

I am not persuaded by the contestant's arguments that the 

work stoppage which resulted from·Mr. Workman's verbal order at 

11:50 p.m. increased the level of potential hazards to miners. 

The work to clear the fall was apparently taking place throughout 

the day shift of March 18, after the fall was initially reported 

out, and it apparently continued during part of the evening 

before the inspectors returned to the mine. Longwall supervisor 

Weaver testified that difficulties were encountered in advancing 

through the fall area because of the bad top conditions, and that 

during the attempts to advance and drop the shields, roof 

materials were falling between the shields, and that the top 

deteriorated further to the point where it fell in. 

I take note of the fact that Mr. Coneway, who initially 

reported the fall to the inspectors at the end of the March 18, 

day shiftv could only speculate as to the measures being taken to 

address the fall. He, like the inspectors, did not go to the 

fall location after he reported it to them. I quite frankly have 

difficulty comprehending why the inspectors, a shift foreman, 

union walkaround representative, and company safety representatives, all of whom apparently had some knowledge at the end of 

the shift that a roof fall occurred, chose not to go to the fall 

area to investigate. Although I understand the lack of knowledge 

as to whether or not the fall was "reportable" under MSHA's 

regulatory definition of a "reportable accident", as I stated 

during the course of the hearing, a roof fall, technically 

"reportable" or not, can injure and kill people. Under the 

circumstances, I believe that the inspectors, and mine management 

1800 
as well, had an obligation to timely follow up on the fall and to 

communicate with each other to ascertain the extent of the fall 

and the necessary corrective action. Since they failed to do so, 

I am not persuaded by their respective "finger pointing" and 

attempts to lay blame. 

The contestant's assertions that the inspectors should have 

reasonably known that closing down the section by a section 

103(k) order was not necessary to protect the health and safety 

of miners, and in fact exacerbated the situation because it 

delayed the mining through of the area are rejected. While it is 

true that Inspector Workman did not immediately go to the fall 

area upon his return to the mine on Monday evening before he 

issued his verbal order, I find nothing in section l03(k), or in 

MSHA's policy, that requires him to do so. While I agree that a 

view of the scene before the issuance of the order may have 

enabled the inspector to make a more precise and informed 

judgement with respect to the prevailing conditions, the fact 

that he relied on the information supplied by the three miners 

does not warrant a conclusion that the order was improperly 

issued. Further, I believe that mine management had more than 

ample time and opportunity to communicate with the inspectors and 

to inform them of the measures being taken to address the fall. 

If they had promptly done so, the order may not have issued. 

Since management failed to communicate further with the 

inspectors after the 4:00 p.m. informal and rather equivocal 

notice by shift foreman Conaway, it is in no position to 

complain. 

After careful consideration of all of the testimony and 

evidence in this case, I conclude and find that the facts and 

circumstances concerning the roof fall, as known to the inspector 

at the time he verbally issued the order, warranted the action 

which he took and reasonably support his judgment that the order 

was necessary to insure the health and safety of the miners until 

he was able to go to the fall location and complete his investigation of the roof fall incident. I further conclude and find 

that the inspector acted properly and that the issuance of the 

order was not an unreasonable or arbitrary abuse of his authority 

and discretiono Accordingly, the contested order IS AFFIRMED. 

ORDER 

In view of the foregoing findings and conclusions, the 

contested section 103(k) Order No. 3116688, issued on March 18, 

199lv IS AFFIRMED, and the Notice of Contest filed by the 

contestant IS DENIED and DISMISSED. 

4Kt;~ Administrative Law Judge 

1801 
Distribution: 

Glenn M. Loos, Esq., U.S. Department of Labor, Office of the 

Solicitor, 4015 Wilson Blvd., Rm. 516, Arlington, VA 22203 

(Certified Mail) 

David M. Cohen, Esq., American Electric Power, Fuel Supply 

Department, P.O. Box 7000, Lancaster, OH 43130-0700 (Certified 

Mail) 

/ml 

1802 
FEDERAL Ml NE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

NOV 4 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION on behalf of 

JOSEPH CULP, 

Complainant 

v. 

MID-CONTINENT RESOURCES, INC. 

Respondent 

1991 

. . 

DISCRIMINATION PROCEEDING 

Docket No. WEST 91-160-D 

Dutch Creek Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Cetti 

This is a proceeding ba.sed on a complaint of discrimination 

filed under Section 105(c) of the Federal Mine Safety and Health 

Act of 1977 (Mine Act}. 

The complaint was ba.sed upon Complainant's employment termination resulting from Complainant's refusal to work underground 

at the Dutch Creek Mine because of his fear of a prolonged methane fire in the 211 Longwall tailgate return. 

In an earlier litigated proceeding before meu the Complainantff Joseph Co Culpv was temporarily reinstated to his former 

position by my order of December 18, 1990. Subsequently, on 

January 25, 1991, substantially all miners including Mr. Culp 

were laid off at the Dutch Creek Mine. Mr. Culp accepted new 

employment for a different mining company in Western Pennsylvania 

on August 26v 199lu and no longer seeks permanent reinstatement 

at Mid-Continent Resources, Inc. (Mid-Continent) but does claim 

back pay from the time he was suspended without pay allegedly in 

violation of Section 105(c) on August 23, 1990, to the time he 

was temporarily reinstated pursuant to my order at the Dutch 

Creek Mine on December 19, 1990. Mr. Culp's monthly salary was 

$3,4680 During the time period of his discharge from late August 

1990 until mid-December 1990, Mr. Culp received state employment 

benefits amounting to $2,522. The total amount of back pay 

claimed by Mr. Culp in this proceeding was $11,332.92 plus the 

legal rate of interest on such back pay. 

1803 
Mid-Continent asserts, in part, the following: 

1. That Complainant's actions of August 22 and 23, 1990, 

constitute a voluntary termination of his employment status with 

Mid-Continent and that his work refusal was not made in good 

faith. 

2. That the work refusal justification of Complainant was 

not reasonably predicated. None of the nearly 100 Mid-Continent 

employees active during the 211 longwall gob fire nor any MSHA 

inspectors or employees refused to enter the Dutch Creek Mine and 

perform tasks assigned to them during the course of the 211 longwall gob fire. 

3. That given the occupational duties of Complainant and 

the tasks assigned and performed by him during the initial stages 

of the 211 longwall gob fire, outby pumping duties several hundred feet removed from the actual fire site, the work refusal of 

Complainant was not reasonably predicated. 

4. That Complainant's concerns, if any and if in fact held 

in good faith, were no-t adequately communicated to invoke protection of the Federal Mine Safety and Health Act of 1977. 

5. That the conditions surrounding the methane fire in the 

211 longwall gob did not constitute what could be genuinely and 

in good faith regarded as a hazardous conqition, p~rticularly to 

persons engaged in outby occupations which placed them a significant distance from the fire location and the firefighting activities. Every underground activity conducted by Mid-Continent 

from and after August 16, 1990, and during the entire course of 

the 211 longwall gob fire, including the duties assigned Complainant, was specifically approved by MSHA and subject to its 

direct supervision and controlo 

6 That it is legally impossible for an unsafe activity to 

be conducted at a mine while under the control of MSHA such as 

this mine was by virtue of Section 103(k) and 107Ca) orders and 

the massive physical presence of MSHA official inspectors and 

technicianso 

The Secretary on behalf of the Complainant states that preparation for trial has revealed that since the time of my reinstatement order, Mid-Continent has ceased operation and is preparing to file bankruptcy, Mid-Continent is unable to pay the 

amounts due to Mr. Culp as calculated by the Secretary, and MidContinent has a very large secured debt that will leave nothing 

for unsecured creditors. 

1804 
Accordingly, Complainant and Respondent have agreed that the 

Secretary will reduce its request for monetary relief to the 

amount of $2,000.00, contingent on Mid-Continent paying that sum 

prior to a final order in this case. Under the facts and circumstances in this case, the Secretary upon payment of the $2,000.00 

to Complainant withdraws its request for a civil penalty. 

After careful review and consideration of the entire record 

including the arguments and submissions in support of the proposed settlement of this case, I conclude and find that the proposed settlement disposition is reasonable, appropriate and in 

the public interest. I am advised by the Secretary that the approved amount of $2,000.00 has been paid to the Complainant. Accordingly, the settlement is APPROVED and Respondent having 

paid it, this proceeding is DISMISSED. 

Distribution: 

t F. Cetti 

nistrative Law Judge 

Margaret Ao Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1585 Federal Office Building, 1961 Stout Street, 

Denverr CO 80294 (Certified Mail) 

Edward Mulhall, Esqov DELANEY & BALCOMBv Drawer 790; Glenwood 

Springsr CO 81602 (Certified Mail) 

Mro Joseph Culpu RD #lu Box 195-Tv Clarksville, PA 15322 

(Certified Mail) 

sh 

1805 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 5 1991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. PENN 91-160 

A.C. No. 36-01892-03515 

v. 

Porter Tunnel 

KOCHER COAL COMPANY, 

Respondent Docket No. PENN 91-1349 

A.C. No. 36-01891-03505 

Appearances: 

Before~ 

"'.,.': 

Kocher Breaker 

Docket No. PENN 91-1032 

A.C. No. 36-03304-03501 

Lincoln Stripping Mine 

DECISION APPROVING SE'rl'LEMENT 

Joseph T. Crawford, Esq., Anthony G. O'Malley, 

Jr., Esq., Office of the Solicitor, U.S. 

Department of Labor, Philadelphia, Pennsylvania, 

for the Petitioner; 

Allen Shaffer, Esq., Millersburg, Pennsylvania, 

and Mr. Steven D. Shrawder, Valley View, 

Pennsylvania, for the Respondent. 

Judge Melick 

These cases are before me upon petitions for assessment of 

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

Health Act of 1977 (the Act). Petitioner's initial motions to 

approve settlement agreements were denied. At hearings, amended 

motions were filed and supportive evidence submitted. In 

particular with respect to Citation No. 2934266, charging 

Respondent with failing to notify the Secretary that it had 

reopened a mine, the proposed penalty in settlement of $20 can 

now be approved. There is a reasonable question as to whether, 

in its reclamation work, Respondent was engaged in activity 

subject to MSHA inspection authority. 

A reduction in penalty from $1221.00 to $665.50 has now been 

proposed with respect to the remaining citations. I have 

1806 
considered the representations and documentation submitted in 

these cases, and I conclude that the proffered settlement is 

appropriate under the criteria set forth in Section llO(i) of the 

Act. 

WHEREFORE, the motion for approval of serlement is G~, and it is ORDERED that Respondent pay a penal of $685.50 Within 

3 O days of this order. / j f 

l / I \ ' :.I: ( 

J ! .•. . ~· /!j---- '-'\.___ 

Gary ~eliciJ. / 

Administrative Law Jud~e 

Distribution: / 

Joseph T. Crawford, Esq., Anthony G. O'Malley, Jr., Esq., Office 

of the Solicitor, U.S. Department of Labor, Room 14480 Gateway 

Building, 3535 Market Street, Philadelphia, PA 19104 

(Certified Mail) 

Mr. Allen Shaffer, Esq., 129 Market Street, P.O. Box 335, 

Millersburg, PA 17061 (Certified Mail) 

Mr. Steven D. Shrawder, Kocher Coal-Company, P.O. Box 127, 

Valley View, PA 17983 (Certified Mail) 

/fb 

1807 
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), 

NOV 5 1991 

ON BEHALF OF JOSEPH A. SMITH, 

Applicant 

v. 

HELEN MINING COMPANY, 

Respondent 

APPLICATION FOR TEMPORARY 

REINSTATEMENT 

Docket No. PENN 92-15-D 

PITT-CD 91-11 

Homer city Mine 

ORDER OF TEMPORARY REINSTATEMENT 

Appearances: Gretchen M. Lucken, Esq., Tana M. Adde, Esq., 

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

Arlington, Virginia, for the Secretary; 

Michael Klutch, Esq., Thomas A. Smock, Esq., 

Polito & Smock, P.C., Pittsburgh, Pennsylvania, 

for the Respondent. 

Before: Judge Maurer 

on October 7, 1991, the Secretary of Labor (Secretary) filed 

an application for an order requiring Respondent Helen Mining 

Company (Helen) to reinstate Joseph A. Smith to the position 

which he held immediately prior to his July 2, 1991u discharge, 

or a similar position at the same rate of pay, and with the same 

or equivalent duties assigned to him. The application was 

supported by an affidavit of Lawrence M. Beeman, who is the 

Chief, Office of Technical Compliance and Investigations, Coal 

Mine Safety and Health, Mine Safety and Health Administration 

(MSHA) and by a copy of the original complaint filed by Smith 

with MSHA. 

On October 11, 1991, Helen filed a responsive pleading, 

denying that the Secretary is entitled to the requested Order of 

Temporary Reinstatement and denying that it violated the Mine Act 

in discharging Smith. Helen proposed to economically reinstate 

Smith as of the date on which a temporary reinstatement hearing 

would otherwise be held and until such time as a decision on the 

merits of the discrimination complaint is subsequently rendered. 

Alternatively, Helen requested a hearing on the Secretary's 

application. 

180 8 
Smith, as is his right to do, rejected the offer of economic 

reinstatement. Therefore, the requested hearing was held 

pursuant to notice on October 31, 1991, in Indiana, Pennsylvania. 

The relevant scope of this hearing, at this preliminary 

stage of the proceedings, is limited to a determination of 

whether the miner's complaint is being frivolously brought. I 

stated on the record at the hearing and will reiterate here that 

I am not at this time determining the merits of Smith's 

discrimination complaint, but only whether that complaint is 

frivolous, as that word is commonly used. 

The Secretary has produced evidence to the effect that Smith 

was Chairman of the UMWA Safety Committee at the Homer City Mine 

at the time of his discharge and was actively so engaged. 

Furthermore, between June 18, 1991, and the first of July, he 

filed three section 103(g) complaints with MSHA. MSHA 

investigated those complaints and as a direct result issued 

several section, 104(a) citations as well as a section 107(a) 

Imminent Danger Order. Mine management was aware that it was 

Smith who was filing the 103 ('g) complaints according to the 

inspector who investigated them. Additionally, Smith has filed 

four section 105(c) discrimination complaints against Helen in 

the last 12 months, two of which are still active files that are 

reportedly at the complaint stage of pleading, wherein he is also 

being represented by the Secretary. 

With regard to the immediate sequelae that led to smith's 

discharge, the Secretary sponsored evidence that Smith was sick 

with flu-like symptoms on June 30, 1991, and had taken a "sick 

day". Then on Monday night, July 1, 1991, Smith went to work 

intending to perform his normal job as a shearer operator on the 

longwall. He testified that he still felt "sick, 11 but he thought 

he could perform that function for his shift. Howeverv upon 

at the mine 9 he was told that his work assignment that 

night would be to vvfireboss. ua The shift supervisor informed him 

that if he was still there at the start of the shift at 

12:01 a.m., he would be given a direct order to "fireboss." 

Smith testified that he did not feel that he was physically 

up to firebossing that night because of the extensive walking 

that would be required. The company attributes other motives to 

Smith 1 s reluctance and apparently there has been a long-standing 

dispute over whether or not the company can order a rank and file 

miner who has the papers to fireboss against his will. 

Smith then in rapid succession stated to his supervisor 

that~ (1) he was going home sick or taking a sick day; (2) he 

would firebos.s if the shift supervisor would write out the 

assignment and finally (3) he would take an "illegal day," 

intending to get a medical excuse the next day, thus converting 

the unexcused absence to an unpaid sick day. There is also a 

1809 
substantial dispute between the parties as to whether this latter 

is a viable option under the union contracto 

The next dayv Smith did in fact go to the hospital emergency 

room and was diagnosed as having 10 gastroenteritis" and advised to 

take a couple of days off by the treating physician. However, 

Smith was overtaken by events in this regard in that 

Superintendent Hofrichter called him at home on July 2, 1991, to 

advise that he was suspended with intent to discharge for 

insubordination because he refused the firebossing assignment. 

It is the respondent 0 s position that this insubordination 

was the only reason for Smith 9 s dischargeo Respondent goes on to 

point out numerous prior instances of disciplinary action taken 

by it against Smith for various and sundry transgressions, most, 

if not all of which appear to be grounded in fact. 

I note that the record contains a great deal more relevant 

evidence than is recited or dealt with herein, including some 

evidence that tends t~ rebut or refute portions of the 

Secretary's evidenceo Howeverv at this stage of the proceedings 

I do not need to weigh the evidence or make findings on the 

ultimate issueso At this time I am only required to determine if 

Smith 1 s complaint was frivolously brought" 

I have carefully considered the entire record of this 

proceeding in that light and I conclude that Smith's complaint is 

not clearly without meritv fraudulent or pretextual in nature. 

Therefore, I conclude that Smith 1 s complaint is not frivolously 

broughto 

to ·the posrc:'..::J:r'c :::~om ~1e was discharged on or about 

July 2v 1991 or "Co an equivalent position 1 at the same rate of 

pay and with the same or equivalent dutieso 

Distribut 

Gretchen l.VL Luck:enu Esq" r Tana Mo Adde, Esq., Office of the 

Solicitorv Uo So Department of Laboru 4015 Wilson Boulevard, 

Arlingtonu VA 22203 (Certified Mail} 

Michael Klutch, Esqo 9 Thomas A. Smock, Esq., Polito & Smock, 

P.c., Four Gateway Center, Suite 400 1 Pittsburgh, PA 15222 

(Certified Mail) 

1810 
FEDERAL MINE SAFETY ANB:» HEA.l TIHJ RlEVU:W COMMiSSBOIN 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG Pll\E 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

Docket No. WEVA 91-178 

AoC• NO. 46~01453-03946 

Docket No. WEVA 91-193 

A.C. No. 46-01455-03821 

Osage No. 3 Mine 

DECISION 

Appearances~ Charles M. Jackson, Esq.r Caryl Casden, Esq.u 

and Tana Adde, Esq., U.S. Department of 

Labor, Arlington, Virginia for Petitioner; 

Walter J. Scheller, Esq., Consolidation Coal 

Company, Pittsburgh, Pennsylvania for 

Respondent. 

Before: Judge Weisberger 

These cases are before me 

civil penalty filed the 

Subsequent to notice, the cases were heard 

West Virginia on July 31, 1991. H. 

Knotts, Dale R. Dinning r and John "R.n '·'20X, 

Petitioner. Samuel O. Statler, 

=:er assessment 

Petitioner). 

in Morgantown, 

Phillips, Merven 

for 

f 

testified for Respondent. on 23, 1991, 

each filed proposed findings of fact and c. brief. 

the parties 

I. Docket No. WEVA 9l-193v 

A. Citation No. 3308030 

1. Alleged Violation 

of 

Jr. 

On October 16, 1990, Respondent was engaged in the 

extraction of coal in the No. 5 Butt section by a longwall mining 

system. According to Respondentis roof control plan, upon 

completion of mining in the No. 5 Butt section, a longwall mining 

would commence in the adjacent No. 6 Butt section. The roof 

1811 
control plan provides, in essence, that as the No. 5 panel is 

being mined, cribs should be maintained in the headgate (neutral) 

entry, which will become the tailgate entry once mining commences 

in the adjacent No. 6 section. 

Respondent does not contest the o?s~rvations of MSHA 

Inspector George A. Phillips that, on October 16, 1990, cribs had 

not been placed in an approximately 100 foot long section in the 

future a longwall tailgate entry (i.e. the tailgate entry of the 

No. 6 Butt section) in violation of the roof control plan. 

Accordingly I find that Respondent did violate its roof control 

plan, and hence did violate 30 C.F.R. § 75.220 as alleged in the 

citation issued by Phillips. 

2. Significant and Substantial 

Petitioner alleges that the violation herein is significant 

and substantial. For the reasons that follows I conclude that 

the record fails to establish that the violation was significant 

and substantial. 

Phillips noted that in the area in question, at Spad 9223, 

the roof was good and he was not concerned about any danger. 

According to Phillips the No. 5 Butt is bolted and supported 

properly. In the same fashion, Mervin Knotts an MSHA Geologist 

testified that there was no danger of a roof fall in the cited 

area. Essentially, the record does not establish that, in the 

normal mining cycle of the No. 5 Butt section, there was created 

any hazard of a roof fall in the cited area. However, according 

to Phillips, once mining has been completed in the No. 5 Butt 

section and mining has commenced in the No. 6 Butt section, 

abutement pressure increases as the face advances. According to 

Mervin Knotts a geologist who works in an MSHA roof control 

sectionp abutement pressures have been measured 1,000 outby the 

face. 

According Phillips and Knotts, if the area in question is 

not cribbed, assuming the continuation of the normal mining 

process, a point would be reached in the No. 6 Butt section where 

the advancing face would create sufficient pressure on the area 

in question to cause a roof fall. Further, according to Phillips 

and Knotts, such an event is reasonably likely to occur given the 

normal mining cycle of the advancing face in the No. 6 Butt 

section. According to Phillips, it becomes "critical'' (Tr. 65, 

83) to support the cited area, when the longwall panel approaches 

within 200 feet. Knotts testified that the face would have to be 

within 25 feet of the cited area for there to be a reasonable 

likelihood of a roof fall occasioned by frontal abutment 

pressures. Due to Knotts' expertise I accept his testimony. 

1812 
Phillips opined that should a roof fall occur, it would be 

reasonably likely for miners to be seriously injured if they 

would be in the area of the roof fall. Also, according to 

Phillips, in the event of a mine fire, which he indicated was 

always a possibility, miners might have to use the entry in 

question as an emergency escapeway, should the two regular 

escapeways not be passable. Phillips opined that in such an 

event, miners could be seriously injured should there be a roof 

fall of such a nature as to block or impede ventilation in the 

entry in question. 

In analyzing whether the facts herein establish whether the 

violation is significant and substantial, I take note of the 

recent decision of the Commission in Southern Ohio Coal Company, 

13 FMSHRC 912, (1991), wherein the Commission reiterated the 

elements required to establish a significant and substantial 

violation as follows: 

We also affirm the judge's conclusion that the 

violation was of a significant and substantial nature. 

A violation is p_roperly'designated as significant and 

substantial "if, based on the particular facts 

surrounding that violation, there exists a reasonable 

likelihood that the hazard contributed to will result 

in an injury or illness of a reasonably serious 

nature." Cement Division, National Gypsum Co., 

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

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

In order to establish that a violation 

of a mandatory standard is significant and 

substantial under National Gypsum the 

Secretary must prove: (1) the underlying 

violation of a mandatory safety standard; 

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

measure of danger to safety -- contributed to 

by the violation: (3) a reasonable likelihood 

that the hazard contributed to will result in 

an injury; and (4) a reasonable likelihood 

that the injury in question will be of a 

reasonably serious nature. 

See also Austin Power Co. v. Secretary, 861 F.2d 

99, 103-04 (5th Cir. 1988), aff'g, 9 FMSHRC 2015, 2021 

(December 1987) (approving Mathies criteria) . the 

third element of the Mathies formula "requires that the 

Secretary establish a reasonable likelihood that the 

hazard contributed to will result in an event in which 

there is an injury" (U.S. Steel Mining Co., 6 FMSHRC 

1834, 1836 (August 1984)), and also that the likelihood 

of injury be evaluated in terms of continued normal 

mining operations (U.S. Steel Mining Co., Inc. 6 FMSHRC 

1813 
1573, 1574 (July 1984}; see also Halfway, Inc., 8 

FMSHRC s, 12 (January 1986)." (Southern Ohio, supra at 

916-917) 

In the instant case the first element set forth in Mathies, 

supra has been met, in that it has been established that 

Respondent herein did violate a mandatory standard. Also, the 

evidence establishes that the lack of the cribs in the cited area 

did contribute to the hazard of a fall occurring at a future date 

when the No. 6 Butt section would be developed to the point where 

the face would advance close enough to the area in question to 

create sufficient pressure so as to create a hazard of a roof 

fall. The key element for resolution is thus whether it has 

been established that there was a reasonable likelihood that the 

hazard of an unsupported roof, contributed to by the lack of 

cribs in the future tail gate return entry will result in a roof 

fall causing an injury (See U.S. Steel Mining Co., supra, 1836}. 

Phillips indicated on cross-examination that it would take 

approximately 13 months from the date the citation herein was 

issued, (October 16, 1990) for-the £ace in the No. 6 Butt section 

to advance to the point where the roof conditions in the cited 

area would be critical. In this connection, Samuel o. Statler, 

Respondent's longwall coordinator, whose responsibilities include 

maintaining the longwall panel and setting up the next panel, 

testified that, at the date of the hearing, 15 months subsequent 

to the date of the citation was issued, the longwall face in the 

No. 6 Butt section had not yet advanced to within 200 feet of the 

cited area. 

According to Statler, cribs to build blocks were placed in 

the neutral entry of the No. 5 Butt section (the future tailgate 

return entry for the No. 6 Butt section) the weekend prior to the 

issuance of the citation on Tuesday, October 16. Statler 

indicated that Respondent commenced to install cribs. That 

weekend it was subsequently noted that there were insufficient 

crib blocks to fill in the approximately 100 foot void that was 

subsequently cited by Phillips on October 16. Statler testified 

that, on Saturday, cribs were brought up the No. 2 entry (intake) 

to the crosscut near spad 9224, in order to fill in the voido 

According to Statler, it was intended to build cribs as soon as 

there would be down time, which he thought was going to occur 

within the next week. Statler stated specifically that he would 

not have allowed the No. 5 Butt section to be mined out and 

retreated beyond the area of the void in the cribbing, without 

having first placed cribs in that area. 

In rebuttal, Phillips testified that it would take about 6 

or 7 bundles of cribs to fill the uncribbed cited area. He said 

that each bundle is 11 ••• at least 4 feet by probably four feet 

three, 3 1/2 feet high" (Tr. 144-145), and accordingly, the 

bundles should have been seen by him on October 16, if they were 

1814 
in the area. He testified on cross-examination that he does not 

have any image of seeing these bundles, and does not remember 

having seen them. 

I find Statler's testimony more persuasive, and conclude 

that the testimony of Phillips on rebuttal is not sufficient to 

have impeached it. Hence, based on the testimony of Statler, I 

conclude that, had the void (i.e. the uncribbed area) not been 

cited by Phillips, it would have been filled in with cribbing 

within a week or so. Further, there was no hazard to miners when 

the area was cited. Any hazard would have occurred only if the 

area would have remained unsupported by cribs, at the time when 

the face had approached within 200 feet as testified to by 

Phillips, or 25 feet as testified to by Knotts. It was estimated 

by Phillips that it would have-taken approximately 13 months 

subsequent to October 16, for the face to have reached that 

point. I find, that had the area not been cited, the void would 

have filled in by Respondent long before there would have been 

any hazard of a roof fall due to the advancing of the face. 

Accordingly, for all the.above reasons I find that it has 

not been established that the violation herein was significant 

and substantial. 

Although Respondent was aware of the violation I find the 

degree of its negligence to have been low, inasmuch as it 

intended to have the situation cured as soon as it was feasible, 

and long before the creation of a hazard of a roof fall. 

Considering the remaining statutory factors set forth in Section 

llO(i) of the Act, I find that a penalty of $100 is appropriate 

for the violation found herein. 

Bo Citation Nos. 3307218, 3308021, 3308022, 3308037, and 

3307804 

Subsequent to th~ hearing, on October 4, 1991, Petitioner 

filed a motion to approve a settlement agreement with regard to 

Citation Nos. 3307218, 3308021, 3308022, 3308037,. and 3307804. A 

reduction in penalty from $1,124 to $774 is proposed. I have 

considered the representations and documentation submitted in 

this Motion, and I conclude that the proffered settlement is 

appropriate under the criteria set forth in Section llO(i) of the 

Act. Accordingly the motion for approval of settlement is 

granted. 

II. Docket No. WEVA 91-178 

A. Citation No. 3314318 

1. Alleged Violation 

On October 4, 1990, Dale Dinning an MSHA 

1815 
inspector, inspected Respondent's Humphrey No. 7 mine. He noted 

that in the 13 east main return, at 4 overcasts a ladder was 

placed leaning up against the sides of the overcast, to enable a 

person to climb up to the overcast, cross over, and then climb 

down. None of these ladders were secured to the overcast. He 

issued a citation alleging a violation of 30 C.F.R. § 75.305. In 

that "a safe means of travel across the 4 overcasts in the main 

return to Kirby shaft just outby 13 East Regulator is not being 

provided". 

It is Petitioner's position that, in essence, there is an 

"implied duty to provide safe passage" under section 75.305 

supra. 1 In essence, according to Petitioner this duty is 

breached where the means of conducting an examination pursuant to 

section 75.305, supra, is hazardous, i.e., the hazardous 

conditions of the 8 ladders in issue which were placed on each 

side of the 4 overcasts in the main return. 2 I do not find 

merit in Petitioner's argument for the reasons that follow. 

1In its brief the Petitioner cites 30 C.F.R. § 75.1704-

l(c) (2) (which requires ladders in underground mine escapeways to 

be anchored securely) and 30 C.F.R. § 77.206, (which requires 

that in surface mines ladders shall be anchored securely), for 

the proposition that the "Mine Act recognizes that unsecured 

ladders are hazardous. 11 However the issue presented herein is 

not whether ladders that are unsecured are hazardous per se, but 

rather whether the condition of the ladders herein violated 

section 75.305 supra for which Respondent was cited. As such, 

the other standards cited by Petitioner are not relevant in 

disposing of the issues herein presented" 

2

Respondent has not contradicted or impeached the testimony 

of Dinning that at least once a week an examiner would be in the 

area in question. Neither did it contradict or impeach the 

testimony of John Cox a union walkaround who, when asked who is 

required to cross the laddersF answered as follows~ 

A. Anybody that would be walking that area. We have a 

it has to be traveled at least once a week. And 

any work that would be done in that areau people would 

have to travel across them in order to go and do the 

work. (Tr. 53) 

However no evidence in the record sets out in any deta any 

facts which tend to establish that, in making an examination 

pursuant to section 75.305 supra it is necessary to traverse the 

overcasts in the main return. 

1816 
2. Discussion 

a. Condition of the ladders 

According to Joseph Frank Mlinarchik, Jr., Respondent's 

safety inspector the ladders were purchased from a carpenter who 

made them, and they are of substantial construction. The ladders 

are 10 feet high, 24 inches wide. They were leaning against the 

overcast and resting between two metal rails approximately 36 

inches apart. The rails protruded horizontally from the tops of 

the overcast between 6 to 8 inches. 

Dinning described the hazard posed by the unsecured ladders 

as follows: 

Without these ladders being secured and with the 

equipment you got to carry over top of them, you always 

have a chance of this ladder sliding along the wall. 

You're going down the other side, the ladder could kick 

out on the bottom and cause you to fall." [sic] 

(Tr. 29) 

In the same fashion, John Cox, a walkaround who accompanied 

Dinning, described the hazard as follows: 

The hazard is that the person can go ahead and 

lose their balance. And the ladder gives you the 

sense, if the ladder's secured, if you lose your 

balance you grab something secured it's going to at 

least protect you from your fall or curtail you from a 

free fall. [sic] (Tr. 58) 

Cox also indicated that the unsecured ladders"··· may rock 

back or slip when an individual would be climbing up or down the 

ladders because of them being able to get hurt or an accident to 

occur. ui [ s ] (Tr. 4 4) 

Essentially, according to Dinning and Cox, the hazard posed 

by the unsecured ladders is contributed to by the use of 

metatarsal boots, metacarpal gloves, and various equipment worn 

by a miner. Also according to Petitioner 1 s witnesses, the lack 

of hand rails on the ladders, and the fact that the area in 

question is illuminated only by cap lights contribute to the 

hazard. 

According to Cox when he climbed the ladder at the first 

overcast and reached the top it was "wobbly" (Tr.57). He said 

that in climbing down he had to swivel around, and reach out with 

his leg to go around a protruding rail. He indicated that he 

then had to bend down to hold on to the ladder, inasmuch as it 

protruded over the top of the overcast only 6 to 8 inches. He 

testified that some of the rails protruded from the overcast up 

1817 
to 18 inches, which would make it more difficult swivel around 

from the top of the overcast to reach the ladder to climb down. 

According to Dinning, the base of the ladders were not as 

far away from the bottom of the overcasts, as they should have 

been, and he indicated that the ladders were positioned "pretty 

well straight up and down" (Tr.20). Cox testified that the 

ladders were two to three feet back from the base of the 

overcasts, and extended 6 to 8 inches over the top of the first 2 

overcasts that were approximately 8 feet high. However, neither 

Dinning nor cox measured the horizontal distance between the 

bottoms of the ladders and the bottom of the overcasts. In 

contrast, Mlinarchik measured that distance and indicated that 

the bottom of one ladder was 4 feet in a horizontal distance from 

the base of an overcasts that was 8 feet high, and that the 

horizontal distance of a ladder from the bottom of a 6 foot high 

overcast was 3 feet. I accept Mlinarchik's testimony with regard 

to the distance the base of the ladders extended from the 

overcasts inasmuch as it was based upon actual measurement. 

Dinning was asked to describe "the ground conditions 

surrounding the overcast" (Tr.20), and he responded as follows: 

"Well, in any underground coal mine you have uneven pavement or 

bottom. You're going to have coal sluffage, rock, other debris 

laying around. So, it's uneven bottom. 11 (Tr. 20-21) He did not 

specifically describe the ground conditions in the areas at 

issue. 

Cox indicated on direct examination that, in essence, there 

were old cement blocks around and under the ladders, and "there 

were several large rocks at the bottom" (Tr.51). However on 

cross-examination, it was elicited from Cox that the walkways 

were clear, and that the blocks that he referred to on direct 

examination were at the base of the overcasts, and the ladders 

were not set on blocks and crushed wood. 

Cox on rebuttal testified that only the edge points of the 

bases of the ladders were dug in the ground, and that the ground 

was not smooth. However, earlier he was asked by me whether, in 

his opinion the surfaces that the ladders rested on were evenv 

and he said 00 I believe so 11 (Tr.63). 

Mlinarchikv indicated that he climbed all the ladders in 

question. He testified that he weighs "probably 250 pounds" 

(Tr.77), and that he did not detect any motion in the ladders, 

and that the bases of the ladders were even, and on solid ground. 

He opined that if a ladder would slide, the protruding rails 

would prevent it from sliding further. 

I accept Milanarchiks testimony with regard to the stability 

by the ladders, as Cox indicated that the ground was even, a fact 

not rebutted by Dinning. Also there is no evidence that the 

1818 
surface that the ladders rested on was not flat, or that it 

contained objects the would upset the balance of the ladders. 

Further, neither Dinning nor Cox, indicated that the ladders were 

not sturdy. Nor did they indicate there were any defects in the 

construction of the ladders. 

b. Applicability of Section 75.205 supra 

Section 75.305 supra provides as follows: 

In addition to the preshift and daily examinations 

required by this subpart D, examinations for hazardous 

conditions, including tests for methane, and for 

compliance with the mandatory health or safety 

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

certified person designated by the operator in the 

return of each split of air where it enters the main 

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

at least one entry of each intake and return aircourse 

in its entity, idle workings, and, insofar as safety 

considerations permit, -abandoned areas. Such weekly 

examinations shall be made before any other miner 

returns to the mine. The person making such 

examinations and tests need not be made during any week 

in which the mine is idle for the enti're week, except 

that such examination shall place his initials and the 

date and time at the places examined, and if any 

hazardous condition is found, such condition shall be 

reported to the operator promptly. Any hazardous 

condition shall be corrected immediately. If such 

condition creates an imminent danger, the operator 

shall withdraw all persons from the area affected by 

such condition to a safe area, except those persons 

referred to in section 104(d) of the Act, until such 

danger is abated. A record of these examinations, 

testsu and actions taken shall be recorded in ink or 

indelible pencil in a book approved by the secretary 

kept for such purpose in an area on the surface of the 

mine chosen by the mine operator to minimize the danger 

of destruction by fire or other hazard, and the record 

shall be open for inspection by interested persons. 

A plain reading of the words of Section 75.305 supra. 

reveals that there is no explicit provision for safe travel 

across overcasts. Nor does Section 75.305 supra contain any 

language mandating the manner in which ladders are to be used. 

Such a requirement, which goes beyond the scope of the explicit 

plain language of Section 75.305, may accordingly not be imposed 

based only on an implied duty to provide safe access (see, 

Consolidation Coal co., 2 FMSHRC 1809, 1817 (1980) (ALJ Merlin); 

Riverside cement co., 1 FMSHRC 2057, 2059 (1979) (ALJ Merlin). 

Further there is nothing in the legislative history of the 

1819 
statutory provisions of Section 303(f) of the Federal Mine Safety 

and Health Act of 1977, 3 and the parallel language in the 1969 

Act (Public Law 91-173) indicative of a legislative intent that 

this section shall encompass a duty to provide safe access. 

Hence, for all the above reasons, I conclude that it has not 

been established that Respondent violated Section 75.305, supra. 

B. Citations 3307246, 3307836, 3307837, 3307251 and 

3307255. 

At the hearing Petitioner indicated that the parties had 

reached a settlement with regard to Citation Nos. 3307246, 

3307836, 3307837, 3307251 and 3307255. on October 2, 1991, 

Petitioner filed a Motion to Approve a settlement agreement with 

regard to this Citations and proposed a reduction and in penalty 

from $1,295 to $1,059. I have considered the representations and 

documentation submitted in the motion, and I conclude that the 

proffered settlement is appropriate under the criteria set forth 

in section llO(i) of the Act. Therefore, the Motion to Approve 

settlement is granted. _ · · 

ORDER 

It is ORDERED that: (1) Citation Nos. 3307804, and 3307836 

be modified to allege a violation that is not significant and 

substantial; (2) Citation No. 3314318 be vacated, and (3) 

Respondent pay within 30 days of this decision $1,933 as a civil 

penalty. 

Distribution: 

Avram Weisberger 

Administrative Law Judge 

Charles Mo Jacksonu Esq., Caryl Casden, Esq., Tana Adde, Esq., 

Office of the Solicitor, U. S. Department of Labor, 4015 Wilson 

Boulevard, Room 516, Arlington, VA 22203 (Certified Mail) 

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

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

nb 

3section 75.305, supra repeats the language of 

Section 303(f), supra 

1820 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 8 1991 

JAMES N. BOYD, DISCRIMINATION PROCEEDING 

Complainant 

v. 

TROJAN MINING COMPANY, 

Respondent 

Docket No. KENT 91-239-D 

MSHA Case No. PIKE CD 91-08 

Trojan Mine 

ORDER OF DISMISSAL 

Before: Judge Melick 

Complainant requests approval to withdraw his complaint in 

the captioned case. Under the c.ircumstances herein, permission 

to withdraw is granted. 29 C.F.R. § 2700.1. This pase is 

therefore dismissed, and the hea. rin~ previously sc~eduled for 

November 8, 1991, are accordinity J'a\celled. j 

1

0 1 

; ' l I ' I 

/ I ./ /\.;v~ : A I 1 I / j~"f\ 

/Gary M~li6-k • · Administrative L~w Judge l, i 

i , 

Distribution: \ ~ I \, 

Mr. J·ames N, Boyd, P, o. Box 596, Elkhbrn City, KY 41522 

(Certified Mail) 

Mr. Roger L. Kirk, Mine Manager, Trojan Mining Company, Box 280, 

State Route 197, Ashcamp, KY 41512 (Certified Mail) 

/fb 

1821 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 8 1991 

KEITH STURGILL, DISCRIMINATION PROCEEDING 

Complainant 

v. Docket No. KENT 91-973-D 

MSHA Case No. PIKE CD 91-10 

SOUTH EAST COAL COMPANY, 

Respondent No. 404 Mine 

ORDER OF DISMISSAL 

Before: Judge Melick 

Complainant requests approval to withdraw his complaint in 

the captioned case. TTnder the circumstatjces herein, permission 

to withdraw is grantea. 29 C.F.R. § 270Q.ll. This case 

therefore dismissed. 

1 

j !\ :.

1

! 

I• / 1i- \ , I ... _ . \,'"' \ .. /\ \ ,{ .; I' . ! 

I ' ."'-' .. \ .· ,j t :\ ~... . • 

Gary\ Melic~ 

Admihistrapive Law Judge 

\ · 1 

I 

Mr. Keith Sturgill, P.O. Box 313, Ermine KY 41815 

(Certified Mail) 

J. Miller, Esq.r Wyatt, Tarrant & Combs Lexington 

Financial Center, 250 West Main Street, Lexington, KY 40507 

(Certified Mail) 

I 

1822 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 8 

DRUMMOND COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

199l 

CONTEST PROCEEDINGS 

Docket No. SE 91-10-R 

Citation No. 3020151; 10/4/90 

Docket No. SE 91-11-R 

Citation No. 3020153; 10/4/90 

Mine I.D. 01-00821 

DECISION ON REMAND 

Before: Judge Weisberger 

On January 14, 1991, I issued a Decision with regard to 

these consolidated cases and, with regard to Docket 91-10-R, 

found inter alia that the violation cited therein was not the 

result of Drummond's unwarrantable failure. On 

September 20, 1991, the Commission vacated the finding of no 

unwarrantable failure, and remanded the matter for 

reconsideration of the issue of Drummond's unwarrantable failure. 

(Drummond Company Incorporated, 13 FMSHRC , Docket Nos. 

SE 91-10-R and SE 91-11-R, slip op., September 21, 1991). on 

September 25 1991, arrangements were made by the undersigned to 

convene a telephone conference call with counsel of both parties 

on October 2; 1991. On October 2, 1991, the telephone conference 

call was held, and the parties were given an opportunity to 

submit a brief with regard to the issues raise by the 

Commission's remand. Time was allowed until October 21, 1991, 

for the parties to submit their briefso Each party filed its 

submission on October 21? 1991, and these were received by the 

Commission on October 24, 19910 

In vacating the finding of no unwarrantable ,failure that I 

made in my initial Decision, and remanding for reconsideration, 

the Commission provided as follows: 

On remand, the judge, in determining whether the 

violation arose as a result of Drummond's unwarrantable 

failure, should weigh the evidence in light of 

Drummond's actions in the context that it had reason to 

know of the accumulations, not in the context of actual 

knowledge. 
On remand the judge should also consider whether 

Drummond's mitigation efforts were sufficient to deal 

effectively with the accumulation problems given the 

undisputed evidence that the belt was actually running 

in contact with the accumulations and over a portion of 

the metal frame where a roller was missing, and whether 

the miner could have completed the necessary abatement 

in an expeditious manner. He should consider these 

efforts in light of his pervious findings that Drummond 

lacked due diligence in inspecting for accumulations 

that accumulations remained during preshift 

examinations. (Drummond, supra, slip op., at 8) 

In compliance with the directives of the Commission to 

reconsider Drummond's actions with regard to the issue of its 

unwarrantable failure, I note the Commission's finding, "··· that 

Drummond knew or had reason to know of the accumulations." 

(Drummond, supra, slip op., at 7). Also, I take cognizance that 

in its directive to consider the sufficiency of Drummond's 

mitigation efforts to deal effectively with the accumulation 

problems, the Commission place'd emphasis upon ". . • the undisputed 

evidence that the belt-was actually running in contact with the 

accumulations and over a portion of the metal frame where a 

roller was missing, •••• " (Drummond, supra at 8) Further, the 

Commission directed consideration of "whether the miner could 

have completed the necessary abatement in an expeditious manner." 

(Drummond 9 s supra slip op., at 8). Evidence adduced at the 

hearing, summarized in my initial Decision (13 FMSHRC at 74), 

established that Drummond made "some efforts to clean up the 

accumulation." (13 FMSHRC 74). In this connection Capps who was 

present at the time, indicated that a miner who had been assigned 

by Don Clark, the evening foreman, to shovel on the beltline 

started to do this work at the beginning of the shift on 

October Capps also indicated that he (Capps) was involved in 

'::he accumulations, and that it took approximately 20 

to completely remove them. However, I note that the 

miner assigned to shovel cleaned areas under the belt, (Tr.234) 

but there is no evidence that any cleaning was performed under 

the and take-up rollers. In order to clean these area it 

necessary first to shut off the belt, and remove certain 

Neither of these actions had been taken prior to the 

issuance Deason of the citation at issue. Furtherv Busby 

test.if 1 in essence, that although Clark informed him that he 

fClark) assigned a miner to shovel in the area, Clark told him 

that he 11 ••• turned him (the miner doing the shovelling) loose and 

let him go off the beltline to another area.'° (Tr. 328) Also, 

Busby, who was the evening shift safety inspector and was 

responsible for making daily inspections, indicated that normally 

he would have had the accumulation inside the guarded area 

corrected a few hours later during the owl shift (Tr. 377-378). 

Hence, the evidence indicates that it is doubtful that the miner 

could have completed the necessary abatement in an "expeditious 

1824 
manner". Also, as directed by the Commission, upon 

reconsideration the mitigation efforts by Drummond are 

reconsidered in light of my previous findings that"··· Drummond 

lacked diligence in inspecting for accumulations and that 

accumulations remained during preshift examinations". {Drummond 

supra, slip op., at 8). 

Therefore for all the above reasons, upon reconsideration, 

and following the directives of the Commission, I conclude that 

it has been established that the violation herein resulted from 

Drummond's unwarrantable failure. 

Distribution: 

/ /? . 

_ff~,, (...__, - Avram Weisberger 

Administrative Law Judge 

William Lawson, Esq.,. Office.of th~ Solicitor, U.S. Department of 

Labor, Suite 201, 2015 Second Avenue North, Birmingham, AL 35203 

(Certified Mail) 

David M. smith, Esq., Maynard, Cooper, Frierson and Gale, 1901 

6th Avenue North, 2400 AmSouth/Harbert Plaza, Birmingham, AL 

35203-2602 (Certified Mail) 

nb 

1825 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

CONSOLIDATION COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

NOV 1 5 1991 

. . 

CONTEST PROCEEDING 

Docket No. WEVA 91-145-R 

Citation No. 3315925; 1/22/91 

Arkwright No. 1 Mine 

Mine ID 46-01452 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 91-1597 

A.C. No. 46-01452-03783 

Arkwright No. 1 Mine 

DECISION 

Appearances: Walter J. Scheller III, Esq., Consolidation Coal 

Company, Pittsburgh, Pennsylvania for 

Consolidation Coal Company; 

Before: 

Charles M. Jackson, Esq., U.S. Department of 

Laboru Office of the Solicitor, Arlington, 

Virginia for U.S. Department of Labor. 

Judge Weisberger 

.. 

These cases are before me based on a petition for assessment 

of civil penalty filed by the Secretary (Petitioner) alleging 

violations by the operator (Respondent) of various mandatory 

safety standards set forth in volume 30 of the Code of Federal 

Regulations. Pursuant to notice the cases were scheduled for a 

hearing, and were subsequently heard in Morgantown, West Virginia 

on October 9, 1991. At the commencement of the hearing counsel 

indicated that the issues raised by Citation Nos. 3315924, 

3308078, and 3307876 were resolved by a settlement that had been 

agreed to by the parties. 

On October 25, 1991, Petitioner filed a Motion to Approve 

Settlement with regard to these citations. In its motion, 

Petitioner indicates that Respondent has agreed to pay $667, the 

full amount which had been proposed by Petitioner as a penalty 

for the violations alleged in these citations. I have considered 

1826 
the representations set forth in Petitioner's Motion to Approve 

settlement, and I conclude that the proffered settlement is 

appropriate under the criteria set forth in Section llO(i) of the 

Federal Mine Safety and Health Act of 1977 (the Act) • 

On October 9, 1991, at .the hearing concerning Citation 

No. 3315925, subsequent to the conclusion of Respondent's case, 

Petitioner requested a continuance in order to respond to certain 

aspects of the testimony adduced by certain of Respondent's 

witness. The motion was granted, and the parties were granted 

until November 6, 1991, to engage in discovery and to present 

additional testimony. In its motion to approve settlement, 

Petitioner indicates that a settlement has been reached between 

the parties with regard to Citation No. 3315925. In essence, 

Petitioner represents that subsequent to an investigation into 

the facts of the violation, the evidence is not likely to show "a 

reasonable likelihood of serious injury existed if normal mining 

operations had continued", and accordingly it agrees that the 

facts do not set forth a conclusion that the violation cited was 

significant and substantial. This agreement is consistent with 

the evidence presented at the·hearing on October 9, 1991. In 

addition, Petitioner 1ndicates that the degree of Respondent's 

negligence is only low because of the existence of considerable 

mitigating circumstances. The representations in the Motion are 

consistent with the evidence presented at the hearing on 

October 9. In its motion, Petitioner indicates that the parties 

proposed a reduction in penalty from $213 to $150 for this 

violation. 

I have considered the representations submitted in this 

motion, along with the evidence adduced at the hearing on October 

9, 1991 and I conclude that the proffered settlement is 

appropriate under the criteria set forth in section llO(i) of the 

Acto 

Wherefore it is ORDERED that the motion for approval of 

settlement is granted. It is further ORDERED that: (1) 

Citation No. 3315925 is modified to allege a violation that it is 

not significant and substantial, and which reflects a low degree 

of negligence on the part of Respondent; (2) Respondent is to 

abide by the terms and conditions agreed to by the parties, and 

defined in the motion to approve settlement; (3) Respondent shall 

pay a total penalty of $817 within 30 days of the date of this 

decision" 

.(;_- Avram Weisberger 

Administrative Law Judge 

1827 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280. 1244 SPEER BOULEVARD 

DENVER, CO 80204 

NOV 18 1991 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA), 

Petitioner 

v. 

PITTSBURG & MIDWAY COAL 

MINING COMPANY, 

Respondent 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 91-12 

A.C. No. 29-00845-03537 

York Canyon Surface Mine 

Appearances: Ernest Burford, Esq., Office of the Solicitor, 

U.S. Department of Labor, Dallas, Texas, 

for Petitioner; 

John w. Paul, Esq., Englewood, Colorado, 

for Respondent. 

Before: Judge Cetti 

This case is before me upon a petition for assessment of 

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

and Health Act of 1977 0 30 u.s.c. § 801 et-~ the "Act". The 

Secretary of Laborf on behalf of the Mine Safety and Health Administrationv (MSHA), charges the operator the York canyon 

Surface Mine with two violations of mandatory regulatory standards, 30 C.F.R. § 77.2058 and 30 C.F.R. § 71.101. 

The operator filed a timely answer contesting the alleged 

violationsu and the appropriateness of the proposed penalties. 

Pursuant to noticeu a hearing on the merits was set before 

me on September 19u l99lu along with other cases involving the 

same parties and attorneys" 

Stipulations 

At the hearing, the parties negotiated and read into the 

record the following stipulations: 

1. The Pittsburg and Midway Coal Company is engaged in the 

mining and selling of coal in the United States and its mining 

operations affect interstate commerce. 

1828 
2. Pittsburg and Midway Coal Company is the owner and 

operator of York Canyon surface mine, MSHA ID No. 29-00845. 

3. Pittsburg and Midway Coal Company is subject to the jurisdiction of the Federal Mine Safety and Health Act of 1977, 30 

U .s.c. § 801 et .~ 

4. The administrative law judge has jurisdiction in this 

matter. 

5. The subject citation was properly served by a duly authorized representative of the Secretary upon an agent of Respondent on the date and place stated therein and may be admitted into evidence for the purpose of establishing its issuance, and not 

for the truthfulness or relevancy of any statements asserted 

therein. 

6. The exhibits to be offered by Respondent and the Secretary are stipulated to be authentic, but no stipulation is made 

as to their relevance or truth of the matters asserted therein. 

7. The proposed penalty will not affect the operator's 

abilities to remain in business. 

8. The operator demonstrated good faith in abating the 

violations. 

9. Pittsburg and Midway Coal Company is a large operator of 

a coal mine with 600,000 tons of production in 1990. A certified 

copy of the MSHA assessed violation history accurately reflects 

the history of this mine for the two years prior to the date of 

the ci ta ti on. 

After entering the stipulations in the record, the parties 

while off the record negotiated and reached a settlsnent of all 

issues. The parties on the record stated that upon the basis of 

the new evidence received the day of the hearing, the Petitioner 

agreed and moved to delete the S&S designation in Citation No. 

3241483 and to reduce the proposed penalty to $80. 

With respect to Citation No. 3241318, the S&S characterization of the citation had previously been removed at conference 

and the parties agreed to reduce the penalty to $317.25. 

After careful review and consideration of the pleadings, 

arguments, and submissions in support of the proposed settlement 

1829 
of this case, I conclude and find that the proposed settlement 

disposition is reasonable, appropriate, and in the public interest. Accordingly, the settlement agreement is approved. 

ORDER 

1. Citation Nos. 3241483 and 3241318 are modified to allege 

violations that are not significant and substantial and, as so 

modified both citations are AFFIRMED. 

2. Respondent SHALL PAY TO MSHA a civil penalty of 

$397.25 within thirty C30) days of this decision. 

Distribution: 

Aug st F. Cetti 

Administrative Law Judge 

Michael Ho Olverau Esq.p Office of the Solicitorv U.So Department 

of Laboru 525 Griffin Street, Suite 501, Dallas, TX 75202 

(Certified Mail) 

John W. Paul, Esq., PITTSBURG & MIDWAY COAL MINING COMPANY, 6400 

South Fiddler's Green Circle, Englewood, CO 80111-4991 

(Certified Mail) 

Mro Robert Butero, International Health and Safety Representative 

for UMWA District 13, 228 Lea Street, Trinidad, CO 81082 

(Certified Mail) 

sh 

1830 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

NOV 1 8 1991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

A SA RCO, INCORPORATED, 

Respondent 

Docket No. WEST 91-113-M 

A.C. No. 05-00516-05545 

Black Cloud Mine 

Leadville Unit 

DECISION 

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

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

for Petitioner; 

Earl K. Madsen, Esq., BRADLEY, CAMPBELL, CARNEY & 

MADSEN, Golden, Colorado, 

for Respondent. 

Before: Judge Lasher 

In this proceeding the Secretary of Labor ( MSHA) seeks 

assessment of penalties for four violations (described in four 

Citations) pursuant to Section llO(a) of the Federal Mine Safety 

and Heal th Act of 1977 u 30 US.C. § 820 Ca) (1977). 

Upon commencement of hearing in Leadville, Colorado, on 

October 22, 1991, the parties concluded settlement of the entire 

matter calling for modification and reduction of penalty as to 

two of the Citations and payment in full of MSHA's proposed penalties for the remaining two Citations. The settlement was proposed on the record at the hearing and my bench decision approving such appears in the transcript and is here AFFIRMED. The 

terms of the agreed resolution (including the two modifications) 

and my assessment of penalties appear both on the record and in 

the Order effectuating the settlement which follows: 

ORDER 

1. Citations numbered 2643174 and 2643176 are MODIFIED 

to change paragraph 10 B thereof pertaining to "Gravity" from 

"Fatal" to "Lost Workdays or Restricted Duty," and are otherwise 

AFFIRMED. 

1831 
2. Respondent, if it has not previously done so, SHALL 

PAY to the Secretary of Labor within 40 days from the date of 

this decision the total sum of $270.00 as and for the civil penal ties here assessed as follows: $115.00 each for Citations numbered 2643174 and 2643176 and $20.00 each for Citations numbered 

3450558 and 3452313. 

Distribution: 

~~:.~,-C ·c:7'- fr,.<!'&:::/' ,,,!f. 

Michael A. Lasher, Jr. 

Administrative Law Judge 

Robert Ao Murphyv Esq.v Office of the Solicitoru U.S. Department of Laborv 1585 Federal Office Buildingu 1961 Stout Streetv 

Denveru CO 80294 (Certified Mail) 

Earl K. Madsen, Esq., BRADLEY, CAMPBELL, CARNEY & MADSEN, 1717 

Washington Avenueu Golden, CO 80401-1994 (Certified Mail} 

Mr. George Zugelu ASARCO, INC.v P.O. Box 936, Leadville 8 CO 80461 

(Certified Mail) 

ek 

1832 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

NOV J 8 1991 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MENDISCO MINING, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 91-230-M 

A.C. No. 05-01780-05503 

September Morn 

DECISION 

Appearances: Margaret A. Miller, Esq., Office of the Solicitor, 

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

for Petitioner. 

Before: Judge Lasher 

This matter arises upon the filing of a proposal for penalty 

by the Petitioner (MSHA) on April 15, 1991, seeking assessment of 

civil penalties ($200 each) against Respondent for four violations described in four Citations which were issued pursuant to 

Section 104(a) of the Federal Mine Safety and Health Act of 1977, 

30 UoSoCo § 815(d) (1977) o 

At the hearing in this matter in Grand Junction, Coloradof 

on October 24q 1991 0 Petitioner, as above indicated, was represented by legal counsel. Respondent, which the record shows 

received actual notice of the hearing (a Postal Service green 

card attached to the notice of hearing in the Commission 1 s official case file r lects its receipt of the notice of hearing by 

certified mail on September 17 0 1991), neither appeared nor 

advised the presiding Judge or counsel for Petitioner of its 

intent not to appear. Indeed, it clearly appears that Respondent 

repeatedly ignored various orders of this tribunal and efforts of 

Petitionerijs counsel to communicate with it. 

At hearing, a full exposition of Respondent 1 s repeated failures was made and after determination of the facts and examination of the case file, it was determined that: 

1. Respondent had abandoned its position and interest in 

this proceeding~ 

2. Respondent had become incommunicado1 and 

1833 
3. Respondent had failed to appear at the hearing, even 

though it had received more than adequate notice and despite 

efforts of counsel (at my direction) to personally contact it 

regarding its intentions. 

Accordingly, by decision issued from the bench on the record, the default of the Respondent was entered and the penalties 

initially proposed by MSHA were ordered assessed as final. That 

decision is here AFFIRMED. 

ORDER 

Respondent SHALL within 3 0 days from the date of this 

decision PAY to the Secretary of Labor the total sum of $800 

as and for the civil penalties previously assessed ($200 each for 

Citations numbered 3631073, 3631077, 3631078, and 3631075). 

Distribution: 

·-: ,., 

.~ - ,: . ' , ,£,,..,,'. //, ~'/ i'/!:~4'd:r--·fd, ~.-:~/;;; Michael 'Ii,. Lasher, Jr. 

Administrative Law Judge 

Margaret Ao Millerv Esq.v Office of the Solicitorv U.S. Department of Laborv 1585 Federal Office Buildingv 1961 Stout Streetv 

Denverv CO 80294 (Certified Mail) 

Marcy Mendiscov MENDISCO BROTHERS MINING, P.O. Box 24, Naturita, 

CO 81422 (Certified Mail) 

ek 

1834 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 1 9 l.991 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

DECISION 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEVA 91-109 

A. C. No. 46-01452-03756 

Docket No. WEVA 91-138 

A. C. No. 46-01452-03765 

Arkwright No. 1 Mine 

Appearances: Charles M. Jackson, Esq., Office of the Solicitor, 

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

for the Secretary; 

Walter J. ScheJ:er III, Esq., Consolidation Coal 

Company, Pittsburgh, Pennsylvania, for the 

Respondent. 

Before: Judge Maurer 

These consolidated cases are before me based upon petitions 

for assessment of civil penalty filed by the Secretary alleging 

violations of various mandatory standards set forth in Volume 30 

of the Code of Federal Regulations. 

Pursuant to a notice of hearing, these cases were heard on 

June 20, 1991, in Morgantown, West Virginia. At that hearing, 

the parties proposed to settle two of the citations at issue in 

Docket No. WEVA 91-138. The motion requested approval of the 

respondent 1 s agreement to pay $213, the full amount of the 

proposed penaltyr for Citation No. 3307843. The motion also 

requested approval of the respondent's agreement to pay $128 of 

the proposed civil penalty of $213 for Citation No. 3307844, as 

well as the issuance of an order modifying this citation to a 

non- 11 significant and substantial" violation. I granted the 

motion on the record, based on the Secretary's representations 

and the criteria contained in Section llO(i) of the Mine Act. 

The terms of this settlement motion will be incorporated into my 

order at the end of this decision. 

There remained for trial three Section 104(a) citations: 

Citation Nos. 3307841 and 3307842 contained in Docket No. 

WEVA 91-138 and assessed for $213 each; and Citation No. 3314450, 

contested in Docket No. WEVA 91-109 and also assessed for $213. 

1835 
Both parties have filed post-hearing proposed findings and 

conclusions and/or briefs, which I have considered along with the 

entire record in making the following decision. 

Docket No. WEVA 91-109 

citation No. 3314450 

This citation alleges a "significant and substantial'' 

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

§ 77.505 1

/ and charges as follows: 

Insulated bushings were not provided where the power 

wires entered the metal fitting of the control box on 

the No. 8 jitney operating in the yard area. 

The operator does not contest the existence of the violation 

of the cited standard in this instance, but rather submits that 

the citation was improperly designated as being "significant and 

substantial." 

The No. 8 jitney is an electrically powered rail car that 

runs as a trolley on the 300 volts direct current it receives 

from the trolley wire. The cited control box was located 

directly in front of the jitney operator, slightly beyond his 

knees and reaching at most to the height of the operator's knees. 

Inspector Baniak noted that the operator of the jitney that day 

was a mine foreman. Accordingly, he concluded that management 

knew or should have known of the violative condition because the 

wires were only 11 a couple of inches away from the man's knee and 

his hands," and he therefore found a moderate degree of 

negligence on the part of the operator. 

A ''significant and substantial" violation is described in 

section l04(d) (1) of the Mine Act as a violation "of such nature 

as could significantly and substantial 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. 11 Cement Division, 

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

1

/ 30 C.F.R. § 77.505 provides as follows: Cables shall 

enter metal frames of motors, splice boxes, and electric 

compartments only through proper fittings. When insulated wires, 

other than cables, pass through metal frames, the holes shall be 

substantially bushed with insulated bushings. 

1836 
In Mathies Coal co., 6 FMSHRC 1, 3-4 (January 1984), the 

commission explained its interpretation of the term "significant 

and substantial" as follows: 

In order to establish that a violation of a mandatory 

safety standard is significant and substantial under 

National Gypsum the Secretary of Labor must prove: (1) 

the underlying violation of a mandatory safety 

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

measure of danger to safety-contributed to by the 

violation; (3) a reasonable likelihood that the hazard 

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

reasonable likelihood that the injury in question will 

be of a reasonably serious nature. 

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

1129, the Commission stated further as follows: 

We have explained further that the third element of the 

Mathies formula "requires that the Secretary establish 

a reasonable likelihood,.that the hazard contributed to 

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

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

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

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

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

must be significant and substantial. U.S. steel Mining 

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

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

(July 1984) . 

The Secretary contends that the hazards presented by the 

violation, i.e., the enhanced measure of danger to safety, are 

electrical shock and burn injuries. Inspector Baniak opined that 

there was a 11 great possibility" that such a shock and burn hazard 

could occur and that a serious injury could result because the 

vibration of the jitney would cause vibration of the wires, which 

would in turn wear through the wire at the two metal areas at the 

end of the connections or where the wire enters the control box. 

He further testified that the insulation on these wires was of 

the solid rubber type; which easily becomes bare when rubbed 

against metal through vibration. Basically, he was concerned 

that a wire would, or at least could become bare and create an 

electric shock or burn hazard that would be reasonably likely to 

result in an injury that would in turn result in at least lost 

work days or restricted duty. 

However, the Secretary must also establish a reasonable 

likelihood that the hazardous condition will eventuate in the 

first instance. There is only a shock and or burn hazard the 

wire becomes bare. It was not bare at the time the inspector 

cited it, so the Secretary bears the burden of proving that there 

1837 
was a reasonable likelihood that it would become so with 

continued normal usage in the mining operation. This burden has 

not been carried. The inspector's opinion in this regard is 

grounded more in speculation than in fact. He admitted on crossexamination that the two wires in question come straight out of 

the bottom of the control box, and that there was a lot of slack 

in the wires; they were dangling loose. He also observed that 

they were not touching the metal frame. He further admitted that 

he has not driven this jeep and does not know how much the 

control box vibrates, even through he knows the jitney itself 

"vibrates very much." My reading of the inspector's testimony as 

a whole is that he moved directly from the vibration occurring on 

the jitney generally to the shock hazard of a bare wire without 

adequately considering how the wire that was then insulated was 

going to get bare in the first place. 

I therefore find that the instant violation does not meet 

the "S&S" criteria because it is unlikely that any injury to 

anyone would occur as a result of this violation, and the 

citation will be so modified. 

In assessing a civil penalty in this case, I have considered 

the foregoing findings and conclusions and the requirements of 

section llO(i) of the Act. I concur with the inspector's 

negligence finding of "moderate." Under these circumstances, I 

find that a civil penalty of $100 is appropriate. 

DOCKET NO. WEVA 91-138 

Citation No. 3307841 

This citation alleges a "significant and substantial" 

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

§ 77ol802(a) 2

/ and charges as follows: 

The energized trolley wire was not guarded for 

approximately a 6 foot distance at the first cut-out 

switch near the rotary dumps where locomotives are 

coupled to empty mine cars. 

At 8~55 a.m., on November 27r 1990, Inspector Baniak was in 

the area of the rotary dump facility conducting a regular 

inspection at respondent's Arkwright No. 1 Mine when he noticed 

an area of unguarded trolley wire, approximately 6 feet in 

2/ 30 C.F.R. § 77.1802(a) provides as follows: Trolley 

wires, trolley feeder wires, and bare signal wires should be 

adequately grounded: 

(a) At all points where men are required to work 

or pass regularly under the wires. 

1838 
length, and approximately 25 feet from the dump building in the 

direction of the mine entrance. Because he observed a motorman 

working under the unguarded trolley wire, he issued the subject 

citation on the spot. 

At the time, the motorman was turning the trolley pole in 

preparation to reverse his direction and go back into the mine. 

In order to reverse the direction of travel of the trolleys used 

at the Arkwright No. 1 Mine, the trolley pole must be reversed so 

that the harp at the end of the pole will be at an angle toward 

the rear of the trolley. 

After conducting a mini-investigation into the subject, the 

inspector was able to ascertain that the procedure for bringing 

the coal up to the rotary dump. in the trolley cars, dropping off 

the cars, and pulling away the empties was repeated by the 

motormen from 14 to 20 times per day. Each time, the motormen 

passed under and stopped in the same general area where the 

trolley wire was unguarded. Because the number of cars pulled by 

the trolley locomotive at each point in its daily routine rarely 

fluctuated, the motormen regularly turned their trolley poles at 

the cited location where the trolley wire was unguarded. 

The importance of this fact seems lost on the respondent. 

Mr. Smith, who is a mine escort for respondent, sees no 

difference between turning the trolley pole in the cited area and 

turning the trolley pole in various other areas in the mine where 

the wire is unguarded. But the obvious difference is that the 

trolley pole is repeatedly turned in consistently the same area 

that was cited day after day, all day long (14 to 20 times per 

day) whereas elsewhere in the mine when the wire is unguarded the 

trolley pole is only irregularly changed. It is the frequency 

and regularity of the function that the mandatory standard speaks 

toe 

The inspector also noted on more than one occasion that 

while the motor operator turns the pole in the cited area, a 

substantial portion of his body is underneath the trolley wire 

with only approximately 18 inches of clearance. 

The motormen are not the only workers exposed to the 

electrical shock and resultant burns from inadvertently 

contacting the unguarded trolley wire, although they are clearly 

who the inspector had in mind when he issued the citation. 

Mr. Donald Keener, a mechanic for respondent and a safety 

committeeman, testified that he has personally observed greasers 

greasing the mining cars in the same general vicinity as the 

cited area for 2 weeks every spring, and another 2 weeks every 

fall. While Mr. Keener did clearly state that the greasers would 

not be standing under the unguarded trolley wire while they were 

1839 
greasing cars, he also testified that he has seen people walking 

under the wire in the cited area for reasons unknown to him, but 

nevertheless exposing themselves to the hazards presented. 

Accordingly, I find that a violation of 30 C.F.R. 

§ 77.1802(a) existed as the inspector cited it. Furthermore, I 

also believe the violation was "significant and substantial." In 

order to make an "S&S" finding, the Secretary must prove a 

violation, a discrete safety hazard, a reasonable likelihood that 

the hazard will result in injury, and that the injury will be of 

a reasonably serious nature. Mathies Coal Co., supra. 

Herein, I have already found the violation, and I accept as 

credible the opinion testimony of Inspector Baniak to the effect 

that the respondent's failure to provide a trolley wire guard at 

the cited location created an enhanced measure of danger to 

safety, i.e., electric shock or serious burns if inadvertent 

contact with the unguarded trolley was made. I also concur with 

his opinion that in the normal course of continued mining 

operations, it would be reasonably likely that a motorman would 

accidently contact the unguarded wire. The cited area is an 

active location, with motormen turning their trolley poles 

14 to 20 times per day at this particular spot. Finally, I take 

administrative notice that a shock or burn from a 300 volt wire 

could reasonably result in a serious injury if it in fact 

occurred. 

I also concur with the inspector that the appropriate level 

of negligence established by inference in the record is ordinary 

or moderate negligence. 

Considering the criteria in section llO(i) of the Act, I 

conclude that an appropriate civil penalty for the violation is 

$213v as originally proposed by the Secretaryo 

Citation Noo 3307842 

This citation alleges a "significant and substantial" 

violation of the mandatory 'standard found at 30 C.F.R. 

§ 7702023/ and charges as follows~ 

Dry coal dust (black in color) ranging up to 2 inches 

in depth was accumulated on structures throughout the 

second floor area under the Rotary Dump Facility. 

3

/ 30 C.F.R. § 77.202 provides as follows: Coal dust in the 

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

other facilities shall not be allowed to exist or accumulate in 

dangerous amounts. 

1840 
At 9:08 a.m., on November 27, 1990, Inspector Baniak entered 

the second floor of the rotary dump facility during the course of 

a regular "AAA" inspection at respondent's Arkwright No. 1 Mine. 

He observed very dusty conditions in the room, which measured 

approximately 30 feet by 30 feet, with dry coal dust throughout 

the area having accumulated up to 2 inches on the structures in 

the room. He measured the coal dust accumulations with a ruler, 

at the least at four locations, noting that it varied from less 

than 1 inch to 2 inches in depth and he concluded that, relying 

on his experience and demonstrations that he had observed, there 

was 20 to 30 times the amount of dust needed to actually cause an 

explosion or a flash burn. He also noted that coal dust is 

easily ignited if an ignition source is present and the dust is 

in suspension, and he testified that the dust was fine, black, 

and dry, and could easily be put into suspension by persons 

walking in the area. In this regard, he further noted that all 

persons, including management personnel, who desired to enter the 

bottom floor of the facility had to pass through the cited area. 

Furthermore, due to the placement of the facility, high on a 

hill, the coal dust accumulations could be placed in suspension 

by breezes and drafts passing.through the open grate ceiling. 

The ignition sources which the inspector identified were 

inter alia: lights, electrical components, switches, and welding 

that might be done in that ·area. 

The inspector opined that, because of the explodability of 

the coal dust accumulations and the amount of dust present, 

combined with the many potential ignition sources, it was "very 

reasonably likely" and "very possible" that the coal dust would 

be ignited during the ongoing mining process if the cited 

conditions had not been corrected. I concur in his analysis and 

find this violation established and furthermore agree with his 01 s&s uv special finding o Mathies, supra o 

The closer issue in this case that arose in connection with 

this citation is that of merger with another citation that was 

written 18 minutes earlier in the same dump facility citing the 

same section of the standards for accumulation of coal dust. The 

only difference being that the citations were written for two 

different floors of the facility¢ Citation Noo 3307540 is 

presently being contested in Docket No. WEVA 91-1550. 

Importantly, the inspector admitted that the only reason he did 

not include the second floor accumulations in Citation 

Noo 3307540 was because he found them a short time (18 minutes) 

after the accumulations on the top floor. He testified that 

while he would normally have issued only one citation for both 

floors, he did not on this occasion because of the lapse of time 

between discovery of the accumulations on the two floors. Even 

more importantly however, I find that inasmuch as the instant 

citation and its docket are not consoliqated for hearing or 

1841 
decision with citation No. 3307540 and its Docket No. WEVA 91-

1550, and the penalty for Citation No. 3307540 has not been 

adjudicated or paid, Citation No. 3307842 is properly before me 

for disposition on its own merits. 

Considering the criteria in section llO(i} of the Act, I 

conclude and find that an appropriate civil penalty for the 

violation is $213, as originally proposed by the Secretary. 

ORDER 

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

IT IS ORDERED: 

1. citation Nos. 3307843, 3307841, and 3307842 ARE 

AFFIRMED. 

2. Citation Nos. 3307844 and 3314450 ARE MODIFIED to delete 

the significant and substantial finding and, as modified, ARE 

AFFIRMED. 

3. Consolidation-coal Company shall pay a civil penalty in 

the amount of $867 within 30 days of the date of this decision. 

urer 

ative Law Judge 

Distribution: 

Charles M. Jackson, Esq., Office of the Solicitor, U. s. 

Department of Laborv 4015 Wilson Boulevard, Room 516, Arlington, 

VA 22203 (Certified Mail) 

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

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

dcp 

1842 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE U..W JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 2 0 1991 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

LAMBERT COAL COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDINGS 

Docket No. VA 91-565 

A.C. No. 44-01656-03530D 

Docket No. VA 91-566 

A.C. No. 44-05654-035390 

Docket No. VA 91-567 · A.C. No. 44-05210-03543D 

Docket No. VA 91-568 

A.C. No. 44-05831-035520 

Docket No. VA 91-569 

A.C. No. 44-06582-035070 

Mines 14, 43, 44, 47, 48 

DECISION APPROVING SETTLEMENT 

Before: Judge Broderick 

On November l, 1991, the Secretary and Respondent filed a 

motion to approve a seLtlement in the above cases. The above 

five dockets contain 10 alleged violations of 30 C.F.R. 

§ 70.209(b) in each of which the Secretary alleged that 

Respondent altered the weight of a respirable dust sample 

submitted by Respondent as part of its sampling requirements. 

The Secretary contends that the violations resulted from a 

deliberate act; the operator denies that it deliberately tampered 

with or altered any of its dust filter media. 

Each violation was originally assessed at $1100, for a total 

penalty of $11,000. The settlement proposes that each penalty be 

reduced to $825, for a total penalty of $8250, the reduction 

based on a dispute between the parties as to the degree and 

existence of negligence. 

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. 

1843 
Accordingly, IT IS ORDERED: 

1. The settlement agreement is APPROVED. 

2. Respondent shall within 30 days of the date of this 

order pay the sum of $8250 as a civil penalty for the alleged 

violation. 

Distribution: 

)/f-,(,vG:; A-/ ::;;z,d24/t,, ~;{, ;J James A. Broderick 

Administrative Law Judge 

Douglas N. White, Esq., Patrick Zohn, Esq., U.S. Department of 

Labor, Office of the Solicitor, 4015 Wilson Blvd., Arlington, VA 

22203 (Certified Mail) 

W. Challen Walling, Esq., Penn.T Stuart, Eskridge & Jones, P.O. 

Box 2009, Bristol, VA 24203 (Certified Mail) 

slk 

1844 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 2 0 1991 

WYOMING FUEL COMPANY 1 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 1 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

WYOMING FUEL COMPANY, 

Respondent 

CONTEST PROCEEDINGS 

Docket No. WEST 91-365-R 

Citation No. 9858159; 4/4/91 

Docket No. WEST 91-366-R 

Citation No. 9858160; 4/4/91 

Docket No. WEST 91-367-R 

citation No. 9858161; 4/4/91 

Docket No. WEST 91-368-R 

Citation No. 9858162; 4/4/91 

Golden Eagle Mine 

Mine I.D. 05-02820 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 91-519 

A.C. No. 05-02820-035890 

Golden Eagle Mine 

DECISION APPROVING SETTLEMENT 

ORDER OF DISMISSAL 

On October 28, 1991, the Secretary of Labor (Secretary) and 

Wyoming Fuel Co. (Wyoming) filed a Motion to Approve Settlement 

and to Withdraw Notice of Contest. The Secretary asserts that 

the violations alleged resulted from a deliberate act of 

tampering with dust filter media. Wyoming denies that it 

deliberately tampered with or altered any of the dust filter 

media. The parties agree to a settlement wherein Wyoming agrees 

to pay the amount of the proposed civil penalties, $5200 for 4 

alleged violations, within 30 days of the entry of an order 

approving settlement. The settlement agreement provides that it 

shall not be deemed an admission of or used for any purpose 

except for civil matters arising under the Act. It is not to be 

used in any criminal or private civil litigation. However, the 

1845 
Secretary is not precluded from including the citations in the 

operator's history of violations and considering such violations 

in proposing civil penalties pursuant to 30 u.s.c. § 820(i). 

Wyoming agreed to withdraw its notices of contest. 

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, IT IS ORDERED: 

1. The settlement reached between the parties is APPROVED. 

2. Wyoming shall, within 30 days of the date of this order, 

pay the sum of $5200 as civil penalties for the violations 

alleged in the four citations contested herein. 

3. The contest proceedings, Docket Nos. WEST 91-365-R 

through WEST 91-368-R are DISMISSED. 

d ,. 

j 

I I i 

. . t' . .. .., • "! /I _f//i/1;1\--i. '.::> . /ff v v rf&-ruJ(., 

() James A. Broderick 

· Administrative Law Judge 

Distribution: 

Douglas N. White, Esq., U.S. Department of Labor, Office of the 

Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified 

Mail) 

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

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

slk 

1846 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 2 0 1991 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

KOCH CARBON, INC. - KOCH 

RAVEN DIVISION, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. VA 91-564 

A.C. No. 44-01717-035660 

Raven No. 1 Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Broderick 

on November 1, 1991, the Secretary and Respondent filed a 

motion to approve a settlement in the above case. The docket 

involves a single alleged violation of 30 C.F.R. § 71.209(b) in 

which the Secretary alleged that Respondent altered the weight of 

a respirable dust sample submitted by Respondent as part of its 

sampling requirements. The Secretary states that the violation 

resulted from a deliberate act; the operator denies that it 

deliberately tampered with or altered any of its dust filter 

media. 

The motion states that the parties agree to settle the case 

by reducing the proposed penalty from $1200 to $960 based on a 

dispute between the parties as to the degree and existence of 

negligence. 

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, 

1847 
Accordingly, IT IS ORDERED: 

1. The settlement agreement is APPROVED. 

2. Respondent shall within 30 days of the date of this 

order pay the sum of $960 as a civil penalty for the alleged 

violation. 

//. ~/I / ! './'-" I ~ "(/ j t'v-vJt.L~ .· · ... 7vvY1J-€-vuk._ 

/, James A. Broderick 

l// Administrative Law Judge 

Distribution: 

Douglas N. White, Esq., U.S. Department of Labor, Office of the 

Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified 

Mail) 

W. Challen Walling, Esq., Pennr Stuart, Eskridge & Jones, P.O. 

Box 2009, Bristol, .VA 24203 (Certified Mail) 

slk 

1848 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 2 7 1991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. WEVA 91-292 

A.C. No. 46-04370-03575 

v. 

Rowland No. 9 Mine 

CONSOLIDATION COAL COMPANY, 

Respondent 

Appearances: 

Before: 

ORDER OF DISMISSAL 

Roberts. Wilson, Esq., Office of the Solicitor, 

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

the Petitioner; 

Walter J. Scheller III, Esq., Consolidation Coal 

Company, Pittsburgh, Pennsylvania, for the 

Respondent. 

Judge Melick 

Petitioner in essence requests approval to now withdraw her 

Petition in the captioned case for the reason that upon further 

analysis she believes no violation of the cited standard has 

occurred. Under the circumstances herein, permission to withdraw 

is granted. 29 C.F.R. § 2700.11. The citation is accqrdingly 

vacated and this case therefo~e dismiss~d. / 

\\ ,/( \ I 

I.,,_,, \ f 

I ~' lA A/\ ~'\j\.;\ / \ 

Gary M';l:~k \ ~ \_, 

Administrativ~ Law Judge \ \ 

\ Distribution~ 

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

Labor, Ballston Towers #3, 4015 Wilson Boulevard, Room 516, 

Arlington, VA 22203 (Certified Mail) 

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

Plaza, 1800 Washington Road, Pittsburgh, PA 15241-1421 

(Certified Mail) 

/fb 

1849 

ADMINISTRATIVE LAW JUDGE OHDERS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 18 1991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

EL DORADO CHEMICAL COMPANY, 

Respondent 

Docket No. WEVA 91-1988 

A. C. No. 46-07178-03501 

Red Warrior Mine 

DECISION DENYING MOTION TO 

APPROVE SETTLEMENT 

Before: Judge Fauver 

This case is a petition for assessment of a civil penalty 

under § 105(d) of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § et ~ 

Petitioner has moved for approval of a settlement to reduce 

the alleged violation from "significant and substantial" to non-s&s 

and to reduce the penalty to $20. 

The Meaning of a "Significant 

and Substantial" Violation 

The Commission has held that a violation is "significant and 

substantial" if there is "a reasonable likelihood that the hazard 

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

serious nature. iu u. s. Steel Mining Co., Inc •• 7 FMSHRC 327 v 32.8 

(1985)' Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 1981)~ Mathies Coal Co., 6 FMSHRC 1, 3-4 (1984). This evaluation 

made in terms of "continued normal mining operations." u. s. 

Steel Mining Co., Inc .. 6 FMSHRC 1573, 1574 (1984). The question 

of whether a particular violation is significant and substantial 

must be based on the particular facts surrounding the violation. 

Texasgulf, Inc., 10 FMSHRC 498 (1988); Youghiogheny & Ohio Coal 

Company, 9 FMSHRC 1007 (1987). 

Analysis of the statutory language and the Commission's 

decisions indicates that the test of an S&S violation is a 

practical and realistic question whether, assuming continued mining 

operations, the violation presents a substantial possibility of 

resulting in injury or disease, not a requirement that the 

Secretary of Labor prove that it is more probable than not that 

1850 
injury or disease will result. An illustration of this point is 

u. s. Steel Mining Co. , Inc. , supra, in which the Commission 

affirmed an S&S finding by a Commission judge. the judge found 

that: 

* * * [A]n insulated bushing was not provided where the 

insulated wires entered the control box for a water pump. 

The insulation on the wires was not broken or damaged. The water pump's electrical system was protected by two 

fuses - one a 30 amp fuse on the cable, and one a 10-30 

amp control fuse inside the box. When it is operating, 

the pump vibrates, and the vibration could cause a cut in 

the insulation of the wire in the absence of a bushing. 

This could result in the pump to become the ground and, 

if the circuit protection failed. anyone touching the 

pump could be shocked or electrocuted. * * * [5 FMSHRC at 

1791 (1983); emphasis added.] 

As found by the judge, inJury from the missing-bushing violation could result if the insulation wore through to metal and 

the circuit protection system 'failed to operate. However, one may 

observe that circuit protection devices are not presumed to be 

"reasonably likely" to fail unless they are found to be defective. 

There was no finding of defective fuses in the u. s. Steel case. 

The violation presented a substantial possibility of injury, not 

proof that injury was more probable than not. The effective 

meaning of the Commission's term "reasonably likely to occur" as 

applied in cases such as U. S. Steel is to find an S&S violation if 

the violation presents a substantial and significant possibility of 

injury or disease, not a requirement that injury or disease is more 

probable than not. This meaning harmonizes with the statute, which 

does not use the phrase "reasonably likely to occur" or "reasonable 

likelihood" in defining an S&S violation, but states that an S&S 

violation exists if the "violation is of such nature as could 

significantly and substantially contribute to the cause and effect 

of a coal or other mine safety or health hazard" (§ 104(d) (1) of 

the Act; emphasis added). In contrast, the statute defines an 

"imminent danger" as "any condition or practice •.•. which could 

reasonably be expected to cause death or serious physical harm 

before [it] can be abated" 1 and expressly classifies S&S 

violations as less than imminent dangers. 2 

Proposed Settlement 

Citation 3503706 alleges an unsafe steering section on a truck 

Section J(j) of the 1969 Mine Act, unchanged by the Federal 

Mine Safety and Health Act of 1977. 

2 Section 104(d) (l) limits S&S violations to conditions that 

"do not cause imminent danger ••• " 

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used to haul explosives, in violation of 30 C.F.R. § 77.1606(c). 

The inspector observed that the steering section was loose and 

moving sideways about one-half inch. He concluded that this 

condition could cause the bolts to break, resulting in loss of 

steering capability, and that a serious vehicle accident was 

reasonably likely. 

The motion seeks to reduce the charge to non-S&S and the 

penalty to $20 on the grounds that: 

Because the driver of the truck regularly performs 

routine maintenance on the vehicle which includes 

tightening the bolts • • • and because the driver may 

have been able to feel the steering coming loose prior to 

any effect on the actual steering of the truck, a 

reasonable likelihood of serious injury did not exist if 

normal mining operations had continued. 

The motion misconstrues the term "normal mining conditions." 

This term refers to continued mining operations assuming the 

violation is not abated. It_would render the Act and safety and 

heal th regulations a- hollow mechanism if violations were to be 

redesignated as non-s&s violations on the ground that the operator 

might detect and correct the violation before an accident occurs. 

The proposed penalty of $20 trivializes the alleged violation, 

which the inspector found to be serious based on his on-site 

observations. 

ORDER 

The motion to approve settlement is DENIED. 

Distribution~ 

u)~~~v~ William Fauver 

Administrative Law Judge 

Patrick Lo Depace, Esq., Office of the Solicitor, U. s. Department 

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

(Certified Mail) 

Mr. David Jo Howerton, Field Manager, El Dorado Chemical Company, 

Po O. Box 27382, St. Louis, MO 63141 (Certified Mail) 

/fas 

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