DECEMBER 1989 

COMMISSION DECISIONS 

12-19-89 

12-20-89 

12-20-89 

Mid-Continent Resources, Inc. (Order) 

Westwood Energy Properties 

Beaver Creek Coal Company 

ADMINISTRATIVE LAW JUDGE DECISIONS 

12-04-89 Mettiki Coal Company 

12-05-89 Sec. Labor for Fred Bartley v. Adams Stone 

Corporation (Correction) 

12-05-89 Kelly Trucking Company 

12-06-89 Island Construction Company, Inc. 

12-06-89 Mid-Continent Resources, Inc. 

12-07-89 Appalachian Builders Corporation 

12-11-89 Tunnelton Mining Company 

12-11-89 O'Neal Machine & Repair 

12-14-89 Winston Madden v. Ronald Summers & Sumco 

12-14-89 Medusa Cement Company 

12-18-89 Rochester & Pittsburgh Coal Company 

12-18-89 Robert Simpson v. Kenta Energy and Roy 

Dan Jackson (Partial Decision) 

12-20-89 Energy Fuels Coal, Inc. 

12-20-89 Energy F.uels Coal, Inc. 

12-26-89 David Thomas v. Ampak Mining and George 

Issacs v. Ampak Mining 

12-26-89 Cyprus Emerald Resources Corp. 

12-29-89 California Portland Cement Company 

12-29-89 Joseph Delisio v. Mathies Coal Company 

ADMINISTRATIVE LAW JUDGE ORDERS 

11-17-89 

12-19-89 

12-27-89 

Blue Diamond Coal Company 

Rick Stevenson v. Beaver Creek Coal Co. 

Sanger Rock & Sand 

WEST 87-88 Pg. 2399 

PENN 88-42-R Pg. 2408 

WEST 88-145-R Pg. 2428 

YORK 89-28 Pg. 2435 

KENT 89-102-DM Pg. 2440 

CENT 89-13 Pg. 2441 

SE 89-95-M Pg. 2448 

WEST 88-230 Pg. 2456 

WEVA 89-112 Pg. 2520 

PENN 89-108 Pg. 2524 

WEVA 89-150 Pg. 2528 

KENT 89-62-D Pg. 2529 

SE 89-109-M Pg. 2531 

PENN 89-64-R Pg. 2535 

KENT 83-155-D Pg. 2543 

WEST 88-332 Pg. 2548 

WEST 89-28 Pg. 2550 

KENT 89-13-D Pg. 2552 

KENT 89-14-D Pg. 2552 

PENN 89-194 Pg. 2750 

WEST 88-243-M Pg. 2621 

PENN 89-8-D Pg. 2628 

KENT 89-258-R Pg. 2629 

WEST 89-130-D Pg. 2632 

WEST 88-275-M Pg. 2640 

DECEMBER 1989 

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

Secretary of Labor, MSHA v. Midwest Minerals, Inc., Docket No. CENT 89-67-M. 

(Judge Melick, November 1, 1989) 

Secretary of Labor, MSHA v. ASARCO, Incorporated, Docket Nos. SE 88-82-RM, 

SE 88-83-RM, SE 88-67-M. (Judge Weisberger, November 21, 1989) 

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

Buford Smith v. R.J.F. Coal Company, Docket No. KENT 88-201-D. (Judge 

Weisberger, October 24, 1989) 

Secretary of Labor, MSHA v. Consolidation Coal Company, Docket No. WEVA 89-52. 

(Judge Weisberger, November 15, 1989) 

Reconsideration was denied in Secretary of Labor v. Dillingham Construction, 

Docket No. SE 88-59-M, SE 89-23-M. (Commission denial on September 8, 1989) 

CO~.MISSION DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

December 19, 1989 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

and 

UNITED MINE WORKERS OF AMERICA 

v. 

MID-CONTINENT RESOURCES, INC. 

Docket No. WEST 87-88 

BEFORE: Ford B. Ford, Chairman; Backley, Doyle, and Lastowka, 

Commissioners 

ORDER 

BY THE COMMISSION: 

In this civil penalty proceeding arising under the Federal Mine 

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

or "Act"), the American Mining Congress ("AMC") and Mid-Continent 

Resources, Inc. ("Mid-Continent") filed petitions for discretionary 

review of a decision by Connnission Administrative Law Judge John Morris. 

10 FMSHRC 881 (July 1988)(ALJ). The Commission granted both petitions 

for review, briefing has been completed in the case, and oral argument 

is scheduled for December 21, 1989. After review was directed, the 

Secretary of Labor filed a motion seeking dismissal of the AMC's 

petition for review. In addition, ASARCO, Inc. ("ASARCO") filed a 

motion requesting leave to file an amicus curiae brief out of time in 

support of the AMC's and Mid-Continent's positions as to the merits of 

the case. For the reasons that follow, we grant the Secretary's motion 

to dismiss the AMC's petition for discretionary review but conclude 

that, under the circumstances, the AMC may continue its participation as 

an amicus curiae and may participate in the scheduled oral argument in 

this proceeding. We deny ASARCO's motion requesting leave to file an 

amicus curiae brief out of time. 

2399 
I. 

Background 

This proceeding arises from a citation issued to Mid-Continent by 

the Department of Labor's Mine Safety and Health Administration ("MSHA") 

on May 13, 1986, charging the operator with a violation of section 

103(f) of the Act, 30 U.S.C.§ 813(f). The citation alleged that on May 

13, 1986, Mid-Continent had denied Robert Butera, a designated 

representative of miners, access to Mid-Continent's Dutch Creek No. 1 

Mine near Redstone, Colorado, for purposes of accompanying an MSHA 

inspector on walkaround during the latter's inspection of the mine. 

About one month earlier, the United Mine Workers of America ("UMWA") had 

notified both MSHA and Mid-Continent, pursuant to the Secretary's 

regulations at 30 C.F.R. Part 40, that it had been designated by two 

employees at the Dutch Creek No. 1 Mine as these miners' representative 

under the Mine Act. 1/ The notification designated Mr. Butera as the 

specific representative of the miners. Shortly after issuance of the 

citation, the inspector issued a withdrawal order to Mid-Continent, 

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

Mid-Continent had continued to refuse Butera the right to accompany the 

inspector during inspection of the mine. 

On March 16, 1987, the Secretary filed a civil penalty petition 

against Mid-Continent in connection with the citation. Mid-Continent 

filed an answer and the matter was assigned to Judge Morris. In October 

1987, the judge granted the UMWA party status as an intervenor, and the 

AMC was permitted to appear as amicus curiae. On November 23, 1987, the 

Secretary filed a motion with the judge seeking to withdraw the civil 

penalty petition. The Secretary conceded that one of the two 

individuals who had signed the designation form was not an active miner 

at the time that the form was filed and, thus, that the designation did 

not comply with the requirements of 30 C.F.R. § 40.l(b) (~ n.1). In 

response to an order to show cause why the motion should not be granted, 

Mid-Continent opposed the Secretary's motion and moved for declaratory 

relief. Mid-Continent argued that a nominal number of employees should 

not be permitted under color of 30 C.F.R. Part 40 to designate as the 

miners' representative a union that did not also represent the employees 

for collective bargaining purposes under the National Labor Relations 

Act ("NLRA"). Mid-Continent contended that the Mine Act miners' 

representative process was being improperly manipulated to facilitate 

organizational activity for NLRA purposes. 

On July 1, 1988, the judge entered an order of dismissal in which 

he granted the Secretary's motion to withdraw the civil penalty 

petition, vacated the proposed penalty, denied declaratory relief, and 

dismissed the proceeding. 10 FMSHRC 881. The Commission received and 

granted petitions for discretionary review from both Mid-Continent and 

the AMC; which, as noted, had participated as amicus curiae below. The 

ll 30 C.F.R. § 40.l(b) defines "representative of miners" as "[a]ny 

person or organization which represents two or more miners at a coal or 

other mine for the purposes of the Act •... " 

2400 
AMC also f ~led a motion to consolidate the two petitions, which the 

Commission granted. Briefs of Mid-Continent and the AMC were received 

by the Commission on September 16, 1988. Opposing briefs of the UMWA 

and the Secretary were received by the Commission on November 1 and 7, 

1988, respectively. On November 7, 1988, the Secretary filed a motion 

to dismiss the AMC's petition for discretionary review and, on that same 

date, ASARCO filed a motion for leave to file an amicus curiae brief out 

of time. 

Intervenor UMWA has filed a response in support of the Secretary's 

dismissal motion, while the AMC and Mid-Continent have filed oppositions 

to the motion. The AMC and Mid-Continent support ASARCO's motion to 

file its amicus curiae brief, while the Secretary and the UMWA oppose 

it. We turn first to consideration of the Secretary's motion to dismiss 

the AMC's petition. 

II. 

AMC's Standing to Petition the Commission for Review 

Section 113(d)(2)(A)(i) of the Mine Act provides that "[a]ny 

person adversely affected or aggrieved by a decision of an 

administrative law judge, may file and serve a petition for discretionary review by the Commission ••.. " 30 U.S.C. § 823(d)(2)(A)(i) 

(emphasis added). The specific question presented is whether, in the 

circumstances of this case, the AMC is a "person adversely affected or 

aggrieved" by Judge Morris' decision and, hence, possessed of standing 

to petition for review of that decision. We answer that question in the 

negative. 

In our view, the Mine Act does not contemplate that any nonparty 

dissatisfied with a judge's decision is empowered to seek Commission 

review merely by virtue of such dissatisfaction and the fact that the 

Act uses the term "person" instead of "party" in section 113(d). We 

conclude that, in order to petition the Commission for review under 

section 113, an "adversely affected or aggrieved" nonparty must 

demonstrate a sufficiently direct and concrete interest in the 

proceedings below and show that the interest is adversely affected by 

the outcome of the proceedings. 

Our analysis begins with the language of the Mine Act and the 

general federal law of appeal. Section 113(d) uses the term "person" 

rather than "party" and the plain meaning of this terminology suggests 

that circumstances may obtain where a nonparty may petition the 

Commission for review of a judge's decision. Nothing in the text of 

section 113 or the scant legislative history on the subject specifically 

explains the intended scope of the language in question. However, 

viewing the Act as an integral whole, we perceive two prominent 

statutory themes that guide resolution of the issue. 

First, appeals to the Commission from judges' decisions pursuant 

to section 113(d) arise in an adjudicative context in which traditional 

adversarial litigation, conducted in a two-tiered administrative arena 

of trial-type hearings and discretionary review, is the vehicle for 

2401 
dispute resolution. Second, the Mine Act throughout mandates efficient 

and expeditious litigation and adjudication. Within this general 

framework, we discern no warrant for an interpretation of section 

113(d)'s review procedure that is out of line with normal litigation 

processes or that is likely to complicate or prolong the resolution of 

disputes under the Act. 

The general rule of federal appellate law is that only a litigant 

who was a party to the proceedings below and who is aggrieved by the 

judgment or order may appeal. lh.g., Hispanic Soc v. New York City, 806 

F.2d 1147, 1152 (2d Cir. 1986); United States v. LTV Corp., 746 F.2d 51, 

53-54 (D.C. Cir. 1984); SEC v. Lincoln Thrift Ass'n, 577 F.2d 600,.602 · 

(9th Cir. 1978). See generally 9 J. Moore, B. Ward & J. Lucas, Moore's 

Federal Practice Par. 203.06 (2d ed. 1988). This rule protects both the 

litigating parties' normal right to control the direction of litigation, 

including appeal, and judicial management of an efficient appellate 

process. The primary exception to this general rule is where a nonparty demonstrates a legally recognizable interest adversely affected by 

the trial court's judgment. !:.&.:_,Hispanic Soc., supra, 806 F.2d at 

1152. . . . . 

The AMC contends, however, that the Commission should apply to the 

administrative appellate review structure of the Act the "zone of 

interest" standing test developed by the Supreme Court in Clarke v. 

Security Indus. Ass'n, 479 U.S. 388 (1987), and Ass'n of Data Processing 

Service Organizations v. Camp, 397 U.S. 150 (1970). Stated simply, this 

test requires that, to establish standing to challenge agency action in 

the federal courts, a plaintiff must show injury in fact as a result of 

the action and that the interest sought to be protected is arguably 

within the zone of interests protected or regulated by the statute in 

question. !:...&.:_, Clarke; supra, 479 U.S. at 394-400. We find this 

approach inapposite in the context of section 113(d) of the Mine Act. 

As the AMC acknowledges in its response to the Secretary's 

dismissal motion, the zone of interest test was developed in the context 

of the judicial review provisions of section lO(a) of the APA, 5 U.S.C. 

§ 702. ~/ Section 702 addresses judicial review of agency action in the 

federal courts in the first instance, often in circumstances where such 

judicial review is the only available mechanism for challenge of agency 

action. See, ~, Data Processing, supra, 397 U.S. at 156-58. The 

test has been applied, for example, in contexts where the statute at 

issue specifically incorporates section 702 within its judicial review 

structure (~, Hazardous Waste Treatment Council v. Thomas, 885 F.2d 

918, 921 (D.C. Cir. 1989)); where there is no other avenue of judicial 

challenge to agency action, yet Congress did not intend to preclude 

judicial review (~, Data Processing, supra); and for a multiplicity 

~/ 5 U.S.C. § 702 states: 

A person suffering legal wrong because of agency 

action, or adversely affected or aggrieved by agency 

action within the meaning of a relevant statute, is 

entitled to judicial r~view thereof. 

2402 
of challenges in the first instance to agency legislative-type 

rulemaking actions (~, Calumet Indus. v. Brock, 807 F.2d 225 (D.C. 

Cir. 1986)). 

The AMC fails to recognize, however, the problems with incorporating these concepts into the section 113(d) administrative review 

setting. First, the Mine Act provides that "[e)xcept as otherwise 

provided in this Act, the provisions of sections .•. 701-706 of [the 

APA) shall not apply to" proceedings under the Act. 30 U.S.C. § 956. 

Section 113(d) of the Act does not otherwise incorporate section 702 of 

the APA into the administrative mechanism of the Act. Thus, the 

statutory basis underlying the zone of interest test is expressly 

excluded from the Mine Act. Second, section 702 of the APA concerns 

judicial review of agency action, not agency review of administrative 

law judge decisions. Third, many of the applications of the "zone of 

interest" principles have occurred in the legislative rulemaking arena. 

By their very nature, legislative rules, as opposed to adjudications of 

specific enforcement actions, often affect a universe of interested 

persons. 

In our judgment, allowing all nonparties that might satisfy a 

"zone of interest" test to appeal judge's decisions to the Commission 

would serve to strip the litigating parties of control of the litigation 

in question and encumber the Commission's adjudicative process with 

numerous appeals from a wide variety of persons, groups, or associations 

"interested" in the development of the law. Accordingly, we find the 

usual and general principles of federal appeal, summarized previously, 

to be a preferable guide to resolution of the question of nonparty 

administrative appeal under section 113(d) of the Mine Act. 

Applying these principles to the case at hand, the question is 

whether the AMC, a nonparty below, has shown a direct and concrete 

interest in this litigation and demonstrated that the outcome below has 

had an adverse impact on that interest. We stress at the outset that 

not every disagreement with a judge's decision amounts to a legally 

recognizable interest that is adversely affected. Rather, more 

substantial involvements such as a direct stake in the property or 

events that are the subject of the litigation, some' concrete involvement 

in the controversy.between the parties, or some direct effect of the 

judgment on a recognizable interest of the nonparty are required. 

Here, literally speaking, there is not a "case or controversy" 

involving the AMC under the Mine Act in the context of the present 

proceeding. Nor has the AMC demonstrated how the judge's dismissal of 

the Secretary's enforcement proceeding has had an adverse impact on it. 

Instead, the AMC argues that it is "adversely affected or aggrieved" 

because it has an interest in the legal principles involved in this 

proceeding, i.e., the questions surrounding the identification of 

miners' representatives under the Act. However, every Commission 

proceeding, to some extent, involves an interpretation of the Mine Act, 

a mandatory standard,-or some legal principle affecting the enforcement 

or meaning of the Mine Act. Under the AMC's position, mining trade 

associations, mine operators, and miners generally would have a 

sufficient interest in Commission proceedings to bestow upon them the 

2403 
right to file a petition for review of most administrative law judge 

decisions.. We are confident. that Congress, in enacting the Mine Act, 

did not intend to create.such.a potential litigation "free-for-all" in 

review pi;oceedings before the Commission. We therefore conclude that 

the.AMC has not presented a specific and concrete legal interest 

enabling it to appeal the judge's decision. 

This holding does not preclude the AMC or similar organizations 

from participating in the Commission's adjudicatory processes. Amicus 

participation is liberally granted in Commission proceedings. We note, 

also, that our ruling on the Secretary's dismissal motion deals solely 

with the problem of admitting new parties on appeal after trial, and we 

intimate no view at this time as to the specific criteria that ought to 

control intervention at trial• }/ 

In sum, we grant the Secretary's motion to dismiss the AMC's 

petition for discretionary review and vacate that part of our Direction 

for Review granting the AMC's petition as well as our subsequent order 

of consolidation. Mid-Continent's petition remains for review. 

However, in the circumstances presented, the AMC may continue in its 

role as an amicus and we will permit it to participate in the oral 

argument on the merits of this proceeding. The AMC's petition and 

briefs will be considered as amicus briefs. AMC's request for oral 

argument on the Secretary's motion to dismiss is denied. 

III. 

ASARCO's Motion to File an Amicus Brief Out of Time 

We deny ASARCO's motion for leave to submit an amicus curiae brief 

out of time. Although the Commission's rules do not address the time 

for filing of an amicus brief, the Commission may properly look for 

guidance to Fed. R. App. P. 29 ("Rule 29"). f!/ ASARCO recognizes that 

3/ Further, even an intervenor may be required to demonstrate an 

iiappealable interest" for purposes of seeking administrative or judicial 

review in situations where all the other parties have decided not to 

appeal. Cf. United States v. Imperial Irrigation Dist., 559 F.2d 509, 

521 (9th Cir. 1977). 

~/ Rule 29 provides: 

Brief of an Amicus Curiae 

A brief of an amicus curiae may be filed only if 

accompanied by written consent of all parties; or by 

leave of court granted on motion or at the request 

of the court, except that consent or leave shall not 

be required when the brief is presented by the 

United States or an officer or agency thereof, or by 

a State, Territory or Commonwealth. The brief may 

be conditionally filed with the motion for leave. A 

motion for leave shall identify the interest of the 

2404 
its brief has been tendered out of time. The fourth sentence of Rule 29 

states that "[s]ave as all parties otherwise consent, any amicus curiae 

shall file its brief within the time allowed the party whose position as 

to aff irmance or reversal the amicus brief will support unless the court 

for cause shown shall grant leave for later filing· •••• " ASARCO' s brief 

was not submitted until almost two-months after the time allowed MidContinent (the party whose position it supports) to file its brief. The 

Secretary and the UMWA oppose ASARCO's motion. 

We conclude that ASARCO could reasonably have been expected to be 

aware of the litigation in this proceeding and to have sought 

participation on a more timely basis. Because ASARCO's brief was 

tendered almost two months out of time, and both the Secretary and UMWA, 

parties to the proceeding, oppose ASARCO's participation as an amicus, 

ASARCO's motion is denied. 

applicant and shall state the reasons why a brief of 

an amicus curiae is desirable. Save as all parties 

otherwise consent, any amicus curiae shall file its 

brief within the time allowed the party whose 

position as to aff irmance or reversal the amicus 

brief will support unless the court for cause shown 

shall grant leave for later filing, in which event 

it shall specify within what period an opposing 

party may answer. A motion of an amicus curiae to 

participate in the oral argument will be granted 

only for extraordinary reasons. 

2405 
IV. 

Conclusion 

For the reasons explained above, we grant the Secretary's motion 

to dismiss the petition for discretionary review filed by the AMC. The 

AMC may continue as an amicus on review and may participate in oral 

argument on the merits of this proceeding. The caption of this 

proceeding is revised to delete the AMC as a party. ASARCO's motion for 

leave to file an amicus brief is denied. ASARCO's brief and any 

reference to the brief are stricken from the record. 11 

~~an 

L~~ Richard V. Backley, Commissioner 

~~yl~l!:::zf:~ 

11 Commissioner Nelson did not participate in the disposition of 

these motions. 

2406 
Distribution 

Charles W. Newcom, Esq. 

Sherman & Howard 

3000 First Interstate Tower North 

633 Seventeenth St. 

Denver, Colorado 80202 

Edward H. Green, Esq. 

Mark G. Ellis, Esq. 

American Mining Congress 

1920 N Street, N.W. 

Suite 300 

Washington, D.C. 20036 

Mary Lu Jordan, Esq. 

UMWA 

900 15th St., N.W. 

Washington, D.C. 20005 

Colleen Geraghty, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Edward Mulhall, Jr., Esq. 

Delaney & Balcomb 

P.O. Drawer 790 

818 Colorado Avenue 

Glenwood Springs, Colorado 81602 

Henry Chajet, Esq. 

Doyle & Savit 

919 18th Street, N.W. 

Washington, D.C. 20006 

2407 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

December 20, 1989 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Docket Nos. PENN 88-42-R 

PENN 88-43-R 

v. 

WESTWOOD ENERGY PROPERTIES 

PENN 88-73-R thru 

PENN 88-89-R 

PENN 88-148 

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

Commissioners 

DECISION 

BY: Ford, Chairman; Backley, Lastowka and Nelson, Commissioners 

This consolidated contest and civil penalty proceeding arises 

under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et 

seg. (1982)("Mine Act" or "Act"), and involves the validity of 

18 citations and one withdrawal order issued to Westwood Energy 

Properties ("Westwood") concerning conditions at its refuse culm 

bank. lf The question before us is whether the Secretary of Labor 

("Secretary") properly issued the citations and the withdrawal order to 

Westwood under the Mine Act. Commission Administrative Law Judge 

James A. Broderick upheld the Secretary's action in proceeding against 

Westwood under the Act. 11 FMSHRC 105 (January 1989)(ALJ). Westwood 

petitioned for review of the judge's decision asserting that its 

operations at the culm bank are but one component of the operation of an 

electric generating facility subject to the Occupational Safety and 

Health Act of 1970, 29 U.S.C. § 651 et seg. (1982)(the "OSHAct"), rather 

than the Mine Act. We granted Westwood's petition and heard oral 

argument. For the reasons that follow, we vacate the judge's decision 

and remand for the taking of additional evidence on the important 

question presented and for the entry of a new decision. 

ll "Culm" is desc~ibed as "[t]he waste or slack of the Pennsylvania 

anthracite mines, consisting of fine coal, more or less pure, and coal 

dust and dirt .•.. " U.S. Department of the Interior, Dictionarv of 

Mining. Mineral, and Related Terms 289 (1968). 

2408 
Westwood is the owner of land near Tremont, Schuylkill County, 

Pennsylvania. A culm bank is located on the land, in addition to an 

electric generating station where electricity is generated by steamdri ven turbines. The steam is produced by the burning of material taken 

from the culm bank. The culm bank consists of coal mine refuse, 

including rock, wood, metal, and a small percentage of coal and other 

carbonaceous material. 11 FMSHRC at 107. The culm bank is 4,500 feet 

in circumference at the bottom, 350 feet at the top, and approximately 

275 feet high. At the time of the hearing before the judge, Westwood 

had removed 240,000 tons of material from the culm bank. 

The land formerly was the site of the Westwood Colliery, an 

underground anthracite coal mine and processing plant. Underground 

mining and coal preparation had been conducted at the site for over 30 

years, ending in 1947. The culm bank resulted from this mining 

activity. When the underground mine closed, the coal processing plant 

was demolished and its remains became part of the culm bank. Sometime 

after Westwood Colliery had discontinued operations, a company named 

Manbeck operated a plant at the site, separating fine coal from waste 

material and selling the coal. Manbeck's operations were inspected by 

the Secretary of Labor's Mine Safety and Health Administration ("MSHA") 

and its predecessor agency. 

Westwood began construction of its electric generating facility in 

February 198-6, and the facility became fully operational in July 1988. 

Electric power generated at the facility is sold to Metropolitan Edison 

Company. Westwood bulldozes culm from the top of the bank, and the 

material is then scooped by a front-end loader. The front-end loader 

dumps the culm into one of two hoppers or into a truck, which hauls the 

culm to the hoppers. After being dumped into a hopper, the culm passes 

through a grid that filters out rock, wood, and other particles larger 

than 12 inches by 12 inches. The culm next falls onto a conveyor which 

carries it under a magnet and through metal detecting and removing 

devices so that metal objects that would damage the equipment can be 

removed. The culm is then transported by another conveyor to a fuel 

storage silo where it is stored in bins. The stored material is 

gradually released from the bins into two "primary crushers," which 

break the culm into pieces approximately 3/4 inch to 1 inch in diameter.· 

The crushed culm is then transported by conveyors to the power plant 

where it is crushed to a particle size of 1/8 inch in diameter. After 

crushing, the culm is transported by conveyors into the combustor, where 

it is burned. ~/ Ash by-products remaining after burning are hauled by 

truck to an ash pit. 

On October 26, 1987, MSHA inspector Joseph Uholic arrived at 

Westwood's facility to conduct an inspection of the culm bank site. 

Westwood denied Uholic entry. On October 27, 1987, Uholic returned 

accompanied by MSHA inspector Charles Rosini and, pursuant to 

~/ Westwood's combustion process, known as the "circulating fluidized 

bed process" is a developing technology. The process allows Westwood to 

efficiently burn the culm without separating fine coal from the 

remainder of the culm. Tr. 93-94, O.A. Tr. 5. 

2409 
instructi.ons from their supervisor, the inspectors sought admission to 

the site. Westwood informed the inspectors that, on the advice of 

counsel, an inspection would not be permitted because the operation was 

not subject to MSHA jurisdiction. Uholic issued Westwood a citation 

charging a violation of section 103(a) of the Mine Act for failure to 

permit an MSHA inspector to enter. After approximately 40 minutes, 

Uholic issued a withdrawal order to Westwood for failure to abate the 

denial of entry violation alleged in the citation. 11 

On November 13, 1987, the Secretary sought and obtained, with 

Westwood's consent, a temporary restraining order from the United States. 

District Court for the Eastern District of Pennsylvania. The order 

permits MSHA inspectors to enter and inspect Westwood's facility pending 

a final adjudication by the Commission of the issue of MSHA 

jurisdiction. 

On November 14, 1987, Uholic and Rosini returned and inspected 

Westwood's culm bank site. They issued 17 citations charging violations 

of various mandatory safety standards applicable to surface coal mines. 

The withdrawal order and several of the citations also contained the 

inspectors' findings, made pursuant to section 104(d) of the Mine Act, 

that the violations were of a significant and substantial nature. 

Westwood contested the validity of the withdrawal order and the 

citations arguing that the culm bank site is not subject to Mine Act 

jurisdiction. Westwood also contested the significant and substantial 

findings and the Secretary's subsequently proposed civil penalties. 

Following an evidentiary hearing, the administrative law judge 

issued his decision upholding the Secretary's assertion of jurisdiction 

}I Section 103(a) of the Act states in part: 

Authorized representatives of the Secretary 

shall make frequent inspections and investigations 

in coal or other mines each year for the purpose of 

(1) obtaining, utilizing, and disseminating 

information relating to health and safety 

conditions, the causes of accidents, and the causes 

of diseases and physical impairments originating in 

such mines, (2) gathering information with respect 

to mandatory health or safety standards, 

(3) determining whether an imminent danger exists, 

and (4) determining whether there is compliance with 

the mandatory health or safety standards or with any 

citation, order, or decision issued under this 

[Act] .... For the purpose of making any inspection 

or investigation under this [Act], the Secretary ... 

with respect to fulfilling his responsibilities 

under this [Act], or any authorized representative 

of the Secretary •.• , shall have a right of entry 

to, upon, or through any coal or other mine. 

30 U.S.C. § 813(a). 

2410 
under the Mine Act. The judge stated that "the primary issue in the 

case is whether Westwood's facility is a mine within the meaning of that 

term in the Mine Act, and therefore subject to the jurisdiction of 

MSHA." 11 FMSHRC at 107. The judge noted that while the culm bank 

would not be considered a mine in ordinary parlance, the statutory 

definition of "mine" is broad and includes "lands, ... facilities, 

equipment, machines, tools, or other property including impoundments, 

retention dams, and tailings ponds, on the surface or underground ... 

resulting from the work of extracting ... minerals from their natural 

deposits, ... or used in, or to be used in, the milling of such 

minerals, or the work of preparing coal or other minerals •... " 

11 FMSHRC at 110; 30 U.S.C. § 802(h)(l). The judge found that the 

"Westwood culm bank clearly resulted from the work of extracting 

anthracite coal from its natural deposit in the earth" and that a 

"literal construction of the statutory language would seem to cover 

Westwood's culm bank." 11 FMSHRC at 110. 

The judge further noted that the statutory definition of "work of 

preparing the coal" includes "the breaking, crushing, sizing, cleaning, 

washing, drying, mixing, storing, and loading of bituminous coal, 

lignite, or anthracite, and such other work of preparing such coal as is 

usually done by the operator of the coal mine." 30 U.S.C. §§ 802(i); 

11 FMSHRC at 110. The judge stated that the culm material contains 

anthracite coal, that Westwood breaks, crushes, sizes, stores and loads 

the coal in preparation for its use as fuel, and that a literal reading 

of the statutory definition of "work of preparing the coal" would seem 

to cover Westwood's operation. 11 FMSHRC at 111. 

The judge rejected Westwood's argument that it is outside the 

coverage of the Mine Act because it is a power plant burning fuel rather 

than an operation engaged in the production of a marketable mineral. 

The judge noted that "it is not uncommon for mine operators to 

themselves consume the product of their mines" and that, in any event, 

Westwood "does more than burn the culm material; it prepares it 'for a 

particular use. 111 11 FMSHRC at 115. Finding that Westwood's facility 

meets the Act's definition of a "coal or other mine" and that Westwood 

engages in the "work of preparing the coal," the judge concluded that 

Westwood's facility is subject to the Mine Act. 11 FMSHRC at 115. 

The dispute before us concerns the judge's upholding of the 

Secretary's assertion that the Mine Act applies to Westwood's culm bank 

operations. The Secretary does not assert jurisdiction under the Mine 

Act with respect to the working conditions inside the power generating 

facility itself. The Secretary asserts that working conditions inside 

the power generation facility are properly regulated by her under the 

OSHAct. Westwood, on the other hand, asserts that the entire facility, 

including the culm bank situated on the site, is properly regulated 

under the OSHAct. 

A similar type of question was before us recently in Pennsylvania 

Electric Co., 11 FMSHRC 1875 (October 1989). In Pennsylvania Electric, 

we concluded that while the Secretary of Labor properly could exercise 

her authority to apply mine safety standards to the part of the utility 

operation in dispute therein, the record was unclear as to whether the 

2411 
Secretary had, in fact, done so. Therefore, we remanded the matter to 

the administrative law judge for further proceedings, including the 

taking of additional evidence on the jurisdictional question and for the 

entry of a new decision. 11 FMSlffiC at 1882-86. Here, for similar 

reasons, we reach the same conclusion and order the same course of 

procedure. 

As in Pennsylvania Electric, a brief overview of the statutory 

interplay between the Mine Act and the OSHAct is necessary to a proper 

analysis of the issue. The OSHAct is the most broadly applicable 

statute regulating the safety and health aspects of the working 

conditions of American workers. The OSHAct, like the Mine Act, is 

enforced by the Secretary of Labor. Although broadly applicable, 

section 4(b)(l) of the OSHAct provides: 

Nothing in this Act shall apply to working 

conditions of employees with respect to which other 

Federal agencies ... exercise statutory authority to 

prescribe or enforce standards or regulations 

affecting occupational safety or health. 

29 U.S.C. § 653(b)(l). Therefore, OSHA standards pertaining to the 

working conditions at the culm bank would be applicable unless another 

federal agency, with a proper grant of jurisdiction over such working 

conditions, exercises its authority in a manner displacing OSHA 

coverage. See, ~, Southern Pacific Transportation Co. v. Usery, 539 

F.2d 386, 389 (5th Cir. 1976), cert. denied, 434 U.S. 874, 98 S. Ct. 

221, 54 L. Ed. 2d 154 (1977); S~ern Ry. Co. v. OSlffiC, 539 F.2d 335, 

336 (4th Cir. 1976), cert. denied, 429 U.S. 999, 97 S. Ct. 525, 50 L. 

Ed. 2d 609 (1976). Here, the Secretary claims that MSHA has properly 

exercised its statutory authority to regulate the culm bank site and 

that the withdrawal order and citations issued under the Mine Act must 

therefore be upheld. 

Section 4 of the Mine Act provides that each "coal or other mine" 

affecting commerce is subject to the Act. 30 U.S.C. § 803. Section 

3(h) of the Mine Act broadly defines "coal or other mine" as including 

the area of land from which minerals are extracted, roads appurtenant to 

such area, lands, facilities, equipment and machines used in, or 

resulting from, the work of extracting such minerals from their natural 

deposits, milling, or preparation of coal. ~/ More specifically, the 

~/ Section 3(h), 30 U.S.C. § 802(h), states: 

(1) "[C]oal or other mine" means (A) an area of 

land from which materials are extracted in nonliquid 

form or, if in liquid form, are extracted with 

workers underground, (B) private ways and roads 

appurtenant to such areas, and (C) lands, 

excavations, underground passageways, shafts, 

slopes, tunnels and workings, structures, 

facilities, equipment, machines, tools, or other 

property including impoundments, retention dams, and 

2412 
definition of "coal mine" in section 3(h)(2) includes "land ..• and 

other property •.. resulting from, the work of extracting in such area 

•.. anthracite from its natural deposits in the earth ..• and the work 

of preparing the coal so extracted ••.• " 

The parties agree that Westwood's culm bank is comprised of 

materials resulting from Westwood Colliery's extraction of anthracite 

coal from its underground coal mine. Accordingly, the culm bank 

literally falls within the. statutory definition of "mine" since "it 

result[s] from the work of extracting .•• minerals from their natural 

deposits •... " 30 U.S.C. § 802(h)(l). See Consolidation Coal Co. v. 

FMSHRC, 3 BNA MSHC 2135 (4th Cir. 1986)(coal refuse pile is a "mine"). 

The term "work of preparing the coal" is defined in section 3(i) 

of the Mine Act as follows: 

[1] "Work of preparing the coal" means the 

breaking, crushing, sizing, cleaning, washing, 

drying, mixing, storage and loading of bituminous 

coal, Lignite, or anthracite, and [2] such other 

work of preparing such coal as is usually done by 

the operator of the coal mine. 

30 U.S.C. § 802(i)(bracketed numbers added). The judge found that 

Westwood in its use of the culm "breaks,. crushes, sizes, stores, and 

loads anthracite" and therefore that Westwood's activities fall within 

the literal definition of coal preparation set forth in clause [1] of 

section 3(i). · 11 FMSHRC at 115. He further found that Westwood "does 

other work of preparing coal usually done by the operator of a coal 

mine" (Id.), therefore meeting clause [2]'s criterion. Westwood argues, 

however, that the nature of an operation must also be examined when 

applying the definition of "work of preparing the coal," and that the 

judge erred in finding its activities to be the type of work usually 

tailings ponds, on the surface or underground, used 

in, or to be used in or resulting from, the work of 

extracting such minerals from their natural deposits 

in nonliquid form, or if in liquid form, with 

workers underground, or used in, or to be used in, 

the milling of such minerals, or the work of 

preparing coal or other minerals, and includes 

custom coal preparation facilities .•.. 

(2) For purposes of titles II, III, and IV, "coal 

mine" means an area of land and all structures, 

facilities, machinery, tools, equipment, shafts, 

slopes, tunnels, excavations, and other property, 

real or personal, placed upon, under, or above the 

surface of such land by any person, used in, or to 

be used in, or resulting from, the work of 

extracting in such area bituminous coal, lignite, or 

anthracite from its natural deposits in the earth by 

any means or method, and the work of preparing the 

coal so extracted, and includes custom coal 

preparation facilities[.] 

2413 

I 

I 
done by the operator of a mine. Westwood particularly takes issue with 

the judge's conclusion that it "prepares [the culm] 'for a particular 

use,"' and is therefore subject to the Mine Act. 11 FMSHRC at 115. 

In Oliver M. Elam, Jr., 4 FMSHRC 5, 7 (January 1982), the 

Commission recognized that under clause '[2] of the definition of "work 

of preparing the coal" considerations additional to mere performance of 

the work activities specified in clause [1] come into play in 

determining whether coal preparation is taking place. The Commission 

concluded that inherent in the determination whether a company is 

engaged in coal preparation is an inquiry "not only into whether the 

operator performs one or more of the listed work activities [of section 

3(i)] but also into the nature of the operation performing such 

activities." Id. (Emphasis added). Accord, Donovan v. Inland 

Terminals, 3 BNA MSHC 1893 (S.D. Ind. March 28, 1985). The Commission 

held in Elam that "work of preparing the coal" signifies "a process 

undertaken to make coal suitable for a particular use or to meet market 

specifications." 4 FMSHRC at 8. Because the Elam operation was an allpurpose commercial dock facility at which coal was stored, broken and 

crushed simply to facilitate the loading of the coal onto barges for 

shipment, the Commission concluded that Elam did not make the coal 

suitable for any particular use and was not engaged in the type of coal 

preparation usually done by a mine operator. Id. Therefore, the Elam 

loading dock was found to not be a mine. 

Subsequently, in Alexander Brothers, 4 FMSHRC 541 (April 1982), 

the Commission applied the Elam holding and found that the Secretary had 

properly exercised jurisdiction under the Federal. Coal Mine Health and 

Safety Act of 1969 (the "Coal Act"), 30 U.S.C. § 801 et seq. (1976) 

(amended 1977), in a case involving the reclamation of materials from a 

refuse pile. The refuse pile had been created during the operation of 

an underground coal mine. After the mine had been abandoned, Alexander 

Brothers reclaimed coal from the pile. It removed refuse material from 

the pile by use of a front end-loader and trucked it to a screening 

plant, where rocks, scrap metal, and other waste were removed. The 

remaining refuse was then crushed and transported to a cleaning plant, 

where the additional non-coal material was removed by various processes 

and where further crushing took place. The resulting coal was then sold 

to brokers. 

The Commission found that the processes undertaken by Alexander 

Brothers were those specified in the statutory definition of "work of 

preparing coal." The Commission also found that Alexander Brothers 

undertook those processes in order to make coal-bearing refuse 

marketable. Consequently, the Commission concluded that Alexander 

Brothers was subject to the 1969 Coal Act. 4 FMSHRC at 545. See also 

Marshall v. Stoudt's Ferry Preparation Co., 602 F.2d 584 (3rd Cir. 1979) 

cert. denied, 444 U.S. 1015 (1980)(operation that separates sand, gravel 

and a low grade fuel from dredged refuse is subject to Mine Act). 

We conclude that Westwood literally engages in the "work of 

preparing the coal" in that the processes undertaken by Westwood on the 

mine waste material, including coal, are among those specified in the 

statutory definition. We further conclude that although Westwood does 

2414 
not undertake to prepare the coal contained in the mine ref use to meet 

market specifications, it does engage in the enumerated processes, as 

does the normal coal mine operator, for the purpose of making the mined 

material suitable for a particular use; here, as a fuel to be consumed 

at an electric generating facility. 

Although Westwood further argues that it is exempt from Mine Act 

jurisdiction because it does not prepare the culm for resale but rather 

is the ultimate consumer of the culm, we rejected a similar "ultimate 

consumer" argument in Pennsylvania Electric. 11 FMSHRC at 1881. We 

noted that under the Mine Act consumers of coal who otherwise meet the 

applicable definition of "mine" or "work of preparing the coal" are not 

provided any per se exclusion from the Act's jurisdiction. We held 

instead that the determination of Mine Act jurisdiction is governed by 

the two part analysis first set forth in Elam and followed in subsequent 

cases. ~/ 

Thus, we conclude that Westwood's activities fall within the Mine 

Act's definitions and therefore that the Secretary of Labor possesses 

statutory authority to make mine safety standards applicable to the 

disputed area. As in Pennsylvania Electric, however, we are unable to 

determine from the record presently before us whether the Secretary has, 

in fact, chosen to exercise her authority to regulate Westwood's 

operation under the Mine Act instead of the OSHAct. 

Both OSHA and MSHA have asserted jurisdiction at Westwood's 

facility. The extent of their respective assertions of authority and 

the rationale behind them, however, are far from clear. Before the 

judge, Westwood's counsel and Westwood's resident construction manager 

asserted that OSHA had begun inspecting Westwood's facility in August 

1986. Tr. 18-19, 104-05, 119. They stated that these inspections 

resulted in citations for violations of OSHA regulations. Tr. 18, 105. 

The construction manager further testified that each time OSHA conducted 

an inspection, it inspected the whole project and did not limit the 

~/ In support of its argument for Commission recognition of a 

consumer exemption to Mine Act jurisdiction, Westwood refers us, as did 

Pennsylvania Electric, to cases decided under the Black Lung Benefits 

Act. 30 U.S.C. § 901 et seq. (1983). Westwood argues that in 

interpreting the phrase "work of preparing the coal" for Black Lung 

Benefits Act purposes, courts have generally held that the work of 

processing coal done by the end-purchaser in connection with its own 

consumption does not meet the statutory definition of coal preparation. 

We concluded in Pennsylvania Electric, however, that the cited Black 

Lung Benefits Act cases lack precedential value in resolving the type of 

Mine Act jurisdictional dispute before us. 11 FMSHRC at 1881-82 n.7. 

We noted the different purposes of the Black Lung Benefits Act and the 

Mine Act, and we emphasized that, unlike the Black Lung Benefits Act, 

the Mine Act has no statutory financial scheme logically requiring that 

coal preparation activities be closely tied to a coal producer. Hence, 

we conclude here, as we did in Pennsylvania Electric, that the Bl.ack 

Lung cases provide no basis from which to extrapolate the exemption from 

Mine Act coverage argued for by Westwood. Id. 

2415 
areas inspected except that OSHA never inspected the culm bank itself. 

Tr. 18, 19, 104-105, 121, 140. The construction manager further 

testified that since Westwood started removing materials from the culm 

bank, there had apparently been only one inspection by OSHA and that 

this inspection, in August 1988, involved the facility's ash silo. Tr. 

120-21. Based on this testimony, the judge found that Westwood's 

"operation had been previously inspected by OSHA," but he did not 

delineate the precise scope of OSHA's inspections. 11 FMSHRC at 116. 

The record further reflects that MSHA did not assert Mine Act 

jurisdiction at Westwood's facility until Inspector Uholic's arrival 

precipitated the events leading to this case. Uholic had been 

conducting an inspection at a neighboring mine and, while there, had 

been told that.Westwood was extracting material from the culm bank. 

Uholic was asked when he was going to inspect Westwood's facility. 

Uholic then proceeded to Westwood's facility and requested permission to 

conduct an inspection under the Mine Act. Uholic told Westwood that 

since Westwood was taking material from the culm bank, he was "supposed 

to make an inspection." Tr. 33. Uholic did not specify the scope of 

his intended inspection. It was not until the issuance of the 

November 13, 1987, court order, which was consented to by Westwood, that 

specific areas for MSHA inspection were delineated. Tr. 82-83, 85-86, 

104. The areas include the culm bank and buildings and equipment, up to 

the point where the fuel enters the "boiler building." Tr. 20-21, 82. 

Within these areas are facilities over which OSHA apparently also 

has asserted its authority, yet, nowhere in the record is there any 

indication that MSHA and OSHA mutually determined the extent of each 

agency's regulatory authority at the Westwood facility. The agencies 

have formally published an MSHA-OSHA Interagency Agreement (the 

"Agreement") setting forth a procedure for resolving general 

jurisdictional questions between the two agencies. The Agreement states 

in pertinent part: 

When any question of jurisdiction between MSHA and 

OSHA arises, the appropriate MSHA District Manager 

and OSHA Regional Administrator or OSHA State 

Designee in those states with approved plans shall 

attempt to resolve it at the local level in 

accordance with this Memorandum and existing law and 

policy. Jurisdictional questions that can not be 

decided at the local level shall be promptly 

transmitted to the respective National Off ices which 

will attempt to resolve the matter. If unresolved, 

the matter shall be referred to the Secretary of 

Labor for decision. 

44 Fed. Reg. 22827, 22828 (1979). The Agreement itself does not 

expressly address the question of MSHA-OSHA jurisdiction at facilities 

using the fluidized-bed combustion process for the burning of mine waste 

to generate electricity. This process is a relatively new technology 

that may be more common in the future and that may require special 

attention in terms of resolving potential overlapping areas of 

jurisdiction. See American Mining Congress Journal, October 1989, at 20 

2416 
(describing construction of a cogeneration plant powered by burning of 

coal mine refuse). Furthermore, no supplement to the Agreement has been 

published addressing this specialized process. Compare, Interagency 

Agreement; Revision Concerning Surface Retorting of Oil Shale, 48 Fed. 

Reg. 7521 (1983). 

The record contains no indication that the procedures specified in 

the Agreement for the resolution of jurisdictional conflicts between 

MSHA and OSHA were followed or even consulted. See, 44 Fed. Reg. 22827 

(1979). In fact, MSHA Inspectors Uholic and Rosini testified that they 

had never heard of the Agreement. Thus, the record does not reflect if 

their inspection of Westwood's facility reflects a reasoned resolution 

of the jurisdictional question by the Secretary and her agencies or 

simply resulted from an ad hoc unilateral assertion of jurisdiction by 

MSHA. Tr. 56, 83. 

Without an interagency resolution of the question, the potential 

for possible conflicts between OSHA and MSHA in the exercise of their 

jurisdiction at Westwood's facility is great. Indeed, conflict has 

already arisen in that both OSHA and MSHA have inspected Westwood's 

trucking operations at the facility. Tr. 105,.Ex. G-14, 17, 18. OSHA 

has asserted jurisdiction over trucks and drivers removing ash from the 

ash silo, while MSHA has asserted jurisdiction over trucks and drivers 

hauling and dumping culm, even though the same trucks and drivers 

perform both operations over the same haulage roads and under the 

supervision of the same employer. Tr. 105-06, 121-23. 

Moreover, the reasons for MSHA 1 s decision to assert inspection 

authority in the disputed area are not well explained. At oral argument 

before us, counsel for the Secretary asserted that the inspection of 

Westwood's culm bank operations reflects MSHA's policy of inspecting 

those areas of a power plant that involve the preparation of coal and of 

leaving to OSHA the inspection of those areas involving the handling of 

already prepared coal. O.A. Tr. 17, 26. However, according to Rosini, 

a power plant engaged in coal crushing operations would not be subject 

to MSHA inspection nor would its use of front end loaders to load coal 

into a hopper warrant an inspection. Tr. 84. 

Also, as we noted in Pennsylvania Electric, the Commission was 

advised (by a different Secretarial counsel in a prior case involving a 

coal handling power plant) that MSHA traditionally has not inspected 

power plants, that while MSHA has recognized part of the process 

utilized to produce electric power from coal requires handling and 

processing coal, it has determined that those activities are subsumed in 

the specialized process utilized to produce electric power, and that the 

overall power generating process is more feasibly regulated by·OSHA. 

11 FMSHRC at 1884 (quoting Utility Fuels, Inc., Docket No. CENT 85-59 

(Sec. Motion to Dismiss (November 29, 1985)). 

Furthermore, the jurisdictional question presented in this case is 

heightened by the fact that subsequent to the initiation of the 

litigation before us, the Secretary, through OSHA, proposed new, 

comprehensive safety standards applicable to the operation and 

maintenance of electrical power generation facilities. 54 Fed. Reg. 

2417 
4974-5024. (1989). Westwood's facility generates electricity and 

apparently is classified by the Federal Energy Regulatory Conunission as 

a small power production facility. Tr. 95. The culm bank operation at 

the facility is integral to Westwood's production of electricity. 

Westwood's operation involves fuel handling and processing using 

equipment such as conveyors and crushers. Proposed OSHA standard 

29 C.F.R. § 1910.269(a)(l)(i) reads in part, "This section covers work 

practices, installations, and equipment associated with the operation 

and maintenance of electric power generation •••• These provisions apply 

to •.. (A) Power generation, transmission, and distribution 

installations .•. and (B) ..• (1) ..• Fuel and ash handling and 

processing installations, such as coal conveyors and crushers." 54 Fed. 

Reg. at 5009. 

Far from recognizing a division of jurisdiction between OSHA and 

MSHA, the proposed regulations appear to be all encompassing. As noted, 

section 1910.269 states that it is applicable to "fuel and ash handling 

and processing installations, such as coal conveyors and crushers." 29 

C.F.R. § 1910.269(a)(l)(i)(B)(l). In summarizing the proposed rules, 

the Assistant Secretary of Labor for Occupational Safety and Health 

explained that fuel handling operations within an electric power 

installation would be covered by the proposed regulations. 54 Fed. Reg. 

at 4980. The OSHA Assistant Secretary's view of the effect of the 

proposed regulations complements and coincides with the view of 

OSHA/MSHA jurisdiction propounded to the Conunission in Utility Fuels, 

supra. Thus, the proposed rules suggest that the Secretary of Labor may 

still view electric generating operations such as Westwood's as subject 

to OSHA jurisdiction or, at least, that coverage by OSHA, rather than 

MSHA, may be more appropriate and effective. 

These conflicting indications of Secretarial intent raise serious 

questions as to which agency in the Department of Labor exercises safety 

and health authority over the facilities at power generating stations 

such as Westwood's. The answer is of great consequence to Westwood and 

its employees. It also is of importance to a growing number of 

similarly situated operators of facilities using the fluidized bed 

combustion process to burn coal mine waste for the production of energy. 

These companies, along with Westwood, must know which Department of 

Labor safety and health standards must be complied with and which 

statute prescribes the rights and duties to which they and their 

employees must conform their conduct. £/ 

Section 113 of the Mine Act provides that "[i]f the Conunission 

determines that further evidence is necessary on an issue of fact it 

shall remand the case for further proceedings before the administrative 

law judge." 30 U.S.C. § 823(d)(2)(C). Because of the pervasive 

£/ The jurisdictional confusion generated in this case may not be 

restricted to coal and coal mine waste-fired powerplants. Other coal 

consuming entities may also be implicated in Mine Act coverage if they 

engage in "the work of preparing coal." At oral ar,gument counsel for 

the Secretary indicated that steel plants and aluminum plants may fall 

into this category. O.A. Tr. pp. 22-23, 25-26. 

2418 
ambiguity· in the record on the question of whether the Secretary of 

Labor, through MSHA, has properly exercised her authority to regulate 

the cited working conditions at Westwood's power plant, and the 

importance of this question, we find it appropriate to order further 

proceedings. As we did in Pennsylvania Electric, we encourage the 

Secretary to give serious consideration to the questions raised by this 

case and to follow the procedures in the OSHA-MSHA Interagency Agreement 

to resolve the conflicting positions taken on her behalf. 

Accordingly, the judge's decision is vacated and the matter is 

remanded to the judge for further proceedings consistent with this 

opinion including the taking of further evidence on the jurisdictional 

question presented and the entry of a new decision. 

~_#f?Aij/~L ~r""m""'a-n ____ _ 

,~4& Richard V. Backley, Commissioner 

L. Clair Nelson, Commissioner 

2419 
Commissioner Doyle, dissenting: 

Westwood Energy Properties (Westwood) is a small electric power 

generating plant that burns culm to generate electric power. It is 

located adjacent to a culm bank or refuse pile that was produced by 

Westwood Colliery, an unrelated entity, as a result of its mining operations between 1913 and 1947. Tr. 95. When the mine closed, the coal 

preparation .plant was demolished and the remains added to the culm bank 

which also contains rock, slate, shale, wood, metal, granite and quartz 

along with a small percentage of coal and other carbonaceous material .. 

11 FMSHRC 107. It is from that culm bank that Westwood produces electric 

power and sells it to an electric utility. Tr. 95, 96. 

In October, 1987, the Mine Safety and Health Administration 

("MSHA") for the first time attempted to inspect Westwood's culm bank, 

not as a result of a policy decision by the Secretary of Labor, nor of 

a decision reached between the MSHA District Manager and the OSHA 

District Manager pursuant to the MSHA-OSHA Interagency Agreement setting forth the procedure for resolving such jurisdictional questions, 

nor of a decision by the District Manager that such action was within 

MSHA's jurisdiction, but rather as a result of an individual inspector's decision to carry out the inspection after having been asked 

about it while he was inspecting a nearby mine. 

The majority of the Commission concludes that " Westwood 

literally engages in the 'work of preparing the coal' in that the 

processes undertaken by Westwood ••• are among those specified in the 

statutory definition." Slip. op. at 7. After finding that Westwood 

does not prepare the culm to meet market specifications, as is usually 

done by a mine operator, the majority bases its decision on the fact 

that Westwood performs some of the enumerated processes in order to 

make the material suitable for consumption, as fuel, in its power plant. 

Slip. op. at 8. They discount any exemption for the ultimate consumer 

of coal and conclude that the Secretary of Labor could properly exercise 

her authority to apply mine safety standards to Westwood's power generating facility. Because of what they term the "pervasive ambiguity" in 

the record as to whether the Secretary has, in fact, asserted Mine Act 

jurisdiction, they remand the matter to the administrative law judge 

for the taking of further evidence on the jurisdictional question and 

the entry of a new decision. 

I disagree with the majority's conclusion that Westwood's culm 

bank is subject to the jurisdiction of the Mine Act, based on either 

of its theories, i.e., that the culm bank "results from" the mining 

activity of an unrelated entity some forty years earlier, or that 

Westwood is engaged in "coal processing" because the culm passes over 

a one foot by one foot grizzly (to remove timbers and large rocks), 

passes over a magnet (to remove foreign objects such as spikes, mule 

shoes and nails) and is then loaded, stored and crushed before it is 

burned. 

2420 
I further believe that the case should be decided on the record before us, rather than being remanded for the taking of additional 

evidence. 

Section 3(h), 30 U.S.C. §802(h), states: 

(1) "coal or other mine" means (A) an area of land from 

which minerals are extracted in nonliquid form or, if in 

liquid form, are extracted with workers underground, (B) 

private ways and roads appurtenant to such area, and (C) 

lands, excavations, underground passageways, shafts, · 

slopes, tunnels and workings, structures, facilities, 

equipment, machines, tools, or other property including impoundments, retention dams, and tailings ponds, on the surface or underground, used in, or to be used in, or resulting 

from, the work of extracting such minerals from their natural 

deposits in nonliquid form, or if in liquid form, with workers 

underground, or used in, or to be used in, the milling of such 

minerals, or the work of preparing coal or other minerals, and 

includes custom coal preparation facilities. In making a determination of what constitutes mineral milling for purposes 

of this Act, the Secretary shall give due consideration to 

the convenience of administration resulting from the delegation to one Assistant Secretary of all authority with 

respect to the health and safety of miners employed at one 

physical establishment; 

(2) For purposes of titles II, III, and IV, "coal mine" 

means an area of land and all structures, facilities, 

machinery, tools, equipment, shafts, slopes, tunnels, excavations, and other property, real or personal, placed upon, 

under, or above the surface of such land by any person, used 

in, or to be used in, or resulting from, the work of extracting in such area bituminous coal, lignite, or anthracite from 

its natural deposits in the earth by any means or method, and 

the work of preparing the coal so extracted, and includes 

custom coal preparation facilities. 

The "work of preparing coal" is defined in section 3(i), 30 U.S.C. 

§802(i), as follows: 

[i] "work of preparing the coal" means the breaking, crushing, 

sizing, cleaning, washing, drying, mixing, storing and loading 

of bituminous coal, lignite, or anthracite, and such other 

work of preparing such coal as is usually done by the operator 

of the coal mine. 

A portion of the legislative history pertaining to these sections 

has been widely quoted in determining Mine Act coverage. That language 

states that the definition of a mine is to be given the broadest pos2421 
sible interpretation and that doubts should be resolved in favor of 

inclusion. However, examination of that entire passage of the 

legislative history indicates a context in which Congress was contemplating regulation of mines in a more traditional sense. The complete passage reads as follows: 

Thus, for example, the definition of 'mine' is clarified 

to include the areas, both underground and on the surface, 

from which minerals are extracted (except minerals extracted 

in liquid form underground), and also, all private roads and. 

areas appurtenant thereto. Also included in the definition 

of 'mine' are lands. excavations, shafts, slopes, and other 

property including impoundments, retention darns, and tailings 

ponds. These latter were not specifically enumerated in the 

definition of mine under the Coal Act. It has always been the 

Committee's express intention that these facilities be included 

in the definition of mine and subject to regulation under the 

Act, and the Committee here expressly enumerates these facilities within the definition of mine in order to clarify its intent. The collapse of an unstable darn at Buffalo Creek, West 

Virginia, in February of 1972 resulted in a large nurnher of 

deaths, and untold hardship to downstream residents, and the 

Committee is greatly concerned that at that time, the scope 

of the authority of the "Bureau of Mines to regulate such 

structures under the Coal Act was questioned. Finally, the 

structures on the surface or underground, which are used or 

are to be used in or resulting from the preparation of the 

extracted minerals are included in the definition of 'mine'. 

The Committee .notes that there may be a need to resolve jurisdictional conflicts, but it is the Committee's intention that 

what is considered to be a mine and to be regulated under this 

Act be given the broadest possibly [sic] interpretation, and it 

is the intent of this Committee that doubts be resolved in favor 

of inclusion of a facility within the coverage of the Act." s. 

Rep. No. 95-181, 95th Cong., 1st Sess. 14 (1977), reprinted in 

U.S. Code Cong. & Admin. News 1977, 3401, 3414. 

While that language is expansive, it is mine oriented, and it cannot be 

forgotten that the Act was intended to establish a "single mine safety 

and health law, applicable to all mining activity." S. Reμ. No. 461, 

95th Cong., 1st Sess. 37 (1977) (emphasis added). "The statute is 

aimed at an industry with an acknowledged history of serious accidents." 

Marshall v. Stoudt's Ferry Preparation Co., 602 F.2d 589, 594 (3d Cir. 

1979). There is no indication of any intention to regulate other industries using coal, such as electric power generating plants (or even 

steel mills as only recently asserted by the Secretary). Or. Arg., 

Tr. 26. Indeed, the courts have recognized that it is "clear that 

every company whose husiness brings it into contact with minerals is 

not to be classified as a mine within the meaning of section 3(h)." 

Donovan v. Carolina·Stalite Co., 734 F.2d 1547, 1551 (D.C. Cir. 1984). 
I recognize that, in addition to considering Congress' concerns 

as set forth in the legislative history, deference is generally to be 

accorded interpretations by the agency charged with enforcing the law. 

Here, however, the record contains no evidence that, since the Mine Act 

became effective in 1978, the Secretary has made any previous attempts, 

either by the issuance of regulations or otherwise, to include electric 

power generating plants within the Act's coverage or to put the operators of such facilities on notice of liability under the Mine Act. Nor 

does the record indicate that the efforts first of a single inspector 

and subsequently of his district manager to bring Westwood's facility 

within its coverage actually represent the Secretary of Labor's interpretation of the Mine Act. 

It should be noted that the Secretary's counsel argued that 

resolution of the jurisdictional issue rests solely on the language 

of the Mine Act itself, which he asserted mandates coverage, and does 

not involve deference to the Secretary's interpretation of the Mine 

Act. 1/ It is not surprising that the Secretary eschews deference to 

her interpretation of the Mine Act in this instance since the Secretary's policy with respect to whether electric power plants come within Mine Act coverage has been exhibited in a variety of ways as follows: 

1. Her implied interpretation that coal handling at electric 

power generating facilities does not come within the Mine Act, based 

on her failure to assert such jurisdiction for almost ten years after 

passage of the Mine Act. 

2. Her position, as set forth in an earlier Commission case, that: 

MSHA traditionally has not inspected power plants. Although the Secretary is not able to cite to a particular 

memorandum incorporating this policy, MSHA and its predecessors have consistently found the production of power 

to be outside the jurisdiction of the agency. 

MSHA has taken into account that a portion of the 

process utilized to produce electric power from coal 

requires handling and processing coal but has determined that those activities are subsumed in the 

specialized process utilized to produce electric 

power, and that the overall power plant process is 

more feasibly regulated by OSHA. 

Utility Fuels Inc., Docket No. CENT 8~-59 (Sec. Motion to Dismiss, 

November 29, 1985). 

1/ This position was advanced by the Secretary during oral argument 

before the Commission in a similar case, Pennsylvania Electric Co., 11 

FMSHRC 1875 (October 1989), Or. Arg. Tr. 32. 

2423 
3. Her position that an electric power generating facility's 

handling of a product containing coal comes within coverage of the Mine 

Act, as asserted in this case. 

4. Her position that coal handling at electric power generating 

facilities is governed by the OSHAct, as set forth in regulations 

recently proposed by the Occupational Safety and Health Administration 

("OSHA") for the operation and maintenance of electrical power generation facilities, which regulations include detailed provisions governing coal handling and processing at those facilities. 54 Fed. Reg. 

4974-5024 (1989). 

5. Her position that OSHA's proposed rules would apply only to 

electric generating facilities using already processed coal and that 

facilities using run-of-mine coal would be subject to Mine Act jurisdiction, as asserted by her counsel at oral argument before the Commission in Pennsylvania Electric Co., Or. Arg. Tr. 24, 29, 33. 

Because her interpretations have been neither longstanding nor 

consistent, any deference that would ordinarily be due to the Secretary in interpreting the Mine Act is not appropriate to this instance. 

See, e.g., I.N.S. v. Cardozo-Fonseca, 480 U.S. 421 (1987); American 

Mining Congress v. EPA, 824 F.2d 1177, 1182 (D.C. Cir. 1987); Sec. v. 

BethEnergy Mines, 11 FMSHRC 1445, 1451 (August 1989); Sec. v. Florence 

Mining Co., 5 FMSHRC 189, 196 (February 1983). 

If literalism marked the beginning and end of our inquiry, I 

would have to concede that Westwood's facility falls within the Mine 

Act's coverage. Westwood's culm bank, having been created from the 

waste products of a mine that ceased operation more than four decades 

ago, does amount to property that "result[sJ from" the work of extracting minerals from their natural deposit and, therefore, in a 

strictly literal sense, falls within the language used to define a 

coal mine. Section 3(h), 30 U.S.C. §802(h). 2/ Similarly, although 

very little is done to the culm bank material-before ft is burned, it 

is undisputed that there is some loading, storing and crushing of the 

2/ This type of literal translation could bring many diverse 

facilities, including airports, within the coverage of the Mine Act. 

As noted by the United States Court of Appeals for the District of 

Columbia Circuit, statutes "must be interpreted in light of the spirit 

in which they were written and the reasons for their enactment." General 

Serv. Emp. U. Local No. 73 v. N.L.R.B._, 578 F. 2d 361, 366 (D.C. Cir. 

1978). In the same vein, Judge Learned Hand observed that "the duty 

of ascertaining [the) meaning [of a statute) is difficult at best and 

one certain way of missing it is by reading it literally .•. " See 

Monarch Life Ins. Go. v. Loyal Protective Life Ins. Co., 326 F.M 

841, 845 (2d Cir. 1963). 

2424 
culm, as is the case in most coal consumption. Tilose activities are, 

in fact, among the items enumerated .in the definition of the "work 

of preparing coal" set forth in section 3 (i), 30 U. S .C. §802(i). 

The majority itself recognizes, however, that it is not sufficient 

to simply check off whether the activities listed in section 3(i) are 

being performed and the case of MSHA v. Oliver M. Elam. Jr., Co., 

requires that there be an examination into the nature of the operation 

performing su_ch activities. 4 FMSHRC 5, 7 (January 1982), Slip. op. at 

7, 8. No such examination is made by the majority, however. 

Rather, the majority proceeds to examine Alexander Brothers, Inc., 

4 FMSHRC 541 (April, 1982), a case that involved a refuse pile, but as 

part of a comprehensive coal processing operation in which material 

was removed from a refuse pile, loaded on trucks, transported to a 

screening plant, then screened and passed under a magnet. From 

there, the material was again screened and hand picked. It was 

then crushed, stockpiled and subsequently transported to a cleaning 

plant where it was washed, separated, dried, crushed, remixed and 

loaded into railroad cars for shipment to a broker. At issue in 

Alexander Brothers was not whether the operator was preparing coal 

within the definition set forth in the 1969 Coal Act, but whether 

coal preparation facilities, in the traditional sense (and not just· 

the refuse pile), were subject to the Coal Act where they had no 

connection with any coal extractor. Tile Commission correctly found 

jurisdiction, citing the test set forth in Elam to the effect that 

the proper inquiry is not into whether the cited entity performs one 

or more of the listed functions but rather into the nature of the 

operation. 4 FMSHRC at 545. Accord Donovan v. Island Terminals, Irie., 

3 MSHC BNA 1983 (S.D. Ind. March 28, 1985). In the case at hand, however, the majority only compares the processes undertaken by Westwood 

with some of those undertaken in Alexander Brothers and noting that, 

like Alexander Brothers, Westwood engages in crushing and sizing of 

material taken from the refuse pile, concludes that, because Westwood 

performs some of the specifically enumerated processes carried out by 

those who prepare coal and because this work is usually done by the 

operator of a coal mine, the operation comes within the ambit of 

section 3(i) of the Hine Act. At no point do they analyze and compare the nature of Westwood's operation (burning the culm as fuel for 

its generating plant) with that in Alexander Brothers (cleaning and 

processing material from a refuse pile for shipment, through a broker, 

into the chain of commerce). I believe that Westwood's operation is 

of an entirely different nature from the operation in Alexander 

Brothers and is not a "coal mine" in the sense contemplated by Congress when it enacted the Mine Act. Had Congress wanted to regulate 

not only mines but electric power generating plants, steel mills and 

other coal consumers, I think it would surely have given some indication of that intent. 

2425 
The majority also briefly addresses Westwood's position that ultimate consumers of coal are exempt from Mine Act coverage, rejecting it 

on the basis that there is no per se exclusion from the Mine's Act 

jurisdiction and, thus, the inquiry need only address whether the 

activity in question can be found among those listed in section 3(i) 

and whether the work is usually performed by a coal mine operator. 

Slip. op. at 8. In Pennsylvania Electric Co., I noted that the 

Black Lung Benefits Act, 30 U.S.C. §901 et seq. (1982), also takes 

its definition of "coal mine" from section 3(h) of the Mine Act and 

I believe that the majority errs in dismissing those cases out of hand. 

The Black Lung Benefits Act cases have used the point where coal enters 

the stream of commerce or reached the ultimate consumer as the line of 

demarcation for determining whether an operation is a coal mine. 11 

FMSHRC 1875 (October 1989), dissent at 1894. 

I am also of the view that the majority's opinion is in conflict 

with itself. As identified by the judge, the primary issue in the 

case is "whether Westwood's facility is a mine within the meaning of 

that term in the Mine Act, and therefore subject to the jurisdiction 

of HSHA." 11 FMSHRC at 107, Slip. op. at 4. After examining the Mine 

Act's definition of the term "coal or other mine" set forth in section 

3(h), 30 U.S.C. §802(h), the majority concludes that" ..• the culm bank 

literally falls within the statutory definition of 'mine' since 'it result[sJ from the work of extracting •.• minerals from their natural 

deposits' .•. " Slip. op. at 6. The majority further concludes that 

Westwood "literally engages in the 'work of preparing coal'" and that 

it "engage[s] in the enumerated processes, •.• for the purpose of 

making the mined material suitable for a particular use; .•. as a fuel 

to be consumed at an electric generating facility." Slip op. at 7, 8. 

Thus, they "conclude that Westwood's activities fall within the Mine 

Act's definitions and therefore that the Secretary of Labor possesses 

statutory authority to make mine safety standards applicable to the 

disputed area ." Slip. op. at 8. They remand the case for a determination of whether the Secretary has chosen to exercise that authority. 

Slip op. at 8. 

If, in fact, the majority is correct in its conclusion that 

Westwood's operation falls clearly within the statutory definition 

of a mine, any determination other than that the Mine Act applies to 

Westwood's operation is, in my opinion, precluded. Section 4 of the 

Mine Act provides that "[E]ach coal .•• mine ••• shall be subject 

to the provisions of this Act." "If a court, employing traditional 

tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law 

and must be given effect." Chevron U.S.A., Inc. v. l'\1atural Res. Def. 

Council, Inc., 467 U.S. 837, 843 N. 9 (1984). Thus, coverage would be 

mandated, not discretionary with the Secretary. 

2426 
For the reasons set forth above, I would reverse the judge and 

dismiss the case against Westwood. 

Distribution 

Joseph Mack. III, Esq. 

Thorp, Reed and Armstrong 

One Riverfront Center 

Pittsburgh, Pennsylvania 15222 

Carl C. Charneski, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

£~ Commissioner 

Administrative Law Judge James A. Broderick 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

2427 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

BEAVER CREEK COAL COMPANY 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

December 20, 1989 

Docket No. WEST 88-145-R 

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

Commissioners 

DECISION 

BY THE COMMISSION: 

The questions presented in this contest proceeding are whether 

Beaver Creek Coal Company ("Beaver Creek") is entitled to declaratory 

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

§ 801 et seg. (1982) (the "Mine Act"), and to attorney's fees and costs. 

Commission Administrative Law Judge John J. Morris concluded that Beaver 

Creek was not entitled to either declaratory or monetary relief, and he 

dismissed Beaver Creek's contest. 10 FMSHRC 758 (June 1988)(ALJ). For 

the reasons that follow, we affirm the judge's decision. 

Beaver Creek's application for declaratory relief involves a 

dispute between Beaver Creek and the Department of Labor's Mine Safety 

and Health Administration ("MSHA") regarding the revision of Beaver 

Creek's roof control plan at its Trail Mountain No. 9 Mine located in 

Emery County, Utah. l/ The plan permitted 140 feet of penetration on 

ll Pursuant to 30 U.S.C. § 862 and mandatory safety standard 30 

C.F.R. § 75.200 (1987), an operator is required to adopt a roof control 

plan suitable to the conditions and mining system of the mine. The plan 

must be approved by the Secretary and must be reviewed at least every 

six months. Once adopted and approved, the provisions of the plan are 

enforceable as mandatory safety standards. See Zeigler Coal Co. v. 

Kleppe, 536 F.2d 398, 409 (D.C. Cir. 1976); Jim Walter Resources, Inc., 

2428 
development mining without installation of permanent roof support. It 

also permitted continuous mining machines to make 10 foot cuts. By 

letter dated January 13, 1988, Beaver Creek requested that MSHA approve 

a modification of the roof control plan to allow remote controlled 

continuous mining machines to make cuts of 20 feet during development 

mining. By letter dated February 16, 1988, MSHA "tentatively" approved 

the modification subject to various conditions, one of which stated that 

"[t]he maximum depth of penetration is limited to 40 feet. If adverse 

conditions are encountered or anticipated, the cut depth shall be 

substantially reduced." Exhibit C. By letter mailed March 14, 1988, 

Beaver Creek objected to this and other conditions. 

On March 17, 1988, MSHA inspector Dick Jones conducted an 

inspection at the mine. Jones found that a remote controlled continuous 

mining machine had exceeded the 40 foot penetration limit set forth in 

MSHA's letter. Jones therefore issued to Beaver Creek an order of 

withdrawal pursuant to section 104(d)(2) of the Act, 30 U.S.C. 

§ 814(d)(2), alleging a violation of section 75.200 for failure to· 

comply with the approved roof control plan. Jones further found that 

the violation significantly and substantially contributed to a mine 

safety hazard and resulted from Beaver Creek's unwarrantable failure to 

comply with the standard. 

Beaver Creek personnel informed Jones that Beaver Creek had not 

agreed to the 40 foot penetration condition stated in MSHA's letter. 

They showed Jones a copy of Beaver Creek's letter to MSHA in which it 

stated its objections to the condition MSHA sought to impose. Later 

that same morning, MSHA terminated the withdrawal order and mining was 

allowed to resume. MSHA, however, refused to vacate the withdrawal 

order issued by Jones. 

On March 22, 1988, Beaver Creek initiated this proceeding before 

the Commission asserting that the order was improperly issued. Beaver 

Creek argued that, because it had not agreed to the condition, it had 

not violated section 75.200 by not complying with the condition. Beaver 

Creek also requested the Commission to order the Secretary to reimburse 

Beaver Creek for its attorney's fees and costs pursuant to Rule 11 of 

the Federal Rules of Civil Procedure ("Fed. R. Civ. P. 11"), section 

105(d) of the Mine Act, and the common law, asserting that MSHA's 

defense of the contested withdrawal order was frivolous and in bad 

faith. Notice of Contest 2-3. Beaver Creek also challenged the 

inspector's unwarrantable failure finding. 

On March 25, 1988, MSHA vacated the withdrawal order and in a 

letter to Beaver Creek conceded that, because there had been no 

agreement between MSHA and Beaver Creek regarding the stipulation, 

penetration-by the remote controlled continuous mining machine beyond 40 

feet did not violate the mine's roof control plan or section 75.200. 

9 FMSHRC 903, 906-07 (May 1987). On March 28, 1988, the Secretary's 

revised mandatory safety standards for roof, face, rib support, and roof 

control plans became effective. The revised standards generally retain 

the adoption, approval, and review requirements of section 75.200 

(1987). See e.g., 30 C.F.R. § 75.220(a); 30 C.F.R. § 75.223(d)(l988). 

2429 
MSHA also.advised Beaver Creek that the roof control plan in effect on 

January 13, 1988, would be enforced, conunencing March 30, 1988, absent 

an agreement on the conditions proposed by MSHA. 

On April 8, 1988, Beaver Creek filed an amended notice of contest, 

requesting declaratory relief and charging that the Secretary's 

practices and procedures for approving new and revised roof control 

plans were improper. Beaver Creek also renewed its request for 

attorney's fees and costs. On April 22, 1988, MSHA unconditionally 

approved the roof control modification requested by Beaver Creek, and 

moved to dismiss the notice of contest as amended. The Secretary 

essentially argued that Beaver Creek's request for declaratory relief 

was moot and that the principle of sovereign inununity barred Beaver 

Creek's claims for attorney's fees and costs. 

The administrative law judge granted the Secretary's motion to 

dismiss. The judge concluded that, although the Conunission had 

authority to grant declaratory relief, relief was not warranted because 

the issues were moot. 10 FMSHRC at 764. The judge specifically noted 

that the modification sought by Beaver Creek had been granted by the 

Secretary. Id. The judge also denied Beaver Creek's request for an 

award of attorney's fees and costs, concluding that Fed. R. Civ. P. 11 

does not provide a basis for an award of fees and costs in Conunission 

proceedings. 10 FMSHRC at 763. We granted Beaver Creek's petition for 

review. 

Beaver Creek submits that the Conunission should reverse the order 

of dismissal and reinstate its contest. Beaver Creek asserts that, 

despite MSHA's approval of Beaver Creek's proposed modification of the 

roof control plan at the Trail Mountain No. 9 Mine, the relief Beaver 

Creek seeks involves an interpretation of the proper procedures to be 

followed in the roof control plan approval process and, therefore, that 

the issues are not moot. PDR at 2, 16-19. Beaver Creek also argues 

that it should be awarded the monetary sanctions it seeks. 

The Conunission has previously recognized that it may grant 

declaratory relief in appropriate proceedings where jurisdiction 

otherwise exists. Climax Molybdenum Co., 2 FMSHRC 2748, 2751-52 

(October 1980), aff'd sub nom. Climax Molybdenum Co. v. Secretary of 

Labor, 703 F.2d 447, 452 (10th Cir. 1983); Kaiser Coal Corp., 10 FMSHRC 

1165, 1170-71 (September 1988); See also Youghiogheny & Ohio Coal Co., 

7 FMSHRC 200, 203 (February 1985)( 11Y&011 ). The question is whether 

declaratory relief is appropriate. 

The primary purpose of declaratory relief is "to save parties from 

unnecessarily acting upon their own view of the law. 11 Climax Molybdenum 

Co., 2 FMSHRC at 2752. Beaver Creek instituted this case to challenge 

the validity of the withdrawal order and the inspector's finding of 

unwarrantable failure. Beaver Creek argued that MSHA had not approved, 

and Beaver Creek had not adopted, the provision of the plan for which it 

was cited and thus th~t it had not violated section 75.200. Shortly 

after Beaver Creek initiated this proceeding MSHA itself vacated the 

contested withdrawal order. MSHA admitted that the order had been 

improperly issued because the inspector mistakenly believed that a 

2430 
limitation of 40 feet for the penetration of the remote controlled 

continuous mining machine had been adopted and approved. Thus, MSHA 

agreed with Beaver Creek th~t the company had not violated section 

75.200. 

In addition, MSHA approved without conditions and Beaver Creek 

adopted the modification of the roof control plan originally sought by 

Beaver Creek. The requirements of the roof control plan concerning the 

advancement of remote controlled continuous mining machines inby 

permanent roof supports during development mining are now clearly 

understood by both Beaver Creek and MSHA. Accordingly, denial of 

declaratory relief does not mean that Beaver Creek will have to act at 

its peril regarding the meaning of this previously disputed provision. 

Further, there are no allegations by Beaver Creek that there is a 

present dispute between it and MSHA with respect to the approval or 

review of the mine's roof control plan or of any proposed revisions to 

it. See Tr. 15, 31-32. The prospect that the Secretary will take 

similar enforcement action in the future is purely conjectural and 

cannot be the basis for declaratory relief. See SEC v. Medical 

Committee on Human Rights, 404 U.S. 403, 406 (1972). 

Beaver Creek also requests that we declare invalid certain of the 

practices and procedures used by MSHA in negotiating with operators with 

respect to approval or revision of roof control plans, and that we issue 

a declaratory ruling regarding the effect of the revised roof control 

regulations upon MSHA's authority to review a roof control plan. See 

Amended Notice of Contest 4; 53 Fed. Reg. 2354 (1988). The prospect of 

future allegations of violations resulting from the Secretary's 

practices and procedures for approval or revision of Beaver Creek's roof 

control plan is entirely speculative. Indeed, the Secretary 

acknowledges that MSHA's presently published roof control plan approval 

and review policies "are largely consistent with the positions taken by 

Beaver Creek and the declarations it seeks." See S. Br. 20-24. We 

further find it inappropriate to consider declaratory relief in the 

context of the revised roof control regulations. The revised 

regulation~ were not in effect at the time of the Secretary's 

enforcement action in this proceeding. It would be inadvisable, 

therefore, to express an opinion as to the propriety of the revised 

procedures,·absent a factually grounded controversy arising under those 

procedures. Hence, we agree with the judge that, under the circumstances of this case, declaratory relief is not warranted. 

We also agree with the judge that Beaver Creek is not entitled to 

attorney's fees and litigation expenses. Subsequent to granting review 

of this proceeding, we concluded that the provision of Fed. R. Civ. P. 

11 providing for monetary sanctions does not apply to Commission 

proceedings. Rushton Mining Co., 11 FMSHRC 759 (May 1989). ~/ We held 

~/ Fed. R. Civ. P. 11 provides: 

Signing of Pleadings, Motions, and Other Papers; 

2431 
that, absent specific statutory authority, the Commission cannot award 

attorney's fees and costs against the Secretary. We noted that the 

barriers to such relief "include the silence of the Mine Act on the 

subject, the nature of the Federal Rules of Civil Procedure, the bar of 

sovereign immunity, and the Equal Access to Justice Act (Pub. L. No. 96-

481, 94 Stat. 2325, reauthorized, Pub. L. 99-80, 99 Stat. 183)("EAJA")." 

11 FMSHRC at 763. Beaver Creek raises no arguments causing us to 

reconsider our decision in Rushton. Therefore, for the reasons set 

forth in Rushton, we conclude that Beaver Creek is not entitled to 

attorney's fees and reimbursement for costs under Fed. R. Civ. P. 11. 

Sanctions 

Every pleading, motion, and other paper of a party 

represented by an attorney shall be signed by at 

least one attorney of record in the attorney's 

individual name, whose address shall be stated. A 

party who is not represented by an attorney shall 

sign the party's pleading, motion, or other paper 

and state the party's address. Except when 

otherwise specifically provided by rule or statute, 

pleadings need not be verified or accompanied by 

affidavit. The rule in equity that the averments of 

an answer under oath must be overcome by the 

testimony of two witnesses or of one witness 

sustained by corroborating circumstances is 

abolished. The signature of an attorney or party 

constitutes a certificate by the signer that the 

signer has read the pleading, motion, or other 

paper; that to the best of the signer's knowledge, 

information, and belief formed after reasonable 

inquiry it is well grounded in fact and is warranted 

by existing law or a good faith argument for the 

extension, modification, or reversal of existing 

law, and that it is not interposed for any improper 

purpose, such as to harass or to cause unnecessary 

delay or needless increase in the cost of 

litigation. If a pleading, motion, or other paper 

is not signed, it shall be stricken unless it is 

signed promptly after the omission is called to the 

attention of the pleader or movant. If a pleading, 

motion, or other paper is signed in violation of 

this rule, the court, upon motion or upon its own 

initiative, shall impose upon the person who signed 

it, a represented party, or both, an appropriate 

sanction, which may include an order to pay to the 

other party or parties the amount of the reasonable 

expenses incurred because of the filing of the 

pleading, motion, or other paper, including a 

reasonable attorney's fee. 

(As amended April 28, 1983, effective August 1, 1983.) (Emphasis 

added.) 

2432 
Beaver Creek also argues for an award of attorney's fees and costs 

under section 105(d) of the Mine Act and under general principles of 

American common law. It asserts that such fees and costs are warranted 

when the government engages in frivolous or bad faith litigation. 

However, as we observed in Rushton, the doctrine of sovereign immunity 

bars the award of attorney's fees and costs against an agency of the 

United States absent Congressional authorization. 11 FMSHRC at 765. As 

we explained in Rushton, the EAJA is "the exclusive remedy provided by 

Congress to prevailing litigants who seek reimbursement of their 

litigation expenses from the Secretary in Commission contest and civil 

penalty proceedings." 11 FMSHRC at 765. · Because Beaver Creek makes no 

claim or showing of an entitlement to an award of fees and costs under 

the EAJA, its request must be denied. 

On the foregoing basis, we conclude that the judge properly denied 

Beaver Creek's motion for declaratory relief and for monetary sanctions 

against the Secretary, and we affirm the judge's decision dismissing 

Beaver Creek's contest. 

A&!~ ~/./,___,- '/Jw~. Richard V. Backley, Commissioner 

L. Clair Nelson, Commissioner 

2433 
Distribution 

Chalres W. Newcom, Esq. 

Susan K. Grebeldinger. Esq. 

Sherman & Howard 

633 17th Street, Suite 3000 

Denver, Colorado 80202 

Thomas F. Linn, Esq. 

Atlantic Richfield Co. 

555 17th St .• 20th Floor 

Denver, Colorado 80202 

Steve Scovil, Miner Rep. 

P.O. Box 1181 

Castle Dale, Utah 84513 

Dennis D. Clark, Esq. 

Jerald S. Fingold. Esq. 

U.S. Department of Labor 

Office of the Solicitor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Administrative Law Judge John Morris 

Federal Mine Safety & Health Review Commission 

280 Colonnade Center 

1244 Speer Blvd. 

Denver, Colorado 80204 

2434 
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 

SECRETARY OF LABOR, 

MINE SAFETY AND .HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

METTIKI COAL COMPANY, 

Respondent 

DEC 4 ~989 

. . 

. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. YORK 89-28 

A. C. No. 18-00621-03663 

: Mettiki Mine . . 

. . 

DECISION 

Appearances: Nanci A. Hoover, Esq., Office of the Solicitor, 

U.S. Department of Labor, for the Secretary; 

Before: 

Timothy M. Biddle, Esq., and Susan E. Chetlin, 

Esq., for the Respondent. 

Judge Fauver 

This case was brought by the Secretary of Labor for a civil 

penalty under§ llO(a) of the Federal Mine Safety and Health Act 

of 1977, 30 u.s.c. § 801 et seq. 

After an evidentiary hearing on the citation and the filing 

of post-hearing briefs, the Secretary moved to vacate the 

citation. Respondent has requested that, if the motion is 

granted the order "note that the standard at issue ••• ;s 

§ 75.512 ••• and ••• that standard must be among those" 

conceded by the Secretary to be "applicable only to 

electric-powered equipment and not diesel-powered equipment." 

Rather than exploring further the parties' interpretation of 

§ 75.512, this Decision is being issued on the merits of the 

issue that was originally tried and fully briefed. The Decision 

was written and completed before receiving the Secretary's motion 

to vacate. 

Having considered the hearing evidence and the record 1/ 

as a whole, I find that a preponderance of the substantial, 

1/ The transcript and exhibits are consolidated in Docket Nos. 

YORK 89-10-R, YORK 89-12-R, YORK 89-5, YORK 89-6, YORK 89-16, 

YORK 89-17, YORK 89-18, YORK 89-26, and YORK 89-28. 

2435 
reliable, and probative evidence establishes the following 

Findings of Fact and additional findings in the Discussion below: 

FINDINGS OF FACT 

1. In January, 1989, the Mettiki Mine used diesel t~ackmounted locomotives underground to pull supply cars and mantrips. 

2. The Nos. 2 and 3 diesel locomotives were diesel-powered 

and nonpermissible. 2/ Their lights, gauges and starters were 

operated off of a 12=volt electrical generator. 

3. Company policy required that, at the start of each 

shift, each diesel locomotive operator examine, inter alia, the 

brakes, sanders and general condition of the locomotive-according 

to a pre-operational checklist to be sure the locomotive was in 

safe operating condition. In addition, each week a mechanic was 

to make a thorough examination of each diesel locomotive "just to 

try to keep the equipment in tiptop shape," as Mettiki Safety 

Inspector Alan Rohrbaugh testified. Tr. 55,63. 

4. Mettiki policy also required that a record of these 

weekly maintenance examinations of diesel locomotives be 

maintained; for convenience, the results of these examinations 

were kept in the book in which the results· of the required 

examinations of electrical equipment were recorded. 

5. On January 5, 1989, MSHA Inspector Robert Calvert began 

his regular quarterly inspection of the Mine by checking the 

examination books. 

6. He noted that no examination of the Nos. 2 and 3 diesel 

locomotives nad been recorded for the week of December 24, 1988. 

Based on this finding, he issued Citation 3110574, alleging a 

violation of 30 C.F.R. § 75.512. 

DISCUSSION WITH FURTHER FINDINGS 

The controlling issue is whether Locomotives Nos. 2 and 3 

are "electrical equipment" within the meaning of 30 C.F.R. 

§ 75.512. That regulation, which is a reprint of § 305(g) of the 

Act, provides in pertinent part: 

All electric equipment shall be frequently examined, 

tested, and properly maintained by a qualified person 

to assure safe operating conditions •••• A record· of 

such examinations shall be kept and made available to 

an authorized representative of the Secretary and to 

the miners in such mine. 

'?:._/ In an underground coal mine, "nonpermissible" equipment may 

not be used inby the last open crosscut in any working section. 

2436 
Section 75.512 refers only to electrical equipment, not to 

diesel equipment or diesel equipment with electrical components. 

The plain meaning of the language of § 75.512, as well as its 

relationship to other regulations, does not indicate that a 

diesel locomotive is covered by the regulation. For example, 

§ 75.512-1 and § 75.153 require that, to be a "qualified person" 

within the meaning of § 75.512, an individual must be a qualified 

mine electrician. Unless expressly provided in a regulation, one 

would not expect a mechanic to be additionally trained and 

certified as a mine electrician in order to make a safety 

inspection of a diesel locomotive. Also, § 75.512 is included in 

Subpart F, entitled, "Electrical Equipment." , Subpart F is 

extremely detailed and imposes numerous requirements with respect 

to electrical devices, cables, wires and various types of 

electrical equipment. See, ~, 30 C.F.R. Part 75, Subpart F, 

App. A. However, nowhere does Subpart F mention or require 

periodic inspections of "diesel equipment" or nonpermissible 

"electrical components on mobile diesel-powered transportation 

equipment." Similarly, "diesel equipment" or "electrical 

components on mobile diesel-powered transportation equipment" are 

not mentioned in the explanation of § 75.512 in MSHA's Policy 

Manual. 

Moreover, the language in the Secretary's other regulations 

indicates that where it is intended to apply a standard to 

"mobile diesel-powered transportation equipment" or "electrical 

components on mobile diesel-powered transportation equipment," 

those words are stated. See, for example, 30 C.F.R. §§ 36.2(a), 

36.3 - 36.6, 36.9, 36.28 =36.31, 36.41 ("mobile diesel-powered 

transportation equipment"), and 30 C.F.R. § 36.32 ("electrical 

components on mobile diesel-powered equipment"). Where Congress, 

or an administrative agency, has included a term in one 

regulation and excluded it in another, it should not be implied 

where excluded. Marshall v. Western Union Telegraph Co., 621 

F.2d 1246, 1251 (3d Cir. 1980). Thus, because the Secretary used 

terms relating to "diesel equipment" elsewhere in her 

regulations, such terms are not reasonably implied in § 75.512. 

••• [I]n statutory construction the primary dispositive source 

of information is the wording of the statute itself." 

International Union, United Mine Workers of America v. Federal 

Mine Safety and Health Review Commission, 840 F. 2d 77, 81 (D.C. 

Cir. 1988) (quoting Association of Bituminous Contractors v. 

Andrus), 581 F. 2d 853, 861 (D.C. Cir. 1978). See also Asarco, 

Inc.-Northwestern Mining Department v. Federal Mine Safety and 

Health Review Commission, 868 F.2d 1195 (10th Cir. 1989). In 

matters of statutory and regulatory construction, non-technical 

terms "'are to be given their usual, natural, plain, ordinary and 

commonly understood meaning.'" Western Fuels-Utah, Inc., 11 

FMSHRC 278, 283 (1989) (quoting Old Colony R.R. v. Commissioner, 

284 U.S. 552, 560 (1932)). Where the meaning of language in a 

2437 
regulation is plain, "the ordinary meaning of its words prevails, 

and it cannot be expanded beyond its plain meaning." Western 

Fuels-Utah, supra (citing Old Colony R.R., 284 U.S. at 560). ~ 

also Emery Mining Corp. v. Secretary of Labor, 783 F.2d 155, 159 

(10th Cir. 1986). In coal mines, there are two basic kinds of 

mobile equipment -- equipment powered by electric engines and 

equipment powered by diesel engines. Although the words 

"electric equipment" in § 75.512 are not defined, their meaning 

is plain from the context of the regulation. Mobile "electric 

equipment" reasonably means equipment driven by an 

electric engine1 ll those words do not reasonably imply equipment 

powered by a diesel engine. 

Even if one looks beyond the plain language of the 

regulation, the Secretary has provided no indication that when 

she said "electric equipment" in § 75.512 she meant to include 

"diesel equipment." There is no reference to "diesel equipment" 

in § 75.512, or, indeed, anywhere in 30 C.F.R. Part 75. 4/ The 

Secretary has produced no legal authority, MSHA policy memoranda 

or MSHA training instruction to its inspectors indicating that 

electrical examinations required by § 75.512 must be performed on 

nonpermissible diesel equipment. The Secretary may not enforce a 

regulation based on what she intended to, but did not say. Gates 

& Fox, 790 F.2d at 156. 

Finally, I note that on October 4, 1989, the .Secretary 

issued proposed rules regarding, inter alia, the use of diesel 

equipment in underground coal mines. 54 Fed. Reg. 40950 (1989). 

These proposed rules are inconsistent with the position which the 

Secretary has taken in this case -- that 30 C.F.R. § 75.512 

applies to diesel-powered equipment. 

The proposed regulation requires that "all diesel-powered 

equipment [in underground coal mines] shall be examined and 

tested weekly •••• " 54 Fed. Reg. at 40S95 (proposed 

§ 75.1914). By proposing such a regulation the Secretary has 

ll The legislative history of the 1969 Act confirms that 

Congress was concerned about the kind of equipment driven by 

electricity. It explained the purpose of Subpart F of the 

regulations: "New and iinproved standards have been provided to 

reflect the growing sophistication of electrical systems in 

underground coal mining and the higher voltages used on machines 

that become larger each year." Legislative History at 1126 

(emphasis added). 

4/ As noted, Part 36 of the regulations addresses the use of 

permissible diesel equipment, but only in gassy noncoal mines and 

tunnels. 30 C.F.R. § 36.1. 

2438 
effectively conceded that no regulation currently exists to 

require the weekly inspection of diesel equipment. Indeed, in 

the preamble to these proposed rules, the Secretary states: 

The proposed rules would also seek to amend certain 

equipment safety standards in existing part 75 that are 

now applicable only to electric-powered equipment 

so that such standards would apply, where necessary, to 

diesel powered equipment as well. 

Because the locomotives at issue were diesel-powered, the 

requirements of § 75.512 did not apply to them and no violation 

of that regulation occured. If the Secretary desires to include 

diesel-powered locomotives in § 75.512, she must use the 

rulemaking procedures in § 101 of the Act, not litigation. 

CONCLUSION OF LAW 

1. The judge has jurisdiction over this proceeding. 

2. Section 75.512 does not apply to the two diesel-powered 

locomotives cited in Citation 3110574. 

3. The Secretary failed to prove a violation of 30 C.F.R. 

§ 75.512. 

ORDER 

WHEREFORE IT IS ORDERED that Citation 3110574 is VACATED and 

this proceeding is DISMISSED. 

Distribution: 

rJJJ,.,;.,. ':::r~ ~fA. William Fauver 

Administrative Law Judge 

Nanci A. Hoover, Esq., Office of the Solicitor, U.S. Department 

of Labor, 3535 Market Street, Philadelphia, PA 19104 (Certified 

Mail) 

Susan E. Chetlin, Esq., Crowell and Moring, 1001 Pennslyvania 

Ayenue, N.W., Washington, D.C. 20004-2505 (Certified Mail.) 

iz 

2439 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 5 1989 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING 

on behalf of 

F~ED BARTLEY, Docket No. KENT 89-102-DM 

Petitioner 

v .• 

ADAMS STONE CORPORATION, 

Respondent 

Jenkins Quarry 

CORRECTION TO SUPPLEMENTAL DECISION 

Appearances: Thomas.• A. Grooms, Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, Tennessee, 

for Complainant; David Adams, Esq., Vice-President, 

Adams Stone Corporation, Pikeville, Kentucky, for 

Respondent. 

Before: Judge Broderick 

On November 13, 1989, I issued a Supplemental Decision in 

tnis case ordering, inter alia, the payment of back wages and 

other benefits to Complainant Bartley. The order was based on 

my misunderstanding the Secretary's Statement of Back Wages 

dated October 16, 1989, and received by the Commission October 23, 

1989. 

Therefore, IT IS ORDERED that the Supplemental Decision 

of November 13, 1989, is SET ASIDE. 

IT IS FURTHER ORDERED that the Secretary submit on or 

before December 22, 1989, a statement of back wages due Bartley 

pursuant to my Decision and order issued October 18, 1989. 

IT IS FURTHER ORDERED that Respondent shall reply to the 

Secretary's statement on or before January 12, 1990. The 

decision is not final until a corrected supplemental decision 

is issued following receipt of the above submissions. 

) ftWi1h A-f1mrlvvz(/_ 

James A. Broderick 

J Administrative Law Judge 

Distribution: 

Thomas A. Grooms, Esq., U.S. Department of Labor, Office of 

the Solicitor, 2002 ~ichard Jones Road, Suite B-201, Nashville, 

TN 37215 (Certified Mail) 

David H. Aaams, Vice Presiaent, Adams Stone Corporation, 

P.O. Box 2320, Pikeville, KY 41501 (Certified Mail) 

slk 

2440 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 5 1989 

SECRETARY OF LABOR, CIVIL PENALTY PROCEED!NG 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

KELLY TRUCKING COMPANY, 

Respondent 

. . 

DECISION 

Docket No. CENT 89-13 

A.C. No. 03-00278-03502 J3E 

Sugarloaf Mine No. 1 

Appearances: Jerome T. Kearney, Esq., U.S. Department of Labor, 

Office of the Solicitor, Dallas, Texas, for the 

Petitioner; 

Before: 

Curtis Kelly, Kelly Trucking Company, Hodgen, 

Oklahoma, for the Respondent. 

Judge.Maurer 

This case is before me upon the petition for .civil penalty 

filed by the Secretary of Labor pursuant to section lOSCd) of the 

Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et 

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

The general issues before me are whether the Kelly Trucking 

Company has violated the cited regulatory standards and, if so, 

what is the appropriate civil penalty to be assessed in accordance with section llOCi> of the Act. Additional issues are also 

addressed in this decision as they relate to specific citations 

or orders. 

The case was heard in Little Rock, Arkansas on July 6, 1989. 

Both parties declined to file post-hearing proposed findings of 

fact and conclusions of law, however, I have considered their 

oral arguments made on the record during the course of the 

hearing in my adjudication of this case. 

Section 104(g)(l) Withdrawal Order No. 2929232 was issued on 

July 5, 1988, and states as follows: 

Ronnie. Bennett, observed pe.rforming duties on and 

around the dragline has not received the requisite 

safety training as stipulated in section 115 of the Act. 

Mr. Bennett has been determined to be a new miner hired 

2441 
by this Company on 07-04-88, and has received little or 

none of the required 24 hours of new miner training. 

In the absence of this training Ronnie Bennett dragline 

operator is declared to be a hazard to himself and 

others and is to be immediately withdrawn from the mine 

until he has received the required training. 

Citation No. 2929233, issued in conjunction with the above 

Order and pursuant to section 104Cd)(l) of the Act, alleges a 

violation of the regulatory standard at 30 C.F.R. § 48.25(a) and 

charges as follows: 

Ronnie Bennett, determined to be a new miner was 

observed performing duties around the Koehring dragline. 

A discussion with Mr. Bennett revealed that he had 

received none of the required 24 hours of new miner 

training. A later discussion with the foreman revealed 

Mr. Bennett had received no training as stipulated in 

the Company's approved training plan. 

Section 104(g)(l) Withdrawal Order No. 2929236 was also 

issued on July 5, 1988, and states as follows: 

Paul Wells (Contractor} was observed performing duties 

on and around the dragline has not received the 

requisite safety training as stipulated in section 115 

of the Act. Mr. Wells has been determined to be a new 

miner hired by the Company on 06-29-88, and has 

received none of the required 24 hours of new miner 

training. In the absence of this training, Paul Wells 

Contractor and foreman is declared to be a hazard to 

himself and others and is to be immediately withdrawn 

from the mine until he has received the required 

training. 

Issued in conjunction with Order No. 2929236 was section 

104(d)(l} Order No. 2929237, alleging another violation of the 

regulatory standard at 30 C.F.R. § 48.25(a) and charging as 

follows: 

Paul Wells, determined to be a new miner was observed 

performing duties on and around the Koehring dragline. 

A discussion with Mr. Wells revealed that he had not 

received any of the required 24 hours of new miner 

training that is stipulated in the Company approved 

training plan. 

2442 
Finally, section 104(a) Citation No. 2929235 was issued on 

July 5, 1988, alleging a violation of 30 C.F.R. § 77.1713(c) and 

charging as follows: 

The results of the daily examination were not being 

recorded. 

There is no factual dispute whatsoever that the cited 

employees did not have the required training under the pertinent 

regulation or that the results of the daily examinations were not 

being recorded as charged. The respondent's "defense" is that he 

contacted Inspector Coleman prior to the July, 5 inspection Con 

July 3 or 4) and told him that he wanted to take coal fines out 

of a pond or ponds at the Sugarloaf Mine near Midland, Arkansas. 

He explained to the inspector that he was unfamiliar with the 

coal mining regulations. He didn't know what he needed to do to 

be legal and he asked the inspector to meet with him or "one of 

his people" at the mine site to tell him or them what they needed 

to do in order to be legal. The inspector remembers the 

conversation but his recollection is that the respondent was 

concerned about making the dragline legal. He maintains that the 

subject of personnel training was never mentioned. In any event 

he testified that: "We cannot go and just give an inspection ••• o 

When I go to a mine, my supervisor sends me to a mine and 

whenever I see a violation, I have to issue a citation" (Tr. 25). 

On July 5, 1988, when Inspector Coleman arrived at the mine 

site, there were two persons present, Paul Wells and Ronnie 

Bennett. They both stated they were working for Mr. Kelly. At 

the time, they were both performing maintenance on the dragline. 

When asked, Mr. Bennett stated that he had no miner's training 

and was unfamilar with the dragline he was working on. When the 

inspector asked Mr. Wells what he was doing, he replied that he 

was there fixing the dragline and that they were going to take 

some coal fines out. He also stated that he had no miner's 

training and had never been around a mine. He was, however, 

familiar with the equipment. He owned the dragline in question. 

The inspector was and is of the opinion that the dragline 

had been there for several days and had taken out several hundred 

tons of coal fines already. Mr. Bennett also told the inspector 

that he had been there for three or four days, and there is no 

factual dispute that several tons of material (coal fines) had 

been taken out and laid up on the side. The question is who took 

them out. 

During the inspector's conversation with Mr. Bennett, he 

also determined that no one was doing any kind of pre-shift 

inspections, checking the equipment out or anything. There was 

no one there that was certified to do pre-shift inspections and 

no records whatsoever were being kept at this mine. 

2443 
Mr. Kelly testified to the effect that he didn't even know 

that Mr. Wells had Mr. Bennett at the mine site. It is Kelly's 

position that Bennett was just being tried out for a position as 

dragline operator and was not on the payroll of either Kelly 

Trucking or Mr. Wells at the time of the inspector's visit. 

The arrangement between Kelly Trucking and Wells was that 

Wells was to furnish his dragline and an operator to Kelly 

Trucking for so much a ton of coal fines recovered. Kelly 

Trucking in turn had been hired by Earl Powers, who had the mine 

leased, to take out coal fines. 

,. 

Mr. Kelly also takes the position that the 300 tons of coal 

fines out on the bank on July S, 1988, were taken out by someone 

else, not him. So, the upshot of this testimony was that the 

pile of coal fines the inspector saw was taken out by the HHH 

Mining Company using a different dragline. The significance of 

this evidence being that neither the Kelly Trucking Company nor 

Messrs. Wells and Bennett were responsible for "mining" this 

material. I accept this evidence as credible and I do credit it. 

However, what Mr. Kelly describes as "experimenting" does amount 

to operating a mine in my opinion. He admits to being on the 

mine property on two previous occasions trying to take out some 

of these coal fines with small bulldozers. Additionally, Bennett 

told the inspector on July 5 1988, that he had already been on 

the mine property for three or four days-Working with this truck 

mounted dragline that belonged to Wells. The inspector further 

noted that the dragline was all set up. It had coal dirt all 

over it where it had been worked and Bennett told him he had been 

working it. Mr. Kelly even candidly allows that Bennett may have 

swung his bucket out there and taken out some piles of material, 

but not the 300 tons that the inspector assumed he did. 

On the basis of the entire record herein, I fin~ that the 

respondent was operating a "mine" on July S, 1988, and that Wells 

and Bennett were "miners" within the meaning of the Act on that 

date. Accordingly, since they admittedly did not have the 

required training, the Secretary has proven the two training 

violations of 30 C.F.R. § 48.25(a) alleged herein. With regard 

to the alleged violation of 30 C.F.R. § 77.1713Cc), the 

inspector's testimony stands unrebutted and therefore, I find 

that violation proven as well. 

· I do not find, however, on the facts of this case that the 

training violations were the result of the "unwarrantable 

failure" of Kelly Trucking to comply with the law. 

"Unwarrantable failure" means aggravated conduct constituting 

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

violation of the Act. Emery Mining Corp., 9 FMSHRC 1997 (1987). 

2444 
In the Emery case the Commission compared ordinary negligence as 

being conduct that is "inadvertent", "thoughtless", or 

"inattentive" with conduct constituting an unwarrantable failure 

i.e. conduct that is "not justifiable" or "inexcusable". 

In this case, I believe Mr. Kelly made a good faith attempt 

to comply with the regulations. His efforts just amounted to a 

case of too little, too late, to avoid being in a violative 

posture at the mine site. On his own, he contacted the MSHA 

inspector before the inspection and told him what he intended to 

do and that he wanted to operate the mine site in a legal manner. 

He specifically requested assistance from the, inspector to 

achieve compliance. A fair reading of the record in this case 

shows that the inspector was not too helpful to Mr. Kelly in this 

regard. 

Both the inspector and Mr. Kelly knew the inspector was 

coming to the mine site on the day in question, but each had a 

different purpose in mind. The difference is that the inspector 

was coming on a previously scheduled inspection and if he found 

violations he intended to write citations. Kelly, on the other 

hand, thought this visit was at his behest, "to get him legal", 

in his words. 

Under the circumstances, I find Kelly's negligence to be 

ordinary negligence, attributable to his ignorance of the 

regulations and inattention to detail. Therefore, Citation 

No. 2929233 and Order No. 2929237 must be modified to citations 

issued under section 104Ca) of the Act. 

The Secretary also alleged that the violations were 

"significant and substantial". In order to find that a 

violation is "signficant and substantial" the Secretary has the 

burden of proving an underlying violation of a mandatory safety 

standard, a discrete safety hazard (a measure of danger to 

safety) contributed to by the violation, a reasonable likelihood 

that the hazard contributed to will result in an injury, and a 

reasonable likelihood that the injury in question will be of a 

reasonably serious nature. See Mathies Coal Co., 6 FMSHRC 1 

(1984). 

According to the undisputed testimony of Inspector Coleman, 

the retaining ponds at this mine differ significantly. In some 

of them, the material is very consolidated and in some it is very 

liquified, and there is an elevated roadway that goes around 

these ponds that has water on one side. In the opinion of the 

inspector there could likely be a fatal accident if the operator 

turned a vehicle over into one of these ponds. The inspector 

also opined that just being on this property would be a very 

dangerous situation for an untrained person who was not familiar 

with that environment. Under these circumstances, I conclude and 

2445 
find that the two individuals in question were exposed to the 

hazards inherent in such activities and that their lack of 

training presented a reasonable likelihood of an injury or 

accident of a reasonably serious nature. Within the framework of 

this evidence, I conclude that the training violations were 

"significant and substanti~l" and serious. 

In assessing a civil penalty in this case, I have also 

considered the size of this operation, its history of violations 

Cone other training violation two years prior), its good faith 

abatement of the violations found herein and the consequences 

payment of a penalty would have on the future, of the company. 

Counsel for petitioner was given 30 days subsequent to the 

hearing to put the computer printout of the respondent's 

violation history into the record. He has neglected to do so and 

therefore I assume there were no prior violations of the 

regulations by the Kelly Trucking Company within the 24 months 

preceding the violations found to exist herein. That is the gist 

of the operator's testimony and I accept it as being credible. 

By independent research of the Commission's records, I have 

determined that the respondent did pay a $100 civil penalty in 

1987 for a training violation which arose in 1986. 

Under the circumstances, I find that a civil penalty of $225 

for each of the training violations found herein and a civil 

penalty of $20 for the recordkeeping violation are appropriate. 

ORDER 

1. In accordance with the foregoing findings and 

conclusions, including the rejection of the inspector's 

unwarrantable failure findings, section 104(d)(l) Citation 

No. 2929233 and Order No. 2929237 each citing a violation of 

30 C.F.R. § 48.25(a) for the failure to provide training for the 

two cited individuals are modified to section 104(a) citations, 

with "S & S" findings, and affirmed as such. 

2. Section 104(a) non-"S & S" Citation No. 2929235, citing 

a violation of 30 C.F.R. § 77.1713Cc> for a recordkeeping 

violation is affirmed as issued. 

3. The respondent is ordered to pay a civil penalty of $470 

within 30 days of this decision and order. 

Roy /~~ urer 

Admi strative Law Judge 

2446 
Distribution: 

Jerome T. Kearney, Esq., Office of the Solicitor, U.S. Department 

of Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202 

(Certified Mail) 

Mr. Curtis Kelly, P.O. Box 10, Hodgen, OK 74939 (Certified Mail) 

/ml 

2447 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 6 1989 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner : 

. . 

. . 

v. 

ISLAND CONSTRUCTION CO., 

INC., 

Respondent 

: 

. . 

. . 

Docket No. SE 89-95-M 

A.C. No. 38-00595-05506 

Yaupon Plantation Pit 

DECISION 

Appearances: Michael K. Hagan, Esq., Office of the Solicitor, 

U.S. Department of Labor, Atlanta, Georgia, for 

the Secretary of Labor (Secretary>; 

John B. Bailey, President, Island Construction 

Co., Inc., Charleston, South Carolina, for 

Respondent, Island Construction Co., Inc. (Island). 

Before: Judge Broderick 

STATEMENT OF THE CASE 

The Secretary seeks civil penalties for nine alleged 

violations of mandatory safety standards at Island's Yaupon 

Plantation Pit, all cited on January 18, 1989. Island denies 

that the operations at the Yaupon Plantation Pit are subject to 

the Mine Safety Act, and denies that its operation affects 

interstate commerce. It denies that the violations alleged took 

place, and contests the proposed penalties. 

Pursuant to notice, the case was called for hearing in 

Charleston, South Carolina, on November 1, 1989. Merle Slaton 

and Kelly Fulz testified on behalf of the Secretary. The 

Secretary also called John Bailey as an adverse witness. Bailey 

testified on behalf of Island. 

At the close of the hearing, the parties argued their 

positions on the record and waived their rights to file 

posthearing briefs. I have considered the entire record and the 

contentions· of the parties, and make the following decision. 

2448 
FINDINGS OF FACT 

I 

Island's primary business is the grading of land for new 

residential subdivisions, for shopping centers and for roads and 

highways. The Yaupon Plantation Pit is apparently slated to 

become a residential subdivision at some future time. The annual 

gross receipts of Island are approximately 2 to 3 million dollars. 

Island also sells sand to customers--private contractors and 

governmental agencies. This part of its business brings in gross 

annual receipts of more than $100,000. In pexcentage terms about 

5 to 10 percent of its gross annual income is received from the 

sale of sand to the general public. Such sales are made to 

trucking companies, construction companies, road building 

agencies, and water and sewer construction agencies. The sand is 

used for filling and grading. It is apparently not fit for 

making concrete or for use in construction activities, other than 

as a fill. 

Island does not excavate or produce gravel. It removes the 

overburden, then removes the sand which is used in its grading 

operations and sold to the general public. Sand is of course 

nonliquid. 

Sand is defined in A Dictionary of Mining, Mineral, and 

Related Terms, (U.S. Dept. of the Interior, 1968) as: 

a. Separate grains or particles of detrital rock 

material, easily distinguishable by the unaided eye, 

but not large enough to be called pebbles; also, a 

loose mass of such grains, forming an incoherent 

arenaceous sediment. 

* * * * * * * 

b. In geology, any loose or moderately consolidated bed 

consisting chiefly of sand; often used in the plural, 

even in the name of a single deposit. 

* * * * * * * 

I find that in excavating sand, Island is extracting a 

mineral from the earth's surface. 

In January 1989, the Yaupon Plantation Pit was composed of 

two separate facilities: the Mt. Pleasant Pit and the Johns 

Island Pit. The Mt. Pleasant facility is no longer producing 

sand. Island had 50 to 60 pieces of equipment, including trucks, 

loaders, graders, dozers and a pump. The equipment includes a 

2449 
Caterpillar Motor Grader manufactured in Illinois, an 

Allis-Chalmers loader and an International dozer, both 

manufactured outside of South Carolina. Island also had a 

Mercedes-Benz fuel truck and a pump, both manufactured outside of 

South Carolina. Since 1984, MSHA has made 18 to 20 regular and 

follow-up inspections .at Island's facilities. 

II 

On January 18, 1989, MSHA Metal/Nonmetal supervisory 

inspector Merle Slaton and inspector Kelly Fulz inspected the 

Yaupon Plantation Pit. Fulz at the time was an training. He 

became a designated representative of the Secretary on 

September 27, 1989. As a result of the inspection, 9 citations 

were issued. 

A. Inoperative Service Brakes. Citations 2856484 and 

2856485 charged violation$ of 30 C.F.R. § 56.14101Ca> 

because of inoperatiave services brakes on a 

Caterpillar motor grader and an Allis-Chalmers front 

end loader, both located at the Johns Island facility. 

The grader appeared to have been recently operated and 

the vehicle operator said it had been used that morning. 

When the inspector (Fulz) pushed the brake pedal with 

his hand, it offered no resistance but went all the way 

to the floor. The foreman said that there was a leak 

in the hydraulic system. The front end loader was in 

operation during the inspection. The inspector noticed 

that the loader operator stopped it by dropping his 

bucket. When he was questioned the vehicle operator 

said that the brakes on the machine were inoperative. 

30 C.F.R. § 56.1410(a) provides in part: 

(a) Minimum requirements. Cl> Self-propelled 

mobile equipment shall be equipped with a service brake 

system capable of stopping and holding the equipment 

with its typical load on the maximum grade it travels. 

* * 

(3) All braking systems installed on the equipment 

shall be maintained in functional condition. 

* 

Inspector Slaton issued the citations involved in this 

proceeding. I find as a fact that the braking systems on the 

Caterpillar Motor Grader and the Allis-Chalmers front end loader 

were not maintained in functional condition. I further find that 

the violations were serious and resulted from Island's 

negligence. 

2450 
B. Inoperative Parking Brakes. Citations 2856487 and 

2856504 were issued charging violations of 30 C.F.R. 

§ 56.1410l(a)(2) because of inadequate parking brakes 

on a Terex front end loader and a Mercedes-Benz fuel 

truck. The front end loader was being operated at the 

Mt. Pleasant facility, and the fuel truck at both 

locations. 

30 C.F.R. § 56.1410l(a)(2) provides: 

(2) If equipped on self-propelled mobile equipment, 

,parking brakes shall be capable of holding the 

equipment with its typical load on the maximum grade it 

travels. 

I find as a fact that the parking brakes on the loader and 

the fuel truck were inoperative. The vehi'.cles were used on level 

ground, and the violations were considered nonserious. 

C. Seat Belt violations. Citation 2856483 was issued 

charging a violation of 30 C.F.R. § 56.14130Cf)(2) 

because an International Dozer, equipped with roll over 

protection, did not have seat belts. Citations 2856486 

and 2856506 charged violations of 30 C.F.R. 

§ 56.14130Cg) because operators of two differ~nt 

loaders were operating their vehicles and not using 

seat belts. 30 C.F.R. § 56.14130Ca) requires ROPS and 

seat belts on crawler tractors Cdozers). 

30 C.F.R. § 56.14130(f)(2) provides: 

Cf) Exemptions. 

* * 

(2) Self-propelled mobile equipment manufactured prior 

to October 24, 1988, that is equipped with ROPS and 

seat belts that meet the installation and performance 

requirements of 30 C.F.R. § 56.9088 ••• shall be 

considered in compliance with paragraphs (b) and Cc> of 

this section. 

30 C.F.R. 14130(g) requires that seat belts be worn by 

equipment operators. 

I find·as a fact that the International dozer cited was not 

equipped with seat belts. I further find that the loader 

operators cited were not wearing seat belts. The violations were 

considered nonserious. 

2451 
D. Back-up Alarm and Horn. Citation 2856503 charged a 

violation of 30 C.F.R. § 56.14132 because the audible 

signalling device (horn) and reverse signal alarm were 

inoperative. 30 C.F.R. § 56.14132(a) requires all 

self-propelled mobile equipment to have horns in 

functional condition. Section 14132(b) requires such 

equipment to have a functioning back-up alarm when the 

equipment operator has an obstructed view to the rear. 

I find as a fact that the cited fuel truck did not have an 

operative horn or back-up alarm. I find that, the operator of the 

truck had an obstructed view to the rear. Persons were in the 

area on foot. The absence of the alarms was a serious violation. 

E. BERMS. Citation 2856505 charged a violation of 30 

C.F.R. § 56.9300 because there was no berm at an open 

ditch by the roadway on the pit property. The length 

of the roadway was about 500 feet. The ditch was about 

15 feet deep and the drop off was vertical. 30 C.F.R. 

§ 56.9300 requires berms or guardrails on the banks of 

roadways where a drop-off exists of sufficient grade or 

depth to cause a vehicle to overturn or endanger 

persons in equipment. 

I find as a fact that no berm or guardrail wa,s provided on 

the bank of the roadway cited. I find that a drop off existed of 

such grade and depth that a vehicle could overturn. I find that 

the violation was serious and was evident to visual observation. 

ISSUES 

1. Was Island subject to the jurisdiction of the Mine Act 

in the operation of the Yaupon Plantation Pit? 

2. If so, did the violations charged in the citations 

involved herein occur? 

3. If they did, what are the appropriate penalties? 

CONCLUSIONS OF LAW 

I. JURISDICTION 

Section 3(h)(l) of the Mine Act defines a "coal or other 

~ine" in part as "(A) an area of land from which minerals are 

extracted in nonliquid form ••• " I have found that sand is a 

mineral, and that Island extracts it from an area of land. I 

conclude, therefore, that Island ooerates a mine as that term is 

used in the Act. ~ 
In 1979, the Mine Safety and Health Administration and the 

Occupational Safety and Health Administration, both in the 

department of Labor, entered into an Interagency Agreement. 44 

F.R. 22827, April 17, 1979, effective March 29, 1979. The 

purpose of the agreement was to guide the agencies and affected 

employers and employees of the general principle and procedures 

to be followed in determining the jurisdiction of the two 

statutes (Mine Act and OSHAct). The general principle is set out 

as follows: " ••• as to unsafe and unhealthful working 

conditions on mine sites ••• , the Secretary will apply the -

provisions of the Mine Act and standards promulgated thereunder • 

" The agreement refers (B.5) to "Congress' intention that 

doubts be resolved in favor of inclusion of a facility within the 

coverage of the Mine Act." 

Paragraph B.7 refers to "borrow pits." It states that 

borrow pits are subject to OSHA jurisdiction except when located 

on mine property or related to mining. It defines a borrow pit 

as "an area of land where the overburden, consisting of 

unconsolidated rock, glacial debris, or other earth 'material is 

extracted from the surface. Extraction occurs on a one-time only 

basis or intermittently as need occurs, for use as fill materials 

by the extracting party in the fonn in which it is extracted 

• • • the material is used by the extracting party more for its 

bulk than its extrinsic qualities on land which is. relatively 

near the borrow pit." 

Island's operation is located on mine property and is 

related to mining (the extraction of sand). The extraction is 

not on a one-time basis or intermittently. The extraction is 

used in the form in which it is extracted as fill material, but 

not exclusively by the extracting party, since some of the 

extracted material is sold to the general public. 

I conclude that under the MSHA-OSHA Interagency Agreement, 

Island's facility is not made subject to OSHA jurisdiction. 

Section 4 of the Act provides that each mine, the products 

of which enter commerce, or the operations or products of which 

affect commerce is subject to the Act. The evidence indicates 

that Island's sales of sand are made to customers within the 

State of South Carolina. This does not remove it from the Act's 

requirements. It used substantial amounts of equipment 

manufactured in other states or countries. Its products were 

sold intrastate but clearly affected interstate commerce. See 

Wickard v. Filburn, 317 U.S. 111 (1942); Marshall v. Bosack, 463 

F.Supp. 800 CE.D. Pa. 1978); Marshall v. Kilgore, 478 F.Supp. 4 

(E.D. Tenn. 1979); Secretary v. R&S Coal Company, 8 FMSHRC 1333 

2453 
(1986 ALJ). I conclude that Island's operations and products 

affected interstate commerce. 

II. VIOLATIONS 

I conclude that each of the violations cited in this 

proceeding has been established by the preponderance of the 

evidence to have occurred. Mr. Bailey stated on the record: 

"Brought down to a direct yes or no, I would have to say that 

what I got a citation for more than likely did exist at the time 

the inspectors looked at it, but I think it's more to it than 

just the yes or no." CR. 151). He then discussed the specific 

citations more in terms of gravity than in terms of the existence 

of the violations. Island is a small mine operator and has a 

favorable history of prior violations. All the violations 

involved herein were abated promptly in good faith. 

Citations 2856483, 2856486, 2856487, 2856504 and 2856506 

were considered nonserious by the inspectors. I accept their 

determination as to these violations. Twenty dollars ($20) is an 

appropriate penalty for each of these violations. 

Citation 2856484 charges a violation of 30 C.F.R. 

§ 56.1410Ca) because of the absence of brakes on a caterpillar 

motor grader; Citation 2856485 charges a violation of the same 

standard because of the absence of brakes on an ALlis-Chalmers 

front end loader. These are very large machines. The absence of 

brakes is a serious safety hazard and therefore a serious 

violation. The inspector rates Island's negligence as moderate. 

The foreman told the inspector that with respect to the grader, 

he was aware of a hydraulic leak in the braking system. There is 

no factual evidence of negligence with respect to the front end 

loader. One hundred fifty dollars ($150) is an appropriate 

penalty for the violation cited in 2856484; $75 for that cited in 

2856485. 

Citation 2856503 charges a violation of 30 C.F.R. § 56.14132 

because of the absence of a horn and a back-up alarm on a fuel 

truck. There were persons in the area on foot. The violation 

was serious and should have been obvious to Island. Seventy five 

dollars ($75) is an appropriate penalty. 

Citation 2856505 charges a violation of 30 C.F.R. § 56.9300 

because of the absence of a berm at an open ditch. The ditch was 

about 15 feet deep and the drop off was verticle. The violation 

was serious in that a vehicle could overturn which would result 

in serious injuries. The absence of the berm was evident and 

resulted from Island's negligence. One hundred fifty dollars 

($150) is an appropriate penalty. 

2454 
ORDER 

Based on the above findings of fact and conclusions of law 

and considering the criteria in section llQ(i) of the Act, IT IS 

ORDERED: 

1. Citations 2856483, 2856484, 2856485, 2856486, 2856487, 

2856503, 2856504, 2856505, and 2856506 are AFFIRMED. 

2. Respondent Island Construction Co., Inc. shall within 30 

days of the date of this decision pay the following penalties: 

CITATION 

2855483 

2856484 

2856485 

2856486 

2856487 

2356503 

2856504 

2856505 

2856506 

Distribution: 

PENALTY 

$ 20.00 

150.00 

75.00 

20.00 

20.00 

75.00 

20.00 

150.00 

20.00 

TOTAL $ 550.00 

~ k(.Jv-a~--- James A. Broderick 

Administrative Law Judge 

Michael K. Hagan, Esq., U.S. Department of Labor, Office of the 

Solicitor, Room 339, 1371 Peachtree Street, N.W., Atlanta, GA 

90367 (Certified Mail) 

Mr. John B. Bailey, President, Island Construction Co., Inc., 

P.O. Box 60190, Charleston, SC 29419-0190 (Certified Mail) 

slk 

2455 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

DEC 6 1989 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MID-CONTINENT RES OUR.CBS I 

INC. I 

"Respondent 

DECISION 

CIVIL PENALTY PROCEEDING 

Doc.ket No. WEST 88-230 

A.C. No. 05-00301-03548 

Docket No. WEST 88-231 

A.C. No. 05-00301-03549 

Dutch Creek No. 1 Mine 

Appearances: James H. Barkley, Esq., Margaret A. Miller, Esq., 

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

Denver, Colorado, 

For Petitioner; 

Edward Mulhall, Jr., Delaney & Balcomb, Glenwood 

Springs, Colorado, 

For Respondent. 

Before: Judge Morris 

The Secretary of Labor, on behalf of the Mine Safety and 

Health Administration, CMSHA), charged respondent Mid-Continent 

Resources, Inc., (Mid-Continent), with violating various regulations promulgated under the Federal Mine Safety and Health .Act, 

30 u.s.c. § 801 et seq., (the "Act"). 

After notice to the parties a hearing on the merits was 

held in Glenwood Springs, Colorado. 

Mid-Continent filed a post-trial brief. 

Introduction 

These cases involve the following alleged violations of 

30 C.F.R., Part 75. 

Docket No. WEST 88-231 

104(d)(2) 1/ 

Order No. 

3223449 

2832627 

Date 

1-20-88 

1-26-88 

30 C.F.R. 

Regulation 

Section 

§ 75.1110-3 

§ 75.305 

1/ All of the orders in these cases were issued under section 

104(d)(2) of the Act. The parties further stipulated the orders 

were written while the (d) series was in effect. · 

2456 
Docket No. WEST 88-230 

104Cd)C2) 

Order No. 

2832624 

2832625 

3076182 

3076185 

3076189 

3076190 

3076193 

3076194 

3076195 

3223121 

3223122 

3223124 

3223125 

3223159 

3223185 

3223207 

3223220 

3223445 

3223446 

3223447 

Date 

10-24-87 

10-24-87 

12-10-87 

12-11-8 7 

12-11-87 

12-11-87 

12-12-87 

12-12-87 

12-12-87 

12-12-87 

12-12-87 

12-13-87 

12-13-87 

12-28-87 

12-29-87 

1-12-88 

1-15-88 

1-20-88 

1-20-88 

1-20-88 

Transcripts of Proceedings 

30 C.F.R. 

Regulation 

Section 

§ 75.305 

§ 75.305 

§ 75.316 

§ 75.400 

§ 75.316 

§ 75.316 

§ 75.110 5 

§ 75 .110 5 

§ 75 .110 5 

§ 75.200 

§ 75.1704 

§ 77.502 

§ 75.400 

§ 75.316 

§ 75.316 

§ 75.1100-3 

§ 75.403 

§ 75.400 

§ 75.403 

§ 75.316 

The evidentiary hearings in the foregoing proceedings were 

conducted in separate hearings over periods of several days each. 

The hearings in Docket No. WEST 88-231 were conducted on 

November 29 and December 1, 1988. These transcripts are in two 

volumes and consist of pages 1-205 and 206-288, respectively. 

For convenience of reference these two volumes are consolidated 

and they will be ref erred to as Volume I in the following manner; 

i.e., "CTr. 1-266)." [Illustrative emphasis supplied.] 

The hearings in Docket No. WEST 88-230 were conducted in 

two sets of hearings. The first of these was held Novenber 30, 

December 1 and December 2, 1988. The transcripts in this first 

2457 
evidentiary hearing are in three volumes and consist of pages 

1-230 and 231-320 and 321-412 respectively. For convenience 

of reference these three volumes are consolidated and they 

will be referred to as volume 2 in the following manner; 

i.e., "(Tr. 2-411)." [Illustrative emphasis supplied.] 

The final hearings in Docket No. WEST 88-230 were conducted January 17, 18 and 19, 1989. The transcripts in the 

second evidentiary hearing are in three volumes and consist 

of pages 321-514, 515-733 and 734-778. For convenience of 

reference these three volumes are consolidated and they will 

be referred to as Volume 3 in the following manner; i.e., 

"(Tr. l-758)." [Illustrative emphasis supplied.] --

By these groupings of the transcripts into three consolidated volumes, according to hearing dates and docket numbers, 

the potential confusion resulting from duplicated pagination 

should be avoided. 

Mid-Continent's Legal Position 

Mid-Continent's legal position is straightforward. Except 

for three alleged violations (Order No. 3076189, Order No. 

3223122 and Order No. 3223185) Mid-Continent does not deny the 

existence of the conditions described by the Secretary in the 

foregoing orders or that such conditions constituted violations 

of the applicable sections of 30 C.F.R. Part 75. Instead, MidContinent disputes the "unwarrantable failure" characterization, 

the alleged violation of section 104(d)(2), and the corresponding 

special penalty assessment for such violations. 2/ 

Structure of the Decision 

Several of the alleged violations are related to type of 

circumstances or by date of occurrence. Accordingly, several 

of the individual orders have been grouped when logic indicates 

the grouping is warranted. The review of these orders in this 

decision is neither consecutive nor chronological. 

ll Post-trial Brief at 3. 

2458 
Frozen Waterlines in Rock Tunnels Project 

North Adit During Winter Weather 

Order No. 3223449 

(Issued January 20, 1988) 

This portion of the decision addresses two 104(d)(2) orders 

alleging violations of 30 C.F.R. § 75.1100-3. 3/ 

The narrative allegations of Order No. 3223449, alleging 

a violation of 30 C.F.R. § 75.1100-3, are as follows: 

The firefighting equipment (waterlines) 

along the No. 1 and the No. 2 belt conveyors in the Rock Tunnel Project were 

not being maintained in a usable and operative condition. The waterlines did 

not contain water. 

Order No. 3223207 

(Issued January 12, 1988) 

The narrative allegations of Order No. 3223207, alleging 

a violation of 30 C.F.R. § 75.1100-3, are as follows: 

The waterlines and the f irehose outlet 

Cf ire fighting equipment) installed 

along No. 1 belt conveyor Cin the north 

adit) were not maintained in a.usable 

and operative condition. The waterlines 

and the firehose outlets were frozen 

beginning at the portal and extending 

inby for 4 crosscuts, about 1,300 linear 

feet. 

ll The cited regulation provides as follows: 

§ 75.1100-3 Conditions and examination of 

firefighting equipment. 

All firefighting equipment shall be 

maintained in a usable and operative condition. Chemical extinguishers shall be 

examined every 6 months and the date of 

the examination shall be written on a permanent tag attached to the extinguisher. 

2459 
The belt conveyor was in use when this 

condition was observed. 

The air used in this belt entry is used 

to ventilate active working sections. 

The Evidence 

PHILLIP R. GIBSON, JR., a person experienced in mining, is a 

safety and health inspector at MSHA's Glenwood Springs, Colorado 

off ice. 

Order No. 3223449 

After completing an inspection on the longwall unit he 

went to the No. 1 mine intercept located at the No. 34 crosscut. 

At the intercept he entered the belt conveyor entry and began 

walking to the surf ace. At the intercept he saw a waterspray 

that was not emitting water as required by the operator's 

ventilation plan. 

After issuing a citation for lack of a waterspray, he 

opened an inby water hydrant. The waterline runs the length 

of the conveyor but there was no water in it. The fire hydrant 

is the only means available for fighting fires in this area. 

A man was stationed at this transfer point so a preshift examination should have been done. Firefighting equipment is subject 

to a preshift examination. 

The order was abated by turning on a high pressure pump 

3000 feet above the hydrant. The inspector would have issued 

this order even if the line was frozen because MSHA regulations 

require, as a minimum, 60 psi and 50 gallons of water per minute. 

Fire hydrants are required at 300 feet intervals. As a result 

o·f this condition, about 1200 feet of the entry lacked firefighting protection. If a fire occurred it could extend into 

the working section. Also the smoke could migrate with the intake air into the entry. Several sources of ignition included 

coal on the conveyor belt, power cables, electrical control 

boxes and a transformer of 72,000 volts. 

Inspector Gibson did not know the temperature on the date 

he issued the order. But he agreed the base elevation of the 

mine is about 10,000 feet. water freezes at 32 degrees F. 

On this particular day there were miners in the longwall 

section but the section was not operating. 

2460 
The inspector discussed various choices available to the 

company. He indicated he would recommend that the operator apply 

for a modification. However, the inspector did not know if 

Mid-Continent had filed a modification in Docket No. M-86-226-C. 

Nor did he know if there was a modification order in affect when 

he wrote his 104(d) order. 

Inspector Gibson didn't recall any other freezing problems 

in January [1988] but Order No. 3223207 involves frozen waterlines and it was written on January 12, 1988 [in Docket No. 

WEST 88-230]. 

Order No. 3223207 

Inspector Gibson wrote Order No. 3223207 on January 12, 1988. 

The order refers to waterlines that are adjacent to the belt 

conveyor suspended from the mine roof. 

On the date of this order the inspector saw several sections 

of dismantled waterlines. For a distance of about 1600 feet 

there was no source of water for firefighting. 

This belt entry was located in the intake air; the entry 

contained ignition sources. The inspector did not observe 

anyone in the area nor anyone working on the waterlines. He 

considered the violation to be S&S because of the unavailability 

of firefighting capability. 

In the two years before this order was written, MidContinent had been cited for some 36 citations and orders dealing 

with the maintenance of firefighting equipment. Because of its 

repetitive nature and seriousness, he believed the violation was 

unwarrantable. In addition, management necessarily had prior 

knowledge that the lines had been dismantled. 

The inspector acknowledged that Mid-Continent had filed 

petitions for modification involving firefighting equipment 

(Ex. R-3 in Docket No. 88-231). 

Further Findings 

For the reasons hereafter discussed the judge declines 

to rule on several threshold issues that are raised by MidContinent' s evidence. However, it is appropriate to review the 

evidence relating to these issues.-

2461 
RICHARD REEVES, Assistant Superintendent for Mid~Continent, 

indicated the mine portals are located at an elevation of approximately 8500 feet. Coal Basin, near Redstone, Colorado, 

is probably one of the coldest places in the state. About 

80,000 to 100,000 feet of air is ventilated through the north 

adit beltline entry. A 20 to 30 degree wind chill factor exists. 

Everything freezes and breaks in the beltline entries during 

the winter months. In January 1988 temperatures in the Coal 

Basin exceeded the freezing point eight times (Tr. 1-114 - 1-117, 

3-439, 3-440, Ex. R-11). 

In view of such "freeze and 

the ·practice at Mid-Continent to 

lines" during the winter months. 

quickly pressurized in the event 

break" conditions it had been 

maintain empty or "dry waterSuch lines could have been 

water is needed 4/ (Tr. 1-242). 

This practice was accepted until 1986 when MSHA indicated 

dry lines would no longer be acceptable (Tr. 1-242). After 

MSHA's change in policy Mid-Continent was required to formalize 

its dry waterline practice by filing a petition for modification 

under section lOl(c) of the Act (Tr. 1-242, 1-243). The proposed 

decision and order C"PDO") or modification, Docket No. M-86-226-C 

was issued September 1. It allowed such dry waterlines in the 

slope section beltline entries of both the Dutch Creek No. 1 and 

No. 2 mines (Exhibit P-3, WEST 88-231). 

The Rock Tunnel Project was driven as a "slope or shaft" 

under 30 C.F.R. § 77.1900 [through§ 77.1919]. The latter 

portion, Subpart T, does not contain a counterpart provision 

like 30 C.F.R. 75.1100-2(a) requiring waterlines in beltline 

entries (Tr. 1-189, 1-190). Mid-Continent, according to its 

witness DAVID POWELL, withdrew its application because·under 

Part 77 a waterline was not required. Accordingly, the company didn't believe the petition for modification was needed 

(Tr. 1-189, Ex. R-4). 

MSHA interpreted Mid-Continent's dismissal request as 

also negating the modification's application to the Rock 

Tunnels Project upon its completion, when it intercepted the 

coal seams -- the entire purpose for which the RTP adits were 

being developed. This interpretation was formally communicated 

on February 9, 1988. On that date Mid-Continent received a 

4/ A valve, protected from freezing, was located near the pump 

that can put water into the system (Tr. 1-242). 

2462 
memorandum drafted by MSHA District Manager John M. DeMichiei 

(Ex. R-6). According to Mr. DeMichiei, the maintenance of dry 

waterlines within the beltline entry of the Rock Tunnels Project 

would not be allowed unless procedures supplemental to those 

already incorporated by the MSHA Administrator for Coal Mine 

Safety and Health in the PDQ were instituted. 

Mid-Continent argues that it is difficult to understand 

MSHA's actions in this situation. The Rock Tunnels Project (RTP) 

was· a multimillion dollar endeavor which took over 5 years to 

complete. The project, which links with the underground mining 

sections as well as an extensive overland surface conveyor system 

in advance of the coal preparation plant, was undertaken for the 

express purpose of providing a more efficient coal transportation 

system. The project also improves ventilation and worker transportation (Tr. 1-240). 

Following its installation, the beltline in the north adit 

of the Rock Tunnels Project replaced the mainline belts in the 

slope sections as the only facility to transport coal out of the 

Dutch Creek No. 1 and No. 2 Mines. As with the slope sections, 

Mid-Continent would need an additional modification of 30 C.F.R. 

§ 75.1100-2(a} to properly run a beltline through this adit. 

Mr. DeMichiei, according to Mid-Continent, erroneously 

considered the PDQ to be inadequate for the RTP beltline. As 

with the beltlines which preceded it, and to which the PDQ 

in Modification No. M-86-226-C was unquestionably applicable, 

the north adit beltline is located in the intake air which is 

isolated from other intake air going into the working sections 

(Tr. 3-356). As with all beltlines at Mid-Continent, this 

beltline is constructed of a fire-resistant conveyor belt with 

metal supporting hardware (Tr. 3-451). In fact, the only 

difference of a substantial nature between these belts is that 

the RTP north-adit beltline is surrounded by solid rock and 

not coal (Tr. 1-37, 3-451). 

Mid-Continent contends Mr. DeMichiei's treatment of the 

Rock Tunnels Project in this instance as an entity separate 

and distinct from that of the Dutch Creek-No. 1 Mine is grossly 

inconsistent with MSHA's historical treatment of these entities. 

Since the inception of the Rock Tunnels Project, the north and 

south adits have been considered and treated by MSHA as a part 

of the Dutch Creek No. 1 Mine. Whenever a citation or order was 

issued for a violative condition in the Rock Tunnels Project, 

the Dutch Creek No. 1 Mine was the entity named in the citation 

and order. When the additional penalty point assessments were 

2463 
determined for such violations under 30 C.F.R. § 100.3(b), MSHA 

used tonnage figures derived from the Dutch Creek No. 1 Mine's 

production. Effective July 1, 1988, the Dutch Creek No. 1 Mine, 

the Dutch Creek No. 2 Mine, and the Rock Tunnels Project were all 

consolidated into a single operating entity. 

Under Mr. DeMichiei's view, it would appear that numerous 

citations and orders have been erroneously issued and numerous 

assessments erroneously calculated -- an error involving thousands of dollars which should be reimbursed if the Rock Tunnels 

Project is not inextricably tied to the Dutch Creek No. 1 Mine 

(Exhibit R-7). 

Mid-Continent asserts there is nothing in either the 

1977 Mine Act or the regulations that allow Mr. DeMichiei's 

unilateral, rule-making alteration of a PDO which has become 

final. Under 30 C.F.R. Part 40, the authority to issue a 

modification is a power vested exclusively in the Assistant 

Secretary and the Administrator. Once a proposed decision and 

order becomes final, any further amendments, corrections and 

revisions by anyone, including the Assistant Secretary or the 

Administrator, is ended. 5/ As such, Mid-Continent contends 

that Mr. DeMichiei's substantive addition to the Proposed 

Decision and Order, Docket No. M-86-226-C would appear to be 

entirely ultra vires and unenforceable. (See Ex. R-7 wherein 

Mid-Continent in a letter to Mr. DeMichiei protests MSHA's 

actions.) 

As a result of this action by MSHA, Mid-Continent found 

itself, going into the winter months of 1987-88, in the anomalous position of apparently being without a dry waterline 

modification for the RTP north-adit beltline where it was 

needed but with an effective modification for 1-Mine and 2-

Mine where there was a lesser need (Tr. 1-241). Despite its 

opinion that MSHA's position was incorrect, management at 

Mid-Continent was hesitant to implement the dry waterlines 

modification under PDO Modification No. M-86-226-C. 6/ 

5/ See section lOl(c) of the 1977 Mine Act, and 30 C.F.R. 

§ 44.13 which expressly states, "The proposed decision shall 

become final upon the 30th day after service thereof unless a 

request for hearing has been filed ••.• " [Emphasis added]. 

~/ Management felt that such an implementation would further 

agitate what was then already perceived as a hostile and 

adversary relationship with MSHA. (Tr. 1-247, 1-267). 

2464 
Instead, management attempted unsuccessfully to comply with 

30 C.F.R. § 75.1101-2(b) and maintain a charged or "wet" 

waterline in the RTP north adit beltline. 7/ 

Order No. 3223207 was issued during this time period of 

attempted compliance. 

On the date the instant order was issued the Coal Basin was 

in the midst of a severe cold snap. While reaching a recorded 

low of -14 degrees Fahrenheit, temperatures in the basin never 

exceeded 16 degrees Fahrenheit (Exhibit R-11). Faced with the 

certainty that the waterline in the north adit beltline would 

freeze, and most likely be damaged, and perhaps rendered useless, 

management at Mid-Continent had no choice but to drain the water 

from the line. 8/ 

Care was taken to drain and maintain this waterline in a 

manner substantially in compliance with the petition incorporated 

in the PDO, Modification No. M-86-226-C (Tr. 1-133). At the time 

the order was issued, a heat-activated fire suppression system 

was in place and operational at the No. 2 belt-drive of the RTP. 

Additionally, a CO monitoring and early warning CO detection 

system was in place and operational along the entire length of 

the RTP beltline. Also, two workers trained and experienced in 

the operation of the beltline and the various fire detection and 

suppression systems and devices were assigned to and patrolled 

the beltline (Tr. 1-123, 1-162). Finally, as demonstrated during 

the abatement of this order, the waterline could be successfully 

charged in under five minutes (Tr. 1-119). 

Mid-Continent argues the waterline was drained and maintained in the "dry" state under conditions which did not present 

21 Various methods were attempted by management to achieve compliance with 30 C.F.R. § 75.1101-2(b). In this time period, the 

water in the line was left running. When that proved to be unsuccessful, an antifreeze solution was added to the running water. 

Although these measures helped, portions of the waterline still 

froze during the colder weather (Tr. 1-267, 1-268). 

~/ Permitting the water to be left running works as long as 

there is an underground supply of water. After the water supply 

is exhausted there is a very pragmatic question of what do you do 

for water to put into the firefighting line and for respirable 

dust suppression on the mining machinery. 

2465 
a danger to the miners. With the safety devices then in place 

the possibility of an ignition or a fire occurring, much less 

propagating to the point creating a danger was infinitesimal. 

There is nothing in the RTP north adi t which could support 

or facilitate combustion. The RTP north adit is one of two 

entries driven through sedimentary rock formations, shale and 

sandstone, to points of interception with the Dutch Creek No. 1 

and No. 2 Mines (Tr. 1-107). Nothing exists in this adit 

other than a fire-resistant synthetic conveyor belt, its 

supporting steel hardware and incombustible rock CTr. 3-451). 

Mid-Continent argues that Inspector Gibson's testimony indirectly reflected these conditions. When asked what condition 

or conditions existed in this area which presented a source 

for combustion, the inspector limited his answer to the coal 

being transported on the conveyor belt (Tr. 1-30). 

Mid-Continent contends that Inspector Gibson's analysis of 

the hazard presented by this coal does not adequately take into 

account the incombustible nature of Coal Basin's coal. Coal 

Basin coal is a medium volatile metallurgical coal used to make 

coke which is used in the manufacture of steel. This coal is 

not, as contrasted with other types of coal, susceptible to 

spontaneous combustion. In fact, Coal Basin coal will not burn 

without encouragement (Tr. 1-114). In his years as a resident 

field inspector in the Glenwood Springs office, Mr. Gibson has 

neither experienced nor heard of an instance in which Coal Basin 

coal has been ignited underground. 

Further, Mid-Continent states that even if this coal was 

susceptible to combustion there is nothing in the RTP which 

could ignite it. In his hazard assessment, Gibson identified 

the electrical systen as ~resenting a probable source of ignition (Tr. 1-28, 1-29). I 

Finally, in support of the proposition that no hazard 

existed, a carbon monoxide CCO) fire detection system was installed along the entire length of the beltline. Computer 

9/ This system consists of a power center (transformer) and 

belt-drive (electrical motor) located at crosscut No. 27. A 

high voltage cable extending fran 1-Mine for an approximate 

distance of 2,000 feet supplies power to this electrical system 

(Tr. 1-111). 

2466 
controlled, this system consisted of a series of CO sensors 

placed on approximated 2,000 foot intervals which monitor 

the ambient environment along the beltline on a continual 

basis (approximately 2 to 3 times per second). Upon measuring 

an ambient level of 18 parts per million carbon monoxide, an 

audible alarm sounds in the lamphouse located outside the 

line. Along with sounding an alarm, the system locates and 

informs lamphouse personnel of the area where the carbon 

monoxide was detected. Following this warning, lamphouse 

personnel notify the miners underground in the affected 

sections. They in turn take appropriate action (Tr. 1-163, 

1-165). 

Discussion 

Several threshold issues are presented here: do the facts 

establish that Mid-Continent violated 30 C.F.R. § 75.1100-3 and 

what was the affect of Mid-Continent's petition for modification 

filed in M-86-226-C. 

I decline to rule on these issues since Mid-Continent 

admits the conditions described by the Secretary constituted 

violations of the applicate sections of 30 C.F.R. Part 75 

(See Mid-Continent brief at page 3). As to the second issue: 

the company voluntarily withdrew its petition for modification. 

In view of these factors these violations should be affirmed. 

Accordingly, it is now appropriate to consider the unwarrantable failure characterization here. 

The issue of whether Mid-Continent unwarrantably failed 

to comply with a cited regulation is raised throughout the orders 

involved in these cases. In view of the sometimes elusive nature 

of what facts constitute an unwarrantable failure it is appropriate to review some leading cases on this subject. 

In the leading decision concerning the interpretation and 

application of the term the Commission has concluded that the 

term in the statute means "aggravated conduct, constituting more 

than ordinary negligence by a mine operator in relation to a 

violation of the Act." 

The underlying facts in some leading cases are these: In 

Emery Mining Corporation, 9 FMSHRC 1997 (December 1987) four 

roof bolts had popped on a bearing plate. Further, this violation had existed for at least a week in an area where the 

operator's safety personnel should have known of the condition. 

2467 
In viewing the factual situation the Commission stated that 

the popped bearing plate was a matter involving only ordinary 

negligence. As a result, in Emery the Commission vacated the 

finding of unwarrantable failure and modified the section 

104(d)(l) order to a 104(a) citation. 

In Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007, issued 

the same day as Emery, the Commission upheld two unwarrantable 

failure findings. Specifically, the operator had been cited for 

a violation of its roof control plan (30 C.F.R. 75.200). Three 

days before the contested violation a similar order had been 

issued. Preshift examinations had been conducted but violative 

conditions had not been reported. The Commission concluded as 

follows: "Given the prior violation of section 7 5. 20 0 in the same 

area .•• only days before the violation at issue occurred and the 

extent of the violative condition, we find that Y & O's conduct 

in relation to the violation was more than ordinary negligence 

and .•• resulted from Youghiogheny & Ohio's unwarrantable 

failure. 

In Youghiogheny & Ohio the Commission further upheld an 

unwarrantable failure regarding a "hole through" violation. 

Specif icaily' the Commission observed that II even if the I hole 

through' was accidental, the roof control plan clearly prohibits 

cutting through into areas of unsupported roof and the section 

foreman is responsible for compliance with the plan," 9 FMSHRC 

at 2011. 

In Rushton Mining Company, 10 FMSHRC 249 (1988), the 

Commission reversed the judge's conclusion that the company's 

failure to detect the broken wires was due to its inadequate 

procedure for examining the rope. The procedures followed by 

the operator were extensive and they are recited in the decision. 

In short, the Commission found no aggravated conduct within the 

meaning of Emery. 

In Quinlan~ Coals, Inc., 10 FMSHRC 705 (1988), the 

Commission upheld an unwarrantable failure violation of a roof 

control plan. After reviewing the underlying facts the Commission concluded that "(g) iven the extensive and obvious nature 

of the condition, the history of similar roof conditions and 

[the operator's] admitted knowledge of the conditions, we find 

that [the operator's] failure to adequately support the roof was 

the result of more than ordinary negligence and that substantial 

evidence supports the judge's conclusion that the violation 

resulted from ••• unwarrantable failure," 10 FMSHRC at 7 09. 

2468 
In The Helen Mining Company, 10 FMSHRC 1672 (1988), the 

Commission determined the operator's failure to comply was not 

due to the operator's unwarrantable conduct. In finding a lack 

of such evidence the Commission relied on evidence involving 

the design and function of the operator's shield system. Other 

factors supporting the operator included a lack of previous 

MSHA citations relating to the forepole pads of the shields. 

Further, even after the roof control plan was revised forepole 

pads were not required by MSHA. Finally, the operator reasonably believed that if cribbing was installed the miners involved 

in the installation would be placed at considerable risk. 

In the case at bar, on the issue of unwarrantable failure, 

I credit Mid-Continent's uncontroverted evidence. The operator 

was seriously hampered by the freezing weather but nevertheless, 

and by several means, attempted to comply with the regulation 

and furnish firefighting capability as well as water in the lines. 

In fact, in Order No. 3223207 the waterlines had been frozen for 

1,300 feet. 

The allegations of unwarrantable failure should be stricken 

and both violations should be affirmed under section 104Ca) of 

the Act. 

Additional facts also impinge on an evaluation of civi 1 

penalties. I find the negligence of the operator to be low since 

it was faced with a freeze and break situation. On the other 

hand, the gravity is high: I credit the inspector's testimony 

and conclude there were combustibles along the conveyor lines. 

A fire, if it occurred, could spread and affect miners in the 

area. 

In the two years ending January 19, 1988, Mid-Continent 

was assessed and paid 13 citations asserting a violation of 

§ 75.1100-3. In the period before January 20, 1986, MidContinent was assessed and paid 34 citations alleging a violation of the same standard (Ex. C-1 in WEST 88-231). 

At the hearing Mid-Continent objected to any proof of 

history extending for a period greater than two years before 

any contested citation. 

In other cases before the judge the Secretary has limited 

her proof of history to the two years before the citation or 

order in contest. However, the Act merely recites "prior 

history" shall be a criteria in assessing a penalty. Accordingly, any prior history is admissible. However, the Secretary has 

not articulated why Mid-Continent should be singled out from 

other operators and assessed for its history back to the enactment of the Act. In view of this factor, in assessing a 

2469 
civil penalty the judge will only consider evidence of prior 

history within the two-year period before the order in contest. 

The parties stipulated that the violations here are significant and substantial CS&S) if the violations are established. 

Since I have found the facts to be as stated by the inspector 

the allegations of S&S should be affirmed. 

Weekly Examination of Seals 

This portion of the decision addresses Order No. 2832627 

issued on January 26, 1988. 

The narrative portion of the order, which alleges a violation of 30 C.F.R. § 75.305, 10/ reads as follows: 

The weekly examination for hazardous conditions 

was not being conducted at the seals located on 

the No.'s 1 and 2 slopes of the mine. The last 

dates and initials placed at the Nos. 2, 3, 3!, 

4, and 5 South seals were 01-15-88 G.B. The 

times ranged from 7:32 A.M. to 8:47 A.M. This 

is a time period greater than seven days. According to the recorded results of the weekly 

examinations this exam was completed on 01-22-88 

which would be within the required time frame. 

10/ The cited regulation provides as follows: 

§ 75.305 Weekly examinations for 

hazardous conditions. 

[Statutory Provisions] 

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 entirety, idle 

workings, and insofar as safety considerations permit, abandoned areas. Such weekly examinations 

2470 
The Evidence 

LEE SMITH, an MSHA supervisor, wrote Order No. 2832627 when 

he, in the company of Mid-Continent's David Powell, inspected 

sealed areas numbered 2, 3, 3!, 4 and 5 in the No. 1 and No. 2 

slope at the Dutch Creek Mine (Exhibit R-1). The purpose of the 

wooden seals is to prohibit air from migrating out of the minedout sections. Mid-Continent uses squeezed seals. As the seals 

are squeezed they become more efficient. 

The inspector looked at every entry that contained a seal. 

This was approximately 19 seals. Every seal was inspected where 

it was safe to travel to it. 

The regulation, 30 C.F.R. § 75.305, ·requires that the person 

doing the examination on behalf of the operator place the date, 

the time and his initials, (D,T&I), on the seals. The D,T&I can 

be located in several places. The examiner usually tries to do 

this in a sequential order and it is entered on a metal pan some 

12 inches by 8 foot long, or on the face of the seal itself. 

Any suitable surface is satisfactory and they are placed so that 

they can be readily found. Normally, the dates are entered in a 

straight line, grouped in chronological order. A fire boss would 

normally inspect the seals and the length of the examination depends upon the size of the mine. A fire boss has other duties. 

10/ Continued from previous page. 

need not be made during any week in which the mine 

is idle for the entire week, except that such examination shall be made before any other miner returns to 

the mine. The person making such examinations and 

tests shall place his initials and the date and time 

at the places examined, and if any hazardous condition is found, such condition shall be reported to 

the operator promptly. 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 ref erred to in section 104(d) of the Act, until such danger is abated. 

A record of these examinations, tests, 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 surf ace 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. 

2471 
On January 26, the date of this inspection, the inspector 

found that the date of the last examination was 11 days prior to 

January 26. He did not find any notation within the seven days. 

The D,T&I in several locations have been in place for many years. 

The entries are usually made on a pan. When the pan is used the 

examiner returns to the top and starts over. 

The inspector and the company's representatives in the 

inspection party looked and didn't see any timely D, T&I. This 

same condition existed at seals 3, 3!, 4 and 5. 

In the inspector's opinion the violation was established 

because he could not find the DT&I. If they were found at 

a later time this would be a basis to vacate the citation. 

Based on the inspector's experience the DT&I would be in close 

proximity to the seals and grouped in about the same location. 

The inspector examined seals in 19 entries. The initials 

on most of the seals were "GB." 

The purpose of the weekly examination is to be sure that the 

seals are performing their intended purpose; that is, to separate 

the abandoned areas from the active air. 

If the areas are not separated, gasses from the other areas 

could enter the active workings. The hazard is that some of 

these gasses can displace oxygen and severely injure a miner. 

At Mid-Continent seals are routinely inspected. The order 

was abated when David Powell began to conduct examinations as 

required and he placed his D,T&I on the seals. 

When the inspector observed the seal the last date on it 

was January 15, 1988. The initials he saw were GB, which is 

Gary Bellington, a Mid-Continent fire boss. 

Inspector Smith agreed there was no evidence the return aircourse was migrating into the gob area. The inspector further 

rated the seals as in good to fair condition. They were performing their function. 

JIM KISER, Mid-Continent's safety director, testified that 

following the issuance of the present order, Mid-Continent 

conducted an in-house investigation to determine whether the 

2472 
fire boss responsible for the questiqned examinations had been 

derelict in his duty (Tr. 1-140). 11/ The Mid-Continent safety 

director instructed a company safety inspector, Oviatt, to accompany mine examiner Billington on his subsequent examination 

of the permanent seals located at the 2, 3, 3t 4 and 5 south 

sections. During this investigation, Oviatt went into the areas 

and Billington remained outby and described the locations in 

which he had placed his initials. During this investigation, 

all of the allegedly missing initials were found. According to 

OViatt, the initials were located in random locations within 

the general area of the seals. 12/ 

Given the conditions and procedures then used at these 

locations in the Dutch Creek No. 1 Mine it was not unusual that 

Smith could not find Billington's initials. At the time this 

order was issued, the general areas surrounding these seals, had, 

over the years, accumulated literally hundreds of mine examiner's 

times, dates and initials. Powell, who assisted Smith in his 

inspection testified that dates were found which went back to 

1981 (Tr. 1-273). Furthermore, Mid-Continent had not, at that 

time, implemented a program providing specified locations at 

which mine examiners could place their times, dates and initials 

at the 2, 3, 3!, 4 and 5 south seals (Tr. 1-148). Finally, as 

can be inferred from the above investigation, Billington was in 

the habit of scattering his times, dates and initials randomly 

around the area he was examining. 13/ 

Discussion 

In connection with this order Mid-Continent has clearly articulated that it does not believe that a violation occurred.14/ 

11/ Mid-Continent urges that this investigation was not, as it 

could appear, conducted in preparation for litigation. Instead, 

this investigation was conducted by the Mid-Continent Safety 

Department in performance of its duty to ensure compliance with 

the 1977 Mine Act. Had this investigation revealed that the 

required examinations had not in fact been made, the examiner, 

Billington, would have been discharged (Tr. 1-143). 

12/ The results of this investigation were later telephoned to 

Smith by Mid-Continent Manager, David A. Powell (Tr. 1-88). 

13/ While conducting the joint search with Smith, neither Powell 

nor Smith (neither of whom had a day-to-day familiarity with this 

mine area) could discern any regular pattern or sequence from 

Billington's prior examination times, dates and initials (Tr. 1-

244). 

14/ Mid-Continent's brief at 20. 

2473 
The judge believes Mid-Continent's statement on page 3 of its 

post-trial brief addresses only the two orders involving the 

"freeze and break" of the waterlines. So, it is in order to 

proceed to the merits: Mid-Continent claims weekly examinations 

of the seals were in fact conducted and the mine examiner's 

(D,T&I) were placed in the general area in which this inspection 

was conducted. Mid-Continent further asserts that this examination was conducted properly and that Inspector Smith's inability 

to find these initials, standing alone, fails to constitute a 

violation of 30 C.F.R. § 75.305. Finally, Mid-Continent asserts 

that Smith's inability to locate these initials is neither 

unusual nor extraordinary. 

The regulation, 30 C.F.R. § 75.305, in its relevant portion 

simply requires any seals examiner to place his D,T&I at the 

places examined. 

There is no requirement that the DT&I be located in any 

specified location other than in the "area" examined. There 

are no limitations on the proximity of the 11 area. 11 

I inf er from the evidence here that company examiner Bellington marked his DT&I at the seals. I base this on the fact 

that at a number of seals the timely DT&I were observed by the 

inspector. Further, Bellington recorded his inspections in the 

operator's book. 

The Secretary, by Inspector Smith, offered evidence that 

mine examiners generally group their DT&I in the general area 

of the examination and readily visible to a person following him. 

I am not persuaded. 

Mr. Smith's qualifications do not disclose that he possesses 

the requisite knowledge to properly describe an industry custom 

and practice. Inspector Smith, a supervisor, is a specialist 

in roof control (Tr. 1-52). On the other hand witness Kiser, a 

safety specialist for 15 years, has worked underground operations 

in Virginia, West Virginia and Colorado. It has not been his 

experience that mine examiners group their DT&I at all times in 

a chronological order at specified locations. In fact, he has 

found that the placement of DT&I varies from one mine examiner to 

another. 

For the foregoing reasons Order No. 2832627 should be 

vacated. 

2474 
Failure To Make Face-to-Face 

Examination of Inaccessible Seals 

This portion of the decision considers two orders alleging 

violations of 30 C.F.R. § 75.305, supra, page 15. 

The narrative portion of Order No. 2832624 reads as follows: 

The fourteen (14) seals (immediately inby 

the #7 slope entry), in the 3rd North 

section were not being examined. The seal 

in the east entry (up dip) was being 

examined as was other portions of 3rd 

North except the west entry along which 

the seals in question are located. This 

area was being evaluated rather then performing the required examinations of 

seals. 

The narrative portion of Order No. 2832625 reads as follows: 

The 6 North upper and lower seals were 

not being adequately examined. Caprock 

had fallen and the area adjacent to the 

two seals had heaved, making little, if 

any, of each of the seals visible to 

perform an adequate examination of their 

integrity. 

The Evidence 

WILLIAM CROCCO, an MSHA inspector experienced in mining, 

inspected Mid-Continent's mine in October 1987. 

Due to unsafe ground conditions it was 

inspect the seals in the 3rd north section. 

hanging and broken; it was unsafe to travel 

conditions in No. 1 entry involved 14 seals 

1100 to 1200 feet. 

not possible to 

The roof was loose, 

the area. These 

for a distance of 

Mr. Crocco inquired about how the seals were being examined. 

Company representative Bishop stated that due to impassibility of 

traveling they made an evaluation of the air at the mouth of the 

entry. In Mr. Crocco's view such an evaluation was not ~uivalent to a physical examination of each seal. In this situation 

the company could support the roof or put up new seals at the 

mouth of the entry. It would take three such installations to 

isolate the 3rd North in this fashion. 

2475 
The inspector determined the violation was unwarrantable 

as well as S&S. The company knew of the requirements of the 

regulation as other seals are dated and signed weekly. The 

company also indicated some of the seals had not been inspected 

for a number of years. 

Order No. 2832624 was issued for the described conditions. 

Order No. 2832625 

In the 6th North area (Order No. 2832625) the inspector 

could neither examine nor see three seals. The entries were 

blocked due to heaving and roof control problems. 

Mid-Continent's representatives Bishop and Wright confirmed that the seals were being evaluated at the mouth of the 

entry. In the inspector's opinion this was insufficient to 

comply with the regulation. 

The inspector considered the condition unwarrantable because the conditions existed for many years and the company 

knew the requirements of the regulation. 

If Mid-Continent had wished to inspect the seals they 

could have removed the obstruction and graded out the area. 

However, the inspector agreed that grading the area can cause 

bumps or bounces to occur. 

The mine has both concrete block and wooden squeeze-type 

seals. If the floor heaves, the wooden seals have the best 

chance of surviving. The seals examined by the inspector were 

outby the active workings. 

The witness has seen petitions for modification concerning 

section § 75.305. The petitions are granted when there is no 

diminution of safety and when the alternative is safe. Modifications of inaccessible seals usually involve evaluation 

points. 

Inspector Cr.occo felt there was a good possibility the 

seals had been breached and he thought they had detected a little 

leakage but he could not specifically identify any such leaking 

seals. 

2476 
The operator installed wooden structures which were designed 

to address the rock burst and heaving 15/ conditions which are 

endemic to the mine (Tr. 2-61). ~ 

DAVID POWELL, Mid-Continent's engineer, testified that 

under the company program it is possible from an engineering 

standpoint to perform outby examinations compared to nose-tonose examinations. This is done at the outby point by evaluat~ng 

the air that had passed the sealed area (Tr. 3-754, 3-755). 16/ 

The seals which isolate the old 3 North and 6 North mining 

sections are located in areas commonly termed barrier pillars. 

Such pillars separate a mined-out area from the active areas. · 

They incur abatement pressures from the mine-out sections 

(Tr. 2-275). 

The floor heave which prevented access to these seals is the 

natural result of the redistribution of overburden pressures as a 

mine area moves toward a re-stabilized configuration (Tr. 3-754). 

The grading described by Inspector Crocco would upset this restabilization. As the evidence indicates, workers have been 

injured by severe rock burst or outbursts in the past while performing such grading (Tr. 2-94, 3-753). 

Discussion 

The thrust of Mid-Continent's position is that the company 

may inspect its seals at an outby point. Such inspections were 

Mid-Continent's previous policy and MSHA has previously concurred in such procedures. In short, the issue is whether MidContinent may monitor the condition of its seals by testing the 

ventilating air. 

15/ Floor "heave" or "heaving" is a mining term which refers 

to the convergence of the mine roof and floor. Rock and/or coal 

bursts are incidents of sudden and large scale convergence between the roof and floor as a result of overburden pressures on 

the mined seam. Heaving is normally incident to deep mines such 

as the Dutch Creek mines of Mid-Continent. 

16/ In making an examination from a remote location the inspector can rely on a number of things. These include 1) the 

smell from the gob area, 2) whistling sounds, 3) line brattice 

flapping, 4) flame resistant devices, 5) rattling members, 

6) floor heave possibly causing buckling in the seal, 7) methane 

methometer and flame detector. 

2477 
Mid-Continent argues that nothing in the regulation mandates 

face-to-face examinations of seals. 

The regulation, 30 C.F.R. § 75.305, in its relevant part 

provides that 

[E]xaminations 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 retu.rn aircourse in its 

entirety, idle woikings, and, insofar as 

safety considerations permit, abandoned 

areas .••• [Emphasis added.] 

Th_e regulation simply requires examinations "at seals." 

I agree the words are not otherwise defined but the expression 

"at seals" is grouped with other words indicating specific 

locations in the mine. 

I reject the concept urged by Mid-Continent. Compliance 

with ·s 7 5. 30 5 does not permit an examination of seals from some 

remote outby location. 

I further reject witness Powell's op1n1on that a sealed 

area can be tested by checking its ventilating air at a point 

not in close proximity to the seal itself. One of the stated 

purposes of the regulation is to test for methane. If methane 

leaked from a sealed area it could be easily diluted with other 

air before reaching the point where the air was being monitored. 

Mid-Continent raises a legitimate concern that grading the 

entries to gain access to the seals will disturb a stable area. 

Such disturbances could result in dangerous bounces, heaves and 

outbursts. 

In effect, Mid-Continent is seeking a modification under 

section lOl(c) of the Act. However, the Commission lacks 

jurisdiction to grant relief under that section. 

As Inspector Crocco suggested, Mid-Continent has the option 

of erecting new seals. In fact, he testified three seals would 

isolate the 3rd North section. 

The inspector also considered these violations to be significant and substantial. 

2478 
The Commission has indicated a "significant and substantial" 

violation is a violation "of such nature as could significantly 

and substantially contribute to the cause and effect of a coal or 

other mine safety or health hazard." A violation is properly 

designated significant and substantial "if, based upon the particular facts surrounding the violation there exists a reasonable 

likelihood that the hazard contributed to will result in an 

injury or illness of a reasonably serious nature." Cement 

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

Further, in Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 

1984), the Commission further explained its interpretation of 

the term 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 connection with these two orders the credible evidence 

establishes the seals were intact and not leaking. Such a 

finding precludes a finding under (3) and (4) of Mathis Coal. 

The S&S designation should be stricken. 

The Secretary's evidence also fails to establish that the 

violation was a result of the operator's unwarrantable failure 

to comply. The evidence so often relied on by the Secretary 

is that the operator knew of the regulation and knew of the 

violative condition over a period of time. But more is required. 

In particular, the Secretary must show aggravated conduct, see 

Emery Mining Company, supra. Since the record fails to shoW--

aggravated conduct, it necessarily follows that the allegations 

of unwarrantability should be stricken from these two orders. 

These orders should be affirmed as 104(a) citations. 

In considering a civil penalty I conclude the negligence 

of the operator as moderate. Mid-Continent could have erected 

additional seals outby the inaccessible seals. Such outby seals 

could have effectively sealed off the areas in question. Since 

the credible evidence indicates the seals were intact and not 

leaking I consider the gravity of the violations to be low. 

Mid-Continent's prior history is favorable to the operator. It 

was assessed and paid for one violation of § 75.305 in the two 

years ending January 19, 1988. Before January 20, 1986, it was 

assessed and paid for seven violations of the same regulation. 

2479 
Aluminum Overcasts, Sufficiency of Pyrochem Applications 

This portion of the decision reviews Order No. 3076190 which 

alleges a violation of 30 C.F.R. § 75.316. 17/ 

The narrative portion of the order reads as follows: 

The operator failed to comply with his 

approved ventilation plan at the overcasts 

between 6 slope and crosscut No. 48, 5 slope 

and crosscut No. 48, 4 slope and crosscut 48 

and 3 slope and crosscut 48 in that aluminum 

overcasts had been installed at the above 

locations which do not meet the requirements 

of substantial incombustible material [sic] 

testing has shown that in case of a fire, 

aluminum has been shown to fail rapidly. 

The operator was required to have the overcasts fireproofed by November 30, 1987. 

17/ The cited regulation reads as follows: 

§ 75.316 Ventilation system and methane 

and dust control plan. 

[Statutory Provisions] 

A ventilation system and methane and dust 

control plan and revisions thereof suitable 

to the conditions and the mining system of 

the coal mine and approved by the Secretary 

shall be adopted by the operator and set out 

in printed form on or before June 28, 1970. 

The plan shall show the type and location of 

mechanical ventilation equipment installed 

and operated in the mine, such additional or 

improved equipment as the Secretary may require, the quantity and velocity of air 

reaching each working face, and such other 

information as the Secretary may require. 

Such plan shall be reviewed by the operator 

and the Secretary at least every 6 months. 

2480 
The Evidence 

DOUGLAS ELSWICK, an electrical specialist for MSHA, 

issued Order No. 2076190 because four aluminum overcasts had 

not been installed at certain locations in the Mid-Continent 

mine (Tr. 2-165, Bx. P-4). The aluminum overcasts were the 

subject of the order is~ued Decenber 11, 1987. The company 

agreed the overcasts would be coated by Novenber 30, 1987, 

(Tr. 2-174). The work was in progress on some of the overcasts at the time the order was issued (Tr. 2-175). 

A brief review of certain historical facts is appropriate: 

Aluminum ventilation controls, including overcasts, have been 

used in the coal industry for more than 10 years. In western 

mines, aluminum overcasts, the type presently at issue, had 

been the standard for years (Tr. 2-345). 

As a result of the Wilburg Mine fire disaster 18/ MSHA 

instituted a policy change concerning the acceptability of 

aluminum overcasts in mines (Tr. 2-349). Under the new policy 

all aluminum devices had to either be replaced with devices of 

incombustible construction or coated with a layer of incombustible material. Operators of mines possessing aluminum 

ventilation controls had to submit, under this new policy, 

detailed plans which included a timetable with specific completion dates showing how these devices would be either coated 

with a fire-proofing material or replaced (Exhibit P-4(a)). 

On November 6, 1987, Mid-Continent submitted for final 

approval its plan for the coating of aluminum overcasts then 

present in the Dutch Creek No. 1 and No. 2 mines with a fireproofing material termed Pyrochem (Exhibit P-4Ce)). 

On November 20, 1987, MSHA Inspector James B. Denning issued 

an order under the authority of section 103(k) of the 1977 Mine 

Act which took all diesel equipment in the Dutch Creek Mines out 

of service 19/ (Tr. 2-328, 329). Under the 103(k) order, no 

diesel equipment could be operated until thoroughly inspected 

18/ An underground coal mine fire that occurred on December 19, 

1984, in Emery County, Utah. Investigation at Wilberg revealed 

the fire propagated due to the lower heat tolerance of aluminum 

ventilation controls as contrasted to other controls such as 

steel or block and mortar (Tr. 2-180). 

19/ The diesel Eimco matter is discussed, infra, in connection 

with Order Nos. 3076185, 3223125 and 3223159. 

2481 
by MSHA. During these subsequent inspections, Mid-Continent 

received a total of 19 orders and citations involving the Eimco 

fire (Exhibit R-16). 

The aluminum overcasts, the subject matter of the present 

order, were located in older sections of the Dutch Creek No. 1 

Mine commonly ref erred to as the slope section or slopes en.tries. 

With the completion of the Rock Tunnels Project this area of the 

mine, while not abandoned, was limited to minimal miner activity. 

At the time the present order was issued, there were no facilities in the area by which electrical equipment could be operated 

(Tr. 3-605). As a result, diesel-powered Eimcos were the only 

m,achines which could provide the required power for the sprayer. 

unit to coat the overcasts. 

Following the period of the Eimco fire inspection and 

abatement, Mid-Continent was left with approximately three days 

in which to finish the required spraying on its original schedule 

(Tr. 3-587). 

Given the difficulties experienced during this application 

process, compliance with the MSHA timetable was simply not 

possible. MSHA, however, was not inclined to enlarge its timetable for the aluminum overcast coating although the policy 

target-date was another six months away. (See Exhibit R-24.) 

Because there was no need to maintain roadways in the area, 

Mid-Continent had to grade significant amounts of roadway to 

reach the overcasts with its diesel machinery (Tr. 3-572). ~/ 

Upon reaching these overcasts, Mid-Continent's efforts for 

timely completion were further hindered by the spraying process 

itself. In order for the Pyrochem to properly adhere, only thin 

layers could be applied to the overcasts at one time (Tr. 3-561). 

According to foreman STARZEL, in order to reach the required 

one-inch thickness, more than five applications of Pyrochem had 

to be applied (Tr. 3-606). 

20/ The grading of the roadway resulted in the issuance of 

Orders Nos. 3076185 and 3223125, infra. 

2482 
Discussion 

Mid-Continent contends that the company's conduct was not 

aggravated as defined in Emery (Brief at 29). 

I agree. It is uncontroverted that Mid-Continent had 

started to treat the overcasts with fireproofing material when 

Order No. 3076190 was issued. The company's attempts to comply, 

complicated by the withdrawal of the diesel equipment, negate 

any finding of aggravated conduct as defined by the Commission. 

For these reasons the allegations of unwarrantability 

should be stricken and the order should be affirmed as a 104(a) 

citation. 

Based on the uncontroverted evidence and in assessing a 

civil penalty I conclude that Mid-Continent's negligence was low. 

The circumstances simply precluded the operator from completing 

the work. 

On the other hand the gravity was moderate. Given these 

circumstances here a mine fire could adversely affect the safety 

of the miners. 

The operator's prior history indicates it was assessed 

and paid for 79 violations of § 75.316 for the two-year period 

ending January 19, 1988. For the period before January 20, 

1986, the operator was assessed and paid for 125 violations of 

that section. I consider this history to be moderately adverse 

especially when a ventilation plan can involve a myriad of 

agreed regulations. 

Bimco Emergency Fuel Cut-Off Blocked in 

While Pyrocheming Slope Section Overcasts 

This portion of the decision deals with Order No. 3076182. 

The order originally alleged a violation of 30 C.F.R. § 75.316, 

cited, supra. During the hearing the Secretary was granted leave 

to allege a violation of 30 C.F.R. § 75.1725(a), 21/ (Tr. 2-112). 

21/ This standard reads as follows: 

§ 75.1725 Machinery and equipment; operation 

and maintenance 

(a) Mobile and stationery machinery and equipment shall be maintained in safe operating condition 

and machinery or equipment in unsafe condition shall 

be removed from service immediately. 

2483 
The narrative portion of the order reads as follows: 

The operator failed to comply with his 

approved ventilation and dust control 

plan on the 915-0923 Eimco C no approval 

plate) between slopes 4 & 5 at crosscut 

48 in that the fuel (emergency cut off) 

on the machine was blocked in with a 

paper rag. The temp. gage [sic] indicated about 215 degrees. The anti-freeze 

was boiling in the machine with machine 

running. 

The Evidence 

MSHA Inspector DOUGLAS ELSWICK, a person experienced in 

mining, observed a 915-0923 Eimco loader on December 10, 1989. 

The loader has an emergency shut-down device if the machine 

overheats. A paper rag prevented the shut-down device from 

functioning. This defeated the low level water capabilities of 

the machine. The temperature gauge read between 2100 F. and 

215° F. The temperature should not exceed 185° F. 

The exhaust of this diesel equipment at times emits 

red-hot particles. These particles are eliminated by passing 

them through water. By defeating the safety device the temperature of the Eimco could reach 8000 to 1000° F. 

The inspector considered this was a safety hazard. The 

condition could cause a mine fire with possible fatalities. 

Inspector Elswick considered the violation was due to the 

unwarrantable failure of the operator. The rag was in plain 

view and Stargel, Mid-Continent's foreman, was ten feet from 

the machine. 

JOHN REEVES, assistant superintendent at the Dutch Creek 

Mine, testified that when the order was issued the Eimco was 

being used as a power source to apply Pyrochem to the surfaces 

of an aluminum overcast (Tr. 2-126). During this application 

process, the Eimco's engine reached a temperature at which the 

Eimco engine would shutdown. A shut down of the engine automatically shuts off the sprayer. 

2484 
LOUIS STARZEL, Mid-Continent's crew foreman, testified that 

during the application both the sprayer and approximately 75 feet 

of hoses contained Pyrochem. Had the Eimco been given the time 

required to cool off before being restarted, the Pyrochem would 

have solidified and this equipment would have been, for all 

intents and purposes, ruined. Once overheated, it takes approximately 1 to l! hours for a diesel Eimco of this type to cool to 

the point where it can be restarted (Tr. 3-602). To prevent 

ruining the machine and equipment, Starzel overrode the automatic fuel shut-off so the systen could be purged with water 

(Tr. 3-563, 3-564). 

Before restarting the Eimco, however, Starzel had rock dust 

and a fire extinguisher brought into the area where this machine 

was parked. During the time the Eimco was running in this 

blocked-in condition, it remained stationary. Starzel and members 

of his crew were present at all times with firefighting equipment 

(Tr. 3-564). 

Discussion 

Mid-Continent does not dispute the facts as alleged by MSHA 

Inspector Elswick in the narrative portion of Order No. 3076182. 

At the time this order was issued, the emergency fuel shutoff was 

blocked in or bypassed and the Eimco was running at a temperature 

above that allowed under manufacturer specifications for normal 

operations. 22/ However, Mid-Continent contends the present facts 

do not justify the aggravated conduct established by the Commission in Emery. In support of its position the operator relies 

on the action of the crew in obtaining firefighting equipment, 

the lack of combustibility of Coal Basin coal, and the likelihood that a shut-down of the Eimco would cause the Pyrochem to 

solidify and thereby ruin the equipment. 

I am not persuaded by Mid-Continent's arguments~ In the 

instant case the foreman's actions were neither justifiable 

nor excusable. In the course of his activities the foreman 

plugged a shut-off safety device with a rag. This permitted 

the equipment to operate at highly excessive temperatures. In 

fact, the antifreeze was boiling in the Eimco. The foreman's 

acts of bringing firefighting equipment into the area shows 

he recognized the possibility of a fire. In addition, he was 

within ten feet of the Eimco. The assertion the equipment could 

have been ruined if the Eimco was shut off indicates the Eimco 

itself was inadequate for the job. 

22/ Brief at 30. 

2485 
The issue of lack of combus tibi 1 i ty of coal in the coal 

basin does not reduce the hazard. Other sources of combustibility were in this area of the mine. 23/ 

The acts of Mid-Continent's foreman were clearly aggravated. 

Starzel deliberately overrode the automatic fuel shutoff and the 

regulation, 30.C.F.R. § 75.1725, was violated. As foreman, he is 

responsible for complying with the regulation and he cannot 

ignore it by bringing in firefighting a;ruipment. 

I conclude the deliberate disregard of a safety regulation 

by a foreman constitutes aggravated conduct within the meaning 

of Emery. The facts here are akin to those in Youghiogheny & 

Ohio Coal Company, supra, 9 FMSHRC at 2011. 

For the foregoing reasons the allegations of unwarrantable 

failure should be sustained. 

On the issue of assessing a civil penalty: both the negligence and gravity of the operator are high. The high negligence 

was determined by the deliberate decision of a supervisor to 

disregard a safety regulation. The high gravity is apparent 

since an overheated machine can easily cause a mine fire. 

Mid-Continent's prior history is quite favorable to the 

operator. There were no assessments in the two-year period 

ending January 19, 1988. In the period before January 20, 1986, 

there was only a single assessment for a violation of § 75.1725. 

Accumulations, Roadway Compaction During 

Overcast Spraying Operations 

This portion of the decision involves three orders. The 

first two orders allege violations of 30 C.F.R. § 75.400 24/ 

23/ See the orders re accumulations, this page, et seg. 

24/ The cited standard reads: 

§ 75.400 Accumulation of combustible 

materials 

[Statutory Provision] 

Coal dust, including float coal dust deposited 

on rock-dusted surfaces, loose coal, and other 

combustible materials, shall be cleaned up and 

not be permitted to accumulate in active workings, 

or on electric e}Uipment therein. 

2486 
The narrative allegations of Order No. 3076185 are as 

follows: 

The operator allowed combustible 

material in the form of coal to 

accumulate in crosscut 47 between 

5 and 4 slope. The accumulation of 

coal were [sic] about 30 feet long 

10 feet wide and 4 feet deep. In 

addition to coal accumulations there 

was [sic] wooden pallets, plastic 

lids, rock dust bags and glue boxes 

in the crosscut. 

Order No. 3223125 reads as follows: 

The operator allowed loose dry coal, 

paper, plastic and wood to accumulate 

in the #49 crosscut between 4 and 5 

slope. The dry loose coal was about 

20 feet long, 8 feet wide and four 

feet deep. 

Order No. 3223159 alleges a violation of 30 C.F.R. § 75.316, 

cited supra, page 25. 

Order No. 3223159 reads as follows: 

The operator's approved ventilation 

system and methane and dust control 

plan was not being followed in No. 5 

slope, intake aircourse and haulageway. The floor, from No. 55 crosscut 

to No. 62 crosscut - about 700 feet, 

in the haulageway was not maintained 

compacted with calcium chloride or 

water. The dust on the mine floor 

ranged from one inch to 4 inches in 

depth. 

The Evidence 

Order No. 3076185 

On December 11, 1987, MSHA Inspector DOUGLAS ELSWICK 

observed loose coal at crosscut 47 between slopes 4 and 5. 

The coal was 30 feet by 10 feet and 4 feet deep. There were 

plastic lids and dust bags on top of the coal. Upon inquiry 

a company representative stated he didn't know. why this was 

stored in the area. 

2487 
The inspector did not observe any effort being made to clean 

up the area. 

Unwarrantabi 1 i ty, in the inspector's op1n1on, was the proper 

designation of this violation because a foreman was working 100 

feet above this area. Also, the area must have been pre-shifted 

as miners were working on the overcasts. The fire boss and management should also have been aware of this condition. Inspector 

Elswick identified a letter dated December 1, 1987, which discusses the operator's clean-up plan. 

If a mine fire occurred, injuries could be serious. In the 

inspector's opinion it was reasonably likely that a fire could 

occur. 

Diesel e:;ruipment and power lines were within five to six 

feet of the accumulation. 

Order No. 3223125 

On December 13, 1987, MSHA Inspector Elswick inspected 

crosscut 49 between 4 and 5 slopes. At this point he observed 

a quite visible accumulation of loose coal and plastic material. 

The loose coal was 20 feet long by 8 feet wide and 4 feet deep. 

The inspector thought the accumulation had been there three or 

four days. 

If the coal caught fire in this intake air entry the smoke 

would spread to the working area. This area was not normally 

pre-shifted. 

The inspector expressed the view that this violation was due 

to the unwarrantable failure of the operator since e:;ruipment cannot move this amount of coal with out a foreman knowing about it. 

Also, there was a foreman 100 feet away. 

Order No. 3223159 

PHILLIP R. GIBSON, JR., an MSHA inspector, considered the 

lack of calcium chloride and water on the roadway to be a violation of the ventilation plan. 

The inspector considered the violation to be unwarrantable 

because the area had to be pre-shifted. It was also outby a 

working section. In addition, the operator had been cited a 

number of times for this condition. 

The inspector agreed the diesel equipment was hauling in 

gear to be used in coating the overcasts. 

2488 
GEORGE PREWITT, a m6nber of Mid-Continent's safety department, testified that after the interception of the Rock Tunnels 

Project with the Dutch Creek No. 1 Mine CB-seam, or lower of 

the two coal seams, see Exhibit R-2), all material haulage, coal 

haulage and personnel transportation which had been conducted 

in the slope section were transferred to the twin adits of the 

Rock Tunnels Proje·ct. Since the RTP interception of the coal 

seams, worker activity in the slope entries has been reduced to 

a minimum (Tr. 3-618, 3-619). In fact, at the time these orders 

were issued, mine examiners C commonly called "fire bosses") were 

the only personnel regularly present in the slope-section of 

the mine (Tr. 3-566). 

The accumulations which were the subject matter of two of 

Inspector Elswick's orders were a by-product of the aluminum 

overcast coating operation. Similarly, the roadway conditions 

which were the subject of Inspector Gibson's order were caused 

by equipment traveling in the area due to the overcast coating 

operation. 

In order to reach the overcasts with the needed equipment, a significant amount of road grading had to be performed. 

When the grading was being done there were no facilities for 

the removal of the graded material (Tr. 3-572). The nearest 

beltline was approximately 1500 feet away from the area where 

the grading was being done. Because of recent inspections which 

had taken the majority of its diesel equipment out of service, 

Mid-Continent was in a position where it was extremely difficult 

to perform the required fire-proofing of overcasts within the 

schedule deadline mandated by MSHA (Tr. 3-573, 3-582). As such, 

Mid-Continent had neither the time nor the equipment required 

to haul all the graded material to a point where it could be 

taken out of the mine. Instead, this graded material had to be 

stored in inactive crosscuts. This was the focus of Inspector 

Elswick'~ Orders Nos. 3076185 and 3223125 (Tr. 3-572). 

To reach these particular aluminum overcasts, all machinery 

travel had to be routed up-dip via the No. 5 entry (Tr. 3-421). 

Because of the soft nature of Mid-Continent coal and the coal 

floors, the Eimco equipment tore and ground up the No. 5 entry 

floor and formed the accumulations which are the subject matter 

of Order No. 3223159 (Tr. 3-620). Because of the winter's dryness of the mine air, Mid-Continent's attempts to control this 

problem with the application of calcium chloride were largely 

frustrated. 25/ 

25/ For a discussion of the effect of ambient humidity upon 

calcium chloride see the discussion concerning Orders Nos. 

3223445, 3223446 and 3223447. 

2489 
A conflict in the evidence exists as to whether the accumulations were located near or on a roadway well traveled by 

diesel machinery. In this conflict Mid-Continent's witness 

STARZEL (Tr. 3-574) would be in a better position than Inspector 

Elswick to know the extent of the travel on the roadway. In 

short, at the time these orders were issued, the only equipment 

which traveled on this road was the single Eimco used in the 

application of Pyrochem (Tr. 3-574). Under this operation, 

the Eimco was required to pass the ordered accumulations only 

twice -- upon entering the area at the start of shift and upon 

leaving that area at the end of the shift. In the interim, 

this machine would remain in a stationary position away from 

the accumulations (Tr. 3-574). 

Inspector Elswick identified an ignition source as a 7200-

volt cable which fed power to the section and which ran across 

the accumulations (Tr. 2-141). I credit Elswick's testimony 

over Starzel's contrary view (Tr. 3-574). A 7200-volt cable is 

a large and obvious object. Further, Starzel admits the Eimco 

used to spray the aluminum overcasts was a source of ignition 

(Tr. 3-574). 

Discussion 

Mid-Continent does not dispute the existence of the accumulatioqs or the fact that the 5 slope roadway was dry and 

dusty. 26/ But Mid-Continent argues its conduct did not constitute-an unwarrantable failure to comply with the regulation. 

Further, the operator was attempting to cope with a mandate 

created by MSHA. In short, Mid-Continent argues it should 

have been granted additional time to complete the coating of 

the aluminum overcasts and to complete the attendant housekeeping as well. 

Bmery, discussed supra, requires aggravated conduct more 

than ordinary negligence. The evidence fails to show such 

aggravated conduct in connection with these three orders. 

Accordingly, allegations of unwarrantable failure should be 

stricken. 

The failure of MSHA to grant Mid-Continent additional time 

to abate these violative conditions could form a basis to vacate 

the violation. However, I am not persuaded by Mid-Continent's 

argument, particularly where a 104(d)(2) order is involved. 

~/ Post-trial brief at 37. 

2490 
In assessing civil penalties for the initial two viola~ 

tions I believe the operator was moderately negligent in permitting combustibles to accumulate. The pressure of other 

work does not excuse an operator from complying with mandatory 

standards. Concerning the lack of calcium chloride on the 

mine floor I consider the operator's negligence was low. 

A certain amount of coal dust on the mine floor can be anticipated. An accumulation of one to five inches appears to 

be minimal. Further, Mid-Continent's efforts to control the 

problem was, to a degree, frustrated by the winter's dry air. 

As to all three orders I consider the gravity to be high. 

Accumulations of coal and coal dust can readily contribute to 

a coal mine fire. It is commonly acknowledged that an underground fire can easily lead to a mine disaster. 

Mid-Continent's prior history appears to be moderate. In 

the two years ending January 19, 1988, the company was assessed 

and paid 48 violations of § 75.400. Prior to January 20, 1986, 

the company was assessed and paid 111 violations of the regulation. 

As to§ 75.316 (ventilation plan), in the two years 

ending January 19, 1988, the company was assessed and paid 

for 79 violations. Prior to January 20, 1986, the company was 

assessed and paid for 125 violations. 

Eimco Examinations 

Place of Maintaining Records 

This portion of the decision addresses Order No. 3076189 

alleging a violation of 30 C.F.R. § 75.316, supra, page 25. 

Mid-Continent denies 27/ it violated its ventilation plan, 

and the related regulation-.-

The narrative portion of the order reads as follows: 

The operator failed to comply with 

his approved ventilation and dust 

control on the 935-0031 being operated at crosscut 47 between 4 and 5 

slope in that the last date recorded 

was 11/3/87. 

27/ Brief at 38. 

2491 
Section 21.5 of the approved ventilation plan (Exhibit P-2) 

provides: 

A record of all diesel examinations 

will be kept in a book for that purpose, 

which will include the date and results 

of the examination. 

Section 21.4 of the approved ventilation plan further 

provides: 

All diesel equipment used for coal 

haulage, or any other diesel equipment 

used in or inby the last open crosscut 

on a regular basis, will be examined 

at least once every twenty-four hours 

of service to insure the equipment is 

in proper operating condition. Other 

diesel equipment, such as supply and 

mantrip vehicles will be examined once 

every seven (7) days of operation to 

insure the equipment is in proper opera ting condition. 

The Evidence 

MSHA Inspector Douglas Elswick issued this order on 

December 11, 1987. 

There was no notation "on board" the Eimco indicating the 

date of its last inspection. There had been previous problems 

as the inspection books were lost when the machines were washed. 

Generally, the books for weekly checks are now maintained on the 

surface. 

In the inspector's opinion the ventilation plan requires 

that diesel equipment be examined every seven days. 

Mid-Continent's bull gang supervisor STARZEL testified 

that due to the repeated destruction of these inspection records 

during the operation and cleaning of these machines, the storage · location had been chang~d in the approved ventilation plan 

(Tr. 3-579). 

At the time the present order was issued, the storage of all 

required diesel examination records had been moved to a location 

at the 1 Mine intercept in the outside lamphouse (Tr. 3-580). On 

the date of the present order, starzel had conducted the required 

CO and NO 2 examinations and had entered the results in a. record 

located in the lamphouse (Tr. 3-590, 3-591). 

2492 
Discussion 

It appears Inspector Elswick issued this order because the 

record book was not located on the diesel equipment. It is 

understandable how such an error could be made particularly in 

view of the previous custom of storing the bo9ks on the machines 

themselves. In view of the unrebutted testimony of STARZEL that 

the inspections were in fact made and entered elsewhere, I conclude Mid-Continent did not violate its ventilation plan. The 

plan itself does not require the inspection books to be maintained "on board" the diesel equipment. 

Mid-Continent also argues that Inspector Elswick erroneously 

concluded that the examinations must be weekly regardless of the 

number of days the machine is in operation. ~/ Since the order 

is to be vacated it is not necessary to cqnsider this secondary 

issue. 

For the reasons stated herein, Order No. 3076189 should be 

vacated. 

Powercenter Crosscut No. 27 RTP 

Failure to Record Weekly Notations 

This portion of the decision involves three related orders. 

The orders, all non-S&S and written orr December 12, 198 7, allege 

violations of 30 C.F.R. § 75.1105. ~/ 

28/ The Eimco 9 35 was not a machine operated inby the last open 

crosscut (Tr. 2-341). 

~/ The cited regulation reads as follows: 

Housing of underground transformer 

stations, battery-charging stations, 

substations, compressor stations, 

shops, and permanent pumps. 

[Statutory Provisions] 

Underground transf orrner stations, batterycharging stations, substations, compressor 

stations, shops, and permanent pumps shall 

be housed in fireproof structures or areas. 

Air currents used to ventilate structures or 

areas enclosing electrical installations shall 

be coursed directly into the return. Other 

underground structures installed in a coal 

mine as the Secretary may prescribe shall be 

of fireproof construction. 

2493 
The narrative portion of Order No. 3076193 reads as follows: 

The operator failed to comply with 

petition for modification Docket 

#M-86-182-C dated Sep. 1, 1987, 

stipulation #4 in that the last 

date recorded for the required examination of the fire suppression 

system was 11/28/87. 

The narrative portion of Order No. 3076194 reads as follows: 

The operator failed to comply with 

petition for modification Docket 

# M-86-182-C dated Sep. 1, 1987, 

stipulation #7 in that the last 

date recorded in the book for required electrical examination was 

11/28/87. 

The narrative portion of Order No. 3076195 reads as follows: 

The operator failed to comply with 

petition for modification Docket 

# M-86-182-C dated Sept. 1, 1987, 

stipulation #8 in that there is no 

record of daily examinations as 

required. 

The Evidence 

Order No. 3076193 

MSHA Inspector Douglas Elswick testified a petition for 

modification had been issued to Mid-Continent involving the 

ventilation of a power center (Ex. P-5). The company was required to inspect and record weekly notations of the inspections. 

In fact, 14 days had elapsed and no entry appeared in the books. 

After an examination and entry of that fact in the book, the 

books are countersigned by the chief electrician or maintenance 

foreman. Inspector Elswick didn't recall if the books had been 

countersigned. 

The hazard presented here is that if the recording is not 

done then other persons are not aware of hazards that might be 

involved. 

Inspector Elswick considered this violation to be unwarrantable because the examinations must be done by a certified 

person. 

2494 
MSHA has issued 10 or 12 record-keeping citations against 

Mid-Continent. 

The power center in crosscut 26 was between the intake 

entry and the beltline drive. It was identified in the surface 

book as "No. 2 drive or center." 

Order No. 3076194 

This order involved the power center in crosscut 26. There 

had been no record made for 14 days. 

The petition for modification had been posted so everyone 

should have been aware of the recording requirements. 

Inspector Elswick considered this violation was due to 

Mid-Continent's unwarrantable failure to comply because the 

operator knew it was required to record the inspection. In 

addition, the company had been cited for 10 or 12 record-keeping 

violations. 

It is important to examine the power center to see if 

anything is wrong with the e;iuipment. The high voltage transformer reduces incoming power of 4,160 volts to 480 volts. 

This equipment was located in a rock room off the beltline. 

Order No. 3076195 

This order was written because Mid-Continent failed to 

comply with stipulation 8 in M-86-182-C. The stipulation 

requires the equipment be examined daily and recorded in a 

record book. The power center is located in a cinder block 

structure. The equipment must be examined daily and the 

examination recorded in a book. 

If a fire occurs in the power center the door automatically 

closes and the incoming power is deenergized. 

The inspector asked for the records but the mine superintendent offered no excuses and he could not find the records. 

Under paragraph 8 an examination must be made daily. The inspector did not know when the last examination had taken place. 

Such examinations are important because fire and smoke 

can enter the working face. 

Inspector Elswick agreed that he was aware the required 

examination had indeed been made, but not recorded, when Orders 

Nos. 3076193 and 3076194 were issued CTr. 2-350, 2-356). 

2495 
The facility which is -the subject matter of the present 

orders is located at crosscut 27 of the north-adit beltline 

entry of the Rock Tunnels Project. This facility is a part of 

the new RTP conveyor belt system which had replaced the former 

mainline coal haulage facilities located in the slope sections 

of the Dutch Creek No. 1 and No. 2 Mines. 

Discussion 

Mid-Continent does not deny the violations described by 

Inspector Elswick. 30/ Specifically, the recorded entries 

were not made but the inspections had been made at least as 

to Orders Nos. 3076193 and 3076194. 

But Mid-Continent disputes the unwarrantable feature of the 

orders. In this situation Mid-Continent asserts its personnel 

were adjusting to the new facility and the examination procedures. 

All of the examinations were not required under electrical regulations but were required under the Proposed Decision 

and Order in modification Docket No. M-86-182-C which became 

effective on November 19, 1987 (Ex. P-5}. 

These three orders merely show ordinary negligence and 

not aggravated conduct as required by Emery. Accordingly, the 

allegations that the violations were due to the unwarrantable 

failure of the operator to comply should be stricken. Otherwise 

the three orders should be affirmed under section 104(a} of the 

Act. 

Concerning the assessment of civil penalties I consider the 

negligence in recording violations to be low since the PDQ became 

effective less than a month before the orders were written. 

Likewise, I consider the gravity to be low since these 

recording violations woμld not likely contribute to a serious 

injury. I note the examination in connection with Orders 

No. 3076193 and No. 3076194 had, in fact, been made but not 

recorded. 

The record reflects a favorable 

year period ending January 19, 1988, 

and paid 12 violations of § 75.1105. 

the company was assessed and paid 13 

regulation. 

30/ Brief at 43. 

2496 

prior history. In the twoMid-Continent was assessed 

Prior to January 20, 1986, 

violations of the same 
103 Longwall Return Escapeway 

Whether Passable 

This portion of the decision reviews Order No. 3223122 

alleging a violation of 30 C.F.R. § 75.1704. 31/ 

The narrative portion of the order reads as follows: 

The operator failed to maintain the return 

escapeway from the 103LW in safe condition 

in that a water hole about 75 feet outby the 

shields blocked the escapeway. The water 

hole was about 20 feet long, 12 feet wide 

and from 8 to 19 inches deep. 

The Evidence 

MSHA Inspector DOUGLAS ELSWICK issued this order. At a 

point 75 feet outby the shields he observed ·a water hole 20 feet 

long. Its depth, measured by a ruler, varied from 8 to 19 inches. 

A drop-off of 8 to 19 inches was hidden by the murky water. 

These conditions would hinder anyone evacuating any persons. 

31/ The cited regulation provides as follows: 

§ 75.1704 Escapeways 

[Statutory Provisions] 

Except as provided in §§ 75.1705 and 75.1706, 

at least two separate and distinct travelable passageways which are maintained to insure passage at all 

times of any person, including disabled persons, and 

which are to be designated as escapeways, at least 

one of which is ventilated with intake air, shall be 

provided from each working section continuous to the 

surface escape drift opening, or continuous to the 

escape shaft or slope facilities to the surface, as 

appropriate, and shall be maintained in safe condition 

and properly marked. Mine openings shall be adequately 

protected to prevent the entrance to the underground 

area of the mine of surface fires, fumes, smoke and 

floodwater. Excape facilities approved by the Secretary 

or his authorized representative, properly maintained 

and frequently tested, shall be present at or in each 

escape shaft or slope to allow all persons, including 

disabled persons, to escape quickly to the surface 

in the event of an emergency. 

2497 
This particular escapeway was in return air; as such, one 

would expect it to become filled with smoke if a fire occurred. 

Any miner attempting to crawl out would get water in his selfrescuer which is worn on a miner's chest. The inspector felt 

a miner could die if his self-rescuer became inoperable. 

Inspector Elswick considered this violation was due to the 

unwarrantable failure of the operator to comply. This escapeway 

was in a working section and the area must be examined every 

four hours. 

On his way out of the area a company mine examiner stated 

a waterline had broken and drained into the area about a week 

before. The area must be pre-shifted; also, as an escapeway, 

the area must be inspected weekly. 

Discussion 

Mid-Continent does not deny prior knowledge of the described 

condition 32/ but the operator denies it vi elated the regulation. 

In support of its motion to vacate this order, MidContinent contends § 75.1704 consists of three distinct and 

separate sentences. Each sentence deals with a separate aspect 

of mine escape. The first sentence deals with the maintenance 

of passageways, the second with the protection of mine entrances 

and the third with the approval and maintenance of escape facilities. Of these three portions, only the third sentence, which 

addresses "escape facilities," requires "quick escape." Under 

the regulation Mid-Continent states that passageways such as the 

103 tailgate return are subject only to the requirements that 

they be properly marked and maintained, be in a condition which 

is safe and which will insure passage of all persons including 

disabled persons. 

Mid-Continent also asserts that no evidence was presented 

indicating the 103 return air escapeway was improperly marked, 

impassible or unsafe. At no time in his inspection did Inspector 

Elswick conduct any test to determine the actual passability of 

this escapeway. Judging from the description of his inspection, 

it did not appear the inspector was prevented from safely 

traveling through this escapeway. Finally, Mid-Continent 

argues that, as developed from Inspector Elswick's description 

of the area, there was a three-foot walkway on the up-dip side 

of the water hole which would have allowed passage through the 

area by miners or miners carrying a stretcher, without coming 

into contact with the water hole {Tr. 2-290). 

~/ Brief at 44, 45. 

2498 
Mid-Continent further points out that on direct examination 

Inspector Elswick testified that, "An escapeway is designed for 

safe, quick exit of persons from the section in case of emergency 

.•.• ", (Tr. 2-291). ·Later on cross-examination, he stated that 

he interpreted 30 .C.F.R. § 75.1704 to require escapeways to be 

maintained in such condition as to facilitate quick escapes 

(Tr. 2-378). In describing the hazard presented by the allegedly 

violative condition, Mr. Elswick stated that the water present in 

the 103 return entry escapeway would hinder such a quick escape 

(Tr. 2-299). Contrary to this interpretation, however, nothing 

in the first sentence of this regulation section requires that an 

escapeway be maintained in a condition to facilitate a "quick" 

escape. 

Mid-Continent's threshold arguments were considered and 

denied in Mid-Continent Resources, Inc., 11 FMSHRC 1015 (1989). 

I reaffirm that decision for the reasons stated therein: "[T)he 

plain words of § 75.1704 require that travelways be maintained to 

"insure" passage. "Insure," according to Webster, 33/ means "to 

make certain esp. by taking necessary measures and precautions," 

11 FMSHRC at 1052. 

The testimony of Inspector Elswick is unrebutted. Such 

unrebutted evidence establishes that the passageway was not 

maintained to "insure passage". 

Mid-Continent states that miners or miners carrying a 

stretcher could pass through a three-foot walkway on the up-dip 

side of the water hole without coming into the contact with 

the water hole. I reject the operator's views: escapeways can 

often be filled with smoke and involve confused miners. And 

what of a miner crawling the escapeway. Is he to somehow find 

a three-foot walkway on the up-dip side? 

On the issue of escapeways generally Mid-Continent is invited to read the recent Commission decision entitled Utah Power 

& Light Company, WES~ 87-211-R (October 1989). 

Mid-Continent further states that the violative condition 

was not due to its unwarrantable failure to comply. 

33/ Webster's New Collegiate Dictionary at 595. 

2499 
I agree. At best, the evidence indicates this condition 

existed for a week because of water seepage. Such evidence is 

similar to the situation found in Emery. In short, the record 

fails to disclose any aggravated conduct. In view of this 

conclusion the allegations of unwarrantable failure should be 

stricken and the violation affirmed under section 104Ca) of 

the Act. 

In considering a civil penalty for this violation I conclude 

the operator was moderately negligent in that it failed to remedy 

this condition after a week. However, the gravity is moderate 

since the described condition was for a distance of only 75 feet. 

I consider Mid-Continent's prior history to be moderately 

adverse. In the two years ending January 19, 1988, the company 

was assessed and paid for 12 violations of § 75.1704. In the 

period before January 20, 1986, the operator was assessed and 

paid for 46 such violations. 

Maintenance of Robert Shaw Valve 

on Diesel Eimco 

This portion of the decision involves Order No. 3223185, 

which alleges a violation of 30 C.F.R. § 75.316, supra, page 25. 

The narrative portion of the order reads as follows: 

The operators approved ventilation 

system and methane and dust control 

plan was not being followed for the 

913-0368, approved machine, dieselpowered load-haul-scoop. The low 

water level float switch did not shut 

off the machine when the water was 

drained from the cooling box. Two 

loads of muck had been transported 

by this vehicle from the 103 longwall 

return entry on this dayshift. This 

machine was observed being operated 

in the return entry of the 103 longwall section. 

The Evidence 

PHILLIP R. GIBSON, JR., an MSHA inspector, issued Order 

No. 3223185 on December 29, 1987. 

2500 
On that occasion he observed a diesel-powered scoop in 

the return-air tailgate entry. The scoop, being used to pickup 

debris, was beyond the last open crosscut. In such a location it 

is a permissible type machine, equipped with a 2 percent methane 

monitor. 

The exhaust gases from the scoop are quenched by passing 

them through a water reservoir. In his investigation Inspector 

Gibson discussed the low water float with the equipment operator. 

He also drained the water level to four or five inches. But the 

equipment did not automatically shut off as it is required to do. 

The valve was disassembled and repaired within the time allowed 

by the inspector. 

If the water level is not functioning then the hot gasses 

can enter the atmosphere (See para. 21.l of Ex. P-9). 

This Eimco must be ·examined every 24 hours. The records 

indicated it had, in fact, been examined the previous day. 

Inspector Gibson considered this an S&S violation because 

the switch would not shut off the power automatically. As a 

result a fire could occur outby the equipment. 

Prior to issuing this citation and in the two prior years, 

Inspector Gibson had written citations to Mid-Continent concerning diesel equipment. Other inspectors had also written 

similar citations regarding the maintenance of diesel equipment. 

Concerning violations relating to diesel equipment, the 

inspector had checked the records. There were some 35 violations for two years prior to the time this citation was issued. 

Inspector Gibson believed the violation of this order was 

unwarrantable because of the repetitious nature of the violation. 

GEORGE FAGUNDES, Mid-Continent's master mechanic of diesel machinery, explained that the Robert Shaw valve is part 

of a safety device fitted on diesel Eimcos, in this case, a 

913 Eimco scoop serial number 0368. The purpose of the Robert 

Shaw valve is to assure that such machinery is not o~erated with 

an inadequate level of water in its scrubber tank. 3 I In performing its safety function, the Robert Shaw valve has absolutely 

no relationship to the actual operation of the scrubber tank 

(Tr. 3-531). 

34/ A scrubber tank is a stainless steel water tank affixed to 

the machine. The engine exhaust of the machine is routed through 

this water tank to cool the exhaust fumes to the point where they 

will not present the hazard of a possible coal and/or methane 

ignition (Tr. 3-338). 

2501 
.. 

Up to the time when Inspector Gibson halted work to test 

the Robert Shaw valve, the Eimco scoop was operating with 

water in the scrubber tank (Tr. 3-341). Also, this Eimco was 

equipped with an methanometer which shuts down power to the 

machine upon encountering a methane percentage of 2.0 percent 

or more (Tr. 3-433). 

A brief description of the Robert Shaw valve is necessary: 

the valve operates much in the same manner as a float system 

in a bathroom commode. In the diesel system a metallic float 

is in a cylindrical metal tube which extends into the scrubber 

tank. This captive float rides up and down in its tube according 

to the water level in the scrubber tank. Upon reaching a set 

low water level, the float activates a magnetic shunt device 

which disconnects power to the machine (Tr. 3-532). 

Mid-Continent, in accordance with schedule 31 requirements, 

has been required over the years to equip all diesel-powered 

equipment operated inby the last open crosscut with Robert Shaw 

valves. Diesel Superintendent Fagundes has, over the years, had 

the opportunity of working on hundreds of such valves. During 

the course of his experience, Fagundes has come to consider the 

Robert Shaw valve, "a big nuisance i tern" (Tr. 3-5 40) • 

The problem presented by this valve results from the operation of the float device within its confining cylinder on the 

steep slope conditions of the Dutch Creek Mines. According to 

Fagundes, the approximate 13 degree pitch of these coal seams 

causes the float valve to bind within its confining cylinder 

even when the machine is in a stationary position (Tr. 3-534, 

3-535). Fagundes has found that this problem can usually be 

alleviated simply by moving the machine and this "unsticks" 

the float in its cylinder. In short, the movement or vibration 

of the machine while being moved is enough to overcome the 

binding effect on the float valve (Tr. 3-534, 3-535). 

Discussion 

Mid-Coqtinent states its valves involve a common occurring 

problem: 35/ when the machine was operating it had water in the 

~/ Brief at 49. 

2502 
scrubber tank. After the water was drained the machine was 

not equipped to determine whether or not the float valve had 

temporarily bound up. Because of the nature of the safety 

device it is quite probable that the valve was in an operable condition when the required weekly examination had been 

performed the day before the order was issued by Inspector 

Gibson. 

Mid-Continent's argument is misdirected. The violation 

exists here because the low level water float switch did not 

shut off the Eimco when the water was drained. Mid-Continent's 

evidence does not rebut that issue. 

Concerning the issue of unwarrantable failure: The inspector's testimony of violations relating to diesel equipment and the issuance of similar citations is simply too 

broad to clearly establish unwarrantable failure by repetitious conduct. In short, in the absence of more specific 

and detailed evidence as to this equipment, I conclude MidContinent' s conduct only constituted ordinary negligence and 

not aggravated conduct as required by Emery. 

For the foregoing reasons, the allegations of unwarrantable failure should be stricken. Further, Order No. 3223185, 

as amended, should be affirmed under section 104(a). 

In assessing a civil penalty I consider both the operator's negligence and the gravity of the violation to be low. 

Concerning negligence, it appears some water was in the reservoir. Further, the equipment had been checked the previous 

day. The presence of some water in the reservoir also essentially negates a probability of a fire. In view of this factor 

I also deem the gravity to be low. 

Mid-Continent's prior history indicates the company was 

assessed and paid 79 violations of § 75.316 in the two years 

ending January 19, 1988. In the period before January 30, 

1986, the company was assessed and paid 125 violations of the 

regulation. I consider the operator's prior history to be only 

moderately adverse inasmuch as ventilation plans can involve 

a myriad of circumstances. 

2503 
Rock Dusting in 103 Longwall on 

Non-Producing Shift 

This portion of the decision considers Order No. 3223220 

alleging a violation of 30 C.F.R. § 75.403. 36/ 

The narrative of the order reads as follows: 

The rock dust applied to the lower rib 

and the floor of the lower tail gate 

entry of the active 103 longwall section 

was not maintained in such quantity that 

the combined mine dusts was at least 

80 percent. The substandard rock dust 

began at survey station 7250 and extended outby (toward the face> for 40 

feet. Water was not squeezed from a 

handful of the combined mine dusts. One 

spot mine dust sample was collected to 

substantiate this condition. 

The Evidence 

MSHA Inspector PHILLIP R. GIBSON, JR. issued this order in 

the return air entry of the longwall section on January 15, 1988. 

At the time there was a mining crew of eight to ten miners in the 

area. 

The inspector observed float coal dust in the air, on the 

coal ribs as well as on the mine floor. The area he observed 

appeared to be dark. Generally operators use rock dust when 

working. There were small amounts of rock dust on the ribs and 

floor. 

36/ The cited regulation, in its relevant part, provides as 

follows: 

§ 75.403 Maintenance of incombustible 

content of rock dust. 

[Statutory Provision] 

Where rock dust is required to be applied, it shall 

be distributed upon the top, floor, and sides of all 

underground areas of a coal mine and maintained in 

such quantities that the incombustible content of the 

combined coal dust, rock dust and other dust shall be 

not less than 65 per centum, but the incombustible content in the return aircourses shall be no less than 

80 per centum •••• 

25Q4 
The purpose of rock dust is to render coal dust inert. 

The rock dust can be applied by hand or by using a high pressure 

hose and a water mix. 

Upon entering the area, Inspector Gibson concluded that 

the activities being conducted in the longwall were preparatory 

to mining. The mining process itself generates coal dust 

(Tr. 3-367). . 

Inspector Gibson further agrees the cited location was 

directly inby the 103 longwall tailgate (Tr~ 3-456). 37/ 

The inspector also indicated that the 40 foot area located 

in this entry was not maintained to an incombustible level of 

80 percent. This condition presented a reasonably likely 

hazard in the event of a mine fire or explosion. According 

to the inspector, if incombustibility of coal is not maintained it can contribute to the propagation of a fire and/or 

explosion (Tr. 3-381). 

GEORGE PREWITT, a member of Mid-Continent's safety department, testified that when the order was issued the company was 

conducting a stress-relief program on the 103 longwall face 

(Tr. 3-634, 3-635). By this program, areas of stress are 

identified by drilling holes into the face and in the tailgate 

area. Upon detection of such stress, the holes are loaded with 

permissible explosives and detonated. Because of the severity 

of past outbursts, no mining is performed in the 103 lon~all 

section until all stress-relief operations are completed 38/ 

(Tr. 3-692, 3-695). ~ 

37/ The 103 mining section consists of an advancing longwall 

panel. Under this unique system of mining no room and pillar 

development is required. Instead, the mechanized machinery 

constituting the longwall equipment set advances directly into 

the virgin coal creating, by packwalls in the headgate and 

tailgate entries, ventilation, beltline and roadway entries as 

the panel advances into the virgin block of coal (Tr. 3-633). 

Because the 103 longwall utilizes the former 102· longwall 

headgate as the 103 longwall tailgate, this "Zed" configuration, 

uniquely, has areas inby the working face. This inby area is a 

de-stress drilling area, and the stress-relief work caused the 

area complained of by the inspection (See, Ex. R-22). 

38/ Because of the time requirements required in the stressrelief program, actual mining is conducted on only one shift. In 

the present case, this shift was the C-shif t or graveyard shift 

(approximately 2300 to 0700 hours the next calendar day) (Tr. 3-

692). 
The 40 foot area described in Inspector Gibson's order as 

not properly maintained was the by-product of the approved 

stress-relief program. This area had been created as a result of 

coal detonated from the rib by the explosive de-stressing of the 

area on a preceding shift (Tr. 3-501). 

Discussion 

Mid-Continent states 39/ the Secretary interprets her 

regulation to mean that at-rio time can any area of a mine, 

no matter how small, be allowed to exceed the incombustibility 

requirements of the regulation. 

This argument overstates the facts. The record shows 

only a three-foot area was without rock dust but a violation of 

30 C.F.R. § 75.403 nevertheless existed. 

I agree with Mid-Continent that the situations involved 

here do not support the finding of unwarrantable failure as defined by the Commission in Emery. The order was written between 

the stress-relief detonation and the next scheduled production 

shift. The allegation of unwarrantable failure should be 

stricken. 

In assessing a civil penalty the operator's negligence is 

low since the small area lacking rock dust was the by-product 

of the stress-relief program. I consider the gravity to be 

moderate. Mid-Continent's evidence shows its coal is not readily 

combustible. However, float coal dust can clearly and quickly 

propagate a fire. 

The operator's prior history is favorable. In the two 

years ending January 19, 1988, the company was assessed and 

paid 15 violations of § 75.403. In the period before January 20, 

1986, the company was assessed and paid for 27 violations of the 

regulation. 

Accumulations in and Compaction of 

103 Longwall Headgate Roadway 

During Non-Producing Shift 

This portion of the decision considers three orders issued 

on January 20, 1988. 

~/ Brief at 51. 

2506 
Order No. 3223445 alleges a violation of 30 C.F.R. § 75.400 

(accumulations, cited supra), page 31. 

The narrative portion of the order reads as follows: 

Fine, dry coal dust was not cleaned up but 

allowed to accumulate on the floor of the 

intake roadway of the 103 longwall section. 

Beginning at the startline and extending 

inby for 57 feet, 10 feet in width, and 

ranging from 1 inch to • 5 inches in .depth 

[sic] the accumulation lay on the mine floor. 

Order No. 3223446 alleges a violation of 30 C.F.R. § 75.403 

Crock dust, cited supra, page 49. 

The narrative portion of the order· reads as follows: 

The rock dust applied to the mine floor 

of the intake roadway of 103 longwall 

section, beginning at the startline 

and extending inby for 57 feet, was not 

maintained in such quantity that the 

incombustible content of the combined 

dry mine dusts was [sic] at least 65 

percent. 

One spot mine dust sample was collected 

to substantiate this condition. 

Order No. 3223447 alleges a violation of 30 C.F.R. § 75.316, 

(ventilation plan), cited supra, page 25. 

The narrative portion of the order reads as follows: 

The operator's approved ventilation 

system and methane and dust control 

plan was not being followed in the 

active intake roadway for 103 longwall 

section. Beginning at No. 7 slope and 

extending inby to the startline of 103 

longwall, the roadway was not dampened 

with water or calcium chloride so as to 

promote compacting of the mine dusts. 

2507 
The Evidence 

Order No. 3223445 

PHILLIP R. GIBSON, JR., an MSHA inspector, issued this order 

on January 20, 1988. As he stated in his order he observed dry, 

finely pulverized coal dust on the coal floor. 

The readily visible dust was one to five inches deep, 

57 feet long and 10 feet in width. 

Rubber-tired diesel equipment had used the roadway. In 

addition, there was foot traffic from the six to twelve-man 

crew entering the 103 working section. There was dust in the air. 

The left rib had fallen to the mine floor. 

The hazard here: accumulated coal dust could become airborne and enter the working section. If an explosion occurred 

at the face it would propagate as well as add fuel to the fire. 

The inspector agreed that this violation involved the unwarrantable failure of the operator to comply because of the dryness, the fineness and the location of the coal dust. Also, the 

area was subject to a pre-shift examination. The pre-shift examiner stated no hazardous conditions were observed. The examiner 

should have seen the conditions and taken corrective action. 

Mr. Gibson argued there was no mining in progress but there 

were jacketed power cables in the area. There was no other 

source that could have caused an explosion. 

Exhibit R-16 shows all mine floor violations for 1987 

involving accumulations. For the two-year period before Order 

No. 3223445 was issued the inspector found 104 violations of 

these orders, 33 related to this mine, so the remaining 77 must 

have related to the Dutch Creek Mine. Inspector Gibson interprets section 75.400 to the effect that there can never be an 

accumulation of coal on the mine floor. 

Order No. 3223446 

This order, a violation of § 75.403, involves a failure 

to apply rock dust. It encompasses the exact location of the 

previous order (No. 3223445). 

The area in the intake air did not appear to be 65 percent 

rock dust. A sample was taken and sent to the lab at Mt. Hope, 

Virginia. 

The purpose of the rock dust requirement is to inert 

combustibility of coal dust on the coal floor. The hazard: 

coal dust can help propagate a mine fire. 

2508 
This particular roadway on an intake escapeway is used by 

diesel-powered equipment and miners traveling on foot. 

Electrical power cables in the area could be a source of 

ignition. The area has 80,000 CFM moving across the face. 

Order No. 3223447 

This order constitutes a violation of the company's ventilation plan as contained in paragraph 3.10 on Exhibit P-14, 

involved an un-dampened roadway. The cited area involved 250 

feet of roadway ending in the areas involved in the two previous 

orders. 

On January 20, 1988, this area was dry, dusty and there 

was no calcium chloride on it. 40/ Calcium chloride causes dust 

particles to become compacted. When applied the mine dust is 

less likely to become airborne and that reduces the possibility 

of an explosion. 

Cold weather inhibits the action of calcium chloride. 

The inspector has issued previous citations concerning 

the lack of calcium chloride on the operator's roadways. 

This area is subject to a pre-shift examination. But no 

violation had been noted by the pre-shifter. 

RICHARD REEVES and GEORGE PREWITT testified for MidContinent and indicated the attempted removal of the accumulations with equipment resulted in further tearing up and 

deterioration of the mine floor. In order to abate the order 

to the satisfaction of the inspector, the accumulations had 

to be removed by hand CTr. 3-640, 3-641). 

To reduce any hazard Mid-Continent was in fact in the 

process of applying calcium chloride to the accumulations 41/ 

but they were having a difficult time getting it to compact 

(Tr. 3-707) • 

.!Q/ Calcium chloride looks like large chunks of salt. 

41/ Calcium chloride is a hydroscopic chemical which 

absorbs water from the surrounding mine atmosphere. When 

applied to the mine floor, this absorbed water bonds with 

the floor material creating a more compact surface which is 

less likely to generate dust which can become airborne in 

ventilating currents (Tr. 3-649). 

2509 
Under the conditions at the Dutch Creek mines, treatment 

with calcium chloride is the only feasible course of action 

available to deal with accumulations such as these. At the time 

of this order there was, in the Rock Tunnels Project and the 

Dutch Creek No. 1 and No. 2 mines, approximately 33,000 feet of 

roadway (Tr. 3-719, 3-720). All of the roadways located in the 

Dutch Creek No. 1 Mine consist of a coal floor. 42/ In the 

course of transporting men and material through these entries 

with rubber-tired equipment, areas of the soft coal floor will 

be pulverized and accumulations will form (Tr. 3-620). 43/ To 

require Mid-Continent in addition to their regularly scheduled 

clean-up program, to remove all such accumulations by hand would, 

as testified by Reeves, require that all miners be continuously 

assigned to accumulation removal (Tr. 3-719). 

At this time, however, the Coal Basin was experiencing a 

cold weather snap ~/ whicp further reduced the already low 

relative humidity of the mine air. With lower humidity, the 

low temperatures adversely affected the effectiveness of the 

calcium chloride by reducing the amount of moisture which the 

chemical will absorb and by increasing the evaporative effect 

the mine ventilation has on a roadway. 

Under the activity schedule, material haulage is not usually 

performed on the same shift as the de-stress drilling (Tr. 3-483). 

At the time when these orders were issued there was no reason for 

diesel machinery to be traveling on the 103 intake entry roadway. 

During this time, the only diesel equipment observed by Gibson 

was the machines subsequently brought into the section to attempt 

to abate the orders (Tr. 3-644). 

There were no power cables in the 103 intake. All electrical power cables entering the 103 longwall section were located 

in the lower, conveyor belt entry (Tr. 3-646). 

42/ The Dutch creek No. 1 Mine is located in a coal seam 

approximately 10 feet thick. Generally, entries in this mine 

are developed to a· height of 8 feet. In order to take advantage 

of the predominately good roof conditions in this seam, the 

remaining coal is left on the floor rather than on the roof 

CTr. 3-700). 

43/ Contrary to the testimony of Inspector Gibson, Mid-Continent 

Coal Basin coal is not a hard coal. In fact, this coal is one of 

the softest in the worldi under normal conditions, it is possible 

to crush Coal Basin with the human hand. 

44/ On the date the present orders were issued, temperatures in 

the Coal Basin, while reaching a low of -14 degrees Fahrenheit, 

·never exceeded a high of 16 degrees Fahrenheit (Exhibit R-11). 

2510 
Discussion 

Mid-Continent argues the inspector's first two orders were 

an unreasonable multiplication of charges. 

It is clear from the record that the only aspect which can 

be seen as differentiating Order No. 3223445 from No. 3223446 

is the regulatory sections under which they were written. 

However, I reject Mid-Continent's position: the purpose of 

the Act is to provide for the safety of the miners. It would be 

contrary to the intent of the Act if an operator could avoid a 

citation on the basis that it violated a different mandatory 

standard. 

The Commission has previously ruled that the Mine 

not permit an operator to shield itself from liability 

violated a different, but related, mandatory standard. 

Rock Quarries, Inc., 3 FMSHRC 35, 40 (1981). 

Act does 

because it 

El Paso 

The company's view that the accumulations were de minimus is 

rejected. The inspector's testimony indicates such accumulations 

were, in fact, not minimal. The coal dust was one to five inches 

deep for 57 feet. 

Inspector Gibson believed these accumulations presented a 

respirable dust hazard. Witness Prewitt, trained in respirable 

dust, expressed a contrary view CTr. 3-652). It is clear no 

respirable dust tests were taken. Since Mid-Continent was 

not cited for violating the respirable dust regulation, it is 

unnecessary to explore this issue. 

Concerning the allegations of unwarrantable failure: 

the evidence as to the initial two orders fails to indicate 

any aggravated conduct as required by Emery. As to the third 

order Mid-Continent was attempting to apply calcium chloride 

but the operator was largely frustrated by the cold temperature. 

All allegations of unwarrantable failure should be stricken 

since Mid-Continent's attempt to comply negates a finding of 

unwarrantability. 

Mid-Continent's remaining views 45/ relate to assessing 

a civil penalty. In short, Mid-Continent claims there are no 

significant health or other hazards in these orders. But I 

reject Mid-Continent's position. The foregoing summary of the 

evidence indicate the violative conditions existed. 

45/ Brief at 57. 

2511 
The negligence involved in each order is low since relatively small areas of the violative condition existed. But I 

further consider the gravity high since the accumulations of 

dry coal dust can readily propagate a mine fire. It necessarily 

follows that I am not persuaded by Mid-Continent's evidence 

seeking to establish that its coal "needs help" to burn. This 

may be true of. the coal itself but coal dust is certainly a 

more volatile product. 

The operator's prior history as to violations of § 75.400, 

§ 75.403 and § 75.316 have been previously discussed. 

For the foregoing reasons Order Nos. 3223445, 3223446 

and 3223447 should be affirmed under section 104(a) of the Act. 

Exposed Electrical Wiring in Lamphouse 

This portion of the decision addresses Order No. 3223124 

alleging a violation of 30 C.F.R. § 77.502 ~/ 

The narrative portion of the order reads as follows: 

The energized llOVAC [sic] circuits 

located in the wall about 4! feet about 

the floor in hallway at old #1 mine lamp 

house was [sic] not properly maintained 

in that the recording gage had been removed creating an opening about 14 x 14 

inches with the energized parts exposed . 

.!§./ The cited regulation reads as follows: 

§ 77.502 Electric equipment; examination, 

testing, and maintenance. 

Electric equipment shall be frequently 

examined, tested, and properly maintained 

by a qualified person to assure safe operating conditions. When a potentially 

dangerous condition is found on electric 

equipment, such ·equipment shall be removed 

from service until such condition is corrected. A record of such examinations 

shall be kept. 

2512 
The Evidence 

On December 18, 1987, Douglas Elswick, an MSHA electrical 

specialist, inspected the old lamphouse. Someone had removed an 

amperage meter and left some of its energized parts exposed in 

the hallway. There were two bare wires 4! feet off the ground. 

The hallway was in use and the wires had been exposed for three 

and one-half weeks. 

The 110 volts are hazardous and can cause a fatality. 

The circuit should have been re~oved with the fixture. 

The inspector concluded the violation was due to the unwarrantable failure of the operator to comply because of the 

location of the bare wires. 

On cross-examination, the inspector agreed only a few 

miners would go into the area of the exposed wires {Tr. 2-369). 

The wires were in a hallway to the old maintenance and superintendent's office {Tr. 2-368). In addition, the Breeden 47/ 

House operator would have no reason to go in this hallway even 

though he used the shop which was a part of the overall, old 

1 - Mine lamphouse {Tr. 2-368). 

Discussion 

Mid-Continent states 48/ this is an example of poor workmanship but the operator argues the severity was misjudged by the 

inspector. In particular, as the inspector stated, the energized 

110-volt wiring was almost flush with the wall {Tr. 2-302). 

I am not persuaded by Mid-Continent's argument. Whether 

the energized wires are "almost" flush or completely flush with 

a wall does not reduce the hazard. 

Mid-Continent further states the inspector misjudged the 

Emery criteria relating to unwarrantable failure. 

I agree. The record establishes only ordinarily negligence 

on the part of Mid-Continent. In the absence of aggravated conduct the allegations of unwarrantable failure should be stricken. 

The violation should be affirmed under section 104{a) of the Act. 

47/ The Breeden House is part of the aggregate handling system 

which furnishes the cement material for the 103 longwall's packwalls. 

48/ Brief at 58. 

2513 
In assessing a civil penalty I consider the operator's 

negligence to be high. The operator removed part of a fixture 

but left exposed wires. This condition was permitted to exist 

for three and one-half weeks. Electrical wiring that is "almost" 

flush with the wall is still a potentially dangerous condition 

within the meaning of § 77.502. 

I further consider the gravity of the violation to be 

high since energized wires of this type could cause a fatality 

or severe burns to a miner. 

Mid-Continent's prior history is favorable. In the two 

years ending January 19., 1988, the company was assessed and paid 

for six violations of § 77.502. Before January 20, 1986, the 

company was assessed and paid for five such violations. 

Distance Between 103 Longwall Face Shields 

and No. 2 Headgate Packwall 

This portion of the decision addresses Order No. 3223121 

alleging a violation of 30 C.F.R. § 75.200. 

In its brief, Mid-Continent states 49/ this order was 

contested because of an erroneous belief~hat the inspector had 

incorrectly measured the distance between the packwall and the 

face shields. However, the evidence at the hearing established 

that the inspector correctly measured such distance. Accordingly, Mid-Continent has withdrawn its request for a hearing. 

For good cause shown, Mid-Continent's motion should be 

granted. The order and proposed civil penalty should be 

affirmed. 

Further Discussion of Civil Penalties 

The criteria not heretofore discussed in connection with the 

assessment of civil penalties involve the size of Mid-Continent, 

the effect of penalties on the operator's ability to continue in 

business and whether the operator demonstrated good faith in 

attempting to achieve prompt abatement. 

At the hearing the parties stipulated that Mid-Continent's 

size is evidenced by the production tons contained in the Secretary's proposed assessment (Exhibit A attached to petition) • 

.1,2/ Brief at 60. 

2514 
Based on the stipulation it appears the company is small since 

it produces 666,582 tons of coal; the mine involved here produces 

277,194 tons. 

The record here indicates Mid-Continent demonstrated statutory good faith by promptly abating the violative conditions. 

Whether the penalties assessed here would affect the operator's ability to continue in business was an issue presented in 

the case. 50/ 

Mid-Continent's witness DAVID POWELL, financial planner and 

engineer, testified the company had incurred an eleven and onehalf million dollar shortfall. As a result of this shortfall the 

company couldn't pay a $2500 penalty to MSHA but it could shift 

funds within its operating accounts. However, the company had no 

money in the bank (Tr. 17, 18, 37, In Camera, December 1, 1988), 

Witness Powell's limited testimony also indicated other indicia 

to the effect that the company was financially strapped. 

Discussion 

Mid-Continent's evidence does not persuade me that the 

penalties assessed herein would affect the company's ability to 

continue in business. As a threshold matter Powell's opinion is 

based on a financial business plan and various coal contracts 

(Tr. 4 - 8, In Camera (not sealed)). 

I am not persuaded. As a threshold matter the financial 

plan itself and its underlying documents were not offered in 

evidence. In addition, more persuasive evidence of inability 

to continue in business would consist of such basic accounting 

documents as income tax returns and profit and loss statements. 

In sum, Mid-Continent's proof failed on this issue. 

50/ This issue arose in two In Camera Proceedings held respectively on December 1, 1988 and January 19, 1989. Due to the 

sensitive, proprietary and confidential evidence presented on 

December 1, 1988, the Presiding Judge sealed certain portions of 

the transcript (See order of March 22, 1989). Said evidence 

remains sealed subject to further order of the Presiding Judge 

or the Commission. 

The In Camera aspect of the proceedings of January 19, 1989, 

was dissolved by order of the Presiding Judge on November 20, 

1989. 

2515 
The Secretary's proposed penalties for each of the violations range between a low of $1100 and a high of $1500. 

In considering all of the statutory criteria herein I deem 

the penalties as assessed in the order of this decision are 

proper. 

Brief 

Mid-Continent has filed a detailed post-trial brief which 

has been most helpful in analyzing and defining the issues. I 

have reviewed and considered this excellent brief. However, to 

the extent it is inconsistent with this decision, it is rejected. 

ORDER 

Based on the findings of fact and conclusions of law as 

stated herein I enter the following order: 

WEST 88-231 

1. Order No. 3223449 (Frozen waterlines during winter): 

the allegations of unwarrantable failure are stricken. 

This order is affirmed under Section 104(a) and a civil 

penalty of $300 is assessed. 

2. Order No. 2832627 (Weekly examination of seals and 

placing date, time and initials): this order and all proposed 

penalties therefor are vacated. 

WEST 88-230 

3. Order No. 2832624 (Failure to examine inaccessible 

seals): the allegations of S&S as well as unwarrantable failure 

are stricken. 

This order is affirmed under Section 104Ca) and a civil 

penalty of $225 is assessed. 

4. Order No. 2832625 (Failure to examine inaccessible 

seals): the allegations of S&S as well as unwarrantable failure 

are stricken. 

This order is affirmed under Section 104(a) and a civil 

penalty of $225 is assessed. 

2516 
5. Order No. 3076182 (Eimco emergency full cut-off 

blocked with a paper rag): this order, as amended, is affirmed 

and a civil penalty of $1,500 is assessed. 

6. Order No. 3076185 (Accumulations of coal in crosscut 

47): the allegations of unwarrantable failure are stricken. 

This order is affirmed under Section 104(a) of the Act and a 

civil penalty of $200 is assessed. 

I 

7. Order No. 3076189 (Eimco examinations, place of maintaining records): this order and all proposed penalties therefor 

are vacated. 

8. Order No. 3076190 (Aluminum overcasts): the allegations 

of unwarrantable failure are stricken. 

This order is affirmed under section 104(a) and a civil 

penalty of $175 is assessed. 

9. Order No. 3076193: (Power-center, failure to record 

weekly notations): the allegations of unwarrantable failure are 

stricken. 

This order is affirmed under Section 104(a) and a civil 

penalty of $50 is assessed. 

10. Order No. 3076194: (Power-center, failure to record 

weekly notations): the allegations of unwarrantable failure are 

stricken. 

This order is affirmed under Section 104Ca) and a civil 

penalty of $50 is assessed. 

11. Order No. 3076195: (Power-center. failure to record 

weekly notations): the allegations of unwarrantable failure are 

stricken. 

This order is affirmed under Section 104(a) and a civil 

penalty of $75 is assessed. 

12. Order No. 3223121 (Distance between longwall face 

shields and headgate packwall): respondent has withdrawn its 

request for a hearing. 

This order is affirmed and the proposeQ civil penalty 

of $1,100 is affirmed. 

2517 
13. Order No. 3223122 (Longwall return escapeway, whether 

passable): the allegations of unwarrantable failure are stricken. 

This order is affirmed under Section 104(a) and a civil 

penalty of $275 is assessed. 

14. Order No. 3223124 (Exposed electrical w1r1ng in lamphouse): the allegations of unwarrantable failure are stricken. 

This order is affirmed under Section 104(a) and a civil 

penalty of $250 is assessed. 

15. Order No. 3223125 (Accumulations of loose dry coal in 

Crosscut 49): the allegations of unwarrantable failure are 

stricken. 

This order is affirmed under Section 104(a) and a civil 

penalty of $200 is assessed. 

16. Order No. 3223159 (Lack of calcium chloride and water 

on mine floor): the allegations of unwarrantable failure are 

stricken. 

This order is affirmed under Section 104(a) and a penalty of 

$150 is assessed. 

17. Order No. 3223185 (Maintenance of Robert Shaw valve): 

the allegations of unwarrantable failure are stricken. 

This order is affirmed under Section 104(a) and a civil 

penalty of $125 is assessed. 

18. Order No. 3223207 (Frozen waterlines during winter): 

the allegations of unwarrantable failure are stricken. 

This order is affirmed under Section 104(a) and a civil 

penalty of $125 is assessed. 

19. Order No. 3223220 (Rock dusting in longwall on nonproducing shift): the allegations of unwarrantable failure are 

stricken. 

This order is affirmed under Section 104(a) and a civil 

penalty of $150 is assessed. 

2518 
20. Order No. 3223445 (Accumulations in and compaction of 

103 longwall headgate roadway): the allegations of unwarrantable 

failure are stricken. 

This order is affirmed under Section 104(a) and a civil 

penalty of $275 is assessed. 

21. Order No. 3223446 (Failure to apply rock dust on 

in-take roadway): the allegations of unwarrantable failure are 

stricken. 

This order is affirmed under section 104(a) and a civil 

penalty of $275 is assessed. 

22. Order No. 3223447 (Roadway not dampened with water or 

calcium chloride): the allegations of unwarrantable failure are 

stricken. 

This order is affirmed under Section 104(a) and a civil 

penalty of $275 is assessed. 

Law Judge 

Distribution: 

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

CO 80294 (Certified Mail) 

Edward Mulhall, Jr., Esq., Delaney & Balcomb, P.C., Post Office 

Drawer 790, Glenwood Springs, CO 81602 (Certified Mail) 

/ot 

2519 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 7 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA}, 

Petitioner 

v. 

APPALACHIAN BUILDERS 

CORPORATION, 

Respondent 

1989 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 89-112 

A.C. No. 46-05368-03501 A2L 

Prep Plant 

DECISION 

Appearances: Glenn M. Loos, Esq., U.S. Department of Labor, 

Off ice of the Solicitor, Arlington, VA, for the 

Petitioner; 

Charles s. Wickline, Appalachian Builders, Inc., 

Huntington, West Virginia, for the Respondent. 

Before: Judge Maurer 

The Secretary of Labor filed a petition for the assessment 

of civil penalties for four alleged violations of the mandatory 

safety standards promulgated under the Federal Mine Safety and 

Health Act of 1977 {the "Act"}. 

Pursuant to notice, this case was heard on July 27, 1989, at 

Morgantown, West Virginia. Inspector Miller testified for the 

government and Mr. Charles Wickline for the respondent. 

At the hearing, prior to the taking of any testimony, the 

Secretary moved for the approval of an agreed upon settlement 

with respect to two citations, for the full amount of the 

proposed penalties, which is $50 per each. I thereafter approved 

the settlement concerning Citation No. 3132750 and 3135815. The 

remaining two citations to be considered, Citation Nos. 3135814 

and 3135816 were tried before me and having considered the entire 

record herein and the contentions of the parties, I make the 

following decision. 

2520 
Citation No. 3135814 

This citation alleges a "significant and substantial" 

violation of the regulatory standard at 30 C.F.R. § 77.208Cd) and 

alleges as follows: 

The acetylene and oxygen bottles, on the ground 

floor of the Bird Dryer Building were not stored and 

secured in ~ safe manner, in that one oxygen bottle, 

and thrae acetylene bottles were not tied off and secured. 

The inspector found and the respondent ~ssentially admits 

that the gas bottles were standing unsecured at the time the 

inspector happened along and found them. The respondent goes on 

to state that these cylinders were empty and were being collected 

for moving to the storage area. They had been standing un3ecured 

where the inspector found them for 10-30 minutes at that time and 

most likely would have been transported to the storage area and 

properly secured within the next half hour, according to the 

respondent's witness. 

This is a violation of the cited standard. The next 

question is what rea:3onably could have been the consequences of 

this violative condition. The inspector feels it was an "S & S" 

violation in that the tanks could have been pushed over, ruptured 

by penetration and exploded. I find this to be an absolutely 

incredible allegation. To begin with, these are very substantial 

metal cylinders standing on a dirt-packed Eloor. They were 

spent, having little or no internal gas pressure and they were 

already capped. The worst case scenario that I can imagine is 

that one of these tanks would tic over and fall on someone's foot. 

This is not inconsequential, but.I do not believe it will support 

an "S & S" finding. See, Mathies Coal Co., 6 FMSHRC 1, 3-4 

(January 1984). .l\cco-rdingly, I find that Citation No. 3135814 

was erroneously designated as an "S & S" violation. 

Considaring the criteria for a civil penalty in Section llO(i) 

of the Act, I find that a penalty of $20 is appropriate for this 

violation. 

Citation No. 3135816 

This citation alleges a "significant and substantial" 

violation of the cegulatory standard at 30 C.F.R. § 77.1104 and 

alleges as follows: 

Combustible materials such as oil and grease were 

p ce~:;en t on tha frame, inotor and electrical coi!:lponents 

on th8 Le-Roi A.ir Compressor, located beside the prep 

plant. 

2521 
The in3pector testified that there was a fire hazard because 

of the accumulation of oil, grease and grime on the motor and 

electrical components of the cited air compressor. The inspector 

further opined that this "mess" was both combustible and 

Elammable, and there was an ignition source present. The 

inspector believed this was an "S & S" violation because a fire, 

resulting in burns to somebody, or resulting in an explosion of 

the air compressor itself was reasonably likely to occur. If 

this fire and/or explosion did in fact occur, the inspector 

believed a serious injury was "possible". 

Respondent's testimony regarding this c\tation concerned the 

type of grease and grime that was present. Mr. Wickline 

testified that this compressor uses both motoc oil and pneumatic 

oil. He points out that motor oil is not highly flammable, but 

is combustible. Pneumatic oil, in his opinion, is either 

inflammable or "almost nonflammable", and a lot of the leaking on 

this air compressor is done by this pneumatic oil rather than the 

motor oil. Respondent also disagreed with the amount of "grease 

and grim~" present. Mr. Wickline stated: "What I saw on the 

compressor was no more than you would if I opened the hood of my 

Blazer out there now, which was on a mine site yesterday" 

(Tr. 61). 

Reduced to its essentials, respondent's argument is that _ 

there was not enough grease, oil, dirt and grime covering the 

compressor to create a hazard and secondly that the "mess" that 

was there was not proven to be combustible. 

30 C.F.R. § 77.1104 states: 

Combustible materials, grease, lubricants, paints, 

or flammable liquids shall· not be allowed to accumulate 

where they can create a fire hazard. 

Based on this record, I believe the inspector can identify 

grease and lubricants when he sees them and I accept his opinion 

that these had accumulated on the cited air compressor to the 

point where they could create a fire hazard, and thus a violation 

is proven. Howevec, in order to find that a violation is 

"signiElcant and substantial" the Secretary also has the burden 

of proving a discrete safety hazard Ca measure of danger to 

safety) contributed to by the violation, a reasonable likelihood 

that the hazard contributed to will result in an injury, and a 

reasonable likelihood that the injury in question will be of a 

r~asonably serious nature. See Mathies Coal Co., supra. 

~rom the de3cription the inspector gave of the violative 

condition, I believe it is somewhat of a atretch to find that 

this could create a fire hazacd. To also find that a fire was a 

2522 
reasonably likely outcome of the violative condition is an 

improbability in my opinion. Accordingly, I find that Citation 

No. 3135816 was erroneously designated as an "S & S" violation. 

Considering the criteria for a civil penalty in 

Section llO(i) of the Act, I find that a penalty of $20 is 

appropriate for this violation as well. 

ORDER 

1. The designations of Citation Nos. 3135814 and 3135816 

as significant and substantial violations ar9 hereby stricken. 

2. Citation Nos. 3135814 and 3135816 are af:Eirmed as 

amended. 

3. Citation Nos. 3132750 and 3135815 are affirmed as 

issued. 

4. Respondent is ordered to pay the sum oE $140 within 

30 days of the date of this decision and order. 

ure.r 

ative Law Judge 

Distribution: 

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

Solicitor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203 

CCertif ied Mail} 

S.M. Hood, Owner, Appalachian Builders, Inc., ?.O. Box 4083, 

Huntington, WV 25729 {Certified Mail> 

/ml 

2523 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 111989 

SECRETARY OF LABOR, CIVI~ PENALTY PROCEEDINGS 

Docket No. PENN 89-108 

A.C. No. 36-00929-03650 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

TUNNELTON MINING COMPANY, 

Respondent . . 

Docket No. PENN 89-109 

A.C. No. 36-00929-03652 

Appearances: 

Before: 

Docket No. PENN 89-131 

A.C. No. 36-00929-03654 

Marion Mine 

DECISIONS 

Mark V. Swirsky, Esq., Office of the Solicitor, 

U.S. Department of labor, Philadelphia, 

Pennsylvania, for the Petitioner; , Joseph A. Yuhas, Esq., Tunnelton Mining Company, 

Ebensburg, Pennsylvania, for the Respondent. 

Judge Koutras 

statement of the Proceedings 

These proceedings concern proposals for assessment of civil 

penalties filed by the petitioner against the respondent pursuant 

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

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

seven alleged violations of certain mandatory safety standards 

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

respondent filed timely answers denying the violations, and the 

cases were heard in Indiana, Pennsylvania, with several other 

docketed cases during the hearing term October 31, and 

November 1, 1989. 

Issues 

The is.sues presented in these proceedings are ( 1) whether 

the conditions or practices cited by the inspector constitute 

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

appropriate civil penalties to be assessed for the violations, 

2524 
taking into account the statutory civil penalty criteria found in 

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

"significant and substantial." 

Applicable Statutory and Regulatory Provisions 

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

30 u.s.c. § 301, et seq. 

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

Stipulations 

The parties presented stipulations in Docket No. 

PENN 89-109, and they agreed that these stipulations were equally 

applicable to all of the cases. The matters stipulated to are as 

follows: 

1. Tunnelton Mining Company is a subsidiary of 

Pennsylvania Mines Corporation. 

2. Tunnelton Mining Company is subject to the 

jurisdiction of the Federal Mine Safety and Health Act 

of 1977. 

3. The Administrative Law Judge has jurisdiction 

in these proceedings. 

4. The subject citations were properly served by 

a duly authorized representative of the Secretary of 

Labor upon an agent of the respondent at the dates, 

times, and places stated therein, and may be admitted 

into evidence for the purpose of establishing their 

issuance, and not for the truthfulness or relevancy of 

any statements asserted therein. 

5. The respondent demonstrated good faith in the 

abatement of the citations. 

6. The assessment of civil penalties in these 

proceedings will not affect respondent's ability to 

continue in business. 

7. The appropriateness of the penalties, if any, 

to the size of the respondent's business should be 

based on the fact that: 

a. The Pennsylvania Mines Corporation 

annual production tonnage is 1,435,690; 

2525 
b. The Tunnelton Mining Company's 

annual production tonnage is 733,668. 

8. The respondent Tunnelton Mining Company was 

assessed 294 violations over 539 inspection days during 

the 24 months preceding the issuance of the subject 

citations. 

9. The parties stipulate to the authenticity of 

their exhibits, but not to their relevance, nor to the 

truth of the matters asserted therein. 

Discussion 

All of the contested citations in issue in these proceedings 

are section 104(a) citations, with "S&S" findings. During opening statements at the hearings, the parties confirmed that they 

agreed to settle all of the violations, and they presented arguments on the record in support of their proposed settlement 

disposition of the cases, including arguments in support of the 

civil penalty reductions for three of the citations. The respondent agreed to make full payment of the proposed civil penalty 

assessments for the remaining four citations. 

With regard to Citation No. 2888721 (Docket No. PENN 

89-109), the parties agreed that an injury was unlikely, and 

petitioner's counsel agreed to modify the gravity.finding to 

non~s&s. In Docket No. PENN 89-108, the parties agreed that the 

cited battery charger in question was enclosed in a designated 

battery charging station, thereby reducing the likelihood of any 

hazard (Citation No. 2888733). With regard to Citation 

No. 2888734, concerning an inoperable warning device, the parties 

agreed that the cited machine was an inherently loud and slowmoving vehicle, thereby mitigating any potential hazard that it 

could not be heard or seen. In both instances, the inspector 

made "low negligence" findings, and the citations were abated 

within 10 and 25 minutes (Tr. 5-15). 

Findings and Conclusions 

After careful consideration of the pleadings and arguments 

made by the parties in support of the proposed settlement of the 

violations in question, including a review of all of the conditions and practices cited, and the civil penalty criteria found 

in section llO(i) of the Act, the proposed settlement dispositions were approved from the bench, and my decisions in this 

regard are herein reaffirmed. The violations, proposed c1vil 

penalty assessments, and the settlement amounts are as follows: 

2526 
Docket No. PENN 89-108 

Citation No. Date 30 C.F.R. Section Assessment Settlement 

2888733 01/04/89 75.1107-l(a) (3) (ii) $ 91 $ 68 

2888734 01/06/89 75.1403 $ 74 $ 54 

Docket No. PENN 89-109 

Citation No. Date 30 C.F.R. section Assessment Settlement 

2888866 12/06/88 75.523-2(c) $ 98 $ 98 

2888721 12/06/88 75.400 .$ 74 $ 37 

Docket No. PENN 89-131 

Citation No. Date 30 C.F.R. section Assessment Settlement 

2884557 02/08/89 75.202(a) $ 85 $ 85 

2884558 02/09/89 75.202(a) $ 85 $ 85 

2884559 02/09/89 75.202(a) $112 $112 

ORDER 

Respondent IS ORDERED to pay civil penalties in the settlement amounts shown above in satisfaction of the citations in 

question within thirty (30) days of the date of these decisions 

and order, and upon receipt of payment by the petitioner, these 

proceedings are dismissed. 

/// ~It:(~ /.2!;%1,. t,uf!:s ~ ~a~inistrative Law Judge 

Distribution: 

James E. Culp, Esq., and Mark V. Swirsky, Esq., Office of the 

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

3535 Market street, Philadelphia, PA 19104 (Certified Mail) 

Joseph A. Yuhas, Esq., Tunnelton Mining Company, P.O. Box 367, 

Ebensburg, PA 15931 (Certified Mail) 

/fb 

2527 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 111989 

SECRETARY OF LABOR, . . CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

O'NEAL MACHINE & REPAIR, 

Respondent 

. 

. 

INC.,: 

. 

. 

Docket No. WEVA 89-150 

A.C. No. 46-05976-03501 BCD 

Lobby No. 4 Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Melick 

This case is before me upon a petition for assessment of 

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

and Health Act of 1977 (the Act). Petitioner has filed a 

motion to approve a settlement agreement and to dismiss the 

case. A reduction in penalty from $5,300 to $2,600 is 

proposed. I have considered the representations and 

documentation submitted in this case, and I conclude that the 

proffered settlement is appropriate under the criteria set 

forth in Section llOCi) of the Act. 

WHEREFORE, the motion for approval of settlement is 

GRANTED, and it is ORDERED that Respondent .pay/a penalty of 

$2,600 within 30 days of thi·~ o der. 

l I I 

! / If.I /_ ,~ \_ \ ( ( 

/

. !,~,-\_ ar . : Meiick '----

"jAdmxnistrati ve ~aw-Judge 

l r I ': ! Distribution: ; i 

Page H. Jackson, Off ice of the ·solicitor, U.S. Department of 

Labor, 4015 Wilsonn Boulevard, Room 516, Arlington, VA 22203 

(Certified Mail) 

Mr. Winston R. O'Neal, O'Neal Machine & Repair, Inc., P.O. 

Box 641, Fayetteville, WV 25840 (Certified Mail) 

nt 

2528 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

WINSTON MADDEN, 

v. 

RONALD SUMMERS 

Before: Judge 

OFFICE 'OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OEC 141989 

DISCRIMINATION PROCEED~NG 

Complainant . . Docket No. KENT 89-62-D 

AND SUMCO, . . BARB CD 88-46 

Respondents 

SUPPLEMENTAL DECISION AND ORDER 

Maurer 

On October 18, 1989, I issued a default decision in this 

case. 11 FMSHRC 2027 Cl989) CALJ). Therein, I ordered the 

complainant to file a statement within twenty days requesting 

specific relief. The complainant did so on November 9, 1989, and 

no objection has been heard from the respondent. 

Accordingly, respondents are ORDERED: 

1. To pay to Complainant Madden within 30 days of the date 

of this order the sum of $9590.40, representing back wages from 

June 14, 1988, to December 10, 1988, plus $624.71 for 

reimbursible expenses for a total of $10,215.11, with interest 

thereon computed in accordance with the Commission decision in 

UMWA v. Clinchfield Coal Co., 10 FMSHRC 1493 (1988). 

2. To pay to Complainant Madden within 30 days of the date 

of this order, $4212.50 as reimbursement for attorney fees. 

3. To pay to Complainant Madden within 30 days of the date 

of this order $75.24 as reimbursement for costs. 

This order supplements the default decision issued by 

myself on October 18, 1989, and with that decision represents my 

final decision and order in this proceeding. 

2529 
Distribution: 

Tony Oppegard, Esq., Appalachian Research & Defense Fund of 

Kentucky, Inc., P.O. Box 360, Hazard, KY 41701 (Certified Mail) 

Rodney E. Buttermore, Esq., Forester, Buttermore, Turner & 

Lawson, P.O. Box 935, Harlan, KY 40831 (Certified Mail) 

/ml 

2530 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA}, 

Petitioner 

v. 

MEDUSA CEMENT COMPANY-DIV/ 

MEDUSA CORPORATION, 

Respondent 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. SE 89-109-M 

A.C. No. 09-00053-05522 

Clinchf ield Mine 

Appearances: Michael T. Hagan, Esq., Office of the Solicitor, 

U.S. Department of Labor, Atlanta, Georgia, for the 

Petitioner; 

Tom W. Daniel, Esq., Hulbert, Daniel & Lawson, 

Perry, Georgia, for the Respondent. 

Before: Judge Maurer 

This proceeding concerns a proposal for assessment of civil 

penalty filed by the petitioner against the respondent pursuant 

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

1977, 30 u.s.c. § 820(a), seeking a civil penalty assessment of 

$126 for an alleged violation of the mandatory safety standard 

found at 30 C.F.R. § 56.142ll(d). 

Pursuant to notice, a hearing was held in Macon, Georgia on 

September 26, 1989, and post-hearing briefs with proposed 

findings have been filed by both parties, which I have considered 

along with the entire record in making this decision. 

STIPULATIONS 

The parties stipulated to the following, which I accepted at 

the hearing: 

1. Medusa Corporation is the owner and operator of the 

subject mine, and subject to the Federal Mine Safety & Health Act 

of 1977; 30 u.s.c. §§801, et seq. 

2. The Federal Mine Safety and Health Review Commission has 

jurisdiction in this case. 

2531 
3. The inspector who issued the subject citation was a duly 

authorized representative of the Secretary and a true and correct 

copy of the subject citation was properly served on respondent. 

4. Imposition of a penalty will not affect the operator's 

ability to continue in business. 

5. The alleged violations were abated in good faith. 

6. The operator's history of prior violations, as shown 

on the computer printout (Secretary's Exhibit 1) is correct; and 

the operator's size is large. 

7. If a violation of the standard exists as cited, the 

proposed penalty of $126 is a reasonable penalty. 

8. The Lorain mobile crane had a "mechanical pawl locking 

device" in good working order and hydraulic check valves in place 

on both hydraulic lifting cylinders at the time of the 

inspection. 

DISCUSSION AND FINDINGS 

Pursuant to a telephone safety complaint, MSHA Inspector 

Grabner conducted an inspection of the respondent's facility on 

February 15, 1989, and as a result issued three citations, only 

one of which is contested herein. 

Citation No. 2857907, issued on February 15, 1989, alleges 

a::i follows: 

The Lorain Mobile Crane Model No. LRT-40 U, Serial 

No. 36706 was being used to raise, and lower men in a 

work platform which was attached to swivel hook ~oad 

wire rope. No provision was provided to prevent free 

and uncontrolled descent of the work platform. 

The citation charges a violation of 30 C.F.R. § 56.14211Cd) 

which provides: 

Under this section, a raised component of mobile 

equipment is considered to be blocked or mechanically 

secured if provided with a functional load-locking 

device or a device which prevents free and uncontrolled descent. 

The inspector determined that there were adequate 

functional load-locking devices on the crane, but not on the 

work platform itself. He testified that there were no 

devices to prevent free and uncontrolled descent of the work 

2532 
platform in certain foreseeable situations. He opined that 

the wire rope could snap if it were inadvertently drawn up 

to the top of the crane's extendable boom, in which event 

the ball and hook attached to the end of the wire rope would 

run into the shieve wheel on the end of the boom, and likely 

separate. 

If that occurred, the work platform and everybody on it 

would plummet to earth. There would obviously be serious 

injuries likely to result if the work platform was more than 

15-20 feet above ground level when and if this occurred. 

As a matter of fact, a scenario very much like this did 

occur on February 10, 1989, when two of the respondent's 

employees were working approximately thirty feet up in the air 

with the work platform attached to the crane by the wire rope 

and swivel hook, in the pre-abatement configuration. 

The two employees testified at the hearing. They related a 

harrowing tale that the crane's extendable boom started to go out 

on its own, apparently uncontrollable by the operator. They went 

£rom about 30 feet above the ground to approximately 60 feet up 

in the air before the boom stopped. Most importantly, as the 

boom extends out, the wire rope shortens up relative to the end 

of the boom. By the time they stopped, the ball and hook 

arrangement on the end of the wire rope was only a couple feet 

away from the end of the boom and the shieve wheel located there. 

Mr. Hair opined that the wire rope supporting the work platform 

would have snapped if the ball and hook had dead-headed against 

the shieve. Of course, had this happened the two employees would 

ha,1e fallen some sixty feet to the ground. 

The work platform is the raised component of mobile 

equipment spoken to in the cited regulation, the crane being the 

mobile equipment. The work platform itself must be provided with 

a functional load-locking device or a device to prevent free and 

uncontrolled descent to comply with the standard. It was not, 

and therefore a violation exists. Furthermore, I find that it is 

a "3ignificant and substantial" violation. Mathies Coal Co., 

6 FMSHRC 1, 3, 4 (January 1984) 

Based on the entire record, I further conclude that the 

violation was serious and was caused by a moderate degree of 

negligence. Additionally, under the criteria in section llO(i) 

of the Act, I find an appropriate penalty for the violation is 

$126, as originally proposed. 

2533 
ORDER 

Accordingly, it is ORDERED that Citation No. 2857907 IS 

AFFIRMED. 

It is further ORDERED that the operator pay $126 within 

30 days from the date of this decision as a civil penalty for the 

violation found herein. 

Distribution: 

Michael K. Hagan, Esq., U.S. Department of Labor, Office of the 

Solicitor, Room 339, 1371 Peachtree Street, N.E., Atlanta, GA 

30367 (Certified Mail) 

Tom W. Daniel, Esq., Hulbert, Daniel & Lawson, 912 Main Street, 

P.O. Box 89, Perry, GA 31069-0089 (Certified Mail) 

/ml 

2534 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lath FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 18 1989 

ROCHESTER & PITTSBURGH COAL 

COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ROCHESTER & PITTSBURGH COAL 

COMPANY, 

Respondent 

. . 

. . 

. . 

. . 

. . 

. . 

DECISION 

CONTEST PROCEEDING 

Docket No. PENN 89-64-R 

Order No. 2890946; 12/22/88 

Docket No PENN 89-78-R 

Order No. 2890947; 12/22/88 

Greenwich Collieries #2 Mine 

Mine ID 36-02404 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 89-132 

A. C. No. 36-02404-03749 

Greenwich Collieries #2 Mine 

Appearances: Paul Inglesby, Esq., Office of the Solicitor, U. s. 

Department of Labor, Philadelphia, Pennsylvania, 

for the Secretary; 

Joseph Yuhas, Esq., Rochester & Pittsburgh Coal 

Company, Ebensburg, Pennsylvania, for the 

Respondent. 

Before: Judge Weisberger 

Statement of the Case 

In these consolidated cases the Secretary (Petitioner) seeks 

civil penalties for alleged violations by the Operator 

(Respondent) of 30 C.F.R. §§ 75.1722(c) and 75.303(a). The 

Respondent has contested the issuance of Order Nos. 2890946 and 

2890947, and has filed an Answer, on May 5, 1989, with regard to 

the Petition for Assessment of Civil Penalty, which had been 

filed on April 27, 1989. Pursuant to notice, a hearing in this 

matter was held in Ebensburg, Pennsylvania, on September 26, 1989. 

At the hearing, Vincent James Jardina, Jr. testified for 

Petitioner, and Robert John Elick, William Loughran, and Michael 

S. Skarbek testified for Respondent. Proposed Findings of Fact 

and Briefs were filed by the Respondent and Petitioner on 

November 14 and 21, 1989, respectively. 

2535 
Stipulations 

At the hearing, the Parties indicated that the facts that 

they stipulated to, as set forth in Respondent's Response to the 

Prehearing Order filed June 7, 1989, are as follows: 

1. Greenwich Collieries is owned by Pennsylvania Mines 

Corporation and managed by Respondent, Rochester and 

Pittsburgh Coal Company. 

2. Greenwich Collieries is subject to the jurisdiction 

of the Federal Mine Safety and Health Act of 1977. 

3. The Administrative Law Judge ha~ jurisdiction over 

these proceedings. 

4. The subject Orders were properly served by a duly 

authorized representative of the Secretary of Labor 

upon an agent of the Respondent at the dates, times and 

places stated therein, and may be admitted into 

evidence for the purpose of establishing their issuance, and not for the truthfulness or relevancy of any 

statements asserted therein. 

5. The Respondent demonstrated good faith iri the 

abatement of the Orders. 

6. The assessment of a civil penalty in this proceeding will not affect Respondent's ability to 

continae in business. 

7. The appropriateness of the penalty, if any, to the 

size of the coal operator's business should be based 

on the facts that: 

a. The Respondent company's annual production 

tonnage i3 9,386,168: 

b. And that the Greenwich Collieries No. 2 

Mine's annual production tonnage is 1,411,039. 

8. Greenwich No. 2 Mina waa assessed 914 violations 

over 1,250 inspection days during the 24 months preceding the issuance of the subject Order. 

2536 
9. The Parties stipulate to the authenticity of their 

exhibits, but not to their relevance, ~or to the truth 

of the matters asserted therein. 

Findings of Fact and Discussion 

Order No. 2890946 

I. 

On December 22, 1988, at approximately 8:30 in the morning, 

Vincent James Jardina, Jr., inspected Respondent's M-16 Section. 

He observed that the guarding for the No. 1 belt entry tail consisted of two pieces of mesh metal screen. The left side was 

standing "partially upright," but was bent and twisted a "little 

bit" (Tr. 17), and the right side was "smashed and flattened 

down almost to ground level" (Tr. 18). He indicated that with 

the use of a ruler, the distance between the guard and the pulley 

was measured at 11 to 18 inches, and the two pieces of the guard 

were "approximately" 15 inches apart CTr. 19). William Laughran, 

a beltman employed by Respondent, testified that when Jardina 

wrote the Order in question, he CLaughran) was present and stood 

2 to 3 feet or less from the guarding. He indicated that the 

left side did not have any damage, and the right side was just 

bent down. He did not take any measurements, but testified that 

the guarding was from 4 to 6 inches away from the tail, and the 

two pieces of the guarding were 2 to 4 inches apart. I place 

more weight on Jardina's testimony d11e to my observations of his 

demeanor, and also based upon the fact that his testimony finds 

corroboration in his detailed contemporaneous notes. Also, I 

find his testimony as to the measurement of various distances 

involved to be reliable, as he used a ruler in making the original measurements. 

According to Jardina, the end of the guarding, where it 

contacted the tail, was leaning in an upright position, but none 

of the guarding was secure in any way. This testimony has not 

been rebutted by ahy of Respondent's witnesses or by any docu1nentary evidence. .Accordingly I find, that the guarding in 

question was not secured in place. Hence, I find that Respondent 

herein violated 30 C.F.R. § 75.1722(c), as cited by Jardina, 

which provides, as pertinent, that " ••. guards shall be 

securely in place while machinery is being operated." 

II. 

According to Jardina, he observed a miner ~alking acro~s the ~o. 1 belt entry, and going in the direction of the No. 2 belt 

head. He indicated that this would be the shortest route between 

those two areas. He also observed two shovels in the area, one 

2537 
being approximately 2 feet to the left of the tail. Two beltmen 

were in the area, and had the responsibility of cleaning the belt 

at least once a shift. According to Jardina, depending upon the 

amount of coal accumulation, shoveling to clean the belt could 

take up to an hour, and cause the miner shoveling the coal to get 

up to within a foot of the belt. Further, according to Jardina, 

a miner greasing the belt would be in proximity to the tail and 

the exposed fin portion. In this connection, he indicated that 

he did not observe any extension to the grease hose. I find more 

credible the testimony of Loughran, who actually performed the 

greasing. Loughran indicated that the hose to be greased 

extended out a foot, and that the bearings were guarded. 

Jardina indicated that it would be easy to lean on the 

guarding and make contact with the moving tail conveyor, as there 

was nothing securing the guarding. He opined that due to the 

fact that the guard was not secured, and the area was "very wet 

and slippery" (Tr. 22), it was "very likely" (Tr. 23) that those 

working in the area could make contact with the belt conveyor 

tail.l/ He subsequently testified that, if the tail is not 

adequately guarded, contact with the tail conveyor is "reasonably 

likely" (Tr. 29), "by passing by, slipping, shoveling, the pulley 

being able to pull their shovel in and their arm, there could be 

a loss of a hand or even an arm, it could even pull them into the 

pulley" (Tr. 29). He was asked, on cross-examination, how a hand 

or arm could get caught in the belt. He answered-as follows: 

"In that situation, cleaning the belt which I've shown on --- as 

I said, on the side view. But let's look at another situation 

where hazard exists also" (Tr. 82) (sic). 

He also testified that in cleaning the side part of the 

pulley, contact can be 1nade with "the moving fin part of the 

pulley" (Tr.73). However, this item was not described by 

Jardina, nor did he testify as to its dimensions and specific 

location. He also indicated that a shovel could be pulled in the 

direction of the belt, but did not testify as to the speed of the 

belt, nor as to the likelihood and nature of any injuries as a 

consequence of this occurrence. 

Jardina testified that he evaluated the violation as signif icant and substantial, because there was ~ violation of a mandatory 

safety standard and " •.. the conditions that prevailed at the 

time were evident that a serious injury could occur, . and the 

Eact also that the belt was in operation at the time and the condition of the guarding" {Tr. 35) (3ic). 

1/ Although Jardina used the term "moving machine part3," 

TTr. 23), he subsequently indicated that this term is meant to be 

"the No. 1 belt conveyor tail" CTr. 34). Accordingly, I find 

that, as used by Jardina, t~ese terms are synonymous. 

2538 
In order for it to be found that the violation herein was 

significant and substantial, it must be established, in addition 

to an existence of a violation of a mandatory safety standard, 

that there was ". • . (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." 

(Mathies Coal Co., 6 FMSHRC 1, at 3-4 (1984)). 

I do not place much weight on Jardina's testimony, as it 

does not set forth in sufficient detail the basis for his 

opinions and conclusions. Specifically, I find that Petitioner 

has failed to establish that there was a reasonable likelihood 

that, as a consequence of the violation herein, there was a 

hazard contributed to, with a reasonable likelihood of a 

resulting injury of a reasonably serious nature. Accordingly, I 

find that it has not been established that violation herein was 

.3ignif icant and substantial. (See, Mathies Coal Company, supra.) 

III. 

The record is devoid of any evidence establishing, with any 

degree of specificity, the length of time the violation herein 

existed. According to Jardina, at about 8:30 a.m. on the morning 

of December 22, when he informed two beltmen who were in the 

area, that the guarding was not securely in place, one of them 

said, " .•• that wasn't like that yesterday" (Tr. 17). Robert 

John Elick, a supervisor for Respondent, indicated that he worked 

the 4:00 p.m. to midnight shift on December 21, 1988, and in the 

course of his duties examined the M-16 tail between 9:30 and 

9:40 p.m., and that "to the best of my knowledge" the guarding 

was in place (Tr. 113). He also indicated that "to my knowledge," no work was performed at the tail after he made his 

examination (Tr. 114). He indicated, however, that on that 

shift, two mechanics had dragged a cable out of the section, and 

in so doing could possibly have hit the guarding with the cable. 

In this connection, Jardina indicated that he noted the area near 

the tail was "worn from crawling and dragging feet or equipment •.• " CTr. 28}.Loughran, who was on the section at 

appro~imately 7:15 a.m., did not see the guarding until Jardina 

cited the condition. 

According to Jardina, when he observed the guarding, the 

belt was in operation, and no corrective action had been taken to 

secure it. He indicated that records he examined prior to going 

unJ.erg.round.on December 22, 1988, indicated that a preshift 

exa.rnination of the M-16 belt tail track had been performed, and 

2539 
it was noted that there were no hazardous or unsafe conditions. 

According to Jardina, the No. 1 belt entry tail was exposed, and 

was seen by him from a man trip as he approached the area.~/ 

Michael s. Skarbek testified that on December 22, 1988, 

between 5:00 and 6:15 a.m., he performed a preshift examination 

of the M-16 Section, including the belt entries. He said that he 

got off the man trip at the tail area, checked the head area, but 

did not specifically remember the guarding, and did not specifi- cally remember looking at it. On cross-examination, he indicated 

that on a preshift examination he always checks the guarding, and 

does not recall it being down. He said that on the second shift, 

a cable had been pulled out of the section. He opined that it 

was possible that the cable could have caught the guarding and 

bent it. lie indicated that when the belt started at the commencement of the third shift, it could have further caught the 

guarding. 

I find, based upon Jardina's testimony, that the unsecured 

condition of the guarding was exposed. However, since the 

evidence goes not establish the guarding in question was· not 

secured at the time of the preshift examination, I can not find 

that Respondent was negligent in this regard to any significant 

degree. In the same fashion, as the record does not clearly 

establish when the violation herein occurred, and how long it had 

been in the condition observed by Jardina, I do not find that the 

violation herein was as the result of Respondent's "aggravated 

conduct." As such, I find it was not been established that the 

violation herein was as the result of Respondent's unwarrantable 

failure. (See, Emery Mining Co., 9 FMSHRC 1997 (1987)). 

I find that, should a person come in contact with the moving 

belt, as a consequence of the guarding herein not having been 

secure, there could have been a serious injury. I further find, 

that Respondent was negligent to a nonsignificant degree 

concerning the violation herein. I have also taken into account 

the remaining statutory factors set forth in section llO(i) of 

the Act, as stipulated to by the Parties. Considering all of the 

above, I conclude that a penalty herein of $100 is appropriate 

for the violation found herein. 

2/ In contrast, Loughran indicated that at 7:30 a.m., on 

December 22, 1988, he passed the area in question in an open 1nan 

trip, and did not notice tha guarding. He said that it i$ not 

possible to see the tail piece fcom the man trip. Based on 

observation' of the witnesses' demeanor, I accept Jardina's 

testimony that when he tcaveled on the man trip, he was able to 

aee the area in question. 

2540 
Order No. 2890942 

Jardina indicated that he also issued Order No. 2890942 

alleging a violation of 30 C.F.R. § 75.303(a), in that the 

Operator failed to discover and correct the hazardous condition 

at the tail, i.e., the fact that the guard was not secure. 

According tQ Skarbek, he did perform an inspection of the 

working section of M-16 3 hours prioI to commencement of the 

second shift, but does not recall looking at the guarding. He 

also indicated that he did not specifically recall the guarding 

being apart oc down. No indication was made in the examination 

book that any hazardous or unsafe conditions were discovered at 

the preshift examination. 

Jardina testified that the data board, which indicated that 

an examination had been conducted in the belt tail area, was 

approximately 10 feet from the defective guard, and that the 

No. 1 tail was not hidden or concealed. Jardina conducted his 

inspection of this area at appro~imatcly 8:26 a.m., on 

December 22, 1988, less than 2 and 1/2 hours after Skarbek had 

been in the area. It was Jardina's opinion that it would have 

been impossible to miss the condition of the defective guard 

because it was neither concealed nor hidden, was in plain view, 

and could be seen from either a moving man trip or by walking up 

the track. 

In essence, section 75.303(a), supra, requires a mine 

examiner to notify the Operator if he " •.• finds a condition 

which constitutes a violation of a mandatory health or safety 

standard or any condition which is hazardous to persons who may 

enter or be in such an area •••• " (emphasis added). Thus, 

in order for Petitioner to prevail, and establish a violation of 

section 75.303(a), supra, Petitioner must establish, by a preponderance of the evidence, that there was a hazardous condition 

that should have been noted. I conclude, for the reasons set 

forth, infra, II., that the record does not contain sufficient 

evidence to establish the length of time the violative condition e~isted. I thus conclude that Petitioner has failed to establish 

that, at the time of Skarbek's preshift examination, the guarding 

was not secured and was in the condition observed subsequently by 

Jardina. I therefor find that it has not been established that 

Respondent violated section 75.303(a), supra. 

ORDER 

It is ORDERED that Order No. 2890947 be DISMISSED. It is 

further ORDERBD that Order No. 2980946 ba AMENDED to a 

section 104(a} Citation to reflect the fact that the violation 

was not the result of Respondent's unwarrantable failure, and it 

2541 
shall further be AMENDED to reflect the fact that the violation 

therein was not significant and substantial. It is further 

ORDERED that, within 30 days of this Decision, Respondent shall 

pay $100 as civil penalty for the violation found herein. 

~isberger ff . ~ . . Administrative Law Judge 

Distribution: 

Joseph A. Yuhas, Esq., Rochester & Pittsburgh Coal Company, 

P. O. Box 367, Ebensburg, PA 15931 (Certified Mail) 

Paul Inglesby, Esq., Office of the Solicitor, U. s. Department of 

Labor, Room 14480-Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 CCertif ied Mail) 

dcp 

2542 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

ROBERT SIMPSON, : DISCRIMINATION PROCEEDING 

Complainant 

. v. 

KENTA ENERGY, INC. 

and 

ROY DAN JACKSON, 

Respondents 

. . 

. 

. 

Docket No. KENT 83-155-D 

PARTIAL DECISION ON REMAND 

ORDER PERMITTING DISCOVERY 

Before: Judge Broderick 

On September 29, 1989, the Commission remanded this case to 

me "for resolution of whether the attorney's fees being sought 

for administrative and court appeal proceedings are properly 

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

findings of fact relevant to determination of the amount to be 

awarded." The Commission further found "it appropriate also to 

determine at this time the amount of additional back pay due 

since December 17, 1984, with the amount of interest due thereon, 

calculated according to the procedures set forth at 54 Fed. Reg. 

2226 C January 19, 19 89)." 

I interpret these instructions to mean that I should 

determine the amount of attorney's fees to be awarded if I 

conclude that they are "properly awardable," and that I should 

determine the additional back pay and interest due Complainant at 

this time. 

On October 6, 1989, I issued an order directing Complainant 

to submit on or before November 13, 1989 (1) d legal memorandum 

on the question whether attorney fees for administrative and 

court appeal proceedings are properly awardable under the Mine 

Act; (2) a statement of attorneys fees claimed after December 17, 

1984; and (3) a statement of back pay due Complainant since 

December 17, 19 84, '~i th interest calculated according to the 

procedures set forth in 54 Fed. Reg. 2226 (January 19, 1989). 

Respondent was ordered to reply to Complainant's submissions on 

or before December 1, 1989. 

On November 16, 1989, Complainant filed a memocandum on the 

legal issue presented, a statement of attorney fees and expenses 

. 2543 
for work performed from December 18, 1984 through November 15, 

1989, and a motion for leave to take discovery on the question of 

the amount of back pay due Complainant since December 17, 1984. 

On December 4, 1989, counsel for· Roy Dan Jackson replied that my 

order had been forwarded to Mr. Jackson requesting "his 

instruction regarding his position on this issue." Jackson did 

not reply and counsel states that he "is unable to state 

Mr. Jackson's position." 

I. THE ACT 

Section 105(c)(3) of the Mine Act provides in part: 

Whenever an order is issued sustaining the 

complainant's charges under this subsection, a sum 

equal to the aggregate amount of all costs and expenses 

(including attorney's fees) as determined by the 

Commission to have been reasonably incurred by the 

miner, for, or in connection with, the institution and 

prosecution of such proceedings shall be assessed 

against the person committing such violation. 

The legislative history of this provision makes it clear 

that it was intended to make the Complainant whole, to put him in 

the position, as nearly as possible, which he would have been in 

had the discriminatory action not have occurred. See S.Rep. No. 

95-181 at 37 (1977), reprinted in Legislative History of the 

Federal Mine Safety and Health Act of 1977, at 625 (1978). 

The language of the Act, supported by the Legislative 

history plainly requires the reimbursement of attorney fees 

reasonably incurred in appellate proceedings where such 

proceedings are necessary to "sustain Complainant's charges." 

II. SOME CASES 

Although not specifically included in the remand 

instructions, the question may be raised as to whether the trial 

judge is the proper tribunal to determine and award attorney fees 

for appellate proceedings. It can reasonably be argued that the 

appellate tribunal, Commission or Court, is in better position 

to determine whether services for which a fee is claimed are 

necessary, and the worth of those services. For example, in my 

award of fees following the trial of this case, I made a judgment 

concerning the necessity for two attorneys being employed to 

perform certain services. The claim for fees on appeal includes 

a claim for the services of two attorneys. I have no way, absent 

a full scale hearing, and probably not then since Respondent has 

not replied to the claim, to determine the necessity and 

propriety of two attorneys being utilized on appeal. In Craik v. 

2544 
Minnesota State University Board, 738 F.2d 348 (8th Cir. 1984), 

the 8th Circuit Court of Appeals said, "Normally we decide the 

question of fees and costs on appeal ourselves. We are naturally 

more familiar than the District Court with the nature and quality 

of the services rendered on appeal; the case is relatively fresh 

on our minds; and our decision on the question can furnish guides 

for the District Court to follow when it decides the amount of 

fees and costs for services rendered before it." Id., at 348. 

This holding was based in part on an 8th Circuit Court Rule 

providing that the Court of appeals may either determine for 

itself an appropriate attorney fee award for appellate services 

or remand to the District Court for such a determination. There 

is no such court rule in the Court of Appeals for the District of 

Columbia Circuit. 

In a private action under section 4 of the Clayton Act, the 

Supreme Court held that the Act authorized an award of counsel 

fees for legal services performed at the appellate level and that 

"the amount of the award for such services should, as a general 

rule, be fixed in the first instance by the District Court, after 

hearing evidence as to the extent and nature of the services 

rendered." Perkins v. Standard Oil Co. of California, 399 U.S. 

222, 223 (1970). In Hutto v. Finney, 437 U.S. 678 (1978), the 

Supreme Court affirmed a. Court of Appeals decision which 

affirmed a District Court's finding that the conditions in a 

State prison system constituted cruel and unusual punishment in 

violation of the 8th and 14th Amendments. The District Court 

issued remedial orders including an award of attorney's fees. 

The Court of App~als affirmed and itself assessed an additional 

attorney fee for services on appeal. 

In Northcross v. Board of Education, 611 F.2d 624 (6th Cir. 

1979), the Court of Appeals remanded the case to the District 

Court for redetermination of an attorney fee award and for 

determination of a reasonable fee for time spent "pursuing this 

appeal." See also Kingsville Independent School District v. 

Cooper, 611 F.2d 1109 (5th Cir. 1980). In Toussaint v. McCarthy, 

826 F.2d 901 (9th Cir. 1981), and Yates v. Mobile County 

Personnel Board, 719 F.2d 1530 (11th Cir. 1983), the Court of 

Appeals determined the attorney fee for legal services on appeal. 

Finally, the marathon proceeding of Glenn Munsey v. Smitty 

Baker, et al., may provide a clue as to the law of the Commission 

and the District of Columbia circuit on this issue. The case 

arose under section llO(b) of the Coal Mine Health and saeety Act 

of 1969 and was originally heard in the Department of the 

Interior. Section 110Cb)(3) of the Coal Act provides that when 

an order is issued finding discrimination, "a sum equal to the 

aggregate amount of all costs and expenses (including the 

attorney's fees) ••. reasonably incurred by the applicant for, 

2545 
or in connection with the institution of such proceedings, shall 

be assessed ••• " This is almost identical to the language in 

section 105(c)(3) of the Mine Act. In 1978, the D.C. Circuit 

remanded the Munsey case to the Commission to determine what 

Munsey's remedy should be and who must provide it. Munsey v. 

FMSHRC, 595 F.2d 735 (D.C. Cir. 1978). The Commission remanded 

the case to the ALJ "for assessment of attorney's fees and other 

costs incurred by Munsey in this litigation." Munsey v. Smitty 

Baker, 2 FMSHRC 3463 (1980). The ALJ awarded back pay, attorney 

fees and legal expenses including fees and expenses in conection 

with proceedings before the Commission and the Court of Appeals 

but denied fees for services performed by Munsey's attorney while 

he was in the employ of Munsey's union as "inappropriate." 3 

FMSHRC 2056 (1981). The case returned to the D.C. Circuit which 

reversed the determination of the ALJ that Munsey could not be 

awarded costs or attorney fees for the period during which he 

received free representation by staff counsel of the United Mine 

Workers, but otherwise affirmed the ALJ. Munsey v. FMSHRC, 701 

F.2d 976 (D.C. Cir. 1983). The Commission later remanded the 

case to an ALJ for further proceedings consistent with the 

Court's decision. 5 FMSHRC 991 (1983). On remand the ALJ 

awarded further legal fees for services including services before 

the Commission and the Court of Appeals. Thus both the D.C. 

Court of Appeals and the Commission upheld the award made by the 

Administrative Law Judge of attorney fees for services on appeal 

to the Commission and from the Commission to the Court of Appeals. 

Based on the history of the Smitty Baker case and on the 

Commission's remand of this case to me, I conclude that I can 

properly determine and award attorney fees for legal services on 

appeal. 

III. FEES AND EXPENSES 

Complainant seeks an award of attorney fees for 403.2 hours 

during the period December 18, 1984 through November 15, 1989. 

The services are billed at an hourly rate of $125. I have no 

reason to question this rate as the market rate for the services 

performed, and Respondent has not objected to it. I note that I 

approved an hourly rate of $75 for the work performed prior to 

December 1984. An increase in the rate seems justified on the 

following bases: Cl) the attorneys are more experienced; (2) the 

work was more complex, involving appeal from an adverse 

Commission decision; and (3) inflation in attorney fees during 

the five year interim. Therefore, I find that $125 is an 

appropriate hourly rate for the services performed after 

December 17, 1984, and will approve it. 

I have carefully reviewed the statement filed by 

Complainant's attorneys, Tony Oppegard and Stephen A. Sanders. 

Oppegard claims fees for 316.l hours, Sanders for 87.1 hours. 

2546 
There is nothing on the face of the statements which would cause 

me to doubt the validity of the number of hours expended or the 

necessity or propriety of the work described. I am not in a 

position to conclude that there was need for both attorneys to 

participate in brief preparation, oral argument before the 

Commission, and oral argument before the Court of Appeals. But 

neither can I conclude that it was not necessary. The factual 

and legal isues were complex. The attorney's employment was 

contingent. The result was very favorable to Complainant. In 

the absence of any reply to Complainant's statement, I find that 

Complainant's attorneys reasonably expended 403.2 hours on this 

case between December 17, 1984 and November 15, 1989. 

Complainant claims $2,120.31 as other litigation expenses. 

The itemized expenses are reasonable and reimbursement is 

awarded. 

ORDER 

Respondents Kenta and Jackson are ORDERED to pay 

Complainant's attorneys the sum of $50,400, as attorney fees and 

$2,120.31 as litigation expenses. These amounts are in addition 

to the attorney fees and expenses which I ordered Respondents to 

pay in my decision issued February 26, 1985. 

IT IS FURTHER ORDERED that Complainant's Motion for Leave to 

Take Discovery on the issue of back pay due Complainant since 

December 17, 1984, is GRANTED. Following the discovery, 

Complainant shall file his claim for back pay on or before March 

19, 1990. Respondent shall file a reply to said claim on or 

before April 6, 1990. 

Distribution: 

'//.: ; <'. _)/·/ . . ' •/ / 

1 '"·d~me~ A. Broderick 

i 

Administrative Law Judge 

Tony Oppegard, Esq., Appalachian Research and Defense Fund of 

Kentucky, Inc., P.O. Box 360, Hazard, KY 41701 (Certified Mail) 

Stephen A. Sanders, Esq., Appalachian Research & Defense Fund of 

Kentucky, Inc., 205 Front Street, Prestonsburg, KY 41653 

(Certified Mail) 

Peter A. Greene, Esq., Thompson, Hine & Flory, 1920 N Street, 

N.W., Washington, D.C. 20036 (Certified Mail) 

slk 

2547 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

DEC ~O 1989 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ENERGY FUELS COAL, INC., 

Respondent 

DECISION 

Docket No. WEST 88-332 

A.C. No. 05-03455-03561 

Southfield Mine 

Appearances: Margaret A. Miller, Esq., Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, 

for Peti tioner1 

Phillip D. Barber, Esq., Welborn, Dufford, Brown 

and Tooley, Denver, Colorado, 

for Respondent. 

Before: Judge Lasher 

This proceeding was initiated by the filing of a petition 

for assessment of penalties by the Secretary of Labor pursuant 

to Section 110 of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. Section 820 (1977) (herein the Act). At the outset of 

the formal hearing on the record on November 28, 1989, counsel 

reached an amicable resolution of all 10 enforcement documents 

(Citations) involved. Pursuant to the agreement of the parties, 

Section 104(a), Citations numbered 2875361 and 2874012 are to 

be vacated on the basis of insufficient evidence to support the 

same. As to 3 of the Section 104Ca> Citations, numbered 2874013, 

2874015 and 2874032, the "significant and substantial" designations are to be deleted and the initially-proposed assessments 

($68, $74, and $74, respectively) are to be paid in full by 

Respondent. As to the remaining 5 enforcement documents, all 

likewise are Section 104(a) Citations which are to be affirmed 

without modification and the initially-proposed penalties therefor are to be paid in full by Respondent as follows: 

Citation 

2874014 

2874017 

2874020 

2874029 

2874030 

Penalty 

$98 

20 

98 

68 

68 

The settlement of the parties is found appropriate and 

supported in the record, the approval thereof from the bench 

CT. 8) is here affirmed, and the penalties (totalling $568) 

agreed to by the parties are here assessed. 

2548 
ORDER 

Citations numbered 2875361 and 2874012 are VACATED. 

Citations numbered 2874013, 2874015, and 2874032 are 

MODIFIED to delete the "Significant and Substantial" designations 

thereon, and are otherwise AFFIRMED. 

Citations numbered 2874014, 2874017, 2874020, 2874029 and 

2874030 are AFFIRMED. 

Respondent, if it has not previously done so, shall pay to 

the Secretary of Labor within 30 days from the date of this 

written decision the total penalties hereinabove assessed of 

$568. 

Distribution: 

~~~;~/ ~ ~4/ /!, 

Michael A. Lasher, Jr. 

Administrative Law Judge 

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

CO 80294 (Certified Mail) 

Phillip D. Barber, Esq., Welborn, Dufford, Brown and Tooley, 

1700 Broadway, Suite 1100, Denver, CO 80203 (Certified Mail) 

/ot 

2549 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

DEC 201989 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ENERGY FUELS COAL, INC., 

Respondent 

. . 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 89-28 

A.C. No. 05-03455-03562 

Southfield Mine 

Appearances: Margaret A. Miller, Esq., Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, 

for Petitioner; 

Phillip D. Barber, Esq., Welborn, Dufford, Brown 

and Tooley, Denver, Colorado, 

for Respondent. 

Before: Judge Lasher 

This proceeding was initiated by the filing of a petition 

for assessment of penalties by the Secretary of Labor pursuant 

to Section 110 of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. Section 820 (1977) (herein the Act). At the commencement of hearing a settlement was consummated and announced by 

the parties resolving all three enforcement documents involved. 

Pursuant to the agreement reached, Section 104Ca> Citation No. 

2873988 is to be modified to delete the "significant and substantial" designation on the face thereof and Respondent is 

to pay in full the initially-assessed penalty of $68; Section 

104(d)(l) Citation No. 2873989 is to be affirmed and Respondent 

is to pay in full the initially-assessed penalty of $700; and 

as to the third enforcement document, Section 104(d)(l) Order 

No. 2873990, such is to be modified to a Section 104(a) Citation 

and the penalty reduced from $800 to $400. The approval of the 

settlement from the bench CT. 5-6) is here affirmed, the settlement is found appropriate and supported in the record, and the 

penalties agreed to by the parties are here assessed. 

2550 
ORDER 

Citation No. 2873988 is modified to delete the "significant 

and substantial" designation thereon. 

Order No. 2873990 is modified to change its nature and 

issuance authority from a Section 104Cd)(l) Withdrawal Order 

to a Section 104(a) Citation. 

Respondent, if it has not previously done so, shall pay 

to the Secretary of Labor within 30 days from the date of this 

written decision the total penalties herein assessed of $1168. 

Distribution: 

,~4 /· /·~ / .. ~#~:/ o/,,· 7{?pp~C: /?- ~( /:! . Michael A. Lasher, Jr. 

Administrative Law Judge 

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

CO 80294 (Certified Mail) 

Phillip D. Barber, Esq., Welborn, Dufford, Brown and Tooley, 

1700 Broadway, Suite 1100, Denver, CO 80203 (Certified Mail) 

/ot 

2551 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

DAVID THOMAS, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 2 61989 

DISCRIMINATION PROCEEDING 

Complainant 

Docket No. KENT 89-13-D 

BARB CD 88-16 

AMPAK MINING, INC., 

JOHNSON COAL COMPANY, INC., 

SOUTHERN HILLS MINING CO., INC: 

Mine No. 1 

Respondents 

GEORGE ISSACS, DISCRIMINATION PROCEEDING 

Complainant 

Docket No. KENT 89-14-D 

v. : 

BARB CD 88-34 

AMPAK MIING, INC., 

JOHNSON COAL COMPANY, INC., 

SOUTHERN HILLS MINING CO., INC: 

Respondents : 

DECISION 

Mine No. 1 

Appearances: Tony Oppegard, Esq., and Stephen A. Sanders, Esq. 

Appalachian Research and Defense Fund of 

Kentucky, Inc., Hazard, Kentucky for the 

Complainants; 

Geary Burns, Vice President, Ampak Mining, Inc., 

Van Lear, Kentucky for Respondent Ampak Mining, Inc., 

G. Graham Martin, Esq., Martin Law Offices, P.S.C., 

Prestonsburg, Kentucky for Respondent Johnson Coal 

Company, Inc. 

Before: Judge Melick 

These cases are before me upon the Complaints of 

David Thomas and George Isaacs against Ampak Mining, Inc., 

(Ampak), Johnson Coal Company, Inc., (Johnson), and Southern 

Hills Mining Company, Inc., (Southern Hills), pursuant to 

Section 105(c)(3) of the Federal Mine Safety· and Health Act of 

1977, 30 U.S.C. § 801 et seq., the "Act," alleging separate acts 

2552 
of discrimination in violation of Section 105(c)(l) of the 

Act.!./ 

Mr. Thomas argues that Ainpak, ~iolated Section 105Cc)(l) of 

the Act by demoting him on December 21, 1987, in retaliation for 

his refusal to perform unsafe work and for his refusal to sign a 

training certificate for training he had not received. Thomas 

also alleges that had he not been discriminatorily demoted in 

December 1987 he would not have been laid off by Ampak on 

February 15, 1988, and that, therefore, his lay off likewise 

violated Section 105Cc)Cl) of the Act. 

Mr. Isaacs argues that he was laid off by Ampak on 

April 22, 1988, because of his many protected activities, 

including repeated safety complaints, refusal to perform unsafe 

work, and by giving deposition testimony in a separate 105Cc) 

discrimination proceeding involving Ampak. 

In their post-hearing briefs the Complainants withdrew 

their Complaints against Southern Hills on the grounds that it 

is purportedly no longer in business, has no assets and could 

not in any event provide any relief. Under the circumstances 

the Complaints in case Docket Nos. KENT 89-13-D and KENT 89-14-D 

against Southern Hills Mining Company, Inc., are dismissed. 

Complaint of David Thomas - KENT 89-13-D 

On October 17, 1987, Ampak assumed operations at the former 

Johnson Coal Company No. 11 mine, located in Knott County, 

I/ Section 105Cc)(l) of the Act provides as follows: 

No person shall discharge or in any manner discriminate against 

or cause to be discharged or cause discrimination against or 

otherwise interfere with the exercise of the statutory rights of 

any miner, representative of miners or applicant for employment 

in any coal or other mine subject to this Act because such 

miner, representative of miners or applicant for employment, has 

filed or made a complaint under or related to this Act, 

including a complaint notifying the operator or the operator's 

agent, or the representative of the miners at the coal or other 

mine of an alleged danger or safety or health violation in a 

coal or other mine or because such miner, representative of 

mine.r.:; or applicant for employment is the subject o.E medical 

evaluations and potential transfer under a standard published 

pursuant to section 101 or because such representative of miners 

or applicant for e1nployment has instituted or caused to be · instituted· any proceedings under or related to this ~ct or has testi~ied ~r is about to testify in any such proceeding, or ~ecause oE the e~ercise by such-miner, representative of miners 

or applicant for einployment on behalf of himself or others of ~ny ~tatutory right afforded by this ~ct. 

2553 
Kentucky, under contract with Johnson Coal. Before Ampak took 

over David Thomas had worked for Johnson Coal for almost a year 

as a continuous miner operator at the mine • 

When Ampak took o<Jer, Thomas was assigned to the third 

shift as a continuous miner operator at a rate of $12.90 per 

hour. He continued to work on the third shift until 

mid-December, 1987, when Johnny Pittman, Ampak's general mine 

foreman, transferred him to the second shift. When Thomas 

reported for his first day of work on the second shift, the 

section foreman, Alger Jent, told him to replace George Isaacs 

on the continuous mining machine and to tell Isaacs to operate 

the roof bolting machine. When Isaacs balked at operating the 

bolting machine, Jent assigned Thomas to help James Sexton on 

the roof bolter.~/ 

Thomas worked as the roof bolting machine helper for about 

3 1/2 hours until Sexton injured his back and had to leave the 

mine. The other roof bolting machine operator on the second 

shift, Dennis Rucker, was off work due to an injury so Ampak was 

left without either of its regular bolting machine operators. 

Jent therefore asked Thomas to operate the .coof bolting machine 

as best he could. When Thomas told the foreman that he was not 

a certified bolter and was afraid to operate the machine, Jent 

told Thomas to just do the best he could for the remainder of 

the shift.3/ Jent also assured Thomas that he would not have to 

operate the bolting machine again. Thomas then agreed. 

Thomas operated the roof bolting machine for the remaining 

2 hours of the shift. According to Thomas he bolted slowly 

because of his unfamiliarity with and fear of the bolting 

machine. He was not given any training before bolting and he 

received no supervision while operating the bolter. He 

2/ Isaacs testified that he objected to operating the roof 

bolti~g machine because the machine's "dust motor", which 

vacuums up loose coal dust, was inoperative and its boom was 

defective, which made the roof bolter difficult to control. 

These defects were also reported by the bolting machine's 

regular operator, Dennis Rucker, and by Thomas. 

~/ Thomas testified that he had not operated a roof bolting 

machine or received any roof bolter training for about 3 years. 

30 C.F.R. § 48.7 requires a mine operator to provide task 

training, prior to the performance of assigned work, to, among 

others, any roof cont.col operator who has not performed the 

assigned task during the preceding 12 1nonths. Thomas explained 

that he waa afraid to operate the machine because he had naver 

~eEore 11sed resin roof bolts and did not know how to properly 

install them, because the dust collector was not working, and 

becauae the defecti~~ head on the bolter posed a safety hazard. 

2554 
maintains that he did not then know of his right to refuse an 

unsafe job assignment, including a task for which he had not 

been trained. 

At the end of the shift, Thomas maintains that he told 

Section Foreman Jent that he would not operate the bolting 

machine again because he was not certified to do so and because 

he was afraid of the machine due to its poor operating condition. 

Jent repeated his earlier promise that Thomas would not have to 

operate the bolting machine again, and stated that the crew 

would have another bolting machine operator for the next working 

shift. 

Before the start of the 2nd shift the following day, Thomas 

was standing with other crew members in the mine shop. 

According to Thomas, Jent approached Thomas and told him he 

would have to bolt again that day. Thomas refused, telling Jent 

that he was not certified to operate the roof bolting machine 

that he was afraid of the bolter, and that he would not bolt 

double (40 foot) cuts. 

The roof control plan for the Ampak No. 1 mine provided 

that continuous miner cuts could be no more than 20 feet in 

length. However, the evidence shows that since the end of 

November, 1987, Alger Jent had been ordering the continuous 

miner operators on the 2nd shift to take 40 foot cuts (also 

called "double" or "deep" cuts). It is not disputed that this 

practice was extremely dangerous for the bolting machine 

operator because a 40 foot cut exposed him to twice the area of 

unsupported top. A deep cut also created greater instability in 

the mine roof which also increased the chances of a roof fall. 

Double cutting ::>aves time however because the crew does not have 

to move the mining equipment as frequently and could 

theoretically increase production. 

l'Jhen Thomas initially refused Jent' s work assignment, Jent 

left the shop and went to the mine off ice located across the 

parking lot from the shop. When Jent returned, he handed Thomas 

a tcaining certificate that had been filled out to indicate that 

Thomas had received task training as a roof bolting machina 

operator. Jent told Thomas to sign the certificate, but Thomas 

refused because, as he told Jent, he had not received the 

training. According to Thomas, Jent then told him that if he 

wanted to stay at Ampak he would have to bolt 40 foot cuts. 

Jent leEt the mine shop again and when he returned told 

Thomas that Johnny Pittman, the general mine foreman, wanted to 

se~ him. The evidence .shows that after Thomas left the shop, 

Jent stated that he did not need men like Thomas on hi.s section 

and that he would get rid of Thomas. When Thomas arrived at the 

mine office, Pittman asked him "what the problem was". It is 

not disputed that Thomas told ~ittman that he was not certified 

to operate the bolting machine, that he was afraid of it, and 

2555 
that he would not bolt double cuts. According to Thomas, 

Pittman replied that if he did not want to operate the bolting 

machine, "we don't need you". 

Thomas testified that he was afraid he would be fired if he 

refused to operate the bolter, so he returned to the shop and 

told Jent that he would operate the bolting machine, but that he 

would not bolt double cuts.4/ Thomas was waiting to enter the 

mine when Pittman called him on the paging phone and told him to 

go home and to report back for work on the 3rd shift on his 

regular job. 

Thomas did report for work that night on the third shift 

and resumed his regular job as continuous miner operator. 

However, Thomas maintains that after his refusals to bolt the 

double cuts and to sign the false training certificate Pittman's 

attitude towards him changed. For the next few days, Pittman 

would not talk to Thomas. In contrast, before the safety 

disputes, Pittman had always joked around with him. Then, about 

three days after Thomas' refusal to bolt the deep cuts and his 

refusal to sign the false training certificate, Pittman informed 

Thomas that his job classification was being changed from 

continuous miner operator to belt ~nan (or head drive operator) 

and that his pay rate was being cut by $1.30 an hour. Pittman 

gave Thomas no reason for his demotion from a skilled to an 

unskilled job. 

After ·Thomas' demotion, effective December 21, 1987, he 

worked at the head drive of the conveyor belt during the entire 

shift. Paul Hughes, who formerly had been the 3rd shift 

repairman, was assigned to operate the continuou3 miner. 

Hughes, had not previously run the miner on the 3rd shift and 

had to be trained by Thomas to operate it. 

Shortly after Thomas was demoted, he called the Federal 

Mine safety and Health Administration {MSHA) and reported that 

Ampak was taking double cuts with the continuous miner on the 

2nd shift. As a result of Thomas' call, MSHA Inspector Stanley 

"Bobo" Allen went to the Ampak No. l mine on December 22, 1987, 

to determine if double cuts were, in fact, being made. Although 

Allen did not issue any citations for illegal cuts, he did issue 

five c i ta~tions to 7\1npak during this inspection - four for roof 

control violations, and one for Ampak's failure to provide a 

ventilation brattice at the working face. 

4j Thomas maintains that he was still not aware oE his 

right-to refuse unsafe work. lie 3tate<i that he learned of this ~ight when he later called the MSHA field off ice in Hazard, 

Kentucky to report that Ampak was taking 40 Eoot cuts with the 

continuous miner and that he had been told to sign a training 

certificate for training he had not received. 

2556 
The MSHA inspector also told Pittman that the December 22nd 

inspection was made in response to a complaint about 

double-cutting. Ampak's management was thus aware that one of 

its employees had complained. According to George Isaacs and 

Dennis Rucker, Alger Jent suspected (correctly} that Thomas was 

the informer. In fact, Jent told.Isaacs that Thomas was "going 

to be a short-timer" at Ampak because he had notified the 

inspector about the double cuts. 

On or about January 20, 1988, approximately one month after 

he was demoted from 3rd shift continuous miner operator to 3rd 

shift belt man, Thomas was transferred to Ampak's day shift as a 

belt man (head drive operator) with a further pay reduction of 

$.20 per hour. Thomas continued to work as a belt man on the 

day shift until he was laid off on February 15, 1988. 

When Thomas was given his layoff notice on February 15th, 

Pittman told him that he had been chosen for layoff because, 

according to the Johnson Coal Company seniority list, Thomas was 

the least senior head drive operator at the mine. On March 1, 

1988, Pittman likewise told the MSHA special investigator during 

MSHA's investigation of Thomas' discrimination complaint that 

"Thomas was selected for layoff because he was the youngest 

[least senior] head drive operator we [Ampak] had". 

Ampak laid off a total of 14 miners on February 15, 1988. 

Of these 14 employees, 7 or 8 were belt men (head drive 

operators}. None of the miners laid off on February 15th were 

continuous miner operators. 

Evaluation of the Evidence 

In order to establish a orima facie violation of Section 

105(c}(l} of the Act, the Complainant must prove by a 

preponderance of the evidence that he engaged in protected 

activity and that the adverse action taken against him by the 

Respondent was motivated in any part by the protected activity. 

In order to rebut a prima facie case, the Respondent must show 

either that no protected activity occurred or that the adverse 

action was in no part motivated by the miner's protected 

activity. Secretary of Labor on behalf of Pasula v. 

Consolidation Coal Co., Inc., 2 FMSHRC 2786 (1980), rev'd on 

other grounds sub nom. Consolidated Coal Co. v.·Marshall, 

663 F.2d 1211 (3rd Cir. 1981); Secretary of Labor on behalf of 

Robinette v. United Castle Coal Co., 3 FMSHRC 803 (1981). If 

the Respondent cannot rebut the prima facie case in this manner, 

it nevertheless can defend affirmatively by proving that it was 

also moti~ated by the ffiiner's unprotected activities and it 

would have ta~en the adverse action in any event for the 

unprotected activities alone. The operator bears the burden of 

proof with regard to this affirmative defense. Haro v. Magma 

Copper Co., 4 FMSHRC 1935 (1982). 

2557 
In the instant case, it is undisputed that Thomas engaged 

in protected activities in mid-December, 1987, when he Cl> 

refused to bolt 1ouble cuts which were being made in violation 

of Ampak's roof control plan and (2) refused to sign a 

certificate of training which falsely indicated that he had been 

given task training by Ampak as a roof bolting machine operator. 

Moreover it is not disputed that Thomas' refusal to bolt the 

double cuts was made in the good faith and reasonable belief in 

its hazardous nature. 

Respondents failed to call Alger Jent or any other witness 

to dispute Thomas' testimony that Jent ordered him to bolt the 

double cuts and to sign the fraudulent training certificate and 

that when Thomas refused these orders, Jent threatened him with 

the loss of his job. Thoma.:3' testimony, on the other hand, was 

corroborated, in whole or in part, by George Isaacs, 

Robert Slone, Everett Watkins, and Jackie Littrell. Moreover, 

even General Mine Foreman Johnny Pittman admitted that when 

Thomas reported to his off ice in the midst of the dispute with 

Jent, Thomas told him that he was afraid to operate the bolting 

machine and that he would not bolt 40 foot cuts. Pittman also 

admitted that he reassigned Thomas to the 3rd shift that same 

day after Thomas' dispute with the company over the roof 

bolting of double cuts. 

It is also uncontroverted that Pittman demoted Thomas from 

the skilled continuous miner operator's position to the 

unskilled belt man job and cut his pay from $12.90 to $11.60 an 

hour only a few days after Thomas' refusals to bolt the double 

cuts and sign the false training certificate. It is likewi3e 

uncontroverted that Pittman's relationship with Thomas changed 

for the worse following Thomas' refusal to accede to A.mpak'.3 

unsafe and unlawful directives and that Pittman gave Thomas no 

explanation for his demotion and pay reduction. Indeed, Ampak 

offered no explanation even at trial for demoting Thomas on 

December 21, 1987. 

Within this framework of evidence it is clear that Thoma.::; 

was demoted from continuous miner operator to belt man (head 

drive operator) by Ampak on December 21, 1987, because of his 

refusals a few days earlier to bolt double cuts and his refusal 

to sign the false training certificate. Indeed Thomas was 

demoted by Pittman only a few days after these orotected 

ac ti.vi ties. When a. company's adverse action against an employ.~e 

closely follows the employee's protected activity, that fact 

itself is evidence of an illicit motive. Donovan v. ~t~fford 

Construction Co., 732 F.2d 954, 960 (O.C. Cir. 1984); Secretary 

of Labor on behalf of Chacon v. Phelps Dodge Corporation, 3 

FMStlRC 2503 (1981), rev'd on other grounds sub nom., Donovan v. 

Phelps Dodge Corporation, 709 F.2d 86 (D.C. Cir. 1983). I find 

that to be the case herein. 

2558 
The deterioration of the employee-employer relationship 

after Thomas' protected activity, is also strong evidence of a 

retaliatory motive. See Stafford supra. In the instant case 

the evidence shows that Pittman refused to talk to Thomas after 

his protected activities. Retaliatory intent is also shown in 

this case by Ampak's failure to explain the reason for its 

adverse action to Thomas. See Secretary of Labor on behalf of 

Brackner v. Jim Walter Resources, Inc., 9 FMSHRC 263, 268 

(Judge Broderick, 1987), NLRB v. Senftner Volkswagen Corp., 681 

F.2d 557 (8th Cir. 1982). Indeed Ampak gave Thomas no reason 

whatsoever for his· abrupt demotion. It may reasonably be 

inferred from this evidence that Pittman was punishing Thomas 

for the assertion of his safety rights. 

The operator has failed moreover to present any evidence to 

rebut Thomas' prima facie case. It has therefore failed to 

show that Thomas' demotion was not motivated by his protected 

activities. Ampak's demotion of Thomas' was therefore in clear 

violation of Section 105(c)(l) of the Act. 

Following his discriminatory demotion December 21, 1987, 

Thomas remained in the belt man (head drive operator) position 

unt.il his layoff on February 15, 1988. At the time of the 

layoff Mine Foreman Pittman told Thomas that he had been chosen 

for layoff based on seniority. Specifically, Pittman told 

Tho1nas that Ampak was following Johnson Coal Company's seniority 

list, and that Thomas was the least senior head drive operator 

at the mina. 

Although Pittman testified at trial that he and Herb 

Wolford made the decision as to which employees to lay off and 

which to retain on February 15, 1988, based on who they thought 

"could operate the equipment the best and do the the best job", 

this proffered explanation clearly is not credible as it relates 

to Thomas.5/ Indeed, the reason given by Pittman at the time of 

the layofE-Cthat Thomas was the least senior head drive 

operator) is precisely the reason that Pittman gave the MSHA 

special investigator who was investigating Thomas' 

didcrimination complaint. In his sworn statement to MSHA on 

March 1, 1988, just 15 days after the layoff, Pittman stated 

that "Thomas was selected for layoff because he was the youngest 

head drive operator we had". Pittman also told the MSHA special 

investigator that "seniority based on the Johnson (Coal Company) 

hire list" was considered in choosing the miners for layoff. 

~/Pittman's trial testimony concerning the circumstances 

surrounding the Ar;>ril 22nd layoff at Ampak also differs .narkedly 

from the sworn statement he gave the MSHA special investigator 

in the ~eorge Isaacs case. For this additional reason t do not 

cind him to be a credible witness. 

2559 
Significantly another miner laid off on February 15th, Dennis 

Rucker, was also told that he was chosen for layoff based on his 

seniority status.~/ 

In determining whether or not Thomas would have been laid 

off on February 15th had he not been discriminatorily demoted on 

December 21st, it is necessary to_ review the status of the 

miners who were laid off on February 15, 1988, and the positions 

they-held at the time of the-layoff. It is undisputed that 14 

miners were laid off on February 15th. The positions of 12 of 

these miners have been stipulatad. With regard to the two 

miners, Slone and Bentley, whose positions could not be agreed 

upon, I find that the Complainant has nevertheless established 

their positions by credible testimony. 

The miners laid off by Ampak on February 15, 1988, and 

their positions are therefore established as follows: 

PETE BENTLEY - tractor, scoop, and shuttle car operator 

DAVID BROWN - repair~an 

DARRELL ESTEP - repairman 

KENNETH EVERAGE - belt man 

ROY JOHNSON - belt man 

rillCHIE KING - shuttle car operator or belt man 

JEWITT MULLINS - inside laborer 

BOBBY OWNES - shuttle car operator 

ELLIOT'r ROWE' JR. - belt man 

DENNIS RUCKER - roof bolting machine operator 

LUTHER SEXTON - belt man 

DAVID THOMAS - head drive operator 

ROBERT SLONE - head drive operator: acoop ooerator 

CON BENTLEY - belt 1nan 

Among the miners laid off on February 15, 1988, were 7 or 8 

belt men (head drive operators), 1 inside laborer, 2 repairmen, 

3 shuttle car and/or scoop operators, and 1 roof bolting machine 

operator. No continuous miner operators were laid off however 

and indeed the evidence shows that Paul Hughes, the employee who 

took Thomas' place as 3rd shift continuous miner operator in 

December, was not laid off in February. It may reasonably be 

inferred therefore that had Thomas not been discriminatorily 

demoted from his continuous miner operator's position in 

December, he would not have been subject to layoff in February. 

Ampak's discriminatory demotion of 'I'homas in December 1937, 

was thus "inextricably linked" to the company's decision to lay 

him off in_ February 1988. See Wiggins v. Eastern Associated 

6/ The Complainant maintains in this ~ase that he is not 

challenging A1npak' s assertion that its layoff of miners on 

Februacy 15th was necessary because the mine was losing money. 

Rather, hG assert5 that whether or not layoffs were economically 

necessary, Ampak's decision to choose "him for layoff was 

inextricably linked to his earlier demotion and was, therefore, 

violative of the Act. 

2560 
Coal Corp., 7 FMSHRC 1766 (1985). Since Ampak did not lay off 

any continuous miner operators in February and since it may be 

inferred that Thomas would still have been a continuous miner 

operator had he not been discriminatorily demoted, it is 

apparent that Thomas would not have been laid off but for 

Ampak's prior discriminatory action. Therefore, Ampak's layoff 

of Thomas was in violation of the Act. 

Pittman's testimony concerning Ampak's alleged reason for 

Thomas' layoff i.e., that Thomas was not among the miners that 

Ampak believed could do the "best job", is, as previously noted, 

simply not credible. Ampak therefore could not prove that 

Thomas would have been laid off for other reasons alone. 

Moreover although Pittman testified as to alleged complaints 

about Thomas' work, he never contended that these supposed 

complaints were the basis for Thomas' layoff. Therefore, it is 

clear that Thomas would not have been laid off solely for any 

unprotected activities. 

Complaint of George Isaacs - KENT 89-14-D 

The record shows that George Issacs worked for Johnson Coal 

for about 10 years before Ampak took over the former Johnson No. 

11 mine on October 17, 1987. Issacs had worked as a continuous 

miner operator for Johnson Coal since the latter part of 1985 

and he continued in that position after Ampak took over. Isaacs 

worked on the 2nd shift (3:00 - 11:00 p.m.) on the 003 section 

oE Ampak's No. 1 mine. He worked in tandem with Jackie Littrell 

alternating with him as continuous miner operator and miner 

helper. 

When Ampak took over the mine, Robet:'t Slone was the section 

foreman on the 003 section and Alger Jent, the 2nd shift mine 

forerna.n, was Slone's immediate boss. As previously noted in the 

factual recitation in the Thomas' case, beginning in the latter 

pact of November 1987, Jent regularly ordered the continuous 

miner opet:'ators on the 2nd shift to take illegal 40 foot 

double cuts with the miner. Jent gave the orders over the 

objection of Slone, who instructed his operators not to cut more 

than 20 feet deep. Indeed Slone testified that "Jent asked me 

to [ot:'der the miner operators to take deep cuts], and I told him 

that it was against the law, and I never would give no orders to 

do that. Whenever there was a deep cut took, he [Jent] was the 

man that give the orders." 

In early December 1987, Jent reportedly told Slone directly 

that his crew had "to cun coal and take double cuts." Jent also 

r8portadly told Slone that ".Johnny [Pittman] knows what I'm a 

doin' and [he] don't care". In mid-December 1987, Slone was 

reassigned as a scoop operator, and Jent took his place as 

section foreman on the 003 section. Pursuant to Jent's orders, 

the continuous miner operators on the 2nd shift regularly took 

double cuts until March 14, 1988, ~hen Jent was suspended.· All 

2561 
of the miners who testified (Jackie Littrell, Robert Slone, 

Dennis, Rucker, Gary Day, Everett, Watkins, and David Thomas) 

confir;ned that double cuts were regularly made at .Jent' s 

direction. 

Isaacs maintains that he complained to Jent nearly everyday 

about the taking of double cuts, but that Jent ignored him. 

Gary Day, a shuttle car driver also confirmed that Issacs told 

Jent it was unsafe to take 40 foot cuts. Littrell, the other 

continuous miner operator, likewise complained to Jent. Issacs 

also maintains that he complained to Johnny Pittman twice about 

the taking of double cuts. On the first occasion, on January 

1988, Pittman ridiculed Isaacs for only taking "baby cuts" of 

36-40 feet with the continuous miner and Pitt.man chided Isaacs 

that "he was going to have to get [another] miner man". On the 

second occasion, in February 1988, Isaacs told Pittman that they 

needed to start taking short cuts because of hazardous roof 

conditions. Pittinan replied that "there's no way he could 

afford to take short cuts". 

Isaacs maintains that he refused Jent's instructions to 

take double cuts on two occasions. The first refusal was 

immediately after the mine roof had fallen on his continuous 

miner while he was taking a deep cut. It took two hours to 

clean the rock off Isaacs' continuous miner and when he was 

then instructed to double cut the adjoining place, Isaacs told 

Jent that he would only cut 20 feet deep and that if Jent wanted 

it cut deeper, he would have to cut it himself. According to 

Isaacs Jent then became upset and did not talk to him for two or 

three days. 

Isaacs maintains that he also refused to take double cuts 

during a shift on the 001 section because of unstable roof. 

This section was called the "bad section" or "scratchback" 

because of its bad top and low coal seam. When Isaacs refused 

Jent reportedly again "got upset and ..• cussed a little bit ... 

and pouted" for a few days. 

Isaacs maintains that durin9 February and early March 1988, 

he also complained repeatedly to Ampak's management about the 

absence of lights on the continuous miner. Isaacs and Littrell 

both estimated that the miner had been without any lights for 

three weeks. 

Issacs testified that to operate the miner without lights 

he would have to stick his head out of the operator's d~ck and 

11se his cap light for illumination. Isaacs described this as 

~e~tremely dangerous". Littrell called it as "dangerous as a 

cocked Qistol". Isaacs maintains that he complained to ,Jent -'ind 

Pittillan about this condition but to no avail. In fact, Pittman 

reportedly told Isaacs that in the event of an MSHA inspection 

he should pretend that he was repairing the lights, and then 

resume cutting the coal ~ithout lights when the inspector left. 

2562 
Isaacs reportedly also complained to Jent and to Pittman in 

February and March 1988, about the inoperative water sprays on 

the continuous miner. Pittman purportedly responded "Don't 

worry aboQt the water, just worry about running coal". Isaacs 

maintains that he also complained to Pittman about Ampak'3 

fail11re to hang ventilation curtains and about Ampak's practice 

of having the continuous miner remove pillars. 

On February 16, 1988, the day after he was laid off, David 

Thomas filed his complaint of discrimination with MSHA in which 

he alleged that Jent had ordered him to roof bolt a 40 foot cut. 

As a part of its investigation of Thomas' complaint, the MSBA 

special investigators interviewed Pittman, Jent, and Herb 

Wolford, Ampak's superintendent, on March 1, 1988, at the Ampak 

mine off ice. After his interview with the investigators, Jent 

proceeded to go underground. As he began to enter the mantrip, 

Jent accused James Sexton, a roof bolting machine operator, of 

telling MSHA about the illegal 40 foot cuts. Sexton denied 

it but ,Jent responded that "somebody had to tell 'em .•• they 

knew too much what's going on. 11 After telling Sexton that he 

did not know if the cuts had been 40 feet long because "you 

do not carry no forty foot tape measure", Jent warned the crew 

that they'd better watch what they said to MSHA or else they 

would be in trouble. 

Two days after ,Jent accused James Sexton of telling the 

MSHA special investigators about the inining of double cuts, 

Jent approached Isaacs and Littrell while they were working at 

the mine face. Jent told them that he was not going to the 11 pen" for double-cutting. When Isaacs stated, in effect, that 

he and Littrell could also be in trouble for cutting the double 

cuts, Jent warned them to watch what they told the investigators. 

As he did so, Jent patted his pocket in which he carried a 

pistol. Isaacs considered this gesture to be a threat. 

About a week later, on the morning of March 10, 1988, the 

entire Ampak No. 1 mine was shut down pursuant to a 

Section 104(d)(l) "unwarrantable failure" order issued by MSHA. 

The closure order was issued for Ampak's failure to comply with 

its ventilation plan. Ampak· called Jackie Littrell's home that 

day to inform him not to report for work. When Littrell called 

back to the mine off ice to ask why they would not be working, 

Superintendent Wolford told Littrell that the mine had been shut 

down because of ventilation problems. Littrell then told 

Wolford that there were some problems at the mine that he needed 

to know about, and Wolford suggested that they meet at a gas 

stat ion. 

When Wolford and Littrell met, the superintendent asksd 

Littrell if he know who had been calling the MSHA inspectors. 

Littrell then told Wolford that Jent had been ordering the miner 

operators to take double cuts, and that Jent had threatened he 

2563 
and Isaacs. A day or so later, Wolford telephoned Isaacs and 

asked him if double cuts were being made on the 2nd shift. When 

Isaacs answered affirmatively Wolford asked who was ordering 

the double cuts to be taken. Isaacs reported it was Jent and 

Pittman. Isaacs also recounted to Wolford the incident in which 

Jent had threatened he and Littrell with a gun. 

Wolford then notified Pittman that Littrell and Isaacs had 

complained about Jent ordering them to take double cuts and 

Wolford arranged a meeting at the Ampak mine off ice among Jent, 

Pittman, and himself. At that meeting, Wolford told Jent that 

Isaacs and Littrell had alleged that he was ordering them to 

take double cuts. As a· result of the complaints made by Isaacs 

and Littrell, Jent was suspended for the work week of 

March 14-18, 1988. At the end of that week, Wolford and Pittman 

tnet with Jent again and told Jent that he was being reinstated. 

Jent was moved, however, to the 3rd shift (as section foreman) 

in ordec to separate him from Isaacs and Littrell, who remained 

on the 2nd shift. 

In the midst of MSHA's investigation of David Thomas' 

discrimination complaint, MSHA's March 10th closure oE the Ampa~ 

No. 1 mine, the complaints made by Littrell and Isaacs regarding 

double-cutting on the 2nd shift, and Jent's suspension of 

March 14-18, there also was another pending safety 

discrimination case - against Johnson Coal Company - which 

involved Johnny Pittman. On August 25, 1987, 5 former employees 

of Johnson Coal Company - Calvin Baker, Edsel Baker, Elliott 

Rowe, Agnel Amburgey and Everett Watkins - had filed complaints 

of discrimination against Johnson Coal, which alleged they had 

been laid off because they had made various safety complaints. 

All of the complaints named Pittman as one of the persons 

responsible for the discriminatory actions. 

The Secretary of Labor filed a complaint on behalf of these 

5 miners against Johnson Coal with the Federal Mine Safety & 

Health Review Commission. On April 21, 1988, at a Hazard, 

Kentucky law office, Isaacs gave his deposition on behalf of the 

5 complaining miners. "Pittman saw and spoke to Isaacs at the 

law office on Aoril 21st and Pittman stated at trial that he 

assumed that Is~acs was testifying on behalf oE the complaining 

miners. Significantly, Pittman also admitted that he assumed on 

April 21st that Isaacs was testifying about unsafa pcactices 

that he (Pittman) h~~ taken part in. 

On Apcil 22, 1988, the day after Isaacs' deposition 

testi1nony, Isaacs was laid off ( ter1ninated) by Ampak. Pittman 

lr1forrned Isaac3 of hi.3 layoff but gave him no reason for the 

action. Of the four full-time continuous miner operators 

~mployed by Ampak, the two employees who had coinplainad to 

management about the taking oE double cuts and had regularly 

voiced other $afety complaints (i.e. George Isaacs and 

Jackie Littrell) were laid off. On the other hand, the evidence 

2564 
shows that the two full-time miner operators who were retained, 

Danny Hall and Eli Jent, had never complained about unsafe 

working conditions at Ampak. It is also apparent that Pittman, 

who was fully aware of Isaacs' safety complaints, was solely 

responsible for choosing the miners for layoff on April 22nd. 

Although Pittman knew that Alger Jent had consistently 

ordered his crew to perform unsafe practices on the 2nd shift, 

Pittman did not lay off Jent on April 22nd. Rather, Pittman 

retained Jent and returned him to his previous job as 2nd shift 

section foreman. 

Evaluation of the Evidence 

Isaacs, like Thomas, does not challenge Ampak's assertion 

that its layoff of miners on April 22, 1988, was necessary 

because the No. 1 mine was losing money. He argues that whether 

or not layoffs were economically necessary, Ampak's (Pittman's) 

decision to choose him for layoff (while retaining other 

continuous miner operators) was discriminatory. For the reasons 

set forth below I agree. 

The evidence shows that of the 10 miners laid off at that 

time two full-time continuous miners operators, George Isaccs 

and Jackie Littrell, were laid off while two other full-time 

miner operators, Danny Hall and Eli Jent, were retained. 

Therefore, of the four Ampak employees classified solely as 

continuous miner operators, Isaacs was one of the two chosen for 

layoff. 

As noted by Isaacs in his post hearing brief, there were 

four strong indicia of discriminatory motivation on the part of 

Johnny Pittman in choosing him for layoff: (1) Pittman had 

knowledge of Isaacs' many protected activities: (2) Pittman had 

previously demonstrated hostility toward safety complaints by 

demoting Thomas for refusing to bolt double cuts; (3) the 

pro2Cimity in time between Isaacs' deposition testimony· (on 

behalf of the 5 former Johnson Coal Company miners) and his 

layoff; and (4) Pittman's personal motivation for getting ri1 of 

Isaacs because of Isaacs' complaints to Wolford and his 

deposition testimony in the related Johnson Coal Company case, 

both of which implicated Pittman in unsafe mining practices. 

It is clear that Isaacs engaged in numerous protected 

activities in the 3 months prior to his April 22nd layoff 

(termination). These protected activities were as follows: 

(1) regular complaints to Jent about the taking of double cuts; 

.C2) two complaints to Pitt~an - in January and February 1988 -

about the practice of double-cutting on the 2nd shift; (3) two 

refusals to perform unsafe work (i.e., to take double cuts): 

(4) frequent complaints to Jent and to Pittman about the lack of 

lights on the continuous miner; C 5) complaints to .Jent and 

Pittman about the inadequate water sprays on the continuous 

2565 
miner; (6) complaints to Jent and Pittman about Ampak's failure 

to provide or hang ventilation curtains; (7) complaints to 

Pittman about performing pillar removal work fro1n the deck of 

the continuous miner (without remote control>; (8) the complaint 

to Wolford in mid-March about the double-cutting on the 2nd 

shift; (9) two conversations with the MSHA special investigators 

in March 1988, concerning Thomas' allegations of double-cutting; 

and Cl0) his deposition testimony in the Johnson Coal Company 

case on April 21, 1988. 

There is, moreover, no dispute concerning the good faith or 

reasonableness of the work refusals. It is also clear that 

Pit.tman knew directly of almost all of these protected 

activities, particularly those which occurred closest in 

proximity to Isaacs' layoff. Indeed, because of Pittman's 

position at the mine and his close personal relationship with 

Jent, it can reasonably be inferred that Pittman was also aware 

of the complaints that Isaacs made to Jent. 

Pittman was also directly involved in some of Isaacs' 

protected activities, which gave him a personal reason to get 

rid of Isaacs. In addition to complaining personally to Pittman 

about the mining conditions on the 003 section, Isaacs had told 

Wolford, Pittman's immediate superior, about the illegal 

double-cutting on the 2nd shift and, moreover, he told Wolford 

that Pittman and Jent were responsible for the ordering of the 

illegal cuts. 

l?ittman, who was named as the person responsible for the 

discriminatory actions in the related Johnson Coal Company 

complaints also assumed that Isaacs' deposition testimony on 

April 21st was on behalf of the former Johnson Coal Co1npany 

miners and that Isaacs had testified about Pittman's involvement 

in unsafe acts. Isaacs and Littrell had, in fact, also been 

responsible for Jent's 5 day suspension and subsequent transfer. 

It can reasonably be inferred form this evidence that Pittman 

was therefore antagonistic towards Isaacs (and Littrell) as a 

result. 

The fact that adverse action closely follows an employee's 

protected activity is itself evidence of an unlawful motivation. 

Donovan v. Stafford Construction Co., supra. Although the April 

22nd layoff in the instant case may have been economically 

necessary} the fact that Isaacs was chosen for layoff while 

other continuous miner operators wer.e not, and on the day after 

his deposition testimony, is thereEore strong evidence of 

Pittman's discriminatory intent. 

Hostility towards protected activity is another 

circumstantial Eactor pointing to discriminatory motivation. 

Chacon, supra. Such hostility towards safety complaints by 

Pittman ia also present in this case. Not only did Pittman 

ridicule Isaacs' concerns over the taking of deep cuts with the 

2566 
miner, but as has been already determined, he discriminatorily 

retaliated against David Thomas after Thomas' refusal to bolt 

double cuts in December. 

Although Jackie Littrell is not a party to this action, it 

is clear that Pittman selected both Isaacs and Littrell for 

layoff because they were the two continuous miner operators who 

objected to the unsafe practices required by Pittman and Jent. 

On the other hand, as Pittman admitted, the two continuous miner 

operators who were not laid off i.e. Danny Hall and Eli Jent, 

never made safety complaints. 

Mr. Isaacs has therefore, within this framework of 

evidence, proven that his layoff was indeed motivated at least 

in part by his protected activities. The Respondents have 

failed to rebut this evidence and have failed to affirmatively 

defend. 

Ampak's only apparent defense in this case was that it 

chose which miners to lay off by "look[ing] at the jobs we 

needed filled and the guys most capable of filling them". 

However, no evidence was presented as to the relative skills of 

George Isaacs vis-a-vis Ampak's other continuous miner operators. 

On the contrary, Pittman admitted that Isaccs had had no 

disciplinary problems while employed at'Ampak and that when he 

chose Isaacs for layoff, he knew that Isaacs was a certified 

foreman and that he was capable of performing "quite a few jobs" 

in the mines. 

Ampak's primary evidence in its defense was that the miners 

who were laid off on Friday, April 22nd, had actually been 

chosen for layoff on the preceding Wednesday night, April 20th. 

Pittman testified that J. L. Workman called he and Herb Wolford 

at the No. 1 mine on Wednesday afternoon, and told them to 

report to Ampak's "main office". when Pittman and Wolford 

reported to the office, Workman allegedly told them that Ampak 

was "losing money" and "needed to make some cuts". Therefore, 

Pittman and Wolford then allegedly compiled a list of the miners 

who would be laid oEf. 

Pittman's testimony in this regard is, however, 

contradicted by his sworn statement to the MSHA special 

investigator on June 14, 1988, during th~ investigation of 

Isaacs' disc-rimin:ition complaint. Pittman then stated that "! 

made the decision as to who would stay and ~ho would be laid 

off". He also stated that "Herbart Wolford left this mine 

[Ampak No. l] on April 15, 1988. He went to another operation 

of 7'\1npak Mines, Inc., and I took over as superintendent". Thus Pitt~an had previously stated that Wolford had left the mine a 

week before the layotfs took place and that he (Pittman) was 

solely responsible for choosing which miner3 would be laid off. 

Pittman is therefore not a credible witness. In this regard his 

testimony of his lack of knowledge of the double-cutting at the 

2567 
Ampak mine and his denial that Isaacs ever made safety 

complaints to him in light of the overwhelming evidence to the 

contrary, are also incredible. 

In sum, since Isaacs has proved a prima iacie case of 

discrimination herein and since the Respondents have failed to 

prove that Ampak' s adverse action was also moti,1ated by 

unprotected activities (and that it would have laid Isaacs off 

in any event for the unprotected activities alone), Ampak's 

layoff of.Isaacs on April 22, 1988, violated Section 105(c)(l} 

of the Act. 

Liability for Damages 

Ampak has been·found in these cases to have discriminated 

against both Complaintants Thomas and Isaacs in violation of 

Section 105(c)(l) of the Act. According to the Complaints Ampak 

is out of business, has no assets and can provide no relief. 

They concede however that Johnson Coal did not exercise 

"substantial control over the most significant aspects of the 

operation of the mine" so as to establish liability under the 

agency theory applied by the Commission in Bryant v. Dingess 

Mine Service, et al., 10 FMSHRC 1173, 1178 (1988). The 

Complainants therefore seek legal remedies, on a strict 

liability theory, against Johnson Coal the owner of the mine in 

this case and with which Ampak contracted to operate the mine. 

The cases cited in support of their argument are, howe,1er, 

inapposite. The cases essentially attach liability to mine 

owners for violations o.E the Act cocrunitted by their independent 

contractors based on the specific statutory liability of mine 

operators under Sections 3(d) and 111 of the Act. 

Under the Act the Secretary of Labor could cite and propose 

a civil penalty against the mine operator, Johnson Coal, for the 

violations in this case of Section 105Cc)Cl). The question of 

strict liability by Johnson Coal to the individual miners is a 

different matter. Section 105(c)(l) limits liability to only 

those persons who discriminated against the Complainants. In 

addition, while the Commission has found in the Bryant case that 

liability may be eKtended to mine operators under agency theory, 

it has not extended responsibility under the principles of 

strict liability. 

~bsent evidence that would support liability under an 

agency theory such as in the Bryant case, there is no legal 

basis to find Johnson Coal liable in these cases. see also 

Bryant v. Dingess Mine Service et al., 9 FMSHRC 336 (Judge 

Brode.rick; 1987) and UMWA v. Algonquin Coal Co., 7 FMSHRC 906 

(Judge Steffey, 198~). 

2568 
ORDER 

The Complaints of Discrimination herein are dismissed 

against Southern Hills Mining Co., and Johnson Coal Company, Inc. 

The Complaints against Ampak t~ining Inc. are upheld and Ampak 

Mining, Inc. is liable for the acts of discrimination found 

herein. Accordingly the remaining parties are directed to 

confer regarding possible stipulations to establish costs and 

damages and to report the results thereof to the undel:'signed on 

or before January 5, 1990. In the event such stipulations 

cannot be reached, further proceedings will be held limited to 

the issue of costs and damages, at 9:00 a.m., on January 17, 

1990, in Lexington, Kentucky. The assigned courtroom will be 

designated at a later date. This decision is not final and will 

not be final until such time as a decision establishing costs 

and damages is issued. 

Distribution: 

Gary\ Melick 

Administrative 

\) 

Tony Oppegard, Esq., Appalachian Research and Defense Fund of 

Kentucky, P.O. Box 360, Hazard, KY 41701 (Certified Mail) 

Graham Martin, Esq., Main Street, United Federal Building, 

Hindman, KY 41822 CCertif ied Mail) 

Mr. Geary Burns, Vice President, Ampak Mining, Inc., Rt. 302, 

van Lear, KY 41265 (Certified Mail) 

nt 

2569 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CYPRUS EMERALD RESOURCES 

CORPORATION, 

Respondent 

CYPRUS EMERALD RESOURCES 

CORPORATION, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

DEC 2 6 1989 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 89-194 

: A.C. No. 36-05466-03687 

Emerald No. 1 Mine 

CONTEST PROCEEDINGS 

Docket No. PENN 89-45-R 

Citation No. 3087308; 8/30/88 

Docket No. PENN 88-318-R 

Order No. 3087446; 8/31/88 

Docket No. PENN 88-325-R 

Order No. 3087309; 8/30/88 

Emerald No. 1 Mine 

Mine ID 36-05466 

DECISIONS 

Appearances: Susan M. Jordan, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania, for the Petitioner/Respondent; 

Before: 

R. Henry Moore, Esq., Buchanan Ingersoll, 

Pittsburgh, Pennsylvania, for the 

Respondent/Contestant. 

Judge Koutras 

· Statement of the Proceedings 

These consolidated proceedings concern Notices of Contest 

filed by the contestant (Cyprus) against MSHA pursuant to section 

105(d) of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 815(d), challenging the legality of the captioned 

citation and orders. Docket No. PENN 89-194, concerns proposed 

2570 
civil penalty assessments filed by MSHA against Cyprus seeking 

civil penalty assessments for five alleged violations of certain 

mandatory safety standards found in Part 77, Title 30, Code of 

Federal Regulations. Cyprus filed timely answers denying the 

alleged violations, and three of the alleged violations were 

subsequently settled by the parties (section 104(a) Citation Nos. 

3087305 and 3087444, and section 104(d) (2) Order No. 3087600). 

Docket No. PENN 88-318-R, concerns a Notice of Contest 

challenging the legality of a section 104(d) (2) Order 

No. 3087446, with special "S&S" findings, issued on August 31, 

1988, and citing an alleged violation of mandatory safety standard 30 C.F.R. § 77.205(b). 

Docket No. PENN 89-45, concerns a Notice of Contest challenging the legality of a section 104(a) Citation No. 3087308, 

with special "S&S" findings, issued on August 30, 1988, and 

citing an alleged violation of 30 C.F.R. § 77.209. Docket No. 

PENN 88-325-R concerns a challenge to a section 107(a) Imminent 

Danger Order No. 3087309, issued on August 30, 1988, in conjunction with the section 104(a) Citation No. 3087308. 

Hearings were held in Washington, Pennsylvania, and the 

parties filed posthearing briefs. I have considered their 

respective arguments in the course of my adjudication of these 

matters. 

Issues 

The issues presented in these proceedings include the 

following: (1) whether Cyprus violated the cited mandatory 

safety standards; (2) whether the alleged violations were 

significant and substantial (S&S); (3) whether the alleged 

violation cited in the section 104(d) (2) order resulted from an 

unwarrantable failure by Cyprus to comply with the cited standard; and (4) whether the condition or practice cited in the 

contested imminent danger order was in fact an imminent danger. 

Assuming the violations are established, the question next 

presented is the appropriate civil penalties to be assessed 

pursuant to the civil penalty assessment criteria found in 

section llO(i) of the Act. Additional issues raised by the 

parties are identified and disposed of in the course of the 

adjudication of these cases. 

Applicable Statutory and Regulatory Provisions 

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

30 u.s.c. § 301, et seq. 

2. Sections llO(a), llO(i), 104(d), 105(d), and 107(a) of 

the Act. 

2571 
3. Commission Rules, 29 C.F.R. § 2700.1, et seg. 

Stipulations 

1. The subject mine is owned and operated by 

Cyprus, and it is subject to the jurisdiction of the 

Act. 

2. The presiding judge has jurisdiction to hear 

and decide these cases. 

3. The contested citation and orders were properly served on Cyprus by a duly authorized representa- · ti ve of the Secretary of Labor (MSHA). 

4. The parties agreed to the authenticity of all 

documents received in evidence in these proceedings, 

but not to the truth of the matters asserted therein. 

5. The history of prior violations for the subject mine is reflected in an MSHA computer print-out 

received in evidence in a prior civil penalty proceeding (Docket No. PENN 88-287). 

6. The annual coal production for Cyprus during 

the relevant time period in question in these proceedings is 1.8 million tons, and Cyprus may be considered 

a large operator. 

7. The proposed civil penalty assessments for the 

contested violations will not adversely affect the 

ability of Cyprus to continue in business. 

8. All of the contested alleged violations were 

timely abated by Cyprus in good faith. 

9. There were no intervening clean inspections 

between the issuance of the contested section 104(d) (2) 

order and a previously issued section 104(d) (2) order. 

settlements - Docket No. PENN 85-194 

Section 104Cal "S&S" Citation No. 3087305, was issued on 

August 30, 1988, in conjunction with a section 107(a) imminent 

danger order, and the inspector cited a violation of 30 C.F.R. 

§ 77.400, because a cyclone fence being used to prevent persons 

from entering an area under the counterweight for the No." 2 

stacker belt conveyor was inadequate. MSHA proposed a civil 

penalty assessment of $800 for this alleged violation. 

The parties filed a.proposal to settle this alleged violation, and in support of the proposed settlement, MSHA stated that 

2572 
the inspector was concerned that persons would walk over the coal 

stock pile and go underneath the counterweight and be struck by 

the counterweight. However, MSHA asserted that normal movement 

of the counterweight would not bring it in contact with persons 

below it, the belt and pulley structure were only 2 years old and 

in good condition, the counterweight was at least 30 feet above 

the level of the coal on the day the order was issued, and there 

was a sign posted that indicated that the area was restricted. 

Under the circumstances, MSHA vacated the imminent danger order, 

and the parties agreed to settle the alleged violation noted in 

the citation for a reduced civil penalty assessment of $400. 

Section 104Cdl (2) "S&S" Order No. 3087600, was issued on 

August 30, 1988, and the inspector cited a violation of 30 C.F.R. 

§ 77.1607(bb), after finding an inoperable start up alarm for the 

No. 1 belt between the No. 1 stacker and the coal transfer building. MSHA proposed a civil penalty assessment of $850 for this 

alleged violation. 

The parties filed a proposed settlement for this alleged 

violation, and in support of the settlement, MSHA stated that 

additional evidence established that the condition cited was 

caused by an "isolated output card" that had gone bad, and there 

is no evidence as to how long the bad output card had existed 

before the inspector found it. MSHA concluded that there was 

insufficient evidence of an unwarrantable failure by the respondent to comply with the cited standard, and the order was modified to a section 104(a) "S&S" citation. The parties agreed to 

settle this alleged violation for a reduced civil penalty assessment of $450. 

Section 104(a) "S&S" Citation No. 3087444, was issued on 

August 31, 1988, in conjunction with a section 107(a) imminent 

danger order, and the inspector cited a violation of 30 C.F.R. 

§ 77.404(a), after finding that an electrical junction box 

supplying power to a boiler heater located on the third floor of 

the preparation plant was not maintained in a safe operating 

condition in that openings in the box had allowed water and 

moisture to enter the box. MSHA proposed a civil penalty assessment of $650 for this violation. 

The parties filed a proposed settlement for this alleged 

violation, and in support of the settlement MSHA stated that 

there was insufficient evidence that an accident would occur if 

normal mining operations had continued. MSHA stated further that 

although a person could be shocked if they came in contact with 

the box, it was mounted on a wall 10 to 12 feet off the ground, 

and the cables were protected by an adequate ground fault system. 

Under the circumstances, MSHA vacated the imminent danger order, 

and the parties agreed to settle the alleged violation noted in 

the citation for a reduced civil penalty assessment of $325. 

2573 
In further support of the proposed settlement disposition of 

the aforementioned citations, MSHA submitted information pertaining to the six statutory civil penalty criteria found in section 

llO(i) of the Act. After careful and consideration of the arguments presented in support of the proposed settlement disposition 

of these violations, I conclude and find that the settlements are 

reasonable and in the public interest. Accordingly, pursuant to 

Commission Rule 30, 29 C.F.R. § 2700.30, the settlements ARE 

APPROVED. 

Docket No. PENN 88-318-R 

This case concerns a contested section 104(d) (2) "S&S" Order 

No. 3087446, issued by MSHA Inspector Charles Pogue on August 31, 

1988. The inspector cited an alleged violation of mandatory 

·safety standard 30 C.F.R. § 77.205(b), and the condition or 

practice cited in the order states as follows: "Loose coal, two 

wash down hoses, 21 feet and 17 feet in length, 6 supply structure springs, and coal dust 24 inches in depth was permitted to 

accumulate in the walkways of the refuse belt and 300 ton bin 

building." 

The cited standard, section 77.205(b), provides as follows: 

"Travelways and platforms or other means of access to areas where 

persons are required to travel or work, shall be kept clear of 

all extraneous material and other stumbling or slipping hazards." 

The particular mine areas that are the subject of the order 

are the preparation plant building, a 300 ton refuse bin building, which is a separate building, and an inclined refuse belt 

conveyor which connected the two buildings (Exhibit G-6) . Although there were actually two belts, one of them had been out 

of service for several years, and the cited belt area in question 

was used as a refuse belt. The belt was an enclosed structure, 

with an adjacent walkway of approximately 24 inches wide, and it 

was approximately 232 feet long, and was equipped with a handrail 

and lighting. 

In support of the cited conditions, MSHA presented the 

testimony of Inspector Pogue, and the UMWA walkaround representative Keith Higginbotham, who accompanied the inspector during his 

inspection on August 31, 1988. Mr. Pogue and Mr. Higginbotham 

confirmed that they personally observed the conditions which 

prompted Mr. Pogue to issue the order. 

In defense of the alleged violation, Cyprus presented the 

testimony of preparation plant foreman Ronald D. Kerr, and safety 

representative Jack B. Monas. Mr. Kerr confirmed that he did not 

accompany the inspector during his inspection, and that he did 

not observe the cited conditions (Tr. 126). Mr. Monas confirmed 

that he was involved in accompanying MSHA inspectors during the 

course of an MSHA inspection of the preparation plant which began 

2574 
on August 26, 1988, and that he was at the plant when Inspector 

Pogue conducted his inspection on August 31, 1988. He further 

confirmed that he observed the accumulations of refuse materials 

at the lower part of the belt walkway "at the door as the walkway 

exited" the building, but he could not recall seeing any materials from the door back to the tail roller. He confirmed that 

he observed these materials after the order was issued, before 

any clean up operations were started, and observed a closure tag 

on the door. He believed that the conditions he observed were 

the same conditions observed by the inspector. Mr. Monas further 

confirmed that he could not see the cited hoses from the location 

of the accumulated materials, and that he did not walk up the 

belt or into the other areas cited by the inspector (Tr. 

173-175). 

Inspector Pogue testified that he observed loose coal refuse 

materials in the walkway in and around the walkway around the 

tail roller of the refuse belt. He stated that the materials 

were the size of golf balls and baseballs, and that he and 

Mr. Higginbotham had to walk through and over the accumulations 

as they walked up the inclined beltline. As he proceeded up the 

belt walkway, Mr. Pogue observed a wash down hose approximately 

one and one half inches in diameter, and 17 feet long, and it was 

connected to a water tap. Upon proceeding further up the walkway, Mr. Pogue observed another wash down hose approximately 

21 feet long, and it too·was connected to a water tap. He confirmed that both hoses were "scattered back and forth across the 

walkway" (Tr. 10-14). He also confirmed that they are usually 

hung on a hanger (Tr. 45). 

Mr. Higginbotham confirmed that he also observed the accumulated coal refuse materials and hoses. He described the accumulations materials as "lump sized coal, probably the size of your 

fist down to a golf ball size," and stated that they were 

"scattered throughout the walkway going up the ramp," and that 

they extended for a distance of approximately 15 feet up the 

inclined walkway (Tr. 87). He stated that the hoses were "laid 

clear across the walkway in a very unorderly fashion," and "were 

snaked through," and that he had to walk on or over the hoses to 

pass (Tr. 88). 

Mr. Pogue further testified that after observing the hoses, 

he proceeded inside the 300 ton refuse bin building to an "elevated walkway or platform" which was adjacent to the refuse belt 

roller. He gained access to this platform area by climbing up 

four to five steps similar to "step ladder rungs," and he 

described the platform as an area 10 feet by 10 feet, with an 

enclosed railing around it. He stated that there was a safety 

chain in place across the opening at the top of the platform, and 

that he had to unclip it to walk on the platform (Tr. 18, 21). 

2575 
Mr. Pogue stated that he observed six spring mechanisms on 

the platform which were not stacked or set aside, and he 

described the springs as the approximate size of a basketball or 

volleyball (Tr. 19). Mr. Higginbotham confirmed that he also 

observed the springs, and he indicated that there was "grease and 

stuff all over the place" and that the springs were obstructing 

the walkway (Tr. 88). 

Mr. Pogue stated that after leaving the platform area, he 

proceeded to the floor below, and entered through a door on the 

side of the building to a walkway next to the counterweight where 

he found an accumulation of fine refuse material approximately 

24 inches deep and 24 inches in width in the walkway. He stated 

that "you had to kind of ·step over it in order to get on the back 

side of the top floor of this bin area" (Tr. 16). 

Mr. Higginbotham confirmed that he also observed the 

accumulations (Tr. 89). 

Cyprus' counsel did not dispute the existence of the cited 

materials observed by the inspector and Mr. Higginbotham at the 

four locations in question (Tr. 118). Mr. Pogue confirmed that 

he cited a violation of section 77.205(b) because it requires 

that walkways be kept free of stumbling or slipping hazards where 

men are required to work or travel (Tr. 20). He believed that 

the accumulations of refuse materials adjacent to the belt tail 

assembly and the hoses in the walkway constituted a stumbling and 

slipping hazards because one had to walk through the accumulations and step over the hoses while walking along the walkway 

(Tr. 21). He further believed that the springs on the platform 

could cause a tripping hazard to someone on the elevated 

platform, and that if the safety chain were not put back in place 

someone could possibly fall through the platform opening (Tr. 

21) • 

Although plant foreman Kerr's unrebutted credible testimony 

reflects that the top belt conveyor had been taken out of service 

in 1984, he confirmed that the bottom refuse belt is used continuously when the plant is in operation (Tr. 128). Mr. Kerr 

further confirmed that the hoses in question are used to wash 

down debris which collects under the belt, and that the belt is 

routinely washed down when the plant and belt are in operation 

(Tr. 139). Mr. Higginbotham, who testified that he had walked 

the belt on prior occasions, testified that the belt walkway is 

used by cleanup, maintenance, and inspection personnel, and 

Mr. Pogue agreed that this was the case (Tr. 16, 18, 93). 

Mr. Kerr conceded that cleaning and maintenance personnel used 

the belt walkway, and that he and other employees used it as an 

accessway to the bin building. 

With regard to the cited walkway area in the bin building, 

Mr. Pogue and Mr. Higginbotham believed that the walkway was used 

by maintenance and inspection personnel, and Mr. Kerr confirmed 

2576 
that the walkway provided an access way for maintenance personnel 

servicing the refuse belt, or for cleanup personnel washing down 

the area (Tr. 19, 94, 140-141). 

Findings and Conclusions 

Fact of Violation 

I conclude and find that three of the cited areas, namely, 

the refuse belt walkway where the inspector found the accumulated 

coal refuse materials, the walkway areas where the inspector 

found the two hoses strewn across the walkway, and the walkway in 

the refuse bin building where the inspector found accumulated 

coal refuse, were all travelway areas which provided access to 

areas where persons were required to travel and work, and were 

therefore areas which fall within the scope of section 77.205(b). 

I further conclude and find that MSHA has established by a 

preponderance of the evidence that the cited materials which were 

found in these travelways constituted extraneous materials which 

presented stumbling or slipping hazards, and that the failure by 

Cyprus to keep the cited areas clear of these materials constitutes a violation of section 77.205(b). Accordingly, insofar as 

these cited locations are concerned, the inspector's finding that 

a violation occurred IS AFFIRMED. 

With regard to the cited platform area in the refuse bin 

building, Cyprus argues that since the platform had not been in 

use since 1984, when the second belt was taken out of service, it 

does not fall within the purview of section 77.205(b), since no 

one is required to work on, or travel on, the platform (Tr. 124). 

With regard to the use of the platform, Mr. Higginbotham believed 

that it was probably used on a regular basis for maintenance and 

greasing of the belt, and for the servicing of a compressor 

located in the building (Tr. 94). Mr. Pogue believed that the 

platform would be used for routine examinations of equipment, and 

to provide a work platform for maintenance personnel (Tr. 19). 

However, Mr. Pogue could not recall the last time anyone may have 

been on the platform, and he confirmed that he made no inquiries 

of management as to where the springs came from, even though he 

knew that the plant foreman was in charge of the area and should 

have known where they came from, how long they were on the platform, and that a maintenance record may have given him such 

information (Tr. 65). When asked to explain why he made no 

further inquiries, Mr. Pogue stated that he relied on the presence of fine dust on the springs which he believed was "something 

that can give you that indication that it's been left to lay 

there" (Tr. 66). Mr. Pogue confirmed that the platform was 

equipped with a top railing, a middle railing, and a toe board, 

as well as a safety chain blocking off the platform access ladder 

(Tr. 55). 

2577 
Mr. Kerr, whose testimony I find more credible than that of 

Mr. Pogue and Mr. Higginbotham, testified that the platform was 

once used for the head drive of the filter cake refuse belt which 

had been taken out of service in 1984, and that the springs had 

been used for a mechanical belt wiper. Mr. Kerr knew of no 

reason why anyone would have a need to be on the platform, and he 

confirmed that there is no compressor in the building, as claimed 

by Mr. Higginbotham (Tr. 53, 159). Although there was a hydraulic unit in the building, Mr. Kerr stated that it was located at 

the lower level of the bin building, and that it was located in a 

room at the bin bottom (Tr. 160). He speculated that someone may 

have stored the springs on the platform, and he had no personal 

knowledge where the springs came from. He reiterated that the 

platform was not used to-service or maintain the belt which was 

in use (Tr. 164). 

After careful review and consideration of all of the evidence, I conclude and find that MSHA has failed to establish that 

the cited platform area constituted a walkway or platform area 

where persons were required to work and travel. To the contrary, 

Cyprus' evidence, which I find credible and probative, establishes that the cited area, which had previously been used as a 

means of ac~ess to equipment associated with one of the belts, 

has not been used since the belt was taken out of service in 

1984. Accordingly, I find that the platform in question does not 

fall within the purview of section 77.205(b), and that insofar as 

that particular location is concerned, a violation has not been 

established. That portion of the order which refers to this 

platform IS VACATED. 

The Unwarrantable Failure Issue 

The governing definition of unwarrantable failure was 

explained in Zeigler Coal Company, 7 IBMA 280 (1977), decided 

under the 1969 Act, and it held in pertinent part as follows at 

295-96: 

In light of the foregoing, we hold that an inspector should find that a violation of any mandatory 

standard was caused by an unwarrantable failure to 

comply with such standard if he determines that the 

operator involved has failed to abate the conditions or 

practices constituting such violation, conditions or 

practices the operator knew or should have known 

existed or which it failed to abate because of a lack 

of due diligence, or because of indifference or lack of 

reasonable care. 

In several recent decisions concerning the interpretation 

and application of the term "unwarrantable failure," the 

Commission further refined and explained this term, and concluded 

2578 
that it means "aggravated conduct, constituting more than ordinary negligence, by a mine operator in relation to a violation of 

the Act." Energy Mining Corporation, 9 FMSHRC 1997 (December 

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

1987); Secretary of Labor v. Rushton Mining Company, 10 FMSHRC 

249 (March 1988). Referring to its prior holding in the Emery 

Mining case, the Commission stated as follows in Youghiogheny & 

Ohio, at 9 FMSHRC 2010: 

We stated that whereas negligence is conduct that 

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

unwarrantable conduct is conduct that is described as 

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

unwarrantable failure by a mine operator as aggravated 

conduct constituting more that ordinary negligence, do 

unwarrantable failure sanctions assume their intended 

distinct place in the Act's enforcement scheme. 

In Emery Mining, the Commission explained the meaning of the 

phrase "unwarrantable failure" as follows :at 9 FMSHRC 2001: 

We first determine the ordinary meaning of the 

phrase "unwarrantable failure." "Unwarrantable" is 

defined as "not justifiable" or "inexcusable." 

"Failure" is defined as "neglect of an assigned, 

expected, or appropriate action." Webster's Third New 

International Dictionary (Unabridged) 2514, 814 (1971) 

("Webster's"). Comparatively, negligence is the 

failure to use such care as a reasonably prudent and 

careful person would use and is characterized by 

"inadvertence," "thoughtlessness," and "inattention." 

Black's Law Dictionary 930-31 (5th ed. 1979). Conduct 

that is not justifiable and inexcusable is the result 

of more than inadvertence, thoughtlessness, or 

inattention. * * * 

The issue here is whether or not Cyprus• failure to address 

the cited conditions constituted aggravated conduct exceeding 

ordinary negligence. Inspector Pogue testified that he based his 

"high negligence" finding on his belief that Cyprus should have 

taken some corrective action to prevent at least one of the cited 

conditions from existing because the condition was readily 

observable from the preparation plant (Tr. 25). When asked to 

explain the basis for his unwarrantable failure finding, 

Mr. Pogue stated as follows at (Tr. 25): 

A. Well, previously, to make an inspection of this 

area, I had inspected other areas of the surface 

facility and I had found that there was four other 

locations throughout the surface facility that had 

obstructions in walkways that could result in slipping 

or stumbling hazards. When I got to this location in 

2579 
the preparation plant and I could observe these 

accumulations adjacent to the belt and going up the 

belt conveyor system, it was just a condition that I 

felt that the operator should have been aware of, and 

that it's a highly traveled area and seemed to be that 

it was reasonable for a person that would be traveling 

through the area to observe the accumulations, at least 

in the preparation plant and then just be able to look 

up the conveyor and see the wash down hoses laying in 

the conveyor walkway. 

In support of Inspector Pogue's unwarrantable failure finding, MSHA argues that the cited accumulations at the bottom of 

the belt were readily observable from inside the preparation 

plant, and that the cited hoses were visually obvious from the 

bottom of the belt in the preparation plant. MSHA further argues 

that the cited conditions had existed for some length of time, 

that some of the conditions had existed for a protracted period 

of time, and that given the amount of accumulated materials, and 

the number of locations involved where significant stumbling 

hazards existed for some length of time with no apparent attempts 

to clean them up, the violation was serious and extensive. MSHA 

also relies on the fact that the inspector had previously issued 

other violations of section 77.205(b) several days prior to the 

issuance of the contested order, and it concludes that these 

prior citations indicates indifference to general cleanup 

activities in travelways, or a serious lack of reasonable care, 

and consequently, aggravated conduct. 

One critical factor in support of Inspector Pogue's unwarrantable failure finding, is his belief that some of the cited 

conditions were readily visible from the third floor of the 

preparation plant. The fact is that the only cited condition 

which may have conceivably been observable from Mr. Pogue's 

vantage point in the preparation plant itself was the accumulated 

refuse material at the lower end, or tail piece, of the conveyor 

belt (Tr. 38). Mr. Pogue conceded that the walkway location in 

the bin building where he observed the accumulated refuse were 

not observable from the preparation plant (Tr. 26). With regard 

to the two hoses which were scattered across the belt walkway, 

Mr. Pogue conceded that it was difficult to see the top of the 

conveyor belt walkway enclosure (Tr. 26). I find no credible 

evidence to support any conclusion that the second hose located 

at the upper inclined end of the belt walkway was observable from 

the preparation plant. With regard to the first hose located at 

the lower end of the walkway, Mr. Pogue believed that it would 

have been·observable from the "general area of the tail roller" 

looking up the belt from the preparation plant floor (Tr. 53, 

62) . 

Mr. Pogue•s further conclusion that it was reasonable to 

expect anyone to readily observe the refuse accumulations at the 

2580 
base of the conveyor belt, and the hoses located on the inclined 

portion of the belt walkway, was based on his opinion that these 

areas were "highly traveled." I find no credible evidence to 

support any such conclusion. Mr. Pogue made no apparent effort 

to speak to anyone concerning any work which may have taken place 

prior to the inspection, and he observed no one on the belt 

walkway, or in any of the other cited locations. Further, no 

testimony was forthcoming from the inspector with respect to any 

plant activities which may have been taking place during the 

inspection, and no testimony was forthcoming from the inspector 

to establish the presence of anyone on the third floor of the 

plant who may have observed the accumulations which Mr. Pogue 

said he saw from this location. Mr. Higginbotham, who was with 

Mr. Pogue, testified that while they were on the third floor of 

the plant, they stopped to rest, and while leaning on the handrail which was around the floor, they looked down and saw what 

Mr. Higginbotham characterized as "obvious spillage." 

Mr. Higginbotham conceded that had they not stopped to rest at 

that particular location, they would have had no reason to look 

over the rail, and that anyone simply walking by the area would 

not have seen the spillage "unless you actually looked down at 

it" (Tr. 90). 

At page 12 of her posthearing brief, MSHA's counsel asserts 

that the plant area where the cited accumulations were found "was 

an active area." In support of this conclusion, counsel cites 

transcript pages 11, 25, 38, 87-90. I have carefully reviewed 

these transcript references, and I find no testimony to support 

counsel's conclusions that the preparation plant was "active." 

The fact that the inspector was in the plant conducting an 

inspection does not necessarily establish that any active plant 

processing work was taking place at the time of the inspection. 

I assume counsel made this argument to support an inference that 

since the plant was active, someone would reasonably be expected 

to notice the accumulations. I reject any such notion. One 

reasonable method for an inspector to determine whether anyone in 

the plant was in a position to observe the accumulations is to 

seek out witnesses and ask questions. Relying on a casual observation made during a rest period while leaning over a hand rail 

is hardly credible evidence that management indulged in aggravated conduct because it should have observe the condition and 

failed to do so. 

The evidence in this case establishes that the plant and 

conveyor belt in question were shutdown at the time of the 

inspection, and that they had been shutdown for at least the week 

of August 26, 1988. Plant foreman Kerr and walkaround representative Higginbotham confirmed that this was the case, and 

Mr. Kerr testified that no one from his shift was assigned to the 

belt during the period of shutdown, and he confirmed that the 

onJy work that he was aware of was clean up work and work to 

abate several citations (Tr. 158-159, 165). 

2581 
Walkaround representative Higginbotham confirmed that he saw 

no one on the belt walkway at the time of the inspection, and 

that on the three to five prior occasions he has used the walkway, he could recall seeing no one on the walkway other than an 

inspector or management personnel (Tr. 107). He was of the 

opinion that the hoses were left on the walkway since the last 

time it was washed down, but he had no knowledge as to when they 

may have been last used for this purpose (Tr. 107). 

Mr. Pogue could not recall whether he had previously 

inspected the cited belt conveyor, and he confirmed that he saw 

no signs that anyone had been on the belt walkway recently, and 

that the belt was not running when he inspected it. Although he 

believed that he had checked to determine when the last monthly 

electrical inspections were performed, he did not do so "specifically for this area," and he could not recall when the last 

electrical inspection was conducted in the cited area (Tr. 47). 

Mr. Pogue confirmed that he observed no one using the belt walkway during his inspection and he saw no footprints in the accumulated refuse or dust. 

Plant foreman Kerr's unrebutted and credible testimony 

reflects that when the plant is in operation, the conveyor belt 

is not totally unattended, and that someone is required to .be 

there at some time over a 24-hour period (Tr. 152). Mr. Kerr 

conceded that cleanup and maintenance personnel are on the walkway, and that other employees, including himself, used the belt 

walkway occasionally as an access way to the plant or refuse bin 

building, and that he might use it once every 2 months. He 

denied that the walkway is heavily travelled, and indicated that 

it is only slightly used (Tr. 144, 147). Absent any evidence 

that Mr. Pogue had ever visited or inspected the belt in the 

past, and the fact that on the few occasions that 

Mr. Higginbotham was there and saw no one on the belt other than 

an inspector or management person, I give credence to Mr. Kerr's 

testimony and find little support for the inspector's belief that 

since the belt was heavily travelled, the conditions were readily 

observable and obvious, and therefore support a finding of 

aggravated conduct. 

Mr. Pogue confirmed that no management representative was 

with him when he conducted his inspection and observed the conditions.· He confirmed that when he issued the order, he found no 

"written record" or other evidence to establish that management 

had knowledge of the cited conditions prior to the issuance of 

the order {Tr. 61). Although I recognize the fact that such 

"hard evidence" may not be available, on the facts of this case, 

the inspector apparently made no effort to review any maintenance 

records, mine inspection reports, or to seek out any available 

plant personnel to determine when anyone may have been present 

2582 
using the hoses, cleaning up around the belt tail piece, etc. 

etc. 

After careful consideration of all of the testimony on this 

issue, I find no credible evidentiary support for MSHA's assertion that the cited accumulations at the belt tail piece, and the 

hoses on the walkway, were located in "heavily traveled" areas, 

and were "readily observable" by management. I further find and 

conclude that with respect to these factors, the evidence 

presented does not establish aggravated conduct by Cyprus. I 

take particular note of the following: When asked "what you're 

saying about the unwarrantable failure is that management should 

have known that it was there," Mr. Pogue responded "exactly" {Tr. 

60). In my view, negligence based on "should have known" is 

something less than high negligence, and does not amount to 

inexcusable or aggravated conduct. 

Mr. Pogue identified copies of four previous citations which 

he issued on August 26 and 29, 1988, during his inspection of the 

mine, and in each instance he cited violations of section 

77.205(b) (exhibits G-2 through G-5; Tr. 29-35). He confirmed 

that he issued the citations for tripping hazards, but that the 

areas cited where at different locations and in different buildings from the areas which he cited in the contested order {Tr. 

36) . 

Mr. Pogue confirmed that the prior citations on the slope 

belt occurred "a good distance away" from the preparation plant, 

and although he believed that Cyprus was responsible for them, he 

stated that Cyprus did not cause them, and that "there was contractors in there on some of them" performing work at the plant 

(Tr. 52). 

Mr. Pogue was asked about his prior deposition in January, 

1989, and his response to a question concerning the basis for his 

unwarrantable failure finding in this case. He confirmed that he 

stated that "I felt that because if the conditions on the walkway 

in relationship to the plant, that a foreman should have seen the 

condition being inside the plant" {Tr. 56). When asked whether 

he took into consideration the prior citations at the time he 

issued the order in this case, Mr. Pogue responded "to a degree, 

yes." However, he conceded that he did not mention these prior 

citations at the time he gave his deposition, and could not 

recall when he mentioned these citations to MSHA's counsel, but 

did not believe he mentioned them in preparation for the instant 

case {Tr. 57). Mr. Pogue confirmed that when he gave his deposition, he stated that the basis for the order was the fact that 

the cited condition could be observed by someone from management, 

"plus the amount of area that was covered" (Tr. 57). 

2583 
When asked what role the prior citations played in his 

unwarrantable failure finding at the;time he issued the order, 

Mr. Pogue responded as follows at (Tr. 67): 

THE WITNESS: Probably because of the fact that the 

management, there should be some effort on management 

to make a follow-up examination of the work area after 

a job is completed or in progress that gives workmen 

and even company officials a safe travel way in and 

around the surface area of the plant, and they know 

these areas that are under construction or maintenance 

is being performed in them. 

Mr. Pogue stated that at the time he issued the order, he 

recognized that the operator had a problem with the general clean 

up of work sites during and after routine maintenance (Tr. 72). 

He conceded that some of these problems were caused by contractors, and although he confirmed that he has cited contractors in 

the past, he did not cite them for the prior violations in question because the contractor was not at the mine and had left the 

job, and the obligation for the violations was on the operator 

(Tr. 72). 

Plant foreman Kerr confirmed that two of the prior citations 

were the result of a painting contractor's removal of certain 

materials from a building which was being sandblasted and 

painted, and that one of the citations concerned some material 

which was removed from an area where a counterweight was located 

so that access could be gained to the· counterweight while maintenance was being performed (Tr. 142-143). 

I take note of the fact that three of the tripping hazard 

violations previously issued by Inspector Pogue on August 26, 

1988, were all section 104(a) citations. Three days later, on 

August 29, 1988, he issued another tripping hazard violation, and 

it too was a section 104(a) citation. In each instance, the 

inspector made a finding of "moderate" negligence. In the 

instant case, MSHA asserts that the fact that four other locations were cited in such a short period of time indicates a lack 

of indifference by Cyprus to general cleanup activities in 

travelways, and constitutes aggravated conduct. 

In my view, if the basis for the inspector's unwarrantable 

finding with respect to the contested order was the fact that he 

had previously issued four citations for violations of the same 

standard shortly before the order was issued, then logic would 

dictate that he would follow the same procedure in connection 

with the issuance of the prior citations. The three section 

104(a) citations were issued by Mr. Pogue on August 26, 1989, for 

violations of section 77.205(b). Three days later, on August 29, 

1989, he found another violation of section 77.205(b), but 

instead of issuing an unwarrantable failure citation, he issued 

2584 
another section 104(a) citation, with a finding of moderate 

negligence. I find this to be rather contradictory and inconsistent, and it raises doubts in my mind that the prior citations 

weighed heavily on the inspector when he made his unwarrantable 

failure finding in this case. In any event, I cannot conclude 

that the prior citations which were issued for different conditions, and at different locations far removed from the scene of 

the conditions which prevailed at the time of the inspection on 

August 31, 1988, may serve to support a finding of aggravated 

conduct. In my view, in order to support an unwarrantable 

failure order, which is a severe sanction, an inspector must make 

an informed judgment, on a case-by-case basis, with respect to 

the prevailing conditions which he believes justifies such an 

order. On the facts of the instant case, I reject MSHA's 

attempts to justify the order on the basis of prior violations 

issued for the same standard. 

With regard to the time factor, Mr. Pogue was of the opinion 

that the cited conditions had existed for at least 5-work days 

prior to his inspection, and he based this on his observation of 

fine refuse dust deposited on the accumulated refuse materials 

along the belt walkway. The existence of this fine dust led him 

to conclude that the conveyor had been running and "this material 

had been left deposited in the walkway and on the platform for a 

period of time" (Tr. 28). 

Mr. Higginbotham was of the opinion that the coal refuse 

accumulations at the belt tail had been there for "a lengthy 

period of time," "days," "roughly a week," because the area was 

dusty (Tr. 99). He conceded that refuse dust does accumulate on 

the belt, but indicated that the belt is required to be cleaned 

when it gets dirty and that accumulations are not permitted. 

Since the hoses were also covered with dust, he believed they 

were left in the walkway for "at least" or "probably a week to 

two weeks" (Tr. 101). With regard to the accumulations in the 

bin building, he stated that the belt is not used every day or 

regularly, but "probably weekly," but he did not know for certain 

(Tr. 103) . 

MSHA's assertion that the cited accumulations presented 

extensive and significant obstructions must be taken in context. 

The accumulations of refuse materials at the tail piece of the 

refuse belt extended a distance of approximately 10 to 15 feet 

along a belt line which was approximately 232 feet long, and the 

accumulations on the walkway in the bin building were described 

by Inspector Pogue as 24 inches deep and 24 inches wide. 

Mr. Higginbotham stated that they extended for a distance of 

2-1/2 feet, 6 inches longer than Mr. Pogue's estimate. Since 

Mr. Pogue indicated that "you had to kind of step over it," I can 

only conclude that the pile was as described by the inspector, 

and that the accumulations did not extend along the entire length 

of the walkway. 

2585 
With regard to the hoses, Mr. Higginbotham stated that he 

stepped on top of the hoses to pass through the area, and 

although he believed that a fall or slip were unavoidable, 

neither he or Mr. Pogue expressed any difficulty in passing 

through the area where the hoses were located. With regard to 

the accumulations at the belt tail, Mr. Pogue stated that he had 

to walk through the materials and over the larger coal and slate 

and Mr. Higginbotham indicated that the larger pieces were 

"scattered_throughout the walkway." 

After careful consideration of all of the evidence in this 

case, I find no credible evidence to establish that the cited 

accumulated materials in· question had existed for any inordinate 

period of time. Inspector Pogue had never previously visited the 

belt area in question, and his reliance on the existence of dust 

on the accumulations in support of his conclusion that the 

materials had been present for at least a week is speculative at 

best. Had he made further inquiry, rather than relying on a 

rather cursory inspection of the belt areas, he may have found 

more probative evidence to support a conclusion of aggravated 

conduct. As for Mr. Higginbotham's testimony, I find it vague 

and lacking in probative weight. He believed the accumulations 

on the belt walkways were there "probably" or "roughly" for a 

"lengthy" period of "days" or "weeks" simply because they were 

dusty. As for the accumulations in the bin building, he had no 

idea as to how often the belt was used which would have caused 

these accumulations, and I find his testimony to be speculative 

and unsupported by any facts. 

On the basis of the' foregoing findings and conclusions, I 

conclude and find that the evidence advanced by MSHA in support 

of the inspector's unwarrantable failure finding does not establish that the failure by Cyprus to act was inexcusable or constituted aggravated conduct within the guidelines established by 

the Commission's line of cases with regard to this issue. 

Accordingly, the inspector's finding in this regard IS VACATED, 

and the contested order is modified to a section 104(a) citation. 

Significant and Substantial Violation 

A "significant and substantial" violation is described in 

section 104(d) (1) of the Mine Act as a violation "of such nature 

as could significantly and substantially contribute to the cause 

and effect of a coal or other mine safety or health hazard." 

30 C.F.R. § 814(d) (1). A violation is properly designated 

significant and substantial "if, based upon the particular facts 

surrounding the violation there exists a 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). 

2586 
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). 

Inspector Pogue believed that the accumulated coal refuse on 

the walkways, and the hoses scattered across the two walkway 

locations in question, constituted a significant and substantial 

violation because anyone walking through those areas would be 

exposed to a tripping or slipping hazard. In the event of such 

an incident, he believed that the individual would suffer bumps, 

bruises, a broken arm, or twisted back (Tr. 22). He further 

believed that it was reasonably likely to expect that mine 

personnel, such as a belt examiner or maintenance person, who may 

be walking along the walkways would slip or fall over the accumulated materials, and that the potential for an injury would 

increase if the individual were carrying equipment or tools (Tr. 

23). He confirmed that at least one person, the examiner or 

maintenance person, would be exposed to the hazard (Tr. 38). 

Mr. Higginbotham believed that the cited accumulated materials presented a tripping or falling hazard, particularly with 

respect to the belt walkway because it was inclined. He confirmed that he stepped on top of a portion of the hoses, and 

while he did not fall, he nonetheless believed that a fall was 

"highly likely" and "almost unavoidable." In the event of a slip 

2587 
or fall, he believed that someone could "definitely break an 

arm," and his principal concern for anyone walking through the 

hoses and accumulated coal refuse materials on the inclined belt 

was "your feet going out from under you" (Tr. 91-92). 

Cyprus argues that the accumulated materials did not present 

a significant and substantial hazard because the walkways were 

not highly travelled, and that any hazard exposure would be 

limited by the fact that the belt was not in operation and there 

was little or no likelihood of injury. Cyprus argues further 

that there is no testimony that the materials presented stumbling 

or slipping hazards, and that the hoses were easily compressed 

when stepped on, and that Mr. Monas testified that they presented 

no stumbling hazard unless they were in a pile. Cyprus argues 

further that there was adequate lighting and visibility along the 

refuse belt walkway, and that lacking any credible evidence as to 

how long the materials had existed, a significant and substantial 

finding is inappropriate. 

Cyprus' assertion that there is no testimony of any 

stumbling or slipping hazards is not well taken. Inspector Pogue 

and Mr. Higginbotham personally observed the accumulated materials and gave credible testimony as to the existence of these 

hazards. The fact that they did not fall or slip while walking 

through and over the materials is irrelevant. They obviously 

took care while walking through the area, but the same may not be 

the case for anyone else casually walking along the cited travelways in question. 

While it is true that the refuse belt and plant were down at 

the time of the inspection, plant foreman Kerr admitted that 

during the course of normal operations, the belt is never left 

unattended, and that someone is always present during any 24-hour 

period. Further, the evidence establishes that cleanup or maintenance personnel have occasion to walk the cited areas, and the 

fact that there was another access route to the bin building is 

immaterial. Mr. Kerr confirmed that the cited refuse belt walkway was used as an accessway to and from the plant and bin building, and that he used this route on occasion. The opinion by 

Mr. Monas that the hoses would present a tripping hazard only if 

they were piled up, rather than scattered, is rejected. In my 

view, if the hoses were piled neatly at one location on the 

walkway, they may pose less of a hazard since someone could 

simply walk around the pile. However, since they were scattered 

and "criss-crossed" on the walkway, I believe the hazard of 

slipping or falling over them was increased. 

The fact that there was no immediate hazard because the belt 

was not in operation at the time of the inspection, and the fact 

that Mr. Pogue and Mr. Higginbotham did not slip or fall while 

2588 
walking through and stepping over the cited material is irrelevant to any determination of a significant and substantial violation. See: Consolidation Coal Company, 6 FMSHRC. 34, 37 (January 

1984); U.S. Steel Mining Company, Inc., 6 FMSHRC 1369, 1376 (May 

1984); RB J Coal Company, Inc., 8 FMSHRC 819, 820 (May 1986); 

Mathies Coal Company, 6 FMSHRC 1 (January 1984). In Halfway 

Incorporated, 8 FMSHRC 8, 13 (January 1986),·the Commission 

upheld a significant and substantial finding concerning a roof 

area which had not been supported with supplemental support, and 

ruled that a reasonable likelihood of injury existed despite the 

fact that miners were not directly exposed to the hazard at the 

precise moment of the inspection. In that case, the Commission 

stated as follows at 8 FMSHRC 12: 

[T]he fact that a miner may not be directly exposed to 

a safety hazard at the precise moment that an inspector 

issues a citation is not determinative of whether a 

reasonable likelihood for injury existed. The operative time frame for making that determination must take 

into account not only the pendency of the violative 

condition prior to the citation, but also continued 

normal mining operations. National Gypsum, supra, 

3 FMSHRC at 825; U.S. Steel Mining Co., Inc., 6 FMSHRC 

1573, 1574 (July 1984). 

After careful consideration of all of the testimony and 

evidence adduced in this case, I agree with the inspector's 

significant and substantial finding. I conclude and find that 

the cited accumulated materials at all three of the cited locations in question posed a discrete stumbling or slipping hazard, 

and that the hazards contributed to by these conditions would 

likely result in an injury of a reasonably serious nature. . 

Accordingly, the inspector's significant and substantial finding 

IS AFFIRMED. 

After consideration of the six statutory.criteria found in 

section llO(i) of the Act, I further conclude and find that the 

violation was serious, that it resulted from ordinary negligence, 

and that the conditions were subsequently abated in good faith by 

Cyprus. 

Docket Nos. PENN 89-45-R and PENN 88-325-R 

These proceedings concern a contested section 104{a) citation and section 107(a) imminent danger order issued on 

August 30, 1988, by MSHA Inspector Joseph Koscho. during.an 

inspection of Cyprus' surface coal preparation plant. The facts 

establish that after the coal is cleaned and processed through 

the preparation plant, it is transported by overhead belts for 

storage at the No. 1 and No. 2 stackers, which are tall cylindrical buildings surrounded by coal stockpiles. The transported 

coal is dropped into the top of the stackers, and when it reaches 

2589 
a certain level it is deposited onto a stockpile through openings 

located on all sides of the stacker levels. Coal is removed from 

the stockpiles by a series of feeders, designated A through F, 

located under the stockpiles. In order to remove the coal by 

these feeders, coal must be above the feeders or within an area 

close enough to the feeders to permit gravity to bring it to the 

feeders. The stockpiled coal which is fed through the feeders 

drops onto a belt system in an underground tunnel below the 

stackers and feeders, and it is transported away to be loaded 

onto trains. 

Cyprus utilizes bulldozers to push the stockpiled coal 

toward the feeders and to compact and arrange the stockpile. 

During the course of his inspection, Mr. Koscho, in the company 

of UMWA safety representative Greg Shuba, and preparation plant 

foreman Ronald Kerr, were walking on an overhead belt catwalk 

between the No. 1 and No. 2 stackers. Although there were no 

bulldozers operating on the stockpile at the time, the inspector 

looked down and observed bulldozer tracks in the coal pile in 

close proximity to the points that he believed would be directly 

over the B and E feeders. The inspector observed what he 

believed to be a depression in the coal where coal had been 

feeding into the B feeder, and he estimated that the bulldozer 

tracks were within 3 to 4 feet of the hole. The inspector also 

observed bulldozer tracks and blade marks in close proximity to 

the E feeder, and he concluded that these track and blade marks 

.showed that a bulldozer had reached across with its blade and run 

backwards to smooth over the coal pile in front of the dozer. He 

estimated the blade marks of the dozer to be 7 feet on the other 

side of a depression over the E feeder, and he concluded that the 

dozer had to have been over top of the feeder to be able to reach 

this point. 

After viewing the aforementioned tracks from· the catwalk, 

Mr. Koscho and Mr. Shuba came off the catwalk and walked onto the 

coal pile to verify their observations. Mr. Kerr did not accompany them onto the pile, and left the area on another matter. 

After viewing the tracks from where he believed was a safe distance, Mr. Koscho concluded that the tracks were no more than 

3 days old, and he was concerned that bulldozers were operating 

in too close proximity to the feeders during the stockpiling and 

reclaiming operations, and that the bulldozer operators were at 

risk of becoming entrapped in the holes or voids in the coal 

pile. Based on his observations of the track and blade marks in 

the coal pile, Mr. Koscho issued an "S&S" citation for an alleged 

violation of mandatory safety standard 20 c.F.R. § 77.209, and in 

conjunction with that citation, he also issued an imminent danger 

order citing Cyprus for operating bulldozers over feeders, or too 

close to feeders. The section 104(a) Citation No. 3087308, 

issued by Mr. Koscho states as follows: 

2590 
From evidence of the visual observation in the area of 

the feeder, in the area of the No. 2 stacker, showed 

equipment is coming in too close of a proximity of the 

feeder. The evidence at the B feeder at the No. 2 

stacker showed dozer tracks went over the feeder or too 

close to the feeder to be a safe distance back from the 

angle of repose at the feeder. At the No. 2 stacker 

E feeder a dozer reached across the reclaim area above 

the feeder for a distance of 7 feet and then set the 

dozer blade.down to drag back the blade, making a 

smooth surface. In doing this he had to reach over the 

angle of repose at the E feeder. 

The section 107(a) imminent danger Order No. 3087309, issued 

by Mr. Koscho states as follows: 

This is an order to prevent persons from exposing 

themselves to the type of dangers evident by visual 

observation in the area of the No. 2 stacker feeders. 

Equipment is being operated too close or over the 

feeders. Tracks over the B feeder shows that either 

the equipment runs over the feeder or comes too close 

to the feeder in that the tracks go into the arigle of 

repose. On the E feeder of the No. 2 stacker the 

evidence shows that the push blade of a dozer was 

7 feet to the opposite side of the feeder, set down on 

coal and was dragged back for a smooth surface. The 

equipment had to be on top of the feeder to be able to 

reach this point. The operator of equipment shall be 

instructed by management and a representative of MSHA 

to watch the operation before work is to be resumed at 

the No. 2 stacker. Cit. No. 3087309 was also issued. 

MSHA's Testimony and Evidence 

MSHA Inspector Joseph Koscho confirmed that he conducted an 

inspection at the mine on August 30, 1988, and that he issued 

section 104(a) Citation No. 2087308, and section 107(a) imminent 

danger Order No. 3087309, in conjunction with the citation 

(exhibits G-1 and G-2). Union Safety Representative Greg Shuba, 

and mine management representative Doug Kerr accompanied him 

during the inspection. Mr. Koscho stated that he walked up one 

of the belts above the coal stockpile, and looking out from a 

window which overlooks the west side of the stockpile he observed 

bulldozer tracks in close proximity to the feeders, particularly 

feeders No. B and E. He came down from the belt and walked up on 

the stockpile to look at the tracks which he had observed from 

the belt. He observed tracks "too close in the vicinity of the 

B feeder." The tracks were located within 3 to 4 feet from a 

depression where the coal had been feeding into the feeder, and 

the tracks were "right along side of it. Too close for safety" 

(Tr • 1 7 - 2 2 ) . 

2591 
Mr. Koscho stated that he also observed tracks near the 

E feeder where there was a depression approximately 3-1/2 to 

4 feet in diameter and 2 feet deep where the dozer had reached 

across with its 7 to 8 foot long blade, and then backed up 

smoothing out the depression in the pile. He believed that the 

dozer had reached across the depression, and the dozer tracks 

were up to the depression. Mr. Koscho confirmed that the feeders 

were not in operation at the time of his inspection, and that no 

coal reclaiming work was taking place at the stockpile area (Tr. 

23) • 

Mr. Koscho stated that he issued the order "because there is 

a very strong likelihood" that someone could fall into the 

depression and be covered by the coal even though he would be 

sitting in a dozer, and "that there could be imminent danger" 

(Tr. 24). He was concerned that someone could suffocate if he 

fell into a void or hole in the stockpile, and that the fact that 

he would be in the equipment cab would make no difference because 

the cab glass around the operator could be pushed in and the 

operator would be unable to get out of the cab because the coal 

would block the doors. 

Mr. Koscho stated that a void can be created by the feeders 

feeding coal onto the belt, and that the resulting hole under the 

surf ace of the coal pile would not be observable because the 

surf ace of the coal would be intact above the area of the hole 

(Tr. 25) • 

Mr. Koscho stated that he had previously issued a section 

104(a) citation on August 23, 1988, citing a violation of section 

77.209. He explained that he investigated an incident where a 

bulldozer had slid into a void created by a feeder while it was 

reclaiming coal. The dozer was evidently operating too close to 

the edge of the feeder and it had to be pulled out, and the dozer 

operator used a radio which was in the cab to summon help (Tr. 

26) • 

Mr. Koscho stated that there is no way for anyone to determine whether a void is present over the feeders that are feeding 

coal into the reclaim belt, and that a void may occur at any 

time. Since the coal on the stockpile is compacted, a crest 

could form over the feeders, and one would be unaware of any 

voids created between the feeders and the surf ace of the coal 

pile (Tr. 27). 

Mr. Koscho estimated the height of the coal stockpile as 

approximately 60 feet, and he stated that a chain which is normally in place to indicate the height of the coal pile was not in 

place, and that the coal was half-way up the side of the stacker. 

He stated that the height of the coal pile would affect the 

2592 
likelihood of an accident, and the higher the pile of coal present, the wider the hole would be (Tr. 29). 

Mr. Koscho confirmed that he had no knowledge as to the 

number of dozers which may have been previously operating on the 

pile, and no one was on the pile at the time of the inspection. 

He also confirmed that he had no knowledge whether any dozers 

were operating on the pile while the feeders were in operation, 

but that this made no difference "because a void could exist at 

any time" and "when these bulldozers go up on this pile, that 

void could be there without them even knowing about it." He also 

believed that voids could be present even if the feeders are not 

operating because "they could have been pulled out previously" 

(Tr. 29-30). 

Mr. Koscho confirmed that he had no knowledge when the 

tracks he observed were made, or when the dozers last operated on 

the pile, but he was of the opinion that the tracks were made 

"within the last two or three days" because they were "more 

pronounced and acute" (Tr. 34). 

Mr. Koscho stated that dozers would be on the pile to level 

out and spread the coal so that more coal can be stocked on the 

pile after it feeds out of the stackers. He had no way of knowing whether the dozers were recovering coal through the feeder or 

just spreading it out (Tr. 35). He believed that the pile around 

the No. 2 stacker was used every week, but did not know how often 

during the week it was in operation (Tr. 36). 

Mr. Koscho stated that he cited a violation of section 

77.209, because "its the only thing we have to cover this." He 

explained that even though section 77.209, addresses people 

walking or standing on a reclaim pile, anyone in a piece of 

equipment "is just as open to that danger as a man standing on 

it" (Tr. 37). He confirmed that the "reclaiming area" includes 

the feeders, stockpile, and the area where the coal is being 

stocked and reclaimed (Tr. 39). 

Mr. Koscho stated that the previous violation he issued was 

a section 104(a) citation rather than an imminent danger order 

because it was terminated within 5 minutes and he determined that 

management had instructed the dozer operator. However, when he 

observed the dozer tracks on August 30, he believed that the 

dozer operators were not following instructions and that mine 

management was responsible for seeing to it that the job was 

being done "to save their lives" (Tr. 46). 

Mr. Koscho stated that he considered citation No. 3087308 to 

be "S&S" because "its a serious proposition" (Tr. 47). He 

believed there was a danger of suffocation if the equipment 

operator fell into a void, and "it would be a lost life." He 

2593 
believed this "could happen at any time, whenever the equipment 

would be put back on the stockpile" (Tr. 48). 

On cross-examination, Mr. Koscho explained the modifications 

which were made with respect to Citation No. 3087308 (Tr. 48-52). 

He confirmed that the imminent danger order was terminated after 

a meeting was held with all of the equipment operators who were 

present and they were instructed to stay a "safe distance" from 

the feeders (Tr. 51, 54). 

Mr. Koscho stated that while he was on the pile observing 

the area around the B feeder, he stayed a "safe distance" away 

from the feeder, and that he stood back further than 20 feet, but 

could not recall the exact distance. He could not recall how far 

away from the E feeder he was standing, but that it was "a safe 

distance." He confirmed that he did not measure the 7 or 8 foot 

distance over the cited feeder, but was close enough to estimate 

that distance (Tr. 53). 

Mr. Koscho confirmed that when he walked on the stockpile, 

he did not notify anyone that he was there because a management 

supervisor was with him. He also confirmed that he did not have 

a self-rescuer with him, was not attached to a life line, and he 

could not determine whether any voids were present on the pile. 

He stated that "I was in an area where I felt there wouldn't be a 

void," and conceded that he did nothing to check whether any 

voids were present over the feeders because "there's no way for 

us to know if there was voids" (Tr. 56). 

Mr. Koscho confirmed that the locations of the feeders are 

marked, and that if anyone was operating in the area and observed 

no changes in the surface of the coal, he would know there was a 

problem with a void over the feeder (Tr. 56) . He confirmed that 

he observed small depressions over the B and E feeders and therefore knew where the feeders were located. The tracks he observed 

were in the vicinity of both feeders, and the tracks at the B 

feeder were within 2 feet of the void (Tr. 57). He confirmed 

that the prior citation concerned the dozer which was too close 

to the C feeder while pushing coal into the A feeder, and it 

slipped into the C feeder (Tr. 58). He confirmed that the prior 

citation was based on a condition which he did not observe, and 

that he based the citation on what someone told him, and a statement by the dozer operator that he had made a mistake which 

caused the problem (Tr. 60). 

Mr. Koscho confirmed that when he issued the contested 

citation and order in this case he did not know when the feeders 

were last operated, or whether mine management had observed 

dozers operating on the cited stockpile (Tr. 60). He stated that 

he made no effort to determine who had operated on the pile in 

question (Tr. 62). He also confirmed that no one was in danger 

when he issued the order, that he cited what he perceived to be a 

2594 
practice of pushing coal too close to the feeder, and that it was 

a "practice that seems to exist" (Tr. 62). 

Mr. Koscho confirmed that he did not recall the prior citation at the time he gave his deposition on January 26, 1989, in 

this case "but it may have been in my mind at the time that I 

issued the order" (Tr. 63). He confirmed that when he gave his 

deposition he stated that he did not know whether the cited 

conditions in this case was an "isolated occurrence" because he 

did not remember his prior citation (Tr. 65). He believed that 

two occurrences or violations of section 77.209, "does become a 

practice" (Tr. 66). He explained further as follows at (Tr. 

67-68): 

Q. So apparently, as you were testifying earlier, that 

instruction apparently didn't work, that somebody 

wasn't paying attention? 

A. Well, somebody hadn't paid attention. 

Q. You don't know 

A. According to what I saw. 

Q. You don't know whether it was somebody in management or somebody in the hourly workers? 

A. There's no way for me to know. 

Q. I take it you don't know whether it's one 

particular individual who did it, or two or six. You 

just don't know? 

A. There was nobody working at the time. I wouldn't 

know. 

Q. So you really don't know whether it's some hourly 

employee who took it upon himself to do this and 

figured he could get away with it on this one time, or 

whether it was actually a practice? 

A. To answer you, from experience, it seems to me that 

it's management's responsibility to see that it is done 

properly, and that's the basis that I was using. 

Q. So you were -- regardless of whether or not it was 

somebody who was violating management's instructions, 

you said management is responsible so I'll issue the 

citation and the Imminent Danger Order? 

A. Yes. 

2595 
Q. You didn't know whether it was somebody in management who was violating the instructions, someone in the 

hourly work force. You just didn't know that when you 

issued your order, isn't that correct? 

A. I wouldn't know. 

Mr. Koscho stated that during a meeting held after the order 

was issued and terminated, Cyprus' vice-president and general 

manager Lamar Samples told the assembled employees that "if he 

caught anyone doing this again he would fire them" (Tr. 71). 

Mr. Koscho stated that a void hazard would exist all the 

time, regardless of whether the feeders were operating. He 

conceded that when the feeders are shut off the depressions can 

be filled up with the ongoing movement of the coal out of the 

pile and into the feeders and that a firm working coal surface 

would be established. However, he stated "that don't mean it 

would fill completely up," and that even though one would know 

that the coal was going down into the feeder, "it could block 

itself off by pushing coal down in there" (Tr. 72). 

When asked whether he issued the order to get management's 

attention because of the previously cited condition a week 

earlier, Mr. Koscho replied "I wouldn't say yes, but it sounds 

good" (Tr. 72). He confirmed that when he issued the order the 

prior citation "wasn't even in my mind probably. Probably not" 

(Tr. 74). 

Mr. Koscho stated that when he issued the order he did not 

check any dozers to determine whether they were equipped with 

self-rescuers or operative radios. Although the dozers are 

usually equipped with cabs and safety glass, he did not check 

them at the time he issued the order (Tr. 75). 

Mr. Koscho stated that an equipment operator who fell into a 

void while in a dozer would have time to be rescued while using a 

self-rescuer, assuming that the cab is not crushed, but that 

anyone falling into the void while walking or standing on the 

pile would not have this option (Tr. 75-76). 

Mr. Koscho stated that if someone were to be walking in the 

stockpile area where he walked, or if a dozer were operating 

there, it would be safe. He agreed that there was a "safe area" 

on the pile, and if a feeder were operating and the coal above it 

were to run down in a conical shape, there would be a need to get 

more coal around the feeder, and that this is normally done by 

pushing coal to the feeder. He confirmed that this method is not 

unique to the Emerald Mine and that other mines have similar coal 

feeder systems (Tr. 78). 

2596 
Mr. Koscho conceded that the only information he had to 

support his belief that dozers were operating too close to the 

feeders is the tracks in the coal (Tr. 79). He confirmed that he 

had inspected the dozers in the past, and he identified them as 

D-9 caterpillars equipped with safety-glass cabs with no wiremesh in the glass (Tr. 81). Although he was not aware of other 

surface mine facilities in his district that use a stacker feeder 

system, he was aware that this system is used at other mines (Tr. 

82) . 

Greg T. Shuba, mobile equipment operator, and member of the 

mine safety committee, confirmed that he accompanied Inspector 

Koscho during his inspection of August 30, 1988. He confirmed 

that he observed the dozer tracks testified to by the inspector. 

With regard to the tracks at the B feeder, Mr. Shuba stated that 

part of the track impressions on the ground was broken away from 

the coal that had gone into the feeder, and that this indicated 

to him that someone was either directly over or too close to the 

feeder. He also agreed with the inspector's testimony concerning 

the dozer blade marks over the E feeder and he believed that the 

dozer had been over the feeder and "back-dragged" to smooth over 

the ground in front of the dozer (Tr. 89-92). 

Mr. Shuba estimated the height of the coal stockpile as 

70 feet. He confirmed that he has operated a dozer on the stockpile "on and off" since February, 1989. He also confirmed that 

he operated a dozer on the pile prior to the time of the inspection, but could not state when. He believed it would have been 

"months" before the inspection (Tr. 93). 

Mr. Shuba stated that a dozer would be operating on the 

stockpile to reclaim coal or to stockpile it. Reclaiming consists of pushing the coal to the feeders to load the train, and 

this would be done when the feeders are operating. Stockpiling 

the coal, or pushing it on the pile or spreading out the pile, 

would be done while the feeders were not operating (Tr. 93-94). 

Mr. Shuba stated that he has never crossed over a feeder 

while operating a dozer on the pile, but other operators have 

told him that 11 there were times" when they crossed the feeders, 

and that this would have been prior to August 30, 1988 (Tr. 94). 

Mr. Shuba stated that the stockpile reclaiming system is designed 

poorly, and that an operator can either get over a feeder or 

"literally destroy the machine" because of the restricted equipment turning area while attempting to push coal with the dozer 

blade. He stated that some operators may cross over feeders or 

operate over them because its easier to get behind the coal and 

push it in a straight line. He identified feeders C and D as the 

problem areas (Tr. 94-95). He stated that the problem with the 

cited B and E feeder areas was "the possibility of a void" (Tr. 

96). He believed that the "probable" reason for operators to 

cross over the B and E feeders would be "to get from one side to 

2597 
the other"·{Tr. 96). He believed that the feeder system in 

question has been in effect for "a couple of years" (Tr. 97). 

Mr. Shuba explained the operation of the feeder system, and 

he was of the opinion that "we are creating our own hazards by 

expanding the piles the way we are." He stated that there have 

been "a couple of close calls" where dozer operators have gone by 

areas where it has given in and that the front part of a dozer 

would start down in but they were able to get back out before 

anything materialized (Tr. 99). 

Mr. Shuba confirmed that mine management has instructed 

equipment operators not to operate directly over feeders and that 

the instructions were also probably given prior to August 30, 

1988. Mr. Shuba believed that management had reason to know that 

people were working over the feeders because the plant superintendent's office is directly below the piles, and the office has 

two windows where he can see out to the piles, and that "it 

doesn't take an expert to drive by in a pick-up truck and see 

which way a dozer is pushing" (Tr. 101). 

Mr. Shuba confirmed that he has been instructed by management about the "safety zone" around the top of the feeders where 

one could safely operate, and he explained that a 65 degree angle 

of repose for the coal was the "safety zone." He also confirmed 

that a diagram explaining this safety zone was posted in each 

machine that operated on the pile, and he identified the diagram 

as exhibit G-4, (Tr. 103). He stated that for a 60 foot coal 

pile, the safety zone would be 32 feet away from the center of 

the feeder, or a radius of 64 four feet (Tr. 104). He confirmed 

that the stockpile at the number 2 stacker covered six feeders 

(Tr. 107). 

On cross-examination, Mr. Shuba stated that the feeder 

operator has a radio to communicate with the equipment operators 

but conditions change momentarily and its difficult to maintain 

communications (Tr. 109-110). Mr. Shuba did not believe that he 

was in an unsafe position while on the pile with the inspector, 

and as long as he is not within the angle of repose he would not 

be in a hazardous area (Tr. 112). 

Mr. Shuba stated that he had discussed the matter concerning 

the feeders with management as early as November 16, 1987, and 

that management's instructions that dozer operators were not to 

operate close to the feeders began at this time (Tr. 113). He 

confirmed that the angle of repose could change depending on the 

coal compaction, and that it was a guideline established by MSHA 

(Tr. 114) • · 

Mr. Shuba confirmed that the biggest problem arises when 

coal is being stockpiled because the coal is stacked next to the 

stacker, and one has to get directly over the feeders to get 

2598 
behind the coal to push it (Tr. 120, 122). He stated that while 

management has given instructions to equipment operators not to 

operate close to or over the feeders, it has been unable to tell 

the operators how to push the coal and stay within the law (Tr. 

123) . 

Dr. Kelvin K. Wu, Chief, Mine Waste and Geo-Technical 

Division, MSHA, testified as to his background and experience, 

and he confirmed that he is a registered professional mining 

engineer, holds a PHD degree from the University of Wisconsin, 

and is an adjunct professor at the University of Pennsylvania 

(Tr. 127). Dr. Wu confirmed that he was familiar with the mine 

surface facility in question, and that in November, 1987, he was 

requested by MSHA's district office to make site visits and work 

with company personnel to try to come up with some safe operating 

procedures. He confirmed that he visited the site and observed 

the loading process. He identified exhibit G-5, as the field 

investigation report and recommendation he prepared. He stated 

that he made one site inspection on November 24, 1987, and 

believed he made a second visit, but was not sure (Tr. 129). 

Dr. Wu explained his recommendations, including the establishment of a 65 degree angle of repose for the coal stockpile. 

The diagram used as a guide for the equipment operators was 

prepared by a company engineer, and it was based on his 

recommendations (Tr. 129-133). 

Dr. Wu stated that he was concerned about voids that are not 

visually detectable from the surface (Tr. 134). He confirmed 

that his interpretation of the conditions cited in the citation 

and order describing the equipment tracks as being "too close'' to 

the B feeder indicates to him that they were over and "right on 

top of the feeders." With regard to the E feeder, he agreed with 

the testimony that the dozer reached out over the feeder and then 

backing up to level out the coal (Tr. 137-138). 

On cross-examination, Dr. Wu confirmed that the angle of 

repose was established in consultation with mine management who 

agreed that it was reasonable. He also confirmed that the coal 

was not tested because everyone observed the operation during his 

inspection, and he explained how the angle of repose was established (Tr. 140-142). He confirmed that the 65 degree angle of 

repose was based on a fatality which had occurred at the 

Loveridge Mine in 1985 where five individuals were fatally 

injured while walking on a coal stockpile. Although this accident involved people walking on a stockpile, there is no difference in the hazard simply because it concerns operators who 

are in a dozer (Tr. 143). 

Dr. Wu confirmed that he was familiar with section 77.209, 

and notwithstanding the fact that it only refers to persons 

walking or standing on a stockpile, he believed that the intent 

2599 
of the standard is to address the hazard exposure to a person on 

the pile, regardless of whether he is on foot or in a piece of 

equipment (Tr. 144-145). He also confirmed that the feeder 

system in use at the mine is not unique or unusual. If the 

feeders are not operating, one may need to fill any depressions 

over the feeders during the stockpiling process, but there is no 

guarantee that voids are not present. If there is any blockage 

while the feeders are closed, voids could develop (Tr. 145-149). 

Dr. Wu agreed that it was necessary for a bulldozer to 

operate on top of a coal stockpile in order to push the coal into 

the feeders. When there is a 65 degree angle of repose and the 

coal is flowing freely into the feeder, any coal beyond the angle 

of repose would not feed into the feeder and the bulldozer must 

push the coal into the hole (Tr. 150). In this situation, there 

would be no need for anyone to be on the pile on foot. There is 

a need for bulldozers on the pile in order to spread or push the 

coal to the storage area and to maintain the volume of coal (Tr. 

152). He confirmed that a standardized angle of repose cannot be 

applied "across the board" to all surface stacker feeder systems 

because of the variety of differences in the loading process, 

materials stockpiles, and the equipment used in the process (Tr. 

153-154). 

MSHA Supervisory Inspector Robert W. Newhouse, testified to 

his experience and training, and he confirmed that he is a certified mine foreman, and has an associate•s degree in mining from 

Penn State University (Tr. 157). He confirmed that he is 

Mr. Koscho's supervisor and that he discussed the citation and 

order with him when they were issued. Mr. Newhouse also confirmed that in November, 1987, he visited the mine and observed 

the feeder operation after receiving information which raised 

questions about the feeder operating procedures and practices. 

He stated that he learned that dozers had been travelling over 

the feeders at some point through conversations with dozer operators, and plant superintendent Thurman Phillips. Mr. Newhouse 

confirmed that he never personally observed any dozers operating 

over the feeders (Tr. 158). 

Mr. Newhouse was of the opinion that the condition described 

in the citation and order constitute violations of section 

77.209, because the standard is designed to protect persons on 

stockpiles during reclaiming operations, and the standard states 

that it is "to protect people from being in an endangered area on 

those piles" (Tr. 159). He stated that MSHA made a determination 

that section 77.209 covers dozers operating over feeders in 

November, 1987, and the determination was ~ade by MSHA's National 

office in Arlington, Virginia, and it was communicated verbally 

by him to plant superintendent Thurman Phillips. He also confirmed that this policy is current District 2 policy, which he 

confirmed through discussions with the district manager, Donald 

Huntley at various times prior to November, 1987 (Tr. 160). 

2600 
Mr. Newhouse confirmed that he issued a citation regarding 

the operation of dozers over or near feeders at the same facility 

on June 10, 1988, and that he cited a violation of section 77.209 

(Tr. 160, exhibit G-6). He stated that on this occasion, he 

observed dozer tracks directly over a feeder, and also observed a 

dozer working on an opposite pile, and made a determination that 

it was in "close proximity" to the feeder. He confirmed that he 

did not observe the dozer crossing over the feeders, but did 

observe it operating in "close proximity" to the feeder (Tr. 

162). Mr. Newhouse stated that the dozer was working "on the 

side of the pile within the 65 degree," but he did not know how 

far it was from the center of the feeder, but that it was within 

the agreed upon safety zone (Tr. 162). 

Mr. Newhouse confirmed that he did not issue an imminent 

danger in conjunction with his citation, but that in hindsight, 

he probably should have, and was probably mistaken for not doing 

so. However, the machine made a "momentary pass" in the feeder 

area, and as soon as he mentioned it to management, immediate 

corrective action was taken (Tr. 164). He explained that stockpiling takes place when the coal is spread out in all directions 

on the pile, and that reclaiming takes place when the feeder 

gates are opened and the coal is drawn into the belts under the 

feeders (Tr. 165). 

Mr. Newhouse stated that he has received reports of accidents and fatalities which have occurred at other facilities by 

dozers operating on stockpiles, and he identified exhibit G-7 as 

an MSHA informational bulletin containing a synopsis of accidents 

which have occurred from 1979 to 1983 on certain storage piles 

(Tr. 167). He identified the fatal accidents which have occurred 

(Tr. 168-186, exhibits G-7, G-9). 

Mr. Newhouse confirmed that he advised mine management of 

the application of section 77.209 to its feeder operation, and 

that the 65 degree angle of repose, "plus or minus five degrees," 

was an agreed upon prudent figure for the dozer operator to 

follow, and that this communication was made in November, 1987 

(Tr. 186-188) • 

On cross-examination, Mr. Newhouse confirmed that the 

district policy in question was stated in a letter from 

Mr. Huntley to Safety Supervisor Dennis Dobish (exhibit 0-4), and 

that prior to this time, the policy was verbally communicated to 

mine management (Tr. 189). He further confirmed that the current 

MSHA policy manual published in July, 1988, does not address 

section 77.209 (Tr. 190). 

Mr. Newhouse confirmed that the citation which he issued in 

June, 1988, was abated after the equipment operators were 

2601 
instructed· not to operate over or too close to the feeders (Tr. 

198). With regard to the alleged "common practice" engaged in by 

Cyprus, Mr. Newhouse stated as follows at (Tr. 199-200): 

Q. Now, you had the time you were cited and the equipment operators were instructed and then Mr. Koscho 

cited them at the end of August and they were 

instructed again. Do two times make it a common 

practice? Two times that they were cited? 

A. I'll tell you, I would say it's a common practice 

based on all the information collected over a year of 

fooling with that operation down there and the 

different questions and comments from operators. 

Q. I take it that during that year, as far back as 

November 1987, the company said they would instruct the 

employees who operate that equipment not to take dozers 

over the feeders or too close to the feeders? 

A. Yes. It started out to be a simple safety message 

to the operators not to run over feeders, and then it 

progressed into the threat of firing anybody that did 

take them over the feeders. Possibly if they had those 

control measures in the first place, we wouldn't have 

got the violations. I don't know. 

Q. Now, I take it that in November 1987 that there 

weren't any violations or Imminent Danger Orders 

issued? 

A. No. 

Q. And I take it that in January 1988 that when you 

were out there again you didn't issue any violations? 

A. Not that I recall. 

Mr. Newhouse could not recall whether he issued any violations during his visit to the mine in January, 1988, when a 

section 103(g) inspection was conducted (Tr. 200). He identified 

exhibit 0-5, as a finding made by Inspector Koscho that "no 

hazardous conditions existed and unsafe practices were not 

observed" (Tr. 201). 

Cyprus' Testimony and Evidence 

Donald·D. Kerr, preparation plant foreman, testified as to 

his experience and duties, and he explained the coal loading 

process at the coal stockpile in question. He stated that the 

feeder loading operation is supervised by a foreman who is in 

radio contact with the bulldozer operators, and the foreman will 

2602 
inform the operators as to which feeders are in operation (Tr. 

227-231). He confirmed that he was with Inspector Koscho during 

his inspection, but did recall going onto the coal pile with him. 

He also confirmed that he observed the dozer tracks at the B and 

E feeders as testified to by Mr. Koscho, but could not recall 

observing any depressions in the pile (Tr. 232). 

Mr. Kerr stated that he could observe the dozer operators 

operating on the pile from the catwalk and roadway which passes 

by the piles, but that he is rarely on the catwalk. The front of 

the pile can be observed from the roadway, but the back of the 

pile cannot be observed from the roadway, and one cannot determine whether the dozers are operating over the feeders from this 

vantage point (Tr. 234).· 

Mr. Kerr estimated that 600 tons of coal was loaded through 

the feeders during the period between August 21 and 30, 1988, and 

he believed that feeders C or D were in operation during this 

time, but that it was unlikely that the coal was loaded from the 

B or E feeders. With regard to the dozer tracks which the 

inspector observed on August 21, Mr. Kerr explained that after 

the completion of the loading and reclaiming operation, the dozer 

operators go back and push the coal into the voids created by the 

feeders in order to seal them to prevent any rain or inclement 

weather from washing the coal down into the reclaim tunnel, and 

that this procedure is a normal practice. Mr. Kerr was not 

certain if the tracks left at the B feeder were left there by the 

incident which occurred on August 21, but he believed they may 

have been left over tracks because "we hadn't operated the 

stacker system that much in that time" (Tr. 236). 

On cross-examination, Mr. Kerr stated that the bulk of the 

600 tons of coal in question came from the No. 2 stacker, and he 

confirmed that he did not check his loading records for the week 

prior to this time. He agreed that the B and E feeders are used 

on a regular basis, and he assumed that the August 21, incident 

occurred at the B feeder, and possibly the c feeder (Tr. 238). 

He believed that the tracks which were observed on August 30, 

were tracks which were left over by the dozer operating by the 

c feeder (Tr. 239). Since the feeders are close to each other, 

it was possible that the dozer operator strayed over near the 

B feeder while moving around to smooth out the pile. He confirmed that his records would not reflect when any particular 

dozer may have been operating on the coal pile (Tr. 240). 

Mr. Kerr confirmed that he observed the dozer tracks and 

blade marks which were observed at the E feeder, and although he 

believed that the tracks at the B fe~der were "left over" from 

the previous citation, he did not dispute the existence of the 

tracks at the E feeder (Tr. 243}. 

2603• 
James Graznak, outside foreman, stated that part of his 

responsibilities include the supervision of dozer operators on 

the coal piles, and he confirmed that he was aware of the meetings held with respect to the issue of dozers operating in and 

around the feeders. He confirmed that the issue "came to a head" 

in November, 1987, and that MSHA was requested to bring some of 

its technical personnel to the site to address the problem. He 

identified a copy of an MSHA report, exhibit 0-8, and confirmed 

that it reflects that he had "advised all operators not to cross 

over the feeders" (Tr. 255). He confirmed that these instructions would have been given 2 or 3-days prior to the November 19, 

date of the report, and that he also instructed that overhead 

markers and signs be placed over the piles to indicate the location of the feeders (Tr. 256). 

Mr. Graznak confirmed that he was present at one of the 

meetings conducted by Dr. Wu, and that Cyprus agreed that "no man 

or equipment will be allowed directly over the feeders at any 

time, whether the feeders are operating or not" and that this 

instruction was communicated to the dozer operators (Tr. 258). 

Mr. Graznak had no knowledge of any discussions concerning the 

65 degree angle of repose, but he confirmed that when he found 

out about this guideline, he found it difficult to follow because 

the angle of repose at which the coal was falling was steeper 

than 65 degrees, and that this was obvious by observation (Tr. 

259). He confirmed that radios were installed in the dozers at 

the coal loadout for dependable communications between the dozers 

and the person in charge of the loading (Tr. 261). 

In response to a question as to whether it is possible to 

reclaim coal without going too close to the feeders, Mr. Graznak 

stated that this would depend on "what is considered too close." 

He explained that although the contestant follows MSHA's recommended 65 degree angle of repose, it operates within that zone 

because it "has no choice" because it cannot get close enough to 

get the coal to the feeder otherwise. He confirmed that he was 

aware of the potential hazard by operating too close to the 

feeders, and he believes the dozer operators exercise judgment in 

determining how close they should push the coal (Tr. 263). He 

identified exhibit 0-11, as copies of safety contacts made with 

employees as reminders of safe operating procedures while working 

on the coal piles (Tr. 263-265). 

In response to a question as to whether or not the dozer 

operators made it a practice to operate over the feeders while 

reclaiming or stockpiling coal, Mr. Graznak responded as follows 

(Tr. 266-267): 

Q. Now, as far as you know, as of August 30, 1988, was 

there a practice of dozer operators running over the 

feeders when they were doing reclaiming or stockpiling? 

2604 
A. There was not a practice of it, no. 

Q. Now, was there a practice, as far as you know, of 

the dozer operators either doing reclaiming or stockpiling in August 1988 of going too close to the 

feeders? 

A. I don't really know of any. You said during 

reclaiming? 

Q. Reclaiming or stockpiling. 

A. I really don't know of any problems with regard to 

reclaiming. For stockpiling, it's very difficult. 

Like we had some testimony earlier today, there are 

times when it is very difficult. Occasionally, but as 

far as, you know, was it a practice, no. That's the 

reason I kept reminding the people to try and stay on 

the dozer and be on the alert. 

Q. You say it's very difficult. Is it possible to 

both reclaim and to stockpile without going over the 

feeders or too close to the feeders? Too close to the 

feeders being in a hazardous position. 

A. It can be done, but it's tough. 

Q. You have to work at it? 

A. Well, we probably put up 500 tons per hour at that 

stacker, so it keeps the men busy. He has to stay on 

his toes. 

Mr. Graznak stated that the contestant's stacker system is 

not unique and that it is common to other coal mines and power 

plants in the area, and that after the imminent danger order was 

issued he visited other mines in the area to check out their 

systems (Tr. 268). He stated that he was aware of four other 

operations where dozers were operating over the feeders during 

their stockpiling operations, and that in these instances, the 

reclaiming systems were locked out while the dozers travelled 

over the feeders while stockpiling coal (Tr. 269). 

On cross-examination, Mr. Graznak confirmed that one of the 

operations he observed did not have coal stacking "tubes" similar 

to the contestant's No. 1 and No. 2 stackers, and that he did not 

discuss these other operations with MSHA, did not know whether 

these operators had approved MSHA plans, and had no information 

concerning the coal stacking capacities of these other operations 

(Tr. 271) . 

2605 
Mr. Graznak stated that during reclaiming operations, the 

dozers do not have to cross over the feeders, but during stockpiling, it is difficult to maneuver the equipment. He denied 

that dozers were crossing over feeders on a regular basis as of 

August 30, 1988, but that "occasionally someone would" (Tr. 276). 

Mr. Graznak could not recall the specifics concerning his safety 

contacts with the employees from November 30, 1987, to 

January 21, 1988, (exhibit 0-11). He confirmed that these contacts may have been prompted by reports of someone observing 

dozer tracks, and that he sometimes makes them as "a blanket for 

the whole crew" after an indication that someone had crossed over 

or operated too close to a feeder. He also indicated that he 

issued these reports to insure that everyone was aware of the 

"gravity of the situation" (Tr. 278-280). Mr. Graznak could 

recall only one past incident where a bridged over cavity developed over one of the feeders (Tr. 284). 

Mr. Graznak believed that with "certain limitations that we 

can live by," the dozers should be permitted to cross over the 

feeders during its stockpiling operation. He did not believe 

there was any reason for a dozer to cross over a feeder during 

the reclaiming operation because "we would move the material up 

to the edge of the draw hole and just let it go in by itself" 

(Tr. 285). With regard to dozers operating on top of the coal 

piles, Mr. Graznak stated that this was common to many coal mine 

operations for expanding the holding capacity of the stacking 

facilities (Tr. 286). 

Dennis Dobish, safety supervisor, confirmed that he is a 

certified mine foreman, and that he is familiar with the feeder 

issue in this case. He confirmed that after the imminent danger 

order was issued~ he sent a letter to Inspector Newhouse outlining the practice to be followed in the future, and to abate 

the order (Tr. 291). Since that time, he has worked to develop a 

plan which would permit the dozers to operate over the feeders, 

and he has met with various company, union, and MSHA officials in 

this regard, including a meeting with MSHA's sub-district manager 

~ager Uhazie on November 17, 1987 (exhibit 0-6, Tr. 292). The 

plan was unacceptable to Mr. Uhazie, and a further meeting was 

held with former district manager Don Huntley, and a letter and 

the proposed plan was submitted to Mr. Huntley on December 1, 

1988. The plan would permit the operation of dozers over the 

feeders during stockpiling operations after certain safety precautions were taken (Tr. 294). 

Mr. Dobish stated that Mr. Huntley responded to the proposed 

plan by letter of January 4, 1989, exhibit 0-4, and the letter 

does not state that dozers could -not at anytime operate over the 

feeders. The letter stated in part "when reclaiming operations 

have been completed, however, a procedure may be developed to 

assure that there are no voids over the feeders. Compliance with 

such procedures would allow a dozer operation over the feeders at 

2606 
that time." Mr. Dobish believed that this procedure would be in 

effect during the stockpiling operation (Tr. 295). He identified 

the proposed plan as exhibit 0-3, and confirmed that it was a 

"consensus" plan developed from the mine experience, and after 

discussions with the equipment operators in the presence of the 

safety committee. He further confirmed that the operators agreed 

unanimously that they could safely operate under these procedures 

and they knew that adjustments to the procedure may be needed. 

He stated that he gave the proposed plan to Mr. Koscho, who 

passed it on to Mr. Newhouse, but that no reply or opinion has 

been received from MSHA (Tr. 296). 

Mr. Dobish stated that prior to the issuance of the imminent 

danger order, he participated in meetings held with the dozer 

operators, and they were instructed not to run over feeders at 

anytime and to comply with the 65 degree angle of repose. He 

confirmed that he has visited other mines, and has observed the 

same type of feeder operation which is in use at the Emerald Mine 

in one mine outside of district 2, where dozers travel over the 

feeders during stockpiling while the feeders are shutdown (Tr. 

298-299). 

on cross-examination, Mr. Dobish identified the mine which 

he visited as the Cyprus Shoshone mine in Hanna, Wyoming, and he 

confirmed that it had a stacker system like the one at the 

Emerald Mine. He did not know the height of the stockpile at 

this other mine, and stated that the stacker was shorter than the 

one used at Emerald Mine (Tr. 300). 

Findings and Conclusions 

Fact of Violation 

Cyprus is charged with an alleged violation of regulatory 

mandatory safety standard 30 C.F.R. § 77.209, which provides as 

follows: "No person shall be permitted to walk or stand 

immediately above a reclaiming area or in any other area at or 

near a surge or storage pile where the reclaiming operation may 

expose him to a hazard." 

It is undisputed in this case that there is no evidence that 

anyone walked or stood on the coal pile in question, or in the 

vicinity of the areas affected by the operation of the feeders. 

The only persons who walked or stood on the pile, or in the area 

of the pile, were the inspector and the UMWA walkaround representative who accompanied him during the course of the inspection. 

They both testified that they walked on the pile to gain·a closer 

look at the· tracks which they had observed from a catwalk, and 

they both believed that they were in a "safe location" on the 

pile. 

2607 
Cyprus takes the position that section 77.209, does not 

address or cover the operation of equipment on storage piles, and 

that the clear language found in section 77.209, with respect to 

the ordinary meaning of the terms "walk" or "stand" cannot 

properly be construed to mean "operating equipment" such as a 

bulldozer. Citing the dictionary definitions of the terms 

"stand" and "walk," the inspector's concession that these terms 

are not normally defined to include the operation of equipment, 

and the applicable case law dealing with statutory construction, 

Cyprus argues that the language of the standard simply does not 

prohibit the operation of equipment on a storage pile and that 

the citation must be vacated. Cyprus observes that while MSHA 

had the opportunity when the standard was promulgated to clearly 

include the operation of equipment as part of the standard, it 

did not do so. 

In response to MSHA's argument that MSHA District 2 had 

previously interpreted section 77.209 to include the operation of 

equipment and that such an interpretation is reasonable and 

entitled to deference, Cyprus points out that the District 2 

interpretation does not appear to have been accepted by other 

MSHA Districts. As an example, Cyprus makes reference to an MSHA 

Report of Investigation, issued by MSHA District 3, on April 25, 

1983, where a fatality occurred when a bulldozer operating on a 

coal stockpile broke through material bridged over a feeder and 

fell into the bridge over cavity engulfing the bulldozer operator's compartment {exhibit G-8). Although MSHA's concluded that 

the accident occurred because the bulldozer was allowed to be 

operated on bridged material over top of the cavity in the coal 

stockpile, MSHA nonetheless made a finding that its "investigation did not reveal violations of the Coal Mine Safety and Health 

Act of 1977 of Title 30 Code of Federal Regulations'' (pg. 7, 

report). Cyprus points out that no violation of section 77.209, 

was issued in this instance. 

Cyprus also refers to an MSHA Regulatory Information 

Bulletin No. 83-4C, issued on August 3, 1983, by MSHA's 

Administrator for Coal Mine Safety and Health Joseph A. Lamonica, 

concerning "Fatalities Occurring at Surge or Storage Piles" 

(exhibit G-7). The bulletin discusses the hazards associated 

with equipment operators working on surge or storage piles where 

they are often required to maneuver in close proximity to "drawdown areas of feeders and hoppers," and it includes an attachment 

consisting of abstracts of eight fatal accidents mentioned in the 

bulletin, four of which involved persons walking over the feeder 

area or a void created by the reclaiming operation, and four of 

which involved bulldozers. Conceding that the bulletin does 

include a reference to section 77.209, in connection with bulldozers and front-end loaders operating in storage piles, Cyprus 

points out that it does not state that such operations are prohibited by section 77.209, and that Mr. Lamonica's reiteration of 

the language of the standard that "No person shall be permitted 

2608 
to walk and stand immediately above a reclaiming areas or in any 

other area at or near a surge or storage pile where the reclaiming operation may expose him or her to a hazard," does not 

suggest that equipment was subject to the same prohibition found 

in the standard. To the contrary, Cyprus concludes that within 

the context of the bulletin, the absence of any indication that 

equipment was subject to the same prohibition suggests the 

absence of such a prohibition. 

Citing the Commission's decision in Western Fuels-Utah, 

Inc., 11 FMSHRC 278, 284 (March 1989), Cyprus argues that deference to MSHA's interpretation of a standard is not required where 

it is clearly inconsistent with the language of the standard. In 

the Western Fuels-Utah, Inc., case, the Commission states in 

relevant part as follows at 11 FMSHRC 283-284, 287: 

It is a cardinal principle of statutory and regulatory interpretation that words that are not technical 

in nature "are to be given their usual, natural, plain, 

ordinary, and commonly understood meaning." Old Colony 

R.R. Co. v. Commissioner of Internal Revenue, 284 U.S. 

552, 560 (1932). When the meaning of the language of a 

statute or regulation is plain, the statute or regulation must be interpreted according to its terms, the 

ordinary meaning of its words prevails, and it cannot 

be expanded beyond its plain meaning. Old Dominion 

R.R. Co. v. Commissioner of Internal Revenue, 284 U.S. 

552, 560 (1932); see Emery Mining Corp. v. Secretary of 

Labor, 783 F.2d 155, 159 (10th Cir. 1986). 

* * * * * * * 

While the Secretary's interpretations of her 

regulations are entitled to weight, that deference is 

not limitless and the Secretary's interpretations are 

not without bounds. Deference is not required when the 

Secretary's interpretations are plainly erroneous or 

inconsistent with the regulation. See Udall v. 

Tallman, 380 U.S. 1, 16-17 (1965) (quoting Bowles v. 

Seminole Rock Co., 325 U.S. 410, 413-14 (1945)). Nor 

does it weigh in the Secretary's favor when the 

Secretary has not offered reasonable interpretations of 

the standards. See Brock on behalf of Williams v. 

Peabody Coal Co., 822 F.2d 1134, 1145 (D.C. Cir. 1987). 

The Mine Act does not contemplate that the Commission 

merely "rubber-stamp" the Secretary's interpretations 

without evaluating the reasonableness of those interpretations and their fidelity to the words of the 

regulations. 

* * * * * * * 

2609 
Finally, a regulation subjecting an operator to 

enforcement action under the Mine Act must give fair 

notice to the operator of what is required or 

prohibited and "cannot be construed to mean what an 

agency intended but did not adequately express." 

Phelps Dodge Corp. v. FMSHRC, 681 F.2d 1189, 1193 

(9th Cir. 1982). * * * 

MSHA takes the position that the cited locations where the 

dozer tracks were observed are either "immediately above a 

reclaiming area" or "in any other area at or near a surge or 

storage pile" as stated in section 77.209. MSHA argues that the 

coal storage or surge pile in question is part of the reclaiming 

operations, and that clean coal is stockpiled to create a reserve 

until it is reclaimed or loaded out for shipment to customers. 

MSHA asserts that bul.ldozers are used in the actual reclaiming 

operations when the coal is pushed toward the angle of repose 

above the feeders when the feeders are running and coal is,· being 

loaded, and that they .are also used in stockpiling operations 

when coal is being sent through the stackers to be stored in·the 

area until needed later and the dozers push the coal away from 

the stackers and spread it around to cover a larger area so that 

more coal can be put on top of the pile as it comes out of the 

stackers. MSHA maintains that dozer operators are exposed to 

hazards from the reclaiming operations, as well as the stockpiling operations, because a dozer can fall into the holes that 

occur over the feeders when the feeders are operating or they can 

fall into voids that may exist under the surface of the coal 

pile. 

MSHA asserts that it is well recognized that holes or 

depressions normally occur over the feeders as coal is drawn down 

the angle or repose into.the feeder, and that voids may occur in 

the pile where cavities occur and are bridged over with coal. 

Since voids are not observable from the surface, MSHA concludes 

that dozers operating too close to the holes or depressions run 

tne risk of falling into the holes during reclaiming operations, 

and that dozers operating over or too close to the areas over the 

feeders are at risk. of breaking through any bridged over material 

and falling into voids during either reclaiming or stockpiling 

operations. 

MSHA strongly disagrees with Cyprus' contention that section 

77.209 is directed only to persons walking or standing on coal 

piles, and not to persons on pieces of equipment which may be 

operating on these piles. MSHA argues that the narrow interpretation advanced by Cyprus is at odds with the purpose of 

section 77.209, which is to protect miners from the hazards of 

reclaiming operations around coal storage piles. Recognizing the 

fact that the standard contains the terms "walk or stand," MSHA 

takes the position that it applies to "persons" in general, and 

that persons in bulldozers or other pieces of equipment are 

2610 
exposed to the same hazards as persons walking on foot on a coal 

pile. MSHA asserts that the hazard presented is the possibility 

of falling into voids or holes in the coal pile. Recognizing the 

fact that if a miner on a bulldozer fell into a hole or void, he 

may have a better chance of survival than if on foot because the 

dozer cabs are enclosed and there are self-contained selfrescuers in the cab, MSHA nonetheless believes that the hazard of 

falling into a void or hole is the same, if not greater, for a 

dozer because of its weight, and the pressure on the coal pile by 

a dozer would make it more likely to fall into holes or voids 

under the surface of the coal, and the chances of survival are 

not as good. 

In support of its argument that section 77.209, applies to 

persons in general, regardless of whether they are walking, 

standing, or operating a piece of equipment on a coal pile, MSHA 

relies on the testimony of MSHA Supervisory Inspector Robert 

Newhouse who testified that the standard is designed to protect 

persons on coal piles, and that this interpretation is MSHA 

policy and practice, as well as the testimony of MSHA's other 

witnesses who agreed with Mr. Newhouse (Mr. Shuba and Dr. Wu). 

MSHA asserts that in order to effectuate the broad purposes of 

the standard and the Act, it must be concluded that section 

77.209, applies to persons in general on a storage pile, and that 

limiting the application of the standard to persons on foot and 

excluding persons on equipment is too narrow and technical and 

would def eat the purpose of the standard to protect persons from 

falling into holes and voids. MSHA takes note of the fact that 

Cyprus was issued at least two previous violations of section 

77.209 involving bulldozers and did not contest either citation 

(exhibits G-3, G-6). MSHA concludes that its evidence, consisting of the dozer tracks and marks, clearly indicates that dozers 

were operated over or too close to the feeders, and that a violation of section 77.209, has been established. 

After careful consideration of all of the arguments advanced 

by the parties in these proceedings, I agree with the position 

taken by Cyprus that section 77.209, only applies to persons 

walking or standing on or near a coal surge or storage pile where 

the reclaiming operation may expose him to a hazard. I conclude 

and find that the plain wording of the standard is limited to 

persons on foot and does not apply to equipment being operated on 

or near such a pile while reclaiming or stockpiling operations 

are actively in progress. Under the circumstances, the contested 

citation IS VACATED. 

With regard to MSHA's purported policy interpretation, and 

its asserted practice of expanding the application of section 

77.209 to equipment being operated on coal piles, I find no 

credible evidence supporting any conclusion that MSHA has promulgated any such policy, or that it has been communicated to all 

coal mine operators. MSHA's primary support for the existence of 

2611 
any such policy lies in the testimony of its District No. 2 

Supervisory Inspector Robert Newhouse. 

Mr. Newhouse conceded that MSHA's most current policy 

manual, published in July, 1988, does not address the application 

of section 77.209, and I find nothing there to suggest that it 

applies to equipment operating on coal piles. Mr. Newhouse's 

assertion that MSHA's National Office in Arlington, Virginia, 

made a policy determination in November, 1987, that section 

77.209, applie$ to equipment operating on coal piles is 

unsupported, and no documentation of any such policy has been 

forthcoming from MSHA. 

Mr. Newhouse also contended that the purported policy is 

current District 2 policy, and that he confirmed this through 

discussions which he had with MSHA's former district manager 

Donald Huntley at various times prior to November, 1987. 

Mr. Newhouse also asserted that this policy was communicated 

orally to respondent's safety supervisor Dennis Dobish and plant 

superintendent Thurman Phillips, and that the written embodiment 

of the policy is stated in an exchange of correspondence between 

Mr. Dobish and Mr. Huntley in December, 1988, and January, 1989. 

The exchange of correspondence referred to by Mr. Newhouse 

is a letter dated December 1, 1988, from Mr. Dobish to 

Mr. Huntley, in which Mr. Dobish requested an interpretation of 

section 77.209, with regard to the following points (exhibits 

0-6): 

1. Does the statement "No person shall be permitted to walk or stand •.. " apply to bulldozer 

operation? 

2. Please clarify the statement "immediately 

above a reclaiming area or in any other area at or near 

a surge or storage pile where the reclaiming operation 

may expose him to a hazard." MSHA has stated their 

intention of enforcing a 65° angle of repose adjacent 

to each feeder. Due to weather conditions, compaction, 

and moisture, this figure is unrealistic and arbitrary. 

3. If the feeders are not operating and locked 

out and no reclaiming operation is in progress, does 

30 C.F.R. § 77.209 apply? If precautions have been 

taken to assure no void exists in the coal pile following reclaiming operations, and the feeders are locked 

out, the operation is no different from any other 

stockpile and 30 C.F.R. § 77.209 should not apply. 

In his reply of January 4, 1989, to Mr. Dobish's letter, 

Mr. Huntley stated in pertinent part as follows (exhibit 0-4): 

2612 
This is in reply to your letter dated December 1, 

1988, in reference to 30 C.F.R. § 77.209. In reviewing 

this provision of law, it would appear to us that this 

regulation applies to persons immediately above a 

reclaiming area, whether on a bulldozer, walking, or 

standing. This provision was written to protect 

persons from falling into a void that occurred due to 

reclamation operations. 

Your pl°an is designed to allow a bulldozer to 

operate over feeders in an area susceptible to 

collapse. As stated above, this would not be in compliance with the regulations, therefore, bulldozers 

should not be operated in such areas when coal is being 

reclaimed from a stockpile. When reclaiming operations 

have been completed, however, a procedure may be 

developed to assure that there are no voids over the 

feeders. Compliance with such procedure should allow 

dozer operation over the feeders at that time. 

Since you raised the question about the use of 

65 degrees, we will not specify any angle--the inspector will use his judgement to determine whether a 

person is "above" a reclaiming area or exposed to a 

hazard from the reclaiming operation. (Emphasis 

supplied). 

I take note of the fact that Mr. Huntley's letter makes no 

reference to any National MSHA policy regarding the operation of 

equipment over feeders. In addition to his responses, 

Mr. Huntley furnished Mr. Dobish with an outdated MSHA Information Bulletin No. 83-4 c, August 8, 1983, concerning fatalities 

which have occurred at coal surge or storage piles (exhibit G-7). 

The bulletin includes a reference to section 77.209, as one of 

several standards found in Part 77, Code of Federal Regulations, 

which have been cited as contributing to one or more of the 

accidents discussed in the attachment to the bulletin. The 

bulletin also quotes the verbatim text of section 77.209, but I 

find nothing in the bulletin alluding to any MSHA policy prohibitions concerning equipment operating on coal piles. As a matter 

of fact, the safety procedures found on page two of the bulletin 

suggests that equipment may be permitted to operate on coal piles 

as long as the recommended safety procedures are followed, g.g., 

adequate communication, training, adequate means for identifying 

the location of feeders, the use of substantial screen guards 

over all windows of bulldozers and front-end loaders used around 

surge or storage piles, and the placement of self-contain.ed selfrescuers in·all dozers and front-end loaders. 

I also take note of the fact that Mr. Huntley's letter 

suggests that dozers may be operated over the feeders when 

reclaiming is completed as long as certain safety precautions are 

2613 
developed, and it contradicts MSHA's position that equipment 

operation on the coal pile is not permitted at any time, including reclaiming or stockpiling of the coal. This advice by 

Mr. Huntley also supports Cyprus' contention that it is permitted 

to operate its equipment on the coal pile during stockpiling 

operations as long as it follows certain safety precautions 

(exhibits 0-3 and 0-7). It also supports the unrebutted testimony of Mr. Dobish that other mine operators carrying on similar 

operations are permitted to operate equipment on their coal piles 

during stockpiling operations while the feeders are shutdown. 

Further, I find Mr. Huntley's apparent disregard for the 

65-degree angle of repose as a yardstick safety precaution to be 

rather contradictory, particularly in light of MSHA's imposition 

of this requirement on Cyprus. 

The Imminent Danger Order 

The definition of an "imminent danger" is found in section 

3(j) of the Act, and it is as follows: "The existence of any 

condition or practice in a coal or other mine which could reasonably be expected to cause death or serious physical harm 

before such condition can be abated." 

The validity of the contested imminent danger order in this 

case is not dependent on any finding of a violation of section 

77.209. MSHA maintains that it has established that it was more 

than just an isolated occurrence that dozers crossed over the 

feeders during stockpiling operations and operated too close to 

the danger zone above the feeders during stockpiling and reclaiming. MSHA takes the position that there is substantial evidence 

supporting a conclusion that Cyprus engaged in a practice of 

crossing over and working in too close proximity to the feeders. 

The "substantial evidence" alluded by MSHA is (1) the physical 

evidence of equipment tracks observed by Inspector Koscho and 

Mr. Shuba during the inspection, (2) Mr. Shuba's testimony that 

other dozer operators told him that there "were times" when they 

crossed feeders, and his knowledge of "close calls" involving 

dozers over the feeders;' (3) two prior citations because of 

dozers operating too close to the feeders; (4) "safety contacts" 

made by Cyprus with its dozer operators instructing them not to 

cross over feeders; and (5) the ongoing issue between MSHA, 

Cyprus, and the union since November 1987. 

The thrust of MSHA's case is its contention that the alleged 

practice of dozer operators working above and/or in too close 

proximity to the feeders during reclaiming and stockpiling operations presented an imminent danger because of unknown voids or 

holes in the coal pile, and that an accident could have happened 

at any time if the practice of crossing over or in too close 

proximity of the feeders had continued. MSHA's position is that 

such a practice constitutes an imminent danger regardless of 

whether the feeders are operating. 

2614 
The evidence establishes that no one was operating a bulldozer on or near the coal pile in question at the time. it was 

observed by Inspector Koscho, the feeders were not in operation, 

no reclaiming or stockpiling operations were taking place, and no 

one was in any danger. I take particular note of the fact that 

the narrative description of the cited conditions does not 

include any assertion that Cyprus was engaging in any practice, 

and Inspector Koscho confirmed that in his pretrial deposition he 

admitted that at the time he issued the order he did not know if 

there was in fact a practice of operating equipment too close to 

the feeders. Further, although the order does not include any 

assertion that dozers were operating over or near nay voids or 

holes, Inspector Koscho testified that the tracks which he 

observed in the vicinity of the B feeder were within 3 to 4 feet 

of a "depression where the coal had been feeding into the 

feeder," and that the tracks near the E feeder led him to believe 

that the dozer blade, which was 7 to 8 feet long, had reached 

across a depression, and then backed up smoothing out the 

depression in the pile. 

In order to prevail in this case, MSHA has the burden of 

establishing that in the context of its continued reclaiming and 

stockpiling operations, Cyprus was guilty of engaging in an 

imminently dangerous practice of operating its bulldozers over or 

in close proximity to feeders at all times, even when they were 

not operating. As recently noted by the Commission in Garden 

Creek Pocahontas Company, Docket Nos. VA 88-09, etc., 

November 21, 1989, slip QP. at pg. 6, "{T]he litigation process 

requires the parties to obtain the evidence necessary to prove 

their allegations." With regard to the imminent danger order, 

the only evidence to support Inspector Koscho's belief that 

dozers were operating "to close" to the feeders were the equipment tracks which he observed. Although several inferences may 

be made with regard to these tracks in the coal pile, any such 

inferences must be reasonable and based on evidentiary facts, 

Mid-Continent Resources, 6 FMSHRC 1132 (May 1984). 

In my view, in order to establish the existence of hazards 

such as operating over voids or holes in the coal pile, which 

could materialize at any time, although not necessarily 

immediately, MSHA must show the circumstances under which the 

tracks were made. In this case, although the inspector believed 

that the coal pile in question was in use every week, and 

believed that the tracks were no more than 2 or 3 days old 

because they were "more pronounced and acute," he conceded that 

he made no effort to determine who had operated on the pile, 

whether any·dozers had actually operated on the pile while the 

feeders were in operation, when any dozers may have last worked 

on the pile, or when the feeders were last operated. Although 

the inspector agreed that dozers normally used by Cyprus are 

equipped with operator cabs and safety glass, and the evidence 

2615 
establishes that self-rescuers and radios are provided for the 

dozer operators, the inspector conceded that he did not inspect 

any dozers which are used during the reclaiming and stockpiling 

operations. Further, the inspector made no effort to identify or 

speak with any of the dozer operators, nor did he review any mine 

production or work shift records which may have provided him with 

some factual information or answers to some of the aforementioned 

critical questions. I believe that it is incumbent on the 

inspector to at least attempt to develop and establish a factual 

basis to support his imminent danger order, particularly in a 

case of this kind where there is a contention that Cyprus has 

engaged in, and presumably still engages in, an imminently dangerous practice. On the facts of this case, it seems obvious to 

me that the "inspection" made in support of the order was cursory 

in nature, and I find nothing to suggest that the information and 

evidence which was not developed was not readily available to the 

inspector. 

Mr. Shuba, the safety committeeman who accompanied the 

inspector during his inspection, testified that dozer operators 

have told him that there "were times" when they crossed the 

feeders, and he alluded to several "close calls" involving dozers 

operating over the feeders. However, none of these operators 

were identified or called to testify, and no further specific 

information was elicited from Mr. Shuba. Mr. Shuba, who confirmed that he operated a dozer on the pile intermittently since 

February, 1989, and for some unspecified "months" prior to the 

inspection, denied that he had ever crossed the feeders while 

operating a dozer on the pile. However, in its posthearing 

brief, MSHA asserts that several "safety contacts" made by mine 

management reflect that dozer operators were instructed not to 

cross over the feeders, and MSHA "assumes" that these contacts 

were made in response to.instances of dozers crossing these 

feeders. If this assumption is correct, then Mr. Shuba has not 

been truthful since three of these "safety contacts" were issued 

to him (exhibit 0-11). Under the circumstances, I have given no 

weight to Mr. Shuba's unreliable and uncorroborated hearsay 

testimony concerning what the other unidentified equipment operators may have told him. 

With regard to the "safety contacts" (exhibit 0-11), with 

the exception of Mr. Shuba, none of the individuals who were 

"contacted" testified in these proceedings, and the circumstances 

under which they were "contacted" are not known. Some of the 

contacts reflect that the foremen reviewed the safe operating 

procedures with the employees who presumably worked on the piles, 

and others caution employees to be careful while working on or 

near the piles. Foreman Graznak, who issued all of the contacts, 

prior to the issuance of the imminent danger order on August 30, 

1988, could not recall the specifics of each of the contacts, but 

conceded that they may have been prompted by someone observing 

dozer tracks or other indications that someone had occasionally 

2616 
crossed over the feeders or operated too close to them. However, 

he denied that dozers were crossing over feeders on a regular 

basis, and he could recall only one prior incident where a 

bridged over cavity developed over one of the feeders. 

Mr. Graznak confirmed that the contacts were issued to alert 

the individuals of the hazards of working in and around the 

stockpiles, and Mr. Shuba, the safety committeeman, confirmed 

that mine management has instructed equipment operators not to 

work over the feeders, that he was instructed about the proper 

"safety zone" for safely working over the feeders, and that a 

diagram explaining the safety zone was posted in each machine 

that operated on the pile. Further, the evidence presented by 

Cyprus establishes that it has a communication system in effect 

with respect to the dozers operating in and round the coal pile, 

has marked the feeders, has equipped the dozers with cabs, safety 

glass, and self-rescuers, has consistently instructed the dozer 

operators as to the safety precautions to be taken while working 

in and around the pile, and has made it known that it will discharge any operator found running over feeders. 

Mr. Shuba confirmed that due to the confined areas where the 

bulldozers must operate during stockpiling, it may be necessary 

for a dozer operator to position his dozer over the feeder in 

order to get behind the coal and push it towards the pile. 

Dr. Wu agreed that it was necessary for a dozer to operate on top 

of the pile in order to push the coal into the feeders, and he 

confirmed that if the feeders are not operating, there may be a 

need to fill any depressions over the feeders during the stockpiling process. Mr. Graznak confirmed that there is no need for 

a dozer to cross over a feeder during the reclaiming operation 

because the material which has been moved to the edge of the 

feeder draw hole will fall into the hole. Mr. Graznak also 

confirmed that it is difficult to maneuver the equipment and 

avoid crossing the feeder during stockpiling operations when the 

feeders are not operating. He also confirmed that he was aware 

of other mine operations where stockpiling activities permitted 

the travel of dozers over the feeders while they were locked out 

and not in operation. Safety supervisor Dobish corroborated that 

this was the case, and the letter of January 4, 1989, from MSHA 

District 2 Manager Huntley supports Mr. Dobish's belief that 

under certain conditions when the feeders are shutdown, dozers 

are permitted to operate over the feeders. Under all of these 

circumstances, MSHA's contention that a dozer operating over a 

feeder is at all times an imminent danger is not well-taken and 

contradictory. 

With regard to the two prior citations issued to Cyprus for 

violations of section 77.209, one of them was issued by Inspector 

Koscho on August 23, 1988, a week before he issued the imminent 

danger order, and it is a section 104(a) citation with special 

"S&S" findings (exhibit G-3). Mr. Koscho ~tated that he issued 

2617 
the citation after determining that a bulldozer had slid into a 

void created by a feeder while reclaiming coal, and although he 

did not personally observe the incident, someone told him about 

it, and the dozer operator admitted that he had made a "mistake." 

Mr. Koscho further explained that he issued a section 104(a) 

citation rather than an imminent danger order because the violation was abated within 5 minutes and mine management had previously instructed the dozer operator as to the proper operating 

procedure. Mr. Koscho also explained that at the time he issued 

the contested imminent danger order, he believed that the dozer 

operators were not following management's instructions. I fail 

to see the distinction since in both cases the dozer operators 

obviously were not following instruction. In addition, the 

condition cited in the prior citation was far more serious than 

that cited in the subsequently issued imminent danger order in 

that the dozer actually slid into a void and had to be assisted 

by another dozer to get out, and Mr. Koscho found that a fatality 

was highly likely. Even so, he did not believe this was an 

imminent danger, nor did he allege that the incident was the 

result of any practice. 

The second citation for a violation of section 77.209, was 

issued by Inspector Newhouse on June 10, 1988, and it too is a 

section 104(a) citation with special "S&S" findings. The citation states that Mr. Newhouse observed a bulldozer operating on a 

coal pile at the No. 2 stacker over a reclaim chute that was in 

operation, and that he also observed dozer tracks indicating that 

bulldozers were working directly over reclaim chutes at the No. 1 

stacker, and Mr. Newhouse made a finding that a fatality was 

highly likely. When asked why he did not issue an imminent 

danger order, particularly since he had personally observed the 

dozer over the reclaim chutes while they were in operation, 

Mr. Newhouse indicated that "in hindsight" he was "probably 

mistaken for not doing so," and he explained that the dozer he 

observed did not cross the feeders, and that it was only in 

"close proximity" to the feeders. This is contrary to the citation which specifically states that the dozers were operating 

directly over the reclaim chutes or feeders while they were in 

operation. 

I find the explanations offered by Mr. Koscho and 

Mr. Newhouse as to why they did not consider the prior incidents 

to be imminently dangerous to be rather contradictory and selfserving. In those instances, the inspectors had reliable and 

probative evidence that dozers were in fact operating on the coal 

piles over the feeders during reclaiming operations while the 

feeders were in operation, and they both found that a fatality 

was highly likely. Yet, they concluded that no imminent dangers 

were presented. In the instant case, Mr. Koscho had no reliable 

and probative evidence that any dozers were operating over any 

feeders wh±.i.e they were in operation, and he based his imminent 

danger finding on speculative assumptions based on the equipment 

2618 
tracks which· he observed on the coal pile. I simply cannot 

reconcile these contradictory and inconsistent findings by the 

inspectors. 

I find no credible or probative evidence in this case to 

support any conclusion that the tracks observed by Inspector 

Koscho and Mr. Shuba were made while dozers were operating on the 

coal pile during reclaiming operations while the feeders were in 

operation. Mr. Koscho conceded that he had no way of knowing 

whether or not the dozers were reclaiming coal or simply spreading it out on the pile when the tracks were made. The tracks at 

the E feeder were found at a location where the dozer had 

apparently reached across a depression with its 7 to 8 foot blade 

and then backed up to smooth out the depression in the pile. If 

this was done while the feeders were not in operation during the 

stockpiling operation, then I can only conclude that the dozer 

operator was following a normal practice of addressing 

depressions by smoothing them out, and this could not have been 

done if the feeder were operating. With regard to the tracks at 

the B feeder, there is no credible evidence that the dozer tracks 

extended over the feeder, and Inspector Koscho placed the tracks 

"in the vicinity" and to the side of the feeder approximately 3 

to 4 feet from a depression which he believed resulted from the 

coal being fed into the feeder. I do not believe that these 

tracks could have been made and left intact if the feeder was 

operating. 

Given the fact that the evidence and testimony in this case 

strongly suggests that the operations of dozers on a coal pile 

during stockpiling operations while the feeders are shutdown and 

not operating in order to fill the holes and voids left by the 

operation of the feeders is not specifically prohibited and seems 

to be an acknowledged method of operation, I believe it is just 

as reasonable as not for one to conclude that the tracks in 

question were made during the stockpiling operation while the 

feeders were not in operation, and that the dozer operators were 

not exposed to the danger of any voids or holes when the tracks 

were made. 

In view of the foregoing findings, and conclusions, and 

after careful consideration of all of the evidence and testimony 

in this case, I cannot conclude that MSHA has established by a 

preponderance of the evidence that Cyprus has engaged in any 

imminently dangerous practice. Under the circumstances, the 

inspector's finding in this regard is rejected and the contested 

imminent danger order IS VACATED. 

ORDER 

On the basis of the foregoing findings and conclusions, IT 

IS ORDERED AS FOLLOWS: 

2619 
1. Docket No. PENN 89-45. Section 104(a) "S&S" 

Citation No. 3087308, August 30, 1988, citing a violation of 30 C.F.R. § 77.209, IS VACATED, and MSHA's 

proposed civil penalty assessment IS DENIED AND 

DISMISSED. 

2. Docket No. PENN 88-325-R. Section 107(a) 

Imminent Danger Order No. 3087309, August 30, 1988, IS 

VACATED. 

3. Docket No. PENN 88-318-R. Section 104(d) (2) 

Order No. 3087446, August 31, 1988, citing a violation 

of 30 C.F.R. § 77.205(b), IS MODIFIED to a section 

104(a) "S&S" citation, and the violation IS AFFIRMED. 

Cyprus is assessed a civil penalty in the amount of 

$400 for the violation. 

4. Docket No. PENN 89-194. 

pay civil penalty assessments for 

104(a) "S&S" citations which have 

settled in these proceedings: 

Cyprus IS ORDERED to 

the following section 

been affirmed and/or 

Citation No. Date 30 C.F.R. Section Assessment 

3087305 08/30/88 77.400 $400 

3087444 08/31/88 77.404(a) $325 

3087600 08/30/88 77.1607(bb) $450 

3087446 08/31/88 77.205(b) $400 

Payment of the civil penalty assessments shall be made by 

Cyprus to MSHA within thirty {30) days of the date of these 

decisions and order, and upon receipt by MSHA, the civil penalty 

proceeding is dismissed. 

Distribution: 

g 7 ./ ~ / 4tl_,_''A-- %.' l~;.-~;:_-:"-.:Z--- / 

Ge~rge 1i1; Koutras 

Administrative Law Judge 

Susan M. Jordan, Esq., Office of the Solicitor, U.S. Department 

of Labor, Room 14480 Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

R. Henry Moore, Esq., Buchanan Ingersoll, 58th Floor, 600 Grant 

street, Pittsburgh, PA 15219 {Certified Mail) 

/fb 

2620 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

OEC 2 9 l9B9 

SECRETARY OF LABOR, . . CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CALIFORNIA PORTLAND CEMENT 

COMPANY I 

Respondent 

. . 

. . 

. . 

. . 

DECISION 

Docket No. WEST 88-243-M 

A.C. No. 04-00036-05523 

Mojave Cement Plant 

Appearances: George B. O'Haver, Esq., Office of the Solicitor, 

San Francisco, California, 

for Petitioner; 

Scott H. Dunham, Esq., O'Melveny & Myers, 

Los Angeles, California, 

for Respondent. 

Before: Judge Morris 

The Secretary of Labor, on behalf of the Mine Safety and 

Health Administration, (MSHA), charges respondent, California 

Portland Cement Company, with violating 30 C.F.R. § 56.9047, 1/ 

a safety regulation promulgated under the Federal Mine Safetyand Health Act, 30 u.s.c. § 801 et seq., (the "Act"). 

After notice to the parties a hearing on the merits was held 

in Los Angeles, California. 

The parties filed post-trial briefs. 

1/ The cited regulation reads as follows: 

§ 56.9047 Securing parked railcars. 

Parked railcars, unless held 

effectively by brakes, shall 

be blocked securely. 

2621 
STIPULATION 

At the commencement of the hearing the parties stipulated as 

follows: 

1. The respondent is the owner and operator of the subject 

mine. 

2. The respondent and the mine are subject to the jurisdiction of the Federal Mine Safety and Health Act of 1977. 

3. The Administrative Law Judge has jurisdiction in this 

case. 

4. The Federal Mine Safety and Health Administration 

C "MSHA") inspector who issued the subject citation was an authorized representative of the Secretary of Labor. 

5. A true and correct copy of the subject citation was 

properly served upon respondent. 

6. A copy of the subject order or citation and narrative 

findings for a special assessment at issue are authentic and may 

be admitted into evidence for purposes of establishing their 

issuance, but not for the purpose of establishing the truthfulness or relevance of any statements asserted therein. 

7. The imposition of the civil penalty in this case will 

not affect the respondent's ability to continue in business. 

·a. The alleged violation was abated in good faith. 

9. The respondent's history of prior violations is 

described in the narrative findings for special assessment. 

10. The respondent is a large operator. 

11. Ronald Harrison, an employee of the respondent, was 

seriously injured when a train of seven Southern Pacific Company 

railroad cars rolled down a track and hit him. 

12. The train of seven cars was parked on approximately 

a 4% grade approximately 164 feet beyond where the employee was 

welding on the track. The cars had been parked on the track for 

at least five hours prior to the time the accident occurred. 

13. Before beginning work on the track, the employee 

visually inspected the first car and determined that the air 

brakes were engaged on that car and tightened the pull chain 

which provides an additional manual brake on the cars. 

2622 
14. The cars of the train were not blocked in any way. 

15. The employee began work on his shift at 3:00 p.m. on 

February 19, 1988. At approximately 8:00 p.m., the brakes which 

had been holding the cars of the train in place failed to the 

extent that the cars rolled from their parked spot on the track 

striking the employee. 

16. An engineering analysis of the brakes on the railcars 

conducted by an independent laboratory following the accident 

revealed that the brakes on the four westernmost cars of the 

train were defective. (A copy of a preliminary analysis as well 

as a final analysis by Vollmer-Gray, .Engineering Consultants, is 

attached hereto. as Exhibit A.) The valve connecting the fourth 

and fifth cars was also frozen in a closed position. Thus, there 

was no air brake application affected on the easternmost three 

cars. The movement of the railcars was caused by air leakage 

from the air brake system of the four westernmost cars. This 

resulted in a pressure decay which eventually Cover a period of 

approximately 6-1/2 hours) released the brakes on all the railcars. 

ISSUES 

On the undisputed facts the issues are whether a violation 

of 30 C.F.R. § 56.9047 occurred. If a violation occurred, then 

what penalty is appropriate. 

THE EVIDENCE 

EARL WAYNE MCGARRAH, an MSHA inspector, is a person experienced in mining (Tr. 10, 11). 

On February 22, 1988, he conducted an accident investigation 

at respondent's cement plant. During his inspection he learned 

that a string of seven parked and loaded railcars, had been moved 

from their parking spot and rolled over a welder's hand. At the 

time the welder was welding a frog 2/ on the track (Tr. 11, 12; 

Ex. P-1, P-2). Inspector McGarrah also observed the brake 

shoes on the railcars. On car number 3 there were three missing 

brake shoes (Tr. 15, 16; Ex. P-3). This condition was obvious 

and it was not necessary to crawl under the car to take pictures 

of the condition (Tr. 16). 

~/ A frog is part of the switch that guides the cars onto 

another track CTr. 12, 13). 

2623 
The air valve on the fourth car was frozen in a closed 

position. It could not be opened by hand (Tr. 171 Ex. P-4). A 

valve in this position prevented the air from setting the brakes 

on the following three railcars. Since the parked cars were not 

blocked they rolled. The brakes did not hold them effectively. 

A block under a wheel, on the downgrade side, will keep cars 

from rolling C Tr. 18) • 

After the accident the cars were blocked with a factory-type 

block CTr. 19). 

Inspector McGarrah learned the company had set the air 

brakes and one hand brake 3/ before the accident occurred. 

REUBEN PAUL VOLLMER testified for respondent. Mr. Vollmer, 

a professional engineer, specializes in reconstructing accidents 

and failures involving train accidents (Tr. 27 - 30). 

On February 22, 1988, he inspected the railcars involved in 

this accident (Tr. 32). 

He found the brake linings were adequate on all the railcars 

with the exception of car No. 3 which had broken shoe material. 

On two of the brakes the shoe material was completely worn away 

(Tr. 33). The lack of brake lining would not affect a train at 

rest (Tr. 38, 46). 

He also learned that each of the four cars had been charged 

with air prior to the accident. In addition, the angle valve on 

the brake pipe between cars 4 and 5 was closed. Due to the 

closed valve 4/ the air brakes would not be functioning on the 

easternmost three cars (Tr. 33). 

Mr. Vollmer did a leakage test on the brakes. The charging 

system was set at 70 pounds per square inch. The test was made 

to determine if the brake locks tightened on the wheels of the 

cars when the brakes were applied CTr. 34, 35). Mr. Vollmer's 

test established the brake system was functional and operating 

on the four cars (Tr. 35). 

ll The end hand brake looks like a wheel on the top of the 

westernmost car on the downgrade (Tr. 20, 25). The brake works 

like an emergency brake on an automobile (Tr. 25). It furnishes 

additional braking power CTr. 26). 

4/ This valve appears in Exhibit P-4 (Tr. 34). 

2624 
Other tests by witness Vollmer included monitoring the 

air cylinders which operate the linkage to the brake locks of 

each wheel. It was found that cars 1, 2 and 4 bled down in 

approximately one and one-half hours. Car No. 3, the one with 

the least service, held for approximately six and one-half 

hours before it bled. In other words, the brakes on Car No. 3 

were effective for six and one-half hours. If the brakes were 

set on one car of a seven-car train and there was no air leakage 

the brakes would effectively hold the train n for ever" C Tr. 3 5, 

36) • 

A test was also conducted by applying leak-detector solution 

to all the fittings visible on the railcars. This test indicated 

there were relatively significant leaks on Cars 1, 2 and 4. 

There was no indication of the air leaks unless a person got 

close to the fittings. In such a position you could audibly 

hear the air movement, similar to a sizzling sound (Tr. 36, 37, 

42). The air leaks caused the cars to move. However, the cars 

had been held effectively braked for six an4 one-half hours 

(Tr. 4_4) •. 

DISCUSSION 

The regulation§ 56.9047, simply provides that parked 

railcars "unless held effectively by brakes" shall be securely 

blocked. The regulation itself does not further define nor 

discuss the meaning of "effectively held by brakes. n It is 

accordingly appropriate to consider the ordinary meaning of 

the words. 

Webster's dictionary 5/ defines "effective, 11 the adjective, 

as "producing a decided, decisive or desired effect." Effectively is listed as the adverb for n effective." 

This definition, which is its primary meaning of the word, 

indicates the brakes here did not produce the desired nor 

decisive effect. 

Respondent contends no violation occurred because the brakes 

held for at least five hours. (In fact, the evidence establishes 

the brakes held for six and one-half hours.) Respondent argues 

the Secretary's interpretation is improper because it would 

render the phrase "unless effectively blocked" meaningless. By 

phrasing the regulation in the terms it did, the Secretary intended that railcars could be parked without the use of blocks. 

~/ Webster's New Collegiate Dictionary, 1973, at 359. 

262-5 
Respondent also argues that if the Secretary desires that 

railcars always be blocked, she could have explicitly so stated 

(Brief at 5). In short, respondent argues the Secretary's 

position emasculates the regulation and eliminates the portion 

providing "unless held effectively by brakes" (Tr. 9) • 

• I disagree with respondent's contentions. Respondent's 

construction would rewrite the regulation to read that "railcars, unless held effectively for at least five hours, by brakes, 

shall be blocked securely." such a regulation would not promote 

the safety of miners. 

The Commission and the appellate courts have repeatedly 

stated that if there is a conflict between an interpretation that 

promotes safety and an interpretation that would serve another 

purpose as a possible compromise of safety the first should be 

preferred. District 6, United Mine Workers of America, v. United 

States Department of Interior Board of Mine Operations Appeals, 

562 F.2d 1260, 1265 CD.C. Cir. 1977). See also Pittsburg and 

Midway Coal Mining Company, 8 FMSHRC 4, 6 (1986). 

Section 56.9047 reasonably addresses the various safety 

issues that may be present in any factual scenario. Whether 

parked railcars can be held effectively by brakes would no doubt 

depend on the number, weight and length of the railcars, the 

track grade and the condition of the braking systems (air and 

manual). 

I have considered respondent's engineering analysis and 

the testimony of its expert witness. But I conclude Mr. Vollmer 

simply confirmed the railcars moved when air leakage caused a 

pressure decay in the air brake system (Tr. 46, 47). I further 

note that this air leakage could have been detected. In addition, the frozen closed valve on Car No. 4 was readily observable. 

The leakage of air and the closed valve reduced and eventually 

eliminated the braking capacity of the railcars. 

For the foregoing reasons the citation herein should be 

affirmed. 

CIVIL PENALTIES 

The statutory criteria for assessing a civil penalty is 

contained in Section llO(i) of the Act, now codified at 30 C.F.R. 

§ 820(i). 

2626 
Considering these factors I conclude that respondent is a 

large operator (Stipulation 10). 

The imposition of a penalty will not affect respondent's 

ability to continue in business (Stipulation 7). 

A favorable history appears in that respondent has been 

assessed for 23 violations in the preceding 24 months (Stipulation 9). 

Respondent's negligence is moderate. The operator could 

have detected the leaking air in the brake system or observed 

the closed valve. 

The gravity is high inasmuch as a workman's hand was 

severed. 

Respondent abated the violative condition and is entitled to 

statutory good faith. 

On balance I deem that a civil penalty of $600 is appropriate. 

For the foregoing reasons I enter the following: 

ORDER 

Citation No. 3287171 is affirmed and a civil penalty of $600 

is assessed. 

Law Judge 

Distribution: 

George B. O'Haver, Esq., Office of the Solicitor, U.S. Department of Labor, 71 Stevenson Street, Suite 1020, P.O. Box 3495, 

San Francisco, CA 94119-3495 CCertif ied Mail 

Scott H. Dunham, Esq., O'Melveny & Myers, 400 South Hope Street, 

Los Angeles, CA 90071-2899 (Certified Mail) 

/ot 

2627 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

Off ice of Administrative Law Judges 

2 Skyline, 10th Floor 

5203 Leesburg Pike 

Falls Church, Virginia 22041 

DEC 2 9 1989 

JOSEPH G. DELISIO, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

MATHIES COAL COMPANY, 

. Respondent 

Appearances: Michael J. 

Richard R. 

Before: Judge Fauver 

. . 

. . 

. . 

Docket No. PENN 89-8-D 

MSHA Case No. PIT'r co 88-25 

Mathies Mine 

DECISION 

AND 

FINAL ORDER 

Healy, Esq., for the Complainant 

Riese, Esq., for the Respondent 

Following a decision on liability, November 24, 1989, 

the parties have filed a Stipulation of the amount of 

Complainant's back pay with interest and his litigation 

expenses including a reasonable attorney's fee. 

WHEREFORE it is ORDERED that: 

1. Respondent shall pay Complainant, within 30 days of 

this order, the following amounts.: 

1. Backpay with accrued interest: 

2. Litigation expenses, including 

a resonable attorney's fee: 

TOTAL 

2. The decision on liability entered on 

$ 99 

$2,000 

$2,099 

November 24, 1989, is now a final decision effective this 

date. 

~~l.AAv~ William ~at:;r Administrative Law Judge 

2628 
ADMINISTRATIVE LAW JUDGE ORDERS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

November 17, 1989 

BLUE DIAMOND COAL COMPANY, 

Contestant . . CONTEST PROCEEDING 

v. . . 

: 

Docket No. KENT 89-258-R 

Order No. 3370844; 8/16/89 

SECRETARY OF LABOR, . . Scotia mine 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

. . 

. . 

. . Mine ID 15-02055 

ORDER DENYING MOTION TO DISMISS 

ORDER DIRECTING SECRETARY TO ANSWER 

The Secretary has filed a motion to dismiss the above 

captioned notice of contest on the ground that it was not filed 

within the 30 days allowed by section 105(d) of the Act. See 

also 29 C.F.R. § 2100.20. The operator has filed a motion in 

opposition. 

The subject order was issued under section 104(d) (1) of the 

Act on August 16, 1989. The terms of the order were modified 

later that day. The operator's motion sets forth the facts of 

the matter as follows: 

"On August 18, 1989, two (2) days after the aforementioned Order was modified by the Inspector, the 

petitioner submitted a "Request for Health and Safety 

Conference" to an authorized representative of the 

Secretary of Labor, Ronald C. Wilder, 812 F.M. Stafford 

Avenue, Paintsville, Kentucky 41240 [MSHA sub-district 

manager, Paintsville, Kentucky]. Subsequent to this, 

the petitioner was notified that a revised form would 

have to be used for such contest. Accordingly, on 

August 30, 1989, the petitioner filed another Notice 

and Request, stating that the following issues needed 

to be resolved: 

'To establish whether or not a violation existed 

and if a violation did exist, if it was 

unwarrantable failure.• 

Attached hereto and incorporated herein by 

reference is a copy of the petitioner's "Request for 

Health & Safety Conference" dated August 30, 1989, and 

marked as petitioner's "Exhibit A". 

2629 
on September 19, 1989, a conference was conducted 

whereby representatives of the petitioner, the miners 

and MSHA were all present. Following this conference 

a conference worksheet was issued, a copy of which is 

attached hereto and incorporated herein by reference as 

petitioner's "Exhibit B". 

Following the issuance of the conference worksheet 

the petitioner was informed by authorized representatives of the Secretary of Labor that the next step to 

contest the Order and "special findings" would be to 

file a notice of contest. This was done on September 

25, 1989. Attached hereto and incorporated herein by 

reference is a copy of the petitioner's September 25, 

1989, notice. 

It is clear that before the petitioner retained 

counsel that not only was it confused as to the interrelationship of contest proceedings and civil penalty 

proceedings, but apparently duly authorized representatives of the Secretary of Labor were as well. 

It is apparent from the foregoing that the operator was not 

dilatory in pursuing its challenge to the subject order. Its 

error was in not filing the notice of contest with the Commission 

while it was addressing the matter with MSHA. However, it is 

noted that MSHA entered into discussions with the operator but, 

until the conference was concluded did not advise that a notice 

of contest should be filed with the Commission. Moreover, the 

delay was only ten days after the expiration of the 30 day limit 

and immediately followed upon conclusion of the conference. 

Under the circumstances I conclude the operator's filing of the 

notice of contest should be allowed. 

This conclusion is in accord with recent Commission precedent. In Rivco Dredging v. Secretary of Labor, 10 FMSHRC 624 

(May 1988), the operator filed timely notices of contest · immediately challenging citations and orders, but failed to 

notify the Secretary that it intended to contest the civil 

penalties subsequently proposed for the contested citations and 

orders. The operator mistakenly believed its initial notices of 

contest also put the penalties in issue. The Secretary moved to 

dismiss the contest proceeding because the penalties had not been 

challenged and the administrative law judge granted the motion. 

The Commission however, reversed the dismissal stating in 

pertinent part as follows: 

It appears that this operator, acting pro se, 

acted in good faith but misunderstood the need to 

object separately to the two different aspects of the 

same dispute. See 30 u.s.c. § 815(a) (contest of 

proposed civil penalties). Cf. Old Ben Coal co., 7 

2630 
FMSHRC ~05 (February 1985). This Commission has 

recognized that, in cases like this, innocent procedural missteps alone should not operate to deny a party the opportunity to present its objections to citations 

or orders. * * * 

The Commission also has shown itself willing to accept late 

filings in a variety of circumstances so long as a justifiable 

excuse exists. See, M.M. Sundt Constr. Co., 8 FMSHRC 1269 

(September 1986): Kelley Trucking Co., 8 FMSHRC 1867 (December 

1986): Salt Lake County Road Department, 3 FMSHRC 1714 (July 

1981): Coal Junction Coal Company, 11 FMSHRC 502 (April 1989): 

Howard v. B & M Trucking, 11 FMSHRC 505 (April 1989): 

Westmoreland Coal Company, 11 FMSHRC 275 (March 1989): Amber Coal 

Company, 11 FMSHRC 131 (February 1989): Ten-A Coal Company, 10 

FMSHRC 1132 (September 1988); Middle States Resources, Inc., 10 

FMSHRC 1130 (September 1988). 

The circumstances of this case constitute justifiable and 

adequate cause for this late filing. 

In light of the foregoing, the Secretary's motion to dismiss 

is DENIED. 

It is ORDERED that the Secretary file an answer to the 

notice of contest within 20 days from the date of this order. 

: 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Randall Scott May, Esq., Barret, Haynes, May, Carter & Roark, 

P.S.C., Post Office Drawer 1017, Hazard, KY 41701 (Certified Mail) 

Mr. Stanley D. Sturgill, Safety Analyst, Blue Diamond Coal 

Company, HC 67, Box 1290, Cumberland, KY 40823 (Certified Mail) 

W. F. Taylor, Esq., Office of the Solicitor, U. s. Department of 

Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 37215 

(Certified Mail) 

Lawrence Beeman, Director, Office of Assessments, u. s. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

(Handcarried) 

/gl 

2631 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

December 19, 1989 

RICK STEVENSON, 

Complainant 

DISCRIMINATION PROCEEDING . . Docket No. WEST 89-130-D 

v. 

DENV CD 89-02 

BEAVER CREEK COAL COMPANY, 

Respondent Trail Mt. No. 9 Mine 

INTERIM ORDER 

This case involves a discrimination complaint filed by 

complainant on his own behalf pursuant to the Federal Mine Safety 

and Health Act of 1977, 30 u.s.c. § 801 et seg., (the "Act"). 

Now pending for a ruling is the motion of respondent Beaver 

Creek Coal Company, ( "BCCC") , for a summary decision pursuant to 

Commission Rule 64, 29 C.F.R. § 2700.64. 

Before considering the merits of the motion it is appropriate to consider the relevant procedural history of the case. 

On March 6, 1989, complainant Stevenson, appearing prose, 

filed his complaint pursuant to section 105(c) of the Act. 

On April 7, 1989, BCCC filed its answer denying 

crimination. Further, BCCC raised several defenses. 

BCCC asserts complainant signed a general release of 

arising out of the termination of his employment. 

any disIn part, 

all claims 

On April 13, 1989, the case was set for a hearing on the 

merits. 

On April 20, 1989, BCCC filed interrogatories, a request for 

documents and a request for admissions. 

On May 15, 1989, BCCC moved for a rescheduling of the 

hearing. 

On May 16, 1989, the hearing was rescheduled to August 8, 

1989. 

On May 22, 1989, after a conference call, complainant was 

ordered to answer BCCC's interrogatories and to appear for a 

deposition. 

On June 6, 1989, complainant filed his answer to interrogatories. 

2632 
On June 20, 1989, the hearing of August 8, 1989, was rescheduled to a full hearing on the merits. 

On August 1, 1989, at the request of complainant, the 

hearing of August 8, 1989 was cancelled. 

On August 14, 1989, BCCC filed a motion and brief for a 

summary decision. 

On September 7, 1989, counsel entered his appearance for 

complainant. 

On October 10, 1989, complainant filed his affidavit and 

brief in opposition to BCCC's motion. 

On October 23, 1989, BCCC filed a reply memorandum. 

Allegations 

1. Complainant states that while he was a representative 

of miners he made numerous complaints to the Mine Safety and 

Health Administration C"MSHA"). These complaints resulted in 

MSHA inspections and in the issuance of numerous citations. 

2. On September 26, 1988, complainant was laid off. He 

claims this was because of his safety and health activities. 

3. It is uncontroverted that the day following his termination complainant executed and delivered to BCCC a general 

release. The agreement reads, in its pertinent part, as follows: 

Part III 

Notice: various State and Federal laws 

prohibit employment discrimination based on 

on age, sex, race, color~ national origin, 

religion, handicap or veteran status. These 

laws are enforced through the Equal Employment 

Opportunity Commission (EEOC), Department 

of Labor and State Human Rights Agencies. 

If you feel that your election of the Atlantic Richfield Special Termination Plan was 

coerced and is discriminatory, you are encouraged to speak with your Employee Relations 

representative or follow the steps described 

in the Employee Problem Resolution procedure. 

You may also want to discuss the following 

release language with your lawyer. In any 

event, you should thoroughly review and 

understand the effect of the release before 

acting on it. Therefore, please take this 

Release home and consider it for at least (5) 

working days before you decide to sign it. 

2633 
General Release: 

In consideration for the Atlantic Richfield Special Termination Plan offered to 

me by the Company I release and discharge 

the C.ompany, its successors, subsidiaries, 

employees, officers and directors <hereinafter 

referred to as "the Company") from all claims, 

liabilities, demands and causes of action 

known or unknown, fixed or contingent, which 

I may have or claim to have against the Company as a result of this termination and do 

hereby covenant not to file a lawsuit to 

assert such claims. This includes but is 

not limited to claims arising under federal, 

state, or local laws prohibiting employment 

discrimination or claims growing out of any 

legal restrictions on the Company's right 

to terminate its employees. This release 

does not have any effect on any claim I may 

have against the Company unrelated to this 

termination. 

I have carefully read and fully understand 

all of the provisions of this Separation Agreement and General Release which sets forth the 

entire agreement between me and the Company and 

I acknowledge that I have not relied upon any 

representation or statement, written or oral, 

not set forth in this document. 

4. In support of its position that complainant is bound 

by the release BCCC further cites portions of complainant's disposition (taken July 25, 1989). The relevant portions are as 

follows: 

A. When delivering the general release to Beaver Creek 

Complainant Stevenson also delivered a handwritten statement 

which stated that Stevenson was signing the form with the "sole 

purpose of receiving any and all moneys (sic) owed me by Beaver 

Creek Coal. No other purpose is intended" (Tr. 119, 120, BC-19). 

B. Beaver Creek refused to accept Stevenson's conditional note CBC-19) along with the BC-18 agreement, (Tr. 120, 

121). 

2634 
C. Stevenson received a letter dated October 4, 1988 

from Beaver Creek which states in pertinent part: 11 ••• in order 

to get your severance pay you must sign the release given to you 

on September 27, 1988 without any conditions. 11 The October 4, 

1988 letter also noted that Stevenson had "already received all 

monies owed" to him. (Emphasis in original) (Tr. 121, BC-20). 

D. Stevenson delivered to Beaver Creek a handwritten 

signed note dated October 10, 1988 which read, "Disregard previous note concerning severance pay and all related conditions." 

(Tr. 122, 123, BC-21) 

E. Stevenson knew that the severance pay of nearly 

$8,000.00 was a company benefit given in exchange for the unconditional execution of the General Release CTr. 116-123). 

F. Stevenson knew that upon signing the release and 

rece1v1ng the severance pay he "could not pursue ••• a Federal 

Mine Health and Safety Discrimination case. 11 (Tr. 114, 122). 

G. Stevenson testified that with respect to signing 

the release: 

a) He thought about not signing it. (Tr. 114, 

115). 

b) He kept it a couple days before signing it. 

(Tr. 113, 114). 

c) His wife witnessed his signature. (Tr. 114, 

115, BC-18). 

d) He was aware that by signing, he released 

Beaver Creek of liability. (Tr. 115). 

e) He talked it over with his wife and also talked 

it over with a friend. CTr. 115, 117). 

f) Upon signing, he was unconditionally releasing 

Beaver Creek. (Tr. 123). 

g) He had a right not to sign the release and not 

receive the severance pay. (Tr. 124). 

h) He considered consulting a lawyer. (Tr. 125). 

i) He was not forced to sign the release. 

(Tr. 126). 

j) He "knew perfectly well what [I] was signing. 

(Tr. 122). 

2635 
H. Stevenson has not refunded the nearly $8,000.00 

in severance money to Beaver Creek. (Tr. 124). 

I. Stevenson is a high school graduate (Tr. 5) with 

substantial mining experience and has had six years experience 

operating a video store which he owned. (Tr. 5-8). 

Complainant, in opposition to BCCC's motion, asserts he is 

not bound by the release. In support of his position he states 

in an affidavit as follows: 

1. His mailing address is Box 170, Star Route, East Carbon, 

Utah 84520. 

2. He was employed at Trail Mountain Mine No. 9 on July 30, 

1985 to September 26, 1988, for a period of over three years. 

3. Respondent purchased the above mine on or about 

September 24, 1987, and agreed to honor, among other things, 

the existing severance pay benefit. 

4. Upon becoming separated from BCCC, Stevenson was 

eligible for the severance pay benefit, which he earned as part 

of his compensation package during over three years of employment at said mine. The amount of his entitlement was based upon 

his length of service at said mine. 

5. .BCCC improperly required Stevenson to sign a document 

entitled "Special Termination Plan Documentation, Acknowledgment and Payment Schedule", which contained a "General Release" 

provision (refer to Deposition Exhibit BC-18 attached to Respondent's Brief), as a condition of obtaining his severance 

benefit money owed to him upon his s~paration for past service, 

notwithstanding the incorrect statement of Mr. J. F. Kasper, 

Employee Relations Manager of BCCC in his letter of October 4, 

1988 to the contrary (refer to Deposition Exhibit BC-20, 

attached to Respondent's Brief). 

6. BCCC did not offer him an Enhanced Retirement Program, 

which is described on the above acknowledgment form, so that he 

wasn't provided any opportunity to elect between a severance pay 

benefit and an Enhanced Retirement Program benefit. The above 

form indicates that he could decline to sign the release language 

and receive an Enhanced Retirement Program benefit instead of the 

severance pay benefit. He was not provided with this option to 

elect. He was simply told by BCCC that if he refused to sign 

the above document with the general release language, he would 

not receive any severance pay benefit or any other additional 

benefit. 

2636 
7. BCCC never advised Stevenson, or any other coal min.er to 

his knowledge prior to separation, that a general release would 

be required to receive the severance pay benefit, and no such 

requirement existed, to his knowledge, prior to the BCCC takeover. 

Moreover, he received nothing in return for giving to BCCC a . general release, because he was owed the severance pay benefit 

anyway, whether he agreed to the release or not. 

8. BCCC would not agree to his request to delete the effect 

of the general release language and required that said language 

be included for him to obtain his severance pay benefit. BCCC 

refused to negotiate or agree to any change. 

9. Stevenson was forced to retract his attempt to delete 

the effect .of the general release language, because of economic 

duress and coercion resulting from his child support obligation 

Cover $900.00 per mo.nth for four children>1 the loss of his video 

business1 his inability to qualify for Unemployment Insurance 

benefits because of the availability of a severance pay benefit, 

his lack of a job and lack of aitside income and because of 

additional pressing economic d::>ligations. (Refer to page 126 

of his deposition of July 25, 1989.) 

10. At the time that Stevenson submitted the signed doc.ument with the release language, he doubted that the release 

language was valid or enforceable. This was because it was 

obtained by coercion and duress ("blackmail") and because he was 

owed the severance pay money anyway, whether I signed the release 

or not. 

11. At his deposition of July 25, 1989, Stevenson offered 

to pay back the severance pay money upon his reinstatement. 

(Page 124 of his deposition of July 25, 1989). 

Discussion 

As a threshold matter Complainant contends BCCC's motion was 

untimely. 

Commission Rule 64 simply provides that a motion for summary 

decision may not be filed before the scheduling of a hearing on 

the merits. In this case the hearing on the merits then scheduled for August 8, 1989, was cancelled on August 1, 1989. BCCC 

filed its motion for summary decision on August 14, 1989 when 

there was no scheduled hearing. This factual scenario causes 

me to conclude that Commission Rule .64 is not applicable. 

2637 
The writer believes the applicable case law governing the 

effect of a release as a valid waiver of rights is generally 

expressed in an ADEC l/ case, Cirillo v. Arco Chemical Company, 

a Division of Atlantic Richfield Company and Ramey, 862 F.2d 448 

C3rd. Cir. 1988). 

Specifically, therein the Court adopted a "totality of the 

circumstances" approach, necessitating careful evaluation of the 

release form itself as well as the complete circumstances in 

which it was executed. ~! 

~elevant factors to be considered in the totality of the 

circumstances include, bu~ are not limited to, the following 

considerations: Cl) the clarity and specificity of the release 

language; (2) the plaintiff's education and business experience; 

(3) the amount of time plaintiff had for deliberation about the 

release before signing it; (4) whether plaintiff knew or should 

have known his rights upon execution of the release; (5) whether 

plaintiff was encouraged to seek, or in fact received benefit 

of counsel; (6) whether there was an opportunity for negotiation 

of the terms of the Agreement; and (7) whether the consideration 

given in exchange for the waiver and accepted by the employee 

exceeds the benefits to which the employee was already entitled 

by contract or law. 862 F.2d at 451. 

It is apparent on the facts presented herein that a genuine 

issue of fact exists under the totality of circumstances rule. 

In particular, the issue arises as to whether the consideration 

was adequate. Or as otherwise stated: was the consideration 

given for the waiver and accepted by Stevenson in excess of the 

benefits to which he was already entitled by contract or law. 

Since a genuine issue of fact exists on this point it 

follows that BCCC's motion for a summary decision should be 

denied. 

Accordingly, the following order is appropriate: 

1/ Age Discrimination in Employment Act of 1967, 29 U.S.C.A. 

§ 621, et seg. 

2638 
ORDER 

1. Respondent's motion for a summary decision is denied. 

2. Complainant is granted 40 days to conduct discovery. 

3. Counsel are directed to confer and within 10 days they 

are to suggest to the judge, in writing, an appropriate hearing 

site for this case. 

4. If the parties cannot agree on an appropriate hearing 

site the judge will set the case for a hearing in Price, Utah 

in February 1990. 

5. This is not an appealable order since it does not 

dispose of the alleged discrimination issues. 

Law Judge 

Distribution: 

Jonathan Wilderman, Esq., Martin J. Linnet, Esq., 4155 East 

Jewell Avenue, Suite 500, Denver, CO 80222 (Certified Mail) 

Thomas F. Linn, Esq., David M. Arnolds, Esq., 555 Seventeenth 

Street, 20th Floor, Denver, CO 80202 (Certified Mail) 

/ot 

2639 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

December 2 7 , 19 8 9 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SANGER ROCK & SAND, 

Respondent 

. . 

ORDER 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 88-275-M 

A.C. No. 04-01937-05505 

Docket No. WEST 89-71-M 

A.C. No. 04-01937-05506 

Sanger Pit and Mill 

At the close of the evidence in the above cases on 

December 13, 1989, respondent requested leave to file interrogatories. 

Petitioner objected to respondent's request. 

Discussion 

Commission Rule 55, 29 C.F.R. § 2700.55 encompasses discovery in general and Rule 56, 29 C.F.R. § 2700.55 addresses the 

use of interrogatories. These rules indicate discovery is to be 

initiated early in the proceedings. In fact, Rule 55 states 

discovery shall be initiated within 20 days after a notice of 

contest. Further, discovery is to be completed within 60 days 

after a notice of contest. For good cause shown, the judge may 

permit the time for discovery to be extended. However, the 

purpose of interrogatories is to assist a party to prepare and 

present its case at the evidentiary hearing. 

In the instant case respondent requested leave to file 

interrogatories after the evidentiary hearing had been closed. 

It is apparent respondent's motion for leave to file interrogatories addressed to the Secretary was not timely filed and 

it is denied. 

Law Judge 

Distribution: 

Susanne Lewald, Esq., Office of the Solicitor, U.S. Department 

of Labor, 71 Stevenson Street, P.O. Box 3495, San Francisco, CA 

94119-3495 

J.F. Baun, President, Sanger Rock and Sand, 17125 E. Kings Canyon 

Road, Sanger, CA 93657 

/ot 

2 6 4 0 -tf U.S. GOVERNMENT PRINTING OFFICE: 1990 - 2 6 l - l 0 2 t 0 4 7 6 3