SEPTEMBER 1990 

CQ}1}-1ISSION DECISIONS 

09-10-90 

09-19-90 

09-20-90 

09-27-90 

Beth Energy Mines, Inc. 

Sanger Rock and Sand 

Golden Oak Mining Company, L.P. 

Randy Coal Company 

ADMINISTRATIVE LAW JUDGE DECISIONS 

09-04-90 

09-10-90 

09-12-90 

09-17-90 

09-18-90 

09-18-90 

09-19-90 

09-21-90 

09-21-90 

09-28-90 

09-28-90 

09-28-90 

Bob Sherman employed by Blackhawk 

Sec. Labor on behalf of Robert Black v. 

Wayne Pulliam, Texas Sand & Gravel, Co. 

Joseph S. Colamartino v. Gateway Coal Co. 

Emery Mining Corporation/Utah Power & Light 

Westmoreland Coal Company 

Windsor Coal Company 

Roger Deel employed by Blackfoot Coal Co. 

Zeigler Coal Company 

Old Energy Incorporated 

Ricky Hays v. Leeco, Inc. 

Western Fuels-Utah, Incorporated 

Cynthia ~ay v. Southern Ohio Coal Company 

PENN 89-222 

WEST 88-275-M 

KENT 90-185-R 

PENN 90-80 

Pg. 1751 

Pg. 1755 

Pg. 1758 

Pg. 1760 

WEST 90-110-N Pg. 1763 

CENT 89-165-DM Pg. 1765 

PENN 

WEST 

VA 

WEVA 

VA 

LAKE 

SE 

KENT 

WEST 

WEVA 

89-271-D 

87-130-R 

90-28 

90-18 

90-14 

90-102-R 

89-41 

90-59-D 

90-108 

90-40-D 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

1766 

17~5 

1782 

1788 

1795 

1798 

1848 

1850 

1900 

1910 
September 1990 

Review was granted in the following cases during the month of~tember: 

Secretary of Labor, MSHA v. Southern Ohio Coal Company, Docket No. WEVA 89-278. 

(Judge Koutras, August 3, 1990) 

Wyoming Fuel Company v. Secretary of Labor, HSHA, Docket No. WEST 90-238-R. 

(Judge Morris, August 6, 1990) 

Secretary of Labor, HSHA v. Lang Brothers, Inc., Docket No. WEVA 90-48. 

(Judge Broderick, August 16, 1990) 

Secretary of Labor, MSHA v. Randy Coal Company, Docket No. PENN 90-80. 

(Default Decision of Chief Judge Merlin on July 18, 1990) 

There were no cases filed in which review was denied. 
COMMISSION DECISIONS 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

BETHENERGY MINES, INC. 

September 10, 1990 

Docket No. PENN 89-222 

BEFORE: Backley, Acting Chairman; Doyle and Nelson, Commissioners 

ORDER 

BY THE COMMISSION: 

In this matter pending on review, ar1s1ng under the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 801 et seg. (1988) ("Mine 

Act" or "Act 11 ), counsel for the Secretary of Labor has filed a motion 

requesting vacation of the citation and its associated civil penalty 

assessment and dismissal of the proceeding. BethEnergy Mines, Inc. 

( 11BethEnergy11 ) has filed a response indicating that it has no objection 

to the granting of 0the Secretary's motion. For the following reasons, 

we grant the motion. 

On March 14, 1989, an inspector of the Department of Labor's Mine 

Safety and Health Administration ( 11MSHA") issued BethEnergy two 

citations alleging violations of 30 C.F.R. §§ 75.301 and 75.316 in 

connection with a sudden release of methane at the face area of a 

longwall section. Section 75.301, in part, requires that a sufficient 

volume and velocity of air be ventilated in active working to dilute and 

render harmless dangerous or harmful gases, such as methane. l/ Section 

1/ Section 75.301, which repeats the statutory standard at 30 U.S.C. 

§ 863(b), provides in pertinent part: 

All active workings shall be ventilated by a 

current of air containing not less than 19.5 volume 

' per centum of oxygen, not more than 0.5 volume per 

centum of carbon dioxide, and no harmful quantities 

of other noxious or poisonous gases; and the volume 

and velocity of the current of air shall be 

sufficient to dilute, render harmless, and to carry 

1751 
75.316 requires mine operators to adopt ventilation system and methane 

and dust control plans approved by the Secretary. The citations alleged 

that the current of ventilating air at the face was insufficient to 

dilute the methane, in violation of section 75.301, and that BethEnergy 

was not complying with certain requirements of its ventilation plan. 

BethEnergy contested the citations, the Secretary proposed civil 

penalties for the alleged violations, and the matter proceeded to 

hearing before Commission Administrative Law Judge Avram Weisberger. 

In his decision, the judge vacated the citation alleging a 

violation of section 75.316 (12 FMSHRC 975, 981-85 (May 1990)(ALJ)), and 

no issue pertaining to that aspect of the judge's decision is before us 

on review. With respect to the alleged violation of section 75.301 (n.l 

supra), the judge noted BethEnergy's position that, at the time of the 

citations, it was meeting or exceeding the minimum air flow required at 

the last open crosscut by the second sentence of section 75.301, which 

requires an airflow of 9,000 cubic feet a minute ("C.F.M. 11 ). BethE_nergy 

argued that it could not be cited under the first sentence of section 

75.301 for failure to provide adequate ventilation to dilute the sudden 

release of methane if it were exceeding the airflow set forth in the 

second sentence. 12 FMSHRC at 979. The judge rejected this position, 

concluding that an airflow meeting or exceeding the 9,000 C.F.M. 

requirement does not comply with the first sentence of section 75.301 if 

it is nevertheless insufficient to dilute and render harmless dangerous 

or harmful gases. Id. We granted BethEnergy's subsequent petition for 

discretionary review. 

After the submission of BethEnergy's brief on review, the 

Secretary filed with the Commission her present Motion to Vacate 

Citation and to Dismiss Proceeding ("Motion"). In this motion, the 

Secretary notes that she argued to the judge, and the judge held, that 

"Section 75.301 requires that harmful concentrations of methane not 

occur in the first instance [and] the second sentence of that section 

sets forth the minimum means which in all events must be followed· in 

seeking to achieve this result .... 11 Motion at 3 (emphasis fo original). 

However, the Secretary states that, "upon further review," MSHA has 

determined that its position before the judge "is not its preferred 

interpretation in the ~ircumstances present in this case, and is not 

consistent with its historic and ongoing enforcement position pertaining 

away, flammable, explosive, noxious, and harmful 

gases, and dust, and smoke and explosive fumes. The 

minimum quantity of air reaching the last open 

crosscut in any pair or set of developing entries 

and the last open crosscut in any pair or set of 

rooms shall be 9,000 cubic feet a minute, and the 

minimum quantity of air reaching the intake end of a 

pillar line shall be 9,000 cubic feet a minute. The 

minimum quantity of air in any coal mine reaching 

each working face shall be 3,000 cubic feet a 

minute. The authorized representative of the 

Secretary may require in any coal mine a greater 

quantity and velocity of air when he finds it 

necessary to protect the health or safety of miners. 

1752 
to the liberation of unexpected quantities of methane in a working 

place." Motion at 4. The Secretary further notes her "recognition that 

the liberation of methane is a natural phenomenon which occurs when coal 

is cut from its natural deposit, and that such occurrences are not 

readily predictable." Id. Based on the foregoing considerations, the 

Secretary restates her legal position in this matter as follows: 

It is, therefore, the Secretary's position that 

compliance with the ventilation quantity 

requirements of section 75.301, as implemented 

through an operator's approved ventilation plan, 

together with the remedial requirements of sections 

75.308 and 75.313, [~/] constitute the appropriate 

enforcement mechanisms with respect to unexpected 

methane liberation in working places (i.e., areas 

inby the last open crosscut; see 30 C.F.R. 

75.2(g)(2)). Thus, a violation of the first 

sentence of section 75.301, as cited ... below, does 

not occur when methane unexpectedly is encountered 

in excessive concentrations in working places. 

Applying this interpretation to the facts in this 

case, a violation of 30 C.F.R. 75.301 did not occur. 

Id. (emphasis in original). 

In light of this position, the Secretary now moves for vacation of 

the citation and dismissal of the proceeding. After receipt of the 

Secretary's motion, the Commission issued an order on August 8, 1990, 

directing BethEnergy to file a written response to the motion. On 

August 17, 1990, the Commission received BethEnergy's Response to Motion 

to Vacate ("Response"), indicating that it does not object to vacation 

of the citation and dismissal of the proceeding. BethEnergy notes in 

its response, however, that its position "does not, under any 

circumstances, constitute an admission by BethEnergy of the validity of 

the Secretary's assertions set forth in its Motion to Vacate." Response 

at 2. 

As we have held, our "responsibility under the Mine Act is to 

ensure that a contested case is terminated, or continued, in accordance 

with the Act." Youghiogheny & Ohio Coal Co., 7 FMSHRC 200, 203 

(February 1985). A motion by the Secretary to vacate a citation or 

withdrawal order and to dismiss a proceeding will be granted if 

"adequate reasons" to do so are present. Southern Ohio Coal Co., 

10 FMSHRC 1669, 1670 (December 1988) ("SOCCO"), and authorities cited. 

Here, the Secretary has disclaimed reliance on the legal position that 

she advocated successfully before the judge. Instead, the Secretary 

states that, applying her "preferred interpretation in the circumstances 

present in this case," it now appears to her that the alleged violation 

~/ 30 C.F.R. § 75.308 specifies the remedial actions to be taken when 

excess concentrations of methane occur in working places, ·and 

30 C.F.R. § 75.313 provides for the installation of approved methane 

monitors on specified kinds of mining equipment. 

1753 
of section 75.301 did not occur. As the prosecutor responsible for 

enforcement of the Act, the Secretary has concluded that she should seek 

dismissal of this proceeding, and that prosecutoty determination is 

entitled to special weight. SOCCO, 10 FMSHRC at 1670. The operator has 

not objected to the granting of the Secretary's motion and will not be 

prejudiced by the requested action. No reason otherwise appears on this 

record as to why the motion should not be granted. 

The Commission expresses no view as to the merits of the judge's 

determination that BethEnergy violated section 75.301 or the Secretary's 

present interpretation of that standard as applied to the circumstances 

involved in this case. 

Accordingly, upon consideration of the Secretary's motion and the 

operator's response, the Secretary's motion is granted. The citation 

and assessed civil penalty are vacated. The Commission's direction for 

review is vacated and this proceeding is dismissed. }/ 

lf Pursuant to section 113(c) of the Mine Act, 30 U.S.C. § 823(c), we 

have designated ourselves a panel of three Commissioners to exercise the 

powers of the Commission in this matter. 

1754 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

SANGER ROCK AND SAND 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 19, 1990 

ORDER 

Docket Nos. WEST 88-275-M 

WEST 89-71-M 

BY: Backley, Acting Chairman; Doyle and Nelson, Commissioners 

In this civil penalty proceeding arising under the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1988) ("Mine 

Act"), Commission Administrative Law Judge John Morris, in a May 17, 

1990 decision, vacated two citations issued to Sanger Rock and Sand 

("Sanger") and dismissed the proceeding on the ground that the Secretary 

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

Administration ( "MSHA") had failed to comply with section 552(a)( 1 )(A) 

of the Administrative Procedure Act, 5 U.S.C. § 552(a)(l)(A) ("APA"). 

On June 11, 1990, the Secretary filed a combined petition for review and 

motion for summary reversal of Judge Morris' decision. By order issued 

June 25, 1990, the Commission directed review of the Secretary's 

petition but stayed briefing pending consideration of the Secretary's 

motion for summary reversal. Sanger has filed oppositions to both the 

Secretary's petition for review and motion for summary reversal. 

On August 14, 1987, and April 13, 1988, MSHA Inspector Jaime 

Alvarez issued citations to Sanger for violations of 30 C.F.R. 

§ 56.12028 and 30 C.F.R. 56.14007, respectively. Sanger contested both 

citations. At hearing and in its post-hearing brief, Sanger challenged 

the validity of the citations on the ground that the Secretary and MSHA 

had failed to comply with section 552(a)(l)(A) of the APA. That 

provision provides that each federal agency shall publish in the Federal 

Register "descriptions of its central and field organization and the 

established places at which, the employees ... from whom, and the 

methods whereby, the public may obtain information, make submitt~ls or 

requests, or obtain decisions." Section 552(a) further provides that 

"[e]xcept to the extent that a person had actual and timely notice of 

the terms thereof, a person may not in any manner be required to resort 

to, or be adversely affected by, a matter required to be published in 

the Federal Register and not so published." 5 U.S.C. § 552(a). 

1755 
Finding no evidence that the Secretary or MSHA had published the 

required information, the judge concluded that Sanger had no notice of 

the inspector's duties and delegated authority or MSHA's central and 

field organizations. Citing Rowell v. Andrus, 631 F.2d 699 (10th Cir. 

1980), United States v. Two Hundred Thousand Dollars ($200,000) in 

United States Currency, 590 F. Supp. 866 (D. Fl. 1984), and Pinkus v. 

Reilly, 157 F. Supp. 548 (D.N.J. 1957), the judge determined that the 

Secretary's failure to comply with the APA warranted vacation of the 

citations as invalidly issued. 

On review the -Secretary has submitted an entry from the United 

States Government Manual 1989/1990 ("Manual") that refers to MSHA at pp. 

406, 409 and 424-25. The Secretary argues that the entry in the Manual 

constitutes compliance with section 552(a)(l)(A) of the APA since the 

Manual is designated as a special edition of the Federal Register. See 

1 C.F.R. 9.1. In response, Sanger argues that the Manual entry does not 

sufficiently provide the information required by section 552(a)(l)LA) of 

the APA. 

The manual entry submitted on review was not presented below to 

Judge Morris, but the Secretary argues that the Commission can take 

judicial notice of the contents of the Federal Register, citing 

44 U.S.C. 1507. However, section 113(d)(2)(A)(iii) of the Mine Act, 

30 U.S.C. § 823(d)(2)(A)(iii), provides, inter alia, "Except for good 

cause shown, no assignment of error by any party shall rely on any 

question of fact or law upon which the administrative law judge had not 

been afforded an opportunity to pass." 

The legal issues presented on review are jurisdictional in nature 

and we are mindful of the Secretary's arguments relating to judicial 

notice of Federal Register contents. Nevertheless, since the Manual 

entry was not submitted to the judge and since the judge is more 

appropriately positioned to deal with any factual issues surrounding the 

sufficiency of the Manual entry vis-a-vis section 552(a)(l)(A) of the 

APA, we conclude that it is preferable to remand the matter to the 

judge. The judge shall determine whether the Manual publication 

satisfies applicable APA requirements. In his reconsideration of this 

matter, we also direct the judge to determine what effect, if any, 

section 507 of the Mine Act, 30 U.S.C. § 956, has on the issues 

presented. l/ 

ll Section 507 of the Mine Act provides: 

Except as otherwise provided in this Act, the 

provisions of sections 551-559 and section 701-706 

of title 5 of the United States Code shall not apply 

to the making of any order, notice, or decision made 

pursuant to this Act, or to any proceeding for the 

review thereof. 

30 u.s.c. § 956. 

1756 
Accordingly, we remand the matter to the judge for further 

consideration of the issues set forth above. ~/ . 

Distribution 

Colleen A. Geraghty, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

James F. Baun, President 

Sanger Rock & Sand 

17125 E. Kings Canyon Road 

Sanger, California 93657 

Susanne Lewald, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

71 Stevenson Street, Suite 1110 

San Francisco, California 94119 

. .:~4-tV),, Richard V. Backley, Acting Ch".iirman 

Administrative Law Judge John Horris 

Federal Hine Safety & Health Review Commission 

280 Colonnade Center 

1244 Speer Boulevard 

Denver, Colorado 80204 

~/ Pursuant to section 113(c) of the Mine Act, we have designated 

ourselves a panel of three Commissioners to exercise the powers of the 

Commission in this matter. 

1757 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 20, 1990 

GOLDEN OAK MINING COMPANY, L.P. 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Docket No. KENT 90-185-R 

BEFORE: Backley, Acting Chairman; Doyle and Nelson, Commissioners 

ORDER 

BY THE COMMISSION: 

In this contest proceeding pending on review, arising under the 

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

(1988) ("Mine Act"), counsel for petitioner Golden Oak Mining Company, 

L.P. ("Golden Oak") has filed a Motion for Leave to Withdraw Petition 

for Discretionary Review. Counsel for the Secretary of Labor has filed 

a Response indicating that the Secretary "supports" Golden Oak's motion. 

In the proceeding below, Commission Administrative Law Judge James A. 

Broderick concluded that Golden Oak had violated 30 C.F.R. § 75.1712-1 

by not providing a surface bathing facility at its underground coal 

mine, and that the Department of Labor's Mine Safety and Health 

Administration ("MSHA") had not abused its discretion in denying Golden 

Oak's request for a-waiver of the standard's requirements. 12 FMSHRC 

1360 (June 1990)(ALJ). In its present motion, Golden Oak states that 

MSHA has now granted it a waiver of the bathing facility requirements 

and that its contest is "moot." Upon consideration of Golden Oak's 

motion and the Secretary's response, we conclude that adequate reasons 

have been presented for dismissal of this proceeding and we grant the 

motion. See generally,~, Youghiogheny & Ohio Coal Co., 7 FMSHRC 

200, 203 (February 1985). 

1758 
Accordingly, the Conunission's direction for review is vacated and 

this proceeding is dismissed. ~/ 

Distribution 

Teresa Taylor, Esq. 

Cook Law Off ice 

118 Hays Street 

P.O. Drawer 909 

Whitesburg, Kentucky 41858 

Dennis D. Clark, Esq. 

Office of the Solicitor 

U.S. Depart~ent of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

L. Clair Nelson, Conunissioner 

Administrative Law Judge James A. Broderick 

Federal Hine Safety :.. Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

*I Pursuant to section 113(c) of the Mine Act, 30 U.S.C. § 823(c), we 

have designated ourselves as a panel of the three Conunissioners to 

exercise the powers of the Conunission in this matter. 

1759 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

RANDY COAL COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 27, 1990 

Docket No. PENN 90-80 

BEFORE: Backley, Acting Chairman; Doyle and Nelson, Commissieners 

ORDER 

BY THE COMMISSION: 

This civil penalty proceeding arises under the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act"). On 

July 18, 1990, Commission Chief Administrative Law Judge Paul Merlin 

issued an Order of Default finding respondent Randy Coal Company ("Randy 

Coal") in default for its failure to answer the Secretary of Labor's 

civil penalty proposal and the judge's order to show cause. The judge 

assessed Randy Coal a civil penalty of $98, as proposed by the 

Secretary. In an undated letter (postmarked September 20, 1990), 

addressed to Judge Merlin, which was received on September 24, 1990, 

Randy Coal states that it believed it had been "released" from the 

violation in question. For the reasons explained below, we deem Randy 

Coal's submission to be one seeking relief from a final Commission 

decision, reopen the proceeding, vacate the judge's default order, and 

remand for further proceedings. 

On March 26, 1990, the Secretary filed with the Commission a 

petition for assessment of civil penalty in this matter, based on a 

citation issued by the Department of Labor's Mine Safety and Health 

Administration to Randy Coal at its Mine Hill Strip. When no answer to 

the penalty proposal was filed with the Commission, Judge Merlin, on May 

15, 1990, issued a show cause order directing Randy Coal to file an 

answer within 30 days or show good reason for the failure to do so. The 

judge entered an Order of Default on July 18, 1990, after Randy Coal 

failed to file an answer. On September 24, 1990, the Commission 

received a letter from Randy Coal's owner, addressed to Judge Merlin, 

stating the owner's belief that Randy Coal had been "released" from the 

violation. 

1760 
The judge's jurisdiction over the case terminated when his default 

order was issued on July 18, 1990. 29 C.F.R. § 2700.6S(c). Under the 

Mine Act and the Commission's procedural rules, once a decision has 

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

Commission a petition' for discretionary review within 30 days of the 

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

judge's decision has become final by operation of law, 30 U.S.C. 

§ 823(d)(l), we can consider the merits of Randy Coal's submission only 

if we construe it as a request for relief from a final Commission 

decision incorporating a petition for discretionary review. See 

29 C.F.R. § 2700.l(b) (applicability of Federal Rules of Civil Procedure 

to Commission proceedings); Fed. R. Civ. P. 60(b)(relief from judgment 

or order). Under the circumstances presented, we consider Randy Coal's 

request in that light. See J.R. Thompson, Inc., 12 FMSHRC 1194, 1195 

(June 1990). 

In compliance with the standards set forth in Fed. R. Civ. P. 

60(b)(l), the Commission has previously afforded a party relief from 

final orders of the Commission where it appears the party's failure to 

respond to a judge's order and the party's subsequent default are due to 

inadvertance or mistake. See Kelley Trucking Co., 8 FMSHRC 1867, 1868 

(December 1986); M.M. Sundt Construction Co., 8 FMSHRC 1269, 1270-71 

(September 1986). The owner's letter to the judge contains allegations 

that may reflect confusion and misunderstanding as to the nature and 

appropriate procedures of this civil penalty proceeding and, 

additionally, may reflect problems in the legal representation provided 

Randy Coal by its attorney. We conclude that, in fairness, Randy Coal 

should be afforded the opportunity to submit its explanations to the 

judge, who shall determine whether final relief from default is, in 

fact, warranted. 

1761 
For the foregoing reasons, we reopen the proceeding, vacate the 

judge's default order, and remand this matter for further proceedings. 

Randy Coal's attention is directed to the requirements that all fu~ther 

pleadings that it wishes to submit in this proceeding must be filed with 

the Commission and copies of all such documents served on the Secretary 

of Labor. 29 C.F.R. §§ 2700.S(b) & .7. lf 

Richard V. Backley, 

yLt:_LL-- d. ~z(z.._ Joyce i. Doyle, Commissioner/ 

~ L. Clair Nelson, Commissioner 

lf Pursuant to section 113(c) of the Mine Act, we have designated 

ourselves a panel cf three Commissioners to exercise the powers of the 

Commission in this matter. 

1762 
ADMINISTHATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BOB SHERMAN, Employed by 

BLACKHAWK, 

Respondent 

DENVER, CO 80204 

SEP 

. 

. 

. . 

4 1990 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 90-110-M 

A.C. No. 04-04663-05509 

Evening Star Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Morris 

This is a civil penalty proceeding initiated by the 

petitioner against respondent, in accordance with the Federal 

Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et~ The 

civil penalty sought here is for the violation of a mandatory 

standard promulgated pursuant to the Act. 

Prior to a hearing, the parties filed a motion seeking 

approval of a proposed settlement. 

Citation 3462951 alleges a violation of 30 C.F.R. § 57,6250. 

An original assessment of $250 was proposed. The parties now 

seek a decision affirming the citation and assessing a penalty of 

$25. 

In support of their motion to approve the settlement, the 

parties have submitted information relating to the statutory 

criteria required for assessing civil penalties as contained in 

30 u.s.c. § 820(i). 

I have reviewed the proposed settlement and I find it is 

reasonable and in the public interest. It should be approved. 

Accordingly, I enter the following: 

ORDER 

1. Citation 3462951 and the amended civil penalty of $25 

are AFFIRMED. 

1763 
2. Respondent is ordered to pay the sum of $25 within 30 

days of the date of this decision. 

Law Judge 

Distribution: 

George B. O'Haver, Esq., Office of the Solicitor, U.S. Department of Labor, 71 Stevenson Street, Suite 1110, San Francisco, CA 

94105 (Certified Mail) 

Mr. Bob Sherman, Blackhawk, 4750 Kelso Creek, Weldon, CA 0 3283 

(Certified Mail) 

/ek 

1764 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

SEP 1U19'.-50 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

ROBERT BLACK, 

Complainant 

v. 

WAYNE PULLIAM, TEXAS SAND 

& GRAVEL, CO., INC., 

Respondent 

DISCRIMINATION PROCEEDING 

Docket No. CENT 89-165-DM 

MD 88-99 

Mansfield Pit & Plant 

ORDER DISMISSING PROCEEDING 

Before: Judge Lasher 

The settlement of the parties, providing for back wage 

payments in installments, has been consummated by Respondent's 

payment of the last installment. Such was confirmed by telephone 

by Complainant's counsel on August 21, 1990. The settlement was 

approved by my Decision Approving Settlement on April 5, 1990. 

Accordingly, the matter having been resolved, this proceeding 

is DISMISSED. 

Distribution: 

. . -· ~£· . /.. ,# 

·t-.c./~<C/r ~'~f.4'!" g · 

chael A. Lasher, Jr. 

Administrative Law Judge 

Lisa Gray, Esq., Office of the Solicitor, U.S. Department of 

Labor, 4015 Wilson Boulevard, Suite 400, Arlington, VA 22203 

(Certified Mail) 

Tad Fowler, Esq., Miller & Herring, P.O. Box 2330, Amarillo, TX 

79105 (Certified Mail) 

Robert Black, 302 s. Brandt, Spearman, TX 79081 (Certified Mail) 

/ot 

1765 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG Pl KE 

FALLS CHURCH, VIRGINIA 22041 

SEP 121990 

JOSEPH S. COLAMARTINO, 

Complainant 

v. 

GATEWAY COAL COMPANY, 

Respondent 

. . 

. . 

DECISION 

DISCRIMINATION PROCEEDING 

Docket No. PENN 89-271-D 

Appearances: Paul H. Girdany, Esq., Pittsburgh, Pennsylvania, 

for the Complainant; R. Henry Moore, Esq., 

Pittsburgh, Pennsylvania, for the Respondent. 

Before: Judge Maurer 

STATEMENT OF THE CASE 

Complainant filed a complaint with the Commission under 

section 105(c) of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 815(c) [hereinafter referred to as the Act], on 

September 1, 1989, alleging that he was assaulted by one of the 

Respondent's foremen, Pete Krosunger, because he wanted to rib 

pin an area that the foreman did not want pinned. The foreman, 

Krosunger, on the other hand, admits hitting Complainant, but 

contends that the incident occurred because of his pent-up 

frustration with supervising Colamartino. The Respondent 

(Gateway) maintains that the only adverse action taken against 

Complainant was taken by Mr. Krosunger and that they for their 

part, not only did not sanction his actions, but in fact, 

suspended him for 60 days without pay as a result. 

Pursuant to notice, this case was heard in Pittsburgh, 

Pennsylvania, on March 19 and 20, 1990. Both parties have filed 

post-hearing proposed findings of fact and conclusions of law 

which I have considered along with the entire record in making 

this decision. 

STIPULATIONS 

The parties stipulated to the following at the hearing, 

which I accepted (Tr. 5-6): 

1. The administrative law judge has jurisdiction in this 

proceeding. 

1766 
2. The Gateway Coal Company operates coal mine facilities, 

and therefore, is an operator as defined under section 3(d) of 

the Act. 

3. Complainant Joseph Colamartino has had a job 

classification of roof bolter, which at the time, under the 

collective bargaining agreement in effect between the parties, 

paid $16.92 per hour or $122.73 per day. 

4. On May 17, 1989, he was assigned certain roof bolting 

duties with another employee named Sylvester Richards. 

5. His supervisor that day was Gerald A. (Pete) Krosunger. 

6. An altercation occurred on that day from which 

Mr. Colamartino suffered injuries. 

7. Mr. Colamartino was absent from work from May 17 to 

August 14, 1989. 

8. Complainant, Mr. Colamartino, received workers' 

compensation payments during this period of time in the amount of 

$399 per week. 

9. Aside from the actual physical assault, there was no 

formal disciplinary action taken against Mr. Colamartino; i.e., 

adverse action. 

10. From on or about June 16, 1989 until July 17, 1989, the 

bargaining unit employees at the Gateway Coal Company, did not 

report for work. 

11. Pete Krosunger was suspended without pay from May 18, 

1989 until July 15, 1989. 

FINDINGS OF FACT 

1. Complainant first started to work for Gateway Coal 

Company (Gateway) in January of 1977. He worked until he got 

laid off in 1985 and was then recalled in 1988. He worked as a 

roof bolter for Pete Krosunger from May of 1988 until the 

incident involved herein, which occurred on May 17, 1989. 

2. During this year-long period, Krosunger had some 

problems supervising Colamartino, including several incidents of 

insubordination, which are documented in two notebooks received 

into evidence as Respondent's Exhibit Nos. 7 and 8, and 

summarized in Respondent's Exhibit No. 6. More specifically, 

there are several instances documented by Krosunger where 

Colamartino complained about or refused to perform rib-pinning. 

1767 
3. For example, on the very day of the incident, May 17, 

1989, at the beginning of the shift, when told by Krosunger that 

he would have to rib-pin the No. 1 heading, Colamartino replied 

to the effect: "Why do we have to do it, nobody else on the 

other shifts is doing it?" He further testified at the hearing, 

by way of explanation, that he wanted to know why, if rib-pinning 

that entry was so important, the other two shifts were not 

helping with the task. He did not appreciate it that they had 

not done their share. 

4. At the beginning of their shift on May 17, 1989, 

Krosunger had assigned Colamartino and his bolting partner, 

Richards, to rib-pin an area in the No. 1 entry. Two hours 

later, when Krosunger checked on their progress, he found that 

they had only installed about twenty rib pins despite the fact 

that it only takes 3 to 4 minutes to install each pin. Krosunger 

was upset about this and Colamartino knew it. 

5. At this point in time, Colamartino informed Krosunger 

that they would not pin those areas of the rib where loose coal 

and sloughage had either fallen down or been taken down by their 

scaling the rib. Complainant opined that they could not safely 

install rib pins in that area because they could not secure safe 

footing. Mr. Virgili, a safety committeeman who inspected the 

area shortly after the incident giving rise to this case 

occurred, agrees that it would have been unsafe to install rib 

pins in that area. Krosunger believed that Colamartino had 

purposely scaled the rib in order to have some reason not to ribpin it. 

6. After some repartee between the two as to whether or not 

Colamartino did or did not want to rib-pin, Krosunger ordered 

Complainant and Richards to go to the No. 2 entry and bolt the 

roof where the continuous miner pulled out. 

7. Krosunger specifically told Complainant and Richards not 

to rib pin in this one area of the No. 2 heading where the miner 

was going to begin a crosscut, perhaps on that same shift. 

8. When Krosunger returned to the face of the No. 2 heading 

sometime later, he found Colamartino preparing to rib-pin. He 

testified at Tr. 279-281 and which testimony I find credible and 

do credit it here: 

I went up on Lester's side, I said, "What 

are you doing, Lester?" 

* * * * 

Q. Lester is Mr. Richards? 

A. Sylvester Richards, right. 

1768 
"I told you, don't rib pin this." He 

went like this (indicating). 

Q. He gestured with his hand? 

A. Right. 

* * * * 

Q. Who was he motioning toward? 

A. Joe, his buddy. (Colamartino] 

* * * * 

Q. What did you do then? 

A. I went over and asked Joe, "Why are you 

rib pinning? I told you don't rib pin this. 

We are going to cut them out anyway." 

Q. What did he say? 

A. His response was, "The company wants 

these places rib pinned, they are going to 

get them rib pinned." 

Q. What happened at that point? 

A. He started to stretch out boards. 

I said, "Joe, don't rib pin this. We are 

going to cut them out anyway." This is what 

I said to him again, following him around the 

machine, because he is putting those boards 

down in the area they would be installed. I 

was picking them up and putting them back on. 

Q. Do you recall how many times you went 

around the bolter like this? 

A. I would say twice. 

Q. And he was putting them down and you were 

picking them up? 

A. Right. 

Q. What happened after you did that? 

A. I asked him, "What are you 

told you don't rib pin." 

grabbed that drill and started 

face. 

doing, Joe? I 

. [A]nd he 

walking to the 
At that· point Krosunger grabbed the drill to pull it away 

from him. Colamartino resisted and Krosunger began hitting him 

until Richards yelled for him to stop. 

9. The purpose of rib-pinning in this mine is to prevent 

the ribs from spalling and depositing accumulations of 

combustible materials along the ribs, however, generally the 

areas which are to be cut out to create crosscuts are not pinned. 

Installation of rib pins before the crosscut is made would 

require the continuous mining machine to cut out those pins which 

could present a hazard to the miner operator, and/or damage the 

equipment. 

10. There is no requirement for the entire mine to be ribpinned, and it is not unusual to have areas of unpinned rib in 

this mine in addition to those areas where a crosscut is planned. 

11. After the incident occurred, Mr. Rodavich, the mine 

superintendent, went underground to inspect the area, 

specifically the condition of the ribs in the No. 2 entry. They 

looked adequate to him. They looked like the rest of the section 

looked. He did not see any hazards present that would have 

mandated rib-pinning. 

12. Neither Complainant nor Krosunger knew for sure when 

the turnout would be made from the No. 2 entry and thus 

Complainant's position is that his safety concern was for other 

miners who would have to travel through the No. 2 entry for some 

undetermined period of time and would therefore be subject to 

injury from possible rib f~lls if no rib pins were installed in 

this area for their protection. I find as a fact that this 

alleged safety concern for others was not in fact the 

Complainant's motivation for his behavior prior to the incident 

at bar on May 17, 1989. 

13. The Complainant never raised a safety issue with 

Krosunger on behalf of himself or others nor sought to exercise 

his individual safety rights under the union contract with regard 

to rib-pinning this turnout area. He likewise did not seek to 

inform the safety committeeman, Mr. Virgili, who was on the 

section, of his concern over this area's ribs. 

DISCUSSION, FURTHER FINDINGS, AND CONCLUSIONS 

The general principles governing analysis of discrimination 

cases under the Mine Act are settled. In order to establish a 

prima facie case of discrimination under section 105(c) of the 

Act, a complaining miner bears the burden of production and proof 

in establishing that (1) he engaged in protected activity and (2) 

the adverse action complained of was motivated in any part by 

that protected activity. Secretary on behalf of Pasula v. 

Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 {October 1980), 

1770 
rev'd on other grounds sub nom. Consolidation Coal Co. v. 

Marshall, 663 F.2d 1211 (3rd Cir. 1981); Secretary on behalf of 

Robinette v. United Castle Coal Co., 3 FMSHRC 817-18 (April 

1981). The operator may rebut the prima facie case by showing 

either that no protected activity occurred or that the adverse 

action was not motivated in any part by protected activity. If 

an operator cannot rebut the prima facie case in this manner, it 

nevertheless may defend affirmatively by proving that it also was 

motivated by the miner's unprotected activity and would have 

taken the adverse action in any event for the unprotected 

activity alone. Fasula, supra; Robinette, supra. See also, 

~, Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4th 

Cir. 1987); Donovan v. Stafford Construction Co., 732 F.2d 954, 

958-59 (D.C. Cir. 1984); Boich v. FMSHRC, 719 F.2d 194, 195-96 

(6th Cir. 1983) (specificall~ approving the Commission's FasulaRobinette test). Cf. NLRB v. Transportation Management Corp., 

462 U.S. 393, 397-413 (1983) (approving nearly identical test 

under National Labor Relations Act). 

Treating this as a work refusal case, it is also well 

settled that a miner has the right under section 105(c) of the 

Act to refuse to work if he has a good faith, reasonable belief 

that the work involves a hazardous condition. Fasula, supra, 2 

FMSHRC at 2789-96; Robinette, supra, 3 FMSHRC at 807-12; Miller 

v. FMSHRC, 687 F.2d 194 (7th Cir. 1982). Additionally, where 

reasonably possible, a miner refusing work ordinarily must 

communicate or attempt to communicate to some representative of 

the operator his belief th~t a hazardous condition exists. 

Secretary on behalf of Dunmire & Estle v. Northern Coal Co., 4 

FMSHRC 126, 133-135 (February 1982); Dillard Smith v. Reco, Inc. 

9 FMSHRC 992 (June 1987); Miller v. Consolidation Coal Company, 

687 F.2d 194, 195-97 (7th Cir. 1982) (approving Dunmire & Estle 

communication requirement). 

Although by insisting on pinning the ribs in the No. 2 entry 

Colamartino was seeking to perform work, rather than refusing to 

perform work, a framework for analyzing this incident based upon 

a refusal to perform hazardous work is useful here. In essence, 

Colamartino was refusing to comply with a work order, in that he 

was directed several times by Krosunger not to rib pin the No. 2 

entry. 

Complainant's actions herein could be held to be protected 

activity even though he did not feel personally endangered. It 

would be sufficient if he were acting to confront a threat to the 

health or safety of other miners. Secretary on behalf of Cameron 

v. Consolidation Coal Co., 7 FMSHRC 319 (1985), aff'd. sub nom. 

Consolidation Coal Co. v. FMSHRC, 795 F.2d 364 (4th Cir. 1986). 

If the Complainant in this case engaged in protected 

activity at all, it was on ·behalf of other miners, not himself. 

Complainant did not feel personally endangered. Rather, he 

1771 
allegedly was-concerned that if he did not rib-pin the area of 

the proposed turnout in the No. 2 entry, that it would remain 

unpinned for an unspecified period until it was cut-out. In the 

interim, others would be exposed to the dangers associated with 

rib falls or rolls. 

The Complainant herein bears the burden of proof that such a 

hazard existed or at the very least that he had a good faith, 

reasonable belief in its existence. I do not believe he has 

carried that burden •. I do not believe Colamartino had any 

safety-related concern whatsoever in the No. 2 entry. He only 

wanted to rib-pin the one exact area that his foreman 

specifically instructed him not to pin. There were many other 

areas that were unpinned, but he did not care to pin them, in 

fact, resisted rib-pinning in general. He only wanted to pin the 

one area where Krosunger told him repeatedly there was g9-ing to 

be a turn-out made. I find that his action in insisting on 

attempting to rib-pin the area in question in the No. 2 entry did 

not rise to the level of protected activity. 

It is fairly obvious to me, or at least it is my decided 

impression from the totality of the record in this case, that 

Colamartino's purpose was to aggravate his supervisor, Krosunger. 

Historically, he complained about having to rib-pin. Earlier on 

that same shift, he refused to rib-pin an area he had been 

directed to, after he scaled down material in front of the rib. 

If insecure footing truly was the problem keeping him from the 

assigned rib-pinning, he could have shoveled the sloughage up and 

continued to pin the ribs that Krosunger wanted him to pin in the 

No. 1 entry. 

It also appears to me from the record herein, that the ribs 

in the area he wanted to pin were no different than the ribs in 

the rest of the section. There was no particular hazard there. 

Additionally, there appears to be a legitimate reason why 

Krosunger did not want them pinned, i.e., they would only have to 

be cut out when the turnout was made. Furthermore, turnouts were 

not routinely rib-pinned and it was the usual practice for 

foremen to instruct the men not to pin those areas. Colamartino 

was apparently aware of this because on prior occasions he had 

asked about the locations of turnouts to avoid rib-pinning. 

From Krosunger's point of view, it is apparent to me that he 

acted out of sheer personal animus towards Colamartino. There is 

no basis in this record to find that he struck the Complainant 

because he was reacting to any safety concerns that Colamartino 

may have had. First of all, Colamartino did not express any 

safety-related concerns to him; and in any event it is clear to 

me that Krosunger's actions were motivated by unprotected 

activity alone. Not only unprotected activity (shirking, 

insubordination, "mistakes", slowness to perform, etc.) that 

occurred on that same shift, but this same type of thing had been 

1772 
troubling.Krosunger for some time already.before May 17, 1989. I 

believe he was severely provoked by all.of this and unfortunately 

the assault on Mr. Colamartino of May 17, 1989, resulted. 

Krosunger was thereupon suspended for sixty days without pay 

by the operator-respondent. Since Krosunger's personal assault 

on Colamartino is the only "adverse action" complained of in this 

case, even if I find that Complainant had engaged in protected 

activity, he would also necessarily have to impute the actions of 

Krosunger to Gateway. He would have to demonstrate that 

Krosunger was acting within the scope of his employment as the 

agent of Gateway. This proposition fails of proof as well. Not 

only did Gateway not condone or authorize Mr. Krosunger's 

actions, they took severe disciplinary measures against him for 

assaulting Colamartino. In my opinion, when Krosunger hit 

Colamartino, he acted on his own behalf, not on behaLf of 

Gateway. 

CONCLUSIONS OF LAW 

1. Mr. Colamartino did not engage in protected activity in 

the No. 2 entry on May 17, 1989. 

2. Mr. Colamartino's refusal to comply with Mr. Krosunger's 

directives not to rib-pin in the No. 2 entry was neither made in 

good faith nor reasonable. 

3. In any event, Mr. Colamartino did not communicate to any 

representative of the operator, including Mr. Krosunger, his 

belief that a hazardous condition existed or would come into 

existence to endanger himself or others in the No. 2 entry. 

4. The adverse action complained of in this case was taken 

against the Complainant by Mr. Krosunger personally, not 

Respondent herein. Mr. Colamartino received no discipline from 

Gateway. 

5. Gateway-did not violate sectiori 105(c) of the Federal 

Mine Safety and Health Act of 1977. 

ORDER 

In view of the foregoing findings and conclusions, and on 

the basis of a preponderance of all ·of the credible testimony and 

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

Complainant has failed to establish a violation of section 105(c) 

1773 
of the Act. Accordingly, his complaint IS DISMISSED, and his 

claims for relief ARE DENIED. 

rer 

tive Law Judge 

Distribution: 

Paul H. Girdany, Esq., Healey Whitehill, Fifth Floor, Law & 

Finance Building, Pittsburgh, PA 15219 (Certified Mail) 

R. Henry Moore, Esq., Buchanan Ingersoll, P.C., 600 Grant Street, 

58th Floor, Pittsburgh, PA 15219 (Certified Mail) 

slk 

1774 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

SEP 1 71990 

EMERY MINING CORPORATION 

AND/OR UTAH POWER & LIGHT 

COMPANY, 

Contestants 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

and 

UNITED MINE WORKERS OF 

AMERICA, ( UMWA), 

Intervenor 

1775 

CONTEST PROCEEDINGS 

Docket No. WEST 87-130-R 

Citation No. 2844485; 3/24/87 

: Docket No. WEST 87-131-R 

Order No. 2844486; 3/24/87 

Docket No. WEST 87-132-R 

Order No. 2844488; 3/24/87 

Docket No. WEST 87-133-R 

Order No. 2844489;<-3/24/87 

: Docket No. WEST 87-144-R 

Order No. 2844795; 3/24/87 

Docket No. WEST 87-145-R 

Order No. 2844796; 3/24/87 

Docket No. WEST 87-146-R 

Order No. 2844798; 3/24/87 

: Docket No. WEST 87-147-R 

Order No. 2844800; 3/24/87 

. 

. 

. . 

. . 

: 

Docket No. WEST 87-150-R 

Order No. 2844805; 3/24/87 

Docket No. WEST 87-152-R 

Order No. 2844807; 3/24/87 

Docket No. WEST 87-153-R 

Order No. 2844808; 3/24/87 

Docket No. WEST 87-156-R 

Order No. 2844813; 3/24/87 

Docket No. WEST 87-157-R 

Order No. 2844815: 3/24/87 

Docket No. WEST 87-160-R 

Order No. 2844822; 3/24/87 

Docket No. WEST 87-161-R 

Order No. 2844823; 3/24/87 

Docket No. WEST 87-248-R 

Order No. 2844835: 8/13/87 

: Wilberg Mine 

Mine I.D. No. 42-00080 
SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

EMERY MINING CORPORATION, and 

ITS SUCCESSOR-IN-INTEREST 

UTAH POWER & LIGHT COMPANY, 

MINING DIV. , 

Respondent 

and 

UNITED MINE WORKERS OF 

AMERICA ( UMWA) , Intervenor 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 87-208 

A.C. No. 42-00080-03578 

Docket No. WEST 87-209 

A.C. No. 42-00080-03579 

Docket No. WEST 88-25 

A.C. No. 42-00080-03584 

Wilberg Mine 

Consolidated 

DECISION APPROVING SETTLEMENT 

Before: Judge Morris 

These are contest and civil penalty proceedings arising 

under the Federal Mine Safety and Health Act of 1977, 30 u.s.c. 

§ 801 et seq. 

These cases arose from the Wilberg Mine Fire disaster, an 

underground coal mine fire that occurred in Orangeville, Emery 

County, Utah. 

As a result of the fire, on March 24, 1987, the Secretary 

issued to Emery Mining Corporation ("Emery") and Utah Power and 

Light C"UP&L), as Emery's alleged successor-in-interest, 34 

citations and orders-alleging violations of the Mine Act. UP&L 

challenged all 34 citations and orders. Emery filed notices of 

contest challenging 18 of the citations and orders, paid the 

penalties assessed for eight of the citations and orders and 

challenged eight other violations in the related penalty 

proceedings. 

Subsequently, Emery paid the civil penalties assessed on 

three of the citations and orders for which it had previously 

filed notices of contest. UP&L's 34 and Emery's 23 challenges 

were consolidated in Docket Nos. WEST 87-130-R through WEST 

87-163-R ("130-series dockets"). 

On August 13, 1987, the Secretary issued seven additional 

citations to Emery as the operator of Wilberg and UP&L as Emery's 

1776 
successor-in-interest. UP&L again challenged all seven citations, 

while Emery filed a notice of contest in only one case, paying the 

assessed civil penalties in the remaining six. These notices of 

contest were assigned Docket Nos. WEST 87-243-R through WEST 

87-249-R ("243-series dockets") and consolidated with the 130-series 

dockets. 

Parallel penalty proceedings were also consolidated with the 

above contest cases (Docket Nos. WEST 87-208; WEST 87-209; WEST 

88-25). 

On March 9, 1988, 11 of the 130-series citations and orders and 

the related penalty cases were vacated as to UP&L. Emery Mining 

Corp., 10 FMSHRC 339 (1988). (Docket Nos. WEST 87-138-R; WEST 

87-139-R; WEST 87-140-R; WEST 87-141-R; WEST 87-142-R; WEST 

87-143-R; WEST 87-148-R; WEST 87-149-R; WEST 87-151-R; WEST 

87-154-R; WEST 87-162-R.) These 11 cases were later dismissed as to 

Emery as well, by Order dated August 5, 1988, on the grounds that 

Emery had paid the assessed civil penalties. In a separate Order 

dated March 24, 1988, and amended March 25, 1988, the Presiding 

Judge noted that six of the seven 243-series cases could also be 

vacated as to UP&L on the basis of the March 9 Order. (Docket Nos. 

WEST 87-243-R; WEST 87-244-R; WEST 87-245-R; WEST 87-246-R; WEST 

87-247-R; WEST 87-249-R.) 

The Secretary sought to modify the 30 remaining citations and 

orders, including the 243-series cases, to which the March 9 ruling 

had not been applied. The modification sought to cite UP&L 

directly, as an operator of the Wilberg Mine. 

On August 30, 1988, all 30 "modified" citations and orders were 

vacated as to UP&L. The Secretary sought review of the August 30 

Order, but, at the joint request of the Secretary and UP&L, briefing 

and further proceedings at the c~mmission level were stayed pending 

the final disposition of the proceedings involving Emery (in the 

belief that resolution of the Emery cases might obviate the need for 

further Commission proceedings). 

On appeal, the Commission did not stay proceedings before the 

Presiding Judge. Accordingly, the Judge has jurisdiction to consider the proposed settlement. Further, it is necessary to formally 

dismiss the contest proceedings. 

CONTEST PROCEEDINGS 

The contest cases remaining pending herein should be dismissed 

for the reasons hereafter noted: 

1777 
WEST 87-13.0-R (Citation No. 2844485): 

UP&L's motion to vacate this citation was granted and 

Emery ha.s withdrawn its contest. 

WEST 87-131-R (O~der No. 2844486): 

UP&L's motion to vacate this order was granted and Emery 

has withdrawn its contest. 

WEST 87-132-R (Order No. 2844488): 

UP&L's motion to vacate this order was granted and 

Emery has withdrawn its contest. 

WEST 87-133-R (Order No. 2844489): 

UP&L's motion to vacate this order was granted and Emery 

has withdrawn its contest. 

WEST 87-144-R (Order No. 2844795): 

UP&L's motion to vacate this order was granted and Emery 

has withdrawn its contest. 

WEST 87-145-R (Order No. 2844796): 

UP&L's motion to vacate this order was granted and Emery 

has withdrawn its contest. 

WEST 87-146-R (Order No. 2844798): 

UP&L's motion to vacate this order was granted and Emery 

has withdrawn its contest. 

WEST 87-147-R (Order No. 2844800): 

UP&L's motion to vacate this order was granted and Emery 

has withdrawn its contest. 

WEST 87-150-R (Order No. 2844805): 

UP&L's motion to vacate this order was granted and Emery 

has withdrawn its contest. 

1778 
WEST 87-152-R (Order No. 2844807): 

UP&L's motion to vacate this order was granted and Emery 

has withdrawn its contest. 

WEST 87-153-R (Order No. 2844808): 

UP&L's motion to vacate this order was granted and Emery 

has withdrawn its contest. 

WEST 87-156-R (Order No. 2844813): 

UP&L's motion to vacate this order was granted and Emery 

has withdrawn its contest. 

WEST 87-157-R (Order No. 2844815): 

UP&L's motion to vacate this order was granted and Emery 

has withdrawn its contest. 

WEST 87-160-R (Order No. 2844822): 

UP&L's motion to vacate this order was granted and Emery 

has withdrawn its contest. 

WEST 87-161-R (Order No. 2844823): 

UP&L's motion to vacate this order was granted and Emery 

has withdrawn its contest. 

WEST 87-248-R (Citation No. 2844835): 

Vacated as to UP&L and pending as to Emery. The citation 

herein has been settled, as provided in the civil penalty 

proceedings. 

CIVIL PENALTY PROCEEEDINGS 

The parties at this time have reached an amicable settlement of 

the three penalty proceedings (Docket Nos. WEST 87-208, WEST 87-209, 

WEST 88-25). These penalty cases involve 24 of the alleged violations that were initially challenged in the 130- series and 243-

series. Emery is the sole respondent in these cases. 

The outstanding civil penalties herein were originally assessed 

for a total amount of $106,749. Emery has offered to settle these 

matters by the voluntary payment of $95,000 with the specific 

amounts to be allocated by the Secretary. 

1779 
The Secretary's allocation set forth in her motion is based on 

the statutory criteria for assessing civil penalties. 

The proposed dispositions are as follows: 

Citation/ 

Order No. 

2844485 

2844486 

2844488 

2844489 

2844490 

2844815 

2844491 

2844492 

2844493 

2844816 

2844822 

2844826 

2844813 

2844817 

2844823 

2844805 

2844800 

2844795 

2844796 

2844798 

2844807 

2844808 

2844811 

2844835 

30 C.F.R. 

75.1725Ca) 

75.512 

75.1101-23(a) 

75.1704-2(d) 

75.1714(b) 

75.1704 

75.1105 

75.1107-l(a)(2) 

75.1600-2(e) 

75.103(j) 

75.316 

75.1704-2(a) 

75.1702 

75.508 

75.1103-4(a)(l) 

75.904 

75.513 

75.900 

75.1101-5Cb) 

75.1101-5(2) 

75.512 

75.512 

75.1103-4(e) 

75.1704 

Proposed 

Assessment 

$10,000 

$10,000 

$10,000 

$10,000 

$10,000 

$10,000 

$ 7,000 

$ 5,000 

$ 5,000 

$ 4,000 

$ 4,000 

$ 329 

$ 1,600 

$ 20 

$ 2,000 

$ 1,900 

$ 1,200 

$ 4,000 

$ 2,000 

$ 1,800 

$ 1,800 

$ 1,800 

$ 1,400 

$ 2,000 

Settlement 

Amount 

$10,000 

$10,000 

$10,000 

$10,000 

$10,000 

$10,000 

$ 7,000 

$ 5,000 

$ 5,000 

$ 4,000 

$ 1,000 

$ 329 

$ 250 

$ 20 

$ 2,000 

$ 1,900 

$ 200 

$ 4,000 

$ 1,000 

$ 800 

$ 500 

$ 500 

$ 1,000 

$ 501 

I have reviewed the proposed settlement and I find it is 

reasonable and in the public interest. It should be approved. 

For the foregoing reasons I enter the following: 

1780 
ORDER 

1. The following contest cases are DISMISSED: 

WEST 87-130-R 

WEST 87-131-R 

WEST 87-132-R 

WEST 87-133-R 

WEST 87-144-R 

WEST 87-145-R 

WEST 87-146-R 

WEST 87-147-R 

WEST 87-150-R 

WEST 87-152-R 

WEST 87-153-R 

WEST 87-156-R 

WES'r 87-157-R 

WEST 87-160-R 

WEST 87-161-R 

WEST 87-248-R 

2. The Motion to Approve Settlement of the penalty cases 

(WEST 87-208, WEST 87-209, and WEST 88-25) is GRANTED. 

3. Emery is ordered to pay to the Secretary the sum of 

$95,000 within 10 days after this "Decision Approving Settlement" 

becomes a final Commission Decision. 

Distribution: 

Timothy M. Biddle, Esq., Thomas C. Means, Esq., Ann R. Klee, 

Esq., CROWELL & MORING, 1001 Pennsylvania Ave., N.W., Washington, 

D.C. 20004 (Certified Mail) 

James B. Crawford, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified 

Mail) 

Mary Lu Jordan, Esq., Michael Dinnerstein, Esq., United Mine 

Workers of America, 900 15th Street, N.W., Washington, D.C. 20005 

(Certified Mail) 

/ek 

1781 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 181990 

SECRETARY OF LABOR, 

MINE SAFETY AND .HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

WESTMORELAND COAL COMPANY, 

Respondent . . 

DECISION 

CIVIL PENALTY PROCEEDINGS 

Docket No. VA 90-28 

A. C. No. 44-00304-03618 

Bullitt Mine 

Appearances: Mark R. Malecki, Esq., Office of the Solicitor, 

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

for the Secretary; 

F. Thomas Rubenstein, Esq., Assistant General 

Counsel, Westmoreland Coal Company, Big Stone Gap, 

Virginia, for the Respondent. 

Before: Judge Weisberger 

Statement of the Case 

In this proceeding, the Secretary (Petitioner) seeks a civil 

penalty for an alleged violation by the Operator (Respondent) of 

30 C.F.R. § 75.1003. Pursuant to notice, the case was heard in 

Bristol, Virginia, on June 25, 1990. At the hearing, Gary Wayne 

Jessee testified for Petitioner, and John Yorke testified for 

Respondent. At the conclusion of Petitioner's case, Respondent 

made a Motion to have the citation vacated, and decision was 

reserved. Subsequent to hearing, Petitioner ·and Respondent filed 

Proposed Findings of Fact and Briefs on August 10 and August 7, 

respectively 

Stipulations 

At the hearing, Petitioner read into the record the 

following stipulations: 

1. The Westmoreland Coal Company is the owner and 

operator of the Bullet Mine which is the subject of 

this proceeding. 

2. That the operations of the above mentioned mine is 

subject to the Mine Safety and Health Act. 

1782 
3. That the Administrative Law Judge has the jurisdiction to hear and ~ecide this matter 

4. That Inspector Gary Jessee was acting in an official capacity when he issued the citation in question 

today, Citation Number 3352277. 

5. That a true copy of the citation was served on a 

mine operator or its agents as required by the Act. 

6. That there is no question today of the authenticity 

of the citation. 

7. That the proposed penalty of $105 will not 

adversely affect the Respondent's ability to continue 

in business. 

8. That the Respondent has a favorable ratio of inspections -- violations per inspection day pursuant to 

Part 100 where the purposes of the tables that we have 

used. (sic). 

9. That the Parties' Joint Exhibit 1 is an accurate 

rendition of the scene that the inspector came upon in 

issuing the citation in question. 

10. That should an individual contact the trolley wire 

in question today, such a contact would lead to an injury 

leading to at least a temporary disabling injury or 

illness to the miner. 

Findings of Fact and Discussion 

I. 

The West Main entry (also referred to as "West Mains" and 

"west Main's entr-y") at Respondent's Bullitt" Mine contains a mine 

track and belt line. Vehicles traveling on the track are powered 

by poles in contact with a 300 volt wire that is suspended from 

the ceiling. At the intersection of the West Main entry, and the 

Four Leit entry (mouth of the Four Left entry>, a mine track and 

trolley wire branch off and run below the belt line to enter the 

Four Left entry. ~t the intersection of the West Main entry and 

che Four Left entry, the belt line is approximately 4 feet above 

the floor, and the trolley wire is suspended approximately 

18 to 24 inches from the roof, and is also approximately 4 feet 

above the floor. The width of the beit line is approximately 

48 inches, the distance between the tracks is approximately 

44 inches, and, in a lateral direction, the wire is approxi~ately 

1 and 1/2 feet beyond the track. On February 12, 1990, Gary 

Wayne Jessee, while at the mine to perform an ABD Inspection, 

observed that the trolley wire that was under the belt line in 

1783 
the mouth of the Four Left entry, (the intersection between the 

Four Left and West Main entries), was not guarded.~/ 

Jessee issued a Citation alleging a violation of 30 C.F.R. 

§ 75.1003, which, as pertinent, provides that trolley wires 

" ••• shall be guarded adequately: Ca) at all points where the 

men are required to work or pass regularly under the wires; II . . . . 

Thus, in order for there to be found a violation herein it 

must be established that there existed an unguarded point at 

which men are either: 1. required to work;~/ or 2. pass 

regularly under the wire. 

At the time of· the alleged violation, men were working in 

the Four Left entry approximately 300 feet outby the intBrsection 

with the West Main's track, dismantling the longwall equipment. 

Although there were three other entrances to that area, Jessee 

indicated, and essentially Yorke agreed, that the primary way 

from the Four Left longwall out of the mine was through the West 

Main entry, which necessitated going under the belt line. Yorke 

indicated that generally people travel from the West Main entry 

to the Four Left entry by a mantrip rather than on foot. Persons 

riding the mantrip sit on the floor of the mantrip. According to 

the uncontradicted testimony of Jessee, the mantrip extends more 

than 1 foot on either side beyond the tracks. Thus, inasmuch as 

I/ It was Jessee's testimony that the West Mains' side of the 

iire was not guarded, and the Four Left side had a guard that was 

partially attached. It was the testimony of John Yorke, 

Respondent's assistant general foreman, who accompanied Jessee, 

that the guard for the trolley wire in the area in question was 

attached on the West Main side, but was down on the Four Left 

entry side. It is not necessary to resolve this conflict in 

testimony, as either version supports a conclusion that the wire 

in the area in question was not adequately guarded. 

2/ Jessee indicated that a person making the weekly examination 

;ould be on foot in the area, and also the belt examiner and 

preshif t examiner would be in the area in question. He also 

indicated that once the work in the longwall was completed, a 

date board would be placed in the area for an examiner to initial. 

Yorke, in this connection, indicated that approximately 

2 to 3 times a year on his shift, he has assigned men to clean 

under the belt. However, he indic~ced that they clean from the 

West Main's side, and do not work under the belt in the area 

under the unguarded wire. I thus conclude that the evidence is 

insufficient to establish that persons are required to work at a 

point under the unguarded wires. 

1784 
the trolley wire was 1 and 1/2 feet in a lateral direction beyond 

the tracks, there is support for the testimony of Jessee that a 

person sitting on the driver's side of the mantrip would be an 

inch from the unguarded energized wire. In this connection, he 

indicated that he observed a full mantrip in the area of the 

unguarded wire in question. I thus conclude that when riding a 

mantrip, on the way to and from the Four Left entry from the West 

Main entry, miners do regularly pass at a point where the trolley 

wire was unguarded, and as such, Respondent herein did violate 

Section 75.1003(a), supra.~/ (See, u. S. Steel, 6 FMSHRC 

1664 (1984) (Judge Koutras)). As such, Respondent's Motion to 

have the Citation vacated is presently DENIED. 

II. 

Respondent did not rebut Jessee's conclusion that it would 

have been reasonably likely, if the condition herein was not 

corrected, for an injury to occur as a result of contact with the 

unguarded wire. Due to the fact that entry into the Four Left 

section is primarily by way of a mantrip from the West Main 

entry, persons riding the mantrip and sitting on the driver's 

side would be approximately 1 inch from the wire, which was energized at 300 volts. It certainly is clear that one coming in 

contact with the wire, which was energized at 300 volts, would be 

exposed to a hazard of being burned or electrocuted. (See, 

3/ I reject Respondent's arguments that, is essence, Section 

75.1003, supra, is not violated when Miners in a mantrip pass 

under an unguarded wire. It is unduly restrictive to hold that 

Section 75.1003, supra, in requiring guarding on wires that men 

"pass regularly under," does not apply where men pass under the 

wires in a mantrip. Such an interpretation does violence to the 

clear wording of Section 75.1003, supra, which does not explicitly contain such a limitation. Moreover, an inference can not be 

logically drawn that in explicitly providing. that wires be 

guarded at mantrip stations (30 C.F.R. § 75.1003(c)), it was 

intended that such stations are the only areas where miners 

riding in mantrips are to be protected from unguarded wires. To 

adopt such an interpretation would clearly not be consistent with 

the broad language of Section 75.1003(a), supra, requiring 

guarding ''at all points" where men "pass regularly under." This 

language clearly does not limit the applicability of the phase 

"pass regularly under," to only those areas where men pass under 

wires on foot, as opposed to riding in a mantrip. In addition, I 

note that, as defined in Webster's Third New International 

Dictionary (1986 ed.), the term "pass," as applied to travel, 

does not distinguish between the act of ambulating, or of being 

transported, as this term is defined as "l ••. c: to proceed 

along a specified route: .•• 11 

1785 
u. s. Steel Mining Company, Inc., 6 FMSHRC 2305 {1984)). In this 

connection, Respondent did not rebut or contradict Jessee's 

testimony that one riding in a car, especially in the inby end, 

would come in contact with the wire by being jostled or thrown 

against it due to a sudden stop of the trolley caused by a wreck 

or irregularities in the track. I thus conclude that the 

violation herein was significant and substantial. {See, u. s. 

Steel, supra; see, also U. s. Steel Mining Company, Inc., 

6 FMSHRC 1617 {1984) {Judge Broderick)). 

III. 

In U. s. Steel Mining Company, Inc., 7 FMSHRC 865, 867 

{1985), the Commission set forth its findings with regard to the 

purpose of the guarding requirement of 75.1003, supra, and the 

"strong" Congressional concern with the hazards associated with 

bare trolley wires as follows: 

"The primary purpose of the guarding requirement in 

Section 75.1003 is to prevent miners from contacting bare trolley 

wires. As noted above, this standard repeats Section 310{d) of 

the Mine Act, 30 u.s.c. § 870{d), which, in turn, was carried 

over unchanged from Section 310{d) of the 1969 Coal ~ct, 

30 u.s.c. § 801 et seg. {1976) {amended 1977). The legislative 

history of the 1~69 Coal Act relevant to Section 75.1003 reveals 

a dtrong Congressional concern witn the hazards associated witn 

bare trolley wires: 

This section requires that trolley wires and 

trolley feeder wires be insulated and guarded 

adequately at doors, stoppings, at mantrip stations, 

and at all points where men are required to work or 

pass regularly. • • Also, this section would require 

temporary guards where trackmen or other persons work 

in proximity to trolley wires and trolley feeaer wires. 

The Secretary or the inspector may designate other 

lengths of trotley wires or trolley feeder wires thac 

shall be protected • 

. The guarding of trolley wires and feeder 

wires at doors, stoppings, and where men worK or pass 

regularly is to prevent shock hazards. 

Because of the extreme hazards created by bare 

trolley wires and trolley feeder wires, the com.~ittee 

intends tnat the Sacretary will make broad use of the 

authoricy to designate additional lengths of trolley 

wires and trolley feeder wires that shall ne protected. 

Thus I follow tne Commission's decision in u. s. Steel, 

supra, and conclude that the violation herein was of a nigh level 

of gravity. 

1786 
Jessee testified, and his testimony was not contradicted, 

that there were no obscructions preventing a person from 

obsarving the fact that the guard was not in place at the area in 

question. Yorke testified that if the guard had not baen in 

place the night before he would have noticed it, and he subsequently testified "it was in place the night before" (Tr. 106). 

Jessee indicated that he did not have any idea how long the guard 

had been down. Ba3ed on this testimony, I conclude that the 

violation herein resulted from moderate negligence on the part of 

the Respondant. Taking into account the remaining statutory 

factors set forth in Section llO(i) of the Act, I conclude that a 

penalty of $400 is appropriate for the violation found herein. 

ORDER 

It is ORDERED that Respondent shall pay $400, within 30 Jays 

from tne date of this Decision, as a civil penalty ror the violation found herein. 

Distribution: 

Avram <P.__~ Weisberger 

Administrative Law Judge 

Mark R. Malecki, Esq., Office of the Solicitor, u. s. Department 

of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203 

(Certified Mail) 

F. Thomas Rubenstein, Esq., Assistant General Counsel, Westmoreland 

Coal Company, P. o. Drawer A & B, Big Stone Gap, VA 24219 (Certified 

Mail) 

dcp 

1787 
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. 

WINDSOR COAL COMPANY, 

Respondent 

SEP 18 l990 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 90-18 

A.C. No. 46-01286-03713 

Windsor Mine 

Appearances: Mark R. Malecki, Esq., Office of the Solicitor, 

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

for Petitioner; 

David Cohen, Esq., Windsor Coal Company, 

Lancaster, Ohio, for Respondent. 

Before: Judge Melick 

This case is before me upon the petition for civil 

penalty filed by the Secretary of Labor pursuant to 

Section 105(d) of the Federal Mine·safety and Health Act of 

1977, 30 U.S.C. § 801 et~., the "Act," charging the 

Windsor Coal Company (Windsor) with two violations of 

mandatory standards and proposing civil penalties $1,900 for 

the violations alleged therein. The general issue before me 

is whether Windsor violated the cited regulatory standards 

and, if so, the appropriate civil penalty to be assessed in 

accordance with Section llO(i) of the Act. 

Order No. 3129208 issued pursuant to Section 104(d)(l) 

of the Act 1/ alleges a violation of the mandatory standard 

at 30 C.F.R~ § 75.1704 and charges as follows: 

I/section 104(d){l) provides as follows: 

If, upon any inspection of a coal or other mine, an 

authorized representative of the Secretary finds 

that there has been a violation of any mandatory 

health or safety standard, and if he also finds 

that, while the conditions created by such 

violation do not cause imminent danger, such 

violation is of such nature as could significantly 

and substantially contribute to the cause and 

effect of a coal or other mine safety or health 

hazard, and if he finds such violation to be caused 

by an unwarrantable failure of such operator to 

1788 
The 3 south main intake escapeway is not being 

maintained in a safe condition for the evacuation 

of miners in the 2A, 3A, and 3 south faces sections. 

There are 7 locations were (sic] the roof is not 

adequately supported. These areas were shown to 

and marked by the company escort. Cl) at 26 

stopping top fell out around 3 roof bolts (2) 

Between 23 and 24 stopping top (sic] fell out 

around 8 roof bolts (3) 22 to 23 roof fell out 

around 2 roof bolts,-(4) 21 to 22 roof fell out 

around 2 roof bolts (5) 18 to 19 stoppings roof has 

fell out around 18 roof bolts, (6) 17 to 18 

stoppings roof fell out around 7 roof bolts (7) 17 

stopping on out by corner top fell out around 5 

roof bolts. Three of the seven areas were recorded 

in the approved book. The book was countersigned 

by Tom Moore mine foreman and Joe Matkovich 

superintendent. The areas recorded in the book 

were marked with tags where additional support is 

needed. 

The cited standard, 30 c.F.R. § 75.1704, provides in 

relevant part as follows: 

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 surf ace escape 

drift opening, or continuous to the escape shaft or 

continued f n. 1 

comply with such mandatory health or safety 

standards, he ~hall include such finding in any 

citation given to the operator under this Act. If 

during the same inspection or any subsequent 

inspection of such mine within 90 days after the 

issuance of such citation, an authorized 

representative of the Secretary finds another 

violation of any mandatory health or safety 

standard and finds such violation to be also caused 

by an unwarrantable failure of such operator to so 

comply, he shall forthwith issue an order requiring 

the operator to cause all persons in the area 

affected by such violation, except those persons 

referred to in subsection (c} to be withdrawn from, 

and to be prohibited from entering, such area until 

an authorized representative of the Secretary 

determines that such violation has been abated. 

1789 
slope facilities to the surface, as appropriate, 

and shall be maintained in safe condition and 

properly marked. [emphasis added] 

Inspector Thomas Doll of the Federal Mine Safety and 

Health Administration CMSHA) was performing an inspection at 

the Windsor Mine on August 9, 1989, when he allegedly 

observed the cited conditions in the 3 South Main intake 

escapeway. Doll noted that this was the primary escapeway 

for four active working areas. According to Doll, 45 bolts 

in an 800 foot area were not in safe condition because the 

top had fallen away leaving areas of unsupported roof. Doll 

observed that in one intersection alone 18 bolts were 

"destroyed" in this manner between ~he No. 18 and No. 19 

stoppings.He subsequently explained that since the bolts were 

resin grouted there was no danger of the structural beam·-

provided by the bolts failing but there nevertheless was a 

danger from the flaking of "golf ball" size to "basketball" 

size pieces of rock and falling and striking miners. He · 

noted that the roof averaged 10 feet in height in the subject 

area and that a rock falling 8 feet to 10 feet could cause 

serious injuries. 

The existence of the cited conditions does not appear to 

be in dispute. James Fodor, a safety assistant for Windsor, 

observed the cited conditions after the order had been issued 

and acknowledged that there was a lot of sloughage around the 

bolts. Donald Williams one of the timbermen who had been 

working to abate the cited conditions also acknowledged that 

there were "some gaps" above the bolts and Michael Roxby, the 

Windsor Safety Inspector, also agreed that there was a lot of 

sloughage in the cited area. While each of these Windsor 

witnesses claimed that these conditions were nevertheless not 

unsafe, I give these self-serving and unsupported conclusions 

but little weight. Clearly Inspector Doll's testimony is the 

more credible. 

Under the circumstances it is clear that the violation 

is proven as charged and that it was "significant and 

substantial". It may reasonably be inferred from the 

credible evidence in conjunction with the fact that this area 

was the primary escapeway subject to inspections by Windsor 

employees and periodic inspections by government inspectors, 

that it was reasonably likely that reasonably serious 

injuries would be sustained as a result of the violation. 

See Mathies Coal Co., 6 FMSHRC 1 (1984). 

I also conclude that the violation was the result of 

"unwarrantable failure" and high negligence. During his 

inspection on August 9, Inspector Doll examined the mine 

1790 
books retained for reporting weekly examinations of the 

escapeways. He observed in those books, entries dated 

August 2, 1989, reporting conditions in the cited area that 

had not been completely corrected as of his inspection on 

August 9, 1989. Even more significantly however, Doll found 

yellow caution tags still hanging in the cited area three of 

which were within the areas cited in the order at bar. 

Robert Jester a Windsor Safety Assistant who accompanied 

Inspector Doll during his inspection, confirmed the existence 

on August 9, of at least two yellow caution tags dated August 

2, 1989, hanging in the cited area. He also confirmed that 

the area around the plates where the tags were hung was 

indeed "bad". 

Inspector Doll reasonably concluded from the existence 

of these remaining caution tags that indeed the corrective 

work had not been completed in the cited area. Doll also 

opined that the problem with the large number of bolts around 

which sloughage had occurred could not reasonably have 

occurred over the short period of time between the alleged 

corrective work a few shifts before his inspection artd the 

time of his inspection. 

Windsor Safety Assistant, James Fodor, also corroborated 

Doll's testimony in significant ·respects. Fodor testified 

that he had attached yellow caution tags to bolts in the 

cited area and reported in the weekly examination books that 

corrective action was needed. He also issued a request for 

corrective work on August 7. 

According to outby foreman, Charles Slopek, timbermen 

Don Williams and Brian Mulby were sent on August 7, during 

the 4 to 12 shift, to correct the conditions that had been 

reported by Fodor. On August 8, he again sent Williams and 

Mulby to the area to verify that the corrective work had been 

completed. Slopek did not check the area himself but relied 

upon the report from Williams and Mulby that the work had 

oeen completed. 

Timberman Williams testified that he checked the area on 

August 8th, pursuant to Fodor's instructions and found that 

the work had been completed. According to Williams the 

yellow caution tags would have been removed by him upon the 

completion of corrective work but he claimed that he did not 

see any such tags on August 8th. 

Within this framework of evidence I conclude that indeed 

at least some of the conditions cited in the order at bar on 

August 9, 1989, had existed at least since August 2, 1989, 

and at least in the areas where yellow caution tags were 

posted. It may reasonably be inferred that at least some of 

the conditions reported as needing corrective action on 

August 2, 1989, and tagged with yellow caution tags had not 

1791 
as of the date of the inspection on August 9, 1989, been 

corrected. The testimony of Timberman Donald Williams who 

was charged with the responsibility of correcting those 

conditions and verifying on August 8, that they were indeed 

corrected, is particularly significant. Although Williams 

reported that the conditions had been corrected after 

examining the area on August 8th, he saw no caution tags at 

that time. However both Inspector Doll and the company 

official accompanying Doll on the August 9, inspection, 

Robert Jester, found at least two yellow tags dated August 

2nd, 1989, still hanging around plates within the cited area. 

It may be further inf erred from this evidence that not only 

had the conditions reported on Augu?t 2nd, not been corrected 

as of August 9, but that it had been falsely reported that 

they had been corrected when they had not been. Under,-the 

circumstances I conclude that the violation herein was the 

result of such aggravated conduct, omissions and gross 

negligence that it was the result of "unwarrantable failure". 

See Emery Mining Co., 9 FMSHRC 1997 (1987). 

Order No. 3129172, also issued pursuant to section 

104(d)(l) alleges a "significant and substantial" violation 

of the mandatory standard at 30 C.F.R. § 75.1105 and charges 

as follows: 

The battery charging station for the 2A 3 South 

Scoop car located at survey station 53 + 50 where 

the scoop battery was on charge was not-vented 

directly into the return. A chemical smoke cloud 

was dispersed over the batteries and the air 

current was directing the battery fumes up number 

three track entry into the face area. The same 

violation was issued on 8/8/89 on the charging 

station in the 3 South face section and management 

was made aware of the acceptable way to vent the 

charging stat~ons. 

The cited standard, 30 C.F.R. § 75.1105, provides in 

relevant part as follows: 

Underground transformer stations, battery-charging 

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. 

MSHA inspector Joseph Moffitt was inspecting the Windsor 

Mine on August 16, 1989, in the 2A 3 South area along with 

the Windsor.Safety Inspector Robert Jester and a United Mine 

Workers representative when he noted that in the Number 3 

Track Entry several hundred feet from the face area there was 

1792 
a battery charging station extending out of the crosscut. 

According to Moffitt the station was ventilated through a 

hole created by the absence of one 8 inch by 16 inch cinder 

block. Releasing smoke from a smoke tube over a battery that 

was being charged he observed that most of the smoke 

proceeded down the Number 3 Track Entry into the working 

places. He did not see any of the smoke pass into the 

return. 

According to Moffitt these conditions created a serious 

fire and smoke hazard. He noted that hydrogen gas emanated 

from the batteries while being charged, that unattended 

electrical equipment in itself has a potential for a fire 

hazard from shorting-out, that ther-e was a 550 volt cable to 

the AC charger, and the battery itself is a fire haz~kd. He 

concluded under the circumstances that it was reasonably 

likely for the men working at the face to suffer from smoke 

inhalation which could result in asphyxiation and death. 

Inspector Doll was also present during the smoke tube 

test and he confirmed that the smoke released over the 

batteries first swirled, then proceeded directly toward the 

working faces. Within this framework of evidence it is clear 

that the violation is proven as charged and was clearly 

"significantly and substantial". See Mathies Coal Co. supra. 

In reaching this conclusion I have not disregarded the 

testimony of Windsor's witnesses that a fire extinguisher and 

rock dust were immediately available to douse any fires and 

that dust from the sleeve of one of the persons present when 

released at a position adjacent to the ventilation hole 

proceeded through the hole. However this evidence is not 

sufficient to overcome the Secretary's case. 

I do not, however, find that the violation was the 

result of "unwarrantable failure" or high negligence. It is 

not disputed that the ventilation at that charging station 

was checked around 8 that same morning by Michael Shreve a 

section foreman. According to Shreve, he checked the air 

movement at the ventilation hole by knocking dust off his 

sleeve and observed that the air did in fact proceed through 

the ventilation hole. Shreve followed a procedure he had 

seen inspectors use on prior inspections. Indeed, even 

Inspector Moffitt had, according to Shreve previously used 

this method to check ventilation. 

The procedures followed by Shreve were verified by 

Robert Jester the Windsor Safety Inspector and by Safety 

Director Michael Roxby. They confirmed that before this 

inspection the MSHA inspectors had tested near the 

ventilation hole and not over the battery chargers. 

179 3 
Within this framework of evidence I conclude Windsor 

personnel were following testing procedures that had been 

found acceptable and indeed had been previously followed by 

MSHA inspectors themselves in testing for the ventilation of 

battery charging stations. It is not disputed that when dust 

was released at the ventilation hole it proceeded into the 

return from the battery charging station. 

The fact that smoke released from a smoke tube over the 

battery being charged in the station flowed mostly toward the 

working faces proves however the existence of a "significant 

and substantial" violation. However since Windsor was using 

a testing procedure consistent with that which had previously 

been approved I cannot conclude that Windsor is chargeable 

with a high degree of negligence or "unwarrantable failure". 

Inasmuch as the line curtain was indeed negligently hung and 

most of the ventilating air was proceeding to the working 

areas there was at least some negligence. Order No. 3129172 

must accordingly be modified to a citation under section 

104(a) of the Act. 

Considering all of the criteria under Section llOCi) of 

the Act I find that civil penalties of $1,000 and $200 are 

appropriate respectively for the violations charged in Order 

No. 3129208 and Citation No. 3129172. 

ORDER 

Order No. 3129172 is hereby modified to a citation under 

section 104(a) of the Act and Windsor Coal Company is 

directed to pay civil penalties of $200 for the ation 

charged therein. Order No. 3129208 is firmed indsor 

Coal Company is directed to pay a civil enalty ,000 for 

the violation charged therein within 30 ys of te of 

this decision. 

Distribution: 

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

Department of Labor, 4015 Wilson Boulevard, Room 516, 

Arlington, VA 22203 (Certified Mail) 

David Cohen, Esq., Legal Department, Windsor Coal Company, 

P.O. Box 700, Lancaster, OH 43130 (Certified Mail) 

nb 

1794 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 19 \990 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. VA 90-14 

A.C. No. 44-05415-03558-A 

v. 

No. 1 Mine 

ROGER DEEL, Employed by 

BLACKFOOT COAL COMPANY, INC., 

Respondent 

Appearances: 

Before: 

DECISION 

J. Philip Smith, Esq., Office of the Solicitor, 

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

the Petitioner; 

Mr. Roger Deal, McClure, Virginia, pro se, for the 

Respondent. 

Judge Fauver 

The Secretary brought this civil penalty action against a 

mine foreman, charging that he knowingly violated a safety 

standard, under the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 801 et seq. 

After a hearing on the merits, a bench decision was issued 

on August 16, 1990 .-- This decision supplements and confirms the 

bench decision. 

FINDINGS OF FACT 

1. At all relevant times, Respondent, Roger Deel, was 

employed as a section foreman, on the second shift, at the No. 1 

Mine of Blackfoot Coal Company, Inc., in Dickenson County, 

Virginia. 

2. Despite a requirement of the roof-control plan to mine 

from right to left in retreat mining, mine management had a 

policy of mining from left to right. This practice saved 

1795 
production t.ime, by avoiding the tramming of the continuousmining machine back to the right side of the line of cuts when 

the left end was reached. However, it was a dangerous practice 

and violated the roof-control plan. 

3. Mr. Deel and other foreman followed this violative 

practice knowing that it violated the roof-control plan. On 

November 14, 1988, the continuous-miner operator, Richard Turner, 

was acting foreman on the first shift. He followed the same 

practice of mining from left to right, in extracting pillars, 

instead of complying with the roof-control plan. He had prior 

experience as a full-time foreman, and knew that the plan 

required him to mine from right to left. While he was operating 

the continuous miner, at about 11:00 a.m., a roof fall began in 

the gob area and moved to his immediate site, covering his mining 

machine with fallen rock. He was trapped in the machine until 

rescuers could reach him, about 3:25 p.m. Mr. Turner suffered 

permanent back injuries. 

4. Respondent Deel had followed the same violative practice 

on the production day previous to Mr. Turner's accident. Another 

foreman, Brock, also had followed the same violative practice 

previous to Mr. Turner's accident. 

DISCUSSION WITH FURTHER FINDINGS 

Mine management had a policy or practice of ignoring the 

roof-control plan requirement to mine from right to left in 

extracting pillars. The foremen and acting foreman Turner 

followed this practice, including the Respondent, Roger Deel. 

Mr. Deel "knowingly" violated the roof-control standard (and 

therefore 30 C.F.R. § 75.220) within the meaning of section 

llO(c) of the Act, which provides: 

(c) Whenever a corporate operator violates a 

mandatory health or safety standard or knowingly 

violates or fails or refuses to comply with any order 

issued under this Act or any order incorporated in a 

final decision issued under this Act, except an order 

incorporated in a decision issued under subsection (a) 

or section 105(c), any director, officer, or agent of 

such corporation who knowingly authorized, ordered, or 

carried out such violation, failure, or refusal shall 

be subject to the same civil penalties, fines, and 

imprisonment that may be imposed upon a person under 

subsections (a) and (d). 

It is no defense that Mr. Deel was following management 

policy or orders in violating the roof-control plan. The Act, in 

section 105(c), protects a miner, including supervisors, who 

refuse to carry out a work assignment or practice that is in 

1796 
violation of .a safety standard or is reasonably believed to be 

hazardous. The violation was serious, because it compromised 

roof control and increased the risk of a roof fall. 

However, the government has singled out Mr. Deel, without 

charging other foremen who were following the same violative 

practice, and without charging mine management who were 

responsible for this violative practice and had a clear duty to 

prevent it. This approach to law enforcement does not meet the 

standard of fair and evenhanded justice that the public is 

entitled to expect from a government agency. 

I find that Mr. Deel knowingly violated the cited safety 

standard, but that his penalty should be substantially reduced 

from the amount proposed by the Secretary ($700), because the 

government has not shown evenhanded enforcement toward mine 

management and the other foremen. 

Considering this factor and the criteria for civil penalties 

in section llO(i) of the Act, I find that a civil penalty of $50 

is appropriate for this violation. 

CONCLUSION OF LAW 

1. The judge has jurisdiction over this proceeding. 

2. Respondent, Roger Deel, violated 30 C.F.R. § 75.220 as 

charged in the Petition for Proposed Assessment of Civil Penalty. 

ORDER 

WHEREFORE, IT IS ORDERED that Respsn,dent, Roger Deel, shall 

pay a civil penalty of $50 within 30 days of the date of this 

decision. 

Distribution: 

u};j_,l~ 1-MAV~ William Fauver 

Administrative Law Judge 

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

of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203 

(Certified Mail) 

Mr. Roger Deel, P.O. Box 1, McClure, VA 24269 (Certified Mail) 

/fb 

1797 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 211990 

ZEIGLER COAL COMPANY, 

Contestant 

CONTEST PROCEEDING 

v. Docket No. LAKE 90-102-R 

Citation No. 3035656; 5/17/90 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Respondent 

Murdock Mine 

Mine ID No. 11-0058~ 

Appearances: 

Before: 

DECISION 

Timothy M. Biddle, Esq., Susan E. Chetlin, Esq., 

Crowell & Moring, Washington, D.C., for the 

Contestant; 

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

Department of Labor, Arlington, Virginia, for the 

Respondent. 

Judge Koutras 

Statement of the Case 

This proceeding concerns a Notice of Contest filed by the 

contestant pursuant to section 105(d) of the Federal Mine Safety 

and Health Act of 1977, 30 u.s.c. § 815(d), challenging the 

validity of a section 104(a) non-"S&S" Citation No. 3035656, 

issued on May 17, 1990, citing an alleged violation of mandatory 

safety standard 30 C.F.R. § 75.329-l(a). The contestant's 

request for an expedited hearing was granted, and a hearing was 

conducted in St. Louis, Missouri, on June 6 and 7, 1990. The 

parties filed posthearing briefs, and I have considered their 

arguments in the course of my adjudication of this matter. 

Issues 

The issues presented in this proceeding are (1) whether the 

cited mandatory safety standard is applicable to the cited. 

abandoned area of the mine, and if so, (2) whether the evidence 

presented establishes a violation. Additional issues raised by 

the parties are discussed in the course of this decision. 

1798 
Applicable Statutory and Regulatory Provisions 

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

Pub. L. 95-164, 30 U.S.C. § 801 et seq. 

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

3. Mandatory safety standard 30 C.F.R. § 75.329-1. 

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

Stipulations 

The parties stipulated to the following (Tr. 8-9): 

1. The Murdock Mine is owned and operated by the 

contestant, and the mine and the contestant are subject 

to the jurisdiction of the Act. 

2. The presiding judge has jurisdiction to hear 

and decide this matter. 

3. The parties agree to the authenticity of the 

documents offered in evidence in this matter. 

4. The citation was properly served on the contestant by an authorized representative of the 

Secretary, and all of the "paperwork" served on the 

contestant in this matter by the Secretary was properly 

served and may be admitted as procedurally correct, but 

not for the purpose of establishing the truthfulness of 

the matters asserted therein. 

Discussion 

The Zeigler Mine in question employs approximately 170 

miners, and produces approximately 1,200,000 tons of coal 

annually by the room and entry development method using 

continuous-mining machines. In order to preclude subsidence of 

the surface farmland, no pillaring or "second mining" is done. 

Room and entry mining is done in distinct panels which are not 

connected or ventilated by bleeder systems, and the mine liberates 350,000 cubic feet of methane over a 24-hour period. There 

have never been any methane ignitions at the mine, nor have any 

citations been issued for exceeding 1 percent methane. 

The cited West panel was a distinct room and entry panel 

consisting of 21 entries driven off the 2d North submains. The 

development of the panel began in December, 1987, and all mining 

activity in that area ceased in July, 1989. From July, 1989 

until December, 1989, the panel was ventilated by an air course 

which circumvented the perimeter of the panel. Return air 

1799 
entered the section at the mouth, was coursed into the northern 

most entry around the perimeter of the panel, returned through 

the southern most entry, eventually flowing into the main return. 

Zeigler's testimony reflects that the return air course was 

maintained by a solid concrete block stopping line, and the 

return air course was examined on a weekly basis to meet the 

requirement of section 75.305 that at least one entry of each 

return air course be examined in its entirety. 

Zeigler's testimony reflects that sometime during the middle 

of October or early November, 1989, it decided to abandon the 

panel and made plans to seal that area when the development of 

Main West was completed. Although Zeigler maintains that it was 

not required, the cited panel continued to be ventilated even 

after it was abandoned, and weekly examinations of the area were 

still conducted because they could be done safely. However, a 

roof fall occurred in December, 1989, at crosscut No. 13~- and 

Zeigler determined that continued examinations of the entire 

panel return air course was unsafe. In view of its determination 

that it was no longer safe to walk the return air course around 

the perimeter of the panel, Zeigler instructed its mine examiners 

to preshift the panel approaches to check the amount of air, 

methane and carbon dioxide entering and returning from the panel. 

MSHA Inspector John Stritzel, who had visited the mine 

periodically every 6 months for ventilation and spot inspections, 

was advised by a fellow inspector George Cerutti, that he had 

visited the cited panel in mid-April 1990, and did not believe 

the panel was being ventilated. Although Inspector Cerutti did 

not issue a violation at that time, Inspector stritzel discussed 

the matter with MSHA ventilation specialist Mark Eslinger, his 

supervisor, at a staff meeting where the subject of abandoned 

areas at various mines was discussed, and concern was voiced at 

that meeting that abandoned mine areas in MSHA District 8 were 

not being ventilated or sealed and that violations for section 

75.329-l(a), should be issued where that was the case. 

In preparation for his ventilation inspection at the mine, 

which took 4 days, Inspector Stritzel reviewed the mine plans and 

mine map at his office on May 4, 1990, and made his initial visit 

to the mine on May 10, 1990. He spent 4 days underground, and 

completed his inspection after he had inspected the cited panel 

area on May 17, 1990. In view of the roof falls, the inspector 

could only travel as far as the No. 13 crosscut in the intake 

(northern most) entry of the panel, and after releasing some 

smoke tubes at that location, and at several other locations 

outby, he determined that the air in the panel contained at least 

19.5 percent oxygen and less than 1 percent methane. However, 

because he could not physically inspect ~he panel beyond crosscut 

No. 13 to the point of deepest penetration, the inspector did not 

believe that he could determine whether the panel was ventilated. 

Further, since he believed that section 75.329-l(a), required 

1800 
Zeigler to be able to determine the adequacy of the ventilation 

on the panel by physically walking and examining it to its point 

of deepest penetration inby or beyond crosscut No. 13, he issued 

the citation. The cited condition or practice states as follows: 

An abandoned panel 02 working section was not 

being ventilated and could not be determined by the 

inspector as being adequately and completely ventilated 

due to massive roof falls. These roof falls were 

across the ~ntire section at No. 13 room or crosscut. 

The section was driven 34 rooms deep. The head end of 

the section could not be accessed to determine if the 

33 rooms and entries, and the last open crosscut of 

these rooms and entries, were being ventilated so as to 

continuously dilute, render harmless, and carry away 

methane and other explosive gases within the section. 

2 West, 2 North, 1 West. 

MSHA's Testimony and Evidence 

MSHA Inspector John D. Stritzel, Vincennes district office, 

testified that he is a ventilation specialist, and his duties 

include the physical inspection of mines, the review of ventilation plans, and the making of recommendations for plan changes. 

He has served as a ventilation specialist since 1983, and has 

inspected the contestant's mine every 6 months since that time. 

His ventilation inspections normally take 4 to 5 days, 8 hours a 

day, and they include a review of the mine ventilation plan and 

physically walking the air courses to determine the quantity of 

air available for ventilation and whether or not the ventilation 

is adequate. 

Mr. Stritzel stated that the mine consists of two shafts and 

one slope, and that it has three working sections. Mining is 

conducted during two production shifts a day. No pillar extraction or "second mining11 is conducted, and coal is mined by 

continuous-mining machines by entry and room development. 

Methane liberation varies and it is less than one million CFM's. 

The mine employs approximately 90 miners, and only 50 percent of 

the available coal is mined in order to leave the pillars to 

prevent surface land subsidence. 

Mr. Stritzel confirmed that he reviewed the mine ventilation 

plan on May 4, 1990, and went to the mine on May 10, 1990. He 

identified a copy of the mine map furnished by the contestant 

(exhibit R-2), and he identified and marked the mine areas where 

he traveled during the course of his inspection. He confirmed 

that he inspected the cited area on May 17, 1990, and issued the 

citation that day. He confirmed that the section has been mined 

out and abandoned and that all of the equipment and power has 

been moved out. He believed that active mining had ceased on the 

section on February 25, 1989. 

1801 
Mr. Stritzel stated that prior to his inspection he was "on 

notice" that there was a ventilation problem on the section 

through conversations with MSHA Inspector George Cerutti who 

informed him that he had visited and entered the area less than a 

month prior to his inspection with the mine superintendent. 

Mr. Cerutti found that the top was bad and he did not believe the 

area was being ventilated. 

Mr. stritzel confirmed that he discussed the matter with his 

ventilation specialist supervisor Mark Eslinger during a staff 

meeting. The discussions involved different mines, including the 

Murdock Mine, and it was noted that abandoned mine areas were not 

being examined and ventilated. He confirmed that most mine 

operators seal their abandoned mine areas, and that some mines in 

Southern Illinois have bleeders and bleeder evaluation points to 

check the adequacy of ventilation in abandoned mine areas, and 

that this is usually covered in the mine ventilation plans. 

However, the ventilation plan for the Murdock Mine does not cover 

what has to be done with the abandoned areas in the mine. 

Mr. stritzel stated that section 75.329-1 requires that all 

abandoned mine areas be ventilated or sealed. He stated that 

this section has no "grandfather" clause or cut-off date and that 

it is a continuing requirement applicable to all mines. He 

confirmed that there is no current MSHA policy explaining the 

application of this section (Tr. 10-30). 

Mr. stritzel confirmed that the citation which he issued was 

the first one that he has ever issued for a violation of section 

75.329 or 75.329.l(a), because he has never encountered a mine 

condition that required it. He explained the "condition" as "a 

section not being ventilated properly where you could check to 

determine that it is being ventilated properly" (Tr. 27). 

The inspector stated that the general mine manager 

(Carpenter), the safety manager (Colign), and the union safety 

walkaround representative (Cross) , were with him during his 

inspection, and when they started at the mouth of the section, 

Mr. Carpenter informed him the section was preshifted by a mine 

examiner during each operational shift, but that weekly inspections were not being made. The inspector confirmed that he saw 

the date boards at the return entry with the mine examiner's 

initials and dates, indicating that the inspections had been 

made. However, he did not believe that these inspections satisfied the requirements for weekly inspections because someone has 

to physically be present in the idled or abandoned areas in order 

to conduct these inspections, and that person must walk the 

length of the abandoned area on both sides to the deepest depth 

that it has been driven in order to determine that the air is 

being coursed into the section to the deepest point and around 

the area, sweeping out anything that could buildup. It was his 

1802 
understanding that this was not being done on a preshift or 

weekly basis, and that the only inspections being conducted were 

at the outby side at the mouth of the section where the date 

boards were located (Tr. 31-36). 

The inspector explained the route of travel taken by the 

inspection party, and as they reached a massive fall area in the 

second entry, he activated a chemical smoke cloud 4 or 5 feet 

from the fall and stated that "it just went up and hung at the 

road." He activated another one and "it drifted very, very 

slowly up over the fall," and this indicated to him that very 

little air was going over the right fall (Tr. 38). He then 

proceeded to the first intake entry and stated that "the smoke 

did the same thing there ... couldn't hardy get it to go over 

the fall ... there was some movement up over the fall, but it 

was very, very small" (Tr. 39). He then proceeded across to the 

neutral side, and activated additional smoke clouds, and he 

detected no air movement at one location, and air movement toward 

the return side at another location. This indicated to him that 

the air coming up the track entry was going to the return side, 

but that this was not necessarily where it was supposed to go. 

He then proceeded to the return side, and encountered a rock fall 

on the other side of a man door, and Mr. Carpenter informed him 

that they could not go further because the area had fallen in 

solid across at room 13. They then proceeded out of the section, 

and he informed Mr. Carpenter that a citation would be issued, 

but did not tell him which standard he would cite (Tr. 42). 

The inspector confirmed that his inspection took approximately 1 hour and 45 minutes, and that he based his determination 

that the abandoned area was not being ventilated on the fact that 

his smoke cloud tests indicated little or no air movement, and 

that he expected to see air movement. He stated that a minimal 

amount of air would have "carried the smoke cloud up" and that 

"you shouldn't have to wait on it" (Tr. 42). Even if he had seen 

air movement, he would still have issued the citation because the 

respondent could not demonstrate that the air was being coursed 

throughout the abandoned area and out of the return. In view of 

the rock falls, the air could have been short-circuiting and not 

ventilating the entire area properly, and the only way to determine if this was being done was to physically walk the abandoned 

areas to the deepest cut and inspect the areas. If this cannot 

be done, the area must be sealed (Tr. 44-45). 

The inspector confirmed that there is no requirement that 

examiners walk the area if they are exposed to hazardous roof 

falls, and the alternatives would be to support the roof and 

establish a safe means of travel for inspections or to seal the 

area (Tr. 46). Another alternative would be to establish ventilation evaluation points, possibly at the outby side of the 

falls, but he had no way of knowing whether this could be done, 

and he indicated that the district manager would have to approve 

1803 
of any evaluation locations (Tr. 47-48). The inspector believed 

that "the eas1est way out" would be to seal the area, and he 

confirmed that this entails some amount of work, depending on the 

roof conditions. He would have sealed the area across the five 

entries when they were abandoned, but in view of the massive 

falls, it would now have to be cleaned up at great expense (Tr. 

49). He estimated that it would take two people working 10 days 

on each of the entries to seal all five entries (Tr. 51). 

The inspector confirmed that he made methane checks at the 

approximate locations where he made his smoke cloud tests, and 

found no high concentrations of methane. Although he found 

one-tenth of a percent of methane, the area at the upper end of 

the section beyond the No. 13 room was "an area of an unknown 

quantity of methane or C02 11 (Tr. 54). Although the area outby 

was safe, he had no way of knowing what was inby because he could 

not inspect it because of the falls (Tr. 55). He confirmed that 

he considered the violation be no non-"S&S" because the conditions did not meet the "reasonably likely" standard required for 

an "S&S" violation (Tr. 56). 

The inspector confirmed that he reviewed his district office 

records and found that 12 prior citations and orders have been 

issued in his district for violations of section 75.329 and 

section 75.329-l(a), and that two of them were issued at the 

Zeigler No. 5 Mine (Tr. 59). Respondent's counsel stipulated 

that two violations were issued at that mine in May and July, 

1986, for violations of section 75.329-l(a), by another inspector 

(Tr. 60). The inspector confirmed that the superintendent at the 

No. 5 Mine was Roger Roper, the present superintendent at the 

Murdock Mine, and that the No. 5 Mine is 3 miles from the Murdock 

Mine and both mines are in the same coal seam (Tr. 61-62; 

Exhibits R-5 and R-6). The inspector was also aware of another 

1984 citation for section 75.329-l(a), at the Murdock Mine, but 

he did not have a copy (Tr. 62). 

On cross-examination, the inspector confirmed that there was 

no loading point or_working faces in the cited abandoned section, 

and he found no evidence that anyone had "worked their way 

through the fall areas and were up there mining coal'' (Tr. 63). 

He confirmed that the area was not a working section, and that 

the requirements for ventilating a working section did not apply 

on May 17, 1990. He further confirmed that his definition of an 

"abandoned area" comports with the definition found in section 

75.2(h), and that the area did not have to be ventilated as a 

working place has to ventilated (Tr. 65). He conceded that the 

use of the term "working section" which appears on the face of 

the citation he issued was an oversight (Tr. 65) . 

The inspector confirmed that he did not use an anemometer 

during his inspection because "the velocity was so minute that an 

anemometer would have been useless" (Tr. 66). He conceded that 

1804 
every crosscut and every entry in the cited section was not 

required to be ventilated, and that this is not required even on 

a working section. He confirmed that the language in his citation about "continuously diluting, render harmless, and carry 

away methane and other explosive gases within the section" came 

from his reading of section 75.329-l(a) (Tr. 68). He stated that 

Mr. Roper and Mr. Carpenter informed him that they could not seal 

the area within 30 days, and that he fixed the abatement time at 

30 days "as a time element that I could see some work being 

accomplished in thirty days," and that it was possible that he 

told Mr. Carpenter that there would be no abatement time extension if no work had been performed to abate the citation (Tr. 

69) . 

The inspector defined "ventilation" as "Air," but he 

believed that the air had to be moving in order to quali{y as 

ventilation (Tr. 71). He confirmed that the inspector who told 

him about the "ventilation problem" in the cited area issued no 

citations for any violations in that area (Tr. 72). He further 

confirmed that the Murdock mine was mentioned during his discussions with his supervisor, but he was not sure that the subject 

of unventilated abandoned mine areas has had a lot of MSHA 

emphasis in the past 3 to 4 months. Staff meeting discussions 

were held with respect to which particular standard could be 

cited in such circumstances and that "two or three" were mentioned (Tr. 74). Conceding that "there's different ways that can 

be approached," he believed that section 75.329-l(a), was an 

appropriate standard to cite in this case (Tr. 75). He stated 

that sections 75.316 and 75.330, were discussed, but that section 

75.316, which applies to ventilation plans, did not apply because 

the mine has no ventilation plan covering abandoned areas, and 

section 75.330, deals with mine design and mining methods, and is 

limited to sealing and not to ventilation or sealing. He also 

discounted the use of section 75.305, because that section deals 

with examinations of hazardous conditions and abandoned areas, 

and states that "a person shall go just as far as safety permits" 

(Tr. 76-77). 

The inspector confirmed that the cited abandoned area is not 

considered a gob area because it is not "second mined," and there 

is no way for the respondent to ventilate it by use of bleeders. 

He confirmed that the only way to determine whether the cited 

area was being ventilated, and where the air is being coursed, is 

to physically walk and inspect the abandoned area, and this was 

the basis for the issuance of the citation (Tr. 79). He confirmed that even if his smoke tube tests had established that the 

smoke had gone directly into the fall area in an inby direction, 

he would still have issued the citation because he could not walk 

into those areas, and his use of the smoke tubes made no difference (Tr. 79-80). In his view, as long as no one can physically 

travel to the back of an abandoned section, it has to be sealed 

pursuant to section 75.329-l(a) (Tr. 81-82). He confirmed that 

1805 
the areas which were being preshifted complied with section 

7 5 . 3 0 5 (Tr . 8 4 ) . 

The inspector agreed that he wanted to insure that a pressure differential was maintained in the abandoned section, and 

that such a differential would indicate that the air is moving 

from high pressure to low pressure. He confirmed that each place 

which cannot be travelled must be sealed, and if the direction of 

air travel through the section cannot be determined, the respondent would be out of compliance with the cited section (Tr. 

86-88). He confirmed that he took no air reading to determine 

the air quantity on the main return (Tr. 92). 

In response to further questions, the inspector confirmed 

that there is nothing in the respondent's ventilation plan that 

requires it to ventilate abandoned mine areas. He stated-that 

this omission is not typical of other mines that he inspects in 

his district, and that the ventilation plan was last approved 

approximately 6 months ago (Tr. 95). 

Mark o. Eslinger, testified that he is employed as a mining 

engineer with MSHA's District No. 8 office, and that his duties 

include the supervision of inspectors in the ventilation department. He is a 1971 graduate in civil engineering from the 

Michigan Technological University, has worked 19 years for MSHA, 

and is a member of the committee currently rewriting the 

Subpart D ventilation regulations. He confirmed that he has 

reviewed section 75.329-l(a), and stated that this regulation 

will be clarified when the new regulations are promulgated, but 

that the basic provision found in that section will be retained. 

He explained the proposed changes, and also explained the ventilation method for abandoned and working mine areas (Tr. 

97-103) . 

Mr. Eslinger agreed with the inspector's position that there 

is no way one can assure that an area is being properly ventilated without travelling the deepest point of penetration. He 

stated that the inspector could only travel one-third of the way 

into the cited abandoned panel and had no assurance as to what 

may have been occurring in the remaining areas. Even if he had 

some air flow from the smoke tubes, there was no way to assure 

that the air reached the end of the panel, and it may have been 

short circuiting across the panel, and the numerous falls may 

have destroyed the stopping line. Although it was not necessary 

to go into each entry, one needs to be able to go into "key 

locations" to insure that the rest of the panel is being 

ventilated (Tr. 105). 

Mr. Eslinger stated that sections 75.329, 75.329-1, and 

75.329-2, require the ventilation or sealing of abandoned areas. 

If a mine operator decides to ventilate the area, it must be able 

1806 
to demonstrate that it is being ventilated by physically examining the area at key locations to determine that the air is 

moving, and taking methane and oxygen readings to assure movement 

of air and no accumulations of methane or carbon dioxide. If 

this cannot be done, the area must be sealed. If key locations 

cannot be reached because of falls, they must be cleaned up to 

provide a safe access way. If an operator decides to ventilate 

the area, it must advise MSHA how this will be done, and if it 

decides to seal an area, it must file a plan pursuant to section 

75.330 (Tr. 105-108). 

Mr. Eslinger did not believe that the contestant's preshift 

examinations were adequate to meet the requirement for weekly 

examinations of abandoned areas because the examinations were 

being made at the fronts of the abandoned area, and the examiners 

were not walking into or penetrating the panel. The examinations 

which were conducted would not fulfill the weekly examination, or 

section 75.305 requirements, because the weekly examination 

requires an examination for hazardous conditions "insofar as 

safety considerations permit," and weekly examinations have to be 

made as far as you can safely travel in an abandoned area. Since 

the examiners were only going to the fronts of the panel, rather 

than to the location described by the inspector where his inspection party went, the weekly examinations should have been made at 

that location if it was safe to travel there (Tr. 109). 

Mr. Eslinger stated that he had information that someone had gone 

halfway up the panel to take methane and air pressure drop locations, and that if this were true, the examiners who were conducting the preshift examinations as a substitute for weekly 

examinations should also have gone to these areas for their 

tests. He confirmed that if it were unsafe to go to these areas, 

section 75.305 would not require weekly inspections because it 

provides an exception based on safety considerations (Tr. 111). 

Mr. Eslinger confirmed that mine operators generally include 

a provision in their ventilation plans that they will maintain 

safe access to the deepest point of penetration of mining or the 

area will be sealed. However, in the instant case, the contestant did not include such a provision in its plan, and if it were 

a part of the plan, the inspector would have cited a violation of 

the plan for not maintaining safe access to the deepest point of 

penetration, and the area would have to be pealed (Tr. 112). He 

confirmed that he initially reviews all ventilation plans in the 

district and is familiar with them, and he is not aware of any 

similar situations where the abandoned areas are not sealed or 

ventilated (Tr. 113). He agreed with the citation issued by the 

inspector, and believed that section 75.329-l(a), was an appropriate and available "tool" for the inspector to insure compliance. Mr. Eslinger considered this standard to be an "ongoing 

requirement" (Tr. 115). 

1807 
On cross-examination, Mr. Eslinger identified exhibit C-1, 

as the contestant's ventilation and dust-control plan for the 

Murdock Mine, and he confirmed that he signed it and must have 

reviewed it (Tr. 123). Although he reviews such plans, the 

district manager approves them, and Mr. Eslinger did not believe 

that he made an initial review of the plan in question, even 

though he signed it (Tr. 124). He disagreed that the failure by 

the inspector to cite the contestant with a violation of section 

75.305, implied that the inspector believed that the contestant 

was in compliance with this section. He believed that the 

inspector made a judgment that the deepest point of penetration 

could not be travelled and cited section 75.329-l(a), rather than 

''double barrelling" the contestant with an additional violation 

of section 75.~05 (Tr. 127). 

Mr. Eslinger conceded that although section 75.305, does not 

specifically mention travelling to the point of deepest·penetration to conduct weekly inspections of abandoned areas, he 

believed the requirement for examining such areas "means you 

travel to the deepest penetration" (Tr. 129). He also believed 

that simply stepping one foot into an abandoned area to examine 

it would constitute an inadequate examination (Tr. 130) . 

Mr. Eslinger stated that the reference to the date 

December 30, 1970, in section 75.329-l(a), "meant something at a 

certain point in time," and that for those mines in existence 

prior to that time, "you had to do something by that date. From 

then on you have to have the area either ventilated or sealed" 

(Tr. 134, 135). He agreed that section 75.329-l(a) does not 

contain any date for the submission of ventilation plans, or for 

seeking MSHA approval to ventilate or seal such an area, other 

than the date December 30, 1970, and he was not familiar with 

MSHA's program policy manual with respect to this standard (Tr. 

136). He agreed that there are no "bleeder entries" in the mine, 

and that according to the mine map there has been no "second 

mining" or any "pillar pulling or pillar size reduction." In the 

case of an MSHA approved second mining system, provisions are 

made to establish bleeder evaluation points to determine the 

sufficiency of the air ventilating the gob area, and such bleeder 

points are permitted only if they can be walked (Tr. 139). He 

agreed that a ventilation evaluation point could be established 

in the back end of the section, but if it were established outby 

an inaccessible area outby the point of deepest penetration, MSHA 

would not approve it because of its position that one cannot 

determine that the area is being adequately ventilated without 

travelling to the deepest point of penetration. If bleeder 

entries cannot be established, and they cannot be travelled, MSHA 

would require the sealing of the area (Tr. 140-143). 

Mr. Eslinger confirmed that the proposed new regulations, 

which have not as yet been promulgated, will require that "worked 

isos 
out areas" be ventilated or sealed (Tr. 144). He further confirmed that the argument advanced by the contestant in this case 

that the application of section 75.329-l(a), is limited to 

December 30, 1970, and does not apply subsequent to that date, 

has been discussed internally at MSHA, and that MSHA's position 

is that "it's an absolute rule and it can be used" and that it 

was used in this case. However, this standard has generally not 

been used in District No. 8, because "we try to put into the 

ventilation plan other measures to assure the same basic thing" 

(Tr. 146). He agreed that the contestant's approved plan is 

devoid of any requirement that requires the sealing or ventilation of abandoned mine areas (Tr. 148). 

Mr. Eslinger agreed that the cited abandoned area has no 

pillars which have been "wholly or partially extracted," and that 

the inspector made a determination on May 17, 1990, that the area 

was an abandoned area. He further agreed that while there is no 

bleeder system or bleeder entries in the area, "equivalent means" 

of ventilation may be used. He conceded that the term "equivalent means" is not further defined, and it is not in the approved 

mine ventilation plan. He explained further as follows at (Tr. 

153) : 

A. I can't find an exact definition of equivalent 

means. That doesn't mean it's not here. I still think 

it's here. I can give you a statement that we go by in 

approving equivalent means, and we go by providing the 

operator can satisfy the district manager of the 

results of the ventilation system and the dust control 

plan would provide no measure of protection to the 

miners. 

Q. And what are you reading that from? 

A. I'm reading from the criteria for the approval of 

ventilation plans, sir. 

Q. So equivalent means then becomes a ventilation 

plan, as you understand it? 

A. It becomes -- yes. Well, in this case if you 

wanted to submit it, it's a 329 plan or it's a 316 

plan, whichever way you wish to submit it. 

Contestant's Testimony and Evidence 

Mine Superintendent Roger D. Roper testified that the 

contestant uses a room and pillar mining method using continuous 

miners to extract coal, but that pillars are not extracted. The 

mine is a relatively non-gassy mine liberating approximately 

350,000 cubic feet of methane over a 24-hour period (Tr. 158). 

1809 
He identified and explained the mine ventilation system by reference to the mine map (exhibit R-2), and he also identified a copy 

of the approved ventilation plan (exhibit C-1), and confirmed 

that the mine is ventilated in accordance with that plan (Tr. 

160) . He confirmed that he had no knowledge of any methane 

ignitions in the mine, and was not aware of any citations for 

more than 1 percent of methane (Tr. 160). 

Mr. Roper stated that the cited 2nd West section was started 

or developed in December, 1987, and that it was mined by continuous miners on a 75 by 85 foot block system. The section was 

developed into seven entries, including intake and return 

stopping lines, and he explained the development which has taken 

place (Tr. 162-164). He confirmed that the mining of the panel 

was completed in July, 1989, and that all of the equipment was 

moved into the "east side of the main," and he identified this 

area as the 1st East off the 2d North. He explained how the 

mined out area was ventilated, and confirmed that the primary 

ventilation is provided by return air from the operating 1st East 

panel. He stated that in July, 1989, the area was being ventilated by approximately 8,000 cubic feet of air, and the decision 

to abandon the area was made in December, 1989 (Tr. 167). During 

the period July, 1989 to December, 1989, the 2nd West section was 

examined on a weekly basis by travelling to the point of deepest 

penetration, and since there was belt material in the mouth of 

the panel, the area was not actually abandoned until October or 

early November of 1989 (Tr. 168). 

Mr. Roper stated that the abandoned area was being examined 

after production stopped because it was safe to examine and he 

was trying to comply with section 75.305. He could recall 

nothing in the ventilation plan which applied to the cited area. 

He confirmed that roof falls occurred in the area, which required 

additional stopping lines. At least one return entry could be 

examined to comply with section 75.305, but after additional 

falls occurred in D~cember 1989 or January 1990, he determined 

that travelling into the back end of the section by any route 

would be too hazardous to allow. He explained how certain air 

changes were made, and confirmed that the air entering the section was approximately 15,000, and that the air quantity had 

dropped because of the roof falls. Further changes were made, 

and other stoppings were opened up, allowing 20,000 to 22,000 of 

return air to pass by the mouth of the panel. The approaches to 

the panel were preshifted on a daily basis, and examiner's date 

boards were erected at the number five entry leading into the 

panel . (Tr. 173) . 

Mr. Roper identified the areas on the mine map where the 

examiners conducted their preshift examinations, and he explained 

that the examiners were to determine the air flow going into the 

abandoned panel. The examiners made methane checks where the air 

was going into the area, and also checked for methane and C02 on 

1810 
the return side of the panel. The examiners took no air measurements at the return, but did check to see that there was air 

movement coming out of the panel (Tr. 174). He believed that the 

area was being ventilated at the time of the inspection, and 

confirmed that he was not with the inspector on that day (Tr. 

175) . 

Mr. Roper stated that he discussed the citation with the 

inspector, and disagreed with the citation for the following 

reasons (Tr. 176): 

A. Yes. My contention was that the panel was being 

ventilated. 

Q. All right. 

A. My contention was also that there was nobody that 

was, you know, working in this area, that it was an 

abandoned area, that there had been no perceptible 

amount, and when I say perceptible amount, an amount of 

methane concentrations in excess of one percent returning from that panel, none of the preshift mine examiners had found any concentrations along with the air 

that was being intaked on the north side of the 2nd 

West panel. The methane readings there at those points 

of time whenever I've been underground and checked it 

would range from .O to .1 of one percent methane entering the panel. On the return side of the panel what 

was coming -- what was being ventilated or bled out of 

this panel and being read out here on the front end was 

showing three tenths of one percent to four tenths of 

one percent. 

Mr. Roper confirmed that the inspector informed him that he 

issued the citation because the cited section could not be 

examined in its entirety to the deepest point of penetration and 

the respondent could not determine that this area was being 

ventilated. Mr. Roper stated that the day following the issuance 

of the citation he and Mr. Carpenter went underground and took 

some air readings with an anemometer and five bottle samples in 

order to determine how much air was going in and out of the 

abandoned area and to determine the concentrations of methane and 

C02 being liberated from the area. Based on those tests, he was 

satisfied that the area was being ventilated. Mr. Roper disagreed with the inspector's assertion that a ventilation determination could not be made unless one travelled to the deepest 

point of penetration because the outby areas had no methane 

concentration build up and the oxygen content was in excess of 

19-1/2 percent (Tr. 178-179). In addition, the inspector found 

that air was going over the roof falls at one location and found 

no perceptible amount of methane at several other locations. The 

oxygen must have been sufficient since the inspector's oxygen 

1811 
detector did not sound, and the amount of oxygen which he (Roper) 

found when he tested the area was in excess of what was required 

by the law (Tr. 179). 

Mr. Roper stated that he took his bottle samples on May 18, 

1990, and that Mr. Carpenter and Mr. Colign took three additional 

bottle samples on May 21, 1990. He identified exhibit C-2, as a 

map of the abandoned area noting the locations and results of the 

samples which were taken. He confirmed that the bottle samples 

were processed by the State of Illinois Department of Mines and 

Minerals, through the contestant's engineering department, and he 

believed that the results were accurate. There were no changes 

in the ventilation in the area since late December 1989, and 

there were no differences in the ventilation between the date the 

citation was issued and the dates the samples were taken. He 

explained the results of the methane and carbon dioxide sampling, 

and confirmed that none of the first five bottle samples showed 

less than 16 percent oxygen content, and the highest methane 

content of these samples was four-tenths of one percent (Tr. 

181-187). Based on the results of these samples, Mr. Roper 

concluded that the area was being ventilated. He reached the 

same conclusion with respect to the samples taken on May 21 (Tr. 

188) . 

Mr. Roper stated that he visited the abandoned area again on 

June 1, 1990, in the company of Mr. Don Mitchell, a professional 

engineer, and Mr. Larry Harp, a chief engineer employed by the 

contestant, for the purpose of conducting a further ventilation 

study. He confirmed that no ventilation changes occurred between 

May 17 and June 1, and referring to the mine map, he explained 

the route of travel made by his group on June 1 (Tr. 190). 

Although he believed that the area was hazardous, since he and 

the engineers were experienced, they could evaluate and avoid 

hazardous roof conditions, and did not walk the air courses. He 

confirmed that he would not allow an examiner to travel through 

the areas where he and the others travelled because there was no 

reason for them to go there. If the area was not being ventilated, he would have expected methane readings in excess of one 

percent (Tr. 196). 

Mr. Roper stated that plans have been made to seal the cited 

area, and that cleanup and other work has been undertaken since 

the time the citation was issued. He estimated that the sealing 

work would take approximately 2-1/2 months, and that "at the 

present time we're sealing because we're under violation.'' He 

believed that sealing would eventually be a good mining practice 

(Tr. 201-202). He explained what would be done to seal the area 

(Tr. 203-206}. He also explained the projected mining plans for 

another nearby panel (Tr. 207-208). 

On cross-examination, Mr. Roper confirmed that he was aware 

of the two prior citations for violations of section 75.329-l(a), 

1812 
issued at the contestant's No. 5 Mine, but was not aware of any 

1984 citation mentioned by the inspector in this case (Tr. 209). 

He also confirmed that he had no notes which may have been made 

by Mr. Carpenter or Mr. Colign when they were underground with 

the inspector on the day the citation was issued (Tr. 212). 

Although he did not believe that the abandoned area is required 

to be ventilated pursuant to section 75.329-l(a), the bottle 

samples previously referred to indicate to him that it was being 

ventilated (Tr. 218-220). He could not recall how the prior 

citations were terminated or whether the cited areas were sealed 

(Tr. 221) . 

Mr. Roper stated that he activated a smoke tube, or took an 

air reading, at one of the same locations where the inspector 

sampled, and he could also feel the air going over the falls and 

could see minute dust particles in the area. He measured the 

volume of air going in and out of the panel, and found approximately 8,000 going in on the intake side of the panel at the 

mouth of the unit, and approximately 7,500 to 7,800 returning out 

of the number one entry near an old regulator (Tr. 224). While 

it was his opinion that the area was being ventilated on May 17, 

he had no information on that day to support this opinion, but 

that nothing had changed during the following 2 days when the air 

was sampled (Tr. 226). 

David L. Stritzel, contestant's director of health and 

safety, testified that he has 21 years of mining experience, and 

has worked for the respondent for 8-1/2 years. He holds a B.S. 

degree in mining engineering, has received ventilation training, 

and his experience includes previous employment with MSHA as a 

supervisory mining engineer. He confirmed that he was familiar 

with the cited abandoned area, and has reviewed the mine maps and 

has discussed it on a daily basis with the miners. He identified 

exhibit R-2 as a ventilation mine map which is updated and submitted to MSHA annually, and he identified the air intake and 

return on the map (Tr. 235-239). 

Mr. Stritzel disagreed with the citation and did not believe 

that section 75.329-l(a), is applicable in this case. He 

believed that sections 75.303, 75.305, 75.311, and 75.312 were 

applicable. These sections provide for weekly examinations of 

return air in abandoned areas, if it can be done safely, preshift 

examinations of the approaches to the area, and prohibitions 

against using air passing by or through the area to ventilate 

active working places (Tr. 241). He did not believe that the 

abandoned area was required to be ventilated, and he pointed out 

that it was impossible to ventilate every place in the mine. He 

was aware of other mines in MSHA District 8 with more extensive 

abandoned areas, and they are not sealed. He stated that the 

State of Pennsylvania and "some parts of West Virginia" prohibit 

mine sealing. He visited one mine which was not sealed, and 

learned that MSHA required evaluation points in outby areas far 

1813 
from the deepest penetration of the gob areas, and would not 

permit sealing (Tr. 243-245). 

Mr. Stritzel disagreed with the inspector's belief that one 

had to walk to the point of deepest penetration in order to 

determine whether the cited area was being ventilated. He 

explained that intake and return stopping lines are established 

around the perimeter of the panel, and if they are intact, "if 

you've got air going in, you've got air coming out." As long as 

the air is monitored, and there are no indications of any major 

breakdown or changes in the ventilation system, and the atmosphere is clear of any explosive gasses or carbon dioxide, the 

area is obviously being ventilated. The fact that there are 

falls in the area does not mean that it is not being ventilated 

and that the air is not going over the falls. In mines which 

extract pillars, there are massive roof falls, and the bleeders 

are used to pull air over the falls and to bleed off any explosive gasses (Tr. 247-248). 

Mr. Stritzel confirmed that he was aware of the prior citations and orders issued at the No. 5 Mine, and he explained that 

the contestant was attempting to recover equipment out of the 

cited areas and that MSHA was trying to force the contestant to 

seal the areas. He stated that the previously cited areas were 

being ventilated, and that such a determination was made in the 

same manner as the instant case. He contested the violations and 

requested a hearing, and his objections to the citations were 

based on the same reasons raised in the instant case. However, 

the matter did not proceed further because of a lack of available 

and affordable counsel, and the matter was dropped and the civil 

penalty assessments were paid. Seals were eventually constructed, the mine was shutdown at the same time, and the violations were terminated (Tr. 250-254). 

Mr. Stritzel stated that he constructed the Murdock Mine 

stoppings and that he was certain that they were intact, and that 

its not very likely that a roof fall would damage them. He 

identified one of the mines which is not sealed, but he did not 

know the extent of the ventilation in that mine because MSHA has 

granted permission for evaluation points thousands of feet outby 

the deepest point of penetration and no one can get back into the 

area to determine whether the areas are ventilated (Tr. 257). 

Mr. Stritzel believed that MSHA has seriously misapplied 

section 75.329-l(a) in this case, and was "picking on Zeigler." 

He explained that he discussed the matter with MSHA's district 

manager in an effort to determine why MSHA was permitting other 

mines to establish evaluation points at outby locations of abandoned areas, while at the same time denying Zeigler permission to 

do the same thing. The district manager informed him that the 

other mines in question have bleeder systems which are covered in 

1814 
their ventilation plans, and that no exception would be made for 

Zeigler (Tr. 258-268). 

Mr. Stritzel stated that the day before the inspector issued 

the citation, and when he found out that the citation would be 

issued, he asked Mr. Roper to prepare a letter to MSHA requesting 

bleeder evaluation points, and it was sent to the district manager. Although he has seen no written response, Mr. Stritzel 

stated that he was verbally informed that the request would not 

be granted. A copy of the letter was produced, marked for identification, but was withdrawn by the contestant's counsel (proposed exhibit P-7; Tr. 261-264). Mr. Stritzel stated that he 

discussed the request with MSHA assistant district manager 

Charles Rack on approximately May 30, 1990. He also discussed 

the citation which was issued in this case, including the ventilation tests results of May 18, but he did not give the information to Mr. Rack because "he didn't seem interested enough to 

want to see them." He did not discuss the abatement time with 

Mr. Rack, and their discussion focused on the legality of the 

violation, the evaluation points, and the application of the 

standards to other mine operators (Tr. 264-266). 

Donald W. Mitchell, a registered professional engineer and 

consultant, was qualified as an expert in mine ventilation. He 

holds B.S. and M.S. Degrees in mining engineering from the Penn 

State University, and Columbia University. Exhibit C-3, is a 

copy of his resume detailing his 40 years of work experience, 

including membership in a number of mining and related professional associations and groups, and the authorship or 

co-authorship of 87 mining publications or papers, including 

ventilation and ventilation controls. His prior work experience 

includes employment with the U.S. Bureau of Mines and MSHA from 

April, 1951, to July, 1978, and his last government position was 

Principal Mining Engineer and special advisor to the Assistant 

Administrator, Technical Support (MSHA) (Tr. 277-279). 

Mr. Mitchell defined the term "ventilation" as follows (Tr. 

279) : 

A. I define ventilation as the imposing a pressure 

differential on a network, as a result of putting a 

pressure differential on a network. 

Q. What do you mean by network, Mr. Mitchell? 

A. Network being the passageways throughout the mine, 

the shafts, the slopes, the entries, the crosscuts 

we've heard testimony, this R-2 is a network. We 

impose a pressure differential by means of a fan and 

also by the elevation differential and the temperature 

differential between the surface and the underground 

workings. These pressures induce air movement; not 

1815 
only air, it induces movement of all gases, air being 

among the gases. 

Q. Would that also include methane? 

A. Of course, it would include methane as well. 

Mr. Mitchell identified exhibit C-4, as a transcript excerpt 

of his hearing testimony in a case now pending for decision 

before Commission Judge John Morris, in which the identical issue 

of the application of statutory section 75.329, and its associated regulatory sections were raised by a mine operator represented by the contestant's counsel in the instant proceeding 

(Wyoming Fuel Company v. Secretary of Labor, Docket Nos. 

WEST 90-112-R through 90-116-R). Mr. Mitchell confirmed that his 

prior testimony with respect to the appropriateness of the application of section 75.329-l(a), also applies in the instant case 

(Tr. 280) . 

Mr. Mitchell stated that section 75.328 deals strictly with 

the requirement that bleeder entries be used where pillars are 

being extracted. Section 75.329 and 75.330, were the result of 

section 303(z) of the Act, which was enacted out of congressional 

concern that mine explosions were being experienced and had 

worsened because of the existence of long continuous mine gob 

areas. In his view, as well as the view of the other individuals 

who were drafting the regulations, including the Director of the 

Bureau of Mines, John O'Leary, as expressed to the Congress, 

section 75.329 was intended to specifically apply to mines which 

were in existence and operating at the time this section was 

enacted, and section 75.330, was intended "to take care of future 

mining and future sections" (Tr. 285). The only application of 

section 75.329-l(a), to the cited abandoned area of the contestant's mine is that the type of explosion-proof seals required 

under that section were also the type required under section 

75.330 (Tr. 285). 

Mr. Mitchell defined an "abandoned area" as "an area that is 

neither ventilated nor examined as are active areas," and he 

stated that sections 75.303, 75.305, 75.311, 75.312, 75.314, and 

75.330, are the appropriate regulations that may apply to abandoned areas. He believed that the requirement found in section 

75.314, for the examination of an abandoned area for oxygen 

deficiency, methane concentration and other hazards, within 

3 hours of persons entering such an area, is the only regulation 

relative to examination and ventilation within an abandoned area 

other than the weekly or preshift examination requirements found 

in section 75.303 and 75.304 (Tr. 286). 

Mr. Mitchell confirmed that he visited the abandoned mine 

section in question on June 1, 1990, with Mr. Harp and Mr. Roper 

1816 
to determine whether there were any conditions that would constitute a hazard to persons working in the mine. He confirmed 

that he made a ventilation pressure survey and a methane survey, 

and also considered the results of Mr. Roper's ventilation and 

methane sampling. He also considered the information which was 

available to the inspector during his inspection of May 17, as 

corroborated by his testimony in this case and which he heard 

(Tr. 287-290). He then conducted an analysis based on all of the 

information which was available to him, and concluded that the 

cited abandoned panel was ventilated and safe and did not create 

an explosion or fire hazard to persons working in the mine. He 

identified exhibit C-5, as a summary of his data analysis and. 

findings in support of his conclusion, and he explained them (Tr. 

290-293). 

Mr. Mitchell explained that his data and analysis reflects 

no dangerous accumulations of methane anywhere within the areas 

he travelled during his survey, and that it provides strong 

evidence of the probability that the abandoned area was indeed 

ventilated and that the ventilation pressures and movement of air 

extended throughout the natural air flow paths within the area, 

and extended to the deepest point of penetration of the panel. 

He explained the basis for his conclusions (Tr. 294-296). 

Mr. Mitchell stated that he took steps to satisfy himself that 

the conditions in the abandoned area were the same on May 17 and 

June 1, and that this was an important part of his analysis. He 

did this by comparing the methane percentages recorded on May 18 

and 21, with those found on June 1, and that "this is strong 

evidence that nothing important has changed within the area 

during that period." He also considered the fact that the 

inspector found no important methane concentrations on May 17 

(Tr. 297) . 

Mr. Mitchell stated that proof that air was indeed flowing 

through the abandoned area is further evidenced by the fact that 

he found 0.1 percent methane at the northernmost fall on the 

right hand side of the panel, and 0.4 and 0.5 percent methane in 

the return, and tha€ when one considers the stopping line, the 

probabilities are that either the stopping line or falls are 

maintaining a flow of air through the area because the only way 

for the air to have the increase in the return is for the air to 

be coursing through that area inby the fall line which extended 

across the width of the panel. This conclusion is further 

corroborated by the fact that the concentrations of carbon 

dioxide are similar to the methane concentrations, and this 

indicates that air movement must be occurring in order to flush 

out the carbon dioxide and to have a quantity of carbon dioxide 

in the return air flow greater than that in the intake air flow 

(Tr. 298). 

Referring to an "airflow directions" chart, Mr. Mitchell 

explained the direction of the air flow in the panel which he 

1817 
determined as part of his survey by means of two techniques, 

namely, "sweat of the brow" and "feel and sense of a strong flow 

of air." He explained that the "sweat of the brow" technique is 

used in areas where there is a weak flow of air and where there 

is no benefit in trying to measure such air with an anemometer or 

smoke tube. He stated that by using this technique "one senses 

these flows, either the flow is specific and definite because you 

can feel it and the best way you feel it is by the sweat on your 

brow. This is quite similar to a person wetting their finger to 

see the direction the air is--the wind is blowing." He confirmed 

that "all of us who do ventilation in mines for the government 

today" were instructed in the use of this technique (Tr. 300). 

Mr. Mitchell further explained the direction of air travel 

as shown on the chart, and he confirmed that he perceived 

definite air flows in the intake right entry of the panel, that 

he could feel the flow of air in the middle of the entry before 

he got to the fall, and that there was no question that air was 

flowing to and through the fall because "it was flowing up to us 

standing there some 10, 20 feet outby the fall." When they 

travelled behind the fall, he found that the air flow through the 

top of the fall was much stronger. When he reached the northernmost fall line, he found a strong flow of air continuing in the 

intake entry going over the fall. He also indicated that air was 

also entering the panel, coming up the No. 2 entry, as depicted 

by the "tilting" arrow on the upper portion of the chart, and the 

air was flowing through a partially opened man-door across the 

fall at that point (Tr. 304). He further explained the locations 

where he detected air flows, and his recorded methane concentrations (Tr. 305-307). He confirmed that his conclusions concern~ 

ing air flow were consistent with the conditions found on May 17 

(Tr. 309) . 

Mr. Mitchell referred to a "pressure differentials" chart 

which is a part of his survey, and he concluded that the results 

show that there was a pressure differential sufficient to move 

air, and that air was moving across the falls inby crosscut 13, a 

definite flow of air over the fall at crosscut 23, and a flow of 

air through the falls into the return on the left side of the 

panel. He also concluded that there was a pressure differential 

between the intake and return sides of the panel, and that there 

was indeed a ventilation network present because the only way one 

would obtain the pressures noted is by the flow of air or other 

gases through the network (Tr. 311). He also believed that the 

bottle sample results taken by Mr. Roper establish the probability that air of some unknown quantity was sweeping behind crosscut 23 and coming back through the returns of the panel and that 

there was an established air intake and return despite the fall 

(Tr. 313) • 

Mr. Mitchell disagreed with the inspector's assertion that 

the only method to determine whether an area is ventilated is to 

1818 
physically inspect it and take measurements. He stated that the 

industry and MSHA practice for determining the adequacy or inadequacy of ventilation is by pressure differential surveys. Such 

pressure differential measurements are made by the use of a 

number of anemometers, taking into account mine elevations 

through altimeter readings, dry and bulk temperatures, and the 

quality of the atmosphere. He confirmed that "there are problems 

with pressure readings where the air velocity exceed 400 feet per 

minute" (Tr. 314). 

Mr. Mitchell disagreed with MSHA's position that section 

75.329-l(a), presently requires that abandoned mine areas be 

ventilated. He stated that the only regulation that he is aware 

of that requires an abandoned area to be ventilated is section 

75.314 which requires adequate ventilation if people are to enter 

the area to work (Tr. 322). He conceded that the general 

practice of leaving abandoned mine areas alone and unventilated 

"is a matter of great concern to all of us," and that if he had 

not found a strong flow of air on the cited panel in this case 

and had not found it to be safe, he would not be testifying in 

this case (Tr. 323). He disagreed with MSHA's position that 

section 75.329-l(a), is a viable standard for current application 

and stated that "I only disagree it cannot apply and cannot be 

intended to apply when written in 1970'' (Tr. 324). 

With respect to the application of section 75.316, and 

MSHA's argument that no one has argued that the language requiring a mine operator to adopt a ventilation plan "on or before 

June 28, 1970," limits the application of the standard to that 

date, Mr. Mitchell pointed out that the last sentence of section 

75.316, requiring the review of ventilation plans "at least every 

six months" indicates the congressional intent that such plans be 

submitted every 6 months following June 28, 1970, and that this 

has been the basis for requiring the submission of such plans. 

In his view, this language distinguishes section 75.316 from 

section 75. 329-1 (a) (Tr. 325). 

Mr. Mitchell stated that in the event section 75.329 were 

found not to apply in this case, MSHA would not be left in any 

enforcement "predicament" because it could require Zeigler to 

seal the abandoned area pursuant to section 75.330, or to adopt a 

ventilation plan pursuant to section 75.316 covering the abandoned area (Tr. 327-328). 

Mr. Mitchell was of the opinion that it would not be safe 

for a mine examiner to travel the areas where he travelled during 

his survey, but that it would be safe to travel to crosscut 13 on 

the intake side of the panel to be assured of air flow up to that 

point, and to the return regulator to take a reading at the mouth 

of the panel (Tr. 330). 

1819 
On cross-examination, Mr. Mitchell confirmed that he did not 

draft section 75.329-l(a), but was responsible for the committee 

that considered statutory section 303(z) of the Act, and then 

developed sections 75.329 and 75.330. The committee worked on 

the promulgation of the standards which followed, including 

section 75.329-l(a), among others. He confirmed that the committee was concerned with the problem of "these long contiguous gobs 

that we were having that were causing explosions to worsen," and 

that the intent of section 75.329-l(a), was to require areas of 

mines then in existence to be ventilated or sealed (Tr. 333). 

Mr. Mitchell stated that section 75.329-l(a) is related to 

section 75.328, because it was the intent of Congress and the 

government to require bleeder panels to be constructed around 

mined-out or abandoned areas, and that this would constitute 

adequate ventilation if one could demonstrate a pressure differential. Section 75.329-l(a), was intended in part to allow an 

operator to comply by building a bleeder system around an existing mined-out area, and it is nothing more than an "add-on" to 

section 75.329 which addresses bleeders (Tr. 335). 

When asked for his interpretation of the phrase "or equivalent means" found in section 75.329, Mr. Mitchell responded 

"that's a good question," and he agreed that it means "other 

ventilation systems other than bleeders as approved by MSHA" (Tr. 

335). When asked why section 75.329-l(a), should not be applicable to present day mines, Mr. Mitchell stated that ''it should be; 

it isn't" (Tr. 335). 

Mr. Mitchell agreed that it would be desirable to be able to 

walk to the point of deepest penetration to determine whether the 

ventilation was adequate, but he did not believe that it was 

necessary to do so. It would be desirable because one would be 

dealing with facts rather than probabilities or possibilities, 

and he agreed that survey opinions are based on probabilities. 

He confirmed that he traveled close to the same place as the 

inspector at the No. 13 crosscut, and he believed it was safe to 

travel up to the fall and no further. The question of whether 

someone making an inspection pursuant to section 75.305 could 

safely travel to that area would be a management decision after 

discussion with MSHA (Tr. 339). 

Mr. Mitchell stated that while it would be desirable to 

include a provision in a ventilation plan requiring one to travel 

to the point of deepest penetration in order to determine whether 

the ventilation was adequate, he did not believe it would be 

practical and it might create safety problems. He believed that 

MSHA should require a mine operator to demonstrate with reasonable engineering certainty that the area is being ventilated, and 

this could be done by making a ventilation survey or requiring 

the drilling of a bore hole in the back end of the area in shallow mines and injecting tracer gas (Tr. 352-353). He believed it 

1820 
would be appropriate for Zeigler to conduct a weekly examination 

at the intake side of crosscut No. 13, and to maintain a safe 

access route to that location (Tr. 361). He also believed that 

methane readings should be required at the mouth of the intake 

and at the fall, and if the results are approximately the same, 

this would constitute an atmosphere that is being adequately 

ventilated (Tr. 362). 

Mr. Eslinger was called in rebuttal by the petitioner, and 

stated that when he took courses at the Bureau of Mines in 1971, 

as well as subsequent courses, he was not taught the "sweat of 

the brow" technique referred to by Mr. Mitchell, and Mr. Eslinger 

believed that it was difficult to determine air flow without 

instrumentation (Tr. 368). Mr. Eslinger also expressed concern 

about the pressure differential results of Mr. Mitchell's survey, 

the integrity of the stoppings, and the existence of ~he falls. 

He also commented about the methane readings, the amount of air 

measured on the panel by the respondent, and he still believed 

that to assure oneself that the area is being ventilated it was 

necessary to travel to the point of deepest penetration (Tr. 

3 72) . 

Mr. Eslinger agreed that it would be desirable for an 

inspector to travel to the point of deepest penetration to determine whether the ventilation was adequate, and that this is the 

best way to make such a determination. He agreed that the 

inspector in this case testified that he could not establish that 

the abandoned panel was being adequately ventilated because he 

could not travel to the point of deepest penetration, and could 

only go as far as crosscut No. 13 where he activated a smoke tube 

(Tr. 373). He stated that "we like and encourage people to put 

that into their ventilation plan" so that the operator and MSHA 

can satisfy themselves that an abandoned area is being adequately 

ventilated, and he agreed that in this case, such a provision was 

not in the contestant's plan (Tr. 374). 

On cross-examination, Mr. Eslinger conceded that he had no 

actual knowledge of the integrity of the stoppings outby the 

No. 23 crosscut area, and although he has seen crushed stoppings 

at the Murdock Mine, this was in 1974 or 1975, and the mine was 

using a variety of concrete block stoppings at that time (Tr. 

377). Mr. Eslinger agreed that if MSHA were to conduct a ventilation survey of the abandoned panel in question similar to the 

survey done by Mr. Mitchell, the methodology it would follow 

would be the same basic methodology followed by Mr. Mitchell (Tr. 

378). However, rather than in indulging in probabilities based 

on computerized analysis, he would prefer to clean up the falls 

and clear out entranceways so that one can travel all the way 

around to the four corners of the panel (Tr. 379). 

1821 
Zeigler's Arguments 

Application of Section 75.329-l(a) 

Zeigler's arguments in support of its position in this case 

are set forth in its posthearing brief and reply brief, and in 

its motion for summary decision filed on June 1, 1990 (no ruling 

was made on this motion because the case proceeded to an expedited hearing on the merits pursuant to Zeigler's request). 

Zeigler's counsel in the instant case has raised the same issue, 

and has advanced an identical argument with respect to the applicability of section 75.329-l(a), in several pending contest 

proceedings heard by Commission Judge Morris on March 13, 1990, 

Wyoming Fuel Company v. Secretary of Labor (MSHA), Docket Nos. 

WEST 90-112-R through WEST 90-116-R. Zeigler's counsel furnished 

the presiding judge in the instant case, as well as MSHA's 

counsel, with copies of the posthearing briefs filed with Judge 

Morris, and has incorporated the arguments advanced in that 

proceeding as well as the summary decision motion, with the 

arguments advanced in the instant matter. 

Relying on the language found in statutory standard section 

75.329, (on or before December 30, 1970), and the language found 

in the cited regulatory standard section 75.329-l(a), (.Q.y 

December 30, 1970), Zeigler maintains that when read together, 

these standards, on their face, only apply to mine areas which 

were pillared or abandoned prior to December 30, 1970, and do not 

apply to mine areas established or opened subseguent to that 

date. Since the unrebutted evidence adduced by Zeigler in this 

case establishes that the cited 2nd west panel of the mine was 

initially developed on December 8, 1987, it takes the position 

that section 75.329-l(a), does not apply to the cited mine area. 

Citing several court decisions dealing with statutory and 

regulatory construction, Zeigler asserts that the plain meaning 

of any statutory or regulatory language is conclusive unless a 

clear legislative intent to the contrary can be demonstrated, and 

it takes the position that section 75.329-l(a) must be analyzed 

in light of its plain meaning and congressional intent. In 

support of its argument that section 75.329-l(a), is applicable 

only to mine areas abandoned prior to December 30, 1970, Zeigler 

points out that according to its plain language, the application 

of this section was limited to areas which were pillared or 

abandoned prior to December 30, 1970, and that the congressional 

intent to limit the application of this section is evidenced by 

(1) the use of past tense ("have been ... extracted" and 

"abandoned") in conjunction with the time limitation of "by 

December 30, 1970 11 and (2) the directive found in section 

75.329-l(b). Zeigler concludes that congress's use of the past 

tense in section 303(z) (2) of the 1969 Coal Act, and the 

Secretary's use of it in the supplementary section 75.329-1, 

demonstrate an intent to extend those requirements only to areas 

1822 
pillared or abandoned prior to December 30, 1970 and to require 

only those areas to be ventilated or sealed "by" that time. 

Citing Gwaltney of Smithfield, Ltd. v. Chesapeake Bay 

Foundation, Inc., 484 U.S. 49, 56 (1987), in support of its 

statutory construction argument with regard to the words "by 

December 30, 197011 found in section 75.329-l(a), Zeigler quotes 

the following from the Court's opinion: "Congress could have 

phrased its requirement in language that looks to the (future) 

... , but it did not choose this readily available option. 

Moreover, Congress has demonstrated in yet other statutory 

provisions that it knows how to avoid this (retro)spective 

implication by using language that targets wholly (prospective 

events)." As examples, Zeigler makes reference to 30 C.F.R. 

§ 75.326 ("[i]n any coal mine opened after March 30, 1970); 

30 c.F.R. § 75.330 ("[i]n the case of mines opened on or after 

March 30, 1970 or in the case of working sections opened on or 

after such date in mines open prior to such date"); 30 C.F.R. 

§ 75.500 ("[o]n or after March 30, 1971"); 30 C.F.R. § 75.501 

("[o]n or after March 30, 1974 11 ). 

Assuming that the plain language of section 75.329-l(a) is 

not sufficiently clear, Zeigler maintains that the directive of 

section 75.329-l(b) leaves no doubt that the intent of section 

75.329-l(a) was to require that only areas of mines in existence 

when the 1969 Coal Act was passed be ventilated or sealed prior 

to December 30, 1970. Zeigler notes that section 75.329-l(a) 

provides that if an area of a mine existing in 1969 could be 

ventilated, MSHA had to be notified and approve. (The evidence 

in this case establishes that Zeigler has never sought approval 

from MSHA to ventilate the abandoned area in question, and 

Zeigler has apparently never been cited for its failure to do 

so). The timing for notification and approval is specified in 

section 75.329-l(b) as follows: 

The request for permission to ventilate such areas 

must be submitted in time to allow consideration of the 

request, to obtain approval, and to permit the operator 

to install the ventilation system, or to install seals 

1 zeigler points out that the word "by" means "[b]efore a 

certain time; ... not later than a certain time; on or before a 

certain time .... " Black's Law Dictionary 172 (5th ed. 1979). 

The dictionary is evidence of common usage, Puerto Rican Cement 

Co., 4 FMSHRC 997, 998 n. 1 (1982) (citing 2A Sutherland, 

Statutes & Statutory Construction§ 46.02 at 52 (4th ed. 1973)), 

to which adjudicatory bodies often refer to deciding matter of 

statutory construction. See Phelps Dodge Corp., 681 F.2d at 

1192; Jim Walter Resources, Inc., 7 FMSHRC at 496. 

1823 
in the event the request to ventilate is denied, on or 

before December 30, 1970. (Emphasis added). 

Zeigler concludes that the only interpretation of sections 

75.329 and 75.329-l(a) consistent with the statutory scheme is 

that these regulations required only areas already pillared or 

abandoned prior to December 30, 1970 to be ventilated or sealed. 

Gwaltney of Smithfield, 484 U.S. at 59. It further concludes 

that any other reading would make section 75.329-l(a) incomprehensible, violating the rule of construction that regulations 

must be interpreted "as a whole, in light of the overall statutory and regulatory scheme," Campesinos Unidox v. United States 

Department of Labor, 803 F.2d 1063, 1069 (9th Cir. 1986), "to 

give them a harmonious, comprehensive meaning, giving effect 

... to all provisions." Mccuin v. Secretary of Health & Human 

Services, 817 F.2d 161, 168 (1st Cir. 1987) (citing Weinberger v. 

Hynson, 412 U.S. 609, 631-32 (1973)). 

Zeigler argues that in 1969, Congress was concerned with 

methane accumulations in areas of mines that (1) were being 

pillared, (2) had been pillared or abandoned, or (3) would be 

pillared or abandoned. H.R. Rep. No. 91-563, 9lst Cong., 

1st Sess. 20-21, reprinted in HOUSE COMMITTEE ON EDUCATION AND 

LABOR, 91ST CONG., 2D SESS., LEGISLATIVE HISTORY OF THE COAL MINE 

HEALTH AND SAFETY ACT 578-79 (Comm. Print 1970) ("LEGISLATIVE 

HISTORY"). Zeigler asserts that Congress enacted section 303(z) 

of the 1969 Coal Act to deal with methane accumulations in the 

three situations described above: 

1. Section 303(z) (1) requires operators to ventilate an area "[w]hile pillars are being extracted" from 

it. That section of the 1969 Act was incorporated 

without amendment in 30 C.F.R. § 75.328. 

2. Section 303(z) (2) required operators "within 

nine months after the operative date of this subchapter" (by December 30, 1970) to ventilate or seal all 

areas in existing mines which had been pillared or 

abandoned. That section was incorporated without 

amendment in section 75.329, which was supplemented by 

section 75.329-1. 

3. Section 303(z) (3) requires mines and sections 

of mines opened after the 1969 Act's effective date 

(March 30, 1970) to be designed so that abandoned 

sections can be sealed in accordance with an approved 

plan. That section became section 75.330 of the 

regulations. 

Zeigler further argues that even assuming that this plain 

statutory scheme, "admitt(ed) a smidgen of ambiguity sufficient 

to allow a look at the legislative history, it provides no basis 
for overturning ... the clear meaning of [the regulation]," 

International Union, UMWA v. MSHA, 900 F.2d at 386 (D.C. Cir. 

1990), because both the House Report and the Conference Report 

bolster the interpretation that section 75.329 (and the supplementary section 75.329-1) were intended to apply to sections of 

mines already in existence when the 1969 Coal Act became effective (giving the affected mines 9 months to ventilate or seal 

those areas), leaving section 75.330 to deal with sections of 

mines opened after the 1969 Act's effective date. 

Zeigler points out that the House Report distinguishes the 

requirements for existing sections of mines from those for new 

sections of mines (and new mines) as follows: 

Seals and bulkheads shall be used to isolate in an 

explosion-proof manner all abandoned areas in ex1sting 

mines. [§ 303(z) (2) of the 1969 Act, §§ 75.329, 

75.329-1]. In addition, wherever possible, new areas 

of existing mines will be "sectionalized" with explosive-proof sealing when abandoned, that is isolated 

from active sections. [§ 303(z) (3) of the 1969 Act, 

§ 75.330]. In new mines, opened after the operative 

date of the act, it is intended that the mining system 

be such as to permit isolation by explosion-proof 

bulkheads of each section of a mine as it is abandoned. 

[§ 303 (z) (3) of the 1969 Act, § 75.330]. 

H.R. Rep. No. 91-563, 91st Cong., 1st Sess. 21, reprinted in 

LEGISLATIVE HISTORY at 579 (Emphasis added) . 

Zeigler asserts that the same tripartite statutory scheme 

for regulating active pillar sections, areas already pillared or 

abandoned, and finally, areas to be pillared or abandoned, is 

evident in the Conference Committee's explanation of how the 

three subparts of 303(z) of the Act work in tandem to regulate 

present, past, and future conditions: 

The House amendment provided for the ventilation 

of areas of the mine while actively being Pillared in a 

manner approved by the Secretary or his inspector. It 

also provided that, within 9 months after enactment, 

all mines which are or which have been abandoned must 

be sealed or ventilated, as determined by the Secretary 

or his inspector. The Secretary could permit a further 

time extension of 6 months. It described how adequate 

the ventilation should be and the method of sealing. 

In new mines and new working sections, a plan requiring 

sealing would be required. 

* * * * * * * 

1825 
The conference substitute is adopted after the 

House amendment. 

Under this substitute, paragraph (1) of section 

303(z) [§ 75.328] requires that areas which are 

actively being pillared must be ventilated in the 

manner otherwise prescribed under section 303. 

* * * * * * 

Under the conference substitute paragraph (2) of 

section 303(z) [§ 75.329] provides that, within 

* 

12 months after enactment, all areas from which pillars 

have been wholly or partially extracted, and abandoned 

areas shall be ventilated by bleeder entries or by 

bleeder systems or by equivalent means or be sealed. 

* * * * * * * 

Under the conference substitute, paragraph (3) of 

section 303(z) provides that, in the case of mines 

opened on or after the operative date of this title, or 

in the case of areas developed on or after such date in 

mines opened prior to such date, the mining system 

shall be designed, in accordance with a plan and 

revisions thereof approved by the Secretary and adopted 

by the operator, so that, as each set of cross entries, 

room entries, or panel entries of the mine are abandoned, they can be isolated from the active workings of 

the mine with explosion-proof bulkheads approved by the 

Secretary or his inspector. 

H.R. Rep. No. 91-761, 91st Cong., 1st Sess. 81-82, reprinted in 

LEGISLATIVE HISTORY at 1043-44 (emphasis added). 

Zeigler concludes that the statutory and regulatory 

language, the statutory scheme, and the legislative history lead 

to only one conclusion: Sections 75.329 and 75.329-l(a) apply 

only to sections which were pillared or abandoned prior to 

December 30, 1970. Because the development of the cited 2nd West 

panel of the Murdock Mine was not begun until 1987, Zeigler 

further concludes that sections 75.329 and 75.329-l(a) do not 

apply to it and that the contested citation must be vacated. 

The Alleged Violation of Section 75.329-l(a} 

Zeigler points out that Inspector Stritzel and his supervisor, Mark Eslinger, both testified that to show an abandoned 

area is ventilated in accordance with section 75.329 and 

75.329-l(a) (1), the operator must be able to determine that the 

abandoned area is being ventilated and (2) it must make that 

determination by travelling the abandoned area to its point of 

1826 
deepest penetration. However, Zeigler argues that these requirements are not in section 75.329 and 75.329-l(a), but are found in 

MSHA's proposed ventilation regulations which have not as yet 

been promulgated as mandatory standards. See: 53 Fed. Reg. 

2382, January 27, 1988. 

Reviewing MSHA's proposed new ventilation regulations, 

Zeigler argues that proposed ventilation regulation section 

75.334(a}, which is derived from current sections 75.329 and 

75.316, would require that worked-out areas which have not been 

pillared "shall be ventilated so that gases from throughout the 

worked-out areas are routed into a return air course or to the 

surface of the mine, or they shall be sealed." 53 Fed. Reg. 

2417. However, Zeigler points out that proposed section 75.334 

would have to be read in conjunction with proposed section 75.364 

(covering weekly examinations underground), which would apply to 

worked-out areas where no pillars have been recovered, a·nd "would 

generally require weekly travel to the area of deepest penetration, and measurements and tests at locations where the effectiveness of the ventilation system can be determined." 

53 Fed. Reg. 2394, 2417, 2420. 

Zeigler concludes that the inspector applied the requirements of the proposed and unpromulgated ventilation regulations 

cited above to the cited abandoned panel in question in this case 

and that he issued the citation because he could not physically 

follow the flow of air "to the deepest depth" of the panel and 

therefore could not determine where the air was going on the 

panel. However, Zeigler points out that the words "deepest 

penetration" or "deepest depth" apply only in the proposed rules 

and that Mr. Eslinger was unable to identify any regulation in 

Part 75 which contained these words, and that only the proposed 

rules--not the existing ones--would impose mandatory requirements 

on operators to determine "the effectiveness of the ventilation 

system." Under these circumstances, Zeigler maintains that the 

inspector "jumped the gun" by engrafting proposed requirements 

onto existing section 75.329-l(a). Because the inspector applied 

these "homegrown" requirements drawn from tentative proposals in 

issuing the citation, Zeigler concludes that he held it to a 

standard not found in section 75.329-l(a), and for this reason, 

the citation must be vacated. 

Zeigler further argues that MSHA's position that Zeigler 

must initially show that an abandoned area is ventilated to 

demonstrate compliance with section 75.329-l(a), and that MSHA 

need not show the opposite to prove a violation, cannot be sustained because the burden is on MSHA to prove a violation. 

Unlike proposed sections 75.334 and 75.364, which would require 

the operator to test ventilation of a worked-out area where it 

can determine its effectiveness, Zeigler points out that no 

similar requirements is found in section 75.329-l(a), and that 

1827 
this section only requires that an abandoned area existing in a 

mine opened prior to December 30, 1970, be ventilated or sealed. 

Zeigler concludes that assuming section 75.329-l(a) can be 

applied by MSHA in this case, in order to sustain a violation of 

that standard, the burden of proof is on MSHA to show that the 

cited panel was not ventilated or not sealed. Since the inspector admitted that he could not determine whether the cited panel 

was ventilated and informed mine management that he was issuing 

the citation because "we couldn't get to the head end of the 

section and determine if it was being ventilated or not," Zeigler 

concludes that MSHA has failed to prove a violation and that the 

citation must be vacated on that basis. Zeigler observes that 

even if there were a requirement that ventilation of an abandoned 

area be determined only by travelling to the point of deepest 

penetration, in a case such as the instant one, MSHA VL.Ould never 

be able to prevail. If the inspector were unable to travel the 

section to its deepest point, then MSHA would never be able to 

prove by a preponderance of the evidence that the area was not 

ventilated. 

Even assuming the application of section 75.329-l(a), to the 

cited panel, Zeigler maintains that the evidence in this case 

establishes that the cited panel was in fact ventilated when the 

citation was issued. Contrary to MSHA's position that the 

inspector cited a violation because he could not determine with 

absolute certainty that the cited panel was being effectively 

ventilated by walking the panel to the point of deepest penetration, Zeigler maintains that it has demonstrated with reasonable 

certainty that the panel was being effectively ventilated, that· 

this is sufficient to establish compliance with the standard, and 

that its proof with reasonable certainty that the panel was being 

ventilated outweighs MSHA's allegations to the contrary. 

Zeigler argues that its showing with reasonable certainty 

that the cited panel was in fact ventilated when the citation was 

issued is consistent with the preponderance-of-the-evidence 

standard applicable in Commission proceedings and that the concept of absolute certainty does not exist when it comes to 

proving violations of the Act; rather, the focus is on probabilities. Zeigler believes that to prove a violation, MSHA must show 

by a preponderance of the evidence, and not with absolute certainty, that a violation exists. Zeigler concludes that to prove 

a violation by a preponderance of the evidence, MSHA must show 

that it was more probable than not that the cited panel was not 

ventilated. And, assuming a prima facie showing by MSHA, Zeigler 

has to show that it was more probable than not that the panel was 

ventilated, and it believes that it has done so in this case. 

In support of its assertion that MSHA has not established a 

violation by a preponderance of the evidence, Zeigler points out 

that other than the smoke tube tests performed by the inspector, 

1828 
MSHA produced no evidence to show that methane and other gases 

were not rendered harmless and carried out of the cited panel. 

In contrast, Zeigler believes that through the testimony of its 

expert witness Don Mitchell, it has proved by a preponderance of 

the evidence that the cited panel was ventilated. In support of 

this conclusion, Zeigler relies on the testimony and facts presented by Mr. Mitchell with respect to analyses derived from his 

observations and data, which included a ventilation survey and 

computer analysis of the cited panel (exhibit C-5), methane 

readings, bottle samples reflecting concentrations of methane, 

carbon dioxide, and oxygen on the panel, airflows on the panel, 

and measured pressure differentials. (Zeigler's detailed discussion and conclusions concerning Mr. Mitchell's analyses and 

findings are set forth at pages 16 through 22 of its posthearing 

brief). Zeigler concludes that compared to MSHA's inconclusive 

smoke tube tests, Mr. Mitchell's irrefutable conclusions,_ based 

on undisputed accepted scientific principles and methodology, 

constitute the preponderance of evidence clearly supporting its 

position that the cited panel was in fact ventilated in compliance with the cited regulatory standard. 

Reasonableness of the Abatement Time 

Assuming a violation occurred, Zeigler argues that the time 

fixed by the inspector for abatement was unreasonable because he 

arbitrarily settled on a 30-day abatement period without considering the disruptive effect it would have on the operations of 

the mine. Zeigler suggests that the inspector set a 30-day 

abatement period with the idea that operations would be disrupted, and in support of this conclusion it cites the inspector 1 s testimony that notwithstanding his belief that there was a 

lack of personnel to construct seals he "set thirty days as a 

time element so that he could see some work being accomplished in 

thirty days" (Tr. 52, 68). 

Citing Freeman Coal Mining Corp., 1 IBMA 1, October 5, 1970, 

holding that the availability of equipment and the operator's 

difficulties in abatlng the cited conditions are relevant considerations in setting an abatement time, Id. at 25-27, Zeigler 

asserts that the inspector ignored the Board's admonition that 

''where a longer abatement period will vastly reduce the cost of 

abatement or the operational disruption, without exposing the 

miners to significant danger, we think an order fixing the longer 

period would be reasonable," Id. at 27. Zeigler points out that 

although the inspector testified that the existence of a hazard 

resulting from the alleged violation would be unlikely, he did 

not adjust the abatement time accordingly to avoid the complete 

disruption of mining operations and did not consider how long it 

would take to construct the seals because he had already decided 

that he would set 30 days as an abatement period even before he 

went underground to inspect the panel. In support of this conclusion, Zeigler cites the unrebutted testimony of superintendent 

1829 
Roper that the inspector informed general mine foreman Carpenter 

on May 10, 1990, that the panel would have to be sealed within 

30 days. 

Zeigler asserts that the inspector's "calculation" and 

belief that 30 days was sufficient to permit rehabilitation work 

to be done and seals to be constructed bore no relation to 

Mr. Roper's estimate that the work would normally take more than 

2-1/2 months. Zeigler states that the inspector never discussed 

with mine management how long it would take to construct the 

seals and told Mr. Roper that no extensions in abatement time 

would be granted. Zeigler points out that although the inspector 

claimed not to remember making this statement to Mr. Roper, he 

conceded that he might have told him that no abatement time 

extensions would be granted (Tr. 69). Under all of these circumstances, Zeigler concludes that the inspector acted improperly by 

"blindly" imposing a 30-day abatement period without considering 

the available manpower and the disruptive effect such an abatement period would have on its operations. 

MSHA's Arguments 

Application of Section 75.329-l(a) 

MSHA takes the position that section 75.329-l(a), required 

Zeigler to either ventilate or seal the cited abandoned area, and 

that this was a continuing requirement which has not expired. 

MSHA also asserts that Zeigler could not demonstrate on May 17, 

1990, that the cited panel was being adequately ventilated, and 

that the 30-day abatement time given by the inspector was reasonable considering the information he had on May 17, 1990. 

In support of its argument that section 75.329-l(a), has 

current application, MSHA argues that the underlying statutory 

provision found in section 303(z) (2) of the 1969 Coal Act contains no specific expiration date, but merely states "within nine 

months . . . all areas . • . shall be ventilated • . . or be 

sealed." MSHA concludes that this statutory requirement for 

sealing or ventilated abandoned mine areas has current application to the cited abandoned mine panel and continues to be applicable to all coal mines. MSHA states that Zeigler's expert 

witness, Don Mitchell, acknowledged that the protections incorporated into section 75.329-l(a) should be applicable to present 

day mines, and it concludes that the reason for this is because 

the hazards of a methane build-up in abandoned mine areas must 

still be addressed in 1990. 

MSHA asserts that it has not promulgated any new standards 

which supersede the requirements of section 303(z) (2) of the 1969 

or 1977 Acts, and that the only difference between section 

303(z) (2) and 30 C.F.R. § 75.329-l{a) is that a specific date 

(December 30, 1970) is mentioned in the standard. MSHA concludes 

1830 
that since Congress has stated its position that abandoned mine 

areas must be properly ventilated or sealed on two separate 

occasions, 8 years apart, it is clear that it intended this 

standard to be an ongoing requirement for all underground coal 

mines. 

MSHA argues that Zeigler's interpretation of section 

75.329-(a), implies that section 303(z) (2) of the 1977 Act was 

superfluous when it was enacted. MSHA concludes that if 

Zeigler's interpretation that the requirements of section 

303(z) (2) expired on December 30, 1970, is correct, then it would 

follow that there was no requirement for ventilation of abandoned 

mine areas until the passage of the 1977 Act, with the added 

implication that the 1977 Act required ventilation only for a 

9-month period. MSHA views this interpretation as a "t-ortured" 

interpretation of the two statutes which would result in a standard being in effect for 9 months in 1970 and for 9 months in 

1978, with no protection during the 8 years in between, nor for 

the time period since November 1978. 

MSHA states that while many provisions of the 1969 Act 

became obsolete and were removed from the 1977 Act, the language 

of section 303(z) (2) was repeated word for word, and it concludes 

that it must be assumed that Congress knew what it was doing in 

1977 when it repeated the language which Zeigler claims was 

obsolete 7 years earlier. By repeating this language from the 

1969 Act in the 1977 Act, MSHA further concludes that Congress 

intended to continue the protections afforded by section 

303(z)(2). 

Referring to mandatory standard 30 C.F.R. § 75.316, which 

requires a mine operator to adopt a ventilation system and 

methane and dust-control plan, and which contains language ("on 

or before June 28, 1970''), which is similar to the language found 

in section 75.329-l(a) ("by December 30, 1970 11 ), MSHA suggests 

that acceptance of Zeigler' s "plain meaning" argument would lead 

to the conclusion that section 75.316 expired on June 28, 1970. 

Such a result, argues MSHA, would reduce the safety of every coal 

miner, and it points out that section 75.316 has never been 

enforced in such a restrictive manner. MSHA further concludes 

that the acceptance of Zeigler's argument would also be used to 

negate the applicability of a number of other important safety 

standards, and would result in some serious consequences affecting the safety of miners. 

MSHA believes that the dispute in this case is the result of 

a fundamental difference in the meaning of the dates specified in 

section 303(z) (2) of the 1969 and 1977 Acts, and that Zeigler 

believes that these are expiration dates, while MSHA contends 

that these are effective dates. MSHA believes that Zeigler's 

interpretation makes no sense since Congress clearly could not 

have intended for these ventilation provisions to apply only to 

1831 
certain mines for only two distinct 9-month periods, and that the 

only logical conclusion is that the language of section 303(z) (2) 

and 30 C.F.R. § 75.329-l(a) provided a grace period during which 

mine operators could prepare to comply with the ventilation 

requirements. 

In MSHA's view, Zeigler's argument that section 303(z) (3) of 

the Act is the only appropriate standard for mines (or mine 

sections) opened after December 30, 1970, is totally without 

merit since section 303(z) (3) and 30 C.F.R. § 75.330 only require 

that mining systems be designed with a plan which will allow the 

sealing of abandoned areas, whereas section 303(z) (2) reguires 

ventilation or sealing of such areas. MSHA asserts that following Zeigler's contentions to their logical conclusion means that 

mines opened after December 30, 1970, need only provide for the 

possibility of sealing abandoned areas, but not the requirement 

for ventilating or sealing such areas. 

The Alleged Violation of Section 75.329-l(a) 

MSHA takes the position that the citation was properly 

issued because the inspector could not determine, nor could 

Zeigler demonstrate to him, whether there was sufficient air 

movement in the abandoned panel to render harmless or carry away 

any concentrations of methane or other dangerous gases. MSHA 

points out that when the inspector traveled up the intake side of 

the panel to the No. 13 crosscut, he and the general mine foreman 

could travel no further because a massive roof fall had blocked 

the entry, and the return side of the panel at the No. 13 crosscut was also blocked. Through the use of two smoke clouds, the· 

inspector confirmed that there was little, if any, air movement 

over the fall, inby where the inspector was standing. 

MSHA points out that since the inspector could not travel 

beyond crosscut No. 13, he had no way of knowing how much air was 

ventilating the remaining two-thirds of the abandoned panel, and 

the inspector testified that the only method he had to determine 

if the panel was being adequately ventilated was to physically 

walk to the back corners of the panel (the point of deepest 

penetration) to make his checks for hazardous conditions. Even 

assuming that some air was moving over the fall at crosscut 

No. 13, MSHA concludes that there was no way of knowing how far 

the air was going beyond that point. Since it was likely that 

additional roof falls existed throughout the back area of the 

panel, MSHA suggests that air could be travelling up a few crosscuts, and then cutting across into the return, without ventilating mo$t of the back portion of the panel. MSHA concludes that 

the inspector issued the citation and cited a violation of section 75.329-l(a), based on the information that he had on May 17, 

1990, and because he found no evidence of adequate ventilation in 

the panel. 

1832 
MSHA asserts that both of its witnesses indicated that if an 

operator decided to ventilate an abandoned panel, it has to clean 

up the roof falls and establish an air course so that mine 

examiners can physically travel to key locations to take air and 

methane readings. MSHA asserts that most mine operators decide 

to seal abandoned areas because reestablishing ventilation after 

a roof fall has occurred may be difficult or impossible. MSHA 

points out that Zeigler had the option of sealing the entire 

panel or sealing outby the fall area at the No. 13 crosscut, and 

if it did the latter, a weekly examination for hazardous conditions, pursuant to section 75.305, would have to be made up to 

that crosscut. 

MSHA cites the testimony of mine superintendent Roper that 

weekly examinations for hazardous conditions were stopped in 

December 1989, after roof falls blocked the entries iriby crosscut 

No. 13, and that instead of travelling up the entry to check for 

hazardous conditions, a preshift examination was performed at the 

mouth of the panel to check for methane and air flow going into 

the panel and coming out the return side. MSHA asserts that such 

a preshift examination is not an adequate substitute for the 

weekly examination which requires the abandoned entry to be 

traveled as far as it is safe to go. MSHA concludes that without 

physically walking the panel, Zeigler had no way of knowing if 

there were any hazardous conditions in the panel after December, 

1989, and that it is inconsistent for Zeigler to argue that it 

was making a serious effort to ventilate the panel on May 17, 

1990, without having qualified examiners checking for hazardous 

conditions on a regular basis. 

MSHA maintains that the intent of 30 C.F.R. § 75.329-l(a) 

contemplates a process where a mine operator requests permission 

to ventilate an abandoned panel and gives the MSHA District 

Manager sufficient data for him to make a determination that the 

abandoned area is being adequately ventilated. This data, which 

can be submitted as a part of an operator's ventilation plan or 

by separate letter, must be submitted to the MSHA District 

Manager to allow him sufficient amount of time to act on the 

operator's request. MSHA asserts that an operator should not be 

allowed to wait until a citation is issued before collecting 

sufficient data in the abandoned area, to determine if it is 

being properly ventilated, and it suggests that this is what 

Zeigler is attempting to do in this case. 

MSHA asserts that the methane and air readings collected in 

the cited panel on May 18 and June 20, 1990, do not in any way 

rebut the inspector's findings in the citation because low 

methane readings, taken by Zeigler in the front areas of the 

abandoned panel, are not a good indication of continued low 

methane levels for the entire panel. When there are roof falls 

similar to those present in the cited panel, methane can become 

trapped behind the falls and pockets of methane can be present. 

1833 
MSHA concludes that without proper ventilation an operator cannot 

assume that methane accumulations will not migrate from the 

abandoned panel to active workings, nor can it protect against 

explosive levels of methane occurring in the abandoned areas. 

MSHA views the testimony of Zeigler's safety director (David 

Stritzel), that he was sure the back area of the panel was being 

ventilated because he believed that the block stoppings constructed in the abandoned panel were still intact, as mere speculation because no one had recently observed these stoppings, and 

MSHA's expert witness (Eslinger) testified that he had observed 

solid block stoppings crushed out at the Murdock Mine on previous 

occasions. 

In summary, MSHA submits that whether there is a violation 

of 30 C.F.R. § 75.329-l(a) depends on the adequacy of tn~ ventilation in the entire abandoned panel, not on after-the-fact 

methane and CO readings taken at various outby locations. MSHA 

believes it is essential to know if ventilation can be maintained 

by directing the air flow throughout the abandoned panel, including the back corners. Relying on the testimony of its witnesses, 

MSHA concludes that the only way to determine if ventilation is 

being maintained is to actually travel up to the point of deepest 

penetration of the abandoned panel to take methane and air 

readings. 

Reasonableness of the Abatement Time 

MSHA takes the position that usually, the only time the 

issue of reasonable time for abatement is raised in a contest 

proceeding is after a section 104(b) order is issued for failure 

to abate a citation and a mine operator is contending that the 

citation should be further extended. MSHA points out that there 

is a lack of case law on what constitutes a reasonable abatement 

time of an original citation, and that the obvious reason for 

this is that once the citation abatement time is extended or the 

citation is abated, a determination of whether the original 

abatement time was reasonable becomes moot. 

MSHA points out that the abatement time for the citation was 

June 18, 1990, and that it was extended to August 1, 1990, after 

the hearing. The citation was subsequently terminated on July 

16, 1990, after the cited abandoned panel was sealed by Zeigler. 

Since Zeigler would be entitled to a determination of whether the 

original abatement time was reasonable only if a section 104(b) 

were issued, and since no such order was in fact issued, MSHA 

concludes that any ruling on this issue at this point of the 

proceeding would be a mere academic exercise since Zeigler has 

already received all of the abatement relief it needed. 

1834 
Findings and Conclusions 

The Application of Section 75.329-l(a) 

Mandatory safety standard 30 C.F.R. § 75.329 mirrors section 

303(z) (2) of the 1977 Mine Act, and it was carried over without 

amendment from the 1969 Coal Act. Section 75.329 states as 

follows: 

§ 75.329 Bleeder systems. 

[Statutory Provision) 

On or before December 30, 1970, all areas from 

which pillars have been wholly or partially extracted 

and abandoned areas, as determined by the Secretary or 

his authorized representative, shall be ventilatea-by 

bleeder entries or by bleeder systems or equivalent 

means, or be sealed, as determined by the Secretary or 

his authorized representative. When ventilation of 

such areas is required, such ventilation shall be 

maintained so as continuously to dilute, render harmless, and carry away methane and other explosive gases 

within such areas and to protect the active workings of 

such mine from the hazards of such methane and other 

explosive gases. Air coursed through underground areas 

from which pillars have been wholly or partially 

extracted which enters another split of air shall not . . contain more than 2.0 volume per centum of methane, 

when tested at the point it enters such other split. 

When sealing is required, such seals shall be made in 

an approved manner so as to isolate with explosionproof bulkheads such areas from the active workings of 

the mine. (Emphasis added). 

The cited mandatory section 75.329-l(a) in this case, is a 

supplementary regulation promulgated by the Secretary of the 

Interior on March 28, 1970, 35 Fed. Reg. 5236, and it provides as 

follows: 

§ 75.329-1 Sealing or ventilation of pillared or 

abandoned area. 

(a) All areas of a coal mine from which the 

pillars have been wholly or partially extracted and 

abandoned areas shall be ventilated or sealed by 

December 30, 1970. For those coal mines in which 

ventilation can be maintained so as to continuously 

dilute, render harmless and carry away methane and 

other explosive gases within such areas and to protect 

the active workings of the mine from hazards of such 

methane and other explosive gases, the operator shall 

1835 
request permission from the Coal Mine Safety District 

Manaqer in whose district the mine is located to ventilate such areas. (Emphasis added). 

Subsections (b) and (c) of section 75.329-1, provide as 

follows: 

(b) The request for permission to ventilate such 

areas must be submitted in time to allow consideration 

of the request, to obtain approval, and to permit the 

operator to install the ventilation system, or to 

install seals in the event the request to ventilate is 

denied, on or before December 30, 1970. 

(c) The determination of whether ventilation will 

be permitted will be made after taking into consid€ration the history of methane and other explosive gases 

in the mine, the size of the gob or abandoned areas, 

and if the areas can be ventilated adequately. 

Subsections (d) (e) and (f) of section 75.329-1, concern the 

information required to be submitted by the mine operator for 

consideration by MSHA with respect to the request for permission 

to ventilate an abandoned mine area. 

The parties have cited no Commission decisions construing 

the language "on or before December 30, 1970," found in section 

75.329, or the language "by December 30, 1970," found in section 

75.329-l(a), and I have found none. However, in two decisions 

construing the application of 30 C.F.R. § 75.326, the first 

sentence of which begins "In any coal mine opened after March 30, 

1970," former Commission Judges Boltz and Cook followed the 

literal meaning of this phrase and concluded that the standard 

did not apply to mines opened before March 30, 1970. See: 

C.F. & I. Steel Corporation, 3 FMSHRC 99, 104 (January 1981); 

Rushton Mining Company, Docket No. PITT 73-371-P, slip op. at 

pg. 22, January 31, 1975. 

In the Wyoming Fuel Company case pending before Judge 

Morris, supra, MSHA relied on three decisions affirming violations of section 75.329, in support of its conclusion that "the 

Commission has treated this section as a valid safety standard 

that is not obsolete when an abandoned area has not been sealed 

or ventilated after 1970." See: Christopher Coal Company, 

decided by Judge Cook on October 18, 1976, affirmed by the 

Commission on October 25, 1978, IBMA 77-7, 1 MSHC 1688 (1978); 

Itmann Coal Company, 2 FMSHRC 1986 (July 1980), Commission review 

denied, September 2, 1980, 2 FMSHRC (September 1980); Mettiki 

Coal Cor2oration, 6 FMSHRC 1507 (June 1984). 

The statutory construction issue raised by Zeigler was not 

raised or addressed in the three aforementioned cases. 

1836 
Christopher Coal involved an established bleeder ventilation 

system, and the issue presented concerned the proper location for 

testing return air from a bleeder to determine whether there was 

compliance with the methane concentration limit found in section 

75.329. 

In Itmann Coal, former commission Judge Laurenson affirmed 

an imminent danger order issued by an inspector in September, 

1979, citing a violation of section 75.329, for the failure by 

the operator to adequately maintain the ventilation in an abandoned area to continuously dilute, render harmless, and carry 

away methane and explosive gases. The cited area had previously 

been closed by an imminent danger order issued in October, 1969. 

Rather than attempting to abate the conditions which prompted the 

issuance of that order, the operator opted to abandon the 

affected area. Given the choice of sealing or ventilating the 

abandoned area by bleeder entries or bleeder systems pursuant to 

section 75.329, the operator chose to ventilate it, and a bleeder 

system ventilation plan was adopted and approved by MSHA. The 

plan included a provision requiring the operator to travel the 

bleeder system "if safe." 

In Mettiki Coal, Chief Judge Merlin affirmed a violation of 

section 75.329, because of the failure by the operator to establish a bleeder system to ventilate a gob area. The air coursing 

through the gob area was not directed through the bleeder 

entries, and the misdirected air was the result of a roof fall 

which blew out a metal stopping. The violation was abated by the 

installation of permanent concrete stoppings, and Judge Merlin 

took note of the fact that there was some confusion by the operator as to whether a bleeder system plan had ever been approved 

for the mine area in question. 

In Secretary of Labor v. Gateway Coal Company, 10 FMSHRC 

1189 (September 1988), Judge Broderick affirmed a violation of 

section 75.329, because of the failure by the operator to ventilate a travelable pqrtion of its bleeder system so as to dilute, 

render harmless and carry away methane within such areas. Citing 

Judge Laurenson's decision in Itmann Coal Company, supra, Judge 

Broderick concluded that section 75.329, has two distinct mandates: (1) ventilation in bleeder entries required where pillars 

have been extracted shall be maintained so as to dilute, render 

harmless and carry away methane within such areas and to protect 

the active workings of the mine; (2) air from such areas which 

enters another split of air shall not contain more than 2 percent 

methane, 10 FMSHRC 1192). 

In Beckley Coal Mining Company, 3 FMSHRC 2593 (November 

1981), Judge Melick vacated an alleged violation of section 

75.329, which was issued because of the failure by the operator 

to reduce the methane concentration to below 2 percent in a 

bleeder system crosscut on an abandoned gob panel from which 

1837 
pillars had been wholly or partially extracted. Judge Melick 

concluded that the question of whether a violation of section 

75.329 exists depends on the adequacy of the ventilation system, 

and not solely upon the levels of methane found in any particular 

crosscut. The operator took issue with the inspector's methodology for evaluating the air movement in the cited area, and in 

vacating the violation, Judge Melick concluded that the only 

evidence to suggest the inadequacy of the ventilation system was 

the one time series of methane readings showing a non-explosive 

2 percent to 3 percent methane concentration and the inspector's 

opinion that there was no perceptible movement of air. He gave 

greater weight to the operator's smoke tube tests, taken the day 

following the issuance of the violation, and which simulated the 

same conditions found by the inspector. Those tests showed that 

the released smoke moved out of the crosscut and into the 

bleeder. The inspector had relied on his opinion that the air 

movement was minimal, and he did not use an anemometer or smoke 

tube to measure the air movement. 

In Greenwich Collieries, Division of Pennsvlvania Mines 

Corporation, 8 FMSHRC 1390 (September 1986), I vacated an alleged 

violation of section 75.329, issued by an inspector in the course 

of a mine ventilation survey. The inspector issued the violation 

after finding a 3.3 percent methane accumulation at a bleeder 

evaluation point which had been approved by MSHA as part of the 

mine ventilation plan. I found no credible evidence to support 

any conclusion that the approved plan required all bleeder evaluation points to have methane readings below 2 percent, or that 

bleeder evaluation points were the only acceptable locations for 

conducting methane tests to insure compliance with the requirement found in section 75.329, that air leaving a gob area and 

entering another air split contain less than 2 percent methane. 

I found credible the operator's evidence that its methane readings indicated decreased levels of methane outby the bleeder 

evaluation points up to and including the mixing point before the 

air entered the return air split. Coupled with the fact that the 

operator's methane tests at a point before the air off the 

bleeder joined with the air off the return showed 1.3 percent 

methane, I concluded and found that the ventilation system was 

being maintained so as to continuously dilute, render harmless 

and carry away any explosive levels of methane. 

In the Greenwich Collieries case, MSHA presented the testimony of Mr. John Kuzar, a ventilation specialist and field office 

supervisor. Mr. Kuzar confirmed that the mine ventilation plan 

permitted 2 percent methane at a bleeder evaluation point. He 

testified that the purpose of section 75.329, is to insure positive air pressure over a gob area to dilute and render harmless 

any noxious gases so that "you are showing it to the return," 

8 FMSHRC 1398. Mr. Kuzar agreed that it was possible for air 

ventilation to go over a caved crosscut, depending on how tight 

it was, because "it's trying to get to the return," that the 

1838 
distance travelled by any methane would result in diluting it as 

it is moving, and that any decreased levels of methane at locations where readings are taken would indicate that the air is 

diluting the methane and that it is being coursed out of the 

area, 8 FMSHRC 1410, 1411. 

In commenting on a mine operator's application to MSHA for 

the establishment of bleeder evaluation points pursuant to section 75.329, Mr. Kuzar alluded to the fact that bleeder evaluation points were critical in mines developed "prior to the 

effective date of the law" because "in those days" "good 

bleeders" were not required and that mines were "normally 

pillared from the solid to he solid." Mr. Kuzar stated that 

"since 1969," most mine ventilation plans require "a bleeder 

system that goes around the entire perimeter of that gob" 

(8 FMSHRC 1399-1400). Mr. Kuzar's testimony lends supp~rt to 

Mr. Mitchell's testimony that the primary intent of Congress with 

respect to section 75.329, as well as section 75.329-l(a), which 

he viewed as an "add-on" regulation, was to address bleeders, and 

to require the construction of a bleeder system around mined-out 

areas of a mine which were in existence at the time these statutory and regulatory standards were promulgated and adopted. 

As noted earlier, the statutory construction issue raised by 

Zeigler in the instant proceeding was not raised in Christopher 

Coal, Itmann Coal, or Mettiki Coal. Neither was it raised in any 

of the other aforementioned cases in which alleged violations of 

section 75.329,·were cited (none of the cases involved citations 

of section 75.329-l(a)). In each of these cases, the mine operator had established bleeder systems which were incorporated as 

part of its MSHA approved ventilation plan for ventilating abandoned areas of the mine. In the instant case, the Zeigler mine 

has no bleeder entries or bleeder systems, and no pillar extraction has taken place in the cited area. Further, the applicable 

mine ventilation plan, as reviewed and approved by MSHA, does not 

cover abandoned mine areas, and contains no provisions requiring 

the ventilation of these areas. The only reference to the 

"deepest point of penetration," appears at paragraph 4, page 2, 

of the plan, but it refers to the "deepest point of face penetration, where coal is being cut, mined, or loaded" (Exhibit C-1). 

Mr. Eslinger stated that section 75.329-l(a) has generally 

not been cited in his district because compliance is attempted 

through the use of a ventilation plan provision to assure "the 

same basic thing" required by the standard. He confirmed that 

the question of whether or not section 75.329-l(a), is limited to 

December 30, 1970, has been discussed within MSHA, and MSHA has 

taken the position that it is an absolute ongoing rule. However, 

Mr. Eslinger was unaware of any MSHA policy discussing the interpretation and application of this standard, and I have found 

none. 

1839 
MSHA's proposed revisions of the Part 75 standards for 

underground coal mine ventilation, as published in the Federal 

Register on January 27, 1988, 53 Fed. Reg. 2382, as reported in 

the BNA Mine Safety & Health Reporter, pgs. 500-542, February 5, 

1988, contain no commentary on existing standard sections 75.329 

or 75.329-l(a). The proposed revisions contain a new definition 

of "worked out area," whether pillared or nonpillared, and it 

will include all areas within the existing definition of abandoned areas. A proposed new section 75.334, which is derived 

from existing section 75.329, would revise the requirements for 

bleeder systems and will establish ventilation standards for 

worked-out mine areas where no pillars have been recovered and 

areas where pillars are being mined. Sealing would be permitted 

in lieu of ventilating worked-out areas, and sealing would be 

required if the results of air measurements indicate that the 

ventilation system is not effectively moving gases out--of a 

worked-out area. Proposed section 75.364, would require weekly 

travel to the area of deepest penetration, and measurements and 

tests to determine the effectiveness of the ventilation system. 

Zeigler's evidence reflects that prior to its abandonment in 

November or December, 1987, the cited panel was being ventilated 

by an air course which circumvented the perimeter of the panel. 

After it was abandoned, Zeigler made plans to eventually seal the 

area after completion of development in another area, but continued to ventilate it. However, there is no evidence that 

Zeigler ever sought or received permission from MSHA pursuant to 

section 75.329-1, to continue ventilating the abandoned area and 

it has never been cited for failing to do so. The applicable 

ventilation plan contains no provisions or requirements for 

ventilating the area, and no explanation was forthcoming from 

MSHA as to why the ventilation plan was approved without such a 

requirement. 

Although MSHA's conclusion that it must be assumed that 

Congress knew what it was doing when it repeated the language 

found in section 75.329 of the 1969 Act word for word in the 1977 

Act and intended to continue the application of this section as 

an ongoing requirement for all underground mines is inviting, I 

find it less than persuasive. I agree with Zeigler's argument 

that the legislative history shows that Congress intended to 

leave the interim mandatory standards of Title III of the 1969 

Act intact, leaving the business of promulgating new or revised 

standards to MSHA. I also agree with Zeigler's assertion that 

since Congress did not change Title III, the legislative history 

of the 1969 Act still serves as an interpretive statutory guide, 

and that the relevant legislative history is that which rerates 

to sections 303 (z) (1), (z) (2) and (z) (3) of the 1969 Act. 

MSHA has not promulgated any new standards which supercede 

sections 75.329 and 75.329-l(a), and only recently engaged in 

rule-making proposing revisions of its Part 75 requirements for 

1840 
underground coal mine ventilation. As noted earlier, MSHA's 

proposed revisions contain no commentary on existing standard 

sections 75.329 or 75.329-l(a), and MSHA has not published any 

definitive policy guidelines dealing with the interpretation and 

application of section 75.329-l(a). With respect to section 

75.329, which is directed to bleeder systems (which are not used 

in Zeigler's mine), MSHA's current Program Policy Manual, July 1, 

1988, discusses abandoned mine areas ventilated by bleeder 

systems and bleeder entries. The policy requires a mine operator 

to submit ventilation plans covering the use of bleeder entries, 

bleeder systems, "or equivalent means" to MSHA's district manager 

for approval. The term "or equivalent means" is not further 

explained. The policy further mandates the sealing of an abandoned area should the bleeder system prove inadequate, or in the 

event the methane concentrations exceed 2.0. However, if an 

operator can show that such conditions can be corrected hy modification of the mine ventilation or bleeder system, it must apply 

to MSHA for approval. 

MSHA's assertion that Mr. Mitchell acknowledged that section 

75.329-l(a), should be applicable to present day mines must be 

taken in context. The record reflects that Mr. Mitchell qualified his statement. When asked on cross-examination "If the 

intent of 329-l(a) was ... to require in abandoned areas to 

ventilate or seal, ... shouldn't (that requirement) also be 

applicable to present day mines," Mr. Mitchell replied "It should 

be; it isn't" (Tr. 335) (emphasis added). Mr. Mitchell further 

testified as follows at (Tr. 323-324): 

ADMINISTRATIVE LAW JUDGE KOUTRAS: * * * [A]re you 

telling me that assuming that the general rule is that 

you leave abandoned areas alone and that's a matter of 

concern, then shouldn't MSHA have some clear standard 

or at least clarified or amended or gone through rule 

making to specifically and clearly require abandoned 

mine areas in all of the mines, that they be 

ventilated? 

THE WITNESS: And the manner by which they enter -- define what they mean by ventilation. 

ADMINISTRATIVE LAW JUDGE KOUTRAS: You think they 

should do that? 

THE WITNESS: Yes, sir. 

ADMINISTRATIVE LAW JUDGE KOUTRAS: That hasn't been 

done. It's their judgment it's already on the books, 

75.329-1? 

THE WITNESS: Yes, sir. 

1841 
ADMINISTRATIVE LAW JUDGE KOUTRAS: You understand that? 

THE WITNESS: Yes, sir. 

ADMINISTRATIVE LAW JUDGE KOUTRAS: You disagree? 

THE WITNESS: I only disagree it cannot apply and 

cannot be intended to apply when written in 1970. 

After careful consideration of the arguments advanced by 

Zeigler, I conclude and find that the legislative history of the 

1969 Act, as cited and discussed by Zeigler in its brief, and the 

credible testimony of Mr. Mitchell, supports Zeigler's conclusion 

that Congress intended that section 75.329 apply only to abandoned mine areas already in existence when the 1969 Coal __ Act 

became effective. I find persuasive Zeigler's arguments that 

Congress's use of the past tense in the legislative history of 

section 75.329 demonstrates an intent to apply those requirements 

only to mine areas abandoned prior to December 30, 1970, and to 

require only those areas to be ventilated. I agree with 

Zeigler's assertion that if Congress had intended future application of section 75.329, it would have incorporated language 

mandating future compliance as it did in numerous other mandatory 

statutory provisions found in Part 75 (g.g. "in any coal mine 

opened after March 30, 1970, 11 30 C.F.R. § 75.226; "in the case of 

mines opened on or after March 30, 1970 or in the case of working 

sections opened on or after such date in mines open prior to such 

date," 30 C.F.R. § 75.330; "on or after March 30, 1971," 

30 C.F.R. § 75.500; and "on or after March 30, 1974, 11 30 C.F.R. 

§ 75.501). 

I agree with Zeigler's assertion that section 75.329-1 was 

an "add on" to section 75.329, which addresses bleeder systems, 

and was intended to allow a mine operator to comply by building a 

bleeder system around an existing abandoned area. My interpretation of this section is that if an operator could not comply with 

section 75.329, by erecting a bleeder system }2y December 30, 

1970, it had to seal the abandoned area or request approval from 

MSHA if it wished to continue ventilating the area by a ventilation method other than a bleeder system. Subsection (e) of 

section 75.329-1, required an operator to include a description 

of the alternative ventilation system proposed for the abandoned 

area. However, pursuant to subsection (b) of section 75.329-1, 

the request had to be submitted "in time to allow consideration 

of the request, to obtain approval, and to permit the operator to 

install the ventilation system, or to install seals in the event 

the request to ventilate is denied, on or before December 30, 

1970." I construe these date references to be expiration dates, 

rather than effective dates, and I conclude that an operator 

would have been required to seal the abandoned area if its 

request to continue to ventilate the area were not approved, or 

the ventilation was not in place, on December 30, 1970. Sealing 

1842 
would be accomplished pursuant to the requirements found in 

section 75.330. 

MSHA's belief that acceptance of Zeigler's interpretation of 

sections 75.329 75.329-1, would result in serious safety consequences and would affect the application of other mandatory 

safety standards is not well taken. It seems to me that MSHA has 

other means available to require ventilation of an abandoned mine 

area to insure against buildup of unsafe levels of methane and 

other gases in such an area. The most obvious method is the 

ventilation plan approval process found in section 75.316. 

MSHA's suggestion that acceptance of Zeigler's argument with 

respect to the application of section 75.329-l(a), would lead to 

the conclusion that section 75.316 expired on June 28, 1970, is 

rejected. As correctly pointed out by Mr. Mitchell, the last 

sentence of this standard requires a mine operator and MSHA to 

review such plans at least every 6 months, and that Congress 

intended that such plans be submitted every 6 months following 

June 28, 1970. Mr. Eslinger confirmed that the phrase "or equivalent means" language found in section 75.329, for a ventilation 

system other than bleeder entries or bleeder systems contemplates 

a ventilation plan approved pursuant to section 75.316. 

Mr. Mitchell agreed, and confirmed that the phrase "or equivalent 

means" encompasses a ventilation system other than bleeders and 

that such a ventilation system must have MSHA's approval (Tr. 

3 35) . 

Zeigler correctly points out that section 75.316, when read 

together with sections 75.316-1 and 75.315-2, clearly establishes 

that the ventilation plan provisions found in section 75.316, 

were intended by MSHA to currently apply to all underground coal 

mines. Under all of these circumstances, I conclude and find 

that the ventilation plan requirements found in section 75.316, 

are of current application and that compliance for insuring 

adequate ventilation of an abandoned mine area can be achieved 

through that procedure. However, for some unexplained reason, 

Zeigler's ventilation plan, which was last approved by MSHA on 

December 28, 1988 (Exhibit C-1), some 5 months before the issuance of the citation, contains no provisions for ventilating or 

sealing Zeigler's abandoned mine areas. 

In addition to the use of section 75.316, I believe that 

mandatory safety standard sections 75.303, 75.305, 75.311, 

75.312, 75.314, and 75.330, are viable and appropriate standards 

for dealing with any perceived or potential methane and gas 

hazards associated with abandoned mine areas, and may be applied 

if the circumstances warrant it. Zeigler's witnesses, 

Mr. Mitchell, and safety and health director David Stritzel, a 

former MSHA supervisory mining engineer, agreed that this was the 

case. Mr. Mitchell testified credibly that section 75.330 was 

intended to apply to sealing of abandoned areas after 

December 30, 1970, and that absent section 75.329, MSHA can still 

1843 
require the sealing or ventilation of abandoned mine areas by 

exercising its authority under sections 75.316 and 75.330 to 

require ventilation or sealing of abandoned mine areas where 

appropriate. Further, promulgation of the revised regulations 

should provide MSHA with a direct and unambiguous means of insuring ventilation of abandoned mine areas. 

Even if I were to conclude that sections 75.329 and 

75.329-l(a), are viable and currently applicable standards, I 

would further find that in the absence of sealing, a mine operator would be required to ventilate an abandoned area by bleeder 

entries or bleeder systems. If bleeders cannot be used, an 

operator would have to adopt an MSHA approved ventilation plan 

pursuant to the requirements found in section 75.316, in order to 

insure that the "equivalent means" of ventilation referred to in 

section 75.329, is as effective as bleeders. In the absence of 

such a plan, the operator would have to seal the abandoned areas 

pursuant to section 75.330. 

since the evidence in this case establishes that the cited 

abandoned area in question was developed in December, 1987, I 

conclude and find that the cited mandatory standard section 

75.329-l(a), does not apply to that area and that Zeigler was not 

required to ventilate the area pursuant to that standard. Under 

the circumstances, I further conclude and find that MSHA has not 

established a violation and the contested citation IS VACATED. 

Even if I were to conclude that section 75.329-l(a), applied 

to the cited abandoned area, I would still vacate the citation 

based on a preponderance of the evidence which in my view estab1 ishes that the area was in fact being ventilated. My reasons 

for such a finding follow below. (In view of my findings and 

conclusions vacating the citation, I find it unnecessary to 

address the abatement issue raised by Zeigler). 

The inspector charged Zeigler with a violation of section 

75.329-l(a), for failing to ventilate the cited abandoned area, 

and the burden is on MSHA to establish that fact. However, the 

citation, on its fac~, states that the inspector could not determine whether the area was being adequately and completed ventilation because of the existence of massive roof falls. The falls 

prevented access by the inspector to the "head end of the section," and precluded any determination on his part as to whether 

or not the last open crosscuts of the rooms and entries were 

being ventilated so as to continuously dilute, render harmless, 

and carry away methane and other explosive gases within the 

section. The inspector believed that the only way to determine 

whether the abandoned area was being ventilated and where the air 

was being coursed is to physically walk and inspect the area. 

According to the inspector's interpretation of section 

75.329-l(a), if the deepest point of penetration on an abandoned 

1844 
section cannot be readily traveled or inspected to determine 

whether the entire section is being ventilated properly, a violation of section 75.329-l(a), is established. In this case, the 

inspector made a determination that since no one could travel to 

the back of the abandoned section to determine whether the section was being ventilated, section 75.329-l(a) required that it 

be sealed. Although the inspector did not cite Zeigler with a 

violation for failing to seal the section, he believed that each 

place on the section which could not be travelled had to be 

sealed, and that if the direction of air travel through the 

section could not be determined, because of the inability to 

travel to these places, Zeigler would be out of compliance with 

the cited standard. He confirmed that Zeigler's approved ventilation plan contains no requirement that the deepest point of 

penetration be walked and inspected, and he conceded that the 

plan does not cover or require the ventilation of abandoned mine 

areas. 

I find nothing in any of MSHA's mandatory ventilation standards which require a mine operator to walk to the deepest point 

of penetration to determine whether an abandoned mine area is 

adequately ventilated. Although this may be a desirable method 

for determining whether an abandoned area is adequately ventilated, I cannot conclude that it is the only method. Further, 

although such a requirement is found in MSHA's proposed ventilation regulations, they have yet to be promulgated and do not 

apply in this case. 

The only evidence produced by MSHA in support of its conclusion that the abandoned area was not adequately ventilated so 

as to render harmless and carry away methane and other gases out 

of the cited abandoned panel is the smoke tube tests performed by 

the inspector at crosscut No. 13 and other outby locations. One 

smoke tube activated 4 or 5 feet outby the fall indicated that 

the air "went up and hung." A second smoke tube indicated air 

movement over the fall, but "slowly," and other smoke tubes 

reflected slow air movement over another fall, and air movement 

toward the return at another location. The inspector confirmed 

that even if his smoke tube tests had established that the smoke 

travelled in an inby direction directly over the fall area, the 

use of the smoke tubes would have made no difference, and he 

would have issued the citation anyway because he could not travel 

beyond the fall area at crosscut No. 13. He believed that section 75.329-l(a), required physical travel to the back of the 

abandoned panel to determine the adequacy of the ventilation. 

In contrast to the evidence presented by the inspector, the 

credible, probative, and unrebutted testimony of Zeigler's ventilation expert Mitchell, including his ventilation survey and 

analyses conducted under accepted scientific principles and 

methodology which are not rebutted by MSHA, supports a reasonable 

conclusion that the cited abandoned panel was ventilated so as to 

1845 
carry away and render harmless methane and other gases which may 

have existed on the panel, and that the air was being coursed 

through the panel and out of the return. 

The survey and analyses conducted by Mr. Mitchell with 

respect to the area was accomplished under conditions substantially similar to those which existed at the time the citation 

was issued. MSHA's ventilation specialist Eslinger agreed that 

if MSHA were to conduct a ventilation survey similar to the one 

conducted by Mr. Mitchell, it would follow the same basic methodology used by Mr. Mitchell. Although Mr. Eslinger expressed some 

concern about the pressure differential results of Mr. Mitchell's 

survey and the integrity of the stoppings, I cannot conclude that 

these "concerns" rebut Mr. Mitchell's findings. Although 

Mr. Eslinger testified that he has observed crushed stoppings in 

the Murdock Mine, his observations were made "years and years 

ago, in the early seventies" when a variety of stopping-materials 

were used in the mine (Tr. 377). With regard to Mr. Mitchell's 

pressure differential study, Mr. Eslinger agreed that the method 

used by Mr. Mitchell, which included altimeter readings, pressure 

differences, flow of air, and methane concentrations, would be 

similar to any such study conducted by MSHA. Inspector Stritzel 

agreed that if a pressure differential were being maintained on 

the panel, it would indicate that the air was moving from high 

pressure to low pressure. 

Mr. Mitchell concluded that the pressure differential on the 

panel was sufficient to establish air movement across the falls 

inby crosscut No. 13, a definite flow of air over the fall at 

crosscut No. 23, and a flow of air through the falls into the 

return side of the panel. He also concluded that the bottle 

samples taken by Mr. Roper established the probability of air 

sweeping behind crosscut No. 23 through the panel returns and 

that there was an established air intake and return despite the 

fall. Mr. Mitchell's testimony that the industry and MSHA 

practice for determining the adequacy or inadequacy of ventilation is by pressure differential studies stands unrebutted. His 

credible and unrebutted testimony regarding decreased concentrations of methane and carbon dioxide as the air moved through the 

panel from the intake to the return also supports his conclusion 

that the panel was being adequately ventilated. 

In view of the foregoing, I would conclude that the preponderance of the evidence adduced by Zeigler supports its conclusion 

that the abandoned area was being ventilated and rebuts MSHA's 

conclusion to the contrary. In short, I would find that MSHA has 

failed to establish a violation and I would vacate the citation. 

1846 
ORDER 

In view of the foregoing findings and conclusions, Zeigler's 

contest IS GRANTED, and the contested citation IS VACATED. 

Judge 

Distribution: 

Timothy M. Biddle, Esq., Susan E. Chetlin, Esq., Crowell & 

Moring, 1001 Pennsylvania Avenue, N.W., Washington, DC 20004-2505 

(Certified Mail) 

Brent L. Motchan, Esq., Zeigler Coal Company, 50 Jerome Lane, 

Fairview Heights, IL 62208 (Certified Mail) 

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

Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203 

(Certified Mail) 

/fb 

1847 
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. 

OLD ENERGY INCORPORATED, 

Respondent 

SEP 211990 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. SE 89-141 

A.C. No. 40-02017-03531 

Old Energy No. 1 

DEFAULT DECISION 

Appearances: Mary Sue Taylor, Esq., U.S. Department of Labor, 

Office of the Solicitor, Nashville, Tennessee 

for Petitioner; 

No appearance on behalf of Respondent. 

Before: Judge Melick 

At hearings scheduled to commence on August 15, 1990 at 

9:00 a.m., in Clinton, Tennessee no representative of Old 

Energy Incorporated (Old Energy) appeared. By telephone 

conference call on August 13, 1990, the operator's 

representative, James Lowe, stated that because of personal 

real estate business he would not appear at the scheduled 

hearing. Mr. Lowe was then advised that his purported excuse 

for non-appearance was not acceptable and that if no one 

authorized to represent the operator appeared at the hearing 

a default decision would be issued. 

While a custodian of company records, Ms. Gail Ray, 

appeared and produced a company "Balance Sheet" as of 

April 30, 1990, and an "Affidavit" of James Lowe relating to 

an order not at issue in these proceedings, she stated that 

she was not representing Old Energy for purposes of this 

litigation. The unaudited balance sheet is in any event 

inadequate for purposes of establishing the effect of the 

penalty on the operator's ability to remain in business -- a 

criterion that may be considered in determining the amount of 

penalty to be assessed under Section llO(i) of the Federal 

Mine Safety and Health Act of 1977. In any event Ms. Ray 

stated that Old Energy is no longer in business and does not 

intend to resume business. 

1848 
ORDER 

Old Energy Incorporated is ~n default and acco dingly 

the civil penalties of $2,600.0· propo ed by the Se retary in 

this case must be paid with 30/ ays f the date _of his 

decision. / · 

---;--:-

ary Melic ,'l\./L 

Administr ive Law 

Distribution: J 

Mary Sue Taylor, Esq., Office of th Solicitor, 

Department of Labor, 2002 Richard J ~es Road, Su 

Nasvhille, TN 37215 (Certified Mail~ 

Mr. James Lowe, Superintendent, Old Energy Inc., Route #1, 

Box 84-B, Kingston, TN 37763 (Certified Mail) 

nb 

1849 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

RICKY HAYS, 

v. 

LEE CO, INC. , 

Appearances: 

Before: 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 281990 

Complainant 

Respondent 

DISCRIMINATION PROCEEDING 

Docket No. KENT 90-59-D 

MSHA Case No. BARB CD 89-32 

No. 62 Mine 

DECISION 

Tony Oppegard, Esq., Stephen A. Sanders, Esq., 

Appalachian Research & Defense Fund of Kentucky, 

Inc., Hazard, Kentucky, for the Complainant; 

Timothy Joe Walker, Esq., Reece, Lang & Breeding, 

London, Kentucky, for the Respondent. 

Judge Koutras 

Statement of the Case 

This proceeding concerns a discrimination complaint filed by 

the complainant, Ricky Hays, against the respondent Leeco Inc., 

pursuant to section 105(c) of the Federal Mine Safety and Health 

Act of 1977, 30 u.s.c. § 815(c). The complainant filed his 

initial complaint with the Mine Safety and Health Administration 

(MSHA) , and after completion of an investigation of the complaint, MSHA advised the complainant by letter dated November 7, 

1989, that the information received during the investigation did 

not establish any violation of section 105(c) of the Act. 

Thereafter, on December 18, 1989, the complainant filed a complaint with the Commission. 

The complainant, who was employed by the respondent as an 

electrician, alleges that he was discharged by the respondent's 

electrical maintenance foreman Clayton Hacker, on September 7, 

1989, because of his failure to service (grease and oil) a mobile 

bridge carrier speed reducer grease fitting. The bridge carrier 

in question was a component part of the continuous haulage system 

used on the section. The complainant further alleges that the 

respondent required all of its electricians to service the 

1850 
haulage system while it was in operation, that this is in violation of Federal law, and that his failure to service the part in 

question was based on his reasonable good faith belief that it 

was unsafe to service the system while it was in operation. 

The respondent denies that the respondent's discharge was 

discriminatory, and it takes the position that the complainant 

was discharged not only for failing to service the component part 

in question, but also because of his failure to generally service 

the equipment as he was expected to do during his shift. 

A hearing was held in Pikeville, Kentucky, and the parties 

filed posthearing briefs. I have considered their respective 

arguments in the course of my adjudication of this matter. 

Issues 

1. Whether the complainant's belief that the servicing of 

the continuous haulage system in question while it was in operation would be unsafe and hazardous, and would expose him to 

serious or fatal injuries, was reasonable and made in good faith. 

2. Whether the complainant's failure to service the system 

in question because of his reasonable and good faith belief that 

to do so while it was in operation would be unsafe and hazardous 

and would place him at risk of serious injuries or death constituted protected activity. 

3. Whether the complainant communicated his reasons for 

failing to service the system to mine management, and whether the 

respondent's discharge of the complainant in spite of his 

communicated safety concerns was justified or otherwise 

nondiscriminatory. 

4. Additional issues raised by the parties are identified 

and disposed of in_ the course of this decision. 

Applicable Statutory and Regulatory Ptovisions 

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

30 U.S.C. § 301 et seq. 

2. Sections 105(c) (1), (2) and (3) of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 815(c) (1), (2) and 

( 3) • 

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

stipulations 

The parties stipulated to the following (Tr. 8-10): 

1851 
1. The mine where Mr. Hays was employed is a 

nonunion mine, and it is subject to the Act. 

2. At the time of the discharge, the first and 

second shifts were production shifts, and the third 

shift was a non-production maintenance shift. 

3. At the time of the discharge, Mr. Hays' hourly 

rate of regular pay was $15.65, and his hourly overtime 

pay rate was $23.47. 

4. At the time of the discharge, the continuous 

haulage system in question was comprised of four 

bridges and three mobile bridge carriers which are 

referred to as "carriers." 

5. Complainant's Exhibit C-8, is a Long-Airdox 

brochure regarding the continuous haulage system, and 

the circled portion in the listed specifications is the 

particular Model No. MBC-30C involved in this case. 

6. The complainant's personal notebook or work 

log, received as evidence in this case, is an authentic 

document. 

7. Respondent's "downtime records," provided to 

the complainant's counsel during discovery, are 

authentic business records. 

8. Photographic Exhibits C-2 through C-7, taken 

during the complainant's discovery inspection of the 

mine are authentic and are what they purport to be. 

9. The presiding judge has jurisdiction to hear 

and decide this matter. 

Complainant's Testimony and Evidence 

Ricky Hays testified that he is currently employed by the 

Golden Oak Mining Company in Knott County, Kentucky, as an 

electrician, and that he has been so employed since October 7, 

1989. He previously worked for the respondent as an electrician 

for 2 years until his discharge on September 7, 1989. At the 

time of his discharge he was working the day shift at the No. 62 

Mine, and was responsible for servicing the four bridges and 

three carriers on the continuous haulage system, including the 

digging arms of the mining machine, and the servicing entailed 

the greasing and oiling of the equipment. He also serviced two 

scoops and two roof bolters. He confirmed that the continuous 

haulage system was approximately 250 feet long, and as the miner 

1852 
advanced, the bridge and bridge carriers also advanced by 

tramming on tracks (Tr. 15-23). 

Mr. Hays stated that he had to grease the system "from the 

miner back to the bridge or belt line," and that there were 

approximately 100 grease fittings on the system. Each bridge and 

carrier had six grease fittings which he greased with a cartridge 

fed grease gun which he had to put on the ground so that he could 

have leverage to hold the hose from the ground and place it over 

the fitting to pump the grease. The equipment was oiled by means 

of a suction-type gun approximately 18 to 20 inches long, and the 

oil was sucked into the gun from an oil bucket by vacuum. He had 

to oil two speed reducers on the bridge and carrier conveyor, and 

an inner and outer carrier drop box which used gear oil (Tr. 25). 

Mr. Hays stated that on the day of his discharge,-he was 

working on the day shift (7:00 a.m. to 3:30 p.m.), on the No. 2 

section. A "pulling star," which is an axle gear on a conveyor 

shaft that pulls the conveyor chain used for coal loading, broke 

at 12:30 p.m., and he called outside for a replacement part and 

to report the downtime. Outside foreman Clyde Collins came to 

the area with the parts, and after looking around, he found a 

grease or dust cap that attaches to the end of the shaft on the 

offside of the speed reducer on the No. 1 bridge, and it had a 

broken grease fitting on it. Mr. Collins asked Mr. Hays how long 

the fitting had been broken off, and Mr. Hays told him that he 

was not sure, but that it could not have been long because he had 

serviced the equipment that morning and did not notice that the 

fitting was broken. Mr. Hays told Mr. Collins that he had last 

serviced the dust cap itself 5 days earlier, and when Mr. Collins 

asked him why he had not recently serviced it, Mr. Hays told him 

that it was too dangerous to do so while coal was being run 

because it was offset on the shaft, and that there was no way to 

connect a grease hose to the fitting while it turned, and "that 

it would get you against the rib or something" (Tr. 28). 

Mr. Hays expl_ained the differences between a grease fitting 

which is "offset" and one which is "centered." He confirmed that 

there are eight offset fittings on the haulage system, two on 

each bridge, and he indicated that these fittings turn with the 

shaft when the machine is operating and that it is impossible to 

attach a grease hose to the fitting when it is turning with the 

equipment running. However, he can attach a grease hose to a 

fitting which is centered, even though the machine may be 

running, but he must watch and stay out of the way of the machine 

(Tr. 31-36; Exhibits C-2 through C-5, C-7). He believed that 

servicing a centered fitting while the equipment was running is 

not safe because he could be run over, pinned against the rib, or 

"various things could happen," if he were unaware that the bridge 

carrier operator was moving the equipment (Tr. 40). 

1853 
Mr. Hays. believed that the width of the entries at the time 

of his discharge was 18 feet, and that the distance between the 

equipment and the ribs would vary depending on the width of the 

cuts. He stated that the equipment "rakes" or rubs the ribs most 

of the time, except in a break. He stated that injuries ranging 

from a "mashed finger to being killed" may result by trying to 

grease the system while it is in operation, and that the severity 

of any injury would depend "on what situation you was in." He 

explained the dangers involved in attempting to service the 

fittings while the equip~ent is running, and he confirmed that 

none of the grease fittings-on the system in question had 

extended fittings (Tr. 40-44). 

Mr. Hays stated that he completed the repair of the pulling 

star at approximately 3:00 p.m. Mr. Collins did not ask him 

about any other fittings or whether he had serviced any other 

equipment. Mr. Collins told him to gather up his tools ·and that 

"we were going outside," and did not inform him at that time that 

he had been fired. Mr. Hays stated that the broken grease 

fitting on the pulling star, or the fact that it had not been 

serviced that day, or the past 5 days, had nothing to do with the 

breakdown of the equipment (Tr. 46). 

After reaching the surface of the mine, Mr. Hays was 

informed by the "light lady," Mabel, that there was a note for 

him to meet with his supervisor, maintenance foreman Clayton 

Hacker, in his office. Mr. Hays met with Mr. Hacker. The second 

shift electrician, Jerry Caudill, also known as "blockhead," was 

also summoned to the office and was present when he arrived. 

After Mr. Hacker arrived, he picked up the dust cap which had 

come off the bridge, and asked them when they last serviced it. 

Mr. Caudill stated that he had serviced it 2 days before, and 

Mr. Hays said that he had serviced it 5 days earlier than that. 

When asked for an explanation, Mr. Hays informed Mr. Hacker that 

he could not service it while the equipment was running because 

it was too dangerous and that there was no way to attach the 

grease hose while it was running, and Mr. Caudill "told him 

pretty much the same thing" (Tr. 48). Mr. Hays informed 

Mr. Hacker that "the only way you can do it is shut it down," and 

Mr. Hacker stated "we can't shut it down, ... we can't stop 

running coal just to grease that" (Tr. 48). 

Mr. Hays stated that he informed Mr. Hacker that he could 

stay between shifts to service the system, but that there was no 

way he could service the offset fittings while the equipment was 

running, and he explained his reasons to Mr. Hacker. Mr. Hacker 

informed him that "there wasn't no excuse" and that he (Hacker) 

had serviced the system while it was running and said "he knowed 

we could" (Tr. 49). Mr. Hays confirmed that on a previous occasion, Mr. Hacker had informed him that servicing the system while 

it was running would allow the grease to reach the bearing "real 

1854 
good," and that if it were serviced while it was shutdown, the 

grease will come out {Tr. 50). 

Mr. Hays stated that he and Mr. Caudill informed Mr. Hacker 

that they had been "riding the machine to service what we could 

on it, because there wasn't no room on the sides" between the 

equipment and the rib when it was cutting in a belt entry, and 

that he had to position himself on top of the machine to ride it. 

Mr. Hacker then discussed his maintenance program and informed 

them "we had to work together" and that "if one of us didn't do 

our part, then he couldn't have another one corning in and filling 

in for the one that couldn't do their part," and he then informed 

both of them that they were fired {Tr. 52). 

Mr. Hays stated that Mr. Hacker mentioned no other grease 

fitting other than the grease cap he was referring to,.-and that 

this was the same cap which he (Hays) had discussed with 

Mr. Collins underground. Mr. Hacker mentioned no other broken 

grease fittings, said nothing about his (Hays) failing to service 

any other equipment on the section, and said nothing about notifying him if he believed he could not service that particular 

fitting (Tr. 53). 

Mr. Hays confirmed that he had previously discussed the 

servicing of the system with Mr. Hacker, and asked him if it was 

being serviced while it was running in the same way it was done 

at the No. 49 Mine where he (Hays) was assigned prior to his 

transfer to the No. 62 Mine, and that Mr. Hacker told him that it 

was. Mr. Hays confirmed that 2 or 3-days prior to his discharge, 

he asked Mr. Hacker if he could stay late to service the system. 

Mr. Hays stated that the maintenance system at the No. 49 and 

No. 62 Mines were the same, and he acknowledged that although he 

serviced the system at the No. 49 Mine while it was running, he 

complained to Mr. Hacker that he could not do it because it was 

dangerous. Mr. Hacker informed him "you do it" or "he would 

replace us" (Tr. 54-56). 

Mr. Hays stated that he regularly _greased and oiled the 

system while it was running on a daily basi-s--wh-i1e he was 

employed on the day shift at the No. 62 Min-e~ However, he only 

serviced the grease fittings which were centered, and not the 

ones which were offset, while the system was running (Tr. 57). 

Mr. Hays stated that he was able to service the grease fitting 

which was discussed with Mr. Hacker when he was fired 5 days 

earlier because the power and equipment was down and "I had a 

chance to get them" (Tr. 58). 

Mr. Hays explained how he serviced the system by "riding it" 

while it was in operation and trammed. He stated that because of 

the location of some of the grease fittings, he had to lay on top 

of the machine in order to reach them, and that he would have to 

position himself between the equipment and the coal rib to reach 

1855 
others. In order to reach the carrier bridge grease block which 

has five grease fittings, he would have to lay on the machine and 

reach down, and that there was a danger of "just gatting you 

against the top" {Tr. 60-65, exhibit C-6). 

Mr. Hays confirmed that he knew it was illegal and unsafe to 

service the system while it was in operation, but did it because 

"I was told to either do it or be replaced" {Tr. 66). He stated 

that the system had never been intentionally shutdown and locked 

out on any production shift so that he could service it, but he 

did not know whether this was ever done during the third or idle 

shift {Tr. 67) . 

Mr. Hays stated that if the system were deenergized and 

locked out so that he could service it, it would take him 45 to 

75 minutes to grease all of the fittings. It would take approximately 45 minutes to 1 hour to check the oil and oil the system, 

and to do both together, or to completely service the entire 

system, it would taka approximately 1 hour and 45 minutes to 

2 hours and 15 minutes (Tr. 71). If an equipment breakdown 

occurred during the shift, he would be responsible for making the 

repairs rather than servicing the system while it was down (Tr. 

72). He confirmed that during the last week of his employment, 

he was responsible for servicing all of the equipment on the 

section, except the scoops. During the changing of the continuous miner bits in the last week of his employment, he would 

grease the miner digging arms, and would sometimes have 2 or 

3 minutes to check the bits and lugs or call out to report anything that required repairing {Tr. 74). 

Mr. Hays identified a notebook which he maintained on a 

daily basis during his working shift (exhibit C-1; Tr. 76). He 

confirmed that his section foreman was aware of the fact that he 

was servicing the system while it was in operation because he 

observed him doing it all of the time. The foreman never told 

him not to service the system while it was running, never took 

any disciplinary action against him for doing so, and never 

deenergized the system before he serviced it {Tr. 78). 

Mr. Hacker was aware that the system was being serviced while it 

was running because "he is the one that instructed us to do so" 

(Tr. 78). 

Mr. Hays stated that prior to his discharge, he had never 

been disciplined or "written up" for any improper servicing of 

equipment, and was never told that he was not servicing the 

equipment properly at the No. 62 Mine. He confirmed that he was 

out of work for 1 month after his discharge, and that his next 

job after his discharge was his present employment (Tr. 78). 

On cross-examination, Mr. Hays testified as to certain 

entries made in his notebook. He confirmed that the equipment 

was supposed to be serviced every day, and that if he could not 

1856 
service it, he was not required to tell anyone, and he "just let 

it go" if he could not service it (Tr. 79-83). He confirmed that 

he had previously serviced the offset speed reducer grease 

fitting while working at the No. 49 Mine, and he stated that 

"most of them stayed tore up. They didn't serve no purpose. No 

one really worried about it" (Tr. 86). However, he could not 

service it while it was running, and only did so "when it was 

off. When you got a chance." He stated that the haulage system 

in question is approximately 2-1/2 feet high, and that the grease 

gun hose that he uses is 18 inches to 2 feet long (Tr. 88). 

Mr. Hays stated that depending on the cut and the individual 

operating the equipment, the system would advance or tram approximately 8 inches or a foot every 2 or 3 seconds (Tr. 89). He 

described how the system advanced while coal was being mined, and 

he explained how he would attach his grease gun hose to the 

fittings (Tr. 89-98). 

Mr. Hays stated that the first time he complained to 

Mr. Hacker about his belief that it was unsafe to service the 

system while it was running was when he worked on the second 

shift at the No. 49 Mine. Mr. Hays believed that there were no 

bridge parts which could be safely greased while the system is 

running (Tr. 101). He confirmed that there were times during his 

shift when he observed the changing of the miner bits once, but 

he did not recall more than one change except for bit changes on 

the third or idle shift when overcasts were being cut. He would 

not record such bits changes in his notebook unless he helped 

change them, and he could recall no bits being changed more than 

once on any of his day shifts (Tr. 104-107). 

·Mr. Hays confirmed that the system was shutdown when belt 

setups were made, and that there were no belt setups made on his 

shift during his last week on the job, or during the 2 or 3 weeks 

when he worked at the No. 62 Mine. He stated that the system 

advanced 270 to 300 feet before a belt setup was made (Tr. 107). 

Mr. Hays acknowledged that he was given a 3-day suspension 

by Mr. Hacker on J-u1y 27, 1989 for "unsatisfactory performance" 

for not servicing the brakes on a shuttle car. He explained that 

he had repaired the brakes, but when they went out 6 hours later, 

Mr. Hacker told him he had not "fixed them good enough where they 

lasted, you know, forever" and suspended him. He also acknowledged that he received prior written reprimands from other supervisors, for not installing a spillboard on a face drive on 

January 13, 1989, and for not hooking up a battery charger on 

December 7, 1988 (Tr. 111-112). 

Mr. Hays confirmed that Mr. Hacker instructed him to service 

the system and that he pointed out the importance of servicing 

all of the speed reducers while the bearings were turning so that 

they could be serviced sufficiently. He agreed with Mr. Hacker 

1857 
that it was best to grease the bearings while they were turning 

in order to draw the grease freely from the grease gun (Tr. 113). 

Mr. Hays acknowledged that even though he was an electrician, he 

was required to repair brakes and spillboards, and to do "whatever they told you to do" (Tr. 114). 

Mr. Hays confirmed that he knows the respondent's mine 

safety director and some of his staff and has seen him at safety 

meetings. He also knew that there was a suggestion box at the 

mine for anonymous safety suggestions by miners, has taken 

advantage of it, but never in regard to grease fittings on a 

speed reducer because he "confronted" Mr. Hacker about that 

matter "face-to-face" at the No. 49 Mine (Tr. 116). 

In response to further questions, Mr. Hays confirmed that he 

did not sign any of the prior three "disciplinary slips" because 

he did not agree with them (Tr. 117-118). Counsel Oppegard 

agreed that two of the disciplinary actions were 3-day suspensions, and the other one was a warning (Tr. 119). Mr. Hays 

explained the system for deenergizing and locking out the equipment and the haulage system, and he stated that the amount of 

time required to deenergize the equipment would depend on its 

location at any given time and the location of the power center 

(Tr. 120-125). He also explained his notebook notations in 

reference to greasing the system bridge and bridge carriers (Tr. 

126-128) . 

Mr. Hays stated that Mr. Collins did not blame him for the 

broken star piece gear mechanism and did not indicate to him that 

it had broken because he did not service it properly. Mr. Hays 

stated that it broke because "they were running rock and it 

wouldn't carry rock good" (Tr. 131). He stated that on the day 

of his discharge Mr. Hacker mentioned his prior disciplinary 

actions, as well as those of Mr. Caudill "right before he fired 

us'' (Tr. 131) . He confirmed that he tried to get his job back 

after he was fired, spoke to the safety department, and tried to 

get an appointment with the company president, but that "they 

called me back and ~ore or less made fun of me'' (Tr~ 133). 

Mr. Hays stated that he never complained to the safety 

department about being required to service the equipment while it 

was being operated, but did complain to Mr. Hacker, his immediate 

boss. Mr. Hays acknowledged that he has observed federal and 

state inspectors at the mine, but never mentioned that he had to 

service the equipment while it was running, and he was certain 

that the respondent had never been cited for servicing the equipment while it was running, and if it had ''it would have warned us 

about it, you know, not to do it, while they was there'' (Tr. 

135). He confirmed that he was not aware of any miner safety 

representative or safety committee at the mine, and that if he 

had any safety problem he would go to his boss "through the chain 

1858 

-;::·-·--
of command." He acknowledged that he could have gone to the 

safety department, but never did (Tr. 137). 

Jerry M. Caudill testified that he is employed by the Blue 

Diamond Coal Company, and previously worked for the respondent. 

He confirmed that he was fired on September 7, 1989, with 

Mr. Hays, but that his discharge was changed to a 3-day suspension and he was assigned to the No. 29 Mine where he worked for a 

week and a half before going to work at his present job. He 

confirmed that he worked as a second shift electrician for the 

respondent, and that he is a certified mine foreman. His electrician duties entailed the repair of all of the equipment, 

including the continuous haulage system, bolters, scoops, and 

miner digging arms (Tr. 141). 

Mr. Caudill explained what transpired on the day that he and 

Mr. Hays were fired, including their discussions with Mr. Hacker. 

He confirmed that Mr. Hays told Mr. Hacker that he could not 

grease the grease cup fitting which Mr. Hacker had referred to 

while the system was running because it was offset on the shaft. 

Mr. Caudill stated that he told Mr. Hacker the same thing, and 

that it was too dangerous to grease it while it was running. 

Mr. Hacker replied that "he wasn't going to hear no excuses. It 

had to be done during our shift" (Tr. 143). Mr. Hays asked 

Mr. Hacker if the system could be shutdown for service, and 

Mr. Hacker "said we had to find time to do it. But it had to be 

done during our shift, but they would not shut it down to grease 

it" (Tr. 144). 

Mr. Caudill stated that when he worked as a second shift 

electrician he was expected to service and oil the haulage system 

while it was running and "that this is the only way to do it" 

(Tr. 145-146). If the system were down it would take someone 

2-1/2 to 3 hours to do "a real good job" greasing and oiling the 

entire system, and 1 hour or 1-1/2 hours to grease only the 

fittings. It was not possible to grease the system every shift 

while it was running (Tr. 147). 

Mr. Caudill identified photographic exhibit C-6, as a bridge 

carrier, and he explained that he could grease part of the 

carrier by walking next to it with a grease gun, but would grease 

the top fittings while seated on top of the carrier start box 

while the machine was moving and while coal was being cut. If he 

were servicing the fittings from the side, the distance between 

the machine and the rib would sometimes be a foot and a half, 

"hardly no more than that," and this presented a danger in that 

"if they move nary a bit, they'll drag you into the rib. You 

can't get away from it" (Tr. 149). He has never been injured 

trying to service the system, but stated that "I've been lucky, 

I've went under through it before to get away from it" and that 

he has had close calls more than once (Tr. 149). 

1859 
Mr. Caudill stated that he never saw the system deenergized 

specificaliy for the purpose of greasing it, and he confirmed 

that Mr. Hacker knew that he was servicing it while it was moving 

because he observed him doing it. Mr. Hacker never warned him 

not to do it, never disciplined him for doing it, and never told 

him to deenergize the system before servicing it. His section 

foremen were also aware of the fact that he was servicing the 

equipment while it was running because they too observed him 

doing it (Tr. 151). Mr. Caudill stated that he complained to his 

section foreman and outside foreman about servicing the system 

while it was running, and that the section foreman would say 

nothing about it, and the outside foreman did not want to talk to 

Mr. Hacker about the matter. Mr. Caudill stated that he complained to Mr. Hacker that it was dangerous to service the system 

while it was operating on at least four occasions, and that 

Mr. Hacker told him he "wasn't going to hear no excuses," and 

that "we would do it during our production shift if w~ stayed 

there" (Tr. 153). Mr. Caudill also asked to stay over on overtime to service the system on the third shift, but Mr. Hacker 

"said no" (Tr. 153). 

Mr. Caudill did not believe it was safe to service any of 

the fittings on the system when it was running, regardless of the 

fact that they were offset or on the center of the shaft, because 

"they go to the face and come back so rapid that you can't get 

away from the equipment." The system is so long that if he is on 

the corner and the equipment is on a break, "the whole thing 

comes over all at once and you ain't got nowhere to run unless 

you go over top of it or through it" (Tr. 154). He believed that 

he could be injured while trying to grease the system "on the 

run," and that "it could be drug plumb over top of you or get 

caught in a conveyor chain or slide pan. You could get caught in 

them" and be killed "real easy" (Tr. 154). 

Mr. Caudill stated that on the day of the discharge 

Mr. Hacker said nothing to him or to Mr. Hays about any other 

grease fittings other than the one that he had in his hand. 

Mr. Hacker said nothing about their failure to service any other 

equipment on the section other than that one grease fitting, and 

he did not mention their failure to service the bolters or miner 

digging arms. Mr. Hacker did not tell them that they should have 

contacted or notified him if they could not service the fitting 

in question (Tr. 156). The only reason he could think of for his 

discharge was the grease cap that Mr. Hacker was holding (Tr. 

157). His discharge was changed to a suspension after he spoke 

with another official at the company's London office (Tr. 157). 

That individual made Mr. Hacker put him back to work, but 

Mr. Hacker said some bad things about him and humiliated him and 

he left later because "I didn't feel right working for the company" and quit. He did not know why Mr. Hays did not get his job 

back (Tr. 159-160). Mr. Caudill confirmed that he had received 

prior disciplinary warnings or suspensions before his discharge 

1860 
at the No. 3 Mine 3-years ago, but they were not related to his 

work {Tr. 160). 

on cross-examination, Mr. Caudill explained that his prior 

disciplinary actions were not related to his work and that he had 

a "habit of bad language" and had personal differences with a 

supervisor. He admitted that when he and Mr. Hays were called to 

Mr. Hacker's office he told Mr. Hacker "that he knew that Hays 

was going to get him fired" {Tr. 162). He explained that he made 

that statement because approximately a month earlier he would 

find three bridge speed reducers "bone dry" on his shift after he 

had serviced them and he believed that he was going to be fired 

by Mr. Hacker because of this {Tr. 162-163). 

In response to further questions, Mr. Caudill stated that he 

informed a second shift mechanic foreman about the dry reducers 

and took him into the mine and showed him how he was grea-~:Hng 

them and that the foreman stated that "he didn't see how we could 

do it, oil that stuff, and keep it up'' (Tr. 168) . Mr. Caudill 

also confirmed that he wrote up and reported the conditions of 

the reducers. He stated that he and Mr. Hays were both fired 

"over the grease cap" and that Mr. Hacker blamed them for it, and 

stated "I can't fire one of you without letting you both go 

because both of you were supposed to be doing that job," and that 

"he wouldn't listen to nothing," even after he told him that he 

needed his job. Mr. Hacker told him "it ain't my damn problem" 

(Tr. 170). 

Mr. Caudill stated that he did not know whether the respondent had ever been cited for servicing the system while it was 

running, and that he contacted a federal inspector after his 

discharge, and the inspector told him he couldn't be fired. He 

also complained to a federal inspector who inspected the mine 

before his discharge but nothing came of it. Mr. Caudill confirmed that he never complained to the safety department (Tr. 

171) . 

Mr. Caudill explained that his complaint to Federal Inspector Franklin Nahew was about greasing the system while it was 

running, and that he complained during the "middle of 1988." His 

complaint concerned the Leeco No. 22 Mine, where the same system 

of servicing the equipment while it is operating is used. He 

stated that "they do it the same way at all their mines" (Tr. 

173). He confirmed that he knew some of the training instructors 

in the safety department, and that there was a suggestion box 

available for anonymous safety complaints and that he used it to 

complain about greasing the haulage system. He signed the complaint, but a foreman cut the lock off the box and took out his 

complaint. The foreman was disciplined for doing this and was 

nearly fired, and he (Caudill) "got in trouble over it" (Tr. 

170). He also confirmed that the dried up condition of the 

reducers which he thought he was going to be fired over, and 

1861 
which caused him to make the statement that Mr. Hays was going to 

get him fired, was caused by the equipment which had been 

reported by him two or three times during the week he was fired, 

and not by Mr. Hays (Tr. 180). 

William Craft testified as to his mining background and 

experience, and he confirmed that he formerly served as the MSHA 

District Manager in Madisonville, Kentucky. He taught classes at 

the federal mine academy, and served on a committee which 

recommended the promulgation of mandatory safety standards, and 

was familiar with the standards. He has been self employed as a 

mining consultant since 1981, when he retired from MSHA because 

of a back disability. He has testified in many proceedings 

before the Commission's judges and has been qualified as an 

expert on mine safety matters (Tr. 180-184). Mr. Craft was 

accepted as an expert witness, over the objection of the 

respondent (Tr. 185-186). 

Mr. Craft confirmed that he toured the No. 002 section of 

the No. 26 Mine on April 24, 1989, and inspected the continuous 

haulage system in question. He also confirmed that he has 

reviewed the depositions of Mr. Collins and Mr. Hacker, as well 

as others, and has heard the testimony of Mr. Hays and 

Mr. Caudill. He has also reviewed the manufacturer's manual 

concerning the haulage system (exhibit C-8), and he explained the 

respondent's mining method used on the section in question (Tr. 

186-192). 

Mr. Craft stated that the system is greased and oiled 

manually, and he explained that when a grease hose is attached to 

a speed reducer with a fitting which is centered, the hose will 

stay still while the shaft turns, and if it is attached to a 

fitting which is offset, "the whole thing goes around" (Tr. 198). 

He believed that servicing the system while it is in operation 

presented a "dangerous situation" (Tr. 200). In addition to his 

opinion that it was dangerous, Mr. Craft cited mandatory safety 

standard sections 75.509 and 75.1725(d), which he believed 

prohibited the lubrication, servicing, or greasing of the system 

while it is in operation (Tr. 201-205). 

Mr. Craft explained why he believed it was dangerous to 

grease an offset speed reducer fitting with the equipment energized, and he believed that the system could not legally be 

greased and oiled without deenergizing the power and locking out 

the system (Tr. 206-207). He did not believe that the grease 

fittings can be safely serviced without first locking out the 

system at the power center, and he stated that "You've heard them 

testify they were hanging on the sides of it and on the top of 

it, that, in itself, would be enough to tell you that it wasn't 

safe" (Tr. 208). 

1862 
On cross-examination, Mr. Craft stated that the words "work" 

and "equipment" found in section 75.509, cover greasing or lubrication on the haulage system in question, and that the system 

must be deenergized before this work is done (Tr. 208-209). He 

also believed that the use of a grease gun and the oiling of the 

system constituted "work" within the meaning of the standard (Tr. 

210-211) • If he were still employed by MSHA, he would either 

cite a violation, or issue instructions to cite a violation, for 

the lubrication of a bridge system without deenergizing it (Tr. 

212). He would cite a violation of section 75.509, and 

75.1725(c) or (d) (Tr. 213-215). Mr. Craft confirmed that when 

he visited the mine, he found no right angle crosscuts, but did 

find some crosscuts cut at 60 degree angles (Tr. 217). 

Terry Richardson, third-shift electrician and foreman, 

testified that he was working as a "floater" on the -~econd shift 

on the day Mr. Hays was discharged. He confirmed that he has 

worked with Mr. Hays on the third shift at the No. 62 Mine, and 

that he considered Mr. Hays to be a hard worker. Mr. Richardson 

was familiar with the haulage system, and stated that he was 

responsible for servicing it on the second shift. He confirmed 

that he has serviced the system while it was operating and not 

deenergized or locked out and that "in some ways" it was 

dangerous. He stated that "about the only thing you've got to 

watch--any piece of equipment that is moving, you've got to watch 

it. There is always a possibility that you could get mashed. 

You've got to be careful" (Tr. 223). He believed that it would 

be possible for an electrician to be injured or killed while 

attempting to service the system while it was in operation (Tr. 

224) . 

Mr. Richardson believed that it would take 2-1/2 hours to 

service the entire system, and he doubted that there was that 

much available "down time" during a production shift to completely service the system. He stated that when he serviced the 

system while it was operating he tried to position himself "in 

the safest place you could" so that he could not be "caught" (Tr. 

225). He would position himself on top of the equipment when it 

was in low coal, and that "most of the time you're beside of it" 

and that there is always a danger of getting mashed into the rib 

(Tr. 226). He confirmed that after Mr. Hays was discharged, his 

foreman Bobby Strunk commented to him (Richardson) that he 

believed Mr. Hays was a good worker (Tr. 226). 

On cross-examination, Mr. Richardson stated that he has 

worked at other mines and believed that the respondent's mine is 

"as safe as any mine that I've worked in" (Tr. 229). He confirmed that he has serviced shafts on the system while the conveyor was off and "while they were backing out of a cut." In 

those instances, he would be walking alongside the miner if the 

coal were high enough, but "most of the time you would probably 

be on your knees. You try to get it as they back up." He 

1863 
believed that he would be exposed to a danger while doing this at 

certain times when the equipment is running and the operator may 

not see him, but that he tries to let the operator know where he 

is "most of the time" (Tr. 230). He confirmed that he was never 

specifically told to walk alongside the equipment to service it, 

but that "you've got to do what you need to do to service it" 

(Tr. 2 3 O) • . 

Mr. Richardson confirmed that he has serviced the speed 

reducer grease fitting which is offset on the shaft, that it 

cannot be serviced when the conveyor is running, and that "you 

try to service it when you get a chance, when this equipment --

if it's stopped or if they're backing up" (Tr. 231). If the 

system conveyor chain is running, "there is no way you can grease 

it." He can keep up with the system while it is moving if he · 

were walking, but if he were crawling, he cannot. He can ~ervice 

some of the system fittings if it is not advancing, and "you have 

to get what you can. Try to get them all, if you can" (Tr. 232). 

He also stated that "it's pretty much left up to the repairman. 

You just got to get' it done" (Tr. 233). He makes an attempt to 

grease all fittings, and if he cannot, he tries to tell the 

oncoming shift repairman about the ones that he has not serviced 

(Tr. 235). 

Mr. Richardson stated that he has not discussed the servicing of the system while it was running with his foreman or with 

Mr. Hacker, and he could not recall discussing this with Mr. Hays 

(Tr. 236). Mr. Richardson believed that it would be illegal to 

service a piece of equipment while it was energized, and that 

"just your general mine law" would prohibit this (Tr. 240). He 

confirmed that this particular question has never been discussed 

by the foreman and the crew. 

Marty Lewis, roof bolter operator, testified that he worked 

with Mr. Hays, and that Mr. Hays was responsible for servicing, 

or greasing and oiling his machine every day. He had no complaints about Mr. Hays_' servicing his machine, and prior to his 

discharge had no problems or breakdowns because the machine had 

not been properly serviced by Mr. Hays. He confirmed that 

Mr. Hays serviced the bolter during the shift, and he has also 

observed him servicing the haulage system during the shift. The 

system was not deenergized when Mr. Hays was greasing it, but if 

electrical repair work were required, the system would be locked 

out. Mr. Lewis believed that Mr. Hays was a good worker, and he 

heard foreman Bobby Strunk state that Mr. Hays was a good worker 

but "wasn't a good enough electrician to be on the section" (Tr. 

241-24 7) . 

On cross-examination, Mr. Lewis stated that he could not 

recall helping Mr. Hays grease his machine, but he has helped 

other repairman with the greasing. He confirmed that he has 

never been required to work under dangerous conditions, and he 

1864 
believed that the respondent was "a lot safer than any coal 

company I've ever worked for" (Tr. 248). 

Ricky Eversole, roof bolter operator, confirmed that he has 

worked with Mr. Hays and considered him to be a good worker. He 

had no problems with Mr. Hays' servicing of his machine, and 

stated that Mr. Hays serviced it regularly (Tr. 249-252). 

On cross-examination, Mr. Eversole could not recall specifically helping Mr. Hays to grease his bolter, but that he would 

have done so if he asked (Tr. 252). He would also have helped 

other repairman if they had asked him to. 

Dewey Eldridge, miner operator, testified that Mr. Hays was 

responsible for greasing and oiling the gathering arms of his 

machine while he (Eldridge) was "setting bits." He had no complaints about the manner in which Mr. Hays serviced -his machine, 

and had no problems with any broken grease fittings that were not 

being replaced. He confirmed that Mr. Hays serviced the haulage 

system while it was in operation, and he never knew the system to 

be locked out while Mr. Hays was servicing it (Tr. 253-256). 

On cross-examination, Mr. Eldridge stated that there were 

shifts when he changed the miner bits more than once, but that 

the electrician did not grease them everytime he changed the 

bits, and only greased them once. After this was done, the 

electrician could do something else. He had no knowledge about 

any instructions to an electrician as to when he was to grease 

the haulage system, and he believed that the respondent's mines 

are "as safe as the other mines" he has worked in (Tr. 257). 

David Combs, mobile bridge carrier operator, explained his 

duties, and he confirmed that he has observed Mr. Hays greasing 

and oiling the system. He stated that he had no complaints or 

problems with Mr. Hays' servicing of the mobile bridge carrier, 

but he did not know whether Mr. Hays ever serviced it while it 

was in operation. He confirmed that the power was on while 

Mr. Hays serviced the system, and he never saw the system shutdown or locked out at the power center while it was being 

serviced (Tr. 258-262). 

On cross-examination, Mr. Combs stated that he worked 1 week 

with Mr. Hays on the same shift, and he could not recall whether 

he ever saw Mr. Hays greasing the equipment while it was not in 

operation. He confirmed that there is a block of grease fittings 

in front of the control station on the bridge carrier where 

several hoses come together from different parts of the carrier, 

and that he can see them while he is operating the carrier. If a 

repairman was greasing those fittings, he could observe him and 

would not start up and possibly injure him (Tr. 263). 

1865 
In response to further questions, Mr. Combs confirmed that 

there are other operators for the other mobile bridge carriers on 

the system. During the week that he worked with Mr. Hays, there 

was an average of two bridge carriers on the system, and he 

identified a photograph of a bridge carrier similar to the one 

that he operated. He confirmed that he would be seated at his 

control compartment looking forward, and that he could see a 

serviceman such as Mr. Hays at all times while working on that 

part of the system, if he were "standing erect or hunched over." 

However, if he were kneeling down to grease something, he could 

not see him (Tr. 265). He confirmed that Mr. Hays serviced the 

system while it was being trammed, and that he has observed 

Mr. Hays around the machine while it was standing still "for a 

matter of minutes," but it was still operating with the rest of 

the system, and that he could see him if he were not lying down. 

If Mr. Hays was at the rear of the machine, he could not see him 

unless he turned around to look (Tr. 268). 

Mr. Combs stated that while seated on the "onside" of his 

machine, he could not see Mr. Hays if he were servicing the other 

side, or "offside" of the machine and was kneeling or crouched 

down (Tr. 268). He confirmed that the bridge carrier and the 

entire haulage system, continues to move forward as the miner is 

cutting coal, and the system "follows the miner" (Tr. 268). He 

confirmed that he has an emergency stop control on his carrier 

that can keep the entire system from advancing and that he can 

stop the system to prevent someone from getting hurt. However, 

he could not deenergize the miner machine using this control. 

Although he could shutdown the miner, he cannot start it up again 

(Tr. 270). 

Clifton Lewis, Jr., testified that he was working with 

Mr. Hays as a scoop operator at the time of his discharge. He 

did not believe that Mr. Hays was responsible for servicing the 

scoops, but he did observe him "help grease it every now and 

then" (Tr. 273). He has observed Mr. Hays service the haulage 

system while it was in operation, and he never saw the system 

deenergized or locked out while Mr. Hays was performing this 

service (Tr. 274). 

On cross-examination, Mr. Lewis stated that he was present 

with Mr. Hays prior to his discharge at a meeting which took 

place with Mr. Collins and Mr. Hacker, and the scoop operators 

were informed at that time that they would have to grease the 

scoops. He stated that he has worked at other mines, and compared to these mines, the respondent's mine, in terms of safety, 

was "A-1, excellent, good" (Tr. 276). 

Mr. Lewis confirmed that he had no problems with Mr. Hays' 

job performance when he worked with him (Tr. 278). He believed 

that the scoop operators were assigned the task of servicing the 

scoops so that the repairman could have more time to do what they 

I 

/ 1866 
were supposed to do (Tr. 280). He confirmed that he shuts down 

his battery powered scoop to grease it, and that he can grease it 

anytime during the shift (Tr. 282). 

Gary R. Caudill, scoop operator, testified that he worked 

with Mr. Hays, and although Mr. Hays has helped him grease and 

service the scoop, Mr. Caudill greased his own scoop and was 

responsible for servicing it. He stated that no one was ever 

specifically assigned this service work, but that a meeting was 

held prior to Mr. Hays' discharge, and the scoop operators were 

given this responsibility. He had no complaints about Mr. Hays 

when he serviced his scoop, and he has observed Mr. Hays servicing the haulage system while it was in operation (Tr. 286). In 

terms of safety, and compared to other mines he has worked in, he 

believed that the respondent's mine was "pretty good" (Tr. 286). 

Respondent's Testimony and Evidence 

Richard Garcia, respondent's general manager, testified that 

he is responsible for the operation of five underground mines 

operated by the respondent, and that his responsibilities include 

production, safety, personnel, and equipment. Prior to his 

employment with the respondent, he worked for MSHA as the 

assistant district manager, District No. 7, Barbourville, 

Kentucky. Mr. Garcia identified Exhibit R-1, as a copy of a form 

that he uses for the reporting of downtime on each of the respondent's mine sections, and he explained how the information is 

reported to him and recorded on the form (Tr. 7-15). 

Mr. Garcia stated that he became aware of the discharge of 

Mr. Caudill and Mr. Hays after receiving a telephone call from 

Mr. Collins or Mr. Ron Helton, the mine superintendent, and that 

it was normal policy to inform him of any discharges. He then 

met with Mr. Jerry Elliott, the respondent's personnel manager, 

and they reviewed the personnel file of the two employees. Based 

on the information in their files, they decided to let Mr. Hays' 

discharge stand, and that Mr. Caudill would be suspended for 

3 days and transferred to another mine. Mr. caudill's suspension, rather than discharge, was based on the fact that he had no 

recent disciplinary actions against him justifying a discharge 

(Tr. 17) . 

On cross-examination, Mr. Garcia confirmed that Exhibit 

C-12, is a copy of the same downtime form that he previously 

referred to, and he confirmed that he had no personal knowledge 

of the accuracy of the information recorded on the forms, and 

that he simply records what is reported to him from the superintendent, and that the superintendent would obtain the information from a section foreman. He conceded that the information 

could be inaccurate (Tr. 20). 

1867 
Mr. Garcia confirmed that he could recall no conversations 

with Mr. Collins or Mr. Helton at the time he was informed about 

Mr. Hays' discharge indicating that Mr. Hays told mine management 

that he believed it would be unsafe to grease the haulage system 

while it was in operation. He also could not recall being told 

that Mr. Hays was discharged for any reason other than his 

failure to lubricate the system, and that "it was basically a 

failure to perform the job as he was assigned is generally the 

way it was put to me" (Tr. 21) . He further confirmed that the 

respondent has no "hard and fast rule" as to when an employee 

should be discharged, and that it would depend on the circumstances. The fact that an employee may have been suspended does 

not mean that he will automatically be discharged (Tr. 21-22). 

Mr. Garcia confirmed that he was involved in the transfer of 

Mr. Collins as superintendent from the No. 47 Mine to the No. 62 

Mine, but he could not recall whether he was involved in the 

decision to rehire Mr. Collins, but that he would haveoeen 

involved in any recommendation to do so. He was aware of the 

fact that Mr. Collins had been discharged for smoking underground, and confirmed that he was involved in that discharge. He 

was also aware of the fact that Mr. Collins had been previously 

discharged for leaving a mine area unbolted without gobbing it 

off, but that this occurred prior to his employment with the 

respondent. Although he was concerned about these discharges, 

Mr. Garcia explained that the respondent needed qualified foremen, and that Mr. Collins was told "to clean up his act" and was 

informed that the respondent would not tolerate future acts of 

this kind. Mr. Collins' good reputation for producing coal was a 

part of the decision to rehire him (Tr. 25). 

Mr. Garcia could not recall the details of what was in 

Mr. Hays' personnel file when he reviewed it at the time of his 

discharge, and he confirmed that he does not generally determine 

the merits of any prior disciplinary actions. He has had an 

occasion to meet with employees to discuss such matters, but 

could recall no further discussion in the case of Mr. Hays (Tr. 

28). He confirmed that Mr. Hays never contacted him about his 

discharge, and he could recall no further information from 

Mr. Hacker concerning the matter. If an employee believes that 

he is wrongfully discharged, he can seek an appointment with 

someone "in the main office" to discuss the matter, and Mr. Hays 

made no attempts to contact him about the matter, but may have 

done it with someone else, in which case "I would have been 

involved in any discussion at that point" (Tr. 31). He believed 

that Mr. Hays could have discussed his case with someone "higher 

in management than his supervisor" or with the safety department, 

and that all employees have an opportunity to express safety 

concerns if they are required to do an unsafe job (Tr. 32). 

Mr. Garcia confirmed that he had no knowledge of any company 

policy regarding the servicing of the haulage system, and that he 

1868 
knew of no policy requiring anyone to lubricate a machine while 

it is in motion or while it was being trammed from place to 

place. He believed that Mr. Hays should have complained earlier 

to someone higher in management than his supervisor if he 

believed that he was in danger or at risk of getting caught 

between the machine and the rib or being run over while servicing 

the machine. Suggestion boxes are available for employees to use 

and they are encouraged to report safety problems to the safety 

department. He could not recall any other personnel problems 

with Mr. Hays other than the prior disciplinaries which were in 

his file, and he made no further inquiries concerning Mr. Hays' 

work record (Tr. 35-38). 

Mr. Garcia stated that servicing the haulage system while it 

is in operation would be a violation of section 75.1725, but not 

section 75.509, which deals only with electrical work. Section 

75.1725 only requires that the power be off at the equipment 

itself when it is being serviced, but it need not be tagged and 

locked out. Section 75.509, would require the equipment to be 

locked out and tagged only when electrical work is being done 

(Tr. 38-40). 

With regard to some of the downtime entries made on 

Exhibit R-1, Mr. Garcia confirmed that the haulage system would 

be in use when rock was being cut, and that it was very likely 

that an electrician such as Mr. Hays would have performed some or 

all of the work connected with the tightening of the chains, and 

helped out in the cleaning and setting of bits (Tr. 42). 

Mr. Garcia conceded that he may not have known about 

Mr. Hays' contact with Mr. Elliott after he was discharged, and 

that he (Garcia) did not contact Mr. Hays prior to his discharge 

"to get his side of it," and he did not speak with Mr. Hacker 

(Tr. 44). He first learned that Mr. Hays had raised a safety 

concern as part of his discharge when he saw a copy of his complaint filed with MSHA (Tr. 49). 

Mr. Garcia had no knowledge of whether the servicing of the 

system was ever done on the third shift, and he would not approve 

of shutting down for an hour or an hour and a half during a 

production shift in order to service the system. He would also 

avoid shutting down the system for 30 or 45 minutes for servicing 

during a production shift. He confirmed that pursuant to section 

75.1725(c), maintenance could not be performed on the system 

unless the power was off and the system blocked against motion. 

However, the power would only have to be off at the machine, and 

it would not be required to be locked and tagged out for lubrication. He believed that "repairs" would include lubrication under 

subsection (c), and he assumed that lubrication is treated 

separately in subsection (d) because MSHA did not require tagging 

and locking out when equipment is lubricated (Tr. 52). 

1869 
Clyde Collins testified that he was the mine superintendent 

when Mr. Hays was discharged, and that he came to the No. 62 Mine 

from the No. 47 Mine in July, 1989. Mr. Collins confirmed that 

he had been fired by the respondent on three occasions, and that 

his last discharge was 6 or 7 years ago (Tr. 57). He was fired 

for smoking and having smoking articles in his possession, driving deep cuts, and refusing an assignment to another mine section 

(Tr. 58). 

Mr. Collins stated that he went underground on the day 

Mr. Hays was discharged to check on a bridge sprocket which had 

been reported out on a prior shift and to check another bridge 

sprocket which had been reported out by the immediate night 

shift. He found that the speed reducer shaft had a broken 

fitting and that it had not been greased. He checked the rest of 

the system and found several fittings broken off, and that "a lot 

of it hadn't been serviced. It had just been neglected" (Tr. 

64). He spoke with Mr. Hays and asked him if he had serviced the 

system within the past 2 days, and Mr. Hays replied that he had 

not, and did not know the last time he serviced it. Mr. Collins 

then called Mr. Hacker, the maintenance foreman, to come inside 

and check out the system. Mr. Collins confirmed that he is the 

immediate supervisor of Mr. Hacker, and that Mr. Hacker is 

Mr. Hays' supervisor. After checking the system for an hour, 

Mr~ Hacker called Mr. Collins and asked him to come out and to 

bring Mr. Hays and his tool box with him. Mr. Hays went to 

Mr. Hacker's office, but Mr. Collins did not go with him, and did 

not speak with Mr. Hays again (Tr. 67). 

Mr. Collins confirmed that it was within Mr. Hacker's discretion to discharge Mr. Hays. He also confirmed that Mr. Hays 

had never complained to him about any unsafe mine conditions, but 

that during a meeting a week or two prior to his discharge, he 

believed that Mr. Hays brought up the matter of servicing the 

system while it was running, and that he (Collins) informed the 

people at the meeting to service the equipment "while it was 

belting up" or when bits were changed, and if it could not be 

serviced during the shift it was to be reported (Tr. 68). 

Mr. Collins denied that he ever observed any repairmen servicing 

the system while it was moving, and that no one ever informed him 

that this was being done (Tr. 70). 

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

he was last discharged by the respondent he admitted that he was 

smoking underground, and that most of his crew was also fired 

that time, including Mr. Hacker. He confirmed that he knew it 

was illegal to smoke underground, but allowed his crew to do it 

(Tr. 75). He also confirmed that he was fired for driving cuts 

deeper than permitted by the roof-control plan, and that he knew 

it was illegal, but did it anyway (Tr. 76). 

1870 
Mr. Collins confirmed that he did not know Mr. Hays prior to 

July or August, 1989, when he became the superintendent at the 

No. 62 Mine, and was only familiar with his work at this mine. 

Prior to Mr. Hays' discharge, he had no concern about Mr. Hays' 

job performance other than his servicing of the system on the day 

of his discharge (Tr. 77). The me~ting held prior to Mr. Hays' 

discharge concerned personnel on both of the mine sections, and 

he had no particular concern about Mr. Hays' job performance at 

that time, and no complaints were made to him about Mr. Hays 

prior to his discharge on September 7, 1989 (Tr. 78). He identified the particular piece of machinery that he was looking at on 

the day of the discharge as a broken sprocket on a bridge of the 

haulage system, and confirmed that Mr. Hays was in the process of 

repairing it when he arrived underground and called Mr. Hacker 

"to come in and check the equipment" (Tr. 70). 

Mr. Collins stated that when he spoke with the MSHA special 

investigator who investigated Mr. Hays' compliant, he stated that 

he had asked Mr. Hacker to come underground to "Look at the 

bridge" because it had not been serviced. Mr. Collins stated 

that he also told Mr. Hacker to "check his equipment" because he 

had checked the entire system prior to calling Mr. Hacker and 

found other fittings which were broken and not serviced (Tr. 82). 

He could not recall whether or not he told the investigator about 

looking at the other equipment or about the other broken grease 

fittings, and stated that he told Mr. Hacker to "come in and look 

at the bridge" (Tr. 83). 

Mr. Collins stated that he was not involved in the decision 

to discharge Mr. Hays, and that Mr. Hacker did not discuss his 

decision with him. He further confirmed that after Mr. Hacker 

came to the mine on the day of the discharge, he did not speak 

with him about Mr. Hays' job performance (Tr. 83). He stated 

that when the third shift mechanic told him on the day of the 

discharge that there was a problem with the servicing of the 

equipment, he did not tell him that he believed that Mr. Hays was 

not doing his job, nor did he mention anyone in particular who he 

believed was at fault (Tr. 84). Mr. Collins confirmed that after 

Mr. Hays informed him that he did not know when he had last 

serviced the system, he could have fired him, but did not do so. 

He ~lso did not suggest to Mr. Hacker that some disciplinary 

action needed to be taken against Mr. Hays (Tr. 91). 

Mr. Collins believed that while some of the haulage system 

could be legally serviced while it was in operation, the remaining portion did not have to be deenergized at the power center 

and locked out (Tr. 92). Mr. Collins conceded that in his pretrial deposition he stated that the system had to be deenergized 

and blocked against motion in order to service fittings that 

could not be safely serviced while the system was in operation. 

He further conceded that he had previously stated that in order 

to service and oil the fittings, the equipment had to be locked 

1871 
out at the power center. Mr. Collins stated that he misunderstood the questions asked of him during his deposition, and 

confirmed that the equipment must be locked out if electrical 

work is being performed. He explained that while servicing the 

system "all you would have to do is kick the breaker on the start 

box." After speaking with the respondent's safety department, he 

formed a different opinion about the need to lock the power out 

at the power center before servicing the system (Tr. 95). 

Mr. Collins conceded that servicing the system while it is 

in operation would expose the serviceman to danger, and that it 

could result in his being caught between the equipment and the 

rib, or being run over, and that this could result in serious 

injury or death (Tr. 95-96). He confirmed that prior to the 

discharge Mr. Hacker never told him that Mr. Hays was not reporting to him that equipment needed servicing or repairing, and that 

neither he (Collins) or anyone else in management ever disciplined any employee for servicing the system while it was in 

operation (Tr. 97). He confirmed that at least five people on 

different shifts were responsible for servicing the haulage 

system, and when the prior shift mechanic told him that the 

system was not being serviced, Mr. Collins did not conclude that 

this was Mr. Hays' fault, and he simply concluded that "it wasn't 

being serviced" (Tr. 114). He also concluded that "Hays and 

Caudill, neither one, wasn't servicing it," and that they were 

the only two individuals on the first and second production 

shifts on the section who were responsible for servicing the 

system (Tr. 114-116). He confirmed that it is not legal to 

service a moving part of the system while it was in operation 

(Tr. 117) . 

Mr. Collins confirmed that after Mr. Hays was discharged, 

Mr. Hacker informed him that he had fired him for "not servicing 

equipment," but he did not blame Mr. Hays for the broken 

sprocket. The sprocket in question has a grease fitting which is 

"off-center," and it turns. There was no way it can be serviced 

while it is moving, and if the system were running all of the 

time, it could not be serviced. However, if this occurred and 

there was no time to service it, it is supposed to be reported to 

him or to Mr. Hacker. At no time has any serviceman ever 

informed him at the end of his shift that there was servicing 

left to do. If it is not reported, he assumes that the system 

has been serviced, and no one would know any different unless it 

broke down or someone visually inspected it (Tr. 121). He confirmed that he does not ask his people to service the system 

while it is in operation, and had no knowledge that Mr. Hays was 

doing this (Tr. 122). 

Mr. Collins confirmed that there is no company policy or 

written instructions advising employees to stop the equipment 

before servicing it, and he did not know why this is not covered 

by the company safety rules booklet (Tr. 123-124). Respondent's 

1872 
counsel stated that the safety rule booklet was published at a 

time when the haulage system was not in use and that it may be 

outdated (Tr. 125, exhibit C-16). 

Mr. Collins believed that Mr. Hays was fired for not servicing the entire haulage system, rather than the one bridge 

sprocket which was broken, because "we checked the entire haulage 

system and there was lots of fittings on it that hadn't been 

greased. There .was fitting on it that were broke" (Tr. 126). He 

confirmed that a broken fitting cannot be greased, and that no 

broken fittings had been reported. He did not believe Mr. Hays' 

assertion that the system was running all of the time and that he 

did not want to service it while it was running. He believed 

that Mr. Hays could have serviced the system when it was down, as 

reflected by the downtime reports, but conceded that he_did not 

know what happened on September 6, other than what is reflected 

on the form (Tr. 129). 

Mr. Collins stated that he has never observed Mr. Caudill or 

Mr. Hays use a grease gun to service the system, and that 

Mr. Caudill worked a different shift than Mr. Hays. Prior to the 

date of the discharge, he never checked on Mr. Hays' work. He 

would have expected Mr. Hays or Mr. Hacker to check the system 

and report any broken fittings. He had no reason to question 

Mr. Hays' work prior to his discharge, and Mr. Hacker never 

reported any problems with Mr. Hays' work. He confirmed that 

Mr. Hacker only told him that Mr. Caudill and Mr. Hays told him 

that they "didn't have time or something other," to service the 

system, and that Mr. Hacker did not mention Mr. Hays stating that 

he did not believe it was safe to service the system while it was 

running (Tr. 133). He believed that Mr. Hays should have asked 

for help if he did not have time to service the system, and that 

help would have been made available. In the alternative, 

Mr. Hays should have reported that he had not serviced the system 

(Tr. 134). 

Clavton Hacker· testified that he has served as a maintenance 

foreman for the respondent for 5 years, and has been the maintenance foreman at the No. 62 and No. 63 Mines since May 19, 

1989. He confirmed that Mr. Hays worked under his supervision as 

an electrician, and also worked for him at the No. 49 Mine. He 

confirmed that he fired Mr. Hays (Tr. 143-145). He stated that 

on the day Mr. Hays was fired, he received a call from 

Mr. Collins to come underground to look at the equipment. 

Mr. Hays was working on a broken bridge discharge sprocket shaft, 

and Mr. Collins "mentioned about the servicing." Mr. Hacker then 

proceeded to look over the system, which consisted of three 

carriers and four bridges, and he also looked at the roof-bolting 

machines and one of the scoops. He looked at the lubrication 

points on all of this equipment and found "a lack of servicing." 

He explained that he found six or more grease fittings which were 

broken off on major components of the haulage system, identified 

1873 
the components, and indicated that there was no way they could 

have been greased with a grease gun because of the broken 

fittings (Tr. 149-150). 

Mr. Hacker stated that after looking at the equipment, he 

retrieved the cap from the broken sprocket grease fitting, left 

the mine, and then called Mr. Collins and asked him to inform 

Mr. Hays to come out and to bring his tools with him. He then 

spoke with Mr. Hays and Mr. Caudill in his office, and asked them 

why they had not serviced the equipment. Mr. Caudill informed 

him that he had no time to· service it, and Mr. Hays informed him 

that he could not service it while it was running. Mr. Collins 

stated that he told Mr. Hays that he was not instructed to 

service it while it was in motion, and he explained further as 

follows at (Tr. 153): 

A. He was instructed to do his servicing within his 

shift. He was not told to do all the servicing at one 

time, in a complete thirty minutes, forty minutes, 

whatever. He was told to do it within the shift, 

itself. This could consist of ten minutes at a time 

during intervals; I mean, at anytime it was down for a 

period of time, which you could maybe get one bridge, 

one side of one bridge. 

Almost all repairmen will go up and do one side at 

a time. They won't do everything. You know, it's 

never -- you know, hardly -- seldom done that all the 

machinery is serviced at one time. The only time this 

is ever done is in case a belt drive is down for a long 

period of time or a stacker is down outside, something 

that is going to be a long period of time. 

Most all the service is done by just a little bit 

at a time. Repairmen keep their grease gun close to 

them so they_ can do this. They don't -- you know, 

their tools. They're not always having breakdowns to 

be working on the breakdown, so it's within theirself, 

when they find the time to do this. 

Mr. Hacker denied that he ever suggested or instructed his 

servicemen to service the equipment while it was running (Tr. 

154). At the time that he discharged Mr. Caudill and Mr. Hays, 

he was familiar with Mr. Caudill's work record through another 

individual who did not work for the respondent, and he had not 

previously reprimanded Mr. Caudill. He had previously reprimanded Mr. Hays and suspended him for 3 days for not fixing the 

brakes on a shuttle car. He also supervised Mr. Hays' work at 

the No. 49 Mine, and received a complaint from another repairmen 

in 1989 who asked him to replace Mr. Hays with another repairmen 

because Mr. Hays "wasn't going to make it" (Tr. 159). Mr. Hacker 

stated that when Mr. Hays previously worked for him he "was young 

1874 
at his job and I wanted to give him the benefit of the doubt," 

and that "as far as his work is concerned, he would patch things 

up, but as far as really passing on and getting the things fixed 

correct, he was never really interested in anything like that" 

(Tr. 159-160) . 

Mr. Hacker stated that he has never observed anyone servicing the haulage system while it was in operation (Tr. 167). He 

stated that it was illegal to service a piece of equipment while 

it is moving unless it has an extended grease fitting or cup. He 

confirmed that each mobile bridge carrier has nine different 

locations which have extended grease fitting, but no grease caps. 

It would still be illegal to grease these fittings while the 

system was running because "the way it moves, you know, if it 

would be there by the belt structure not outby the belt structure, you would be in a dangerous position to pin someone" (Tr. 

168). Mr. Hacker confirmed that he has worked as an electrician 

on a continuous haulage system, and that in his experience, it 

has never operated for a full 8-hour production shift. Both he 

and Mr. Collins instructed the servicemen to report the fact that 

they were unable to service the equipment during their shift (Tr. 

172) . 

On cross-examination, Mr. Hacker confirmed that he knew the 

miners who testified that they observed Mr. Hays servicing the 

haulage system while it was in operation, and that he had no 

reason to believe that these individuals were not honest or were 

lying (Tr. 175, 177). He confirmed that he did not consider 

Mr. Hays to be very good at his job, and that he was not very 

good at overall maintenance or mechanical work (Tr. 178). He 

confirmed that Mr. Hays had worked for him for a year at the 

No. 49 Mine, and that when he learned that he was being transferred to the No. 62 Mine, he (Hacker) did not object (Tr. 179). 

Mr. Hacker confirmed that at the time he gave a statement to 

the MSHA investigator investigating Mr. Hays' complaint, he told 

the investigator that Mr. Hays was fired for not servicing the 

mobile bridge carrier the way he was instructed and that the 

bearings, grease caps and speed reducers had not been serviced 

within the past week. He stated that the investigator did not 

ask him about any of the other equipment, and that he told the 

investigator that he had fired Mr. Hays over the mobile bridge 

carrier and mentioned no other equipment (Tr. 185-186). He 

confirmed that. when the investigator took his statement, a representative of the safety department, Pat Graham, was present, but 

he denied that he discussed what he would tell the investigator 

with Mr. Graham (Tr. 188). Mr. Hacker further confirmed that in 

his deposition he testified that he found that "most" of the 

grease fittings on the system were broken off, but that he does 

not now believe that six broken fittings was "most" of them (Tr. 

189) . 

1875 
Mr. Hacker stated that when he spoke to Mr. Hays and 

Mr. Caudill at the time he fired them, he was showing them the 

speed reducer grease cap with a broken fitting, and that ~r. Hays 

told him that he could not service the system while it was operating and that it was unsafe to service it while it was operating 

(Tr. 190). Mr. Hacker stated "I know it's unsafe to do so, but 

why would an individual wait up to this time to complain about 

something to you" (Tr. 191). He confirmed that he had no reason 

to believe that what Mr. Hays was telling him was not true (Tr. 

192) • 

Mr. Hacker confirmed that he knew at the time of the discharge of Mr. Hays that it was illegal to service the system 

while it was in operation, and that this included all of the 

fittings. He stated that the system has extended fittings on the 

manifolds, and blocks on each side of the mobile carrieri, but 

that he did not mention this during his prior deposition and 

stated at that time that there were no extended fittings, and 

that this was what he believed at the time he fired Mr. Hays. He 

subsequently learned of the existence of extended fittings when 

he examined the system (Tr. 193-194). He also confirmed that he 

previously stated during his deposition that any time the system 

was greased, it had to be deenergized and blocked against motion, 

but that he was confused about the question because he had previously talked about electrical or maintenance work (Tr. 

195-197). He denied that he thought the haulage system had to be 

deenergized and locked out at the time he fired Mr. Hays, and 

conceded that his present testimony was different from his prior 

deposition testimony "on that specific thing'' (Tr. 198) • 

Mr. Hacker agreed that if an electrician were greasing the 

system with the breaker off on the machine, and if someone were 

to turn the breaker on and the machine was not locked out, the 

electrician could be injured (Tr. 199). He stated that electrical work must be locked out and tagged, and that the term 

"maintenance" found in section 75.1725, includes greasing and 

oiling. He confirmed that when one is greasing the system, 

machinery motion is not required in order to make adjustments, 

and that it is his understanding that if any greasing is performed on the system, the power must be off and it must be 

blocked against motion (Tr. 201). 

Mr. Hacker confirmed that he never informed Mr. Hays or any 

of his electricians that the machine had to be deenergized and 

locked out while they were greasing it. He believed that the 

particular grease fitting which he showed Mr. Hays at the time he 

fired him could be safely greased while the system was in operation, and he saw no danger in doing this, and did not believe 

there was any way that an injury would occur while greasing the 

system while it was in operation. He confirmed that even though 

he thought it was illegal to grease the system while it was in 

operation, and thought that half of the fittings on the whole 
system could be safely greased while it was in operation, he was 

not going to let his men do it (Tr. 203-204). He confirmed that 

he had never disciplined any employee for greasing the system 

while it was in operation, and stated that "I only know the 

safety department said it was against policy" (Tr. 205). 

Mr. Hacker confirmed that the grease cap with the broken 

fitting which he showed to Mr. Hays at the time of his discharge 

had nothing to do with the equipment breakdown which Mr. Hays was 

working on at that time (Tr. 211). Mr. Hacker acknowledged that 

he did not ask Mr. Hays about his work that day and had no knowledge as to what he was doing. Mr. Hacker confirmed that servicing the system while it was in operation could result in serious 

or fatal injuries to a miner and this is why it is illegal to 

grease or oil the system while it is in operation. Mr. Hacker 

further confirmed that 2 days before the discharge he conducted 

an electrical inspection of the system and did not observe any 

broken grease fittings (Tr. 212-213). Prior to the discharge, no 

one ever reported any broken grease fittings, including the 

equipment operators who are responsible for the pre-ope.rational 

inspection of their equipment and the reporting of any broken 

fittings (Tr. 214-215). 

Mr. Hacker stated that prior to the discharge of Mr. Hays, 

he never told him that he was not complying with the maintenance 

"card system," and no one from management ever complained that 

Mr. Hays was not complying with this system. Mr. Collins has 

never "written up" Mr. Hays for failing to notify management 

about any needed equipment repairs or servicing, and many times 

Mr. Hays would have been responsible for repairing equipment, and 

when he finished, the system would begin operating immediately 

(Tr. 218). During the 2 or 3-weeks prior to the discharge, 

Mr. Hacker was not aware of any time that he or the section 

foreman suggested that the system be shutdown so that Mr. Hays 

could grease it, and that this would be an unusual procedure 

because he tries to get the least amount of downtime on a production shift (Tr. 221). He confirmed that the electricians did not 

always contact him personally to report work that needed to be 

done, and they would frequently call "Mabel in the light house" 

and she would write down what was needed (Tr. 222). 

Mr. Hacker confirmed that on the day of the discharge, 

Mr. Hays informed him that it would be unsafe to grease the 

system while it was in operation. Prior to firing Mr. Hays, 

Mr. Hacker made no inquiries to determine whether Mr. Hays was in 

fact greasing the system while it was in operation (Tr. 225). He 

confirmed that the 3 hour and 15 minute downtime shown on one of 

the reports resulted from two broken sprockets, but he did not 

attribute this to Mr. Hays' failure to service the system 

properly. The broken sprockets were not the result of any lack 

of oil or grease, but were caused by cutting rock, and there was 

1877 
nothing Mr. Hays could have done to prevent the sprockets from 

breaking (Tr. 229). 

Mr. Hacker stated that his visit underground on the day of 

the discharge was prompted by the two broken sprockets and the 

grease cap that Mr. Collins and Mr. Hays found while working on 

the equipment which was down (Tr. 230). He showed the cap to 

Mr. Caudill and Mr. Hays "because that was a topic to get started 

on the servicing of the equipment," and the lack of grease on the 

cap raised an inference that Mr. Caudill and Mr. Hays were not 

doing their job (Tr. 231). Commenting on some of the entries 

made by Mr. Hays in his daily notebook, exhibit C-1, Mr. Hacker 

stated "That is the best I've ever saw" and "That is very impressive." He confirmed that Mr. Hays never showed him the book, and 

if he had, it would have changed his mind because the notations 

reflect "a very hard working individual right there" (Tr-. 233). 

However, based on what he knew of Mr. Hays, Mr. Hacker did not 

believe him to be a very hard worker (Tr. 234). 

Mr. Hays was recalled by the Court, and he stated that on 

the day of his discharge he was not aware of any broken fittings 

on the system except for the one which had broken that day. He 

confirmed that when he could not grease the offset fittings, they 

were left ungreased and he did not report this (Tr. 240). He 

stated that Mr. Hacker instructed him to grease the system while 

it was in operation and told him that this was the way he preferred it (Tr. 241). Mr. Hays stated that prior to his discharge 

he told Mr. Hacker that he had a problem with greasing the system 

-while it was moving, and that he greased it while it was moving 

because he believed he was expected to and wanted to keep his 

job, and no one told him that he was not supposed to grease the 

system while it was moving (Tr. 244). 

Findings and Conclusions 

In order to establish a prima facie case of discrimination 

under section 105(c) of the Mine Act, a complaining miner bears 

the burden of production and proof to establish (1) that he 

engaged in protected activity and (2) that the adverse action 

complained of was motivated in any part by that activity. 

Secretary on behalf of Pasula v. Consolidation Coal Company, 

2 FMSHRC 2768 (1980), rev'd on other grounds sub nom. 

Consolidation Coal Company v. Marshall, 663 F.2d 1211 (3d Cir. 

1981); Secretary on behalf of Robinette v. United Castle Coal 

Company, 3 FMSHRC 803 (1981); Secretary on behalf of Jenkins v. 

Hecla-Day Mines Corporation, 6 FMSHRC 1842 (1984); Secretary on 

behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510-2511 

(November 1981), rev'd on other grounds sub nom. Donovan v. 

Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983). The operator 

may rebut the prima facie case by showing either that no protected activity occurred or that the adverse action was in no way 

motivated by protected activity. If an operator cannot rebut the 

1878 
prima facie case in this manner it may nevertheless affirmatively 

defend by proving that (1) it was also motivated by the miner's 

unprotected activities alone. The operator bears the burden of 

proof with regard to the affirmative defense. Haro v. Magma 

Copper Company, 4 FMSHRC 1935 (1982}. The ultimate burden of 

persuasion does not shift from the complainant. Robinette, 

supra. See also Boich v. FMSHRC, 719 F.2d 194 (6th Cir. 1983); 

and Donovan v. Stafford Construction Company, No. 83-1566 D.C. 

Cir. (April 20, 1984) (specifically-approving the Commission's 

Fasula-Robinette test). See also NLRB v. Transportation 

Management Corporation, U.S. , 76 L.ed.2d 667 (1983}, 

where the Supreme Court approved the NLRB's virtually identical 

analysis for discrimination cases arising under the National 

Labor Relations Act. 

Protected Activity 

A miner has the right under section 105(c) of the Act to 

refuse to work if he has a good faith, reasonable belief that his 

continued work involves a hazardous condition. Fasula, supra, 

2 FMSHRC at 2789-96; Robinette, supra, 3 FMSHRC at 807-12; 

Secretary v. Metric Constructors, Inc., 6 FMSHRC 226, 229-30 

(February 1984), aff 'd sub nom. Brock v. Metric Constructors 

Inc., 766 F.2d 469, 472-73 (11th Cir. 1985). However, where 

reasonably possible, a miner refusing work ordinarily must 

communicate or attempt to communicate to some representative of 

the operator his belief that hazardous conditions exists. In a 

number of safety related "work refusal" cases, it has been 

consistently held that a miner has a duty and obligation to 

communicate his safety concerns to mine management in order to 

afford the operator with a reasonable opportunity to address 

them. See: Secretary ex rel. Paul Sedgmer et al. v. 

Consolidation Coal Company, 8 FMSHRC 303 (March 1986); Simpson v. 

Kenta Energy, Inc. & Roy Dan Jackson, 8 FMSHRC 1034, 1038-40 

(July 1986}; Secretary on behalf of Dunmire & Estle v. Northern 

Coal Co., 9 FMSHRC 992 (June 1987); Miller v. FMSHRC 687 F.2d 

194, 195-97 (7th Cir. 1982) (approving Dunmire & Estle communication requirement);. Sammons v. Mine Services Co.-~· 6 FMSHRC 1391 

(June 1984); Charles Conatser v. Red Flame Coal Company, Inc., 

11 FMSHRC 12 (January 1989), review dismissed Per curiam by 

agreement of the parties, July 12, 1989, U.S. Court of Appeals 

for the District of Columbia Circuit, No. 89-1097. 

In Gilbert v. Sandy Fork Mining Company, 12 FMSHRC 177 

(February 1990), on remand from Gilbert v. FMSHRC, 866 F.2d 1433 

(D.C. Cir. 1989), rev'd Gilbert v. Sandy Fork Mining Co., 

9 FMSHRC 1327 (1987), it was held that a violation of section 

105(c) is established when a miner has a reasonable, good faith 

belief that certain work conditions are hazardous, communicates 

that belief to mine management, and management does not address 

his safety concerns in a manner sufficient to reasonably quell 

his fears. 

1879 
The complainant views this case as a "work refusal" case, 

and takes the position that Mr. Hays' refusal to fully grease the 

continuous haulage system was both reasonable and made in good 

faith. 

The respondent argues that in order to demonstrate "good 

faith," Mr. Hays must show that he timely informed the respondent 

of his belief in the safety hazard so that the respondent would 

have an opportunity to correct the situation. Respondent takes 

the position that a work "refusal" requires communication of a 

miner's intention not to perform work, and that the purpose of 

the Act is not served when a miner keeps his "refusal" to do 

unsafe work to himself. Respondent concludes that Mr. Hays' 

surreptitious failure to service the grease fitting on the speed 

reducer shaft for 5 consecutive days did not constitut-e a valid 

work "refusal" protected by the Act. 

Although Mr. Hays' discrimination complaint may not directly 

involve a "work refusal" in the traditional sense, I conclude and 

find that the principles enunciated in the aforementioned case 

law apply in this case, and that Mr. Hays' reluctance or failure 

to service the haulage system or any of its component parts in 

question while it was in operation because of his belief that to 

do so would be unsafe and hazardous and would expose him to 

serious injuries would be protected activity within the intent 

and scope of section 105(c) of the Act. Mr. Hays has the burden 

of establishing that he was required or expected to service the 

system while it was in operation, that servicing it while it was 

in operation was unsafe and hazardous, that his safety concerns 

with respect to the servicing of that equipment were reasonable 

and made in good faith, and that he timely communicated these 

concerns to mine management. 

The Safety Issue 

MSHA's mandatory safety standards, which are applicable to 

the respondent's mine, provide in relevant part as follows: 

§ 75.509 Electric power circuit and electric 

equipment; deenergization. 

[STATUTORY PROVISIONS] 

All power circuits and electric equipment shall be 

deenergized before work is done on such circuits and 

equipment, except when necessary for trouble shooting 

or testing. 

1880 
§ 75.1725 Machinery and equipment; operation and 

maintenance. 

(a) Mobile and stationary machinery and equipment 

shall be maintained in safe operating condition and 

machinery or equipment in unsafe condition shall be 

removed from service immediately. 

(b) Machinery and equipment shall be operated 

only by pers.ons authorized to operate such machinery or 

equipment. 

(c) Repairs or maintenance shall not be performed 

on machinery until the power is off and the machinery 

is blocked against motion, except where machinery 

motion is necessary to make adjustments. 

(d) Machinery shall not be lubricated manually 

while in motion, unless equipped with extended fittings 

or cups. 

The respondent argues that it never required or instructed 

Mr. Hays to service the system while it was in operation and that 

the testimony of Mr. Garcia, Mr. Collins, and Mr. Hacker establishes that Mr. Hays was not instructed to grease equipment while 

it was running, but was instead instructed to work safely in 

general and specifically to perform his greasing duties during 

"those scattered occasions throughout the shift when there were 

pauses in production for various reasons." Respondent believes 

that such idle times did occur during the shift, and that if they 

did not, or if Mr. Hays found them too short or to infrequent to 

allow for complete servicing of the equipment, he should have 

made this fact known to somebody in charge. Assuming that 

Mr. Hays did not have sufficient down time to service the equipment, the respondent concludes that he apparently worked on the 

equipment in an unsafe manner and/or left the work undone and 

failed to advise management that the work was not being done. 

Respondent's General Mine Manager Garcia had no knowledge of 

any company policy regarding the servicing of the haulage system, 

and he was unaware of any policy requiring anyone to lubricate 

the equipment while it was in motion or being trammed. However, 

he confirmed that he would not approve of, and would avoid, the 

shutting down of the haulage system during a production shift for 

the purpose of servicing it. He conceded that servicing the 

equipment while it was in operation would be a violation of 

section 75.1725. He further conceded that subsection (c) of 

section 75.1725, would require the equipment to be deenergized 

and blocked against motion while it is serviced, but that it was 

not required to be tagged or locked out. He also considered 

"repairs," as that word is used in subsection (c), to include 

1881 
lubrication of the equipment, and assumed that any lubrication is 

covered separately by subsection (d) of section 75.1725. 

Mine Superintendent Collins denied that he ever observed 

anyone servicing the haulage system while it was in operation, 

and he confirmed that no one ever informed him that this was 

being done. Although Mr. Collins believed that a portion of the 

haulage system could legally be serviced while it was in operation, and that the remaining portion was not required to be 

deenergized at the power center and locked out, he conceded that 

the electrical breaker on the "start box" had to be "kicked" 

while the system was being serviced. When asked to reconcile his 

testimony with his prior deposition testimony that the system had 

to be locked out at the power center before servicing and oiling 

the fittings, Mr. Collins stated that he misunderstood __ the questions asked of him during his deposition and that his present 

opinion is that the equipment has to be locked out only if electrical work is being performed. 

I have reviewed Mr. Collins' pretrial deposition of 

April 25, 1990, and I cannot conclude that the questions asked 

and answered at pages 26 through 31 are confusing. The questions 

pertained to the greasing and oiling of the system fittings, and 

not to any electrical work. Mr. Collins' deposition testimony 

reflects his belief that two or three fittings, or those fittings 

located together at the front of the bridge carrier operator's 

control station, could be safety greased while the equipment was 

running because they are stationary and have no turning shafts 

and "there's nothing you can get hung into" (Q212 answer, pgs. 

27-28). He further clarified his answer when he stated that the 

carriers are equipped with some, but not all, fittings which are 

extended or have cups, but that none of these fittings have 

anything extending out from the grease fitting itself (Q231-233 

answers, pgs. 30-31). Mr. Collins doubted that it would be legal 

to oil the system while it was running and stated "I don't even 

see how you can put oil in it with it running" (Q218 answer, pg. 

28). He also confirmed that in order to service the system 

fittings which were not otherwise safe to service, the system 

power had to be deenergized and the system had to be blocked 

against motion and he stated that "that's the only way you could 

service it" (Q228-229 answers, pg. 30). 

During his hearing testimony, Mr. Collins confirmed that 

servicing a moving part of the system while it was operating is 

illegal, and he conceded that servicing the system while it is in 

operation would expose the serviceman to danger, and could result 

in his being caught between the equipment and the rib, or being 

run over, and that this could result in serious injury or death. 

This testimony is consistent with his deposition testimony that 

servicing the equipment while it is running would expose an 

electrician to serious hazards and injuries (deposition, pgs. 

31-32). Mr. Collins also conceded during his trial testimony 

1882 
that a fitting which is "off-center" and is turning while the 

system is operating cannot be serviced because it is impossible 

to grease them while the system is in operation. He also conceded that a broken fitting cannot be greased. 

Maintenance foreman Hacker denied that he ever suggested or 

instructed his service personnel to service the system while it 

was in operation, or that he ever observed anyone servicing the 

system while it was in operation. He confirmed that he expected 

each serviceman to service the system "when they find the time to 

do it." He was unaware of any time that the section foreman 

suggested that the system be shutdown so that Mr. Hays could 

grease it, and he confirmed that this would be an unusual procedure during a production shift because he tries to have the least 

amount of "downtime." 

Mr. Hacker conceded that it was illegal to service the 

haulage system while it was in operation, and that it would be 

illegal to service any equipment while it was moving unless it 

was equipped with an extended grease fitting or cup. Although he 

confirmed that each bridge carrier has some extended grease 

fitting at different locations, he confirmed that these fittings 

have no grease caps and that it would still be illegal to grease 

these fittings while the system was in operation because it would 

expose the serviceman to a hazard of being pinned if it were 

operating near a belt structure. Although Mr. Hacker claimed 

some confusion about his prior deposition testimony that the 

system had to be deenergized and blocked against motion when it 

was being greased, he agreed that if an electrician were greasing 

the system with the circuit breaker off, if someone were to turn 

the breaker back on, and the equipment was not locked out, the 

electrician could be injured. 

Mr. Hacker agreed that the term "maintenance" as found in 

section 75.1725, includes greasing and oiling, and that when the 

system is being greased, machinery motion is not required in 

order to make any adjustments. He confirmed that it was his 

understanding that if any greasing is being performed on the 

system, the power must be off and the system must be blocked 

against motion. 

Mr. Hacker conceded that at the time he discharged Mr. Hays, 

even though he knew that it was illegal and unsafe to service the 

system while it was running, he had never informed Mr. Hays or 

any of his electricians that the system had to be deenergized 

before it was serviced. Mr. Hacker further conceded that during 

his discussion with Mr. Hays on the day of his discharge, and 

immediately prior to discharging him, Mr. Hays told him that he 

could not service the system while it was in operation because he 

believed it was unsafe. Mr. Hacker acknowledged that he had no 

reason to believe that Mr. Hays was not telling the truth about 

his safety concerns, and that he had no reason to question the 

1883 
honesty of the miner witnesses who testified about their servicing of the system while it was running, or their safety concerns 

and the hazards of servicing the system while it was in 

operation. 

Former MSHA official William Craft testified credibly that 

pursuant to mandatory safety standard 30 C.F.R. § 75.509, the 

greasing and lubrication of the haulage system in question 

encompasses "work"· and "equipment" within the meaning of this 

section, and the system must be deenergized before this kind of 

work is performed. He also confirmed that lubricating the system 

without deenergizing it would be unsafe and would constitute a 

violation of mandatory safety standard 30 C.F.R. § 75.1725(c) or 

(d) • 

Mr. Hays testified that Mr. Hacker was aware of the fact 

that the system was being serviced while it was in operation 

because Mr. Hacker had instructed the servicemen to do so. 

Mr. Hays also testified credibly that when he previously informed 

Mr. Hacker that he could not grease the fittings while the system 

was in operation, Mr. Hacker informed him that the system could 

not be shutdown for greasing, and instructed him to grease the 

speed reducers while the bearings were turning and informed him 

that the system could be greased while it was in operation 

because he had done so himself and knew that it could be done. 

Mr. Hays stated that he knew it was illegal and unsafe to service 

the system while it was in operation but did it anyway because he 

was told that he would be replaced if he didn't, and he confirmed 

that he asked Mr. Hacker to permit him to stay over his shift to 

service the system while it was not in operation, but was 

refused. 

Mr. Jerry Caudill testified that when he worked as a second 

shift electrician, he was expected to service and oil the system 

while it was in operation, and that Mr. Hacker and his section 

foremen knew that he was servicing the system while it was in 

operation because they observed him doing it. Mr. Caudill 

further testified that he complained to his foremen about servicing the equipment while it was running, but they did nothing 

about it. He also informed Mr. Hacker on at least four different 

occasions that it was dangerous, but that Mr. Hacker "wasn't 

going to hear no excuses." 

Shift foreman .and electrician Terry Richardson testified 

that he had serviced the system while it was in operation and not 

deenergized. Roof bolter Marty Lewis, who worked with Mr. Hays, 

confirmed that he observed Mr. Hays greasing the system when it 

was not deenergized. Miner operator Dewey Eldridge observed 

Mr. Hays servicing the system while it was in operation and not 

locked out. Bridge carrier operator David Combs testified that 

while he observed Mr. Hays greasing and oiling the system, he 

never observed him doing this while the system was in operation. 

1884 
However, he confirmed that the system power was on while Mr. Hays 

serviced it, and he never saw the system shutdown or locked out 

at the power center while this work was being done. Scoop operator Clifton Lewis, who also worked with Mr. Hays at the time of 

his discharge, testified that he observed Mr. Hays servicing the 

system while it was in operation, and that it was never deenergized or locked out while he was doing this work. Scoop operator 

Gary Caudill also worked with Mr. Hays and he confirmed that he 

observed Mr. Hays servicing the equipment while it was in 

operation. 

The credible testimony of Mr. Hays and Mr. Jerry Caudill, as 

corroborated by the credible testimony of the other equipment and 

system operators, establishes that Mr. Hays serviced the system 

while it was in operation. Although Mr. Hacker denied that he 

ever observed anyone servicing the system while it was--in operation, I credit the testimony of Mr. Hays and Mr. Caudill that 

Mr. Hacker and other foremen had observed them servicing the 

system while it was in operation. I also credit the testimony of 

electrician foreman Richardson who confirmed that he serviced the 

system while it was in operation and not deenergized, and 

Mr. Hays' testimony that Mr. Hacker would not allow the system to 

be shutdown for greasing because he had greased it himself while 

it was in operation and believed that it could be done. 

The credible and unrebutted testimony of Mr. Hays and 

Mr. Jerry Caudill reflects that the servicing of the haulage 

systems at all of the respondent's mines where they had worked 

was done while it was in operation and that this was a standard 

practice or procedure. Although management was aware of the fact 

that servicing the system while it was in operation was contrary 

to the law and exposed its service personnel to potential hazards 

and injuries, there is no evidence that management ever issued 

any instructions or adopted any safety rules prohibiting this 

practice, and it never disciplined anyone for doing this. 

Notwithstanding the lack of any written or published company 

policy requiring the system to be serviced while it was in operation, the testimony of respondent's management personnel in this 

case reflects that short of a mechanical breakdown in the system, 

they would not approve of routinely shutting down the system or 

scheduling a shutdown to allow its service personnel ample time 

to grease, oil, or perform other normal and routine servicing of 

the system while it was not in operation. Management expected 

• Mr. Hays to find the time during his shift to service the system, 

preferably during the "belting up" and changing of the miner 

bits, would not allow him to stay over and service the system 

while it not operating, would accept no excuses or explanations 

from him if he failed to service the system during his shift, and 

apparently simply expected him to report the fact that he could 

not service the system during his shift. Under all of these 

circumstances, I conclude and find that management condoned and 

1885 
tacitly approved of Mr. Hays' practice of servicing the system 

while it was in operation. I further conclude and find that it 

was not unreasonable for Mr. Hays to conclude that he was 

expected and required to service the system while it was in 

operation. 

Mr. Jerry Caudill testified that greasing some of the 

fittings on the carrier, including the speed reducers, regardless 

of whether they were centered or off-centered on the shaft, while 

he was "riding" it or "on the run" between the machine and coal 

rib would place him at risk of being caught against the rib or in 

the conveyor chain or slide pan, and that he has had "close 

calls" on more than one occasion while attempting to service the 

system under these conditions. Electrician and foreman 

Richardson believed that it was possible for someone to b..e 

injured or killed while attempting to service the system while it 

was in operation. 

Although bridge carrier Combs testified that he can engage 

an emergency stop control to stop the carrier from advancing and 

stop the miner machine, and that he could observe Mr. Hays at all 

times if he were servicing the system while it was moving if 

Mr. Hays were standing erect or hunched over, he could not see if 

he were lying down or on his knees greasing the fittings, and 

could not see him if he were at the rear of the machine unless he 

(Combs) turned around to look. 

Mr. Collins conceded that servicing the system while it was 

in operation could result in the individual doing the work being 

caught between the machine and the rib, or being run over, and 

that this could result in serious injury or death. He also 

conceded that it would be impossible to service a fitting which 

is off-centered while the system is in operation. 

Mr. Hacker conceded that servicing the system while it was 

in operation was illegal and unsafe. Although he alluded to 

several carrier fittings which have extended fittings, he confirmed that they were not equipped with grease caps and that it 

would still be illegal to grease these fittings while the system 

was running because he could be pinned against a belt structure. 

He agreed that an electrician greasing the system while the 

system power was off but not locked out, could be injured if the 

power breaker was turned on. 

Having viewed Mr. Hays during the course of the hearing, I 

find him to be a credible witness, and I take note of the fact 

that Mr. Hacker had no reason to disbelieve his assertions that 

the servicing of the system while it was in operation exposed him 

to hazards and potentially serious or fatal injuries. Mr. Hays 

believed that it was physically impossible to attach a grease 

hose to an off-centered carrier speed reducer fitting while it 

was turning on the shaft and while the system was in operation, 

1886 
and Mr. Collins agreed that this was true. Although Mr. Hays 

indicated that he could physically attach a grease hose to a 

fitting which was centered and not turning on the shaft, he 

believed it was unsafe to do so and had to watch and stay out of 

the way of the moving equipment while doing this, and that he 

could be run over or pinned against the rib by the machine, 

particularly if he were unaware that the bridge carrier operator 

would moved the machine. 

Mr. Hays also believed that he could be seriously injured 

while servicing the system while it was in operation, and that 

none of the system fittings he was required to service had 

extended fittings. He stated that he had to "ride" or lie on top 

of the machine to grease the fittings when there was no room for 

him to stand between the machine and the coal rib when the miner 

was cutting coal in a belt entry. Because of the location of 

some of the fittings he had to lay on top of the machine while it 

was moving in order to reach them, and would have to position his 

body between the coal rib and the machine to reach other 

fittings. With regard to the five grease fittings located at the 

bridge carrier block, he had to lay on the machine to reach them 

and this exposed him to a hazard of coming in contact with the 

mine roof. 

Given all of the aforementioned circumstances, I conclude 

and find that Mr. Hays had a reasonable and good faith belief 

that greasing, oiling, or servicing the haulage system in question, including its component parts and bridge carrier speed 

reducer with off-centered fittings which turned on a shaft, while 

the equipment was energized and in operation or moving, would 

expose him to dangerous safety hazards and possible serious or 

fatal injuries. Although Mr. Hays may not have directly refused 

to service the system while it was in operation, and he acknowledged that he had previously serviced it while it was in operation, I accept as credible his assertion that he was instructed 

to do so by Mr. Hacker, that he reasonably believed that he would 

be replaced if he did not follow these instructions, and that he 

had reasonable grounds for believing that management expected or 

required him to service the system while it was in operation, 

regardless of any resulting hazard or injury exposure. 

I conclude and find that the respondent required or expected 

Mr. Hays to service the haulage system, including its component 

parts, while it was in operation, and that his failure to do so 

was tantamount to a work refusal. I further conclude and find 

that this work refusal was reasonable and made in good faith, and 

that it constitutes protected activity within the scope and 

intent of section 105(c) of the Act. 

1887 
Mr. Hays' Communication of His Safety Concerns to Mine Management 

Mr. Garcia's suggestion that Mr. Hays should have discussed 

his safety concerns with someone "higher up" in management is 

rejected. The credible testimony establishes that Mr. Hays 

specifically informed maintenance foreman Hacker of his safety 

reasons for not servicing the haulage system immediately before 

Mr. Hacker discharged him, and Mr. Hacker himself acknowledged 

that this was true and that he had no reason to disbelieve 

Mr. Hays. Rather than addressing Mr. Hays' concerns, or taking 

them into consideration, Mr. Hacker summarily discharged him, and 

he did so without any further inquiry as to the work which 

Mr. Hays may have performed on the system prior to the discharge. 

The credible and unrebutted testimony of Mr. Hays and Mr. Caudill 

establishes that Mr. Hacker would accept no excuses for what he 

believed was a failure by Mr. Hays to service the equipment. 

The credible testimony of Mr. Hays reflects that during a 

meeting held a week or two prior to his discharge, and in the 

presence of Mr. Hacker and Mr. Collins, he raised his safety 

concerns about servicing the system while it was in operation, 

and Mr. Collins acknowledged and believed that this was true. 

Further, Mr. Hays' testified credibly that he had previously 

voiced his safety concerns about servicing the system while it 

was in operation with Mr. Hacker and complained to Mr. Hacker 

about the matter when he worked at the No. 49 Mine, and that he 

had "confronted" Mr. Hacker "face to face" about greasing the 

speed reducers while the system was in operation. 

Under all of the aforementioned circumstances, I conclude 

and find that Mr. Hays' concern and belief that the greasing and 

servicing of the system while it was in operation was unsafe and 

hazardous and exposed him to potential injuries was communicated 

to mine management prior to his discharge, and that management 

had a reasonable opportunity to address his safety concerns, but 

did nothing about it. I further conclude and find that Mr. Hays' 

communications were timely made and that they met the requirements enunciated by-the Commission in Secretary of behalf of 

Dunmire and Estle v. Northern Coal Co., 4 FMSHRC 126 (February 

1982), Secretary on behalf of John Cooley v. Ottawa Silica 

Company, 6 FMSHRC 516 (March 1984); and Gilbert v. Sandy Fork 

Mining Company, supra. 

The Respondent's Defense 

The respondent takes the position that the complainant has 

not established that he engaged in any protected activity and has 

not established a prima facie case of discrimination. The 

respondent argues that Mr. Hays' termination was not motivated in 

any part by any protected activity, and that he was discharged 

for not servicing other equipment which was found to be dry and 

dusty and ungreased when it was examined by his supervisors 

1888 
(Collins and Hacker). The respondent points out that prior to 

the inspection of this equipment by the supervisors, they were 

unaware that Mr. Hays and Mr. Caudill were not lubricating those 

parts properly, and until they discovered that grease fittings 

were missing or broken, they had no knowledge that the work was 

not being performed. After meeting with both miners, Mr. Hacker 

questioned them and fired them both. 

The respondent argues further that at the time of the discharge of Mr. Hays, Mr. Hacker knew about his "record of previous 

misconduct," and attempted to find a niche for him at the mine in 

spite of his feelings that he was the best of workers. Although 

Mr. Hacker believed that Mr. Caudill had a poor work record, when 

Mr. Hacker's superiors reviewed the dismissals and discovered 

that Mr. Caudill had never been disciplined before, they offered 

him reinstatement. Respondent concludes that this "is the most 

compelling evidence of the respondent's true motive," and that if 

the respondent had wanted to punish miners for exercising their 

rights to safe working conditions it would not have brought 

Mr. Caudill back to work. 

The respondent's termination notice of September 7, 1989, 

reflects that Mr. Hays was terminated for "unsatisfactory performance," and the explanation for this action is shown as 

"Improper Servicing of Equipment." In its answer to the complaint, respondent states that Mr. Hays was discharged "in part" 

because he "had not serviced a grease fitting for the speed 

reducer on the No. 1 bridge" (emphasis added). During his opening statement at the hearing, the respondent's counsel stated 

that Mr. Hays was discharged because of his failure "to service a 

large number of the components that were within his responsibility" and that "the single grease fitting on the speed reducer 

shaft was merely the means by which his failure to do his job was 

discovered" (Tr. 12). Counsel further stated that when the speed 

reducer broke down, Mr. Hacker examined it and found that it had 

not been greased. At the same time, he found other pieces of 

equipment that had not been maintained and summoned Mr. Hays to 

his off ice and interviewed him regarding his failure to service 

"the equipment." Counsel concluded that Mr. Hays' previous 

disciplinary record, coupled with his "egregious failure to 

service any equipment on the day . . . or during the week preceding his discharge" led to his termination (emphasis added, Tr. 

13) • 

The complainant asserts that he was discharged because of 

his refusal to grease the No. 1 bridge carrier speed reducer 

grease fitting. Complainant argues that it is undisputed that 

when Mr. Hacker met with him and Mr. Caudill immediately prior to 

his discharge he showed them the offset grease fitting that 

Mr. Collins had discussed with him earlier that afternoon, and 

asked them when they had last serviced it. Complainant maintains 

that at no time during his conversation with Mr. Hacker did 

1889 
Mr. Hacker claim that he had found other broken grease fittings 

on the section, nor did he accuse him or Mr. Caudill of failing 

to service other equipment on the section. Complainant points 

out that during his extensive trial testimony Mr. Hacker did not 

claim that he had discussed other broken grease fittings and/or 

the failure to service other equipment with him or Mr. Caudill, 

and that Mr. Caudill unequivocally testified that they were both 

fired "over that grease cap." Complainant further points out 

that the respondent's general manager Garcia testified that he 

was discharged for failing to lubricate the continuous haulage 

system and that Mr. Garcia was not told that management had found 

numerous broken grease fittings, or that the complainant had also 

failed to service other equipment on the section. 

The complainant states that Mr. Hacker admitted that prior 

to the day of the discharge, there had not been any repo~ts of 

broken grease fittings on the section despite the fact that the 

individual equipment operators were required to inspect their 

equipment each shift prior to its operation. Complainant points 

out that Mr. Hacker also admitted that he had been on the section 

every other day prior to the discharge and never saw any of the 

several broken grease fittings that he claimed to have found that 

day. Complainant asserts that Mr. Hacker attempted to avoid this 

inconsistency by stating that the grease fittings could not have 

been broken for long (when he allegedly discovered them on the 

day of the discharge) because otherwise breakdowns of the haulage 

system would have occurred. Complainant concludes that this 

explanation contradicts the respondent's argument that he had not 

serviced any of the equipment on the section during the week 

preceding his discharge. 

Complainant further concludes that had he failed to service 

all of the equipment, it is clear that equipment breakdowns would 

have occurred. However, there were no such breakdowns, and the 

respondent admitted that the broken conveyor sprocket which 

malfunctioned on the day of the discharge did not break because 

of the failure to grease the offset fitting in question. 

Complainant emphasizes the fact that although Mr. Hacker claimed 

at his deposition that "most" of the grease fittings on the 

haulage system were broken when he inspected the system, at 

trial, he alleged that he had only found about six broken 

fittings. 

The complainant points out that the respondent failed to 

call any day shift or second shift foremen to testify to his 

alleged failure to service the haulage system and other equipment 

on the section, and failed to elicit testimony from any supervisory or hourly employees regarding his otherwise allegedly poor 

job performance. On the other hand, complainant states that he 

called six former coworkers and equipment operators who testified 

credibly that he was a good worker, and that Mr. Collins admitted 

that he had not received any complaints from Mr. Hacker, or 

1890 
anyone else,· regarding his job performance prior to discovering 

the broken grease fitting on the day of his discharge. 

The complainant asserts 

that he had not serviced any 

during the week prior to his 

to Mr. Collins on the day of 

daily notes which he kept in 

work that needed to be done. 

reviewing these .notes during 

the amount of work reflected 

and revealed a "hard working 

rough day." 

that the respondent's allegations 

of the equipment on the section 

discharge and that he admitted this 

the discharge are refuted by the 

order to keep track of the repair 

Complainant points out that after 

the hearing, Mr. Hacker stated that 

by these notes was "very impressive" 

individual" who had put in a "very 

The complainant argues that the hearing testimony of 

Mr. Collins and Mr. Hacker is inconsistent with their prior 

statements made to the MSHA special investigator during-the 

investigation of his complaint. Complainant points out that 

Mr. Collins did not tell the investigator that he had examined 

other equipment on the section after observing the broken grease 

fitting on the day of the discharge, or that he had found other 

broken fittings. Complainant states that Mr. Collins' statement 

indicates that after he saw the broken grease fitting on the 

No. 1 bridge, he told Mr. Hacker to "come underground and look at 

the bridge," and does not reflect that he asked Mr. Hacker to 

examine the entire haulage system and the other equipment on the 

section. With regard to Mr. Hacker, complainant argues that he 

did not tell the investigator that the complainant had been 

discharged for failing to service equipment other than the mobile 

bridge carrier. 

Complainant asserts that Mr. Collins' testimony that the 

complainant did not complain that it was unsafe to service the 

haulage system while it was in operation at the time he asked 

about the broken grease fitting is not credible in light of 

Mr. Hacker's admission that the complainant raised this issue 

immediately after being sent out of the mine. Complainant notes 

that Mr. Collins, who testified in a previous safety discrimination case, was found by Judge Melick not to be a credible 

witness. Tolbert v. Chaney Creek Coal Corporation, 9 FMSHRC 580 

at 583-584, 589 (March 1987). 

The complainant asserts that Mr. Hacker's lack of credibility is plainly evidenced by his testimony regarding the complainant's reassignment to the day shift electrician's job. Complainant points out that although Mr. Hacker testified that he considered the complainant to be an inept electrician who was not 

interested in doing a good job, and claimed that the complainant's previous foreman had told him that the complainant would 

have to be replaced, Mr. Hacker transferred the complainant to a 

production shift a couple of weeks before his discharge. The 

complainant finds incredible Mr. Hacker's testimony that he does 

1891 
not usually try to put good electricians on his production shifts 

and assigns his worst electricians to those shifts. 

The complainant also concludes that Mr. Hacker's testimony 

that he told the complainant that he was not instructed to service the haulage system while it was in motion is likewise 

clearly not credible. In support of this conclusion, the complainant points out that had Mr. Hacker just learned for the 

first time that his electricians were servicing the haulage 

system while it was in operation, and had he been concerned 

enough to tell them they were not supposed to do this, he would 

certainly have investigated the situation further. However, 

Mr. Hacker made no further inquiry to determine whether the 

system was being greased while it was in operation, and when the 

complainant complained to him about the dangers of servicing the 

system while it was in operation, he was precipi tately--discharged. Complainant concludes that his abrupt discharge clearly 

indicates that Mr. Hacker knew that the haulage system was 

regularly being serviced while it was in operation, and that his 

refusal to service the fitting in question was the reason for his 

discharge. 

With regard to the three prior disciplinary actions taken 

against him, the complainant takes the position that they are 

irrelevant to the issue presented in this case, and he points out 

that in each case he refused to sign the disciplinary slips 

because he disagreed with the reasons for the stated discipline. 

Complainant also points out that Mr. Hacker confirmed that he was 

never disciplined by the respondent for failing to notify management of repairs that needed to be made. The complainant points 

out that if he were discharged for his protected refusal to 

service the offset grease fitting in question, then his discharge 

clearly was in violation of the Act. If, on the other hand, he 

was discharged for the unprotected failure to service any of the 

equipment on the section during the week preceding his discharge, 

as claimed by the respondent, his discharge did not contravene 

the Act. However, even assuming that this was a mixed motivation 

case, complainant concludes that his prior disciplinary record, 

i.§., his unprotected activities, would not be at issue, 

Secretary of Labor on behalf of Pasula v. Consolidation Coal 

Company, 2 FMSHRC 2786, 2800 (1980), rev'd on other grounds 

sub nom. Consolidation Coal Company v. Marshall, 663 F.2d 1211 

(3d Cir. 1981). 

Complainant asserts that the respondent failed to introduce 

any concrete evidence to support its attempts to establish that 

he may have had time during the final week of his employment in 

which he could have serviced the eight offset grease fittings 

that he refused to grease while the haulage system was in operation, and that its trial testimony in this regard was mere conjecture. The complainant believes· that the respondent's defense 

in this case is misplaced and that the gravamen of this case is 

1892 
that the respondent required him to spend 1-1/4 hours or more 

every shift performing an unsafe and unlawful act, namely, 

servicing the continuous haulage system while it was in 

operation. 

The complainant concludes that the fact that he regularly 

acceded to the respondent's unlawful requirement by servicing 

most of the system while it was in operation does not absolve the 

respondent of liability for his unlawful discharge for refusing 

to service the offset grease fitting on the No. 1 bridge. 

Complainant further concludes that the fact that there theoretically may have been 5 minutes available to him during which the 

haulage system could have been deenergized and the fitting in 

question serviced, is irrelevant, and that the respondent cannot 

dissolve its unlawful conduct by surmising that there may have 

been time when its illegal requirement could have been_~awfully 

performed. 

With respect to the respondent's assertion that he should 

have reported to management each day that he had not greased the 

offset fitting on the haulage system, complainant points out that 

there is no precedent or legal justification for requiring a 

miner to daily report his refusal to perform a hazardous job 

assignment which his employer requires as a condition of employment. The complainant points out that he had complained about 

the respondent's illegal requirement prior to his discharge but 

his complaints were ignored. He was then given the Robson's 

choice of his safety or his job, an action which the complainant 

concludes was prohibited by the Act. 

The evidence in this case establishes that Mr. Hays was 

expected or required by management to service the continuous 

haulage system while it was in operation. In addition to these 

duties, Mr. Hays was responsible for the daily servicing of a 

roof-bolting machine and the gathering arms of the 

continuous-mining machine. He was also assigned other duties on 

the section. In the event of any haulage equipment breakdown, 

Mr. Hays was responsible for making the repairs. Contrary to 

Mr. Hacker's belief that Mr. Hays was not a good electrician, 

Mr. Hacker himself conceded that such repairs were accomplished 

by Mr. Hays as required, and the system would be placed back into 

operation immediately. Further, after reviewing Mr. Hays' notebook entries reflecting the work he performed during the time 

period prior to his discharge, Mr. Hacker agreed that it appeared 

that Mr. Hays was a hard working individual. Although the 

respondent asserted that these work entries were self-serving, 

and suggested that they may have been fabricated, it nonetheless 

stipulated that the notebook was authentic, and I find it to be 

credible and probative. In addition, the credible and unrebutted 

testimony of several of the equipment operators reflects that 

Mr. Hays was doing a good job in servicing their equipment, and 

they had no complaints about his job performance. Mr. Collins 

1893 
confirmed that he was not concerned about Mr. Hays' job performance prior to his discharge, and had received no complaints about 

Mr. Hays prior to this time. 

Contrary to the respondent's assertion that Mr. Hays failed 

to service any equipment on the section during the week prior to 

his discharge, the credible unrebutted testimony of Mr. Hays and 

the daily work log which he maintained establishes that he 

greased and serviced several bridge carrier components, a roof 

bolter, a continuous-mining machine, conveyor chains, scoops, and 

made necessary repairs. Except for 2 days when he noted that he 

was off on September 3 and 4, 1989, because of labor day, all of 

this work was accomplished during the period August 29, 1989 

through September 6, 1989, the day before his discharge. In 

response to several bench questions concerning these work 

entries, Mr. Hacker conceded that some of the work performed was 

on the continuous haulage system, and that it was obvious to him 

that the equipment was being serviced while it was in operation 

(Tr. 209-210).. He also confirmed that he had no knowledge of the 

work performed by Mr. Hays on the section on the day of his 

discharge and did not ask him about his work that day (Tr. 212). 

General mine manager Garcia testified that he learned of 

Mr. Hays discharge through a telephone call, and he could not 

recall any conversations with Mr. Collins about the discharge, 

nor could he recall receiving any information from Mr. Hacker 

about the matter. Mr. Garcia further testified that he could not 

recall being told that Mr. Hays was discharged for any reason 

other than his failure to lubricate the haulage system. He 

confirmed that the discharge "was basically a failure to perform 

the job as he was assigned is generally the way it was put to 

me." 

Mine Superintendent Collins testified that he believed that 

Mr. Hays was fired for not servicing the entire haulage system, 

rather than the one offset grease fitting on the No. 1 bridge. 

Mr. Collins further testified that when he checked the haulage 

system on the day of the discharge he found other broken fittings 

which had not been greased, and that after Mr. Hays was fired 

Mr. Hacker informed him that he had fired Mr. Hays for "not 

servicing equipment." However, Mr. Collins confirmed that he was 

not involved in the decision to fire Mr. Hays, did not discuss 

Mr. Hacker's decision to fire Mr. Hays with Mr. Hacker, did not 

speak with Mr. Hacker about Mr. Hays' job performance, and did 

not suggest to Mr. Hacker that any disciplinary action needed to 

be taken against Mr. Hays. 

Mr. Hacker testified that when he inspected the equipment on 

the section after Mr. Collins summoned him underground on 

September 7, 1989, he did not speak with Mr. Hays about the 

servicing of the equipment. Mr. Hacker stated that upon inspection of the haulage system, the roof-bolting machines, and one of 

1894 
the scoops he found "a lack of servicing," and found six or more 

broken grease fittings on all of the bridge carriers. He then 

retrieved the No. 1 bridge carrier broken sprocket grease fitting 

and cap which needed repair and took it with him to his office. 

He then met with Mr. Caudill and Mr. Hays in his office and 

showed the fitting to Mr. Caudill and Mr. Hays and asked for an 

explanation as to why "they had not serviced," and Mr. Caudill 

informed him that he did not have time "to service," and Mr. Hays 

informed him that he could not "service that while it is running" 

(Tr. 152). Mr~ Hacker confirmed that Mr. Hays also informed him 

that it was unsafe to service the haulage system while it was 

operating (Tr. 190). 

Mr. Hacker testified that he discharged Mr. Hays for 

"improper servicing of equipment" because "he had not serviced it 

the way he was instructed to" (Tr. 184-185). He admit~ed that he 

informed the MSHA special investigator that he fired Mr. Hays 

because he had not serviced the mobile bridge carrier, and that 

the bearings, grease caps and speed reducers had not been 

serviced within the past week (Tr. 185). He confirmed that he 

told the investigator that he fired Mr. Hays "over the MBC," and 

did not mention the roof-bolting machine, continuous miner and 

the other equipment on the section (Tr. 186). 

In response to several bench questions, Mr. Hacker stated 

that he concluded that the broken No. 1 bridge carrier speed 

reducer sprocket fitting had not been serviced because it showed 

the lack of any greasing when he removed the cap. Mr. Hacker 

further stated that when he showed that part to Mr. Caudill and 

Mr. Hays, he asked them why they had not reported that it was 

broken, and that he showed them the part "because that was a 

topic to get started on the servicing of the equipment" (Tr. 

231). I find no evidence or credible testimony from Mr. Hacker 

supporting any reasonable conclusion that he discussed any equipment, other than the offset broken speed reducer fitting in 

question with Mr. Hays or Mr. Caudill at the time of their discharge. I conclude and find that it was reasonable for Mr. Hays 

to believe that he was being discharged for his failure to grease 

or service the broken speed reducer which Mr. Hacker displayed 

during their meeting, and all of the testimony regarding this 

issue leads me to conclude that this was in fact the case. 

I find no credible or probative evidence to support the 

respondent's assertion that Mr. Hays was discharged because of 

his failure to service any of the equipment on the section during 

the week immediately preceding his discharge, or because of his 

failure to service other parts on the continuous haulage system. 

The "other parts" of the haulage system which the respondent has 

alluded to as not being properly serviced or greased by Mr. Hays 

appear to be the six additional broken and ungreased fittings 

which Mr. Hacker claimed he found during his inspection of the 

system on the day he discharged Mr. Hays. However, Mr. Hacker 

1895 
confirmed that none of these fittings could have been serviced or 

greased because they were broken off. 

Although Mr. Hacker testified that each mobile carrier has 

nine different locations which have extended fittings, but no 

grease cups, there is no evidence that the six fittings alluded 

to by Mr. Hacker were equipped with extended fittings. Even if 

they were, Mr. Hacker conceded that it would be illegal to 

service those fittings while the system was in operation because 

it would be dangerous (Tr. 168). I also take note of the fact 

that in his deposition, Mr. Hacker stated that the haulage system 

had no extended fittings, and he believed that this was the case 

at the time he discharged Mr. Hays. He also reconfirmed the fact 

that he knew it was illegal to service any of those fittings 

while the equipment was in operation, and that the system had to 

be deenergized and blocked against motion when it was befng 

greased (Tr. 194, 196-197, 201). I also take note of 

Mr. Hacker's prior statement to the MSHA investigator that "the 

bearings, grease caps and speed reducers had not been serviced 

within the past week," but I find no evidence to establish that 

these components included extended grease fittings. The extended 

fittings mentioned by Mr. Hacker had no grease cups, and the 

evidence establishes that the speed reducers have offset fittings 

which are hazardous to service while the equipment is in motion. 

Although Mr. Collins and Mr. Hacker testified that they 

expected Mr. Hays to report any problems or lack of available 

time to service the system and the equipment, I find no evidence 

to support any conclusion that Mr. Hays was discharged for failing to report his inability to service the system during his 

regular work shift. Mr. Hays' note book notations, which I find 

credible, reflect that he periodically reported equipment malfunctions and other problems. The record also reflects that 

Mr. Hays made necessary repairs on the section during the period 

prior to his discharge. 

Mr. Hacker acknowledged that no one from management ever 

complained about Mr. Hays' failure to comply with the maintenance 

"card system," and that he had never "written up" Mr. Hays for 

not informing management about any needed equipment and repairs. 

He also confirmed that the electricians did not always personally 

report to him work which was needed to be done and that they 

frequently called a lady in the light house and that she would 

take their reports. The respondent's suggestion that Mr. Hays 

may have waived any protected rights under the Act by continuing 

to service the haulage system knowing that it was unsafe is 

rejected. I believe Mr. Hays' testimony that Mr. Hacker gave him 

no choice and would have replaced him if he failed to service the 

system while it was in a production mode, and the record establ~shes that management did not address Mr. Hays' complaints in 

this regard. 

1896 
General manager Garcia testified that there is no specific 

company rule dictating when an employee should be discharged, and 

that the fact that an employee has been previously suspended does 

not necessarily or automatically provide grounds for a discharge. 

He indicated that any decision to discharge an employee would 

"depend on the circumstances." He confirmed that in Mr. Hays' 

case, he and company personnel manager Richard Elliott reviewed 

the personnel files of Mr. Hays and ~r. Caudill subsequent to 

their discharge by Mr. Hacker. He confirmed that on the basis of 

this review, Mr. Hacker's decision to discharge Mr. Hays was 

allowed to stand, but Mr. Caudill's discharge was changed to a 

3-day suspension because his file did not contain any recent 

prior disciplinary actions. 

With regard to Mr. Hays' prior disciplinary actions, 

although Mr. Hacker may have known about them at the-time he made 

the decision to discharge Mr. Hays, and may have mentioned them, 

I find no evidence that he discussed these prior actions with 

Mr. Hays in any detail, or informed him that they impacted on his 

discharge. The termination notice given to Mr. Hays does not 

mention these prior disciplinary actions. I agree with the 

complainant's arguments that these prior actions are irrelevant 

to the issue presented in this case. Mr. Hays was not discharged 

for being a poor electrician, and I conclude and find that but 

for his refusal or failure to service the No. 1 bridge'offset 

grease fitting which he reasonably believed was hazardous, the 

respondent would not have fired him. 

On the basis of the foregoing findings and conclusions, 

which I find are supported by a preponderance of all of' the 

credible and probative evidence adduced in this case, I conclude 

and find that Mr. Hays has established a prima facie c~se of 

discrimination, and the respondent's arguments and defense to the 

contrary are rejected. I conclude and find that Mr. Hays was 

unlawfully discriminated against and discharged by the respondent 

on September 7, 1989, for engaging in activity protected under 

section 105(c) of the Act, and his complaint of discrimination IS 

SUSTAINED. 

Relief and Remedies 

The remedial aspects of this case were held in abeyance 

pending my adjudication of the merits of the complaint. The 

record reflects that subsequent to his discharge on September 7, 

1989, Mr. Hays was out of work for approximately one month, and 

since that time he has been employed by another coal mine operator as an electrician. In his complaint, Mr. Hays requested the 

following relief: 

(1) A finding that the respondent discriminated 

against him in violation of section 105(c) (1) of 

the Act by discharging him on September 7, 1989. 

1897 
(2) An order requiring his reinstatement with full 

backpay and benefits, plus interest, at the same 

rate of pay, on the same shift, and with the same 

status and classification that he would now hold 

had he not been unlawfully discharged. 

(3) An order requiring that all references to his 

unlawful discharge be expunged from his personnel 

file and/or from any and all records maintained by 

the respondent. 

(4) An order requiring him to be reimbursed for all 

expenses incurred in the institution and prosecution of this proceeding, including attorneys fees. 

(5) An order requiring the posting of the decision in · this proceeding at the mine where he is reinstated 

and at all of the respondent's other underground 

mines in eastern Kentucky, said postings to be in 

conspicuous, unobstructed places where notices to 

employee are customarily posted, each for a period 

of 60 consecutive days. 

(6) The imposition of a civil penalty against the 

respondent for unlawfully discharging him. 

(7) Any additional relief as is deemed just and proper 

to make him whole. 

ORDER 

1. Respondent IS ORDERED to reinstate Mr. Hays to his 

former position with full backpay and benefits, with interest, at 

the same rate of pay, on the same shift, and with the same status 

and classification that he would now hold had he not been unlawfully discharged. 

2. Respondent IS ORDERED to expunge from Mr. Hays' personnel file and/or any company records any reference to his 

discharge of September 7, 1989. 

3. Respondent IS ORDERED to reimburse Mr. Hays for all 

reasonable expenses incurred by him in the institution and prosecution of his discrimination complaint, including reasonable 

attorneys fees. 

The parties ARE ORDERED to confirm with each other during 

the next thirty (30) days with respect to the aforesaid remedies 

due the complainant, and they are encouraged to reach a mutually 

agreeable resolution of these matters. Any stipulations or 

agreements in this regard shall be filed with me within the next 

1898 
30 days. In the event the parties cannot reach an agreement, 

they ARE FURTHER ORDERED to file their respective positions with 

me in writing, with any relevant documentation and supporting 

arguments, within the next 30 days. If the parties believe that 

a further hearing may be required on the remedial aspects of this 

matter, they should so state. 

I retain jurisdiction in this matter until the remedies due 

the complainant are finalized. Until those determinations are 

made, and pending a finalized dispositive order by the undersigned presiding judge, my decision in this matter is not final. 

k.iut~- Administrative Law Judge 

Distribution: 

Tony Oppegard, Esq., Appalachian Research & 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, Prestonburg, KY 41653 

(Certified Mail) 

Timothy Joe Walker, Esq., Reece, Lang & Breeding, P.O. 

Drawer 5087, London, KY 40741 (Certified Mail) 

/fb 

1899 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 2 81990 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

WESTERN FUELS-UTAH, 

INCORPORATED, 

Respondent 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 90-108 

A.C. No. 05-03505-03572 

Deserado Mine 

Appearaaces: James B. Crawford, Esq., Oifice of the Solicitor, 

U. s. Department of Labor, Arlington, Virginia, for 

the Secretary1 

Karl F. Anuta, Esq., Law Offices of Karl F. Anuta, 

Bolder, Colorado, for the Respondent. 

Before: Judge Weisberger 

Statement of the Case 

In this case, the Secretary (Petitioner) seeks a civil 

penalty for the alleged violation by the Operator (Respondent) of 

30 C.F.R. § 75.400. Pursuant to notice, the case was heard in 

Glenwood Spring, Colorado, on June 14, 1990. Ernesto L. Montoya 

and Clete R. Stephan testified for Petitioner. David Glenn 

Casey, Carl O'Neal, and Robert Newell Hanson testified for 

Respondent. Post hearing Proposed Findings of Fact and Brief 

were filed by Respondent on July 26, 1990, and by Petitioner on 

August 10, 1990. 

Stioulations 

1. The Administrative Law Judge does have jurisdiction to 

hear this Notice of Contest and Civil Penalty Proceeding under 

the Federal Mine Safety and Health Act of 1977. 

2. The penalty proposed will not affect Western 

Fuels-Utah's ability to continue in business. 

1900 
3. Th~ operation -- the mine operator of Western 

Fuels-Utah -- is a medium to large-size mine operator producing 

a9proximately one million tons of coal per year at this mine. 

4. Western Fuels-Utah showed good faith in correcting this 

cited condition that is in dispute. 

5. It has been agreed that Government Exhibit No. 1 is an 

authentic document, an official government record of the previous 

history, the previous violation history of Western Fuels-Utah 

under the Mine Act. 

Findings of Fact and Discussion 

I. 

On Auqusc 17, 1~89, in connection with an hAA Inspection 

(regular inspection of entire mine), MSHA Inspector Ernesto L. 

Montoya issued an order, under Section 104(d)(2) of the Federal 

Mine Safety and Health Act of 1977 (the Act), alleging a 

violation of Section 75.400, supra. In addition to contesting 

the alleged violation of 75.400, supra, Respondent argues that 

the Section 104(d)(2) Order was not properly issued, as there 

were intervening clean inspections between the underlying 

Section 104(d)(l) Withdrawal Order issued on June 5, 1989, and 

the subject 104(d)(2) Order issued on August 17, 1989. 

Specifically, as argued at the hearing, Respondent's position 

that there was an intervening cleaning inspection of the entire 

mine, is predicated upon reference to a combination of clean 

inspections. 

According to the uncontradicted testimony of Montoya, that I 

accept, he checKed the MSHA Records and did not find any evidence 

of clean inspections between the date of the underlying 104(d)(l) 

Order, and the date Order 104(d)(2} in question was issued. tle 

indicated that the last comolete inspection of the subject mine, 

prior to the date the 104Cd~(2) Orde~ in question was issued, was 

on May 15, 1989. Moncoya indicatad that he spoke to another MSHA 

Inspector, Ervin St. Louis, who informed him that between the 

underlying 104(a)(l) Order and the Order in question, there were 

only Section 103(i) Inspections. He concurred, on 

cross-examination, that these inspections occurred on 

June 12, 22, 26, July 18, 26, and August 3, and 10. Montoya 

indicated that in connection with the 103Ci) Inspection~ that he 

made in the period in question, at different times he went from 

both por~als to the face at the one longwall and three 

development sections. He indicated that he walked through the 

mine in this oeriod once or twice and was able to observe 

'' ... conditlons in the entry, the road~ay that we go 

into, . " (Tr. 45). He indicated that although he did not 

1901 
conduct an inspection on these occasions, he did not ignore 

violations and wrote what he found. According to Montoya each 

103(i) Inspection in the period in question covered the same area 

and was intended to check for methane. According to Montoya, a 

103Ci> Inspection does not include belts, drives, belt entries, 

and electrical equipment unlass tne inspector walks by. In 

contrast, an AAA or regular inspection includes these items as 

well as escapeways and egui~ment at the face. Also, in a regular 

inspection, an inspector checks coal accumulations. 

The Commission, in United States Steel Corporation 

6 FMSHRC 1908 at 1911, (August 1984), set forth the requirements 

for the issuance of a Section 104(d)(2) Order as follows: 

"The plain language of section 104(d)(2) of the Min-e 

A.ct Cn. 2 supra> establishes three general 

prerequisites for the issuance of an initial section 

104(d)(2) withdrawal order: (1) a valid underlying 

section 104(d)(l) withdrawal order; (2) a violation of 

a mandatory safety or health standard "similar to [the 

violation] that resulted in the issuance of the 

withdrawal order under [section 104(d)(l)];" and (3) 

the absence of an intervening "inspection of such mine 

disclos[ing] no similar violations."" 

In Kitt Energy Corporation 6 FMSHRC 1596 (1984), the 

Commission rejected the argument of the Secretary th;:it only a 

complete regular ins9ection is sufficient to satisfy the 

requirements of Section 104 Cd> ( 2). 'rhe Comini.ssion hela tnat 

inspections other than "regular" inspections can be taken into 

account undar Section 104(d)(2). In this connection, the 

Commission noted that it was the burden of the Secretary to 

establish that an intervening cleaning inspection has not 

occurred, and this burden could be met by demonstrating that when 

the Section l04Cd)(2) Order was issued portions of the mine 

remained to be inspected. In this connection, cne Commission 

interpreted Section 104(d)(2), supra, as requiring the inspection 

of a mine "in its entirety" (Kitt Energy Corporation, supra, at 

1599. 

In U. S. Steel Corporation, suora, the Commission reiterated 

its holdin~ in Kitt, supra, at 1914, that " •.• any combination 

of regular or other inspections that covers the entire mine can 

constitute an intervening clean inspection." 

In the instant case, I find that the Secratary has presented 

a priiaa facie case of the absence of an intervening clean 

inspection of the entire mine. The only inspections of the 

subject mine in che period in question were those made pursuant 

to Section 103(i) of the Act. I find that these inspections, 

1902 
according to the testimony of the inspector, took place over one 

day only, and were for all the same areas, i.e., the faces of the 

longwall and development sections and the return and intake 

entries. As explained by Montoya, these 103Ci) Inspections do 

not cover the belt drives, belt entries, or elactrical equipment. 

" ••• unless we happen to walk by" (Tr. 110). As such, I 

conclude that the Section 103(i) inspections, in combination, did 

not cover the entire mine. Therefore, I conclude that the 

Secretary has established its prima facie case that there has not 

been a clean inspection of the entire mine during the period in 

question.l/ I find that Respondent did not rebut Petitioner's 

prima facie case. 

II. 

In essence, Montoya testified that at approximately 

10:30 a.m., on ~ugust 17, 1989, he observed black coal dust in 

,.. ')! the second left entry of Third East between crosscuts 33 and j.-

!7 (c.f., CF & I Steel Corporation, 2 FMSHRC 3459 (1980), (The 

Commission affirmed the finding of the trial judge that an 

intervening clean inspection of the entire mine had not been 

est3blished by the Secretary where the record indicated, inter 

alia, that 30 inspection days, which were part of two regular 

inspections, took place in the period between the underline order 

and the Section 104(2)(d) Order.); c.f. U. S. Steel, supra, (The 

Commission found that testimony of the inspector, inter alia, 

that in the intervening period "I have covered the entire 

facility, yes. • •• the entira ID Number 820, yes," and "well, 

that's possible I went through there.", did not 3fford 

substantial evidentiary support to the finding of the trial judge 

that there was an absence of an intervening clean inspection.) 

CU. S. Steel, sup_ra, at 1914). 

~/ In essence, Respondent in its Brief argues that Petitioner 

has not estqbli3hed that the cited area, i.e, the Second Left 

entry Third East is within the purview of Section 75.400, 

supra. I do not find merit to Respondent's position. Section 

75.4UO is violated if there is an accumulation of coal in "active 

workings." 30 C.F.R. ~ 75.2(g)(4) defines this term as 

" •.• any place in a coal mine where miners are normally 

required to work or travel." It appears from the map of the 

subject mine (Operator's Exhibit 1) that, aside from the belt 

entry, the First Laft or Second Left entries are the only 

pathways for miners to travel from the portals to work at the 

longwall face. I note in this connection that David Glenn Casey, 

a fire-boss employed by Respondent, testified that on August 14, 

1989, he walked up the First Left and Second Left entries. 

1903 
He indicated that the coal dust was on the floor, ribs, crib 

timber, rocks, and timbers. He scraped the coal at various 

points with gloves, his fingers, a pen, and his ID card in order 

to get to a level area. He indicated that the flow coal dust was 

in a layer on top of rock dust, and was "thick as a sheet of 

writing paper" (Tr. 57). He testified that he did not have any 

douot as to the color of the coal, nor did he doubt that the 

material he obsarved was indeed coal dust. I found Montoya to be 

a credible witness. Further, Respondent did not offer the 

testimony of any witness to contradict, based upon their 

observations, the extent of the coal dust observed by Montoya on 

August 17, 1989.~/ Thus, I accept Montoya's testimony in this 

regard. Hence, I conclude, based on Montoya's testimony with 

regard to the various locations in the entry, aside frem the 

floor, where coal dust was observed, the fact that it was 

observed over 28 crosscuts,4/ and due to the fact that it existed 

in a layer on top of the rock dust, I conclude that Respondent 

herein did violate 30 C.F.~. § 75.400, as alleged in the order 

issued by Montoya, in that coal dust was " ... permitted to 

accumulate .•.• " 

III. 

Montoya had indicated in the Order at issue that the 

violation herein was significant and substantial. 

3/ I find that the opinion of Q'Neal that, based en his 

~bservations, the entry in question did not hava co be rock 

dusted on August 14, 1989, is not sufficient to rebut the 

testimony of Montoya, as to his observations 3 days later on 

August 17. Further, due to the expertise and experience oi 

Clete R. Stepnan, I place considerable weight upon his testimony 

that, in evaluating the hazard of coal dust, its color is not 

important, but rather the critical criteria is whether there is 

dust on the aurface. In this connection, he testified that dust 

in a layer as thin as a piece of paper does present an 2xplo31on 

hazard. As such, I conclude that a determination of the color of 

the accumulation is not criti~al to a disposition of chis case. 

Accordingly, I do not place much weight on the testimony 0£ Carl 

O'Neil (Respondent's safety trainer, who was with Montoya during 

the inspection) tnat the dust in question was grey, and not 

black, as testified to by Montoya. 

~/ Inasmuch as the distance between the center of each crosscut 

was approximately 120 feet, the coal dust thus extended over a 

distance of more than 3000 feet. 

1904 
In Mathies Coal Co., 6 FMSHRC 1 (January 1984), the 

Commission set forth the el-aments of a "significant and 

substantial" violation 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 ~ust prove: (1) the underlying violation of a 

illandatory 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 

li~elihood that the injury in question will be of a 

reasonably serious nature. (6 FMSHRC, supra, at---3-4.) 

In essence, Montoya opined that the accumulation of coal 

dust he observed contributed to the hazard of an ~xplosion. In 

thig connection, he concluded that there was a graat potential 

for an explosion based upon the extent of tne coal dust 

accumulation in combination with the presence of methane in the 

gob area.5/ Montoya further noted that coal dust was found only 

five crosscuts from the face, a distance of approximately 

600 feet, and that tnere were various energized electrical 

equipment in the face areas, such as electric motors, a shear, 

and a lighting system which could short circuit, thus cauaing 

sparks. On cross-examination it was elicited from Montoya that 

he did not observe any coal dust suspended in tne air, and at cne 

time he issued the order in question the longwall production had 

been shut down, and there were no diesel equipmant present. 

Further, he conceded that the lighting at the face was explosionproof and the shear motor has to be explosion-proof. 

Montoya indicated that a roof fall could very possibly cause 

sparks, and that the panel in question had a roof fall next to 

the tailgate, but he did not know when this occurred relative to 

the date the order was issued. In this connection, Glenn Casey 

indicated that the entry did not have any history of sudden roof 

falls outby the face line. However, ha indicated that on the 

1ata in question the tailgate had required additional cribbing. 

5; In this connection, I 3.ccept the uncontradicted testimony of 

iontoya that the mins in question was found to be liberating more 

than a million cubic feet of methane per 24 hours, and as such i3 

subject to special inspections for methane pursuant to 

Section 103(i) of the ~ct). 

1905 
David Glenn Casey, a fire boss ~mployed by Respondent, 

indicated that when he observed the area in question on 

August 16, he did not feel that the area needed rock dusting, nor 

was he of the opinion that there was any hazard due to the 

presence of coal dust. In this connection, he indicated that the 

floor was we~. It was the testimony of Carl O'Neal, Respondent's 

safety trainer, that on August 17, the full length of the Second 

Left entry, alongside the coal seam, contained water that was 

approximately 6 to 12 inches wide and 2 to 3 inches deep. He 

said that approximately a third of the floor was wet. Also, 

although Casey indicated that he did not know the amount of 

methane present on August 17, he also indicated that "in the days 

around" August 17 (Tr. 275) in the area in question, there was 

"very minimal ;nethane," which he indicated as .01, .02, _.and 

"occasionally" • 03 (Tr. 276). 

Despite Montoya's admissions on cross-examination, and the 

testimony of Casey and O'Neal referred to above, I conclude, for 

the reasons that follow, that it has been established that the 

violation herein was significant and substantial. In resolving 

the issues presented herein, I place considerable weight upon the 

testimony of Clete R. Stephan, a senior mining engineer employed 

by MSHA, due to his expertise and the fact that his testimony was 

largely unrebutted or contradicted by Respondent. Stephan 

testified, and elaborated upon in Government Exhibit 9, that 

without coal dust, which he termed fuel in suspension, an 

explosion would not occur. ~lthough Montoya did not observe any 

coal dust in suspension, he nontheless observed coal on the ribs. 

As explained by Stephan, because coal ctust on the ribs is 

positioned above the floor level, it is easy for it to go into 

suspension when hit by a blast of air resulting from a roof fall 

or occurring as a consequence of machinery being involved in an 

accident. The coal dust from the ribs would also be placed in 

suspension if a vehicle would knock out a rib. In addition, 

Stephan noted that the coal at the subject mine is considered to 

be in the high range of volatile bituminous coal, and in general, 

bituminous coal is considered explosive. Further, I find, based 

on the uncontradicted testimony of Montoya, that the coal dust 

existed in layers on top of the rock dust.~/ 

b/ Casey testified that the material in question in the area 

~ited by- Montoya was grey. He indicated that in general, rock 

dust is darker if wet, and that the stak rock above the seam in 

question is gray. He also indicated that Montoya had said that 

the material in crosscuts 1 to 27 was getting dar~er and was grey 

at crosscut 27. I find this testimony inadequate to rebut 

Montoya's testimony, based upon his personal observation, that 

the s9ecific material in question consisted of coal dust in a 

layer on too of the rock dust. I observed the witness' demeanor 

and I concl~de that Montoya was more credible in his testimony 

that he had no doubts that the material in qu~stion was coal 

dust. 

1906 
According to Stephan, an ignition at the face would cause 

pressure waves which would place into suspension dust that had 

accumulated. In this connection, he noted that if the coal dust 

was in a layer on top of the rock dust, then most of the 

suspension would be coal dust. It is significant to note, as 

commented upon by Stephan, that an ignition at the face would 

have to travel only 600 £eet2/ in order to propagate an explosion 

of the coal dust located at crosscut 33, only 5 crosscuts outby 

the face. In such an event, according to Stephan, a flame would 

continue to propagate as it pushes iorward any dust that is in 

suspension. Also, to be considered is the fact that, according 

to Montoya and not contradicted by Respondent's witnesses, the 

mine in question liberates a million cubic feet of methane per 

24 hours. In this context, Stephan provided a foundation for 

Montoya's conclusion that there was a great potential for an 

explosion, based on ths extent of the coal dust and ~he fact that 

methane was being liberated from the gob. Stephan, in this 

connection, indicated that coal dust, even in small amounts, has 

the effect of making methane explosive where it exists in 

concentrations below the range normally considered explo3ive. 

Hence, as explained by Stephan, the larger the amount of coal 

dust present the greater the resultant hazard. Here, it is 

noted, that the coal dust had accumulated in the entry in 

question between crosscuts 5 and 33, a distance of over 3000 feet. 

As testified to by O'Neal, there was water on the floor of the 

entry on the date in question. However, according to Stephan, 

the -3.mount of moisture must "increase to pretty significant 

levals before they really affect the explosion itself" (sic) 

(Tr. 155). According to O'Neal, there was water on the floor of 

the entry in question. He testified that the water was 

2 to 3 inches deep, 6 to 12 inches wide. (The floor was 18 feet 

~ide.) I accept this specific testimony from O'Neal as to the 

extent of the water, rather than his general comment that a third 

of the floor was wet. Inasmuch as coal dust had ac~umulated on 

the timbers and ribs, as well as the floor, and Stephan had 

inaicatea that the dust from the ribs could easily be placea in 

suspension, I conclude that the extent of water herein in the 

entry was not significant enough to effect an explosion. 

Based on all of the above, in combination, I conclude that 

not only n.:i.s it been esta.olishe<i that a hazard of an exolosion 

was contributed to by the accumulation of dust, but that it has 

been established that there was a "reasonable likelihood tnat the 

21 It is significant that Stephan indicated that 600 f2et is 

only a very shor~ distance for an explosion co be pro~agated, as 

an explo3ion travels at a rate of 1,000 feet per second. 

1907 
hazard contributed to will result in an event in which there is 

an injury." CU. S. Steel Mining Company, Inc., 6 :b'MSHRC 1834 

at 1836 (1984). Further, it was the uncontradicted testimony oi 

Montoya that, should an explosion occur, ~ersons present in the 

section would be expected t~ be hurt, some fatally. I thus 

conclude that it has been established by Petitionar that the 

violation herein was significant and substantial. (See, Mathies, 

supra~ U. S. Steel, supra). 

IV. 

In order to sustain the Section 104(d)(2) Order, Petitioner 

must establish that the violation herein was as a result of the 

Respondent's unwarrantable failure, which has been defined by the 

Com:nission as aggravated conduct, more than mere negligence. 

(Emery Mining Corp. 9 FMSHRC 1997 (1987)). In this conneetion, 

Montoya testified that the day prior to the issuance of the Order 

in question, he had been to the same entry in connection with a 

103(i) Inspection, and cited Respondent for having an 

accumulation of black coal dust on the timbers, floor, and ribs, 

between crosscuts 32 and 38. According to Montoya, on April 16, 

he informed O'Neal and Robert Hanson, .Respondent's safety 

director, that the return entry (Two Left) had to be entirely 

dusted and they both agreed. O'Neal did not specifically 

contradict Montoya's version, as he indicated that sometimes he 

does not hear what Montoya says. He also stated that he did not 

recall if Montoya had said, on August 16, that crosscuts 5 to 33 

needed dusting. Thus, his testimony is insufficient to rebut 

Montoya's testiillony that in tact he had told O'Neal, and O'Neal 

had agreed that the entire entry had to be dusted. In the same 

fashion, Hanson indicated that he did not recall any discussion 

with Montoya on August 16, with regard to the Citation. Hence, 

his testimony does not rebut Montoya's version. Accordingly, I 

acce~t the version testified to by Montoya. 

Montoya also indicated that O'Neal, in his presence, had 

told David Prosser, the longwall foreman, that the entire entry 

had to be rock dusted. O'Neal, on the other hand, testified that 

Montoya had told him that crosscuts 32 to 38 needed dusting, as 

he was going to cite those areas, but that he (O'Neal) did not 

tell Prosser to dust. O'Neal testified he called the section 

foreman, Brad Jones, and told him the crosscuts that were cited, 

i.e. 32 to 38 needed to be dusted. Be also testified that he 

told Prosser that the areas specified by Montoya i.e. crosscuts 

38 to 32 needed to be rock dusted, but did not tell him to get it 

dusted. 

1908 
Inasmuch as I have accepted Montoya's version, that O'Neal 

had agreed with him that the entira second Left entry had to be 

rock dusted, I thus find more credible Montoya's testimony that 

O'Neal did tell Prosser to dust the entire entry. The critical 

point, however, is that Montoya did tell both O'Neal and Hanson, 

on August 16, tnat the entire Left entry had to be rock dusted. 

Given that specific knowledge by O'Neal and Hanson, I conclude 

that the cited violation of an accumulation, observed by Montoya 

on the next day, August 17, in crosscuts 5 to 33, was as the 

result of Res9orident's unwarrantable failure. In this 

connection, I note that according to Montoya, on August 17, 

Hanson was upsat and he stated that he did not understand why 

only a specific area of the second Left entry was rock dusted, 

and the rest of the entry was not rock dusted. Hanson's 

testimony that he did not recall saying anything on August 17, 

when he received an order from Montoya, is not suffici~fit to 

contradict the specific testimony of Montoya, as to what Hanson 

did say. 

Based on the statutory factors set forth in llOCi) of the 

Act, and considering the degree of Respondent's negiigence, for 

the reason essentially set forth above, (infra, IV), and 

considering the high gravity of the violation herein, based on 

the extent and location of the coal dust, and the fact that it 

was layered on top of the rock dust, I conclude that a penalty 

herein of $950 is proper. 

ORDER 

Respondent shall, within 30 days of this Decision, pay $950 

as civil penalty for the violation found herein. 

Distribution: 

~~sberger ~~ Administrative Law Judge 

James B. Crawford, Esq., Office of the Solicitor, U. s. 

Department of Labor, 4015 Wilson Boulev~rd, Arlington, VA 22203 

(Certified Mail) 

Karl F. 4nuta, ~sq., Western Fuels-Utah, Inc., Post Office 

Box 1001, 1720 14th Street, Boulder, CO 80306 <Certified Mail) 

Mr. Larry Neil, P. 0. Box 1316, Meeker, CO 81641 (Certified Mail) 

dcp 

1909 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

CYNTHIA RAY, 

v. 

SOUTHERN OHIO 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 · 

SEP 2 81990 

DISCRIMINATION PROCEEDING 

Complainant 

DOCJ{et No. WEVA 90-40-D 

COAL COMPANY, MORG-CD 87-1 

Respondent 

Martinka No. 1 Mine 

ORDER OF DISMISSAL 

On July 18, 1990, Respondent filed an Answer in the above 

captioned proceeding. In its Answer, Respondent made a Motion to 

Dismiss. In a Certificate of Service, attached to the Answer, 

Counsel for Respondent indicated that the Answer and Affirmative 

Defenses were served to Complainant on July 16, 1990. To date 

Complainant has not responded to the Motion to Dismiss. 

On August 3, 1990, a Show Cause Order was issued as follows: 

"Complainant (Cynthia Ray> is ORDERED to file a reply to 

Respondent's Motion to Dismiss within 10 days of the date of this 

Order. Failure by Complainant to file such a reply shall result 

in this case being dismissed." 

On August 28, 1990, Complainant called the Commission and 

spoke to the undersigned's secretary, and asked for a continuance. 

A telephone conference call was held on August 29, 1990, between 

Complainant, Counsel for Respondent, and the undersigned. The 

Complainant indicated she had received the Respondent's Motion to 

Dismiss, and was considering obtaining counsel. Complainant was 

allowed an extension until September 10, 1990, to file an Answer 

to the Motion to Dismiss. On September 11, 1990, Respondent 

filed a statement requesting an immediate ruling on its Motion. 

Neither Complainant, nor any Counsel on her behalf, filed a 

Response to the Motion to Dismiss. 

Accordingly, inasmuch as no Reply has been filed by 

Complainant to either the Show Cause Order or Respondent's Motion 

to Dismiss, I find the Complainant has defaulted by not complying 

with the Order to Show Cause. 

It is ORDERED that this case be DISMISSED. 

~~ Avram Weisberger 

'll'U$. GOVERNMENT PRINTING omCE: 19 9 0 -2 81 -7 5 3/2 ~ s 0 9 Administrative Law Judge 

1910